Murray v Raynor

Court of Appeal (NSW)|2019-10-08|Before: Macfarlan JA, Payne JA

Solicitors: Kalantzis Lawyers (Appellant) Goldsmiths Lawyers (Respondent) File Number(s): 2019/171030 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2019] NSWDC 189 Date of Decision: 17 May 2019 Before: Gibson DCJ File Number(s): 2017/261180

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Headnote [This headnote is not to be read as part of the judgment] In 2017, the appellant, Ms Murray, was a tenant at the Watermark apartment building in Manly. The respondent, Mr Raynor, was a resident proprietor of one of the units in the Watermark building and the Chair of the strata committee (sometimes referred to as the owners corporation) for the building. An issue at the building at that time was a concern expressed by the respondent about the security of mailboxes at the complex and whether by reason of the appellant leaving her mailbox unlocked theft from other mailboxes at the Watermark building was facilitated. A good deal of electronic communication passed between the parties about that subject. Ultimately, an email from the appellant was sent to the respondent and copied to 16 other recipients (being the owners of the units at the Watermark), which prompted proceedings in defamation. The primary judge found in favour of the respondent and awarded him $120,000 in damages. The appellant proceeded in this court on the basis that the pleaded imputations did arise, but said that nevertheless the defence of qualified privilege was made out and the respondent failed to prove malice. The appellant did not press an allegation of apprehended bias raised by the notice of appeal. The issues in the appeal were: 1. Whether the primary judge erred in failing to find the defence of common law privilege applied. 2. Whether the primary judge incorrectly assessed the quantum of damages.

The Court (Payne JA, Macfarlan JA and Emmett AJA agreeing) held, allowing the appeal: The critical first step in determining whether a defamatory publication is made in circumstances attracting a qualified privilege at common law is to identify the privileged occasion. As ultimately accepted by the respondent, the primary judge had not sufficiently done so. The primary judge should have concluded that the occasion of qualified privilege was the communication to residents of Watermark on the topic of management of the building including the security of mailboxes: [22]-[24]. LVMH Watch & Jewellery Australia Pty Ltd v Michael Lassanah & Ors [2011] NSWCA 370 applied. To be relevant to the occasion for the purposes of common law qualified privilege, defamatory statements must be sufficiently connected to the privileged occasion to attract the defence. Scientific precision is impossible in determining the relevance of defamatory statements to the privileged occasion. In every case a judgment is involved. In finding that the publication was made for "the purpose of humiliating, belittling and insulting [the respondent] in the most hurtful way possible", the primary judge appeared to conflate matters relevant in determining malice with determination of whether the publication was relevant to the occasion of qualified privilege. Even if this finding was borne out, it was critical to examine whether the defamatory matter in respect of which the defence was advanced was extraneous to that subject matter or was sufficiently connected and germane and reasonably appropriate to it. Not having precisely identified the privileged occasion, the finding of the primary judge about the relevance of the defamatory matter to the privileged occasion was also flawed. The matter complained of was relevant and germane to the occasion of privilege: [33]-[42], [55]. Bashford v Information Australia (Newsletters) Pty Ltd; Cush v Dillon (2011) 243 CLR 298; [2011] HCA; Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044 referred to. The primary judge should have found that there had been an "attack" for the purposes of the reply to attack subset of qualified privilege. However, the reply was made to a different "body" than the matter complained of, so did not attract the defence: [53]-[60]. Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44 referred to. Proof of ill-will, prejudice, bias, recklessness, lack of belief in truth or some improper motive is insufficient of itself to establish that malice actuated the publication. The primary judge's findings that malice had been proven should be set aside. The respondent was not entitled to expand the debate about malice in this Court. The correct conclusion was that the respondent failed to establish malice: [73], [87]-[88]. Roberts v Bass; Fraser v Holmes [2009] NSWCA 36; Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30; Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.

The Court (Payne JA, Macfarlan JA and Emmett AJA agreeing) held, on a contingent basis: There is in New South Wales an unresolved issue about the correct interpretation of ss 34 and 35 of the Defamation Act 2005. There is much to commend the view of that the cap provided by s 35 is to be understood as fixing the outer limit of damages for non-economic loss, in contrast to the position taken in Victoria. Argument was not addressed to this issue and it is undesirable for that reason to reach any conclusions here: [92]-[95]. Attrill v Christie [2007] NSWSC 1386; Tabbaa v Nine Network Pty Ltd (No 10) [2018] NSWSC 468; Chel v Fairfax Media Publications (No 7) [2017] NSWSC 996; Visscher v Maritime Union of Australia (No 6) (2014) 98 NSWLR 764; [2014] NSWSC 350; Kim Anne Ahmed v Harbour Radio Pty Limited [2013] NSWSC 1928; Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No 6) [2013] NSWSC 1651; Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091; Bauer Media v Wilson (2018) 56 VR 674; [2018] VSCA 154 considered. Even assuming the more liberal approach to the cap on damages preferred in Victoria is adopted, an award of $120,000 for an email in these terms addressed to 16 people was a manifestly excessive award. On general damages, no more than $25,000 should have been awarded. There was no occasion in this case for the award of aggravated damages: [95]-[97].

Judgment

MACFARLAN JA: I agree with Payne JA.
PAYNE JA: In 2017, the appellant, Ms Murray, was a tenant at the Watermark apartment building in Manly. The respondent, Mr Raynor, was a resident proprietor of one of the units in the Watermark building and the Chair of the strata committee (sometimes referred to as the owners corporation) for the building.
An issue at the building at that time was a concern expressed by Mr Raynor about the security of mailboxes at the complex and whether by reason of the appellant, Ms Murray, leaving her mailbox unlocked theft from other mailboxes at the Watermark building was facilitated.
A good deal of electronic communication passed between the parties about that subject. Ultimately, an email from Ms Murray was sent to Mr Raynor and copied to 16 other recipients (being the owners of the units at the Watermark), which prompted proceedings in defamation. On 17 May 2019, following a judge alone trial, Gibson DCJ delivered judgment in those proceedings in favour of Mr Raynor and awarded him $120,000 in damages. Ms Murray appealed as of right to this Court.

