Enders v Erbas & Associates Pty Ltd

Introduction 1The plaintiff brings proceedings for defamation against two defendants, Erbas & Associates Pty Ltd, a consulting engineering company with approximately 20 employees, and Mr Ken Erbas, the managing director of the company. 2The matter complained of is an email dated 5 July 2010, the text of which is set out in paragraph 6 below, sent by the defendants to its employees, including the plaintiff, who at the time was employed by the first defendant as a mechanical design draftsman. Attached to the email is an extract from the first defendant's electronic work diary for the period 31 May to 11 July 2010. The plaintiff is not named or otherwise specifically referred to in the email's text, but her name appears in 18 entries in the attached electronic diary. These documents must read together. 3The defendants conceded the defamatory meaning of each imputation pleaded, if conveyed. The imputations pleaded by the plaintiff are: (a)The plaintiff is a malingerer. (b)The plaintiff unjustifiably took time off work by falsely pretending she was sick. (c)The plaintiff does not act fairly to her employer. (d)By unjustifiably taking time off work the plaintiff does not act fairly to other staff. (e)The plaintiff hurts management in the running of projects by unjustifiably absenting herself from work.

The matter complained of 4I shall first briefly describe the parties, the matter complained of, and to whom it was sent. The matter complained of is an email sent to all staff members on an electronic mailing list, namely all the employees of the first defendant. It contains an extract from the first defendant's office electronic diary, access to which, like the email, was limited to the employees of the first defendant. (The entire electronic diary from for 2012, which can only be read on the first defendant's computer equipment, was not discovered by the defendants until the day before the hearing, and the plaintiff objected to its tender.) 5The first defendant's electronic office diary was accessible to all staff through their office computers. Staff consulted it to add in, or check, their own and/or other staff absences on sick leave and holiday leave, as well as late arrivals to (or early departures from) the office. Meetings outside the office and use of office cars or other valuable equipment (e.g. cameras) were similarly recorded, either by staff themselves, or by the receptionist, Ms Montemayor. 6On Monday July 5, 2010, the second defendant, according to this diary, had to attend a meeting outside the office. He did not do so. Instead, he sent the matter complained of, in the form of an email with an attachment from the diary, to all the first defendant's employees: "To All, In one month, I quickly counted 24 sick days, 21 latecomers and 26 days of holidays as attached. This is the equivalent of 3 people not here continuously throughout the month. This also means that the rest of the people here will be doing their jobs so that we can produce adequate [sic] to pay everyone's salary. This is not fair to the company and the ones who come on time every time. We will be looking at this very seriously in the next [sic] days. It costs us big dollars per day of productivity. This is not acceptable. Today only, 5 people sick and 1 on holidays. It hurts management to run the projects. We will talk about this at our first [sic] staff meeting." 7The attached extract from the electronic office diary for the period Monday 31 May to Friday 11 July 2010 contained entries setting out each day on which staff members came to work late, were off sick, or on holidays. Mr Erbas circled these entries with a yellow electronic highlighter (one or two entries were missed, or wrong, but it was not put to me that anything turned on this). This is the data upon which the calculations referred to in the email above are based. 17 of the 24 sick days were taken by the plaintiff. The plaintiff had no absences from work on holiday leave out of the 26 holiday leave entries. The plaintiff was 1 of the 21 latecomer entries noted in this diary extract. 8The "staff meeting" referred to in the matter complained of was a regular part of office management (it was accepted by both parties that the reference to "first" in the final line of this email should be read as "first available", or "next"). These meetings were occasions for management and staff to highlight problems the company was having. The second defendant was largely responsible for the agenda. Issues regularly discussed included productivity and lateness.

Particular features of the matter complained of 9The following features of the matter complained of may be noted: (a)The plaintiff is not referred to specifically in the email but in the attached electronic diary extract, a publication the accuracy for which the staff members were responsible (T 87, 102), in that they could put the entries in themselves. This means that the plaintiff played, or could play, a role in either authorising or actually publishing entries in relation to herself as to any absences, holidays, late arrivals and the like. Every one of the office staff who received the matter complained of was able to add entries in this fashion. This means that the plaintiff and the defendants were not only all recipients of the matter complained of, but also took part either in publishing or authorising the office electronic diary (Tobin & Sexton, Australian Defamation Law and Practice at [5012]; Trantum v McDowell (2007) NSWCA 138 at [45]ff; David v Abdishou [2012] NSWCA 109 at [385] ff). In addition, the fact that this is an intra-company communication raises the issues discussed by Giles JA in State Bank of NSW Ltd v Currabubula Holdings Pty Ltd (2001) 51 NSWLR 399 at [12]] but, as publication issues were dealt with in an informal application in the Defamation List, I was not addressed on these issues, and need only note them. (b)The imputations are asserted to arise by inference from the sheer number of times that the plaintiff's name was circled (17 times out of 24) in relation to sick leave. The plaintiff's name was not the only one circled, although it was the most frequently circled for sick leave. There were many other staff absences, and the reasons for all of these are noted in the diary. The diary was for the weeks immediately prior, and including, the week it was published. This was thus a publication to each member of a group of about 20 staff members where the complaint related to recent absences from work by members of that group, which means there is a context of prior knowledge by recipients of the content of the diary, office procedure and personal knowledge of the events in question. (c)An additional claim of "republication" by the plaintiff is brought for publications by her to friends and to medical staff: Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364. This artificial and poorly drafted claim added to the complexities of the legal issues and evidence.

The issues in these proceedings 10The issues in these proceedings are: (1)The nature and extent of the publication and whether the imputations pleaded are conveyed and defamatory. (2)Whether any of the defences (qualified privilege at common law and pursuant to s 30 Defamation Act 2005 (NSW) ("the Act") and the defence of unlikelihood of harm pursuant to s 33) are made out. Although the publication describes the conduct of those criticised as "not fair", and similar wording is picked up in two of the imputations, no defence of honest opinion is pleaded. (3)Damages. 11I shall deal first with issues relevant to publication and republication.

The role of disputed issues of fact in the determination of issues of publication and defamatory meaning 12It is not uncommon for there to be disputed issues of fact about identification or context in relation to meaning; evidence of this kind was not unfrequently called at s 7A jury trials under the repealed legislation (Defamation Act 1974 (NSW)). However, the disputed issues of fact alleged to be relevant to publication and identification, such as whether or not the recipients of the publication knew the reasons for the plaintiff's absences on sick leave, were not identified or defined with precision by either party to the litigation (cf. Morgan v John Fairfax & Sons Ltd (1990) 20 NSWLR 511 at 517, 526 and 538-40). 13The plaintiff first challenged, as to publication and meaning, as well as to the defences, whether the reason for her frequent absences (about one week in three, prior to the matter complained of) noted as "sick" leave in the office diary, would have been known to the recipients. The plaintiff's evidence was she only told the second defendant, Mrs Erbas (the second defendant's wife), Mr Parissis, Mr Martin and Ms Montemayor (T 13, 57 and 58) that she was having treatment for breast cancer. She denied telling other staff members. The plaintiff also challenged the accuracy of the work electronic diary, asserting that some of the days she is noted as "off sick" were days on which she had been told to stay home by management when she was well enough to work. This evidence, and the fact that the second defendant was noted as being out of the office at a meeting at the time he was writing the matter complained of, was submitted to be evidence that the diary was not accurate. 14Errors in the matter complained of, or the knowledge of the recipients of the reason for the plaintiff's sick leave absences, may arguably be relevant to context, and thus to meaning: Younan v Nationwide News Pty Ltd [2012] NSWSC 1528; Palace Films v John Fairfax [2012] NSWSC 1136. Mr Evatt submitted that I should accept the plaintiff's evidence that the reasons for her ill-health were not widely known and that, even if they were, lack of precise information would mean imputations of "malingerer" and unjustifiable absences from work were conveyed. However, the parties' submissions did not delineate the relationship (if any) between these disputed issues of fact and issues of publication and meaning. 15I have made findings about all disputed facts, as they are relevant to the defences. I have not applied these findings of fact to the determination of meaning, firstly because of the failure to plead any such extrinsic or disputed facts, and secondly because I have made factual findings contrary to the plaintiff's assertions. While the matter complained of was published to persons with extensive knowledge of the factual background, it must ultimately speak for itself, in terms of what meanings are conveyed.

Extent of Publication 16Issues of publication need to be dealt with before I can determine capacity and defamatory meaning, because of the manner in which publication has been pleaded and particularised. 17The statement of claim states that these imputations were published to all employees of the first defendant, who are named in the particulars set out in the statement of claim, with the proviso that further particulars as to the identity of the persons to whom the matter complained of would be provided after discovery and interrogatories. This suggests such additional persons would be persons then unknown to the plaintiff. No such claim has, however, been made. 18As to liability for publication, the plaintiff does not differentiate between the defendants. During the trial the defendants conceded that no challenge would be made as to any vicarious liability issues in relation to the first defendant. Publication of the email by the defendants to the first defendant's employees on 5 July 2010 is a straightforward issue. 19However, there is a claim of additional publications made, not by the defendants, but by the plaintiff, headed "Particulars of Republication (Bracks v Smythe-Kirk [sic])", which was added to the second further amended statement of claim filed following informal argument on issues apparently relating either to identification or publication before Elkaim SC DCJ on 7 October 2011. These particulars recite that the defendants are liable for the plaintiff's "involuntary publications which were the natural and probable consequence of the defendants' initial publication". Four publications of this kind are identified: (a)The plaintiff was "compelled to show a copy to her friends Gabrielle Link and Joanne Hill so as to obtain their support and comfort and to her foster son Tom McAuley (aged 21) and his girlfriend Maggieanne Stephenson"; (b)The plaintiff was "so upset by the material [sic] complained of she was compelled to contact the NSW Cancer Council and told them about the email"; (c)The plaintiff also "told her oncologist", her two chemotherapy nurses "about the email"; and (d)The plaintiff told a friend named Boris Katic "about the email". The purpose, in the case of Mr Katic, was to obtain his "comfort and support". There is no explanation in the pleading for the reason for telling the other unnamed persons. 20No date is given in the amended pleading as to when these publications were made, although according to the evidence it was some time prior to September 2010 (T 40 - 41), more than a year before these additional publications (or republications) were incorporated into the pleadings. Any claim of publication (or republication) needs to be specific as to time and within the limitation period (see Emmerton v University of Sydney [1969] 1 NSWR 83; Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676), but no limitation issue has been raised by the defendants. If these are additional claims for "republication" of a defamation (cf. Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWSC 364), as opposed to matters going to assessment of damages, they have not been properly pleaded: Bracks v Denoon (Supreme Court of New South Wales, Nicholas J, 14 December 2006). 21In relation to the "republication" particulars referred to above, the statement of claim (as amended on 7 October 2011) sets out that the plaintiff said the following words on each of these occasions: "My employer has sent an email to everyone at work. He says I'm a malingerer, that I'm faking my illness to take time off, that as a result I'm not being fair to him and my co-workers and I'm hurting management running projects. I don't understand. It is so unfair. They know I have cancer. They approved me taking time off to get treatment. I told them I wanted to keep working but they said take the time off." 22The plaintiff was not asked about these statements about each of the "republications" in examination in chief. Mr Evatt, after the plaintiff's evidence in chief, conceded (T 54) he did not press this claim in relation to Ms Link or Ms Hill (see the particular set out at 19(a) above) or to the NSW Cancer Council (see particular 19(b) above). This would leave the publication to Ms Stephenson and Mr McAuley (see particular 19(a) above) and to the unnamed persons in particulars 19(c) and 19(d) above. 23The plaintiff was cross-examined as follows: "Q. Now when you told these people about the statement of claim in this case says that you spoke to some people. They're set in paragraph 11 of the second further amended statement of claim, and it says that you told people "My employer has sent an email to everyone at work. He says I'm a malingerer" Is that what you told these people; did you use that word "malingerer:? A. I probably used yeah I might have used the word malingerer, bludger. It all means the same thing. Slacker. Q. Well you go onto say, "that I'm faking my illness to take time off" is that what you told these people? A. That that's what it felt like. I was made to feel like I was faking my illness to take time off. Q. Well it says in the second further amended statement of claim at paragraph 11 that that's what "my employer has said. He says I'm a malingerer". He never said that did he? A. Well that's what the email suggests. Q. That's what it suggests but you say you told these people that's what he said, is that right? A. I told these I showed these people the email. Q. They all saw the email did they? A. Yes. Q. And they all knew that you had cancer didn't they? A. Who is "they"? Q. All the people that you showed the email to. That is, the ones we've just discussed, your friends and family, the nurses and the doctor? A. I didn't show the nurses the email. Q. They [sic] didn't show the nurses the email? A. No. Q. So did you tell the nurses then that he says, "I'm a malingerer"? A. Yes. Q. And "Faking my illness"? A. Yes. Q. That's not what he said was it? A. Well that's what the email suggests. Q. And they all knew you were A. and that's what I felt Q. Sorry. Are you finished? That's what you felt? A. Mmhmm. Q. Now they all knew that you were sick didn't they? A. The nurses, yes. Q. And your friends and family knew that you were sick? A. Yes. Q. So that it wasn't an unjustified sickness, was it? Sorry, it wasn't an unjustified absence of leave? A. No. Q. And they knew that didn't they? A. Yep. They knew I had cancer if that's what you're asking. Q. And they knew that when, if they were told "that the boss has sent an email to everyone at work and he says I'm a malinger and I'm faking my illness" they knew that wasn't true didn't they? A. Of course they knew that wasn't true. Q. Of course they knew that wasn't true, is that correct? A. Yeah." (T 126-127) 24The circumstances of each of these publications being made involved the plaintiff negating the content of the email, if the email was shown (for example, it would appear that it was not shown to the "nurses" at all). It is unclear whether the diary extract was also shown on each occasion. The plaintiff's explanatory words form part of the matter complained of. In those few instances where the recipient actually received the whole of the matter complained of to read, there would be a question of bane and antidote. 25Some of the recipients (Ms Stephenson (T 189-190), Mr Kotic (T 147-150), Ms Link (T 140-146)) gave evidence about these occasions. The few details which emerged in the evidence of these witnesses were inconsistent with the particulars of publication provided in the statement of claim; for example, contrary to what was particularised, Ms Stephenson said she did not see the email (T 191), whereas Mr Katic, identified in the statement of claim as someone who did not see the email, claimed he did (T 148). 26There are two problems with these additional claims. The first raises the same difficulty as occurred in Miller v Associated Newspapers Ltd [2012] EWHC 3721 (QB) at [121], where the plaintiff pleaded publication by other newspapers as a repetition of the sting, either as separate matters complained of, or by way of damages. In Miller, the publications were in writing, but the claim suffered from the same vice as the plaintiff's claim in these proceedings, namely that neither the words of the matter complained of, nor the meanings which the plaintiff pleaded as arising, were identified with the precision necessary for a publication the subject of defamation proceedings. 27Sharp J concluded: "First, Mr Miller relies on repetition of the sting complained of in 5 subsequent articles published in the Daily Mail. Whether it is legitimate do so is a matter of some debate. In Collins Stewart v Financial Times Ltd [2006] EMLR 5 at [26] and [27] Gray J expressed the view that there were sound reasons of principle and practice why a claimant should pursue a separate complaint in respect of subsequent articles rather than relying on them in aggravation of damages. The editors of Duncan and Neill on Defamation (3rd edition) on the other hand after referring to that decision, submit that if a claimant were to seek to rely upon later publications as aggravating the damages (rather than by way of separate causes of action) the court would decide what is required to do justice between the parties, using its case management powers. It seems to me as a minimum that normally the words complained of should be specified, if not actually set out, as should the meaning which the claimant says should be attributed to them. The practical difficulty is that this wasn't done here though the Defendant said in its defence that Mr Miller should do so. Further, as Mr Warby pointed out, there was no reconsideration of this part of the claim following the ruling on meaning; and the Defendant does not accept these articles bear the meaning the Article bears. I do not think the answer is as Mr Barca suggested that the Defendant did not apply to strike out this part of the claim, since the onus is on the claimant to make good a claim in aggravation of damages. I have concluded therefore that I should focus as did the parties, on the Article, and the damages flowing from its publication." 28The second problem is whether publications of this kind can be considered to be "republications" at all. In State Bank of NSW Ltd v Currabubula Holdings Pty Ltd (20010 51 NSWLR 399 at [106] Giles JA explains Hunt J's analysis (Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364) of the very limited circumstances of liability by a defendant for a publication made by a plaintiff, noting with approval Hunt J's statement that publication, rather than republication, was the correct terminology. 29It is common for plaintiffs and their family members or friends to give evidence of the hurt to feelings the plaintiff suffered when a defamatory publication is made. To elevate these discussions to a claim of fresh publication, for which damages may be claimed, is novel (Toomey v John Fairfax & Sons Limited (1985) 1 NSWLR 291 at 293) and should be possible only in the very limited circumstances explained by Hunt J in Jones, and by Giles JA in Currabubula, supra.. 30The parties' submissions do not address the issue of whether these were claims for liability, quantum or simply hurt to feelings. I propose, in the absence of clear pleadings and appropriate submissions, to adopt the same approach as Sharp J did in Miller, namely to focus upon the matter complained of which was circulated by email to the employees of the first defendant, and to regard the circumstances in which the plaintiff sought comfort from her friends and those responsible for her medical treatment, which included telling them about (or showing them) the matter complained of, as being relevant only going to the plaintiff's hurt to feelings. 31In the event that I have erred in this finding, I have included a consideration, in relation to each of the defences pleaded, for these additional publications. 32Having determined the nature and extent of the publication as being the email of 5 July 2010 which was circulated electronically to the plaintiff and her fellow employees, I now consider the issue of whether the imputations pleaded by the plaintiff are conveyed and defamatory.

