[2001] HCA 69
Praed v Graham (1889) 24 QBD 53
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460
[2009] HCA 16
Rofe v Smith's Newspapers Ltd (1924) 25 SR (NSW) 4
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
[1981] HCA 31
Triggell v Pheeney (1951) 82 CLR 497
[1951] HCA 23
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
[1966] HCA 40
Weissensteiner v The Queen (1993) 178 CLR 217
Judgment (14 paragraphs)
[1]
] NSWCA 77
Feldman v Polaris Media Pty Ltd as trustee of the Polaris Media Trust Trading As the Australian Jewish News (No 2) [2018] NSWSC 1035
Gacic v John Fairfax Publications Pty Ltd (2015) 89 NSWLR 538; [2015] NSWCA 99
Grajewski v DPP (NSW)(2019) 264 CLR 470; [2019] HCA 8
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161
Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; [2014] NSWCA 90
Howden v Truth & Sportsman Ltd (1937) 58 CLR 416; [1937] HCA 74
John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Lloyd-Jones v Allen [2012] NSWCA 230
London Artists Ltd v Littler [1969] 2 QB 375; [1968] EWCA Civ 3
Marshall v Megna [2013] NSWCA 30
McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86
Meissner v the Queen (1995) 184 CLR 132; [1995] HCA 41
Nationwide News Pty Limited v Rush (2020) FCAFC 115
O'Brien v Australian Broadcasting Corporation (2017) 97 NSWLR 1; [2017] NSWCA 338
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69
Praed v Graham (1889) 24 QBD 53
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16
Rofe v Smith's Newspapers Ltd (1924) 25 SR (NSW) 4
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52
Rookes v Barnard [1964] AC 1129
Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348
Sutcliffe v Pressdram Ltd [1991] 1 QB 153
Sutherland v Stopes [1925] AC 47
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Triggell v Pheeney (1951) 82 CLR 497; [1951] HCA 23
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40
Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65
Category: Principal judgment
Parties: Anthony John Cosco (Plaintiff)
Vanessa Hutley (Defendant)
Representation: Counsel:
S T Chrysanthou / N G Olson (Plaintiff)
B McClintock SC / M Richardson (Defendant)
HIS HONOUR: The once working-class suburb of Balmain has been wholly gentrified, to which this case testifies. Opposite the water and the Dawn Fraser Baths lies 32 and 34 XX Street, Balmain, the view from which includes Elkington Park, the Balmain Rowing Club and the harbour or, more accurately, Parramatta River. The gentrification of Balmain has led, inextricably, to the development of elite homes for those who, by any ordinary standards, would be regarded as "elite".
The neighbours at 32 and 34 XX Street were involved in a dispute. It seems, although the evidence in this respect is minimal, that the dispute first arose when the residents of 32 XX Street objected to the development application for 34 XX Street. Whatever be its genesis, during the construction of 34 XX Street, there was continuing disputation between the owners and occupiers of 32 and the owner of 34, who was a builder and, at that time, building his new home for occupation.
One of the owners of 32 XX Street is Vanessa Hutley, the defendant in these proceedings. The plaintiff, Anthony John Cosco, is one of the owners of 34 XX Street. The defendant published statements, which were broadcast on a national "current affairs" program and the plaintiff alleges that the comments were defamatory and caused him damage.
Prior to the publication of the comments with which these proceedings are concerned, the plaintiff discharged a can of expanding builder's foam into the kitchen exhaust vent belonging to the defendant and her partner. As a consequence of that conduct, the plaintiff was charged with the offence of "destroy or damage property" to which he pleaded guilty. The offence is a contravention of s 195(1)(a) of the Crimes Act 1900 (NSW).
The television broadcast occurred on 4 July 2016, during which there was played a prior interview with the defendant, who made a number of statements that it is alleged contained defamatory imputations. The imputations alleged by the plaintiff, arising from the statements of the defendant, were:
1. The plaintiff has bullied the defendant and her family;
2. The plaintiff threatened the defendant with physical harm;
3. The plaintiff harassed the defendant's children;
4. The plaintiff endangered the lives of the defendant and her family by blocking a vent with flammable foam that could have caused an explosion or a fire in their home; and
5. The plaintiff harassed the defendant by throwing materials into her front lawn and writing about her in cement.
[4]
The Broadcast
The interview with the defendant (or an extracted segment of it) was broadcast by Channel 9 on the program "A Current Affair" on 4 July 2016. The segment was titled "Vent Attack" and played extracts of the interview conducted earlier between the journalist, Caroline Marcus, and the defendant, Vanessa Hutley.
It is now technically possible to provide a link in the judgment for the purpose of any reader of these reasons viewing the segment. However, it is not the Court's intention to provide such a link. The transcript of the segment was Schedule B to the Amended Statement of Claim and is available and is sufficient to understand the entirety of the segment and the imputations, if any, that arise therefrom. Schedule A to the Amended Statement of Claim is a transcript of the original interview of the defendant, which is the publication on which the plaintiff sues.
The Court has relied on the recordings, not the transcript, but there are few, if any, substantial errors or omissions in the transcript. Nevertheless, the recording is a more appropriate basis for any findings and that is the reason I have used it. I should note that the "demeanour" of the defendant in the interview gives a totally false impression of her innocence and the circumstances of the disputation between these neighbours. I have recited below transcript of the broadcast, rather than the interview, which is in the following terms:
"TRANSCRIPT
4 July 2016 A Current Affair - Vent Attack! - 9 minutes 20 seconds
Tracey Grimshaw (Host)
Caroline Marcus (Reporter)
David Galbally (ACA legal expert)
Brad Trethowan (resident ACA builder)
Vanessa Hutley (defendant)
Anthony Cosco (plaintiff)
Worker (on-site)
TRACEY GRIMSHAW (Host): Well your home is your castle and we've seen our share of toxic relationships between neighbours on this program. But incredibly, people keep coming up with worse ways to ruin each other's lives and privacy. Tonight, the builder who was photographed squirting a flammable foam into the vent of his neighbour's house. Caroline Marcus has the story. [Turns to Caroline Marcus at studio desk]. And Caro, an alert passerby snapped the pictures.
CAROLINE MARCUS (Reporter): That's right, Trace. And if it wasn't for that good Samaritan, Anthony Cosco may never have been brought to justice. When police approached the builder about his dangerous conduct, which his neighbour says could have caused a fire, he claimed he didn't know what they were talking about. It was only when they showed him that incriminating photo that he admitted what he'd done. And as we found out, his criminal behaviour is the culmination of a long running and messy dispute between the neighbours.
VANESSA HUTLEY: He's just been a bully and he's put my family through hell.
CAROLINE MARCUS: [Are] you aware the substance that was going in, surely that it was highly flammable~
ANTHONY COSCO: [trying to talk while CM talking] Yeah, yeah, tha-, it's flammable in the can, it's flammable in the can.
VANESSA HUTLEY: (voiceover): To put our family at that risk is intolerable and it's appalling that he's still trying to justify it.
CAROLINE MARCUS: Surely you're aware that it could've caused a lot of damage and maybe even an explosion
ANTHONY COSCO: [trying to talk while CM talking] ....... [illegible]. .. if you want to ..... no it didn't...no, not at all...
DAVID GALBALLY (QC): This case is, is certainly one of the worst cases that I've seen of neighbourhood behaviour.
BRAD TRETHOWAN (resident ACA builder): That's criminal, you know, ... it's terrible .... you do not do that, doesn't matter how bad it gets [chuckle] that's just something you don't do.
CAROLINE MARCUS (voiceover): Vanessa Hutley and her family have enjoyed a happy home life for close to ten years. [cut to street view of building site] That is, until Anthony Cosco bought the property next door, knocked it down and began rebuilding.
VANESSA HUTLEY: (interview): Even through the DA process with the council we found him to be quite aggressive and we've had ongoing problems [looks distressed, grimaces]
CAROLINE MARCUS (voiceover): Disputes over boundaries and the height of the new house ended up in the Land and Environment Court which found in Vanessa and her partner Tony's favour. All in all, Mr Cosco was ordered to pay them a total of $179,000. Instead of paying up, Mr Cosco went into bankruptcy, documents showing he's $2.9 million in the red, with declared income over the past year of just $5,600. But at the age of 45, the unemployed builder has a whopping $11.3 million in superannuation, money that creditors like Vanessa Hutley can't touch. After Vanessa's court victory, things start to get nasty.
VANESSA HUTLEY: (voiceover): We've had materials thrown into our front yard. We've had things written about me in cement. Umm, we've had threats of physical harm, we've had my children being harassed ..... [rest blocked out with following CM voiceover]
CAROLINE MARCUS (voiceover): But just when she thought matters couldn't get worse, Mr Cosco sank to a frightening new low. [camera clicking noises] A passerby took a photograph of him spraying expanding foam, a highly flammable and toxic substance, into the extractor vent on the side of Vanessa's house - a vent that goes directly over her stove
CAROLINE MARCUS: When did you realise that something wasn't right?
VANESSA HUTLEY: Well, over a time we'd heard that the vent wasn't operating very well and we found smoke in the house and there was a lot of grease around but really, until we got the photograph and our builder came around and discovered what was in the vent [points toward bag of foam], we had no idea, I mean-
CAROLINE MARCUS: And this is what he found in there [moves toward bag of foam to pick it up]
VANESSA HUTLEY: This is what he found [picks up foam piece with dark brown grid marks from CM holding bag] You can see here, it had started to char. Umm, this was all the way through the vent and then the flaps had been sealed shut.
VANESSA HUTLEY: My children cook, we do their homework here, I mean, it is terrifying to think, you know, on our way home from work, you know, they could have just, making a sandwich and an explosion could've happened, or a fire.
CAROLINE MARCUS: (walking toward AC as he comes up steps) Anthony Cosco, Caroline Marcus from A Current Affair (shakes his hand).
ANTHONY COSCO: Ah no, what's on?
CAROLINE MARCUS (voiceover, footage still rolling but muted): Anthony Cosco was surprised to see us outside Court where he's pled guilty to malicious damage.
CAROLINE MARCUS (showing AC the A4 enlargement of Photo 1 spycam vent being blocked): What were you trying to do here?
ANTHONY COSCO: I wa-, Block a vent that's actually 1.2 metres off the ground ... which is spewing fumes straight into my backyard. That's all I've got say of the matter (walks oft)
CAROLINE MARCUS: (follow AC) Why have you pled guilty to criminal charges then? Mr Cosco?
[cuts to separate footage where AC and CM talking, CM holding A4 enlargement of Photo vent being blocked]
ANTHONY COSCO: Yeah it should go through the roof, it should go through the roof
[walks off, CM follows]
CAROLINE MARCUS (follows AC): Surely you are aware that it could have, could have, caused a lot of damage and maybe even an explosion?
ANTHONY COSCO: (trying to answer while CM talking above): .. .if you want to ... no, it didn't .... no, not at all...
CAROLINE MARCUS (voiceover): He claims he was simply trying to seal off the vent
ANTHONY COSCO: ... Well I was blocking the vent so it wouldn't blow fumes into my backyard where my children play, that's all it is.
CAROLINE MARCUS: But you, you don't live in this property at the moment.
ANTHONY COSCO: No but we work there and it is a, a hazard, yeah.
VANESSA HUTLEY: That is a completely legal safe vent. All we do is cook our family's meals on it. There aren't toxic fumes going out of that vent.
CAROLINE MARCUS (voiceover): Despite making full admissions to creating a fire hazard, Mr Cosco still claims he's the victim.
ANTHONY COSCO: This is only a part of a much bigger story about a boundary dispute which has cost over $200,000 so-
[cuts to separate court footage of CM following AC]
CAROLINE MARCUS: Well you've pled (sic) guilty to the charges but you say that you're the victim here?
ANTHONY COSCO: Yes.
CAROLINE MARCUS: Why?
ANTHONY COSCO: Well it's, it's a harassment campaign by her.
CAROLINE MARCUS (voiceover): After her vent was damaged, Vanessa and her partner took out an AVO against Mr Cosco and then he took one out against them. In a document filed to the court, he alleges he's been subject to abuse, an unsigned letter drop campaign around the neighbourhood, and was told by Vanessa and Tony that they would roast him slowly in court.
WORKER: She's like umm, telling us to go back to our own country, shouldn't be working here, I shouldn't be working for a thug. She's an evil person, she's very vindictive and, and a very angry lady.
CAROLINE MARCUS (voiceover): One of Mr Cosco's employees also claims Vanessa is the one in the wrong and denies any knowledge of rude signs about her on the building site.
WORKER: There's no signs. She's a storyteller. A lawyer (chuckles), a liar as they call them.
CAROLINE MARCUS: Mr Cosco says he's the victim, he says the victim of a long running campaign of bullying and harassment-
VANESSA HUTLEY: (interrupts CM): I deny that completely. Umm, we have done nothing to the Cosco family. Our family has been harassed, our family has been abused.
DAVID GALBALLY: It's very bad, it's very vindictive and it's life threatening and dangerous.
CAROLINE MARCUS (voiceover): David Galbally, QC, says this shows how easily neighbourhood disputes can spiral into criminal charges.
DAVID GALBALLY: The charge that's been laid of malicious damage is a very serious charge and can take a sentence, maximum, of 10 years, or even up to 15 years.
CAROLINE MARCUS (voiceover): It's certainly some of the worst neighbour conduct we've ever seen.
[cuts to unrelated previous stories about neighbourhood disputes]
CAROLINE MARCUS (voiceover): Just like in [illegible] case, David Galbally says photographic proof was key in nailing Mr Cosco. He initially denied knowing anything of the incident when police spoke to him until officers produced the picture and he made full admission.
DAVID GALBALLY: It shows the offence being committed and a court can rely on that, ahh, in coming to its decision in imposing a penalty.
BRAD TRETHOWAN: (voiceover): It's vital evident, I mean this guy knew what he was doing, he knows the product, he's a builder. ..
BRAD TRETHOWAN: (continues sentence onscreen): ... he's very familiar with it so to actually pump it into one of those vents, he knew that it was going to cause some serious damage
CAROLINE MARCUS (voiceover): Resident A Current Affair builder, Brad Trethowan says there's no excuse for Mr Cosco's behaviour.
BRAD TRETHOWAN: What he's done, he's actually blocked the vent and that's going to her stove. Now she's cooking, the rangehood isn't going to work properly, it's going to pour back into the house and next you know her house could have burnt down.
CAROLINE MARCUS (voiceover): Anthony Cosco, however, remains unrepentant.
CAROLINE MARCUS: Do you have anything to say to your neighbour?
ANTHONY COSCO: To my neighbour? No, nothing at all.
VANESSA HUTLEY: We hope, that when he moves in, with his family and his young children, he will actually start being an ordinary civil neighbour. You know, we genuinely live in hope that that can happen.
TRACEY GRIMSHAW: Anthony Cosco will be sentenced on Friday." [3]
[5]
Inferences
Before dealing with the overview of the evidence, it is necessary to deal with the principles that apply to the evidence that has been adduced and not adduced. In this case, demeanour played a significant role, but cannot override independent inconsistent evidence that may be documented. In these proceedings, an important factor is the inferences that are available from the failure to call the defendant or any of her family or any witnesses that are said to have been involved, from the defendant's side, in the events in question.
The commencement point must be Blatch v Archer. [4] The maxim, often repeated, arising from Blatch v Archer is:
"It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted." [5]
The approval of the maxim in Weissensteiner is complicated by the circumstance that the High Court was there dealing with criminal proceedings in which, ordinarily, the accused cannot be prejudiced by a failure to give evidence. Nevertheless, the High Court said:
"The reasoning process whereby the failure of a party to give or to call evidence is taken into account in evaluating evidence which is before the court has long been recognized by the law and is not confined to the criminal law." [6]
The principle is to be applied carefully, but is a principle that is different from that which is applied by the operation of the decisions in Jones v Dunkel [7] and Browne v Dunn [8] . Essentially, it allows the Court more readily to accept evidence adduced in circumstances where it was within the power of another party to contradict it, but the party did not. In these proceedings, many of the issues put to the plaintiff in cross-examination were issues upon which either or both the defendant and her husband, and, otherwise, their son and Mr Storey (another neighbour) could have given evidence. The defendant chose not to call any of them.
Further, notwithstanding that he was a witness to some events which were the subject of cross-examination and suggestions or propositions put to the plaintiff therein, the defendant's solicitor, Grant Hansen, was not called in the proceedings. Of course, Mr Hansen could not give evidence that was privileged. Nor can the Court take into account any failure to call Mr Hansen in relation to conversations with the defendant that would be privileged. However, Mr Hansen was personally involved in some relevant events [9] and was, in that sense, a material witness.
[6]
Lay Evidence
It is necessary to make some general comments about the witnesses that were called, other than the expert witnesses. The plaintiff was called and gave evidence-in-chief for an extended period. The details of the evidence will be dealt with later in these reasons, both in chronological terms and relating to each of the imputations and contextual imputations pleaded.
Mr Cosco gave evidence of significant bullying by the defendant and her partner, and, to a lesser extent, gave evidence of insulting behaviour by their son. The plaintiff was cross-examined about his truthfulness, seeking to establish that he was not a witness of credit or truth. The plaintiff admitted that, in relation to the placing of foam in the exhaust vent attached to the extraction fan in the defendant's kitchen, he had lied to the police. That lie was a statement denying his involvement in the placing of the foam. It was repeated during the course of the same interview. Mr Cosco readily admitted to the falsehood in the police interview. He had little choice; there was a photograph recording the act.
Further, the plaintiff was cross-examined on the proposition that he lied in court when he stated that, when referring to writing on the refrigerator which was said to be aimed at the defendant, he had "no idea who wrote that. It definitely wasn't me", which was a matter to which the defendant referred in evidence. The plaintiff admitted that the answer was false. However, in terms of evidence before the magistrate, and notwithstanding the admission by the plaintiff, it is not absolutely clear that the answer to the question was false. I will, however, treat it as false. That comment needs explanation.
The plaintiff, when giving evidence before the magistrate, was required to answer the question, directly from that which he had observed. If he had answered directly with a "no", the answer would have been correct and truthful. The evidence he gave, in these proceedings, clarifies that he neither saw "Matthew" (whom it was alleged wrote the sign) paint the sign, nor did he ask Matthew about it.
Further, Matthew does not seem to have given the plaintiff an unsolicited admission to that effect. The "idea" that it was "Matthew" who had written the sign on the refrigerator is an inference or conclusion that the plaintiff drew (and continues to draw), which, if stated, would not have been admissible before the magistrate, in any event. The question asked in the proceedings before the magistrate was "who was responsible for the writing?" and, strictly, the plaintiff could not have answered "Matthew" to that question, because it would not have been admissible evidence and was not a matter that the plaintiff saw or heard.
[7]
Expert Evidence
As earlier indicated, two experts were called, each of whom provided Expert Reports. Each of the experts was concerned with the effect of filling the air vent with the foam, to which earlier reference has been made and the combustibility of the foam, during the time it is sprayed, shortly afterwards and at the time that it has set. The defendant tendered a can of "Soudal Gap Filling Expanding Foam". It is Exhibit 3 in the proceedings. Its tender was not confined by any order as to its use.
The material, according to its label, expands to approximately 30 times the size of the can. There is unchallenged evidence that a full can of the material was not utilised.
The material is, according to its label:
"moisture curing, water resistant, excellent thermal insulator (better than many other insulation materials), sound reducing, extremely light, champagne colour, chemically inert once cured, resistant to temperatures from -40°C to +90°C. Fast curing. Skins over in about 5 to 10 minutes, depending on conditions. 3 cm bead cures in about 1½ hours depending on conditions. Does not shrink or expand once cured. Not UV resistant."
The foam itself contains polymethylenepolyphenylisocyanate. It is harmful by inhalation; irritating to the eyes, respiratory system and skin. There is "limited evidence of a carcinogenic effect. May cause sensitization by inhalation and skin contact. Harmful: danger of serious damage to health by prolonged exposure through inhalation. Do not breathe spray. Wear suitable protective clothing and gloves."
The propellants that are used to propel the foam from the can into place are isobutane, which makes up approximately 20% and propane which makes up approximately 10%. These are propellants that are generally used and are used in inspect spray and spray-on cooking oil. The foam itself is polyurethane.
Ms Jones describes the contents from the Safety Data Sheet, which was tendered. [17] Those contents were: isocyanic acid, polymethylenepolyphenylene ester (greater than 25%); 2-propanol, 1-chloro-, phosphate (3:1) (less than 25%); chlorinated paraffin waxes and hydrocarbon waxes (less than 25%); isobutane (less than 20%); and propane (less than 10%).
