Jay & Anor v Petrikas & Ors

Nature and elements of the tort of injurious falsehood

1. In their Opening written submissions, the parties agreed that the elements for this tort are as stated by Gummow J in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 (Palmer Bruyn) at 404 [52] [2] as follows (citations omitted): "52. … generally, it is said that an action for injurious falsehood has four elements (1) a false statement of or concerning the plaintiff's goods or business; (2) publication of that statement by the defendant to a third person; (3) malice on the part of the defendant; and (4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement."
2. As will soon become apparent, there was controversy about the meaning of this first element.
3. Speaking more generally, at [57]-[59], Gummow J observed (citations omitted) that: "57. The tort of "injurious falsehood" (a term coined by Salmond) has its origins in actions for "slander of title". This involved aspersions cast upon the plaintiff's ownership of land which resulted in the plaintiff being unable to lease or sell the land. Despite the use of the term "slander" and its "unfortunate" association with the law of defamation, "slander of title" appears to have been recognised as an action on the case for the special damage resulting from the defendant's interference. The action was slowly enlarged in the nineteenth century, until the position was reached in 1892 where, in Ratcliffe v Evans, the modern foundation of the tort, Bowen LJ could say: "[t]hat an action will lie for written or oral falsehoods, not actionable per se nor even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage, is established law. Such an action is not one of libel or of slander, but an action on the case for damage wilfully and intentionally done without just occasion or excuse, analogous to an action for slander of title." This passage was taken to be an accurate statement of the law respecting injurious falsehood by this Court in Hall-Gibbs Mercantile Agency Ltd v Dun and later in Sungravure Pty Ltd v Middle East Airlines Airliban SAL. 58. Whilst the same factual matrix may found actions in both defamation and injurious falsehood, there are important distinctions between them. In Joyce v Sengupta, Sir Donald Nicholls V-C said: "The remedy provided by the law for words which injure a person's reputation is defamation. Words may also injure a person without damaging his reputation. An example would be a claim that the seller of goods or land is not the true owner. Another example would be a false assertion that a person has closed down his business. Such claims would not necessarily damage the reputation of those concerned. The remedy provided for this is malicious falsehood, sometimes called injurious falsehood or trade libel. This cause of action embraces particular types of malicious falsehood such as slander of title and slander of goods, but it is not confined to those headings." It is for the plaintiff in injurious falsehood to establish falsity, malice and special damage, burdens not imposed upon the plaintiff by defamation. On the other hand, the inhibition upon the use of the injunction to restrain further publication of defamatory material does not apply to injurious falsehood; a rationale for the distinction is said to be that the latter tort protects proprietary and commercial rather than personal interests." 59. The action for injurious falsehood is in many respects more closely allied to deceit than it is to defamation. This was recognised by Sir John Salmond, who said: "The wrong of deceit consists, as we have seen, in false statements made to the plaintiff himself whereby he is induced to act to his own loss. The wrong of injurious falsehood, on the other hand, consists in false statements made to other persons concerning the plaintiff whereby he suffers loss through the action of those others. The one consists in misrepresentations made to the plaintiff, the other in misrepresentations made concerning him." (original emphasis)
4. The parties substantially agreed on the issues requiring the Court's adjudication. They were naturally structured in relation to each of the aforesaid elements of the tort. They are: 1. whether each of the three publications conveyed certain representations; 2. whether the representation(s) was of and concerning the plaintiffs (or either of them) in connection with the 'business' of the plaintiffs; 3. (if the answer to 2 is yes) whether the representations were false; 4. (if the answer to 3 is yes) whether the defendants published the publications (attributed to them) with malice; 5. whether the plaintiffs (or either of them) suffered actual damage as a result of the publications; 6. (if the answer to 5 is yes): 1. the quantum of actual damage; and 2. whether the plaintiffs (or either of them) are entitled to aggravated damages and/or exemplary damages (and, if they are, the quantum of either or both of such awards).

GENERAL BACKGROUND - EVENTS PRIOR TO THE FIRST PUBLICATION

1. In this section of these reasons, I refer to some uncontroversial facts, supplying some context for the subject publications as they emerged from the parties' respective chronologies (Exhibits C & 1) and the documents cited in the entries in those chronologies. Interspersed will be some of the evidence from the witnesses.

The positions and background of the plaintiffs and defendants

1. The first plaintiff, Mr Graeme Jay, joined the Glossodia Brigade of the RFS in 1998. He was first elected as an officer of the brigade, as Deputy Captain in June 2009 to May 2011. He served in the role of Senior Deputy Captain until May 2011 until June 2014 when he assumed the role of Captain of the Glossodia Brigade. He remained as Captain of the Glossodia Brigade until 31 May 2017. While he moved with his family to North Queensland in January 2017 he continued to serve the Glossodia Brigade - as Deputy Captain until July 2019. In November 2020 he received the Premier's Bushfire Emergency Citation, in recognition of his service fighting the 2019 bushfires.
2. Mr Jay was a teacher at TAFE (in glazing) from 1990 until 2016. More recently he has worked as a paramedic.
3. The second plaintiff, Mr John Peters, joined the Glossodia Brigade prior to the formation of the RFS in 1990. He has served as Captain of the brigade from periods from 2002 to 2007, 2010 to 2014 and 2017 to 2021. He served as Deputy Captain from 2007 to 2009 and from 2014 to 2017 and since 2021 has served as Senior Deputy Captain of the Glossodia Brigade. He too received the Premier's Bushfire Emergency Citation in November 2020.
4. Mr Peters is a senior businessman, being the Managing Director of Western Freight Management Pty Ltd.
5. Mr Chris Petrikas, the first defendant, is the Captain of the South Group in the Hawkesbury District of the RFS. He has been a member of the RFS and its predecessors since 1976 and has served as a Group Officer for the south sector of the Hawkesbury Rural Fire District since 2003.
6. Mr David Ryan, the second defendant, is a Deputy Captain of the South Group in the Hawkesbury Rural Fire District. He has been a member of the RFS and its predecessors since about 1974 and served as a Group Officer of the South Group from 2001.
7. The third defendant, Mr Ian Wedge, has been a member of the RFS since 1994 and a Group Officer within the Hawkesbury Rural Fire District since 2011. Originally he was assigned as a Group Officer for the North Sector but at the time relevant to these proceedings he was a Group Officer for Region East.
8. The fourth defendant, Superintendent Karen Hodges, is the Fire Control Officer and District Manager for the RFS for the Hawkesbury District. She has held that position since 1999.

Description of organisation within the NSW RFS

1. To understand the human dynamics between the plaintiffs and defendants requires some appreciation of the organisation of the NSWRFS: the differences between Brigades and Districts, between volunteers and paid workers. As Mr Jay stated in his evidence, the picture is not altogether clear.
2. The legislative framework was the Rural Fires Act 1997 (NSW) (the 'Act'). The Act requires that rural fire districts be established for local government areas and confers various functions on local government authorities.
3. By s 8(2) of the Act, the RFS Service divided members in two ways: (1) there was the Commissioner and other staff of the service and (2) there were volunteer rural fire fighters. "Volunteer rural fire fighters" meant: (a) officers and other members of rural fire brigades, and (b) any person other than a member of a rural fire brigade who, without remuneration or reward, voluntarily and without obligation engages in fighting (or in activities associated with fighting) a fire with the consent of or under the authority and supervision of an officer of a rural fire brigade.
4. Volunteer ranks are defined in the RFS Service Standard 2.1.4 Appointment of Field and Group Officers. The highest volunteer rank at Brigade level is the Brigade Captain, followed by Senior Deputy Captain and then Deputy Captain. At the time of the events in this proceeding, Mr Jay was Captain of Glossodia Brigade and Mr Peters was the President of Glossodia Brigade.
5. Section 15 of the Act provides for the formation of rural fire brigades. As the plaintiff emphasised, these are not established by the RFS, but, rather, by local government authorities. A local authority could form one or more of these for its area or part of the area. (A local authority, for this purpose, was generally, defined to be the land falling within a Council identified under the Local Government Act 1993 (NSW)).The Hawkesbury Rural Fire District was constituted by the area of Hawkesbury Shire Council. The Glossodia Brigade was established by the Colo Shire Council prior to the existence of the Hawkesbury Shire or the RFS.
6. There could be multiple brigades formed, as a group, for the district by the fire control officer for the District (s 16). The fourth defendant, Superintendent Hodges, was the Fire Control Officer and she formed the brigades of Hawkesbury District into three groups: Group North, Group West and Group South.
7. Section 18 of the Act provides that the Rural Fire Brigade is to appoint as its officers persons selected in accordance with the service standards of that Brigade. Members of a rural fire brigade were to be registered (s 20). The Act conferred certain functions on the officers (s 21).
8. The appointment of officers of a group of rural fire brigades was governed by section 19 of the Act. It required that only persons selected to be officers of the Group by the members of the rural fire brigades forming the Group could be appointed as officers of the Group. The plaintiffs submitted that although Mr Petrikas, Mr Wedge and Mr Ryan purported to act as officers of the South Group, the evidence was that they had been appointed to that role by Superintendent Hodges; even though they had never been selected to perform that role by the members of the rural fire brigades forming the Group. Rather they had been appointed to the role following purported elections each year by the brigades (cf members of the brigades) of the Hawksbury Rural Fire District (cf the South Group).
9. In the Hawkesbury Rural Fire District there was a Senior Management Team (SMT) comprised of the Fire Control Officer for the District, the Group Captains and Deputy Captains for each of the three Groups and two elected representatives of each group. The three Captains alone could vote at the SMT with the Deputy Captains and representatives attending to speak but not vote.
10. The practical relationship between brigades, groups and the SMT was described in an email from Superintendent Matthew Smith, Regional Services Manager (Operations) of the RFS, to Mr Jay on 12 July 2016. Where a brigade had a proposal which required consideration by the Hawkesbury District, the Brigade Executive or Captain was to take the proposal to either a Group Officer or the SMT. The SMT was responsible for reviewing each proposal from a brigade and providing feedback to it.
11. At the time of the events in this proceeding, the (since repealed) Rural Fire Regulation 2013 (NSW) detailed (in Part 2) certain matters about Rural Fire Brigades and Groups of Rural Fire Brigades. This included provision of a Constitution for each Brigade (Reg 4); prescription for the eligibility of members of Brigades (Reg 5), and removal of members of Brigades (relevantly for breach of discipline) (Regs 7 & 9), appeals from decisions to remove members (Reg 8); appeals from disciplinary actions (Reg 10).
12. Relevant effects of regulations 9 and 10 were that: 1. Service Standards made by the Commissioner of the RFS were given legislative force in the sense that: 1. failure to comply with a Service Standard was a breach of discipline pursuant to regulation 10(1)(c) and a ground for exercise of the disciplinary power conferred by regulation 9; and 2. the disciplinary power could only be exercised if the alleged breach of discipline had been dealt with in accordance with the procedure set out in the Service Standards; and 1. the consequences of discipline action could be as specified in reg 9(3) including suspension, demotion, disqualification from holding rank and removal from membership of the brigade.
13. It may briefly be noted that the eligibility of members to be listed on a Brigade register was satisfied upon the person proving that he or she: "(a) complies with the procedures (if any) for attaining membership set out in the constitution for the rural fire brigade, and (b) satisfies the requirements (if any) for attaining membership of a rural fire brigade determined by the responsible authority"
14. A New Brigade Constitution for NSW Rural Fire Brigades was in evidence. This was adopted by Glossodia Brigade on 29 June 2011 and commenced operation the next day. Clause 5 dealt with membership. Sub-clause 5.2 outlined different membership classifications. Clause 6 generally provided for meetings of members.
15. Clause 7 dealt with office bearers. Sub-clause 7.1 indicated that the offices of captain and senior deputy captain were elected by members at the annual general meeting. This was also the case with the President and Vice President. Clause 8 indicated that the Executive Committee of the Brigade comprised, amongst others, the president, secretary, captain and vice president. Clause 9 dealt with finance. One of the obligations of the Board was for an auditor (appointed at an AGM) to conduct an audit of the Brigade's financial records at the end of each financial year and supply a written report to the treasurer of the Brigade (cl 9.5.3).
16. A flow chart of Operations of the RFS is depicted on the third page of Exhibit 2. At the top there was an Executive Director of Operations. Immediately underneath was Director of Regional Services who, at the material dates, was Mr Jason Heffernan. Underneath him was a range of different offices; the most relevant of which was the position of Regional Manager (East). This was Mr Ben Watson. Underneath him was the Regional Operational Services Manager, Matthew Smith.
17. It will also be noted from the flow chart that at the base of operations was District staff and below that Volunteer Fire Fighters. In relation to District staff, at the material dates, there were 12 permanent positions for the Southern Region and the figure for District Staff for the south was designated to be '84.6'.

Disciplinary framework

1. Of central importance to the issues of both malice, causation and actual damage is the framework for complaints of discipline contained in Service Standard 1.1.2 Discipline [3] . It was the Director of Regional Services, Mr Heffernan's, decision that Mr Plumridge conduct his investigation in accordance with this Service Standard.
2. There is no such thing as a 'disciplinary investigation', an expression which was used multiple times by the plaintiffs. There is an investigation and there might, thereafter, be a disciplinary hearing before a disciplinary panel. Express provision was made, for disciplinary action, but not investigations of allegations, under the since repealed Rural Fires Regulation 2013 (NSW). The distinction is apparent in Service Standard 1.1.2. There are different Standard Operating Procedures ('SOP') applicable to investigations of allegations (SOP1.1.2-2 [4] ) and disciplinary hearings (SOP 1.1.2-3 [5] ). 'Disciplinary action' is defined [6] , relevantly, to include action taken against a volunteer member of the NSW RFS for a breach of discipline pursuant to cl 9 of the Rural Fires Regulation in relation to a failure to comply with Service Standards (Service Standard 1.1.2, paragraph 2.1(f)(iii)).

Investigation of allegations

1. Service Standard 1.1.2 indicates that a member of the NSW RFS is entitled to make an allegation of a breach of discipline: Service Standard 1.1.2 (paragraph 3.4). Clauses 3.5 and 3.6 set out matters of form in relation to such allegations. Anterior to this is also, SOP 1.1.42-1 titled 'Raising Matters of Bullying, Discrimination, Vilification and/or Sexual Harassment' [7] . It is part of Service Standard 1.1.42. By Clauses 2.8 to 2.11, members who feel that they have been bullied may raise their concern of bullying to their supervisor.
2. Clauses 2.1 - 2.5 of SOP SS1.1.2-2 broadly indicates the range of responses of a person in receipt of an allegation of a breach of discipline.
3. Cl 2.1 is significant. It provides: "A person who receives an allegation must consider the allegation and, if he or she considers it appropriate: a. Investigate the allegation personally; b. Appoint another person to investigate the allegation; or c. Refer the allegation to a more senior officer".
4. In their criticisms of Ms Hodges, the plaintiffs appeared to read into this provision a requirement that the 'consideration' in this provision means the recipient's own investigation into the allegation before determining whether to refer the matter on to someone else. I do not regard that construction as tenable. Clause 2.1 provides three alternatives. To take the first of those, the plaintiff's construction would mean that the recipient would need to conduct some kind of investigation before deciding to investigate the allegation personally; which is illogical if not nonsensical. It would also substantially derogate or impair the right of a member to make an allegation of a breach of discipline (in cl 3.4 of Service Standard 1.1.2). The most natural construction is that the recipient of the allegation 'considers' it in the context of having regard to the allegation and determining who is the appropriate person to undertake the investigation.
5. In Clause 2.9 of SOP 1.1.2-2, the courses of action that the appointing officer must make once in receipt of the investigator's report are made apparent.
6. In summary, essentially, a member may make a written allegation of breach of discipline. The recipient decides who is to investigate it. Eventually the appointing officer appoints the investigator. It is investigated and the investigator must determine whether there is a case to answer or whether there is no case to answer. It is then a matter for the appointing officer to determine whether to refer the matter to a disciplinary panel or determine that the matter should proceed no further. The structure is such that for complaints of breach of discipline, an investigation must proceed before any hearing by a disciplinary panel.

Disciplinary hearings before a disciplinary panel

1. Once the appointing officer, having considered the investigator's report, refers the matter to the disciplinary panel (or 'discipline delegate'), the procedure for the disciplinary panel is governed by SOP SS1.1.2-3. Significantly, the disciplinary panel must observe the rules of justice (although the panel is not bound by the rules of evidence) and allow the respondent to be represented or assisted by others (Clause 2.1).
2. The procedure appears to contemplate that the disciplinary panel may take into account matters that go beyond the report prepared by the investigator in the earlier investigation. That is not only apparent from the absence of any constraint to be bound by rules of evidence (clause 2.2), but also from the opportunity that either the investigator or another member may attend the hearing to present the case against the respondent (clause 2.4).
3. Clause 2.3 stipulates that subject to observing natural justice and the requirements of the SOP, it is up to the disciplinary panel to "determine how it will hear the matter". This indicates that there is no impediment in the disciplinary panel taking into account any other information, say, that a respondent may wish to bring to the panel's attention, including conceivably evidence not considered by the investigator.
4. Clause 3.11 provides if the respondent is found guilty of a breach of discipline, the penalties that may be imposed are: 1. reprimand the respondent; 2. suspend the respondent for a specified period or 3. recommend to the relevant regional manager that he or she: 1. demote the respondent; 2. disqualify the respondent from holding rank in the brigade or group of brigades; 3. remove the respondent's name from the brigade register; and 4. impose conditions on the respondent's membership of a brigade or group of brigades.

Bullying & Code of conduct

1. Mr Plumridge's investigation principally focussed on allegations of bullying against Mr Jay and Mr Peters and a breach of the Code of Conduct.

Service Standard 1.1.42

1. For Attachments 2 & 3 of the First Publication and 3 & 4 of the Third Publication, reference is made to Service Standards. These were relevantly:
2. Service Standard 1.1.42 is titled 'Respectful and Inclusive Workplace'. It runs to nearly 10 pages (excluding attached SOPs) [8] . The relevant part, affecting Mr Jay and, to an extent, Mr Peters, was Sections 3.10-3.15. These were as follows: "Bullying What is bullying in the workplace? 3.10 Bullying is repeated and unreasonable behaviour by a person or group of people that is directed towards a member or a group of members at work that creates a risk to health and safety. Repeated behaviour means it is persistent and can involve a range of unreasonable behaviours over time. Unreasonable behaviour is behaviour that a reasonable person, having regard to the circumstances, would see as unreasonable. Unreasonable behaviour includes any behaviour that victimises, humiliates, intimidates or threatens another member. A risk to health and safety means the possibility of danger to health and safety; it is not confined to actual danger to health and safety. 3.11 Bullying is in breach of the NSW RFS Code of Conduct and Ethics. Bullying also creates a risk to the health and safety of individuals, workgroups and ultimately the NSW RFS. 3.12 bullying behaviour can occur regardless of the presence of a protected characteristic. 3.13 Examples of behaviour, that may be considered to be bullying if they are repeated, unreasonable and create a risk to health and safety include: a. harassment; b. abusive, insulting or offensive language or comments; c. threats or acts of physical violence (this may also constitute a crime under the Crimes Act 1900 NSW; d. shouting or screaming; e. unjustified criticism or complaints; f. intimidating aggressive body language; g. humiliating and individual through sarcasm, criticism or insults; h. continuously and deliberately excluding someone from regular workplace activities; i. intentionally withholding information that is vital for effective work performance; j. deliberately setting unreasonable timelines or constantly changing deadlines; k. deliberately setting tasks that are unreasonably below or beyond person's skill level; l. spreading misinformation or malicious rumours; m. deliberately changing work arrangements, such as rosters and leave, to deliberately inconvenience a particular worker or workers; or n. excessive scrutiny at work 3.14 Bullying can occur in any location where members are undertaking authorised NSW RFS activities. It can also occur outside the physical workplace of the NSW RFS and outside business hours, including during work-related functions such as conferences, training courses and seminars, NSW RFS related social events, and trips. 3.15 bullying can be perpetrated in person as well as via email, social media (eg. Facebook, Twitter), phone calls and/or text messages. Commentary on social media, whether on private or public sites all with work or personal devices, can in certain circumstances amounts to workplace bullying. …
3. Clause 3.18 provides examples of behaviour that would not be considered bullying. This includes 'having a different opinion and/or a disagreement'.
4. SOP 1.1.42-2 is titled 'Responding to Matters of Bullying, Discrimination, Vilification and/or Sexual Harassment (Supervisory Officers) [9] . As the title indicates, this SOP sets out the procedure to be followed by supervisory officers who receive a verbal or written complaint relating to, among other things, bullying.
5. SOP 1.1.42-2 includes a useful flowchart intended to clarify what actions supervising officers should take depending upon the complaint. In order to proceed into the disciplinary process, the following steps must be satisfied: 1. The matter must not involve a member under 18 years and/or allegations of a criminal nature; 2. The matter must not relate to a personality conflict or misunderstanding, or the officer must have tried and failed to resolve the matter at the local level; 3. The matter must relate to a clear breach of discipline or misconduct; 4. The respondent must be a volunteer; and 5. The officer must determine that they are the appropriate person to handle the matter.
6. Service Standard 1.1.7 is titled 'Code of Conduct and Ethics'. Subsumed within this Service Standard is the Code of Conduct. The Code of Conduct nearly ran for 22 pages [10] .
7. In Section 1 of the Code of Conduct is a statement of "Our Values". One of these was "Integrity and Trust" and certain aspirational statements are made about that matter. By cl 3.1 of the Code of Conduct, all members of the RFS had to comply with NSW RFS Values (and the Code of Conduct).
8. Section 4.6 of the Code of Conduct is in the following terms: "4.6 Respectful and Inclusive Workplace The NSW RFS is strongly committed to providing and maintaining a respectful and inclusive workplace, where all members are treated with dignity, courtesy and respect at all times and in all work locations. Bullying, discrimination, vilification and/or sexual harassment have no place in a respectful and inclusive workplace. Volunteers must comply with all relevant service standards. Staff members must comply with all relevant policies and service standards."

The roots of antagonism between Glossodia Brigade and Hawkesbury District

1. Mr Jay gave evidence of simmering tensions with the Hawkesbury District leading up to the dates of the publications. For a period, Glossodia Brigade went along with a Village 1 classification, but this changed from 2011 or 2012. In 2011, Karen Hodges asked Glossodia Brigade to reconfirm their classification as Village 1 Brigade. Glossodia Brigade had been agitating for a reconsideration of its classification as a 'Village 1'. The Brigade felt that with its different risk profile, it should at least have been considered for Village 2 status. The main difference between the two classifications was that the increased likelihood of structural fires necessitated access to breathing apparatus. The Hawkesbury District office was, collectively, not well disposed to the idea of change. But ultimately, Glossodia Brigade, and others within Group South, were reclassified as Village 2.
2. The issue was more than of symbolic importance. Glossodia were trying to get equipment commensurate with its needs, such as breathing apparatus. Mr Peters was trying to have Compressed Air Breathing Apparatus (CABA) introduced in the Hawkesbury District. CABA allows firefighters to enter burning structures without being deprived of oxygen and protects them from noxious fumes commonly emitted from structural fires. In 2014, the RFS began a partial rollout of CABA to brigades in Hawkesbury. This was, according to the plaintiffs, achieved by Mr Peters effectively bypassing Karen Hodges and taking the issue to the Commissioner, who in turn referred the matter to the Regional East Manager, John Parnaby. Mr Jay recalled meetings between Mr Parnaby, Mr Peters and Ms Hodges in which Mr Parnaby sided with Mr Peters.
3. Another issue concerned the ongoing suitability of tankers. Around 2015, Glossodia was also agitating for the acquisition of an urban-style pumper, leaving their Category 1 tanker (which was between 3,000 and 3,500 litres), to replace the Category 7 truck (which had a much smaller capacity) for bush fire- fighting whilst providing back up capability in structure fire-fighting.
4. According to Mr Jay, for progress to occur with the changes, the issue needed to be discussed and considered at the Hawkesbury District SMT scheduled for 23 September 2015.

SMT meeting of 23 September 2015

1. On 23 September 2015, this meeting took place. It was attended, among others, by Messrs Ken Pullen, Don McKillop, Ian Wedge, Chris Petrikas, Andrew Rutter and Ms Karen Hodges. A motion was put and adopted that Cat 1 Village Tankers were the most appropriate village tankers for the Hawkesbury. There was also a CABA review. The minutes of the meeting recorded that it was determined that if the funds requested "in the 15/16 Estimates were approved, they should consolidate Glossodia, Wilberforce and Oakville Brigades in CABA." The SMT agreed to review the position in 12 months' time. Amongst other things, the Minutes of the meeting recorded that everyone in attendance agreed that pumpers were not suitable for the Hawkesbury District and were not economical.
2. Mr McKillop was the Deputy Group Captain of the Hawkesbury Fire District. He gave evidence of his attendance of an SMT meeting on 23 September 2015 and recalled a discussion on the subject of CABA and tankers. He was asked what Mr Rutter said on that subject. Mr McKillop recalled that what Mr Rutter said was not all that different to what others had said but the general sentiment appeared to be that CABA at some or all of the Brigades was not the right thing at the time because the SEO (presumably Senior Executive Officer, Ms Hodges) was not in favour because of budgetary constraints. Mr McKillop did not recall saying anything about Mr Rutter when he spoke to Mr Peters after this meeting. This was very different to Mr Peters' evidence, which was to the effect that Mr McKillop had expressed to him substantial criticism about what Mr Rutter had said in the SMT meeting. Noting what I later say in the section on Credit, I prefer Mr McKillop's evidence of what he said to Mr Peters about Mr Rutter.
3. On 29 September 2015 a Group South meeting was held where Mr Andrew Rutter reported on the recent SMT meeting, including the circumstance that the SMT had passed a motion against the acquisition of pumpers. Minutes of the Group South meeting were distributed by the District Administration Officer by email on 28 October 2015. Mr Jay was one of several recipients.
4. Mr Jay acknowledged that he had read the Minutes of this meeting in preparation for the hearing. He was referred to Andrew Rutter's written reference to the motion encapsulating that recommendation. Mr Jay did not recall ever contacting Mr Rutter or Mr Earle about the Minutes.
5. The plaintiffs contend that Mr Rutter was not adequately, or at all, transparent in his report of the 23 September 2015 SMT meeting at the Group South meeting which occurred on 29 September 2015. Although he was the sole representative from a CABA brigade in the South Group, they say that Mr Rutter had gone along the sentiment within the meeting that pumpers were not suitable for the Hawkesbury. It was said that his stance could only have been based on his own views or those of the Oakville brigade. But those views did not take into account the views of the Glossodia and Wilberforce Brigades.

The Group South meeting in March 2016

1. A Group South meeting occurred on 23 March 2016 at Oakville station. Minutes of the meeting showed that Mr Jay questioned the effectiveness of pumpers to the Cat 1 tankers and that, in response, Mr Petrikas and Mr Rutter explained that the current Cat 1 tankers were designed for CABA and bushfire use, on and off the road. Mr Peters asked about the potential to increase the vehicles available in the RFS fleet. Mr Jay sought support to upgrade to a Cat 1 village tanker or pumper. Mr Petrikas responded by stating that the new Hawkesbury Cat 1s were ordered with a village pump. But Mr Jay disagreed, stating that a Cat 1 village pump had an output of 1900 litres per minute. Glossodia and Wilberforce both sought to upgrade their Cat 7s to Cat 1s or pumpers. Mr Schultz also asked Mr Scott Grinyer (from Blaxland Ridge Brigade) to attend a SMT meeting as he had experience to discuss the pros and cons of the use of a pumper. The plaintiffs submitted that Mr Petrikas effectively shut down these suggestions, although it is not clear to me on the face of the Minutes either what that meant or how it occurred.
2. An election of SMT representatives took place at this meeting. Mr Jay had been nominated (by Mr Peters, seconded by Mr Schultz) but he lost: Mr Earle and Mr Rutter were elected. Mr Jay raised a motion about voting, suggesting that the Brigades/groups have one representative to vote at the election. Mr Schultz seconded that motion, but the motion failed. Mr Jay was cross-examined about what had occurred at the meeting and it was put to him, although he denied, that he had raised his voice, interrupted others or was disruptive, rude and aggressive.
3. There followed correspondence about a proposal by Glossodia Brigade to have its boundary enlarged. Mr Jay was of the view that Tennyson Brigade's boundary was too close to Glossodia's. But the correspondence indicated that Mr Petrikas (who happened to be the Captain of the Tennyson Brigade) was opposed.
4. It was put to Mr Jay, but he did not recall, whether he had subsequently raised any complaint about the roles of Mr Rutter or Mr Earle on the SMT.
5. Between 27 April 2016 and 19 May 2016, there was acrimonious email correspondence between Mr Jay and Mr Petrikas. It seemed to start from Mr Petrikas' preference (initially expressed to Michel Schultz) to have the next South Sector meeting after the June 2016 SMT meeting. Mr Jay indicated (in his email of 4 May) that he wanted the next Group South meeting "BEFORE" the next SMT meeting. He gave vent to his belief that sequencing the Group South meeting in this way was "essential, in fact, because that is the only way that the views of the Group can be represented at the SMT - to do otherwise is a cynical attempt to manipulate process and deny the Group a voice at the SMT." Mr Petrikas took umbrage at this email, complaining, amongst other things, about Mr Jay 'pushing and trying to belittle' him. Mr Jay responded in turn, claiming that he was "at a loss to how you could have reached those conclusions".
6. On 19 May 2016, Ian Wedge sent an email to persons including Andrew Rutter, Bruce Earle, Chris Petrikas and Graeme Jay. The email proposed a vote on whether Scott Grinyer should be permitted to make a presentation concerning the use of pumpers. Mr Jay sent a reply protesting the proposal on the basis that agenda items should not be prohibited from being considered at a meeting. On 25 May 2016, Ian Wedge sent an email to Chris Petrikas, Dave Ryan and Karen Hodges, indicating that the Brigades of Group South had voted against allowing the presentation. So it did not occur.

The letter from Glossodia and Wilberforce Brigades to Don McKillop

1. On 16 June 2016, Glossodia (Mr Jay) and Wilberforce Brigades (Mr Bryan Germain) drafted a letter for the attention of Mr Don McKillop. The letter asserted that it was Glossodia and Wilberforce's intention to ask "our own Group South to represent us but that is not possible" and also asserted that discussion of appropriate tankers had been "stifled". The letter went on to state Glossodia's and Wilberforce's position on the subject of tankers. Mr Jay paraphrased the request as being that Glossodia wanted to swap a Category 7 tanker for a Category 1 tanker in the short term, but wanted a Category 11 (Urban) pumper. The letter concluded by Mr Jay asking for Mr McKillop to "argue our case in the strongest possible terms".
2. Mr McKillop was not a South Group representative on the SMT. Mr Jay acknowledged that he did not address the concerns in this letter to any of Mr Petrikas, Mr Ryan, Mr Wedge, Mr Rutter or Mr Earle. It was put to Mr Jay, but then latter rejected, that by sending a letter in this way, he was going over the heads of the SMT, effectively bypassing proper process; although he conceded that there was nothing to stop him from sending to them the letter.
3. Mr Peters said that he saw the letter before it was sent to Mr McKillop. He was aware that it had not been sent to any or all of the first, second and third defendants, or Mr Rutter or Mr Earle. There was a debate between the defendants' Senior Counsel and Mr Peters as to whether there was any reference in the letter to CABA. Mr Peters maintained that there was, perhaps implicitly, through the reference to equipment needs.

The SMT meeting on 16 June 2016

1. On (Thursday) 16 June 2016, there was a meeting of the Hawkesbury RFS District Senior Management Team (SMT). Items of discussion included an indication, on behalf of the Wilberforce and Glossodia Brigades, as to their preferred form of tanker. At that meeting the minutes record the following matters which were relevant to the Glossodia and Wilberforce proposals: 1. The SMT in principle agreed to the proposition that additional Cat 1 tankers be allocated to Glossodia and Wilberforce in lieu of their Cat 7 vehicles when housing became available - that is the SMT agreed with the substance of the proposal tabled by Mr McKillop; 2. In the review of tanker acquisition strategy, priority had been given, inter alia, to refurbishment of LM1B, replacement of OCV and refurbishment of the catering vehicle; 3. In the review of station investment priorities, specific stations, not including Glossodia and Wilberforce, had been identified as priorities for investment for the next ten years.
2. Mr Peters said that he was unaware of Mr Rutter and Mr Earle being in attendance. He made no inquiry of them.
3. During the SMT meeting on 16 June 2016, one of the attendees, Mr McKillop, tabled the letter (of the same date) co-authored by Mr Jay and Mr Bryan Germaine (Captain of Wilberforce Brigade) referred to earlier. Mr McKillop did not, however, recall reading it out himself (Mr McKillop, over 80 years of age, indicated that he suffers from dyslexia). The letter was however, read out. He thought it might have been read out by Ms Hodges or Tim Seary. Mr McKillop said that reading out the letter elicited a negative response. He recalled that Mr Wedge insulted him. Mr McKillop's response to that was that he felt that his duty as a SMT representative was to represent all Brigades and that he only tabled the letter because he wanted to help the Glossodia and Wilberforce Brigades.
4. In cross-examination, Mr McKillop said that he spoke to Mr Peters after the SMT meeting on 16 June. He recalled telling Mr Peters that "things didn't go down too good" and that, it was up to him to push on with it. Mr McKillop did not give evidence about telling Mr Peters anything about what Mr Rutter or Mr Earle had specifically said or done, or not said or done at this meeting [11] .
5. Mr Peters said in his evidence in chief that Mr McKillop was the source of information that Glossodia's concerns were not being listened to at the SMT level and that Mr Rutter was not interested, effectively, in advocating for them. According to Mr Peters, Mr McKillop had conveyed to him that Mr Rutter was only interested in advancing the interests of the Oakville Brigade. Mr Peters believed that the motions were necessary since Glossodia needed (effective) representation at the SMT and to be heard. He gave some history relating to his dealings with the District since 2012 when, according to Mr Peters, the District appeared more concerned about the budgetary concerns about getting CABA equipment at the Brigade level then firefighters' safety. Mr Peters noted, in particular, that from about this time, his (or even Glossodia Brigade's) dealings with Ms Karen Hodges had changed. Rutter and Earle did not represent their interests well enough. He also explained that the source for what he and Mr Jay wrote about Mr Earle was Mr Earle's own admission that he had a conflict of interest. Later, in re-examination, when he was referred to the part of the letter in which he asserted that Mr Rutter was not representing "us as a group", he explained that he was referring to Group South and V2 Brigades (Oakville, Wilberforce and Glossodia).
6. Mr Peters was challenged on his evidence about a prior conversation with Mr McKillop about Mr Rutter. Mr Peters recalled that the conversation had occurred at the Station, and it could have been at the AGM back in May. Mr Peters was perturbed about Mr Rutter and others' apparent opposition to CABA. He was challenged to give a verbatim account of what was said. In response, Mr Peters recalled that it was substantially to the effect: "Mr Peters: What else can I do? Every time we put something to the District Office, we're not getting anywhere. Mr McKillop: they're not listening to you .. you're hitting a wall … why don't you put your concerns in a letter. Give it to me and I'll lodge paper at the SMT"
7. Senior Counsel for the defendants put to Mr Peters that this conversation really occurred in 2013 or 2014. Whilst that might have been the case, according to Mr Peters, he believed that the issue was still live in 2016. It was also put to Mr Peters that he knew that Mr McKillop was only speaking of his own views and could not have been speaking on behalf of the SMT as a whole. Mr Peters saw that there was no relevant difference. Senior Counsel put to Mr Peters that, to the contrary, the reference in his explanatory letter to SMT's suggestions was misleading, but Mr Peters disagreed with this.
8. Much of this evidence by Mr Peters was contrary to Mr Peters' recollection. In a choice between Mr McKillop and Mr Peters' undocumented recollections, I prefer Mr McKillop's evidence.

The plaintiffs' criticisms of Mr Petrikas' report of the SMT meeting on 20 June

1. On 21 June 2016, Mr Petrikas emailed a response to the letter which had been tabled by Mr McKillop at the meeting on 16 June. The letter was written on 19 June 2016 (Exhibit 4). The plaintiffs argued that the letter was 'egregiously misleading' for:

• omitting to mention the agreement to Glossodia Brigade exchanging its Cat 7 vehicle for a second Cat 7 tanker when housing became available;
• omitting to mention that if there was any concern about housing available for a second tanker at Glossodia, the SMT decisions on station building priorities meant that the RFS was not going to address them for 10 years;
• asserting that the SMT's position on pumpers was tied to a suitable 4-wheel drive pumper becoming available when it was not.

1. Mr Peters agreed that he expressed no commentary on the report given by Mr Petrikas to him, the other two defendants or Messrs Rutter and Earle.
2. The plaintiffs submitted that none of Mr Petrikas, Mr Wedge, Mr Ryan or Mr Rutter corrected the record of what the SMT had, in fact, decided or do anything otherwise to ensure the South Group brigades understood the SMT's thinking on the further development of CABA at the Hawkesbury. The plaintiffs criticised the failure of each of the defendants to report to South Group, prior to the 20 July 2016 meeting, that the SMT had agreed, in principle, with the Glossodia and Wilberforce proposal.

Glossodia Brigade's representations concerning tankers

1. On 24 June 2016, Mr Jay sent an email to Mr Petrikas (cc'd to multiple recipients, including Mr Peters). Mr Jay sought to encourage Mr Petrikas to make representations to the District office on behalf of the Glossodia Brigade about its needs for tankers and preference for pumpers. It was notable that Mr Jay stated the following: "Given that we agree on so much and differ on such a minor point I would ask that we consider a pathway forward to resolve that single point of contention."
2. On 12 July 2016, Mr Rod Walker, the operational officer of the Hawkesbury district emailed Mr Jay, informing him to arrange for the collection of the new category 1 tanker from the council depot two days later at 11 am. Further indications were supplied as to the items of equipment that must remain on the old tanker.
3. At 10:36 am on 18 July 2016, Karen Hodges sent an email to Ben Watson to discuss one of Mr Peters' emails to Mr Seary (sent at 5:47 PM on 15 July). Later that afternoon, Ms Hodges sent an email to Graeme Jay indicating that an authorised person approved by Council was to do the fitting of the equipment on the truck and requesting that he advised Bob Walker when the old tanker could be returned to the depot for the 'de-install' of the radios.
4. At 8:18 am on 19 July 2016 Graeme Jay emailed Karen Hodges to ask Council to send an auto-electrician to his station to do the work as well as listing items to be removed from the old tanker. This prompted Karen Hodges to send an email (9:34am on the same day) indicating that the RFS would arrange to pick up the old tanker and also asked Mr Jay to tell Rod Walker when it was ready to be picked up.
5. At 11:40 am (the same day) Graeme Jay sent an email to Ms Hodges accepting her suggestion but asking for assurances that any equipment removed from the old truck would be returned to the brigade and when equipment would be installed in the new truck.
6. At 2:11pm (the same day) Rob Walker asked Mr Jay if he could confirm whether 25 July 2016 was a suitable date.
7. At 3:25pm Mr Jay responded to Mr Walker's email. He indicated that he would confirm when the old truck was available for removal when he received a response on other related issues he had raised in his email of 11:40 AM that day. It appears that at the same time, Mr Walker informed Mr Jay of the works to be done on tankers and sought a suitable date for work.