The imputations conveyed by the matter complained of 33The general principles in relation to distilling meaning from an alleged defamatory publication have been settled law for many years in most common law jurisdictions. Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, 2nd ed., (Carswell) at [5.1] (footnotes omitted) broadly outlines these principles as follows: "Words, in order to be actionable, must be understood in a defamatory sense. In construing the language used, a court would avoid any forced or unreasonable interpretation. Words will generally be given their ordinary meaning unless they have some special, technical or colloquial meaning and would be understood in that sense by those to whom they were published. The defamatory meaning must be one which would be understood by reference to an ordinary and reasonable person, and not a meaning by someone who may be naturally inclined either to attribute the best or worst meaning to words published about the plaintiff. In determining the meaning to be attributed to the words, the court will take into consideration all the circumstances of the case including any reasonable implications the words may bear, the context in which the words were spoken, the audience to whom they were published and the manner in which they were presented. It is not necessary for the persons to whom the words were publish to understand them in a defamatory sense if a reasonable person would do so. The fact that the defendant did not intend to defame the plaintiff, or had a honest belief in the truth of his or her communication, or was moved by the most laudable of motives, is no defence if, in fact, the words defamed the plaintiff." 34These general principles had been the subject of refinement in a series of Australian decisions (Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164-167; Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300 at [19]-[20]; Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460), in relation to both the repealed legislation and the Uniform Defamation Act, as explained in Tobin & Sexton, Australian Defamation Law & Practice (LexisNexis) at [4,001]-[4,300]. This task is "a matter of law for the court" (Stubbs Ltd v Russell [1913] AC 386 at 393), and not an issue of disputed fact. The correct approach of the judge at the trial (as opposed to the approach to an application to strike out the imputations as a summary matter) is helpfully summarised by Nicholas J in Korean Times v Pak [2011] NSWCA 365 at [56]-[76]. In Korean Times v Pak, as was the case here, the defendants challenged the capacity of all imputations pleaded to arise. 35The defendants' submissions assert that each of the imputations neither expressly nor impliedly conveys any of the stings (at [3.11], [3.15], [3.18], [3.24], [3.28]) as the publication "does not state" (at [3.10], [3.11]) these matters, or "expressly" refer to the plaintiff ([3.16]). As Nicholas J explains in Korean Times v Pak, supra, and Tobin & Sexton point out at [4,100], the meaning conveyed to the ordinary reasonable reader by a publication, and its defamatory nature, may be a matter of impression. It is not necessary to analyse to the last word all that goes to create that impression (Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6 at 12 per Fox J). It is sufficient for the plaintiff to establish that it is more likely than not that such a meaning was conveyed to the reader even though "a lawyer or someone skilled in formal logic could have explained to the ordinary man that there were other possibilities" (Gorton v Australian Broadcasting Commission, supra, at 12). 36As previously noted, the plaintiff's submissions on capacity refer to the inaccuracy of notations as to the plaintiff being absent (31 May - 6 June) when she was fit to work is relevant to the issue of meaning: cf Korean Times v Pak, supra, at [67] - [70]. In addition, it was claimed that only a few of the recipients knew that the plaintiff had cancer, and that this was relevant to the imputation of malingering. Findings on disputed issues of fact are generally irrelevant to the issue of defamatory meaning, and the plaintiff's submissions to the contrary (written submissions, [12]) do not specify how these errors cause defamatory meanings to arise. In any event, as is set out in more detail in my findings of fact, I am satisfied that the office diary was intended to be, and was, accurate in that the entries in relation to the plaintiff were correctly made and that "errors" in the diary (such as the second defendant not being at the 5 July meeting) are irrelevant to the issues in this case. 37The submissions of the plaintiff about what the ordinary reasonable reader would make of the publication contain a number of value judgments (such as the assertion that even those who knew the plaintiff had cancer would think she was malingering, or that Mr Erbas must have known something about the plaintiff that the staff members did not). The rhetorical question is asked: "Why else would Mr Erbas circle her name 17 times for sickness" (written submissions, [19]), when the real reason for her absence was, the plaintiff claims, because Mr Parissis prevented her from coming to work, even though she was fit to work. 38Although these opinions are attributed by the plaintiff's submissions to the ordinary reasonable reader, they in fact reflect what the plaintiff complained about in her evidence of hurt to feelings. The understanding of the defamatory matter by the plaintiff, or by the person or persons to whom it was published, is irrelevant to the issue of meaning. As Tobin & Sexton explain at [4,060], "there is no place in the law of defamation for the egg-shell thin ego. A plaintiff may be particularly, indeed more morbidly, sensitive to criticism of himself. The fact that he understands a publication in a particular defamatory sense is in no way probative of whether he has been defamed." The test is one of the ordinary reasonable reader: Korean Times v Pak, supra at [56]. 39Both parties agreed that a significant impact upon the capacity of the matter complained of to convey the imputations can be made by the mode or manner of publication (Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 161; Channel Seven Adelaide Pty Ltd v S, DJ [2006] SASC 10 at [15]). The context of the publication is also an important issue to take into account. Professor Brown at [5.3(1)(a)] explains: "Particular attention will be given to the time when the words are read or heard, to the mode or manner of the publication, and to the community in which they are published. If the defamatory meaning is latent and depends upon the existence of extrinsic facts to be understood in a defamatory sense, the plaintiff must prove that the persons to whom the words were published were aware of those facts." [Emphasis added]. 40The context may be provided by the publication itself. For example, in Un Dok Pak Nicholas J took into account, when determining meaning, that the article was short, and the headline, photograph and opening paragraph all referred to the plaintiff. The ordinary reasonable reader's impression that the conduct being investigated by the ICAC was that of the plaintiff was thereby conveyed. 41However, factors outside the publication may also have a bearing, such as the relationship between the publisher and recipient (e.g. Barach v University of New South Wales [2011] NSWSC 99 - conversation between two academics). In the present case where the close relationship between the plaintiff and the recipients arose from the fact that they all worked in the same office, this relationship may have some background significance as context in relation to the meanings pleaded. 42The ordinary reasonable reader does not parse and analyse the publication for strained meanings. At [5.3(1)(b)], Professor Brown cites the warning of Mason J in O'Malley v O'Callaghan (1992) 1 Alta LR (3d) 88 at 91 (QB) that "[t]he danger to be avoided is the dissection of an overall inoffensive whole into incriminating fragments". That warning is of particular relevance here; under no circumstances would the ordinary reasonable reader sit down and add up the number of absences for the plaintiff or indeed other employees; and I have not done so here. As Giles JA explained in State Bank of New South Wales Ltd v Currabubula Holdings Pty Ltd (2001) 51 NSWLR 399 at 404, "it is the broad impression which counts", not a factual analysis, and I have been carefully guided by these principles of "broad impression" in relation to each of the imputations pleaded.

Application of these principles to the matter complained of 43The plaintiff submits each of the imputations arises (written submissions, [10]) firstly because pages 2, 4, 5 and 7 of the electronic diary contain the plaintiff's name, which repeatedly is circled in yellow, and secondly because although the other employees' names are circled, her name is circled so many times for sick days. The plaintiff summarises the sting of the email as accusing "those who had the 24 sick days, those who were the 21 latecomers and those who had 26 days of holiday" as "not fair to the company and the ones who come on time every time" (written submissions, [11]). This is reinforced by the reference: "Today only, 5 people sick and 1 on holidays." 44The defendants have addressed me only on whether each imputation is conveyed; if conveyed, they rely on the defences of common law qualified privilege, statutory qualified privilege and triviality (written submissions, paragraph 1.4). The defendants have not submitted that the imputations, if conveyed, are incapable of being defamatory (the principles for which are discussed in John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60).

Imputation (a) - The plaintiff is a malingerer 45The plaintiff submits that the ordinary reasonable reader was entitled to distil the meaning that the persons who had sick days, latecomers and staff on holiday were all acting deliberately against company interests. They were "not fair" both to "the company" and "to the ones who come on time every time". The five staff members away sick (and one on holiday) on 5 July were "hurting management". When added to the fact that the plaintiff's name was circled 17 times, this would mean that even those who knew the plaintiff was sick with cancer would think that the plaintiff was well enough to work and should have turned up for work to the office, and that her failure to do so was "malingering or unjustifiably taking time off work by falsely pretending her sickness was more debilitative than it was" (written submissions, [19]). This was why Mr Erbas circled her name 17 times - not because her name occurred 17 times, but to make this point. 46This is not the correct approach to analysis of the matter complained of. The correct approach is that taken by Nicholas J in Korean Times v Pak, supra. 47The matter complained of is addressed "To All", and attaches an extract from the electronic diary kept by staff for the purpose of recording their absences from the office. With one exception (the reference to the 5 persons away sick, and 1 on holiday, on 5 July) no specific incidents are referred to. The plaintiff's name is not the only one circled; every absence from the office has been circled and added into the calculations referred to in the opening paragraph of the matter complained of. 48The language and structure of the matter complained of make it clear that the complaint is addressed to all staff, not just those whose names are circled, and that the problem is an ongoing one, not something limited to the time period for the electronic diary. The ordinary reasonable reader would infer that this is the problem which the defendants want addressed at the next staff meeting, not failure by one or more employees to attend work when they should. The problem is one of timing clashes, not misuse of holiday or sick leave, or tardy arrivals for no reason, and it involves the whole office; the diary extract is attached as an example. The issue, as the 5 July reference makes clear, is one of coordination and planning, and a topic to "talk about" at the next staff meeting. 49The ordinary reasonable reader with no knowledge of anyone's reasons for absence beyond what is in the matter complained of would not assume, without more, that the reasons for the plaintiff's many absences was that she was malingering as opposed to being away sick for the reason stated. This imputation is pitched too high, and is not conveyed. 50If I have erred in my rejection of the special meanings Mr Evatt asserts arose because other employees did not know she had cancer, this pleaded meaning would similarly not be conveyed. 51I note that, if this imputation were conveyed, it would be defamatory.

