Plaintiff v Defendant

1 Ian George Cunliffe, the plaintiff, is a solicitor. Patrick Woods, the defendant, is also a solicitor. In 2008, there was a proceeding on foot in the Equity Division of the New South Wales Supreme Court, Darkinjung Local Aboriginal Land Council v Darkinjung Pty Limited & Ors ("the NSW proceeding"). In the NSW proceeding, the defendant was the solicitor for Darkinjung Local Aboriginal Land Council. On 19 May 2008, the plaintiff was joined as the seventh defendant in the NSW proceeding.

2 On 4 December 2008, the defendant faxed a letter addressed to the Chief Executive Officer of Novell Pty Ltd.[1] The letter provided:

"Dear Sirs,

RE: Darkinjung Local Aboriginal Land Council -v- Darkinjung Pty Limited & Others, including Ian Cunliffe, Supreme Court, Equity Division No. 2842 of 2006.

I refer to the above Court proceedings, and inform you that I act for the Plaintiff Darkinjung Pty Limited.

Ian George Cunliffe of ... , Victoria, is the Seventh Defendant in the proceedings.

On 19th September, 2008 Mr Cunliffe sworn (sic, swore) and relied in Court upon an affidavit that included the following paragraph concerning your company:

'10. Firstly, for the period 25 August 2008 to 11 September 2008 I was called in to work virtually full time as General Counsel at Novell Pty Ltd. My role there was made much more time-consuming and stressful because I was there to cover for the General Counsel whose wife was gravely ill following childbirth. As a consequence my ability to get guidance and assistance from the incumbent was greatly reduced'

One of Mr Cunliffe's former partners in a discussion I had with that person expressed the view that the statements in the above paragraph are unlikely to be true.

In order to avert the need to request information by subpoena, I request that you reply urgently (by email if you wish, see below) and indicate to me:

1. 1. Was Novell's General Counsel absent from his duties between 25th August, 2008 and 11th September, 2008?
2. 2. Was Mr Cunliffe employed at Novell Pty Limited between 25th August, 2008 and 11th September, 2008 to replace the General Counsel?
3. 3. If so, on what dates, in what capacity, and what were his hours of attendance?
4. 4. Was Mr Cunliffe without guidance and assistance while acting in the role of General Counsel, making his performance of the role more time-consuming and stressful. (sic)

Your urgent response would be appreciated. The matter is returning to Court in the next few days.

Yours faithfully,

Patrick Woods & Company,

Patrick Woods."

3 In this proceeding, the plaintiff claims damages for defamation in respect of the letter. Four imputations are pleaded:

"(a) the plaintiff had sworn and relied upon in Court an affidavit paragraph 10 of which he knew to be false;

(b) the plaintiff swore and relied in Court upon an affidavit paragraph 10 of which he knew to be false, so that he could give to the Court an untrue explanation for (sic) the personal difficulties he faced due to acting as general counsel for his corporate client;

(c) [the] plaintiff was not to be trusted when he gave an explanation in paragraph 10 of a sworn affidavit, for his personal difficulties due to acting as general counsel for a corporate client, because his former partner believed the statements in that paragraph were unlikely to be true;

(d) the plaintiff should not be believed on the oath he made when he swore an affidavit containing, in paragraph 10, an explanation for his personal difficulties due to acting as general counsel for a corporate client, unless and until that explanation was independently verified."

(a) denies the letter meant or was understood to mean or was capable of meaning the imputations pleaded by the plaintiff;

(b) denies that the letter was defamatory of the plaintiff;

(c) pleads absolute privilege at common law and/or under s 27 of the Defamation Act 2005;

(d) pleads qualified privilege at common law and/or under s 30 of the Defamation Act; and

(e) pleads the statutory defence of triviality (s 33 of the Defamation Act).

5 In his reply, the plaintiff joins issue with the defendant's defence, and contends that the circumstances of publication are incapable of constituting an occasion of absolute privilege either at common law or under s 27 of the Defamation Act. In amplification of that plea, the plaintiff pleads that the CEO of Novell was not a potential witness in the NSW proceeding; paragraph 10 of the plaintiff's affidavit of 19 September 2008 in the NSW proceeding was never relevant to any substantive issue in the NSW proceeding, and was by 4 December 2008 no longer of any relevance to any interlocutory issue; and, in the circumstances, the CEO of Novell could not have had any relevant evidence to give in the proceeding. Additionally, the plaintiff contended in his reply that the circumstances of publication did not amount to an occasion of qualified privilege (either at common law or under s 30 of the Defamation Act); and that in any event, both of the defences of qualified privilege were defeated by malice, particulars of which were set out in the reply as follows:

"The defendant's malice is to be inferred from the following:

(a) He had no belief in the truth of the allegations he made against the plaintiff in the letter.

(b) The allegations made in the letter were serious and unsupported by evidence.

(c) He made no attempt to find out or independently ascertain whether what the plaintiff's former partner had told him was true before publishing the allegations that he did.

(d) He made no attempt to contact the plaintiff to ascertain the plaintiff's response to the allegations.

(e) He did not make any attempt to put the plaintiff's side of the story in the letter.

(f) He communicated directly with the CEO of the plaintiff's client.

(g) There was no need to make the defamatory statements complained of in the letter in order to carry out any legitimate purpose for which the letter might have been sent."[3]

6 The question of what imputations are conveyed by a particular publication (in this case, a letter) is determined by reference to the standard of the "ordinary reasonable" reader.[4] In determining meaning, one must look at the whole of the publication (letter). It is not open to the plaintiff to simply pick and choose parts of the letter which, standing alone, might be defamatory or might convey some different defamatory meaning.[5]

7 If one confined oneself to a consideration of the third paragraph of the letter (setting out paragraph 10 of the plaintiff's affidavit sworn 19 September 2008) and the fourth paragraph of the letter (containing the words "unlikely to be true"), it might be that those paragraphs convey the imputations contended for by the plaintiff. However, on any fair reading of the whole of the letter (and applying the ordinary reasonable reader test), the letter is a request for information which might support the proposition that what the plaintiff swore in paragraph 10 of his 19 September 2008 affidavit was untrue.

8 In my view, rather than imputing that what the plaintiff had sworn was actually untrue, the letter imputes that there were reasonable grounds for suspecting that what the plaintiff had sworn was untrue. Using the language of the plaintiff's imputations, and applying the reasonable reader test, I find that the letter meant:

(a) there were reasonable grounds for suspecting the plaintiff had sworn and relied upon in Court an affidavit, paragraph 10 of which he knew to be false;

(b) there were reasonable grounds for suspecting the plaintiff swore and relied in Court upon an affidavit, paragraph 10 of which he knew to be false, so that he could give to the Court an untrue explanation concerning personal difficulties he faced due to acting as general counsel for his corporate client;

(c) there were reasonable grounds for suspecting that the plaintiff was not to be trusted when he gave an explanation in paragraph 10 of a sworn affidavit, concerning personal difficulties he claimed to be under due to acting as general counsel for a corporate client, because his former partner believed the statements in that paragraph were unlikely to be true;

(d) there were reasonable grounds for suspecting that the plaintiff should not be believed on the oath he made when he swore an affidavit containing, in paragraph 10, an explanation of personal difficulties due to acting as general counsel for a corporate client, unless and until that explanation was independently verified.

