Read v Gitman

ralia Pty Ltd (No 2) [2018] NSWSC 1838 Gough v Squillacioti [2021] NSWDC 411 Goyan v Motyka [2008] NSWCA 28 Henderson v London Borough of Hackney [2010] EWHC 1651 (QB) Holmes a Court v Papaconstuntinos [2011] NSWCA 59; Aust Torts Reports 82-081 Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96 Horrocks v Lowe [1975] AC 135 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kalil v Eppinga [2023] NSWDC 107 KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden (2020) 101 NSWLR 729; [2020] NSWCA 28 Lassanah v State of New South Wales (No. 3) [2010] NSWDC 241 Lesses v Maras (2017) 128 SASR 292; [2017] SASCFC 48 Lindholdt v Hyer [2008] NSWCA 264 Lloyd-Jones v Allen [2012] NSWCA 230 Lorbek v King [2023] VSCA 111 Machado & Anor v Underwood & Anor [2016] SASCFC 65 Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150 Moit v Bristow [2005] NSWCA 322 Mowlds v Fergusson (1939) 40 SR (NSW) 311 Palmer v McGowan (No 5) (2022) 404 ALR 621; [2022] FCA 893 Pamplin v Express Newspapers [1988] 1 WLR 116 Papaconstuntinos v Holmes a Court (2012) 249 CLR 534; [2012] HCA 53 Pavlovic v Karzon [2023] QCA 37 Payne v Parker [1976] 1 NSWLR 191 Prager v Times Newspapers Ltd [1988] 1 WLR 77 Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 Sim v Stretch [1936] 2 All ER 1237 Singleton v John Fairfax & Sons Ltd (Supreme Court (NSW), Hunt J, 20 February 1980, unrep) Slater v Ecosol Pty Ltd [2023] SASC 99 Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB); [2016] EMLR 12 Stocker v Stocker [2020] AC 593; [2019] UKSC 17 Stoltenberg v Bolton [2020] NSWCA 45; (2020) 380 ALR 145 Toben v Milne [2014] NSWCA 200 Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044 Trkulja v Google LLC (2018) 263 CLR 149; [2018] HCA 25 Trkulja v Markovic [2015] VSCA 298 Xuan v Xu [2022] FCA 508 Texts Cited: Nil Category: Principal judgment Parties: Marlene Read (plaintiff) Mark Gitman (defendant) Representation: Counsel: Mr R Rasmussen (plaintiff) Mr M J Lewis with Ms A Sapienza (defendant)

Solicitors: Kalantzis Lawyers (plaintiff) Clyde & Co (defendant; to 27 July 2023) McCabes Lawyers (defendant; from 27 July 2023) File Number(s): 2021/00119359 Publication restriction: Nil

The proceedings and the parties

1. The plaintiff brings proceedings for defamation for three emails published by the defendant, who at the time was the managing agent of Strata Plan 2533, a block of twelve units at 25 Cook St., Randwick, to Lot owners, managers and a tenant. Each of the emails was described in their headings as containing information relevant to a forthcoming Annual General Meeting of the owners corporation.
2. The plaintiff, who had retired in 2006 after a distinguished career as a lecturer in physics, and whose mother owned a unit in this building, had long assisted in maintenance and building issues for her mother and other residents. She was elected to the positions of Chairperson, Secretary and Treasurer of the owners corporation after an Annual General Meeting on 4 March 2019, attended by a majority of the other Lot owners. At the same meeting, she and the Lot owners present had dispensed with the previous strata manager after problems with unlicenced or inappropriately qualified tradesmen. At a meeting on 9 May 2019, the owners corporation appointed MG Strata and BMC Management Pty Ltd to carry out these duties from 7 June 2019, and the defendant was appointed strata manager. During this intervening period, on 28 May 2019, the owners of Lot 2 complained of a leak from Lot 4 and a plumber ("Purple Plumbing") attended, but otherwise all strata matters were managed by the defendant.
3. At first, relations between the plaintiff and the defendant were cordial. However, the defendant made a series of errors such as paying Purple Plumbing twice, having the corporation's books out of balance, entering into an insurance contract without consultation and putting monies into the wrong accounts. Then, in November 2019, the plaintiff discovered that the builder carrying out work on Lot 7 which had been approved at the 1 August 2019 meeting was in fact an unlicensed handyman who was the husband of the managing agent for Lot 7. The defendant had never checked the builder's licence and insurance position. The relationship between the plaintiff and defendant deteriorated and, prior to the Annual General Meeting on 11 May 2020, the defendant sent three emails to all those persons whose email addresses were in the file as owners or contact persons. Those three emails are the matters complained of.
4. The imputations pleaded may be generally described as being allegations of lying, making false accusations of criminal conduct against the defendant, and wasteful incompetence in the conduct of her obligations to the owners corporation.

The issues in the proceedings

1. The issues for determination are as follows: Meaning 1. In respect of each of the three matters complained of, and giving them their natural and ordinary meaning, has the plaintiff's pleaded imputations been conveyed as a matter of fact to the ordinary reasonable reader? 2. In respect of each of the three matters complained of, and in so far as the Court finds each of the plaintiff's pleaded imputations are conveyed to the ordinary reasonable reader, has the plaintiff established that those imputations defamatory of the plaintiff? Publication 1. In so far as the plaintiff has established the element of publication in respect for each of the three matters complained of, what is the extent of publication? Defences 1. To the extent that the Court finds that the plaintiff's pleaded imputations are conveyed and defamatory of the plaintiff, then: 1. Has the defendant established that the publication of the defamatory matters was made on an occasion of qualified privilege at common law in respect of each of the three matters complained of? 2. Has the defendant established the substantial truth of imputation 4(d), namely: "The plaintiff wastes the resources of the Owners Corporation by engaging in unnecessary email communications with the strata manager, forcing him to expend excessive amounts of time responding to her"? 1. If the Court finds the defendant has established the defence of qualified privilege at common law, has the plaintiff established that the defence ought to be defeated because the publication of the defamatory matter was actuated by express malice? Damages and Injunction 1. To the extent that the Court finds that the plaintiff is entitled to an award of damages, what is the appropriate quantum having regard to: 1. The "appropriate and rational relationship" required between the harm sustained by the applicant and the amount of damages awarded under s 34 of the Defamation Act 2005 (NSW); and 2. Any mitigating circumstances relied on by the defendant at [11] of the Defence and having regard to s 38 of the Defamation Act. 1. Is the plaintiff also entitled to an injunction in the terms sought at [2] in the prayer for relief in the Further Amended Statement of Claim filed 21 October 2021. Costs and Interest 1. What is the appropriate order for costs in all the circumstances? (The parties have asked me to defer this finding, as well as the issue of interest).

The first matter complained of

1. On or about 29 April 2020, the defendant published of and concerning the plaintiff the words in the form of an email sent to the plaintiff and all owners and managing agents of Lots in Strata Plan 2533 with email addresses. "Dear Marlene, Purple Plumbing (your contractor) pocketed the building's money (2nd payment) and has not refunded it for 6 months. It took us many, many emails and phone calls to get it back from him. I am just wondering how we made a payment in 2019 and we only received it on 04/02/2020, considering that the payment was the EFT. I am also wondering why Westpac (his bank) sent me the attached notification on 04/02/20 (banked the same day, see below form SP 2533 bank account) if the payment was made in 2019. I am also wondering why he charged so much and did not fix the problem, but my plumber Philip Kauter fixed it, all water damages repaired by DJE in all effected units and we claimed it all on insurance with all other damages. You are right. Everything should be in writing from this point. The agenda is in the mail. I look forward to discuss these matters at the meeting with all owners. I am copying all owners via BCC. PS Today you emailed me at least 12 times over the issue that could have been clarified in 5 minutes phone call. In fact the issue should have just been discussed at the AGM. It took me 2.5 hours to respond to your emails, search for information, create statements … I do not believe it is a productive way to spend your building resources and my time. I strongly encourage all owners to attend the online/phone line AGM (the notice is forthcoming this afternoon)."
2. The imputations pleaded are as follows: 1. The plaintiff is incompetent as Chair of the Owners Corporation, in that she engaged a plumbing contractor on behalf of the Owners Corporation who overcharged the corporation, lied to the strata manager about when he had refunded money paid to him by the Owners Corporation, and failed to provide the services that he had been engaged to provide. 2. The plaintiff lied about moneys being refunded to the Owners Corporation. 3. The plaintiff carelessly and needlessly spent the Owners Corporation's money. 4. The plaintiff wastes the resources of the Owners Corporation by engaging in unnecessary email communication with the strata manager, forcing him to expend excessive amounts of time responding to her.

The second matter complained of

1. On or about 7 May 2020 the defendant published of and concerning the plaintiff the words in the form of an email sent to the plaintiff and all owners and managing agents of Lots in Strata Plan 2533 with email addresses. "Dear Marlene, In relation to item 1, the water bill was entered with the wrong date during bank reconciliation. Please accept my apologies for this error. It has now been corrected. The attached are: BS as it appeared on the AGM notice, amended BS after the adjustment and a copy of the bank statement. The origin and nature of the missing $618.28 from the cash at the bank account balance as of about May 2019 and during the 2019 reporting year and to where this missing cash amount has now disappeared to in the Balance Sheet and Financial Statement etc. for 2019. Please explain in terms that a Public/Chartered Accountant would understand. You comment/statement alleging our office unlawful act is false, misleading and offensive. I would anticipate receiving nothing less but an apology. Other 2 items will be discussed at the AGM as previously advised."
2. The following imputations are pleaded: 1. The plaintiff is a liar in that she falsely accused Mark Gitman and MG Strata Management of engaging in unlawful acts. 2. The plaintiff is a liar in that she falsely accused Mark Gitman and MG Strata Management of engaging in misleading and offensive conduct in relation to Strata Plan 2533. 3. The plaintiff is the type of person who is prepared to make false, misleading and offensive accusations against the defendant and his staff committing an unlawful act with respect to the financial accounts for the Strata Plan that he is managing.

The third matter complained of

1. On or about 11 May 2020 the defendant published of and concerning the plaintiff the words in the form of an email sent to the plaintiff and all owners and managing agents of Lots in Strata Plan 2533 with email addresses. "Dear owners, I am writing to you in advance to night's meeting. The attached are a few emails I received from Marlene over the 2 days. I would like to respond to some of the questions raised by Marlene so all of you have an UpToDate information. 1. Insurance. The insurance company has not changed. Even the policy number is the same. We engaged an alternative broker and achieved a reduction in premium cost nearly $300 (both certificates are attached) despite the fact that most of the polices were increased. 2. The refunds were treated differently due to the fact that one is from the owner of the lot and the other is from the 3rd party contractor. Both were banked as soon as the funds EFTed to your bank account. We operate the cash accounting system. I'll be more than happy to answer all other questions during the meeting tonight. Now I would like to inform you regarding other issues. Marlene has been basically the only person making all decisions on behalf of you [sic] building since we have taken over the management. We followed most of Marlene's instructions, but refused to follow some that we believed the other owners should be involved with. Some of them appear on tonight's agenda. Marlene has no financial interest in the building as she is not the owner and does not pay the levies. But Marlene has been deciding how to spend your money and most of the time ignored our advice. Below are some examples: We obtained the attached quotation from DJE- $8.778. Marlene engaged BIM (invoices attached) total cost $11.000+. DJE quoted for investigation in unit 7 $330 (the same quotation), but eventually provided a free advise [sic] that no leaks are evident. Marlene engaged Phil Kauter for the cost of $638.00 (invoice attached). (very good plumber, but a bit of waste considering that the information was already available). Purple Plumbing failed to identify and repair the leak in unit 6 and that cost you another $2,300+. That was later repaired by Philip Kauter for around the same amount and claimed on insurance. Managing you [sic] building has been an extremely challenging task. We have tried our best under the circumstances. Initially I wanted to approach all owners at the meeting and ask to join the committee so the decisions are made collectively by a number of people rather than one person. But recently Marlene alleged our company in committing an offence and holding illegally $618.28.1 have already email you the explanation for this transaction. The allegations are false and absurd. We are a reputable company that provides a good, honest and professional service. Marlen [sic] would like to join the committee again and emailed me the nomination form. I would find it nearly impossible to continue managing your building if Marlene is on the committee and in charge of your building or/and the only person that makes the decision. Therefore I request that you attend tonight's meeting and elect the new committee."