The drafting and sending of Mr Peters' letter explaining the motions against Messrs Rutter and Earle

1. Earlier, on 18 July 2016 (a Monday) at 3:39pm, Mr Peters emailed Mr Jay a letter in draft. It was a first draft. The email queried whether Mr Jay was "okay with this". This first proposed version of the draft letter was in the following terms: "As discussed I have a motion of no confidence to be tabled at the group south meeting on Wednesday night, the 20th July, The motion is a no-confidence motion in Andrew Rutter our group South representative (GSR) on the senior management team (SMT). Details of the motion are; a recent representation from Glossodia and Wilberforce brigade Captains was given the (sic) Group Captain Don McKillop to be tabled at the recent SMT meeting, the SMT had made suggestions that they didn't know of our concerns as detailed in the submission. We have on many occasion (sic) raise issues at Group south meetings and these items have been minuted, and Andrew Rutter our GSR you of our concerns and needs and he was to raise them with the SMT, it is obvious that he has not done this and has misrepresented us on the SMT. Because of this Andrew Rutter should stand down immediately as our GSR, and new member be elected to represent us correctly and raise our concerns and issues as we have them discussed at any Group South Meeting. As there are now 3/V2 Brigades in the Group South area, and Andrew Rutter has not been representing us, I suggest that the new GSR come from either Glossodia or Wilberforce brigades this will make sure that concerns for the V2 brigades can be tabled and discussed as their needs can be somewhat different then a V1 brigade, as we (Glossodia and Wilberforce) are responding to all other areas in the Hawkesbury as no other Brigades are V2 classified, it is becoming more important that we can do what is asked of us and have the correct equipment and have a voice on the SMT as like other groups do; EG, Raft Group…"
2. On 18 July 2016 at 6:20pm that evening, Mr Jay effectively applauded this draft; whilst suggesting that Mr Peters should email the no-confidence motion directly to Mr Petrikas so that they could see whether he would raise it (and if he did, Mr Jay would second it). Mr Jay foreshadowed that if Mr Petrikas did not raise it, he would.
3. This suggestion prompted Mr Peters to indicate (by email at 8:03pm) that if he decided to send the letter, he would do so late on the Wednesday afternoon. In this way Mr Petrikas would not have "much time to rally his supporters".
4. By his email at 8:10pm, Mr Jay endorsed this last suggestion as to the timing for delivery of the motion. This was just after Mr Peters (at 8:08pm) asked Mr Jay to send to him Mr Petrikas' email.
5. Senior Counsel for the defendants put to both Mr Jay and Mr Peters that their intention was to ambush, at least, Messrs Rutter and Earle.
6. On 20 July 2016 (a Wednesday), Mr Jay informed Mr Walker (by email at 8:30am) that the old category one tanker was available for pick up on 24 July 2016 as well as seeking confirmation that the alpha tanker would be returned to the brigade along with removed equipment. At 11:23am the same day, Mr Walker confirmed to Mr Jay that he would arrange for pick up on 25 July 2016 and that the old category one tanker would not be returning to the station as Council was going to decommission and undertake repairs to the tanker before returning it to HQ. It appears that Mr Jay was agreeable to the notion that specific equipment would remain on the old tanker with the RFS arranging to return the old equipment.
7. On 20 July 2016 at 3:41pm, Mr Peters sent Mr Jay another draft letter. He asked Mr Jay to review and advise on it. Mr Peters said that on this day he was in Orange, having arrived there on the Tuesday night (returning to Sydney on the Friday).
8. A notable addition to this draft of the letter, in comparison with the previous (first) draft, was the inclusion of an explanation for what was to become motion 2. This related to the assertion of Bruce Earle having a conflict of interest (with supporting particulars).
9. Mr Jay could not recall communicating with Mr Peters after reading the email at 3:41pm. [12] He accepted that he had seen similarly-worded motions to those ultimately presented to the meeting. Mr Jay said that it was Mr Peters' idea to move for Mr Rutter's removal; although he could not recall seeing the motion to remove Mr Earle. He accepted that he had approved Mr Peters' motion. He conceded that he had never once complained to Mr Rutter, or Mr Earle about their performance as the SMT representative or indeed had asked them to do anything and he had not taken steps to speak to Mr Heffernan or the Professional Standards Unit ('PSU') about any complaints about any of the first, second or third defendants, Mr Rutter or Mr Earle. Mr Jay denied conveying the content of the written communications with Mr Peters to the meeting.
10. It was put to Mr Jay, although he did not recall, that Mr Earle had never said that he had had a conflict of interest. He denied that by asserting that Mr Earle had a conflict of interest was, in substance, to say that he was unfit to perform and was libellous and defamatory; although he suggested that to deliberately make a false allegation about a conflict of interest would be bullying.
11. On 20 July 2016 at 5:15pm, Mr Peters sent the third and final version of the letter to Mr Petrikas. The letter was as follows: "Hi Chris I cannot attend tonight's Group south Meeting at Glossodia's Station due to work commitments out west for the week, could you put in my apologies please? I would like you to put up these 2 motions for me at tonight's Group South Meeting, as detailed below. Please? Motion 1; A motion of no confidence motion in Andrew Rutter as our group South representative (GSR) on the senior management team (SMT) and he should stand down and a new member be elected from the floor tonight. (Details below) Motion 2; That Bruce Earle stands down as he has sated (sic) there is a conflict of interests as our GSR, and his employment with the Hawkesbury city council. (Details below) Details of the motions are; Motion 1; A recent representation from Glossodia and Wilberforce brigade Captains was given the (sic) Group Captain Don McKillop to be tabled at the recent SMT meeting, the SMT had made suggestions that they didn't know of our concerns as detailed in the submission. We have many occasion (sic) raised issues at Group south meetings and these items have been minuted, and Andrew Rutter our GSR knew of our concerns and needs and he was to raise them with the SMT, it is obvious that he is not done this and has misrepresented us on the SMT. Because of this Andrew Rutter should stand down immediately as our GSR, a new member be elected to represent us correctly and raise our concerns and issues as we have then discussed at any Group South Meeting. As there are now 3/V2 Brigades in the group South area and Andrew Rutter has not been representing us as a group and only representing his brigade Oakville, I suggest that the new GSR come from either Glossodia or Wilberforce Brigades this will make sure that concerns for the V2 brigades can be tabled and discussed as their needs can be somewhat different than V1 brigade, as we (Glossodia and Wilberforce) are responding to all other area's (sic) with in the Hawkesbury area, as no other Brigades are V2 classified, it is becoming more important that we can do what is asked of us and have the correct equipment and have a voice on the SMT as like other groups do; EG Raft Group. A member of the SMT must represent all brigades and table and discus (sic) any concerns or items that is agreed at the Group south meetings, and report back to the group of the outcomes. Motion 2; At the last group South meeting held at Oakville Station, we had elections for the GSR, Bruce had stated at the meeting that he has been told by his employer that he be careful with making comment etc on the SMT as he is employee of the council and could affect his employment. This is a conflict of interest with representing the brigades of the South Group and he should make way for another member that does not have this conflict. This is no way a reflection of what a good job Bruce has done and I commend him for his time and effort representing south group Regards John Peters President GRFB"
12. Mr Jay conceded that he could not point to any minuted item indicating that Mr Rutter had failed to do anything that Mr Jay had asked of him. Mr Jay denied that bringing a motion of lack of confidence was damaging or indeed derogatory and said that he did not anticipate that the letter would upset Mr Rutter. It was put to Mr Jay, although he denied, that if Mr Rutter stood aside, he was the obvious candidate to replace him: Mr Jay said that he did not want the job. He explained that he had been 'comfortable' with his loss back in the SMT election from March. It was also suggested, though again Mr Jay denied, that he wanted to ambush Mr Rutter and others like Mr Petrikas at the meeting, by delaying the provision of Mr Peters' letter until it was too late for Mr Petrikas to rally supporters.
13. Mr Peters said that he thought he had given (by hand) Charles Eather a copy of the final draft of the letter that he had given to Mr Petrikas (sent at 5:15pm on the Wednesday). But Mr Peters' recollection was that it was hand delivered before he left for Orange on the Tuesday. He denied asking anyone else (i.e. Mr Jay) to deliver a hard copy to Mr Eather. It was put to Mr Peters, but he denied, that his evidence as to how Mr Eather received a copy of the letter was dishonest.
14. Mr Charles Eather has been another long-serving member of the Glossodia Brigade. He gave evidence on the subject of the letter prepared by Mr Peters regarding the motions to remove Messrs Rutter and Earle. Mr Eather was an attendee at the Group South meeting on 20 July 2016.
15. Mr Eather said he received a letter in an envelope, by hand, from Mr Peters the Saturday before the meeting (which would have been 16 July 2016). It was presented to him at Mr Eather's home. Mr Peters had explained to him that it was a letter to be presented to a meeting. He said that he did not see the contents of the letter. He said he handed the envelope to Mr Petrikas. He inferred that Mr Petrikas had given it back to him (after reading it) and Mr Eather then gave the envelope to Mr Pullen.
16. Under cross-examination, Mr Eather was shown the final version of the email from Mr Peters to Mr Petrikas (5:15pm) on 20 July 2016. He affirmed that he had not seen it before. But he believed that this email was inside the envelope. It was put to Mr Eather, but he denied, that his recollection of meeting Mr Peters the Saturday before was false, and indeed, knowingly false.
17. It was suggested that during the meeting, Mr Eather had said the words "He (i.e. Mr Peters) emailed Chris". Mr Eather agreed with this. He said that he did not remember whether he had also said ".. no John Peters he emailed …" before being interrupted. Asked how he knew that Mr Peters had sent the email to Mr Petrikas, Mr Eather recalled that Mr Petrikas had indicated to him that he did not look at emails. Mr Eather was challenged on this evidence: it was put to him, but he denied, that Mr Petrikas had not told the meeting that Mr Peters had emailed him. It was put to Mr Eather, but he denied, that he had seen the email sent to Mr Petrikas and handed it to Mr Pullen.
18. Mr Peters accepted that he had not complained to Mr Rutter or Mr Earle, or any of the first, second or third defendants about their performance before sending the letter to Mr Petrikas. With respect to Mr Rutter, Mr Peters accepted that his objections about him stemmed from events that had occurred prior to 2016. With respect to Mr Earle, all that the latter had told Mr Peters (about 4 months earlier) was of an event that had occurred, 6 or 7 years before. Mr Peters knew that there was no serious conflict of interest in Mr Earle's position at all.
19. Mr Peters' motives and beliefs were challenged. He was making up allegations to try to instal his own preferred candidates and had engaged in derogatory and defamatory conduct towards both Mr Rutter and Mr Earle. He had engaged in acts of bullying against them both.
20. At 7:30pm the meeting of the Hawkesbury group South Brigades commenced. It is the events that occurred at this meeting which gave rise to the First and Second publications. Extracts of what was said during this meeting are set out in a later section in these reasons dealing with the falsity of the pleaded representations from the First and Second Publications. For the moment, however, I will continue with the chronological narrative.

Events following the 20 July 2016 meeting up to the first publication

1. On 21 July 2016, there was an exchange of texts between Mr Jay and Mr Ryan. They were not hostile in content. Mr Jay had no further contact with Mr Petrikas, Mr Ryan or Mr Wedge prior to 25 August 2016.
2. Between 3 August 2016 and 4 August 2016, Rod Walker informed Mr Jay that all electrical equipment had been removed from the old truck and updated him on a submission for G1 which needed approval. Mr Jay informed Mr Walker that the brigade had a new UHF radio to replace the one removed and asked for all items removed to be promptly returned to the brigade.
3. On 4 August 2016 (at 12:16pm), the third defendant, Mr Wedge, under the subject heading 'South Sector Issue' emailed to Karen Hodges (and copied to Mr Petrikas and Mr Ryan) a draft letter from himself, Chris Petrikas and Dave Ryan with a number of supporting documents. The letter [13] recorded that they had received a number of letters and emails from and had phone discussions with members of the Brigades and groups who attend the 20 July meeting. They were of the nature of concerns about 'Graeme Jay's, John Peters' and Michael Scholz's continued bullying and disruptive behaviour.' On its face the letter referred to the attachment of copies of correspondence received from Brigades/Groups in the South Sector, as well as an email received from Hawkesbury West 1. The letter went on to record: "There is a real risk that Brigades may stop attending future meetings or that we may receive resignations from some offices unless the situation changes for the better. We Group Officers support the complaints raised by the attendees, and in particular, those raised by Andrew Rutter and Bruce Earle, the SMT representatives who were publicly ridiculed by John Peters and Graeme Jay. We also wish to complain about the ongoing behaviour and bullying harassment from Graeme Jay, John Peters and Michael Scholz, which is contrary to the RFS Code of Conduct, and which we have all had to endure over time and during past meetings. We wish action to be taken urgently to resolve this ongoing bullying and disruptive behaviour."
4. On 11 August 2016, Ms Hodges responded to Mr Wedge's email of 4 August, attaching the draft letter prepared by the first, second and third defendants. She requested that he "consolidate information and evidence held providing specific examples of behaviours or actions that may breach service standard or code of conduct prior to the instigation of an investigation".
5. On 17 August 2016, there was an executive meeting of the Glossodia Brigade, convened by Mr Peters. Minutes of the meeting were in evidence. Mr Jay prepared a verbal report of the Group South meeting on 20 July. That verbal report was minuted as follows: "group South meeting last month got a bit ugly. Glossodia do not have the trucks to meet the communities risk profile. We need a pumper or at the very least another cat 1. District and group South did not want to acknowledge this and kept on shutting any discussion down on the subject. We need to meet the needs of a growing community and to keep on at district so we get the tools that we need. Glossodia provide a BA (breathing apparatus) response to every suburb in the Hawkesbury and this alone should qualify us for more trucks etc if evidence is needed that district do not communicate with the brigade, look at the fit out of the new cat 1. The Brigades phones and other equipment should have been added in the build phase of the truck, this would have saved time and money in the long term. If district had of had an open line of communication with the brigade this would have been the outcome and the cat 1 would be fully equipped with all that is needed."
6. The Minute also recorded that Mr Jay had stated that his relationship with the district was "very fractured" and questioned his leadership of the Brigade and suggested the possibility of support. There were discussions at the meeting as to potential candidates to replace him but at that point least, Mr Jay had decided to stay on as captain.
7. On 25 August 2016, the First Publication was made.

THE FIRST PUBLICATION

1. The first and second publications substantially comprise the same material.
2. The First Publication was set out at paragraph 3 of the Amended Statement of Claim (ASOC).

The 25 August 2016 letter

1. On 25 August 2016, Messrs Petrikas, Ryan and Wedge sent a letter to their supervisor Superintendent Karen Hodges (the fourth defendant), who was the District Manager for the Hawkesbury Region. They signed the letter, as they described it, in their capacity of South Sector Group Officers.
2. The letter dated 25 August 2016 was brief, but the attachments were voluminous. The letter was as follows: "Superintendent Karen Hodges Hawkesbury Fire Control …. Dear Karen Since the South Sector Meeting held on 20th July 2016, we, the Group Officers of the South Sector, have received a number of letters and emails from and phone discussions with members of the Brigades and Groups who attended that meeting. These communications express concerns about Graeme Jay's and John Peters' continued bullying and disruptive behaviour. Attached are 3 allegations of breaches of the RFS Service Standards and the Code of Conduct, two against Graeme Jay (Glossodia Captain) and one against John Peters (Glossodia President). Also attached are 11 documents from attendees at the South Sector meeting supporting these allegations. Can you please review these submissions and take the necessary steps for appropriate disciplinary action to be taken against these two individuals. Regards, Chris Petrikas David Ryan Ian Wedge South Sector Group Officers"

The allegations (Attachments 2, 3 & 4)

1. The main attachments to the 25 August 2016 letter were Attachments '2', '3' and '4'. There were multiple attachments (signified by capital letters) to these Attachments.
2. The 3 Attachments were headed 'Allegation - Bullying' (against Graeme Jay), 'Allegation - Bullying' (against John Peters) and 'Allegation - Dishonesty' (against Graeme Jay).
3. The attachments followed a common structure, and were commonly understood to amount to 'charge sheets' against the plaintiffs. The structure was indicated by the sub-headings in the following sequence: 'Against' (i.e. who was the subject of the allegation'), 'For' (that is the relevant contravention alleged, in this case, being either or both of the Breach of Service Standard or Breach of Code of Conduct'), 'Statement of Facts' (a succinct statement of facts, or particulars, for the suggested allegation), 'When' (the venue, nature of the meeting and approximate time, in this case being 20 July 2016 at the South Sector Meeting from 1930 onwards'), the 'Location', the 'Evidence (this itemising each of the internal attachments indicated by capitalised letters), and the 'Witnesses'. It is pertinent to note that for these charge sheets, each of the defendants were identified as witnesses for the 3 Attachments to the 25 August 2016 letter.

Attachment 2

1. The pertinent allegation concerned Graeme Jay. The nature of the allegation was 'Bullying'.
2. Under the sub-heading 'For', which might be regarded as synonymous with a statement of charge, reference is made to Service Standard 1.1.42 (Sections 3.10-3.15) and Code of Conduct (Section 4.6).
3. On its face, the publication indicated an allegation that both Service Standard 1.1.42 (Sections 3.10-3.15) and the Code of Conduct (Section 4.6) had been 'breached'.
4. The 'Statement of Facts' effectively outlined particulars of these allegations. The conduct occurred on 20 July 2016 at the South Sector meeting from 1930 onwards. It is convenient to reproduce them in their entirety: "1. On at least three occasions during this meeting Graeme displayed bullying behaviour by repeatedly raising his voice in an aggressive manner which intimidated the persons involved. 2. This behaviour continued despite Group Captain Chris Petrikas intervening and telling Graeme that there was no place for aggression and we needed to resolve issues like reasonable men in a calm way. Subjects being discussed when this behaviour was exhibited were:

• Brigade boundaries between Tennyson and Glossodia
• Letter submitted by a North Sector Group Officer to the Senior Management Team (SMT) bypassing South Sector Group Captains and elected representatives
• Letter submitted in absentia by John Peters moving motions to remove the elected SMT representatives and containing libellous statements. 3. This is not the first time this behaviour by Graeme has occurred in South sector meetings"

Attachment 3

1. The pertinent allegation concerned John Peters. The nature of the allegation was 'Bullying', occurring at the South Sector meeting on 20 July 2016 from 1930 onwards.
2. What I have described as the statement of charges are breaches of the Service Standard (1.1.42, Section 3.13(e) and 3.13(l)) and breaches of the Code of Conduct (Section 4.6).
3. The Statement of Facts were outlined as follows: "1. John Peters, who was unable to attend the meeting, provided a letter containing two motions. 2. The narrative he provided supporting his motions with libellous comments (Attachment I) regarding Andrew Rutter and Bruce Earle. 3. John Peters claimed they were unfit to represent South Sector as Senior Management Team (SMT) Representatives due to not tabling and following through feedback from South Sector brigades at the Senior Management Team (SMT) meetings. 4. Despite a warning from Group Office Ken Pullen that the content was libellous as, having attended SMT meetings, he knew that the representatives had pursued South Sector issues, the letter was read at the insistence of Graeme Jay."

Attachment 4

1. This allegation concerned Graeme Jay. The nature of the allegation was 'Dishonesty'.
2. The 'charge' was 'Breach of Code of Conduct - Integrity and Trust'.
3. The 'Statement of Facts' was as follows: "1. Graeme Jay advised the South Sector meeting on 20 July 2016 that he had no idea of the content of the letter from John Peters containing libellous statements about Andrew Rutter and Bruce Earle and which requested their resignations as senior management team (SMT) representatives. 2. Graeme pushed very strongly that the letter be read in full, even after Ken Pullen who is chairing the meeting at the time, advised that he believed the letter contained libellous comments. 3. Graeme Jay aggressively demanded to know why Ken Pullen was chairing the meeting and what right did he have to come in and tell us how to run a meeting. He finished by saying 'we are all big boys' and demanded that the letter be read. 4. After the meeting, Ken Pullen checked with Glossodia member Charles Eather, who handed the letter to Ken Pullen in the first place, how he had received the letter. He advised Ken the Graeme Jay had given it to him at 17:15 hours - well before the meeting commenced."

The underlying complaints by attendees at the 20 July 2016 meeting

1. The documents annexed to the 25 August 2016 letter and the 'Allegations' were Attachments A to K. In the Allegations, these documents were referred to only in part.
2. Mr Brennan SC referred the Court in his Opening to the following parts of these Attachments: 1. Andrew Rutter's letter (Attachment A): Mr Rutter stated that Mr Jay insisted that a letter (tabled by Mr Peters) explaining motions concerning Mr Rutter be read (as) he had not seen the contents and 'we' (i.e. the attendees) were all "big boys". Mr Rutter also stated that he had "never witnessed an aggressive, antagonistic childish behaviour from anyone within the (RFS) but that of the Glossodia Captain Graeme Jay. His demeanour from the start made myself and others I could see in the room very uncomfortable, when he spoke he spoke at the top of his voice as if to demand everything he said he done, his childish actions playing the victim card when he didn't get his way was quite unnerving as I didn't know how far his ranting or behaviour would go. I feel very intimidated by his behaviour". 2. Neville Wearne's letter (Attachment B): Mr Wearne made the statements that during the meeting, when discussion was made about Mr Peters' letter, "During this segment, Mr Jay, whenever discussion did not go his way, demonstrated his arrogant, bullying and threatening behaviour by disgusting language, in a loud angry voice, every time", and "At that meeting, Mr Jay also wanted to increase his Brigade area by taking over parts of Tennyson's area - empire building? When the meeting did not agree to his 'proposal', he once again began shouting angrily - intimidating myself and many others in the room." 3. Ken Pullen's email (Attachment F): Mr Pullen stated that Mr Jay had indicated during the meeting that the letter from Mr Peters presented to Mr Pullen at that time be read out as he (Mr Jay) had 'no idea of its contents'. Mr Pullen also stated that when he resisted the notion of reading out the letter, Mr Jay was 'adamant that it had to be read' and he had evinced an 'aggressive insistence' that the letter be read. 4. Stephen Cohen's letter (Attachment H): Mr Cohen (Senior Deputy Captain of the Ebenezer Rural Fire Brigade) stated that "Mr Jay (and another person) had made 'personal attack' on our Group Officers and to North 1, our guest for the Meeting".

Admitted representations

1. The defendants did not contest that the following pleaded representations were conveyed by the First Publication: 1. that Graeme Jay bullied and intimidated members of the RFS who attended a meeting on 20 July 2016 by raising his voice in an aggressive manner even after he was told not to; 2. that Graeme Jay was deliberately disruptive of a meeting of the RFS on 20 July 2016 because he ignored demands to speak in a calm manner; 3. that Graeme Jay lied to the persons present at the South Sector meeting on 20 July 2016 when he told them that he had no idea of the content of the letter from John Peters because he was in fact the one who had given the letter to Charles Eather so that it would be tabled at the meeting; 4. that Graeme Jay is dishonest; 5. that Graeme Jay, by his conduct at the meeting on 20 July 2016, had breached Rural Fire Service Standard 1.1.42, sections 3.10-3.15 and the code of conduct section 4.6; 6. Graeme Jay insisted that the letter that he knew to be libellous of Andrew Rutter and Bruce Earle be read at the meeting of the RFS on 20 July 2016; 7. John Peters libelled Andrew Rutter and Bruce Earle in a narrative he provided in support of two motions at the meeting of the RFS on 20 July 2016; 8. that John Peters falsely accused Andrew Rutter and Bruce Earle of being unfit to represent south sector as senior management team representatives.

Contested Representations

1. The contested representations conveyed by the First Publication were: 1. they Graeme Jay should be disciplined because of his misconduct at the meeting of the RFS on 20 July 2016; 2. that John Peters should be disciplined because of his misconduct.

Consideration of the representations conveyed by the First Publication

1. Following the defendants' admissions, I find that the representations which they admitted were conveyed.
2. I am not persuaded that a representation is conveyed that both plaintiffs should be disciplined "because of misconduct". The letter of 25 August 2016, read with Attachments 2, 3 and 4 evince a careful assertion of "concerns" and "allegations" of breaches of Service Standards and the Code of Conduct. These Attachments carry the heading "Allegation(s)". Although the letter speaks of 'appropriate' disciplinary action, in view of the earlier references to concerns and allegations, the ordinary recipient of the letter (Ms Hodges) would not consider that the publishers had presumed that misconduct will in fact be found and that sanctions would be imposed as a fait accompli. The sting complained of, in this instance, suggests that an opinion that a sanction(s) should be imposed for proven misconduct; not alleged misconduct. That is not conveyed. The reasonable recipient in Ms Hodges' position would understand the reference to 'appropriate disciplinary action' as a reference to that process contained in the Service Standard identified earlier in these reasons. That is not to say that the defendants did not want disciplinary sanctions to be imposed (a matter further touched upon in the section on Malice later in these reasons), but what is conveyed is their request for a process whereby a possible outcome might be the imposition of disciplinary sanctions. Ms Hodges would not have understood that they were seeking to pre-empt that outcome.

THE SECOND PUBLICATION

1. On 5 September 2016 the Second Publication was made. It is set out at paragraph 7 of the ASOC. The alleged publisher is Ms Hodges.
2. The Second Publication, comprised the documents constituting the First Publication, but with the addition of the 'Briefing Note' authored by the fourth defendant, Ms Hodges to the Regional Manager, Ben Watson, dated 5 September 2016 and emails to Ms Hodges by the third defendant, Mr Wedge, to Ms Hodges on 4 and 31 August 2016, respectively.
3. The content of the Briefing Note of 5 September 2016 sent by District Manager Karen Hodges to Regional Manager (Ben Watson) was relevantly as follows: "Issue Fifteen RFS volunteers have alleged displays of aggressive, intimadatory (sic) and bullying behaviour by Captain Graeme Jay and Deputy Captain/President John Peters of Glossodia Brigade. Background On 9 February 2016, the Regional Manager, Mr Benjamin Watson and Manager Counselling and Support Unit and Critical Incidents Team, convened a workshop with local Senior Management and Captain Jay, Deputy Captain/President Peters and Senior Deputy Captain Paul Crick (Glossodia Brigade). This workshop was held to discuss any issues including the ongoing bullying and harassment of volunteers and staff within the Hawkesbury by Captain Jay and Deputy Captain/President Peters. The outcome of the workshop was that all parties resolved to 'draw a line in the sand' and to move forward harmoniously for the benefit of the District. Current situation Despite the agreements at the workshop, the events on 20 July 2016 have resulted in fifteen RFS volunteers making formal allegations in relation to Captain Jay and Deputy Captain/President Peters. The three Group Officers, who have administrative charge of the seven Brigades together with Communications and Catering Groups, have written to the District Manager with a detailed compilation of allegations against Captain Jay and Deputy Captain/President Peters (Attachment 1). Service Standard 1.1.17 Code of Conduct and Ethics has been breached by both Captain Jay and Deputy Captain/President Peters which is evidenced by the attached documents (Attachments A to K)."
4. Dealing with those emails first, the one dated 4 August 2016 (at 12:16pm), from Ian Wedge to Karen Hodges, was brief and as follows: "Karen, Attached is a letter from South Sector Group Officers (Chris Petrikas, Dave Ryan and myself) together with a number of supporting documents. Can you please review this matter urgently. Thanks Ian Wedge".
5. This email prompted Ms Hodges's email to Mr Wedge (11 August 2016, at 1:45pm), in which Ms Hodges responded as follows: "Ian Prior to any investigation being initiated it is requested that you consolidate the information/evidence you currently have on hand with respect to these issues e.g. specific examples of behaviours or actions that may breach service standard or code of conduct. Please outline specific allegations with relevant information including times, dates, location, persons involved and any potential witnesses. Regards Karen Hodges …"
6. Mr Wedge's second email, relevantly, was emailed to Ms Hodges on 31 August 2016 (at 7:06pm). It was as follows: "Karen, as requested, please find attached consolidated information and evidence relating to this matter for your review and action.. Regards, Ian Wedge

Admitted representations

1. The defendants did not contest that the Second Publication conveyed the following representations: 1. that Graeme Jay has been bullying and harassing volunteers and staff within the Hawkesbury RFS; 2. that Graeme Jay has breached service standard 1.1.17 code of conduct and ethics; 3. that Graeme Jay bullied and intimidated members of the RFS who attended a meeting on 20 July 2016 by raising his voice in an aggressive manner even after he was told not to; 4. that Graeme Jay was deliberately disruptive of a meeting of the RFS on 20 July 2016 because he ignored demands to speak in a calm manner; 5. that Graeme Jay lied to the persons present at the south sector meeting on 20 July 2016 when he told them that he had no idea of the content of the letter from John Peters because he was in fact the one who had given the letter to Charles Eather so that would be tabled at the meeting; 6. that Graeme Jay is dishonest; 7. that Graeme Jay, by his conduct of the meeting on 20 July 2016 has breached RFS standard 1.1.42, sections 3.10-3.15 and the Code of Conduct section 4.6; 8. Graeme Jay insisted that the letter that he knew to be libellous of Andrew Rutter and Bruce Earle be read at the meeting of the RFS on 20 July 2016; 9. that John Peters has been bullying and harassing volunteers and staff within the Hawkesbury RFS; 10. that John Peters has breached service standard 1.1.17 code of conduct and ethics; 11. that John Peters libelled Andrew Rutter and Bruce Earle in a narrative he provided in support of two motions at the meeting of the RFS on 20 July 2016; 12. the John Peters falsely accused Andrew Rutter and Bruce Earle are being unfit to represent south sector as senior management team representatives; 13. that John Peters has breached RFS service standards 1.1.42, sections 3.13(e) and 3.13(l) and the code of conduct section 4.6.

Contested Representations

1. After the close of pleadings, these are: 1. that Graeme Jay should be disciplined because of his misconduct at the meeting of the RFS on 20 July 2016; 2. that Graeme Jay exhibited spiteful, menacing and aggressive language at the South Sector meeting on 20 July 2016; and 3. the John Peters should be disciplined because of his misconduct.

Consideration of representations conveyed by Second Publication

1. There is very little difference between the finding of the representations conveyed by the second Publication to that which applies to the first Publication.
2. As in the First Publication, I find that the admitted representations were conveyed.
3. In respect to the contested representations, I have already rejected (a) and (c).
4. As to (b), the plaintiffs did not say anything about the falsity of this representation in their closing written submissions. I inferred that they were abandoning reliance upon this particular representation being conveyed.

The Naethuys Affair

1. In late May 2016, Graham Jay and his wife were informed by their daughter, then aged 16 years of age, herself a member of the Glossodia Brigade, that: she had engaged in sexual relations with Mr Daniel Naethuys (another member of the Glossodia Brigade); that Mr Naethuys' wife had made threats to her; and that she had been contemplating suicide and had been self-harming. On 17 May 2016, Mr Naethuys' wife sent an obscene message to Graham Jay on the latter's Facebook Messenger. Mr Jay said in his evidence that he did not read this message until sometime later after his daughter had informed him of having had sexual relations with Mr Naethuys.
2. On 25 May 2016 there was the Annual General Meeting of the Glossodia Brigade. Mr Naethuys was nominated for the position of Vice President, although he was not present at the meeting. On the floor of the meeting but on speakerphone, Mr Jay rang Naethuys and asked the latter whether he was prepared to stand for that position. Mr Naethuys replied that he was.
3. A meeting of the Glossodia Brigade executive was scheduled on 5 June 2016. Ahead of that meeting, Mr Jay (and his wife) met with the President, Mr Peters, informing him of the revelation of sexual relations between Mr Jay's daughter and Mr Naethuys and his daughter's precarious mental state. Both men were emotional when they gave evidence about this incident in Court. According to Mr Jay, Mr Peters expressed sympathy and support to the Jays; and sought Mr Jay's permission to speak to Paul Scott (a Manager of the Critical Incidents Support Service). Later that evening, the executive meeting occurred. It was attended by Mr and Mrs Jay; and also Mr Naethuys. It was unremarkable.
4. On 6 June 2016, the next day, Graham Jay, his daughter and son attended the fire station at Glossodia in response to an emergency 'call out'. Mr Naethuys had earlier walked into the station and noted the presence of Mr Jay's daughter. Mr Jay gave evidence that he told Mr Naethuys to 'sit this one out' and Mr Naethuys complied, acknowledging that this was "fair enough". Mr Jay said that he had not spoken to Mr Naethuys ever since.
5. On 6 June, a person by the name of 'Rob' (who I infer was a full-time member of the Hawkesbury District staff) completed a 'Fire/Incident Report', a standard form document allowing the author to fill in certain information [14] . 'Rod' completed this form on the basis of information which Mr Jay had supplied to him. Under a column relating to 'Brigade Resources', Rod made the insertion "x 6". At the bottom of the document, there was a handwritten identification of the crew members. Included in this list was Mr Naethuys.
6. Another document was a 'Radio log' [15] . There was an entry at 1315 which included the annotation 'Crew 3'. Another entry timed at 1350 carried an annotation 'Cpt + [Mr Jay's daughter's name] & Andrew Jay, Daniel Naethuys'.
7. Mr Jay said in his evidence that he did not create a false record about the incident on 6 June 2020. He accepted that he was on the phone and that he had conveyed the number of the crew on that occasion on the radio. Separately, although he did not actually recall the occasion, he gave evidence of his practice to have rung through the information to the regional office.
8. On the same day, Mr Peters had a phone conversation and exchanged texts with Mr Naethuys. The upshot of this, according to the plaintiffs, was that warning had been given to Mr Naethuys that if he did not resign from the Glossodia Brigade, Mr Peters would make a complaint to the PSU.
9. On 10 June 2016, at 11am, Karen Hodges met with Mr Naethuys. A file note of that meeting was in evidence (Exhibit 7). Effectively, Mr Naethuys presented to Ms Hodges his version, or at least perspective, on recent events. Amongst other things, the note indicated that Mr Naethuys had been listed as attending on the call-out that occurred on 6 June when he had not so attended; and Mr Peters suggested (to use a neutral term) that Mr Naethuys provide a written resignation from the Brigade. The file note recorded Mr Naethuys disclosing that "On the same day, John Peters rang Daniel Naethuys' stepfather, Brian Groughan (Ex-Captain of Glossodia Brigade) and told him that Daniel needed to resign from the Brigade."
10. Mr Naethuys' initial response was to argue that the matter did not concern the Brigade, but when that argument was rejected by Mr Peters, Mr Naethuys indicated that he would not fight for his position. Ms Hodges' file note indicated that, according to Naethuys, he and Mr Jay's daughter 'mutually agreed to stop the relationship but still remain friends' and that the daughter had informed him that she had advised Mr and Mrs Jay of the relationship with Mr Naethuys and that her parents were 'fully supportive' of it. Mr Naethuys also informed Ms Hodges that the daughter had disclosed to him that, prior to their relationship, she had self-harmed and had an unhappy relationship with her parents.
11. On 14 June 2016 (8:04pm), following a report he had received from Mr Peters of the affair, Paul Scott, the Manager of the Counselling and Support Unit of the RFS emailed Ms Helen Colbey, the Director of the PSU, a summary of his understanding of that report.
12. On 15 June 2016, Mr Peters sent copies of his text messages to and from Naethuys to Ms Michelle Wakka (the Associate Director of the PSU to the NSWRFS). These indicated that Mr Naethuys intended to resign from the Glossodia Brigade and also indicated that Mr Naethuys regarded the affair as a private matter; not a Brigade matter. They also indicated that Mr Peters had advised Mr Naethuys that he thought differently in one important respect - it was a Brigade matter - but he would try to manage things so as to keep it "out" of the Brigade in the sense of trying to preserve confidentiality or privacy concerns of others (as best as he could).
13. On 16 June 2016 at 4:40pm, Mr Watson, Regional Manager, sent an email to Michelle Wakka and Mr Heffernan recording that at 3pm, Mr Naethuys was informed that he was being stood down. This email records that Mr Watson had rung Ms Hodges earlier in the afternoon to ask her what she knew about the matter and she outlined the matters referred to in her file note dated 10 June. The email also explained why there was some delay in his speaking with Ms Hodges. Mr Watson's email noted Mr Naethuys' response (he was "very angry") at the news of his being stood down. He was informed that he could appeal the matter if he saw fit.
14. That afternoon, Ms Wakka rang Mr Peters and advised him that she would be recommending that Mr Naethuys be stood down. Mr Peters expressed his concern about confidentiality and Ms Wakka reassured him that the PSU did its utmost to maintain confidentiality. In another call that afternoon, she rang Mr Peters to remind him to keep their own conversation confidential and Mr Peters said he understood the processes; as he had worked for a large company that had been involved in similar complaint matters (albeit not of a sexual kind) and Ms Wakka indicated that she would keep him updated.
15. On 16 June 2016, Ms Wakka made a report to the PSU. Notes of Ms Wakka's discussions with Mr Peters on 16 June 2016 were in evidence.

The PSU's dealings with Mr Naethuys

1. On 20 June 2016, Mr Naethuys rang Michelle Wakka and advised her that he had spoken to Karen Hodges, who was agreeable to him transferring to a neighbouring brigade if necessary. That day, Mr Peters had rung Naethuys' employer to tell him that Mr Peters would not accept delivery of fuel by Mr Naethuys to any of Peters' companies.
2. At 5:19pm on the same day, Ms Wakka recorded a phone conversation she had with Mr Jay. It appears the purpose was to make an arrangement for Mr Jay's daughter to speak to the RFS. Mr Jay conveyed that his daughter was too distressed, although he had not told his daughter that the RFS wanted to speak with her. Mr Jay informed Ms Wakka that his daughter had left home to go to Albury and expressed his concern that she may not return home.
3. On 22 June 2016, Ms Wakka spoke to Mr Jay, again by telephone. She made a note of the call. She passed on the news that Paul Scott had advised that the RFS had no choice but to become involved. She explained that she would contact Mr Jay's daughter. Mr Jay indicated that he wanted to know what would be said to his daughter, but Ms Wakka indicated that she would tell him what she could, given a privacy concern. Some notes from the PSU were in evidence about the allegations.
4. On 14 July 2016, the office of the NSW Ombudsman notified the Commissioner of the NSWRFS that it did not regard itself as having jurisdiction to investigate Daniel Naethuys, as he was not considered to be a NSWRFS employee nor to have engaged in providing services to children.
5. On 29 July 2016 the PSU (Helen Colbey) advised Mr Peters, as the President of the Glossodia Brigade, that the Ombudsman had ceased investigating Mr Naethuys' conduct because of the Ombudsman's determination that the conduct did not fall within Part 3A of the Ombudsman Act 1974 (NSW) (as it was then in force). The letter was attached to the Third Publication [16] . Mr Peters understood however, from the third paragraph, that Mr Naethuys had indicated his intention not to return to the Glossodia Brigade
6. Still on the same day, the PSU advised Mr Peters, in his capacity as President of the Glossodia Brigade, that Mr Naethuys had indicated that he would not be returning to the Glossodia Brigade and would seek transfer to another brigade.
7. The PSU advised Mr Jay to similar effect. Mr Jay said that he had earlier understood that Naethuys had been stood down pending an investigation, but later learnt that the Ombudsman had found that there was no reason to investigate and that Mr Naethuys was transferring to another Brigade anyway.
8. On 2 August 2016 Mr Naethuys rang Ms Wakka and asked her if the matter was closed. She advised him that from the PSU's perspective, it was. He asked Ms Wakka if he needed to submit his resignation from Glossodia. Ms Wakka said that she was not sure of the process and he should talk to Karen Hodges. She further indicated that if he submitted his resignation before a transfer he may not retain his membership.
9. On 5 August 2016 (at 11:36am), Mr Jay sent an email to Karen Hodges concerning the advice from the PSU that Mr Naethuys no longer wished to continue membership with the Glossodia Brigade. He asked her to make arrangements to remove Mr Naethuys' name from the brigade's register immediately. He suggested arrangements whereby equipment belonging to Mr Naethuys' at the station be returned to the district office and indicated that he had no wish for him to enter the Glossodia station without the prior approval of himself or Mr Peters. Ms Hodges did not reply to this email.
10. On 17 August 2016, there was a meeting of the Executive of the Glossodia Brigade, whose contents I partly referred to earlier in these reasons as part of the narrative relevant to the First and Second Publications. Minutes to the meeting appeared as Attachment 17 to the Third Publication. In respect to the Third Publication, the Minutes relevantly contained the following entry: "The Vice President (Mr Naethuys) has left the Brigade. We have a choice of nominating another VP next meeting and voting the meeting after of using the next person nominated from the AGM".

Mr Wedge's involvement in helping to settle Mr Naethuys' witness statement - August 2016

1. In August 2016, Mr Wedge became aware of allegations made by Mr Naethuys of bullying and harassment against Mr Jay and Mr Peters. On 26 August 2016, Mr Wedge had a meeting with Mr Naethuys, which lasted for 45 minutes. He assisted Mr Naethuys to prepare a statement [17] setting out details. The second and current version of Mr Naethuys statement was as follows: "1. I was in a relationship for a short while with [Mr Jay's daughter], a 17 year old member of Glossodia RFB of which brigade I am also a member. We ceased our relationship, but remained friends. I was subsequently elected Vice President of Glossodia Brigade. 2. I responded to a callout to a Glossodia structure fire on 6 June 2016. I was first at the station, opened up and then the captain, Graham J, and his son and daughter arrived. 3. Graeme said to me that I was not to attend the incident. I queried this and he repeated that I was not to get on to the truck, and that I 'knew why'. I assumed he was referring to my previous relationship with his daughter … I left the station feeling disheartened. 4. Glossodia 1 responded to the incident without me, although Graeme Jay called in with a crew of 4 to Firecom, and recorded me as 1 of the crew, as he otherwise would have had only two CABA operators and no BACO. 5. On 5th June, I received a call from John Peters, the President of Glossodia RFB, telling me I need to resign from the brigade because of my ex-relationship with (Mr Jay's daughter). I declined to resign, saying I didn't believe the matter was a brigade issue. 6. I next received a text message from John Peters making the assumption I was going to resign, and asking for an emailed resignation. My reply to this was to repeat that it was not a brigade matter. 7. I received a second text on 8 June 2016 from John Peters asking for my resignation or he would refer the matter to RFS Homebush Ethical Standards, which he did. 8. I was stood-down whilst an investigation took place. 9. Whilst I was stood-down, John Peters contacted my employer to tell him that I was not to do any deliveries to John Peters' company. He also contacted my Mother and Step-father advising them of the charges against me, and trying to get them to have me resign from the Brigade. 10. I received notification that I was clear of the allegation, and my standdown from brigade activities was lifted on 29th July 2016. 11. I debated changing brigades as I felt humiliated by the bullying behaviour of both John Peters and Graeme Jay. I talked with the Hawkesbury FCO (Ms Hodges) about the idea of transferring to Freeman's Reach or Tennyson Brigades, but decided that I would never be able to respond in time to get on their trucks. 12. I want to remain at Glossodia Brigade, but I do not feel confident to just turn up at the station because of the bullying behaviour I've been subjected to. …. 13. On a separate matter, I am a member of the Brigade Executive. I obtained a copy of the minutes of the last executive meeting and I note that they record that the Vice President (me!) has left the brigade. I have not resigned, despite the bullying behaviour I've been subjected to, and despite the lack of communication from the brigade following the reversal of my stand-down. I want to return, but feel intimidated. …."
2. On 31 August 2016, Mr Wedge prepared a letter to Karen Hodges, in relation to Mr Naethuys' allegations and attaching Naethuys' statement. The letter read in part: "From that meeting he (Naethuys) and I produced a statement of facts which is attached, together with some documents of evidence and a set of allegations against John Peters and Graeme Jay for breaches of the RFS Code of Conduct. Can you please review these submissions and take the necessary steps for appropriate disciplinary action to be taken against these two individuals. …"
3. On 5 September 2016 the Third Publication was made.
4. Mr Jay said that by 5 September 2016, none of the defendants had asked him about his dealings with Mr Naethuys.
5. On 16 December 2016, Mr Tate (secretary of the Glossodia Brigade) sent a letter to Mr Naethuys relating to his intention to transfer his membership from the Glossodia Brigade.
6. On 28 December 2016 Superintendent Hodges purported to instruct the Glossodia Brigade that it could not take action in relation to Mr Naethuys' membership or positions. That same day, Mr Naethuys wrote to Mr Tate, stating that he did not advise the PSU that he had no intention to return to the Glossodia Brigade. But the Brigade resolved to determine the issue of his membership itself.