Imputation (b) - The plaintiff unjustifiably took time off work by falsely pretending she was sick 52This is the imputation of an "act" which a plaintiff may plead in addition to an imputation of a "condition" (Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980)). 53For the same reasons that I have found that imputation (a) is not conveyed, imputation (b) is not conveyed. There is nothing in the matter complained of to support and imputation that the plaintiff falsely pretended to be sick. 54I note that, if this imputation were conveyed, it would be defamatory.

Imputation (c) - The plaintiff does not act fairly to her employer 55The defendants argue that not only is this imputation not conveyed, but that the matter complained of does not reveal how the plaintiff is said to have acted unfairly to her employer. However, the conduct that is "not fair" (line 35) is that the plaintiff's absences are contributing to the equivalent of three people not being in the office continuously throughout the month. That means that those who "come on time every time" suffer, as does the company, as this conduct "cost us big dollars per day of productivity". The plaintiff is one of the persons identified in a class. In addition, she is one of the five persons who was sick on the day in question. As her absence on leave "hurts management", such conduct is clearly identifiable. 56The ordinary reasonable reader would have no difficulty identifying the plaintiff, particularly since she is one of the "five people sick" whose conduct "hurts management" and is "not fair". 57This imputation is conveyed and defamatory. Imputation (d) - By unjustifiably taking time off work, the plaintiff does not act fairly to other staff 58The key word in this imputation is "unjustifiably". If the plaintiff had been a regular latecomer, or in some way conducted herself "unjustifiably", as opposed to being away on sick leave, this imputation would be, to the ordinary reasonable reader, capable of arising. 59The defendants submit that the ordinary reasonable reader would think that at least some of the people on the calendar were genuinely sick. I agree with this submission. However, I do not agree with the conclusion that the defendants draw (written submissions, paragraph 3.25) that "in the absence of an expressed reference to the plaintiff" this imputation is not conveyed. The generalised impression of the sheer number of times that the plaintiff's name is circled is such as to give raise to the imputation that the plaintiff's absences from work, whether those reasons are fair or not, are unjustifiable. 60The unjustifiable nature of the absence is that it is taken at a time when others are also absent, not that the absence itself was unjustified. Reading the matter complained of as a whole, the general objection is that the level of absenteeism, however good the reasons may be, is unjustified as a whole, and that this is not fair to the staff who are at work on time, every time. 61This imputation is conveyed and defamatory.

Imputation (e) - The plaintiff hurts management in the running of projects by unjustifiably absenting herself from work 62The imputation conveyed very clearly in the second paragraph of the email is that the high level of absenteeism is "not fair to the company" and that it "hurts management" (paragraph 3 of the email). This is referable to the plaintiff as she was one of the five people off sick on the day referred to. This imputation differs from the imputation of unfairness to other staff (imputation (d)). 63Again, this is a "group libel" case where the objection is to the conduct of more than one member of staff. While the precise parameters of the class may be difficult to delineate, the "five people sick and one on holidays" on 5 July, which would include the plaintiff, is clearly identified as one of those "hurting" the company by the many circled absences she had taken on sick leave. 64This imputation is conveyed and defamatory.

Conclusions concerning imputations 65I have found imputations (c), (d) and (e) to be conveyed. I have, however, in relation to the defences, noted what my findings would have been had I found that imputations (a) and (b) were also conveyed. I have also noted what my findings would be in relation to each of the asserted "republications", assuming that each of those republications was capable of conveying some or all of the imputations pleaded.

The defences 66The defences pleaded are qualified privilege at common law, qualified privilege pursuant to s 30 of the Act, and a defence under s 33 of the Act. I shall first set out the circumstances leading to publication of the matter complained of.

Factual background 67The plaintiff was employed by the first defendant as a mechanical design draftsperson (T 207). The first defendant was set up in 1997 (T 206). At the time it was a consulting engineering company providing engineering design and drafting services to builders, architects and developers. Until 2008 the first defendant provided mechanical engineering services only, and subcontracted hydraulic and electrical engineering work (T 207). Following the global financial crisis, the first defendant changed its direction and became a multi-disciplinary engineering company in 2008 (T 207) and the number of mechanical engineers and design draftsmen decreased. 68There were 12 mechanical engineers employed in 2008 (T 208) but by the end of 2009 the number of mechanical engineers and design draftsmen had decreased to 6 from redundancies and resignations (T 208, 214 and 215). The plaintiff's position as a mechanical design draftsperson was affected by these changes, although she did not know it at the time (T 216-217). A decision was taken by the first defendant's management, which included the second defendant, to make the plaintiff redundant, but before she could be informed of this, the plaintiff told Mr and Mrs Erbas that she had been diagnosed with breast cancer. Accordingly, Mr Erbas decided not to tell her about this decision and to delay implementing any decision about the plaintiff's redundancy (T 216-217). 69The plaintiff's evidence was that only a few people in the office knew she had cancer, namely Mr and Mrs Erbas, Mr Parissis (T 13), Mr Martin (T 57) and Ms Montemayor (T 58). She denied that other staff knew. She particularly referred to Sam Shanehsaz (T 58), although this was contradicted by Mr Shanehsaz in his evidence (T 313). 70After the plaintiff's operation she had to undergo chemotherapy. After her first session of chemotherapy she shaved her head and wore a bandana (T 59). She was absent one full week in three prior to the matter complained of being sent. As is set out in more detail below, I have no difficult accepting the evidence of the defendants' witnesses that everyone in the office knew that the plaintiff had had cancer and was having ongoing treatment. 71The plaintiff's claim that others in the office did not know why she was sick was one of a series of issues upon which I found her evidence to be improbable, unreliable or both. 72The first of these relates to the circumstances in which the plaintiff first read the matter complained of. Since the plaintiff's claim is for hurt to feelings, the circumstances in which she first learned of, and read, the matter complained of are matters of some significance, and unreliable or inconsistent evidence as to the circumstances may lead to adverse findings on credit for the reasons explained by the Court of Appeal in Jones v Sutton (No 2) [2005] NSWCA 203 (for a practical application of these principles to the facts in a defamation claim, see Bushara v Nobananas [2013] NSWSC 225 at [29] - [61]).

The email of 5 July 73The second defendant described how he came to write the matter complained of as follows: "A. I wanted to talk about this because the people who are obviously in the office on that day had to take more load, some of them had to stay back, it was a genuine cry from the employer "Help, we have to make sure we finalise these jobs" and we actually discussed this at the meeting so that we can change the deadlines for all those projects so that we can still give what the client asks. If we can't deliver those things clients will just not give us any more work and there wont be any employment for anybody." (T 226) 74He was asked why he mentioned sick days, and replied: "A. Sick days, if it is unknown to us sometimes we do know because people are saying "I'm going to be sick for three days" that is known days so we actually arrange those days for other people to complete the work. If it is happening during the day, which happens at any time, they call during the day and those are the ones that we have to handle that day and make sure that as soon as we hear we actually tell other staff to make sure they finish the work or call the client saying, "We cannot deliver this work, can we issue it a day later." So it takes a lot of responsibility to make sure that the projects are delivered. It takes a lot of responsibility of the others while working in the office to deliver the projects basically." (T 226) 75The problem concerning holiday leave arose, he said, as follows: "A. Normally they come and tell us weeks and weeks ago [sic]. I think according to our contract a month ago but sometimes they just come the next day or sometimes they ever call on the spot and we don't want to say no to people and they call saying, "I want to take a holiday today because" of something and I just say, "Fine" and we write it in the calendar that day or the day before." (T 226) 76The second defendant said he was particularly concerned about unplanned absences such as late arrival at work (T 261-262): "Q. But do you agree that whether they're sick or latecomers, they were reporting sick, that the sickness of those four people caused you to say this is not fair to the company and the ones who come on time? A. That wasn't to do with the sick people. It was for the latecomers. For the sick people and latecomers, we had to rearrange the deadlines. 77It was the cumulative effect of these absences that caused problems: "Q. What's the cry from the employer; so, you were making a cry. Is that right? A. Well, it's a genuine statement from the owner, basically, telling the rest of the team that we have to do something about this today, because five out of six drafts people were sick and off that day, and it is too hard for any business to accommodate five out of six people who are doing exactly the same job. Q. If it was a cry from the employer, it shows the employer was upset, does it not? A. No, it was just a request for the rest to make sure they actually work a little bit harder to deal with the job." (T 264) 78The second defendant's evidence was that when he wrote the email, he was not upset, but that management was hurt, and that he was hurt, by so many absences: "Q. But you were upset? A. Again, I'm answering the same question again: no, I wasn't upset. Q. Why did you say you'd be looking at this very seriously in the next days? A. I'm a very serious person, and I have to make sure they are done. People are relying on me. I have people in the office. I have clients. And you have to again, I'm saying the same thing again and again because you're asking the same question again and again. Q. "Today, five people sick and one on holidays. It hurts management to run the projects." A. Yes, it hurts me. We have to make sure the jobs are done. I think Sylvia would understand it being one of the team players in the office, she knows it much better than anybody else in the office. Q. But she was genuinely sick. Why did you send the email to her? A. It was not sent to her. When I sent it to Erbas, it just goes to everyone. I don't actually write their names one by one. It's one email; it just says Erbas. Actually line you send it, as you can see, it says to Erbas & Associates; you click there, it goes to everyone. There is no name there. Q. Look, I'm going to put t you you're not being frank with the Court, and that when you sent this email A. This is a serious allegation, your Honour. Q. Not particularly serious." (T 256) 79Mr Erbas' evidence was that, after the 2008 global economic crisis, the first defendant's profits began to drop, and it was necessary to change the nature of its work and began providing mechanical engineering services only. The number of mechanical engineers and design draftspersons the first defendant employed began to decrease, from 12 mechanical engineers in 2008 (T 208) to six. These reductions in staff numbers came from redundancies and resignations (T 208, 214 - 5). 80Mr Erbas said (T 216) that a decision had been made in late 2009 to retrench the plaintiff, but it was not implemented because in February 2010 the plaintiff was diagnosed with breast cancer (T 216 - 7). Surgery and chemotherapy were scheduled. This required the plaintiff to take substantial absences from work, which were noted in the office electronic diary as "off sick". He said that he had been supportive of the plaintiff's ill-health from the time she first told him about it.

When did the plaintiff first read the email of 5 July? 81The plaintiff described how she came to hear of (but not read) the email on 5 July when a fellow employee whose name she could not recall telephoned her at home: "Q. I want to take you to 5 July, that's a Monday. A. Yes. Yes. Q. Where were you? A. I would have been at home because 6 July was my sixth chemo. Q. Chemo day? A. My last chemo, yeah. Q. Were you willingly at home? A. No, I would have preferred to work. Q. You didn't work because? A. Because I was asked not to work on the Monday before my chemo. Q. By Steven? A. That's correct. Q. Did anyone tell you anything on that day? A. Yeah, somebody contacted me. Q. When? A. On the Monday about an email. Q. What did they say? A. They just said that there was an email about the amount of sick leave and everything and my name was there the most and they thought that was unfair. ... Q. Do we know the name of the person who rang up? Do you know the name of the person who rang up? A. I can't remember the name of the person who rang up. Q. Was it from work? A. Yes. Because they rang me up to ask me about something at work, but I can't remember. Q. Was it a male or a female? A. It was a male. Definitely a male. ... Q. But you didn't get the email, is that right? A. No, I hadn't seen the email as yet. Q. When did you see it? A. I saw the email on the 15 July. Q. Yes, because you didn't go into work that week? A. That's correct. Q. When was the next time you went to work? A. On 15 July. Q. Why didn't you go to work? Was that a Thursday? A. Yes. Q. Why didn't you go to work on the 12th, 13th and 14th? A. I was sick." (T 22-26) 82The plaintiff was shown her Gmail account, which showed she accessed the work email on the day that it was sent (Exhibit 2). "Q. You sent a copy of the email, that is the matter complained of, on 5 July to that email address, the Gmail address; isn't that correct? A. I'm not sure. Q. Well you say you're not sure. You've just told her Honour that you hadn't seen this email before 15 July, so which is it? A. Well I my I recall that I saw it on 5 July how could I have sent it on 5 on 15 July, how could I have sent it on 5 July? Q. And it says to slyenders@gmail, your Gmail address, correct? A. Yes. Q. And it's forwarding, you'll agree with me, the matter complained of, isn't that right? A. The email? Q. Yes, in what follows pages 2 and 3, you see that? A. Yep. ... Q. And you sent that, didn't you, Ms Enders, at or about the date which it bears; isn't that correct? A. Well I don't know if I sent that. I don't recall sending it. Q. Well isn't it the case that you did you saw that email on 5 July, didn't you? A. I don't recall. Q. And you forwarded other emails from work to your Gmail address, haven't you? A. I have. When I left the company I did, yes." (T 61 - 2) 83The date the plaintiff read the matter complained of is important, because the plaintiff's evidence was that as soon as she read the email, which she said was on 15 July, she when to see the second defendant and said she was upset by the email: "Q. Did you speak to Ken about it? A. I did. Q. What did you say to him? A. I went to Ken and I said: "Ken, you know my name shouldn't really be on this list because number one you know I'm sick, you know I'm having chemotherapy and you know, you know the reasons so I shouldn't be labelled as somebody being sick and being a slacker, you know, because I'm not a slacker. And as well as that, you know, there's days there that you've asked me not to come in as in the company and then I'm being told my name's written there as being sick, and I feel I'm being labelled for it and crucified for it" And he said he couldn't exclude me from it." (T 38) 84The second defendant's evidence at T 265 challenged this evidence as follows: "Q. Yes, Sylvia told you that she was upset by it? A. She never told me that, not once ever and I would have done something about it, definitely. Q. She spoke to you and asked you, in effect, why you wrote the email and included her in it? A. She has never spoken to me not once, she has not spoken to me anything with this email at all. Q. I put it to you that she did and I suggest you have forgotten about it? A. I would not forget anything like this, this is very important. If my staff comes and talks to me I certainly do something about it." 85The plaintiff had accessed her work emails and copied them into her Gmail account on other occasions. This included other documents relevant to her health problems: "Didn't you send other emails in September about your work? A. I'm not sure. I don't remember. Q. I'll show you a document? A. Mmhmm. Q. Do you recognise that as an email at the top that appears to have been sent from your Gmail address to another address of yours at OptusNet, do you see that? In September? A. Yeah. Q. It's forwarding an email from June, do you see that, 2010, 2 June 2010? A. It's very hard to read this copy. Q. Take your time. Do you agree that it is forwarding, in fact if you look over the page there's another email A. Well, yeah, it's from my Gmail account to my Optus account, yeah, so what's the point? Q. The question is, Ms Enders, that it is forwarding, below that there's a forwarded message A. Yeah. Q. do you see that line there, it says forwarded message? A. That's from Ilkay Erbas to me, to my Gmail account. Q. Isn't it to A. And it's CC'd to Steven Parissis, his email account at Erbas. Q. I see, and so it Ilkay is saying to you, this is on 2 June, do you see that? A. Yes. Q. "I hope you feel better now"? A. Yes. Q. "Everyone is sick these days"? A. Yes. Q. "Just stay at home and take care of yourself", do you see that? A. Yes. Q. "No good coming on Friday just for one day as it is the weekend"? A. Yes. Q. "Another two, three days of the weekend will make you feel better", do you see that? A. Yes. Q. She ends saying, "Wish you well. See you soon", do you see that? A. "As I am flying tomorrow for two and a half weeks. Will be back on the 21st, so I will pay you when I come back", yes. Q. "Wish you well" A. "Wish you well. See you soon", yes." (T 63 - 4) 86The plaintiff not only denied she was able to send emails to her home, but said she could not recall that she sent this email to herself. She denied she also sent the attached diary extract, although the email clearly shows an attachment of identical size (5,413 kilobytes) (T 72). 87Whether or not the plaintiff remembers doing so, the objective evidence of this document, the provenance for which is undisputed (in that it was discovered by the plaintiff), is that the plaintiff saw the matter complained of on the same day that it was published and forwarded a copy to her private email address, including the attached diary extract.