9 In each of these meanings, the letter was defamatory of the plaintiff.[6]

10 An issue then arises as to whether these imputations are permissible variants of the imputations pleaded by the plaintiff. The question of whether imputations framed in terms of reasonable suspicion or belief on reasonable grounds can be permissible variants of implications asserting guilt or actual conduct was analysed by Bongiorno J[7] in Gutnick v Dow Jones & Co Inc (No 4).[8] Bongiorno J said:[9]

"[8] The defendant's imputations are, in each case, imputations of reasonable suspicion. But the issue raised by the plaintiff's imputations is not whether he was merely suspected of particular arguably reprehensible conduct but rather whether he engaged in that conduct. In Lewis v Daily Telegraph[10] Lord Reid expressed himself as being firmly of the view that there is a great difference between saying that someone has behaved in a suspicious manner and saying that he is guilty of an offence.[11] Lord Hodson, in the same case, acknowledged that whilst it might be defamatory to say that someone is suspected of an offence, such a statement does not carry with it an allegation that he has committed the offence.[12] Simon Brown LJ (with whom Sir Ralph Gibson agreed) in Stern v Piper[13] accepted that Lewis' case decided that an allegation that someone is suspected of guilt is different to and less serious than an allegation that he is actually guilty. See also Corse v Robertson[14] and Singleton v Hudson[15].

[9] In Shah v Standard Chartered Bank[16] May LJ summarised the position in a passage directly in point -

A publication that a person is guilty of something differs from a publication that there are reasonable grounds to suspect that he is guilty. Each is normally capable of being defamatory. The second will usually be less serious than the first. To justify the first publication, you have to establish that the person is guilty. To justify the second publication, you have to establish that there are objectively reasonable grounds for suspicion.[17]

[10] Mr Robertson SC for the defendant submitted that the imputations sought to be relied upon by the defendant constituted no more than permissible variations of the imputations of guilt which, the Court has already held, are capable of arising in the terms pleaded by the plaintiff from the parts of the article upon which he relies. He relied particularly on a passage in the judgment of Ormiston JA in Hore-Lacy[18] where his Honour speaks of a case which might go to the jury with the plaintiff pleading imputations of high impropriety (ie in this case, guilt) and the defendant asserting that its meaning referred to less serious peccadillos which it wished to justify (ie in this case, suspicion of guilt). He also referred to the judgment of Charles JA where, after referring to the judgment of Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Ltd[19] he expressed the view that the High Court judges' criticism of the practice sanctioned in Polly Peck (Holdings) Plc v Trelford[20] of permitting a defendant to plead and justify a meaning different from that contended for by the plaintiff would not hold good if the defendant were limited to justifying a meaning which was one upon which the plaintiff might himself obtain a verdict on the pleadings as they stand.

[11] Mr Robertson contended that the plaintiff in this case could obtain a verdict in his favour if the tribunal of fact found, not that the article conveyed an imputation of guilt but merely that it contained an imputation of reasonable suspicion of guilt.

[12] I cannot agree. As the cases to which I have referred make clear, whilst both allegations might be libellous they are not variants of each other as that term is used in Hore-Lacy. The two sets of imputations raise quite different cases."[21]

11 While the approach taken by Bongiorno J on this issue was endorsed by the Court of Appeal in Hore-Lacy v Cleary,[22] the authorities on this question are not all one way. Specifically, in the Western Australian Court of Appeal decisions of Elliott v Western Australian Newspapers Limited[23] and Buckeridge v Walter,[24] imputations framed in terms of reasonable suspicion were allowed as permissible variants of imputations alleging actual conduct. In the Elliott case, the plaintiff sought special leave on the point. In the High Court's reasons given for refusing special leave,[25] French CJ[26] said that the question of law raised by this issue "may well warrant the grant of special leave at some time in the future". However, the Court concluded that as the issue in Elliott was only raised at an interlocutory stage, special leave would be refused on that occasion.

12 While what was said by the Court of Appeal in Hore-Lacy v Cleary on this issue was obiter, I should follow Gutnick v Dow Jones (No 4) unless persuaded that the reasoning in these cases is clearly wrong. I am not so persuaded. On the analysis set out in Gutnick (as approved in Hore-Lacy), the plaintiff's claim must fail - he having only established defamatory imputations which are not permissible variants of those pleaded by him. However, in view of the conflicting positions taken between the Western Australian authorities and the Victorian authorities (and on the assumption I might be wrong), I propose to proceed on the basis that the imputations I have found were conveyed by the letter are in fact permissible variants upon which the plaintiff may recover damages (that is, in the absence of any defence being made out by the defendant).

13 I turn now to consider the defendant's defence of absolute privilege. Before doing so, it is necessary to set out the relevant history of the NSW proceeding.

14 It is unnecessary to discuss the history of the NSW proceeding prior to 13 December 2006. So far as the present proceeding is concerned, the first relevant event in the NSW proceeding occurred on 13 December 2006. On that day, the NSW Supreme Court declared that certain payments totalling in excess of $25 million made by Darkinjung Local Aboriginal Land Council to Darkinjung Pty Ltd were beyond the power of Darkinjung Aboriginal Land Council and that those funds were received by Darkinjung Pty Ltd upon trust for Darkinjung Local Aboriginal Council.

15 Paragraphs 6 and 7 of the orders made on 13 December 2006 in the NSW proceeding provided:

"6. Darkinjung Pty Limited do forthwith assign, transfer and convey to Darkinjung Local Aboriginal Land Council and cause to be vested in Darkinjung Local Aboriginal Land Council the whole of the funds and assets of Darkinjung Pty Limited (including, but not limited to, the land in folio identifier 301/555497) save and except for a sum of $430,000 and that Darkinjung Pty Limited pay that sum of $430,000 into Court.

1. 7. The moneys paid into Court pursuant to order 6:

(a) be invested in accordance with rule 41.5 of the Uniform Civil Procedures Rules 2005; and

(b) remain in Court to abide the determination of the amount, if any, which is fairly to be allowed to Darkinjung Pty Limited for its expenses of acting as trustee of the trust referred to in Declaration 3, in respect of the prosecution of proceedings number 5634 of 2005 and in respect of its conduct of the defence of these proceedings; and

(c) upon completion and certification of that determination,

(i) be paid out to Darkinjung Pty Limited to the extent of the sum to which Darkinjung Pty Limited is entitled as a result of the determination; and

(ii) be paid out to Darkinjung Local Aboriginal Land Council as to the remainder, together with interest actually earned."

16 From the time these orders were made, the plaintiff and/or his then firm (Norton White), claimed to be entitled to some or all of the moneys paid into Court pursuant to orders 6 and 7 set out above. Indeed, a proof of debt in the sum of $345,937.88 was lodged by the plaintiff/Norton White with the liquidator of Darkinjung Pty Ltd on 14 February 2007.