Ms Hodges' 'covering' briefing note

1. All parties referred the Court to another Briefing Note (not sued upon) also sent by Ms Hodges to Mr Watson on 5 September 2016 [18] . It is common ground that this was the initial or covering Briefing Note for four other briefing notes (including the First/Second and Third Publications).
2. This, in my view, provides important general context for the sending of the publications and is particularly germane to the issue of malice.
3. A relevant part of this particular Briefing note was as follows: "Issue Allegations relating to Captain Jay and Deputy Captain/President Peters involving displays of aggressive, intimidating jury and bullying behaviour towards volunteers and staff, including allegations of illegal activities. Background For many years there have been ongoing issues of aggressive, intimidating jury and bullying behaviour by Captain Jay and Deputy Captain/President Peters, culminating in the involvement of the Regional Manager Benjamin Watson in December 2015. Over the last several months there have been serious allegations questioning the ability, character and leadership of the Senior Management of the Glossodia Brigade. Allegations There are a series of allegations that have been summarised into three subgroups. 1. Serious ongoing breaches of the RFS Code of Conduct and Ethics Service Standard: a. Allegations in relation to Deputy Captain/President Peters disclosing information breaching confidentiality to an ongoing investigation to third parties (See Annexure A) b. Allegations of Captain Jay failing to comply with directives from District Manager in relation to video surveillance within the Brigade Station (see Annexure C) c. Plot to conduct a deliberate breach of the Code of Conduct and Ethics Service Standard (See Annexure C). …. f. Breaching of Code of Conduct and Ethics Service Standard by Captain Jay by supplying false information regarding an operational incident (Annexure C) .. 2. Serious ongoing bullying and harassment: a. Allegations from fifteen RFS volunteers in relation to Captain Jay and Deputy Captain/President John Peters involving bullying, intimidatory and harassing behaviour (see Annexure A) b. Allegations in relation to Deputy Captain/President Peters disclosing information breaching confidentiality to an ongoing investigation to third parties (See Annexure C) c. Allegations relating to bullying and threatening behaviour by Deputy Captain/President John Peters and Captain Jay towards Mr Daniel Naethuys, a member of the Glossodia Brigade (See Annexure C) 3. Allegations of illegal activities: a. Allegations in relation to Deputy Captain/President John Peters disclosing information breaching confidentiality to an ongoing investigation to third parties (See Annexure C) b. Unauthorised use of surveillance within the Brigade Station. If allegations are supported it is possible video surveillance of junior members under the age of eighteen may have taken place (See Annexure C) Current Situation There is a perceived bias by Glossodia Brigade towards Hawkesbury management and therefore the investigator and management of these matters should be carried out outside of the Hawkesbury District. Additional Considerations There is a history of the Glossodia Brigade's leadership committee which are not related to these current allegations which show a pattern of behaviour.."

Description of the Third Publication

1. The Third Publication was set out at paragraph 11 of the Amended Statement of Claim. This publication was comprised of a Briefing Note dated 5 September 2016, signed by Ms Hodges. The structure of this note is indicated by the sub-headings, which were: 'Issue' (an itemised reference to allegations against the plaintiffs), 'Background' (essentially a statement of the facts and circumstances giving rise to the allegations) and 'Current Situation' which, on the face of the note, contained assertions of provisions of the Code of Conduct and Ethics breached by the plaintiffs and one matter (the alleged use of surveillance) indicated as not yet having been proven.
2. The Briefing Note was quite long, in comparison with the Attachments 2-4 inclusive which comprised an email from Mr Wedge (31 August 2016) to which multiple documents were attached, including an unsigned witness statement from Mr Naethuys and his own letter to Ms Hodges of 31 August 2016. I attach, at the conclusion of these Reasons a copy of this Briefing Note as 'Annexure A'.
3. There were 17 Attachments to this Briefing Note. It is not necessary now to itemise every one of them. The email which Mr Wedge sent to Ms Hodges (Attachment 1) was as follows: "Karen, Please find attached: ● a letter to you, ● a statement by Daniel Naethuys, ● four allegations of misconduct, ● copies of SMS messages, ● a copy of a letter to Daniel from the RFS PSU, ● minutes from a Glossodia Brigade Executive meeting, ● two emails confirming Daniel's statement for your action"
4. The first of those attachments was Mr Wedge's letter dated 31 August 2016, whose content I set out earlier in these reasons.
5. Two other attachments of note were Attachments 3 and 4, which the plaintiffs also placed emphasis upon. Both were authored by Ms Hodges and were similar, in structure to the 'charge sheets' that comprised the First Publication. For both attachments, the 'charges' were breaches of Service Standard 1.1.42, Sections 3.10-3.15 and Code of Conduct, Section 4.6
6. Attachment 3 to the Third Publication carried the title 'Allegation - Bullying'. The statement of facts against Mr Jay were in the following terms: "1. On 6 June 2016, Graeme Jay prevented Daniel Naethuys from joining the crew to respond to an incident on Glossodia 1 telling him 'you know why' he wouldn't allow him on the truck. 2. At the 17 August 2016 Executive meeting, Daniel was recorded in the minutes as having left the brigade, but he has never resigned."
7. Attachment 4 to the Third Publication also carried the title 'Allegation - Bullying'. The statement of facts concerning Mr Peters was in the following terms: "1. Daniel received a phone call and a text message from John Peters asking him for his resignation from Glossodia RFB. 2. Daniel then received again on 8 June 2016 another text message from John Peters asking again for Daniel's resignation, and threatening to report him to RFS Homebush Ethical Standards Unit if the resignation wasn't forthcoming. 3. John Peters then reported Daniel to Headquarters and Daniel was stood down from Brigade activity. 4. While Daniel was stood down, John Peters contacted Daniel's mother and stepfather (who are members of the brigade) explaining that there was an allegation against Daniel and seeking their help to get Daniel to resign. 5. John Peters also contacted Daniel's employer and advised him that Daniel was not to deliver anything to John Peters' workplace. 6. On 29 June 2016 Daniel received notification that he was no longer stood down. He has had no contact from the brigade. 7. Daniel looked at transferring to alternative brigades but decided that he would never be able to respond to those stations in time to get on the crew. 8. At the 17 August 2016 Executive meeting Daniel was recorded in the minutes as having left the brigade, but he has never resigned."

Admitted representations

1. The defendants do not contest that the Third Publication conveyed the following representations: 1. that Graeme Jay bullied and threatened Daniel Naethuys, a member of the Glossodia Brigade; 2. that Graeme Jay made a false report with respect to an operational incident, namely that on 6 June 2016, when it was recorded in the Brigade's records that Mr Naethuys had responded to an operational incident when in fact he had not because Jay had prevented him from attending the incident; 3. that Jay supplied false information regarding an operational incident; 4. that Jay breached Service Standard 1.1.7 Code of Conduct and ethics by supplying false information in relation to an operational incident; 5. that Peters bullied and harassed Daniel Naethuys; 6. that Peters disclosed the fact of and subject of a confidential investigation being conducted by the PSU to Naethuys' parents.

Contested Representations

1. The parties are joined on whether the following representations were conveyed by the Third Publication: 1. that Graeme Jay has breached Service Standard 1.1.7 Code of Conduct and Ethics in relation to Daniel Naethuys in that he refused to allow Mr Naethuys to attend a callout to a fire because of a previous relationship between Mr Naethuys and the first plaintiff's daughter and attempted to procure Mr Naethuys' resignation from the brigade; 2. that John Peters made a false report of misconduct regarding Mr Naethuys to the Professional Standards Unit of the RFS knowing the allegation in the report to be false at the time the report was made; 3. that John Peters attempted to procure Mr Naethuys' resignation from the Brigade in circumstances where Mr Naethuys did not wish to resign; 4. that John Peters reported to other members of the RFS that Mr Naethuys had resigned when in fact he had not and Peters was aware that he had not resigned.

Consideration of representations conveyed by the Third Publication

1. I find that the representations admitted by the defendants were conveyed by the Third Publication.
2. As to the contested representations, the plaintiffs did not refer to representation (b) and I infer that this representation was abandoned.
3. There is an immediate difficulty as to (a), referred to above, because of ambiguity associated with its rolled-up nature. There are two matters which might reasonably be taken as amounting to circumstances making out a breach of the Service Standard, but it is unclear whether they are to be addressed individually or in combination. What is written under 'Current Situation', when express reference is made to Service Standard 1.1.7, insofar as it relates to Mr Naethuys, is only Mr Jay's supply of false information in relation to an operational incident. It is true that Attachment 3 (prepared by Mr Wedge) carries an allegation about bullying, but the 'charge' refers to a different service standard. This ambiguity means that the Court cannot accept the representation being conveyed in that alleged way.
4. As to (c), I accept that this representation was conveyed. There is a juxtaposition in the Briefing note between Mr Peters and Mr Naethuys' respective desires: the former to have the latter resign; and the latter was to remain.
5. As to (d), I accept that this representation was conveyed. This was indicated in the statement in the Briefing Note that although Mr Naethuys had not resigned, the Brigade's Executive Minutes indicated that he had left. A reasonable inference, or implication, is that Mr Peters was involved in what was recorded in the Executive Minutes. This reference was to be seen in a context where Mr Naethuys had indicated that he had not resigned.

EVENTS POST-DATING THE THIRD PUBLICATION

1. On 17 October 2016, Superintendent Hodges lodged complaints against the plaintiffs with the Regional East Office.

Further attempts to remove Mr Naethuys from Glossodia Brigade

1. On 30 October 2016, Mr Jay chased up Superintendent Hodges about the email that he had sent her on 4 August 2016 and asked (to use a neutral term) that she action the request from that earlier email immediately. He complained that whilst Mr Naethuys remained listed as a member of the brigade, he continued to receive access to information he had no right to receive. He also noted that the Glossodia Brigade had elected Skye McDonough to the brigade Vice President position.
2. On 31 October 2016 Superintendent Hodges replied to Mr Jay's email of 5 August 2016, concerning Mr Naethuys, stating that she had advice that Naethuys had decided not to leave the Glossodia Brigade or to transfer to another brigade. She stated her understanding that he had not resigned from the position of Vice President and that SAP records indicated that Mr Naethuys was still a member of the Glossodia Brigade.
3. On 30 November 2016 Mr Jay gave notice at the Glossodia Brigade meeting that at the next general meeting (scheduled for 18 January 2017) there would be a vote to remove Mr Naethuys from the Brigade register. The Minutes of the meeting noted that it was necessary to vote for his removal since he had not transferred from the Brigade.

Mr Plumridge's appointment as investigator and notification

1. On 13 December 2016, Mr Plumridge was instructed to commence an investigation into misconduct by the plaintiffs [19] . Later in these reasons I refer at some length to certain procedural features of that letter of instruction. It is pertinent, however, to note here the allegations that Mr Plumridge was asked to investigate. It is also pertinent to note that although there was plainly similarity in wording between the allegations and the representations which the plaintiffs allege in these proceedings, there were some not insignificant differences and, moreover, the allegations for Plumridge to investigate were much fewer in number than the representations the plaintiffs submit this Court should adjudicate upon.
2. The allegations about Mr Jay that Mr Plumridge was appointed to investigate were: 1. that Mr Jay engaged in bullying and behaved in an inappropriate manner and disrespectfully, for example: 1. at the South Sector Meeting of the Hawkesbury Rural Fire District on 21 July 2016 (sic) at Glossodia Fire Station (Meeting), Mr Jay made derogatory remarks regarding attendees at the Meeting and others; and 2. Mr Jay encouraged the reading out, and caused to be read out, a letter written by Mr Peters regarding certain attendees at the meeting. 1. Mr Jay has bullied and harassed Mr Daniel Naethuys, examples of which include: 1. Mr Jay refused to allow Mr Naethuys to attend a call out to a fire because of a previous relationship between Mr Naethuys and Mr Jay's daughter; and 2. Mr Jay attempted to procure Mr Naethuys' resignation from the Brigade. 1. Mr Jay made a false report with respect to an operational incident, namely that on 6 June 2016, when it was recorded in the Brigade's records that Mr Naethuys had responded to an operational incident when in fact he had not because Mr Jay had prevented him from attending the incident.
3. The allegations about Mr Peters that Mr Plumridge was appointed to investigate were: 1. Mr Peters prepared a letter which was intended to be, and was in fact, read out at the Meeting. That letter was defamatory and possibly derogatory. 2. Mr Peters has bullied and harassed Mr Naethuys, examples of which include: 1. Mr Peters made a false report of misconduct regarding Mr Naethuys to the Professional Standards Unit of the RFS, knowing the allegations in the report to be false at the time the report was made, in contravention of clause 5.31 of service standard 1.1.42 and the Code of Conduct and Ethics generally; 1. Mr Peters disclosed the fact of, and subject of, a confidential investigation being conducted by the PSU to Mr Naethuys' parents, in contravention of clause 4.10 of the Code of Conduct and Ethics clause 2.15 of SOP 1.1.42-2: 1. Mr Peters attempted to procure Mr Naethuys' resignation from the brigade in circumstances where Mr Naethuys did not wish to resign; and 2. Mr Peters report to other members of the RFS that Mr Naethuys had resigned when in fact, he had not and Mr Peters knew that he had not.
4. Also on 13 December 2016, Superintendent Hodges, Mr Jay and Mr Peters were each separately notified of this on the same day, by Mr Jason Heffernan (director Regional Services), who had appointed Mr Plumridge.
5. The letter of notification of the investigation to Superintendent Hodges was written by Mr Watson (Regional Manager-East). Mr Watson acknowledged the complaints lodged by the Superintendent and explained that he had referred the matter to Regional Services. He also notified here that the Director of Regional Services (Mr Heffernan) had appointed Mr Plumridge, of Vestinex Pty Ltd, to undertake an investigation and provide a report by 27 January 2017. He indicated that this would be conducted in accordance with Service Standard 1.1.2 (Discipline). As will later be emphasised, it appears that another course which might have been taken, but was not, was for a 'preliminary investigation' to be taken.
6. The letters Mr Jay and Mr Peters received were both written by Mr Heffernan (Director of Regional Services) which relevantly notified them about: 1. the specific allegations made against them; 2. the apprehended contraventions of Service Standards; 3. Mr Heffernan's decision to deal with matters as a "Volunteer Discipline Matter" under Service Standard 1.1.2 Discipline"
7. Mr Jay indicated that what had been said about his conduct at the 20 July 2016 meeting had confused him: he had not recalled the meeting as being unpleasant. He believed the allegations against him were false.
8. On 20 December 2016 Superintendent Hodges met the investigator, Mr Plumridge and provided a statement. On the same day Mr Wedge also provided a statement to the investigator.

The investigation

1. On 18 January 2017, various members of the RFS corresponded with the investigator; copying Superintendent Hodges and authorising the use of their initial complaints in the investigator's investigation.
2. On 19 January 2017, all of Mr Petrikas, Mr Ryan and Mr Naethuys gave statements to Mr Plumridge. On 8 March 2017, Superintendent Hodges sent the investigator her statement. On 13 June 2017, she had been copied into an email chain which included Mr Pullen, which relevantly informed the investigator that at the 20 June 2016 meeting: Group officers and staff had been "vilified mercilessly", that Mr Jay had presented a speech contained in a 3 to 4 page written statement at the meeting and that Mr Pullen had asked for a copy of the speech but Mr Jay had refused to provide it.
3. By about mid-February 2017, Messrs Jay and Peters appointed A R Conolly as their lawyers to represent them in Mr Plumridge's investigation. Further details of the circumstances of this engagement are referred to in these reasons on the issue of actual damage. Mr Jay did not know where the investigation was going to lead and he gave evidence of his belief that it amounted to an attempt to remove him from the RFS; which would be a very damaging outcome to him.
4. In his evidence in chief, Mr Jay was referred to correspondence (Exhibits D & E) relating to disciplinary action taken against him from 2013, but which sanctions were reversed on an appeal. The relevance of this was that Karen Hodges was on the panel which had imposed the disciplinary sanctions. Mr Jay said that this experience (which he perceived as involving a denial of natural justice), and Ms Hodges' involvement in particular, influenced him to seek legal assistance.
5. On 20 February 2017, Mr Plumridge emailed Mr Jay and attached a request for an interview. The next day, Mr Jay sent an email in response informing Mr Plumridge that he had appointed legal counsel to represent him, Mr Alan Conolly. The investigator did not dispute Mr Conolly's entitlement to do this and, indeed, notified Mr Heffernan that the consequence of this was to go back to the NSWRFS to allow it to obtain legal representation.
6. It appears that there was a hiatus (which none of the parties in this proceeding explained) which caused Mr Plumridge to halt his investigation. But he recommenced it on 13 June 2017.
7. On 21 and 24 August 2017, Mr Jay and Mr Peters provided statements to the investigator, respectively. On 24 August 2017, Mr Conolly sent a long email to Mr Plumridge, amounting to a submission, suggesting why the allegations against Mr Peters should be withdrawn.

Disclosure of the audio recording

1. On 25 August 2017, Mr Plumridge wrote to Rebel Talbert (Assistant Commissioner, Director of Regional Services NSW RFS), commenting on the strength of the evidence (or rather weakness) but also advising that he had sent Mr Petrikas an email in relation to the tape of the meeting on 20 July 2016, inquiring when it was destroyed and who made the recording.
2. On 29 August 2017, Mr Petrikas disclosed, via email (sent at 9:10pm) to Mr Plumridge, the existence of the audio recording of the 20 July 2016 meeting, for the first time, following his receipt of questions as to its deletion. Mr Petrikas explained in his email to Mr Plumridge that the practice was to retain the recording until sometime after draft minutes had been circulated, and that it was deleted just before the next meeting to allow for room on the device for the next meeting (assuming that there were no objections to the draft minutes circulated prior to the next meeting). The minute secretary used the recording to clarify points of difference between his or her handwritten record and the recollections of group officers. About half an hour after this email (at 9:34pm), Mr Plumridge thanked Mr Petrikas for his email, stating that he "could have sworn that you told me during our interview that the recording was deleted" [20] .
3. Two days later, the plaintiffs were advised of the existence of this audio recording.
4. On 21 September 2017, the investigator advised Mr Pullen of the existence of the audio recording and the difficulties this created for the investigation.
5. On 25 September 2017, the investigator sent an email to Rebel Talbert requesting whether the transcription of the 20 July 2016 meeting was available. In the email he explained that he had listened to the audio recording. He expressed his opinion that he did not think Mr Jay's actions were overly bullying or inappropriate, as he was moving towards finalising the report.

The investigator's findings

1. On 25 October 2017 the investigator produced his report in response to the allegations of misconduct by both plaintiffs.
2. In both cases he found insufficient evidence to support to the requisite level (the balance of probabilities) that either plaintiff breached Service Standards 1.1.42 and 1.1.7, and the allegations as particularised.
3. Mr Plumridge referred, in passing, to other matters. The first was what he described as the delayed identification of critical evidential material. He noted that he had been informed during an interview conducted (presumably with Mr Petrikas) that an audio recording of the 20 July 2016 meeting was unavailable and had been deleted; until the recording had been later identified and was subsequently made available for inspection. A second point was the investigator's recommendation, in hindsight, that a 'preliminary investigation' may have been advisable, in the first instance, as opposed to direct notification to the involved officer of a disciplinary matter.
4. On 7 November 2017 Mr Conolly wrote to the investigator setting out the effect of the audio recording which he had arranged to be transcribed. He asserted that the RFS should unreservedly withdraw the complaints against his clients as well unreservedly apologise to both his clients.

Mr Conolly's requests for copies of the investigator's reports

1. On 8 November 2017 the investigator concluded his investigation and provided his report to Assistant Commissioner Talbot.
2. On 21 November 2017, Mr Connolly requested Assistant Commissioner Talbot to provide a copy of the investigator's reports.
3. He repeated that request on 5 December 2017.
4. He did so again on 14 February 2018; on that occasion referring to the relevance of the reports to the exercise of appeal rights that the plaintiff's may have.
5. On 11 December 2017 Assistant Commissioner Talbot advised Mr Conolly that she had considered both reports and determined that the complaint should not be dealt with as a breach of discipline and indicated that it followed that no further action would be taken against his clients. She did not however provide a copy of the reports.
6. The same day she advised the various complainants that she had considered both reports, had determined that the complaint should not be dealt with as a breach of discipline and indicated that the matter would not proceed further.
7. On 15 December 2017 Mr Ken Pullen sent an email to the Commissioner of the NSW RFS (Shane Fitzsimmons AFSM), on behalf of himself, and Hawkesbury Group Officers (including Mr Petrikas, Mr Ryan and Mr Wedge), requesting a meeting at which the RFS justified the decision that had been conveyed to them.
8. On 27 April 2018, the plaintiffs made a 'GIPA' request for a range of documents, including the investigator's report and annexures to it.
9. On 7 June 2018, Harinniya Bhogal, the Legal and Government Information Right to Information Officer of the NSW RFS, notified the plaintiff's lawyers of her determination. Although two documents were to be released (one only partly), access was refused to four documents (including, apparently, the investigator's reports) on public interest grounds.

The plaintiffs' threats of litigation

1. That notification provoked Mr Conolly, the next day, to advise Assistant Commissioner Talbot that the plaintiffs were considering legal action (an application for preliminary discovery) and again requested a copy of the investigator's reports.
2. Assistant Commissioner responded on 12 June 2018 by indicating that she was considering that request.
3. On 28 September 2018, Mr Stuart Clark, from the law firm Clayton Utz, wrote a letter to Mr Conolly. This was in response to letters that Mr Conolly's firm had sent to multiple recipients (including the first, second and third defendants) on 12 September 2018. Those letters were not in evidence, but inferentially, appeared to be letters of demand against the recipients. Mr Clark's letter indicated that Clayton Utz had received instructions from the NSWRFS to respond to Mr Conolly's letters on behalf of the recipients.
4. On 9 November 2018, Mr Jay emailed a letter to the Commissioner of the NSWRFS. In the letter, Mr Jay inquired of the Commissioner what was the basis for the RFS to become involved and to instruct lawyers.
5. On 13 November 2018 Bronwyn Jones, Executive Director of Membership and Strategic Services, responded to Mr Jay's letter of 9 November 2018 (on the Commissioner's behalf). Ms Jones pointed out that at a meeting with Mr Conolly on 12 July (apparently at which Mr Clark attended), Mr Conolly indicated that Mr Jay would be bringing a claim against the RFS in relation to events arising out of the meeting (apparently 20 June 2016) and foreshadowed a proceeding against the RFS on another matter. Ms Jones asserted that these threatened legal proceedings constituted an 'assault on the RFS' discipline and grievance procedures'. Ms Jones implied that the RFS funded representation to the recipients of the demands to 'protect the integrity of its grievance and disciplinary procedures'.
6. Mr Jay said he had never received any apology from any of the defendants, nor retraction of the allegations raised in the Publications. This included (by inference) a recent (failed) mediation of the proceeding.
7. This proceeding commenced on 6 March 2019.

Principles

1. In respect to each of the subject publications, the plaintiffs pleaded [21] that all of them concerned the plaintiffs "in connection with their profession as members of the New South Wales Rural Fire Service" (emphasis supplied).
2. Despite this pleading, the plaintiffs identified in their written opening (MFI 2) that there was a question whether the first of the elements described above could be made out to statements concerning the plaintiffs simpliciter even without a connection to a profession (or anything else). They referred to the observation of Gleeson CJ in Palmer Bruyn [22] at [1] that: "In order to succeed, it was necessary to establish that the respondent maliciously published a false statement about the appellant, its property or business, and that actual damage resulted from such publication. The present case does not raise for decision the question as to how far the action for injurious falsehood extends beyond concepts of business or property".
3. In the above passage in Palmer Bruyn, Gleeson CJ cited his earlier observations, when Chief Justice of New South Wales, in Ballina SC v Ringland (1994) 33 NSWLR 680 ("Ballina SC") at 693, when his Honour had remarked: "The present case raises an interesting question as to how far the action for injurious falsehood extends beyond concepts of business or property. Professor Fleming says (Fleming, The Law of Torts, 8th ed (1992) at 710 [23] ) that the action is broad enough to encompass any damaging falsehood which interferes with prospective advantage, even of a non-commercial kind, and B gives as an example a case where a person falsely and maliciously wrote to the plaintiff's fiancée, claiming that she was his own wife, with the result that she thereby lost her prospective marriage. (The illustration was originally mentioned by Holt CJ in Anon (1706) 11 Mod Ref 99; 88 ER 921.) There are commentators who acknowledge the existence of an action on the case of potentially wider scope than one which depends on disparagement of property or business. For example, the authors of Odgers on Libel and Slander, 6th ed (1929) have a chapter (Chapter IV) headed: "Actions on the case for words which cause damage." The subheadings are: words which disparage a man's title to any property, real or personal; words which disparage the goods manufactured or sold by another; threats of legal proceedings; other words which injure a man in his profession or trade; other words which cause pecuniary loss. Under the last subheading the authors say (at 91) that if words which do not affect a man's reputation, profession or trade, but which yet cause him special damage, are written or spoken with the malicious intention of injuring the plaintiff, and the contemplated injury results, an action on the case will lie. Similarly, in Spencer Bower, A Code of the Law of Actionable Defamation, 2nd ed (1923) there is a chapter headed "Part XV - Quasi-Defamation". Article 61 deals with false and malicious disparagement of property causing actual damage, but art 60 deals with the wider topic of malicious publication of false non-defamatory matter causing actual damage. The author contends (at 208) that the publication of any matter concerning a person is actionable at his suit if he proves that the matter was false, that the publication was actuated by malice, that he has sustained actual damage by reason thereof, and that such actual damage was either the natural and probable result of the publication, or the result which the person publishing such matter intended."
4. In Ballina SC, Kirby P found (at 711E) that the essence of the tort was "establishing harm to the reputation of a person's business or in respect to the person's property, the quality of the person's merchandise or other such mercantile or property interest."
5. In Palmer Bruyn Gummow J said (at [60], citation omitted): "It is unnecessary to determine here whether the tort is broad enough to include any damaging falsehood which interferes with "prospective advantage, even of a non-commercial nature", as Fleming would have it, so that the confinement of the first element to "the goods or business" of the plaintiff is too narrowly expressed."
6. It was enough, for Gummow J, to conclude (at [60]) that the impugned publication concerned the conduct of the 'business or profession' of the appellant in that case.
7. Kirby J at [116]-[117] emphasised that the interest protected by this tort is economic loss. Hayne J found (at [154]) that the element was proven by a reference to the "(plaintiff), its property or business". Callinan J found (at [192]) that the statement must concern "the plaintiff or his or her property; that it is calculated to induce others not to deal with him or her … and that actual, that is financial, loss results from the publication".
8. In Noye v Robbins & Crimmins [2007] WASC 98, Noye was a sergeant in the West Australian police. He was involved in a long running investigation into a conspiracy to steal diamonds from the Argyle mine. Crimmins was one of the conspirators and she made a false statement concerning Noye and his dealings with another conspirator to others in the West Australian police. Robbins was from the internal affairs unit of the West Australian Police and he brought criminal and disciplinary charges against Noye in reliance on, inter alia, Crimmins false statement.
9. EM Heenan J concluded (at [277]-[281] and [737]) that the tort was broad enough to protect a person's person, in the sense that the malicious falsehoods reflected adversely upon his or her 'professional, occupational commercial standing and interests', being what his Honour considered as falling within the 'wider' view of the tort espoused by Professor Fleming. In that case, his Honour concluded that the false statements, of their very nature, affected the plaintiff in his 'reputation and standing' as a police officer since, if they were true, they would reveal his unfitness to continue as a police officer and lead to his discharge or dismissal from the police force. The plaintiffs emphasised that EM Heenan J did not reason to a conclusion that the falsehoods fell within the scope of protection on the basis that the plaintiff in Noye was earning a salary that might be imperilled.
10. On appeal from this decision, Owen JA (with the agreement of Buss JA and Pullin JA in a concurrence) stated [24] that it sufficed to establish the tort that the plaintiff prove the publication of words "about the plaintiff" which were false.
11. In Hamod v New South Wales [2011] NSWCA 375 ("Hamod") at [690]-[692], Beazley P (as her Excellency then was, Giles JA and Whealy JA agreeing) picked up the expression 'a false statement about or affecting another or another's property' deployed by Gleeson CJ in Palmer-Bruyn, although her Honour also approved of the notion referred to by Gleeson CJ (when Chief Justice of the Supreme Court) in Ballina Shire Council of 'provable economic loss' which the tort was designed to protect.

Plaintiffs' submissions

1. The plaintiffs argued that the tort protects against actual damage caused by false statements 'of or concerning a plaintiff' made for an improper purpose and actual damage is not limited to pecuniary damage, or economic interests. This submission was said to be supported by the approach taken by Gleeson CJ in Ballina SC at 693. Mr Brennan SC pointed out that it was not only academic literature that Gleeson CJ had regard to in Ballina SC as supportive of the approach he was advocating but his Honour had also cited the ancient decision of Anon (1706) 88 ER 921 as illustrative authority for Professor Fleming's view that the tort extends to malicious falsehoods which interfere with any prospective advantage, even of a non-commercial kind.
2. They also argued that what was said by the Western Australian Court of Appeal in Noye v Robbins [2010] WASCA 83 at [82] was a correct statement of the law. However, Mr Brennan SC fairly acknowledged that what was said by Gleeson CJ in Ballina SC and the Western Australian Court of Appeal in Noye was only obiter. Nevertheless, Mr Brennan SC urged the Court to follow the approach of EM Heenan J at first instance, in Noye; submitting that I would only not follow it if I was persuaded that it was plainly wrong.
3. The plaintiffs submitted that their offices as Captain and President of the Glossodia Brigade, and membership of that Brigade, established under the Rural Fires Act 1997, fall within the scope of 'profession' in this sense. The posited maliciously false statements affected their professional status. Mr Brennan SC acknowledged however that this submission could not be accepted if the state of the law is such that statements are to affect only a person's economic interests. He also made a suggestion, somewhat faintly, that for a long time the common law had regarded a person's holding of an office as being akin to a proprietary right.
4. In reply, and perhaps in response to an observation I made during oral argument, Mr Brennan SC submitted that the reference in some of the literature and cases to 'not dealing with' the plaintiff has not been conclusively settled in favour of the proposition that 'dealing' is considered only in an economic sense. In Palmer Bruyn, Kirby J and Callinan J may have determined as such, but this particular question was not considered by the remaining Justices. The path was not foreclosed to accepting EM Heenan J's view at first instance in Noye that actual damage, for the purpose of this tort, could include non-pecuniary interests.

Defendants' submissions

1. The defendants submitted that the representations were not of and concerning the plaintiffs' business, which they submitted was an element of the tort. The roles performed by the plaintiffs were not remunerative. No business or commercial interest was infringed by whatever representations were conveyed. They also disputed the notion that damage to a person's status or reputation within an organisation, per se, is sufficient.

Consideration

1. Mr Jay referred to himself as having been a TAFE teacher for most of his working career; although, as at the date of his affidavit of 11 November 2020 prepared in this proceeding (Exhibit 6), he described his occupation as 'paramedic'. Mr Peters is an executive officer of the company Western Freight Management. In the same Exhibit, Mr Peters listed his occupation as 'Business Owner'. However, both plaintiffs closely identify themselves as volunteer firefighters. They hold, and have held for a very long time, rank or office in a predominantly volunteer organisation. As will appear later from their claim for aggravated or exemplary damages, part of their complaint is that they were 'cruelly' abused in their capacity as volunteer firefighters (MFI 2, paragraph 45).
2. In my respectful opinion, whilst the tort of injurious falsehood extends protection beyond a person's proprietary interests, to protecting the person's trading or professional interests, the protection does not extend to mere statements about a person more generally or, to put the matter another way, any statements interfering with a person's 'non-commercial advantage', as referred to by Professor Fleming. Contrary to the plaintiff's written submissions, Gleeson CJ in Ballina SC did not decide that it did, as distinct from raising the point that it was arguable (the other members of the Court of Appeal did not decide the point either). Nor for that matter did his Honour express a view, expressly or implicitly, that the 1706 English decision of Anon that he cited, was actually correct, or binding. The plaintiffs did not cite any Australian authority applying that English decision.
3. It is true that the Western Australian Court of Appeal in Noye at [82] placed no limitation on the subject matter of the false statement. With respect, it did so without apparent consideration or at least citation of authority, including Palmer Bruyn (and Ballina SC), and in circumstances where it was not the ratio of the decision (no point on appeal being taken about the ambit of the scope of protection offered by this particular tort). Indeed, as was pointed out by the Court of Appeal in Noye at [112], the Court did not have to address issues associated with this tort. It was not, with respect, a closely reasoned holding and I do not regard myself as bound to follow it.
4. First, although it is true that there are statements from Judges at the highest level that speak of statements about a 'person, or his or her property', I do not, respectfully interpret those to mean that anything that is maliciously and falsely said about a person may give rise to the action of injurious falsehood. If it was to be so interpreted, there would have been no reason for the relevant jurists to attach the additional words 'or his or her property', or 'or his or her business'. This is analogous to the principle of statutory construction referred to in the Latin maxim "noscitur a sociis". [25]
5. The expression 'about a person..' has to be read in context, including the historical nature of the damage sustaining the action. In Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at [638-639], Mason and Jacobs JJ (with whom Gibbs J, Stephen J and Aiken J all agreed) said (citations omitted): "The essence of the action in defamation was that the publication of defamatory matter operated as a disparagement of the plaintiff's reputation. Consequently, malicious statements which injured a man's business or his goods but did not disparage his reputation were not actionable in defamation though they were actionable as injurious falsehoods. But a plaintiff whose reputation was disparaged by a defamatory statement could recover as damages any business loss sustained in consequence of the publication of the defamatory statement."(emphasis supplied)
6. Professor Fleming himself indicated that the tort is directed to statements 'calculated to induce others not to deal with the plaintiff' [26] , which helps explain why the tort of injurious falsehood finds its place in a chapter (30) in his text titled 'Economic Relations' [27] . The same phrase was adopted by Beazley JA in Hamod at [692]. Read in context, the expression 'not to deal with' is a reference to the infliction of injury of an economic kind. It is not directed to statements which are intended to or have the effect of simply causing others to personally shun the plaintiff, which is reputational damage and the interest which the law of defamation is directed to protect. Economic loss is potentially inflicted by maliciously false statements precisely because the plaintiff has some economic interest at stake, through such matters as ownership of property, a professional or trading position and even one of employment.
7. The point about the interest being protected as being economic in character, was further underscored by the plurality in Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 ('Radio 2UE') at [11].
8. Although it was not directly referred to in terms, the tort of injurious falsehood falls within the economic torts referred to by Crennan, Bell and Keane JJ (at [121]-[122]) in Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185, where their Honours noted that until the decision in Hedley Byrne (an unintentional tort), the common law of tort passed the burden of economic loss from plaintiff to defendant only where the defendant intentionally inflicted harm on the plaintiff by conduct which was unlawful for reasons other than that it was likely to, and did, cause economic loss. To follow the broad view that it is sufficient to establish the tort that any maliciously false words were published about the plaintiff would sever the connection between the content of the statement from the interest infringed by the maliciously false statement that gives rise to the tort [28] .
9. With respect, the observations of the plurality in Brookfield Multiplex Ltd reflect a fundamental point made by Fleming, that the purpose of the law of tort is to adjust losses sustained by plaintiffs as a result of activities of defendants 'where there exists special reason for requiring the defendant to bear it rather than the defendant on whom it happens to have fallen'; and whether that special reason exists depends (partly) upon the kind of harm for which reparation is sought. One such interest, and historically the interest to which the tort of injurious falsehood (and some other torts) has protected, is 'detrimental consequences (from the activities of others) to their pocketbook' [29] . The torts of libel, slander and defamation protect the plaintiff's reputational interest.
10. This is not to suggest a rigid dichotomy between the two torts. It is trite law that this is not the case. Reputational damage may often result in some economic detriment. [30] This conceivably means that many disparaging statements can be encompassed by the tort of injurious falsehood, because of the innumerable ways in which a person's economic interests may be affected.
11. I respectfully agree with EM Heenan J in Noye at [280], to the extent that his Honour determined that the representation must 'reflect adversely upon his or her professional, occupational or commercial standing and interests' to the extent that these reflect the plaintiff's economic interests. Thus, where one finds references in the authorities to statements directed to the 'plaintiff, or his or her property' or 'plaintiff, his or her property, or business', or the statement 'of or pertaining to the plaintiff's goods or business [31] ', this should be taken to amount to a convenient shorthand description of the plaintiff's economic interests which, as indicated, may take a variety of forms. The expression 'of the plaintiff, his or her property, goods, or business' should not be construed disjunctively so that the element is made out by reference to the plaintiff personally.
12. I would respectfully disagree with EM Heenan J if his Honour was intending to suggest that the tort extends to protect the personal reputation and standing of a plaintiff. I do not, with respect, consider that this was his Honour's intention. In fact, his Honour was careful (at [280]) to refer to 'occupational or commercial standing', thereby linking the disparaging statement to activities which may have an economic character.
13. It is not obvious why the tort should extend to maliciously disparaging statements about the plaintiff personally. Experience shows that tort law has sometimes played a role in the law in plugging gaps where other areas of the law (perhaps most obviously the law of contract) have not furnished a remedy for a person's loss, consistently with the need for legal coherence [32] . That is not the case here. The plaintiffs presented no argument as to why the scope of protection for the tort should be extended beyond protection of economic interests. Their point was that the present state of authority in this country did not foreclose such extension. There is no apparent reason why the tort of injurious falsehood needs to be expanded as a perceived means of filling any lacuna in the law.
14. It may be true that there may not be any authoritative statement by a majority of the High Court that the harm the subject of this tort must be to the economic interests of a person, but as indicated in the authorities canvassed in the Court, that to my mind is the plainly preponderant view in the authorities. In my view, given the spate of views expressed by eminent Judges at the appellate level in New South Wales, it is not within the province of a Judge of an inferior Court (in this state) to adventurously sweep away those views. I respectfully disagree with what EM Heenan J said at [748], [752] and [755]. It is curious since these paragraphs fall in a section of his Honour's reasons which deal with another element (proof of actual damage) when, as indicated, his Honour had earlier (at [280]) dealt with the first element of the tort in the way I have indicated and where, with respect, what is said at [748] appears inconsistent with what was said at [280]. Then, at [752], his Honour referred to what damaged the plaintiff "in his person". That also, with respect, jarred with what his Honour said at [280]. As indicated, recognition of reputational damage at [755] would give rise to an action in defamation.
15. It may be arguable that that damage to the plaintiff's person may, in some way, be compensated for in an award for damages for this tort, and plainly aggravated damages is an obvious example of this, but the anterior question is whether actual damage has been caused and in conformity with the historical objects of this tort, the element of actual damage as the gist of this tort is economic in nature.
16. On the view that I favour, the statements were not directed to the plaintiffs' economic interests (in the broadest sense of that expression). Without diminishing the admirable nature of their service as longstanding members of the RFS and the obvious pride the plaintiffs place in their offices within the RFS, the statements in the publications did not concern the economic interests of the plaintiffs. The plaintiffs did not plead, nor seek to prove that even the prospective loss of rank, or even prospective removal from a volunteer organisation (neither of which occurred) as well respected as the RFSNSW, impaired any proprietary, business, commercial, professional (including occupation or employment) or trading interest that the plaintiffs had. Simply put, their offices within the RFS had no real economic value.
17. Through their unpaid or voluntary service to the RFS, they were not carrying on a 'business'. They did not profit from service in the conventional sense. Nor did they enter into any contract of employment with the RFS or derive recompense for their service.
18. I do not consider that unpaid activities within a (predominantly) voluntary organisation, even in an organisation like the NSWRFS which performs such vital (and dangerous) work for the benefit of the community, amounts to an 'occupation'. The relevant connotation of 'occupation' in this regard is economic; not recreational. The plaintiffs themselves identified other paid work as their form of "occupation".
19. It is also a major stretch to characterise, as the plaintiffs' Counsel sought to do, that through the ranks or offices they held within the Glossodia Brigade, they were engaged in a 'profession'.
20. I noted earlier in these reasons the requirements for eligibility to be a member of a Brigade under the 2013 Regulation and the 'New Brigade Constitution for NSW Rural Fire Brigades'. From a distance, they did not appear especially onerous. Members generally are on probation until they attain a minimum level of competency or are accepted in a general meeting of the Brigade. It may be inferred that it takes certain skills derived from training and experience to attain the rank and offices that they did within the Brigade and I accept the evidence of Mr Jay and Mr Peters about the additional training and skills they had developed to become officers; even though, constitutionally, office bearers appear to simply be the subject of election from members of the Brigade at a general meeting. That requires the confidence of the Brigade in the leadership and technical skills of the officeholder. It may also be accepted that members and officers of Brigades are subject to ethical constraints and discipline. Nevertheless, there is missing such usual incidents of a profession of formal qualifications and accreditation.
21. Whilst I accept that both plaintiffs were passionate and dedicated to the RFS, it was not a 'vocation' or 'calling' for them. I strongly doubt whether reasonable persons in the community would regard volunteer fire fighters as belonging to a 'profession'. Most persons engaged in a profession do not do so only on a part-time basis.
22. The position of the plaintiffs was plainly distinguishable from the police officer in Noye v Robbins who, if sanctioned by dismissal, would have lost his full-time remunerative employment. That clearly did affect his employment and occupational interests, which were economic interests. EM Heenan J awarded damages to reflect his professional, occupational or commercial interests impaired by the false statements. As the defendants correctly observed, the loss of salary was an aspect of the police officer's (full-time) trade or business through his profession as a policeman.
23. The representations were contained in internal documents for the RFS. The confinement of their circulation within the RFS would cause no harm to their economic interests; no matter how much their reputation and standing within the RFS was, or was likely to be, damaged by the publication. To the extent that their complaint, in substance, was one of damage to reputation, and injured feelings associated with their loss of 'status' or 'standing' within this predominantly volunteer organisation, this was the province of the law of defamation.
24. The holding of office may in certain circumstances satisfy an economic interest, but that depends on the circumstances. In the circumstances of these plaintiffs, statements potentially imperilling retention of their offices did not impair their economic interests. Their holding of a membership in a predominantly voluntary association is even less connected to an economic interest. The position in these respects might differ, on the facts, if a loss of office, or membership, gave rise to a risk of reputational loss (which might conceivably, have potentially prejudiced their real occupations), but, as indicated, no such case was argued; which reflected the limited class of publishees and, arguably, an expectation of confidentiality upon them. As will be remarked upon later, for a significant period, the RFS tried to withhold production of Mr Plumridge's investigation report.
25. For these reasons, the first element of the tort of injurious falsehood - what Gummow J described as (false) statements 'of and concerning the plaintiff's goods or business' - is not established. That being so, the plaintiffs' claims must fail.
26. I now consider other important issues raised by the parties in case I am wrong in this finding.