The calculations of Mr Cafe are unchallenged and calculate the total volume of isobutane and propane released from a full can (that is if the whole can is used) of Soudal is 59.24L. Mr Cafe utilises the figures of Ms Jones, but without any allowance for the fact that the figures are expressed as "greater than" and "less than". A calculation on such imponderables would have been impossible. Further, the volume of the kitchen is 155,400L (6m x 7m x 3.7m).
[8]
Chronology of Events
The plaintiff produced a cross-referenced Chronology of events, which it submits derived from the evidence before the Court. There is no doubt that the evidence upon which the plaintiff relies in its submissions deals with the matters raised in the Chronology. The Chronology gives an overview of the events that gave rise to this dispute. It is in the following terms:
SCHEDULE 1
Plaintiff's Chronology of Relevant Events
Date Event Reference
August 2013 • Anthony and Tania Cosco purchased 34 XX Street. T 22:30
18.09.2014 • Cosco submitted DA to Leichhardt Council T 23:1-2
04.11.2014 • Cosco wrote to Leichhardt Council explaining how he came to obtain the Leuchars report and provided statutory declaration verifying that all other reports submitted are genuine. PTB-A tab 2
T 24:32-25:1
19.11.2014 • Cosco attended site and determined that the boundary fence between No. 32 and No. 34 encroached onto his property by as much as 230mm. T 25:24-26:43
• Cosco contacted Forward and Storey to negotiate fence construction.
• Storey agreed to a 1.8 metre fence.
20.11.2014 • Cosco told Forward that the side fence and rear fence encroached on his property and needed to be repositioned. T 26:16-31:2
Forward denied knowledge of encroachments. PTB-A tab 4
• Cosco emailed Forward a copy of his survey, showing encroachments. Forward said that the three surveys he had did not show the encroachments. Forward did not provide a copy of any of his surveys, despite request from Cosco.
• During a phone call, either on 20.11.2014 or 21.11.2014, Forward said "You're not touching those fences, we put them up. You've proposed a terrible development". Cosco said "All I'm calling you about is the fences and I would like to have them moved onto the boundary". Forward said "You're not going to touch those fences. I'm going to cost you as much delay and expense as possible".
22.11.2014 • Cosco constructed a storage shed in the rear yard of No. 34. T 32:16-29
• Hutley came into the rear lane, looked over the fence and said "What are you doing? Tear that down immediately. If you don't, I'm going to get Council onto you". Cosco told her it was an exempt development. Hutley said "No it's not. I should know, I'm a lawyer. I'm going to cost you, I'm going to take you to court if you don't do what I say".
23.11.2014 • Cosco emailed Hutley and Forward stating that he would increase the height of the rear fence to a standard 1.8m as a temporary measure to obtain privacy. He noted that discussions between them had broken down and he would forward them a formal request pursuant to the Dividing Fences Act shortly. He asked them to provide the check survey they had carried out for their recent construction. PTB-A tab 5
T 32:36-33:19
25.11.2014 • Leichhardt Council inspected the shed in response to a complaint from Hutley or Forward and confirmed that the shed was an exempt development. PTB-A tabs 5, 5A
• Forward emailed Cosco accusing him of "illegally" increasing the height of the rear fence without permission and '"fabricating" the claim that discussions had broken down.
16.12.2014 • Cosco emailed Hutley a Fencing Notice and quote for 1.8m rear fence. PTB-A tab 7
• Hutley stated that she would reply to the Fencing Notice in due course, but in the meantime, demanding that Cosco remove the "rotting palings" he had attached to the rear fence. She claimed that Cosco had done this "to cure your mis-description in the documentation" and that it had compromised "our view of the iconic Cockatoo lsland' and the light to her property.
17.12.2014 • Forward sent a series of emails to the architect preparing shadow diagrams for Cosco, Nilesh Munot, threatening to make a complaint about him to the NSW Architect's Registration Board unless Munot made certain changes to his drawings as dictated by Forward. PTB-A tab 8
• Munot told Cosco that he would be withdrawing his drawings "as I cannot handle this trauma anymore".
18.12.2014 • Cosco emailed the certifier of the No. 32 kitchen extension seeking a copy of the check survey and stormwater drainage system certification in order to confirm that there was no encroachment on his property by either the kitchen extension or its drainage system. PTB-A tab 9
27.12.2014 • Cosco commenced proceedings against Leichhardt Council in the Land and Environment Court for deemed refusal of his development application. T 41:5-27
16.01.2015 • Hutley and Forward rejected Cosco's Fencing Notice and commenced proceedings in the Land and Environment Court pursuant to the Dividing Fences Act. T 43:39-47
28.04.2015 • Hearing of Hutley and Forward's application pursuant to the Dividing Fences Act. The parties resolved the proceedings by agreeing a set of consent orders pursuant to which the rear fence was to be 1.7m in height, except for a 2.13m section which was to be 1.6m. PTB-A tab 11
29.04.2015 • Hutley and Forward emailed Leichhardt Council demanding that alleged "forgeries" in Cosco's application documents be dealt with in "the appropriate criminal jurisdiction" as well as in the Land and Environment Court. PTB-A tab 11A
03.06.2015 • Land and Environment Court gave consent to Cosco's development application. PTB-A tab 14
• First day of work on the construction of the new house at No. 34. T 46:8-61:17
22.07.2015 • Cosco moved a section of fence onto the boundary directly below the front veranda of 32 XX Street in order to permit excavation to proceed. He removed the section of fence abutting the boundary wall and discovered that the floor slab of the 32 XX Street alcove and stub wall encroached on his property. Ex. C
• An argument took place between Cosco and Hutley and was recorded by Cosco. PTB-A tab 15B
• Hansen sent Cosco a letter demanding that he cease any demolition or other work on the fence, refrain from trespassing, and restore the fence to its previous state.
23.07.2015 • Hansen sent Cosco a letter demanding that he rebuild the fence on the boundary as shown in Cosco's survey. PTB-A tab 15C
24.07.2015 • Hansen sent Cosco a third letter demanding that he replace the fence by 10am the next business day. PTB-A tab 15D
25.07.2015 • Forward emailed Cosco threatening to make a complaint of criminal damage and trespass against him if Cosco did not accept Hutley and Forward's offer. PTB-A tab 16A
• Forward warned Cosco that criminal convictions could have consequences for visa applications in the US.
27.07.2015 • Hutley went to Surry Hills police station, then Balmain police station, then Glebe police station attempting to prevail upon police to charge Cosco with malicious damage. PTB-A tab 17
• Cosco responded to Hansen, complaining about the tone of Forward's 25.07.2015 email. Cosco noted that Hutley and Forward had refused to provide copies of any of the surveys in their possession, and requests copies of those surveys.
27.07.2015 • Cosco identified that the concrete stub wall, slab and drain encroached on his property. PTB-A tab 17A
• Cosco requested that Hutley and Forward provide an identification survey if they dispute the findings of Cosco's survey.
30.07.2015 • Cosco complained to Leichhardt Council that the No. 32 kitchen vent breached building regulations. PTB-A tab 17D
12.08.2015 • Cosco commenced excavation at No. 34. T 67:30-37
• Hutley and Forward wrote twice to Leichhardt Council to complain about Cosco's excavation. The compliance officer confirmed that the excavation did not breach any consent condition. PTB-A tab 18
17.08.2015 • Cosco cut the portion of the alcove slab and stub wall which encroached on his property and placed the pieces onto the alcove floor. T 67:39-68:46
• At night, Hutley and Forward cut the alcove fence down and threw it into Cosco's property along with the demolished pieces of alcove slab and stub wall.
18.08.2015 • A WorkCover inspector visited No. 34 after receiving an anonymous complaint about the safety of the site. He concluded that the safety barrier had been adequate and there were no compliance issues to address. PTB-A tab 20
18.08.2015 • Hansen sent a letter to Cosco's certifier, Paul Pearce, demanding that he issue a stop work order, otherwise Hutley and Forward would seek urgent interlocutory relief or a stop work order pursuant to s 121 of the Environmental Planning and Assessment Act 1999. PTB-A tab 19A
• Forward addressed Cosco as a "fuckwit" in front of Forward children, and said "You wait! Your job will be stopped''. T 70:22-71:45
19.08.2015 • Later the same day, Hansen visited 32 XX Street and said to Cosco "See you in court". PTB-A tab 19B
• At about 8.30pm that night, Cosco discovered an email from Hansen advising that a hearing in the NSWLEC had been set for 10am the following day.
28.08.2015 • Cosco and Hutley agree on consent orders to resolve NSWLEC proceedings, involving the rebuilding of the boundary fence and the construction of a retaining wall. T 72:8-30
25.09.2015 • Forward emailed John Cosco threatening to prosecute Cosco for contempt for failing to construct the fence and retaining wall in accordance with the timetable set out in the 28.08.2018 consent orders. Forward said "Please do not imagine that we lack the motive or the means". PTB-A tab 19C
07.10.2015 • Cosco emailed Hansen advising him of the steps he had taken to comply with the consent orders. He said "In the circumstances, I suggest that any application to bring contempt proceedings would simply amount to an abuse of the court system and incur unnecessary legal costs for both parties". PTB-A tab 20B
• On the night of 08.10.2015, Hutley and Forward pushed over the alcove safety barrier for a second time, and then made a complaint to WorkCover and the police about the "unsafe" building site. PTB-A tab 21
09.10.2015 • WorkCover and the police both declined to take any action. PTB-A tab 22
• Hutley became aggressive and rude toward police officers and threatened to take to the fence with a hammer if it were re-erected. T 74:28-49
10.10.2015 • Hutley and Forward pushed fence over for a third time, and again complained to WorkCover. Cosco lodged a complaint with the police. PTB-A tab 23
• Forward told police that the fence collapsed when he leaned on it. T 75:11-50
• Hutley, Forward and their son stood on the veranda and abused Cosco and his employees, saying that they were going to have the job stopped and that the job would never be finished.
10.10.2015 • Hutley called Cosco a "cretin" and said that he probably didn't even finish high school. T 76:1-34
• Hutley's son told Cosco to "go back to the country you came from" and Hutley added "you don't belong here". Forward said "We're going to roast you slowly in court. You wait, you'll see".
• Hutley said "I don't know what your wife sees in you. She'II be leaving you within two years".
• Cosco stacked palings from the old boundary fence in the front yard of No. 32. PTB-A tab 24
[9]
Except as otherwise stated, I accept the events described in the foregoing Chronology as an accurate summary of the events and the interaction between the parties. Some of the events, particularly the issue of the blocking of the vent, will be the subject of detailed analysis, beyond that which has already occurred.
Notwithstanding my acceptance of the foregoing summary provided by the plaintiff, there are incidents which are not summarised. There is no mention of the defendant being referred to as "Muttley" in graffiti or otherwise in oral comments. Nor is there a reference to her as the "runt of the litter". This is not a criticism of the chronology. The chronology sets out the events and does not summarise the evidence. Further, the chronology refers to the plaintiff's explanation for the manner in which he obtained the Report of the arborist that was utilised in his Development Application, but does not detail that the Report was purportedly compiled by a company with expertise in that area, but was in fact compiled by a person or persons unknown and not by the company on whose letterhead it was placed. There is no evidence to suggest that the plaintiff was aware of the forgery, although it was the subject of cross-examination to that effect.
Other matters that are only marginally relevant, but give an indication of the issues between the parties have also been omitted. For example, while the chronology refers to the plaintiff cutting the encroaching portion of the alcove slab and stub wall and placing the pieces onto the alcove floor and to the defendant and her partner throwing that material, together with the alcove fence that they had cut down into the plaintiff's property, it does not record that it was the plaintiff that had all the material removed. Nor does it record the circumstances that led to the event or that were used to justify it.
At the end of the first day of proceedings I commented, without directing the criticism to any one of the parties, that "the conduct of everybody seems pathetic". The extent to which the attitude of the parties escalated, with Apprehended Violence Orders, contempt proceedings, nuisance proceedings, other Land and Environment Court proceedings, the national broadcast and these proceedings, is a salutary lesson in how not to conduct relations with neighbours. That comment was made, and is a view that I continue to hold, regardless of where it is the fault lies in these proceedings or in the escalation of the poor relationship between the relevant parties, about which the Court shall comment later in these reasons.
[10]
Principles
These reasons for judgment do not require the Court to expound at length the principles associated with liability in defamation. Nor do the principles on the calculation of damage require much elucidation. However, it is necessary to summarise those principles. Generally, these proceedings are determined by the factual findings.
There is no issue in these proceedings that the publication, being the national broadcast, was made. Further, the statements by the defendant in the unedited interview, the edited version of which was broadcast, are relied upon for their defamatory imputations. It is unnecessary, in my opinion, to deal separately with each such publication.
Whatever substantive damage has been caused, while based on the original interview, was caused by the broadcast nationally and it is the transcript of that broadcast which has been recited in these reasons for judgment.
The evidence before the Court is that the broadcast was seen and heard by over 1 million persons. As a consequence of those persons seeing and hearing the broadcast, publication has been effected. [25]
The plaintiff bears the onus of proving the publication, but the broadcast is admitted on the pleadings. The plaintiff has satisfied that onus, in any event. The plaintiff also bears the onus of proving that the imputations arise and that each such imputation is defamatory. Damages may be awarded only for an imputation that is defamatory.
The test to be applied in determining whether imputations are defamatory is the "ordinary reasonable reader/listener/viewer" test. The ordinary reasonable reader/listener/viewer is said to be of fair-average-intelligence; fair-minded; not overly suspicious; not naive; not one who would strain or force meaning; not avid for scandal; and one who views the entirety of the broadcast about which complaint is made. [26]
It is necessary to deal with each of the imputations alleged by the plaintiff. The plaintiff alleges, arising from the entire broadcast and in particular paragraphs [7], [17], [37] and [55] [27] , that the imputation was that the plaintiff bullied the defendant and her family [28] . As already stated, and as I commented during the course of the proceedings, the overall impression of the broadcast is that the defendant was totally reasonable and the plaintiff was aggressive, unreasonable and an abhorrent neighbour.
[11]
Defendant's Submissions and Consideration thereof
The defendant accepts in her Closing Submissions that each of the imputations conveyed are defamatory and, as outlined above, the Court has independently determined that issue. As earlier stated, the defendant pleads justification (or substantial truth), contextual truth and honest opinion. The Court has already dealt with the contextual imputations.
As to the defence of truth, the defendant refers to the agreement of the plaintiff that, on 9 February 2016, he sprayed "Expandafoam" into the vent of the defendant's property. There is no issue in the proceedings that the plaintiff did this.
There is reference to the Soudal Genius Gun Foam, but the evidence is that "Expandafoam" was utilised. The Court accepts that the product is so similar as not to be distinguished.
The defendant relies upon the proposition that the can reads "extremely flammable" and that it is "inconceivable" that a builder "could not have known that the propellants were highly flammable". The difficulty with such a submission is that it is not the "propellants" that is the subject of any statement by the defendant in the interview or in the broadcast. Nor is it the propellants that were the subject of any imputation. The imputation relates to the expanding foam blocking the vent; not the application of the foam.
There can be no doubt that the plaintiff was aware and committed the crime of malicious damage to property. The plea of guilty to a criminal offence is an admission of the essential elements, at least at a minimum level, of the offence. [40]
As the High Court has made clear, there may be many reasons that a person pleads guilty to an offence, or has pleaded guilty to an offence, beyond the person's belief in his or her own guilt. Those reasons may include the avoidance of anxiety, the avoidance of inconvenience or expense, the avoidance of publicity, the protection of family or friends, or in the hope of obtaining a more lenient sentence than would otherwise be the case. Nevertheless, the plea of guilty constitutes an admission of all of the elements of the offence. [41]
However, the first imputation upon which the plaintiff relies does not relate to malicious damage to property, as has been pointed out above.
The blocking of the vent does not prove the substantial truth of the first plaintiff's imputation. The issue of whether and the extent to which the plaintiff lied to the police during the course of his interview is a matter dealt with in relation to the other imputations. While the truth of the imputations has already been dealt with in these reasons, some of the material is repeated, or expanded, as a consequence of the necessity to deal with the defendant's submissions.
[12]
Conclusion and damages
I have concluded that the interview contains the imputations that the plaintiff agitates and I have concluded that the contextual imputations do not arise or are not substantially true and, in the case of contextual imputation six, it does not arise in addition to the imputations upon which the plaintiff relies.
Further to the foregoing, the Court has determined that the imputations are not the expression of an honest opinion. As a consequence of the foregoing, it is necessary to deal with the assessment of damage.
In a cause of action based upon defamation, it is unnecessary for the plaintiff to show special damage. It is sufficient that, subject to the defences that may be available, material has been published that is defamatory. By definition, defamatory material damages the reputation of the plaintiff in such a cause of action. Damages are capped, pursuant to the terms of s 35 of the Defamation Act, at $421,000 [75] as of 1 July 2020.
The damages awarded must bear an appropriate and rational relationship between the harm sustained by the plaintiff and the damages awarded [76] and exemplary or punitive damages are not available. [77]
It is now trite that there are three kinds of damages. Ordinary compensatory damages, aggravated compensatory damages and exemplary damages. As already stated, exemplary damages are not available. As earlier stated, damage in defamation is presumed and the awarding of damages is "at large" in that it may compensate for a number of aspects. Included in that diverse range, which is difficult to compute precisely, is any pecuniary loss; social disadvantage; hurt feelings; and general compensation for damage to reputation.
Further, where there has been particularly oppressive, insulting or contumelious behaviour by the defendant that has had the effect of increasing the pain and suffering caused by the defamation, such matters may also be compensated as proper elements. [78] As the House of Lords noted:
"Nevertheless in all actions in which damages, purely compensatory in character, are awarded for suffering, from the purely pecuniary point of view the plaintiff may be better off. The principle of restitutio in integrum which compels the use of money as its sole instrument for restoring the status quo, necessarily involves a factor larger than any pecuniary loss. In actions for defamation and in any other action where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong." [79]
[13]
Endnotes
See Defendant's Closing Submissions at [8].
See Amended Statement of Claim, filed 3 March 2017, at [2] and the Amended Defence to the Amended Statement of Claim, filed 7 August 2017 at [2].
Schedule B to the Amended Statement of Claim.
Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970, per Lord Mansfield.
Ibid; cited with approval in Weissensteiner v The Queen (1993) 178 CLR 217 at 225 [23]; [1993] HCA 65.
Weissensteiner, ibid.
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.
Browne v Dunn (1893) 6 R 67.
Tcpt p 70, l 48 - p 71, l 10.
(1959) 101 CLR 298; [1959] HCA 8.
Browne v Dunn (1893) 6 R 67, excerpted at length in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1.
Tcpt p 288, l 41 - 46.
Tcpt p 289, l 37 - 41.
Tcpt p 285, l 5 - 15.
Tcpt p 286, l 11 - 21.
Tcpt p 287, l 50 - p 288 l 5.
Annexures D, E and F to the Report of Ms Jones.
See Imputation (4) at [5] above.
See Contextual Imputation (6) at [7] above.
Tcpt p 76, l 10 - 14.
Appendix C to the Supplementary Report of Ms Jones of 5 April 2019, referring to Ch. 2: Gas Accumulation, Mixing And Ventilation in R.J. Harris, The Investigation and Control of Gas Explosions in Buildings and Heating Plant (1983, E & FN Spon).
The bottom level of the vent is 169cm from the floor, being 94cm plus 74cm - see Report of Mr Cafe at first dot point of [4.1].
Report of Ms Jones dated 28 December 2018, [14].
See Appendix 1 to the Expert Report of Mr Cafe of 12 March 2019.
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56; David v Abdishou [2012] NSWCA 109 at [259].
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165; [1998] NSWSC 4.
The references to paragraphs are to the original interview; not the broadcast.
This is the first plaintiff's imputation.
[17] of the unedited interview.
[14]
Amendments
13 July 2020 - [17] Sentence split in two.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 13 July 2020
The defendant does not, in her closing submissions, deny that the imputations were conveyed by the comments of the defendant. Nor does the defendant deny that such implications, if conveyed, were defamatory. [1] This is inconsistent with the pleading in the Amended Defence to the Amended Statement of Claim. [2]
The defendant says that the imputations on which the plaintiff relies (hereinafter "the plaintiff's imputations") are substantially true and/or consisted of expressions of her honest opinion. Further, the defendant raises contextual imputations (hereinafter "the contextual imputations") in or to the following effect:
1. The plaintiff pleaded guilty to maliciously damaging his neighbour's property;
2. The plaintiff acted dishonourably by entering administration with the objective of avoiding paying his court costs to his neighbours after he lost the case against them;
3. The plaintiff is a bad neighbour who behaves rudely and selfishly;
4. The plaintiff is a liar;
5. The plaintiff knowingly encroached onto his neighbour's property during the course of an excavation; and
6. The plaintiff acted with reckless indifference to the safety and comfort of his neighbours by blocking a vent from the cooking area of the kitchen to an opening outside of their home with flammable expanding foam.
