Kurniawan v Gifkins [2025] NTSC 70

Kurniawan v Gifkins [2025] NTSC 70 | Case summary | Zoe

[7]

[3] The Local Court found the following facts,[2] which were not in dispute on the appeal.
[4] The apartment building had a long-standing 'no pets' rule. (In the Reasons, this was also referred to as 'the no dog rule'.)
[5] Some time prior to November 2018, after he purchased one of the apartments, Mr Yerriah (Ms Kurniawan's partner) became a member of the management committee of the body corporate. Mr Yerriah tried twice to amend the body corporate's by-laws to permit dogs in the apartments. Those efforts were not successful.
[6] On 1 November 2018, Ms Kurniawan moved into Mr Yerriah's apartment with a dog. After receiving complaints about the dog, the management committee told Mr Yerriah that the dog could not remain in the building. Ms Kurniawan and Mr Yerriah refused to remove the dog. The management committee issued a notice of breach of the apartment building by-laws.
[7] On 30 November 2018, the management committee commenced proceedings in the Northern Territory Civil and Administrative Tribunal ('NTCAT') to compel Mr Yerriah to comply with the 'no pets' rule in the by-laws.
[8] On 4 February 2019, there was an incident at the communal pool in the apartment building involving Ms Kurniawan, Mr Gifkins and other residents.
[9] On 7 February 2019, there was an incident in the foyer of the apartment building during which the building manager, Jason Gay, pushed Ms Kurniawan after she put her phone near his face and filmed him. He was charged with assault.
[10] On 9 February 2019, Ms Kurniawan and Mr Yerriah accessed a locked storage cage in the apartment building assigned to Mr Gifkins, removed his belongings and relocked the cage with their own padlock.
[11] On 11 February 2019, there was another incident at the communal pool in the apartment building.
[12] On 24 February 2019, there was an incident near the lift in the basement of the apartment building involving Ms Kurniawan, Mr Gifkins and another resident, Judy Richardson.
[13] On 25 February 2019, Mr Gifkins, Ms Richardson and Mr Gay applied for personal violence restraining orders ('PVROs') against Ms Kurniawan.
[14] During February to May 2019, various complaints were made that someone was slamming the fire exit door and the swimming pool gate, sometimes twice in succession.
[15] On 19 March 2019, Mr Yerriah sent an email to all owners of apartments in the building alleging inappropriate use of body corporate funds to pay for PVRO applications.
[16] On 15 April 2019, interim PVROs were issued restraining Ms Kurniawan from filming and harassing Mr Gifkins, Ms Richardson and Mr Gay.
[17] On 18 April 2019, Ms Kurniawan and Mr Yerriah each applied for PVROs against Mr Gifkins and Mr Gay. Only one was issued. The other three applications were refused.
[18] On 29 April 2019, the NTCAT ordered Ms Kurniawan and Mr Yerriah to remove the dog from the apartment building by 24 May 2019.
[19] On 29 April 2019, Mr Gay pleaded guilty to assaulting Ms Kurniawan by pushing her. No conviction was recorded and there was no penalty other than a victim's impact levy.
[20] On 29 April 2019, there was an incident in the foyer of the apartment building in which Ms Kurniawan and Mr Gifkins had a verbal altercation and Mr Gifkins called the Police. Ms Kurniawan was issued with a notice to appear alleging a contravention of the PVRO.
[21] On 7 May 2019, Ms Kurniawan applied for a review of the NTCAT decision.
[22] By 24 May 2019, Ms Kurniawan and Mr Yerriah had not removed the dog from the apartment building.
[23] On 8 June 2019, Ms Kurniawan, Mr Yerriah and the dog moved out of the building.
[24] On 8 July 2019, Ms Richardson's application for a PVRO against Ms Kurniawan was granted, with effect for 12 months.
[25] On 8 July 2019, Ms Kurniawan applied for a PVRO against Ms Richardson.
[26] On 9 July 2019, Ms Kurniawan applied for a PVRO against another committee member, Mr Brittain. This application was later dismissed, with costs.
[27] On 15 July 2019, Ms Kurniawan's application for a PVRO against Ms Richardson was dismissed.
[28] On 2 August 2019, Ms Kurniawan's application for review of the NTCAT decision about the dog was dismissed.
[29] On 12 August 2019, Mr Gifkins published to the apartment owners a Chairman's report.
[30] On 15 August 2019, Mr Yerriah proposed a motion to be passed at the body corporate annual general meeting for issue of a breach notice against Mr Gifkins in relation to a Mr Zec.
[31] On 19 August 2019, Mr Gifkins applied for a PVRO against Mr Yerriah and Mr Zec.
[32] On 9 September 2019, Mr Yerriah filed an application in the NTCAT seeking orders for the removal of wi-fi access points, two lock boxes and a sticker from the common property in the apartment building. In the application, Ms Kurniawan was stated to be Mr Yerriah's representative in the NTCAT proceedings.
[33] On 13 September 2019, the hearing into Ms Kurniawan's breach of the PVRO on 29 April 2019 commenced.
[34] On 25 September 2019, Mr Yerriah informed the NTCAT that he and Ms Kurniawan would be lodging a complaint to the Law Society against the body corporate's barrister.
[35] On 26-29 September 2019, Mr Gifkins circulated drafts of the report to other committee members and the body corporate's barrister.
[36] On 30 September 2019, the body corporate's barrister recommended to Mr Gifkins various amendments to the draft report.
[37] On 30 September 2019, Mr Gifkins sent the report to owners of the apartments.
[38] On 8 October 2019, Ms Kurniawan was found not guilty of breaching the PVRO on 29 April 2019.

[10]