Capacity and defamatory meaning

1. Mr Rasmussen refers me to the statement of principles set out by Wigney J in Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [74]-[85] ("Rush"). Mr Lewis does not refer to any authority to the contrary.
2. The test for the ordinary reasonable reader remains that set out in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 insofar as those principles are distilled in Rush at [75]-[77]. The formality (or lack thereof) of the publication may be a relevant factor in that the ordinary reasonable person may be influenced by the overall tenor of the publication as it is "a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong" (Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 per Gleeson CJ).
3. The ordinary reasonable reader is taken to have read the whole of the matter complained of, but with varying rates of attention, in that material that is given prominence by capital letters, underlining and/or bold text may gain more of the reader's attention (Trkulja v Google LLC (2018) 263 CLR 149; [2018] HCA 25 at [32]). Each imputation is to be considered separately in the context of the entire publication in which it is pleaded to be conveyed.

Defamatory meaning

1. As well as challenging capacity, Mr Lewis also challenges the defamatory meaning of all of the imputations, including imputation 4(d). His submissions raise issues which Mr Rasmussen submits misstate the law and conflate the new serious harm test in s 10A of the Defamation Act ("the Act") with defamatory meaning, which is impermissible. Mr Rasmussen took exception to the following passage from Mr Lewis's submissions: "However, it is simply not defamatory to say that that the plaintiff has wasted the resources of the owners' corporation by engaging in unnecessary email communication with the strata manager. Neither would it be defamatory to say that the plaintiff was careless in the sense pleaded at 4 (if conveyed) for similar reasons. Such meanings are so trivial that no right minded person would think the less of the plaintiff: Gough, 19 and (xiii). For observations on such trivial meanings see: Rolph D, "Triviality, Proportionality and the Threshold of Serious Harm" (2019) 23(3) Media and Arts Law Review 280-306. Indeed, it is apposite to cite the observation made (at 398) by Pollock CB in Clay v Roberts (1863) 8LT 397: "There is a distinction between imputing what is merely a breach of conventional etiquette, and what is illegal, mischievous, or sinful". Similar observations were made by Lord Atkin (at 1242) in Sim v Stretch [1936] 2 All ER 1237: "[T]he protection [of reputation by defamation law] is undermined when exhibitions of bad manners or discourtesy are placed on the same level as attacks on character; and are treated as actionable wrongs."" (Submissions, paragraph 19)
2. Mr Lewis did not include the sentence appearing before his quotation of Pollock CB's remarks at page 398 of Clay v Roberts, in which Pollock CB gave examples of non-actionable publications. Mr Lewis went on to state that this particular statement of principle by Pollock CB was endorsed by Lord Atkin in Sim v Stretch [1936] 2 All ER 1237 (at 1242). However, his quotation from Lord Atkin also omits the reference to the examples given by Pollock CB.
3. The full text of what Lord Atkin said is as follows: "I only cite Clay v Roberts because of its reference to social conditions 70 years ago. It was held that it could not be defamatory to say of a physician that he met homœopathists in consultation. 'Would it be libellous, asked Pollock, C.B., at p. 398, to write of a lady of fashion that she had been seen on the top of an omnibus; or of a nobleman, that he was in the habit of burning tallow-candles? There is a distinction between imputing what is merely a breach of conventional etiquette, and what is illegal, mischievous, or sinful.'" (Emphasis added)

Whether each of the imputations in each of the matters is conveyed

1. Each of the publications and each of the imputations should be considered separately.

The first matter complained of

1. When determining whether an imputation has been conveyed, regard must be paid not only to the words used but also to the format and layout and, for the reasons outlined by Gleeson CJ in Drummoyne, the tenor and language, particularly where matters are inferred or hinted at.
2. The format and presentation of the matter complained of are important, as meaning does not just arise from the words. Mr Rasmussen draws my attention to two formatting aspects: 1. The use of the "blind carbon copy" ("BCC") portion of the email, which is expressed to be copied to "all owners and agents with emails". Mr Rasmussen submits that this process would give rise, in the mind of the ordinary reasonable person, to a sense of suspicion, as why would the identity of the recipients of the email otherwise speak not be disclosed? 2. The use of bold and underlining in the text to get across the principal stings, namely "your contractors" and "did not fix the problem", the inference being that these contractors are there at the insistence of the plaintiff as well as performing their work incompetently. In addition, paragraph 7, where the defendant "strongly" encourages the owners to attend the AGM to discuss these issues.
3. As to the "BCC", this is not merely in bold and underlined but also capitalised, so its importance would be taken to be high. What is so important about a strata agent sending an email to all owners and agents with emails? Mr Rasmussen submits that the reason is to create a sense of suspicion with a hint of subterfuge.
4. In reply, Mr Lewis submits that reasonable readers will be familiar with the nature of email and in particular the function of "BCC". They would have seen, from paragraph 5, that the author was copying all owners using this method and would not jump to a sense of suspicion but rather have understood it as being used when an author does not want recipients to press the "reply all" button and thereby encourage unnecessary emails in response. Alternatively, the use of the "BCC" would be because the defendant considered it appropriate to protect the recipient's privacy. Mr Lewis submits that in the context of management of the property with 12 units, such a position would be entirely understandable. Further, the ordinary reasonable reader would understand that the defendant's purpose is to encourage owners to come to the middle AGM to encourage a discussion of the issue with the buildings plumbing contractor, and not to discuss the plaintiff's blameworthy conduct.

The second matter complained of

1. All three imputations convey that the plaintiff is accused of being a liar; the first two are imputations of acts and the third is an imputation of "condition", which may be pleaded at the same time: Drummoyne Municipal Council v Australian Broadcasting Corporation at 137A ("act or condition"); Toben v Milne [2014] NSWCA 200, approving Singleton v John Fairfax & Sons Ltd (Supreme Court (NSW), Hunt J, 20 February 1980, unrep).
2. Mr Lewis submits, effectively in relation to all imputations, that, unless a reasonable reader impermissibly relied on his or her own prejudices, they would not have led to the conclusion sought by the plaintiff to the effect that she had knowingly made a false accusation. The defendant in fact apologised in part for the error drawn to his attention by the plaintiff. He submits that there is nothing in the matter complained of that would have conveyed, as a matter of fact, that the plaintiff had lied as contended for her in her imputations. I do not accept this submission. The defendant's apology does not alter the fact that he accuses the plaintiff of dishonesty in relation to her making knowingly false accusations.
3. I make the following findings: 1. Imputation (a): The defendant is demanding an apology for the plaintiff's false accusations, made in circumstances where it is clear, from the first two paragraphs, that there is a sensible and reasonable explanation for the discrepancy which she must have appreciated when writing what she did in the extract set out from her letter. What else would the defendant mean by using the word "false"? The ordinary reasonable reader would not assume that this was an explanation being given for the first time; the manner of presentation clearly asserts that the plaintiff falsely made these allegations when there was a reasonable and simple explanation. This imputation is conveyed and defamatory in meaning, for the reasons set out above. 2. Imputation (b): Similarly, the clear inference of the demand for an apology for making a statement that was "misleading and offensive" conveys an imputation that the plaintiff was making allegations false to her knowledge, which statements were misleading and offensive. This imputation is conveyed and clearly defamatory. 3. Imputation (c) is that the plaintiff is the kind of person who makes allegations of this type. The matter accuses the plaintiff of making false accusations - in other words, lying - in circumstances where it was inferred that she knew the truth. This imputation is conveyed and, for the reasons set out above, defamatory.

The third matter complained of

1. Mr Rasmussen submitted that the clear and simple language of the third matter complained of renders it a sustained attack on the plaintiff's competence and honesty, based on the sting of asserted "examples" designed to "inform" the recipients. Each of those allegations is set out in seven separate imputations.
2. Mr Lewis submitted that it would be clear to the ordinary reasonable reader that the defendant is answering only some of the questions raised by the plaintiff and that he would be more than happy to answer any other questions during the meeting. He submits that on no proper reading of the matter complained of do the words convey the meanings contended for by the plaintiff, namely that the defendant had finished answering the questions; the opening words of paragraph 6 would not convey to the ordinary reasonable reader that the plaintiff was responsible for what followed. Ordinary reasonable readers would understand, from those words, that the defendant is reminding them that the plaintiff had been the only person providing him with instructions. In addition, he submits that the word "refused" would not convey that the plaintiff would not want others to be involved but that the defendant wanted to obtain the input of other owners in relation to the making of decisions.
3. I make the following findings: 1. Imputation (a): This is an allegation of incompetence in the form of ignoring the Strata Manager's advice "most of the time", followed by "some examples" of such conduct. This imputation mirrors some of the words in the matter complained of, but in a permissible way. This imputation is conveyed and, by reason of the numerous factual "evidence" provided, defamatory. 2. Imputation (b): Paragraph 7 refers to the attached DJE quote for $8778 and the BIM Remedial Building Maintenance Tax Invoices and the "$11,000+" invoices from the builder chosen by the plaintiff, DJE, and goes on to refer to two other examples of the plaintiff needlessly running up tradesmen expenses. The allegation is plainly made that this example of the plaintiff ignoring the defendant's advice on the choice of tradesmen (paragraph 6) and preferring to use the higher-charging company is mismanagement. This imputation is conveyed and, given the factual examples set out as evidence, defamatory. 3. Imputation (c): Paragraph 7 clearly refers to the plaintiff unnecessarily obtaining a quote from BIM and unnecessarily getting a quote from Mr Kauta for $638. The defendant says that both were unnecessary, He goes on to add in Purple Plumbing fees that "cost you another $2,300+". There is a clear inference that these quotations were unnecessary as well as costing the building money. This imputation is conveyed and, for the same reasons as the previous two imputations, defamatory. 4. Imputation (d): This imputation was withdrawn during argument on 16 December 2021. 5. Imputation (e): Acting against the advice of the strata manager is referred to specifically ("most of the time ignored our advice") and followed by "some examples". An imputation of doing so recklessly is pleaded. This imputation is conveyed and, in the context of the acts referred to, defamatory. 6. Imputation (f): This is an imputation that the plaintiff is not only ignoring the managing agent's advice, but doing so incompetently, in that the defendant, by inference, knows better. This imputation is conveyed and defamatory. 7. Imputation (g): The plaintiff is accused of making a "false" accusation of committing an offence. A person who makes an allegation that he or she knows to be false is a liar. This imputation is conveyed and its defamatory nature is self-evident. 8. Imputation (h): Like imputation (c) in the second matter complained of, this is an imputation of a condition, rather than an act. The matter refers to "allegations" in the plural. Mr Lewis challenges whether such an generalised imputation can be conveyed but the plaintiff is entitled to distil an imputation as broadly as the claim put against her, for the reasons enunciated by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation at 137. This imputation is conveyed and defamatory.

Conclusions concerning the imputations

1. Each of the imputations pleaded by the plaintiff for each of the three matters complained of is conveyed and defamatory.

The evidence

1. The plaintiff and her husband gave evidence. The defendant did not give evidence and did not call any witnesses. As a result, most of the factual issues, although convoluted, are not in dispute, and there is no need to set out the usual account of the evidence of witnesses. I have instead set out the events in narrative form, indicating areas of dispute where applicable.
2. Documents from the owners corporation were tendered as part of an agreed Court Book (all references contain the letters "CB" are taken from that source) and, with one exception (a transcript of a strata meeting, although the objection was later withdrawn), were admitted without objection.
3. Evidentiary issues are limited, but each party asked me to draw Jones v Dunkel (Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8) inferences from their opponent's asserted failure to call witnesses.