Brief facts

In July 2016, the appellant became a tenant at Watermark Apartments in Manly. The respondent lived in an apartment which he owned at Watermark and was the Chairman of the Strata Committee.
The respondent sent a number of emails to the appellant from a time shortly after she moved in to the Watermark building: 1. on 25 July 2016, an email to the appellant (copied to residents and agents for the owners of tenanted units) enclosing information regarding Watermark. This included a section about "Mailboxes". There was no reference in that email to locking mailboxes; 2. on 31 August 2016, an email to the appellant, stating "I notice your mailbox has been left unlocked for quite a while?"; 3. on 13 December 2016, an email to the appellant, copying an employee of the strata managers for Watermark, raising a complaint about a party. The appellant responded the same day; 4. on 10 April 2017, an email to the appellant stating: "Residents have again expressed their concern over your mailbox being left open all the time. There have been a number of incidents in Manly of thieves searched thru mailboxes looking for mail and Identity papers and having books obviously open can only encourage them. Would you mind closing the box." The email also included a copy of the text of the email sent on 31 August 2016; 1. on 21 April 2017, the respondent sent a group email to owners, residents and agents of the Watermark stating that during the night of 20/21 April "potential thieves" had opened mailboxes in the building. "All Residents It appears that during the night of 20/21 April 17 our mailboxes were opened by potential thieves. (At least 10 of the 15 boxes were still open this morning, so it is probable that all were opened during the night.) As you would be aware from many articles in the local press, this is a common problem in Manly and potentially serious as the "boxers" are after documents that allow them to steal your identity and obtain credit cards etc., in your name. Accordingly would you please • make sure your mailbox is closed and locked ASAP (a number are still open this evening). • keep it locked so as not to encourage opportunists to try the boxes or check on our lock types. • check to see if you may have had important documents in the box last night that could be used in Identity theft. We will check to see if there is something we can do to improve security of the boxes but in the interim - in your own Interests - please follow the advice in this article: http://www.dailytelegraph.com.au/newslocal/manlv-dailv/stealing-mail-from- letterboxes-for-identity-theft-and-for-bank-cards/news/story/aa1ad2da10e5110c35abff107107d9f6?nk=700c 33692e4c12066c360445c0ec05d3-1492757784 Regards Gary Raynor Chairman of the Strata Committee …"; 1. the respondent included a link to an article on the Daily Telegraph website, concerning identity theft based on mail stolen from mailboxes. The Daily Telegraph article, with a Manly Daily by-line, was published on 20 December 2016 and was titled "Stealing mail from letterboxes for identity theft and for bank cards". The article reported that the police were "urging residents to secure their letterboxes after a spate of mail thefts in Manly and Dee Why in recent weeks". The article quoted police officers saying that while mail theft might seem like a petty crime, it could facilitate identity theft. Northern Beaches crime manager Inspector Justin Hadley was reported as saying that residents should use padlocks on their letterboxes or install improved locks. He also stated that "strata managers should consider the secure placement and design of letter boxes and the installation of CCTV to catch and deter mail thieves."; 2. on 27 April 2017, the respondent emailed the appellant. The email said he presumed that the appellant was away and asked that she arrange to have her mailbox closed "and kept locked at all times" (emphasis in original). He went on to say that "exactly" what he had warned about had occurred, and that the appellant's "open box may have contributed to the ease with which they apparently obtained a master key to open the other boxes". This email included the text of the emails of 10 April 2017 and 31 August 2016. The appellant responded the same day: "Hi Gary Wow! What's your take on this? "…and your open box may have contributed to the ease with which they apparently obtained a master key to open the other boxes" Regards Trish"; 1. the respondent replied on 28 April 2017. He reiterated that "it is possible" that the appellant leaving her letterbox open had contributed to the break ins, and recounted that he had been told by locksmiths "that by checking the barrel on the lock [thieves] can determine the lock type and have what is effectively a master key cut for the locks.", and that this was apparently the most common way they gain access to corporate boxes. The email continued by saying "we have no way of knowing" whether this was done by checking the appellant's open box, or if they already had a collection of master keys. The email concluded, "[i]n any case you will have to keep your box closed and locked in the future"; 2. on 2 May 2017, the respondent sent a further group email, reporting that "at least five of our mailboxes were again opened over the night of 1/2 May 17". This email also included a copy of the contents of the 21 April email, including the link to the Daily Telegraph website; 3. on 5 May 2017, the respondent sent an email to the appellant, saying that her mailbox had been open "for the last two days". The email asked whether the box was "left open or been opened by someone else". Copied below were the emails of 27 April and 10 April 2017, and 31 August 2016; 4. On 24 May 2017, the respondent sent an email to the appellant, copying the agent for the owner of the appellant's unit. Copies of a number of the earlier emails were attached. That email was as follows: "Hi Trish As your mailbox has again been open for the last few days it is obvious I have not been able to convince you of the seriousness of this issue. As I pointed out in my emails on 27/4/17 and 28/4/17 it is probable that your insistence in leaving the mailbox open during many months is the likely cause of the so called 'boxers' being able to obtain a skeleton key to our corporate mailboxes. The consequences of this breach of the security of our mailboxes have been serious - and may get more serious. In addition to the fact that residents have been inconvenienced and - in some cases - obliged to go to the expense of obtaining Postal Boxes - it is still possible that the Owners Corporation may have to have all the boxes rekeyed. This would be a serious expense and inconvenience for all concerned. If this becomes necessary - or individual residents suffer losses or expenses as a consequence of the breach - I believe the Committee would - and should - seek compensation from the owner of Lot 9. (By copy, I am notifying the agent for Lot 9 that this is a real possibility.) While it is now too late to overcome the fact that at least one group of thieves have access to the boxes, I must insist that you lock your mailbox - and keep it locked in future - to avoid further aggravating the problem. Regards Gary Raynor Chairman of the Strata Committee".
The appellant emailed the respondent the following day. The email was also addressed to 16 others being owners in the building and her real estate agent, who was copied in by the respondent in his email of 24 May. The contents of the email are the subject of the defamation proceedings. "From: Trish Murray: Date: Thu, 25 May 2017 13:48:49 +1000 Subject: Re: Watermark: Unit 9 mailbox To: Gary Raynor … Cc: Jason Hitchman - Agent Unit 9 Gary, You have now sent many emails to me in our time here at Watermark. Your latest topic "letterboxes". Your assertion/s that a single unlocked letterbox has allowed a criminal milieu to stalk the watermark building, and spend the time necessary to copy barrels/locks in order to then construct a master key is farfetched. Each letterbox has an individual key allowing access. I have noticed on several occasions over the last year (because of your fixation on this issue) that other residents mailboxes have also been left unlocked from time to time. Did you open the front panel Garry? It has not gone unnoticed that the panel to all the letterboxes was opened only following your months of campaigning to have all residents comply with your demands! Residents make an individual decision on whether they lock their own letterbox, which is why we each have a key. We have risk assessed our requirements and decided that, for the most part, we are comfortable with any residual risk to our mail items. You also may have noticed that you have had some packages personally delivered to your front door? At least on two occasions, I have done so, as a courtesy to you as your packages had been left for you at the entrance outside of the building. I do this for all residents when the opportunity arises and our experience with the other residents has been nothing but delightful. The foyer of our Watermark building is well lit and has reasonable surveillance from street level and inside the foyer. This, in addition to residents frequent movement in and out of the building at different times of the day and night, makes it somewhat risky for a thief(?) to spend the time you are suggesting they would need to copy locks in order to then obtain master keys, if that is indeed possible in the manner you are prosecuting. So, unless you know something we dont know about the spoils/secrets being delivered to residents mailboxes. I am doubtful that thieves would execute a Mission Impossible scenario on the Watermark building. Existing types of letterbox locks are not designed to have the same security features as the key to our respective front doors and, indeed, the security key to the entrance foyer. The nature of the keys used to open letterboxes such as ours is such that, it is more likely that thieves (if that is indeed what has happened) have already got their hands on a master key for the letterboxes. This is what used to happen in years gone by. These letterbox locks are not designed to make access like a fortress, but more of a convenience for the owner of the letterbox to have easy access and lock (if they so wish). You will also find your key could probably open other letterboxes. Letterbox locks are a deterrent and not fortress security. May I suggest, given your email hobby, that you may want to elect to have things such as banking statements and the like provided to you in e-Statement format to avoid physical mail being delivered to you. Now, to put, the risk/reward scenario of stealing from Watermark letterboxes I offer you as follows; 1. Theft from letterboxes is opportunistic and thieves weigh up their likelihood of being seen or caught. They may go past a place and see a letterbox unlocked and have a look and take something if they decide. 2. It is more likely, a thief will roam the streets and steal from unlocked cars and houses where they can immediately take and convert something into cash. 3. There are faster ways to open the front panel of our letterbox than the manner you suggest (eg. a criminal conspiracy going to great efforts to obtain a master key); if you believe that someone is stalking Watermark and have evidence of this, then please share this information with us. Gary. we are happy friendly people here in unit 9. My partner has 32 years of Police and forensic expertise, but rather than a simple knock on my door for a chat in person, or speak to me face to face when we have exchanged pleasantries in the foyer, or while I'm putting the buildings bins out on the street, you have consistently chosen the public email option; copy in all residents and/or my real [estate] agent, sundry alleging that responsibility for the threat and safety to our home at Watermark is our doing and threatening to hold us financially responsible. You have never asked why we keep the letterbox open? To avoid further harassment, I've not replied to your provoking letterbox emails. However your consistent attempt to shame me publically is cowardly. It is also offensive, harassing and menacing through the use of technology to threaten me. [Note: this paragraph comprises Lines 72, 73 and 74 referred to below] Please stop! Trish Murray"
It is clear that in the course of communications there was an elision between the topic of stealing mail from open letter boxes thereby permitting identity theft in relation to the user of that mailbox and the topic of "master keys being cut" for all mailboxes from inspection of one unlocked mailbox, which is the essence of the allegation levelled by the respondent against the appellant in the email dated 24 May 2017 which was the subject of the reply in the matter complained of.

The pleadings

The respondent's further amended statement of claim dated 13 December 2018 pleaded the following defamatory imputations: 1. The respondent unreasonably harassed the appellant by consistently threatening her by email (lines 73-74 and the matter as a whole). 2. The respondent acted menacingly towards the appellant by consistently threatening her by email (lines 73-74 and the matter as a whole). 3. The respondent is a malicious person who sent threatening emails to the appellant and copied in other residents of the Watermark building for the express purpose of publicly humiliating the appellant (lines 72-73 and the matter as a whole). 4. The respondent is a small minded busybody who wastes the time of fellow residents on petty items concerning the running of the Watermark building (the matter as a whole).
The appellant's defence pleaded the existence of common law qualified privilege. The respondent's reply pleaded malice.

