(i) that the contextual imputations pleaded were in fact conveyed;
(ii) that the contextual imputations (or one or more of them) were substantially true;
(iii) that the contextual imputations (or one or more of them) related to a matter of public interest or were published under qualified privilege;
(iv) that, by reason of the substantial truth of the contextual imputations (or one or more of them) publication of the imputations pleaded by the plaintiff was unlikely further to damage the plaintiff's reputation.
53 Ms Schneller pleads five contextual imputations. They are:
"(i) the Plaintiff assaulted the Defendant.
(ii) the Plaintiff so conducted himself that he caused the Defendant to become afraid and to apply for a restraining order preventing him from approaching her.
(iii) the Plaintiff acted violently against the Defendant.
(iv) the Plaintiff so conducted himself towards the Defendant that he acted immaturely and not as an adult.
(v) the Plaintiff so conducted himself with a plastic bag of sewage that some had come on the Defendant's face."
54 In order to consider the issues raised by this defence it is necessary to pay considerably more attention to the descriptions given respectively by the parties to the events of 22 April, both in this court and in the Local Court. It is also necessary to refer to the findings of fact made by the Magistrate in the Local Court proceedings.
55 The incident of 22 April is central to the issues raised in the present proceedings and was also central to the issues raised in the Local Court proceedings. Counsel for Ms Schneller accepted that, in some respects at least, the findings of fact of the Magistrate, Mr Beveridge, constitute an estoppel against Ms Schneller.
56 In this court Ms Schneller described the incident as follows: she said that earlier in the month she had heard that there was some problem with the sewer pipe, when an inspector from the Water Board attended. Later on the same evening Mr Green asked her if she was aware of it, and she briefly acknowledged that she was. On 21 April the plumber repaired the leaking pipe. She was aware of some ill feeling subsequently directed to her from Ms McFarlane. She became aware that Ms McFarlane was digging in the ground on the Schneller property and investigated. It was at this time that Ms McFarlane asked why she did not clean up her own nightsoil and said that she (Ms McFarlane) felt like putting it in her (Ms Schneller's) letterbox. She said that she replied "That sounds typical".
57 Immediately after that Ms Schneller saw Mr Green arrive home. She saw him pick up a plastic bag and the next thing she saw was Mr Green at her letterbox. Being suspicious of his intentions, she equipped herself with a camera and photographed him. She said that she was at the time accompanied by her two year old daughter Simone. As she focused her camera on Mr Green he smiled. He then threw the contents of the plastic bag in such a way that the contents left the bag and hit both herself and Simone in the face. The material contained in the bag was:
"sewage, sort of muddy, smelly muddy stuff, blobs of stuff and I could recognise a tampon …" (T 242)
58 About ten minutes later another neighbour and friend, Ms Dennis, arrived and photographed Ms Schneller and Simone. These photographs were Exhibit C. They clearly show both Ms Schneller and Simone with mud-smeared faces. It is Ms Schneller's case that, although she believed the substance in the plastic bag was sewage, she left it on her own face and that of her daughter until Ms Dennis arrived, and then, for some longer time (on Ms Dennis's advice) until police arrived to witness it.
59 Mr Green's version of the event was quite different in material respects. He said that, after overhearing the initial contretemps between Ms McFarlane and Ms Schneller, he took possession of the plastic bag into which Ms McFarlane had placed the muddy material, walked up his drive and to Ms Schneller's letterbox. He attempted to push the bag into the letterbox, but could not do so because it was too stiff. He saw Ms Schneller with a camera. He shook the contents of the plastic bag onto the ground in front of Ms Schneller, said to her "now photograph that" and walked away.
60 He denied throwing the contents of the bag into the face either of Ms Schneller or of Simone. He denied that Simone was present at the time.
61 These were essentially the competing versions that were put before Mr Beveridge in the Local Court proceedings. Mr Beveridge accepted Mr Green's account. His findings on Ms Schneller's credibility were extremely adverse to her and he made some stinging criticisms of the manner in she gave her evidence. As to her credit, Mr Beveridge said this:
"It is fair to say that, in twenty years at the Bar and on this Bench, Mrs Schneller is probably the most truculent witness I have ever seen, barring a few unfortunate victims of substance abuse. Partly this emerges from the transcript, with her desire to 'put the knife' with answers to questions she was never asked, and to his great credit Mr Evatt QC exercised his not considerable [sic] powers to confine her responses to what was germane to the case he was putting; and partly it was necessary to see her in action during cross-examination, particularly by Mr Campbell, to experience the full animus that she displayed, together with what appeared to be, with respect, the conscious use of histrionics and diversionary tactics." (p6)
62 As to the factual matters in issue, Mr Beveridge said:
"One must also test the assertion [that the muddy material had been thrown in the faces of Ms Schneller and her daughter] by just using common sense from the photographs that I am shown. Mrs Schneller said that she was about a metre from the letterbox. She was at the top of the steps that led to it, so she would have been on a slightly lower level, I assume, than the landing. But, I am asked to believe that this sewage adhered to the middle of the front of her face. Nothing splattering in her hair, absolutely nothing on her clothes. There was another spot hit just on the front and side of her little daughter's face, who was at her side, at her feet, at the time. Yet nothing on the daughter's hair or clothing, no splashing, as you might expect if the soil and sewage had bounced up from being thrown down. Mr Green would have to have the aiming capabilities of a heat seeking missile, you might think, if he was going to be as precise as that in his aim. By ordinary standards it is just unbelievable. Now, a combination of all those things being borne in mind, I come back to the conflict in the story of the two parties about what happened, and it is inconceivable and certainly not supported by the evidence that Mr Green did throw the contents of the bag at Mrs Schneller, or for that matter, even in the direction of Mrs Schneller. It is certainly clear though, from the photograph and from the general evidence, that the contents of the bag, whether from midair or some other place, did go onto the landing behind the gate. This is shown clearly enough in Exhibit 3….