The events leading to publication of the matter complained of

1. The events leading to the three publications the subject of these proceedings are as follows. For some years, the plaintiff, a distinguished scientist and academic who retired in about 2006, held roles in the owners corporation for the block of strata units in which her mother lived, where she spent a lot of time visiting as it was near her own home. She was responsible for all owners corporation activities, with the assistance of a managing agent, CF Strata. Another Lot owner, Nina Cruz (also known as Nina King), assisted her from time to time but, in practical terms, management was left by the other owners to the plaintiff to carry out.
2. This management of the building proceeded without complaint or criticism until early 2019, when the managing agent, Mr Cagliata, sent an unlicenced plumber to carry out repairs. He had previously sent someone with the wrong qualifications for some engineering work (Tcpt, 29 March 2023, p 169). The plumbing problems were serious, and the owners agreed this was not acceptable. At the annual general meeting on 4 March 2019 (CB 195 Tab 20), motion 20 (to renew the appointment of CF Strata) was defeated unanimously, with a two-month deferral to enable time to engage a new managing agent. An engineer with the correct qualifications, Mr William Ha, had been called in, and his careful reports of the leak problems (from his visits on 1 and 7 June 2019), covering units 2, 4 and 6 and the outside walls are set out at CB 250 - 254.
3. The new takeover date was to be 7 June 2019 but the plumbing work was urgent and could not wait that long (CB 201 Tab 22.1). The plaintiff instructed the former managing agent, Mr Cagliata, to issue a work order for Purple Plumbing, this company being known to the plaintiff to hold a licence and to have carried out plumbing works in the past to her satisfaction. Purple Plumbing attended promptly and completed the work in relation to their quote, which consisted of checking whether there were water leaks from Lot 4 into Lot 2; on 9 June 2019 they also carried out thermal imaging on Lot 6 and found no water leaks, confirming Mr Ha's findings. On 17 June 2019 Purple Plumbing provided their invoice to the plaintiff who then sent this on to the defendant on 18 June 2019, which was 11 days after the newly-appointed defendant commenced his duties as managing agent.

The relevant legislation for strata plans and managing agents

1. The management of strata plans in New South Wales is regulated by the Strata Schemes Management Act 2015 (NSW) ("SSMA"). This is outlined in Mr Rasmussen's submissions at paragraphs 49-62 and summarised by Smith SC DCJ in Gough v Squillacioti [2021] NSWDC 411 at [29]-[32].
2. The duties of strata managing agents are set out in the Property and Stock Agents Act 2002 (NSW) ("PSAA") at ss 3B(1), 8(1), 32(1), 86(1), 103(3) and 104(1)(a). The Property Stock and Business Agents Regulation 2014 (NSW) ("Regulation") imposes further obligations on the defendant. Mr Rasmussen has set these out in his submissions at paragraphs 83-88 and 89-99 respectively.
3. Although the parties did not address me on the legislation requiring building work to be carried out by licensed and insured builders (Home Building Act 1989 (NSW) ss 3 ("dwelling"), 4, 10 and 92(1)(a)), the parties agreed that, for all relevant purposes, that the Lot 7 building work commenced by Mr Nesci after its approval at the 1 August 2019 strata meeting was work that was carried out by an unlicensed builder who had, it would appear, carried out work in the bathroom, such as removal of the shower head and the taps. As set out in the 23 December 2019 minutes, the plaintiff stated that the negligence of this renovation work was a contributing factor to the floor of Lot 7 requiring the substantial rectification that it did. This is the Act referred to by the plaintiff at the Annual General Meeting (CB 579) when she describes the meetings she says the Department of Fair Trading had with both Mrs Nesci and Mr Roberts, in which they were told that using an unlicensed builder would amount to a breach of this legislation.
4. There have been some amendments to this legislation (for example, the Regulation referred to is the historical version for the period 31 October 2018 to 22 March 2022), but these are of no consequence.
5. The importance of this legislation is that it underlines the seriousness of having an unlicensed builder carrying out work, particularly if damage to the building is having to be rectified, as was the case with BIM. Keeping accurate financial records is also a matter for which the strata manager, rather than the committee he advises, is responsible, as the manager is in charge of paying tradesmen and keeping the books.

How did it come about that an unlicensed builder carried out substantial renovations in the building?

1. As noted above, on June or July 2019, Lot 7 made applications for renovations in the Lot (Tcpt, 27 March 2023, p 34(39)-35(3)). The owner of Lot 7 had (Tcpt, 27 March 2023, p 52(32)-(34)) signed a document saying that she was using licensed tradespeople and builders for her renovation. The proposed renovations were considered by the strata committee on 1 August 2019 (CB 298 Tab 46) and approved at the strata committee meeting on 20 August 2019 (CB 303 Tab 49; Tcpt, 27 March 2023, p 35(5)-(7)).
2. Mr Rasmussen states, at footnote 44 to his written submissions, that the Court Book does not contain copies of these minutes of meeting. The parties have, however, located the By-Laws for the Strata, which clearly identified that where "major works" (i.e. involving plumbing, electricity and the like: clause 2.1(j)) were carried out, the owner seeking permission of the owners corporation had to "use duly licensed employees, contractor or agent [sic]" (Part 3.3(a)). Insurance was also required (clause 2.1(h)).
3. The plaintiff prepared minutes of the 1 August 2019 meeting and sent them to the defendant. She later realised the defendant was not sending copies of her minutes of strata committee meetings to owners (except for the last one before the AGM in May 2020), which meant that apart from the one other person who attended the meetings, the other owners did not know what was going on.
4. There were ongoing plumbing problems at the building and in September 2019, the owners of Lot 7 advised new problems, at a time when they were renovating the bathroom and kitchen. It was in these circumstances that the plaintiff discovered that Mr Nesci was in fact unlicensed: "Q. Now, how did you find out that this person did not have a building licence? A. Yeah - because beforehand, I - I don't know exactly what precipitated it, but I have a tendency, if I find out what the company name is, to check - to - and the name of a person is - to check that they have a licence. Q. And how do you -- A. It would be nice if I'd checked the licence-- Q. How did-- A. --a lot earlier. Q. How did you check and how did you do this checking of the licence? A. On fair trading. You can look up the company ABN number or something or rather, and it tells you who's running the company. And then, I found out it was Mr Gillespie Nesci and then, I looked up to see if he was a licence builder under that name and he wasn't. Q. Okay. A. I could've checked this earlier but one assumes that and also, Candy Lui, the owner, had signed a document saying that she was using licenced tradespeople and builders for her renovation. So I'd believed that. I believed that and I was very upset and quite annoyed that I have to gone through all this, the builder and the tradespeople may not have had licences for all this work that had been done." (Tcpt, 27 March 2023, p 52 (10)-(33))

The police are called late on 27 November 2019

1. Later on the same day, the plaintiff's mother saw someone entering Lot 7 and informed the plaintiff that tradesmen were present at Lot 7 (Tcpt, 29 March 2023, p 226(49)-(50)). The plaintiff came to the premises to tell them to stop and the police were called. The defendant places great weight on the asserted wrongdoings of the plaintiff on this occasion in relation to both credit and damages, and full details of this incident are set out in the section of this judgment on credit.
2. The plaintiff gave unchallenged evidence that she reported the carrying on of unlicensed building work (which continued even after she had directed it to stop (Tcpt, 30 March 2023, p 292(27)-p 293(23)), to the Department of Fair Trading (Tcpt, 29 March 2023, p 220(20)-(23)). She told the Court that it was investigated (Tcpt, 29 March 2023, p 220(20)-(23)) and Tcpt, 29 March 2023, p 219(5)-(9), CB 660 Tab 115, lines 29 to 36).
3. Although her evidence on her discovery of there being no licence and complaining to the Department are unchallenged, the evidence concerning the calling of the police is not. In his submissions, Mr Lewis asks me to prefer the "evidence" of Mrs Nesci's version of events, provided in an email to the defendant a year or more later after these proceedings were commenced, (MFI 5), although this email was never tendered. Allegations that the plaintiff not only attacked the tradesman and resisted arrest but tried to hide these wrongful acts from the court are made in cross-examination and in submissions as a basis for not accepting the plaintiff as a witness of truth.
4. For the reasons set out in the section of this judgment on credit, I have accepted the plaintiff as a witness of truth and accepted her version of events. She robustly denied the versions of events given by Mrs Nesci and I accept her evidence.
5. Mr and Mrs Nesci were not called to give evidence about these (or any other) events, and neither was the unnamed tradesperson. There is no evidence of their being unavailable. No attempt was made to tender MFI 5 and it is not therefore in evidence: Boulas v Angelopoulos (1991) 5 BPR 11,477 at 11488 per Kirby P. In those circumstances, it is not strictly necessary for me to draw a Jones v Dunkel inference from the failure to call these witnesses. I am, however, prepared to draw such an inference from the failure of the defendant to call them, or to tender documents demonstrating the state of Mr Nesci's licence or the "police report" the owner of Lot 7 told the other residents at the AGM on 11 May 2020 that she had in her possession.

The events concerning Lot 7 after 27 November 2019

1. The plaintiff wrote to the defendant on 29 November 2019 as follows: "Dear Mark Please note that the Strata Committee and me are now handling all correspondence and phone calls to deal with the owner and her representatives, and "builder" and any of the "builder's" workers and also companies/workers engaged by the OC and SC at Unit 7 /25 Cook St Randwick. The "builder", Mr Giuseppe (Joe) Nesci of "Joe's North Shore Property Maintenance", recommended by real estate agent Ms Lyndall Nesci, and his workers are not licensed to do the work that they have been assigned to do by Mr G. Nesci at Unit 7 and this is contrary to the "Special By‐Law No 1 for Works" for SP 2533/25 Cook St Randwick. Please do not complicate matters by interacting with any of these people connected with the renovation of Unit 7/25 Cook St Randwick at this time. Thank you Marlene Read" (CB 376)
2. The plaintiff also told the defendant she would attend the proceedings in the Department of Fair Trading (CB 377).