Decision of the primary judge

On 17 May 2019, the primary judge delivered her judgment. Her Honour found each of the pleaded defamatory imputations to have been conveyed and addressed a number of issues which are no longer relevant given the grounds of appeal. Relevantly, about the issue of common law qualified privilege, her Honour reached the following conclusions: 1. although the primary judge did not expressly identify the nature of the privileged occasion, her Honour concluded that qualified privilege may be lost if the communication was not made for the reason that makes the occasion privileged. In this case "the connection to the occasion of privilege was not made out and the occasion of privilege was lost."; 2. "[e]very sentence in this email conveyed contempt and anger." Whilst stating that this might be an exceptional case where the language and manner of the communication could result in loss of the privileged occasion, referring to Assaf v Skalkos [2000] NSWSC 418 and Skalkos v Assaf (2002) Aust Torts Reports 81-644; [2002] NSWCA 14, her Honour did not determine the case on that basis; 3. "the nature of the occasion of privilege is lost because the communication has not been made for the reason that makes the occasion privileged, but for the purpose of humiliating, belittling and insulting the respondent in the most hurtful way possible." Her Honour elsewhere stated that "[m]erely being a resident in a strata building does not entitle that person the right to publish indiscriminately or contrary to meeting procedure."
The primary judge considered, on a contingent basis, the proposition that qualified privilege was attracted because the defamatory publication was a reply to attack. On this question her Honour reached the following conclusions: 1. there is a "privilege to hit back when one's reputation is attacked": Alexander v Clegg [2004] 3 NZLR 586 at 602. There must be some proportionality between the attack and the response: Trad v Harbour Radio Pty Ltd [2009] NSWSC 750 at [135]; Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440; [1998] WASC 183. Not only must the response be germane and appropriate, but the language should not be unnecessarily defamatory or introduce extraneous matter(s); 2. in the present case, the appellant had not identified with precision the specific attack that she was responding to; 3. there was no attack upon the appellant in this case. The respondent was exercising his duties as Chair of the strata committee, first to check if the appellant was aware her mailbox was open, then, following police advice to secure mailboxes, to draw her attention to that police advice and finally to notify residents of the two mailbox break-ins and the need for vigilance. The appellant was neither mentioned in the group emails nor attacked. Her Honour found that the respondent's emails were courteous, if firm, in terms of passing on advice from the locksmith he consulted; 4. her Honour found that the response went wholly outside the parameters of the debate and was disproportionate, in terms of both content and language, to the document(s) the publication was replying to.
In relation to malice, the primary judge concluded that the appellant's knowledge of falsity, prior hostility and ill-will, and the total disproportion between the matter complained of and the extent of publication were each individually sufficient to amount to evidence of malice. Specific findings were made that: 1. "the [respondent] had not consistently chosen the public option, and that he had not copied in all residents or the [appellant's] real estate agent into the prior emails about which she complained. She knew his emails were not harassing in nature and that she was not being harassed by him"; 2. the appellant was recklessly indifferent to the truth or falsity of her statements. Her Honour accepted that the appellant's actual knowledge was demonstrated by the selective nature of the "cut and paste" action and the deletion of the "recipients" portion of the emails, and her recklessness included not reading the "attachments" to the two emails, being the article from the Daily Telegraph website summarised at [6(6)] above. The primary judge concluded that the article contained advice from the police that all residents, including the appellant, should keep their mailboxes locked; 3. the appellant's response was disproportionate to the prior email correspondence, as that earlier correspondence "was not only polite information about the security of the Watermark building, but did not descend into the kind of personal attacks on the [appellant's] character that the [appellant] was now making about the [respondent]"; 4. the appellant was angry and resentful at being told to keep her mailbox closed. Her Honour found that the appellant published the matter complained of to humiliate and insult the respondent in the eyes of all the other residents in the building and she was motivated by her hostility and ill-will towards him in doing so; 5. the appellant's publication to other persons with no prior knowledge of the respondent's emails went far beyond what was proper, thereby evidencing an improper purpose.
Her Honour reached the following conclusions about damages: 1. that a "substantial award of damages" was appropriate. As to evidence of the plaintiff's hurt feelings, the respondent felt he could not respond to the other owners, as that would make things worse, so he kept quiet and wondered what people were thinking, causing more hurt. Her Honour referred to the fact that the libel was unexpected, in circumstances where the respondent was endeavouring as Chair of the strata committee, to deal with two mailbox break-ins. Her Honour referred to the respondent's distress throughout the trial and described this as "a case where there is strong evidence of hurt to feelings"; 2. the mode and extent of publication, to all the owners of Watermark, meant that while the defamatory publication was limited, it affected the respondent in the place where he lived. While her Honour acknowledged the publication was limited to 16 recipients, she considered that "it was clearly discussed by them with other members of their family"; 3. the conduct of trial, including bringing a defence of justification, and the failure of the appellant to respond to three letters seeking an apology warranted aggravated damages of $30,000. The respondent's distress throughout the trial was also relevant. Her Honour concluded: "the falsity of the imputations … the conduct of the defendant at trial …, namely the bringing of a baseless defence in that the defendant's 'cut and paste' exercise misrepresented the prior correspondence … and the recklessness of the publication (as well as of the defendant's refusal to even read, let alone answer, the plaintiff's requests for an apology) as set out in the particulars would each, individually, warrant the award of aggravated damages."

Consideration

In this appeal the appellant proceeded on the basis that the pleaded imputations did, in fact, arise but said that nevertheless the defence of qualified privilege was made out and the respondent failed to prove malice.
The issues in this Court on appeal were, first, the existence of common law qualified privilege. The components of the debate in this Court on this topic were: 1. identification of the privileged occasion; 2. relevance of the defamatory statements to the privileged occasion; and 3. whether malice had been established.
The second issue was the quantum of damages. It was submitted that for an email to a limited circle of recipients the award of $120,000 in damages was manifestly excessive.
The allegation of apprehended bias raised by the notice of appeal was abandoned at the hearing.

Submissions

The appellant submitted that her Honour failed specifically to identify the privileged occasion. It was submitted that this was a clear occasion of privilege.
The primary judge recognised that the correct process for determining a defence of common law qualified privilege comprised three elements, the first of which was to identify whether the occasion of qualified privilege was created. Her Honour referred to Megna v Marshall [2010] NSWSC 686 at [50]. Simpson J there said that the first element determining a defence of common law qualified privilege requires: "…identification of an occasion of qualified privilege by reference to all of the circumstances in which the communication is published, including, particularly, the subject matter of the communication: this involves the identification of a duty or interest in the publisher to communicate with respect to that subject matter, and the identification of a reciprocal interest in the recipient in receiving a communication with respect to that subject matter;"
The respondent ultimately accepted that the primary judge had not sufficiently identified a duty or interest in the publisher to communicate with respect to that subject matter and the identification of a reciprocal interest in the recipient in receiving a communication with respect to that subject matter. The respondent sought and obtained leave to file a notice of contention on this issue as follows: "Her Honour should have found that the occasion of qualified privilege was the communication to residents of Watermark on the topic of management of the building including the security of mailboxes."

Consideration

The critical first step in determining whether a defamatory publication is made in circumstances attracting a qualified privilege at common law is to identify the privileged occasion. In LVMH Watch & Jewellery Australia Pty Ltd v Michael Lassanah & Ors [2011] NSWCA 370 Bergin CJ in Eq, Giles and Campbell JJA agreeing held: "[91] In identifying the 'occasion' it is important to consider the 'hallmark' of reciprocity of duty and interest: Cush v Dillon; Boland v Dillon (2011) 279 ALR 631; [2011] HCA 30 per French CJ, Crennan and Kiefel JJ at 635 [11]. It has also been referred to as a 'special and reciprocal interest': Andreyevich v Kosovich (1947) 47 SR (NSW) 357 per Jordan CJ at 363 referred to in Aktas v Westpac Banking Corporation Limited (2010) 241 CLR 79; [2010] HCA 25 per French CJ, Gummow and Hayne JJ at 91 [31]. The Trial Judge referred to this as the 'guiding principle' and with reference to Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 observed that there must be a "close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication" (at [207]) (These words are in fact those of Dixon J (as his Honour then was) in Guise v Kouvelis (1947) 74 CLR 102 at 116). [92] In considering the defence of qualified privilege at common law it is imperative, as a first step, to identify the occasion to enable the subsequent proper analysis of whether the publication is relevant or germane to the occasion. If the occasion is not so identified it becomes difficult to assess whether something is foreign to the occasion when a claim of malice is made."
In this case, the appellant had an interest in communications between the strata committee and residents at Watermark about management of the building including the security of mailboxes. The owners of units in the Watermark building had a reciprocal interest in receiving a communication with respect to that subject matter. This was a topic of "special and reciprocal interest" to the appellant and all of the owners of units at Watermark.
It is sufficient for present purposes to accept the formulation offered in the respondent's notice of contention on this issue. The primary judge should have concluded that the occasion of qualified privilege was the communication to residents of Watermark on the topic of management of the building including the security of mailboxes.