"The Dog Case" 1. The hostilities started when the unit owner moved into the building in November 2018, bringing with him his girlfriend and her dog. The dog was kept in his apartment, contrary to the Body Corporate by-laws. When I was appointed your chair, several members complained about the dog and urged that it be removed. When I discussed the dog with the unit-owner in the foyer, he initially denied there was a dog. He later said the dog is only in his apartment and does not touch body corporate property, so it is not the Committee's concern. In 2017 and 2018, attempts were made by the unit-owner, during his tenure as a Committee Member, to amend the Body Corporate's by-laws to allow unit-owners to keep small dogs in their apartments at the Marrakai complex. On both occasions, the majority of unit owners voted against the proposed amendments. However, the unit-owner refused to remove his dog. With that stance, the committee voted to take a case to NTCAT to get an order that the dog be removed. As soon as the unit-owner and his partner received the NTCAT notice they became aggressive and behaved in an intimidating and harassing manner against Committee Members, Judy Richardson, myself and Jason Gay (the building manager), which resulted in a number of Protection Orders being made by the court. 2. As you are all aware, the NTCAT found in favour of the Marrakai, and ruled that the dog had to be removed from the building. However, the dog remained in the building and the unit-owner immediately commenced an action to dispute the NTCAT's findings, challenging the legality of the MBC by-law concerning pets at the Marrakai. 3. Due to the legal complexities of the unit-owner's NTCAT appeal, the Committee voted to engage legal representation. Counsel was engaged to review Commonwealth law, Territory law and to collect and assess historical MBC records that revealed how the existing by-laws were constituted and updated through the life of the Marrakai under the Unit Titles Act (NT). 4. In the interim, the unit-owner sought a stay of the NTCAT's original ruling (to remove the dog) pending the NTCAT's review determination. The stay application was refused, with the result that the unit-owner had [to] remove the dog. Despite this, the dog still remained in the building. To enforce the NTCAT ruling I registered the Original Order at the Local Court ... in order to have the Local Court enforce the ruling that the dog be removed. The unit-owner and his partner then relocated to another building with their dog. 5. After reviewing the evidence and hearing legal submissions by counsel for both sides, the NTCAT upheld the original decision, concluding that the Marrakai by-laws concerning pets had been legally constituted, validly enacted and had legal force. The unit-owner's dog case was dismissed. 6. "The Lock-Box, Sticker and Wi-Fi Case" 7. Last month the same unit-owner lodged another NTCAT case challenging the lawfulness of an emergency phone lock box, a sticker, and building Wi-Fi infrastructure being on common areas of the Marrakai. The Committee voted again to engage legal representation in this matter. This case is currently before the NTCAT, so I will not discuss its details in this notice. 8. Whilst the NTCAT [cases] were on foot, there has been 11 [PVROs] and 2 criminal cases before the local courts. 9. Personal Violence Protection Orders

[12]

Presently, the Local Court has ordered 3 [PVROs] refraining Virna Kurniawan from harassing, intimidating or verbally abusing three Committee members: Judy Richardson, Jason Gay and myself. Those orders were made following evidence being led about various events involving Chris Yerriah and his partner Virna Kurniawan, including:
1. Aggressive behaviour against Committee Members during BBQs by the pool area, where police needed to attend to instruct the unit-owner and his partner to leave the pool area.
2. Constant slamming of the security gate and fire exit doors below Judy's apartment, causing noise to resonate loudly and many sleepless nights, as well as damage to the electronic latch for the fire exit door. This resulted in a new security camera being installed to monitor that part of the building.
3. Ms Kurniawan verbally abusing and swearing at Judy and I as we were standing in the basement.
4. Breaking into Cage 25, and damaging property belonging to me, in order for the unit owner to use Cage 25 to store his own property. Again, police were called several times. However, despite telling police he will remove his property from cage 25, the unit owner still occupies Cage 25.
The Local Court dismissed Ms Kurniawan's applications for [PVROs] against Judy, Jason and I. The Judge who summarily dismissed the case in which Ms Kurniawan applied for a [PVRO] against Judy, remarked that she is not allowed to use the courts to intimidate Judy.
Ms Kurniawan's [PVRO] claim against another Committee Member, Phil Brittain, is currently before the courts.
Mr Yerriah lodged claims for [PVROs] against Jason Gay and myself. The case against me was dismissed. Against Jason, it was accepted on the grounds as building manager, Jason is obliged to be polite and courteous to all unit owners, including Mr Yerriah.
There are 2 [PVRO] applications currently before the courts, which I have initiated, against Chris Yerriah and Steve Zec.
As these cases are before the court, so I will not go into further details. If you are interested in them, they will all be heard at the local court (Nichols Place) in Darwin on 7th October at 2pm.
Criminal Cases
In May of this year, Jason Gay pleaded guilty to assaulting Virna Kurniawan, in a case reported in the NT News in the following terms: "Gay admitted to shoving the woman during a recent flare-up of their long-running dispute, after the woman provoked him by filming him with her mobile phone. The court, recognising that it was a 'low-level assault - being a single push', with 'a trigger of provocation, the phone being waved in his face while he's at work', ordered a non-conviction in this case, and Jason was ordered to pay the mandatory $150 victims levy contribution. Of Ms Kurniawan's Victim Impact Statement, the Judge remarked, 'I can only disregard the victim impact statement' because it 'at times ... looks as if it's relating more to a war crime than the material on the agreed facts before the court" (NT News, 'Ruff Justice over Assault", 15 May 2019).
Ms Kurniawan is presently criminally prosecuted for breaching the [PVRO] in which I am protected from her abuse and harassment. This prosecution case, with evidence heard from myself, Jason Gay and Phil Brittain, was heard last month. The matter has been adjourned for judgment at the Local Court (Nichols Place) in Darwin on 8th October at 9.30am.
Impact on your committee

[26]

[49] It is necessary to refer to this fundamental doctrine because Ms Hart submitted that I was 'bound' to follow Haritos, not because it was highly persuasive, but because it was binding on me under the doctrine of precedent.
[50] As the High Court observed in Lipohar v The Queen,[11] the ultimate foundation of precedent which binds any court to statements of principle is that a court higher in the hierarchy of the same juristic system, and thus able to reverse the lower court's judgment, has laid down that principle as part of the relevant law. As the Full Court of the Supreme Court of South Australia observed in Bassell v McGuiness,[12] a decision of one court cannot be truly binding upon another unless both courts are within the same hierarchy of courts, and the existence of an appeal from the inferior court to the superior court which binds it is inherent in and essential to the doctrine of precedent.
[51] The Full Court of the Federal Court of Australia is not part of the hierarchy of courts in the Northern Territory. It is not able to reverse a judgment of this Court. Only the Northern Territory Court of Appeal can do that. Consequently, this Court is not bound in accordance with the doctrine of precedent to follow the decision in Haritos; it is bound to follow the decision in Lee v MacMahon, even if this Court considers that decision to be wrong.
[52] In support of the submission that I am bound to follow Haritos, Ms Hart referred to the decision in Farah Constructions Pty Ltd v Say-Dee Pty Ltd.[13] In that decision, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ held (at [135]) that intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong and the same principle applies in relation to non-statutory law. Under this principle, I would not be bound to follow Haritos if I was convinced the principles set out in it were plainly wrong.
[53] Section 19 of the Local Court (Civil Procedure) Act is not Commonwealth legislation or uniform national legislation and is not part of the common law. Consequently, the principle in Farah Constructions does not strictly operate here. Further, the decision in Haritos may be distinguishable because it concerns s 44 of the Commonwealth Act, and is founded upon a number of matters which are not applicable to s 19 of the Local Court (Civil Procedure) Act, as referred to in footnotes 6-9 above.
[54] Relevantly to this appeal, I do not consider there to be any material difference between the principles set out in Lee v MacMahon and the principles set out in Haritos which impact upon the determination of this appeal. For the purposes of this appeal, I accept that the decision in Haritos is highly persuasive, including because it relates to a statutory provision in identical terms to s 19(1) of the Local Court (Civil Procedure) Act. Because there are no material differences to the principles set out in Lee v MacMahon, I will follow and apply the principles set out in it.

