Pintegne v Woods

District Court of NSW|2009-12-17|Before: Mr P

DECISION: (1) Judgment in favour of the plaintiff in the sum of $12,500 plus interest at 2% for the period between 25 May 2007 to 26 February 10 in the amount of $668.50 for a total of $13,168.50. (2) Defendant to pay 50% of the plaintiff's costs, including the costs of senior counsel.

CATCHWORDS: TORT - defamation - common law qualified privilege - tests for common law qualified privilege

Aktas v Westpac Banking Corporation Ltd [2009] NSWCA 9 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; (2004) 204 ALR 193; (2004) 78 ALJR 346; (2004) Aust Torts Reports 81-727; [2004] HCA 5 Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470 Bennette v Cohen [2009] NSWCA 60 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; (1993) 113 ALR 577; (1993) 67 ALJR 634; (1993) Aust Torts Reports 81-227; [1993] HCA 31 CASES CITED: Cassell & Co Ltd v Broome [1972] AC 1027; [1972] 1 All ER 801; [1972] 2 WLR 645 Guise v Kouvelis (1947) 74 CLR 102; (1947) 53 ALR (CN) 617b; (1947) 21 ALJR 71b; (1947) 47 SR (NSW) 394; (1947) 64 WN (NSW) 117 Papaconstuntinos v Holmes à Court [2009] NSWSC 903 Radio 2UE Sydney Pty Ltd v Chesterton (2008) Aust Torts Reports ¶81-946; [2008] NSWCA 66 Roberts v Bass (2002) 212 CLR 1; (2002) 194 ALR 161; (2002) 77 ALJR 292; (2003) Aust Torts Reports 81-683; [2002] HCA 57 Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632; (1934) 8 ALJR 67 Triggell v Pheeney (1951) 82 CLR 497; [1951] ALR 453; (1951) 25 ALJR 96; (1951) 51 SR (NSW) 173; (1951) 68 WN (NSW) 187a

PARTIES: Plaintiff: Christopher Pintegne Defendant: Annette June Woods

COUNSEL: Plaintiff: Mr K Smark SC / Mr P Coady Defendant: Mr R Potter

SOLICITORS: Plaintiff: Brydens Compensation Lawyers Defendant: Ghobrial Legal

[1] The plaintiff brings an action for defamation against the defendant in respect of a letter dated the 25 May 2007 addressed to the Base Commander of the RAAF Base Richmond NSW. The plaintiff in May of 2007 was a pilot officer attached to the RAAF Base at Richmond.

[2] The letter is Schedule A to the Statement of Claim, and exhibit B in the proceedings .The defendant disputes that the imputations claimed to arise from the publication are defamatory and also claims that if the imputations are found to be defamatory the matter complained of was published under qualified privilege.

[3] The plaintiff when he first went to the base at Richmond became a tenant of the defendant. A lease dated 7 April 2006 was entered into between the plaintiff and the defendant (exhibit A). Additional terms to the lease included what is referred to as the RAAF clause. That clause states: "If the tenant is posted elsewhere, they may terminate this lease by giving a months notice in writing to the landlord, or their agent. The rent shall be payable to the date of termination only. Such notice shall be given on a rent day. Should the tenant cease to be a member of the RAAF, this special condition will automatically become invalid. Written proof of the posting is required for the agent's records. "

[4] The term of the lease according to the Lease Agreement was for 52 weeks beginning on 7 April 2006 and ending on 6 April 2007. The plaintiff stated in his evidence that he left premises at 6/10 Toxana St, Richmond in about February 2007. Prior to leaving the premises he gave a notice to vacate. The notice is part of exhibit A and states that notice is given to vacate the property on 31 January 2007. The reason for vacating is stated to be: "No oven/stove top for several weeks. Lock on the back sliding door not secure."

[5] Upon receipt of the notice to vacate, Wilkinson's, the real estate agents who were also managing the property advised the tenant that in vacating the premises prior to 6 April 2007, he was effectively breaking the lease agreement, and that he would be responsible for the rent until the property was relet or until the agreement expired.