The meeting on 23 December 2019

1. The Minutes of Meeting of 23 December 2019, a meeting which was only attended by the plaintiff and Ms Cruz (Unit 12), set out the difficulties the owners corporation was having with the intransigent property managers of Lot 7, including the plumbing problems resulting from these unlicensed and incompetently performed works, and advised of complaint proceedings (actually instituted by the owners and managing agents for Lot 7), resulting in a Fair Trading Mediation Session, set for 24 January 2020.
2. The text of these Minutes is as follows: "Unit 7 Renovations The Owner of Unit 7 employs Ms Lyndall Nesci (Principal) and Mr Kirk Roberts (Senior Property Manager) from "Investment Property Managers", Neutral Bay, to organize her unit renovations and lease her property for rent. These Property Managers recommended that the owner of Unit 7 engaged Mr Giuseppe (Joe) Nesci of "Joe's North Shore Property Maintenance", Dee Why, to provide a Quote and Scope of Works for the renovation that is well over the threshold of $20,000.00 that requires a licensed builder and appropriate Fair Trading-approved contract and other legally required documents. The owner undertook that no common property would be altered or interfered with in her renovation by signing the correct "Annexure C" form for renovation works according to the "Special By-Law No 1 for Works" 2012 of Strata Plan 2533. There have been many problems with this renovation. On August 30 the Chairperson of the Strata Committee (SC) was notified by the above property managers that the subfloor in Unit 7 was damaged and needed replacement before they could lay new flooring and continue the renovation. This damage was due to water penetration, contra-indicated concrete-"repair" and removal of kitchen common-property-tiles by the owner. Up until 25 September, the owner and property managers agreed with the SC Chairperson, that an Owners Corporation (OC) plumber should check all hot and cold water pipes and the shower floor for leaks, before the common property subfloor in the rest of the unit (except laundry and bathroom) was repaired and renovation started. (The hot water heater and pipes that can cause water leakage, had already been checked by an OC plumber a few months before in July.) A plumber's Report at a cost of $638.00 to the OC stated that there were no leaks at this time. This was necessary for the OC (and also beneficial to the owner) to ensure that there was no OC liability if the proposed new floor and cupboards were subsequently damaged from common property pipe/shower floor water leaks. Unit 7's subfloor was damaged by the owner by un-authorized and extensive multiple contra-indicated "wet" concrete patching of magnesite common property subfloor that does more damage to the floor and causes concrete cancer, also un-authorized concrete patching of a large crack in the north common property north wall near kitchen sink and dishwasher that can cause water penetration. The removal of common property tiles in the kitchen common property floor was also un-authorized. There are photos of all these damages. The property managers have also admitted that they arranged for the re-configuring of the owner's hot water heater and pipes in Unit 7 without complying with the requirements of the "Special By-Law No 1 for Works" 2012. Following 25 September, of the quotes obtained for the OC's repair of the unit's subfloor, only one (which was also $2,000.00 cheaper) provided a Contract that was legally required for works over $5,000.00. Acquiring the contract, ("BIM Remedial Building Maintenance"), arranging progress payments, jackhammering the removal of the damaged subfloor and re-levelling (cost $6,435.00) and then finding extensive concrete cancer and repairing that (extra cost $4,950.00 or total cost $11,385.00) took 37 days or 27 working days not the 64 days that the investment property managers are stating. This common property subfloor work was finished on 2 November 2019. Twenty seven working days is not an excessive time for undertaking this type of work. If the owner needed rental loss protection for her renovation she should have taken out appropriate Owner's Insurance. All the above statements are backed up by many photographs and the dates by many, many email exchanges (that were costly to OC finances). The Owners Corporation and its finances have suffered from the owner's unpermitted damage and alteration to common property including faulty and extensive contra-indicated wet concrete "repairs" to the magnesite subfloor, faulty and unpermitted "concrete repair" to large crack in common property north wall adjacent to kitchen sink and dishwasher, removal of common property tiles in the kitchen floor, removal of common property tiles in north kitchen wall above kitchen sink and dishwasher, large holes gouged by extreme force on cement of north wall near kitchen common property water pipes: this last action renders the recent OC plumber's Report and pressure test of water leaks in unit pipes at a cost of $638.00 now useless in protecting the liability of the OC against further costs from damage due to leaks from common property pipes. All of these above works were done without approval from the Chairperson or any Strata Committee or the OC as is required. It has been found that Mr Giuseppe (Joe) Nesci has no Builder or Tradesperson license from Fair Trading. An owner of a lot in a strata scheme must not carry out work on the common property unless the owner is authorized to do so- STRATA SCHEMES MANAGEMENT ACT 2015 - SECT 111 Work by owners of lots affecting common property 111 Work by owners of lots affecting common property An owner of a lot in a strata scheme must not carry out work on the common property unless the owner is authorised to do so - (a) under this Part, or (b) under a by-law made under this Part or a common property rights by-law, or (c) by an approval of the owners corporation given by special resolution or in any other manner authorised by the bylaws. STRATA SCHEMES MANAGEMENT ACT 2015 - SECT 132 Rectification where work done by owner 132 Rectification where work done by owner (1) The Tribunal may, on application by an owners corporation for a strata scheme, make either of the following orders if the Tribunal is satisfied that work carried out by or for an owner or occupier on any part of the parcel of the scheme has caused damage to common property or another lot - (a) an order that the owner or occupier performs the work or takes other steps as specified in the order to repair the damage, (b) an order that the owner or occupier pay to the owners corporation or the owner of the lot a specified amount for the cost of repairs of the damage and any associated costs, including insurance and legal costs. (2) An amount payable by an owner or occupier to an owners corporation under this section is payable, and may be recovered, under this Act as if it were an amount of unpaid contributions. Note: Section 86 provides for the recovery of unpaid contributions. The owner of unit 7 and her investment property managers, as above, were instructed on 27 November 2019 by the Chairperson of the SC to immediately arrange to stop and suspend all their renovation work and that permission to continue with it was withdrawn for a period. This was because extra repair work needed to be done by OC tradespeople with respect to a large crack in the western common property wall. This was also very necessary because of the above damage to common property and their engagement of trade work exceeding $5,000.00 and also $20,000.00 by the apparently unlicensed workers or, instead, to supply to the Chairperson the Builders/Tradespersons names and licence numbers. They did not comply with these instructions. Written Complaints were sent last week to "NSW Fair Trading" concerning the apparent unlicensed and possibly dangerous trade work performed on Owners Corporation's common property and owner's property during this renovation in Unit 7 that is to be leased out for rent. The owner and her employed investment property managers are concerned about the owner's loss of rental income that they did not plan for, because of the damaged common property subfloor in Unit 7. The owner apparently does not have owner's insurance to off-set her loss of rental income. They also have claimed that the OC tradespeople (BIM) have damaged the owner's property and the Chairperson of the Strata Committee charges that the owner's workers have damaged and interfered with common property without permission as well as done apparently unlicensed work in the unit. The owner and owner's investment property managers, as above, initiated on 19 November, a free Fair Trading Mediation Session at Parramatta for the 24 January 2020, the results of which are not binding in any way, nor is it compulsory to attend. The Chairperson of the Strata Committee, Dr Marlene Read is willing to attend with all necessary documentation and at no cost to the Owners Corporation. I don't actually expect them to attend since they have supplied no evidence that their "builder" or "tradesperson" has a license as a Builder or Tradesperson and the owner and her investment property managers themselves employed Mr Joe Nesci to do the renovation and also that his workers have done damaging un-authorized work to the common property in Unit 7. 3. See details in Secretary's Report above. MOTION 1: That the Strata Committee approve that the Chairperson, Marlene Read attend the Fair Trading Mediation Session on 24 January 2020 regarding the renovations in Unit 7 as noted above, if the Session remains scheduled, at no cost to the Owners Corporation."

What, if anything, should the defendant have done about the lack of licence?

1. As a managing agent, the defendant had obligations to the owners corporation to ensure that major works at the property were carried out by licensed builders under the terms of the Management Agency Agreement entered into by the agency employing the defendant and the owners corporation on 19 June 2019 (CB Tab 27, pp 244 - 245). Whether or not it was his duty to check registration and insurance before the work was approved, it was certainly his job after 27 November 2019, once he was told by the plaintiff that the "builder" was unlicenced, to ensure that unlicensed and uninsured persons did not carry out work. While the plaintiff was insisting that she should supervise this, this did not mean that he should have refused to assist her or to assist the owners corporation.
2. That was, however, the attitude he took. He never responded to the plaintiff's email of 27 November 2019 advising that Mr Nesci was unlicenced. If he did not know before that date that Mr Nesci was unlicenced, he certainly knew from that date onwards, yet he did nothing about it.
3. Also on 27 November 2019, the police came to the property after the plaintiff, alerted by her mother, discovered that despite her objections, work was continuing surreptitiously by the unlicenced builder. There was a confrontation. The defendant did nothing about this. The plaintiff also discovered, from her complaint to the Department of Fair Trading that she put in after these events, that the electrician was also unlicensed, which she considered "even worse" (Tcpt, 29 March 2023, p 222(42)). The defendant did nothing about the complaint to the Department or about the discovery that the electrician was also unlicensed.
4. One step I am satisfied that he did take, however, was to try to terminate the plaintiff's role in giving him instructions on the basis that she was having too many disputes with other owners for him to be able to manage the strata. On 4 March 2020, he wrote to the plaintiff as follows: "Hi Marlene, Please email you bank details to admin@mgstrata.com.au for bylaw registration reimbursement. Regarding the other matters, I feel a bit uncomfortable to take the instructions at this point of time considering how many disputes you are having at the building. We have booked the AGM for 11/05. I'll add those as the agenda items and we'll take it from there. Purple plumbing refunded the money (see attached) after about 14 phone calls and emails. I prefer not to deal with this company in the future."

What was said at the Annual General Meeting?

1. The defendant opened the meeting by insisting that he be the chair and saying that he had been "harassed by" the plaintiff's emails (CB 657).
2. Not everyone agreed with this course. In response to Nina Cruz (as Mrs King is referred to in the transcript) saying that "it doesn't feel right" for the plaintiff to be muted (CB 657) and that there should be "some resolution" of the disputes before the meeting started. The defendant opposed any such course and said "we will be resigning" if the plaintiff was elected to any position: "NC: I think the whole idea of having someone muted. I know… you know … like it just doesn't feel right to me but I know there's a lot of stuff going on. So if you know there is needed to have mediation … or I don't know … or third parties come in just to be involved so we can actually make decisions about what is going on. MG: Yes, OK. Nina, I have to say that I've been basically harassed by Marlene, by her emails, by a lot of statements she made. So if she is on the committee not I, we are resigning and you will be looking for new agent. So I will not be in the position to be defated [sic] and harassed like this … she made false … I'm recording this by the way. I'm recording this meeting. So all the audio will be available for any hearing Marlene decides to go to ??? Now I'm not prepared to … to proceed any further ??? I mean ??? with Marlene but as you know ??? silent partner ??? Marlene to make all the decisions. A lot of those decisions were wrong financial ??? no one else had any opportunity to be involved. If you go through my emails ??? there's at least $8,000 to spend on your money. That's without going into the details of everything else to $8000 to overspend ??? what didn't have to be spent. And if you're prepared to let Marlene take over and run her own operation that's fine, that's your decision at the end of the day, you're the owners [unintelligible, MR protesting]." (Portions highlighted)
3. I have highlighted the above portions for two reasons. The first is to demonstrate that from the beginning of the meeting, the defendant gave the meeting participants an ultimatum: either the plaintiff went, or he and his company went. The second is that he told the meeting participants he was recording the meeting so that "all the audio will be available for any hearing Marlene decides to go to." The plaintiff responded to this by saying she was recording the meeting as well. No objection was taken by anyone to this course. Mr Lewis sought a ruling that the tender of the transcript of the audio was inadmissible, which he later told the Court (in response to being referred to Xuan v Xu [2022] FCA 508) he withdrew.

What was said about Lot 7and the 23 December 2019 minutes at the Annual General Meeting?

1. The problems with Lot 7 had been the principal issue at the meeting on 23 December 2019 but there was also a series of resolutions passed, including motions to set the date for the AGM on 11 May 2020. The defendant acted as if all those resolutions had simply ceased to exist, as the plaintiff noted in her email of 8 May 2020. "Dear Mark RE motions 21, 22 and 23 on AGM agenda for 11/5/2020. These motions were not proposed by me they were proposed by you and I asked you to remove such a reference to me in a previous email. Motions on the AGM for 11/5/2020 were passed at a properly constituted Strata Committee Meeting on 23/12/2019 and the Minutes were distributed to all owners and you (see attached). The Strata Committee of a Strata Plan makes all decisions on behalf of an Owners Corporation between General Meetings of the Owners Corporation in order to deal with matters timely and between General Meetings. If the Owners Corporation has any concerns or wishes to revoke these decisions of the Strata Committee they may do so by calling a General Meeting or waiting until an AGM. Despite requests from me these SC Motions were not acted upon by you at the time without any reason being given. It is necessary for the SC to deal with matters timely and not wait for a General Meeting. That is why there are Strata Committees of the Owners Corporation. Delays obviously do not work well for a Strata Scheme and rejecting Motions passed by a SC without reasons casts the members of the SC in an unfavourable light with respect to the views of owners of the Strata Scheme when the SC members have done nothing incorrectly. Receipts for all amounts where necessary were supplied to you. Please explain in writing why you would not act on these lawful Resolutions of the SC for SP 2533 at the time they were made and you decided to place the same Motions on the AGM ~ 5 months later thus challenging the decisions of the members of the SC."
2. As the transcript for this meeting shows, any attempt by the plaintiff to raise the 23 December 2019 minutes issues and/or Lot 7 resulted in the defendant muting her and telling her it was not on the agenda for discussion. One such occasion was as follows: "MR: I haven't had the opportunity to say anything. Am I unmuted? Well, first of all, I would like to say something to Ming which I respect her and what I don't respect is her builder and/or her strata managers because they did not have a proper contract under the Building Management Act. And both the chairp … both the builder and the I've been told by the … by Fair Trading and the electrician which is even worse were unlicensed. The builder is unlicensed which is not a good thing for you and the … also the … the electrician is unlicensed. And I went to Fair Trading to explain all this. I understand that you are the innocent party. You did not get a proper contract under the Building Act and that is the fault of your … of your property managers. And I went to NCAT, not NCAT I… I went to Fair Trading and they came and visited me and they completely agreed and they have talked to both your strata managers that they did … they have acted outside their licence in not complying with the Building Act. I say that you're the innocent party in this and I have always said that. And also they have taken actions against the builder because he is not licensed and that is detrimental to you as well as the building. So that's what I did because they were not accounting for anything. They are not accounting for anything whatsoever and - MG: Marlene [unintelligible, MR protesting] Unit 7 renovations is not part of the Agenda tonight." (AGM transcript, CB 660)

Statement asserted to be false or misleading in the matters complained of

1. I have received submissions from both parties as to whether the defendant knew or ought to have known about the falsity of the statements of fact that he made, and what his purpose in so doing was. Before commencing an analysis of the facts as they were known to the defendant (knowledge of the falsity being the principal evidence of malice), I make the following general observations.
2. The plaintiff submits that most if not all of the defendant's statements were false or, at best, misleading and sets out a lengthy discussion of these. The defendant submits, in a more general fashion, that "taken at their highest, they go nowhere and certainly do not support a conclusive finding of malice (as the plaintiff has frankly conceded at PCS [168])" and that "in any event, the submissions do not reflect the evidence".
3. I do not accept these submissions. Counsel often make submissions to the effect that the plaintiff has made admissions and has no case, that she and her counsel have admitted this, and that what little they say does not reflect the evidence. Such submissions are no substitute for an analysis of the evidence. Carefully examined, the plaintiff made none of the submissions in her evidence attributed to her, although at times appearing crushed under the weight of cross-examination, Mr Rasmussen gave no points away, and did not make any of the concessions claimed.