[32]

[57] At the outset of the hearing, Ms Hart initially argued that the effect of Haritos is that an appellant is not required to identify in the notice of appeal the questions of law the subject of the appeal because: (a) there is no requirement to do so in the Supreme Court Rules 1987 (NT) ('SCRs') and; (b) in Haritos, the Federal Court held that questions of law need not be identified with precision. Again, that is an inaccurate statement of the effect of the decision in Haritos.
[58] In Haritos, the Federal Court held (at [85]-[86]) that the subject matter of an appeal under s 44 of the Commonwealth Act is limited to the question(s) of law, which is not merely a qualifying condition to ground an appeal. Rather, the question of law and it alone is the subject matter of the appeal and the ambit of the appeal is confined to it.[15] The Federal Court held (at [91]) that it is of 'great importance' that the question(s) of law should be stated with precision, which was the point of the Federal Court Rule which required the notice of appeal to identify the question(s) of law.
[59] This is clearly inconsistent with the proposition that, because the SCRs do not contain a requirement that the notice of appeal identify the question(s) of law, there is no requirement for an appellant to identify them with precision or at all. The Federal Court expressly held that it was of great importance that the question(s) of law be stated with precision, and that requirement did not rest on the Federal Court Rules but on the fundamental basis that the question(s) of law are the subject matter and ambit of the appeal.
[60] The Federal Court held (at [94]) that whether a question(s) of law has been identified must be approached as an issue of substance, but the appeal court must be satisfied that there is in fact a question of law. The Federal Court added (at [97]) that, as a superior court of record, the Federal Court has jurisdiction to decide whether a notice of appeal states a question of law and does so with sufficient precision and, if it does not, whether an appellant should have leave to amend the notice of appeal to remedy the defect. Further (at [107]), this jurisdiction extends to a question of law which was not identified before the trial judge. Again, these statements are entirely inconsistent with the proposition that an appellant need not identify the question(s) of law the subject of the appeal with precision, a submission which Ms Hart repeated a number of times.

[36]

[63] Immediately after leave was granted to amend the notice of appeal to replace the grounds of appeal with the 21 'questions of law', Ms Hart sought to make submissions about the legal principles relating to inadequacy of reasons. These principles were argued to arise because 'this is embedded within' the 21 'questions of law', it was not a separate ground of appeal, it was a question of law whether reasons are inadequate, and the original grounds of appeal contained in the notice of appeal had raised inadequate reasons.
[64] None of the 21 'questions of law' which had just before this been said to contain all of the questions to be determined on appeal referred to a failure by the Local Court to give adequate reasons for a particular finding or decision on any issue. No further application was made to amend the notice of appeal to include an inadequacy of reasons ground.
[65] Ms Hart's reference to the original grounds of appeal was equally baffling, given the grant of leave to amend the notice of appeal to replace the original grounds with the 21 'questions of law' just moments before. Further, there was no generally expressed inadequacy of reasons ground in the original notice of appeal. Only one ground (ground 5) had referred to a failure to give adequate reasons, but that was not repeated in the 21 new 'questions of law'.
[66] In her reply, Ms Hart again sought to make submissions about the legal principles relating to inadequacy of reasons and repeated that an inadequacy of reasons ground was embedded in all of the 21 asserted questions of law. She argued that if a decision maker fails to provide adequate reasons, impliedly, they have failed to take into account a relevant matter or have taken into account an irrelevant matter in coming to the decision. Asked what authority she was citing for that proposition, she referred to Soulemezis v Dudley (Holdings)[16] at 279. I was unable to find any such proposition on that page or elsewhere in that decision.
[67] As initially formulated by Ms Hart at the hearing, and as confirmed by the amended notice of appeal filed that day, this appeal does not raise any question relating to the inadequacy of the Local Court's reasons. As held by the Federal Court in Haritos set out in paragraph [58] above, the subject matter of this appeal is limited to the 21 asserted questions of law, which alone are the subject matter of the appeal and the ambit of the appeal is confined to them. It is of great importance that questions of law the subject of the appeal be stated with precision. In dealing with the subject matter of this appeal, there is no warrant to entertain some broad, generalised and implied complaint that the Local Court's reasons are inadequate.
[68] It is worth repeating the observations of Mahoney JA (Samuels JA agreeing) in Housing Commission (NSW) v Tatmar Pastoral Co Ltd[17] (at 384-385) that the duty to give reasons does not exist in respect of every matter of fact or of law which was or might have been raised in the proceeding, and it is not the duty of the judge to decide every matter which is raised in argument, as the judge may decide a case in a way which does not require the determination of a particular submission and, in such a case, it may be put to one side.
[69] Noting those observations, in my view, Ms Hart's submissions relating to inadequacy of reasons (and other matters) were a colourable attempt to characterise errors asserted to be made by the Local Court as errors of law when the real gravamen of the complaints is that, in Ms Kurniawan's contention, the Local Court wrongly decided that Ms Kurniawan lacked credibility and wrongly decided the factual questions which determined the outcome of the case. So much is confirmed by the consideration of the 21 asserted questions of law below.

[43]