[6] The defendant was advised by Wilkinson's that the tenant, the plaintiff, wished to terminate the lease and to vacate the premises on 31 January 2007. The defendant was also advised that the plaintiff was aware that the lease did not finish until 6 April 2007 and that he realised that he was responsible for rent until a new tenant was found and also responsible for the cost of the letting fee and the lease fee on any such new lease. The defendant was also advised that she would be kept informed and advised as to when a final inspection could be carried out.

[7] In his evidence, the plaintiff said that the oven/stove top in the subject premises caught on fire and that is why it was inoperable for the several weeks as referred to in the notice to vacate. He said when he received the letter of 5 January 2007 from the managing agent, he immediately made application to the Consumer, Trader and Tenancy Tribunal (CTTT). The notice of conciliation and hearing addressed to the managing agent, Wilkinson's Real Estate is part of exhibit A. The application was listed for hearing on Tuesday 6 February 2007.

[8] The order sought in the application was an order ending the Tenancy Agreement because of a breach by the landlord. The reason for the order was said to be that the landlord had breached the tenancy agreement by not providing sufficient cooking facilities despite the fact that the issues were reported months ago.

[9] The CTTT on 6 February 2007 made an order that the tenancy was ended by the tenant serving a termination notice on the landlord during the fixed term. The Tribunal found that the tenancy was ended by the tenant as the landlord had breached s 25 of the Residential Tenancy Act 1987 (NSW).

[10] The landlord, the defendant was not present at the hearing, but was represented by the managing agent.

[11] As a result of the findings by the CTTT, the plaintiff was not obliged to pay any further rent. He stated that he received no other communication or notices from the Tribunal following the hearing on 6 February 2007 and received no further communication from the defendant or the managing agent in relation to the matter. He also was not contacted by anyone at the base in relation to any outstanding rent payable by him.

[12] The defendant stated that in January 2007 when she was contacted by Sophie Dawson, the managing agent at Wilkinson's Real Estate, she was also advised that the plaintiff's de-facto relationship had been recognised by the Defence Force and he was then entitled to a defence housing property.

[13] The defendant stated that she had a conversation with Ms Dawson following the hearing before the Tribunal and was advised that the tenant had won. When she asked how this had occurred, she stated that Ms Dawson said: "He lied. He threw a tantrum about how important he was and the lease was terminated and backdated to 25 January when he alleged that he moved out."

[14] In her evidence before me, the defendant said that following the hearing before the CTTT she was told by Sophie Dawson that she (Sophie Dawson) was not happy about how the hearing was conducted and that she intended to write to the Department of Fair Trading and complain about how the Tribunal hearing was run. The defendant said that she too would like to write a letter and was advised by Ms Dawson to give the letter to her, and she would attach it to her letter when she wrote to the Department of Fair Trading.

[15] On 9 February 2007, the defendant wrote a letter and addressed it "To whom it may concern - Department of Fair Trading". The letter which is part of exhibit 4, was stated to be in regard to the Tribunal hearing on 6 February 2007 regarding premises at 6/10 Toxana St, Richmond. In her opening paragraph the defendant states that as a landlord she was "disgusted and extremely annoyed at the ridiculous decision made by the Tribunal member" and that the decision was neither fair nor equitable. The letter proceeds to state that the tenant was the person who breached the Tenancy Agreement by vacating the premises 10 weeks prior to the lease expiry date.

[16] The letter of 9 February 2007 remained on file at Wilkinson's Real Estate Agency. The defendant was later advised that neither her letter nor a covering letter was sent to the Department of Fair Trading.

[17] The defendant said in her evidence that she visited the property on 14 February 2007 and noticed that there were certain belongings which she understood belonged to the tenant, still on the property. She asked the agent to get the belongings removed as quickly as possible and relet the property. She said the belongings were removed on 28 February 2007. She considered that she was entitled to 5 weeks rent as the unit was in possession of the tenant for 5 weeks and it was difficult to get a new tenant. She calculated the rent and the cost of the letting fee and the lease fee to be an amount of $1,309.50.