To the extent that the defendant pleads honest opinion, the plaintiff claims that the defendant did not honestly hold the relevant opinions at the time of the publication of the interview.
Evidence was adduced by tendering a large number of documents, and oral evidence was adduced by the plaintiff. That oral evidence was provided by the plaintiff, Ms Debra Hazelton (a reputational witness), Mr Damon Walsh (a builder and reputational witness), Maurice Cornielje (builder and worker on site at 34 XX Street), Mr William Field (plumber at 34 XX Street), Peter Righton (carpenter and worker at the site of 34 XX Street), Ms Lisa Merhi (plaintiff's sister and reputational witness) and Ms Tania Cosco (plaintiff's wife and reputational witness, testifying to some material in relation to the factual issues in dispute). The plaintiff also relied on an expert report of Mr Anthony Denis Café, who gave some short supplementary evidence in chief and was the subject of cross-examination.
Further, the defendant called its own expert, Ms Belinda Jones, who provided evidence by way of report dated 28 December 2018 in relation to the fire properties of Soudal Gap Filling Expanding Foam, said to be utilised by the plaintiff on the defendant's vent. This was evidence seeking to deal with the same subject matter as the expert evidence of Mr Cafe. Neither the defendant nor her partner was called to give evidence.
The broadcast is that which was seen by the plaintiff and which has caused the major damage.
The broadcast is a national broadcast and the evidence before the Court establishes that the relevant episode, containing the segment, had been viewed by over one million viewers in the major metropolitan areas. In the course of the reasons that follow, the Court will deal with the basis upon which the defendant, assuming that the pleaded imputations arise and assuming that not all of them are true and/or not overtaken by any truthful contextual imputations, the defendant would be liable for the publication by Channel 9. Before detailing those issues, it is necessary to deal with the evidence adduced and the findings of facts to which the Court has arrived.
Ultimately, the failure to call those witnesses, who might contradict the answers given by the plaintiff and others, gives the Court more comfort in relying upon the demeanour of the witnesses that were called, the evidence from whom the Court accepts.
Over and above the application of the maxim in Blatch v Archer, the plaintiff relies upon the inferences available from the application of the principles in Jones v Dunkel. [10] The principles allow the Court more readily to draw inferences that otherwise arise in proceedings and upon which the witnesses that were not called could have testified. Further, the Court draws the inference that those witnesses could not have assisted the defendant's case.
Lastly, it is necessary to refer to the principles established in Browne v Dunn. [11] The principle that is established in Browne v Dunn is one of fairness. It is necessary to put to a witness in cross-examination questions that might allow the witness to contradict that which is to be put in the cross-examiner's case, including where it is to be alleged that the witness is being untruthful.
While the plaintiff was cross-examined, at length, as to the truth of his evidence that a warning was provided to the defendant about the vent and that, if it were not remedied, it would be blocked, no questions were put to Mr Cornielje. It was never put to Mr Cornielje that he was not, in relation to the conversations about the vent and the warnings provided by the plaintiff, telling the truth.
Notwithstanding that lack of cross-examination, the defendant submits that the Court should not believe the plaintiff in relation to the conversations in which he advised the defendant he would be blocking the vent. Mr Cornielje gave evidence that there were a number of conversations between the plaintiff and the defendant about the vent. [12]
Then, Mr Cornielje gives evidence that the conversations about the vent occurred "pretty much most of the time", during which the plaintiff would say "it's got to be filled" and the defendant would reply, "you can't tell me what to do, I'm above you, you don't even know where the boundary is", to which the plaintiff would reply, "look, you've got to move the vent, you've got to put it above the house." [13]
There was no suggestion to Mr Cornielje in cross-examination that the plaintiff never said "it's got to be filled", or that any other part of the conversation did not occur, as stated. To be fair to Counsel for the defendant, the submission that the Court should not believe the plaintiff in this area was confined to the warning that the vent would be blocked. However, I take the view that there is no distinction between "filled" and "blocked", in this context. Further, the meaning of the expression, used by Mr Cornielje, is not fully conveyed in the transcript. It was clear from the body language and pauses, not reflected in the transcript, that the witness was testifying to the plaintiff advising that he would fill the vent if it were not moved.
Notwithstanding the foregoing issue relating to Browne v Dunn, no objection was taken to the submission and the failure to cross-examine Mr Cornielje on that aspect will not be utilised to disregard the submission of the defendant. It will be used to the effect that the evidence remains unchallenged.
Nevertheless, the question was asked and seemingly no objection was taken to it. The plaintiff volunteered that he "had no idea" who wrote it, which is not true. He did have an idea, although, from a legal perspective, he did not know who wrote it; he had assumed Matthew was the person who wrote it.
Notwithstanding that cross-examination as to the statement to police and the answer to the question asked in the proceedings before the magistrate, I do not consider that the plaintiff's evidence was calculated to assist his case. Nor do I consider that the plaintiff, in the evidence he gave in the proceedings before the Court, was in any way untruthful. Nor was the plaintiff dissembling or mendacious. I accept the evidence of the plaintiff, insofar as it was given in these proceedings. There is certainly no evidence to the contrary.
The plaintiff was cross-examined by Senior Counsel over two days. A number of matters were put to him during the course of cross-examination upon which the plaintiff relies for aggravated damages. They will be dealt with later in these reasons, as well as the details of the events at 32 and 34 XX Street.
Ms Debra Hazelton was called, as earlier stated, as a reputation witness. Ms Hazelton is a Director of Australia-Japan Foundation, which is part of the DFAT Group; PERSOL Australia Holdings Pty Ltd; the Treasury Corporation of Victoria Board; AMP Capital Holdings; AMP Limited; and AMP Bank.
She had known the plaintiff for approximately 30 years but more closely in the last 18 years. Ms Hazelton was friendly with the plaintiff's parents and about 18 years ago when she returned from Japan, she needed a builder whom she could trust, not only with her renovations but because her son and nanny would be home during the time that the renovations were occurring.
Ms Hazelton attested to the fact that the plaintiff was known not only by her but by a number of other people in and around Balmain and Birchgrove and that prior to July 2016 (the date of the broadcast) he had a very good reputation. That reputation extended to his occupation as a builder around the Balmain area where he was known as a very good builder who was reliable and competent. Ms Hazelton's evidence was not tested or challenged.
Mr Damon Walsh, also a resident of Balmain and a builder, has known the plaintiff through mutual acquaintances over many years, probably about 10 or 15 years. Mr Walsh and the plaintiff shared subcontractors and had mutual friends. They also drank in the same pub and did some motorbike riding together.
Mr Walsh attested to the plaintiff's good reputation up to mid-2016, not only as a person but as a builder who pays on time and was honest. He knew him as a local guy.
Mr Walsh became aware of the broadcast on A Current Affair in July 2016, because it was shared around by a lot of people and there was a lot of talk about it. Again, Mr Walsh's evidence was not challenged or contradicted.
Mr Maurice Cornielje was called. Mr Cornielje is a builder's labourer, which job he has been performing for approximately six years. He has worked for the plaintiff. He has known the plaintiff for about 20 to 22 years. He also lived next door to him in Balmain.
Mr Cornielje has worked full-time for the plaintiff for the last five years. He was depicted on the broadcast on A Current Affair in July 2016 (hereinafter "the impugned broadcast") and watched it when it was broadcast.
Prior to the impugned broadcast, Mr Cornielje was aware of people who knew the plaintiff, being occupants of houses in Balmain, which, according to Mr Cornielje, is a close community, and builders and workers on building sites with whom he had worked. He also testified to the plaintiff's good reputation and attested to the fact that he was lucky to get the job with the plaintiff, because it was in high demand because of the plaintiff's reputation. The plaintiff was known as honest and reliable; a hands-on builder; who was always there; and didn't act 'as a boss'.
Mr Cornielje worked on the site at 34 XX Street, being the plaintiff's house. Mr Cornielje gave evidence of abuse from the defendant, to which I will return later in these reasons. The abuse included calling Mr Cornielje and other workers on the site, "fucking morons". This occurred on the first day that Mr Cornielje worked on the site and it is informative to recite his evidence:
"Well, the - it was day 1, and - well - basically weren't even touching the fence, but we'd already copped abuse by Vanessa. She just came over and started basically going off her head, saying, 'You can't be here. You can't be there. Take that f-ing shovel off my fence.' And - you know - we were supposed to hit both of your fences, and - yeah. It just became a bit - a bit obscene. She just kept going, kept going. Pushing that in, telling him how - how dumb he is, how he can't add up, he can't do things. She spoke about my speaking which - you know - I'm not the best speaker, but she was putting down everything about us and in every sort of way. And we - we were just - pretty much - with our hands up, going, 'What - what is this?' I couldn't believe it. That was day 1." [14]
Mr Cornielje explained that his use of the term "f-ing" was only intended for the Court, the word that was used by the defendant was "fucking". After the abuse continued for a little while, the plaintiff commented that he would record the defendant.
There were a number of workers there. Mr Cornielje could recall the first name of two of them, but there were others. And he continued as to the words of the defendant on that first day, as follows:
"And she just came over and just telling us that we're going to lose our jobs. She's going to take Andy through the ringers. You won't have anything to stand by. You won't - you won't be getting paid. All these things. And then verbally abusing us. Telling us that we don't belong here, that we're foreigners because - maybe we're all a bit tan, but I was born in Balmain, lived in Balmain my whole life. I've - you know - I've never been anywhere else. I went overseas once, and then back to Balmain because that's where most of our work is. And that's where the people we know - yeah. It was just - I just couldn't believe it. I was - I was shocked. She just kept going, telling us how shit we are as humans. And - you know - I told her to go inside or anything but yeah, we just - we were just shocked, I was dumbfounded." [15]
Mr Cornielje testified that the fence was being kicked or shaken or smashed with a shovel from the defendant's side of the fence and thereafter the defendant walked to her veranda which overlooks the building site and which Mr Cornielje referred to as "her little spot".
Mr Cornielje gave evidence about safety barriers and special grade formwork which was 9-ply blackboard. These are matters to which the Court will return. The evidence of Mr Cornielje was to the effect that the defendant would often stand on the veranda (her little spot) and hurl abuse at the workers. On occasion, her son was in her presence and he would also hurl abuse. At one stage, after some abuse as to leaving the country, the following exchange occurred:
Mr Cornielje: "you're acting like a bigot!"
Defendant: "you can't even spell the word"
Mr Cornielje: "I probably couldn't; but I know exactly what it means".
The full exchange in evidence is:
"The son - well, Ms Hutley first, and then the son is encouraged by it, so he's throwing in his comments as well and also telling us to leave and get out of - you know, get out of the country really, which was, I just thought absurd and yes, telling her that, you know, 'You're acting like a bigot,' she's telling me I can't even spell the word, I said, 'I probably couldn't, but I know exactly what it means.'" [16]
The evidence given by Mr Cornielje was utterly believable and I accept it. He gave evidence of continuing abuse on a constant basis "every other day". He also gave evidence of the defendant's partner, Mr Forward, threatening that they would take the defendant "through the ringer; through all the courts and everything".
To that threat, Mr Cornielje said: "Look, I don't know why you're so angry" and walked off. Further, Mr Cornielje, who was present on the site every day, said that the defendant's son was involved in the tirade almost every morning when the defendant and Mr Forward would go to work and take the son to school.
Most relevantly, Mr Cornielje heard the plaintiff have a conversation or a number of conversations with the defendant about the exhaust vent. It was Mr Cornielje who found the vent when the fence was required to be removed. The vent was "right on the boundary, just below the fence height so you couldn't see it at first and then there it is". Mr Cornielje testified to hearing a conversation in which the plaintiff told the defendant that the vent was in an illegal spot and had to be moved and that "it's got to be filled".
Further, Mr Cornielje testified that the plaintiff said that building work was going to be done there constantly; the vent was going to be in their faces; it was at face height and to the effect that the plaintiff was going to fill it in if she didn't move it in time. Mr Cornielje does not remember the exact date.
There was, according to Mr Cornielje, more than one conversation to that effect about the vent. And there were a number of occasions on which the plaintiff told the defendant that the vent had to be moved and it had to be put above the house. According to Mr Cornielje, this was a constant conversation or series of conversations. On occasion, the defendant replied to the effect that the plaintiff could not tell her what to do "I'm above you; you don't even know where the boundary is".
Mr Cornielje was the subject of cross-examination. The foregoing evidence was not challenged in that cross-examination. The witness was challenged about a statement he made on the program about signs but the questions and answers did not, in my view, affect the witness's credibility.
I found Mr Cornielje to be an honest, reliable witness who gave candid, unrehearsed evidence that accorded with his recollection of events. Mr Cornielje accepted that it was he who first called the defendant "Muttley", because the cartoon character fitted the character of the defendant and it rhymed with her last name.
Further, and most importantly, Mr Cornielje's evidence relating to the conversation between the plaintiff and the defendant about the plaintiff requesting that the defendant move the vent so that it was above the house and, using words to the effect that if it were not moved in time to build the new fence and boundary wall, the plaintiff would fill it in, was not the subject of challenge. I accept that conversation occurred. It corroborates the evidence of the plaintiff.
The next witness called was Mr William (Bill) Field, who is a plumber and worked on the site at 34 XX Street. He has known the plaintiff for approximately 10 years and a number of other people, who also know him, seemingly all work in the building industry. He attested to the fact that he believed the plaintiff had a reputation for being a good bloke, at least until mid-2016, and a reputation for being a good builder.
Mr Field worked for the plaintiff from time to time and, as stated, worked on the plaintiff's house in XX Street. He was at the building site on and off for about three to four months. He gave evidence that he encountered the defendant only when she was yelling at him and others from the balcony.
He recalled one occasion when Mr Forward and the son started making comments as well as the defendant. She had said that the workers "didn't belong in Balmain"; "were idiots"; and the like. Mr Forward and the son made comments to like effect and both of them used expletives.
The defendant made remarks almost daily when Mr Field was working on the site. Mr Field also noticed CCTV cameras, some in trees, directed towards the site. The cross-examination was directed to two issues: first, that Mr Field heard swear words on building sites; secondly, it was suggested to him that he never heard the defendant or her husband or son suggest that he didn't belong in Balmain, which suggestion was emphatically denied by the witness.
The next witness was Mr Peter Righton, who is a carpenter, and was called, like others, for the purpose of giving character evidence and because he worked on the plaintiff's home construction. Like others called to give character evidence, he attested to the excellent reputation of the plaintiff prior to mid-2016 from his perspective and from other people who also knew him. Those other people were tradespersons, labourers, electricians, plumbers and generally building industry workers and people with whom he mixed at the pub. The plaintiff had a reputation for being a timely and good payer as a principal in building work and a good person for whom to work.
During the course of working on the construction at XX Street, he encountered the defendant, whom he identified in Court. Mr Righton described the encounters with the defendant as her calling the workers morons and fools and pointing to her children to say, "That's what happens when you don't go to school". On one occasion, Mr Righton recorded an exchange.
Mr Righton worked on the site for approximately 50 days, sometimes for a full week and other times two or three days at a time. The defendant made comments to him, not every day, but relatively frequently and he would walk on to site and be the subject of sniggering and comments such as, "there's one of them, another moron", while she was standing on the front veranda/balcony.
In cross-examination, Mr Righton denied ever having heard the plaintiff call the defendant "Muttley" and emphatically denied that the defendant did not make comments to him.
Ms Lisa Merhi is the plaintiff's sister who, like the plaintiff, was born and raised in Balmain and still lives there. She testified to the fact that the plaintiff was well known in Balmain; amongst his work colleagues; mutual school friends; and virtually all of her friends know her brother as a result of attending the same school or the church or the building industry and being local residents.
As one would expect, Ms Merhi attested that, prior to mid-2016, the plaintiff had an excellent reputation; everybody loved her brother; attested to his generosity; his assistance to people moving; providing free advice on renovations; and that he was very well respected.
Ms Merhi saw the program on A Current Affair. She also attested to the reaction to the program from people whom she knew: her husband's brother-in-law; friends from school; people she met in the street and the like. She attested to the reaction and the kinds of comments that were made.
Ms Merhi also attested to the reaction of the plaintiff. Ms Merhi attested to one of the first examples being a family dinner where the plaintiff was "really embarrassed and outraged, and he said something to the effect of, 'Oh my God, I can't believe she actually went on national TV with a pack of lies.' And he sort of indicated - I thought - to be honest, I thought he was actually a bit scared." The latter expression of opinion was the subject of objection, but it is a lay opinion based upon what the witness saw and heard and was not struck.
Ms Merhi also attested to its effect on the plaintiff's professional reputation as a builder and the reaction of people when he meets them on social occasions. According to Ms Merhi, the plaintiff expressed worry about the effect of the broadcast on his building business, because his business was successful and because it depended upon word of mouth recommendations. He was also worried as to the extremes that the defendant would go.
The anonymous letter, which was the subject of evidence in the proceedings and which was said to defame the plaintiff, was received at Ms Merhi's children's school. There was no cross-examination of Ms Merhi.
With the exception of the expert witnesses, the last witness called was Ms Tania Cosco, the plaintiff's wife. Ms Cosco is an IT Consultant, who has been married to the plaintiff since 2012. They have two children, 5½ years of age and 3½ of age as at the time evidence was adduced.
Ms Cosco was born in Sydney (at Westmead) and grew up and was educated during her school years in the country; with her tertiary education in Canberra. Ms Cosco gave character evidence and, as one would expect, testified to the plaintiff's good character and excellent reputation.
Ms Cosco referred to the close-knit community, being shop owners, business owners and the like and how all of them knew the plaintiff. The plaintiff's reputation prior to July 2016 was that he was a "very, very loyal friend. Someone that could be relied on in any situation. Would always go out of his way to help people, even if he didn't know the person. Just hard-working. A man of integrity."
Ms Cosco became aware of the defendant and her partner in or about 2014, when or shortly after she and the plaintiff purchased the house. When the plaintiff and Ms Cosco bought the premises, the plaintiff contacted all of his neighbours, one of whom was the defendant and her partner, to discuss replacing the fences. This occasioned some emails relating to the boundaries of property and the fences, which Ms Cosco has seen.
The first time that Ms Cosco met and spoke to either the defendant or her husband was on 10 October 2015. She drove to the premises with the plaintiff and her children and parked across the road in order to allow the plaintiff to inspect the premises.
As Ms Cosco was parked in the street, with her children in the rear passenger seats, and while the plaintiff was on the building site, Mr Forward, the defendant's husband, approached the car. Mr Forward approached the car by running across the road. Ms Cosco's driver-side window was closed.
When Mr Forward approached the vehicle he said the words "get out, you prick." At that point, the plaintiff came out of the building site and yelled at Mr Forward to get away from the car. Mr Forward ran back over to his property, behind his gate, and was there with the defendant and their children. Words were exchanged.
Ms Cosco exited the car and sought to intervene. She recorded the conversation. The terms of that conversation (or the recording of it) is contained in Exhibit C and the transcript of that particular conversation is Exhibit 5.
Of particular note to Ms Cosco was the repetition by Mr Forward of his threat to the plaintiff that he would "roast" the plaintiff. Ms Cosco's reaction to that comment was to say, "how can you - how can you threaten us?"
The recording of the conversation makes clear that, in significant parts of the conversation, the defendant was deliberately and somewhat arrogantly talking over the plaintiff and Ms Cosco. The exchange does little to raise the Court's estimate of any of the participants, but particularly the defendant and her husband.
During the course of the conversation, there is an exchange when, apparently, the defendant's son was looking luridly at Ms Cosco. I repeat it because it became an issue, raised by the defendant, in the course of the proceedings. The conversation was to this effect:
Plaintiff: [speaking to his wife] "He's looking at your tits."
Tania Cosco: [seemingly embarrassed] "stop it!" [A person whom I take to be the plaintiff and Ms Cosco laughed]
Defendant: "Bloody-, fuckin moron, you're an idiot."
Ms Cosco: [incredulous] "Don't speak in front of your child like that!"
Defendant: "Your husband just said-"
Ms Cosco: "You swear in front of him?"
Plaintiff: "Keep swearing. Swear in front of you kid!"
Defendant: [interrupting, still talking over Ms Cosco, tone mock shocked] "Your husband just used a sexual reference in front of a 12 year old kid-".
As to the reference to "roasting", the conversation was in or to the following effect and followed an exchange between the defendant, Ms Cosco, Mr Forward and the plaintiff, in which the plaintiff asked, presumably rhetorically, how it was "you can't get on with your neighbours?"