[75] Ms Hart submitted that the relevant test in assessing whether an alleged defamatory meaning or imputation is conveyed by a publication is that set out by Wigney J in Rush v Nationwide News Pty Ltd (No 7),[19] namely (at [74]) that the question is whether the publication would have conveyed the alleged imputations to an ordinary reasonable person, i.e., what the words used would have conveyed to the ordinary reasonable reader, reading (at [77]) the entire publication and considering the context as a whole, taking into account emphasis that may be given by conspicuous headlines or captions, and (at [80]) taking into account that the ordinary reasonable reader may be influenced by the overall tone or tenor of the publication in question. Wigney J cited the observation of Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation[20] that '[i]t is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong'.
[76] Ms Hart acknowledged that the Local Court did (at [13]-[14]) correctly identify the test and referred to both those authorities. However, she argued that the Local Court had misdirected itself in the application of those authorities because the Local Court had failed to consider the context of the report as a whole and had made an unreasonable and erroneous finding that the alleged imputations were not conveyed by the report.
[77] It is noteworthy that in Rush, Wigney J held (at [73]) that the question of whether a defamatory meaning or imputation is conveyed by a publication is a question of fact.
[78] The Local Court found (at [19]) that the ordinary reader would not infer that Ms Kurniawan was 'not genuine is [sic] being a defendant to a criminal proceeding and 3 PVROs', so imputation 1 was not conveyed by the report. The Local Court found (at [18]) that paragraph 6 of the report was referring to proceedings that were 'today before the courts', being the NTCAT proceeding about the wi-fi access points, etc, the three PVROs and the criminal proceeding in which Ms Kurniawan was the defendant. The finding at [19] was a finding that the asserted imputation was not conveyed because it was that Ms Kurniawan was knowingly involved in proceedings which were not genuine and were driven by her desire to intimidate etc, but she was not a party to the NTCAT proceeding and was a defendant to the other proceedings. In other words, the ordinary reader would understand that, as a non-party or defendant, she did not commence those proceedings, so they could not have been driven, ingenuously, by her desire to intimidate, etc.
[79] Ms Hart submitted that the Local Court had 'misread' imputation 1 which 'relies' on proceedings Ms Kurniawan had brought. The Local Court did not 'misread' imputation 1. Imputation 1 refers specifically to paragraph 6 of the report, which expressly refers to the proceedings then before the courts. Imputation 1 refers to one NTCAT case, three PVROs and one criminal case, being the proceedings referred to in paragraph 6 of the report. The only NTCAT case then before the courts was the wifi, etc proceeding commenced by Mr Yerriah and the only criminal case then before the courts was the charge against Ms Kurniawan for breaching a PVRO. There were also undetermined applications for PVROs brought by Mr Gifkins to which Ms Kurniawan was the defendant.
[80] The Local Court found (at [29]) that the report 'does little more than' state that Ms Kurniawan was prosecuted for breaching a PVRO and does not convey the asserted imputation of guilt in imputation 8. The Local Court made the same finding (at [31]) regarding imputation 9.
[81] This asserted question of law is, in substance, solely a question of fact. It takes issue with the Local Court's findings of fact that imputations 1, 8 and 9 were not conveyed by the report on the sole basis that the findings must have involved a misdirection as to the law because they were contrary to the findings sought by Ms Kurniawan on the evidence. This is confirmed by Ms Kurniawan's written submissions, which argued that each of imputations 1, 8 and 9 were 'comfortably carried' by the entire report to an ordinary reasonable reader.
[82] Whether the asserted imputations would have been conveyed by the report to the ordinary reasonable person or not is patently a decision of fact and not law. It is not the case that the report necessarily conveys the asserted imputations, rather it is capable of doing so or not doing so and the decision whether it does or not involves weight being given to one or other elements of the report and involves matters of degree. To uphold the appeal on this question would require this Court to make its own, different, factual finding on the evidence before the Local Court.
[83] It is not open to Ms Kurniawan on this appeal to raise this ground.

[49]

[86] Ms Hart acknowledged that the Local Court had (at [28]) correctly identified the principle by reference to this authority. However, she argued that the Local Court had misdirected itself in the application of that authority because the Local Court had failed to approach the assessment of imputations 8 and 9 on the basis that the principle was confined to a publication which referred to a person being arrested and/or charged with a criminal offence and said nothing else. In other words, she argued that if the publication said anything in relation to criminal conduct beyond 'arrested' and/or 'charged', an imputation of guilt would necessarily follow. Here, the report stated, for example, that the criminal 'proceeding' had been heard but was not yet decided and that Mr Gifkins and two other people had given evidence.
[87] In making this submission, Ms Hart sought to draw a distinction between a person being 'charged' with a criminal offence and a person being 'prosecuted' for a criminal offence because 'the presumption of innocence sometimes does not apply to someone who is being prosecuted for a crime'. The basis for that novel submission was not identified.
[88] As set out in paragraph [80] above, the Local Court found that the report 'does little more' than state that Ms Kurniawan was charged with breaching the PVRO, which Ms Hart argued necessarily indicates that the decision in Mirror Newspapers v Harrison was misapplied.
[89] That decision allowed an appeal from the Court of Appeal which had overruled the trial judge's decision that a newspaper article about the appellant having been arrested in relation to an assault on a politician was not capable of bearing the implications that the plaintiff was directly or indirectly involved in the assault and that the plaintiff was guilty of a criminal offence in relation to the assault. The newspaper article reported that the plaintiff and others had been arrested in connection with the assault, following a month of intensive investigation by a special squad of detectives tasked by the Deputy Premier with finding the culprit. Further to what his Honour said set out above, Mason J held (at 303) that any publication which goes on to say or suggest that the charge was well founded, i.e., that the plaintiff was guilty, carries the imputation of guilt. His Honour held (at 303) that the newspaper article focused attention on the violence of the assault, the intensive nature of the investigation and the circumstance that a 'special squad of detectives' 'worked around the clock' to fulfil a directive from the Deputy Premier that the culprits be found, which no doubt suggested that the matter was regarded as important by the Government and by the police. Nevertheless, his Honour said he failed to understand how a reasonable reader would read it as meaning that the plaintiff was guilty of the offence or that he was involved in the assault.
[90] It is clear therefore that the decision in Harrison does not stand for the principle of law that, if a publication says something in addition to the fact that the plaintiff has been arrested and/or charged with a criminal offence, or if a report says a person is being 'prosecuted' for a criminal offence, it necessarily conveys to the ordinary reasonable reader the imputation that the plaintiff is guilty of that offence. It follows that, for the Local Court to find that the report 'does little more than' state that Ms Kurniawan has been charged with a criminal offence, is not an error of law because it acknowledged that something else was stated in the report.
[91] No error of law is demonstrated and this ground fails.
[92] The other submissions made under this 'question of law' were that the report implied that Ms Kurniawan was guilty of the offence of breaching the PVRO because it referred to more than Ms Kurniawan simply being charged with breaching the PVRO, such as her engaging in harassing, intimidating or verbally abusing committee members, and referred to the evidence upon which the PVROs were made (including aggressive behaviour towards committee members). Putting aside the question of law dealt with above, these arguments solely take issue with the Local Court's factual finding that the report would not convey to the ordinary reasonable person imputations 8 and 9.

[60]