FALSITY OF REPRESENTATIONS FROM FIRST & SECOND PUBLICATIONS (AS FOUND)

Evidence for the plaintiffs

1. The plaintiffs' tender bundle (Exhibit B) ran to well over 1,000 pages. I indicated to Counsel, for both sides, from an early point that they should not assume that the Court would have regard to material in their respective tender bundles unless the Court was specifically drawn to the material. Senior Counsel for both sides were content to proceed on that basis.

Mr Plumridge's investigation reports into the conduct of Mr Jay and Mr Peters

1. A large part of the plaintiff's tender bundle, in particular, concerned the investigation reports of Mr Plumridge concerning Mr Jay and Mr Peters and the primary material that he relied upon. The defendants objected to the tender of this material on the ground of relevance. Ultimately, Mr Brennan SC did not refer to the content of the investigation reports in his Opening written submissions (MFI 2) or verbal Opening address, or closing written or oral submissions. It was appropriate that he did not do so. It is not the Court's task in this proceeding to engage in a de facto review of the investigators' report, even if conclusions or the results influenced the decision of the plaintiffs to commence this proceeding. The Court is plainly not well placed to weigh evidence of out of court statements made by persons relied upon by the investigator. Nor could findings made by Mr Plumridge (based upon unsworn or unaffirmed statements) bind this Court in this proceeding. It is also the case that Mr Richardson SC did not refer in any material way to substantive findings made in the Investigation report. Similarly, the Court is not attracted to being invited to go behind the investigator's reasons. This affects the plaintiffs' strong argument about the significance of the delayed provision of the audio sound recording of the 20 July 2016 meeting. Nevertheless, as will become evident, there are some matters in that report, mainly relating to procedure and the information Mr Plumridge relied upon, touched upon in these reasons.
2. I would also add, in passing and at the risk of stating the obvious, that the Court has no jurisdiction nor interest in adjudicating the merits of the issues which seemed to bedevil the relations between the Glossodia Brigade, the South Sector and Hawkesbury District of the RFS.

The audio recording

1. In respect to the First (and Second) Publications, the plaintiffs substantially relied upon the audio recording of the 20 July 2016 meeting (Exhibit A). A transcript of the audio recording was taken as an aide memoire (MFI 1). That ran to 53 pages. The transcript was compiled by the lawyer for the plaintiffs, apparently on the basis of Mr Jay's identification of the voices. My impression is that it was far from being infallible - there were many breaks and indications that what was said was indecipherable - but it is fair to say that both sides had the opportunity to compare it against the audio recording and no truly material problems were identified. Both Senior Counsel arranged for only selected parts of the sound recording to be played. What follows is the transcription of those extracts upon which they relied. A glossary of speakers appeared on the front page of MFI 1.
2. Reference is made to the transcript pages and also the time period into which the parts was said, apparently from the commencement of the recording.

T 5 (00:09:45)

1. In this part, Mr Petrikas reviewed what had occurred at the previous Group South meeting on 23 March 2016 and, in the process of doing so, noted the practice of sound recording what was said at such meetings: "GP: Alright, thank you very much for doing that Ken (Pullen) - alright that's very good. As usual we have put the recorder on to try to capture things that we don't scribble down so everyone is happy with that still? so we will keep doing that. We will go through a quick overview of the Minutes of the last meeting that we had on the 23rd of March. DR: do you want me to …? CP: I'll go through it if you like. I will just quickly go through it and we move on from there. So we - the meeting was on the - as I said in March. I won't go through the business arising because that was attended to on the night but we have the election of the SMT members and there was a little bit of talking about who could be in that and who wasn't and who could vote and things like that, so we will talk about that little bit later. We then had a couple of motions put forward and one of them from John Peters was - or the election results sorry and that was Bruce Earle and Andrew Rutter. We then had a motion moved from John Peters that um - oh though actually sorry we first had a discussion here from Michael Scholz - spoke about a better process so that other people could be on the SMT and so that could be shared around. John Peters put a motion that the standing representatives only were there for one term to allow the SMT representatives to move around through the group, and that was seconded by Dave Sargent and the Minutes record that the motion was carried. There was a thing written here that after the meeting, or next week, there were some participants questioned that. Graeme also put a motion that the SMT - about the voting - and I just have two read how it went and that motion wasn't carried forward."

T 9-12 (00:20:21 - 00:25:48)

1. In this part, the topics of discussion included the method for voting and revelation of a vote that night, and Mr Jay's discussion of enlarged boundaries for the Glossodia brigade. "GJ: righto -the motion that I put at the last meeting with regard to one brigade one vote, I've since had a meeting with the FCO in regard to that and she assures me - supposed to be voting practice we should follow it, why not. CP: and that's - that happened - we said that - remember on the night we actually said you're probably right on that, let's do the vote again and do the other way and we decided not to but I believe that we probably should have the vote again tonight and get it right because tonight we have actually got a representative from every person here tonight. GJ: okay so we are agreed that it is one brigade, one vote. So you have a motion I moved and that motion was defeated. CP: there wasn't exactly the motion you moved. [Several people talking at once] GJ: well I thought it was the motion I moved. CP: because Michael (Scholz) was saying … DR: does that matter if we're talking Agenda for tonight's - to do that in that process now is it really something that you wanted adjusted if that is not the motion? GJ: well it's matters arising. CP: yeah, it's matters arising. IW: there's nothing that you can't … [Several people talking at once] GJ: I thought you were going to talk about it later on … how would I know that? DR: because I thought you said we didn't know … GJ: … so I'm bringing that up now. DR: so yeah. CP: yeah no - I think that is fine - he saying that and I believe that after we read things rather than from a phone and from memory … DR: Yeah. CP: … Then we - I admit to not running it the way that the paperwork says that we should run it so with that in mind I believe that we should do it tonight and that is why on the Agenda tonight we actually have the election of the SMT representatives back on the Agenda. GJ: righto. CP: okay. DR: has everyone got an Agenda? GJ: so that election result is going to be set aside in a new vote … CP: a new vote tonight, yes. DR: has everyone got an agenda? CP: yeah, they were all sent out to several. DR: have you got on with you though? CP: okay, so … GJ: what the agenda says Dave, is Election of SMT representatives DR: yeah, that's right - yeah, yeah CP: okay. GJ: so I didn't know if that was the result of those. DR: no, no election again. CP: no election again - no, no. GJ: because we had already done it. CP: No, no, no … AR: yeah, we went through the drafting of the what's er name CP: no, no there was certainly word, you know, words of impropriety at the last election so we will fix that impropriety by doing it again. GJ: excellent. CP: Right - any other business arising from the last meeting? GJ: a little bit ### CP: Right. GJ: in the discussion on the CAD system, I'm wondering what the group's thoughts are with regards to boundaries - Brigade boundaries CP: how does that really affect the CAD system - oh you meant so they change it at their end with the right person? GJ: I think it is right to do it with before the CAD comes in which is going to be within weeks now presumably, the problem is the poor old CAD controller is sitting there with an overlay with a line around a map - the line on a diagram basically says well a fire call there, that brigade is going to go and in my own case if I respond 400 m up the road that way, I am in Tennyson's area - that's idiotic. DR: well it's happening now already. Poor old headquarters over here are getting pumped to calls in Cumberland's area. I think the last four calls you've had … GJ: I think that is really sensible. GE: the actual last call was Cumberland into our area. DR: that's right so what's happening with the CAD system … [Various people speaking at once] GJ: no, it's not what they said at the meeting. DR: no, we are not on CAD yet - but we are not on CAD yet you know what I mean? V?: We will.. GJ: what I'm suggesting is that this needs to be resolved now … CP: yeah. GJ: … And well as a philosophical point, do we think that the Group should be thinking about Brigade boundaries? Should these be reviewed, same as electoral boundaries are frequently moved when people move and areas grow and things change - should we be reviewing those things? I think we should - that's my philosophy. CP: well other people think it makes that much difference. I just look at Kurmond Road for instance. Kurmond Road and I look at the whole district realistically is the fact that we all live on the southern end of the district and we are responsible for all of the district but Kurmond Road is a classic. We have Kurrajong with some responsibility for it, we have Tennyson with responsibility for it, we have Freeman's Reach and we have Wilberforce all for that same 16 km of road - okay - so with that in mind, there's four people on 16 kms of road. Does it really matter? There was a fairly interesting event that Michael ended up running at the end of Tennyson Road at the intersection of Tennyson Road and Kurmond Road - did it affect the outcome of that fire? Not at all - Tennyson were actually - there was a second call that was made to the other end to East Kurrajong Road but overall was there anything different with the response time and with the outcome of that night? No. Tennyson has been in Freeman's Reach because the numbers were wrong, Kurrajong has been in Tennyson vice a versa - I don't really see that as far as an RFS district looking after the residents of the district,, it really makes any difference so why don't we focus on a bit more important stuff that where a line on the map here that that's my opinion and I'm open for other people to voice theirs but I don't believe there is any reason …

T 16 - 19 (30:50 - 36:56)

1. In this part, Mr Jay raised the question whether discussion about boundary review should resume, apprehension about the suitability of the CAD system, an insult by Mr Ryan to Mr Jay and Mr Jay's response. "CP: anyway, so let's move on because we don't want a three-hour night tonight, so any other business arising? GJ: sorry we finished with the boundary review? CP: well, well… GJ: and you say no and it gets pushed aside - you say no so that's that the end of the discussion is it? CP: no, okay - sorry - righto I was trying to move things on. We just had a discussion on both sides which you've asked about boundary review, we've come back to other things. Do we need to worry about boundary review? [Several people: no] CP: that's more in general business or something later if you want to but I don't see .. BE: ### - Graham, we're talking about a street or two - is that what we're talking or? SM: well what's the point - responding two trucks to a house …? CP: to a house fire? Pretty good. SM: if a pile burn's just 400 m up the road from our station when we are obviously going to be the first ones there but because it is in Tennyson's area, Tennyson is going to get called as well - what's the point? CP: but then .. SM: … it's just a waste of time. DR: it's what the CAD system is going to do though. CP: the CAD system is going to … DR: is going to be the closest Brigade SM: if it's in Tennyson's area …. DR: it doesn't matter. SM: … Then Tennyson is going to be called as well. CP: what we're trying is the CAD system is going to pick the closest Brigade to that job. DR: And respond as that ### as we go. SM: But you just said … [Several people speaking at once] SM: … That Tennyson will get called as well … CP: well that's …. SM: … It's a waste of time. CP: … Well sorry it is a waste of time but at the moment now and the CAD system is going to make us better at it, I hope, is that if we get to something and it is in another area and it's only a pile burn or something like that - the quickest you get on there and say confirm there is a fire, it is a pile burn, it is in attendance, so if the other truck hasn't started to roll, so be it - that's how it goes. DR: no assistance required. CP: yeah, so I don't need anything - it makes no difference. GJ: ## ## - I suggest we park this issue until they finish the meeting after the CAD system comes in. CP: Yeah. GJ: Then will see if it actually does make a difference and if it doesn't I want to revisit it because 400 m that way is Tennyson's area is idiotic. CP: right. [Several speaking at once] CP: Hang on - hang on. GJ: if it effects someone else in this room - no wonder you're voting against it. CP: no we're not voting against it. GJ: you'll vote against me. [Several speaking at once] CP: Hang on Graeme. AR: Hang on Graeme. [several people speaking at once] AR: that's a dickhead comment Graeme. CP: wait on, wait on, wait on, wait on … DR: give him a chance. GJ: if it does come into my Station .. DR: … give him the chance - shoosh - Graeme, Graeme, Graeme, slow down, slow down … GJ: no hang on - that bloke just called me a dickhead. AR: I withdraw the comment. CP: right - withdrawn - let's stop it again. Let's just carry on with the meeting. We are all here because most of us are quite happy to look after the district, we are quite happy to be in the trucks, we are quite happy to be socialising with each other so don't carry on with crap like this so let's carry on with just get through a meeting and make the place happen - that's what we're here for. Forget this personal bullshit thing about anything else. DR: okay, but Graeme's got a motion on the floor. CP: did he put a motion did he? DR: did you put a motion on the floor? GJ: no, what I just said that I agree we park the issue until after the CAD comes in and will see how things go. DR: Right."

T 25 - 26 (49:08 - 50:45)

1. In this part discussion took place in relation to the election of SMT representatives and the introduction of Ken Pullen to chair the vote. "CP: okay we'll note that - that doesn't sound very good. Any others? That was good enough. That leads me to the election of the SMT again - we might revisit that and if it is all right with the meeting as Ken is from West Group, from ##if we could ask him to may be run that - if that sounds right with everyone. Ken, you were foolish enough not to go home [laughter] unprepared, didn't know that he was going to do this and we'll, we'll call for nominations again and have an election. KP: the two South Sector? CP: SMT representatives all right and I will do it. KP: and we've got a all seven Brigades present and two groups. CP: yes and the two - and a representative from both groups. KP: so there is nine votes possible. CP: yes - and the only people who can stand are Captain and Senior Deputies. BG: can the brigades have a discussion before the vote BG: it was on the note. BG: it was on the note but that's fine. [Soft mumbling] KP: so you want about five minutes did you Brian? BG: two. CP: we'll have a two minute break while I'll tell Ken that he is doing it. KP: what do you normally do? CP: we normally just call for nominations off the floor - right. We normally call for nominations of the floor and if there is …. [Everyone talking at once] KP: so while you have two minutes, workout who from your Brigade is casting your vote"

T 26-32 (54.22 - 1:07:40)

1. In this part of the sound recording there is discussion of Mr Peters' proposed motions and Mr Peters' letter in explanation for those motions. The content of that letter is read out and is followed by responses from Mr Rutter and Mr Earle. Mr Ryan than makes a statement, which leads to an interjection from Mr Jay. "KP: Ok - ladies and gentlemen, I'm - folks … CP: Hang on - can we get people in? KP: Ok I've been asked to chair this meeting and l'm now in receipt of a letter which purports to be and I use that word because it purports to be two motions and they provide details to support the motions. Now the problem I have is that the details as I read them are not factual from what I know and that is an issue I have. I can put the motions - this John Peters the president of the Grose, CP: Glossodia KP: er Glossodia Rural Fire Brigade has written asking that these two motions be brought and I am assuming that other members of Glossodia Brigade may choose to speak in support of the motion. I do, however, have a major concern in that this is a motion that where -there were words spoken earlier and there was sort of some comment that the facts just are not actually appropriate to use words like that are not actually conducive to people getting on. I believe if I read these then we have that some potential in reverse. GJ: We're all big boys Ken. KP: Sorry? GJ: We're all big boys and I don't need you to censor somebody else's document. KP: Excuse me - I'm not censoring the motions at this point. What I am censoring - I know, I know the material written in support of one of these motions, in fact both of them on my reading are not factual - okay - and that's a big ... GJ: It doesn't matter what we know. KP: Excuse me - excuse me - I'm chairing the meeting, okay. GJ: You're not chairing the meeting. CP: He's chairing this section… KP: I'm chairing this portion of the meeting. GJ: And you shouldn't be CP: I just asked him to run the election - he's running it. Everyone's ... GJ: Except## for you Chris. CP: Yeah but ... GJ: How has he got anything to do with it? CP: ... this is very relevant to this election. KP: Sorry - Chris wasn't in receipt of this until after he asked me to run the election. GJ: So - none of that's relevant. KP: Why not. GJ: It was addressed to Chris. KP: ... and he's handed it to me. GJ: It was addressed to Chris. KP: But I agreed - I gave you a two minute portion, space to have the meeting and now I have come to call the meeting to order ... GJ: We had no clue that you were going to take this role. You just landed on us tonight you're not even part of this group and yet now you want to tell us how to run the group. DR: Hang on, hang on, hang on - CP: Hang on, I just asked him to run this election of things here - this is relevant to the election. [Several speaking at the same time] GJ: That's fine, I have no problem with that. CP: And ... GJ: Don't be censoring a document - you've got no right to do that. DR: Well then does this document need to be within this particular part of it? CP: Let's ... CE: Just let it go ahead and let everyone make their own mind up. CP: ... Let him have a go. V?:Alright. V?:Yeah. KP: Okay, this says: "Hi Chris, I cannot attend tonight's Group South Meeting at Glossodia Station due to work commitments out west for the week. Would you put in my apologies please. I would like you to put on - up these two motions for me in tonight's Group South Meeting as detailed below." There are is a please with a question mark so it is almost as though he is saying I accept a no but anyway - "Motion 1 - A motion of no confidence in Andrew Rutter as a Group South Representative on the Senior Management Team as he should stand down and a new member be elected from the floor tonight" - and the details below and "Motion 2 - That Bruce Earle should stand down as he has stated that there is a conflict of interest as our Group South Representative as his employment is with Hawkesbury City Council - details below." BE: Can I have those details? KP: I'll give you - you want your details first or Motion 2. BE: Well I'm happy to answer that. KP: Well this is what's said and I will read - I will go Motion 1: "A recent representation from Glossodia and Wilberforce Brigade Captains was given the Group Captain Don McKillop to be tabled at the recent SMT meeting. The SMT has made suggestions that they didn't know of our concerns as detailed in the submission. We have on many occasion raised issues at Group South-Meetings and these items have been minuted and Andrew Rutter as our GSR knew those concerns and needs and he was to raise them with the SMT. It is obvious that he has not done this and misrepresented us on the SMT." If you wish me to continue with this to be considered liable. AR: Keep going. KP: "Because of this Andrew Rutter should stand down immediately as our GSR and a new member be elected to represent us correctly and raise our concerns and issues as we have and discussed at any Group South meeting. As there are now 3/V2 Brigades in the Group South Area and Andrew Rutter has not been representing us as a Group and only representing his Brigade Oakville. I suggest that the new GS come from either Glossodia or Wilberforce Brigades. This will make sure that concerns of the V2 Brigades can be tabled and discussed as their needs can be somewhat different that has been one Brigade as we Glossodia and Wilberforce are responding to all other areas within the Hawkesbury area as no other Brigades have been V2 classified. It is becoming more important that we can do what is asked of us and have the correct equipment and have a voice on the SMT as like other Groups do eg RAFT group. A member of the SMT must represent all Brigades and table and discuss any concerns or items whether it is ## or Group South Meetings and report back to the Group of the outcome after that." "Motion 2 - At the last Group South Meeting held at Oakville Station we had elections for the GS. Bruce had stated at the meeting that he has been told by his employer that he be careful with making comments etc on the SMT as he is an employee with Council and could affect his employment. This is a conflict of interest which representative South Group and he should make way for another member that does not have this conflict. This is in no way a reflection of what a good job Bruce has done and I commend him for his time and effort of representing the South Group." Now fairly significant statements have been made here and I am going to invite the two people the statements have been made against to respond if they wish. Andrew - AR: I find it highly irregular when I've got Minutes stated here on 29th of the 9th 15 that l've reported from the SMT about the tanker replacement programs and types being discussed and all that sort of stuff. I bring all these things forward ... AR: ... no, let me finish. You guys are giving the letter to Don McKillop when it was requested by myself a meeting or two ago that things be put in writing and handed to us so we can take it forward for you has not happened on your behalf. You have not given me one bit of paper in writing addressed to me saying please take this forward which I requested you to do so I had your thoughts exactly on paper so I could submit it to the SMT. That has not fucking happened - excuse the language ... V?: Excuse me - language. AR: ... excuse the language that has not happened. So you can't criticise me when I'm only going off memory and out of Minutes here to try and put your best words forward. I tried. We have talked about it - we have discussed it - the SMT's. Everything has been discussed at the SMT. We have not denied anything at the SMT. That's what my job is. My job is there. I put my personal self forward by yes by all means but it is the entire district that we have to think about. I have done that all the way. I can contest that with Bruce and I'm sure Ken as a member of the SMT can contest the same thing - so if you feel that way - that's your problem but in future if I am your representative, put it in bloody writing - that's what I requested in the first place. Not go behind our backs and give it to another Group Officer in another area - it's deplorable - sickening behaviour. DR: I agree on that. AR: It is the most disgusting behaviour - it's backdoor tactics that should not be warranted and the people doing should not even be in the RFS because it is bringing us into disrepute. It is disgusting. You want representatives but yet you are not using them correctly. KP: Bruce, do you want say anything. BE: Yeah - in regards to the conflict of interest of my employment, yes I work with the Hawkesbury City Council and on one occasion it was to do with our Freemans Reach Station - when it was - when the Council thought they owned the land so we are going back probably six or seven years ago - I was trying to keep things working, moving along and as an employee I was able to have access to the staff member that might have been able to get things moving and I probably over-stepped my mark - that is what it was to do with - that was the conflict of interest. That was dealt with at the time wasn't ## - nothing happened - I was - he was still waiting. That was the one point okay. It has had nothing to do with my representation on the SMT. Yes on occasions we have a Council representative there but it has nothing to do with my employment - you know - I'm there to representing the RFS and our South Group Brigades and that is what I do. We can do put points forward - more for Brigades so we do discuss it and that's where it ends so there are certainly no conflicts of interest as I say it was purely to do with an incident particularly ## that was some years ago. KP: Thank you. DR: Mr Chairman - may I speak ... KP: Well I was just going to ask - we have a motion of no confidence in Andrew Rudder. Do I have a second for that motion. Seconded from Glossodia Brigade so therefore we will continue the discussion. I have a motion that Bruce Earle stands down - motion 2 - do I have a second for that motion. A second for that motion. So - Dave you want to say something? DR: Yeah if I could. Just to put everyone in the picture. It was disappointing to see in an SMT meeting that - I don't like to call it backdoor tactics but there is Group Officers in each part of our Sectors within our Hawkesbury district and yes all Group Officers are working for the Hawkesbury but the idea of putting another Group Officer from another area and giving him paperwork to submit to it is making us look like we're dickheads up here and to me that's how I felt - that you guys that submitted that form couldn't bother to even ring me or email me to say Dave would you put this forward. Anything that comes out of any Brigade here, I will submit it to an SMT meeting and that's our job. GJ: You were off sick mate. DR: I've still been at the meetings. GJ: That's not the information I was given. DR: Do I have an email? I can still read, I'm not dead. This is what I'm saying. Do you know my email? GJ: No, I wasn't given any information. DR: But I am a South Group person. KP: David is making a statement. DR: My statement is that… GJ: He's making a ... DR: Shoosh ... GJ: It was directed at me and .... DR: ... no, no, ... GJ: .. I'm entitled to answer it. DR: I didn't say it was you Graeme. IW: He didn't mention your name, Graeme DR: I didn't mention you at all. I said the ... IW: You obviously have a guilty conscience. DR: ... the Brigade that handed the letter to another Group Officer of another zone or sector had no decency to even contact the South Group people with that letter. CE: Excuse me ... DR: Did you send it to me? CE: ... he emailed Chris. DR: Did you send it to me? CE: No, John Peters - he emailed ... CP: No, no we are not talking about that. DR: We are not talking about that one - no not that one, no - a separate letter. CP: We're talking about the SMT. DR: However, let's not worry about that - it was submitted at the SMT meeting and it was reviewed. Now it was reviewed by all of us that are on that meeting that actually sitting there discussing the issue. The way it might have turned up there was bullshit but it was still discussed. Now these two guys that have been representing not just you, you, you and you they're doing it for the whole of the Hawkesbury and regardless of whether you have had a conflict of interest groups - you have hat on for a captain -you're trying to find a block of land alright - if it was to be discussed in the meeting - you would have been asked to stand out of the meeting for that opinion, am I right? BE: That's correct. DR: So it is not a conflict of interest, okay, I don't know where and how this bullshit came to that letter - like how would he have known? Have you mentioned it? DR: No."

Evidence in chief

1. Mr Jay gave his recollections about the layout and content of discussions at the 20 July 2016 meeting. He recalled that the usual practice of taping the discussion occurred on an iPad on the front table. The front table was occupied by Andrew Rutter, Chris Petrikas, Ryan and Wedge. From the direction of looking at that table, he was seated in the middle section. Generally, he remained seated during the meeting, except for when there was a brief break while arrangements were being made for an election.
2. Mr Jay was taken by his Senior Counsel to parts of the meeting, as indicated. He was first taken to the acrimonious 'dickhead' reference (about him) made by Mr Rutter. This, Mr Jay said, caused him upset and embarrassment: this was his Brigade station; the comment was made in the presence of his family. But, he recalled, he remained seated. He did not appreciate subsequent comments made by Mr Petrikas, when looking at him. He also interpreted comments made by Ryan as an attempt to silence him. Through this however, he remained seated.

Cross-examination

1. As to the substance of what was discussed, Mr Jay agreed that Mr Petrikas had acknowledged that Mr Jay was right about the method of voting, but he denied that he wanted to have the election of SMT representatives set aside and voted upon again.
2. Mr Jay accepted that there had been at least a 5 to 10 minute discussion about Mr Jay's argument for enlarged boundaries. He agreed that no-one appeared to share his enthusiasm. It was put to Mr Jay, but he denied that his reference to others voting against him was a disrespectful and rude intervention. This immediately preceded Mr Ryan's 'dickhead' comment towards him. It was put to him, but he denied that it was a provocative assertion that other Brigades were effectively acting in their self-interest. Contrary to what was put in the particulars to the pleading, he was not 'calm and considerate'.
3. Mr Jay admitted something that was missing from the sound recording. At a point (T 20) where Mr Petrikas is asking if there is any other business he, Mr Jay, thought he had said that he had "heaps more".
4. Mr Jay was directed to the lead up to the election and Mr Pullen's explanation for why the latter was unwilling to read out Mr Peters' letter. He agreed that he sensed that Mr Pullen was apprehensive about the likely negative reaction received from Messrs Rutter and Earle if the letter was read out. But it was put to (and denied by) Mr Jay that he made a sarcastic reference to everyone being 'big boys'. It was put to and rejected by Mr Jay that he was effectively demanding that Mr Peters' letter be read out; although he conceded that he wanted it to be read. He denied raising his voice. Mr Jay was strongly challenged about his lack of disclosure to the meeting of his own awareness.
5. Mr Jay was asked about his statement about the letter being "addressed to Mr Petrikas" and his source for this information. Mr Jay said that he assumed that this was so; although to him, it made no difference whether the letter was sent to Mr Pullen or Mr Petrikas. He said he did not see who handed it to Mr Petrikas or Mr Pullen. He did, however state that Mr Eather had a copy. He explained that Mr Peters had spoken to him about providing Mr Eather the letter (indicating that Mr Peters and he were speaking every day at this time). He denied that his statement that Mr Pullen was not entitled to 'censor' publication of the letter was aggressive and rude or that it reflected anger on his part that he may not achieve the result (the reading of the letter) that he wanted. It was put that far from acting in a calm and considerate fashion he was interrupting Mr Pullen: Mr Jay denied this, explaining that he was only participating. Mr Jay was challenged about the content of his pleading where he denied knowing anything about the letter. This, it was put, was dishonest in circumstances where he had not disclosed to the meeting that he had actually read drafts of it. Mr Jay disputed this.
6. After Mr Peters' motion and letter was read and Messrs Rutter and Earle had said what they wanted to say in response, it was suggested that Mr Jay was (also) interrupting Mr Rutter. Mr Jay accepted that he had. It was also suggested that he had interrupted Mr Ryan, when the latter had complained (without mentioning Mr Jay by name) about 'back door tactics' in the sending of the letter to Mr McKillop. It was suggested that the excuse that Mr Jay gave for not contacting Mr Ryan was weak (noting that Mr Jay had earlier been privy to Ryan's email address). Mr Jay agreed that he had deliberately sent the letter to Mr McKillop instead of Messrs Petrikas, Wedge, Ryan, Rutter and Earle. It was put to Mr Jay that he raised his voice to Ryan: Mr Jay accepted that he had a loud voice, which was probably louder in this particular instance. It was put to Mr Jay, although he denied that the reason for raising his voice was that he was angry because Mr Ryan was in the process of exposing him for sending the letter to Mr McKillop. Mr Jay said he had no regrets about his behaviour at this meeting.
7. Mr Jay was referred to minutes of the meeting indicating that for the motion of no confidence against Rutter, only 1 Brigade - Glossodia - was in support. Mr Jay accepted that the mood of the meeting had turned against him after Mr Peters' letter and the motions were read out. The motion against Earle was recorded in the minutes as being defeated 9-0, although Mr Jay appeared ambivalent as to whether he (for Glossodia) had either abstained or voted no.
8. Mr Jay was questioned about the election of the SMT representatives at the meeting. The Minutes showed that he had been nominated and that nomination had been seconded, but Mr Jay said he declined to stand. It was put to him, but Mr Jay denied, that he did so because he knew that he would lose and was concerned about the accompanying humiliation.
9. It was generally put to Mr Jay, and he generally denied, that at this meeting, he:

• used spiteful language;
• was disruptive, or frequently interrupted;
• raised his voice frequently (especially on the occasions of discussing boundaries and the CADS, addressing Mr Pullen being the Chair; and speaking to Mr Ryan after Messrs Rutter and Earle had defended themselves in response to the motions);
• engaged in in bullying conduct, especially towards Messrs Rutter and Earle (knowing of the highly critical content of the letter and motions and concealment of his own role in bringing the motions about);
• he sought to create an impression in the meeting that he had been kept "out of" the Peters letter and motion.

Mr Crick's evidence about the 20 July 2016 meeting

1. Mr Paul Crick has been a member of the Glossodia Brigade since 2007 and has been a Senior Deputy Captain. He was called to give evidence of what occurred and, in particular, his observations about Mr Jay's behaviour at this meeting.
2. He recalled that Mr Jay, like himself, was seated in about the middle section of the group (albeit on different sides of the room). Mr Crick recalled talking with Mr Jay shortly before the Group South meeting commenced.
3. Mr Crick recalled that with the exception of the break for the purpose of reorganising the room for the vote, Mr Jay remained seating during the meeting.
4. Mr Crick generally recalled that Mr Jay was 'forthright' during the meeting and generally used his normal voice. If he did raise his voice it was only to allow himself to be heard above the rest of the group. Mr Crick believed that Mr Jay had taken reference to the 'dickhead' comment by Mr Rutter, although until he read the transcript of the meeting, Mr Crick did not appreciate that this descriptor was given to the comment that Mr Jay had made (rather than a personal description of Mr Jay). He also recalled that Mr Jay was calm. He said he was not aggressive.
5. Senior Counsel for the defendants put to Mr Crick, but the latter denied, that on each of the occasions during the meeting when there were discussions about Brigade boundaries, Mr Pullen's role as chair and a discussion with Mr Ryan, that Mr Jay did raise his voice.
6. The plaintiffs also called Mr Don McKillop and Mr Charles Eather, whose evidence was respectively directed to discrete topics. I have referred to their evidence in the chronological narrative set out earlier in relation to the First and Second Publications.

The defendants' evidence

1. None of the defendants gave evidence.

Other disputes between Mr Jay and Hawkesbury Group

1. The defendants compiled a large volume of correspondence (Exhibit 3) indicating many disputes involving Mr Jay and staff associated with the Hawkesbury District of the RFS before and after the events occurring on 20 July 2016. The forensic point of this was to demonstrate a pattern of Mr Jay acting in a bullying, intimidatory, or abusive fashion towards staff associated with the District when they acted in a way which did not accord with his wishes; as well as to demonstrate an associated lack of insight and over-reaction, or misconstruction of the motives of the people with whom he corresponded; and especially Superintendent Hodges and Mr Petrikas. In particular, they evinced a suspicion and distrust in relations as between the Glossodia Brigade and the District. Also illustrative of some of the correspondence was a willingness in Mr Jay to correspond with others in what was regarded by the defendants as an inappropriate way if he thought it might service his or the Brigade's ends.
2. Suggested illustrations of this conduct emerged from the following exchanges: 1. In 2010, he made allegations against Senior Deputy Captain David Luthy resulting in the appointment of a liquidator; 2. In 2013, he was the subject of a disciplinary complaint made against him by Neil Byers (Exhibit D); in which he later alleged bias against Karen Hodges (an allegation that was rejected); 3. October 2014: The Brigade's response to a Council response to place a caravan park in Glossodia (Ex 3, 6-10), in which amongst other things, Acting Regional Manager Heffernan effectively reprimanded Mr Jay for constantly referring to impropriety and allegations against District and warning Mr Jay that this might be deemed to be 'bullying'. This email elicited Mr Jay's response in writing that the 'us and them' attitude (apparently directed to District staff) "must stop" and asserted that "Attempts to silence me or the President, while expedient for RFS is NOT in the best interests of my community or my brigade". Implied criticism was made of Ms Hodges for her "master servant manner"; 4. April - May 2016: this featured email exchanges on the timing of the next SMT meeting (Ex 3, pp 21-26). Mr Michael Scholz, Consultancy Coordinator of NSW Soil Conservation Office proposed dates to Mr Petrikas in June and Mr Petrikas indicated that he wanted the next Group South meeting to occur after the SMT meeting in June. Mr Jay conveyed his view that it was essential to have the next Group South meeting "BEFORE" the next SMT meeting since that was "the only way that the views of the Group can be represented at the SMT- to do otherwise is a cynical attempt to manipulate process and deny the Group a voice at the SMT"; 5. 19-25 May 2016: these emails concerned a suggested presentation from the Blaxland Ridge Captain, Scott Grinyer on 'pumpers' (Ex 3, pp 27-29). Mr Wedge asked whether there was interest in it. Mr Jay construed this as a "cynical attempt to stifle debate about an issue that is clearly important to those of us with substantial structural risk in our communities", although he did acknowledge an interest in hearing Mr Grinyer in a Group South meeting ahead of the SMT; 6. 15-18 July 2016: communications for the transfer of fire-fighting equipment from the old truck to the new truck and Mr Jay's suggestion that Western Freight Management perform the task (Ex 3, pp 39-41). Timothy Seary pointed out that prior written approval was required from RFS engineering before any modification could be undertaken on an RFS appliance. Mr Jay responded to this indication by writing that he was dissatisfied with the response and he copied in Ms Hodges and Ben Watson (Regional Manager); 7. Early August 2016: Arrangements to take the new Cat 1 to the weighbridge for weighing (Ex 3, pp 50-51); 8. 4-24 August 2016: an updated submission regarding electrical equipment (Ex 3, 52-53, 64-68); 9. July - August 2016: communications between Superintendent Mathew Smith (Regional Services Manager (Operations)) with Mr Jay on the general subject of 'On-going Hawkesbury issues' (Exhibit 5). This started with Mr Jay's email of 12 July in which he outlined Glossodia Brigade's 'expectations' regarding the timely notification of allocation of tankers to enable the Brigade to make recommendations for the fit out so as to meet the brigade's operational needs. Superintendent Smith indicated his agreement, whilst reminding Mr Jay that the process for him to do so was "via the chain of command (Executive/brigade Captain to Group Officer/SMT). The SMT is responsible for reviewing the whole area to ensure each of the brigades proposals/feedback is considered." 10. July-August 2016: request for audited and financial records for the Brigade (Ex 3, 54-61), featured Mr Jay's dealings with Ms Patricia Back, a District Administrative Officer, and Ms Hodge, in respect to whom he stated his resentment at her (implied) statement that accounts and other financial information did not truly reflect brigade finances and her "unreasonable continued harassment of the brigade", which he considered was tantamount to bullying; and which he demanded needed to stop immediately; 11. December 2016: notification that Mr Jay had not undertaken the medical examination necessary to undertake CABA duties (Ex 3, 71-73). In this, Mr Jay had communications with Susie Michaels, the District Officer Learning and Development. After Ms Michaels informed Mr Jay that he had not attended the Hawkesbury Family Practice, Mr Jay sent an email to her (copied to Ms Hodges, Mr Seary and Mr Peters) accusing her (and perhaps, indirectly, other recipients of the message) of playing a 'dangerous and stupid' game and, whilst acknowledging that she was just a messenger, he nevertheless warned her that if she wished to continue her 'adversarial and dictatorship style of management', she should be unsurprised that he would not find that acceptable. Ms Hodges responded to the last email, asking Mr Jay to refrain from abusive email messages and reminded him of the service's Code of Conduct. Mr Jay denied that he had used abusive language and stated his resentment at Ms Hodges' assertion that he had.
3. It was put to Mr Jay, but he denied, that this stream of email correspondence indicated that he had serious difficulty conducting civil relationships with staff, problems with managing his anger and with authority generally and had no insight into the impact of his behaviour on others. It was put to him, but he denied, that his behaviour at the meeting and demonstrated through the correspondence, indicated his tendency to bully volunteers and staff.

Re-examination

1. Mr Jay explained that he had not undertaken training in written communications and it was not suggested (for example by Ms Hodges) that he undertake any. He was referred to the proposition regarding his difficulty with authority and explained that he understood that District staff were there to assist Brigades (Brigades being established before the District). He was referred to some of the matters identified in what I would call collateral disputes with the District staff. The point of this evidence was to demonstrate that he had just cause to be frustrated at various issues affecting the Brigade. He explained the process as to how Brigade Group officers were appointed: although the Brigades had the opportunity to rank candidates, it was a District Manager who made the appointments. With reference to the communications with Mr Peters preceding the 20 July 2016 meeting, he said that he had known Mr Peters for a long time and, as at this date, formed the view that he was very reliable.

Suggested relevance of the email correspondence between Mr Jay and others

1. For their part, the plaintiffs submitted that ultimately the email correspondence was largely irrelevant since the representations complained of dealt with oral statements (at the meeting on 20 July 2016) or actual conduct; and not written statements. Mr Brennan SC emphasised that none of the representations suggested that Mr Jay adopted a bullying written style; and one instance where Superintendent Hodges complained about what he had done in writing did not result in any allegation. They also disputed the inference that the defendants drew from the abandonment of the case that false representations were made that the plaintiffs were bullies.
2. The plaintiffs did, however, submit that to the extent that the email correspondence passing between Mr Jay (in particular) and Ms Hodges in the years leading up to the 20 July meeting, and especially Ms Hodges' role in the disciplining of Mr Jay in an incident in 2013, was relevant to Ms Hodges' malice; as will be explored later in these reasons. They also submitted that on the issue of malice generally, this was only relevant to Ms Hodges position; there being no suggestion that any of the first, second, or third defendants knew of the history.
3. The defendants submitted, however, that the cumulative effect of the correspondence proved that Mr Jay was a bully. They noted that through the plaintiffs' closing written submissions (confirmed at final verbal argument) that the reliance upon an earlier pleaded representation, that Mr Jay (and also Mr Peters) was a bully had been abandoned. They argued that if the representation that Mr Jay and Mr Peters were bullies were true it would fundamentally support the statements and allegations not only made by the defendants but also those complainants who supplied the source material to them. That had a bearing on multiple issues going to malice, causation and credit.