Everyone seemed to be talking at once at which point Ms Cosco referred to childish behaviour and Mr Forward, seemingly addressing Ms Cosco, tells her that she doesn't know what her husband has been doing and the exchange continues in the following way:
Ms Cosco: "You've never spoken to me before until tonight."
The defendant: "Have you seen what your husband has done to us?"
Plaintiff: "So why have you pushed the fences down four times?"
Defendant: "Have you heard the intimidation, the swearing-"
Ms Cosco: "Have you provoked him?"
Defendant: "No."
Plaintiff: "Hey, can I just say-"
Defendant: "Your husband took to our property with a chain saw!"
Plaintiff: "-can I say, I've recorded everything today. I've recorded all-"
[Not transcribed Exhibit 5]
Defendant: "We're going to roast you, we're lawyers and-"
Ms Cosco: "'We're going to roast you?'" and '"we're lawyers'"? and, who speaks to people like that?"
Plaintiff: "We've been intimidated: 'We're going to roast you'."
Mr Forward: "I said 'I'm gonna do you slowly' and I'll say it again.""
Mr Forward: "We'll see you in court my friend."
Ms Cosco: "You harp on, you harp on about your professional status like it means something in the real world … You have absolutely no morals and no respect. You're, you're low lifes. You know why you're low lifes? Because you should know better."
There is then a discussion about the fence and the shards of fence in or to the following effect:
Ms Cosco: [seemingly pointing to fence palings] "And that's your fence by the way. … That's actually your fence."
Defendant: "No, it is the shards of our fence that your husband broke after-"
Mr Forward: "But they are now …"
Ms Cosco: "um excuse me, you kicked it off. And it fell!"
Defendant: "It was on our property."
Ms Cosco: "It fell into shards."
Defendant: "It was on our property."
Ms Cosco: "You broke it"
Defendant: "It was on our property."
Plaintiff: "You kicked the fences over, you've antagonised us that entire time and you feel because of your status you-"
Ms Cosco: "Listen! If you're that delusional you think you're going to get somewhere with your professional status-"
Defendant: "Call the police. Call the police."
Plaintiff: "The police are sick of you."
The defendant: [this is not transcribed in Exhibit 5] "They're causing an affray. They're causing an affray"
Ms Cosco: "Sorry, sorry?"
Defendant: "Well, err, you've got criminal charges."
The evidence of Ms Cosco also attested to the fixing of surveillance cameras pointing into the yard of the plaintiff and his wife and the taking of video from the back lane of the premises by the defendant, when Ms Cosco and the children were playing. These events occurred after the plaintiff and his family occupied the premises and after the building work had been completed.
There was another incident in which the defendant's husband, Mr Forward walked out of his property, stared at Ms Cosco and her children, returned to the property and came back and was filming them in their property.
Each of the foregoing filming incidents may be a criminal offence, and is certainly an appalling breach of privacy. There were other incidents of the same kind; one when Mr Forward took videos of the children in the backyard on a different occasion.
Ms Cosco gave evidence as to her disbelief on seeing the program on A Current Affair and the extent to which the plaintiff was upset at the broadcast. He was, according to Ms Cosco, trying to reassure her as to his and the rest of the family's reputation, but was plainly upset both as to how he had been described and the effect on his reputation as a person and in business.
Ms Cosco was cross-examined about her husband's use of the term "Muttley", which is audible on the recording of the conversation to which the Court has already referred; being the recording on Exhibit C and the transcription is Exhibit 5. The cross-examination did not deal with any other subject matter. It was not suggested that Ms Cosco was in any way untruthful or that her credit was questionable. I accept the evidence of Ms Cosco and believe her totally.
As a consequence, if one container of Soudal was completely discharged into the kitchen, the concentration of isobutane and propane would be 0.038%. The difficulty with that calculation, according to Ms Jones, is that the substances produced are heavier than air and therefore may, for a short time, accumulate immediately above the floor of the room and below the air, until the gas is disbursed and eventually dissipates.
Ms Jones hypothesises that the gases would accumulate in 0.3m, providing a total area of 12,600L. First, Ms Jones' calculation is based, essentially, on a hypothetical. Secondly, it does not relate to the effect of the foam, but the effect of the propellants, about which there is no alleged imputation or alleged contextual imputation.
Calculations were also made for the area above the stove, but the hypothetical that the isobutane and propane would accumulate above the stove is inconsistent with the isobutane and propane accumulating above the floor, except on its passage to the floor. Neither Mr Cafe nor Ms Jones expressed a view as to the velocity of the propellants when discharged or as they passed the stove. That issue may not be within the expertise of either expert, as it relies on physics, not chemistry.
Nor did either expert take into account the fact that the propane and isobutane was in motion at the time of its release from the can and applied the consequences of the Bernoulli Effect (as explained by Venturi) as to pressure reduction at right angles to moving gases and liquids. Again, this is physics, not chemistry. But it would have an effect.
If the gas were released without much pressure and without movement, it would accumulate at the floor of the kitchen. If it were released (again without movement and without much pressure) from the air vent it would travel from the air vent over the stove onto the floor of the kitchen and disperse, on Ms Jones' hypothesis, up to about 30cm from the floor level.
The difficulty with that proposition is that the propane and isobutane is not released without pressure or movement. A moving fluid, whether gas or liquid, decreases the pressures at right angles to the fluid (the reason aeroplanes fly), as a consequence of which the molecular density of the isobutane and propane is countered by the diminution in air pressure, forcing the expelled and moving gases upward and outward (and to a lesser extent downward), thus causing the isobutane and propane to disperse throughout the whole kitchen. The likely effect would be to create turbulence of a minor kind, although there is physical resistance to turbulence.
However, notwithstanding that foregoing being known to the Court, it is not the subject of expert evidence. Further, it is outside the chemistry expertise to which the experts lay claim. It is not a matter that the Court can take into account under s 144 of the Evidence Act 1995 (NSW). I disregard it.
That which is the subject of expert evidence is a difference between two experts, one of whom calculates the "flammable" coefficient of the propellant gases as being in such a concentration that they would not ignite. The other, by using the hypothesis of 30cm at the floor level, calculates that it would be at a level which would combust, but cannot inform the Court whether the 30cm level is accurate, nor how long a time it would so accumulate.
Relevantly to the proceedings before the Court, the imputation that is alleged relates to the foam, not the propellant gases [18] and the contextual imputation is to the blocking of the air vent with flammable expanding foam. [19] As a consequence, the effect, if any, of the combustibility of the propellant gases of propane and isobutane are not directly relevant to the imputations or contextual imputations that either the plaintiff or the defendant pleads.
As to the foam, itself, which is the subject of imputation and contextual imputation, it is made of polyurethane, which, on the evidence before the Court, is a material with which the defendant's kitchen cupboards are painted. It is combustible, in that, after curing, it will burn if a sustained fire is applied to it, but will cease burning as soon as the sustained fire ceases.
Ms Jones conducted two experiments on the issue of whether the foam itself is combustible. One dealt with the initial spray and application of an open flame to the uncured foam; the second dealt with spray and application of the foam and curing of the foam for 24 to 26 hours before application of an open flame. In relation to the latter, which is the foam itself, it showed, which is consistent with the experiments and opinion of Mr Cafe, that the foam was able to char and burn with the application of a naked flame but that once the flame was removed, the foam did not continue to burn by itself for more than a few seconds and a "char layer formed which prevented exposure of fresh fuel to the surface flame".
Mr Cafe confirmed the foregoing, or made those findings which were confirmed by Ms Jones. Mr Cafe made it clear that in an aerosol state, the foam is "flammable" because of the propellants which are released into the atmosphere.
If the stove were operating when the foam was applied, and the concentration of the propellants were within their "flammable" limits, a fire could have occurred around the stove. Each of the opinions of Mr Café and Ms Jones is based upon the use of a complete can of Soudal, which, is inconsistent with the evidence and qualifies the percentages calculated and whether they were under or within the combustible limits.
Further, Mr Cafe made it clear that in a non-cured state, the foam was combustible for around 23 minutes after it had been applied. The 23 minutes related to the formation or setting of cured skin on the foam.
Mr Cafe conducted tests in relation to the foam at that non-cured state. He opined, which opinion Ms Jones did not contest, that it will burn after it has been ignited by direct contact with a naked flame.
After 23 minutes, the foam has cured to a sufficient extent, according to the tests performed by Mr Cafe, such that it will not be readily combustible. It will ignite upon contact with a naked flame, but will stop burning after the flame is removed. That opinion is consistent with the opinion expressed by Ms Jones.
The conclusion reached by Mr Cafe, with which Ms Jones did not disagree, is that if the propellants were utilised when the gas stovetop was in use, then those propellants could have caught alight. There is no evidence to suggest that the gas stove was in use at the time that the foam was utilised. Further, relevantly, there is no evidence that it would cause an explosion; there would be a flash fire in which the propellants would ignite and burn off very quickly.
There is no evidence to suggest that, if the stove were in use, it would not be obvious to a person who was standing at the point where the extraction vent meets the wall, or, otherwise expressed, the point where, if the fan in the vent were operating, the fumes would be extracted to the outside. I infer that any cooking that was occurring could have been smelt at the extraction point. Gas too could have been smelt.
I draw comfort, in reaching the foregoing conclusion from the evidence of the plaintiff, which, in this regard, went unchallenged. The plaintiff remarked that, on 10 October 2015, he and Alistair Tait, another worker on site, smelt bacon and eggs being cooked, which smells emanated from the vent. [20] They were standing in the yard; not directly at the vent.
The Court takes the view that, other than in a very short period during which the propellants would be on the stove, there was no realistic proposition that would result in the propellants igniting. The propellants would ignite at the stove if the stove were in use at the time that the foam was inserted into the vent and if enough of the propellants in the can were used. The propellants would also have ignited in the vent, if there were a large fire in the kitchen, the flames from which reached into the vent at the time of the application of the foam.
Further, for a period of 23 minutes after the initial insertion of the foam, the foam would burn if a naked flame were applied to it. The naked flame would need to be applied to the non-cured foam that was in the vent. That is an unforeseeable and highly unlikely eventuality, unless there was a large fire already in existence in the kitchen. That non-cured state would last, as just stated, for about 23 minutes.
After that period, the foam, having sufficiently cured, is less combustible than the timber cupboards in the kitchen. I do not take into account that it is likely, in the modern era and given the high quality building, that the kitchen cupboards are made of MDF (Medium Density Fibre) which contains a fire retardant. The foam would be significantly less combustible than ordinary wood.
Thus, I agree with the conclusion of Mr Cafe that when the Soudal foam was initially applied, it could have caused a fire around the stove, if the gas flame were being utilised and the fume extraction system was switched off. If the fume extraction system were to have been switched on, then the propellants would not have been likely to reach the stove in a concentration that would ignite the propellants and there would probably be no risk of a fire.
Further, for the reasons given above, including the hypothetical nature of the proposition that the propellants would accumulate at floor level only up to 30cm, the amount of propellant, assuming a full can of Soudal foam were discharged, for which there is no supporting evidence, the propellants would not provide enough fuel in the kitchen to cause a fire. There is no possibility of an explosion.
The foam is not readily combustible and is, if anything, compared to the remainder of a kitchen, a fire retardant. Moreover, the blocking of the vent may have a retardant effect on any other fire as a result of the lower amounts of oxygen that would feed the fire otherwise caused.
Properly understood, the experts essentially agree on the foregoing issues. The only point of disagreement is the extent to which Ms Jones calculates a higher concentration of propellants, until they fully disperse, as a result of their relative weight compared to air, without regard to the effect of the propellants moving at speed and without conducting any tests in relation thereto. Even on Ms Jones' hypothesis, the increased fire hazard would last for, at worst, minutes.
Moreover, the inference I draw, on the balance of probabilities, is that if the defendant, or another person in the defendant's residence, were cooking on the stove, or the stove was lit, it would have been obvious to the plaintiff at the time, given from where the foam was applied. There is no evidence that the stove was utilised in the 23 minutes from the time of the application of the foam. Indeed, there is no evidence of the use of the stove for any period of relevance.
Notwithstanding the comments relating to expertise in physics, each of the experts has expertise in the behaviour of fire and, as a consequence, would have some knowledge of the behaviour of gases that leak. The hypothesis as to the layer of propellant above the floor on its release is based upon the behaviour of dense gases to which Ms Jones refers. [21]
Figure 1 in Part A of Ms Jones' Supplementary Report dated 5 April 2019 refers to concentration profiles in an unventilated room, relative to the leak position. No attempt has been made, although no criticism is made of that failure, to determine, either by experimentation or observation, the percentage volume to volume where the leak position is above head height or at head height. If, as shown in Figure 1, the heavier gas accumulated at and under the level at which it was placed into the room, then the resulting volume of the gas/air mixture would be 70,980L (6m X 7m X 1.69m [22] ) and the concentration of propellants would be 0.083%, well below the lower "flammable" limits of the propellants. [23] Nor is there material relating to a ventilated room.
Ms Jones' Curriculum Vitae shows that she has a Certificate III in Electronics and Communications; a Certificate IV in Scene of Crime Officer Training; a number of courses at Gardner Associates Fire Ltd, Haverhill, Suffolk, UK; a Primary Degree as a Bachelor of Psychological Science; a Postgraduate Certificate in Antarctic Studies; a Graduate Diploma of Fire Investigation from Charles Sturt University; and obtained a Master of Science from the University of Technology (UTS) in Sydney by thesis. Mr Cafe has a Bachelor of Applied Science (Hons) from the UTS, Sydney; a Master of Applied Science from UTS Sydney; and a Chemistry Certificate (Credit) from NSW TAFE. [24]
10.2015 • Later that evening, Cosco returned to check on the site with Tania. There was an altercation between Cosco, Tania and Forward, which was recorded by Tania. Ex. C
T 78:1-79:9
14.10.2015 • Hutley and Forward commenced proceedings for contempt against Cosco in relation to the non-compliance with the NSWLEC consent orders. T 79:11-12
03.11.2015 • Hutley and Forward sent a series of emails to Paul Pearce, Cosco's certifier, threatening to lodge code of conduct complaints against him. PTB-A tab 26
26.11.2015 • Cosco lodged a s 96 application in relation to the retaining wall because he was told by Council that this was necessary. T 80:40-48
• Matthew Russell hosed Hutley, alleging that she had put wine bottles in the skip. PTB-B tab 29
31.01.2016 • After the hosing incident there was an altercation in the street which was recorded by Forward. Ex. C
T 82:18-86:47
09.02.2016 • At around lunchtime, Cosco injected expanding foam into the No. 32 kitchen vent. T 87:1-88:18
• In the preceding week, Cosco had warned Hutley that he would block the vent if she did not agree to move it.
12.02.2016 • Denise Owen asked Forward whether he had been having problems with his rangehood and told him that she had seen Cosco tampering with the vent. Ex. L
• Cosco deposited dog faeces behind some bushes in a public nature strip behind his back gate. T 88:20-89:17
17.02.2016 • Forward gave a statement to police alleging that the family had cooked dinner on 13.02.2016, 14.02.2016 and 16.02.2016 and noticed that the rangehood did not appear to be working properly, but they did not think any more of it. PTB-8 tab 30
• Forward told police that he had received a phone call from a neighbour on the afternoon of the 16.02.2016, and the neighbour provided him with a copy of the photograph of Cosco blocking the vent. Ex. K
25.02.2016 • Forward emailed police requesting that Cosco be charged with attempted arson as well as malicious damage. PTB-8 tab 30B
01.03.2016 • Cosco became aware of an anonymous leaflet circulating in XX Street titled "Say No to wealthy developers destroying Balmain". PTB-8 tab 32
T 91:21-92:22
03.03.2016 • Hutley took out APVO against Cosco. He did not challenge it. T 92:25-47
10.03.2016 • Cosco pleaded guilty to civil contempt in the NSWLEC proceedings and was ordered to pay Hutley and Forward's costs of notices of motion filed on 14.10.2015 and 04.11.2015 PTB-8 tab 32A
21.03.2016 • Cosco applied for an APVO against Hutley and Forward. Ex. F
• Hansen sent a letter to Cosco demanding payment of $116,126 in respect of Hutley and Forward's costs of the motions filed on 14.10.2015 and 04.11.2015. PTB-B tab 34
24.03.2016 • Hutley and Forward served a Bankruptcy Notice on Cosco. PTB-B tab 35
• Cosco sought to borrow the money from his father but his father refused. On his father's advice, Cosco consulted an insolvency expert who recommended a Personal Insolvency Agreement. T 93:5-46
14.04.2016 • Letters purporting to have been sent by Cosco's bankruptcy trustee, Geoffrey McDonald, were sent to the local pub, the school attended by Merhi's children, and other recipients. T 94:32-95:29
• John Cosco hired Jonathan Alt to investigate the letters and the anonymous "Say No to wealthy developers destroying Balmain" leaflet.
28.04.2016 • McDonald published his report into Cosco's bankruptcy PTB-B tab 43 p 278
On the evidence before the Court, that impression was fundamentally wrong and miscued. The reference to the paragraph numbers in the foregoing is a reference to the original unedited interview. The terms of [7] are:
"This has been a very long an ongoing matter. Mr Cosco has been building his house for quite a while, even through the DA process with the council. We found him to be quite aggressive and we've had ongoing problems."
In the unedited interview, the defendant, at [51], says:
"I think he's [a reference to the plaintiff] just been a bully. This is the behaviour of someone who thinks they have a right and they're entitled to do what they want. It is extraordinary for someone to try and justify the unjustifiable. No matter what you think you have a right to do, to do what he did to our vent and put our family at that risk is intolerable and it's appalling that he's still trying to justify it."
The opening words at [51], recited above, is sufficient to make clear that the first imputation plainly arises from the interview and, while it is less relevant, from the broadcast. Nothing in the remainder of the interview qualifies that statement and the ordinary reasonable listener or viewer would certainly obtain that impression from the statements of the defendant. At [55] of the unedited interview, the defendant says, in part: "He's just been a bully and he's put my family through hell, and he has no right to do that." The first imputation is made out.
The second plaintiff's imputation alleged is to the effect that the plaintiff threatened the defendant with physical harm. I have already recited some parts of [7] and [17] for the purpose of the first imputation. It is beyond doubt, albeit that such is not the burden of proof, that the defendant alleged in the interview (and that allegation was repeated in the broadcast) that the plaintiff threatened the defendant with physical harm by pumping into the vent and sealing the vent with "flammable material … it's highly flammable and we were just shocked. We could have had an explosion … [a]nd it never dawned on us that someone could have actually done what happened." [29]
The third imputation said to arise from the interview is that the plaintiff harassed the defendant's children. There is plainly a reference to the defendant's children "being harassed". [30] At [37] of the unedited interview, the defendant is shown saying the following:
"We have done nothing to the Cosco family. Our family has been harassed, our family has been abused, and no matter what Mr Cosco thinks, at the end of the day he took a flammable material, he pumped it the full length of our extraction fan and vent, and then sealed it shut. He's pled [sic] guilty to that. That was a considered act. I don't think there's any justification for that."
At [41], the defendant is shown saying:
"It's been horrible. You know, it's very hard to explain how nervous you are coming home wondering what will happen next. But more so it's about my kids, you know, they're scared to be, they're scared to walk out on the street past his property. You know, they don't know what he's going to do, you don't know what he's going to yell out to them, you know, it's intolerable."
Plainly the third plaintiff's imputation that the plaintiff harassed the defendant's children arises from the original interview and it also arises from the broadcast.
I have, in the foregoing extracts of the interview, recited aspects relating to the blocking of the vent. The fourth plaintiff's imputation relates to the plaintiff endangering the lives of the defendant and her family by blocking a vent with "flammable foam" that could have caused an explosion or a fire in their home. The plaintiff relies on paragraphs [17], [19], [21], [23], [25], [37], [51], [89] and [118]. Even from the short extracts that the Court has already extracted, it is clear and would be clear to an ordinary, reasonable viewer that this imputation is established.
Lastly, the fifth imputation is that the plaintiff harassed the defendant by throwing materials into her front lawn and writing about her in cement. The plaintiff relies on paragraphs [17] and [37] of the unedited interview. At [37] the defendant, without any hint of irony, states: "we're honest, reasonable people. We haven't thrown material into Mr Cosco's yard. We haven't thrown dog excrement into Mr Cosco's yard … [w]e have done nothing to the Cosco family."
A number of imputations arise from the foregoing extract. While the defendant, in the initial interview, asks "to take that back if that's okay", it is clear from the whole of the document that the "taking back" was not for the purpose of withdrawing any incorrect allegation. Rather, it was for the purposes of clarifying "the innocence" of the defendant and her family and the "unreasonableness" of the plaintiff.