[102] The incident the subject of the fourth and fifth asserted questions of law was an interaction between Ms Kurniawan, Mr Gifkins and Mr Brittain in the foyer of the apartment building on 29 April 2019, Mr Gifkins calling the police and Ms Kurniawan being issued with a notice to appear alleging a breach of the PVRO against her. There was CCTV footage of this incident but not did not have any audio recording.
[103] The Local Court described this incident, in the chronology of 'less controversial facts' (at [11]) that Ms Kurniawan 'leaves the common area while' Mr Gifkins is in the foyer. The Local Court found (at [75]) that Mr Gifkins was in the foyer talking to Mr Brittain, Mr Gifkins said he heard the gate slam two or three times and he looked out and saw Ms Kurniawan, the CCTV shows the gate through the window and it can be seen to shut twice in quick succession, and Mr Gifkins' evidence that it was slammed was accepted. The Local Court rejected (at [76]) Ms Kurniawan's evidence that she did not slam the gate, preferring Mr Gifkins' evidence. The Local Court found (at [77]) that Ms Kurniawan came into view immediately after the slam and the CCTV showed her and Mr Gifkins exchange words, during which Ms Kurniawan swore at him and was generally abusive.
[104] Ms Hart argued that I should watch the CCTV footage to determine for myself whether the Local Court had 'mischaracterised' the evidence to such a degree that it made a finding without any evidence to support it. Reliance was placed on Haritos at [217] where the Full Court of the Federal Court held that the Tribunal had made an error of law in giving no weight to the evidence of an independent witness who corroborated the evidence of the appellant on the basis that the independent witness's evidence was derived from a tainted source, namely the appellant.
[105] The Federal Court held (at [218]) that to so conclude was not to enter into the field of merits review or fact-finding, but was to supervise the legality of the fact-finding process of the Tribunal. The evidence was said to be central and important evidence. The Federal Court held that an examination of the evidence, without the need for any weighing of evidence or choosing between available inferences or findings, revealed that the evidence did not derive from the tainted source.
[106] In the context of all of the other evidence about incidents between Ms Kurniawan and body corporate members during this long-running 'feud', I do not accept that the evidence about the incident on 29 April 2019 was central and important evidence in the sense described in . Ms Hart argued that it was important as evidencing Mr Gifkins' malice against Ms Kurniawan because the CCTV footage established that Mr Gifkins was waiting in the foyer to confront Ms Kurniawan, called the police because he thought Ms Kurniawan had slammed the gate, and the verbal altercation between Ms Kurniawan and Mr Gifkins only occurred after he called the police 'for no valid reason'. It was argued that Mr Gifkins' call to the police was 'unreasonable' because 'who calls the police for slamming a gate?' and thus it was evidence of malice.
[107] These matters confirm the immateriality of this evidence in the context of all of the interactions the subject of this 'feud'. Its immateriality in that broader context explains the failure of the Local Court to make reference to this incident specifically when addressing the defence of justification and whether imputations 2 to 7 were substantially true.
[108] Ms Hart was inviting this Court to do precisely what the Federal Court in Haritos said it was not doing, namely to engage in a merits review of the Local Court's fact-finding by weighing evidence and choosing between available inferences or findings.
[109] Here, the evidence included both affidavit evidence and oral evidence from both Ms Kurniawan and Mr Gifkins about what happened. The CCTV footage had no audio. The Local Court found that Ms Kurniawan had slammed the gate, and that she and Mr Gifkins had exchanged words during which she swore at him and was generally abusive. It was not in dispute that, at some point, Mr Gifkins called the police and Ms Kurniawan was charged with breaching the PVRO in relation to this incident. The Local Court's findings were rationally open on the evidence and any other conclusion would require the weighing of evidence or choosing between available inferences or findings, which is not permitted in an appeal on a question of law.

[67]

[118] Ms Hart argued in writing that the Local Court did not set out any legal principles relating to the defence of justification, and only set out (at [84]) that s 22 of the Defamation Act 2006 (NT) provides that it is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter are substantially true. It was, however, accepted that s 22 accords with the common law position that partial justification is not a defence.
[119] Given the Local Court's reference to s 22, which accords with the common law position, that detailed written submissions were made to the Local Court about the principles to be applied to this defence, and the approach taken by the Local Court to the assessment of whether each imputation was substantially true, it is sufficiently clear that the Local Court was cognisant of the relevant principles, which may be summarised as follows.
[120] In order to establish that an imputation is substantially true, Mr Gifkins had to establish that every material part of it was true.[27] That does not mean that Mr Gifkins had to prove the truth of every detail of the words of an imputation; rather he had to 'meet the sting' of the imputation.[28] The imputation must not be considered in a meticulous sense; rather the words employed must be true in substance and in fact.[29] Inaccuracy in some detail which does not alter or aggravate the character of the imputations is immaterial.[30]
[121] The Local Court found (at [92]) that imputation 1 was not conveyed by the report, but found that, if it had been, it was substantially true because Ms Kurniawan was listed as Mr Yerriah's representative in the second NTCAT proceedings, the triviality and timing of the commencement of those proceedings indicated that they were commenced in retaliation for the body corporate enforcing the no dog rule, and they were not genuine but were primarily to harass and intimidate the members of the management committee. The Local Court found (at [93]) that the PVROs then before the courts were initiated by the committee members in response to the harassment by Ms Kurniawan which was her retaliation to the enforcement of the no dog rule. The Local Court found (at [94]) that the criminal proceeding arose from the same matters where Ms Kurniawan was intending to harass and intimidate Mr Gifkins.
[122] Ms Hart argued that these findings were erroneous because the various proceedings were not commenced by Ms Kurniawan, so the imputation that she was knowingly involved in them, they were not genuine and they were driven by her desire to intimidate, harass, annoy and frustrate the committee's work could not be substantially true.
[123] It was clearly open to the Local Court to make these findings, including because of its finding (at [16]) that the report equated the actions of Ms Kurniawan with the actions of Mr Yerriah and suggested they were working as a team.
[124] The alleged error is not an error of law comprised of ignoring a material part of the imputation, but a complaint about the facts as found or inferred by the Local Court, when there was clearly evidence to support those findings or inferences.
[125] No error of law is demonstrated and this ground fails.

[71]

[127] Insofar as I understood it, the submission of Ms Hart was that the Local Court had 'failed to take into account a relevant consideration', namely that mediation was an option before a PVRO was granted which Ms Kurniawan and Mr Yerriah had indicated a willingness to engage in, and the failure to take this matter into account comprised an error of law. I repeat my observations at paragraph [113]-[114] above about the flaws in such an argument and the proper approach to such a ground of appeal.
[128] On 18 February 2019, solicitors acting for the body corporate wrote to Ms Kurniawan informing her that, since the NTCAT proceedings seeking to enforce the no dog by-law had been initiated, she had engaged in aggressive and abusive behaviour against members of the body corporate, requesting that she immediately cease contacting the body corporate members and desist from aggressive or abusive behaviour against them, and inviting her to participate in a mediation conference to pursue a resolution of the matter.[31]
[129] On 19 February 2019, Ms Kurniawan emailed the solicitors indicating she and Mr Yerriah would like to have a mediation conference prior to 5 March 2019.
[130] On 24 February 2019, the incident near the lift in the basement involving Ms Kurniawan, Mr Gifkins and Ms Richardson occurred. The Local Court found (at [65]-[70]) that Mr Gifkins and Ms Richardson were waiting for the lift in the basement, Ms Kurniawan saw them, approached them closely and spoke to them in an aggressive manner, calling Ms Richardson (who was suffering from terminal brain cancer) a 'fucking bitch' and saying 'I hope you die soon'. The Local Court found that Ms Kurniawan looked aggressive and angry on the CCTV footage, a fact which Mr Gifkins confirmed in his evidence. The Local Court found Ms Kurniawan then forced her way in front of Mr Gifkins and Ms Richardson to get in the lift.
[131] On 25 February 2019, Mr Gifkins, Ms Richardson and Mr Gay applied for PVROs against Ms Kurniawan.
[132] In those circumstances, Ms Kurniawan's acceptance of the offer of mediation is wholly immaterial, having been completely overshadowed by her conduct towards Mr Gifkins and Ms Richardson on 24 February 2019, which prompted them to seek the PVROs the following day, and which undoubtedly led them to reject as disingenuous Ms Kurniawan's acceptance of the offer of mediation.
[133] Even if this ground was properly a question of law, which I do not accept, the Local Court's failure to take into account when assessing the truth of the asserted imputations the evidence about Ms Kurniawan accepting the offer of mediation is entirely rational and appropriate.
[134] No error of law is demonstrated and this ground fails.