Mr Jay

1. During the course of the cross-examination on these (and later other) topics, I formed adverse views as to the credibility and reliability of Mr Jay. There was a conspicuous contrast between his confident and detailed recollection of events and circumstances when he gave his evidence in chief and his regular 'I don't recall' answers to uncomfortable questions; which I took to be evasive. Although some minor concessions were made, on the whole, he refused to accept inferences and conclusions from this correspondence which to my mind were irresistible: that on the occasions indicated, he had engaged in conduct that could fairly be characterised as alternatively bullying, aggressive, abusive and intimidating towards staff officers, was disrespectful to other officers (Hodges) and even presumptuous to superiors (Heffernan and Watson) and his responses were, on the whole, entirely disproportionate to the relatively measured communications he had received from others. I regard, as disingenuous, the suggestion that because he did not receive training in written communications from the RFS, he had some disability in understanding what was appropriate in communications in the written form. He was a TAFE teacher for much of his working life and incidental to that was the capacity to communicate verbally and in writing. Besides, I would think that if a person cannot control themselves in written communications, it is less than obvious that they would be any more controlled in the more spontaneous setting of verbal communications. Indeed, for reasons to be developed further, the audio recording of Mr Jay's statements at the 20 July 2016 meeting indicated a striking similarity in incivility and offensiveness that marked his written communications in Exhibit 3.
2. The circumstance that he denied the inferences suggested to him by this correspondence lent force to the suggestion fairly put to him that he lacked insight (and I would add self-knowledge) as to the effect of his behaviour upon others whom he dealt with. It was not credible for him to deny that the correspondence indicated a man who had problems controlling his anger when he did not get his own way. In so saying, I am not suggesting that in these communications he did not have the best interests of the Glossodia Brigade at heart. To the contrary, it appears that he had the loyal support from a number of people in his Brigade for what they perceived as his effectiveness in standing up for his Brigade to the District and SMT and in advocating for his Brigade's interest. I formed the firm impression that he was entrenched in his position about the propriety of his conduct towards Hawkesbury District staff officers and dealings with Ms Hodges and Mr Petrikas in this correspondence; blinding him to the discourtesy and often aggressive or abrasive manner of his dealings.
3. Towards the end of his cross-examination, Mr Jay resorted to making speeches about his personality and the sincerity of his efforts to work for the interests of the Brigade which did not impress me. They were not responsive to questions raised of him. I discerned that he did so to further his cause and was self-consciously done in an attempt to garner sympathy; probably reflecting a consciousness that the revelation in Court of the written record of the litany of his disputes with District staff members over the years reflected badly on him. He was justified, at least, in thinking that way: no matter what the cause, his dealings did reflect badly upon him and justified the defendants' description of him as being a person with an anger management problem who dealt with others in the District and fellow officers with incivility and rudeness.
4. I am unable to place confidence in what Mr Jay said unless independently corroborated or consistent with the objective probabilities.

Mr Peters

1. Making full allowance for the considerable passage of time, I did not perceive Mr Peters as having a strong grasp of the material events. He was rather engaged in reconstruction tilted towards his self-interest. I formed, however, a strong impression that he had an ingrained animosity against District staff, the defendants and SMT representatives Messrs Rutter and Earle, for actual or perceived failings in connection with his Brigade which actuated him to such extent that he felt that he was justified in taking such steps as he thought necessary to remove what he regarded as their baleful influence upon Brigade affairs. This led him to adopt a casually ruthless indifference to notions of fairness and decency when it came to Messrs Rutter and Earle and his attempt to have them removed at the critical meeting on 20 July 2016. It led him, in particular, to give implausible answers to questions regarding his motives for why he acted as he did in the lead up to that meeting. I found his evidence about the circumstances as to how Mr Eather came to receive a draft of the version of the letter to Mr Petrikas to be thoroughly implausible, in a way that was to his discredit. I further found that he had no reasonable basis for much of what we wrote about Messrs Rutter and Earle in the explanatory letter accompanying the motions which was also to his significant discredit. As with Mr Jay, these criticisms are not to be taken as suggesting that Mr Peters was not sincerely concerned with the welfare of volunteers in the Glossodia Brigade.

Mr McKillop

1. A significant question in relation to the First and Second Publications was what Mr Don McKillop reported to Mr Peters after the former attended at least two meetings which Mr Peters had been unable to attend. This was significant since Mr Peters submitted that it influenced his views about Mr Rutter which, in turn, led to his decision to bring a no confidence motion about the latter. There was sharply conflicting evidence about their recollections about what Mr McKillop reported.
2. Mr McKillop's evidence was brief. He was barely cross-examined. I formed the firm view that Mr McKillop tried to act as something of a broker between Glossodia and Wilberforce Brigades and Group South in the middle of 2016, which was commendable in intent, if not somewhat naïve. At any rate, his conduct was disinterested. Mr Peters' recollections on the other hand, were entirely self-serving and I find that, in the absence of a documentary record detailing Mr Peters' criticisms of Mr Rutter and Mr Earle, he had a strong motive to fabricate false verbal reports about what Mr Rutter and Mr Earle had done and not done to justify his attempt to remove them. In a contest between Mr Peters and Mr McKillop on verbal reports of meetings and Mr Rutter, in particular, I much prefer the evidence of Mr McKillop.

Mr Crick

1. I had reservations about the credibility and reliability of Mr Crick's evidence. This arose from a subtle shift in his evidence in chief, which was to the unqualified effect that Mr Jay acted calmly and in a normal voice, to the qualification given under cross-examination that Mr Jay had raised his voice beyond his normal voice, when required to do so in the circumstances.
2. Another reservation is that Mr Crick is obviously a loyal supporter of Mr Jay. This was apparent, among places, from the content of the Brigade Minutes of 17 August 2016. [33] It would be no surprise if Mr Crick was sympathetic to Mr Jay given that he, like Mr Jay and Mr Peters, had been effectively lumped with both of them with complaints of 'ongoing' bullying and harassment culminating in his participation in a workshop in February 2016 [34] .
3. I have an inherent doubt about the veracity of a witness' recollection about the softness or otherwise of another person's voice at a meeting given over 6 years after the event. There is no indication that this meeting was especially significant to Mr Crick, relative to other meetings. If the real position was that he had only listened to the audio recording recently then notwithstanding that I only heard selective parts of it, I am at no material disadvantage in forming my own view as to whether, and to what extent, Mr Jay raised his voice.

Mr Eather

1. I did not find Mr Eather's evidence about the circumstances in which he received a letter from Mr Peters to be credible. This was exposed under cross-examination. I formed the impression that Mr Eather was trying to assist Mr Jay and Mr Peters and was not an independent witness.

Submissions

1. The plaintiffs' written closing submissions allocated the representations into groups. The defendants did not descend to respond to each and every one of what they counted were the 45 pleaded representations. They broadly submitted the plaintiffs had not established that at least a majority were false. The evidence, they said, comfortably indicated that many were true.
2. One significant point of departure in the parties' submissions was evaluation of the concept of 'bullying'. The plaintiffs argued that in a context where that conduct was said to amount to a contravention of a Service Standard or Code of Conduct, the term had to be understood in the light of definitions ascribed to words like bullying. The defendants appeared to suggest that the words might be construed in accordance with their ordinary and plain meaning. I prefer the plaintiffs' submissions on this issue. That is because what was conveyed by the representations had to be understood by reasonable persons in the position of the recipients (or publishees) and the meaning such persons would ascribe to them. These were Ms Hodges (for the First Publication) and Mr Watson (for the Second and Third Publications). The meaning they both would ascribe was affected by their knowledge and understanding of the expressions for 'bullying' defined in Service Standards and Code of Conduct; not their understanding of the concept at large.
3. The defendants separately submitted that the representations had to be viewed contextually, in the light of what had gone before. Thus, the charge sheets for the First Publication were referable to 10 written letters or complaints about the plaintiffs' asserted bullying conduct that had gone back in time and were not limited simply to what occurred at the 20 July 2016 meeting. The defendants also submitted that the Court had to consider the substance of the representation conveyed. If there were, in certain instances minor or indeed trivial misstatements but the plaintiff could nonetheless not prove the substantial falsity of the representations, the plaintiffs would fail in their actions. That would be for multiple reasons: it was unlikely that a substantially true representation could be malicious and even it was not, substantially true representations could not be said to cause financial loss.
4. In oral submissions in reply, Mr Brennan SC submitted that on the question of falsity, the position was simple and binary: either the representation was true or it was false. Nevertheless, he did accept that (putting to one side the issue of malice) if there were aspects of an allegation which were partly true and those which were partly false, his clients would carry the onus of having to prove that the natural and probable consequence would have been different, and that Commissioner Heffernan would not have determined to conduct an investigation. In this way, there was an important aspect of materiality to the falsity of any representation so found.

General

1. Three general observations I make before addressing the issue about the falsity of the representations are as follows.
2. First, I consider that the word 'false' presents a generally binary choice between a matter that is objectively wrong or right.
3. Secondly, not only do the plaintiffs carry the onus of proof, but where, as sometimes has occurred representations are compound, the onus falls upon the plaintiffs to establish that the overall meaning conveyed by the representation is wrong. However, what the overall meaning might actually be is sometimes problematic. Thus, if the representation is a conclusion based upon only a single minor premise, if it is established that the single minor premise is wrong, then it may be said that the opinion is wrong. However, if a conclusion is based upon multiple premises, it does not logically follow that the conclusion is wrong if only a single premise is wrong, if other minor premises are right.
4. Thirdly, the binary choice may be workable enough when dealing with a matter of fact, but it presents more difficulties when the matter is one of opinion. Many of the representations are, in substance, opinions, rather than statements of objective fact. For example, a statement that a Service Standard 'has' been breached is a statement of opinion.
5. In Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 88, the Full Federal Court said: "An expression of opinion which is identifiable as such conveys no more than that the opinion expressed is held and perhaps that there is a basis for the opinion. At least if those conditions are met, an expression of opinion, however erroneous, misrepresents nothing"
6. The learned authors of Gatley on Libel and Slander [35] referred (at [22-010]) to a decision of Tugendhat J in Euromoney Institutional Investor Plc v Aviation News Ltd [36] as accepting that a statement of opinion could not be complained of as a falsehood, although they observed that in that particular case the opinion could not be verifiable.
7. A complication arises, however, if the opinion is be wrapped up in a statement of fact if, for example, reasons that are false are expressly uttered, in the way referred to just a moment ago.
8. In ASIC v Fortescue Metals Group Ltd (2011) 274 ALR 731, Keane CJ (with whom Emmett J and Finkelstein J agreed) cited the following passage from Spencer-Bower's Actionable Misrepresentation (4th ed, 2000, Butterworths London): "[28] 'It is often fallaciously assumed', said Bowen LJ, 'that the statement of an opinion cannot involve the statement of fact'. As with statements of intention, a statement of opinion, belief, information, or other condition of mind, whether of the representor, or of a third person, does involve at least one statement of fact, viz that the representor or other person entertained the opinion or belief, or possess the information, at the date of the representation. It is not, however, a statement of fact as to the subject matter if it purports to be no more than a statement of opinion, belief, or information. On the other hand, if a person chooses to express in a statement of fact what he merely believes as opinion, or information, that statement will be representation. So a statement which could be expressed as one of opinion, belief, or information may be expressed as a statement of fact."
9. This decision of the Full Federal Court was reversed on appeal by the High Court, but not because the above statement of principle was erroneous.
10. Fourthly, as with most words in the English language, true meaning cannot be divorced from context. Some representations call for evaluative assessment which can only be made from an understanding of context as to its correctness. When that occurs, the evaluative assessment is undertaken by reference to the position of the recipient of the publication. But recognising in part, the impracticability of requiring the recipient to give evidence to account for their subjective responses, the law typically uses the construct of the recipient's objective response. So, the Court determines how the reasonable recipient in the position and circumstances, and with the knowledge of the recipient, would evaluate the representation. In the present case, that may include the recipients' understanding of processes of investigations and disciplinary actions in the Service Standards and the recipient's likely expectations of what members who make or pass on complaints about breach of discipline are trying to achieve.
11. Fifthly, related to the last point, only few words in the English language carry only a single meaning.
12. To return to something I indicated earlier, one important contextual matter - a layperson's understanding of whether activity amounts to 'bullying' - may not necessarily coincide with the understanding of a member or officer of the RFS who is trained, or at least expected to be aware, of how that concept is explained and defined in Service Standards in a way that has direct bearing on whether the member or officer may be subject to service discipline. Similarly, the understanding of an RFS member as to the meaning of whether something is 'libellous' is not automatically transposed to the understanding of a defamation lawyer.
13. I will now address the representations that I have found were conveyed by the First and Second Publications.

Findings on Falsity for the First and Second Publications

Graeme Jay bullied and intimidated members of the RFS who attended a meeting on 20 July 2016 by raising his voice in an aggressive manner even after he was told not to

Graeme Jay, by his conduct of meeting on 20 July 2016, had breached RFS Service Standard 1.1.42, sections 3.10-3.15 and the Code of Conduct section 4.6

Graeme Jay was deliberately disruptive of a meeting of the RFS on 20 July 2016 because he ignored demands to speak in a calm manner (G.1.a & G.1.b)

The plaintiffs' submissions

1. As to the first of the representations in this group, the plaintiff submitted that these were false. Although there were occasions when Mr Jay spoke in an elevated voice, this was for the purpose of being heard, and was not done aggressively. This submission is supported by the audio sound recording and the uncontradicted evidence of both Mr Jay and Mr Crick.

Consideration

1. I find, on the probabilities, that at the South Sector meeting on 20 July, it was false to represent that Mr Jay had bullied or intimidated other attendees by raising his voice in an aggressive manner. The representation conveyed by paragraphs 1 and 2 of Attachment 2 to the First Publication was relevantly specific: what occurred at the meeting on 20 July. I have the benefit of the sound recording and extracted parts of the recording that all parties had the opportunity to play to the Court; along with the transcript. There were moments when during the meeting, I accept that he raised his voice on the issues identified by the defendants, but I did not regard that as being 'aggressive' or unreasonable. To say that someone is 'aggressive' is an opinion, but no one was called on behalf of the defendants to say how, other than the volume of the noise, Mr Jay was 'aggressive' and one person's perception of 'aggression' may be another person's perception of reasonable 'assertion'. I am inclined to think that in this particular context, at least, Mr Jay was stating his position on various issues forthrightly. He was not alone (even if he may have been in a minority) in stating the particular positions he expressed, but it was not aggressive for him to do so and I do not consider that other attendees were naturally precious so as to feel inhibited in expressing their own opinion on any particular matter. Other members also ventured their opinions forthrightly. There was no indication, at least in the passages of the audio recording that the Court was taken to, that Mr Jay's conduct resulted in silencing the views of others, or attempting to force his views upon others and no one was called to say that this was the effect of what he had done. He did not shout or scream (one of the specific illustrations of bullying in Service Standard 1.1.42 paragraph 3.13). In other words, if in unexplained terms, others felt bullied or intimidated, it was not because Mr Jay raised his voice in an aggressive manner.
2. The second representation in this group was, according to Attachment 2 to the First Publication, a rolled up allegation of bullying based on certain matters. I have already rejected as false what is described in paragraphs 1 and 2 to that attachment. That leaves, however, the question whether the allegation of bullying in Attachment 2 satisfied the concept in Service Standard 1.1.42 paragraphs 3.10-3.15 on the basis of balance of: 1. the third dot point to paragraph 2 (Mr Peters' motion); and 2. paragraph 3 (prior behaviour at South Sector meetings).
3. However, paragraph 3 in Attachment 2 is conduct that is not referable to what occurred on 20 July 2016, which is what is in issue. As to the third dot point to paragraph 2 of Attachment 2, this does relate to conduct that occurred on 20 July 2016.
4. I consider that it was not false to represent that it was a form of bullying for Mr Jay to be implicated in Mr Peters' motion against elected SMT representatives (Messrs Rutter and Earle) and containing libellous statements. I find that Mr Jay was implicated and indeed knew of the substance of Mr Peters 'letter' or email and also was involved in a scheme with Mr Peters to ambush Messrs Rutter and Earle (and also Mr Petrikas) without giving Messrs Rutter and Earle notice. That at least involved unreasonably heaping humiliation upon Messrs Rutter and Earle through criticisms and potentially might have caused risk to their health. That, prima facie, satisfied the notion of bullying in Section 3.13(b), (e) and (g) of Service Standard 1.1.42. I do not interpret the reference to 'libellous' character as amounting to an implied assertion that under the common law of libel, a cause of action necessarily arose. The document containing that reference was meant for the attention of Ms Hodges: it was not an expression of legal opinion, a pleading or a submission to the Court that an action in libel would lie (or that a defence in law may not be potentially utilised by the plaintiffs). It was enough that the reference to libellous conveyed the essential notion identified by the defendants' in their submission (referring to Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at 466) and I agree with the defendants. It should be apparent from this that I find that the reference to Mr Rutter 'misrepresenting' the South Group and Mr Earle having a 'conflict of interest', without any prior indication to them of such complaints, fulfilled this criteria. Accordingly the second representation in this group is found not to be false.
5. As to the third representation, in this group, is another example of a statement of opinion conjoined with a statement of a reason for the opinion. As I listen through the audio recording with the transcript, it was not in my view, false to say that Mr Jay was "disruptive". In the extracts of the meeting replayed, he is continuing to press and implicitly demand his entitlement to have items on his agenda discussed over the opposition of the chairperson (Mr Petrikas) and possibly others; without reference to the chairperson's clear wish to proceed, or the wishes or attitude of the meeting generally. This was well described, for example, in the letter prepared by persons from the Tennyson Brigade on 15 July.
6. The difficulty I have is the attribution of cause and effect, or opinion for the sole reason that is articulated. An added difficulty is ascribing a statement of mind to Mr Jay: that if he was disruptive, he was deliberately so. Arguably, Mr Jay's disruptiveness was natural.
7. Be that as it may, I do not regard it as obvious that Mr Jay was deliberately disruptive because he did not proceed in a calm manner. That is too vague and too broad a conclusion. There were certain instances where Mr Jay was not calm and he did get agitated, especially when he was displeased about what he perceived as Mr Petrikas' attempt to limit conversation about boundary changes and also conversation centred upon Mr Pullen taking the chair and discussion about the motions. Nevertheless on those instances, I do not accept that by reason of losing his calm or composure, Mr Jay was being deliberately disruptive. This representation is false.

Graeme Jay lied to the persons present at the South Sector meeting on 20 July 2016 when he told them that he had no idea of the content of the letter from John Peters because he was in fact the one who had given a letter to Charles Eather so that it would be tabled at the meeting (G.1.c)

Plaintiffs' submissions

1. The plaintiffs submitted that this representation was false. Mr Jay denied making the alleged statement in cross-examination. The audio sound recording did not record Mr Jay saying words to the effect that he had no idea of the content of the letter and no other witness said that they heard him mutter such words. No witness was called by the defendants to say that he did. If he did, in all probability, the statement would have been recorded.
2. Without proof that Mr Jay said the statement ascribed to him, the plaintiffs submitted that the allegation that he had breached the Values part of the Code of Conduct had no content, so the whole charge failed.
3. The plaintiffs submitted, in reply to the defendants' submission that Mr Jay had conveyed the 'impression' that he knew about the letter's content, that the defendants had not proven this matter either. The closest that Mr Jay came to saying something was that it "did not matter what we knew", which amounted to an assertion of irrelevance about his state of mind. At any rate, the allegation was that he used the words alleged; not the impression that he conveyed by his conduct.
4. Mr Jay did not give the letter to Mr Eather. There was no evidence that he had. It was not suggested that he emailed it to Mr Eather. The evidence, at its highest, was that he had the opportunity to do so. Mr Peters said that he gave the letter before he departed for his trip to Orange. Mr Eather corroborated that he was given a letter by Mr Peters; not Mr Jay. Mr Jay said that he had only limited contact with Mr Eather to exchange a greeting.
5. The plaintiff submitted that whatever knowledge Mr Jay acquired through perusal of drafts from Mr Peters does not go anywhere without proof of the statement.
6. Further, the letter was not produced by Mr Petrikas and Mr Petrikas did not give evidence notwithstanding that he would likely have appreciated that an issue pertinent to his complaint would have been how he came to misplace or lose it.

Defendants' submissions

1. The defendants accepted that the audio recording did not record Mr Jay explicitly telling attendees that he had no idea of the content of Mr Peters letter, but they contended that this was not conclusive. The defendants referred to Mr Jay's verifying affidavit of 11 November 2020 (Exhibit 6) in which he had verified an assertion (in particular (iii) to paragraph 5 of the amended pleading) that ".. he said he did not know about the contents of the letter to be tabled by John Peters" (emphasis supplied). Although Mr Jay subsequently shifted from that evidence in his evidence in Court, nonetheless, he still did not dismiss the possibility that he had said to someone that he had not read it [37] . Further, this was an assertion consistently recorded in the written letters in complaints sent by some attendees (Messrs Rutter, Pullen and Earle) to the first, second and third defendants after the meeting. (Messrs Wedge and Petrikas also referred to the statement in their witnesses statement to Mr Plumridge). There was also a gap in the recording of the meeting, so it could not be said that audio recording was an infallible record of all that was said. The statement was consistent with the scheme for deployment of the letter. If the Court was not persuaded that Mr Jay did not make the statement, equally, the Court could not find on the probabilities that it was false to make the representation that he had.
2. On the question of the 'deployment' of Mr Peters' letter, there was nothing in the suggested distinction raised by the plaintiffs about Mr Eather's possession of a letter or an email. Following the sequence of the preparation of the third and final of the draft versions of the email eventually sent to Mr Petrikas inevitably indicated that Mr Peters could not have sent that version to Mr Eather, by hand, as he said he did. The Court would have to find, on Mr Peters' version, that Mr Eather had the final version of the email on the Saturday before the meeting, only for there to be alternative versions developed in the following days. The only other candidate for giving it to Mr Eather was Mr Jay.
3. At any rate, the defendants argued that the substance or gravamen of the allegation was that Mr Jay dishonestly conveyed, or perhaps feigned ignorance about the substantive content of the letter and if the representation, as expressed, was false in a particular, it was of no moment: it could not give rise to any claim for damages and could not sustain the element of malice.

Consideration

1. This is another example of a compound representation. For the reasons substantially advanced by the defendants I am not persuaded, on the probabilities, that Mr Jay did not make the statement attributed to him. In this regard the verified statement he made in his affidavit combined with his acceptance when he gave evidence of the possibility that during the meeting he did say something along the lines represented was very significant. Although the statement could not be heard on the audio recording that was Exhibit A, that was not conclusive. I have already indicated that the audio recording was not infallible. Further, there were, as was pointed out, a break or breaks in the recording where there was opportunity for Mr Jay to make the statement he did. In this respect, even when he was seated at the meeting, it was quite possible that if he lowered his voice, he might do so in a way that avoided detection by the appliance.
2. The second aspect of the representation was Mr Eather's receipt of the Peters letter. I agree that in view of the evolving content of the document, the evidence of both Mr Peters and Mr Eather was so unsatisfactory and unreliable that this did not furnish convincing disproof of this part of the allegation. Further, I agree with the defendants that Mr Jay was the 'natural candidate' to have provided Mr Eather with the document. He and Peters were the authors of the 'scheme'. In Peters' absence, he had the motive for having it read out: he wanted to ensure that the letter was read out where there was some doubt about Mr Petrikas checking his recent emails. Mr Jay and Mr Peters apprehended that there might be some doubt about this in view of the shortness of time between the deliberately timed delivery of Mr Peters' final version of the email to Mr Petrikas relative to the starting time for the meeting. I agree with the defendants that Jay's giving the letter to Eather was consistent with his desire to create apparent distance between himself and the document. He knew that the letter in Mr Pullen's hands was 'addressed to Chris'. I am not persuaded that it was false to say that Mr Jay lied for the reason represented.

Plaintiffs' submissions

1. The plaintiff submitted that the only foundation for this representation was that Mr Jay lied to the persons present at the meeting. Once that is rejected, as the plaintiffs suggested it should be, the falsity of this representation is established.

Defendants' submissions

1. The defendants submitted that Mr Jay's dishonesty was revealed by his deployment of the letter to Mr Peters and his less than frank evidence in Court. It was dishonest to hold back the letter and scheme with Mr Peters to deploy it at the meeting without notice.

Consideration

1. It follows from my consideration of the last representation that I also conclude that this representation was not false.
2. I refer here to Attachment 4 to the First Publication. Most of the statements of fact have already been addressed. I previously determined that paragraph 1 of Attachment 4 was not false. I consider that paragraphs 2 and 3 are not only not false, but represent a fair and reasonable characterisation of what occurred at the meeting. As to paragraph 4, although the plaintiffs called Mr Eather for the purpose of disproving the correctness of what is contained in the reference to what Mr Pullen said about him (being Attachment F to the First Publication), as indicated, I did not regard Mr Eather's evidence on this issue to be reliable or credible. Accordingly the plaintiffs have not proven the falsity of that paragraph either.
3. I do not accept the plaintiffs' submissions that all that Messrs Jay and Peters were doing was the deployment of tactics in the legitimate exercise of democratic rights at an election with a view to removing two representatives. In the Commissioner's 'Message' at the front of the Code of Conduct and Ethics [38] , the Commissioner wrote: "… The vital work of our Membership requires that all of us act in the community's interest - as we perform our duties, make decisions, exercise delegated authority or interact with other NSW RFS and community members. It requires all of us to demonstrate standards of behaviour and conduct that promotes and maintains community confidence and trust in the work of the NSW RFS and the professionalism of our members. The NSW RFS Code of Conduct and Ethics (the Code of Conduct) and organisational values provides clear expectations of the standards of ethical and professional conduct that are required of all NSW RFS members, contractors and consultants engaged by the Service. This document provides us with an ethical framework to guide our actions and decisions. It also provides consistency in determining what is and what isn't acceptable behaviour, while helping us to build a safer, more supportive and productive place to work.."
4. In Service Standard 1.1.7 Code of Conduct and Ethics paragraph 2.9 [39] it is said that: "The NSW RFS Values and standards outlined in the Code of Conduct must be demonstrated and maintained by all NSW RFS members, contractors and consultants at all times; whenever and wherever it is relevant to the work, responsibilities, functions and activities of the NSW RFS."
5. The plaintiffs might say that this is all well and good but the community would be disinterested in the internal affairs of elections for office and governance within RFS units. But in my view, where unethical, dishonourable or indecent conduct arises within units of the RFS, this is apt to sow distrust within members and in such a way potentially prejudice the vital operations of work. The trust and confidence in personal interactions between fire-fighters, which is so important to the effective operations of volunteer fire-fighting, is not simply turned on and off, like a tap, according to the circumstances. Ironically, that itself was illustrated by Mr Jay and Mr Peters in their not wanting to have anything to do with Mr Naethuys because of the latter's improper (to use a neutral word) personal conduct and an appreciation of how that reflected upon the functioning of the Brigade.
6. Further contrary to Mr Jay's submissions, all of the paragraphs in Attachment 4, read together, fairly point to an allegation of a breach of the Code of Conduct and the section in that code relating to 'Integrity and Trust'. Mr Jay failed to communicate clearly what he expected from each other. He tried to create the impression that he was not a party, or privy to Mr Peters' motions when he was plainly an accomplice. He did not show that he was respectful and open, certainly not to Mr Rutter and Mr Earle. His underhand behaviour did not foster a climate of trust and reliability. He did not promote open or encourage informed decision making by taking steps to deprive Mr Rutter and Mr Earle reasonable opportunity to consider and respond to the criticisms made of them in Mr Peters' email. Mr Jay connived with Mr Peters to engage in an effective political hit job against Mr Rutter and Mr Earle.

Graeme Jay insisted that the letter that he knew to be libellous of Andrew Rutter and Bruce Earle be read at the meeting of the RFS on 20 July 2016 (G.1.f)

Plaintiffs' submissions

1. The plaintiffs' submitted that whatever Mr Jay did in this regard, the letter was not actually libellous of Mr Rutter. It was true! The letter itself was not in evidence. It was last in Mr Pullen's hands, although the last email from Mr Peters to Mr Petrikas was expressed in similar terms to the letter.
2. As to what the letter said about Mr Rutter, at SMT meetings on 23 September 2015 and 6 June 2016, Mr Rutter had opposed proposals that reflected Glossodia Brigade's concerns, being to change its fleet configuration (to include an urban tanker). At the former meeting, he did not report on 5 items discussed at the meeting. At the latter meeting, he spoke against Glossodia's interests regarding the 10-year Tanker and Station programme; excluding urban pumpers for Glossodia. At the South Group meeting on 20 July, Mr Rutter himself referred to limitations in his role in representing the Glossodia Brigade: he required written notes of concerns. That was not much help to the Brigade in circumstances where Mr Jay and Mr Peters did not express their concerns to him in writing.
3. Accordingly, the plaintiffs' submitted what Mr Peters wrote about Mr Rutter, essentially that he 'misrepresented' the Brigade at the SMT was a valid criticism. There were failures of representation. Whether or not he was representing Oakville Brigade was not to the point, but the plaintiffs argued that in the circumstance that there were only three V2 brigades (constituted by Glossodia and Oakville Brigades) the criticism was also fair.
4. In relation to Mr Earle, the statement that he had disclosed a circumstance giving rise to a conflict of interest was not capable of being libellous. First, it was true representing that what Mr Earle had reported at the March 2016 Group South meeting. Second, even the assertion of a conflict of interest is not libellous per se. Indeed the motion against Mr Earle commended him for his time and effort.

Defendants' submissions

1. The defendants submitted that the representation that Mr Jay knew that the letter was libellous was true. It was wrong for the plaintiffs to submit that Mr Rutter opposed the proposals advanced by Glossodia and Wilberforce Brigades. There was actually no single minuted specification of what Mr Rutter had opposed. The most that could be said was that Mr Rutter did not always vote for both brigades.
2. They argued that the concepts of 'conflict of interest' and 'no confidence' were libellous, in a sense that both Messrs Jay and Peters understood.

Consideration

1. I consider that I have sufficiently addressed this, and found that Mr Jay did insist that Mr Peters' letter be read out. As I have indicated, it is unnecessary to resolve whether Mr Jay or Mr Peters might have had a defence of justification (or contextual truth) to defeat a defamation claim in this context. I agree with the defendants that Mr Jay's evidence, to the effect that it was not derogatory (even though he admitted it was harsh), was disingenuous as was his nebulous distinction drawn between the libellous quality of the statement only arising if the statements were 'deliberately falsely' made. It is not to the point, and he did not say that, effectively as a 'bush lawyer', he believed that Mr Peters would have had a good defence to a claim of libel based on the content of the letter.
2. This representation has not been proven to be false.

Graeme Jay breached Service Standard 1.1.17 Code of Conduct and Ethics (G.1.h)

Plaintiffs' submissions

1. The plaintiffs simply repeat their submissions in relation to G.1.a, c & d.

Defendants' submissions

1. The defendants submitted that both Mr Jay and Mr Peters contravened this standard by reason of their calculated scheme to compose and approve motions raising serious and unfounded allegations against Messrs Rutter and Earle which were designed to be and were deployed, without notice, at the meeting for the sole purpose of undermining their fitness to represent the South Group on the SMT immediately before the election on 20 July. This amounted to an underhand exercise in coercion [40] .

Consideration

1. In their written submissions, the plaintiffs treated this representation as amounting to the consequence of the Court's acceptance of a combination of the representations, being that Mr Jay: 1. bullied and intimidated members by raising his voice; 2. lied when he told them he had no idea of the content of the Peters letter when he had given it to Mr Eather; and 3. is dishonest.
2. I have rejected as false the first of these representations but have found that the Mr Jay has failed to establish the falsity of the other two. As indicated in my earlier general observations on this issue, the circumstance that one particular of a compound representation is not established does not establish that the representation in its entirety is false.
3. I confess to finding obscure the reference in the plaintiffs' written submissions to Service Standard 1.1.17 Code of Conduct and Ethics. The Service Standard 1.1.17 Code of Conduct appeared in evidence at Exhibit B, pp 252-254. The Code of Conduct itself appears at pp 255-274. There is an absence of particularity in the pleaded representation as to what provision in the Code of Conduct was infringed. However, in Attachment 2 to the First Publication, it appeared that the relevant provision was Section 4.6, which is a reference to a 'Respectful and Inclusive Workplace'. In my view, notwithstanding that one of the representations said to establish such breach has been found to be false, it remains open to the Court to make a finding whether the allegation that section 4.6 has been breached on the basis of the second and third representations. In light of my findings about those representations, I do not accept that the composite representation of breach of cl 4.6 is proven to be false.

John Peters libelled Andrew Rutter and Bruce Earle in a narrative he provided support to motions at the meeting of the RFS on 20 July 2016 (G2.a)

The plaintiffs' submissions

1. The plaintiffs rely here upon the matters previously outlined in G.1.f.

Consideration

1. I refer to Attachment 3 to the First Publication. As previously explained the word libellous in the context in which it was written (and more notably understood by the recipient) was not intended to convey a legal opinion that an action in libel would succeed. It fell to be construed in the ordinary sense of the word libellous, as referred to by the High Court in Radio 2UE.
2. I do not accept that this representation was false.

Peters falsely accused Andrew Rutter and Bruce Earle of being unfit to represent South Sector as SMT representatives (G.2.b)

The plaintiffs' submissions

1. The plaintiffs cite the text of the motions and the supporting narrative which was unambiguous. The actual text and the motions did not allege that Mr Rutter or Mr Earle were unfit to represent Group South. Although criticism was levelled at Mr Rutter, this had nothing to do with his character. As for Mr Earle, he was actually praised for his work.

Consideration

1. I have also previously touched on this matter. 'Unfitness' carries a range of permutations. This can extend beyond a failing of character of a person and, in my opinion, is sufficiently broad to include the notion of inability to discharge the responsibilities of a position or unsuitability [41] . It is the latter permutation, or connotation of 'unfitness' that the matters raised by Mr Peters against Mr Rutter and Mr Earle are most apt to apply, although in my view, even if the notion of unfitness was more limited than I find it to be, it was not false to represent that the matters respectively raised against Mr Rutter and Mr Earle from the perspective of a reasonable person in the position of the recipient Ms Hodges (as distinct from a lawyer). This representation has not been shown to be false.

John Peters has breached RFS standards 1.1.42, sections 3.13(e) and section 3.13(l) and the Code of Conduct section 4.6 (G.2.c)

The plaintiffs' submissions

1. The plaintiffs essentially repeated what they submitted in G.1.f. Mr Peters had a valid basis for criticising Mr Rutter's performance in his role as the Group South representative for the SMT. Such criticism could not be categorised as unjustified criticism or misinformation. There was no criticism of Mr Earle at all. Further, providing the letter, even if its content was proven unjustified, would not satisfy the definition of 'bullying' since it was not unreasonable and did not create a risk to health and safety.

Consideration

1. Service Standard 1.1.42 is titled 'Respectful and Inclusive Workplace'. Sections 3.13(e) and (l) are specific illustrations of bullying. Section 4.6 of the Code of Conduct is titled 'Respectful and Inclusive Workplace'. A common denominator is that both documents (through the relevant provisions), proscribe bullying (although that is far from the limit of Section 4.6 of the Code).
2. These references are contained in Attachment 3 to the First Publication. I have sufficiently indicated already that in my view, it is not only the case that the plaintiffs have failed to demonstrate the falsity of paragraphs 1 - 4 (incl), but, indeed, I find that the statements in the paragraphs were true.

John Peters has breached Service Standard 1.1.17 Code of Conduct and Ethics (G.2.e)

The plaintiffs' submissions

1. The plaintiffs repeat their submissions from section G.1.e.

Consideration

1. This is the last statement made in the Briefing Note by Ms Hodges to Mr Watson on 5 September 2016 (Attachment A (AA) to the Second Publication). The attachments to this Briefing Note included Attachment 3 (AA) which was touched upon earlier.
2. The context indicates that this was one of multiple Briefing notes she had authored for Mr Watson with a view to proposing that he institute an investigation or disciplinary action against the plaintiffs.
3. This is one instance where the construction of the representation in issue is important. As I have indicated elsewhere, what the representation means has to be understood in accordance with someone in the reasonable position of the recipient, Mr Watson. That reasonable person would read it with reference to the balance of the briefing note. That reasonable person would observe that in the heading of the briefing note there is a reference to "Allegations" about the plaintiffs. If that was not already clear, then under the section 'Issue', Ms Hodges wrote about Fifteen RFS Volunteers having alleged displays of aggression, intimidatory behaviour and bullying behaviour. Further reference is made under the heading 'Background' to some recent history (February 2016) at which reference was made, in effect, to promises being given by Messrs Jay and Peters that they intended to work harmoniously with others.
4. The plaintiffs did not complain about the first sentence under the heading 'Current Situation', which posits a contrast between promises of harmonious behaviour with complaints of 15 RFS volunteers against the plaintiffs.
5. With the last two sentences, Ms Hodges would reasonably have been understood by Mr Watson to be trying to give him a 'briefing' about a not insignificant number of written complaints and allegations brought to her attention by complainants and also the first, second and third defendants (in the latter case, the emails to and from Mr Wedge and the letter of all three defendants, dated 25 August 2016). When she made the last of the statements, a reasonable person in the position of Watson, understanding of the context in which Ms Hodges was sending Mr Watson this note, could not but have failed to understand that she was not representing any lawyer's opinion that Service Standard 1.1.17 Code of Conduct was breached, but, instead, that on the qualified basis of what was contained in Attachments A to K (to the Second Publication), whose contents she had read, it appeared to her that the Standard had been breached. No reasonable reader would have interpreted the last sentence to convey that Ms Hodges had carried out her own investigation and could therefore be in a position to judge whether Service Standard 1.1.17 had been breached by Mr Peters. This was manifest by the initial briefing note of the same day [42] in which she recommended an independent investigation being undertaken.
6. I am not satisfied that this representation was false.

FALSITY OF REPRESENTATIONS IN THE THIRD PUBLICATION (AS FOUND)

Jay bullied and threatened Daniel Naethuys, a member of the Glossodia Brigade (G.3.a)

The plaintiffs' submissions

1. This representation concerned the minutes of 17 August 2016. The plaintiffs' submitted that The Minutes were accurate and reasonable and did not create any risk to health or safety, even if they upset Mr Naethuys.

The defendants' submissions

1. The defendants did not address these representations in their written or oral submissions.

Consideration

1. The plaintiffs' relied upon Attachment 3 to the Third Publication titled 'Bullying'. This Attachment, I have found, was created by Mr Wedge, but Ms Hodges republished it when she forwarded it (with other documents) in her Briefing Note to Mr Watson. This Attachment comprises two 'statements of fact' pointing to bullying.
2. I find that the statement in paragraph 1 of Attachment 3 was correct. The correctness of this statement was not really disputed by the plaintiffs. Their point was that, taken in isolation, the statement could not itself constitute bullying within the meaning of the applicable Service Standard.
3. The second part of Attachment 3 contains a bare reference, or comparison, between what the 17 August Brigade Minutes showed, and the circumstance (as Mr Wedge understood to be the position) that Mr Naethuys had never resigned.
4. In my view, there was ambiguity in the expression "left the Brigade". It could mean the act of resignation manifested 'officially', or objectively; or it could mean abandonment, such as by his repeated non-attendances over a reasonable period. In the events that occurred, as were summarised in the Briefing Note, Mr Naethuys' witness statement which Ms Hodges plainly relied upon, it was not wrong for her to rely upon an omission for Mr Naethuys to take the official step of resigning, consider Mr Naethuys witness statement and draw an inference from the omission to take the official step that he had not 'left the Brigade'. Alternatively, on the basis of Mr Naethuys' witness statements, any such non-attendances was explained by reason of the culmination of matters. Accordingly this representation was not false.
5. In Ms Hodges' briefing note, the first of the allegations stated was a reference to 'Bullying and threatening behaviour by Deputy Captain/President John Peters and Captain Jay towards Mr Daniel Naethuys'. I am unable to discern within the other attachments to the Third Publication a basis for allegation that Mr Jay threatened Mr Naethuys. Attachment 3 to the Third Publication only identifies two facts relied upon to sustain the opinion of bullying. There was nothing in Attachment 3 which pointed to Mr Jay threatening Mr Naethuys (as I will shortly explain, the case of 'bullying' against Mr Peters relies upon a broader array of facts than the case against Mr Jay, as is manifested by the content of Mr Naethuys' witness statement). The problem was that Ms Hodges appeared to conflate a threat against Mr Naethuys (by Mr Peters) with other asserted bullying conduct by Mr Jay. It was wrong to say that there was threatening behaviour by Mr Jay towards Mr Naethuys.
6. This leads to the strange result that although the two facts relied upon in Attachment 3 have not been proven to be false, they do not make out a substantial part of the representation which was to the effect that Mr Jay threatened Mr Naethuys. (It should be apparent that I have found it unnecessary to determine whether the two statements in Attachment 3 could arguably, individually or in combination, satisfy the definition of bullying for the purposes of the Service Standard). This representation is false.