That extract imputes that the plaintiff threw dog excrement into the defendant's yard. That is not an imputation upon which the plaintiff relies.
Nevertheless, the imputation upon which the plaintiff does rely, namely that materials were thrown into the front lawn of the defendant's property and the plaintiff wrote about the defendant in cement do arise from both [37] and [17]; and in [17] there is the express statement by the defendant that materials were thrown into her front yard and things were written about her in cement, the imputation being that it was the plaintiff.
This fifth imputation is also made out and arises from the statements made by the defendant in the interview. Each imputation is judged, as earlier stated, between the two extremes of being unusually suspicious, on the one hand, and, on the other hand, unusually naive. There can be little doubt, that the foregoing imputations arise from the statements by the defendant, in the context of the statements as a whole.
Moreover, upon the ordinary standards of human behaviour and moral or social standards, the imputations that have arisen and upon which the plaintiff relies are defamatory. Each of them is injurious to the plaintiff's reputation, which, prior to this broadcast, was of the highest standing. Each of the imputations not only injures the plaintiff's reputation, but brings the plaintiff "into hatred, contempt or ridicule" and has caused people to shun or avoid the plaintiff.
The foregoing does not deal with the contextual imputations. Nor does it deal with the truth of the imputations that the Court has held have arisen.
An imputation is defamatory if it is damaging to the reputation of the plaintiff. The concept of damage to reputation has been dealt with on many occasions. In Radio 2UE Sydney Pty Ltd v Chesterton, [31] the High Court said:
"[11] The remedy which the law provides for injury to a person's business or professional reputation must be distinguished from that for malicious statements which result in damage not to the reputation but to the business or goods of a person. The former is provided by an action for defamation, the latter by that for injurious falsehood. Lord Esher MR explained the distinction in South Hetton Coal Co Ltd v North‑Eastern News Association Ltd. A false statement that a wine merchant's wine is not good, which is intended to and does cause loss to the wine merchant's business, is an injurious (or 'malicious') falsehood. A statement reflecting upon that person's judgment about the selection of wine, and therefore upon the conduct of his business, may be defamatory of him. Gummow J observed in Palmer Bruyn & Parker Pty Ltd v Parsons that the action for injurious falsehood is more closely allied to an action for deceit." (Footnotes omitted.)
Against the allegation of defamatory imputations arising from the statements of the defendant to the Channel 9 reporters, the defendant raises defences of justification; [32] contextual truth; [33] and honest opinion. [34]
The defence of justification requires that the defendant prove that the defamatory imputations conveyed by the publication or broadcast and about which the plaintiff complains, are substantially true. The burden of proof is borne by the defendant as to the truth of the imputation.
The defence of contextual truth requires that the defendant prove that the broadcast or publication carried additional defamatory imputations, which are substantially true, and the defamatory imputations about which the plaintiff complains do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
It is noteworthy that it is the substantial truth of the imputation that requires proof and not the precise terms in which the imputation is alleged. Thus it is the sting of the imputation that the defendant must prove to be true; not the precise words of the imputation. In other words, it is not an inaccuracy in some detail that will prevent an imputation being proved to be true, but the fundamental sting or material parts of the imputations, the truth of which are required to be proved. [35]
Leaving aside for present purposes the issue of contextual imputations, any defamatory imputation that is not proved to be substantially true requires that the Court find that the publication is defamatory and/or assess damage. Nevertheless, even if only some of the imputations are proved to be substantially true, then those true imputations are relevant in mitigation of the damage to which the plaintiff may otherwise be entitled. [36]
Further, where there are findings of credit against the plaintiff or findings that prove part of the truth of an imputation, those findings must also be taken into account in the assessment of damage that may otherwise arise. [37] A global approach should be taken. [38]
As the Court of Appeal has made clear, even though a defence of justification may fail, a defendant is entitled to rely, in mitigation of damage, on any evidence which was properly before the court, including that evidence that goes to the failed contextual imputation or to credit or to part proof of the defence of justification. [39]
I have already dealt with the criminal charge, and the plea of guilty by the plaintiff, which is relied upon by the defendant. In the course of the following comments in these reasons for judgment, the Court will also deal with the relevance and effect of the submission that there had not previously been a statement by the plaintiff as to a warning being given to the defendant before the foam was sprayed into the vent.
The defendant relies upon the proposition that during the course of the Local Court proceedings, the plaintiff's barrister did not contest facts upon which the sentencing occurred, which facts asserted that the blocking of the vent "created a fire hazard". However, the plaintiff denies accepting the fact and denies having read the Facts Sheet.
The plaintiff accepts that he pleaded guilty to the offence, because he was advised that was his best option. It seems to me that it was, albeit with the benefit of hindsight. There may have been nice questions as to "damage" [42] , given that the vent was cleared, but it is likely that, if that issue were to have been agitated, the plaintiff would still have been found guilty.
Nevertheless, the manner in which the questions and answers were given in these proceedings and the content of the answers makes it clear that the plaintiff accepted the advice to plead guilty; had not read the Facts Sheet upon which the Police Prosecutor relied; and assumed, probably correctly, in evidence in this Court, that his legal representative, by not contesting the facts in the Facts Sheet was agreeing to them.
There is no evidence that, at the time of the plea, the plaintiff was aware that the Facts Sheet contained that assertion as to "fire hazard" and no evidence that, as a consequence, the plaintiff was aware that his legal representative was agreeing to it. [43]
The defendant also relies on the failure by the plaintiff, prior to these proceedings, to refer to warnings given to the defendant that the plaintiff would block the vent if the defendant did not remedy the illegality of its placement. The plaintiff complained to Leichardt Council as to the placement of the vent illegally. That complaint was made on 31 July 2015. [44] That complaint letter refers to an earlier letter of 29 July, which does not seem to relate to the vent in question.
Nevertheless, the complaint letter plainly raises the issue. Further, the evidence, to which the Court has already referred from the plaintiff, and Mr Cornielje, is to that effect. Mr Cornielje was not cross-examined to challenge his version of the events, to which the Court has already referred. Mr Cornielje is a relatively independent witness.
Further, there is no evidence to the effect that the warnings were not given. The defendant submits that the plaintiff fabricated the conversation in circumstances where there is no evidence to the contrary. The defendant relies upon the lack of any reference to such a warning, including a warning that the vent would be blocked if it were not removed, in the previous court proceedings. The submission, as I understand it, is that the mention of such warnings would be "mitigating" in relation to sentence.
I do not understand the submission on mitigation. As I understand the submission of the defendant, it is that in relation to a charge of malicious damage to property, the offender should admit, not only that the damage was done, but that the action was planned, premeditated and deliberate, and involved taking the law into his own hands.
The terms of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) makes clear that the existence of planning in a criminal activity is an aggravating factor in the determination of any sentence to be imposed. Further, the provisions of s 21A(3) make clear that a lack of planning is a mitigating factor in the imposition of a sentence.
Leaving aside the immunity of counsel, it would be grossly negligent for counsel for the offender in a sentencing proceeding to raise the proposition that the offence was planned and premeditated. Even on the basis of the common law, an offence which was committed purportedly for the purpose of some kind of vigilante activity, or taking into one's own hands the enforcement of the law, would be a significant aggravating factor in the determination of an appropriate sentence to impose.
It is fairly easy to conceive why the circumstance would not have been raised in the Local Court proceedings. Such a circumstance would also account for any lack of cross-examination of either the defendant or Mr Forward in those Local Court proceedings as to any warning provided by the plaintiff prior to 9 February 2016.
As a consequence, the absence of mention of that material is not evidence of recent invention. On the other hand, both the plaintiff and Mr Cornielje gave evidence of it. Nothing in the evidence of Mr Cornielje suggests that he was deliberately being favourable to the plaintiff. However, it must be conceded that Mr Cornielje had an obviously poor view of the defendant, as a result of the events on the building site. There is no reason not to accept this evidence of previous warning and the failure to call the defendant and Mr Forward to refute the suggestion makes the drawing of that conclusion more appropriate.
The defendant then, in relation to this contextual imputation, raises the expert evidence. The Court has already dealt with that evidence and the conclusions to be drawn from it.
I accept the defendant's submission that the plaintiff's fourth imputation is cast in objective terms. It refers to the endangerment of the lives of the defendant and her family by blocking a vent with "flammable" foam. [45]
The evidence before the Court does not support the proposition that the lives of the defendant and her family were put in danger by the blocking of the vent with the foam or otherwise. Further, there is no suggestion in the evidence that the "flammable foam" could have caused an explosion or a fire in the home of the defendant and her family.
Moreover, on the evidence before the Court, I am not satisfied that even at its application, the propellants utilised to insert the flammable foam could have caused a fire or an explosion, except in the circumstance that, when the propellants were expelled from the can, the stove was in use and the extraction vent was not in use.
The evidence before the Court is that the vent and/or stove was not used until 13 February 2016 and then used on 14 February 2016 and 16 February 2016. The only evidence before the Court is that the first occasion upon which the defendant or her family utilised the stove was well after, on any analysis, and ignoring the warnings to which the Court has already referred, the defendant and her family were aware of the blocking of the vent. [46] There is also the conclusion, to which I have already referred, that, if the stove were in use, the plaintiff would have been able to smell the gas or the food being cooked, and, as it was not in use at the time of the application of the can, even the application of the foam and the propellants could not have caused a fire. Further, the plaintiff was aware it was not in use and there is no suggestion in evidence, nor was there cross-examination, to suggest that: the plaintiff was unaware whether the stove was in use; or that, if it were in use, the plaintiff would have inserted the foam anyway.
The evidence of Mr Forward that he and the defendant were aware on 12 February 2016 of the vent being blocked was inconsistent with earlier statements that it was only when cooking that they realised there was a problem. The change in approach occurred when one of their other neighbours gave evidence that she sent them the photograph on 12 February 2016. That is the photograph on which the Police relied in questioning the plaintiff and is in evidence in these proceedings.
As a consequence, there is no evidence that the expelling of the propellants at lunchtime on 9 February 2016, occurred when the defendant was using the stove. Indeed, the evidence is to the contrary.
Further, the statement of Mr Forward that cooking occurred on 13 February, being the first occasion after 9 February 2016, corroborates the inference otherwise available that, if one were standing at the point at which the fan would extract fumes into the air (being the point at which the plaintiff deposited the foam), one would be aware whether cooking was occurring and whether the stove was on. [47]
Otherwise, the foam, in its cured state, was less combustible than timber, on the expert evidence adduced. The foam was combustible only when naked flame was applied to it and it would cease burning as soon as the naked flame was removed. The foam was inflammable in that it would burn with application of a naked flame, but it could not have caused an explosion or a fire and, in most respects, would have inhibited the occurrence of a fire on the evidence already explained.
In relation to the first of the plaintiff's imputations, the defendant relies upon the plaintiff's submission that a person cannot be bullied unless there is a power imbalance. As was made clear by the Court during the course of that submission, the Court is not persuaded that a power imbalance is necessary before some bullying can occur e.g. cyber-bullying. Nevertheless, the defendant relies upon that proposition and seeks to explain the "power imbalance" between the plaintiff and the defendant, as follows.
The defendant relies upon Mr Cosco and his family's superannuation funds. Mr Cosco's superannuation fund contained $11.342 million as at 30 January 2015 and 12 months later had increased to $11.776 million. The entirety of the four-member family superannuation fund as at 30 June 2015 was $39.47 million and, the year later, it was $39.793 million. There is no evidence of the amounts contained in the superannuation funds of the defendant or any of the members of her immediate family.
Further, the defendant relies upon amounts deposited into the plaintiff's bank account between 29 June 2015 and 30 March 2017 showing a consistent deposit of approximately $100,000 per month from his parents. There is an unchallenged characterisation of these payments as payments under a mortgage or certain loans and the defendant relies upon the fact that there is no real change to the pattern, once the plaintiff entered insolvency in or about April-May 2016.
The defendant also relies upon the fact that the plaintiff's father had paid all of the legal fees in all of the cases to which the plaintiff was party. I assume, notwithstanding that the defendant relies upon it, that that submission is intended not to include the costs associated with the contempt proceedings and the costs in the Land and Environment Court, on which the Bankruptcy Notice was based.
Lastly, the defendant relies upon the engagement of Mr Alt, a private investigator to investigate the defendant and Mr Forward and provide information to the police on possible criminal charges. Mr Alt was paid approximately $57,000 for services from July 2016 to early 2017.
All of the foregoing, it seems, is intended to allow the Court to draw the inference that the plaintiff was in a power position that was greater than the defendant and her family. Such an inference is not available. Such a finding would be mere conjecture.
Certainly, the defendant is a solicitor and was the General Manager at Music Rights Australia. The Court is unaware of what salary is payable in relation to such a position and is not in a position to guess.
The defendant's husband is or was in 2016 the Chief Information Officer at QBE Insurance Group and again, the Court is not provided any information by the defendant as to the salary received in such a position and any other emoluments of office. Nor has the Court been provided with the assets, if any, of the defendant and her immediate family. The Court can only assume that such evidence would not assist the case of the defendant. In those circumstances, the Court is not in a position to draw an inference that the family superannuation fund or accumulated assets of the defendant and her husband are not greater than (or less than) that of the plaintiff and his family, including his father.
The evidence before the Court is that Mr Alt was hired by the plaintiff's father; not the plaintiff. Further again, the submission reverses the onus of proof. It is for the defendant to prove the truth of the imputation. It is not for the plaintiff to disprove it. It is the defendant that relies upon the defence of justification and therefore is required to prove the substantial truth of this and the other imputations that she agrees arise from the interview and the broadcast on the balance of probabilities.
Next, the defendant relies upon abuse by the plaintiff of the defendant. There can be little doubt that, in exchanges between the plaintiff and the defendant, the plaintiff called the defendant "Muttley". As earlier stated, he also referred to her as "the runt of the litter". However, the term "Muttley" was invented or first utilised by Mr Cornielje based on the cartoon character of that name that was, according to Mr Cornielje a character who was a "sneaky little hissing, laughing … dog. … It's the character … he breaks up everyone's thing in the race and every- he's Muttley, he's out there to destroy."
It is not a term that was invented by the plaintiff, although he admits to using it on occasion in exchanges with the defendant. Mr Cornielje volunteered that the name "Muttley" "rhymed with the last name, so that's where I thought of it."
The defendant relies upon the exchanges between the plaintiff and the defendant, some of which have been extracted in the foregoing paragraphs of these reasons. The defendant also relies upon the statement to the defendant's son, "She's hot hey", accompanying the plaintiff's comment to his wife, "He's looking at your tits".
The plaintiff claims that there is no evidence that the defendant's son heard the term, as it was spoken to his wife. Plainly, the latter aspect of that conversation was directed at the plaintiff's wife. There is no evidence to suggest that the defendant's son heard the comment. The defendant's son was not called. There is evidence that the defendant heard it, but the Court is unaware of the relative physical locations of each person in attendance.
The overwhelming evidence in these proceedings is that the defendant, her husband and her son engaged in a tirade of abuse against the plaintiff and the workers on site. That abuse included expletives. It included the teenage son calling workers "dumbass". Quite repugnantly, it constantly threatened the plaintiff, relying on the fact that the defendant was a legal practitioner, with taking him "through the ringer"; rendering him bankrupt; and criminal and other proceedings.
Further, the defendant displayed an abysmal arrogance and sense of privilege, which she used to insult and demean the plaintiff and the workers. This included the use of the term "dumbass"; "moron"; insulting references to lack of education; encouraging the involvement of her son in the abuse and encouraging in him the same warped sense of privilege. I have absolutely no doubt that the plaintiff did not bully the defendant. Rather, it was the defendant and her family that bullied the plaintiff and the workers on site.
The fact that during the course of exchanges, one of which was started with an assault [48] by the defendant's husband on the plaintiff's wife, while she was sitting in the car, the plaintiff utilised the term "Muttley" and referred to her as a disgrace to the human species, with or without expletives, and that her demeanour reflected that she was obtaining no sex, [49] is a mild retort to the abuse being hurled at the plaintiff.
Further again, the conduct of the son, encouraged by the defendant, allows me to draw the inference that the son, if he were to have heard the comment about "tits" addressed to the plaintiff's wife, would not have been "bullied" by it or in any way startled. It should be noted that the defendant relies on the words spoken being clearly audible on the recording. That does not prove the defendant's son heard it. The conversation was being recorded on Ms Cosco's telephone and would have been audible to her and clear in the recording, without it necessarily being audible to the youth. The defendant's son does not testify that he heard it.
The defendant then relies upon the fact that she was hosed in the street by the plaintiff's employee, Matthew Russell. Mr Russell was dismissed by the plaintiff, just after the hosing incident.
The plaintiff, or his legal representatives, asked Mr Russell to give evidence and he refused. A subpoena was served for Mr Russell to attend and give evidence and Mr Russell did not attend. No inference can be drawn against the plaintiff as a result of the failure to call Mr Russell. Nor can an inference be drawn against the defendant for failure to call Mr Russell, not that the latter proposition was ever the subject of submissions.
Mr Russell pleaded guilty to assault in relation to the hosing incident. It apparently occurred as a result of the defendant placing bottles in the plaintiff's skip, used for the removal of rubbish from the building site. Whatever be the reason, there is no excuse for the hosing of a person in such circumstances.
The plaintiff agreed that the hosing of the defendant was an appalling thing to happen, but did not think, given the relationship between the parties, an apology by him was appropriate. There is a significant difference between agreeing that the hosing was a reaction to inappropriate and unlawful conduct and agreeing that the hosing should occur.
In my view, from the demeanour on the recording of the exchange, the plaintiff was not expressing approval for the hosing of the defendant, but was indicating that she ought not to have placed material in the skip and that was the reason that Mr Russell hosed her. The two opinions are not inconsistent. Rather, the action of hosing is the subject of disapproval, but the mitigating circumstance that it was a reaction to conduct by the defendant was expressed.
The defendant relies upon a very limited extract of the recording of the conversation, after the hosing incident, on 31 January 2016. The defendant extracts from that conversation a comment by Mr Forward: "you're gonna hit me now?" and a comment by Nick Storey: "Just don't touch me, don't touch me … otherwise it'll be assault."
The defendant relies upon that extract to submit that the words used by Mr Forward and Mr Storey revealed that the plaintiff "behaved in a physically threatening manner". I have listened to the conversation and read the transcript. It reveals nothing of the kind.
On the contrary, it seems to be a comment made to "set up" a scenario that otherwise is not indicated in any of the exchange. In that respect, it is in similar terms to the statement by the defendant to call the police and the allegation of affray in the earlier extract. [50] In any event, the evidence before the Court is that the plaintiff replied to this suggestion in the terms: "I wouldn't hit you, you dweeb". There is no evidence from either Mr Storey or Mr Forward that the conduct in question was threatening.
Next, the defendant relies upon an inference that the Court should draw that the plaintiff tolerated and indeed encouraged a culture that was abusive of the defendant. In that regard, the defendant relies upon the writing of the word "moot" on the footpath twice, on Mr Russell's helmet and on the fridge. It is necessary to describe the graffiti.
The first piece of graffiti upon which the defendant relies was etched in the footpath and said "The Old Moot", with an arrow etched into the footpath in front of the building site pointing to the defendant's property. The helmet had written on it "Old Moot", being written on the front of the helmet. The third piece of graffiti was a second etching on the footpath in front of the plaintiff's house or building site with the words "VH Racist Old Moot", again with an arrow etched pointing towards the defendant's premises. The fourth piece of graffiti was a painting on the refrigerator of the words "Mutley Moot".
First, the plaintiff's imputation refers to the plaintiff "bullying". There is no suggestion that any of this graffiti was created by anyone other than Mr Russell. More relevantly, there is no suggestion that anyone other than Mr Russell knew the term, "moot", before these proceedings. Given the defendant's constant abuse of the workers, they have quite independent bases for animosity towards her.
Secondly, the evidence before the Court is that the graffiti on the footpath, being the first piece of graffiti, was there for less than one day. Likewise, the third piece of graffiti, being the second etched concrete slogan, was in existence for less than one day. The evidence before the Court is that the plaintiff gave orders for the etched concrete to be removed. In at least one case, possibly both cases, the expression was removed by a Council worker. There is no suggestion that the graffiti was etched or painted by the plaintiff. The evidence before the Court is that all of the instances of graffiti were etched or painted by Mr Russell.
While the sign was on the fridge for some period of time, it was not visible from the street and was not seen by the defendant. The defendant did see the sign on the fridge, when the fridge was sought to be removed and, for that purpose, was placed in a trailer, parked outside the building site, where it remained for approximately one day. Further again, there is no evidence that the paint could have been removed from the fridge.