[75]

[136] The Local Court held (at [33]) that it had concluded Ms Kurniawan told lies about not using bolt cutters to cut a lock, and that she was getting changed when Mr Gifkins took photos of her, and that it had found other parts of her evidence unreliable, so where her evidence conflicted with the evidence of other witnesses or other evidence such as CCTV, it was not accepted.
[137] The Local Court held (at [39]) that there were a number of controversial matters which required findings. The first of those was Ms Kurniawan's knowledge of the no dog rule. The Local Court observed (at [40]) that Ms Kurniawan's very first answer in cross-examination was whether she knew dogs were not allowed and her answers raised issues as to her credibility. A passage of the cross-examination is set out in which Ms Kurniawan was asked if she knew before she moved into the building that there was a by-law that did not permit dogs in the building. She answered: 'I wasn't completely sure about it'. She was asked if she was aware before she moved in that Mr Yerriah had made two attempts to change the by-laws so that dogs were permitted. She answered: 'I wasn't - no, I'm not aware exactly what he is doing'. Asked if Mr Yerriah had told her there was a by-law that did not permit a dog, she answered: 'No, [he] did not tell me that'.
[138] The Local Court found (at [41]) that it was highly unlikely that Ms Kurniawan was not aware of Mr Yerriah's unsuccessful attempts to change the by-laws by the time she moved in. The Local Court observed (at [42]) that Ms Kurniawan's first answer was that she was not completely sure about the no dog rule, which suggested she did know something about dogs not being allowed, and by the third answer she was clear that Mr Yerriah had not told her about the no dog rule. The Local Court found (at [43]) this unusual and unlikely, and found that Ms Kurniawan moved in, with a dog, knowing it was against the rules.
[139] Ms Hart made the following oral submission about this ground:

[79]

[141] The submission appeared to be that the Local Court had no power to make a finding that Ms Kurniawan was lying because the proposition that she was lying was not put to Ms Kurniawan in cross-examination, and the issue of whether she knew about the no dog rule when she moved in was not a fact in issue because it was not pleaded in the Defence. Acknowledging that no objection was taken to the questioning on what was said to be an irrelevant issue, and that Ms Kurniawan's credibility was in issue generally, Ms Hart submitted that Ms Kurniawan had been denied procedural fairness in relation to this finding.
[142] There was no necessity for it to be put to Ms Kurniawan in cross-examination that she was lying about her knowledge of the no dog rule because the Local Court did not make a finding that Ms Kurniawan lied in the witness box about this issue. The Local Court found, on the basis of her answer that she was not completely sure about a by-law prohibiting dogs, that she was aware when she moved in that having a dog was against the rules. The distinction between that finding and the express findings that Ms Kurniawan lied about not using bolt cutters to cut a lock and that she was getting changed when Mr Gifkins took photos of her, makes that clear. Reading the Local Court's reasons as a whole, the finding was that Ms Kurniawan's evidence on this issue was unreliable, as was her evidence on various other issues.
[143] To find that Ms Kurniawan was an unreliable witness was not a denial of procedural fairness in circumstances where there were differing versions before the Court of numerous interactions between the players, those players were called to give evidence, and the Local Court would be required to consider their credibility in determining the factual contests.
[144] The assertion that this 'erroneous' finding was 'critical' to the Local Court's assessment of Ms Kurniawan's credibility and the justification defence simply cannot be accepted, given the positive findings that she lied in the witness box in relation to two other issues, and gave unreliable evidence in relation to numerous other matters.
[145] Further, credibility evidence may be adduced in cross-examination, whether it relates to a fact in issue in the proceedings or not.[32]
[146] In reply, Ms Hart submitted that the Local Court gave 'too much weight to adverse credit findings to the extent that his Honour failed to take into account what was relevant in essence in finding the defences'. When it was pointed out that giving too much weight to evidence is merely a question of fact, and that none of the 21 asserted questions of law referred to giving too much weight to this evidence, she responded that: 'one of the grounds of appeal includes credibility ... and that falls under the same umbrella'.
[147] This submission supports the view expressed in paragraph [69] above, that there was a colourable attempt to disguise pure questions of fact as questions of law.
[148] No error of law is demonstrated and this ground fails.

[86]

[153] It follows that all of the controversial facts were pleaded in relation to imputations 1, 2, 3 and 7. The pleadings in relation to imputations 4, 5 and 6 were more confined, consistently with the more confined and specific subject matter of each. Imputation 4 related specifically to aggression against committee members around the pool during BBQs, and it was expressly dealt with by the Local Court in that way (at [97]). Imputation 5 related specifically to swearing at Mr Gifkins and Ms Richardson in the basement, and it was expressly dealt with by the Local Court in that way (at [98], referring to [65]-[70]). Imputation 6 related specifically to damaging property (the lock) and breaking into the locked storage cage, and it was expressly dealt with by the Local Court in that way (at [99], referring to [47]-[54]). There is nothing in this complaint.
[154] Even if this were not the case, a conclusion of error would not necessarily follow. It is well-established that pleadings are not ends in themselves but a means to the end of attaining justice, and a party may be permitted to depart from its pleadings.[33]
[155] In oral submissions, Ms Hart argued that the Local Court's finding that imputation 4 was substantially true was erroneous because it took into account 'holistically the whole findings that he has made' in relation to the uncontroversial facts. The foundation for this submission appeared to be the Local Court's finding (at [97]) that Ms Kurniawan 'was aggressive against committee members around the pool and BBQ area for reasons discussed above'. Given that there were only two incidents referred to under the heading 'controversial facts' which involved Ms Kurniawan and committee members around the pool, this submission is unsustainable.
[156] Ms Hart also submitted that it was relevant to this ground of appeal that Mr Gifkins had, during both of the pool incidents, taken a photo of Ms Kurniawan, about which she confronted him. This was said to be 'a relevant factor' which the Local Court had not taken into account when assessing the truth of imputation 4 because it was the reason that Ms Kurniawan became aggressive. I repeat my observations at paragraph [113]-[114] above about the flaws in such an argument and the proper approach to such a ground of appeal.
[157] Imputation 4 does not contain any reference to a reason for Ms Kurniawan's aggression - it is simply that she became aggressive. Consequently, any reason for her aggression cannot be relevant to the assessment of the truth of the imputation. When I pointed that out to Ms Hart, her response was:

[98]

[162] The Local Court recorded (at [104]) Ms Kurniawan's concession that the report was made on an occasion of privilege within the defence of qualified privilege. The Local Court rejected (at [106]) Ms Kurniawan's submission that parts of the report went beyond what was germane and reasonably appropriate to the occasion of privilege.
[163] There were two aspects to the tenth ground. The first complaint was that the Local Court misdirected itself as to the common law principles regarding the relevance of the report to the privileged occasion because, at [85] of the Reasons, reference was made to s 27 of the Defamation Act, which was not relied upon by Mr Gifkins in his Defence.
[164] The Local Court referred (at [87]) to the common law qualified privilege, to the fact that the parties had referred to several authorities on that privilege, and (at [87]-[90]) the Local Court quoted from three of those authorities addressing the privilege, when it applies and what its limits are.
[165] Ms Hart argued that it should be inferred from the Local Court's reference to s 27, and its analysis of the operation of the defence of qualified privilege (at [106]-[107]) that the Local Court had erroneously applied s 27 instead of the principles applicable to the common law privilege. This submission was altered during argument to one that the Local Court had applied both s 27 and the common law principles 'at the same time'.
[166] The Local Court found (at [107]) that the report was 'germane to the occasion'. Those words do not appear in s 27. They do appear in the extract from Cush v Dillon[34] set out by the Local Court at [89]. In concluding that the defence of qualified privilege was established, the Local Court did not find that the conduct of Mr Gifkins in publishing the report was 'reasonable in the circumstances'. That is an express requirement for the s 27 defence of qualified privilege (s 27(1)(c)).
[167] There is no substance to the submission that, in referring (at [106]) to the report having explained why proceedings were commenced, Ms Kurniawan's hostile reaction to those proceedings, the effect of the harassment of committee members, the financial time and costs associated with further proceedings, and the outcome of those proceedings, the Local Court took into account the matters in s 27(3)(c) (the nature of the business environment in which Mr Gifkins operated) and (h) (whether the report contained the substance of Ms Kurniawan's side of the story and, if not, whether a reasonable attempt was made to obtain and publish a response from her). Nothing about the Local Court's summary of the content of the report, which was relevant to whether it was germane to the occasion (the occasion being identified at [102]), suggests even remotely that the Local Court was applying s 27(3)(c) or (h).
[168] Ms Hart argued that the Local Court's reference (at [86]) to s 27(4) requiring Ms Kurniawan to prove the report was actuated by malice, together with the Local Court's consideration (at [108]-[117]) of malice, was also an indication that the Local Court had applied s 27 with or instead of the common law principles applicable to the defence of qualified privilege. In the reply to the defence of qualified privilege, Ms Kurniawan pleaded that the report was published with malice. Malice was, therefore, a matter which the Local Court had to determine when considering the defence of qualified privilege.
[169] These matters demonstrate that, despite referring to s 27 earlier in the Reasons, the Local Court did not apply that provision and applied the common law privilege principles when deciding that the defence of qualified privilege was made out.
[170] The second aspect of this ground was a complaint that the Local Court failed to consider the tenor and inflammatory language used in the report in concluding that the defence of qualified privilege was made out, which was also said to be another indication that the Local Court had misdirected itself and not applied the common law principles. Reliance was placed on the words 'harassing' and 'intimidating', 'breaking into' the storage cage, and the headings 'Criminal proceedings' and 'Time to open the kimono' as demonstrating that the report was not germane to the occasion.
[171] Ms Hart acknowledged that vituperative or emotional language or tone in a publication is relevant to both whether qualified privilege is made out (i.e., whether the publication was germane to the occasion) and the issue of malice. Under the heading 'No malice', the Local Court found (at [110]) that there was no malice evident in the report. The Local Court dealt specifically (at [111]-[115]) with the heading 'Time to open the kimono'.
[172] The Local Court found (at [107]) that the report was germane to the occasion 'and not excessive'. That finding is immediately followed by the section of the reasons dealing with malice. I do not accept that, in making the finding at [107], the Local Court ignored and did not take into account the language and tone of the report, being considerations which may also be relevant to the issue of malice. The finding that the report was not 'excessive' is a finding that the language and tone of the report was not such as to render the report, or any part of it, beyond what was germane and reasonably appropriate to the occasion.
[173] The eleventh ground was no more than a complaint that the Local Court had not found that parts of the report were not germane and reasonably appropriate to the occasion. It is either repetitive of the tenth ground or, in substance, solely a question of fact. If the former, it fails for the same reasons that the tenth ground does. If the latter, it is not open to Ms Kurniawan to raise it on this appeal.
[174] No error of law is demonstrated and these grounds fail.

[104]

[176] Ms Hart submitted that the Local Court had not referred to any of the authorities regarding malice, and had referred only to s 27(4) of the Defamation Act (which speaks of malice), thereby demonstrating misdirection as to the principles relating to malice.
[177] This submission is not an accurate characterisation of the Reasons and I reject it. Two of the three authorities cited by the Local Court (at [87]-[90]) were cases which turned on the issue of malice.
[178] Roberts v Bass[35] is a leading authority in which the High Court confirmed (at [79]) that malice is properly defined as a motive for, or a purpose of, defaming the plaintiff that is inconsistent with the duty or interest that protects the occasion of the publication. The passage set out by the Local Court (at [87]) from Roberts v Bass states that qualified privilege is qualified by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement. This is a direct reference in the Reasons to the common law definition of malice.
[179] In Cush v Dillon[36] (referred to by the Local Court at [88]-[89]), French CJ, Crennan and Kiefel JJ repeated (at [14]) what had been said by the majority of the High Court in Roberts v Bass, adding that qualified privilege is lost if the person making the statement did so for an improper motive, 'express malice' being the term of art used to describe an improper motive. One of the passages cited by the Local Court from Cush v Dillon (being [19]) is part of their Honours' explanation of the relationship between qualified privilege and malice (at [13]), which included (at [15]) that express malice cannot be approached in isolation independent of whether there was present a duty or interest which would support the privilege because a conclusion of express malice requires a finding that the maker of the statement was actuated by a motive not connected to the furtherance of the duty or interest so found, (at [17]) that a statement which was extraneous to, and made outside of, the 'umbrella' of the privilege would not be protected by it and it would not be necessary to address the question of malice, and (at [19] - a passage quoted by the Local Court) to identify the limits of the privilege, it is necessary for the trial judge to consider the matter of the duty or interest and rule whether the defendant has published something 'beyond what was germane and reasonably appropriate to the occasion'. Satisfied of that, their Honours went on to consider (at [24]) the issue of malice as it arose in the case before them.
[180] That is precisely the approach the Local Court took in this case. Satisfied (at [107]) that the report was germane to the occasion and not excessive, the Local Court went on to consider (at [108] ff) the issue of malice.
[181] There was no dispute between the parties as to the legal principles applicable to express malice. There was, therefore, no cause for the Local Court to further recite the legal principles in addressing the issue.
[182] No error of law is demonstrated and these grounds fail.