Relevance of the defamatory statements to the privileged occasion

Submissions

It was submitted that the primary judge erred in finding at [289] that the "communication has not been made for the reason that makes the occasion privileged", as this conflated the questions of relevance to the privileged occasion and malice.
The appellant submitted that there must be a sufficient connection to the privileged occasion to attract the defence. No narrow view should be taken of the pursuit of duty or interest in what was said on an occasion of privilege.
It was submitted that the appellant's state of mind is not a matter to be taken into account on the question of relevance to the occasion. The appellant submitted that the primary judge relied on this Court's decision in Assaf v Skalkos (2002) Aust Torts Reports 81-644; [2002] NSWCA 14 in support of her finding of lack of relevance to the occasion because of the language in the matter complained of, which her Honour found "conveys contempt and anger": [288]. It was submitted that her Honour erred in that finding. It was submitted to be inconsistent with her Honour's statement (at [299]) that: "Ms Chrysanthou in her oral submissions noted that language was irrelevant both to the occasion of privilege and to malice. I have accepted these submissions, although the language of the matter complained of is well outside the usual parameters."
The respondent contended that the test for relevance was that set out by Kirby J in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at [191] (drawn from Adam v Ward [1917] AC 309) that the publication cannot go beyond what was germane and reasonably appropriate for the occasion. Reasonably appropriate, the respondent submitted, does not mean not completely irrelevant, as urged by the appellant.
The respondent submitted that the imputations in relation to harassing and menacing conduct by the respondent were gratuitous and not connected or germane to the occasion of privilege. The email was a personal allegation against the respondent that he has been harassing and dealing in a menacing way towards her.
The respondent submitted that the appellant's publication was not motivated by her interest in the privileged occasion concerning management of the building or security of the mailboxes. Her email, it was submitted, was in response to the perceived threat against the appellant, made because she was a tenant, that she may be evicted. It was submitted that the appellant had given evidence that, in effect, it was necessary to raise the stakes and let the owners know that the respondent was attacking her as a tenant. This was said to be irrelevant to any occasion concerning the security of mailboxes within the Watermark building. It was conceded that this evidence was not expressly referred to in the judgment. However, it was submitted the evidence in relation to the appellant's motive related to the primary judge's findings that the nature of the communication and the status or position of the publisher rendered it irrelevant to the privileged occasion.
As to the submission concerning Assaf v Skalkos, the respondent submitted that the primary judge did not make a definitive finding based on Assaf v Skalkos, relying instead on her Honour's other findings in relation to relevance.
It was submitted that the extract at [286] of the primary judgment from Megna at [118] conceded that there may be cases where language used can override the occasion. The respondent noted that the Court of Appeal in Megna appeared to confirm that excessive language was not the determinant for sufficient connection to the privileged occasion: Marshall v Megna [2013] NSWCA 30 at [201] (per Beazley JA).

Consideration

To be relevant to the occasion for the purposes of common law qualified privilege, defamatory statements must be sufficiently connected to the privileged occasion to attract the defence: Bashford v Information Australia (Newsletters) Pty Ltd per Gleeson CJ, Hayne and Heydon JJ at [27]-[30]; Gummow J at [191]-[196]. It was common ground on the appeal that this was an objective test and to the extent that the primary judge took into account subjective intention or purpose that that would be an error.
No narrow view should be taken of the pursuit of duty or interest in what was said on an occasion of privilege: Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30 at [22]. There, French CJ, Crennan and Kiefel JJ dealt with a submission that a statement was extraneous to, and made outside of, the "umbrella of the applicable privilege". If this were correct, the privilege would not extend to protect the statement. Their Honours quoted the much relied upon passage of Parke B in Toogood v Spyring (1834) 1 Cr M & R 181 at 193; 149 ER 1044 at 1050 for statements to attract the qualified privilege: "If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits." (emphasis added in the High Court).
Their Honours in Cush v Dillon reiterated that Adam v Ward confirms that there may be limits to what may be said upon a subject on an occasion of qualified privilege and that those limits are to be tested by the connection of the statement to the subject, stating (at [22]): "It is not necessary to determine whether the descriptions given of irrelevant material in Adam v Ward vary as to the stringency with which relevance ought to be tested. The passage from Toogood v Spyring [(1834) 1 Cr M & R 181 at 193; 149 ER 1044 at 1050]] suggests that no narrow view should be taken of the pursuit of a duty or interest in what was said. To do so may unduly restrict the operation of the defence. More recently an issue of the kind here in question was stated in the joint judgment in Bashford v Information Australia (Newsletters) Pty Ltd [(2004) 218 CLR 366 at 378 [27]] to be 'whether the matter which defamed the appellant was sufficiently connected to the privileged occasion to attract the defence'. In that case the article in question incorrectly described the result of court proceedings, by identifying the plaintiff as the subject of findings of contravention of s 52 of the Trade Practices Act 1974 (Cth), by engaging in misleading and deceptive conduct. In fact the party the subject of the findings was a company controlled by the plaintiff and his wife. In the joint judgment it was held that the error 'did not alter or reduce the connection between the privileged occasion and the defamatory matter.'"
What must be considered is whether the defamatory statements were here sufficiently connected to the privileged occasion to attract the defence; the occasion being defined as "communication to residents of Watermark on the topic of management of the building including the security of mailboxes."
It is correct, as the respondent submitted, that the primary judge did not make any definitive finding about relevance to the occasion based on Assaf v Skalkos. It is thus unnecessary to consider the controversy that has arisen about the correctness of that decision or the ambit of its ratio.
Her Honour did, however, conclude that "privilege is lost because the communication has not been made for the reason that makes the occasion privileged, but for the purpose of humiliating, belittling and insulting the plaintiff in the most hurtful way possible". This central finding cannot stand.
As the extracts from the relevant cases described above make clear, scientific precision is impossible in determining the relevance of defamatory statements to the privileged occasion. In every case a judgment is involved. Her Honour's central finding, that privilege was lost "because the communication has not been made for the reason that makes the occasion privileged, but for the purpose of humiliating, belittling and insulting [the respondent] in the most hurtful way possible" appears to conflate matters relevant in determining malice with determination of whether the publication was relevant to the occasion of qualified privilege. In any event, as will become apparent when addressing the finding of malice, her Honour's critical findings about the appellant acting for the purpose of humiliating, belittling and insulting the respondent were based on credit findings arising from cross-examination on a proof of evidence not prepared by the appellant and which she had not seen prior to the cross-examination. That cross-examination was unfair and should not have been permitted. Much less should serious credit findings about the appellant have been made based upon it.
Further, even if it were correct that the appellant's subjective purpose in publishing the matter complained of was to humiliate, belittle or insult the respondent, that conclusion - in the absence of a finding that the matter complained of was not was "sufficiently connected" or "germane and reasonably appropriate" to the occasion of privilege - would not necessarily lead to the conclusion that the defamatory statements were not sufficiently connected to the privileged occasion to attract the defence.
What was necessary was the identification, with some degree of precision, of the relevant subject matter of the occasion of privilege. It was ultimately common ground that that did not occur here. It was then critical to examine whether the defamatory matter in respect of which the defence was advanced was extraneous to that subject matter or was "sufficiently connected" and "germane and reasonably appropriate" to it. Not having addressed the first limb of the test, it follows that the finding of the primary judge about the relevance of the defamatory matter to the privileged occasion was also flawed.
Even if it were assumed that the primary judge had properly identified the privileged occasion, the only finding arguably relating to the necessary connection to the occasion of privilege, paragraph [289] which incorporated some findings drawn from paragraph [285], cannot stand.
The finding in [289] was that the findings set out in paragraphs [285] (a) - (c) were "more than sufficient to warrant a finding that the nature of the occasion of privilege is lost because the communication has not been made for the reason that makes the occasion privileged, but for the purpose of humiliating, belittling and insulting the appellant in the most hurtful way possible…". As I have said, the ultimate finding in [289], was based in substantial part on a credit finding which must be set aside.
Further, upon examination, none of the matters referred to in paragraphs [285] (a) - (c) support a finding that the defamatory material was not relevant to the particular occasion of privilege.
The finding in [285(a)] was that privilege may be lost if not made for the reason that makes the occasion privileged. That was not a finding about the matter complained of here, or any part of it, but more an observation about an aspect of the nature of the defence. The cases cited in [285(a)], each in the context of criminal investigations or allegations of crime, were at best only tangentially relevant to the enquiry into relevance to the occasion called for here. The observation in [285(a)] was no substitute for the enquiry described in Bashford.
The finding, really an observation, in [285(b)] that "merely being a resident in a strata building does not entitle that person the right to publish indiscriminately or contrary to meeting procedure" was not part of the enquiry described in Bashford. The observation that "being a resident in a strata building does not entitle that person the right to publish indiscriminately" may be accepted, but the respondent's case here was not that the appellant published the defamation beyond the owners of units in the Watermark. The primary judge did not actually make a finding that the appellant published the matter complained of "indiscriminately". If, for example, the matter complained of had been published on an internet platform open to all this may have been a very different case. But no such question arises here. The observation that "merely being a resident in a strata building does not entitle that person the right to publish … contrary to meeting procedure" may or may not be correct. There was no relevant evidence in this case relating to meeting procedure of the strata committee or owners corporation, save that the strata committee met infrequently and that most business was transacted by email.
The finding in [285(c)], in full, was that, "The number of recipients and the nature of the interest they had in receiving it. Factors such as increasing or reducing the number of recipients may be relevant, as is the nature of interests of the recipients". This finding, if it be a finding rather than a description of an aspect of the reasoning in Bashford, does not address the relevance to the occasion of this publication.
It follows that the primary judge failed properly to identify what part or parts of the matter complained of were irrelevant to the privileged occasion.
This Court, pursuant to s 75A of the Supreme Court Act 1970 (NSW), is in as good a position as the trial court to make findings about the relevance of the matter complained of to the occasion of qualified privilege.
I have concluded that the content of the matter complained of is relevant and germane to the occasion of privilege being "communication to residents of Watermark on the topic of management of the building including the security of mailboxes". The relevance of the defamatory statements to the privileged occasion may be tested against the imputations found to be conveyed by the matter complained of: 1. the first imputation, that the respondent unreasonably harassed the defendant by consistently threatening her by email, was sufficiently connected to the privileged occasion. The matter about which the respondent complained had as its subject the "communication to residents of Watermark on the topic of management of the building" - in this case communications by the Chair of the strata committee to the appellant by email. The particular parts of the matter complained of which defamed the respondent related to that subject. The defamatory matter related to the subject because it, like the rest of the matter complained of, concerned the topic of communication to residents of Watermark about management of the building in general and the use of mailboxes in the building in particular; 2. the second imputation, that the respondent acted menacingly towards the appellant by consistently threatening her by email, was similarly sufficiently connected to the privileged occasion. The topic of the frequency and content of communications by the Chair of the strata committee by email to the appellant in her capacity as a resident of the Watermark building formed part of the identified privileged occasion, being communication to residents of Watermark on the topic of management of the building; 3. the third imputation, that the respondent is a malicious person who sent threatening emails to the appellant and copied in other residents of Watermark for the express purpose of publicly humiliating the appellant, is directly concerned with the frequency and content of email communications by the Chair of the strata committee to residents of the Watermark building. This formed part of the identified privileged occasion, being communication to residents of Watermark on the topic of management of the building; 4. the fourth imputation, that the respondent is a small minded busybody who wastes the time of fellow residents on petty items concerning the running of the Watermark building, was sufficiently connected to the occasion in that it dealt in terms with the manner and nature of email communications by the Chair of the strata committee to residents of Watermark. The characterisation of the topics dealt with in those communications as "petty items" which wasted the time of residents of the Watermark confirms rather than detracts from the strength of the connection to the occasion of privilege. The relevant "petty" items, in context, can only be a reference to the central subject matter of the matter complained of, the relationship between open mailboxes and theft from the Watermark building. This was directly relevant to the topic of communications to Watermark residents by the Chair of the committee about management of the building including the security of mailboxes. That is particularly so given the emails sent by the respondent to each of those recipients in the weeks preceding the matter complained of in relation to letterbox thefts and identity fraud. The matter complained of directly addressed the relevant subject matter and sought to undermine the allegations made by the respondent about the letterboxes and was thus relevant to the occasion of privilege.
The matter complained of was "sufficiently connected" and "germane and reasonably appropriate" to the occasion of privilege. The defamatory statements were relevant to the privileged occasion.