Lastly, with the exception of the etched concrete, which was ordered to be removed by the plaintiff, the "bullying" upon which the defendant relies is the proposition that the sign on the fridge was not covered for the short period of time that it sat in the trailer.
Senior Counsel for the defendant was, prior to these proceedings, unaware of the meaning of the term "Moot". As is obvious from an exchange during the course of proceedings, I, too, was unaware of its meaning. There is no evidence that the defendant, or anyone else who saw the sign, was aware of its meaning. Its meaning was clarified by Senior Counsel for the defendant during the course of the proceedings and the plaintiff accepted, as at the date upon which he gave his evidence, the meaning ascribed to it by Senior Counsel for the defendant. Mr Cornielje thought it meant "old bag".
The inference may be available that the etching in the concrete was done at the time that the concrete was fresh. It could have been done on another occasion, but it is less likely. It does not really matter. The etching in the concrete does not disclose any attitude on the part of the plaintiff, as, on the evidence before the Court, the plaintiff ordered its removal. Further, while I accept that the sign painted onto the fridge by Mr Russell was on the fridge for some period of time, it cannot have been a source of bullying of the defendant, because it could not be seen by the defendant.
The defendant relies upon a submission that the helmet could be seen and was visible from the defendant's premises. There is no evidence of that proposition and it cannot be used as a particular of "bullying". Nor is there evidence that the defendant understood, in the way explained by Senior Counsel for the defendant, the meaning of the term "Moot".
Moreover, the evidence before the Court is that the plaintiff erected a sign on the site in the following terms:
"CONDUCT ON THIS SITE
34 XX STREET
1. TREAT ALL NEIGHBOURS AND PEDESTRIANS WITH COURTESY.
2. LISTEN TO ANY COMPLAINTS AND REPORT THEM TO ME.
3. DO NOT ACT RUDELY OR TALK BACK TO ANYONE."
The erection of such a sign on a building project is the antithesis of an attitude that tolerates or encourages abusive behaviour. It should be noted that the sign was erected on a new refrigerator, after the old fridge, with the painted sign, was removed.
It is necessary to deal with the insolvency of the plaintiff as it is the basis, the defendant says, for the contextual imputation that the plaintiff acted dishonourably by entering into administration with the objective of avoiding paying his court costs to his neighbours: the second contextual imputation.
It is necessary for the Court to deal with the background to the plaintiff going into administration and the extent to which it establishes the truth of the contextual imputation.
On 28 August 2015, the plaintiff agreed to pay the defendant's costs and the costs of Mr Forward in settlement of Land and Environment Court proceedings. According to the plaintiff's evidence, he requested assistance with the costs, being an amount of $52,867.57 [51] plus the amount in the offer letter, which his father refused to provide.
On 10 March 2016, Pain J made two further costs orders against the plaintiff, in favour of the defendant and Mr Forward in respect of proceedings on contempt.
The defendant submits that the "plaintiff responded by appointing a trustee". There are a couple of missing steps.
On 24 March 2016, the defendant made an application for the bankruptcy of the plaintiff. A Bankruptcy Notice issued over the signature of the official receiver, as is required. The Bankruptcy Notice issued at the request of Holman Webb Lawyers, solicitors for the defendant and her husband, and claimed a debt of $52,867.57. Further, a letter dated 24 March 2016 was served on the plaintiff and marked without prejudice except as to costs, in which the defendant claimed costs and disbursements in relation to the 10 March 2016 judgment and put forward the following offer:
"In light of the above, together with an acknowledgement that our clients will not recover 100% of our fees after an assessment, we are instructed to make the following offers:
1. Our client will accept the sum of $106,336 in satisfaction of the costs order in respect of the motion filed on 14 October 2015. …
2. Our clients will accept the sum of $9,790 in satisfaction of the cost order in respect of the motion filed on 4 November 2015. …
To be clear, if you accept option 1 or 2, our clients will proceed to assess the costs of the remaining motion without further notice."
It is not absolutely clear, but it seems the foregoing was intended to induce the acceptance of both offers, 1 and 2, thereby obviating the necessity to assess the costs of either motion.
Thus, the defendant had obtained against the plaintiff a final judgment or order (the Local Court Judgment) that was enforceable forthwith. The defendant, pursuant to the terms of s 41 of the Bankruptcy Act 1966 (Cth), relying on the judgment of the Local Court, served a Bankruptcy Notice. [52] As a consequence of the service of such a Notice, and the plaintiff's inability to comply with the requirements in the Notice, being the payment of the judgment debt, the plaintiff had committed an act of bankruptcy. [53]
The plaintiff's appointment of a trustee in bankruptcy was a response to the Bankruptcy Notice served by the defendant. If the plaintiff were unable to meet the debt (including any assessed amount for the further costs in the Land and Environment Court) and not appointed a trustee, the defendant would have been required to appoint a trustee.
It is inconceivable that any person in that situation would not take steps to ensure that the defendant and her family, who had bullied and insulted the plaintiff from "day one," [54] did not have control of their assets. As a consequence, the appointment of a trustee was a response to the Bankruptcy Notice. There is no evidence before the Court to suggest that the defendant, at any stage, proposed payment by instalments or any other possible means of dealing with the debt.
It is difficult, in circumstances where a party has served a Bankruptcy Notice, the ultimate effect of which is to cause the person upon whom the notice has been served to commit an act of bankruptcy (assuming for present purposes that the debt could not be paid by the plaintiff, without the assistance of his father) to complain that the plaintiff went into bankruptcy.
Further, in those circumstances, it is impossible for the Court to infer that such a course was adopted by the plaintiff "dishonourably" and with the objective of avoiding paying court costs to his neighbours, which is the sting in the contextual imputation relevantly pleaded by the defendant.
While it is not uncommon for creditors to seek to enforce debts by the serving of a Bankruptcy Notice on a debtor, the ultimate effect of such a Notice, if payment of the debt is not forthcoming, is that the debtor commits an act of bankruptcy and is rendered bankrupt. The defendant's action instigating bankruptcy was successful.
The evidence before the Court is that the plaintiff did not have the means to meet the debt and the bankruptcy was an inevitable consequence of the service of the Bankruptcy Notice. The real complaint of the defendant is that the plaintiff's father was insufficiently generous to provide the money that would enable the plaintiff to pay the debt that was the subject of the Notice and/or the yet unassessed costs awarded by her Honour Pain J.
The report to creditors, dated 28 April 2016, reported that there was an estimated net deficiency of assets to liabilities of $3 million; proposed that the creditors be paid 1.26 cents in the dollar in relation to each debt; referred to the plaintiff's declared income of $5,591 over the previous 12 months; referred to the plaintiff's reliance "upon the spouse's separate income as well as the benevolence of his mother/father for day-to-day living as well as a mortgage draw down"; and a list of creditors revealing that he owed $3 million to his parents as secured creditors under a mortgage, a further $1.33 million owed to his parents as part of a mortgage shortfall, and an additional $128,000 owed to his mother as part of a loan. The only other significant creditors were the defendant and Mr Forward.
There is no suggestion that the report to creditors is the subject of fraud or has been compiled other than wholly competently.
The defendant relies upon receipts by the plaintiff from his father during the period following the bankruptcy. There is evidence to the effect that those receipts were part of the loan/mortgage payments that were to be expended by the plaintiff and, otherwise, dealt with living expenses.
The steps taken that prevented the defendant and Mr Forward from obtaining more than 1.26 cents in the dollar for their debt were initiated by the defendant and Mr Forward and the appointment of the trustee was a response to that initiating process.
Next, the defendant relies upon a breach of the Apprehended Personal Violence Order (APVO) that prevented the plaintiff from approaching or contacting the defendant or Mr Forward. In contravention of that APVO, the plaintiff sent the defendant and Mr Forward two emails that he had sent to a solicitor, being emails of 9 and 23 May 2016. For those emails, the plaintiff was charged with breaching the APVO and pleaded guilty. He was fined $400. As far as the Court is aware, these are the only two letters that were sent to either the defendant or Mr Forward, or both, in contravention of the APVO and no other conduct was said to be in breach of the order.
The immediately preceding sentence does not seek to excuse the breach of the APVO. Courts make orders of this kind for the protection of identified persons that are said to be under threat. However, this conduct, while reprehensible, was not, in the context of the entirety of the relationship between the plaintiff and the defendant "bullying". In and of itself, this instance does not constitute proof of the imputation that the plaintiff has bullied the defendant and her family.
The defendant's submissions elide the conduct of the plaintiff and his father to an unacceptable degree. To some extent, but not totally, this is understandable. The plaintiff and his father acted together in some matters. For example, the plaintiff sent a complaint to the Law Society of New South Wales about the defendant. The plaintiff's father drafted the complaint and the plaintiff signed it, it seems, without reading it. Nevertheless, it is a complaint over his signature and therefore he is responsible for it.
The complaint letter attached the plaintiff's letter of 9 May 2016. The two letters together are insulting and make a number of allegations that have not been proved and could not be. Much of it is supposition based upon an outcome (the circulation of the anonymous letter) that the plaintiff considered most likely was occasioned by the conduct of the defendant and Mr Forward.
On 14 February 2017, the plaintiff's father forwarded another complaint to the Law Society. However, there is no evidence associating the plaintiff with his conduct. Further, the plaintiff's father wrote letters to the employers of Mr Forward and the defendant advising them of upcoming criminal proceedings. When informed of that conduct by his father, the plaintiff reacted by saying the word "good". But there is no suggestion that the plaintiff approved the act beforehand, nor instigated it. Nor is there evidence that he incited the conduct. It is impermissible, in those circumstances, to use the father's independent conduct to prove bullying by the plaintiff.
Similarly, it was the plaintiff's father who engaged Mr Alt, the private investigator. The plaintiff had nothing to do with his engagement or his terms of reference. The mere fact that the plaintiff, on request, provided a statement of conduct by the defendant and/or Mr Forward is not sufficient to allow the use of Mr Alt as proof of "bullying".
In fact, Mr Alt was engaged by a solicitor for the purpose of investigating whether there had been criminal conduct that was required to be referred to the police. The engagement commenced after the anonymous letter was circulated in the plaintiff's neighbourhood. There is a strong inference available that the letter was written or instigated by either the defendant or Mr Forward, but it is irrelevant for the purposes of the Court's task.
It is no part of the function of the Court to determine whether the defendant bullied the plaintiff. However, the imputations relating to bullying and the pleaded defence thereto, including the contextual imputations, require the Court to determine whether the defendant has proved that the plaintiff bullied the defendant and her family. As I have already made clear, the Court finds that the plaintiff did not bully the defendant and her family and did not insult her in anything other than a reactionary and, relative to the defendant's conduct, insignificant manner.
The instances to which the defendant refers and on which the defendant relies in relation to bullying have been the product of a reaction by the plaintiff to the grossly offensive bullying instigated by the defendant, her husband and her son. I find that the first imputation has not been proved to be substantially true.
In relation to the substantial truth of the second imputation, that the plaintiff threatened the defendant with physical harm, the defendant relies upon the material in relation to the vent, with which the Court has already dealt; the alleged approval of the plaintiff (the submissions misdescribe him as the defendant) on 31 January, of the hosing of the defendant on the street; the conversation, to which earlier reference has been made, relating to the comments by Mr Forward and Mr Storey that the plaintiff was being physically intimidating; and the statement by the plaintiff to the police [55] to the following effect: "the vent shouldn't be there and it will be blocked again if it keeps blasting stuff at my property. It's meant to be either at a certain distance above ground level or on the roof. It shouldn't be blowing into someone's backyard. I've spoken to them about it and they did nothing about it." There can be little doubt that this is a threat to damage the vent again, if the placement of the vent was not rectified.
The foregoing statement, however, also indicates that there had been conversations earlier than 17 February 2016, relating to the placement of the vent and the requirement to move it. More importantly, from the point of view of the second imputation upon which the plaintiff relies, it is not a threat to the defendant of physical harm. It is a threat of damage to property. Together with the other reasons to which the Court has already referred, I do not consider that the defendant has proved the substantial truth of the second imputation. Further, as already noted, the imputation that the "plaintiff endangered the lives" of the defendant and her family is significantly more serious than "malicious damage to property".
For proof of the substantial truth of the third imputation, that the plaintiff harassed the defendant's children, the defendant relies upon the conduct in relation to the vent and the causing of malicious damage; and the extracts of conversation to which reference has already been made. Each of those matters has been dealt with in terms of the earlier imputations.
The sting of the third imputation is that the plaintiff harassed the defendant and her children. The evidence before the Court establishes that it was the defendant who harassed the plaintiff. Further, it establishes that the defendant's husband and teenage son also harassed the plaintiff and his workers.
The fifth imputation that arises from the interview and the broadcast is that the plaintiff harassed the defendant by throwing materials into her front lawn and writing about her in cement. Plainly, on the evidence before the Court, there is no suggestion that the plaintiff wrote about the defendant in cement. This aspect of the fifth imputation is plainly not proved.
Whether the defendant felt harassed as a consequence of the signs that were written in cement and pointed to her premises is irrelevant, given the circumstance that it was not the plaintiff that wrote about her in the cement. On the evidence before the Court, the plaintiff directed that the writing in the cement be removed. However, notwithstanding its consequential irrelevance, there is no evidence that the defendant felt harassed.
The issue of the fence material is more complicated. It has not been fully dealt with previously in these reasons. During the course of the dispute between the plaintiff and the defendant, the defendant complained about fencing and safety fences. It is necessary to be more complete, given the nature of the particulars to the pleading of substantial truth.
First, the plaintiff accepts that he placed the remnants of a concrete stub wall onto the alcove, being the same alcove that Mr Cornielje described as "her little spot". The concrete stub wall encroached upon the property of the plaintiff and that part of it that was encroaching was removed for the purpose of performing the building work that was required. The undisputed evidence before the Court is that that part of the stub wall was placed in the alcove because the plaintiff did not want to dispose of it. In his view, if he were to have disposed of it, he would more likely than not be accused of stealing the defendant's property. [56]
He denied that he placed it in the alcove for the purpose of harassing the defendant. Further, there is no evidence that the defendant was harassed as a consequence of the placement of the stub wall. Nor is there any evidence that the remnants of the stub wall that had been removed caused any damage to any property that belonged to the defendant or her family or which was on the property of the defendant and/or her husband.
Two other aspects need noting. First, there was an incident in relation to safety walls. The plaintiff increased the height of the fence to 1.8 m and was threatened as a consequence. The defendant raised the issue with Leichardt Council and attended on a number of police stations for the purpose of having the police charge the plaintiff with malicious damage. None of the police were so inclined. Moreover the police noted that the defendant became extremely rude, aggressive and, after she was informed that the police thought she was "Officer shopping", the defendant remarked that the police "could not speak to her like that and that they must do as she requested". [57]
In relation to the safety barriers, the following events need recording. First, in early August 2015, the plaintiff erected a safety barrier separating the alcove at the defendant's property from the property at 34 XX Street, being the building site. This was done by bolting steel posts to the concrete slab and attaching steel sheets to the posts. At that point, according to the plaintiff, excavation had commenced and the drop from the alcove to the bottom of the excavation pit was approximately 1.5 or 2 m. [58]
On 18 August 2015, the safety barrier that had been erected was found pushed into the excavation pit and the steel posts had been cut with an angle grinder. On the same day, a WorkCover Inspector attended the site after receiving an anonymous complaint about safety. The inference is available, and is drawn, that the anonymous complainant was either the defendant or her husband.
Following the destruction of the safety barrier, the plaintiff erected another safety barrier across the alcove, this time bolting the support posts into the rock face. Again, this time on 9 October 2015, the barrier was found in the excavation pit. The bolts and/or barrier had been dislodged.
Again, an anonymous complaint was made to WorkCover; an Inspector attended; and, once more, concluded that the site was safe. The WorkCover Inspector's notes are in evidence and established that he took the view that the original safety barrier had been the subject of tampering by someone from the defendant's premises. [59]
On 9 October, the day on which the WorkCover Inspector attended on a second occasion, the police also attended. The informant, in relation to the police report was, according to the COPS record, the defendant. The COPS record is in the following terms:
"Police contacted the P/R to advise her of the outcome and she was extremely dissatisfied with the police response. The P/R was rude, aggressive and demeaning when speaking with the police. The P/R constantly spoke over police and did not allow processes to be explained. Instead preferring to speculate over hypothetical scenarios and make threats of complaints to 'the commissioner's officer' and her 'local member, Jamie'. The P/R specifically stated that if 'hypothetically' the fence was re-erected that she would 'take to it with a hammer'." [60]
On 10 October 2015, the day after the police and WorkCover had attended, the plaintiff erected a further safety barrier, this time "dynabolting" the bolts. This was an even stronger form of affixing the safety barrier. The dynabolts were placed into the rock face.
The next day, the safety barrier was pushed, once more, into the deep excavation. One of the main supports had been snapped along with the front section of the original fence that was there. All of it had been pushed into the excavation. By this time, the drop from the alcove to the bottom of the excavation was approximately 6 m. [61]
The inference that either the defendant or her husband destroyed the safety barriers on each of the three occasions and the front fence between the properties is irresistible and overwhelming. Further, it is an overwhelming and irresistible inference that the defendant or her husband informed WorkCover and the police on each occasion.
The foregoing is part of the context in which it is alleged that fence palings were placed in the front yard of the defendant's property and the defendant was harassed by that occurrence.
The earlier recited exchange between the plaintiff, the defendant and Ms Cosco, and in particular the defendant and Ms Cosco, deals, in part, with the fence issue. [62] It plainly relates to the fence palings and, during the course of the exchange, the defendant admits, either expressly or implicitly, that she pushed the fence into the property of the plaintiff; that it fell into shards; that she did so because the fence was on the defendant's property; and that she broke the fence because it was on her property.
There can be little doubt that the front part of the fence was pushed over into the plaintiff's property at the time that one of the safety fences was demolished by the defendant or her husband. It is also clear from the evidence that the palings were placed back into the front yard of the defendant by, or on the instructions of, the plaintiff. Those palings were then pushed back into the plaintiff's property; they were stacked by or on behalf of the plaintiff at the front fence of the defendant; and ultimately the plaintiff carted them away.
The sting associated with plaintiff's imputation five is that the plaintiff harassed the defendant by throwing materials et cetera. The foregoing makes clear that the defendant has not proved that she was harassed by the conduct that the Court has described. In large measure, she was the instigator of that conduct. The defendant has, despite the valiant attempts of counsel, failed to prove the substantial truth of imputation five on which the plaintiff relies.
The defendant's submissions then deal with the contextual imputations. I shall deal with those, although most of the factual aspects have, one way or another, being dealt with in the earlier discussion.
It is necessary to note, a more complete reference to which will follow later in those reasons, that the provisions of s 26 of the Defamation Act 2005 (NSW) require that the contextual imputation carried by the defamatory publication; be substantially true; result in the original defamatory imputations doing no further harm to the reputation of the plaintiff; and the contextual imputations must be in addition to the plaintiff's imputations. That last mentioned aspect requires that the contextual imputations must differ in substance from the plaintiff's imputations.
In determining that issue, it is inappropriate merely to compare the terms of the contextual imputation with the imputations that are otherwise pleaded. Rather, it is necessary to compare the facts, matters and circumstances that establish the truth of the contextual imputation (assuming for present purposes that the contextual imputation is true) and determining whether those facts, matters and circumstances are in addition to the imputations upon which the plaintiff relies.
The first contextual implication is that the plaintiff pleaded guilty to maliciously damaging his neighbour's property. That contextual implication is plainly true. Further, the facts, matters and circumstances upon which it is based are different from the facts matters and circumstances that form the basis for the plaintiff's imputations.
The difficulty with the contextual implication is that it is not an allegation or imputation arising from anything said by the defendant. The original interview, which is the basis for the cause of action in defamation, does not give rise to this imputation. Nevertheless, the broadcast, as published on national television, does give rise to the imputation. It arises from a comment by the journalist.
Even though this contextual imputation does not arise from anything said by the defendant, it does arise from that which is broadcast on national television. Because it does not arise from that which is said by the defendant, it cannot be a basis for defeating the imputations arising from the original interview. However, it is relevant, in my view, to the assessment of damage arising from the broadcast and, as a consequence, from the interview on which the plaintiff relies. Further, the contextual imputation is one that affects the reputation of the plaintiff in a way that, were the truth of it known, the damage to the plaintiff's reputation from the plaintiff's imputations would be mitigated.
As to that which is involved, factually, in the first contextual imputation, this has already been dealt with in the reasons for judgment. The plaintiff was charged with the offence; pleaded guilty to the offence; and, as a consequence, admits the essential elements necessary to prove the offence in question.