17 On 15 May 2008, the plaintiff wrote to the associates of Austin J and Hammerschlag J of the NSW Supreme Court advising that he would be seeking orders for an appropriate timetable in respect of the moneys paid into Court at a directions hearing then scheduled for 19 May 2008. On 19 May 2008, the Court ordered, amongst other orders, that the plaintiff be joined as a seventh defendant, and that by 2 June 2008, the seventh defendant (plaintiff) was to file any interlocutory process seeking to agitate the question of entitlement to the money in Court. The matter was then adjourned until 10 June 2008.

18 On 10 June 2008, the following orders were made:

(1) The seventh defendant file and serve points of claim by 30/6/08.

(2) The seventh defendant to file and serve full accounts for the conduct of [certain identified proceedings, including the NSW proceeding].

(3) The seventh defendant to file and serve any further affidavit material on which he seeks to rely by 30/6/08.

19 On Friday 25 July 2008 (being the Friday before the directions hearing scheduled for Monday 28 July 2008), the plaintiff filed and served an affidavit explaining his failures to comply with the orders made on 10 June 2008. It is not necessary to go further into the detail of this affidavit. Suffice to say, on 28 July 2008, orders were made suspending the timetable for the filing of pleadings and affidavits, pending the making of a new timetable at a directions hearing on 12 August 2008.

20 On 12 August 2008, a proposal put by the seventh defendant (plaintiff) concerning the trial of a separate question was rejected by Hammerschlag J. So far as the seventh defendant was concerned, his Honour ordered the filing and serving of a verified statement of cross-claim by 5 September 2008 and the service of any further affidavit material by 19 September 2008. The proceeding was then stood over until 27 October 2008.

21 On 13 August 2008, the solicitor for Darkinjung Local Aboriginal Land Council (the defendant) wrote to Norton White requesting Mr Cunliffe provide copies of identified documents relevant to the seventh defendant's cross-claim. No response was received to this letter. Similarly, the defendant wrote again on 14 August 2008 to Norton White seeking the provision of other identified documents relevant to the seventh defendant's cross-claim. No response was received to this letter. On 27 August 2008, an email was sent from the defendant to Norton White. The email, amongst other things, followed up the letters of 13 August and 14 August. No response was received to this follow-up.

22 On 3 September 2008, the defendant sent an email to the solicitors for Mr Cunliffe indentifying the steps Mr Cunliffe was required to take in compliance with the orders of 12 August 2008. No reply was received to this email. There were further follow-up emails and letters on 9 September 2008, 12 September 2008 and 15 September 2008. No reply to any of these communications was forthcoming from the plaintiff or anyone acting on his behalf.

23 On 17 September 2008, the defendant advised Mr Cunliffe's then solicitors that the matter had been relisted for hearing on Monday 22 September 2008 before Barrett J. This letter enclosed an affidavit sworn by the defendant identifying, amongst other things, the seventh defendant's failure to comply with orders that had been made in the NSW proceeding. The affidavit contained the following paragraphs:

"16. My client has been without its $430,000, and without the interest on that sum, since that amount was paid into court pursuant to the orders made by Justice Barrett on 13 December 2006. ...

1. 17. My client being without its money should not be permitted to continue (sic) with Mr Cunliffe (D7) and Mr Porter (D1) each refusing or neglecting to conduct their respective claims expediently and cost effectively."

24 On 18 September 2008, there was further follow-up correspondence from the defendant to Norton White. On 19 September 2008, the plaintiff swore the affidavit from which paragraph 10 was extracted in the letter to Novell. The affidavit was sent to the defendant at approximately 5.30pm on the Friday before the hearing scheduled for Monday 22 September 2008. On 21 September 2008, the defendant swore an affidavit which, amongst other things, dealt with "the excuses proffered in Mr Cunliffe's ... affidavit [of 19 September 2008] for neglect or refusal to comply with the court's orders". This affidavit contained the following paragraphs:

"(a) ...

(b) ...

(c) Para. 10 asserts that from 25th August to 11th September he worked full time as General Counsel at Novell Pty Ltd. No evidence is offered of that [sic] from anyone at the company, nothing explains what happened during 12 days after the Orders were made up to 25th August, nor during 8 days after the end of that service. None of the weekends, or evenings, that Mr Cunliffe was prepared to use and bill to DLALC during his billing period seem to be available when it comes to Mr Cunliffe himself complying with a Court order, although he does possibly deal in para. 11 with one evening a week for some of the time. I will come to that next.

(d) ...

(e) ...

(f) I discussed Mr Cunliffe's assertions noted above about 'doing work' for Chevron with Mr Richard Thompson, a former partner of Mr Cunliffe, when I spoke to Mr Thompson on 18th September 2008. Mr Thompson described the 'work' for Chevron as a single submission prepared on a pipeline matter over a single weekend years earlier by a member of the firm other than Mr Cunliffe, and no more. That hardly seems to be a basis for Mr Cunliffe asserting that he acts for Chevron.

(g) ...

(h) During the discussion I had with Mr Thompson, noted above, I told Mr Thompson about the current proceedings, and the current default in Mr Cunliffe complying with the timetable. Mr Thompson confirmed that Mr Cunliffe regularly fails to comply with Court ordered timetables, and as Mr Thompson so colourfully put it, 'there is always some bullshit affidavit at the last minute' as Mr Cunliffe seeks to exculpate himself from his refusal to comply with Court orders. Mr Thompson also offered the view that Mr Cunliffe is unable to bring himself to settle any case he is involved in, and usually loses. On Friday last week, with this re-listing pending, I anticipated Mr Cunliffe's usual trick of sending an after-hours Affidavit when I sent the email to his Solicitor that is annexed hereto and marked 'B'. The parts to which I particularly draw attention are underlined.

(i) This rang true with my own past experience of Mr Cunliffe regularly falling into default, and regularly producing some last minute affidavit or application to divert attention from where it should properly be: on Mr Cunliffe, and his default."

25 On 22 September 2008, the matter came on for hearing before Barrett J. After noting that he had "the distinct impression that there is a need for the legal representatives to seek to play a facilitating and moderating role in an atmosphere where emotions seem[ed] to be running high", Barrett J ordered the seventh defendant (plaintiff) to file and serve his cross-claim on or before 24 September 2008, and to serve copies of the documents referred to in his cross-claim on or before 26 September 2008. The matter was then stood over for further directions on 13 October 2008.

26 At some time after 23 September 2008 (and perhaps on 24 September), the seventh defendant delivered his cross-claim to the other parties in the NSW proceeding. The cross-claim sought various declarations that the seventh defendant was entitled to be paid various expenses and legal costs. On 29 September 2008, the defendant sent an email chasing up the documents which had been ordered to be provided by 26 September 2008. This was followed up by further emails sent on 7 October 2008.

27 On 8 October 2008, the solicitor for the seventh defendant (plaintiff) forwarded an unsigned copy of some of the costs agreements referred to in paragraph one of the seventh defendant's statement of cross-claim. There were then further email communications between the parties. The timetable previously set having not been met, the directions hearing on 13 October 2008 was adjourned to 27 October 2008.