[18] Early in May 2007 the defendant contacted Wilkinson's to enquire as to whether or not that firm had received any response to the letter to the Department of Fair Trading. She spoke to a person by the name of Heidi Sieders. Ms Dawson as at May 2007 had left the firm of Wilkinson's. The defendant was advised by Ms Sieders that Ms Dawson had not forwarded her letter of 9 February 2007 to the Department of Fair Trading, but that she had forwarded her letter to the CTTT. A copy of the letter of 10 May 2007 to the CTTT enclosing the letter of 9 February 2007 is part of exhibit 4.

[19] The defendant received a letter direct from the CTTT acknowledging receipt of her letter of 9 February 2007. That letter is part of exhibit 4. The defendant was advise that if she wished to apply for a rehearing she must complete a new application and pay a filing fee. The relevant provisions of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) concerning rehearing was attached to the letter to the defendant of 14 May 2007.

[20] The defendant stated that after she received the letter of 14 May 2007, she phoned the CTTT. She stated that she was informed by a person at the CTTT that it was too late for her to appeal the determination of the Tribunal on 6 February 2007 as any appeal would have to be made within 14 days of the hearing.

[21] In late May 2007, the defendant spoke to a neighbour who she understood lived in a defence housing authority property and was with the RAAF and complained to him about the conduct of the plaintiff as a tenant.

[22] The defendant said that the neighbour, a Mr Chand, informed the defendant to give the Commanding Officer (CO) "a ring, and he will dock the rent owing from his wages."

[23] A few days later the defendant said she phoned the RAAF Base Richmond and spoke to a person who answered the phone. She said the person was a woman, but that as of now, she did not know the name of the woman. She stated that she wished to speak to the commanding officer of 37 Squadron, the Squadron she understood the plaintiff was with, and when asked why, said: "I am a landlord. One of his employees was a tenant in my unit. He owes me money and I wish to make a complaint."

[24] The defendant was informed that all complaints were required to be put in writing and addressed to the Base Commander.

[25] The defendant thereupon wrote the letter, a copy of which is exhibit B.

[26] The first time that the plaintiff saw the letter was in approximately August of 2008. He said he came to see the letter when he required a document for the purpose of his discharge which "was coming up" and went to see an Orderly Clerk to obtain the relevant document.

[27] The plaintiff said that he spoke to Leading Aircraft Woman Amber Watters and told her that he was looking for a document for discharge. He stated that she went into a room and came back with his personnel file. She asked the plaintiff to help her find the document.

[28] As he was looking through the folder, he noticed the letter of 25 May 2007. He said that one word on a page "jumped out" at him. That word was the word "calibre". A copy the letter of 25 May 2007 became exhibit B was admitted without objection and noted as being a copy of Schedule A to the Statement of Claim. The plaintiff said that he was unaware of the existence of the letter until he saw it in the personnel file.

[29] The plaintiff was advised that he would need permission to take the letter from the file. He said he spoke to a Senior Administrative Officer and was later handed a copy of the letter by a Flight Lieutenant Joshua Liddle. He said he then read the whole of the letter.

[30] In the Statement of Claim the plaintiff claims that 4 imputations arise from and are conveyed by exhibit B. The 4 imputations are: (a) The plaintiff had lied to the Tenancy Tribunal.

(b) The plaintiff thought he was far too important to follow the normal rules of decency, honesty or responsibility.

(d) The plaintiff had stolen $1,309.50 from the defendant. [31] Imputation (a) clearly arises from the letter of 25 May 2007. In paragraph 6 as numbered in Schedule A to the Statement of Claim it is stated: "Instead of telling the truth (ie. that since acquiring a girlfriend he had become eligible for a DHA house) he lied."