The 16 July meeting 88It was put to the plaintiff that she never complained to the second defendant on 15 July and that she never took up the opportunity to complain or raise the matter complained of at the 16 July meeting despite the matter complained of saying this would be discussed, and her own evidence that it was in fact discussed (T 74). She agreed (T 75) she had said nothing at the meeting, but insisted that she had spoken to Mr Erbas about the matter complained of. The plaintiff's personal diary contains no references to any such meeting (T 175). 89I do not accept the plaintiff's evidence that she did not see the email on 5 July. She clearly did, and sent a copy to her private email address. This means she did nothing about the email for 10 days, even though she claimed to be distressed by it. In addition, she failed to say anything about this email at the staff meeting. In those circumstances, I do not accept her evidence that she spoke to Mr Erbas about it. Mr Erbas' evidence, that if she had spoken to him about it he would have done something, is the evidence that I accept.

Office procedure for late arrivals and sick leave 90The plaintiff also denied any knowledge of concern by Mr Erbas at staff running late (T 84). However, when asked why she had telephoned the receptionist on 23 June to advise she would be 15 minutes late because of a traffic accident, she agreed there was a procedure in place for this information to be recorded (T 85). 91The plaintiff's evidence that she was fit to come into work (T 100) from 31 May to June 4 and did not attend work because she was told to stay away. However, when shown her sick leave form, she eventually conceded (T 152 - 3) that she had told her employers in an email on the following Tuesday that she had a very bad sore throat. 92The plaintiff's absence for this week was documented by a signed sick leave form. When shown her sick leave form for the period 31 May to June 4, the plaintiff at first attempted to deny that her signature appeared on it (T 153). Tender of the document was objected to, on the basis that she denied that it was her signature (T 154, line 40) and that the document had been provided only the day before the trial (T 155 line 12). In fact the document had been provided as one of 38 leave applications of the plaintiff, all signed, in item 5 of the defendants' List of Documents of 5 April. Mr Evatt vigorously objected to the tender, saying it was a "forgery" and he was "going to go to ICAC" (T 157). Mr McHugh SC then handed the whole bundle of sick leave applications to the plaintiff and asked her to mark the signatures which were not hers with a yellow sticker. The plaintiff marked three of these as containing signatures which were not hers, but further objection was then abandoned (T 161), and the documents tendered. 93If there had been claims of forgery in relation to discovered documents, this would be a serious matter. These documents were discovered by the defendant, and there is a procedure in r 17.5 UCPR which should be followed in such circumstances. It is not an allegation to be made lightly. 94These allegations of forgery do not reflect well upon the plaintiff's credit. Contrary to the plaintiff's claims that she was being marked down as being sick when she was not, she filled in sick leave forms, which I find accurately reflect what occurred. 95Another example of the plaintiff's tendency to exaggerate was her claim that her radiation appointments were after work, and that she could have worked full time while undergoing radiation treatments. Her evidence was that she was told by her employer to work half days during the time she was undergoing radiation when this was unnecessary. However, radiation appointment records were shown to be at times such as 3.25 and 2.40 pm. The plaintiff had to drive from the St Leonards office to the Prince of Wales hospital for this procedure. The arrangements she had with the first defendant to have this time off was contrary to her evidence that she was available to work. 96The plaintiff's evidence on these issues was evasive or inconsistent with contemporaneous documentation and I do not accept her as a witness of credit.

An evidentiary problem: the electronic office diary 97The plaintiff challenged the accuracy of the office diary, and in particular the description of her absences on certain occasion being described as being "off sick" when she was remaining home, she said, on the directions of her employer as there was no work for her. 98The defendants sought to tender the whole of the electronic office diary for an extensive period prior to the extract in the matter complained of in question. This tender was objected to by the plaintiff, on the basis of failure to discover the diary in accordance with orders made after two contested applications by the plaintiff for further and better discovery. The electronic diary suffered from the additional problem of being difficult to read in paper form, which meant it was necessary for the defendants to bring the necessary computer equipment to court to enable it to be read. 99I rejected the tender of the electronic office diary (other than the portion which was attached to the matter complained of) partly because of the failure to comply with earlier discovery orders and partly because of the difficulties in reading the document. The defendants have requested full reasons for my ruling in this judgment, and I now provide those reasons. 100Failure to discover a document does not make that document inadmissible at the trial, and the circumstances in which tender of a document will be rejected on such a basis must be compelling. This is particularly the case in defamation proceedings, where appellate courts have shown indulgence towards the tender of undiscovered material, expert reports and unparticularised evidence. Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 235 - 6 demonstrate this approach. In Andrews, when the defendant complained it was "unfairly prejudiced' by the tender of undiscovered material, Hutley JA stated that such prejudice could be remedied by an adjournment or, "in extreme cases", by aborting the trial. The burden of proving that the trial should be aborted lay on the party complaining of the failure to discover (Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 484 - 5, citing Andrews). These decisions are all the more persuasive as the difficulties of adjourning defamation jury trials are significant. 101The same consideration has been shown in non-jury trials. In Hewitt v West Australian Newspapers (1976) 17 ACTR 15, where there was the journalist under cross-examination admitted an undiscovered document was in his desk, the hearing was adjourned to enable him to find it. (The journalist was later fined $500 for refusal to answer questions, but the only consequence of his conduct was that he was not accepted as a witness of credit). In Quinlan v Rothwell [2002] 1 Qd R 647, where the matters complained of were published in 1988 and 1990, the plaintiff took until 2000 to comply with a 1994 order to amend the statement of claim and was similarly dilatory in compliance with orders for particulars and discovery. Douglas J struck the proceedings out for want of prosecution and failure to provide full discovery. The Court of Appeal set this order aside on appeal, although warning that "the former laissez faire attitudes of the courts... has ended" (at [29]). 102In Preston v Harbour Pacific Management Underwriting [2008] NSWCA 216 the appellant sought a new trial after the defendant in defamation proceedings had failed to discover a document Handley JA described as "of vital importance in the appellant's defamation action" (at [38]). The appellant sought a new trial. Handley JA noted that the appellant's former solicitor also had a copy of this document in his file, although the evidence was unclear as to how he had come by it. The appellant's default was similar, if not greater, and the application for a new trial was refused. 103English authorities have shown a particular degree of flexibility in relation to discovery where the documents in question are electronic, such as mobile phone records: Various Claimants v News Group Newspapers Ltd [2012] All ER (D) 37 (Mar). Mr Mulcaire was a private investigator employed by News Group from 1998 until 2006, when he was convicted of 609 mobile telephone voicemail interception offences. Proceedings were commenced by a large group of persons for damages and discovery of all documents for the period of Mr Mulcaire's employment was sought, on the basis that the documentation discovered (which was from 2001 onwards) was sparse. News Group successfully argued that "enough is enough" (at [91]) and that it should not be put to the trouble and expense of searching for mobile phone records and emails prior to 2001, especially since admissions were made by News covering the period 2001 - 6 and the essential question for damages was the hurt suffered by the claimants. 104What these cases show is that the court must consider complaints about late discovery or failure to discover in the context of the facts in dispute, and should look to the determination of the issues in question rather than seeking to punish a litigant for non-compliance with orders or professional obligations. 105In the present case, before these proceedings were sent to me for hearing, there was a contested application in the Defamation List for further and better discovery, resulting in the parties preparing a list of categories of documents. No judgment is available, but the issues discussed can be ascertained from the orders. Prior to the trial I heard a second application for further and better discovery and made orders accordingly: [2012] NSWDC 129. The defendants not only failed to include the electronic diary in response to those orders, but also served this lengthy document late, and in hard copy form only, despite it being difficult to read. 106This brings me to the next basis of objection, which is that the hard copy is difficult to read as portions of the diary are cut off. In order to look at the document in court, I asked for it to be sent to me electronically. However, the size of the document was such that the court server rejected it (T109). Attempts to view it in court were unsuccessful. Mr McHugh SC then told me that I would need the software on his clients' computer to read the document, and this was brought in the following day. He conceded that discovery of the electronic version should have been given (T 107). Unfortunately, when the computer was brought to court the following day there were further technical difficulties. The plaintiff submitted that in these circumstances the document should be rejected under s 135 Evidence Act 1995 (NSW) in that it was likely to cause confusion and delay, and the document was irrelevant to the issues before the court. 107This is a clear case where leave to tender an undiscovered document should not be granted. The failure to discover the electronic document after two contested applications, the lateness with which it was produced, and its unreliability in its present form, are matters for which the defendants have no explanation. Accordingly I rejected the tender of the whole electronic diary by the defendants. 108This brings me to the question of what happened at the staff meeting referred to in the matter complained of.

What happened at the staff meeting following publication of the matter complained of? 109As foreshadowed in the matter complained of, a staff meeting was held on 16 July 2010. The relevant entries are: "... 2. We have a great team working effectively; Hydraulic is short of people so we employed Sergei a very senior hydraulic engineer as Contractor. We target 7 people for the hydraulic team. While John is away, Stephen Brown spends lots of extra hours to cope up with job deadlines. ... 6. Punctuality - everyone should be in the office at 9am. I have noticed that 2 or 3 people are coming late in the office everyday. We all should be mindful in taking holidays, sick leaves and most of all tardiness as this affects our productivity. ..." 110The plaintiff was cross-examined about whether she raised the issue of the email at the staff meeting: "Q. Now you said earlier in your evidence that you complained to Mr Erbas about the email on 15 July or thereabouts, is that right? A. Yes. Q. 15 July? A. Yes. Q. Now I suggest that never happened, did it? You never complained to him, did you? A. I did. Q. There was a meeting the next day, wasn't there? A. Yes. Q. And the matter complained of speaks about, "Let's talk about this at a staff meeting", doesn't it? Do you need to look at exhibit A? I've probably paraphrased that incorrectly. Do you have exhibit A there? A. No. ... Q. Now do you see just before the sign off, "Regards Ken Gurcan Erbas"? A. Yes. Q. Do you see it says, "We'll talk about this at our first staff meeting"? A. Yes. Q. That's the meeting that you had on 16 July, isn't that right? A. That's correct. Q. And are you sure about that date, 16 July? A. Well, pretty sure. It's what I had written. Q. It's what you had written? A. Initially, yes, inhouse meeting. Q. And when did you have it written? A. On the day it happened. Q. On the day it happened? A. Yes. Q. You didn't make any complaint at that meeting did you about the email? A. No. Q. You never complained to Mr Erbas about this email, did you? A. Yes, I did. Q. And you never complained to anyone else about it at the time, did you? A. Yes, I did." (T 74-75) 111The minutes of the meeting show Mr Erbas was concerned about latecomers. Mr Erbas referred in the matter complained of to 21 diary entries for persons running late. (In fact, he may have miscounted, but no submissions were made about this, nor was there any reference to his having also circled entries for employees leaving early.) Only one entry relates to the plaintiff and she pleads no imputation in relation to it. This preoccupation of the second defendant with people running late was referred to by several witnesses, such as Mr Parissis at T 308: "Q. Now I'll put it again. Mr Erbas was very concerned about people who were running late and being off sick? A. No. Q. He wasn't? A. Mr Erbas is not concerned of people who take sick days off or are sick because it's the nature of humans. I've never seen him being concerned about that. He's concerned about people running late." 112This is indicative of Mr Erbas' state of mind; he did not misuse the occasion, but genuinely believed (Horrocks v Lowe [1975] AC 135; [1974] 1 All ER 662; [1974] 2 WLR 282) that there was a serious latecomer problem. Other employees of the first defendant gave evidence consistent with this. Maria Montemayor, the receptionist who kept the office diary, gave evidence that punctuality was discussed regularly at office meetings at which the plaintiff was present. Mr Erbas was concerned about absenteeism generally (T 294). 113Ms Montemayor stated that the plaintiff said nothing at the meeting following the email being sent to staff (T 289). She did not see the plaintiff crying or distressed on the day of this meeting (T 289 - 90, 294), although her office was a short distance away from that of the plaintiff (T 297). To her observation Mr Erbas spoke to the plaintiff, and to all staff, "nicely" (T 289) and not angrily. 114Mr Parissis, a non-financial director of the first defendant and a mechanical engineer, said that the plaintiff worked "in my team" (T 302). He said there was a "massive change" to the building industry and their mechanical workload dropped. This meant that staff who left were not replaced, and that redundancies were necessary (T 305-306). The plaintiff's redundancy was deferred because she had cancer (T 306). As soon as she was diagnosed he made an agreement with her that she would come in when she could and that "if she couldn't" (T 306) because of health problems, she would not come in. He denied telling her not to come in to work during the period in question (T 310-311). He did not see her crying on the day of the meeting. 115Sam Shanehsaz, a mechanical engineer, gave evidence that the plaintiff told him she had cancer (T 313). He particularly recalled that when she commenced chemotherapy she shaved her head and wore a bandanna. He thought the plaintiff was not at the meeting. She was unhappy about the email (T 316), he stated, but did not say when she told him this. 116All of the evidence paints a picture of a closely-knit office of about 20 employees, working in teams on engineering projects to deadlines, in a company severely hit by the global financial crisis, and changing its work practices in order to cope. Absences from the office were monitored by the use of the office diary, sick leave forms and regular staff meetings. They affected productivity. 117Having set out the factual background, I now consider the defences pleaded.