The second contextual imputation has, as a matter of fact, already been discussed in the foregoing reasons for judgment. The defendant asserted, correctly, in her interview [63] that a court had found in her favour in proceedings and ordered the plaintiff to pay court costs "which were quite considerable". In answer to a question as to whether the costs have been paid, the defendant replied:
"No he hasn't. We were at the point, you know, [of] enforcing our judgment and Mr Cosco went into administration."
There can be no doubt that the result of going into administration was that the costs were not paid, at least in full. The inference is that the costs were paid at the rate of 1.26 cents in the dollar. Otherwise, the issues associated with the truth of this imputation have been thoroughly canvassed in the earlier part of these reasons for judgment.
Moreover, the sting in this imputation relies on the facts, matters and circumstances relating to whether the plaintiff acted "dishonourably" for the purpose of "avoiding paying his court costs". There is no evidence that would establish, even on the balance of probabilities and having no regard to the seriousness of the allegation, [64] that the plaintiff undertook this conduct for the purpose of avoiding the court costs or acted dishonourably.
More to the point, the plaintiff's request of his father to pay the court costs, to which this contextual imputation relates, is evidence that his objective was not to avoid paying his court costs. Otherwise, the issues have been dealt with earlier in the factual analysis already contained in these reasons for judgment. This contextual imputation has not been established to be substantially true and thus does not assist the defendant.
The third contextual imputation is that the plaintiff is a bad neighbour who behaved rudely and selfishly. It is unclear what the term "bad neighbour" means in the context of this dispute or at all. Certainly, other than in the imputations otherwise arising and pleaded, there is nothing to suggest that the plaintiff is a "bad neighbour". There is, over and above the plaintiff's imputations and over and above the contextual implications otherwise pleaded, nothing to suggest, from the interview or the broadcast that the plaintiff behaved "rudely or selfishly".
In any event, if the imputation did arise, it is not established by the defendant for the reasons given in relation to the plaintiff's imputations and the other contextual imputations.
The fourth contextual imputation alleges that the plaintiff "is a liar". The plaintiff lied to the police when denying his involvement in placing the foam in the vent. Further, to the extent that he volunteered the information that he had "no idea" who had written the graffiti in the footpath, he lied before the magistrate. The full context of that evidence has already been described.
Lastly, the plaintiff lied to the police when he was asked for the identity of the person who had hosed the defendant in the 31 January incident.
I have already determined that, in my view, the plaintiff has not lied in these proceedings or in this Court. Nevertheless, he has lied on oath, albeit about a manner that would otherwise have not been admissible. Each of the previous lies were in the context of exculpating himself from the conduct in relation to the vent; and failing to inculpate his employee in conduct that had occurred, and for which there may have been and were criminal offences preferred.
I accept the submission of the plaintiff that for this contextual implication to be established as substantially true, the defendant would need to establish that the plaintiff was an habitual liar. In other words, the defendant needs to establish that, as a matter of character or habit, the plaintiff says things which he knows to be untrue.
I accept that on the occasions mentioned, the plaintiff lied. I do not accept that the defendant has shown him to be of a character that he could be described as "a liar". Nevertheless, if the contextual imputation here pleaded arises from the broadcast, even the examples of lies that have been established would be sufficient to diminish or damage the reputation of the plaintiff, in a way that, necessarily, would reduce any damages that might otherwise be awarded.
However, notwithstanding the foregoing, it is my view that the imputation that the plaintiff is a "liar" does not arise from the interview or the broadcast. There is certainly no reference to the proposition that the plaintiff is a liar, or anything that comes close to that proposition, in the broadcast the transcript of which has been recited earlier in these reasons.
In the original interview, there is an exchange between the "journalist" and the defendant in the following terms:
"Journalist: … the other claims [the plaintiff] made to us was that he feels that he is the victim, that he's been a victim of ongoing bullying and harassment from your family. What do you have to say that?
Defendant: I deny that completely. We've lived in this house for 10 years, this is our family home. We've never had anything like this with any neighbour. We're honest, reasonable people. We haven't thrown material into Mr Cosco's yard. We haven't thrown dog excrement into Mr Cosco's yard. Actually I'd like to take that back if that's okay. I deny that completely. We have done nothing to the Cosco family. Our family has been harassed, our family has been abused, and no matter what Mr Cosco thinks, at the end of the day he took a flammable material, he pumped it the full length of our extraction fan and vent, and then sealed it shut. He's pled [sic] guilty to that. That was a considered act. I don't think there's any justification for that."
The denial by the defendant of a claim by the plaintiff is not an allegation that the plaintiff is telling a known untruth, which would be a necessary allegation if the imputation that he was a liar were to arise from the interview.
The defendant relies upon [66], [69], [71] and [73] of the original interview, as well as the passage to which the Court has just referred. The reference to [66], is intended to be a reference to [67] of Schedule A which describes an allegation put to the defendant by the journalist that the plaintiff was merely "trying to seal the vent to stop fumes escaping and protect his children who would be playing there" in which the defendant says, "I just can't treat that as a serious answer". And, in a second take of the answer for the purpose of the broadcast, the defendant replied "that just can't possibly be true".
Further, the defendant, in order to establish that this contextual imputation was conveyed, relies upon the defendant's response to being told that the plaintiff claims that he has "been the victim of a long-running campaign of bullying and harassment" which was: "It's outrageous. It's ridiculous and I completely deny it". And, in a second take of that answer, responds "oh that's completely untrue".
The allegation of lack of truth at both [69] and [73] is a reference to the statement of fact, not the maker of the statement. In other words, the allegation or imputation rises no higher than a statement that facts are not true; it does not imply that the maker of the statement is lying or is a liar. This is especially so in circumstances where the ordinary reasonable viewer, hearing the interview, would understand that there would be claims, back and forth, between disputing neighbours and that each of them may have different perceptions of the same conduct. Denial, if it be limited to denial or a statement that a particular fact is untrue, does not, in the conclusion which I have reached, amount to an allegation that the plaintiff is a liar.
The fifth contextual imputation is that the plaintiff "knowingly encroached onto his neighbour's property during the course of an excavation". The facts have been set out earlier.
There was an encroachment during the course of an excavation. The evidence before the Court is clear. The plaintiff gave evidence that he encroached upon the defendant's property.
The encroachment was 100 mm clear of the common boundary and occurred 6 m underground. It occurred in the following circumstances. The rock was being cut; it was a large rock being cut by a "huge rock saw"; the contractor or worker "obviously didn't have it dead plum"; and it angled at the very last cut; and it encroached at the very bottom of the excavation. [65] Similar evidence was given in examination in chief, but the foregoing evidence was given in answer to questions in cross-examination.
A number of facts are clear from the evidence that was adduced. First, it was not the plaintiff that was operating the rock saw. Secondly, a mistake was made by the worker who was operating the rock saw. Thirdly, the plaintiff was only aware of the encroachment after it had occurred. The evidence is inconsistent with the plaintiff "knowingly" encroaching onto his neighbour's property. The substantial truth of the fifth contextual imputation is not established.
The sixth contextual imputation relates to an allegation that the plaintiff acted with reckless indifference to the safety and comfort of his neighbours by blocking the vent with flammable expanding foam. The facts, matters and circumstances upon which this contextual imputation relies must be the same facts, matters and circumstances upon which the plaintiff relies in relation to the plaintiff's fourth imputation. The distinction, if there be a distinction, relates to the state of mind of the plaintiff, which, in the contextual imputation, is "reckless indifference".
Nevertheless, the conduct is identical; the result is identical both in terms of the conduct and the risk, in the plaintiff's imputation described as "endangering the lives of the defendant and her family" and in the contextual imputation described as "reckless indifference to the safety and comfort of his neighbours". The facts, matters and circumstances upon which each relies must be, if not identical, then almost identical, or, more accurately, the less serious allegation in the contextual imputation is within the facts, matters and circumstances of the plaintiff's alleged imputation.
The sixth contextual imputation is not "in addition to" the plaintiff's imputations. As a consequence, it cannot amount to a contextual imputation under the Defamation Act and cannot be relied upon, separately from the substantial truth of the imputations pleaded by the plaintiff, to defend the action.
The defendant then deals with the pleaded defence of honest opinion. The defendant refers to s 31(1) of the Defamation Act, which is in the following terms:
"31 Defences of honest opinion
(1) It is a defence to the publication of defamatory matter if the defendant proves that -
(a) the matter was an expression of opinion of the defendant rather than a statement of fact, and
(b) the opinion related to a matter of public interest, and
(c) the opinion is based on proper material."
As can be seen from the foregoing extract of s 31(1) of the Defamation Act, there are three factors that the defendant must prove to rely upon the defence of honest opinion. First, the impugned statement must be an expression of opinion, rather than a statement of fact.
Secondly, the representation must relate to a matter of public interest and, thirdly, it must be based on proper material. In the context of s 31(1) of the Defamation Act, proper material is that which is substantially true or was published on an occasion of absolute or qualified privilege or was published in circumstances that attracted a defence based upon the publication of a public document or a fair copy or summary of the public document or a fair reporting of proceedings of public concern. [66]
The defendant's submission refers to a number of the statements as opinion, rather than fact. This is a conclusion that is to be determined in the context of the whole of the matter about which there is complaint. [67] The defendant relies upon the comment by Giles JA in O'Shane that there is not a clear line between comment and a statement of fact. His Honour's comment is correct; but it does not mean that there is not a clear line between some comments and some statements of fact.
In order for the defence of honest opinion to succeed, the statement must be recognisable as a comment by the ordinary viewer and, in that respect, must be seen as a "deduction, inference, conclusion, criticism, remark or observation". [68]
It is essential, in order to succeed in the defence of honest opinion, that the comment is based upon facts that are otherwise stated in the publication and plainly sufficiently linked to those facts, or be a matter that is otherwise notorious.
The defendant submits that an allegation that a person is a bully is an opinion. Further, the defendant submits that the allegation that someone harassed another is an expression of opinion. On its face, and particularly bearing in mind the whole of the interview and broadcast, I disagree with this classification. The use of a descriptive word, which may or may not be the conclusion reached by all, does not render the statement of fact an opinion. It is necessary to deal with those comments in more detail.
The foregoing is not intended to suggest that the drawing of inferences from facts that are stated, or the reaching of a conclusion on facts that are stated, may not be an opinion. Often it is. It is, in that circumstance, an opinion as to the conclusion to be drawn or inferred. In such circumstances, it is even more important that the underlying facts from which the inference is to be drawn or the conclusion reached is linked to the inference or conclusion. Ultimately, the test is whether the ordinary reasonable person would understand the meaning as an expression of opinion, rather than as a statement of fact.
In relation to the expression "bully", it is important to understand that the term is used in the impugned publication in two ways. First, it is used as a noun describing the plaintiff and secondly it is used as a verb. At [51] of Schedule A, the defendant remarks that the plaintiff has "just been a bully. This is the behaviour of someone who thinks they have a right and they're entitled to do what they want. It is extraordinary for someone to try and justify the unjustifiable. No matter what you think you have a right to do, to do what he did to our vent and to put our family at that risk is intolerable and it's appalling that he still trying to justified."
Where the facts are stated in relation to an expression of the plaintiff being a bully, it is confined to the placement of the foam in the vent. In the context of the whole of the interview, the allegation that the plaintiff has been a bully is not so confined and is an allegation of fact.
Each of the imputations that are agreed arise from the interview and the broadcast and are imputations of fact. First, that the plaintiff has bullied the defendant; secondly, that the plaintiff threatened physical harm; thirdly, that the plaintiff harassed the defendant's children; fourthly, that the plaintiff endangered the lives of the defendant with foam that could have caused an explosion or a fire; and lastly, that the plaintiff harassed the defendant by throwing materials into her front yard.
None of the foregoing imputations arise out of the expression of an opinion, as distinct from allegations of fact.
More obviously, the imputations are not the defendant's expression of honest opinion because of the requirement that, if it be an opinion, it must relate to a matter of "public interest".
The identity of the plaintiff is not a matter that brings the allegations within the public interest. In order for the matter to be a matter of public interest, the matter must be such as to affect people at large so that they may be legitimately interested in or concerned with what is happening. [69]
The question of whether a matter was a matter of public interest was discussed by the High Court. [70] In Bellino the plurality [71] suggested that the criterion was whether the plaintiff was engaged in conduct which "inherently, expressly or inferentially invites public criticism or discussion". While the plaintiff relied upon the comments of the plurality (and of Brennan CJ and Gaudron J) in Bellino, the most telling aspect is that which has been utilised for the purpose of determining public interest, as it is used in s 18D of the Racial Discrimination Act 1975 (Cth). In the course of the plurality judgment, their Honours refer [72] to the expression fair comment. Their Honours state:
"At common law, it would be meaningless to speak of a fair comment on 'organised crime and corruption in Queensland' or a fair comment on 'the existence of illegal activities' or a fair comment on 'trafficking in illegal drugs' without the comment referring, expressly or impliedly, to the conduct of individuals whose office or public activities invited public criticism and discussion. Thus, a comment on the conduct of a private individual who had secretly engaged in organised crime could not be justified at common law as a fair comment on a subject of public interest, no matter how long or how heavily he or she had been engaged in organised crime. It is the failure to grasp this point that has led to the view that 'some subject of public interest' … includes general abstractions unrelated to the conduct of particular individuals."
While the foregoing is expressly referring to the test at common law, it must be read in the context of the plurality making clear that the meaning attributed to "a subject of public interest" in the Queensland Code, then under examination, should be that previously described under the rubric of the common law doctrine of fair comment.
The defendant refers to the matter of "public interest" being that a crime had been committed. [73] The crime committed was malicious damage to property to which the plaintiff pleaded guilty.
Public interest does not mean anything of interest to the public. It does not include a neighbourhood dispute. Further, this is not an allegation of systemic criminal conduct. This is a crime that the Local Court considered was appropriately dealt with by a good behaviour bond. The comment in the footnote in Bellino, recited above, is apposite. So too is the passage at 217-218, in the following terms:
"It is true that, in discussing the common law doctrine of fair comment, lawyers frequently spoke about the right of fair comment on such abstractions as 'the administration of justice', 'political and state matters', 'the management of public institutions' etc, but these were merely shorthand statements for the proposition that there was a right to comment on the actions or omissions of some person or institution in the course of the administration of justice, the management of public institutions and similar subjects which were subjects of public interest. The judgment of Cockburn CJ in Woodgate v Ridout clearly brings out the point that, in describing a subject such as the administration of justice as a subject of public interest, it was the conduct of the individual or individuals involved in particular aspects of the administration of justice, and not some concept defined at a level of generality divorced from the conduct of individuals, that constituted the subject of public interest.
…
Thus, under the common law any member of the public could comment on the conduct of the lawyers participating in a criminal or civil trial, the conduct of a judge or magistrate in dismissing or upholding a claim or the evidence of witnesses." (Footnotes omitted.)
Further, the reference to the "crime" was only for the purpose of validating the defendant's allegations about what he did to the vent. There was no comment about the plea or the criminal process. Similarly, the Land and Environment contempt proceeding was simply the background to the costs order and the bankruptcy.
There is nothing about the identity of the plaintiff or the crime that was committed that rendered the comments and publication a matter of "public interest". This is not a "discussion of the conduct of any person holding public office, participating in the administration of justice or public affairs, offering goods or services to the public or otherwise engaging in public conduct that invites public criticism or discussion". [74] This is a petty, neighbourhood squabble essentially caused by the arrogance and feeling of superiority of the defendant, which does not amount to any matter relating to public interest. Not every crime is a matter of public interest.
In my view, the statements made by the defendant in the interview and broadcast on national television are not, as the law understands it, an expression of opinion, but are allegations of fact and, whether or not allegations of fact, are not related to a matter of public interest.
In light of the foregoing it is unnecessary to discuss, at length or otherwise, whether the opinion is based on proper material. However, I reiterate the findings otherwise contained within these reasons for judgment that the statements made are not substantially true, either in whole or in part, such as to justify the comment, if it be comment. As a consequence, whatever statement was made was not "based on proper material".
The statements by the defendant in the course of the interview are, in a number of respects, untrue and false. It is unnecessary to detail all of them.
It is sufficient to state that there can be no inference drawn that the statements uttered by the defendant were thought to be true at the time of their utterance. The burden of proof of honest opinion rests on the defendant and the standard is the balance of probabilities. In the absence of any evidence from the defendant that she honestly believed, however irrationally, the statements she made, the Court is unable to find that any opinion that may have been expressed by the defendant was honestly held.
On the contrary, the defendant remarked that she had never had a request about moving the vent; that she had been a reasonable neighbour; that she never threw things into the plaintiff's property; and many other matters. Assuming, as I do, that the defendant is rational, if any inference is to be drawn, it is that the defendant did not believe the opinions she was expressing.
The defence of honest opinion fails.
The plaintiff submits that there are three purposes for the award of damages for defamation: consolation for hurt feelings; recompense for damage to reputation; and vindication of the plaintiff's reputation. [80] The submission, based as it is on the highest authority, accurately sets out the purposes. However, vindication, while a purpose of the award of damages, is not a head of damage.
The heads of damage are consolation for hurt feelings and recompense for damage to reputation. While the plaintiff is entitled to have his reputation vindicated, vindication is not a separate head of general damages; it is a function of the award of damages and the reason for those damages otherwise awarded. [81] The relevant principles in the assessment of damage were discussed by the Court of Appeal in Ali v Nationwide News Pty Ltd [82] , in which Tobias and McColl JJA said:
"[72] The harm caused to the plaintiff by the publication of the defamation often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. Thus '[a] solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the [general compensatory] damages': Cassell & Co Ltd v Broome [1972] AC 1027 at 1124 per Lord Diplock.
[73] A person who is defamed receives damages because he or she has been injured in his or her reputation; that is, because he or she was publicly defamed. Damages in a defamation action vindicate the plaintiff to the public, and are consolation for a wrong done: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 150 per Windeyer J.
[74] The damages awarded in a defamation action have to be regarded as demonstrating that the plaintiff has been vindicated in his or her reputation: Dingle v Associated Newspapers Ltd [1964] AC 371 at 396 per Lord Radcliffe; Carson at 69 per Brennan J. The level of damages should reflect the high value the law places upon reputation and, in particular, upon the reputation of those whose work and life depend upon their honesty, integrity and judgment: Crampton v Nugawela (1996) 41 NSWLR 176 at 195; applied in John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291 at [3] per Giles JA, Ipp JA agreeing.
[75] The harm done by the defamatory publication for which general compensatory damages are recoverable, does not come to an end when the publication is made: Cassell at 1124 per Lord Diplock. 'It is impossible to track the scandal, to know what quarters the poison may reach': Ley v Hamilton (1935) 153 LT 384 at 386 per Lord Atkin. Accordingly, the damages awarded for defamation must be such that 'in case the libel, driven underground, emerges from its lurking place at some future date, [the plaintiff] must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge": Cassell at 1071 per Lord Hailsham of St Marylebone LC. Mahoney ACJ referred to this statement with approval in Crampton at 193, holding (at 194 - 195) that '[t]he award must be sufficient to ensure that, the defamation having spread along the "grapevine"… and being apt to emerge "from its lurking place at some future date", it was "sufficient to convince a bystander of the baselessness of the charge"'; see also Carson at 70.
[76] In assessing damages the tribunal of fact is entitled to take into consideration 'the mode and extent of the publication, that the defamatory statement was never retracted, that no apology was ever offered to the respondent, and that the statement had been persisted in to the end'. Such circumstances might in the opinion of that tribunal 'increase the area of publication and the effect of the libel on those who had read it or who would thereafter read it, might extend its vitality and capability of causing injury to the plaintiff': Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 263 per Knox CJ, Gavan and Starke JJ. The assessment of damages involves an understanding of the nature and seriousness of the imputations and the defendants' conduct: see Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 at 241.
[77] Finally under these general observations, we would observe that the defendant must take the plaintiff as it finds him or her: Humphries v TWT Ltd (1993) 113 FLR 402 at 418 - 419 per Miles CJ; Bashford v Information Australia [2000] NSWSC 665 at [42] per Davies AJ."
In these proceedings, evidence has been adduced from Ms Mehri and the other witnesses as to the grapevine effect which amplifies or spreads the damage to reputation that may have been caused by the publication or its republication. [83]
Prior to this publication, the plaintiff had an exemplary reputation. He was reputed to be honest and friendly. His reputation was that he had great integrity; he was a good payer of bills and workers. He was a sought after boss in the building industry and a sought after builder in and around Balmain and Sydney generally.