28 On 23 October 2008, the solicitor for the seventh defendant (plaintiff) sent an email purporting to confirm that his client was unable to locate a particular costs agreement, and advising that reference to that costs agreement would be deleted from the particulars of his cross-claim. On or about 27 October 2008, Darkinjung Local Aboriginal Land Council prepared a defence to the seventh defendant's cross-claim (having regard to an order made on 3 November 2008, to which I will refer below, it is unclear when this defence was served on the seventh defendant). The defence made many allegations, including that the retainer had been terminated, but later "purportedly formed and maintained" for purposes which were alleged to be improper or illegal. At or about this time, the seventh defendant foreshadowed the possibility of making an application for leave to adduce expert evidence, leave being required under the relevant rules of court.[27] On 27 October, the Court directed that any application by the seventh defendant to adduce expert evidence be filed and served by Friday 31 October 2008 and returnable on 3 November 2008. The matter was then stood over to 3 November 2008.

29 On 30 October 2008, the solicitors for the seventh defendant wrote to the defendant enclosing a notice of motion seeking leave to adduce expert evidence and an affidavit in support. The letter went on to assert that by reason of the service of a proposed third cross-claim by the plaintiff in the NSW proceeding, "it ha[d] become apparent that [Darkinjung Local Aboriginal Land Council] now [sought] to dramatically widen the scope of the proceeding". It was then asserted that the solicitors for the seventh defendant considered it appropriate to adjourn the directions hearing on 3 November for four weeks. The letter concluded with a statement that if Darkinjung Local Aboriginal Land Council did not agree to an adjournment, a copy of the letter would be produced on the question of the seventh defendant's costs of the directions hearing. The affidavit enclosed with this letter, and said to be an affidavit in support of the notice of motion, was in fact an affidavit of the seventh defendant seeking an adjournment of his application for leave to file expert evidence "for a period of not less than one month".

30 On 3 November 2008, leave was granted to the seventh defendant to amend his statement of cross-claim by removing reference to a particular costs agreement. While the material does not disclose with precision when Darkinjung Local Aboriginal Land Council's defence to the seventh defendant's cross-claim was filed and served, an order was made on 3 November that it file and serve the defence by 7 November 2008. Finally, the matter was listed for further directions on 8 December 2008.

31 The letter the subject of this proceeding was published on 4 December 2008 (the Thursday before the directions hearing scheduled for Monday 8 December 2008). It is thus not necessary to describe the competing allegations, history of adjournment applications and delay after 4 December 2008. Suffice to say, on 5 December 2008, the seventh defendant (plaintiff) swore an affidavit complaining about the late service of the verified third cross-claim and stated:

"I am yet to file a defence to the third cross-claim. I suspect that the subject matter of that defence will advance the strength of my motion for leave to file expert evidence, but I am yet to finalise my thinking in relation to this issue and the defence more broadly. I therefore humbly ask this honourable court that my motion for leave to file expert evidence be adjourned until after I have filed my defence in the third cross-claim."

32 In Mann v O'Neill,[28] Brennan CJ, Dawson, Toohey and Gaudron JJ said:[29]

"It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or the judge. It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings. It is said that it extends to any document published on an 'occasion properly incidental [to judicial proceedings], and necessary for [them]'."

33 In dealing with the privilege of advocates, Gatley on Libel and Slander[30] states:[31]

"The privilege is not confined to words spoken by an advocate; it extends also to any statements contained in a pleading or other document incidental to the action settled by a lawyer engaged in litigation, including inter parties correspondence, even though such statements are irrelevant for the purposes of the action and introduced unnecessarily and without any instructions from his client and without any information which would justify them. But proceedings must be on foot or the statement must be part of their initiation: no absolute (as opposed to qualified) privilege attaches to a letter before action or response to an inquiry in a matter from which litigation may arise."

34 As was explained in Munster v Lamb[32] and Watson v McEwan,[33] absolute privilege is founded on public policy which requires those involved in litigation to be able to act with minds "uninfluenced by the fear of an action for defamation". Absolute privilege exists, not because the conduct of those persons ought not of itself to be actionable, but because, if their conduct was actionable, actions would be brought against them in cases in which they had "not spoken with malice and not spoken falsely". It is not a desire to prevent actions from being brought in cases where they ought to be maintained that has led to the development of the doctrine of absolute privilege, it is the fear that if the rule were otherwise, numerous actions would be brought against persons who were merely discharging their duty.[34]

35 In Taylor v Director of the Serious Fraud Office & Ors,[35] the House of Lords had to consider whether a letter written by an employee of the Serious Fraud Office to the Attorney-General of the Isle of Mann requesting assistance in the investigation of an alleged fraud, which letter suggested that the first plaintiff had been a party to a fraud, was the subject of an absolute immunity. Lord Goff of Chievley, Lord Hoffmann, Lord Hope of Craighead and Lord Hutton held that the absolute immunity from suit which applied to judges, advocates and witnesses in respect of statements made in court extended also to out of court statements which could fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution; and that, accordingly, the statements made in the letter were also subject to an absolute immunity from suit in respect of an action for defamation.

"In Mann v O'Neill, [1997] HCA 28; 71 ALJR 903, 907 [(1997) [1997] HCA 28; 191 CLR 204, 213 - 4] the judgment of Brennan CJ, Dawson, Toohey and Gaudron JJ describes the rationale as one of necessity:

'It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is "viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated". Certainly, absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privileged. And it is that consideration that leads to the rejection of the argument that absolute privilege attaches to the letter to the Attorney-General because it is analogous to a notice of appeal.'

Thus the test is a strict one; necessity must be shown, but the decision on whether immunity is necessary for the administration of justice must have regard to the cases in which immunity has been held necessary in the past, so as to form part of a coherent principle.

Approaching the matter on this basis, I find it impossible to identify any rational principle which would confine the immunity for out of court statements to persons who are subsequently called as witnesses. The policy of the immunity is to enable people to speak freely without fear of being sued, whether successfully or not. If this object is to be achieved, the person in question must know at the time he speaks whether or not the immunity will attach. If it depends upon the contingencies of whether he will be called as a witness, the value of the immunity is destroyed. At the time of the investigation it is often unclear whether any crime has been committed at all. Persons assisting the police with their inquiries may not be able to give any admissible evidence; for example, their information may be hearsay, but none the less valuable for the purposes of the investigation. But the proper administration of justice requires that such people should have the same inducement to speak freely as those whose information subsequently forms the basis of evidence at a trial.

When one turns to the position of investigators, it seems to me that the same degree of necessity applies. It would be an incoherent rule which gave a potential witness immunity in respect of the statements which he made to an investigator but offered no similar immunity to the investigator if he passed that information to a colleague engaged in the investigation or put it to another potential witness. In my view it is necessary for the administration of justice that investigators should be able to exchange information, theories and hypotheses among themselves and to put them to other persons assisting in the inquiry without fear of being sued if such statements are disclosed in the course of the proceedings. I therefore agree with the test proposed by Drake J in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184, 192:

'the protection exists only where the statement or conduct is such that it can fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or a possible prosecution in respect of the matter being investigated.'