[110]

[185] Further, a dislike of the plaintiff, or an indignation at what the defendant believed to be the plaintiff's conduct (together with their taking advantage of the occasion to expose that conduct), is not sufficient to establish express malice unless that is shown to be the dominant (or paramount) motive for the defendant's publication.[37] Further, a finding that a defendant acted emotionally when publishing a statement does not mean that the defendant was motivated by an improper purpose.[38]
[186] While dispute between Ms Kurniawan and Mr Yerriah on the one hand and Mr Gifkins and other members of the management committee on the other, might permit an inference that there were some feelings of ill-will, dislike or indignation on Mr Gifkins' part towards Ms Kurniawan, that is clearly not sufficient to infer that he was motivated by an improper purpose to publish the report. The Local Court expressly referred (at [108]) to the long and protracted dispute.
[187] From the facts as found by the Local Court about the two pool incidents, the basement incident and the April 2019 incidents, no inference could rationally be drawn that Mr Gifkins had engaged in 'abusive and intimidating behaviour' towards Ms Kurniawan. No such inference was drawn by the Local Court.
[188] Even if that inference were drawn, it would not be sufficient to establish that Mr Gifkins published the report with an improper motive, particularly where Mr Gifkins denied any such improper motive in cross-examination, gave evidence-in-chief as to his motives, which were not improper, and was found by the Local Court to be a credible witness.
[189] I pause here to record that, contrary to the submission of Ms Hart, the evidence of what occurred during the pool and other incidents relied on is not 'direct evidence [of] malice'. The evidence would, if accepted (which they were not), be the basis for the drawing of an inference that Mr Gifkins published the report for the improper purpose. Such an inference is not 'direct evidence'.
[190] The Local Court took into account (at [109]) a degree of hostility on Mr Gifkins' part. It took into account (at 110]) that the report accurately described the various proceedings. It took into account (at [111]-[115]) the language of the report. It took into account (at [116]) that Mr Gifkins sent drafts of the report to the other committee members and the body corporate's lawyer, and adopted the recommended changes. It found (at [117]) that the publication was not actuated by malice.
[191] This asserted question of law is, in substance, solely a question of fact. It complains that the Local Court should have made a finding which it did not and seeks to have this Court make it. That would require the weighing of evidence or choosing between available inferences or findings, which is not permitted in an appeal on a question of law.
[192] It is not open to Ms Kurniawan on this appeal to raise this ground.

[114]

[194] Paragraph 21 of the report is part of the summary of the evidence giving rise to the making of the three PVROs against Ms Kurniawan to prohibit her from 'harassing, intimidating or verbally abusing' three committee members. Paragraph 21 refers to '[b]reaking into Cage 25, and damaging property' belonging to Mr Gifkins. Paragraph 27 is the heading 'Criminal Cases', which is followed by a paragraph about the criminal case against Mr Gay, and by paragraph 29, which refers to Ms Kurniawan being 'presently criminally prosecuted for breaching' the PVRO in which Mr Gifkins is protected from her 'abuse and harassment', with the prosecution case involving evidence from Mr Gifkins and two other witnesses being heard the month before.
[195] This is a report about the consequences for the body corporate and its members of the protracted dispute with Ms Kurniawan and her partner. Those consequences included applications for, and the grant of, PVROs in favour of three body corporate members restraining Ms Kurniawan from, in respect of two of them, using a device to film or record them, in respect of one of them, from using the gate near the letterboxes to exit or enter the building, and for all three, from harassing or verbally abusing them.[39]
[196] In that context, use of the words 'abuse', 'harassment' and 'intimidation' are not vituperative or inflammatory.[40] They are words entirely accurate and appropriate to the context. Similarly, where there were two criminal cases arising from this dispute, the words 'criminal cases' is not vituperative or inflammatory. So too, what was said about the prosecution of Ms Kurniawan for breaching the PVRO. Given the Local Court's findings about the 'locked storage cage' incident, namely that Ms Kurniawan used bolt cutters to cut Mr Gifkins' combination lock from the storage cage, removed his items and replaced the lock with one of her own, the use of the words 'breaking into' and 'damaging property' are again not vituperative or inflammatory and are entirely accurate and appropriate to the context.
[197] This asserted question of law is, in substance, solely a question of fact. It seeks to challenge the Local Court's finding of fact (at [110]) that there was no malice evident in the report, when the Reasons clearly demonstrate that the Local Court took into account the words appearing in the report, and to have this Court make a different finding. That would require the weighing of evidence or choosing between available inferences or findings, which is not permitted in an appeal on a question of law.
[198] It is not open to Ms Kurniawan on this appeal to raise this ground.

[122]

[206] Ms Hart relied on Matheson v Schneiderman[42] for the proposition that, where a defendant becomes aware that the statement is false but thereafter still refuses to withdraw it or apologise, that may be evidence from which malice can be inferred.
[207] It is only necessary to repeat the proposition to demonstrate the flaw in the submission that the authority applies here. There is no suggestion or argument here that the statement in the report that Ms Kurniawan was the subject of an ongoing criminal proceeding is false. If that statement is not false, there is nothing to correct or apologise for.
[208] Furthermore, in that case, what was actually held by the New Zealand Supreme Court was (at 155), by reference to authority, that while a refusal on the part of a defendant to apologise for, or retract, a defamatory statement when they become aware of its falsity may be properly considered on the issue of damages, it is not (at all events per se) to be regarded as evidence of malice. The Court observed (at 155-156) that it was somewhat difficult to see why such evidence should not be taken into consideration for the purpose of considering the issue of malice, but it was unnecessary to express a concluded opinion on the point. The Court held (at 156-157) that a direction by the trial judge to the jury that a failure to retract was not evidence of malice was not a misdirection.
[209] The case does not stand for the proposition for which it was relied upon and the proposition is not relevant to the present case when the statement in question was not false.
[210] Furthermore, the words 'attack' and 'baseless' in the asserted question are inappropriately emotive characterisations of the report and the particular part of it which was in issue. Nor is there any merit in the submission that the only available inference from Mr Gifkins' failure to notify the recipients that Ms Kurniawan was acquitted is that he was actuated by malice. The point of the report was to inform the owners about how the body corporate's money and time had been expended. The report set that out in relation to the criminal proceedings, and made clear they had been heard but not determined. It also expressly indicated when and where the decision would be delivered, if any recipient was interested to hear the outcome.
[211] Even if this ground was a question of law (which I do not accept), no error of law has been demonstrated and this ground fails.

At a glance

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Judgment (181 paragraphs)

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Legislation Cited (4)

Cases Cited (36)