The plaintiff's credit and demeanour

1. As to demeanour, I have been guided by the analysis of Besanko J in Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555 at [171]ff. I also take into account the observations made by Leeming JA in Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [15].
2. As Besanko J notes at [172], submissions on such issues are expressed in terms such as being an "impressive" witness. Counsel often submit that a witness gave evidence in what they call a straightforward manner, without embellishment and/or by making concessions where appropriate. In the case of Mr Roberts-Smith, he remained polite and calm despite a comprehensive cross-examination, but his demeanour and courteous answers did not deter Besanko J from rejecting him as a witness of truth.
3. In the present case, the plaintiff was not merely polite but almost painfully honest, seeking to agree to the questions asked wherever possible, giving answers which were responsive and to the point, and making concessions where concessions should be made.
4. The defendant submitted (submissions, paragraphs 72, 75 and 78) that the plaintiff was not a witness of credit and that she was prepared to conceal the truth from the court. The defendant gave the following examples: 1. The plaintiff's answers at Tcpt, 28 March 2023, pp 163-164 concerning the proceedings at NCAT, where it was asserted that the plaintiff had sought to hide a complaint she made. Mr Rasmussen points out that the plaintiff did disclose to the court that she had made a complaint to NCAT about the defendant (Tcpt, 28 March 2023, p 164(28)). She volunteered this after an earlier answer to a question about whether she had made complaints prior to 11 May 2020, where she had not referred to this because it was a complaint made later. It was a feature of the plaintiff's answers that she answered in a very literal sense. 2. Similar issues arise in relation to the plaintiff's statement that she had not accused the defendant of unlawful acts. Mr Rasmussen attributes the confusion to Mr Lewis's practice of inserting the words "had" or "have" into statements that did not contain them. She was answering these in a time frame prior to 11 May 2020, when this was the case. 3. Her conduct in relation to the unlicensed builder issue and the police. I have set this out in detail below, as it is the principal challenge to the plaintiff's credit. It is also relevant to malice.

The plaintiff's credit and her behaviour on 27 November 2019

1. Mr Lewis submits that the absence of the defendant's evidence (or any of the evidence called on his behalf) does not mean that the plaintiff's evidence should be accepted (El-Debel v Micheletto (Trustee) [2021] FCAFC 117). He submits that I should not regard the plaintiff as a witness of credit on any issue by reason of her unsatisfactory answers and attempts to hide adverse information from the Court.
2. As noted above, one of the bases upon which the plaintiff's credit (and also her claim for aggravated damages) is challenged is that it is "common ground that the plaintiff was escorted from the Building by police" (submissions, paragraph 82). In footnote 79 to this paragraph, the source for this is given as "MFI 5", adding that "when pressed", the plaintiff had conceded (by inference reluctantly) that this would have "got around the building" (submissions, paragraph 82, referring to Tcpt, 29 March 2023, p 236(6)-(8)). The plaintiff, in cross-examination, was accused not only of unlawful actions while trespassing in Lot 7 but of trying to keep this information from the Court.
3. These are inaccurate descriptions of the evidence and of the submissions.
4. As to these events assertedly being "common ground", the plaintiff never admitted that she was "escorted" from the building by the police, despite attempts to get her to do so: "HER HONOUR: Look the thing is this, Mr Lewis, you can put it to her that she didn't deny that the police were called, and whatever her answer is whatever her answer is, but obviously Mr Rasmussen will be saying, in his submissions, what chance did she have, even when she wasn't muted she was cut off. LEWIS: Your Honour, I can deal with it differently. HER HONOUR: In that question I'll note the question is withdrawn. LEWIS: I withdraw the question. Q. Dr Read, were you escorted off - A. I was not escorted off. Q. I haven't - Dr Read, I know you might disagree with - HER HONOUR: Let's start earlier. Can we start with whether the police were called? Do you mind?"
5. Mr Lewis put it to the plaintiff that Mrs Nesci had called the police: "LEWIS: Of course, your Honour. Q. Were the police ever called to unit 7 on 27 November 2019? A. Yes. Q. They were called by Lindall Nesci? A. No. Q. They were called by the strata managing agents for unit 7?"

Conclusions concerning the plaintiff's credit

1. The plaintiff was the subject of vigorous but fair cross-examination. Her evidence was consistent throughout. The evidence asserted to be unreliable or untrue consists of at best minor inconsistencies arising from date confusions in the plaintiff's answers. I unreservedly accept the plaintiff's evidence on every issue, including her account of the events of 27 November 2019.

Jones v Dunkel issues

1. The parties ask me to draw Jones v Dunkel inferences, as set out below.

Failure to call the defendant

1. The plaintiff invites the court to draw an inference against the defendant because he did not give evidence (or call any other person to give evidence, as occurred in Kalil v Eppinga [2023] NSWDC 107).
2. Jones v Dunkel inferences have been the subject of judicial consideration in a number of defamation actions. Such decisions generally turn on the facts of the case as the contents of the inference to be drawn is uncontroversial. Failure to call a party to defamation proceedings is comprehensively discussed in Stoltenberg v Bolton [2020] NSWCA 45; (2020) 380 ALR 145 at [103]-[107] where the court noted that the three conditions referred to in Payne v Parker [1976] 1 NSWLR 191 at 201 - 202 were made out: he could expect to be called in his own case, his evidence would elucidate a particular matter and no explanation was offered. It is self-evident that all three apply here. In relation to the interaction between Jones v Dunkel and Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 and Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969, there is a helpful analysis by Besanko J on Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) at [122] ff and, at [170], in relation to the role played by s 140 of the Evidence Act 1995 (NSW). I respectfully adopt his Honour's careful analysis of these issues.
3. Mr Lewis (paragraph 15, submissions in reply) seeks to draw a series of principles for defamation actions where a defendant publisher has not given evidence. I set these out, with my observations in response. 1. Mr Lewis submits that it is "not easy" for a plaintiff to invoke the rule against a publisher who elects not to give evidence, especially given the presumption of honest purpose that a publisher enjoys: Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [96]; Barrow at [53] - [55] and Kalil at [38]. However, Roberts v Bass is not a decision referring to this principle; the passage at [96] merely states that honesty of purpose is presumed in favour of the defendant, but not that this is a presumption that is not easy to overcome. In Kalil, one of the two defendants gave evidence and her credibility was preferred to that of the plaintiff. In Barrow the matter complained of was a comment made by the defendant about the plaintiff's multiple complaints to the Press Council about him, which was a fact, and not a situation where knowledge of falsity was relevant. Each of these cases turns on their facts as opposed to representing a principle. Defendants generally do give evidence in proceedings where qualified privilege at common law is pleaded; the cases cited by Mr Lewis may be exceptions that prove the rule as to the evidence of the kind necessary to defeat malice is generally led. 2. Second, Mr Lewis submits that the rule must be "applied carefully" (Cosco v Hutley (No 2) [2020] NSWSC 893 at [19]). I agree, but this is essentially a message of caution, not a principle in itself. 3. Third, the plaintiff must identify the inference and the evidence to which it applies with precision: Cosco v Hutley (No 2) at [19]; Barrow at [55] and Trkulja v Markovic [2015] VSCA 298 at [91]-[98]. That is easily done here, as Mr Rasmussen has set that evidence out with precision. 4. Fourth, the inference is not available in the context of malice until the plaintiff has discharged the evidentiary burden on the Briginshaw standard: Barrow at [55]; Kalil at [38], [47] and [76]. That may be so but, once the burden is discharged, there does not seem to be a reason why, in an appropriate case, the inference should not be drawn. 5. Finally, even after that evidentiary burden is discharged, an inference must not be drawn that the evidence not adduced would have been adverse to that party, or to treat it as an admission or to fill gaps in the plaintiff's case or otherwise turn conjecture into inference. This is a general statement of principle. I should stress that I have not considered Jones v Dunkel until after I have made my findings of fact on the issues in question.

Failure of the plaintiff to call any of the recipients of the matter complained of

1. Mr Lewis asks me to draw an inference that the plaintiff's failure to call the recipients of the matter complained of is that their evidence would not have assisted the plaintiff.
2. It is sometimes the case that a point is made concerning failure to call a recipient of the libel: Cush v Dillon and Boland v Dillon [2009] NSWDC 21 at [41]. In general, however, courts acknowledge the difficulties of finding persons prepared to state, in the witness box, that they thought less of the plaintiff after reading or seeing the matter: Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154 at [515]; Eustice v Channel Seven Adelaide Pty Ltd [2020] SASC 4 at [12].
3. In addition, there is compelling evidence of the reason why other owners of the units did not want to be involved. Mrs Byrnes, whose husband was the owner of unit 1 (CB 757), was sufficiently concerned about the commencement of defamation proceedings that she rang the plaintiff to tell her of her husband's and son's opposition to it (her husband owed the unit and their son lived there). The reason was that this could affect the value of the units at sale if word of what had happened got out. The plaintiff told the Court (Tcpt, 28 March 2023, p 125(7)): "Yes, I received a phone call from Susan Byrnes, who was the mother of Tom Byrnes, who was the owner of unit 1 at the strata plan where I was the office bearer. And she rang me up and said that Tom doesn't want me to make any complaints about any defamations. And she said that she thought that it would lead to a devaluation of the units when they were sold. And I said, I didn't think it really would because this matter would be over at some point. And then she said, "Well, I'm going to take over in the future and get this strata plan back on track." And then she said, "I don't want you at my elbow." So I understood that she had certainly read everything and took it to heart and wanted to - to take over as office bearer and did not want me at her elbow and on - even on the strata committee. So she certainly had read everything and had a negative opinion of me."
4. Mr Byrnes, described as the owner of unit 1 (CB 757) in which their son Tom lived, was a real estate agent. It is not in dispute that his name was on the email recipient list although he did not attend the meeting and had never played any part in the management of the building. On the day of the auction he was seen by the plaintiff speaking to people attending the auction. She heard him say "She wasn't fixing them." and "There's been a lot of trouble" - "a lot of trouble in the building." (Tcpt, 28 March 2023, p 127)

Common law qualified privilege

1. First, the privileged occasion must be identified: KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden (2020) 101 NSWLR 729; [2020] NSWCA 28 ("KSMC") at [39]. That was something of a difficulty on the facts of that case, as the defendants were gratuitously writing to their customers about the circumstances of departure of one of their employees. In the present case, the privileged occasion is readily identifiable as being the upcoming annual general meeting where part of the business to be conducted was the election of a committee and office bearers.

Did the defendant have the requisite social or moral duty?