So one thing stands out loud and clear, Mr Green did not throw soil and sewage or anything else over Mrs Schneller, but he did hurry up to the letterbox of her home with the intention of putting a plastic bag containing what he knew to be a mixture of soil and sewage into her letterbox. He did try to put it into her letterbox, despite the watching presence and the loaded camera nearby, and when he became frustrated by the mechanism of the operation, the bag too stiff to get into the slot, he threw, or at any rate, deposited the bag and its contents inside the gate onto the ground, although it landed on the step between him and Mrs Schneller." (p 15 -16)
63 While I am not in any way bound by the Magistrate's conclusions on the relative credibility of the parties, I am, it is conceded on behalf of Ms Schneller, bound by his findings of fact where the factual issues in those proceedings are identical to those with which I am concerned.
64 I return to the contextual imputations pleaded. There being no dispute that the matter complained of is capable of conveying and does in fact convey each of those imputations, the essential question is whether they have been shown to be true. If any has been shown to be true, then it will become necessary to consider whether they were published under qualified privilege. For reasons given above in relation to the imputations relied on by Mr Green, the contextual imputations do not relate to a matter of public interest. Finally, it will be necessary to consider their capacity to cause harm to Mr Green's reputation relative to the imputations on which he relies.
65 The first and fifth of the contextual imputations can be put to one side at the outset. They contradict the findings of fact made by Mr Beveridge and Ms Schneller is estopped, by reason of those findings of fact, from asserting their truth. In saying this, in relation to the first contextual imputation, I am conscious that, technically, Mr Green's behaviour even as recounted by him might be held to amount to an assault. However, the contextual imputation cannot be looked at in a vacuum. A technical assault constituted by the threatening behaviour, culminating in the depositing of the bag of material on the steps is not the kind of assault attributed to Mr Green by Ms Schneller in the statements she made to the journalist about his conduct. The assault she there alleged was a physical assault in which she had had effluent thrown in her face. In view of Mr Beveridge's findings of fact Ms Schneller is no longer entitled to maintain the truth of that assertion.
66 Whether the second imputation is substantially true is rather more difficult. This is in part because the imputation has a number of components. Certainly, Ms Schneller did in fact apply for a restraining order. It is not to the point that Mr Green made a similar application. And there can be little doubt that it was Mr Green's conduct on this occasion that precipitated Ms Schneller's application. Ms Schneller maintained that she was afraid of Mr Green and this is an assertion that is difficult to challenge. Not without some hesitation, but on balance, I am satisfied that the substantial truth of the second contextual imputation has been established. I reach this conclusion on the basis of the account given by Mr Green of the events, which was accepted by the Magistrate. I reach the same conclusion in relation to the third and fourth contextual imputations.
67 The next step, logically, is to consider whether these imputations were published under qualified privilege. For reasons that appear below, I am satisfied that they do not. The question of qualified privilege arising in relation to the defence of contextual truth is no different to the question of qualified privilege attaching to the imputations pleaded on behalf of the plaintiff. Accordingly, the discussion of qualified privilege can be deferred to a later point in these reasons. The conclusions that those contextual imputations are substantially true but were not published under qualified privilege means that, strictly, it is unnecessary to move to the final question that arises in relation to this defence, that of the relative seriousness of the imputations pleaded by the plaintiff against the true contextual imputations. However, having regard to the many issues that have arisen in this case, it is appropriate to express a view on that final question. Even if the substantially true contextual imputations were published under qualified privilege, it is only if the gravity of those imputations outweighs the gravity of the plaintiff's pleaded imputations, such that the publication of the former does not further injure the plaintiff's reputation, that the defence can succeed.
68 Analysis of the two sets of imputations can yield only one answer to that question. The imputations pleaded by Mr Green are significantly more serious and do greater damage to his reputation than the three contextual imputations that have been proven. One reason for this conclusion is that imputations (a) and (d) speak generally of Mr Green's alleged behaviour and disposition, while the proven contextual imputations are specific and relate to a single instance of the kind of behaviour alleged; another reason is that the specific behaviour described in imputations (b)(i) and (b) (ii) is of greater seriousness than that described in contextual imputation (iii).
69 The defence of contextual truth fails.