This formulation excludes statements which are wholly extraneous to the investigation - irrelevant and gratuitous libels - but applies equally to statements made by persons assisting the inquiry to investigators and by investigators to those persons or to each other."[36]

"In recent years the procedure has developed whereby very full disclosure is given to the defendant in a criminal case, so that he will become aware, and others may become aware, of what has been said by investigators and those who speak to them in the course of the investigation which preceded the prosecution. Therefore, just as the preliminary examination of a witness by a party's solicitor out of court is a step towards the administration of justice which requires to be protected, I consider that the investigation of a suspected crime is a step towards the administration of justice so that the protection of absolute privilege should be given to those who, in the course of their public duty in investigating a suspected crime, speak or write to persons who may be able to provide relevant information, and to such persons in respect of what they say or write to the investigators, and to the giving of information by investigators to their colleagues who are also concerned with the investigation."[37]

38 In Taylor's case, it appears to have been assumed that absolute privilege applies to a letter written by a solicitor, in an existing proceeding, to a witness or a potential witness. In any event, the reasoning in Taylor is compelling. The public policy behind the concept of absolute privilege in relation to judicial proceedings compels the conclusion that, where absolute privilege would apply to a witness or potential witness in relation to out of court statements, the same privilege also applies to solicitors who make a defamatory statement relevant to the issues in a proceeding when they seek to obtain information relevant to the proceeding from such people.

39 In Hoover v Van Stone & Ors,[38] the United States District Court had to deal with the question of whether letters sent by the attorney for the plaintiff to potential witnesses from whom the plaintiff hoped to secure admissible evidence, were absolutely privileged. The Court (Latchum, Chief Judge) concluded that such letters were in fact absolutely privileged, holding that if relevant communications with potential witnesses were not privileged, there was a likelihood that the effective engagement in the investigation needed to prepare intelligently for trial would be inhibited. This conclusion and the reasoning underlying it was endorsed by Austin J of the Ontario High Court in GWE Consulting Group Limited v Schwartz & Ors.[39] As his Honour said,[40] "[t]he Hoover case is not binding on me, but its common sense and logic are persuasive". With respect, I agree. In GWE Consulting Group Limited, the relevant solicitor's letters were held to be absolutely privileged, even though the proceeding had not been commenced. Notwithstanding the fact that the absence of a proceeding on foot in Australia would mandate the conclusion that the letters were written only on an occasion of qualified privilege (rather than absolute privilege), the reasoning in GWE Consulting Group Limited supports the proposition that a solicitor's letter, written on an occasion properly incidental to judicial proceedings and necessary for them for the purpose of seeking information from a potential witness, is absolutely privileged.[41]

40 The defendant gave evidence that he wrote the letter in the course of the NSW proceeding for the purpose of determining the veracity of paragraph 10 of the plaintiff's affidavit of 19 September 2008. The defendant gave evidence (supported by contemporaneous documents) that the NSW proceeding was marked by delays, failures by the plaintiff to comply with orders, excuses by the plaintiff and applications for adjournments by the plaintiff. The defendant said that, as at 4 December 2008, he wished to be in a position to refute if possible paragraph 10 of the 19 September affidavit in the event that a further application was made for an adjournment at the hearing scheduled four days after the letter, on 8 December 2008.

41 The defendant's claim of absolute privilege is encapsulated in particulars in his defence as follows:

"(a) At all relevant times Cunliffe and Woods were Australian lawyers within the meaning of the Legal Profession Act 2004;

(b) At all relevant times Cunliffe and Woods were involved in a proceeding in the Supreme Court of New South Wales (proceeding number 2842 of 2006) (the 'NSW Proceeding'). At the time that the Letter was published Cunliffe was the seventh defendant in the NSW Proceeding. At the time that the Letter was published Woods was retained to act on behalf of the plaintiff in the NSW Proceeding, the Darkingjung (sic) Local Aboriginal Land Council.

(c) On 19 September 2008, Cunliffe swore an affidavit which he relied upon in the NSW Proceeding (the 'Cunliffe Affidavit'). Paragraph 10 of the Cunliffe Affidavit concerned legal work that he had apparently undertaken as General Counsel at Novell Pty Ltd.

(d) Between 19 September 2008 and 4 December 2008, Woods was informed by a former partner of Cunliffe that the contents of paragraph 10 of the Cunliffe Affidavit were unlikely to be true.

(e) On 4 December 2008, on instructions from his client in the NSW Proceeding, Woods sent the Letter to Novell Pty Ltd. Woods sent the Letter for the purpose of ascertaining whether or not the contents of paragraph 10 of the Cunliffe Affidavit were true or false and accordingly whether or not the evidence should be called from Novell Pty Ltd in the NSW Proceeding. Rather than immediately serving a subpoena, Woods first sought to ascertain whether or not Novell Pty Ltd had relevant evidence to give by sending the Letter.

(f) Accordingly, the Letter was published on an occasion properly incidental to the NSW Proceeding and necessary for the NSW Proceeding, it was published after the inception of the NSW Proceeding and was brought into existence for the purpose of the NSW Proceeding, it was published in the course of the NSW Proceeding and/or it constituted a communication with a potential witness in the NSW Proceeding."

42 The plaintiff's case was that the letter was not published on an occasion of absolute privilege. His case was that while absolute privilege has been accorded to solicitors for what they say when proofing a witness in conference, no authority supports the proposition that a letter, sent in the circumstances the defendant alleges he sent the letter, is absolutely privileged. However, while there may be a paucity of such specific authority,[42] as was fairly conceded by counsel for the plaintiff, no authority exists showing that a solicitor has successfully been sued for defamation for writing a letter defamatory of another party to a witness for the purpose of seeking evidence in an existing proceeding. Ultimately, the public policy considerations underlying the defence of absolute privilege, the absolute privilege authorities themselves and the reasoning in Taylor v The Serious Fraud Office & Ors[43] referred to above compel the conclusion that this first submission made by the plaintiff on the issue of absolute privilege must be rejected.

43 The plaintiff then contended that the evidence of the defendant should not be accepted when he says that he wrote the letter in the course of the NSW proceeding. If the defendant's evidence is not accepted on this issue, then the defence of absolute privilege cannot have any application.

44 In addition, the plaintiff submitted that, in any event, as at 4 December 2008, the issues in paragraph 10 of the 19 September affidavit were no longer alive - the time for debating them having passed. In elaboration of this submission, it was contended by the plaintiff that because the defendant had not called into question paragraph 10 of the 19 September affidavit (either in correspondence or at directions hearings) at any time between 19 September and 4 December 2008, the defendant had no legitimate purpose in writing the letter of 4 December 2008. Against this, the defendant gave evidence that if he had received a favourable response from Novell, then he would have attached his letter and Novell's reply to an affidavit to put before the Court on 8 December 2008 "with a view to asking the court to not allow any further timetables to simply lapse with excuses that were not true".[44]

45 In submissions, counsel for the defendant contended that there was a further legitimate purpose connected with the NSW proceeding for sending the letter. On the pleadings, the plaintiff would have had to give evidence in support of his cross-claim. The material discloses that it is likely the plaintiff would have been subjected to extensive cross-examination (if the proceeding had not settled before trial). In such circumstances, it was submitted that it was a legitimate step for a solicitor to take in the NSW proceeding to seek to obtain evidence showing that a party (the seventh defendant) had sworn a false affidavit in an earlier part of the proceeding, which evidence might be used (at least) in cross-examination as to credit.