Reply to attack

Given the conclusion already reached it is only necessary to address this issue on a contingent basis: Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26. As publication of the response outside the forum of attack was not an express finding of the primary judge, there was also a notice of contention on this ground, in the following terms: "The defence of reply to attack qualified privilege ought to have been found to have failed because (in addition to the existing findings at PJ [295]) the reply to attack was also made to recipients who had never viewed the alleged attack."

Consideration

There are two issues arising in relation to the plea of reply to attack. First, did the respondent's email sent on 24 May 2017 constitute an "attack"? Secondly, if so, was the requirement that the attack and the reply be in the same forum met in this case?
In Penton v Calwell (1945) 70 CLR 219; [1945] HCA 51 at 233-234 Dixon J said: "The foundation of the privilege is the necessity of allowing the party attacked free scope to place his case before the body whose judgment the attacking party has sought to affect. In this instance, it is assumed to be the entire public. The purpose is to prevent the charges operating to his prejudice. It may be conceded that to impugn the truth of the charges contained in the attack and even the general veracity of the attacker may be a proper exercise of the privilege, if it be commensurate with the occasion. If that is a question submitted to or an argument used before the body to whom the attacker has appealed and it is done bona fide for the purpose of vindication, the law will not allow the liability of the party attacked to depend on the truth or otherwise of defamatory statements he so makes by way of defence."
It is thus first necessary to determine if the appellant had been subject to an attack. The primary judge found that there was not an attack at all by the respondent because he was "exercising his duties as [C]hair of the strata committee" in sending the emails which constituted any relevant "attacks".
I think it tolerably clear that the email sent on 24 May 2017 by the respondent to the appellant using the signature "Chairman of the Strata Committee", and copying in the appellant's agent was a significant attack upon the appellant. The email is set out above at [6(11)].
The only point of the respondent copying in the agent was to alert the appellant's landlord to the dispute between the appellant and the respondent in his capacity as Chair of the strata committee. Any landlord receiving this email would be alarmed about the threat of being required to pay for replacement locks on all mailboxes. A communication in those terms to the landlord was obviously intended to bring pressure upon the tenant, the appellant, to conform to the respondent's demand about locking her mailbox. The finding that there was not an attack by the respondent because the respondent was "exercising his duties as [C]hair of the strata committee" does not address the correct question. The email could properly be characterised as an exercise of duty as Chair of the strata committee and still meet the description of an "attack".
It remains however to deal with the notice of contention. The relevant attack by the respondent in the email dated 24 May 2017 was addressed to the appellant and her real estate agent. The reply to that attack was made to a different "body" than the matter complained of, all the owners of the strata units including the owner of the appellant's unit via the real estate agent. In Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44 Gummow, Hayne and Bell JJ said: "[33] The statement of principle by Dixon J at first instance in Penton looks to the foundation of the privilege and should be accepted. In that case, by way of response to attacks made by the plaintiff under parliamentary privilege upon the press coverage of the escape of Japanese prisoners of war at Cowra, the newspaper, of which the defendant was editor, responded that the plaintiff was 'maliciously and corruptly untruthful' and 'a dishonest, calculating liar'. In the action in the original jurisdiction of this Court the question was whether the form of this libel took it outside the qualified privilege claimed for the occasion, so that the plea should be struck out. This was a question on which the Court divided. What is presently of importance is that Dixon J said [(1945) 70 CLR 219 at 233-234; cf Watts v Times Newspapers Ltd [1997] QB 650 at 671]: 'The foundation of the privilege is the necessity of allowing the party attacked free scope to place his case before the body whose judgment the attacking party has sought to affect. In this instance, it is assumed to be the entire public. The purpose is to prevent the charges operating to his prejudice. It may be conceded that to impugn the truth of the charges contained in the attack and even the general veracity of the attacker may be a proper exercise of the privilege, if it be commensurate with the occasion. If that is a question submitted to or an argument used before the body to whom the attacker has appealed and it is done bona fide for the purpose of vindication, the law will not allow the liability of the party attacked to depend on the truth or otherwise of defamatory statements he so makes by way of defence.' (Emphasis added) In this passage it is the phrase "and it is done bona fide" which indicates the distinct role of malice to defeat what otherwise would be a good plea. The phrase "be commensurate with" reflects what was said by Earl Loreburn in Adam v Ward [[1917] AC 309 at 321]."
The matter complained of was not "submitted to … the body to whom the attacker has appealed". This is because the matter complained of was addressed to all owners of units in the Watermark building. The relevant attack was made in an email dated 24 May from the respondent to the appellant and her real estate agent. I would be prepared to infer that the other members of the strata committee comprised the "body to whom the attacker has appealed". Although they were not copied in on the email dated 24 May, the attack was made on their behalf. The appellant's reply, however, was distributed to people other than those on the strata committee. Whilst it is true that the owners of the units were ultimately responsible for electing the strata committee, the relevant attack did not thereby involve them.
It follows, that the respondent's notice of contention should be upheld on this point and the primary judge did not err in rejecting the appellant's reliance upon a reply to attack.