Jay made a false report with respect to an operational incident, namely that on 6 June 2016, when it was recorded in the Brigade's records that Mr Naethuys had responded to an operational incident when in fact he had not because Mr Jay had prevented him from attending the incident

Jay supplied false information regarding an operational incident

Jay breached Service Standard 1.1.7 Code of Conduct and Ethics by supplying false information in relation to an operational incident (G.3.b)

The plaintiffs' submissions

1. The plaintiffs submitted that Naethuys was wrong in thinking that Mr Jay falsified records. Naethuys had speculated that Mr Jay had called in a crew of 4 to Firecom, including him; apparently because he presumed that without him, Mr Jay would not have had an adequate number for crew to respond to the incident. He made these statements having left Glossodia station before the call took place.
2. In fact, the Fire/Incident report recorded by 'Rod' recorded that the incident was responded to by Mr Jay, his two children, Daniel Naethuys, Carol Vanderlay and Skye McDonna. The latter two attended by 'PV' (Private Vehicle) a fact of which Mr Naethuys was ignorant.
3. Mr Jay gave evidence that he called in 3 persons (he and his two children). That evidence was not challenged and was confirmed by radio log of a call from Glossodia between 1:15m reporting a crew of 3. Mr Jay acted in accordance with the practice (reported on by Mr Plumridge) of the officer in command (OIC) calling in to the District office all the names of members attending a call out, after the event.

The defendants' submissions

1. The defendants did not make specific submissions on the falsity of these representations (although did address them in the context of malice).

Consideration

1. In my opinion, at least the first two of the representations in these groups substantially amounted to the same thing.
2. The truth of this representation relies upon the question of whether there were 3 or 4 members of the crew on truck. There is no dispute that Mr Naethuys was not on the truck, nor that this circumstance occurred because Mr Jay plainly indicated (and Mr Naethuys agreed or acquiesced to such indication) that Mr Naethuys was not to be on the truck and, in that sense, I accept that Mr Jay practically prevented him from being on it and attending the incident.
3. I have indicated my difficulty in accepting Mr Jay's evidence unless it is independently corroborated. In this case, his evidence does receive some measure of corroboration, through the single entry on the radio log at 1315. But the documentary record is not all one way. The same document recorded an entry at 1350 consistent with Mr Jay informing Rod that there were 4 on the truck (including himself and Mr Naethuys). The fire/incident report also was capable of sustaining a contention that there were 4 on the truck. What does seem to be clear is that Mr Jay was the source of the information contained in these documents.
4. I am not persuaded that it was not false to represent that Mr Jay had reported that Mr Naethuys had responded to the operational incident. On that premise, I am also not persuaded that it was false to represent that Mr Jay made a false report about this.
5. The falsity of the first and second representations in this group is accordingly, not made out.
6. This brings me to the third of the representations in this group. This representation depends on my finding that the first and second representations in this group were false. Mr Jay did not argue that if the first and second representations (his false reporting) was found to be true (or at least not false), it remained false to represent that he had breached Service Standard 1.1.7 of the Code of Conduct.
7. In the circumstances, I am not persuaded that it was false to represent that he had breached Service Standard 1.1.7 of the Code of Conduct.

Peters attempted to procure Mr Naethuys' resignation from the Brigade in circumstances where Mr Naethuys did not wish to resign

Peters reported to other members of the RFS that Mr Naethuys had resigned, when in fact he had not and Peters was aware that he had not resigned (G.4.a)

Plaintiffs' submissions

1. The plaintiffs submitted that Peters did not bully Naethuys. Mr Peters gave evidence of his contact with Mr Naethuys in which the latter indicated that he was going to resign from Glossodia Brigade. That evidence was uncontradicted. Simply by him sending text messages confirming that understanding and thereafter sending follow-up texts to ascertain whether that was still the latter's intention could not be regarded as bullying.
2. As Mr Peters had previously submitted, nothing that was said at the brigade meeting on 17 August 2016 could constitute bullying.
3. Generally, it was submitted that Mr Peters' conduct throughout the sequence of events was an entirely proportionate response to a tragic and distressing situation. In particular, he tried to persuade Mr Naethuys to leave the brigade to obviate a formal investigation. Misconduct could not be regarded as so 'unreasonable' as to amount to bullying. Further nothing that he did gave rise to a risk to health and safety. To the contrary, he acted to safeguard the health and safety of a junior member of the brigade.

Defendants' submissions

1. Ms Hodges only addressed the last of this group of representations and submitted only generally that a finding of falsity could not be made in circumstances where Messrs Jay and Peters led no evidence in support of falsity.

Consideration

1. I will deal with the first representation in this group last, as it represents a conclusion partly affected by the correctness of the second and third representations in this group.
2. As to the second representation, I find that it was true Mr Peters attempted to procure Mr Naethuys' resignation. That inference was irresistible given Mr Peters communications not only with Mr Naethuys but also with others who he perceived might be in a position to persuade Mr Naethuys to take that course, including the latter's parents and employer. As to his communications with Mr Peters did threaten Mr Naethuys that unless the latter resigned, he would report him to the RFS Homebush Ethical Standards unit. The second aspect was a representation regarding Mr Naethuys' intention. The correctness or otherwise of this representation depended on the time that it was viewed. There had been a shift in Mr Naethuys' statement of intent regarding the course of conduct on the subject of resignation. Initially, I find, it was one of acquiescence (perhaps grudging) to that course, before it moved to one of ambiguity (keeping his options open) to finally a resolve not to resign. It is, in my view, somewhat simplistic to convey, as this representation does convey, that the only intention he ever had was not to resign. Nevertheless, it was not false to make the statement since that did represent Mr Naethuys' final position (as it had evolved).
3. The third representation centres upon an asserted report by Mr Peters and whether he knew that the report was contrary to that which he had asserted. The report was in the Brigade Minutes of 17 August. The plaintiffs did not take any point that this was not a report of Mr Peters to other members of the RFS. The assertion was that Mr Naethuys (the incumbent Vice President of the Brigade) had "left the brigade". Mr Naethuys had denied the correctness of that assertion in his witness statement.
4. I earlier noted that there may be some ambiguity as to whether the expression having 'left the brigade' implicitly conveyed a representation of resignation. As indicated, in my view, it cannot be said that such representation was false. This might however be a distinction without a difference, since in my view, Mr Peters well knew that Mr Naethuys had not left the Brigade or resigned.
5. Although conflicting signals may have been given by Mr Naethuys as to his intentions, Mr Peters' efforts may fairly be summarised as an unsuccessful campaign to get Mr Naethuys to resign in the face of those conflicting signals. By 17 August, Mr Peters knew that he had not succeeded in his object of procuring Naethuys' resignation. It was not enough for Mr Peters to hope that, by that date, Mr Naethuys might still resign or even that this was Mr Peters expectation. I find that on the date of the meeting, Mr Peters knew that he had not procured Naethuys' resignation. To the contrary, even by 28 December 2016, Mr Naethuys appeared to have a continuing desire to remain with Glossodia Brigade.
6. I not only find that the third representation in this group was not false, but find also that the representation was true.
7. This brings me now back to the first representation. The allegation of Bullying was set out in Attachment 4 to the Third Publication. Aside from the contentious issue of the timing for when Mr Peters spoke to Mr Naethuys' parents (statement of fact number 4), most of these other paragraphs are effectively encapsulated in the first two representations in this group, which I have determined to be not false.
8. But on the point of timing of the contact with Mr Naethuys' parents, this does not substantially improve Mr Peters' position in respect to the current representation under question. Even supposing the statement of fact 4 in respect to timing was inaccurate, Mr Peters did not dispute that he did contact both of Mr Naethuys parents to the effect described by Mr Naethuys. Thus, even if the timing for contact occurred when Mr Naethuys had not been stood down or under investigation, it remains relevant to the issue of bullying that Mr Peters engaged in the conduct described in the statement of fact 4.
9. I find that the conduct was unreasonable and directed to Mr Naethuys. It could well have amounted to harassment, victimisation and threat.
10. Contrary to Mr Peters' submissions, the issue is not whether it was appropriate (or 'proportionate') to try to persuade Mr Naethuys to resign; although for a reason that I come to, even that was not beyond doubt. The question of bullying was primarily directed to the way that he went about achieving that objective. In my opinion, his conduct was unreasonable in this sense. Mr Peters effectively sought to coerce Mr Naethuys into resigning. Contrary to Mr Peters' submission, it was not reasonable for Mr Peters to speak to Mr Naethuys' parents or Mr Naethuys' employer for the purpose of effectuating this result. Naethuys was an adult, and a fellow officer of the RFS, who was responsible for his own decisions. It was a rather shoddy act to bring Naethuys' parents and employer into it when managing the fallout from the affair.
11. Another matter which indicated the unreasonableness of Mr Peters effective campaign to drive Naethuys out was that he acted entirely upon the assumption that everything Mr Jay had said about the 'affair' and its consequences were true. Undoubtedly it was deplorable and shocking for the affair to have begun at all (whatever was the perspective of Mr Jay's daughter) but Mr Peters was not, for example, interested in Naethuys' apparent point of view, contrary to Mr Jay's perspective, that Mr Naethuys and Mr Jay's daughter had ended the affair 'amicably' and remained friends. Mr Naethuys' viewpoint might, objectively, have been lame and hard to believe, but Mr Peters was single-mindedly bent upon driving Naethuys out irrespective of whatever Naethuys had to say about it; and he deployed ruthless tactics to achieve that result. His attempts to do so also occurred in a context where independent investigative processes had not finally played themselves out.
12. That left a question mark whether, for the purposes of the Service Standard, there was a possibility of Naethuys having suffered a risk to his health or safety. Although this element may have been problematic, it was not an open and shut case that the stipulation in cl 3.10, which required that there was a possibility of danger to health and safety, was bound to fail. Mr Naethuys was a member of the Brigade for 17 years as at August 2016 and occupied an executive position. His father was an ex-Captain of the Brigade. It may be inferred that Mr Naethuys attached as much significance to the Brigade as part of his identity as Mr Peters. Mr Naethuys referred in his witness statement to feeling 'disheartened' and 'humiliated'. Such feelings, depending on their depth or intensity, may give rise to a possibility of mental harm (and thus effect mental health) even if they probably do not. Conceivably a person in Mr Naethuys' position, who learnt that his employer and parents had been hounded by Mr Peters, might develop some mental harm as a result of what Mr Peters had done. The test under the Service Standard is not one of probability. Accordingly, I am not persuaded that this first representation was false.

Peters disclosed the fact, and subject of, a confidential investigation be conducted by the PSU to Naethuys' parents (G.4.b)

Plaintiffs' submissions

1. The plaintiffs submitted that the confidentiality requirements by speaking to Mr Naethuys' mother and stepfather was false. The sequence was not proved. Mr Peters spoke to the step-father on 6 June. The investigation only started on 14 or 15 June.
2. The most that Mr Naethuys stated in his witness statement [43] was that Mr Peters had contacted both Mr Naethuys' mother and step-father, advising them of the charges against him, and trying to get them to have him resigned from the brigade. The plaintiffs asserted that Ms Hodges had simply embellished the allegation and this made it false.
3. The plaintiffs made submissions about Mr Peters' dealings with other persons concerning Mr Naethuys, but in view of the specificity of this particular representation, it is unnecessary to address them.

Defendants' submissions

1. As with the last representation considered, Ms Hodges submitted that falsity was not established for this representation in the absence of Mr Peters giving evidence to support the falsity of it.

Consideration

1. It appears that Mr Naethuys became subject to an investigation on 16 June 2016. Based upon evidence concerning Ms Wakka, it appears that this was the date that Mr Naethuys had also been informed about his being stood down.
2. With reference to Ms Hodges' file note [44] , which recorded her meeting with Mr Naethuys on 10 June and included a reference to Mr Peters communicating with his step-father on 6 June 2016, I accept Mr Peters' submission that his communication(s) with the step-father (and arguably mother) preceded the commencement of that investigation, at which point Mr Naethuys had been stood down.
3. I therefore accept that the statement of fact numbered 4 in Attachment 4 to the Third Publication (created by Mr Wedge) was wrong. It was wrong because the statement of fact asserted that Mr Peters' contact with his parents had occurred when Mr Naethuys had been stood down; that is, when he was subject to a subsisting investigation. Until the investigation had commenced, however, he had not been stood down. Mr Wedge's document relied, in this respect, on paragraphs 8 and 9 of Mr Naethuys' statement.
4. Care, however, needs to be paid to what Ms Hodges actually wrote in her Briefing note to Mr Watson.
5. As I read the fifth paragraph under the heading 'Background' of the Briefing Note, Ms Hodges is passing on the circumstance that Mr Naethuys (erroneously) made allegations regarding the timing for Mr Peters contact with his parents. So too with what Ms Hodges relevantly said in the top part of the Briefing Note where she refers to "Allegations" that Mr Peters disclosed information breaching confidentiality to an ongoing investigation to third parties. Most obviously, under the sub-heading 'Current Situation', Ms Hodges stated (in the third paragraph) that "Allegations in relation to (Mr Peters) disclosing information breaching confidentiality to an ongoing investigation to third parties to be further investigated." Further, in contrast with the allegation regarding whether Mr Naethuys was 'on the truck', where Ms Hodges had indicated that she had conducted an investigation of some sort, she did not provide any similar indication in connection with the allegation of the timing for when Mr Peters contacted Naethuys' parents.
6. In my view, Ms Hodges was plainly passing on, without express or implied adoption, Mr Naethuys' allegations about the timing of Mr Peters' contact with his parents. It was not wrong, or false, for Ms Hodges to state that Mr Naethuys had made these allegations. She was not representing that Mr Naethuys' allegations were true. Nor was it 'false' for Ms Hodges to make a recommendation that disclosure of confidential material be investigated. That was her opinion. Even in retrospect, it is not obvious to me that on 5 September 2016, any half decent investigation of this matter had occurred.
7. Despite these matters however, the defendants did not dispute that, in the event that there was a false representation in a charge sheet, since Ms Hodges was republishing it, she is to be taken as also making the false representation.
8. Accordingly, I find that this particular representation was false.

SUMMARY ON FALSITY ISSUE

1. To recap, I have found that the following representations were false: 1. As to the First and Second Publications: 1. At the Group South meeting on 20 July 2016, Mr Jay bullied or intimidated other attendees by raising his voice in an aggressive manner; 2. Graeme Jay was deliberately disruptive of a meeting of the RFS on 20 July 2016 because he ignored demands to speak in a calm manner 1. As to the Third Publication: 1. Jay bullied and threatened Daniel Naethuys, a member of the Glossodia Brigade; 2. Peters disclosed the fact, and subject of, a confidential investigation be conducted by the PSU to Naethuys' parents.

The Court's approach to determining this issue

1. At closing oral argument, Mr Brennan SC accepted that the Court could look at malice with respect to the First, Second Third Publications, respectively, as a whole; and spare the Court of deciding whether each and every false representation, as found, was malicious.
2. As it happens, because there are so few false representations found, the approach to be practically taken does not really matter. Even so, on the contingency that I have erred in my determination of whether the representations conveyed were false, I will shortly summarise the parties' extensive submissions on the question of malice. Before doing so, I will state the applicable principles.

Principles

1. The defendant submitted the following propositions regarding this element of the tort: 1. the principles relating to malice for the purposes of the law of defamation are equally applicable to the tort of injurious falsehood even if the nature of the enquiry may vary [45] ; 2. malice involves the use of an occasion of publication for some improper purpose foreign to the occasion, such as to cause injury to another [46] ; 3. it is not only necessary to prove that the publisher's motive for making the publication was improper but it was also that improper motive which actuated the making of the publication [47] ; 4. there is a presumption that the publisher acted with a proper purpose. A plaintiff has to overcome that presumption by establishing a predominantly improper motive [48] ; 5. proof of ill will, prejudice, bias, recklessness or absence of belief in the truth or some other motive, beyond that of duty or interest, for making the statement, does not of itself establish that malice actuated the publication, although provides a premise for inferring that the publications were actuated by the improper motive [49] ; 6. although an absence of affirmative belief in truth about the statement is insufficient [50] , recklessness indifference to the truth may suffice [51] . But recklessness must be so gross as to constitute wilful blindness which the law will treat as being equivalent to knowledge [52] ; 7. Malice is a serious matter and Briginshaw principles apply to such a finding [53] . Substantial and cogent evidence commensurate with the seriousness of the charge is required to establish malice [54] . Conjecture or surmise, or a mere scintilla will not suffice.
2. Proof that a defendant knew that a statement was untrue will ordinarily be conclusive that the publication was actuated by an improper purpose, but that is only because it evinces an improper purpose [55] . In this way, although a defendant's publication of an untrue statement knowing it to be untrue is usually proof of malice, this is not inevitably so. Thus, even knowledge or a belief that a statement is false will not make it malicious if the defendant is under a legal duty to make the communication [56] . In this case, however, the defendants eschewed any submission that they were under such a legal duty. Rather they argued that the circumstance that they received complaints from other volunteers was very relevant to the question of proper purpose.
3. The plaintiffs submitted that the authorities established certain principles through which malice can be found inferentially. They submitted that the authorities indicated that: 1. malice is satisfied if the statement is published knowing it to be false or with reckless indifference as to whether it is true or false [57] ; 2. where there is an issue as to whether a publisher is merely passing on allegations for relevant authorities (for the purpose of determining what, if any, action should take place): 1. the publisher will act for a lawful purpose and without malice, even if the person passing them on does not know whether they are true or false; but 2. to pass on allegations, for mixed motives and purposes, some of which are to cause harm to the plaintiffs in their profession, is to act with malice [58] . 1. If, on the primary facts proved, a belief in the truth of the statements would be unreasonable, it is open for the tribunal of fact to infer malice in the absence of satisfactory explanation [59] .
4. As to the principles referred to by the plaintiffs, the defendants submitted that what was said in Trobridge by Kitto J (in a case involving a different tort) had to accommodate what the High Court had said in Roberts v Bass. Mr Brennan SC's riposte was that although that was true, Trobridge remained good law, as was demonstrated in several decisions involving other related intentional torts [60] . In one of those decisions, Abed, Kitto J's decision was described as the 'indirect route' of proving malice. But, as the New South Wales Court of Appeal also observed in Abed at [152]: "… whilst proof of malice will often be a matter of inference, it bears repeating that 'it is proof that is required, not conjecture or suspicion''
5. Further, in Edwards v State of New South Wales [2021] NSWSC 181, Walton J said (at [32]): "The onus is on the plaintiff in respect of each element is particularly important when a solely inferential case is mounted. Where a case relies on inferences, the onus of proof is discharged only if the circumstances 'do more than give rise to conflicting inferences of equal degrees of probability"
6. Trobridge was effectively applied by Harrison J in Spedding v State of New South Wales [2022] NSWSC 1627 at [204] when his Honour determined (in a malicious prosecution case) that malice could be inferred from the absence of reasonable and probable cause (in maintaining a prosecution) and that such inference could be drawn more readily from the absence of explanation.
7. The plaintiffs also invited the Court to draw conventional Jones v Dunkel inferences from the defendants' election not to give evidence in respect to a number of issues. This was especially so in connection with the meeting on 20 July 2016.
8. In response, the defendants cited Barrow v Bolt [2014] VSC 599 at [53]-[55] to indicate that in the context of cases on this tort, it may not be easy for a plaintiff to invoke a Jones v Dunkel inference against a publisher who elects not to give evidence; especially given the presumption of honest purpose that a publisher has in its favour. They argued that the 'rule' in Jones v Dunkel will not support an adverse inference unless the evidence otherwise provides a basis on which that unfavourable inference can be drawn [61] . Further, even if the inference arose, it could not amount to an admission, or fill gaps in the plaintiffs' case.

Significance of defendants' election not to give evidence

1. The plaintiffs submitted that the defendants elected to provide no explanation for the publications. They submitted that in circumstances where any belief in the truth of representations conveyed was unreasonable, it is open to the Court (although it is not bound) to infer malice.

Context

1. The plaintiffs referred to two disputes within the Hawkesbury District which, they say, provided the context for why the false statements in the publications were malicious in the sense of explaining why the defendants wished to remove the plaintiffs from their positions as officeholders of the Glossodia Brigade, and possibly from the RFS altogether.
2. The first category of disputes concerned the efforts of Glossodia Brigade (and the Wilberforce Brigade) to supply the necessary equipment to enable them to fight fires in urban territories (and not just in rural areas). Messrs Jay and Peters were prominent advocates for BACA equipment and training and for a change to a pumper which could be tailored for structural fires. They were also strong advocates for enlarging the territorial boundary between the Glossodia and Tennyson Brigades. Whilst the plaintiffs were supported by some persons within the Group South, they were resisted by others. Because of their prominence, they were perceived by the defendants as being troublemakers.
3. The second dispute concerned the response to the revelation of the 'Naethuys affair', between Mr Naethuys and Mr Jay's daughter and the responses of people to it. A contrast was posited between the proactive steps taken by Mr Peters in managing the problem, including ushering Naethuys out of the Glossodia Brigade, the RFS was passive: a report from the Professional Standards Unit went nowhere; the Ombudsman did not investigate and the RFS inexplicably left the matter there.

General identification of motive

1. In their written submissions, it appeared that there was shifting formulations as to what the motives of the defendants were. These were a 'disciplinary investigation', 'disciplinary action' and 'disciplinary outcomes'. These things mean different things. But in closing argument, Mr Brennan SC articulated that they were motivated to seek disciplinary action against the plaintiffs. As will later be explained, there remained some ambiguity even in what that expression meant.
2. I will now summarise the plaintiffs' submissions in relation to each publication. They now of course, have to be read in light of the actual findings I have made regarding which representations were false. They may assist an appellate court in consideration of malice should such a court disagree with my findings on falsity and is inclined to determine for itself issues of malice.

The First Publication

1. In relation to the First and Second Publications, Mr Brennan SC submitted in his Opening Address that although a large amount of the publications was sourced in material supplied by complainants, it was Messrs Petrikas, Wedge and Ryan, all of whom attended the subject meeting, who exercised the judgement in providing material to Superintendent Hodges. It was they who marshalled the documents to provide to her. Mr Brennan SC submitted (in writing) that they did so for the purpose of procuring a disciplinary investigation into the plaintiffs' conduct and adverse findings [62] . In this, they were successful.
2. Malice could be inferred where publishers knew of the falsity of what was conveyed. That was particularly so in their case as they knew of the history of different relationships. They therefore had good grounds to suspect that what the complainants had reported to them was a distortion of events.
3. Mr Brennan SC submitted, in closing oral argument, that a special obligation was cast upon the first, second and third defendants in crafting the 'charge sheets' (attachments 2-4 of the First Publication) since they were not only passing on, or summarising, in the statement of facts, the allegations raised by the 12 complainants. They were witnesses themselves and, if they were to avoid a finding of malice, they needed to state the facts with reasonable belief.
4. The plaintiffs pointed out that it was curious that although the first, second and third plaintiffs attached letters from 12 other complainants, they had not attached their own individual letters, or perhaps witness statements.
5. The plaintiffs submitted that in Attachment 3, with reference to the suggested contravention of the Service Standard, there was very specific focus to the allegations.
6. The plaintiffs also submitted that Attachment 4 was another specific charge. I referred earlier to the 'Integrity and Trust' value in the Code of Conduct. The first statement in the statement of facts, about Mr Jay advising the South Sector meeting that he had no idea of the content of the letter, could not reasonably have been made because it was untrue and the first, second and third defendants knew it to be untrue. If they did not know, they were recklessly indifferent.
7. More generally, there was no reasonable basis to make the allegation of bullying.

The belated production of the audio recording

1. What was worse, the plaintiffs' submitted, and especially in the case of Mr Petrikas, was that there was a practice of taping these meetings. The meeting on 20 July 2016 was no exception to that: it was taped on a device of Mr Petrikas. But with that knowledge, none of Mr Petrikas, nor Messrs Wedge or Ryan disclosed the audio recording to the investigator, which was the primary item of evidence to establish what occurred at the meeting. Mr Petrikas had possession of it and produced it only when asked to explain the reasons for his decision. Mr Petrikas had falsely told Mr Plumridge in January 2017 that no audio recording existed. The plaintiffs refer to Mr Plumridge's comment (in an email on 29 August 2017) about his recollection that Mr Petrikas had previously told him that a recording had been deleted, but there was no response by Mr Petrikas to that email. This silence, the plaintiffs submit, was an admission. They contend that it should be inferred that having made complaints, Mr Petrikas knew that what had been said about the events on 20 July 2016 could not be sustained if the audio recording was listened to and that he therefore dishonestly advised Mr Plumridge that it had been deleted. Then, once he considered that the failure to produce the recording might attract adverse comment, he changed his position.
2. Mr Brennan SC elaborated on this argument in his closing oral address. He challenged the defendants' submission that if Mr Petrikas was dishonest, it would have been expected that he would delete the audio recording. He argued that this was speculative and Mr Petrikas elected not to give evidence. Contrary to the defendants' submission that there was no evidence as to what he told Mr Plumridge in January 2017, the evidence pointed only to him as being the person who told Mr Plumridge that it was deleted. It was jarring that in August 2017, he said he could not think why anyone would say that it would have been deleted. What he knew in August 2017, he must have known in January 2017. This was no mere absence of recollection in January 2017, revived in August 2017. It was uncommon for persons in an investigation to say that a document has been destroyed only to later change the person's mind.
3. In argument in chief, Mr Brennan SC did not however suggest any reason for controverting Mr Plumridge's own view that the non-disclosure by Mr Petrikas was unintentional. However, in his oral argument in reply, Mr Brennan SC argued that Mr Plumridge's comments were directed only to persons within Ms Hodges' office. An investigation into Mr Petrikas' conduct with the audio recording did not fall within his terms of reference.
4. The plaintiffs' submitted that each of Messrs Petrikas, Ryan and Wedge knew that the allegation that Mr Jay had lied about not knowing of the content of the letter from Peters to Petrikas was untrue. Each were present at the meeting and knew that Mr Jay had said no such thing. All of the defendants persevered in conveying this to the investigator notwithstanding that no other attendee reported Mr Jay as making the statement. Given that they were aware of the audio recording, there were two possibilities: either Messrs Petrikas, Ryan and Wedge jointly fabricated the allegation in the belief (or expectation) that the audio would not be produced or they adopted Mr Pullen's error and shut their minds to the audio recording.
5. In Mr Ryan's case, there were other matters indicating that he was aware of the falsity of the statements made as to the events on 20 July. In his statement to Mr Plumridge, he did not say that any of the matters constituting the First Publication actually occurred. He made statements which, in effect, were melodramatic.
6. The plaintiffs referred to the defendants' letter of 4 August 2016 which was, in effect, a draft of the eventual letter of 25 August 2016. Ms Hodges had asked, in her email of 11 August 2016 for the first, second and third defendants to 'consolidate the information/evidence'. The plaintiffs' submitted that the defendants did not give effect to this instruction - they omitted to supply the most important piece of evidence - the audio recording. It should be inferred that they knew of that item of evidence but elected not to review or attach it and expected that it would not come to light.
7. Further, the 25 August 2016 letter sought disciplinary action; not an investigation. After the result of the investigation was not what they had wished for, Mr Pullen's email of 15 December 2017 indicated that their true purpose was to have the plaintiff's disciplined.
8. The plaintiffs made separate submissions about Mr Jay's conduct at the 20 July 2016 meeting, regarding his bullying, and intimidating behaviour, in raising his voice and disruptive behaviour. The First Publication occurred 5 weeks after the meeting, whilst their recollections were fresh. All were witnesses at the meeting. They knew that the allegations of primary fact were false. No reasonable attendee would have believed that Mr Jay had raised his voice aggressively and as submitted previously, he did not act in a bullying way.
9. The plaintiffs' also made separate submissions about representations concerning Mr Jay's lying and dishonesty. They knew that these representations were false or alternatively, if they had forgotten what had occurred they were recklessly indifferent to the truth as they did not check the tape.
10. They also knew that the representation that Mr Jay had insisted that a letter he knew to be libellous was also false. As members of the SAT they knew of all the facts concerning Mr Rutter's performance and what Mr Earle had said. They had failed to accurately report to the South Group. No reasonable person in their position could have believed that the letter was libellous. The fact that they did not give evidence indicates that this part of the publication was done for an improper purpose. For the same reasons, the representations about Mr Peters libelling Messrs Rutter and Earle was also made maliciously. Similarly no reasonable person could have believed that Mr Peters had falsely accused Messrs Rutter and Earle of being unfit to represent Group South at the SMT. The circumstance that no explanation was offered to explain that aspect of the publication leads to the inference of malice. There was no reasonable belief also for a representation that Peters breached RFS Service Standards 1.1.42 and the Code of Conduct.
11. This was not a case where the first, second or third defendants were simply passing complaints from subordinates up the line pursuant to a duty to report. They were present at the meeting of 20 July and were responsible for compiling the 'statements of facts' in the material attachments or what I have earlier described as effectively particulars of the charges (of bullying or dishonesty).

Second Publication

1. In relation to the second publication, the person whose malice is in question is Ms Hodges.
2. The plaintiffs submitted that by cl 2.1 of the Service Standard Discipline 1.1.2, when presented with complaints about Messrs Jay and Peters, Ms Hodges had a discretion to determine whether the allegations should be investigated at all; or simply sent back to the first, second and third defendants with a request, or suggestion, that they do better in crafting particulars for a charge. They do not criticise her for referring the investigation to someone else, but say that this was on the proviso that she turned her own mind to the question whether there should be an investigation at all. Instead, she foisted burden of decision as to how to the respond to the first, second and third defendants' allegations upon Mr Watson. Even though she was not at the meeting on 20 July, once she chose to refer the First Publication to Mr Watson, she was exposed.
3. In his closing submissions, Mr Brennan SC frankly argued that the issue of malice in relation to the Second Publication turned on whether she knew there was an audio recording. The plaintiffs submit that she must have known of the audio recording, but still she stated that Messrs Jay and Mr Peters were in breach of the Code of Conduct. She would have known that the taping of meetings was the usual procedure. Her office had sent transcripts of tapes created in 2017. She must have known the recording would be made for a short period of time. This might explain why, in her letter of 11 August 2016, she asked the first, second and third defendants to compile all the evidence which, the plaintiffs suggested, could be taken to include reference to the sound recording. There was no reason, on 25 August 2016, for her to think that the process for sound recording the meeting on 20 July 2016 had not been followed. She had not called for the audio sound recording and had not listened to it, so she was at least recklessly indifferent to the content of the Attachments 2, 3 & 4 which she had opined amounted to breaches of the Code of Conducts and Ethics.
4. The plaintiffs noted that the Second and Third Publications were comprised of two briefing notes by Ms Hodges. But (three) other briefing notes were prepared that day and they illuminated her motive and purpose. These had been submitted but no investigation proceeded. Nevertheless, outside of the Second and Third Publications, in which she alluded generally to concerns about the 'ability, character and leadership' of the plaintiffs, it could be inferred that she wanted to throw the book at the plaintiffs to achieve a disciplinary outcome.
5. They submitted that Ms Hodges' recognition of bias by the Glossodia Brigade towards Hawkesbury management evinced her developed understanding of the disciplinary framework and by detaching the Hawkesbury District Office from the investigation, she intended to procure an adverse disciplinary outcome.
6. The plaintiffs referred to earlier ill-feeling as between Ms Hodges and Mr Jay which was the subject of Exhibits D and E. This concerned the episode between Mr Jay and Mr Byers when the latter lodged a disciplinary complaint against the former. Superintendent Hodges suspended Mr Jay whilst leaving Mr Jay's complaint against Mr Byers unaddressed. The plaintiffs drew attention also to some criticism of Superintendent Hodges made by the Assistant Commissioner (for omitting to address both complaints at the same time). It was suggested that she apprehended that if she involved herself again in an investigation concerning Mr Jay, any disciplinary outcome could be set aside.
7. Finally, she could not reasonably have believed that the complaints of the first, second and third defendants could be passed on without first listening to the audio sound recording. This indicated that she was recklessly indifferent to the truth or falsity of the allegations.

Third Publication

1. The plaintiffs clarified in their closing written submissions that the malice in question for this publication was only that of Ms Hodges.
2. The plaintiffs emphasised her role in creation of the charge sheets (Attachments 3 & 4 to the Third Publication).
3. They submitted that she could not reasonably have believed the representations made about Mr Jay regarding breach of the Code of Conduct and Ethics regarding Mr Naethuys, and his threatening and bullying the latter (by instructing him not to get on the truck). None of the defined elements of bullying were alleged by Mr Naethuys. She knew that Mr Jay believed that Mr Naethuys was intending to leave the Brigade. She also knew that what Mr Jay had said about the PSU advice was accurate and she also had Mr Naethuys' letter (Attachment 10). With all of these matters that she knew about, she could not reasonably have believed that by adopting the resolution to remove him, Glossodia Brigade was engaging in an act of bullying.
4. She did not explain why she made the publication and therefore it could be inferred that the allegations were made with malice.
5. They submitted that Ms Hodges engaged in 'duplicitous game playing' by electing not to respond to Mr Jay's email of 5 August 2016, also characterised as 'dishonest bureaucratese' directed at harming the plaintiffs and the whole of the Glossodia Brigade', to advance a dishonest purpose of procuring the plaintiffs' "scalps".
6. They submitted that Ms Hodges must have known that the representation that Mr Jay falsified records was false because she must have known of the usual practices for reporting all responders to a call out. Her statement that 'Investigation confirms this allegation' could not reasonably have been believed by her and she had provided no explanation for this publication.
7. The plaintiffs submitted further that the representation that Mr Peters bullied Mr Naethuys by the text messages sent was made in the consciousness that Ms Hodges had only heard Mr Naethuys' side of the story and had not consulted with Mr Peters. Her failure to ask Mr Peters about the truth of them constituted a reckless indifference to the truth of what was asserted. Her publication was not explained and it could therefore be inferred that it was done with malice.
8. The inclusion of allegations concerning the minutes of the 17 August 2016 Brigade meeting constituted malice in its purest form. They had to be viewed in the context of Mr Jay's email recording his understanding of Mr Naethuys' decision to leave the Brigade. In his submissions in reply, Mr Brennan SC argued that it was not malicious for Ms Hodges to fail to respond to Mr Jay's email of 5 September 2016 (and follow up email) in a timelier way than she did; but rather by alleging that what the Brigade did on 17 August 2016 constituted bullying in circumstances where Ms Hodges was aware of Mr Jay's belief and understanding about Mr Naethuys' intention. She had not disabused him of such belief and she was wilfully blind to the truth of the allegations she made that he had bullied Naethuys. The same submission applied to the corresponding allegation of bullying against Mr Peters.
9. The plaintiffs submitted generally about representations concerning Mr Peters breach of confidentiality but as indicated in the previous section of falsity, the representation was confined to his disclosure to Mr Naethuys' mother and step-father. But Ms Hodges had noted that Mr Peters had told her on 6 June 2016 that he had disclosed to the stepfather that Naethuys needed to resign. Mr Naethuys had informed her on 16 June 2016 that he was then under investigation and had been stood down. This chronology indicated that Ms Hodges knew that Mr Peters' contact occurred prior to any stand down and investigation. She therefore embellished an allegation made by Mr Naethuys in a way that rendered it false, and she knew that to be so. It was only by that embellishment that she made the allegation that she did.
10. This was one example of the Trobridge principle of proof of indirect malice, that her conduct appeared prima facie unreasonable and she supplied no explanation for why she acted as she did.

The defendants' submissions

1. As I did in relation to the plaintiffs' submissions, I will initially summarise the defendants' submissions on malice without limitation and without reference to the actual findings of falsity made earlier.

General

1. Senior Counsel for the defendants submitted that if all of the defendants were actuated by malice, they went about disseminating the publications in an incongruous way. They did not disseminate publications broadly, but narrowly: the first to third defendants published only to Superintendent Hodges. Superintendent Hodges published only to the Regional Manager, Mr Watson. If they really wanted to damage the plaintiffs, by harming their reputations, they would have disseminated the publications more broadly.
2. The Second and Third publications were published by Ms Hodges under the initial or covering Briefing Note attaching other publications (not sued upon) whose content was referred to earlier in these reasons.
3. The context showed that in the First Publication: (a) Mr Petrikas, Mr Ryan and Mr Wedge asked for a review of submissions and 'appropriate disciplinary action'; and (b) Ms Hodges asked for an investigator to be appointed from outside the Hawkesbury District. These acts were inconsistent with malice and consistent with a proper purpose - to have the allegations investigated. All publications were, in combination, a referral of allegations up the chain of command of the RFS to an independent investigator. If an action had been run in defamation, the First Publication would have attracted a defence of qualified privilege (being inconsistent with malice), since Ms Hodges had an interest in receiving it. The same could be said about the Second and Third Publications, where Mr Watson had an interest in receiving the materials.
4. It is inherently improbable that knowingly false allegations would be concocted for the purpose of referral to an internal disciplinary investigation at which there was at least a policy that the investigator was to treat information received confidentially [63] . There was no suggestion that the defendants intended something other than a genuine investigation and even if there was any doubt about that, the outcome of any investigation, and what information an investigator might seek, was unpredictable. This was not an investigation which, from the outset, had a preordained conclusion: a range of possible outcomes were available and not just disciplinary sanctions for the plaintiffs.
5. Further, whatever ill-feeling, even spite, that the defendants may have had towards the defendants, this element to the tort is not established unless the plaintiffs discharged the onus that it was malice which actuated the making of publications.
6. The defendants submitted that it was insufficient to establish malice by proving that representations were false, poorly worded, unchecked or verified or capable of being expressed with greater accuracy. To the extent that there were cases where inaccuracies or incomplete representations were made, these were likely to be inadvertent or the result of carelessness.
7. The defendants challenged the emphasis which the plaintiffs' placed upon their election not to give evidence where there was no sound basis to infer a motive to injure that was operative at the date of the publications or was the dominant reason for it. Alternatively, even if a Jones v Dunkel inference was available, it does not operate as an admission or fill gaps in the plaintiffs' cases, or to convert conjecture and suspicion into inference [64] .

First publication

1. The defendants referred to the range of documents comprising this Publication, sent only to one person (the fourth defendant). As to the letters from the complainants, there was no suggestion that the defendants invited or procured them. Once they were received by the first, second and third defendants, something had to be done about them. On 4 August 2016, Mr Wedge sent an initial letter and documents but Ms Hodges indicated that this was not enough. She requested 'specific allegations with relevant information …'. Ms Hodges had pointed out that the decision to refer the complaints for investigation had yet to be made; but conceivably, this was very likely to occur. Hence, the defendants submit, the charge sheets were created. The compilation of those charge sheets manifested an obvious attempt at summarising the letters and complaints, in anticipation that an investigation was to be carried out. That being so, there was little point in them carrying out their own mini-investigation.
2. I asked Mr Richardson SC whether he submitted that the first, second and third defendants had a duty to convey the complaints of others. His considered response was that they were not under any legal compulsion. Nevertheless, it was submitted that when considering whether or not they had an improper purpose, it was relevant that, as volunteers, they had received complaints. Those complaints were not confined to what was said at the 20 July 2016 meeting, and nor were their own personal dealings with the plaintiffs so confined.
3. Mr Richardson SC emphasised that, when viewing the charge sheets, it had to be taken into account that the first, second and third defendants were not lawyers, but volunteer laypersons. Further, when crafting a suggested breach of a Service Standard or provision of the Code of Conduct, account had to be taken of the circumstance that matters referred to in those documents could be described as being 'high level' or somewhat loose. There was room, in other words, for some subjectivity in what was meant by a term like 'bullying'. The language in the Service Standards was so broad (and perhaps elastic) that they provided little help to the plaintiffs in their attempt to prove that the defendants knew of the falsity of the allegations contained therein.
4. If there were inaccuracies in what was recorded, it was not unfair for the reported allegations to be made and even if it was unfair the evidence does not rise to the standard that the charge sheets were published as a knowing falsity. As to the covering letter of 25 August 2016, the language was consistent with a proper purpose of transferring the allegations to the proper person (Ms Hodges).