The qualified privilege defences 118The defendants have pleaded defences of qualified privilege at common law and pursuant to s 30. This has included a reliance upon Reynolds v Times Newspapers Ltd [2001] 2 AC 127, and I shall deal with this submission first. In Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1165]ff the New South Wales Court of Appeal dismissed a similar argument in relation to common law qualified privilege. The defendants now put the submission before me on the basis that Reynolds may be applied to the s 30 defence as well. As was the case with the plaintiff's "republication" plea, this new argument has added unnecessary complexity to the issues of fact and law in this case.

Reynolds v Times Newspapers Ltd [2001] 2 AC 127 119After objection by Mr Evatt to some issues in the defendants' written submissions, revised written submissions (replacing the original submissions) raised an additional, unpleaded claim (pages 26 - 28, paragraphs 6.5 - 6.9), namely a reliance upon Reynolds v Times Newspapers [2001] 2 AC 127, and the subsequent rejection of the "restrictive" (i.e. pro-plaintiff) approach previously taken, as outlined and criticised in Jameel v Wall Street Journal Europe SPRL [2006] UKHL 44. The defendants note that in Jameel the defence was upheld "despite non-compliance with a number of factors" in the Reynolds checklist, which the defendants submit resembles the s 30 checklist (written submissions, [6.8]). The defendants' submissions go on to state that the Reynolds defence is not confined to the news media "and would therefore also be available to the defendants." 120This is as close as the defendants get to expressly stating whether the Reynolds defence operates as an extension of the common law defence, or to the s 30 defence, or as a defence somewhere in between (Marshall v Megna [2013] NSWCA 30). In the course of oral submissions, the defendants appeared to apply these principles to both the statutory and common law defences. The written submissions, however, appear to restrict this submission to the s 30 defence, where the defendants submit that "there is absolutely no warrant whatsoever for applying to s 30 the highly restrictive interpretations given to and various glosses placed on s 22 of the Defamation Act 1974" (written submissions, [6.9]), namely Morgan v John Fairfax & Sons Ltd (1991) 23 NSWLR 374 at 388 and, more recently, Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2012] NSWCA 195. The defendants go on to assert that the High Court "never gave a decision on the proper interpretation of s 22", but that when it does, decisions prior to Reynolds and to s 22(2A) of the 1974 Act will no longer represent the law, and that s 30(3) cases will "reflect a form of interpretation very similar to the approach of Eady J deprecated in Jameel and are of little assistance in arriving at the proper interpretation of s 30" (written submissions [6.9]). It is further asserted, in relation to this defence, that the plaintiff bears the onus of proof as to malice, and has failed to do so (written submissions [6.11]). 121The written submissions in reply of the plaintiff point out (at [32]) that the Court of Appeal in John Fairfax & Sons Ltd v Vilo (2001) 52 NSWLR 373 held that Reynolds is not part of Australian law insofar as it extends the common law beyond Lange. The plaintiff's submissions also point out that s 30 sets out its own guidelines and principles which should not be impugned by the propositions in Reynolds. 122Although Mr Evatt characterised the defendants' submissions as "novel", this submission has been made before. In Obeid v Australian Broadcasting Corporation [2006] NSWDC 26 (at [72]), in which I was the trial judge, a similar submission was made in relation to the regime under the repealed legislation, although senior counsel for the defendants acknowledged that I was bound both by Vilo and by Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1165] - [1170]. I rejected that argument there, and I do so again, noting in addition the NSW Court of Appeal's decision in Marshall v Megna [2013] NSWCA 30 as to the need for caution when extending the boundaries of the common law defence. The same caution should be shown in relation to s 30, in my view. 123Any willingness of the Australian courts to embrace the principles in Reynolds seems even less likely now that proposals to amend defamation legislation in the United Kingdom will result in Reynolds being overruled. Sir Stephen Sedley has confirmed the abolition of the Reynolds defence in legislation currently before the House of Lords ("After Leveson: Stephen Sedley on Press Regulation", London Review of Books, Vol. 35, No. 7, 11 April 2013). 124Whether or not such a submission is novel, it has been neither pleaded nor particularised, and I note in this regard the concerns of Allsop P in Marshall at [34]: "As Beazley JA puts it at [155] the argument about the politically founded category of qualified privilege was "raised ... in an alarmingly non-specific way". Her Honour has accepted that it was raised. For my part, that is a charitable view. This Court has said on a number of occasions that judges should be presented with issues with clarity: see by way of example, Nowlan v Marson Transport [2001] NSWCA 346; 53 NSWLR 116 at [28] - [29] approving White v Overland [2001] FCA 1333 at [4]. The Parliament has also said so, in effect, in the Civil Procedure Act 2005 (NSW), ss 56-60. Parties and counsel have a basal obligation to be clear about what issues are being raised for disposition. If issues are raised obliquely or hesitatingly and are not grasped by a trial judge, a party cannot complain in this Court. Efficient disposition of issues in litigation depends upon the clear identification of issues [emphasis added by Allsop P]." 125However, although not referring to Reynolds, the Court of Appeal's decision in LVMH Watch & Jewellery Australia Pty Ltd v Lassanah [2011] NSWCA 370 has taken a similar approach in relation to the s 30 checklist. In LVMH the Court upheld the defence principally on the basis of absence of malice, and was satisfied with compliance with a few, rather than all, of the items in the s 30 checklist. The defendants are on surer ground relying upon this decision than upon Reynolds; the significant impact of LVMH in relation to the s 30 defence is considered in more detail below. 126Having noted my rejection of the proposition that the Reynolds decision has any bearing on the defence of qualified privilege at common law or pursuant to s 30, I now consider the issues of fact and law relevant to these defences.

Qualified privilege at common law 127In Bushara v Nobananas Pty Ltd [2013] NSWSC 225 at [81] (and in Cantwell v Sinclair [2011] NSWSC 1244), Rothman J sets out a short history of the interpretation of this defence at appellate level, noting some "controversy" in relation to its interpretation in the past. While this may have been the case, particularly in relation to the role of the dissenting decision of McHugh J in Bashford v Information Australia (Newsletters) (2004) 218 CLR 366, the principles relevant to qualified privilege at common law have now been explained in a series of decisions by the High Court, and more recently by New South Wales Court of Appeal in Marshall v Megna [2013] NSWCA 30, and I gratefully adopt Beazley JA's careful explanation in Marshall v Megna of the relevant principles which must be applied. 128It is important not to conflate the defences of qualified privilege at common law (discussed below) with the s 30 defence (discussed at [150]ff). The distinction between these defences must be borne in mind when applying the principles so helpfully explained in these decisions, each of which need to be considered and applied in light of the issues in each case.

(a) Was the publication was made on a protected occasion? 129In general terms, a communication is protected at common law if it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his/her own affairs, in matters where his/her interests are concerned: Toogood v Spyring (1834) 1 C M & R 181, 149 ER 1044. Professor Brown (Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, 2nd ed., (Carswell) at [13.2(1)], footnote 11) sets out some of the many hundreds of decisions which have endorsed these principles. Professor Brown adds that Gleeson CJ, Hayne and Heydon JJ, in Bashford v Information Australia (Newsletters) Pty Ltd at [10] have explained that this requires the trial court to make "a close scrutiny of the circumstances of the case, of the situations of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication." 130The existence of duties within a company or business, commercial and business relationships and between employers and employees is comprehensively reviewed by Professor Brown at [13.3(1)(e)]. These include duties to advise of accusations against a company employee (see also Cush v Dillon; Boland v Dillon (2011) 243 CLR 298 at [11] - [19]), discuss activities detrimental to the company, and canvass conduct relevant to business efficiency. 131I shall briefly note one submission by the defendants that I do not accept. The defendants submit (written submissions, [4.9] - [4.13]) that they were under a legal duty to make the publication under the Occupational Health & Safety Act 2000 (NSW) as the health, safety and welfare of workers was the subject matter of the email, and it would be a criminal offence not to comply. The obligation to identify "fatigue related hazards" contained in cl 9(1) of the Regulations would be applicable, as would other provisions designed to keep the workplace safe from risk of harm. The terms of the matter complained of, and the evidence of all the witnesses, make it clear that the circumstances of the publication related to business efficiency and fair distribution of work, not injury to health or work hazards. I agree with the plaintiff's submissions that it is unnecessary for the defendants to rely upon occupational safety legislation to establish either an occasion of privilege or that the recipients have the necessary interest in receiving it. 132The facts of this case give a very clear example of a duty which was not only moral, but social and legal, in that the publication related to the satisfactory performance of the company's work by its employees. 133This brings me to the second element in relation to whether the matter complained of was published on a protected occasion. It is not enough that the occasion is privileged if the person to whom the information is communicated is not entitled to receive it: "reciprocity is essential" (Adam v Ward [1917] AC 309 at 334). The defendant must establish the necessary degree of relationship between the interest he/she seeks to pursue, and the person to whom the publication has been communicated. 134The many cases in which courts have recognised that a person may have an appropriate interest in receiving information because of an employment relationship are helpfully summarised by Professor Brown at [13.3(2)(c)]. For example, employees may be advised by an employer of an accusation made against one or more other employees (see also Cush v Dillon; Boland v Dillon, supra), or about business practices and efficiency. 135The present case is unusual, in that the diary entries are either personally entered, or otherwise authorised, by the recipients of the matter complained of. There is a complete overlap between the persons who received the matter complained of, the employees in the firm and the persons responsible for the contents of the diary which is an attachment to the matter complained of. Having regard to the fact-finding process identified by the High Court in Bashford, supra, this is a particularly strong set of factual circumstances in which to find that the matter complained of was published on an occasion protected by common law qualified privilege. This applies whether all of the imputations pleaded are conveyed or whether, as I have found, only imputations (c)-(e) are conveyed. 136I also note, in relation to each of the "republication" claims, that if the plaintiff was compelled to raise these matters as claimed, it would be hard for her to challenge any finding that any such republication was made on a protected occasion. (This is one of the many problems caused by this highly technical claim).