Malice

It will be recalled that on a contingent basis (assuming common law qualified privilege was otherwise available) the primary judge found the plea was defeated by malice.

Submissions

The appellant noted the presumption that the publisher acted honestly and with a proper purpose: Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [96]-[97]. Malice is a serious matter and the principles set out in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 361 apply to such a finding: Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 91A per Kirby P with whom Mahoney JA agreed at 98A. It was submitted that this was a heavy onus to discharge.
The appellant submitted that the primary judge should have found that the appellant felt that the respondent was trying to get her evicted and she decided that she needed to take steps to stop the respondent from his campaign of harassment. The appellant genuinely believed that the respondent's theory in relation to the letterbox that thieves could make a master key by studying the lock mechanism of an open mailbox was absurd and that his conduct amounted to threats and harassment.
The appellant gave evidence of her motive in publishing the matter complained of - to put an end to the harassing emails about the letterboxes from the respondent. That was in fact evident from the final words of the matter complained of, "Please stop". Paul Curby, the appellant's partner, assisted her to prepare the matter complained of and he gave evidence of their discussions and her beliefs during that preparation which the appellant submitted was wholly consistent with her evidence. Mr Curby was not cross-examined on these matters. The appellant then only sent the matter complained of to people who she understood were owners in the strata body (as opposed to tenants - who she did not include).
The appellant conceded that the emails were sarcastic. It was submitted that this was because the appellant thought that the respondent's views were ridiculous and that his conduct in pursuing her over the issue was harassment. This sarcasm did not prove malice.
It was submitted that, had the appellant in fact had the predominant motive of seeking to humiliate and insult the respondent then she would have sought to do so in a wider forum rather than limiting herself to the other owners in the block.
The primary judge found that the appellant knew that the respondent's emails to her were not harassing in nature and that she was not being harassed by him: at [300]. It was submitted that this was never put to the appellant, and was not pleaded as a particular of malice below , so was a finding not available to her Honour. Her Honour further made the finding of knowledge of falsity in the context of rejecting the appellant's and Mr Curby's evidence entirely when much of that evidence was unchallenged.
The appellant submitted that the assertion that she knew it was false to say that his emails were harassing in nature was not put to her and was made for the first time in oral submissions in reply.
Her Honour found that the appellant was reckless because she failed to read attachments to two earlier emails: [301]. The appellant submitted that it is unclear how this failure amounts to recklessness or is evidence of an improper motive in publishing the matter complained of.
The respondent noted that the primary judge acknowledged that the Briginshaw principles applied (at [306]), and that the appellant did not complain that the primary judge erred as to the correct legal principles. It was submitted that the finding as to malice was based on multiple bases of the evidence at trial, which persuaded the primary judge that the appellant was driven by a number of improper motives, each of which was individually sufficient to amount to malice. Given that the matters going to evidence malice were almost all concerned with the drafting of the content of the matter complained of and the manner it was sent, these were said to be matters which actuated the publication itself. The respondent pointed to the following findings: 1. Knowledge of falsity of the allegations. This was said to be "almost conclusive evidence that the defendant had some improper motive in publishing the material and that it actuated the publication": Roberts v Bass at [78], [90]. Using false information to render something less credible is an improper purpose. 2. Recklessness in deciding not to read the link to the Daily Telegraph website in the two "all residents" emails from the respondent which referred to police advice to keep mailboxes locked, referring to Roberts v Bass at [84], [87]. 3. Anger, hostility and ill-will towards the respondent. 4. The disproportionate nature of the response, by way of a personal attack in response to the respondent's concern about the security of the Watermark building.
The respondent also filed a notice of contention containing the following: "Publication of the matter complained of ought to have been found to have been motivated by malice (in addition to the existing findings at [306]) by reason of the appellant's reckless conduct in making and publishing the matter complained of, in combination with the appellant's: a. hostility and ill will towards the respondent; b. unreasoning prejudice towards the respondent;"
The respondent's oral submissions focussed particularly on the notice of contention. The improper purpose was said to be to damage the reputation of the respondent by humiliating him in front of the residents because of the appellant's anger and ill-will towards him in copying an email to her agent regarding the recent break ins and the mailboxes. It was also submitted that in Roberts v Bass, the High Court said that even if the improper motive cannot be articulated precisely, the establishment of knowledge of falsity is almost conclusive evidence that there was some improper motive in publishing, and that it actuated the publication.