The witnesses called at trial and the evidence given by them

46 Before proceeding further, it is necessary to say something about the witnesses called at trial and the evidence given by them. There were five witnesses: the plaintiff, the defendant and three witnesses called by the plaintiff, Mr Craig Laughton, Ms Christy Wilkinson and Mr Richard Thompson. On 4 December 2008, Mr Loughton was Novell's General Counsel Asia Pacific. Ms Wilkinson was a lawyer employed to assist him. Mr Thompson was the plaintiff's former partner, who the defendant identified as the former partner referred to in the letter who had "expressed the view that the statements in [paragraphs 10 of the 19 September 2008 affidavit were] unlikely to be true".

47 Mr Loughton and Ms Wilkinson gave evidence that the letter was read by them after it arrived on Novell's fax machine. The publication of the letter to each of them was undoubtedly the natural and probable consequence of sending the letter by fax to Novell. However, as counsel for the plaintiff properly conceded, if the letter was sent on an occasion of absolute or qualified privilege, then there was an ancillary or derivative privilege associated with the publications to Mr Loughton and Ms Wilkinson. In summary, Mr Loughton and Ms Wilkinson, by reason of their employment at Novell during the relevant period, both knew that paragraph 10 of the 19 September 2008 affidavit was true. In the circumstances, it should be concluded that the publication of the letter to each of them did not damage the plaintiff's reputation. Nothing further need be said about their evidence at this stage.

48 I found both the plaintiff and the defendant to be generally reliable witnesses. The defendant was subjected to vigorous cross-examination. To the extent it was suggested that I should find him to be unreliable, I reject that suggestion. In my view, both the plaintiff and the defendant generally endeavoured to give an accurate account of events as they recollected them. I do not believe that either party attempted to actively mislead me. That said, the evidence of both of them was, to some extent, affected by an obvious animus between them.

49 On the question of liability, it was the evidence of the defendant (and in particular his evidence concerning his purpose for sending the letter and his state of mind) and the evidence of Mr Thompson which was of most relevance. The defendant was cross-examined at some length as to the truth or otherwise of the assertion in the letter that one of the plaintiff's former partners (identified as Mr Thompson) expressed the view that the statements in paragraph 10 of the 19 September 2008 affidavit were unlikely to be true. It must be said that the defendant's evidence in this regard was not entirely satisfactory. He was cross-examined on the issue over two days. On the first day, the defendant was unable to pinpoint with any accuracy the date upon which Mr Thompson was said to have made this statement (other than on more than one occasion identifying a time frame between 19 and 22 September 2008). When asked whether he had a file note, the defendant said that he did not (other than perhaps asserting in cross-examination that the letter itself was a file note).

50 However, on the second day of his cross-examination, the defendant produced a letter dated 26 November 2008 (addressed to counsel then retained by him) in which he recorded the fact that he had had a communication with Mr Thompson on that day. Paragraph 17 of this letter provides:

"I mentioned to Thompson when talking to him Cunliffe's recent affidavit in which he said he had been away from his practice acting as CEO of some company during an illness. Thompson said that was unlikely to be true."

51 The defendant was vigorously cross-examined as to why this document had not been discovered. He said that he had found it overnight on his computer, and that the reason it had not been found earlier was that the document "had a weird name in my laptop and did not come to my attention until last night when I was doing some keywords searching under Mr Thompson's name".[45]

52 Immediately it must be noted that if one accepts the letter of 26 November 2008 sets out the conversation between the defendant and Mr Thompson concerning paragraph 10 of the 19 September 2008 affidavit as true, the wrong question was asked. The plaintiff's affidavit deposed to working virtually full-time as General Counsel, not acting as CEO. In any event, Mr Thompson gave evidence that he had no recollection of any such conversation.

53 It is clear from a number of the documents tendered during Mr Thompson's evidence that he and the defendant had a number of conversations during 2008 concerning aspects of the NSW proceeding. It is fair to say that Mr Thompson had little, if any, specific recollection of these conversations. Having regard to the elapse of time, I see no reason to be critical of him in this regard (or indeed in relation to any other aspect of this proceeding). It is now not possible to know whether the reference to the plaintiff acting as CEO for some company in the letter of 26 November 2008 accurately reflects the conversation the plaintiff had with Mr Thompson on that day. The possibilities include that the conversation concerned the plaintiff's evidence that he had acted as general counsel, which was then wrongly recorded as the plaintiff acting as CEO, and the possibility that the conversation was in fact about an assertion that the plaintiff acted as CEO (which conversation was then correctly recorded in the letter). In any event, having seen the defendant tested in cross-examination, and having considered the letter and the context in which it was written, I do not accept that the defendant knowingly made a false statement in the letter when he said that one of the plaintiff's former partners had expressed the view that the statements in paragraph 10 of the 19 September 2008 affidavit were unlikely to be true.

54 Similarly, I see no reason not to accept (and in fact do accept) the defendant's evidence concerning the purpose for which he wrote the letter. The defendant's evidence accords with the terms of the letter and is consistent with the history of the NSW proceeding as it unfolded between May and December 2008. The letter was exactly the sort of letter one might have anticipated a solicitor would write if he or she was seeking to bring an end to a protracted series of delays, failures to comply with orders and adjournment applications made by his or her opponent.

55 It follows from what I have said above that I accept that the letter was published on an occasion properly incidental to the NSW proceeding, and that it was necessary for them in the sense that that expression is used in the authorities. The defence of absolute privilege at common law is thus made out. The plaintiff's claim must therefore fail. This is so regardless of whether the imputations pleaded by the plaintiff, or the imputations that I have found were conveyed, were the imputations actually conveyed. That is, the defence of absolute privilege is made out both on the plaintiff's pleaded imputations and the imputations I have found were actually conveyed

56 Turning now to the statutory defence of absolute privilege, s 27(1) of the Defamation Act provides:

"It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege."

57 For the reasons given above, the statutory defence of absolute privilege provided for by s 27 of the Defamation Act is also made out. This provides a further reason why the plaintiff's claim must fail.[46]

58 What I have said so far is sufficient to deal with the plaintiff's claim. However, in the event that I am wrong, I will set out briefly my conclusions in respect of qualified privilege, the statutory defence of triviality and damages.

59 The principles relating to qualified privilege are contained in Toogood v Spyring,[47] Adam v Ward,[48] Howe & McColough v Lees,[49] Guise v Kouvelis[50] and Bashford v Information Australia (Newsletters) Pty Ltd.[51] They were recently set out by Kaye J in Szanto v Melville,[52] and I do not propose to restate them here.[53] It is sufficient to say that if the letter was not published on an occasion of absolute privilege, then it was undoubtedly published on an occasion of qualified privilege. The issue that would then arise is whether the defendant was actuated by malice in publishing the letter.