Can the protection be lost? 137The law on this issue has helpfully been summarised by Beazley JA in Marshall v Megna [2013] NSWCA 30 at [192]-[194]: "[192] For there to be an occasion of qualified privilege which protects a person from liability for defamatory publications, there must be a sufficient connection to the privileged occasion to attract the defence. As the plurality explained in Bashford, at [22], an occasion of qualified privilege does not give a licence to defame. Rather: It denies the inference of malice that ordinarily follows from showing that false and injurious words have been published [193] A wrong or inaccurate statement of fact does not, of itself, sever the necessary connection with the privileged occasion or prevent the privileged occasion from arising. In Bashford, the matter complained of incorrectly stated that the plaintiff had been found guilty of a contravention of the Trade Practices Act 1974 (Cth), s 52 whereas the party that had engaged in misleading and deceptive conduct had been a company controlled by the plaintiff and his wife. Notwithstanding that the published matter was inaccurate, it was held to be sufficiently connected, or in the language used in that case, at [29], "did not alter or reduce the connection between the privileged occasion and the defamatory matter". [194] French CJ, Crennan and Kiefel JJ made a similar observation in Cush v Dillon, at [19], when they observed that: ... [there] may be limits to what may be said upon a subject on an occasion of qualified privilege and that those limits are to be tested by the connection of the statement to the subject." 138Beazley JA went on to add (at [201]): "[201] Likewise, the use of excessive or extravagant language does not prevent there being a sufficient connection to the privileged occasion. In Cush v Dillon French CJ, Crennan and Kiefel JJ accepted, at [24], the distinction drawn by Lord Esher MR in Nevill v Fine Arts and General Insurance Co [1895] 2 QB 156 at 170 between an excessive statement, which nonetheless was relevant to the privileged occasion, and the circumstances in which an excessive statement, made within the privileged occasion, may nonetheless be evidence of malice. Earl Loreburn had also noted this distinction in Adam v Ward when his Lordship observed, at 321, that exaggerated words used on an occasion of privilege may be evidence of malice but "the two things are different". The question of malice is considered below. The present point is that the language used, of itself even if excessive, is not the determinant of whether there is a sufficient connection between the defamatory material and the privileged occasion." 139Mr Evatt did not identify the language asserted to be excessive to the occasion. The plaintiff is not singled out or identified in the email. Words such as "hurt" are not excessive or extreme, especially where the hurt is identified as being the impact on the company and on staff. If an imputation of malingering is conveyed (imputations (a) and (b)), this allegation involves neither excessive nor extreme language. 140I am satisfied that the language is proportionate to the occasion, namely an informal email from an employer to employees about a work-related problem which the employer wants to discuss at the next staff meeting. 141Nor would wrong or inaccurate statements necessarily cause the occasion to be lost, for the reasons Beazley JA has so helpfully explained in Marshall v Megna, supra. Errors of the kind identified by the plaintiff, such as the fact that Mr Erbas was at the office on 5 July and not out of the office as noted in the diary, are at best trivial. I am satisfied that the main "error" referred to, namely the characterisation of the plaintiff's absences from work as due to sick leave when she was wanting to work, is not an "error" at all, as I have accepted the evidence of Mr Erbas and Mr Parissis, and relied upon evidence that the plaintiff filled out sick leave forms for these absences. 142I am satisfied that the occasion of qualified privilege has not been lost.

(b) If made on a protected occasion, whether malice has been established 143A preliminary issue is the question of whether the malice of joint tortfeasors must be found in respect to each tortfeasor: Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, 2nd ed., (Carswell) at [16.5], p 16-180 (referring to Riddick v Thames Board Mills [1977] QB 881 (CA) per Waller LJ) and Tobin & Sexton, Australian Defamation Law & Practice at [18-040]. The conduct of a third party has been held to be relevant to absence of malice by a defendant (LVMH at [66]). However, the parties have agreed not to take any point as to whether the malice of Mr Erbas and/or Mr Parissis (an employee) can be attributed to the company; the malice of one defendant (including its employees) is agreed to be the malice of the other. 144The Court of Appeal in Marshall v Megna [2013] NSWCA 30 at [280]-[302] has explained the principles for determining malice as follows: "[280] The defence of qualified privilege will be defeated where it is established that the defendant was actuated by an improper motive: Roberts v Bass at [76]. As the plurality observed in Cush v Dillon at [27], malice will be established where the person who made the defamatory statement did so for "some purpose ... foreign to the privilege". [281] Malice must be proved by evidence. Almost invariably, such proof will be based upon the inferences to be drawn from the defendant's conduct or from the actual content of the defamatory material. In order for malice to be proved, the fact finding tribunal must determine whether the defendant acted, in making the defamatory statement, "from a desire to discharge [the] duty" which founds the occasion of privilege: Clark v Molyneux (1877) 3 QBD 237 at 250. ... [289] Their Honours further stated, at [76], that in the special case where the defendant knew of the falsity of the defamatory statement, then proof of this knowledge would ordinarily be conclusive evidence that the publication was actuated by an improper motive and the qualified privilege would be defeated: Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 327 per Jordan CJ; Horrocks v Lowe at 149-150 per Lord Diplock. This was distinguished from the case where there was "mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive", which the plurality held was insufficient, in itself, to establish malice. [290] It should be noted, however, that in Cush v Dillon, Gummow, Hayne and Bell JJ, at [29], qualified this statement by observing that such knowledge may be "almost conclusive evidence of malice". As their Honours explained: This is because a person who knowingly publishes false and defamatory material will usually have an improper motive. A lack of belief in the statement may stand in a different category. But in neither event is there warrant for equating knowledge or lack of belief with actual malice. (citation omitted) [291] Their Honours recognised that knowledge of falsity may be insufficient if the defendant was under a legal obligation to make the defamatory communication. The plurality also pointed out, at [76], that mere proof of the other factors to which they had referred was not sufficient to establish malice. Rather, some ground had to be shown for concluding that one or more of such matters both "existed on the privileged occasion and actuated the publication" (original emphasis). However, malice may be proved even if factors such as those referred to above do not exist, provided that it is established that the publication was actuated by a motive foreign to the privileged occasion. As their Honours pointed out, at [76]: ... [this] is because qualified privilege is, and can only be, destroyed by the existence of an improper motive that actuates the publication. [292] These tenets were approved by Gummow, Hayne and Bell JJ in Cush v Dillon in the following terms: 27 ... The question is whether some purpose foreign to the privilege caused Mrs Dillon to use the words she did. 28 In Roberts v Bass it was pointed out that qualified privilege, which attaches to a defamatory statement, can only be destroyed by the existence of an improper motive that causes the person to make the statement. Thus, lack of belief in the truth of the statement, or even ill-will felt towards the person defamed, will not be sufficient. There must be evidence that the making of the statement was actuated by improper motive. As Cotton LJ said in Clark v Molyneux the question is "whether [the defendant] acted as he did from a desire to discharge his duty." (citations omitted) [293] Their Honours observed, at [77], that: If the defendant knew the statement was untrue when he or she made it, it is almost invariably conclusive evidence of malice. That is because a defendant who knowingly publishes false and defamatory material almost certainly has some improper motive for doing so, despite the inability of the plaintiff to identify the motive. (citation omitted) [294] At [78], their Honours dispelled the notion that the defendant's knowledge of the falsity of the defamatory material or lack of honest belief in making the publication constituted a separate head of malice. Rather their Honours asserted: Knowledge of falsity is "almost conclusive evidence" that the defendant had some improper motive in publishing the material and that it actuated the publication. That judges have treated knowledge of falsity as almost conclusive evidence of malice is no ground, however, for treating it as a separate head of, or equivalent to, malice. (emphasis added) [295] Their Honours, at [79], restated the fundamental proposition underlying malice: It is the motive or purpose for which the occasion is used that is ultimately decisive, not the defendant's belief in the truth of the matter. [296] In respect of the defendant's lack of belief in the truth of the defamatory material, the plurality stated, at [82]: The privilege is not curtailed if lack of belief in a particular matter is merely some evidence from which it may be inferred in some circumstances that the defendant was actuated by an improper motive. [297] Their Honours continued, at [83]: In our opinion, neither lack of honest belief nor knowledge of falsity ipso facto destroys a defence of qualified privilege. But knowledge of falsity is "almost conclusive evidence" of improper motive, except where the defendant is under a legal duty to publish the defamation. [298] Their Honours noted, at [84], that recklessness, in combination with other factors, may constitute "cogent evidence" that a privileged occasion was used for an improper motive. [299] Their Honours also noted, at [87], that mere lack of belief in the truth of a communication was not the equivalent of knowledge of the falsity of the communication, and therefore could not be treated as conclusive proof of malice. [300] At [87], their Honours further considered the circumstance where recklessness could be treated as evidence of malice. Their Honours stated that recklessness had to be accompanied by "some other state of mind", for instance, "anger, hatred, bias or unreasoning prejudice". [301] Their Honours, at [90]-[95], considered the authorities that establish that only knowledge or belief in the falsity of the defamatory statement will ordinarily be treated as conclusive evidence of an improper motive." 145The principles relating to the establishment of malice, being the publication of defamatory material with a dominant improper motive, were the subject of extensive consideration in Roberts v Bass (2002) 212 CLR 1 at [75]-[104] (Gaudron, McHugh and Gummow JJ). The Amended Reply filed in court on 14 September 2012 has identified (in paragraph 2(ii)) nine grounds upon which malice is alleged.

The particulars of malice in the Amended Reply 146These are as follows: (a)Recklessness in publishing the matter complained of - In Roberts v Bass at [84]-[86] Gaudron, McHugh and Gummow JJ stated that in "exceptional cases" the "sheer recklessness" of a defendant in making the defamatory statements "may justify" a finding of malice. A finding of recklessness, in combination with other factors, may similarly be evidence of an improper motive. However, recklessness as to truth or falsity, in the absence of wilful blindness, will not necessarily destroy an occasion of qualified privilege by itself.The basis upon which the publication is asserted to be reckless is unclear, but it appears to be a failure to enquire. As the purpose of the office diary was to be as accurate as reasonably possible, Mr Erbas was entitled to treat it as such when he was composing the matter complained of. There is no evidence of recklessness on the part of the defendants, whether only some or all of the imputations pleaded are conveyed. (b)Ill will, bias and/or prejudice against the plaintiff - It was asserted on behalf of the plaintiff that the defendants were motivated by malice in that they wished to dismiss her unfairly and sought to use her legitimate absences from work as an excuse or pretext.I have accepted the evidence of Mr Erbas and the other employees in the office. I have not found the plaintiff to be a witness of credit, and her claims of being the victim of ill will, bias and/or prejudice are without foundation. (c)The defendants' failure to admit publishing the matter complained of - This appears to be the result of there being some form of argument in the Defamation List about whether an inter-office email amounted to publication, and/or whether the plaintiff was identified. No judgment is available and I am uncertain about the nature and extent of the argument in question. A party is entitled to raise legitimate legal issues without these being evidence of malice. This ground is not made out. (d)The defendants' conduct in terminating the plaintiff's employment by way of redundancy when she had recovered from her illness sufficiently so as to be able to work - This occurred well after the matter complained of and for unrelated reasons. I am satisfied from the evidence of Mr Erbas that there is no connection between the matter complained of and the circumstances in which, some months later, the plaintiff was made redundant. (e)The defendants' conduct in breaching the plaintiff's right to privacy and confidentiality by publishing the matter complained of to other employees - This particular was not pressed in submissions or at the trial. The matter complained of consisted of the office diary extract and Mr Erbas' comment about the absences listed in it. There was no information which was private or confidential which was revealed. (f)The defendants' conduct in defending the matter complained of by alleging that the profitability of the defendants' business justified publication of the matter complained of about the plaintiff - This is another example of the manner of presentation of a case being relied upon as a particular of malice. While the conduct of litigation by a defendant, including the conduct at the trial, may in certain circumstances amount to evidence of malice (see Tobin & Sexton at [18,040]), this is not one of them. Mr Erbas gave evidence about the significant impact on the company after the global financial crisis which resulted in a substantial profitability drop. The absence of 6 out of 20 employees on one day due to ill health and holidays was a matter of concern to him. This particular is not made out. (g)Excessive and unnecessary widespread publication of the matter complained of - I am satisfied that the matter complained of was published to the employees of the first defendant. The difficulties in reading the office calendar on computer equipment other than that owned by the first defendant was such that the entry in question which identified the plaintiff would have been difficult for any person not using the first defendant's computer system to read.This particular is not made out. The fact that the plaintiff herself showed the matter complained of to friends and medical advisors is not a matter which can be relied upon as being excessive and unnecessary widespread publication by reason of the nature of compelled publications of this kind. (h)Unfair and inaccurate wording of the references to the plaintiff in the matter complained of for 21 and 22 June wherein it was stated that the plaintiff "called sick" thereby implying she may not have been sick but only called or pretended to be sick - This was not the subject of evidence at the trial. In any event, I am satisfied that the expression "called sick" does not contain the sinister meaning asserted on behalf of the plaintiff. (i)The plaintiff described as "running late" on 23 June thereby inferring that she was not sick on 21 or 22 June but was able to work and that the other statements that she was sick and unable to work were false - This particular of malice was not the subject of any evidence or submissions. 147In the course of the hearing and in submissions, Mr Evatt relied upon the knowledge of falsity of the defamatory material (Roberts v Bass at [79]-[83]). In Cush v Dillon; Boland v Dillon, supra, and LVMH, supra, the defendants did not intend to convey, or believe in the truth, of the imputations, and publication was denied. In the present case, Mr Erbas denied imputing that the plaintiff was a malingerer, but stood by the statement in the matter complained of. Mr Erbas honestly believed in the truth of what he wrote and described the contents of his email as "genuine" (T 236, 264). He disputed that the imputations arose (T 264) but stood by what he said. In addition, Mr Erbas denied that he was angry, upset or annoyed with the plaintiff, or otherwise motivated by hostility or ill will. 148Mr Erbas honestly believed that the company was "hurt" and that employees like himself and his wife, who came to work "on time every time" were "hurt" by other employees' clashing absences from work. He did not send the email for any collateral purpose, but for the purpose stated, namely to try to resolve the situation at the next staff meeting, which is exactly what he did. 149I am satisfied that the plaintiff has failed to establish malice.