Consideration

Proof of ill-will, prejudice, bias, recklessness, lack of belief in truth or some improper motive is insufficient of itself to establish that malice actuated the publication: Roberts v Bass, per Gaudron, McHugh and Gummow JJ at [74]-[104]; Fraser v Holmes [2009] NSWCA 36 at [50]-[68] per Tobias JA with whom McColl and Basten JJA agreed; Cush v Dillon at [27].
The dispositive reasoning about malice is contained in paragraphs [300]-[306] of the primary judge's reasons. The finding of malice must be set aside. This is for the following reasons.
First, the finding at [300] that "the [appellant] was well aware of the falsity of her allegations" must be set aside. The primary judge noted at [272] that the respondent's counsel had foreshadowed that he would make a challenge to whether the appellant in fact held the opinions in the matter complained of but "he did not do so in terms". The failure by the respondent's counsel to pursue the foreshadowed challenge should have led the primary judge to conclude that a finding of knowledge of falsity could not be made.
Secondly, there were two specific parts of the more general finding that the appellant was well aware of the falsity of her allegations. The first, that the appellant knew that the respondent had not "consistently chosen the public option" cannot amount to a finding of malice in the absence of any finding which explained, at least, what "the public option" was understood by the appellant to mean. It is by no means clear what "the public option" meant and her Honour made no finding about that matter, let alone a finding about what the appellant understood by the term. Perhaps her Honour meant, as was pleaded, the "public email option". That too is an imprecise term and before any conclusions could be drawn a finding would need to be made about that matter. The only finding made, at [234], was a rejection of the appellant's evidence. That evidence, in which the cross-examiner attempted to have the appellant agree about how another person might understand her email, did not provide any basis for a finding of knowledge of falsity. The evidence was set out by the primary judge at [233]: "Q. No, my question was do you agree that the person reading your email, be that an owner of an apartment at Watermark, would see your email and then, if you say they would read the emails below, they'd have no idea whether those emails were sent to all the other owners besides them or whether it was sent to two or three owners or the committee or Mr Hitchman or anybody? Correct? A. I don't know what they think. Q. What I'm saying to you is when you drafted this email it would have been prudent, wouldn't it, to say, 'Here's a chain of emails which Mr Raynor sent to me personally and the last one he copied in my agent'? A. Well, I just copied - I just did exactly what Mr Raynor did. Q. Because - A. Mr Raynor didn't do that with his previous emails either. Q. Because do you agree the impression that you have created by this document is that those chain of emails could have been sent to anybody including - A. No, I - Q. --owners? A. No, I don't agree with that. Q. So do you agree with the proposition that the reader would just be left wondering who those emails were sent to? A. No, I don't agree with that. (T 251)"
The rejection of this evidence by the primary judge at [234] does not permit a finding that "the [appellant] was well aware of the falsity of her allegations". To make a finding of knowledge of falsity required more, particularly in circumstances where the Briginshaw standard was being applied. How it was that the allegation that the respondent had chosen the public email option was false, let alone false to the knowledge of the appellant, was never satisfactorily explained by the respondent. The critical email in this case sent to the appellant and her real estate agent, at 4.56pm on 24 May 2017, was almost immediately (at 5.12pm) sent by the respondent to all members of the strata committee. Attached to that email was a collection of emails that had previously been sent by the respondent to the appellant. The covering email described the communications with the appellant in such familiar terms as to make the inference irresistible that that this is not the respondent's first electronic communication with the strata committee about the appellant and her mailbox. If it were necessary to reach a conclusion about the underlying fact, I am far from persuaded that the respondent proved that he had not "consistently chosen the public option". What is clear is that finding that the appellant "knew" he had must be set aside.
The second part of the finding of "knowledge of falsity" of her allegations was that the appellant "knew" that the respondent's emails "were not harassing in nature and that she was not being harassed by him". Whatever the correct characterisation of the succession of emails sent by the respondent to the appellant, the suggestion that the appellant "knew" that the emails were not harassing in nature and that she was not being harassed was not open in circumstances where: 1. this was not a particular of malice and no application was made to amend those particulars. I reject the proposition that a submission by the respondent at the very end of oral address and after the appellant's counsel had addressed amounted to acquiescence in the respondent conducting a case outside the pleadings. This is not a case of the kind described in Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 (at 497); and 2. the suggestion that the appellant "knew" that the emails were not harassing in nature and that she was not being harassed was never put squarely to the appellant in cross-examination. It would be fundamentally unfair to the appellant to conclude that she was actuated by malice based on "knowledge" she allegedly possessed which was never put to her.
In the absence of any pleading or cross-examination on this topic it should be concluded that the respondent failed to prove malice on this basis.
Thirdly, the primary judge's alternative finding at [301] that "reckless indifference to the truth or falsity" about material supposedly omitted from the matter complained of, which her Honour referred to as "the selective nature of the 'cut and paste' action" and deletion of the 'recipients' portion of the emails", must be set aside. The evidence on this point from the appellant, which is corroborated by the documentary record, was that the respondent had copied certain of his earlier emails into his email of 24 May 2017, without including the "recipients" portion of the emails. It was the appellant's reply to that email which became the matter complained of. As such, it necessarily contained the contents of the respondents' earlier email, including the previous emails the respondent had copied and pasted, in the format that he had sent them to the appellant; that is without the "recipients" portion of the emails. It is by no means clear precisely what the primary judge intended to find by reference to "the selective nature of the 'cut and paste' action". Her Honour made no clear finding about that matter, let alone a finding about what the appellant actually did or understood when she did it. Serious findings about whether the appellant was "recklessly indifferent to the truth or falsity of her allegations" must be based on findings, themselves based on a pleading and evidence. None of those elements were present here. To the contrary, the documentary evidence established that it was the respondent who had constructed the chain of emails in the form ultimately included by the appellant when sending the matter complained of.
The second foundational finding for the conclusion of reckless indifference was the finding that the appellant was reckless in not opening and reading the link to the article from the Daily Telegraph website described at [6(6)]. Even assuming there could ever be a finding of negligence based upon a failure to open and read a link to a website contained in an email, the finding that it was reckless to do so cannot stand. In any event recklessness, short of wilful blindness, is not enough to destroy the privilege: Roberts v Bass at [87].
Fourthly, the finding at [302]-[303] that the appellant's response was disproportionate and occasioned by "prior hostility, personal spite and ill-will towards the [respondent]" is inextricably bound up with the credit findings made by the primary judge which should not have been made. Over objection, cross-examination of the appellant had been permitted on an outline of evidence prepared by her lawyers. When shown the document the appellant said that she had never seen it before. It has not been shown that this evidence was untrue or mistaken. In the absence of any proper basis to doubt that evidence, that should have been the end of the cross-examination on this document. The cross-examination which occurred on the document was unfair. More troublingly, numerous credit findings about the appellant were made on the basis of this unfair cross-examination. These findings all proceeded on the basis that the appellant had disowned her "own statement". The incorrect references to a proof the appellant had never before seen as her "own statement" permeate the judgment: "[168] [The appellant's] reactions should be considered in light of her responses to another document about which she was cross-examined. The document in question was a copy of the [appellant's] own statement. The defendant was cross-examined about its contents, some parts of which, it was put to her, were inconsistent with her evidence. [169] The [appellant's] response to this line of questioning (for which there was a very compelling basis) was to deny authorship and to accuse Mr Potter of writing it himself: 'Q. Does this document represent an accurate summary of the evidence that you intended to give as at 22 January, when it was served on the plaintiff? A. I actually have no recollection of this document. I don't even know who wrote it and I actually-- Q. That's not what I asked you. A. --had spotted that there was no date. I don't, I don't know anything about this document. Q. Can I ask you the question again? You've sat in court and you've read this statement. Regardless of whether you saw it before, does this document, after you've read it, represent a fair summary of the evidence that you, as at 22 January, when it was served, a fair and accurate summary of your evidence? A. These are not my words and there's some things in this that is not correct. Q. You tell me what's not correct, please. A. Well, I, I - it's the first time I've seen this document, sir, and it's never been signed. I don't know who - even who wrote this document. Potentially you wrote this document, I don't know.' (T 185-186) … [170] … [The appellant] complained of "potentially some trickery" (T 186) and "lazy writing" (T 187), challenging the accuracy (T 188) as well as the honesty of the statement. … [172] … the cross-examination of the [appellant] on her own statement is instructive because the same pattern of overreaction, suspicion and complaint was raised by the [appellant] effectively to the whole of her own statement…" (Italics added)
Shortly put, these passages in the judgment, which form a critical part of the primary judge's reasoning about the appellant's credit, proceeded on a false basis. The document was not the appellant's "own statement". The suggestion that some adverse inference should be drawn from the fact that the appellant denied authorship of a document she did not, on the evidence, compose cannot be accepted. The fact that the outline contained differences from the appellant's sworn evidence could not, without more, form the basis of any finding. Despite the advantages which the primary judge no doubt enjoyed in seeing the appellant give evidence, this critical foundation of the adverse credit finding made by the primary judge cannot stand. The finding that the appellant's response was motivated by "prior hostility, personal spite and ill-will towards the [respondent]" must be set aside.
The respondent's notice of contention must also be rejected. The identified improper purpose is based, in part, on the findings of prior hostility, personal spite and ill-will towards the respondent which must be set aside. Further, the identified improper purpose, to damage the reputation of the respondent by humiliating him in front of the residents because of the appellant's anger and ill-will towards him, was not particularised by the respondent in his plea of malice and it would be unfair to allow the respondent to completely reframe his malice case in this Court. In any event, the conclusion the respondent asks the Court to draw is not one on all of the evidence I would be prepared to draw.
It is correct that the matter complained of can fairly be said to contain elements which are sarcastic and perhaps disrespectful to the respondent as Chair of the strata committee. The response, however, was specifically directed to an email in which the appellant reasonably believed that her landlord was being threatened with a significant financial penalty by reason of the appellant's behaviour. The finding that the appellant's response was so disproportionate as to evidence malice must be set aside.
Fifthly, the final basis upon which malice was found (at [305]), the extent of publication, does not of itself or in combination with any of the other matters demonstrate malice. It is true that the matter complained of was sent to all of the owners in the Watermark building. I do not accept, however, that this distribution was disproportionate let alone went "far beyond what was proper". What was being discussed affected all of the property owners. The respondent himself had introduced their interests in terms in his email of 24 May 2017 which asserted that the strata committee was considering having all the boxes rekeyed. As was obvious, the respondent remarked "This would be a serious expense and inconvenience for all concerned". The "all concerned" were, of course the owners of each of the units in the building. There was nothing disproportionate, let alone improper, in the appellant responding to this email by forwarding her response to the people whose interests the respondent had himself introduced into the discussion.
Sixthly, as I have remarked at a number of points, the findings of malice were outside the pleaded case. I reject the submission that the respondent was entitled to expand those particulars in submissions. I also reject the attempt in argument in this Court to expand the debate about malice. It is clear that counsel for the appellant did not consent to any expansion of the case in this way. The respondent is not (and was not) entitled to go outside his pleaded and particularised case on malice: Fairfax Media Publications Pty Limited v Gayle [2019] NSWCA 172 at [71], [132]-[137]. It is possible for a party to conduct a different case to the one that is pleaded, and that a failure to amend the pleadings and particulars will not necessarily preclude a verdict upon the facts as they have emerged at trial. This, however, was not such a case. I can discern no acquiescence on the part of the appellant to the quite different arguments and findings on malice which were made outside the pleaded case. The new arguments were made in oral address after counsel for the appellant had addressed and in circumstances where there was no opportunity afforded for submissions in reply.
I have concluded that, rather than remit the matter for another trial, this Court is in a position to itself make a finding about the absence of proof of malice. On the respondent's pleaded case and on the basis of the findings which should have been made which I have described above, and undertaking the task that s 75A of the Supreme Court Act requires, I am not satisfied that the respondent established malice. To reiterate: 1. Without repeating all I have said at [75]-[79], I am not satisfied on all of the evidence that it was established that the appellant knew that statements made by her in the matter complained of were false. In particular, I am not satisfied that the evidence established that the appellant knew that: 1. the respondent "had not consistently chosen the public email option", 2. the respondent had not copied in all residents and the defendant's real (estate) agent and (all and) sundry alleging that responsibility for the threat and safety to her home at Watermark was her doing and holding her financially responsible; and 3. the respondent had not consistently attempted to shame her publicly. 1. I am not, on the evidence, able to conclude that any of these statements were in fact false, let alone am I satisfied that the appellant knew that they were false. That is, assuming the "public option" means the public email option, I am not satisfied that the respondent did not consistently choose the public option. He appears clearly to have done so with the critical email dated 24 May 2017 which was sent by the respondent a few minutes after it was sent to the appellant to the strata committee. Whether the respondent had copied in all residents on relevant correspondence may be doubted, but there is no evidence that the appellant knew that fact. Given the content of the respondent's email to the strata committee on 24 May 2017 I would conclude that the respondent had attempted to shame the appellant publicly. I would certainly not conclude that the appellant knew that this statement was false. 2. Assuming, without deciding, that "reckless indifference to the truth" of a defamatory statement can ever (individually or in combination with other matters pleaded) amount to malice, and adopting what I have said at [80]-[81] above, I am not satisfied on all of the evidence that it was established that the appellant was recklessly indifferent to the truth or otherwise of the statements pleaded at paragraph 23A of the respondent's reply; 3. Assuming, without deciding, that the matters alleged in paragraph 23C of the respondent's reply were capable (individually or in combination with other matters pleaded) of amounting to malice, and adopting what I have said at [82]-[83] above, I am not satisfied on the evidence that the matter complained of was not commensurate with and was disproportionate to the emails from the respondent to the appellant; 4. I reject the submission that the failure of the appellant to agree to lock her mailbox in future was capable (individually or in combination with other matters pleaded) of amounting to evidence of an improper purpose; 5. I reject the submission that the fact, if it be the fact, that the appellant was "actuated in the publication of the matter complained of by personal spite or ill-will towards the [respondent]" is proof of malice. As I have said, proof of ill-will, prejudice, bias, recklessness, lack of belief in truth or some improper motive is insufficient of itself to establish that malice actuated the publication; 6. The primary judge noted that no submissions were addressed by the respondent to the pleading of risk assessment in paragraph 23F of the respondent's reply. The same was true on appeal. That matter does not support a finding of malice; 7. For the reasons given at [86], I reject the submission that the extent of the publication provides evidence of an improper purpose on the part of the appellant.