[32] The general test for defamation is whether the matter in question lowers the plaintiff's standing or estimation in the community or causes others to think less of him or her (see Radio 2UE Sydney Pty Ltd v Chesterton (2008) Aust Torts Reports ¶81-946; [2008] NSWCA 66). The statement that the plaintiff lied to the CTTT would, I consider, lower the plaintiff's standing or estimation in the community and would cause others to think less of him. The defendant fairly conceded that imputation (a) was conveyed by words referred to in the preceding paragraph and that the imputation was defamatory.

[33] The defendant submitted that imputation (b) was conveyed by the letter but that such words were not defamatory of the plaintiff. In discussions with counsel in the course of submissions, the plaintiff did not put any further submissions by way of reply to the defendant's submission as to this imputation and did not seek to press the imputation.

[34] I consider that imputation (c) is conveyed in the letter of the 25 May 2007. The imputation is conveyed in the letter of 25 May 2007 (in paragraph 11 of Schedule A of the Statement of Claim) the defendant states: "In my 14 years as a landlord I have never had a tenant with such an attitude problem or one who is so irresponsible and dishonest as Christopher Pintegne. I am amazed that the Defence Force would employ someone of his calibre." [35] As was stated by Spigelman CJ in Radio 2UE Sydney Pty Ltd v Chesterton the general test for defamation should apply to an imputation concerning any aspect of a person's reputation, including his or her business of professional reputation. I consider imputation (c) is defamatory of the plaintiff and that the concession made by the defendant that imputation (c) was conveyed and was defamatory, was fairly and properly made.

[36] As to imputation (d) the defendant submitted that the imputation was neither conveyed by exhibit B nor was it defamatory of the plaintiff. The plaintiff in the course of submissions stated that he did not wish to press imputation (d).

[37] By her defence, the defendant claims that the matter complained of was published under qualified privilege. The particulars of defence raise the defence of common law qualified privilege.

[38] The particulars of defence state: (i) The defendant published the matter complained of for the information of the recipient of the matter complained of and had a social and/or moral duty and/or interest to publish the matter complained of to the recipients.

(ii) The recipient of the matters complained of had a reciprocal interest in receiving the communication.

(iii) The defendant was aware and/or believed that the recipient had an interest in the plaintiff and his conduct as an officer under the recipient's command at the RAAF Base at Richmond NSW.

[39] The plaintiff submits that the defence raises two issues for consideration: (a) Was the letter published on an occasion of qualified privilege?

(b) If so, was the communication sufficiently relevant to the occasion to be protected?

[40] In Roberts v Bass (2002) 212 CLR 1; (2002) 194 ALR 161; (2002) 77 ALJR 292; (2003) Aust Torts Reports 81-683; [2002] HCA 57 it was stated that the common law protects the defamatory statement made on an occasion where one person has a duty or interest to make a statement and the recipient of the statement has a corresponding duty or interest to receive it. The defendant claims that she had an interest in publishing the letter dated 25 May 2007 and the Commander of the RAAF Base at Richmond had a reciprocal interest in receiving it.

[41] In applying the principles of common law qualified privilege, a court must make 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 (Guise v Kouvelis (1947) 74 CLR 102; (1947) 53 ALR (CN) 617b; (1947) 21 ALJR 71b; (1947) 47 SR (NSW) 394; (1947) 64 WN (NSW) 117).

[42] The letter of 25 May 2007 was written after the defendant had received advice that any appeal would have to by made within 14 days of the hearing and after she was further informed that if she wished to apply for a re-hearing it would be necessary for her to complete a new application and pay a filing fee. It was also written after she was advised by a neighbour to contact the RAAF Base at Richmond concerning her complaints as to the conduct of the plaintiff as a tenant and after she was advised to put her complaint in writing.

[43] The letter of the 25 May 2007 was written in different circumstances to the letter of 9 February 2007. The letter of 9 February 2007 was addressed "To whom it may concern - Department of Fair Trading". The letter was complaining as to the hearing by the CTTT on 6 February 2007. The defendant complained that the decision of that Tribunal was neither fair nor equitable and that it was in fact the plaintiff who breached the Tenancy Agreement by vacating the premises 10 weeks prior to the lease expiry date. The defendant stated that it was her understanding that the Department of Fair Trading had a significant role in preventing a breach of Tenancy Agreement and stated that the Tribunal in reaching its decision, failed to take into account a number of circumstances. There is no statement in the letter that the plaintiff lied to the CTTT or any statement as to a lack of responsibility or honesty by the plaintiff.