60 In Szanto v Melville,[54] Kaye J conveniently set out the principles relating to malice when it is established that defamatory matter was published on an occasion of qualified privilege. His Honour said:[55]

"In order to overcome a defence of qualified privilege, the plaintiff must establish that the defendant was actuated by malice in publishing the defamatory matter complained of. In order to establish the existence of malice, the plaintiff must prove that, in publishing the material complained of, the defendant was actuated by a motive which was foreign, or ulterior, to the privileged occasion. It is not sufficient that the plaintiff demonstrate the existence of a potential motive on behalf of the defendant. Rather, the plaintiff must establish that the ulterior motive was the dominant purpose of the publication of the matter by the defendant. Knowledge by the defendant, that the defamatory statement is untrue, may be "almost conclusive evidence" of malice, because it is strong evidence indicating the existence of an improper motive. However, knowledge of the falsity of the defamatory material is not, of itself, equivalent to the existence of the requisite improper motive."[56]

61 The plaintiff's case on malice concentrated on attempting to establish that the defendant had a lack of belief in the truth of the statement in the letter concerning the plaintiff's former partner. The plaintiff submitted that the letter made "serious allegations against Mr Cunliffe in circumstances where he (sic the defendant) had no genuine belief in their truth and was recklessly indifferent as to the truth or otherwise". For the reasons already given, I do not accept these submissions. Whatever animus the defendant had or has to the plaintiff (both during 2008 and thereafter), the plaintiff has not established (as he was required to in order to establish malice) that an ulterior motive was the dominant purpose for the publication of the letter. Specifically, I am not prepared to infer that the letter was published with any motive other than attempting to obtain evidence which might be used adversely to the plaintiff's (seventh defendant's) interests in the NSW proceeding. To the contrary, it seems plain to me that the letter was published for the purpose sworn to by the defendant.

62 It follows that in the event the letter was published on an occasion of qualified privilege, rather than absolute privilege, then the common law defence of qualified privilege would have been made out. Without pausing here to conduct a detailed analysis of the proper construction of the expression "reasonable in the circumstances" in paragraph 30(1)(c) of the Defamation Act, it is sufficient for me to say that in all the circumstances, if the letter was not published on an occasion of absolute privilege, then the statutory qualified privilege defence contained in s 30 would also have been made out.

Section 33 of the Defamation Act: triviality

63 Section 33 of the Defamation Act provides:

"It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm."

64 This section was, again, the subject of analysis by Kaye J in Szanto v Melville.[57] I agree with, and gratefully adopt, his Honour's analysis.[58] Like the Szanto case, there are a number of matters in the present case which support the application of the defence of triviality. The letter was published to a confined audience. The letter expressly stated the factual premises upon which the defamatory conclusion was based. The two solicitors, to whom the letter was published, were seized with the background circumstances - so that they knew that any suggestion that the plaintiff may have told an untruth in paragraph 10 of the 19 September affidavit was baseless. Further, it is clear that once the letter was read in full, the reputation of the plaintiff was not lowered in the eyes of either Mr Loughton or Ms Wilkinson.

65 On the other hand, while I do not think the imputations conveyed in this case were as serious as those conveyed in Szanto, they were not insignificant. It is a more than insignificant matter to publish that there are reasonable grounds for suspecting that a solicitor may have sworn an affidavit, in a court proceeding, which he or she knew to be false. In the circumstances, I am not persuaded that at the time of publication, the "circumstances of the publication were such that the plaintiff was unlikely to sustain any harm".

66 It follows that, had the plaintiff established an imputation (or imputations) upon which he was entitled to judgment, and if the defences of absolute privilege and qualified privilege (statutory and common law) had all failed, then the defence of triviality would not have been made out by the defendant.

67 In view of the conclusions which I have reached on the issue of liability, it is not necessary for me to consider in detail the issue of damages. However, I should express briefly my views on this question. I do so on the assumption that (contrary to the conclusions I have reached) the letter was published on an occasion of qualified privilege, rather than absolute privilege and on the basis that the defendant was actuated by malice, thereby giving the plaintiff an entitlement to damages.

68 By way of background, the plaintiff holds a Bachelor of Arts and Bachelor of Law (Honours). He graduated in 1970 and was Associate to Walsh J in the High Court in 1971. He completed Articles at Allen Allen & Hemsley (as it then was) in 1972, and practised there in 1973. After a number of other positions and appointments, he joined Blake Dawson (as it then was) in Sydney in October 1988. He became a partner there in 1991, and then moved to Melbourne.

69 He left Blake Dawson at the end of August 1996 to join Dunhill Madden Butler (as that firm then was) to establish an office in Canberra where he remained managing partner until 2000. Subsequently, Dunhills was taken over by Deacons, and the plaintiff became a partner of Deacons. He left Deacons in about 2002, establishing his own small firm. In 2003, he joined Norton White in Melbourne as managing partner. He participated in a buy-out of Norton White Melbourne in May 2005, which he then sold in May 2008. Subsequently, he re-established his own one man firm. He still holds a practising certificate, but has not worked due to ill health since the end of 2009. Ms Wilkinson described his reputation as being held, in legal circles, in the highest esteem. For the purposes of this proceeding, I am prepared to accept this evidence.

70 In her final address, counsel for the plaintiff submitted that the letter was published to two persons, both of whom were called to give evidence on behalf of the plaintiff.[59] She submitted that damage was presumed and that the plaintiff was entitled to an award of aggravated damages as a result of the 11 matters pleaded in paragraph 6(d) (sic, paragraph 6) of the third further amended statement of claim.

71 The 11 matters set out in the third further amended statement of claim were:

"(a) At the time of the publication the Defendant was acting as the solicitor for Darkinjung Local Aboriginal Land Council in litigation in the Supreme Court of New South Wales in which Darkinjung Local Aboriginal Land Council as plaintiff had joined the several parties including the Plaintiff in this proceeding as defendants ('The Related Litigation').

(b) The affidavit sworn by the Plaintiff referred to in the Letter ('the Plaintiff's Affidavit') was sworn by the Plaintiff in circumstances where he was seeking to explain to the Court a failure by him to comply with procedural orders made in the course of the Related Litigation.

(c) The factual issues raised by the Plaintiff's Affidavit were not at the time and have not since been contested in the related litigation, and were no longer relevant to any issue in the related litigation.

(d) The recipient of the Letter Novell Pty Ltd was a longstanding client of the Plaintiff, and had previously employed the Plaintiff as its in-house counsel.

(e) The Defendant knew of the Plaintiff's relationship with Novell Pty Ltd and its CEO, as can be inferred from the content of the Letter.

(f) The Defendant knew or ought to have known that publishing the letter to Novell Pty Ltd would cause the Plaintiff personal and professional embarrassment.

(g) At the time of his publication of the letter, the defendant had no genuine belief that its contents were true. The letter made serious allegations imputing inter alia that the plaintiff had sworn a false affidavit in circumstances where the defendant had no genuine belief in their truth and was recklessly indifferent as to the truth or otherwise.

(h) Prior to publication of the letter the Defendant did not make any enquiries with the Plaintiff as to the truth or falsity of the imputations.

(i) In or about 2006, the plaintiff had complained to the NSW Legal Services Commissioner about the defendant's conduct in the course of the Related Litigation, as a result of which complaint the defendant had been cautioned in March 2008. The complaint was in writing by letter dated 7 July 2006 and the caution was by letter dated 18 March 2008 from the NSW Law Society Professional Standards to the defendant. A copy of the complaint, letters and related documents may be inspected at the plaintiff's solicitors' offices by appointment.