Conclusions

It follows that the appellant is entitled to succeed in this appeal and the correct conclusion was that the defence of common law qualified privilege was established.

Damages

Before leaving this case I propose briefly to address the question of damages on the contingent basis that common law qualified privilege did not apply: Kuru v State of New South Wales. It will be recalled that $90,000 was awarded for general damages and $30,000 for aggravated damages. The appellant's complaint is that this award was manifestly excessive.
Sections 34 and 35 of the Defamation Act 2005 (NSW) provide: "34 Damages to bear rational relationship to harm In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. 35 Damages for non-economic loss limited (1) Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250,000 or any other amount adjusted in accordance with this section from time to time (the maximum damages amount) that is applicable at the time damages are awarded. (2) A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages. … [The present amount declared for the purposes of s 35 (1) is $407,500: Gazette No 55 of 31.5.2019, p 1665.] … (4) The amount declared is to be the amount applicable under subsection (1) (or that amount as last adjusted under this section) adjusted by the percentage change in the amount estimated by the Australian Statistician of the average weekly total earnings of full-time adults in Australia over the 4 quarters preceding the date of the declaration for which those estimates are, at that date, available. (5) An amount declared for the time being under this section applies to the exclusion of the amount of $250,000 or an amount previously adjusted under this section. … (8) A declaration made or published in the Gazette after 1 July in a year and specifying a date that is before the date it is made or published as the date from which the amount declared by the order is to apply has effect as from that specified date."
As the primary judge observed, there is, at least in this State, an unresolved issue about the correct interpretation of ss 34 and 35 of the Defamation Act. For my part, there is much to commend the view of the issue taken by Bell J when her Honour was a member of the Supreme Court in Attrill v Christie [2007] NSWSC 1386: "[44] I approach the matter on the basis that the maximum damages amount provided by s 35 is to be understood as fixing the outer limit of damages for non-economic loss (in cases which do not warrant an award of aggravated damages) and by analogy with the approach explained by Hayne awards for non-economic loss are to find a place within a range marked out in this way. This is not to say that an award of the maximum damages amount in a case not warranting an award of aggravated damages is to be reserved for the worst defamation imaginable."
That decision has been followed on this point on numerous occasions [1] : Tabbaa v Nine Network Pty Ltd (No 10) [2018] NSWSC 468, [153] per Fagan J An appeal was dismissed although this point was not raised on appeal Tabbaa v Nine Network Australia Pty Ltd [2019] NSWCA 69; Chel v Fairfax Media Publications (No 7) [2017] NSWSC 996, [10] per Beech-Jones J; Visscher v Maritime Union of Australia (No 6) (2014) 98 NSWLR 764; [2014] NSWSC 350, [235] per Beech-Jones J; Kim Anne Ahmed v Harbour Radio Pty Limited [2013] NSWSC 1928, [50] per Nicholas AJ; an appeal not raising this issue was allowed Harbour Radio Pty Ltd v Ahmed [2015] NSWCA 290, Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No 6) [2013] NSWSC 1651, [154] per Adamson J.
A different approach has been taken in Victoria. In Bauer Media v Wilson (2018) 56 VR 674; [2018] VSCA 154 the Victorian Court of Appeal held: "[213] In our view, the submission of Bauer that the combination of s 34 and s 35(1) creates a 'range' or 'scale' should be rejected. The submissions are based upon an inadequate foundation and supported only by authorities that adopt an approach relevant to different statutory language including statutes that, by contrast with s 35(1), expressly rely upon assessments of percentages of severity to a 'most extreme case'. The submission is not supported by more recent authority. Furthermore, it is not a necessary implication of the specification of the maximum damages amount in s 35(1) that it fix the upper limit of a range. We are mindful of the statutory mandate in s 6(2) that the Act does not affect the general law of defamation (under which, as mentioned, general damages are at large) [see [166] in Bauer Media] except to the extent it provides otherwise expressly or by necessary implication."
Argument was not addressed to this issue and it is undesirable for that reason to reach any conclusions here. Even assuming the more liberal approach to the question preferred in Victoria is adopted, an award of $120,000 for an email in these terms addressed to 16 people was a manifestly excessive award.
There were no findings here of any damage to the respondent's reputation and no need for a damages award to vindicate that reputation. The only possibly relevant finding on that topic was that "at least one recipient wondered what had really happened". That is an insufficient basis for the award of damages. Giving full effect to the primary judge's findings of hurt to feelings and the finding of the primary judge that the 16 recipients of the emails "discussed … them with other members of their family", $90,000 for general damages was excessive. On general damages, no more than $25,000 should have been awarded.
There was no occasion in this case for the award of aggravated damages. The principal basis for the award of aggravated damages was the appellant's "knowledge of the falsity contained within the matter complained of". For reasons earlier given, that finding should not have been made. Even if the defence of qualified privilege had failed the award of aggregated damages should not have been made. This was not a case where the conduct of the defence warranted an award of aggravated damages. If necessary to decide the issue, I would have set aside the award of aggravated damages.

Orders

For the foregoing reasons I propose the following orders: 1. Appeal allowed. 2. Set aside the orders of Gibson DCJ made on 17 May 2019 and in lieu thereof order: 1. Further amended statement of claim dismissed; 2. Plaintiff to pay the defendant's costs. 1. Respondent to pay the appellant's costs of the appeal.
EMMETT AJA: The respondent, Mr Gary Raynor, brought proceedings for defamation in the District Court against the appellant, Ms Patricia Murray. Mr Raynor complained that an email sent by Ms Murray to Mr Raynor, the owners of units in an apartment building in Manly (the Building), and Ms Murray's real estate agent was defamatory of him. A judge of the District Court accepted Mr Raynor's contentions and directed a verdict in the sum of $120,000. Ms Murray has appealed to this Court from the orders made by the primary judge.
Ms Murray was a tenant of one of the apartments in the Building. Mr Raynor, who is the chairman of the Strata Committee for the Building, had sent a number of emails to Ms Murray, complaining that she left unlocked the letterbox in respect of the apartment occupied by her. Mr Raynor asserted that, by doing so, she increased the risk of theft from all letterboxes in the Building. In the email that was the subject of the proceedings, Ms Murray asserted that she had been harassed by Mr Raynor.
Relevantly, Ms Murray relied on the defence of qualified privilege at common law. She said that the relevant occasion was the exchange of correspondence concerning the locking of her letterbox and that the communication about which Mr Raynor complained was relevant to that occasion. The primary judge found that there was relevantly an occasion of privilege and it is clear that all of the communications were relevant to that occasion. However, her Honour found that the matter complained of was motivated by malice on the part of Ms Murray and, accordingly, that the defence of qualified privilege was not available.
There are several deficiencies in the reasoning of the primary judge that led to the conclusion that the matter complained of was motivated by malice. I have had the advantage of reading in draft form the proposed reasons of Payne JA for allowing the appeal. I agree with his Honour's reasons and the orders proposed by him.

Endnote

McCallum J has taken a different view: see, for example, Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091 at [127].

Amendments 13 November 2019 - 88 - Internal reference amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 November 2019

Trade Practices Act 1974(Cth)

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