1. Mr Rasmussen submits that the defendant did not have the requisite social or moral duty for the following reasons: 1. The defendant had entered into a contract for service and was supplying services to the owners corporation for remuneration; 2. The plaintiff was the elected representative of the owners corporation and the defendant was obliged by a statute (clause 9 of Schedule 1 of the Regulation) to act in accordance with the instructions of his client, that is the owners corporation, which was represented by the plaintiff because she was office bearer and contact person; 3. The defendant's allegations against the plaintiff were not raised first with the plaintiff; 4. The defendant's allegations against the plaintiff were not raised with the strata committee; 5. There was ample opportunity to do both of the latter two things because most of the allegations made by the defendant in the matters complained of involved events which had happened in 2019; and 6. If a social or moral duty is owed at all, it is owed to all owners, not a subset of 2/3 of them chosen by the defendant.
2. At paragraph 25 of the Particulars of Defence to Amended Statement of Claim the defendant identifies the privileged occasions as being "pursuant to a social or moral duty to do so and specifically, to communicate to the owners and managing agents of Strata Plan 2533, information that related to the management and administration of the Strata Plan."
3. An interest of the kind particularised is clearly capable of giving rise to a duty. The concept of "duty" does not have a narrow or technical meaning; all that is required is a social or moral or economic interest sufficiently tangible for the public interest to require its protection. It is used in the "broadest popular sense", as in when "a man is interested in knowing a fact" (Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5 at [71] (McHugh J) and [148] (Gummow J)).
4. As noted above, the issues of sufficient connection and apparent relevance must be addressed in relation to each of the matters complained of. One of the difficulties I had with both sets of submissions was that qualified privilege issues were, in the main, addressed to all three at once. Apart from the extra basis for relevance for the second matter complained of, the parties do not seem to have considered that qualified privilege may be made out for one or another but not all of the publications.

Publication to recipients with the necessary interest

1. Mr Rasmussen submitted that, while owners clearly have the necessary interest, agents/property managers and tenants do not.
2. First, as to managing agents who represent the owners, he argues that there is no reference in the SSMA to agencies or managing agents and they have no entitlement to attend meetings or play a part in the management or administration of the strata plan. Even if the managing agents who received the publications did have such an entitlement, there has been no evidence adduced by the defendant that these persons have authority, as opposed to being a mere "postbox" (submissions, paragraph 65). It is also possible that emails sent to "generic email addresses" (submissions, paragraph 64) may not be received or read by the person who is in fact the managing agent.
3. Second, as to tenants, Mr Rasmussen concedes that a tenant must be given the Agenda for a general meeting (SSMA Schedule 1, s 11) and is entitled to attend that meeting (SSMA Schedule 1, s 21) but otherwise does not have the necessary interest as he is not entitled to see the other documentation unless the owners corporation so decides (SSMA Schedule 1, s 11).
4. I do not accept these submissions. The concept of "interest", in terms of reciprocity, should not be restrained by "narrow limits" (Toogood v Spyring (1834) 1 Cr M & R 181 (at 193); 149 ER 1044 (at 1049-1050)). References to this statement by Parke B are described as "legion" in number by McColl JA in Holmes a Court v Papaconstuntinos [2011] NSWCA 59; Aust Torts Reports 82-081 at [79]. Holmes a Court v Papaconstuntinos is an important decision as it represented a rejection of a series of its earlier decisions where qualified privilege was interpreted in an increasingly narrow way: Moit v Bristow [2005] NSWCA 322; Goyan v Motyka [2008] NSWCA 28 at [73], [77], [86], [88]; Lindholdt v Hyer [2008] NSWCA 264 at [91] - [93] and [162]; This reached a high point in Bennette v Cohen [2009] NSWCA 60 at [21], [25], [60], [145], [151] and [211]; Fraser v Holmes (2009) 253 ALR 538 and the unfortunate case of Dillon v Cush; Dillon v Boland [2010] NSWCA 165 where the matter complained of consisted of one of two persons charged with investigating misconduct made a remark to the other. The Court had referred favourably, in these judgments, to the interpretation of the defence in the dissenting judgment of McHugh J in Bashford v Information Australia (Newsletters) Pty Ltd, where McHugh J considered that where a publication was voluntary, it would not be protected unless there was a "pressing need" for publication. In Holmes a Court v Papaconstuntinos, McColl JA explained some (but not all) of these earlier decisions at [5]-[6], [12], [15]-[18] and [140] by stating that the voluntary nature and timing of the publication were not decisive as to whether that defence was made out, but that voluntariness was nevertheless a relevant matter, and there was no occasion for overruling these previous decisions (at [110] per McColl JA). There is no occasion for the winding back of the clock to restore these earlier restrictive views of interest.

Was the occasion sufficiently connected?

1. Mr Rasmussen submits that each of the matters complained of was not made on a protected occasion, for a series of reasons: 1. The matters complained of were published to three classes of recipients (submissions paragraphs 46 - 48) and two of those three groups did not have the necessary interest (submissions paragraphs 63 -79). 2. The defendant did not have the requisite social or moral duty, for the reasons set out at paragraph 105 of the submissions. 3. Privilege only attaches to defamatory imputations that were relevant to the privileged occasion. Where a potentially privileged communication consisted partly of irrelevant matter, qualified privilege would attach only to that part which is relevant to the occasion (submissions paragraphs 107 - 118). 4. An additional reason for the second matter complained of not being made on a protected occasion was that the trust account was out of balance for eight months (between September 2019 and May 2020) which was a contravention of clauses 22(3), 26(6) and 29. Conformably with public policy reasons explained by the High Court in Aktas v Westpac Banking Corporation Limited (2010) 241 CLR 79; [2010] HCA 25, qualified privilege should not apply.
2. Some of the material in the matters complained of is clearly relevant, as it provides information about the upcoming meeting. Mr Rasmussen's submission about absence of interest appears to be directed to that portion which attacks the plaintiff as opposed to advising the time and place of the meeting and the like. Those precise portions are not delineated; each of the publications deals with issues arising for the owners, in the course of which the defendant is critical of the plaintiff, and unscrambling the omelette is difficult at times.
3. Mr Lewis, in reply, drew my attention to Gough v Squillacioti, which also concerned statements made in the course of an owners corporation meeting where there were complaints similar to the present, the allegations in the matters complained of were made on a protected occasion because of their link to the subject matter of the meeting. Smith SC DCJ stated: "[40] That context shows that there was a direct and immediate connection between the email and the management of the strata scheme. The very issue dealt with was whether the scheme should be continued to be managed until the AGM (or at all) by All Strata. [41] On 26 August 2019, Julian Saltmarsh, another member of the strata committee, emailed the defendant (copying in the other members) asking him to organise a meeting to discuss matters to be raised at the AGM. The email complained of was sent then, in anticipation of the AGM where the management of the scheme was to be decided and, in particular, the issue of who was to manage the scheme. After an introduction referring to the AGM, the email has a heading "Then why is the levy so high?" Under that heading the email effectively states that the plaintiff's actions and attitude has led to this by wasting strata money. Each of the statements made in the email relates to that assertion. Understood that way, there is a direct connection between the occasion of privilege and each of the statements made in the email now complained of. [42] The fact that the email raised the past issues (the dog and the garage) does not sever that connection. Those, too, concerned issues of management and in those instances, went to who should be in control of it."

Conclusions: an occasion of qualified privilege established for all three publications

1. The defendant has established that each of the matters complained of was published on an occasion of qualified privilege at common law. (I agree with Mr Rasmussen that the defence of qualified privilege goes to the matter and not to the imputation: Murray v Raynor at [22].) The onus of proof now switches to the plaintiff who, in order to defeat the defence, must discharge the very heavy burden, on the Briginshaw standard, of establishing malice in relation to each of the matters complained of.

Malice: the relevant principles of law

1. Mr Lewis has provided a written summary of the relevant principles of law with which Mr Rasmussen largely agrees. Both parties provide an extensive discussion of the relevant authorities on the issue of malice generally. Although not referred to in those submissions, the correct approach, where more than one publication is relied upon, is that the court should determine malice in relation to "each of the impugned publications … made, the impugned publications themselves, and each of the other publications relied upon by the plaintiffs in support of their contention that publication of the impugned publications was actuated by malice" (Lorbek v King [2023] VSCA 111 at [87]).
2. The main issue between the parties is whether the defendant knew, when he set out the attacks he made on the plaintiff, that what he was saying was false. As Mr Lewis's submissions appear to play down the importance of knowledge of falsity in terms of improper motive, I have set out the relevant authorities on this point in some detail.
3. Mr Lewis cites two decisions (Henderson v London Borough of Hackney [2010] EWHC 1651 (QB) and Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57) as authority for asserting that findings of malice are "rare".
4. In Henderson v London Borough of Hackney, the plaintiff had been dismissed from a school for gross misconduct after she accessed pornographic materials at work and sent one to a colleague. After her dismissal, the plaintiff obtained a position in another school. When the Human Resources director at the first school found out, she notified the second school of the disciplinary proceedings and result. The plaintiff, who drafted her own statement of claim gave the following particulars of malice: ""Olly Cochrane and/or the Defendant did not have a shred of evidence for the very serious and grave allegation it made that the Claimant was dismissed for conduct 'involving sexual harassment through the possession and display of explicit pornographic works at school'."
5. Eady J considered that it was "quite unrealistic" to suggest that the facts pleaded above were more consistent with malice than with its absence. It was in the context of these facts that Eady J used the word "rare" to describe malice findings (at [35]): "[33] It has been confirmed by the Court of Appeal in Telnikoff v Matusevitch [1991] 1 QB 102, [1990] 3 All ER 865, [1990] 3 WLR 725 and in Alexander v Arts Council of Wales [2001] EWCA Civ 514, [2001] 4 All ER 205, [2001] 1 WLR 1840 that, in order for a Claimant to succeed in proving malice, it is necessary both to plead and prove facts which are more consistent with the presence of malice than with its absence. This is one of the reasons why, in practice, findings of malice are extremely rare. [34] It is thus reasonably clear, as a matter of pleading practice, that allegations of malice must go beyond that which is equivocal or merely neutral. There must be something from which a jury, ultimately, could rationally infer malice; in the sense that the relevant person was either dishonest in making the defamatory communication or had a dominant motive to injure the Claimant. Mere assertion will not do. A Claimant may not proceed simply in the hope that something will turn up if the Defendant chooses to go into the witness box, or that he will make an admission in cross-examination: see Duncan and Neill on Defamation at para 18.21. [35] It is not appropriate merely to plead (say) absence of honest belief, recklessness or a dominant motive on the Defendant's part to injure the Claimant. Unsupported by relevant factual averments, those are merely formulaic assertions."

Inferences to be drawn in relation to malice

1. The plaintiff also asks me to draw inferences which would support the findings of fact on malice.
2. The first of these is the Jones v Dunkel inference in relation to each of the particulars of malice, in that the defendant, although sitting in court for the whole of the hearing, elected not to give evidence. In order to consider this issue I must first determine whether the plaintiff has discharged the onus of proof in relation to each of the particulars. I have accordingly set out my Jones v Dunkel inferences for each particular of malice separately after I have determined whether the onus has been discharged.
3. The second relates to inferences which can be drawn from failure to plead other defences. In Papaconstuntinos v Holmes a Court (2012) 249 CLR 534; [2012] HCA 53, Heydon J (at [57]-[58]) drew the conclusion, from the absence of a justification defence and the statutory defence of qualified privilege, that the respondent had conceded that he had published untrue material and he had conceded that his conduct in doing so could not be defended as reasonable.
4. This passage has not been the subject of discussion or comment in other judgments in the decade since it was handed down. I am reluctant to consider it here. The entitlement to plead only a defence of common law qualified privilege for a limited publication such as the present is self-evident, and the defendant has pleaded justification to one of the imputations, so I consider that the inferences Heydon J stated were available do not apply.
5. Mr Rasmussen made alternate submissions that, if the defendant was not in fact aware of the falsity, he published recklessly. I have found that the defendant did in fact know of the falsity in relation to all factual issues identified by Mr Rasmussen in his list of eight issues, so I have not considered this alternate claim.