(j) In the circumstances, it is to be inferred that the publication of the Letter and the imputations by the Defendant was made maliciously for the purpose of embarrassing the Plaintiff and placing pressure on him in the context of the Related Litigation.

(k) Further, since the publication of the letter, the defendant has declined to apologise. The plaintiff refers to his solicitors' letter to the defendant dated 8 January 2009 and the defendant's solicitors' letters to the plaintiff's solicitors dated 1 and 8 February 2010, copies of which may be inspected at the plaintiff's solicitors' offices by appointment."

72 Paragraphs (a) and (b) are non-contentious background facts. I have already rejected the assertion in paragraph (c). Paragraphs (d) to (f) can be accepted. I have already rejected the basis for paragraph (g). While paragraph (h) is literally true, it is not material so far as the claim for aggravated damages is concerned. While paragraph (i) was not the subject of any evidence either by the plaintiff or the defendant, the facts in it can be accepted as true - the point is there is no evidence that such matters aggravated the hurt felt by the plaintiff. I have already rejected the matters in paragraph (j). While the matters in paragraph (k) can be accepted as literally true, they do not (either alone or in combination with any other matter upon which the plaintiff can rely) support an award of aggravated damages.

73 The letter was published to two people who knew the underlying facts. The letter did not lower the reputation of the plaintiff in their eyes because they knew that any suggestion that the facts in paragraph 10 of the 19 September 2008 affidavit was untrue, was baseless. The plaintiff has not established any entitlement to aggravated damages.

74 The defendant submitted that if I came to the question of damages, then an appropriate allowance was $750. The plaintiff submitted that the appropriate range was $35,000 to $55,000. While damages are at large in cases of this kind, both submissions are, in my view, outside the range. If the plaintiff had succeeded on the issue of liability, the proper award of damages in this case would have been $15,000.

[1] The letter was also posted to the address of Novell Pty Ltd. However, no evidence was given at trial as to what happened to the posted letter. At trial, the parties concentrated on the sending of the facsimile letter and its receipt by employees of Novell.

[2] The final form of the pleading was the defence to the third further amended statement of claim, the plaintiff's statement of claim having gone through a number of iterations.

[3] Immediately one could note that particulars (c), (d) and (e) of the allegation of malice might more ordinarily be found in libel actions concerning the publication of articles or items by media defendants.

[4] Morgan v Oldhans Press Limited [1971] 1 WLR 1239, 1245; Lange v Australian Consolidated Press Limited [1970] 2 NSWLR 408, 412; Szanto v Melville [2011] VSC 574, [50] (Kaye J).

[5] I put to one side those cases that have discussed whether an ordinary reader might not notice curative words tucked away in a publication and media cases where the text of an article might or might not be held to neutralise a defamatory imputation contained in a prominent headline. The present is not such a case.

[6] Cf Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460, 466-8 [3]-[7] (French CJ, Gummow, Kiefel and Bell JJ).

[8] [2004] VSC 138; (2004) 9 VR 369.

[10] [1964] AC 234.

[13] [1996] EWCA Civ 1290; [1997] QB 123 at 138.

[14] Unreported WA Full Court 8 December 1997.

[15] (1998) 20 WAR 191 at 199.

[16] [1998] EWCA Civ 612; [1999] QB 241.

[18] [2000] VSCA 23; (2000) 1 VR 654 at 675.

[20] [1986] QB 1000.

[22] [2007] VSCA 314; (2007) 18 VR 562, [50]-[56], [103] and [104].

[24] [2010] WASCA 134.

[25] [2009] HCATrans 153.

[26] Who was sitting with Kieffel and Bell JJ.

[27] Cf rule 31.19 of the Uniform Civil Procedure Rules 2005.

[28] [1997] HCA 28; (1997) 191 CLR 204.

[29] Ibid, 211-212 (footnotes omitted).

[32] (1883) 11 QBD 588, 604-5.

[33] [1905] UKHL 1; [1905] AC 480, 486.

[34] See further, Attwood v Chapman [1914] 3 KB 275; Lincoln v Daniels [1962] 1 QB 237, 255-257; Hercules v Phease [1994] VicRp 68; [1994] 2 VR 411; Medical Practitioners Board of Victoria v Mann [2000] VSCA 89; (2000) 1 VR 609; Wong Shui Kee Roger v Chu & Ors [2002] HKCA 376; Iqbal v Mansoor & Ors [2011] EWHC 2261 (QB) (where his Honour Judge Parkes QC, sitting as a judge of the High Court, said at paragraph [17], in respect of witnesses, "[e]ven malicious allegations must be protected, because otherwise honest witnesses would potentially be vulnerable to baseless litigation"). See additionally Norris v Gittos [2011] WASC 295.

[35] [1998] UKHL 39; [1999] 2 AC 177.

[38] 540 F. Supp 1118 (US District Court 1982).

[39] (1990) 72 O.R. (2d) 133.

[41] See further, 1522491 Ontario Inc v Stewart & Ors (2010) 100 O.R. (3d) 596, [55] and [60].

[42] But see Hoover v Van Stone & Ors 540 F. Supp 1118 (US Dist. Ct. 1982); G.W.E. Consulting Group Limited v Schwartz & Ors (1990) 72 O.R. (2d) 133.

[43] [1998] UKHL 39; [1999] 2 AC 177.

[46] See s 24(1) of the Defamation Act, which provides that a defence under Division 2 (which includes s 27) "is additional to any other defence ... available to the defendant apart from [the Defamation] Act (including under the general law) ...".

[47] (1834) 1 CrM and R 181, 193; [1834] EngR 363; 149 ER 1044, 1049-1050.

[48] [1917] AC 309, 334.

[49] [1910] HCA 67; (1910) 11 CLR 361, 368-369.

[50] [1947] HCA 13; (1947) 74 CLR 102, 116.

[51] [2004] HCA 5; (2004) 218 CLR 366.

[52] [2011] VSC 574, [85]-[95].

[53] Other than to say that the principles relating to qualified privilege have been described as being stated in the authorities in broad terms and at a "... very high level of abstraction and generality" (Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366, 373 [10]).

[54] [2011] VSC 574.

[57] [2011] VSC 574.

[58] And in particular at paragraphs [154]-[166].

[59] While there was an assertion in interrogatories of the defendant (which interrogatories were tendered with their answers) that a Sonia Carter (the personal assistant to the Asia Pacific President of Novell Pty Ltd) was a recipient of the letter, no evidence was given confirming this fact or that Ms Carter actually read the letter. Similarly, while some evidence was given by Mr Loughton and Ms Wilkinson that a Ms Felicity McClure picked up the letter off Novell's fax machine on 4 December, no evidence was given that Ms McClure read the letter. In any event, there would be ancillary or derivative privileges in relation to any publication to Ms Carter or Ms McClure. Further, so far as the plaintiff's case on damages is concerned, it was not suggested that any contact either of these people had with the letter was a matter which might affect any assessment of the plaintiff's damages.