The audio recording

1. As to the audio recording of what occurred on 20 July 2016, the defendants submitted that the fact was that Mr Jay did behave poorly, in various respects, so that the representations of bullying and dishonesty were substantially accurate; if not in the way they were actually represented. Although they did not give evidence, the defendants say that if 12 other complainants were prepared to make written statements to this effect, it would be unlikely that the defendants would recall any differently. Further, even if the Court found that it was false to suggest that Jay acted in a calm and considerate manner, it was a view which was reasonably open to each of the first, second and third defendants, in good faith.
2. The circumstance that they did not attach an audio recording did not indicate improper purpose or knowing falsity, even if, in retrospect, it might have been desirable or even wise to attach the audio recording (and perhaps a transcript). But in the lead up to the publication, the defendants were not running an investigation. They were volunteers, albeit acting in a representative capacity, in conveying complaints and asking for an investigation. The suggestion that it was incumbent upon them to attach a sound recording was a counsel of perfection. I raised with Mr Richardson SC in argument an observation made by Mr Plumridge along the lines that, with hindsight, it might have been expedient for Mr Heffernan to have directed a preliminary investigation which Mr Plumridge thought might encompass confirmation of 'evidential matters' [65] . Conceivably an audio recording might have been considered at that point rather than the subject of discussion, in this case, a month after a formal disciplinary investigation was already on foot. Mr Richardson SC did not disagree. At any rate, he argued that the defendants could not be responsible for risks, such as the omission of relevant evidence that might have been picked up in a preliminary investigation had that occurred.
3. In relation to Mr Petrikas' position, there was no proof of an attempt to conceal or mislead Mr Plumridge. Mr Plumridge stated his belief that someone in the process conveyed inaccurate information or he misinterpreted what was told and whilst he could not understand why the audio recording was not supplied earlier than it was, he did not believe it was intentional on the part of any persons and there was no evidence it was intentional [66] . That was not to deny that it was a significant error [67] . But having chosen to run this action on the basis of the Plumridge investigation finding that there was no case to answer, the plaintiffs cannot now impugn that statement, by inviting the Court to go behind it. The plaintiffs' case theory was illogical and unrealistic. It was unlikely that Mr Petrikas apprehended that adverse comment might be made about him (which in the event did not occur) and if he really wanted to conceal what was on the audio recording, he could have arranged to have it disposed of.
4. The defendants responded to the plaintiffs' reliance upon Mr Pullen's email on 15 December 2017 (which, incidentally, was sent on behalf of, among others, Mr McKillop) by arguing that the content of the email, so many months after the First Publication was made, was actually consistent with the genuine belief of the complainants in the truth of the allegations that they had raised; and at a time when they may be taken to have been aware of the existence of the audio recording.

The tabling of the Peters letter and motions to remove Rutter and Earle

1. On the aspect of representations made against the plaintiffs regarding Mr Peters' letter and the motions against Messrs Earle and Rutter, there was no evidence that the first, second or third defendants knew that Mr Eather did not tell Mr Pullen that he was given the letter by Mr Pullen. More generally, the evidence of Messrs Peters and Eather (and also Jay) was so unsatisfactory that the suggestion was untenable. As to the content of the motion, a reasonable person could conclude that allegations that a person (Rutter) had misrepresented the Brigade or another person (Earle) had a conflict of interest arguably conveyed a lack of fitness to represent.

The representation as to what Jay said about the Peters letter

1. The defendants pointed out that it was unfair to contend that it was unreasonable for them to believe that Jay made a statement where Jay himself made a verified statement of his belief that he had made the statement; and where others held a similar recollection to their own. It could not be said that they knew from the sound recording that he had not: there was no argument that the defendants had listened to it. Further, even without the statement, his conduct conveyed the impression that he had. The defendants countered that the plaintiffs' reliance upon communications Mr Ryan had with Mr Jay or Mr Plumridge months after the meeting were probative for proof of knowingly making false allegations. Further, the statement by Mr Pullen, on behalf of the first, second and third defendants (and others, including Mr McKillop) in December 2017 were consistent with honest belief in the truth of the original allegations.

Second publication

1. The fourth defendant submitted that what was really in issue was the last sentence to the Briefing note of 5 September 2016 [68] . She submitted that this only amounted to a preliminary view of the information that had been passed on to her, which she said was based "by the attached documents" when elsewhere (in the initial covering Briefing Note) she was recommending that an independent investigation occur. She passed on the briefing note of 5 September 2016 in a context where she apprehended that Mr Watson would consider that an independent investigation would be conducted. Mr Watson's response on 17 October 2016, which indicated that he was in receipt of allegations, that he was deliberating over them and was intending to 'charge' a member of Regional office to conduct initial managerial investigations in the coming weeks, was consistent with the plain intention of what Ms Hodges had done. He did not proceed on the basis of any understanding that Ms Hodges had - or should have - conducted any meaningful investigation, including taking into account the views of the plaintiffs. She was passing on material for independent investigation conscious of Mr Jay's perception that she and the District Office were biased against him. She had made it clear that she was relying only upon the complaints made to her, which she considered needed to be investigated (by someone independently). Viewed as the last sentence should, in context, this was consistent with proper purpose.
2. On the question of her suggested awareness of the audio recording, the true position was that the District Office had located the audio recording well after the event, but there was no evidence to show that she was aware of it at the date of publication; nor (even if she was aware of it) any evidence that she listened to the audio recording or indeed that she should have. Mr Plumridge expressly stated his belief that Ms Hodges was placed in much the same position as he was.
3. On the question of her suggested awareness of the falsity of the representation that Mr Peters letter was libellous, the defendants point out that Mr Jay had conceded that it was libellous [69] . At any rate, the defendants were volunteers and laypersons unlikely to have a lawyer's interpretation of the concept.
4. Ms Hodges did not know that Messrs Earle and Rutter had not been falsely accused of being unfit to represent the South Sector or that there was a distinction drawn in Mr Peters' letter about the two men.
5. Ms Hodges also argued there was nothing in the point raised about Mr Jay's grievance in his treatment, or more accurately, non-treatment, by Superintendent Hodges, of his complaint against Byers years before this publication. Even if the disciplinary process she deployed was flawed, she had been exonerated of bias.

Third publication

1. Ms Hodges responded to the plaintiffs' attack on her for stating (in the second paragraph under the heading 'Background') that investigation confirmed the allegation referred to therein (Mr Jay providing a false report to Fire control in relation to the 6 June incident). The sequence of events suggested she was referring to her review of the Fire/Incident Report and Radio log. Ms Hodges made express reference to Attachments 7 & 8 and the inference should be drawn that she was stating that those particular records confirmed Mr Naethuys' statements about what had been called in by Mr Jay. She was not suggesting any broader investigation had been carried out than that.
2. She submitted that Mr Watson - the only publishee - well understood that Ms Hodges had not spoken to the plaintiffs. She published this publication on the basis of the information supplied by Mr Wedge in his 31 August 2016 email. It should be found (since it was referred to in Mr Wedge's email) that Mr Wedge was the author of the charge sheets (Attachments 3-5 to the Third Publication), just as the latter was involved in the creation of charge sheets weeks earlier in connection with the First Publication.
3. It was not malicious for her to decide to withhold or refrain from taking action until she had conducted a mini-investigation into the completeness or accuracy of the material that Mr Wedge provided to her.
4. Contrary to the plaintiffs' submission, there was a basis for stating that the relationship between his daughter and Mr Naethuys had ended amicably and by mutual agreement (despite Mr Jay's state of mind towards the latter). Her file note of her conversation with Mr Naethuys and the latter's witness statement provided a basis.
5. It was clear from Ms Hodges' file note of her conversation with Mr Naethuys on 10 June 2016 (which was annexed to Mr Watson's email to Ms Wakka and Mr Heffernan on 16 June 2016 and became Exhibit 7) that Mr Naethuys had informed her that on 6 June, Mr Peters had rung his step-father and told him that Mr Naethuys needed to resign from the Brigade.
6. Mr Naethuys said in his witness statement that he was stood down "whilst an investigation took place" (paragraph 8) although in that paragraph, Mr Naethuys did not actually state the date that he had been stood down. Exhibit 7 indicated that Ms Hodges knew that he had been stood down on 16 June 2016. Returning to the witness statement, Mr Naethuys stated (at paragraph 9) two things: (a) Mr Peters had contacted his employer; and (b) Mr Peters had contacted his parents (mother and step-father) advising them of the charges against him and tried to get them to have their son (or step-son) to resign from the brigade. Mr Richardson SC submitted that the natural reading of paragraph 9 was that both (a) and (b) occurred within the same time period. It was unnatural to read the matters in a disjunctive way, in terms of timing for when these events occurred. He alluded to Mr Brennan SC accepting in oral argument the accuracy of what Mr Naethuys stated at paragraph 9 [70] , although it must be acknowledged that Mr Brennan SC argued that nothing was said about timing. But Mr Richardson SC argued, in effect, that it was unfair to expect that Ms Hodges would recall the temporal sequence of what she was told 3 months before.
7. Returning to Mr Naethuys' statement, at paragraph 12, she was informed (at least by 31 August) that Mr Naethuys did not wish to resign from the Brigade.
8. She must have understood that this was a change of position on Mr Naethuys' part, having regard to the Ombudsman's letter of 14 July, and the email she received from Mr Jay on 5 August.
9. An internal PSU note had already recorded that Naethuys had 'retracted' his statement of intention to resign, and had conveyed his view that what had occurred was a private matter and had nothing to do with the Brigade [71] . Mr Richardson SC noted that no point was made by the plaintiffs that Ms Hodges was aware of this note.
10. Ultimately though, Ms Hodges submitted that at the heart of the Mr Jay's complaint was frustration at Ms Hodges' delayed response to his email of 5 August and passing on to Mr Watson the witness statement of Mr Naethuys, revealing Mr Naethuys' changed position. A delay in response to Mr Jay's email to her (and his follow up email) was not malicious even if she could have responded earlier than she did (when she did respond, she received a predictably abusive response from Mr Jay). By 31 August 2016, when she received the Naethuys' witness statement, Mr Peters knew of Naethuys' altered position. She received a package of information from Mr Wedge and she saw fit to pass it on for (independent) investigation. When she made the statements under the section heading 'Current Situation', Mr Watson would reasonably have understood that she had not conducted an investigation herself or that her opinions would form the last word on the matter.
11. A failure to make enquiry of Mr Peters (or Mr Jay) was incapable of establishing malice; especially where communications with him were not likely to be productive. She correctly perceived any inquiry she undertook would be the subject of complaint for bias.
12. Knowledge that she subsequently acquired in January 2017 was irrelevant to her state of mind at the date of publication. There was no evidentiary foundation for allegations that: she knew that Mr Peters reported Mr Naethuys to Mr Scott; she knew that the PSU sent its report to the NSW Ombudsman and she knew that on 29 July 2016, the PSU informed Messrs Jay and Peters that Mr Naethuys would be seeking a transfer to another Brigade.
13. There was no evidence to indicate that she knew that what was said in the Third Publication was false or otherwise disseminated the Third Publication to Mr Watson with an improper purpose.

Consideration

1. It will be obvious to the reader that of the voluminous number of representations that the plaintiffs alleged to be false, there was a disproportionately small number that were proved to be false.
2. In my view, it is unnecessary in this section to engage in contingent reasoning as to whether in the many representations that I have found were not conveyed would have been malicious if it be later found on appeal that they were conveyed. If I am wrong about my findings on falsity, and the findings are the subject of appeal, the matter could well be remitted to this Court by the Court of Appeal [72] . As I indicated during the hearing to the parties, in my view, it would be generally appropriate to view malice from the perspective of the three publications individually, each as a whole, (to the extent that reveal any false representations), rather than slicing and dicing questions of malice into individual representations within a single publication.
3. The parties agreed that the overriding question for determining whether false representations were malicious was whether the publishers were actuated by improper purpose in publishing them.
4. When I address the question of malice, certain recurring general points arise: 1. the rights of members to make complaints which trigger investigations into actions under Service Standard 1.1.2 Discipline; 2. the context in which complaints were made against Mr Jay and Mr Peters; 3. the identities of the publishers and the publishees; 4. the nature of the representation that has been found to be false, including whether the representation is one of fact, opinion or belief, 5. the nature of the falsity; 6. the significance of the defendants' election not to give evidence.

The processes for investigations into complaints of breach of discipline

1. I referred to the separate procedures for investigations into allegations and disciplinary hearings earlier in these reasons. An important aspect is that service members are given the right to complain about other service member's breach of discipline. 'Discipline', of course, is a very important quality for the effectiveness of the work the RFS does, in a similar way that discipline is critical to the effective functioning of the armed and naval services of this country. It is a serious thing to suggest, as seemed to be intimated by the plaintiffs, that the immediate recipients of complaints might circumvent the ordinary procedures for investigation and disciplinary action, when they are inclined to refer them on for someone's consideration, by engaging in ad hoc or mini-investigations to determine whether complaints brought to their attention are justified or substantiated; or by forming their own (unauthorised) conclusions as to the merits of the complaints.
2. It will be recalled that in their letter to Superintendent Hodges on 25 August 2016 the first, second and third defendants requested that the fourth defendant institute disciplinary action against the plaintiffs. That letter attached letters from various persons complaining, amongst other things, about bullying. Ms Hodges sent the Second and Third Publications to the Regional Manager, Mr Watson.
3. In sending these letters, I find that: 1. the complainants (who reported to the first, second and third Defendants, all Group Officers) were purporting to exercise their right to state their concerns to their supervisor, under SOP 1.1.42-1(a) [73] ; 2. the first, second and third defendants were purportedly acting in accordance with their rights to make allegations about breaches of discipline under Service Standard 1.1.2 paragraph 3.4 [74] ; 3. by sending the two separate Briefing Notes on 5 September 2016, Ms Hodges was exercising her right under cl 2.1(c) of SOP SS1.1.2-2 to refer the allegations to a more senior officer (in both cases Regional Officer Watson) [75] . (It may be inferred that it was Mr Watson who then passed on the allegation to the Director of Regional Services).
4. Although, for historical reasons, there was not necessarily any rigorous or technical chain of command, given the significant autonomy of the Brigades, for all intents and purposes, the first, second and third defendants passed on to their supervisor (Ms Hodges) the complaints that they received from other complainants (and it is also fair to say, their own complaints about Mr Jay) and she passed them up the line to a more senior officer. There was no criticism of the defendants to passing on these complaints to higher officers per se (although the plaintiffs raise a point as to whether they should have been investigated by them before passing them up the line).
5. A point of substantial weight, when assessing the state of mind of the first, second and third defendants was the email of Mr Pullen to the Commissioner on 15 December 2017 [76] upon which the plaintiffs placed significant emphasis. The defendants (and others) lent their name to that email and can be taken to have adopted what was stated in the email as reflecting their own position. This was the defendants (and others) engaging in a representative capacity; whatever their own feelings towards the plaintiffs. The circumstance that they did not necessarily owe any duty to pass on the complaints that they had received to Ms Hodges does derogate from my own view that they did not refer the matters to Ms Hodges out of personal ill-feeling but partly out of a sense of responsibility to those officers within the south sector who had corresponded with them after the 20 July 2016 meeting and partly their own belief that disciplinary processes (incorporating an investigation) should be deployed. This supports the inference that in passing on the reports, they acted in good faith.
6. The Director or Regional Services, Mr Henderson, instructed Mr Plumridge to conduct his investigation in accordance with Service Standard 1.1.2 Discipline (paragraph SOP SS1.1.2-2).
7. One of the revealing things is the subtle differences in the wording of the 'allegations' raised by Ms Hodges in the Second and Third Publications and the wording of the matters selected by Mr Heffernan in his letter of appointment to Mr Plumridge [77] . I will return to this later when dealing with an aspect of the case on causation or materiality. It suffices to say for the moment that the differences confirm what my impression was from a perusal of cl 2.1 of SOP SS1.1.2-2; namely, that Mr Heffernan independently exercised his own discretion as to whether and what to investigate.

Context of complaints

1. It appeared to be common ground, and in any event, I find that there was ill-feeling and even ill-will from all of the defendants towards Mr Jay. This had built up from a range of disputes that had developed in years leading up to the events of July and August 2016. All of this was manifestly apparent in the complaints made to the first, second and third defendants comprising part of the First Publication. As the authorities indicate, however, ill-will is insufficient to ground the serious finding of malice.
2. What was particularly notable however, was a little remarked upon observation by Ms Hodges in the Briefing Note to Mr Watson as part of the Second Publication, when she referred to a 'workshop' involving Mr Watson, the recipient of the publication, with local Senior Management and the plaintiffs on 9 February 2016: "This workshop was held to discuss many issues including the ongoing bullying and harassment of volunteers and staff within the Hawkesbury by Captain Jay, Deputy Captain .. Peters and Senior Deputy Captain Paul Crick … The outcome of the workshop was that all parties resolved to 'draw a line in the sand' and move forward harmoniously for the benefit of the District"
3. Since February 2016, as the defendants emphasised, there were many instances in email correspondence (Exhibit 3) where, to say the least, it was doubtful that Mr Jay had acted 'harmoniously for the benefit of the District' (as distinct from his serving the interests of his Brigade). It was arguable that Mr Jay's conduct could have been the subject of earlier complaint about a breach of discipline and bullying even before the impugned publications. But, until 5 September 2016, Ms Hodges had shown restraint.
4. Then, under the initial briefing note [78] , Ms Hodges submitted a range (four) of publications to Mr Watson, only two of which were the subject of this suit.
5. All of this background indicated, in my view, that the publications disseminated in August and early September 2016 did not raise complaints about Mr Jay that were isolated or out of the blue. Ms Hodges, in particular, had a particular interest in receiving complaints against Mr Jay. Mr Watson (who attended the workshop in February) also had a particular interest in receiving complaints. Further, the first, second and third defendants also had an interest in receiving the complaints from other members.
6. In a context where members and officers have the right to receive and make complaints, where such complaints are to be subjected to the exercise of discretion as to which complaints are to be investigated and what particular matters are to be the subject of investigation, with opportunities in the form of procedures (at the investigative level, or if the matter that proceeds that far, in a disciplinary hearing) for respondents to be exonerated, in my opinion a Court would be slow to infer that the fact of making complaints 'up the chain', as it were, is malicious even if the content of complaints may ultimately be determined to involve a misrepresentation, substantial or trivial, of some kind or another. For a Court to infer malice too readily might have a chilling effect upon the operation of discipline within the RFS if complainants face the threat of a lawsuit because they happen to misstate a provision in a service standard contravened, state an inaccuracy or express a half-truth or opinion on identified premises one or more of which may be wrong. I also note that these rights exist just as much for those who are the subject of disciplinary complaint. It seems to me that if say, a member of the RFS makes a trivial, frivolous or vexatious complaint against another member, which is dismissed by the investigator [79] , the course would be theoretically open to the person the subject of the complaint to make complaint against the original complainant; say for conduct contrary to the values in the Code of Conduct. [80]
7. Associated with the narrow class of publishees is the circumstance that there was no demonstrable grapevine effect associated with the publications. The plaintiffs gave no evidence that people outside the Rural Fire Service had any awareness of the allegations. Further, within the RFS, once a disciplinary complaint about a breach of discipline was made, there was clear policy to ensure that, at the investigation stage, the investigator would conduct the investigation with as much confidentiality as they could muster.
8. Indeed, a notable circumstance in this case was the confirmed resistance of the RFS generally to provide copies of the Investigator's Report to the plaintiffs from late 2017 to 2018. This was further evidence of a desire to minimise reputational harm to the plaintiffs and simply to preserve the integrity of the fair processes for investigations into complaints of breaches of discipline.
9. A related point is that many of the criticisms made about the representations involved a great deal of parsing of what was written in the publications as if the 'charge' sheets were prepared by professionally trained prosecutors. That standard was as unrealistic as it was unnecessary. The complainants, and the first, second and third defendants were all volunteers. When in her briefing notes, she cited certain provisions of Service Standards or the Code of Conduct as being breached, Mr Watson would be taken to have understood that the opinions which Ms Hodges expressed therein were not those of an internal RFS lawyer, or external lawyer; that they would be investigated, and investigated independently, by someone else and if the investigator did find that there was a case to answer, and if further, the appointing officer exercised a discretion to refer the matter to a disciplinary panel, then the defendants would, at any disciplinary hearing, receive all the particularity and precision that they sought as to what the contraventions were and how they were particularised.
10. The same thing can be said about what a reasonable person in Ms Hodges' position would have taken from the first, second and third creation of 'charge sheets' by the first, second and third defendants for the first publication and, for the third publication, what Ms Hodges would have taken from Mr Wedge's charge sheet. There was nothing to indicate any prescribed form for a charge sheet at the point when service members are contemplating bringing a complaint about discipline. There was no demonstrable training in service members for how they should frame a complaint.

Assessing whether malice attended the false representations

1. What I have said generally needs to be borne in mind in the assessment of malice. But because the false representations are so limited, it is not impractical to address the false representations individually; whilst keeping in mind that they have to be viewed in the context of the relevant publication as a whole. I will address the two representations against Mr Jay from the First and Second publications.

At the Group South meeting on 20 July 2016, Mr Jay bullied or intimidated other attendees by raising his voice in an aggressive manner

Graeme Jay was deliberately disruptive of a meeting of the RFS on 20 July 2016 because he ignored demands to speak in a calm manner

1. These two representations were opinions. As was noted in the section on Falsity, essentially the only reason why I determined that the representations were false was because the reason advanced for the opinion, or premise, in both instances, was not established.
2. But as to the former, it was not inconceivable that, with reference to the many complaints by attendees at the meeting, some other basis for the opinion that Mr Jay had bullied or intimidated other attendees at the meeting that, some may have validly been made against Mr Jay other than the sound of his voice. Putting aside the specific instance of the tabling of the Peters letter regarding the SMT representatives from South Sector, there were a range of opinions amongst the complainants that at least in a colloquial sense depicted Mr Jay as trying to 'get his own way' on a range of issues of importance to Glossodia Brigade. It matters not for this purpose, that those sympathetic to what Mr Jay was doing might regard his advocacy as merely only forthright or robust.
3. I do not find persuasive that at the time of the publication, the first, second or third defendants themselves had an accurate recollection of the sound of Mr Jay's voice at a meeting 5 weeks earlier, or lacked calmness or even from earlier in August where they had their first correspondence with Ms Hodges about the meeting. As to the latter, there were instances during a long meeting at which contentious issues arose affecting his Brigade's interests that Mr Jay was not in fact, calm. Further, I do not doubt the honesty of the first, second and third defendants' beliefs that Mr Jay was disruptive deliberately. In this, their opinions may have been wrong, but that is not to the point in terms of establishing that they knew their opinions were wrong.
4. I do not place any weight on the controversy which the plaintiffs emphasised, about the delayed provision to the investigator of the audio recording of the meeting. I do place particular weight on the investigator's opinion that the omission to provide the audio recording earlier was unintentional. As I have foreshadowed earlier when indicating my resistance to go behind the investigators reasons, I substantially am inclined to defer to that view: he was the one who dealt with all the players. Mr Petrikas provided an explanation to him which struck me as plausible: the usual practice of deletion of audio recordings did not occur in relation to the meeting of 20 July since the progress of drafting of minutes was delayed. It was quite plausible that in January 2017, Mr Petrikas would, as volunteer, forget that the ordinary practice of deletion had not occurred in the circumstances. His conduct showed that he was not fearful of what the audio recording might reveal, which might have been consistent with an absence of genuine belief about what Mr Jay said on certain matters and how (in terms of relative volume) he said it. There is no sensible basis to suggest Ms Hodges was aware of the audio recording at the time of the Second Publication: according to Mr Plumridge, it appeared that she was just as ignorant about the recording at that date as he was.
5. I am not persuaded that there was an absence of belief in the first, second or third defendants that Mr Jay had acted in a bullying way. Their belief was supported by the many complaints sent to them by other attendees at that meeting. In retrospect, it may be that the opinions of the complainants of what Mr Jay had done were (objectively) exaggerated or overstated. It is another thing to say that they were not honestly held. I also repeat my earlier reference to the processes for dealing with complaints about discipline even if a lawyer asked to opine might consider that the question whether, say, the health and safety of a service member being possibly endangered, is problematic. It was not the role of the first, second and third defendants to censor complaints or impede the rights of the complainants to make complaints against the plaintiffs out of what happened at the meeting. As to the second publication, it was also a significant matter for Ms Hodges to deal with a report by three Group Officers, purportedly based on complaints by many members. In my view, she responsibly - and fairly - took the view that she should not deal with the report herself.

Jay bullied and threatened Daniel Naethuys, a member of the Glossodia Brigade

1. As pointed out earlier, the falsity of the representation was the reference to Mr Jay threatening Mr Naethuys when that did not occur. As indicated, Ms Hodges conflated a threat, or threats, which Mr Peters had made to Mr Naethuys with Mr Jay's position.
2. This was a half-truth in this since there was an arguable basis for saying that Mr Jay did bully Mr Naethuys. It would have been preferable, to have singled out Mr Peters as the one who engaged in threatening behaviour rather than lumping Mr Jay in for that particular allegation. However, although it may have been somewhat clumsily summarised by Ms Hodges as an allegation, I am not persuaded that that this was malicious.

Peters disclosed the fact, and subject of, a confidential investigation be conducted by the PSU to Naethuys' parents

1. I have found that it was really Mr Wedge who made this representation. Although she did not in terms adopt it, Ms Hodges did republish it. That is not an obvious instance of malice.
2. I do not agree that that she published this representation knowing of its falsity or in circumstances where she was required to go behind the information provided to her by Mr Wedge.
3. The real sting is that Mr Peters did disclose to third parties certain matters adverse to Mr Naethuys to Mr Naethuys' parents. This was at a time when Mr Peters' professed position was that he would try to keep matters in hand confidentiality. He made an exception however, in deciding to contact Mr Naethuys' parents because he was determined to drive Mr Naethuys out of the Glossodia Brigade.
4. There was a deal of hypocrisy between Mr Peters' expressed position, in effect, between ostensibly wanting to put a lid on discussion about the Naethuys Affair on the one hand, and going behind Mr Naethuys back to contact his parents and putting pressure on them to encourage Mr Naethuys to resign before an investigation had actually commenced. At the time he contacted Mr Naethuys' parents, he well understood that in the absence of a resignation, an investigation was inevitable. Because of his experience, he would likely have known that such investigation was to be conducted with as much confidentiality as possible.

Significance of defendants' election not to give evidence

1. It will be apparent that the findings I have arrived at in relation to the few false representations that I have found, are, in my view palpably clear that the 'rule' in Jones v Dunkel was not engaged and even if it was, it could not plug gaps in Mr Jay's case to prove. I am mindful that the defendants had the benefit of a presumption of honesty; and there is a general lack of substance in the plaintiffs' submissions designed to impugn that honesty; as distinct from the question of the reasonableness (or otherwise) of their conduct. Further, I am not persuaded that, objectively, the conduct of the defendants, respectively, was so manifestly unreasonable as to engage the Trobridge inference relied upon.
2. I am not persuaded that, for the high standard of proof required, in all the circumstances, it was malice which actuated the decisions of the defendants to make any of the publications.
3. It follows that, generally, the plaintiffs' case also fail on malice.

ACTUAL DAMAGE

1. The pleading of actual damage was set out in paragraphs 15 and 16 of the Amended Statement of Claim, but in his Opening, Senior Counsel for the plaintiffs abandoned one of the particulars (concerning the first plaintiff) cited therein. Ultimately, the plaintiffs' case on actual damage was confined to: 1. (for Mr Jay) Legal fees totalling $8,116.90; 2. (for Mr Peters) Legal fees totalling $25,193.30.
2. In a request for further and better particulars, the plaintiffs were asked (requests 3(d) and 5(d)) how the incurring of legal fees was a natural and probable consequence of the (allegedly) false and malicious publications. The plaintiffs answer was: "it was the natural and probable result of the statements made by the first second and third defendants that the New South Wales RFS would undertake investigation into the conduct of the first (and second) plaintiff(s) and that the first (and second) plaintiff(s) would seek legal representation in order to defend himself (themselves) against the false allegations made by the defendants."

The appointment of the investigator

1. On 13 December 2016, Mr Plumridge received a letter from the Director Regional Services of the RFS, Jason Heffernan, to investigate allegations against Mr Jay and Mr Peters. They might be regarded as what, in other contexts, would be considered the 'terms of reference'. The letter did, however, feature:

• reference to certain standards by which he was appointed to investigate the allegations (Service Standards 1.1.2, 1.1.7 and 1.1.42);
• specification of the allegations individually against Mr Jay and Mr Peters;
• a request to conduct the investigation by interviewing relevant persons, including but not limited to Messrs Jay and Peter, and to review relevant documentation; but inviting the investigator to not confine himself to those sources of information;
• a request that the investigator "take into account applicable RFS service standards, relevant policies and the associated principles of natural justice and procedural fairness";
• a request as to the content of the report; and
• emphasis upon the completion of the investigation expeditiously (preferably, by 27 January 2017).

Principles

1. Actual damage is the gist of this cause of action. Actual harm is not constituted by injury to reputation or feelings: Palmer Bruyn at [136].
2. The actual damage that eventuated must have been intended by the defendant or be the natural and probable consequence of the defendant's act: Palmer Bruyn: per Gummow J at [73]-[75] (Gleeson CJ agreeing at [13]-[14]). 'Intention' can not only be established by direct evidence but by other evidence enabling the court to draw an inference. It is unnecessary to prove that the loss or damage was reasonably foreseeable: Palmer Bruyn at [78]-[79].
3. In Ratcliffe v Evans [1892] 2 QB 524, the English Court of Appeal at 533 determined that: ".. the character of the acts themselves which produced the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved."
4. It is not any kind of loss or damage that will suffice to make out the element of actual damage. Spencer Bower states that the law "does not recognise 'moral and intellectual' damage as constituting damage which is the cause of action." [81]

The plaintiffs' submissions

1. The plaintiffs (finally) submitted that disciplinary action was an intended outcome of the impugned Publications. But for that to occur, it had to be preceded by an investigation into allegations. The investigator asserted that the defendants had caused the investigation. A natural consequence of such an investigation would be that respondents to it, the plaintiffs, would seek legal advice in response.

The defendants' submissions

1. The defendants argued that money spent on an investigation did not satisfy the requirement of actual damage. The incurring of legal costs in an investigation of allegations were not a natural and probable consequence of the publication. That requirement was only satisfied by demonstrable losses associated with goods or business. The legal expenses had nothing to do with the financial interests which the tort was intended to protect, which could include remuneration. They were incurred, rather, in an attempt to protect or preserve their reputation.

Causation

1. The circumstance that actual damage is sustained is necessary but insufficient. As is indicated in Palmer-Bruyn, it is necessary for the plaintiffs to establish a causal connection between the maliciously false statements and the actual damage which eventuated.
2. As a first point, before one even gets to the question of whether the defendant publishers intended the harm that resulted or the harm that resulted was the natural or probable consequence of the malicious falsehood, it remains necessary for the plaintiffs to establish causation.
3. In the Court of Appeal in Palmer-Bruyn [82] , Heydon JA observed (at [25]-[27]): "The references to the natural and probable result and to intention are references to remoteness of damage limitations, not to causation issues. Even if there were an intention to cause damage, there would have to be proof of causation of loss in fact".
4. This point was considered in the High Court. Gleeson CJ (at [14]) noted that it is "the falsehood which must cause the harm; harm of a kind which is intended, or, of a kind which is the natural and probable consequence of the making of the false statements." Callinan J cited the causation approach of Heydon JA (at [191]) before applying it (at [207]). Kirby J also referred (at [118]) to the 'chain of causation'. Gummow J also referred to the requirement for causation (at [52] - [53] and [95] - [96]). In my view, the principle set out by Heydon JA, distinguishing causation from the issues of remoteness, was accepted [83] . I would also add that where Heydon JA spoke of causation 'in fact' his Honour should be interpreted as essentially importing what is described (in another context) in s 5D(1)(a) of the Civil Liability Act 2002 (NSW) as "factual causation" which, as generally interpreted [84] , means the 'but for' test. As experience shows [85] , factual causation may be difficult to establish if the inquiry into causation is affected by what a third party would have done if the relevant misconduct - here the false feature(s) of representations - had not occurred. The plaintiffs did not call Mr Heffernan. Although no Jones v Dunkel inference could be drawn from this circumstance against the plaintiffs, the fact remains that there is a large problem for the Court in determining (on the probabilities) what effect on Mr Heffernan any of the (few) falsehoods would have had on whether he would decide to investigate and, if so what he decided to have investigated. The plaintiffs bear the onus of proof on causation.

Whether the false features of the representations were material to the decision to investigate or its scope

1. In the course of closing oral argument, Mr Brennan SC accepted [86] that in a situation where the Court might accept the partial truth of a representation, or more accurately one of multiple premises for a representation, but still find that a false representation was made, the plaintiffs may fail unless they can establish that Mr Heffernan would not have commissioned the investigation anyway.
2. I would go further than that however. It is not just enough for the plaintiffs to establish that any of the representations made by the defendants contributed to the decision to conduct an investigation. They must demonstrate that the false representations were material to the decision to investigate and the scope of that investigation. It is relevant to this question, also, that on 5 September Ms Hodges had conveyed to Mr Watson at least 4 separate complaints, out of which Mr Heffernan ultimately exercised his discretion to have two investigated.

The false representations in the First and Second Publications

1. In my opinion, the false aspects of the representations against Mr Jay arising out of the First and Second Publications were immaterial. The best evidence for this was Mr Heffernan's letter of appointment to Mr Plumridge and allegation (a) in that letter. Mr Heffernan did not ask Mr Plumridge to investigate whether Mr Jay bullied or intimidated other attendees because he raised his voice or because by reason of his failure to act calmly, he was deliberately disruptive. Instead, Mr Heffernan asked Mr Plumridge to generally consider whether Mr Jay had bullied and behaved in an inappropriate manner and disrespectfully and then only because of two (non-exhaustive) "examples". Mr Jay did not demonstrate that when conducting an inquiry into allegation (a) in that letter, in any way, there would have been any difference in what Mr Plumridge had done depending on whether it was represented that Mr Jay raised his voice (by how much?) or was deliberately disruptive as opposed to effectively disruptive. It could not be said, in particular, that but for the false feature(s) of the representations against Mr Jay in the First and Second Publications, Mr Plumridge would have completely passed over consideration of the representations.

False representations in the Third Publication

1. To repeat, the false representations in the Third Publication were as follows: 1. Jay bullied and threatened Daniel Naethuys, a member of the Glossodia Brigade; and 2. Peters disclosed the fact, and subject of, a confidential investigation be conducted by the PSU to Naethuys' parents.
2. I am not persuaded that the false part of the first of these representations (the absence of proof of any threat by Mr Jay to Mr Naethuys) had such a material influence on Mr Heffernan as to have made any difference. Given the offices held by both men in the Brigade, it was all but inevitable that an investigation would occur exploring the dealings between the two men after the Naethuys affair was revealed and when complaint was made against Naethuys, followed by what might be described as a counter-complaint by Naethuys. The precise details in which Ms Hodges crafted the allegations for Mr Watson's attention mattered less than the substance of the allegations that were ripe for investigation. Mr Plumridge had a broad term of reference to consider the nature of the relationship between the two men, which would inevitably have drilled down (without limitation) into all dealings between Mr Jay and Mr Naethuys after the revelation of the affair. The falsity (absence of any particular threat) underlying the representations made no material difference to the existence and scope of the investigation.
3. As to the second representation, the fact was that Mr Peters did contact Naethuys' parents unnecessarily, at a time when he was professing an intention to try to put a lid on the Affair. As indicated earlier, I am not persuaded that Mr Heffernan would not have been interested, from the point of view of investigating bullying by Mr Peters towards Mr Naethuys, in the circumstances of his contacting Mr Naethuys' parents, including consideration of Mr Peters motive for doing so. In other words, whether or not the contact occurred during the course of investigation was immaterial. Thus, the false feature of this representation was immaterial.
4. It follows from what I have determined that the plaintiffs have not established causation.
5. If, again, I am wrong, I will now consider issues of remoteness, in accordance with the two alternatives indicated by Palmer-Bruyn, being whether the actual damage was 'intended' by the defendants or was the 'natural and probable' consequence of their actions.

The plaintiffs' shift away from their particulars

1. By their particulars, the plaintiffs' rolled up a compound allegation: not only did they say in their particulars that an investigation was the natural and probable result of the statements, but they also asserted that the natural and probable result of the statements was that the plaintiffs would seek legal representation and accordingly incur the expenses of legal representation in order to defend themselves against the false allegations at the investigation into the allegations.
2. But in the hearing, the plaintiffs' departed from this statement of particulars to contend that what the defendants intended was that disciplinary action would occur. That expression is ambiguous: it could mean the process of disciplinary action as (formally) set out in the SOP. Or it could mean the substantive result of the process, being the imposition of disciplinary sanctions. Although not altogether clear, I understood the plaintiffs to advocate for the latter, more nuanced approach, as demonstrated by emphasis upon the 15 December 2017 email from Mr Pullen. The plaintiffs submitted from that email that the defendants treated the process as 'failing' because disciplinary sanctions were not imposed. But that evidence is not entirely unequivocal either: at least on the face of Mr Pullen's email, it might suggest that what he and the other RFS members were most disappointed about was at the level of process - there had not even been a hearing of the disciplinary action. Perhaps the clearest expression by the plaintiffs as to what they say the defendants object was, was detailed in their written submissions on exemplary damages, where one of the matters asserted was a desire in the defendants to 'strip' the plaintiffs' of their offices - a clear indication that what they were really arguing was that the defendants' intended that serious disciplinary sanctions would be visited upon the plaintiffs from their publications.

No intention to cause the damage imputed to the defendants

1. If, as I consider the plaintiffs' true complaint is that the defendants intended to subject them to disciplinary sanctions, but the actual damage suffered was legal expenses incurred in assisting them to respond to an investigation, where disciplinary action was never taken nor disciplinary sanctions ever imposed, there is what Heydon JA described in the Palmer Bruyn litigation [87] as a 'disconformity' between the malicious falsehoods and the actual damage.
2. However this ambiguity is resolved, no disciplinary action ever occurred in either the (procedural) sense of a hearing before the disciplinary panel or in the (substantive) sense of the imposition of disciplinary sanctions. No legal expenses were ever incurred in the course of representations of the plaintiffs in any disciplinary action.
3. Neither of these suggested alternative consequences that the plaintiffs alleged that the defendants intended by their statements came to pass. There is nothing to suggest that any of defendants intended that by their representations, the plaintiffs, would receive legal advice and representation for the investigation through which the plaintiffs would incur legal expenses. There is nothing in the documentary record to show that the defendants even anticipated that the plaintiffs could obtain legal representation in an investigation. I expect it would have been a surprise to the defendants that the plaintiffs would even seek representation or assistance from others at the Plumridge investigation which of itself could give rise to sanctions as distinct from laying a platform for another procedure. I am unable to impute to the defendants such intention.
4. It follows that the plaintiffs cannot rely upon the defendants' intention (actual or inferred) to make out the scope of liability between malicious falsehoods and actual damage as they have pleaded it or in the way that they (ultimately) ran their case.

Was the incurring of legal expenses in an investigation a natural and probable consequence of malicious falsehoods?

1. Is the result any different if viewed from the perspective of whether legal expenses incurred at an investigation was the natural and probable result of the defendants asking for 'disciplinary action' to take place? It may be accepted that an investigation into allegations is a necessary precursor to disciplinary action. But is the incurring of legal expenses at an investigation simpliciter the natural and probable consequence of the allegations?

The standard for assessing whether harm is a natural and probable consequence of malicious falsehoods

1. On the question of whether such expenses were the natural and probable consequences of their representations there is a question as to what the 'natural or probable consequences' of wrongdoer's false representations actually means. Is it an objective question, or is it something determined from the perspective of the wrongdoer? There are indications that point to the latter. As Gummow J observed in Palmer Bruyn (at [73] and [80]), what is at work here is a presumption (or an intention that the Court imputes to a defendant) that a defendant intends the 'natural consequences' of the defendant's acts or, to put the matter another way, that the wrongful representations are 'calculated, in the ordinary course of things to produce' the damage that is suffered [88] . Here the calculation is that of the wrongdoer. Another reference to 'calculated' representations to cause harm are contained in the judgment of Callinan J (at [192]), although the matter was left open by Hayne J (at [154]). 'Calculation' was also referred to by Professor Fleming [89] . However, these statements were addressed to the issue of intention; not on how the Court should determine natural and probable consequences.
2. I consider that it is simply a question of objective assessment by the Court. The parties agreed on this, but there was still a difference in their approach. The defendants submitted that whether damage suffered was the natural and probable consequence of malicious falsehoods was to be viewed from the perspective of the reasonable publisher. The plaintiffs' submitted that the assessment was purely for the Court, without viewing it from the perspective of the 'victim' or publisher. The plaintiffs drew attention to Gummow J's endorsement of what the commentator Pollock had written on the issue at [73] of his Honour's judgment. However, in my opinion, what Gummow J said at [73] (and later [81]) was with reference as to how the defendants' intention could be inferred; not how (natural and probable consequences of the falsehoods) is to be worked out. Even more clearly, at [78], Gummow J rejected the notion that a person who maliciously publishes a falsehood should escape liability on the basis that a reasonable person (in the publisher's position) would not have foreseen the damage. I accept the plaintiffs' submission in this respect.
3. Although neither Senior Counsel addressed the point, care needs to be taken in not allowing hindsight bias to intrude into the question. More particularly the question is framed by reference to the position as it appeared at the dates of the Publications.
4. At [89], Gummow J held that relevant factors to considering whether a court may conclude that a given result was the natural and probable result of malicious falsehood included the nature of the false statement and the circumstances in which it was published.
5. At [118], Kirby J said that what the natural and probable consequence of the original publication would depend on such considerations as: "(1) the content of the original publication and whether it contained materials that are sensational, salacious, outrageous, entertaining, scandalous or similarly apt to repetition; (2) the nature and size of the audience to whom the original publication was made, any duties of, or interests in, preserving confidentiality of its content, the varying attitudes to the plaintiff amongst members of that audience and their inclination to protect or to harm the plaintiff by repetition of the falsehood; (3) the size and character of the general community within which the publication was originally made; (4) the access of the original recipients to the modern media of communications, such as telephones, photocopiers, telefacsimile, email and the like by which repetition may easily occur; and (5) the relevant environment of the news media and whether reportage of official or unofficial news of the original publication is likely to occur and, if so, whether such reportage is likely to be fair and accurate or inadequate, unfair and sensational"
6. In the circumstances, not many of these considerations are pertinent to the inquiry in this case; although in my view they underscore the point made earlier that Kirby J was focussed on whether the harm was apt to affect the plaintiff's economic interests.
7. Factual questions are whether, the natural or probable (as distinct from possible) result of notification of a decision taken to conduct an investigation would be that the plaintiffs would seek legal assistance; whether the plaintiffs had any right to legal representation at an investigation; whether given their past history (including, in Mr Jay's case, prior experience of the processes of investigations of allegations under the Service Standard) they would probably seek legal assistance.