Evidence alleged to amount to malice

1. What is proper evidence of malice? In Mowlds v Fergusson (1939) 40 SR (NSW) 311, Jordon CJ set out the kind of evidence that a plaintiff may lead: "Evidence that a person was animated by express malice in making a defamatory statement upon a privileged occasion, ie that he made the statement for some other purpose than that which the occasion warranted, may be intrinsic or extrinsic. Extrinsic evidence may be supplied by evidence of facts existing before, at, or after the time when the statement was made. It may be supplied by proving that the defendant on a different occasion had some particular disposition or inclination, or desire to serve some particular purpose, if there be also evidence which enables the inference that in making the defamatory statement on the privileged occasion he was actuated by a desire to indulge that disposition or inclination or to promote that purpose, and not to use the occasion for its legitimate purpose. When it is sought to do this, there must be evidence which makes it probable that the mental attitude of the defendant proved to have existed on the other occasion existed on the privileged occasion in question also and was then operative to influence him to make the defamatory statement. When the improper purpose which is alleged to destroy the privilege is a desire on the part of the defendant to injure the plaintiff by reason of personal illwill towards him, evidence that on a later occasion the defendant manifested illwill towards the plaintiff may supply the necessary evidence unless it shows also that the illwill arose out of something occurring subsequently to the privileged occasion." (At 327-8; see also Spautz v Williams [1983] 2 NSWLR 506 at 521 and Lorbek v King at [175] ff.)
2. The plaintiff particularised a series of matters where the statements made by the defendant were demonstrably known by him to be false, and were made for the dominant improper purposes of having her removed from the owners corporation committee and putting the blame on her to cover up his own mistakes: 1. The false claim that the plaintiff insisted on using BIM to repair the floor Lot 7 although their quote was higher and obtaining a second quote unnecessary (Reply to defence 2(j)(i) and (ii) and 2(l) (amended Reply)). 2. Water and pressure testing (Reply to defence 2(i)(iii) and (iv)). 3. Purple Plumbing and Philip Kauter Plumbing (Reply to defence 2(j)(v) and (vi)). 4. The balance sheets (Reply to defence 2(j)(vii)). 5. Insurance (Amended Reply to defence dated 28 March 2023, paragraph 2(k)). 6. "At least 12 emails" (Amended Reply to defence 2(m)). 7. Unfounded allegation about the defendant illegally withholding $618.28 (Amended Reply to defence 2(n)). 8. The defendant's conduct at the AGM generally (Amended Reply to defence 2(o)).

1. Wasting money: the two quotes for the floor of Lot 7 (Reply to defence 2(j)(i) and (ii) and 2(l)) (amended Reply).
2. These allegations relate to the circumstances in which the plaintiff obtained a second quote for building works (from BIM) which the defendant claimed was higher than the quote he had obtained (from DJE) as well as unnecessary, and thus financially irresponsible and incompetent. The high point of the allegations in paragraph 7 of the third matter complained of is the attack on the plaintiff's engagement of 'BIM at a cost of $11,000+' ("highlight" in all senses of the word, as these words are in fact highlighted in the original). By comparison, the defendant asserts, 'DJE not only quoted the modest sum of $330 for "the same quotation" (again, emphasised in the original) but actually even did not charge that modest sum, instead giving "a free advise [sic] that no leaks are evident" (again, emphasised in the original). In addition, BIM wanted over $3,000 more for the same work, the defendant claimed. To underline the plaintiff's irresponsible conduct, her emails authorising payment of progress claims - but not the quotes on which these were based - are annexures to the third matter complained of (CB 48, 53, 58).
3. As set out below, all of these statements were incorrect. Not only was BIM's quote lower, but they picked up on a serious problem which DJE had missed, which they also quoted for. It was not only proper but required, under the by-laws, for there to be a second quote for this kind of work. The high point of the defendant's response is to argue that, by attaching about 45 pages of documents (which Mr Rasmussen points out were carefully curated to support the defendant's claims of overcharging and irresponsibility), the defendant provided the recipients "all the information they required to determine the truth or falsity" and "was being transparent with the recipients and taking care not to conceal information from them (defendant's submissions, paragraphs 48 and 49).
4. The plaintiff's explanation of the outright untruthfulness of the defendant's claim (Tcpt, 27 March 2023, p 36(13-28; 45-47; 47-48, 49 and 118-120)) was not the subject of cross-examination. She said that on 10 October 2019 she obtained a BIM quote for the work DJE had previously quoted on for a sum of $6,435 (CB 343-351 Tab 7), which was less, not more, than the quote from DJE Services (which was for $8,778), as she pointed out in her email to the defendant of 10 October 2019 (CB 342 Tab 57, Tcpt, 27 March 2023, pp 45-46). Mr Rasmussen calculates that the DJE quote was actually 36% higher than the BIM quote for the same work.

2. DJE/PKP Water and Pressure testing (Reply paragraphs 2(j)(iii) and (iv))
3. The defendant states, in the third matter complained of (CB16 Tab1) that DJE quoted for investigation in unit 7 for $330, but eventually provided a free quote that no leaks are evident. The defendant is accused of wasting $638 by getting a quote from Mr Kauter, which was "a bit of waste considering that the information was already available" and, what is more, available for free.
4. The need for replacement of the magnesite flooring in Lot 7 appears have been caused by slow leakage from the bathroom shower or pipes which caused damage to the magnesite (CB 310 Tab 51.1). This work had to be done before the floor was replaced (CB 310 Tab 51.1; Tcpt, 27 March 2023, p 38(5)-(9)). Lot 7 was being renovated at the time so there was some urgency. The plaintiff knew the builders had started work on Lot 7 and asked whether the testing could still be carried out while all the shower heads and taps had been removed (CB 340 - 341).
5. The owners, the property managers, the plaintiff and Mr Gitman agreed (Tcpt, 27 March 2023, p 36(35)-(36)) that pressure testing of the pipes in Lot 7 should be done immediately and that they should also check for possible leaking from the floor in the shower recess (Tcpt, 27 March 2023, p 36(36)-(48)). DJE quoted $165 for the pressure testing and $165 for the dye test to the shower recess (CB Tab 51, p. 308). However, they had come to inspect without informing the plaintiff, which was contrary to the plaintiff's request, so DJE withdrew their quote fee.
6. After their inspection, the defendant simply informed the plaintiff, without producing any report, that there were 'no leaks found from today's inspection' (CB Tab 53, p. 314). The plaintiff was not satisfied with being told second hand that no leaks were found (Tcpt, 27 March 2023, p 44(2)-(13)), so she asked the defendant to engage Philp Kauter Plumbing (PKP) to pressure test the hot and cold water pipes in Lot 7 and dye test the shower recess (CB 339 Tab 54.1; CB 338 Tab 54). 205. The Plaintiff was present when PKP did the testing together with a person from Aquasearch (Tcpt, 27 March 2023, p 44(21)). PKP were very thorough; their investigations required two attendances separated by about two and a half hours (for the dye test), following which they provided a written report.
7. The plaintiff was present when the relevant work was being done. She described the tests and work accurately and is clearly familiar with building issues. I accept her evidence as to what steps were carried out, as I have in relation to all issues in these proceedings.

3(a). Purple Plumbing and Phillip Kauter Plumbing (Reply paragraphs 2(j)(v) and (vi))

1. I have dealt with two Purple Plumbing issues here. The first is that the defendant claimed, in paragraphs 4 and 7 of the first matter complained of, that, in addition to the problems he had with getting Purple Plumbing to refund the money, they missed the leak in Unit 6.
2. Mr Rasmussen submits that the defendant knew, however, that the work performed by Mr Kauter was for another leak entirely. Nor was Mr Kauter's work remedial in the sense that he was repairing work already completed by Purple Plumbing. It was not true, to the defendant's knowledge, that Mr Kauter had to carry out work costing "$2,300+" (paragraph 7 of the matter complained of) as a result of their oversight.
3. Purple Plumbing's first visit, in late May and early June 2019, was to investigate a leak from the overflow from the hot water into Lot 2, as their invoices for two items dated 31 May and 7 June show. While investigating a leak from Lot 11 into Lots 9 and 7, they found that it was attributable to guttering overflow (CB 273), which meant that the roof eaves needed cleaning. This was supported by thermal engineering photographs (CB 250 - 1). It was also supported by the place of water penetration, as this was coming in above the windows and near the ceiling. Purple Plumbing checked whether this was a problem for Lot 6 and found that "Lot 6 showed no water leaks with thermal camera" (CB 268). They confirmed this in a report (CB 277) and O'Dowd Roofing confirmed this as well (CB 275). It was for this reason - roof blockages causing water to leak down the walls - that O'Dowd Roofing was called in. They cleaned the gutters prior to 31 July 2019 (CB 294).
4. Two weeks later, on 26 July 2019, Mr Vincent in Lot 2 reported water dripping down his wall (CB 283 - 285) and Tom Byrnes, in Lot 4, made a similar complaint later that same day. The plaintiff and defendant had a phone conversation and Mr Kauter was appointed as the plumber. He found a hot water pipe in Lot 6 had burst. That hot water pipe was nowhere near the ceiling. In other words, there were multiple leaks, not just one leak.
5. I am satisfied that the defendant knew that there were multiple leaks in the building, and that he knew, from the detailed descriptions in the invoices, that these leaks were in different parts of the building and were occurring for different reasons. The statements in paragraphs 4 and 7 of the first matter complained of are untrue.

3(b). Purple Plumbing Invoice #786

1. Although a separate issue from the above, the claims about Purple Plumbing taking six months to repay the overpayment, requiring "HUGE effort [sic]" (CB 469) to recover this sum, are all false.
2. The defendant refers in the first matter complained of to a "2nd payment", suggestive of a second demand for the same amount. The defendant said at the AGM that Purple Plumbing had in fact issued two invoices for the sum of $2687.85, in a deliberate attempt to get two payments instead of one. This is not correct. There was only ever one bill invoice (no #773: see CB 268) sent for this sum, on 17 June 2019, and it was paid four days later on 21 June 2019. Purple Plumbing never sent another invoice for this sum of $2687.85 and the second payment on 25 July 2019 was made with reference to the 17 June 2019 invoice for the entirely different sum of $1,045.00 (CB 292).
3. The defendant's mistake probably arose from Purple Plumbing attending on a second occasion in July in relation to Lots 7 and 9 (their previous visit had been in late May and early June concerning other Lots) and sending a separate account no #786 for $1,045.00 (CB 273) under cover of an email from the plaintiff of 27 July 2019 (CB 280 - 282). The second payment was sent to Purple Plumbing on 25 July 2019. The defendant paid the first invoice a second time on that same date, probably in mistake. There is nothing in the Court Book indicating when the second invoice for $1,045.00 was paid, or if it was paid at all.
4. Although the defendant refers to his own "HUGE EFFORT" (CB 469) to recover this sum ("many, many emails": CB 469), those efforts consist of four very short emails sent by a Ms Taylor in the defendant's office between 7 November and 3 December 2019 (CB 386 - 391). It is clear from the text of the first of these emails that there is no prior correspondence concerning this request. The plaintiff's recollection is that Purple Plumbing told her that they refunded the sum at the end of 2019 (CB 469); the defendant says that it was 4 February 2020. If it was not until 4 February 2020, one wonders why Ms Taylor did not keep writing to them between 3 December 2019 and 4 February 2020 in the same diligent way.
5. Mr Rasmussen has provided a persuasive analysis of the bank documentation to suggest that the plaintiff was indeed correct and that the repayment was made at the end of 2019. I am persuaded, however, by the cessation of Ms Taylor's correspondence that it was received early in December 2019; this is supported by the plaintiff's later reply to the defendant (CB 469). In other words, Purple Plumbing took about a month to return the double payment.