Section 30 Defamation Act 2005 (NSW) 150Is it necessary, or appropriate, for the statutory defence to be pleaded for an inter-office memorandum to 20 staff members dealing with staff issues in which nearly all of them are named? Does the additional plea of "republications" by the plaintiff to her family and medical advisers require this defence to be pleaded? In order to determine these questions, it is necessary to examine how the NSW Court of Appeal has explained the relationship between the common law defence and the statutory defence (Senior Counsel for the defendants points out, in his written submissions, that the High Court has never considered s 30 or the repealed NSW legislation following the 2002 statutory amendments). 151It is uncontentious that courts have consistently rejected the existence of any general duty on the part of a mass media publisher to communicate to its audience information on matters of interest to them (see Tobin & Sexton at [14,070]). This led to a perception, now explained to be wrong by the Court of Appeal, that the statutory defence was an extension of the common law only for use by for mass publications such as media publications: Megna v Marshall at [168]). 152The relationship between the common law defence and s 22 (the predecessor to s 30) was explained by the NSW Court of Appeal in Bennette v Cohen [2009] NSWCA 60. In this case, as in LVMH and the present case, the number of persons present was small (in Bennette v Cohen, 80 to 100 "interested residents" who paid an admission fee to two fundraising meetings), but unlike these decisions, only the common law defence was pleaded. The defence of qualified privilege at common law succeeded at trial. The appellant argued (at [132]) that the necessary reciprocity did not exist and that the publication was not sufficiently connected to the occasion. Tobias J at [141] explained: "[141] In Morosi (at 797) the court noted the limited application of the common law principles of qualified privilege compared to the enlarged protection or scope afforded by those principles by s 22 of the Act. That distinction was confirmed by the Privy Council in Austin v Mirror Newspapers Ltd [1986] 1 AC 299 at 311-312. After referring to s 22, Lord Griffiths, delivering the advice of their Lordships, observed (at 311): It is possible as a matter of construction to place a narrow or a broad construction on the words 'an interest' [in s 22(1)]. The narrow construction would equate 'an interest' with that type of interest which is usually looked for as an ingredient of the defence of qualified privilege at common law, that is to say, an interest material to the affairs of the recipient of the information such as would for instance assist in the working of an important decision or the determining of a particular course of action. [142] The limits to the common law defence of qualified privilege expounded by this court in Morosi were enlarged in scope not only by s 22 of the Act but also, with respect to elections and similar public meetings, by the High Court in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 571. The relevance of Lange to the present discussion is its extension of the common law defence to the interest of the Australian public at large in receiving information concerning government and political matters. The duty to disseminate such information was, the court said, simply the correlative of the interest in receiving it. [143] The point of present significance is that absent a Lange situation, the defence has only a limited application to information sought to be communicated to the public or a section of the public. ... [144] In my view, the above passage from the joint judgment of all seven justices of the High Court makes it clear that in a case such as the present, where the respondent's statements were made to a large number of unidentified recipients at an unconstrained public meeting, it would need to be an exceptional case for the privilege to be attracted. Of the few exceptional cases referred to by the High Court (such as Adam v Ward), the present, in my opinion, is not one of them." (Emphasis added) 153The defence has continued to be pleaded in relation to publications to a comparatively small number of people. A s 30 defence was successful in LVMH (at [135] - [142]), where imputations of stealing were made by police to the plaintiffs in front of some of the 300 passers-by who saw the plaintiffs being arrested, ordered to sit on the pavement and accused of attempting to rob the LVMH store. In Szanto v Melville [2011] VSC 574, the defence was pleaded in relation to a letter sent to four solicitors. In Cush v Dillon, Boland v Dillon [2009] NSWDC 21 at [77]-[78] the defence, pleaded to a publication to one person (a fellow Board member) failed; however, there was no suggestion, in the subsequent appeals to the Court of Appeal or High Court, that the pleading of this defence was unnecessary or inappropriate for a publication to one person.

Malice and s 30 154A finding of the presence of malice may play a part in defeating a s 30 defence (s 30(4)). The next issue is whether absence of malice is sufficient to defeat a s 30 defence, either by itself or in combination with one or more items in the checklist, as occurred in LVMH (at [137] - [142]). 155The following statement is made at paragraph 6.11 of the defendants' written submissions: "Again the onus is on the defendant [sic: should be "plaintiff"] to establish malice. For the reasons stated above under common law she has failed to do so." 156The first problem is that the plea of malice in the Reply (in identical form to the Reply in LVMH) confines the plea of malice to the common law defence only. The plaintiff must plead malice in relation to both defences, because different issues are raised: Belbin v Lower Murray Urban & Rural Water Corp (Ruling No 3) [2012] VSC 473. In Belbin, the plaintiff's failure to plead malice to both defences meant that he could not rely upon the jury's finding of malice to defeat the statutory defence. How, then, can a defendant rely upon the plaintiff's failure to plead malice in relation to the statutory defence if the Reply has not pleaded malice to both defences? However, as in LVMH, the parties never raised this issue, so I shall proceed as if the Reply has raised issues of malice in relation to both defences. 157Section 30(4) of the Act, which explains the relationship between malice and s 30, is couched in stern language: "(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice." 158"Avoidance of doubt" (not a common legislative phrase) not only confirms the role of malice as well as the onus, but displaces the effect of the series of Court of Appeal decisions (most recently Griffith v Australian Broadcasting Corp [2010] NSWCA 9) which have held that s 22, the predecessor to s 30, provided a defence without further qualification, rather than a defence which could be defeated by malice. Hodgson JA explained in Griffith (at [115] - [123]) that if a publication is actuated by malice, then the conduct of the publisher would be unlikely to be reasonable. However, as Tobin & Sexton point out at [14,125], and as Hodgson JA states in Griffith at [122], the onus would then be on the defendant to prove absence of malice as part of reasonableness, rather than for the plaintiff to prove its presence. This is a difficult situation for the parties (and the trial judge) if both common law and statutory qualified privilege were pleaded, as the onus for proving malice for each of these defences is conflicting. 159In Cush v Dillon; Boland v Dillon [2009] NSWDC 21, both the common law and statutory defences were pleaded. The trial judge held (erroneously) that the burden of establishing malice in relation to the common law defence lay on the defendant. That was a reversal of the burden of proof in relation to the common law defence, but would have been correct in relation to the s 22 defence (Griffith at [122]) if malice had been raised to defeat the defence. The trial judge in Cush v Dillon held (at [78]) the s 22 defence was not made out. The Court of Appeal set aside the common law qualified privilege finding ([2010] NSWCA 165) without referring to the role of malice in a s 22 defence, notwithstanding Griffith; the role of malice in the s 22 defence, and the question of who had to prove it, were not referred to in either decision. 160This history of the role of malice in relation to the statutory defence is necessary because the submissions of the defendants expressly state that not only that malice is relevant to the s 30 defence, but that absence of malice is, if not conclusive, highly relevant to the success of the s 30 defence. 161The defendants are supported in this submission by LVMH v Lassanah, where the court considered not merely malice, but absence of malice to be conclusive in relation to s 30. Bergin A-JA based the s 30 finding on the fact "that the Trial Judge's conclusion in relation to malice was not justified" (at [137]). Her Honour goes on to note that "other reasons" (namely s 30 the checklist) were referred to by the trial judge (who was myself), but for the purpose of noting that the findings for the two items considered from the checklist were wrong. No reference is made to the other s 30 checklist items. Bergin A-JA then concludes that for "the reasons earlier stated in relation to the Trial Judge's finding of malice", and noting the errors of fact in these grounds, the s 30 defence is made out (at [142]). 162Section 30(4) speaks only of the defence being defeated by a positive finding of malice, where the burden lies on a plaintiff; it is silent as to the effect of a finding that there is no malice. If a finding of no malice is made, is that sufficient to defeat a s 30 defence, despite this being a defence for which the onus of proof lies on the defendant? It would appear, from LVMH, that this is the case. If so, this is a significant development of the defence for media defendants, who could require a plaintiff to prove malice and, if the plaintiff failed, the media defendant would succeed in a s 30 defence without needing to go through the whole s 30 checklist. 163As is set out above, I am satisfied that the plaintiff has not discharged the burden of proof to establish malice. This is a finding which is relevant to s 30(4), if the analysis of s 30(4) in LVMH is correct. Controversially, the defendants submit that absence of malice in these proceedings is evidence they rely upon for the s 30 defence. 164Fortunately, I do not need to determine whether this submission is correct. The defendants' reliance upon s 30 also requires me to make findings as to the requirements of s 30(1)(a)-(c) and I can base my findings upon the traditional s 30 basis. I have already concluded that I am satisfied each of the recipients (including the "republication" recipients) had an interest in receiving the matter complained of (s 30(1)(a)). Further, or alternatively, I am satisfied they had an apparent interest (s 30(1)(b)): Szanto v Melville [2011] VSC 574 at [148]. This brings me to s 30(1)(c) and whether the defendants' conduct in publishing the matter to each of the recipients was reasonable in the circumstances and to a consideration of the checklist in s 30(3).

The checklist in s 30(3) 165Although challenging the requirement to do so, the defendants have in fact made submissions in relation to each item in the entire s 30 checklist. I set these out, and the plaintiff's responses, as follows: (a)s 30(3)(a): The extent to which the matter published is of public interest - the email concerned the productivity of the first defendant and its employees, which was a matter of interest to those to whom it was published (namely the directors and employees of the first defendant). This is not a "public"interest, but an interest held by all the recipients. The plaintiff did not address this in submissions. (b)s 30(3)(b): The extent to which the matter published relates to the performance of the public functions or activities of the person - the email related to the performance of the duties and functions of the directors and employees of the first defendant, of which class the plaintiff was a member. The plaintiff's submission was that the email should never have been sent. (c)s 30(3)(c): Assuming they were carried out by the matter published (which is denied) the seriousness of any defamatory imputation - the defamatory imputations are relatively low in seriousness compared with other defamatory imputations. The plaintiff challenged this element and submitted the imputations were serious, a content I reject. (d)s 30(3)(d): The extent to which the matter published distinguishes between suspicions, allegations and proven facts - the matter complained of sets out facts about the number of leaves occurring in the month prior to publication of the matter complained of, proves them by annexing the group calendar, and makes observations about the cumulative effect of those absences. It is otherwise directed at a group and casts no suspicions over, makes no allegations about and alleges no facts against the plaintiff in particular. Moreover, it was known to all members of the first defendant that the plaintiff was genuinely sick having been diagnosed with cancer and having been subject to chemotherapy and radiotherapy. The plaintiff challenged these matters, asserting that few knew the nature or degree of the plaintiff's illness and asserting errors in the diary. For the reasons set out above, I have accepted the defendants' evidence on this issue. (e)s 30(3)(e): Whether it was in the public interest in the circumstances for the matter published to be published expeditiously - it was in the interest of the recipients for the matter complained of to be published quickly because the cumulative absences to which the matter complained of referred were having an immediate effect on the first defendant and were placing additional pressure on the company's other employees. The plaintiff challenged these matters, saying that the defendants should not have published the matter at all, or at least without reference to the plaintiff's absences. For the reasons set out above, I have accepted the defendants' evidence on this issue. (f)s 30(3)(f): The nature of the business environment in which the defendant operates - the defendants were operating a business environment affected by the global financial crisis and otherwise one characterised by pressures associated with ongoing staff absences and punctuality issues and in circumstances where it had customers deadlines to meet. The plaintiff did not address this issue in submissions. (g)s 30(3)(g): The sources of the information in the matter published and the integrity of those sources - the matter complained of was based upon self-reports by staff (including the plaintiff) as to their attendance at work. The plaintiff challenged the accuracy of the diary but I have accepted that its contents (particularly in relation to the plaintiff) were accurate. (h)s 30(3)(h): Whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person - there was no need to contact the plaintiff because the matter complained of was based upon, among other things, reports by her as to her attendance at work and otherwise is directed at a group, not the plaintiff in the particular and the group calendar was attached to the email. Moreover, it was known to all members of the first defendant that the plaintiff was genuinely sick having been diagnosed with cancer and having been subject to chemotherapy and radiotherapy. The defendants also offered the opportunity to discuss the problem at the next staff meeting. The plaintiff challenged this ground on the basis that few knew of her illness and that the diary was to Mr Erbas' own knowledge inaccurate, as he was in the office on a day he was rostered to be out of the office at a meeting. In addition, I note that in LVMH the only inquiry made by the defendant (namely to go into the LVMH store) was made after, not before, publication of the matter complained of. (i)s 30(3)(i): Any other steps taken to verify the information in the matter published - The second defendant published the email following his direct observations of staff being absent from the office and from information contained in the group calendar and which he attached to the email. The plaintiff challenged this evidence and challenged the failure to consult the plaintiff before publication. However, conformably with LVMH where the inquiry was made after publication (not before), it is no longer necessary to take such steps before publication. (j)s 30(3)(j): Any other circumstances that the court considers relevant - it was known to all members of the first defendant that the plaintiff was genuinely sick having been diagnosed with cancer and having been subject to chemotherapy and radiotherapy and had been absent and marked as sick at least one whole week in three for some months. The timing of the matter complained of was a Monday morning when almost all the draftspersons were away. Lastly, the matter complained of states in the final paragraph "We will talk about this at our first staff meeting". This must mean there cannot be any final judgment about the matters unless or until the meeting is held and there has been discussion and resolution. These matters are relevant, although occurring after (not before) publication, for the reasons explained in LVMH. 166I further note, in relation to s 30(1)(c) and reasonableness, the principal objection raised by the plaintiff, namely that no, or no adequate, enquiry was made of the plaintiff before publication. This has long been a significant problem for media defendants: Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 364-5. 167In Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1096]ff, the Court of Appeal dismissed a ground of appeal from the finding that it was reasonable to publish in circumstances where the plaintiff had been given an opportunity to respond to the allegations prior to publication (s 22(1)(c) Defamation Act 1974 (NSW)). There was no doubt that Mr Marsden was given an opportunity not merely to respond but to do so in an interview, and that this offer was made prior to, rather than after publication. The Court of Appeal rejected this ground of appeal, noting the very general terms in which the allegations made against Mr Marsden were put before him. Similarly, in Nationwide News Pty Ltd v Hartley [1995] NSWCA 309, where the plaintiff, Mr Hartley, was not only given an opportunity to respond, but his response (limited to a general denial) was published, the failure to do more than publish his denial was found to fall short of this requirement. Like Mr Marsden, Mr Hartley was given only a general indication of what was said. 168However, in LVMH, not only was there no enquiry made prior to publication by the police of imputations of attempted robbery, but the circumstances giving rise to the allegations of attempted robbery (namely, attempting to tamper with shelfs and cabinets in the LVMH store) were never put to the plaintiffs, as is clear from the text of the matter complained of. The police accused the plaintiffs of attempted robbery, and they were then made to sit on the footpath while a police officer entered the shop. The Court of Appeal placed great weight on the fact that one of the plaintiffs made a general denial to the allegation (the other being too intellectually disabled to speak), and considered this was sufficient to comply with s 30. The fact that this denial was at best general in nature, as opposed to an informed response to the specific allegation, and made after publication of the matter complained of, made no difference. 169The approach adopted in LVMH substantially broadens the parameters of this defence (cf. Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2012] NSWCA 195). In the present case, Mr Erbas did indeed prepare the matter complained of without prior consultation of the plaintiff. Indeed, he made no prior consultation of anyone, but simply relied on the diary extract. The defendants submit that that is sufficient. Conformably with the approach taken by the Court of Appeal in LVMH, this must be correct. 170I am satisfied that the defendants have made out each of the items in the s 30 checklist. The s 30 defence has therefore been made out.