[44] On behalf of the defendant it was submitted that the privileged occasion arose from the "interest" which the defendant had in making the communication to the Base Commander at Richmond and that latter person had a corresponding "interest" to receive it. It was submitted further that such an interest could be found from a consideration of the subject matter of exhibit B. It was submitted that the subject matter of exhibit B was: (a) A request for intervention by the Base Commander in respect of a payment of a debt for outstanding rent.

(b) A complaint about the conduct of an RAAF officer in the local community.

(c) The issue of whether the defence force personnel should be permitted defence housing whilst under a lease in the private sector.

[45] The defendant has submitted that the letter of 25 May 2007 is in effect a complaint to an employer as to the personal conduct of an employee. The defendant in its written submissions has stated that exhibit B was the type of communication which a person should be free to make for the convenience and welfare of society.

[46] The plaintiff accepts that in considering whether there is a reciprocity of interest for an occasion of privilege to arise it is of importance to consider the subject matter of exhibit B. The plaintiff submits that the subject matter of exhibit B is more specific than that contended for on behalf of the defendant and that when looked at objectively the subject matter of the communication is her disgust of the plaintiff as a tenant and of his conduct before the CTTT. The plaintiff submits that exhibit B is a type of communication which might fairly be styled as an unsuccessful and embittered litigant seeking to complain about her litigation outcome to her opponent's employer and that no occasion of qualified privilege arises.

[47] The plaintiff further submits that if an occasion of qualified privilege is found to arise, imputations (a) and (c) which are conceded as being conveyed and are defamatory, are extraneous and gratuitous to the subject matter of exhibit B (as contended for by the defendant).

[48] Interests which gives rise to common law qualified privilege must be specific and must be "real and direct" (Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632; (1934) 8 ALJR 67). Ipp J in Bennette v Cohen [2009] NSWCA 60 stated that the following propositions could be extracted from the authorities to which he referred to in his judgment. Those propositions were: (a) The test for common law qualified privilege is usually expressed at a very high level of generality and abstraction;

(b) In practice, however, the close scrutiny of all the circumstances of each case results in common law qualified privilege having a relatively limited or narrow practical application;

(c) The scrutiny required depends on the facts of each case and there is no closed set of criteria that must be applied or considered; and

(d) Guidelines have been established that assist in the scrutiny that is required which include:

(i) That as a matter of public policy, it must be in the general interest of the whole community that the type of material in question be published, notwithstanding that it is defamatory of a third party.

(ii) The occasion must not be used for some purpose or motive foreign to the interest that protects the making of the statement. Further, there must be a significant connection between the defamatory material and the privileged occasion.

(iii) The interest that gives rise to qualified privilege must be real and direct.

(iv) Ordinarily, a volunteered statement is privileged only where there is a pressing need to protect the interests of the defendant or a third party, or where the defendant has a duty to make the statement.

(v) If a publication is made to a large audience, a claim of qualified privilege at common law will fail unless the members of the audience all have an interest in knowing the truth.

(vi) The interest should not give officious and interfering persons a wide licence to defame.

[49] The court must pay particular regard to the requirement that the interest which gives rise to qualified privilege be definite. In the opening paragraph of the letter of 25 May 2007 it is stated that the purpose in writing the letter to the Base Commander was to express the defendant's disgust at the immoral actions of the plaintiff which has resulted in the plaintiff owing her $1,309.50. In her evidence the defendant stated that the primary purpose in writing the letter was to obtain payment of monies which she claimed were due to her. I consider the subject matter of the letter was for payment of rent claimed by the defendant to be due to her and the behaviour of the plaintiff as a tenant.