The differences in procedure between investigations and disciplinary action

1. This matter directs focus upon the 'nature' of investigations and their effects, their relationship to the procedures for disciplinary action; and in particular, the difference in the procedures for entitlements to legal representation.
2. By clauses 2.6 and 2.7 of SOP SS1.1.2-2 to Service Standard 1.1.2, an investigator has two basic choices: to report (with reasons) to the appointing officer that a respondent does have a case to answer (wholly or partly) or does not have a case to answer. The expression 'case to answer' is a concept analogous to the task that magistrates in this state perform when conducting committal hearings when deciding whether there is a reasonable prospect of a properly instructed jury convicting a person.
3. By cl 2.9 (a) and (c), the appointing officer then has a choice of what to do, depending on their belief as to whether the matter should be (wholly or partly) dealt with as a breach of discipline or not.
4. By a combination of cl 2.9(b) of SOP SS 1.1.2-2 and cll 2.1 - 2.4 of SOP SS 1.1.2-3, it is apparent that if the matter is referred to a disciplinary panel, the prosecutor (whether that is the investigator or not) and the respondent are not limited only to the evidentiary record that was before the Investigator during the investigation into allegations.
5. Theoretically, some analogy may be drawn between a respondent to an investigation to the position of an accused person in a committal hearing. The respondent can keep their 'powder dry' at the investigation stage and adduce such evidence and make such submissions before any disciplinary panel; and in such way, effectively put the investigator (or whoever the 'prosecutor' is to be) off guard. In other words, there may be tactical benefit in saying as little as possible during an investigation (whilst falling short of any manifest lack of co-operation). Respondents also had the option to wait and see what the appointing officer actually did after receiving an investigator's report, noting their discretion to do so under cl 2.9 of SOP SS1.1.2-2. It was open for the appointing officer to not make any referral, even if the investigator found that there was a case to answer.
6. Or the respondents could do what these plaintiffs did and try to head off the prospect of disciplinary action at the pass by vigorously representing themselves at the investigation. In such circumstances, that option would be the product of the exercise of choice by respondents. It does not say anything in itself about whether the content of complaints about a breach of discipline would naturally or probably generate the result that the respondents to investigation into disciplinary complaints would seek representation.

Questionable right to receive legal representation at an investigation

1. In my view, an unstated assumption or premise to the plaintiffs' case is that the plaintiffs had a right or a legitimate expectation (generated, perhaps by policy or previous practices about such investigations) that they would receive, legal representation at an investigation into the allegations.
2. This matter strikes me as having some significance: if the plaintiffs had no such right or legitimate expectation to receive legal representation at the stage of an investigation into allegations, it is more difficult to conclude that the natural (or probable) result of the maliciously false representations was that the plaintiffs would incur legal expenses in an ensuing investigation into allegations that did not, by themselves affect their legal rights. The investigator had no power to discipline respondents to an investigation themselves.
3. The assumption or premise is in my opinion doubtful. An important difference between the two procedures is that whereas for disciplinary hearings, the disciplinary panel must allow a respondent to be represented or assisted (SOP 1.1.2-3 paragraph 2.1(b)), no express right is conferred for the respondent to an investigation to receive legal representation.
4. Neither of the letters notifying the plaintiffs of the investigation on 13 December 2016 indicated that they had an entitlement to receive legal representation. No such entitlement existed in SOP SS1.1.2-2 (unlike the right to representation in a hearing before the disciplinary panel, identified in SOP SS1.1.2-3). In the letter of instruction appointing Mr Plumridge, Mr Heffernan advised him to take into account applicable RFS service standards and relevant policies, and associated principle of natural justice and procedural fairness. As indicated the service standard did not expressly provide for a right to legal representations in an investigation into allegations. Mr Plumridge's letter of appointment, by nominating the due date for the report, indicated that it was supposed to be a short investigation.
5. The document titled 'Conducting a Volunteer Discipline Investigation: Guidance on Investigations and Preparing Investigation Reports' [90] also omitted reference to any right of legal representation at an investigation into allegations under the auspices of Service Standard 1.1.2.
6. Mr Plumridge plainly accepted Mr Conolly's representation of the plaintiffs. It appears that what occurred was that Mr Jay, at least impliedly asserted that he had an entitlement to legal representation and Mr Plumridge acquiesced to that assertion. It is another thing to suggest that he was bound to do so. There was nothing in Mr Plumridge's appointment to suggest that either of the plaintiffs had any right, under the Rural Fires Act, the Rural Fires Regulation 2013 or under the general law, to be legally represented in the investigation into allegations which Mr Plumridge carried out. Arguably, at its highest, Mr Plumridge had a discretion as to whether to permit the legal representation [91] . In the events that occurred, he exercised this discretion in the plaintiffs' favour.
7. If the plaintiffs had no right or legitimate expectation to have legal representation throughout the course of investigation, and that whether they could obtain it depended on the attitude of the investigator (to exercise its discretion), that is a consideration, in my view, which makes it less natural or probable that they would decide to engage lawyers to act for them on or in connection with the investigation since the 'loss' they rely upon to prove the element of actual damage was affected by the actions of a third party (the investigator) and whether the investigator was bound to permit representation.
8. It strikes me as inherently more "natural" that legal representation would be deployed and paid for at the stage of a disciplinary hearing than the investigation stage. It might be said, in answer to this, that irrespective of whether they could obtain effective legal representation during the course of the investigation, such as the preparation of witness statements and making of submissions, they may nonetheless seek legal advice prior to or even during the investigation.
9. No evidence was adduced by the plaintiffs, such as statistics, to show the incidence of legal representation at disciplinary investigations under SOP SS1.1.2-2 that might indicate that the 'natural' consequence of a complaint about a breach of discipline was the respondent to a complaint paying a lawyer for representation at an investigation.

The personalities of Mr Jay and Mr Peters

1. However, this brings to bear another consideration, involving the history and personality of Mr Jay, in particular. He apparently had a history of at least one prior investigation (leading to the institution of disciplinary action) and therefore acquaintance with the procedure. He did not indicate whether he received legal representation in that investigation. Further, his personality, temperament and background struck me as a person who was very prepared to stand up for himself and advocate for himself in his own cause, and that of the Brigade. He was prepared to ruffle feathers and did not strike me as being naturally cowed by conflict with superiors. As the defendants pointed out, in his evidence, Mr Jay appeared very willing, when necessary, to engage in conflict. He also evinced a certain pride in acting as a champion of Glossodia Brigade; apparently enjoying the support at the Brigade level and taking kudos in confronting the South Group and/or District. Many of his supporters, I believe, would have been surprised that he would resort to the assistance of a lawyer to fight a dispute about discipline where the subject matter of dispute concerned - indirectly - dealings between Glossodia Brigade, the South Sector and the District.
2. A matter in Mr Jay's favour (and also Mr Peters) was that both men were in jobs or business and the investigation would, prospectively, be likely to be draining and time-consuming if seriously addressed by them. It is also the case that the content of the complaints - and the representations conveyed by them - were very serious. Conceivably it made sense that they could obtain assistance from a lawyer. But still, an offsetting matter was that Mr Jay took any contentious correspondence very seriously (and I do not suggest that in any way as a criticism) and, as indicated, ostensibly appeared quite prepared to spend much time himself engaging in protracted written disputes, as indicated by Exhibit 3.
3. Although less history was known of Mr Peters, as indicated in my credit findings, I formed the strong impression that he was very closely linked to Mr Jay and I have found that in the events considered in this case, together they conspired and schemed to act in concert. In this particular respect, I do not say this in a pejorative sense (even where I did in the context of other elements of this tort), other than for the purpose of thinking that, prospectively, it was likely that Mr Peters' attitude as to the desirability or need for legal representation was likely to be affected by Mr Jay's attitude.
4. For both plaintiffs, but especially Mr Jay, another reason rendering it less likely that they would seek legal representation for the investigation was the notification (on or about 13 December 2016) [92] that it would be carried out independently, by Mr Plumridge. This should have alleviated any apprehension in Mr Jay that he could not receive a fair inquiry because of actual bias.

Mr Jay's evidence after the harm is suffered

1. Mr Jay's explanation, that he and Mr Peters had particular reasons for seeking out and paying for legal representation in December 2016 in the investigation has to be treated with caution. It is self-serving in nature and not only given retrospectively after the harm he complains of occurred, but also in a context where I have already indicated my adverse view of his credibility - especially his acute sense of being attuned to the important issues in the case.
2. He did not give documented evidence, however, of earlier investigations prior to August 2016 which would enable the Court to form a view as to how likely he would seek out legal representation in December 2016.
3. Mr Peters gave no evidence about previous experience in seeking legal representation at RFS investigations into allegations of breach of discipline.
4. The plaintiffs bear the onus of proof on all the elements, including remoteness. Through their Counsel's written submissions, they offered very little by way of argument as to why the Court should find that the natural and probable consequence of the very limited number of false representations (assuming they were malicious and assuming the causation test was satisfied) was their incurring legal expenses.
5. On balance, I am not persuaded that the plaintiffs have proved that it was a natural and probable consequence of the defendants' publications of malicious falsehoods that they would incur legal expenses in the course of Mr Plumridge's investigation. If I am wrong in this conclusion, I will now consider the defendants' point that the actual damage must be associated with the 'goods or business', being the economic interest of the plaintiff which the tort serves the purpose of protecting.

Is there a limitation on the nature of the actual damage?

1. The expression 'actual damage' for the purpose of this tort means pecuniary damage or damage which is capable of being estimated in money. [93]
2. The defendants submitted that for a tort whose gist is the suffering of actual harm, consistently with what I earlier identified as the interests protected by this tort, the actual harm must be economic in nature. More than this, they say, it must be economic harm that relates to or is connected with the economic interest which the tort protects.
3. It is easy to see, for example, in a case where a trade competitor to a plaintiff disparages the latter's goods, that a loss of custom is the natural and probable result of the malicious falsehood (even if intention cannot be proved). The loss of custom is (to the plaintiff) involuntary economic harm caused by the trade competitor. But suppose that in an attempt to staunch the loss of custom, the plaintiff embarks on a marketing campaign amongst its actual or potential customer base and naturally incurs expenditure in doing so; which is a voluntary detriment or disadvantage absorbed by the plaintiff. On one view, it is not obvious that marketing expenses were the natural and probable consequence of the malicious falsehoods; even if there would be little doubt that, assuming the element of actual damage was established, the marketing expenses would be a form of pecuniary loss recoverable in damages. It might be argued that the marketing expenses are not the natural and probable consequence flowing from the falsehood since the circumstance that they are incurred involved the voluntary agency of the plaintiff. On the other hand, the same marketing expenses - undoubtedly a form of pecuniary damage - arose out of the same business operations which the trade competitor's made malicious falsehoods about. In such a way, there is a good argument to say that the natural and probable consequence of falsehoods directed at the business was expenditure incurred in the ordinary operation of that business.
4. Whilst there is force in the point, I do not accept the defendants' submissions in this respect. Once the plaintiffs have established that maliciously false statements have been made affecting a plaintiff's economic interests, and further, that once causation and one or both of the alternative tests for remoteness have been satisfied, there is no justification for imposing another restriction about the nature of the actual damage or consider in what way the harm related to the claimant's economic interest. It is enough that (assuming other elements are satisfied), pecuniary damage has occurred.

Did the plaintiffs actually incur damage as a matter of fact?

1. If I am wrong in my findings that the plaintiffs have not proven causation and remoteness, it is now appropriate to resolve the contest on whether the plaintiffs did in fact incur the actual damage alleged. The defendants submit that they did not.

The plaintiffs retain A R Conolly

1. Ms Elizabeth Ramsay swore an affidavit (24 November 2022) which was read (subject to certain objections) and gave some oral evidence. Ms Ramsay is the managing partner of the law firm, A R Conolly, representing both plaintiffs.
2. Ms Ramsay said that her firm entered into verbal retainers with the plaintiffs in February 2017. This arose through teleconferences, first with Mr Peters (separately) and subsequently in a joint teleconference with Mr Peters and Mr Jay. The substance of the arrangement, as she recalled (the matter being not reduced to a file note) was that the firm would act for both plaintiffs, with the plaintiffs being jointly and severally liable for fees. Ms Ramsay explained that notwithstanding the passage of time, she retained recollection of the content of these discussions through the complaints being so "unusual" and Mr Peters and Mr Jay being so "distressed".
3. Ms Ramsay also set out, without challenge, a summary of the nature of the work which her firm performed which she described as being "in relation to the investigation initiated by the Rural Fire Service (into the plaintiffs) as notified to them by letters dated 13 December 2016".

The issue to the plaintiffs and payment of invoices issued by A R Conolly

1. The plaintiff's firm, A R Conolly issued an invoice to Mr Jay (inv 17827) dated 22 August 2017, in the sum of $4,965.40. received by Mr Jay. This invoice covered services performed in the period from 14 February 2017 to 22 August 2017. This invoice was paid on 21 September 2017. It was paid by Western Freight Management.
2. On 28 August 2017, A R Conolly issued an invoice to Mr Peters (inv 17826) in the sum of $19,923.20 (incl GST). It covered the period from 14 February 2017 to 28 August 2017. This invoice was paid on 25 September 2017. It was paid by Western Freight Management.
3. On 5 February 2019, A R Conolly issued invoice (17992) in the sum of $3,151.50 to Mr Jay. This covered the period from 11 September 2017 to 14 February 2018. This invoice has not been paid.
4. On 5 February 2019, A R Conolly issued invoice (17993) in the sum of $5,270.10 to Mr Peters. The invoice identified that the work was performed in the period from 30 August 2017 to 8 June 2018. This invoice had been paid on 8 February 2019, by an electronic transfer by Western Freight Management.

Western Freight Management

1. Mr Ian Benson is a solicitor employed by A R Conolly. Mr Benson affirmed an affidavit which relevantly attached ASIC company searches for two companies: 1. Western Freight Management Pty Ltd; and 2. WFM Holdings Pty Ltd.
2. The searches relevantly indicated that:

• Mr Peters was the secretary and sole director of Western Freight Management Pty Ltd;
• the share capital of Western Freight Management Pty Ltd was legally and beneficially owned by WFM Holdings Pty Ltd;
• Mr Peters was also the secretary and sole director of WFM Holdings Pty Ltd;
• the share capital of WFM Holdings was legally and beneficially evenly (50%) held by Mr Peters and his wife.

1. Another document was annexed to Mr Benson's affidavit that was read (T 281.43) (as part of Annexure C, p 38), which appeared to be a ledger of Western Freight Management PL with a subheading '01-A-Legal Exp-Directors'. The parties agreed that this was a business record of Western Freight Management Pty Ltd [94] . This showed that the first invoice was paid by that entity on 28 August 2017 and the second was paid on 5 February 2019.

Plaintiffs' submissions

1. The plaintiffs submitted that the last page to Mr Benson's affidavit showed other payments of legal expenses for directors; with the legal expenses for directors' account returned to a zero balance every 30 June. They submitted that the ledger could only be accurate if the 'netting off' transaction each June was a transaction which allocated the legal expenses paid by Western Freight Management on behalf of its directors to the directors.
2. Mr Benson's affidavit showed that Mr Peters was the only director of Western Freight Management and that he and his wife were the beneficial owners of the equity in that company.
3. The plaintiffs submitted that it should be inferred in the circumstances that each of the invoices shown as having been paid have been paid Mr Peters; either by way of an increase in directors' loan with Western Freight Management or by amounts being deducted by dividends otherwise to be paid to him.
4. It is immaterial that the third invoice remained unpaid. As to Mr Jay's position, although he had not paid anything, he was still the subject of a liability to pay the third invoice.

The defendants' submissions

1. The defendants appeared to accept that three of the four invoices had been paid, by Western Freight Management. But they submitted that there was no evidence of any personal indebtedness of the plaintiffs, or even any understanding or belief as to personal indebtedness.
2. As to Mr Jay's position, on invoice 17827, another entity had paid and there was no evidence of his having an obligation to repay. As to the invoice 17992, that had not been paid in the intervening period of 3 years and 9 months. Ms Ramsay gave no evidence of attempts by her firm to chase Mr Jay for payment of the invoice.
3. As to Mr Peters' position, as indicated, the defendants accepted that Western Freight Management had paid invoices 17826 and 17993. But there was no evidence that these were treated as anything other than as a company expense. Mr Peters naturally gave evidence in the trial, but said nothing about the treatment by the company about the payment.
4. The Court should reject the plaintiffs' invitation to infer how the payment was treated by Western Freight Management when Mr Peters, director and secretary and a shareholder refrained from giving evidence about it.

Plaintiffs' submissions in reply

1. Despite not saying anything about the subject in his oral submissions in chief, Mr Brennan SC submitted in reply that the Court should apply a presumption of regularity: that Western Freight Management was obliged to keep records and for payments in the ledger to be netted to zero at the end of the financial year. This was a family company with two ultimate shareholders. In effect, there were no better documents than the last page to Mr Benson's affidavit, the journal ledger to establish either the treatment of the payments as a director's loan or as a reduced dividend.
2. As to Mr Jay, he submitted that the circumstance that one invoice was unpaid did not mean that he had not suffered actual harm. He still had a liability to pay (even if of a 'non-current' nature) and this was sufficient.

Consideration

1. Because the plaintiffs' claims fail for multiple other reasons, I will address the point of whether actual damage was suffered briefly.
2. For Mr Jay, I am satisfied that he owes a debt to A R Connolly and, subject to other matters raised, this is capable of satisfying the requirement of actual damage. In this regard, the (6 year) limitation period on an action for the debt has not expired. It was not put to Ms Ramsay that A R Connolly had forgiven the debt, generally, or contingently [95] . Indeed, she had deposed (paragraph 7) that it remained outstanding. He has therefore suffered actual damage. Given that both plaintiffs were jointly and severally liable for the debt, it follows that Mr Peters has also suffered actual damage.
3. This makes it unnecessary to consider the question whether, by reason of payment of the three other invoices by companies associated with him, Western Freight Management and W M Holdings, that means that Mr Peters himself has suffered actual damage. If it was necessary to decide, I would not have accepted the inference that his Senior Counsel invited the Court to draw. It was an inference bereft of evidence of how Western Freight Management treated the invoices and was speculative. I do not accept that any presumption of regularity applies. The presumption is usually taken to deal with official acts [96] ; not the accounting practices of what Mr Brennan SC characterised as a family company, managed by Mr Peters who has a self-serving interest in proving that he has suffered actual damage (especially in circumstances where I have indicated my doubts about his credibility and reliability as a witness). There is no evidence that either or both of those entities have made a claim against Mr Peters (or Mr Jay).

Pleading of claim for aggravated damages

1. At paragraph 17, Mr Jay and Mr Peters alleged that by reason of the matters and circumstances they alleged, they had been greatly injured in their character and credit and in their personal, business professional reputation and had been brought into public hatred, ridicule and contempt.
2. Particulars of the claim for aggravated damages were identified as: 1. the falsity of the representations; and 2. the defendants' (respective) failures to apologise for their behaviour and publication.

The pleading of the claim for exemplary damages

1. At paragraph 17, this claim was particularised as the defendants' knowingly making false complaints about the plaintiffs for the purpose of having the plaintiffs disciplined and removed from the NSW RFS.

Principles concerning aggravated and exemplary damages

Aggravated damages

1. Aggravated damages are awarded where a defendant's conduct towards the plaintiff was improper, unjustifiable or lacking in bona fides: KSMC Holdings at [150]. The plaintiffs referred to observations of Windeyer J in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 152 that conduct which is insulting, reprehensible or was capable of causing indignity of outrage fell within the scope of this award.
2. A defendant's knowledge of falsity, without more, has been regarded as being insufficient to support an award of aggravated damages: V'landys at [187].
3. A failure to apologise may result in such award, but only if such conduct was improper, unjustifiable or lacking in bona fides (KSMC Holdings at [150]). To the extent that reliance is placed upon a defendant's failure to apologise, this particular requires proof of other unjustifiable conduct: if, say, a defendant runs a defence that is bona fide and not unreasonable, or puts the plaintiff to proof, this particular would not be established (V'landys at [189]).
4. The plaintiffs cited ('in matters of this type', or more accurately defamation matters) factual findings in Bauer Media Pty Ltd v Wilson (No.2) [2018] VSCA 154 and The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd; Morrow v Cordell Jigsaw Productions Pty Ltd [2021] NSWSC 444 as illustrative of the types of considerations that have attracted awards of aggravated damages, being:

• a failure to properly investigate defamatory allegations made by a source that required anonymity and payment;
• publishing imputations known to be false;
• publishing imputations to maximise the defendants' commercial opportunities and as part of a campaign to 'take down' the plaintiff;
• failing to call as a witness anyone involved in the editorial process to explain the decision to publish;
• being actuated by malice;
• failure to apologise and correct from the time of publication where the publisher knew imputations were false;
• sensational, accusatory and spiteful publication;
• failure to seek comment or notice to the plaintiffs prior to publication;
• knowledge of the public status of the plaintiffs;
• intention to irrevocably damage the plaintiffs' reputations and careers;
• manner in which a publisher conducts litigation can also provide a basis.

Plaintiffs' submissions

1. With all of these matters, the plaintiffs submitted that the following factors were relevant in this proceeding: 1. the defendants knew of the falsity of the representations; 2. Ms Hodges collated multiple allegations into a single barrage of complaints. The only reason was to cause irrevocable harm to the plaintiff's firefighting careers; 3. the defendants called no witnesses to explain why they published the representations; 4. the defendants have continued to refuse to apologise; 5. the defendants have maintained their insistence as to the truth of their representations in defending the proceedings; 6. the defendants timed the publications at a moment when they knew the plaintiffs and, in particular, Mr Jay, was dealing with the emotionally fraught situation concerning the safety of his daughter.
2. Without citation of 'comparable' cases, the plaintiffs nominated that an appropriate award of aggravated damages would be $75,000 to Mr Jay and $50,000 for Mr Peters.

The defendants' submissions

1. The defendants submitted that neither plaintiff gave evidence of injured feelings. Aggravated damages were compensatory in nature and depend on hurt being caused.

Consideration of the claim for aggravated damages

1. Given the findings I have made, I question the utility in even considering this aspect of the case, and that of exemplary damages. Despite that reservation, in case an appellate court takes a different view to me on many earlier findings, it is appropriate to make some brief observations.
2. Mr Brennan SC indicated in his Opening that the plaintiffs' object of this suit was to secure findings of falsity against allegations made against them and, desirably also, a finding that the false allegations were maliciously made [97] . It appeared to me implicit in this observation that the plaintiffs were seeking vindication, which is, of course, an important object of the award of compensatory damages for defamation. But as Lee J recently observed in Palmer v McGowan (No.5) (2022) 404 ALR 621 at [499], if there is no real damage to reputation there is little to vindicate. There was no reputational losses here, even if (which is strongly doubtful) they could even be compensated in this tort.
3. Amongst the many representations alleged, were very few representations that were found to be false. On the aspect of the falsity of the representations, as indicated in the section on malice, the false aspects of the representations were marginal or insubstantial. They were not flagrant mistakes. They generally amounted to misstatements or inaccuracies in matters identified as sustaining opinions. In circumstances where, as I have found, there were half-truths and where the defendants were partly right in what they published, it would be an unusual state of affairs that a plaintiff's hurt feelings would warrant an award of aggravated damages. There was, in the event, little exposition of the nature and extent of Mr Jay's injured feelings and nothing about Mr Peters'.
4. I was not satisfied that the plaintiffs have established the inherently serious allegation that the defendants actually knew of the falsity of the false representations that I have found. This is particularly so at the date when the publications were made. In the case of the First and Second Publications that date was 25 August 2016; in the case of the Third Publication, it was 5 September 2016. At 25 August 2016, it was not the case that the first, second and third defendants were listening in on the audio recording. The same can be said for Ms Hodges on 5 September 2016. It is true that at later points the defendants came to be aware, or at least were on notice, of what was contained on the audio recording.
5. Even so, as I have found, it did not follow that the defendants (or any of the complainants who they relied upon) did not honestly believe that Mr Jay had bullied and intimidated other attendees on the occasion, which was the real gravamen of the representation. It might be said that the defendants could have exercised greater care in crafting their complaint of bullying. However, to say that someone has bullied another person is a very subjective opinion not easily reducible to a description of tangible acts. The context, as I have described it, indicates that as at 20 July 2016, many members of the South Group were very sensitive to what they perceived, rightly or wrongly, as the bullying of Mr Jay and, to a lesser extent Mr Peters (and Mr Crick) towards others in the Group and the Hawkesbury District as a whole. To the extent that the plaintiffs criticise Ms Hodges for compiling a 'barrage' of complaints, the plaintiffs ask the Court to ignore the history of their dealings with her and others up to the dates of publications, including their own agreement not to 'cross the line.'
6. To the extent that it is suggested that Mr Jay was dealing with an emotionally fraught situation, that, with respect, appeared overblown. The 'affair' was disclosed in early May 2016. The first publication occurred in late August 2016. There was nothing to show any lack of functioning in Mr Jay's work capacity in the interim months; such as requests for time off because of any sense of hurt feelings. Whilst undoubtedly the revelation of the affair was distressing to Mr Jay (and his wife) it did not immunise him from the application of disciplinary arrangements when they were appropriate.
7. I accept that there may have been some natural anxiety in both plaintiffs following the commencement of the investigation, but that would have dissipated when the plaintiffs were informed by Mr Heffernan that no further action would proceed, nearly 5 years ago.
8. It is an artificial and difficult exercise to evaluate what would have occurred if the plaintiffs were much more successful in establishing the malicious nature of false representations than I have determined. I cannot say on the basis of my findings that they would have been entitled to any award for aggravated damages.

Principles

1. Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future, and to reflect "detestation" for the action: Lamb v Cotogno (1987) 164 CLR 1 at 8. Generally speaking, what is required for an award is "conscious wrongdoing in contumelious disregard of another's rights": Gray v Motor Accidents Commission (1998) 196 CLR 1 at [14]; State of New South Wales v Abed [2014] NSWCA 419 at [230]-[234].
2. The plaintiffs noted that although exemplary damages are unavailable in defamation suits, there is no statutory limitation on this relief in this tort.
3. In New South Wales v Radford (2010) 79 NSWLR 327, Sackville AJA (Beazley and Macfarlan JJA agreeing) said at [97]: "There is a close relationship between an award of ordinary compensatory damages or injury to the plaintiff's feelings and an award of aggravated damages. It is necessary to assess compensatory damages, including aggravated damages, before determining whether exemplary damages should be awarded and, if so, the quantum of any such award".
4. In New South Wales v Zreika [2012] NSWCA 37, Sackville AJA (Macfarlan JA and Whealy JA agreeing) observed at [60] (citations omitted): "Aggravated damages are assessed from the point of view of the plaintiff, but an award of exemplary damages is based on the conduct of the defendant .. However, the same set of circumstances may justify an award of either aggravated or exemplary damages, or both ..".
5. It is unnecessary for there to be any proportionality between exemplary damages and aggravated damages [98] . The plaintiffs emphasised authority to indicate that the quantum of such award should not just 'irritate, they must sting' [99] .

The plaintiffs' submissions

1. The plaintiffs' submitted that the Court should consider the following: 1. the defendants sought not only to blacken the reputation of the plaintiffs, but to subvert the disciplinary mechanisms of the Rural Fire Service to do so; 2. in making the allegations and seeking to invoke disciplinary action, each of the defendants' abused positions of trust granted to them by the state of New South Wales; 3. the Third and Fourth defendants, having become aware of a serious incident that compromised the health and safety of (Mr Jay's daughter), a junior member of the Rural Fire Service, used that incident to launch a cynical and cruel assault on Ms Jay's father; 4. the First and Second Plaintiffs were amongst only three members of the Glossodia Brigade qualified as crew leaders. Had the defendants succeeded in having the plaintiffs suspended or stripped of rank, it would have crippled the brigade. This would have impeded the ability of the Rural Fire Service to respond to incident and potentially endangered the community; 5. having falsely accused the plaintiffs of cowardice, the defendants then lacked the courage to give evidence and face cross-examination; 6. the suggestions to Mr Jay and Mr Peters that Mr Peters' letter read to the 20 July 2016 meeting was libellous for the reason that they did not know of any minuted failures by Andrew Rutter effectively to represent Glossodia (T134.16-19; 242.18-49) when each of the first second and third defendants knew of Mr Rutter's failures which were disclosed for the first time when Mr McKillop gave evidence, and must have known that those failures had not been minuted solely by reason of their own duplicity in not accurately reporting to the Group South meetings; 7. the failure of Mr Petrikas to acknowledge or apologise for his dishonest advice to Mr Plumridge that the audio recording had been deleted.
2. Again, without reference to any 'comparable' case, the plaintiffs submit that an appropriate award would be for each defendant to pay exemplary damages in the sum of $50,000.

The defendants' submissions

1. The defendants firstly submit that the 'shopping' list of matters relied upon by the plaintiffs in their written submissions were not particularised.
2. Secondly, submit that the mere provision of complaints about issues, such as bullying, within an organisation, to a single appropriate person in the 'chain of command', even if the complaints were proven to be false, is far from the sort of conscious and contumelious disregard of the plaintiff's rights that would warrant this particular award of damages.

Consideration of the claim for exemplary damages

1. It is unnecessary to determine a pleading point, or whether matters raised fall within the scope of the particulars given about exemplary damages.
2. The reality is that save for a few representations whose falsity was narrow, in the main, the plaintiffs substantially failed in this litigation. That will no doubt be relevant to the issue of costs for which the Court awaits further submissions.
3. If so few representations were established, on the contingency that I am wrong about malice and other issues, I am not persuaded that any of the defendants acted consciously with contumelious disregard for the plaintiffs' rights. To the contrary, they showed discrimination in the careful selection of the narrow class of publishees in accordance with established procedures which were (featuring confidentiality), among other things, designed to extend fairness to all concerned, including the plaintiffs; whose outcomes were beyond their personal control. I find that they believed, in good faith that they should deploy those processes. They were volunteers and to the extent they expressed some opinions which were to an extent wrong, they were not, to use a word repeatedly deployed by the plaintiffs' Senior Counsel, 'egregiously' wrong. The plaintiffs failed to establish their argument about the defendants' intentions. The motive that the plaintiffs ascribe to the defendants for publication was not made out even if there is force in the argument that the defendants bore ill-will towards or had a poor regard for the plaintiffs. They exercised the basic right that service procedures gave to every service member: the right to make complaint about disciplinary matters concerning members.
4. The defendants did not apologise for the narrow respects in which representations were found to be false. But in a context where the focus of the inquiry is the perspective of the conduct of the defendants, a balanced consideration of the issue needs to also feature inquiry as to whether there were factors that may have influenced the defendants' decisions not to apologise. That includes: the lack of moderation in the volume of representations which the plaintiffs' claimed were not just false, but asserted to be maliciously so and, in Mr Jay's case, a catalogue of many instances of rude, offensive and uncivil behaviour to persons who the first, second and third defendants effectively represented and in the case of the fourth defendant, who had significantly supervisory responsibility, which could arguably have constituted bullying; allegations that impugned the defendants' motives and honesty; and even allegations concerning the conduct of the Rural Fire Service as an organisation, which the defendants loyally and no doubt proudly served, and which were irrelevant to the causes of action run by the plaintiffs against the defendants.
5. I would not have been satisfied that this was an appropriate case for an award of exemplary damages.

COSTS

1. The plaintiffs made submissions about costs, but they were premised upon their success.
2. In anticipation of success, the defendants asked the Court for the opportunity to make submissions on costs. They should have it.

SUMMARY AND ORDERS

1. In summary, for the above reasons, I find that: 1. the representations were not 'of or concerning the plaintiffs' goods or businesses'; 2. there was a very limited number of false representations found in the publications; 3. such false representations by the defendants, as have been found, were not actuated by malice; 4. such falsities, as have been found from the representations, were immaterial and therefore did not cause the decision to investigate or affect the scope of the investigation; 5. the plaintiffs' incurring of legal expenses for advice and representation in connection with the investigation were not: 1. intended by the defendants; or 2. the natural or probable consequence of their publication of false representations. 1. actual damage, for the purpose of this tort, could be constituted by the debt jointly and severally incurred by the plaintiffs to their solicitors.
2. The Court accordingly orders: 1. Judgments for the first, second, third and fourth defendants. 2. The question of costs be reserved for submissions.
3. The Court directs that: 1. The defendants are to serve written submissions in chief on costs (not exceeding 10 pages, excluding relevant attachments) by 16 January 2023; 2. The plaintiffs are to serve written submissions on costs in response (not exceeding 10 pages, excluding relevant attachments) by 23 January 2023; 3. The defendants are to serve written submissions on costs in reply (not exceeding 5 pages) by 25 January 2023; 4. Absent any further notice to the parties, the issue of costs will be determined on the papers.

Endnotes

1. Jay v Petrikas [2019] NSWDC 707
2. A recent example of this statement of principle being applied was the decision of Snaden J in Pirmax Pty Ltd v Kingspan Insulation Pty Ltd [2022] FCA 1340 at [351]
3. Exhibit B, pp 1049-1052
4. Exhibit B, pp 1055-1056
5. Exhibit B, pp 1057-1058
6. Exhibit B, p 1049
7. Exhibit B, pp 307 - 309
8. Exhibit B, pp 297-306
9. Exhibit B, pp 310-312
10. Exhibit B, pp 252-274
11. T 276-277
12. T 138.24
13. Exhibit B, p 766
14. Attachment 7 to the Third Publication
15. Attachment 8 to the Third Publication
16. Attachment 10 to the Third Publication
17. This (unsigned) witness statement became Attachment 2 to the Third Publication.
18. Exhibit B, pp 716-717
19. Exhibit B, pp 30 - 32
20. Mr Petrakis' statement to the investigator (Exhibit B, pp 187-193) did not refer to the practice of sound recording at such meetings.
21. Paragraphs 3, 7 & 11 of the Amended Statement of Claim
22. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 393
23. Now see C Sappideen & P Vines, Fleming's The Law of Torts (10th ed), Thomson Reuters p 796 ('Fleming")
24. Noye v Robbins [2010] WASCA 83 at [82]
25. Lendlease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207 per Spiegelman CJ (McColl JA and Basten JA agreeing) at [30] - [32].
26. Fleming at 797
27. In RP Balkin & JLR Davis, Law of Torts (3rd ed, LexisNexis) the chapter on Injurious Falsehood falls within Part VI of the text titled 'Protection of Trading or Business Interests'
28. For an analogy with the tort of negligence, see Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 527
29. Fleming [1.20], pp 5-6
30. Niche Products Ltd v MacDermid Offshore Solutions LLC [2014] ELMR 9; [2013] EWHC 3540.
31. AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [29]
32. Hill v Van Erp (1997) 188 CLR 159 per Gummow J at 231; Perre v Apand Pty Ltd (1999) 198 CLR 180 per McHugh J at [122]
33. Attachment 17 (AC) to the Third Publication
34. Annexure 'A(AA)' to the Second Publication
35. R Parkes & G Busuttil (eds), Gatley on Libel and Slander (13th ed, 2022 Thomson Reuters]
36. [2013] EWHC 1505 at [102]
37. T 180.49 - 181.1
38. Exhibit B, p 258
39. Exhibit B, p 253
40. The defendants cited Hutley v Cosco [2020] NSWCA 17 at [49] on the concept of bullying
41. Radio 2UE at [45].
42. Exhibit B, pp 716-717
43. Exhibit B, p 875
44. Exhibit 7
45. Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2011] NSWSC 642 per McCallum J (as her Honour then was) at [16]-[23]
46. Roberts v Bass (2002) 212 CLR 1 ("Roberts") per Gaudron, McHugh and Gummow JJ at [75], [79], [97]
47. Roberts at [75], KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden [2020] NSWCA 28 ("KSMC Holdings")
48. Roberts at [96]-[97]
49. Roberts at [74]-[76]; KSMC Holdings at [60]
50. Roberts at [76], [78]
51. AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395; [2011] Aust Torts Reports 82-077 at [31]; Pirmax Pty Ltd v Kingspan Insulation Pty Ltd [2022] FCA 1340 at [352]
52. Roberts at [84]; KSMC Holdings at [74] & [135]
53. KSMC Holdings at [61]
54. V'landys v Australian Broadcasting Corporation (No.3) [2021] FCA 500 ("V'Landys") at [154]
55. Roberts at [77]; V'landys at [153]
56. Roberts at [76]
57. Noye v Cummins [2007] WASC 98
58. Trobridge v Hardy (1955) 94 CLR 147 per Kitto J at 164
59. Ibid at 164
60. Citing Irving v Phingst [2021] QCA 280 at 268 (abuse or process); Wood v New South Wales [2019] NSWCA 313 at [49] and New South Wales v Abed (2014) 246 A Crim R 549; [2014] NSWCA 419 ("Abed") at [151] (the last two decisions being malicious prosecution cases). What was said in Abed about Trobridge was also cited in Spedding v State of New South Wales [2022] NSWSC 1627 at [195]
61. Trkulja v Markovic [2015] VSCA 298 at [96]
62. However, as explained, in closing oral argument, he tacked to characterising the purposes of all the defendants of procuring disciplinary action.
63. Exhibit B, p 1066 ('Conducting a Volunteer Discipline Investigation', cl 4)
64. Trkulja v Markovic [2015] VSCA 298 at [96]-[98]
65. Exhibit B, p 88
66. Exhibit B, p 60
67. Exhibit B, p 60
68. Exhibit B, p 56
69. T 14.7-8, applying the test from Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at 466
70. T 325.15
71. Exhibit B, p 1133.71
72. The same approach was followed by the primary judge in V'landys v ABC (No.3) [2021] FCA 500 at [137]
73. Exhibit B, p 298
74. Exhibit B, p 1050
75. Exhibit B, p 1055
76. Exhibit B, p 67-68
77. Exhibit B, p 144
78. Exhibit B, p 716
79. This would be under cl 2.5(b) of SOP SS1.1.2-2, Exhibit B, p 1055
80. Exhibit B, p 259
81. G Spencer Bower, A Code of the Law of Actionable Defamation 2nd ed, Sweet & Maxwell, London 1923, p 31 (note p), cited in Tobin and Sexton at [7080].
82. (2000) Aust Torts Rep 81-562
83. See also Radio 2UE at [11]
84. Wallace v Kam (2013) 250 CLR 375 at [16] ; Badenach v Calvert (2016) 257 CLR 440 at [36]
85. Badenach v Calvert (2016) 257 CLR 440 at [34] -[40], [96] -[99]
86. T 408-409
87. Palmer Bruyn & Parker Pty Ltd v Parsons (2000) Aust Torts Rep 81-562 at [24]
88. Citing Ratcliffe v Evans [1892] 2 QB 524 per Bowen LJ at 527
89. Fleming at [30.240]
90. Exhibit B, pp 1060 - 1086
91. M Aronson & M Groves, Judicial Review of Administrative Action 5th ed, Thomson Reuters, 2013 [8.310], p 567
92. Exhibit B, p 176
93. Niche Products Ltd v MacDermid Offshore Solutions LLC [2014] ELMR 9; [2013] EWHC 3540 at [39]; also see Tinkler v Ferguson [2020] EWHC 1467 at [44(i)].
94. The document was admitted, but the handwritten annotations appearing on the document were excluded from the tender under s 136 of the Evidence Act 1995 (NSW).
95. Whether this is for the purposes of the Income Tax Assessment Act 1997 (Cth), ss 245-35 - 245-45, or in a more informal sense
96. Mallock v Tabak [1977] VR 78
97. T 2.38 - 2.44
98. XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 472
99. Whitbread v Rail Corporation New South Wales [2011] NSWCA 130 per McColl JA at [65]

Amendments 13 December 2022 - Heading amended before [79] 14 December 2022 - Formatting issue resolved DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2022