Section 33 Defamation Act 2005 (NSW) 171Section 33 provides: "33 Defence of triviality It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm." 172The provision "unlikely to sustain any harm" is different to the formulation "not likely to suffer harm" contained in s 13 Defamation Act 1974 (NSW), which provided: "13 Unlikelihood of harm It is a defence that the circumstances of the publication of the matter complained of were such that the person defamed was not likely to suffer harm." 173The defence of unlikelihood of harm is unique to Australia. As the NSW Law Reform Commission's 1971 Report (which led to the enactment of the 1974 legislation containing s 13), the defence had been available, for slander only, since 1847, "to meet the hard conditions of pioneer days": Lang v Willis (1934) 52 CLR 637 at 650 per Rich J. Rich J noted that the jury could take into account the occasion of publication, such as the heat of a family squabble, or a quarrel in a shearing shed. Evatt J added that the jury could consider "all the aspects of the occasion in question, and they are not debarred from considering the circumstances leading up to and surrounding the particular occasion" (at 650). McTiernan J added that the fact that the statements were "untrue in some respects", or even malicious, was irrelevant (at 683). 174The defence may arise in circumstances such as the following: (a)The extent of publication is limited. In Morosi v Mirror Newspapers Limited [1977] 1 NSWLR 749 at 800) the defence was described as "particularly applicable" where there is a publication of an informal nature of a trivial imputation. (b)The knowledge and characteristics of the readers of the publication, who already know the plaintiff and the events in question, which means they are able to make their own judgment: Perkins v Aboriginal Land Council (Supreme Court of NSW, Badgery-Parker J, 15 August 1999) at p. 27; Chappell v Mirror Newspapers Limited (1984) Aust Torts Rep 80-691 at 68,948; Morosi at 800). In particular, where the recipients of the publication have a close relationship, such as the relationship between a company and its directors, "the defence of unlikelihood of harm (s 13) will succeed": State Bank of NSW v Currabubula Holdings Pty Ltd & Anor (2001) NSWCA 47 at 114 per Giles JA. This is why it is important for the plaintiff to be able to define all recipients of the libel, as Badgery-Parker J pointed out in Perkins at 27. (c)Where the "quality of the publication" can be considered "in respect of its proneness to cause harm" (Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 86,947-86,948). This enquiry is directed to the moment of publication. Actionability does not depend upon an enquiry as to what thereafter happens, and in particular as to whether or not harm in fact resulted from the publication. (d)Where the imputations are of a lesser seriousness. However, it has been considered to be potentially available to imputations of thieving (King & Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305), promiscuity (Morosi v Mirror Newspapers Ltd), racism (Chappell v Mirror Newspapers Ltd) or indeed any imputation which would otherwise satisfy the criteria set out in (a) to (c) above. 175This brings me to the question of the applicable test for s 33. Mr Evatt submitted that the difference between ss 33 and 13 of the repealed legislation picks up the language of Mahoney JA in King & Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305. 176Mahoney JA's enunciation of this principle was endorsed in Skalkos v Assaf [2002] NSWCA 14 at [73]. Mason P, dismissing the appeal, concurred with the trial judge, who had "pointed out that the test identified by Mahoney JA in King & Mergen Holdings Pty Ltd v McKenzie (at 309) was that the defendant bore the significant burden of negativing not merely that there would be great or substantial harm but that there be "harm" at all." However, in Jones v Sutton (2004) 61 NSWLR 614, King & Mergen Holdings Pty Ltd v McKenzie, supra, was distinguished on the basis firstly that it was obiter (at 620), and secondly that Mahoney JA meant that "what had to be negatived was that there was "likely to be harm at all"" (at 620). Jones v Sutton, rather than King & Mergen Holdings Pty Ltd v McKenzie, supra, is now generally cited as the correct test to apply. 177However, the plaintiff's written submissions (paragraphs 45-48) now take issue with the applicability of Jones v Sutton, supra, on the basis that the formula in s 33 picks up the language of Mahoney JA. It is submitted that s 33 required that "the plaintiff was unlikely to sustain any harm" (written submissions, paragraph 46). Mr Evatt submits that the interpretation given to the defence of triviality by Mahoney JA has been preserved by this changed wording in s 33. 178Other judges have taken this approach. In Papaconstuntinos v Holmes a Court [2009] NSWSC 903 at [105], McCallum J adopted this interpretation of s 33, stating that "the defence requires the defendant to show not merely that there is unlikely to be great or substantial harm but that there is unlikely to be any harm at all: King & Mergen Holdings Pty Ltd v McKenzie, supra, at 309G per Mahoney JA." While this decision was set aside on other grounds, the correctness of her Honour's reasoning on s 33 was not the subject of any scrutiny or comment either in the NSW Court of Appeal or in the High Court. Accordingly, the approach taken by McCallum J, which restores the approach taken by Mahoney JA in King & Mergen Holdings Pty Ltd v McKenzie, supra, is the correct approach. 179The next point Mr Evatt makes is, however, controversial. He goes on to submit that the word "any" must include upset and hurt to feelings, which distinguishes this new section from the exclusion of these items in paragraph 38 of Jones v Sutton. 180There is a helpful discussion of this issue in Szanto v Melville [2011] VSC 574 at [157]-[164]. In those proceedings, the difference in wording between s 13 of the repealed legislation and s 33 of the Act was not drawn to the attention of the trial judge, and the attack made on whether "any harm" included "injury to feelings" was brought upon a different basis. Kaye J, noting the apparent inconsistency between Jones v Sutton and the concept of "any harm" excluding injury to feelings, in the context of the desirability of consistency in the construction of the uniform defamation legislation (at [163]) ultimately did not express a concluded view, on the basis that, if the word "harm" was confined to damage to reputation, nevertheless the defendant would not make out the defence under s 33 (at [164]). 181I accept Mr Evatt's submission that the change of wording means that I should adopt the process of analysis used by McCallum J in Papaconstuntinos v Holmes a Court, supra. I note that the word "harm" as used in ss 34 and 36 appears to encompass both injury to reputation and injury to feelings; the word "harm" is used in both the repealed and the current legislation. However, I consider I am bound by the statement of Beazley JA in Jones v Sutton (2004) 61 NSWLR 614; [2004] NSWCA 439 at [38] that whether or not a person's feelings were hurt was "not relevant to s 13", because it is a matter for damages. This is notwithstanding the fact that in both the repealed legislation and the Act the wording for the defence of contextual truth specifically refers to defamatory imputations which do not further "harm the reputation" of, as opposed to "harm", the plaintiff. Kaye J noted in Szanto v Melville (at [163]) that it is clear the New South Wales Court of Appeal in Jones v Sutton regarded the word "harm" as confined to injury to reputation. It was a problem about which Kaye J, noting the attractive submissions to the contrary, ultimately did not express a concluded view. 182As was the case for Kaye J, ultimately it is not necessary for me to express a concluded view as to whether the submissions made by Mr Evatt at paragraphs 45-46 are correct because, on the evidence before me, I am satisfied that the plaintiff suffered neither "harm" to reputation nor hurt to feelings. 183I am satisfied that the plaintiff did not suffer harm to reputation because of the very unusual circumstances of the publication, namely an email from an employer to all of his employees about all of their conduct in relation to the taking of holiday and sick leave and coming to work late. In addition, I am satisfied that she did not suffer hurt to feelings as claimed. 184In relation to hurt to feelings, it is open to a trial judge, for the reasons explained in Jones v Sutton (No. 2) [2005] NSWCA 203, to make findings about the degree of hurt to feelings on a credit basis and in relation to damages. The unsatisfactory evidence of the plaintiff about when she first learned of the matter complained of, and my rejection of her evidence of telling Mr Erbas about it, are set out in full above. This was a finding I made in relation to damages issues. However, if applied to the findings necessary for the s 33 defence, this would mean that I am satisfied that the plaintiff did not suffer any upset and hurt to feelings, which means that she did not suffer "any harm" of any kind in relation to s 33. 185In relation to harm to the plaintiff's reputation, if this email was seen by the 20 co-workers of the plaintiff, all of whom I have found knew the reasons for the plaintiff's absence from work, I am satisfied that this is one of those rare cases where the plaintiff would not suffer any harm at all. If the email was seen by all the persons to whom the plaintiff showed it (the "republication" claim), this would make no difference. 186In Currabubula Giles J noted the close relationship between a company and its director; in Jones v Amalgamated Television Services Pty Ltd at 366E - G Hunt J noted academic discussion as to whether inter-company publications are publications at all. Inter-office emails of this kind, where the parties know the full background and the issues involved (and may themselves be included amongst those under criticism) are the kind of publication which should benefit from this defence. I accept the defendants' submission as to relevance of such matters, as discussed in Perkins v New South Wales Aboriginal Land Council (Supreme Court of New South Wales, Badgery-Parker J, 15 August 1997). This defence is accordingly made out.

Conclusions as to liability 187I formally note that at paragraph 49 of the plaintiff's submissions, Mr Evatt states that he has not answered "a number of bizarre matters" raised in the amended defence as they have not been the subject of submissions. I formally note that I have not dealt with these either. There has been a degree of "unnecessary clutter" (Sun Earth Homes Pty Ltd v Australian Broadcasting Corp (1993) 45 FCR 265) in the pleadings of both parties. 188All of the defences (qualified privilege at common law, statutory qualified privilege and triviality) have succeeded. Judgment will be entered for the defendants. I make brief observations as to the appropriate range of damages if damages were to be awarded.

General damages 189General damages in defamation proceedings comprise injury to feelings, damage to reputation and vindication: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60. In determining the amount of damages the court should take into account s 34 in the manner explained by Hayne JA in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [60] in relation to s 46A Defamation Act 1974 (NSW), which contained similar provisions. Section 35 of the Act also places a limit on the maximum amount of damages for non-economic loss, which is currently $339,000 (Gazette No. 60 of 8.6.2012, p 2369). In addition, regard may be had to awards in other actions for defamation. 190Other defamation decisions dealing with issues of damages have referred to the lack of helpfulness of other defamation awards in arriving at a figure for general damages (Leech v Green & Gold Energy Pty Ltd [2011] NSWSC 999 at [29] per Fullerton J). Damages awards vary widely for limited publications such as office emails. The highest verdict for a business letter sent to members of an organisation is Manefield v Association of Quality Child Care Centres (NSW) [2010] NSWSC 1420 where Kirby J awarded $150,000 for a letter was sent to around 650 members of an association. An appeal as to quantum was dismissed: Association of Quality Child Care Centres (NSW) v Manefield [2012] NSWCA 123. At the other end of the scale are the damages awarded in Bristow v Adams [2012] NSWCA 166 (namely $10,000) for an inter-office email sent to several branch offices of a company. These awards included a claim for aggravated compensatory damages. 191One factor I cannot take into account is that the plaintiff commenced proceedings only four days prior to the expiry of the limitation period. Failure to commence proceedings for a long period has been considered significant in a number of cases (e.g. McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86). However, the plaintiff was not cross-examined about her reasons for delay, as Mr Evatt has pointed out, so I must disregard this factor. 192I similarly reject the defendants' submission (written submissions, paragraph 8.15) that failure to send a "letter of demand" (which I infer is a concerns notice) or a request for an apology should reduce the award. Nor do I accept the defendants' submission that the imputations cover the same ground and should be discounted for that reason. The imputations differ in substance, and convey a separate sting. 193This was an inter-office email to 20 staff members complaining that many of them had been absent from the office in circumstances which hurt the company and their fellow employees, and that something had to be done about it. Communications of this kind are part and parcel of business activities and the imputations are at the bottom of the range in terms of seriousness. 194Taking all of the above into account, I consider an appropriate award for damages, if damages were to be awarded for all five imputations, would be $10,000 for this "veritable tempest in a teacup" (Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 190 per Hunt J). If an award were to be made for imputation (c)-(e) only, an appropriate amount would be $5,000 (comparable to the sum Simpson J considered appropriate in Haddon v Forsyth [2011] NSWSC 123 for emails to members of a church community). This would include any award made for the "republications", either as causes of action in themselves or as matters going to damages only. 195Given the circumstances of the publication (an inter-office email) and the absences of any aggravating features, I would not award aggravated compensatory damages.

Costs 196As s 40 issues, and matters arising in the course of the hearing (Jones v Sutton (No 2) [2005] NSWCA 203) may be relevant as to costs, I have reserved the issue of costs for further argument.

Orders (1)Judgment for the defendants. (2)Costs reserved, with liberty to apply. (3)Exhibits retained for 28 days.

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