[50] The plaintiff was subsidised to an extent in the rent payable by him to the defendant and the Base Commander had a real interest in ensuring that rent payable by the plaintiff for which he was subsidised was paid. I also consider that the Base Commander had a definite interest in knowing whether the plaintiff behaved responsibly as a tenant so far as his future eligibility for housing accommodation.

[51] I do not consider that the payment of rent per se would be of general public interest. Information as to payment of rent and behaviour of a person as a tenant would only be of general interest to the whole community if the person was being subsidised by an employer in the payment of rent and could be eligible for future housing accommodation in the course of his duties. I consider that the public interest would increase if the employer was in fact the Department of Defence.

[52] I find that there was a reciprocity of interest between the defendant and the recipient of the letter of 25 May 2007, and that an occasion of qualified privilege arose.

[53] Where two defamatory imputations are published on a single privileged occasion it is necessary to determine whether each imputation falls within the umbrella of the applicable privilege, or whether one of the imputations is not relevant and therefore not covered by the defence. There must be a sufficient connection between the imputation and the privileged occasion (Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; (2004) 204 ALR 193; (2004) 78 ALJR 346; (2004) Aust Torts Reports 81-727; [2004] HCA 5; Aktas v Westpac Banking Corporation Ltd [2009] NSWCA 9).

[54] In the Court of Appeal in Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470 Hodgson JA stated that for the imputations to be relevant to the subject matter of the occasion of qualified privilege, the imputations must not be "truly unconnected" with the subject matter of the publication giving rise to the occasion. Sheller JA stated that the test was that the imputations must be "germane and reasonably appropriate to the occasion". The test as formulated by Sheller JA was approved by the High Court in Bashford and Kirby and Callinan JJ in that case approved both the test as formulated by Hodgson JA and the test as stated by Sheller JA.

[55] In the High Court in Bashford Kirby J stated that all of the formulae represented attempts to define the boundaries of discussion so as to exclude the introduction of extraneous, irrelevant or marginal and gratuitous imputations that unacceptably do harm to the reputation and honour of an individual. As he observed in every case a judgment was involved and whilst in some cases the irrelevancy of a defamatory imputation in an otherwise justifiable context will be plain, in other cases the issue will be more debatable.

[56] The defendant submits that imputation (a) is not unconnected and irrelevant to the matter giving rise to the mutuality of interest between the defendant and the Base Commander. I accept that the statement in the letter that the plaintiff had the hide to take the defendant to the Tenancy Tribunal claiming that the defendant had broken the Tenancy Agreement could be considered as sufficiently connected to the reciprocity of interest which I consider has arisen from the subject matter of the letter. But the statement that instead of telling the truth he lied to the Tribunal, is, I consider, a volunteered statement. Such a statement does not appear in the unsent letter of complaint to the Fair Trading Tribunal on 9 February 2007. There was no necessity to make any such statement. The defendant could, as she was advised by the CTTT, have made an application for a re-hearing. There was therefore no necessity for the defendant to make such a statement, and there was no duty on her to make the statement (see Papaconstuntinos v Holmes à Court [2009] NSWSC 903).

[57] I find that imputation that (a) was not sufficiently connected to the occasion of privilege.

[58] It is debatable whether or not imputation (c) is sufficiently connected to the subject matter of the letter of 25 May 2007 from which I have found a mutuality of interest giving rise to common law qualified privilege. The defendant has submitted that the imputation is directly relevant to the failure to discharge his obligations under the lease and pay what the aggrieved landlord, the defendant, considered as due to her. The debatable proposition is whether the information received by the Base Commander as to the behaviour of the plaintiff as a tenant is also relevant to the plaintiff's fitness for employment by the Defence Department. Although imputation (c) is not directly relevant to a consideration of the plaintiff's duties as a pilot officer, the information as to the plaintiff's behaviour as a tenant is of interest due to his employment and subsidy of rent by the Defence Department. I therefore consider that imputation (c) is sufficiently connected to the occasion of privilege and attracts the defence.

[59] As I have found that imputation (a) is irrelevant to the occasion of qualified privilege. The plaintiff is entitled to damages.