After the publication and broadcast, the reputation of the plaintiff suffered dramatically. He was shunned. It hurt his feelings and caused him embarrassment and an avoidance of more public events. His level of hurt and upset is the subject of evidence beyond that to which the plaintiff himself attests. Earlier in this section of the reasons for judgment, I referred to the prohibition on the award of exemplary or punitive damages. The classification of damages is best illustrated by the discussion in both the House of Lords and the High Court. [84]
Essentially, as one of its names implies, exemplary or punitive damages applies as a form of punishment, where the conduct is wanton or discloses fraud, malice, or where the acts are in contumelious disregard of the plaintiff's rights. On the other hand, aggravated damages are compensatory and must, as the Defamation Act makes clear, bear a relationship, rationally, to the harm suffered. [85] Moreover, malice and any other state of mind possessed by the defendant, is to be disregarded in the awarding of damages, except to the extent that such a state of mind affects the harm sustained by the plaintiff. [86]
The foregoing was recently the subject of comment by the Full Court of the Federal Court, which said:
"[430] Aggravated damages may be awarded by way of compensation for injury resulting from the circumstances and manner of a publisher's wrongdoing, such as conduct which manifests malice: Uren at 130 (Taylor J) and at 149 (Windeyer J); Carson at 71 (Brennan J); New South Wales v Ibbett [2006] HCA 57; 229 CLR 638 at [31] (the Court). Where malice is in issue, s 36 of the Defamation Act provides that the Court is to disregard the malice or state of mind of the defendant except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff. The harm caused to a person by the conduct of the publisher, and the circumstances and manner of publication may be inferred: Andrews at [74] (Glass JA). As we have stated, in the present appeal there is no challenge to the Judge's findings in support of the conclusion that the manner in which the appellants published the defamatory matters aggravated the harm to Mr Rush." [87]
As has been made clear over many years in assessing damages, the Court is entitled to look at the whole of the conduct of the defendant from the time of the publication of the libel until the time that judgment is given. In so doing, conduct that even predates the publication of the libel is able to be considered. [88]
The conduct of the publisher after publication is relevant because it may either mitigate or aggravate the harm done to the plaintiff. This can occur, on the one hand, by the publication of a withdrawal and apology or, on the other hand, seeking unreasonably to justify an allegation which conduct may cause even greater harm to the plaintiff than might have been done by the publication alone. [89]
Notwithstanding the proposition that damages by way of punishment is ordinarily exemplary damages, malice, as a state of mind in the defendant, may give rise to aggravated damages if, in accordance with s 36 of the Defamation Act, it aggravates the harm sustained by the plaintiff. [90]
The conduct of a defendant may be aggravating, because it increases the harm to the plaintiff or the hurt to the plaintiff's feelings and such conduct may include: a failure to make any or any sufficient apology and withdrawal; a repetition of the libel; conduct calculated to deter the plaintiff from proceeding; persistence, by way of a prolonged or hostile cross-examination of the plaintiff or in addresses in a plea of justification which is bound to fail; and otherwise in the general conduct of the proceedings, particularly where it is conducted in a manner calculated to attract further wide publicity. It also includes a persecution of the plaintiff by other means. [91]
There is a tension between taking into account, on the one hand, as an aggravating feature, the conduct of the proceedings and, on the other hand, affording to a defendant the right to defend the proceedings taken against her. That tension is resolved by determining whether the defence and the conduct in the proceedings is bona fide and reasonable or lacking in bona fides, improper or unjustifiable. [92]
In these proceedings, the plaintiff claims aggravated damages. Before dealing with that claim, it is necessary to restate some of the evidence in relation to the plaintiff's reputation. His reputation was: trustworthy; a good competent builder; an honest and reliable boss; a person for whom other workers wanted to work; he was well respected; well-liked; and popular.
Against that proposition is the plaintiff's police record which is in evidence. His record is minor and deals with mostly traffic offences, but, now, includes malicious damage to property, which must be taken into account in terms of his reputation and in mitigating the damage to which he might otherwise be entitled.
As stated on previous occasions in these reasons, the program was observed by over 1 million people in the major metropolitan centres. The grapevine effect is significant and the damage spread beyond the people who directly observed the program.
His wife, Ms Cosco, gave evidence relating to the emotional effect on the plaintiff of the broadcast, including the effect at family gatherings and on his reputation amongst people in the neighbourhood. The plaintiff's sister, Ms Mehri, as earlier stated, gave evidence of the effect of the broadcast on school friends or former school friends who knew and were friendly with the plaintiff. In her evidence, Ms Mehri testified to the broadcast and allegation still being the subject of comment 14 or 15 months after the broadcast aired.
I do not sheet home to the defendant the comments that were posted on the Facebook page of the broadcast, but they evidence the broad and significant effect that the broadcast had on the plaintiff's reputation. Nevertheless, the nature of the comments may tend to the view that they were not made by "ordinary reasonable viewers".
As earlier stated, the plaintiff seeks aggravated damages. If aggravated damages are appropriate, the cap prescribed in the Government Gazette and applicable as a result of s 35 of the Defamation Act is not applicable. [93]
It is difficult to escape the inference that the interview provided by the defendant was done with malice and for a purpose other than that which would or could be proper. It seems, on its face, to implement the threats made time and again by the defendant to take the plaintiff "through the ringer" and to ruin him. Some of the comments in the interview were plainly false. Further, the plaintiff would have been aware of their falsity of the time they were made and the time he heard the broadcast. This exacerbates or aggravates the damage suffered.
Further, the defendant would have known of their falsity. The inference is inescapable. The statement that they could have had an explosion may have been believed, although it is unlikely, but the proposition that she or her child could have been "making a sandwich" when an explosion could have occurred is far-fetched and fanciful. I have previously dealt with other statements already.
Given the circumstances of this dispute, the proposition, stated by the defendant in the interview, that she and her family "have done nothing to the Cosco family" is not only false; it must have been knowingly false at the time that it was made and, I draw the inference, calculated to harm the plaintiff deliberately.
As indicated from the extracts of conversations that had been recorded, the defendant, well before the interview, had admitted to throwing items into the premises at 34 XX Street. In those circumstances, the statement that she, the defendant, had never thrown material into the plaintiff's premises was calculated to paint the plaintiff in a particularly bad light and her and her family in a particularly good and reasonable light. Indeed, the defendant expressly noted that she and her family were "reasonable" and did so, deliberately, to portray her conduct and the conduct of her family as being wholly innocent, in circumstances where she must have known that the opposite was the fact. Certainly, the plaintiff knew that the opposite was the fact and these comments would have hurt him even more.
Over and above these obvious issues associated with the statements in the interview itself, the plaintiff points to other factors that aggravate the damage. During the course of the trial, Senior Counsel for the defendant, presumably on instructions, objected to the tender of audio recordings on the basis that:
"We have reason to believe that the audiotape do not include the entirety of the conversation, that is, it has been edited to exclude parts … we fear that the tape has been edited to take material out that the plaintiff doesn't like."
I assume that Senior Counsel received instructions to that effect. The comment is an appalling allegation of fraud alleged to be perpetrated by the plaintiff. The submission was never substantiated and the objection was ultimately withdrawn. The plaintiff gave evidence as to his shock and hurt, when he heard the allegation made.
Other material was put to the plaintiff that was denied, which denial was not controverted and by which, according to the evidence of Mr Cosco in re-examination, the plaintiff was deeply hurt.
The plaintiff relied upon other matters. The plaintiff relied upon the cross-examination as to endangerment of the lives of the defendant and her family. While the expert evidence does not ultimately support that proposition, it seems to me that cross-examination was part of the ordinary litigation process for which aggravated damages could not flow. Notwithstanding that the allegation may have hurt the plaintiff; it was not, in and of itself, the reason that the Court would award aggravated damages. Nevertheless, that hurt is a factor to which the Court is entitled to pay regard in determining damages. Further, it is a repeat of an allegation made in the broadcast of an extremely serious criminal offence; carrying 25 years' imprisonment.
Similarly, it does not seem to me that the proposition put to the plaintiff, that he had undertaken this litigation for an improper purpose, is inconsistent with payment of costs into court by the plaintiff. However, the proposition, assuming there were instructions that allowed it to be put, increases the harm associated with hurt feelings suffered by the plaintiff.
I do not consider that the failure of the defendant and Mr Forward, or their son, to give evidence was an aggravating factor. On one view, it may be ameliorating, as it had the result that the allegations, limited to those that could be proved or were true, would not be repeated by them. Whether or not it was "cowardly", as submitted by the plaintiff, for the defendant and her husband not to give evidence, in and of itself, it is not a basis upon which aggravated damages should be awarded. Nor is it a basis upon which there would be additional harm.
In a different category is the attitude of the defendant to the defence of justification and contextual truth at a point in time after all of the evidence had been adduced. Senior Counsel for the defendant advised the Court, on instructions, that the entire defence continued to be pressed. This is an extraordinary position. It is rendered more extraordinary because the defence includes a denial that the plaintiff's imputations arise and were defamatory, even though those aspects were disavowed in the course of the closing submissions.
However, assuming for present purposes that the pressing of the defence was confined to the pressing of the defence of justification, that disclosed attitude reflected in the closing submissions that have been put to the Court in writing and orally, also repeats the defamation. In the absence of evidence contradicting evidence of the plaintiff and other witnesses, it is an indication that the defendant was still pursuing her stated intention of taking the plaintiff "through the ringer" and causing him as much harm as was possible.
Lastly, the plaintiff relies upon the sensationalist reputation of the program on which the interview (or extracts of it) was broadcast. Neither the journalist nor the television station is a defendant in these proceedings.
It is accurate that the defendant sought out the program. There is no evidence to suggest that the defendant sought out the program because she knew the program was sensationalist.
It seems to me that the conduct of the applicant in seeking out the interview and agitating for its broadcast, to the point where the defendant threatened to go to another station if the program was not interested, discloses the malice and shows the motive of the defendant.
Further, once known, that conduct must have hurt the plaintiff's feelings even more. Nevertheless, it does not seem appropriate to sheet home to the defendant, in the absence of evidence of that reputation being known to the defendant, the sensationalist nature of A Current Affair and/or Channel 9.
Lastly, on the question of damages, the Court should deal with the issue of principle and the circumstances that allow the Court to award damages against the defendant for the republication of the interview or extracts of it on national television. The principles that apply in relation to the liability of an original publisher for damage caused by a republication of defamatory words is, by ordinary standards, a matter of common sense and has been described authoritatively on a number of occasions.
If an original publisher utters defamatory material, that original publisher is liable for the original publication. The original publisher is not liable for the republication, unless the original publisher has authorised the republication; the original publisher intends for the defamatory matter to be republished; or the original publisher foresaw, or ought to have foreseen, that the natural and probable consequence was that the defamatory material or the statement would be republished. [94]
Thus, by way of example, if a politician is interviewed by the press (leaving aside defences that may be available), as a matter of common sense and/or inference, the politician is authorising the press to republish comments; is intending for the defamatory matter to be republished; and would have foreseen or ought to have foreseen that the natural and probable consequence of providing an interview was that the statement would be republished by the press.
The same applies to non-political interviewees. In this case, not only did the defendant make statements to a national "current affairs" program, but the defendant sought out the program and agitated for its broadcast. As a consequence, the irrefragable inference is that the defendant was authorising the republication by A Current Affair; was intending for the material to be republished; and foresaw that the natural and probable consequence of providing the interview was that the statements made would be republished, at least in part.
During the course of the interview questions were asked and answered a second time for the purpose of providing a more succinct interview or clip for broadcasting. It is inconceivable that the defendant was not caught by the principles associated with sheeting home to her the liability for the republication by A Current Affair.
As already stated, I have found all of the plaintiff's imputations conveyed; and I have found them to be defamatory. Further, I have not found that the defendant has established, on the balance of probabilities, the substantial truth of any one of those imputations.
Of the contextual imputations, the first contextual imputation is substantially true. It is different or in addition to the plaintiff's imputations insofar as it relies upon different facts, matters and circumstances. If that imputation had been published, without more, or even better, with the circumstances that led to it, it is likely that these proceedings would not have been commenced. That last aspect is irrelevant to my consideration of damages.
If that fact had been published, without more, it would have harmed the reputation of the plaintiff in a manner that was not actionable and I take that imputation into account in assessing the damages that otherwise will be awarded, even though it does not arise in those terms from the interview. It does not, either of itself, or together with other material, overcome the significant harm caused by the imputations.
Further, I take into account, even though I have held against the contextual imputation that the plaintiff is a liar, the fact that he lied to the police on two occasions (once in relation to the placement of the foam, which lie was repeated on the same occasion and once in relation to his knowledge of the identity of the person who had hosed the defendant) and once in evidence before the magistrate as to whether or not he had any idea of the identity of the person who etched the signs into the concrete footpath. If those facts had been published, they too would have affected the reputation of the plaintiff and I take those matters, also, into account in assessing the damages that should otherwise be awarded on that account.
Further, notwithstanding that the plaintiff's imputation and the contextual imputation in relation to the filling of the vent, relates to "the flammable foam" and not the propellants, it seems to me that, over and above the fact of the offence having been committed, the circumstances in which the plaintiff took the law into his own hands, despite the warnings given to the defendant, is something that the Court should take into account in diminishing the damages that it would otherwise award. I also take into account that the propellants could have been dangerous and were sprayed, even though it is on my findings, most unlikely that any substantial damage could have been occasioned thereby.
Having made those comments, it is necessary for the Court to assess the damage. I have been provided with a schedule of comparable awards. None of them are assessed on the basis of the current cap, which has operated for a very short time. Further, the fact that it is appropriate to award aggravated damages means that the cap, being the upper jurisdictional limit in relation to the awarding of non-economic damage, is inoperable.
As a matter of abundant caution, I reiterate that it is no part of the function of the Court in awarding damages to "punish" the defendant. As stated, exemplary damages are not permitted.
Having taken into account the level of aggravation, the mitigating factors to which reference has been made, and other awards relating to defamation of this kind, I consider that the damages should still be very significant and at the higher end of comparable awards. I, of course, do not include in that category some of the more sensational awards that have been made, nor any special damage. Notwithstanding the lack of special damage, I bear in mind that the reputational damage that has occurred has affected the plaintiff both in his personal capacity and in his business capacity and there would be consequential, but incalculable, damage to his business, as a consequence of the publication of the defendant.
Bearing in mind the comparable national media awards, assessing on a global basis but reducing the damage on account of the factors to which the Court has already mentioned, the Court determines that an appropriate compensation for the hurt feelings and damage to reputation, including the aggravation of that damage by conduct other than the publication itself, is $300,000.
The Court makes the following orders:
1. Judgment for the plaintiff;
2. The defendant shall pay the plaintiff damages of $300,000;
3. Pursuant to s 100 of the Civil Procedure Act 2005 (NSW), the defendant shall pay, in addition to the award of damages, interest on the amount of said damages from 4 July 2016 until the date of judgment at 5% per annum;
4. Notwithstanding the terms of order [3] above, interest is payable on the damages herein in accordance with s 101 of the Civil Procedure Act 2005 (NSW);
5. The defendant shall pay the plaintiff's costs of and incidental to the proceedings;
6. Leave is granted to either party to apply to the Court in writing, by email addressed to the Associate of Rothman J, for a different or special order as to interest or costs. Such application shall be made with a submission in support of no more than five pages, within 14 days of the date of judgment and, if any such application be made, the other party may, within a further 14 days, again by submission of no more than five pages, respond to any such application. The application will be dealt with on the papers and the five page limit does not include any evidence of offer or other document not otherwise in evidence.
7. Other than in relation to those matters for which the parties' rights are reserved, the proceedings are dismissed.
Ibid; also see [37] and [41].
(2009) 238 CLR 460; [2009] HCA 16.
Defamation Act 2005 (NSW), s 25.
Defamation Act, s 26.
Defamation Act, s 31.
Howden v Truth & Sportsman Ltd (1937) 58 CLR 416; [1937] HCA 74; O'Brien v Australian Broadcasting Corporation (2017) 97 NSWLR 1; [2017] NSWCA 338; Sutherland v Stopes [1925] AC 47 at 79; Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; [2010] NSWCA 335; Rofe v Smith's Newspapers Ltd (1924) 25 SR (NSW) 4 at 22.
Fairfax Digital Australia & New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547; [2018] NSWCA 77; Digby v Financial News Ltd [1907] 1 KB 502; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161.
Channel Seven Sydney Pty Ltd v Fisher [2015] NSWCA 414.
Ibid.
Gacic v John Fairfax Publications Pty Ltd (2015) 89 NSWLR 538; [2015] NSWCA 99; Channel Seven Sydney Pty Ltd v Fisher, supra, at [57]-[59].
Meissner v the Queen (1995) 184 CLR 132 at 157; [1995] HCA 41, per Dawson J.
On one view, the statement in the Facts Sheet to that effect may have been inadmissible and certainly would have been if it were used, along with an inferred intention, to aggravate the seriousness of the offence: see The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 and ss 196, 198 and 200 of the Crimes Act 1900 (NSW).
Ex PTB1, p 382.
If it was subjective and proved to the criminal standard, which is unnecessary in these proceedings, it is a capital offence, carrying 25 years' imprisonment. It is fundamentally more serious than an offence under s 195(1)(a) of the Crimes Act: see s 198 of the Crimes Act, if it be intended to endanger life and s 196 if it be intended to cause injury.
See Ex K, Statement of Anthony Forward dated 16 February 2016. The contents of Exhibit K were tendered as a bundle with Exhibits G, F, H, J, L as evidence of the making of the statement and not as to the truth of its content. See Tcpt p 390, l 46.
See reasons for judgment above.
I here refer to threat, not physical battery.
Ex C, Conversation of 31 January 2016; c.f. MFI 6 Tcpt l 760.
See [86] above.
The judgment of Pain J issued on 28 August 2015 did not assess costs.
Bankruptcy Act, s 41(1).
Bankruptcy Act, s 40(1)(g).
Evidence of Mr Cornielje, Tcpt p 285, l 5.
Ex DTB 1, Tab 29, p 3.
Tcpt p 68, l 8-13.
Police notes Ex PTB A, Tab 17, p 91.
Tcpt p 68, l 15-30.
Ex PTB A, Tab 21 and Tcpt p 74, l 12-49.
Ex PTB A, Tab 22, p 122.
Tcpt p 75, l 11-18; and l 50.
See [86] above.
Amended Statement of Claim, Schedule A, pars [12]-[14].
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.
Tcpt p 209, l 1 to 13.
Defamation Act, s 31(5) and s 28 and s 29.
Feldman v Polaris Media Pty Ltd as trustee of the Polaris Media Trust Trading As the Australian Jewish News (No 2) [2018] NSWSC 1035 at [41]-[45]; John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164 at [25] and following.
Lloyd-Jones v Allen [2012] NSWCA 230 at [43]; Marshall v Megna [2013] NSWCA 30 at [361]; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 at [35] and following.
London Artists Ltd v Littler [1969] 2 QB 375 at 391; [1968] EWCA Civ 3.
Bellino v Australian Broadcasting Corporation (1986) 185 CLR 183; [1995] HCA 34.
Dawson, McHugh and Gummow JJ at CLR 221.
At footnote 115 on p 222-223 of the CLR.
Defendants Closing Written Submissions at [148(a)].
Bellino v Australian Broadcasting Corporation (1986) 185 CLR 183 at 221; [1995] HCA 34.
Government Gazette number 132 of 26 June 2020.
Defamation Act, s 34.
Defamation Act, s 37.
McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 104.
Cassell & Co Ltd v Broome [1972] AC 1027, per Lord Hailsham CL 1071.
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60-61; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [60].
Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; [2014] NSWCA 90.
[2008] NSWCA 183.
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at [88]-[89].
In the House of Lords Cassell & Co Ltd v Broome, supra, cited with approval for application in defamation damages the distinction drawn by the House of Lords in Rookes v Barnard [1964] AC 1129 an industrial tort proceeding; in the High Court the classification, but not the limitation, to which Rookes v Barnard referred, was adopted in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40 at 122-123.
Defamation Act, s 34.
Defamation Act, s 36.
Nationwide News Pty Limited v Rush [2020] FCAFC 115
Praed v Graham (1889) 24 QBD 53.
Coyne v Citizen Finance Ltd (1991) 172 CLR 211; [1991] HCA 10 at CLR 237-238.
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31.
Sutcliffe v Pressdram Ltd [1991] 1 QB 153 at 184; cited with approval in Nationwide News Pty Ltd v Rush, supra
Triggell v Pheeney (1951) 82 CLR 497; [1951] HCA 23; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 379.
Defamation Act, s 35(2) and s 35(8).
Bracks v Smyth-Kirk (2009) 263 ALR 522; [2009] NSWCA 401 at [126]-[127]; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [121]-[122].