[60] The defamatory imputation arises from the statement of the letter referred to in paragraph 31 and the statement that the tribunal member believed the plaintiff's lies. The letter may not have even been read by the Base Commander and even if it was read, it apparently did not warrant a reply. The letter may have been read by other personnel, particularly when filed and placed in the personnel file of the plaintiff.

[61] The personnel file was considered by Air Commodore Hewitson AM in the termination decision in respect of the plaintiff. The termination decision was dated 14 October 2008 and states that the plaintiff's discharge from the Defence Force was to be effected on 20 October 2008. The determination decision was made after considering the termination notice which was dated 16 September 2008. The termination notice was by Wing Commander Leurs, the then Acting Director Personnel - Air Force and the delegate of the Governor General.

[62] The termination notice stated that the reason for the proposed termination of the retention of the plaintiff in the Defence Force was because the plaintiff's retention was not considered to be in the interests of the Defence Force by reason of the facts and circumstances referred to in paragraph 2 of the notice (see exhibit 2). The facts and circumstances referred to in paragraph 2 stated inter alia that between January 2006 and March 2008 the plaintiff consistently exhibited a range of performance failures as a pilot for which he was counselled and provided with remedial training. It is further stated that on 6 April 2008, the plaintiff undertook the first sortie associated with the remedial training plan but did not complete the sortie and did not participate further in the remedial training plan. It is also stated in paragraph 2 of the termination notice that in August of 2008 the plaintiff stated that he did not accept any form of employment in a non-flying role. Matters considered by the Acting Director of Personnel - Air Force in issuing the notice of termination included the plaintiff's complete service history as contained in the RAAF personnel file.

[63] The termination decision (exhibit 3) also states that in reaching the decision to terminate the service of the plaintiff with the defence force Air Commodore Hewitson AM considered the plaintiff's complete service history as contained in the RAAF personnel file.

[64] The plaintiff in his evidence stated that he first saw the letter of 25 May 2007 around 16 or 17 August 2008. In his evidence he stated that when he first saw the opening paragraph of exhibit B, namely "I am writing to express my disgust at the immoral actions of one of your pilots - Christopher Pintegne", he was overcome by a sickening feeling in his stomach. A particular sentence that upset him was the statement that the defendant was amazed that the Defence Force would employ someone of his calibre. He said that he would wake during the night, sometimes early in the morning, and think that the letter had been on his file and have feelings of hurt and anger.

[65] The plaintiff agreed in his evidence (transcript 15 December 2009, page 29, line 5) that as at 15 August 2008 he wished to resign from the RAAF as he did not wish to accept the option offered to him of continuing employment in a non-flying role. His response to that option which was offered to him is exhibit 1 and is dated 15 August 2008. In that response the plaintiff stated that since early 2007 his service experience has had a profound negative impact on him and he keeps looking for answers as to where his career has gone. He said what was concerning him when he was waking up prior to seeing the letter of 25 May 2007 was why he had been classified as unsuitable for military flying duties when the normal procedure as he understood it was to have a wings re-evaluation test conducted and that process never took place. He proceeded to state: "After finding out about the letter, as I said, the penny dropped and I was all of a sudden aware of a factor that had been effectively lying dormant on my file for several months and had never been brought to my attention which I perceived could have had a significant impact on my career in the Air Force." [66] He said the sentence in particular which he considered could have seriously effected his career was that questioning how the Defence Force could employ someone of his calibre. He said that was particularly distressing to him.

[67] The defendant submits that the extent of the publication of the letter was very limited and the distress which the plaintiff referred to in his evidence was not mentioned in the letter of 15 August 2008, exhibit 1. I accept the plaintiff's evidence that what was of particular distress to him was the statement in the letter that the defendant was amazed that the Defence Force would employ someone of his calibre. But the imputation (c) which it is conceded arises from such a statement, is covered by the defence of qualified privilege. Damages are to be awarded for the irrelevant imputation that the plaintiff lied to the Tenancy Tribunal and the harm and damage to his reputation and the emotional distress flowing from that imputation.

[68] The plaintiff claims substantial damages to vindicate his reputation. Counsel for the plaintiff made it clear that it was not the plaintiff's case that he left the Air Force because of the defamatory publication (transcript 15 December 2009, page 29, lines 25-30). On the evidence, the plaintiff's feelings of anger and hurt after reading the letter of 25 May 2007 arose more from the statement that the defendant was amazed that the Defence Force would employ someone of his calibre rather than any statement that he lied to the Tenancy Tribunal. Nevertheless as stated above he was overcome with a sickening feeling when he saw the opening paragraph of exhibit B, which was that the defendant stated that she wished to express her disgust at his immoral actions. The plaintiff's mother gave evidence and stated that the plaintiff had a reputation for honesty and that her understanding was that he was well respected. She further stated that the letter or a copy thereof was shown to her by the plaintiff and that he said to her that the letter was the undoing of everything that he had tried to do with his life.

[69] The plaintiff submits that how far the allegations may have spread may never be known. The plaintiff relies upon what was observed by Lord Hilsham in Cassell & Co Ltd v Broome [1972] AC 1027; [1972] 1 All ER 801; [1972] 2 WLR 645 that damages by way of vindication are awarded to permit a plaintiff to convince a bystander of the falsity of the allegation should any defamatory statement resurface at some time in the future. It is submitted by the plaintiff that the imputation that he lied to a tribunal is serious and whilst the audience may have been confined there was an audience of the highest importance to the plaintiff. He had no opportunity to counter the statement that he had lied to the Tribunal as he was unaware of the statement until he had cause to search his personnel file in relation to his discharge.

[70] The total award for damages must also be sufficient to vindicate the plaintiff's reputation both up to the time of judgment and in the future (Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 61; (1993) 113 ALR 577; (1993) 67 ALJR 634; (1993) Aust Torts Reports 81-227; [1993] HCA 31). In the termination notice (exhibit 2) it is stated in paragraph 2 that the specialist reports attached to the plaintiff's letter of response of 15 August 2008 (exhibit 1) make it clear that the plaintiff has difficulty with interpersonal skills. Wing Commander Leurs would have had access to the personnel file in making such a statement and may also have had reference to the letter exhibit B.

[71] The plaintiff claims aggravated damages. In the particulars of the statement of claim as to aggravated damages, the plaintiff relies on the defendant's knowledge of the falsity of the imputations and the extravagant and sensational tone of the descriptions of the plaintiff in the matter complained of. The defendant in her evidence stood by her belief that the plaintiff had lied to the tenancy tribunal. The belief was a bona fide belief and the defendant has submitted that whether or not it was reasonable for the defendant to accept the word of the property agent is not in any way relevant to the determination of whether or not an occasion of privilege arose. The defendant submits that the plaintiff is not entitled to aggravated damages in all the circumstances. The plaintiff whilst conceding that the limited scope of publication might limit any need for compensation for harm to reputation that was not a factor of significance in considering the compensation for hurt to feelings and the need for vindication.

[72] To justify an award of aggravated damages the conduct of the defendant must be improper, unjustifiable or lacking in bona fides (Triggell v Pheeney (1951) 82 CLR 497; [1951] ALR 453; (1951) 25 ALJR 96; (1951) 51 SR (NSW) 173; (1951) 68 WN (NSW) 187a). Lack of bona fides by the defendant has not been shown and I accept the defendant's submissions that in the circumstances the plaintiff is not entitled to aggravated damages.

[73] I award the sum of $12,500.00 by way of damages to the plaintiff.

(1) Judgment in favour of the plaintiff in the sum of $12,500 plus interest at 2% for the period between 25 May 2007 to 26 February 10 in the amount of $668.50 for a total of $13,168.50. (2) Defendant to pay 50% of the plaintiff's costs, including the costs of senior counsel.

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.

Consumer, Trader and Tenancy Tribunal Act 2001(NSW)

Residential Tenancy Act 1987(NSW)

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