The shortfall of $618.28 in the balance sheets (Reply paragraph 2(j)(vii))

1. This particular relates to paragraph 2 in the second matter complained of, which states that the reason for this shortfall (which the defendant was obliged to refer to in the Agenda for the AGM as part of item 1) was that "the water bill was entered with the wrong date during bank reconciliation" (CB 14 Tab 1). Although the defendant sought to minimise the problem as being a simple case of recent error caused a wrong date, that is not what occurred.
2. The books were in balance when the defendant took over the role as strata manager in June 2019; there were no outstanding or wrongly entered payments of any kind. The discrepancy in the accounts occurred in the course of entries made after the defendant took over, and remained on the books for a period covered by four quarterly reports. This was obvious from any analysis of the accounts and was found by the plaintiff, not the defendant.
3. Despite the books for the previous year being in balance, the defendant produced a Balance Sheet for the AGM (CB 499 Tab 94) which purported to show, for the first time, a year later, an entry for net owners' funds of $618.28 for the previous financial year. This resulted in confusing entries in that 'Net assets of -$618.28' and 'Net owners' funds of $0' are both shown (CB 405 Tab 69 and CB 411 Tab 72). However, both the Net assets and Net owners' funds are shown as -$628.28 on the Balance Sheet the defendant provided with the draft agenda (CB 422 Tab 6) and again for the final AGM Agenda (CB 400 Tab 4).
4. Concern over a sum of $618.28 may seem unduly suspicious, but the sudden change from being out of balance to an explanation of these funds relating to the previous year when in fact those books had balanced caused the plaintiff concern. She sent an email to the defendant asking "where this missing cash amount has now disappeared to in the balance sheet and financial statements etc for 2019." This is what caused the defendant to contact Justine Goldsborough in his office saying "I have been accused of stealing" (CB 568 Tab 98). In fact, the plaintiff had said no such thing. I draw the inference that he said this as an excuse to get help in finding out how to account for this money because he did not know how to do it. Although he claims that he found an entry error after consulting Ms Goldsborough (CB 577), he issued "an amended BS after the adjustment" (CB 14 Tab 1), in order to replace the incorrect balance sheet he had previously issued for the AGM.

Insurance (Reply paragraph 2(k))

1. This particular of malice relates to the third matter complained of. Mr Rasmussen submits that, as was the case with the BIM/DJE quote, the defendant made false statements which amounted to comparing apples with oranges and sought to support his allegations by leaving out documents that would show up his lies. He did not achieve a reduction in premium of nearly $300 by using a different broker; he increased the legal defence expenses contribution from 0% to 10%. He did not attach both insurance certificates; he left out the important pages from the full document which is to be found at CB 304-7, Tab 50. It is untrue that most of the policies were "increased"; comparison of the two shows that none of the policies were increased. Finally, he changed brokers and negotiated the changes to the legal defences contribution without consulting the plaintiff, although changes of insurance are matters for which he was obliged to consult the committee, providing copies of the competing quotations.
2. For the reasons explained by Callinan J in Rogers v Nationwide News Pty Ltd, supra, in these modern technological times, it is now more difficult to explain away failure to include specific documentation where it is stated to be attached. The defendant knew the false impression he was creating by this selective reading of the material. I draw a Jones v Dunkel inference for his failure to give evidence.

"At least 12 emails" (Amended Reply paragraph 2(m))

1. The relevant material is set out in the section of this judgment on justification of imputation 4(d).
2. Mr Rasmussen submits that the defendant could not possibly have made the mistake of saying the plaintiff had sent 12 emails when she had only sent seven. The defendant admits it did not take him 2.5 hours and I note that no actual evidence of the cost of the 1 hour and 20 minutes that the defendant agrees it took has been provided. A perusal of the 4 replies he sent does not reveal how this could have been dealt with in a 5-minute phone call and I also note that the defendant inconsistently warns her that all future communication must be in writing.
3. This is one of a series of inflated claims the defendant made about the number of emails the plaintiff sent. By the time of the AGM, the number of emails the plaintiff sent to him generally were described as being variously in the region of 2,000 - 2,500.
4. While a degree of exaggeration can be accommodated as not amounting to malice, the defendant's complaints about the plaintiff sending so many emails on one day was another part of his plan to discredit the plaintiff so as to avoid having to deal with challenges to his own incompetence in managing the owners corporation.
5. Having made those findings, to the necessary degree as required by Briginshaw (as is the case with the other particulars), I am satisfied that I may draw a Jones v Dunkel inference from the failure of the defendant to give evidence.

Making unfounded allegations (Reply paragraph 2(n))

1. The plaintiff did not make allegations of stealing. She described the sum of 618.28 as "missing" (twice) and asked where it had "disappeared to". There was a shortfall and the missing sum had to be accounted for.
2. I am satisfied that the defendant made this allegation in the hope that it would discredit the plaintiff after she complained that the Financial Statement provided for the AGM told a different story. The defendant knew the plaintiff was right to criticise him for his incompetent bookkeeping, and I infer that in part from the fact that he accepted that he had to apologise for it, in circumstances where he had done nothing about his errors for nearly nine months.
3. As with the other particulars about which evidence is led, I am satisfied that this is evidence of a malicious motive established to the Briginshaw standard and I draw an inference conformably with the principles in Jones v Dunkel concerning the defendant's failure to give evidence.

The defendant's conduct at the AGM generally (Amended Reply to defence 2(o))

1. The plaintiff points to the following: 1. During the AGM he muted the plaintiff 33 times, thereby preventing her from explaining to those present the allegations made against her, including those made a few hours before the meeting, which were particularly serious. This was despite his statements that he looked forward to discussions with "all" owners (CB 11) and saying that he would be more than happy to answer all other questions. In fact, he muted her in anticipation that she would respond in a way that exposed his lies. 2. Repeating the defamatory statements he had made in all three matters complained of and not permitting the plaintiff to respond. Even though the question is whether the defendant has been motivated by malice must arise from the matters complained of, repetition of the libel in other publications not sued upon may still be evidence of malice: Lorbek v King at [73] (four publications sued upon but another nine referred to). 3. Threatening to resign as strata manager if the plaintiff was to have anything further to do with the committee. This was in fact an unsuccessful threat because the plaintiff was still elected to the position of secretary, presumably because the other owners hoped she would go on doing all of the work as before.
2. The defendant's conduct of the meeting as preparer of the agenda, chair and minute taker at times contravened legislative requirements and good meeting practice. His refusal to permit the plaintiff to chair the meeting and an impromptu call for a vote on this was a breach of the legislation (Read v The Owners-Strata Plan No 2533 [2021] NSWCATAP 218 at [16(2)]; the appeal panel concurred (at [48])).
3. The plaintiff's submissions note the defendant's constant referral by him to having to keep to an agenda (submissions, paragraphs 294 and 295). As the plaintiff pointed out in her email of 8 May 2020, in crafting the agenda, the defendant took the opportunity to make the Minutes of 23 December 2019 effectively be replaced by later orders made at the 11 May 2020 meeting. This is despite those Minutes having been circulated to members for the purpose of informing them of the decisions of the owners corporation at that meeting, as the plaintiff noted in her email of 8 May 2020, when she sent him a fresh copy of them: "Motions on the AGM for 11/5/2020 were passed at a properly constituted Strata Committee Meeting on 23/12/2019 and the Minutes were distributed to all owners and you (see attached). … Please explain in writing why you would not act on these lawful Resolutions of the SC for SP 2533 at the time they were made and you decided to place the same Motions on the AGM ~ 5 months later thus challenging the decisions of the members of the SC." (CB 624)

The dominant and improper motives for the publications

1. I have set out eight separate instances, each of which demonstrates that the defendant made statements that he knew were false. Knowledge of falsity is "almost invariably conclusive evidence of malice" (Roberts v Bass at [76]). However, it is not sufficient of itself. In Lloyd-Jones v Allen [2012] NSWCA 230 at [77], Nicholas J (with whom Beazley JA and McColl JA concurred), helpfully sets out the explanation of these principles in Roberts v Bass at [76] - [77], [96] - [97] and [103] - [104] as well as the observations of Lord Diplock in Horrocks v Lowe [1975] AC 135 at 150 - 151; Lord Diplock stressed that "the desire to injure must be the dominant motive" (at 149). In determining malice, not even personal dislike (Horrocks v Lowe at 151) bias and even ill-will (Slater v Ecosol Pty Ltd [2023] SASC 99 at [557], citing Roberts v Bass at [76]; Goyan v Motyka [2008] NSWCA 28 at [98]) are sufficient. Malice is confined to "any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff" (Roberts v Bass at [75]).
2. The defendant made at least eight demonstrably false statements about the plaintiff, as set out above. Each of them relates to specific issues raised in each of the matters complained of (such as the Purple Plumbing double payment, occurring in the first matter complained of) but most of them are evidence of malice for all three publications (such as the claim of sending at least twelve emails). Each of them has a common factor, namely a mistake by the defendant which, in combination with the other mistakes could have cost him his position as strata manager or worse. For example, he was responsible for double-paying Purple Plumbing and the plaintiff had nothing to do with his asserted huge efforts to recover this over six months (a claim which was false in any event). He was responsible for the shortfall due to poor accounting, which he had to fix and apologise for; the plaintiff was not to blame for this and in fact she was the one who pointed it out. As for the BIM/DJE quotes, it was because the plaintiff obtained the necessary quote from a more skilled plumber that the concrete cancer problem was identified and rectified. Despite the advantages of electronic documentation now making collation of material so much easier (see the perceptive observations of Callinan J in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at [125]) the defendant carefully withheld from the third matter complained of, the correspondence from Mr Muchmore and the BIM quote which would have shown this. This is evidence of malice amounting to an abuse of the privileged occasion (Australian Broadcasting Corporation v Comalco Ltd [1986] FCA 381; 12 FCR 510 at [114]). It was done so that he could accuse the plaintiff of insisting on accepting a more expensive quotation when this was not the case.

Conclusions concerning malice

1. I am satisfied that the defendant, who knew of the falsity of the allegations as set out above, sent the three matters complained of for the dominant improper purpose described above, namely to protect himself from the consequences of his actions by falsely blaming the plaintiff for wrongdoings she had not committed. This was a sustained campaign of multiple accusations in three separate publications. This motive is clear evidence of malice which defeats the defence of common law qualified privilege in relation to each of the publications.
2. In the event that I have erred in my finding as to what the dominant improper purpose was, I note that in Lesses v Maras at [195] and in Machado & Anor v Underwood & Anor at [141] observations were made that malice may still be found even where there is inability to identify the precise motive.
3. A good example of this problem occurred in Coles Myer Limited v Webster; Coles Myer Limited v Thompson [2009] NSWCA 299, where a sales assistant called the police and accused the plaintiffs (fairly obvious members of the LGBTQ+ community) of fraudulent conduct. The trial finding of malice by reason of ill-will was upheld on appeal, largely because the obvious falsity of the allegation, but it was never clear where the ill-will came from or why the shop assistant would have taken such an extraordinary step after a few minutes of conversation with the plaintiffs. In the ensuing decade, thanks to social media, the phenomenon of shop assistants calling the police because of vindictiveness or prejudice against persons of colour, the intellectually disabled and/or LGBTQ+ has become widely recognised, but only after a series of respectable members of the community found themselves the target of such conduct, not only from shop or hotel employees, but also on occasion from the police. Similarly, in Lassanah v State of New South Wales (No. 3) [2010] NSWDC 241, police stopped and searched a black social worker and his intellectually disabled patient after shop assistants called police immediately after they came into the store. The plaintiffs were awarded damages for false imprisonment but an award for defamation was set aside on appeal as there was no evidence of malice or improper motive.
4. Cases such as these demonstrate that defining the improper motive may in some cases be genuinely difficult. The decisions of Lesses v Maras at [195] and Machado & Anor v Underwood & Anor at [141] would still permit a finding of malice where the motive is unclear. Where the defendant does not give evidence, the court should also be entitled to take that factor into account. Accordingly, if I have erred in my determination of what the improper motive is, or there is insufficient evidence of it, malice can still be made out.

Justification

1. The defendant pleads the defence of justification to imputation 4(d).
2. In the weeks leading up to 29 April 2020, the plaintiff had sent emails to the defendant asking for an explanation of the apparent shortfall in the accounts. In his written submissions, Mr Lewis states (at paragraph 35 of his outline of submissions) that the defendant had attempted to communicate with the plaintiff "orally" but this failed and therefore he had to spend what is called "an excessive amount of time" responding to her in writing: "Mr Gitman reasonably attempted to orally communicate with Ms Read about that matter. That attempt failed. Mr Gitman therefore had to spend an excessive amount of time responding to Ms Read's emails in writing."
3. When was/were these attempts, and why did they fail? Mr Lewis's reference to "that attempt" suggests that only one attempt was made. He stated at paragraph 37 of the outline: "Mr Gitman will seek to establish at trial that the emails he received from Ms Read between 29 April and 6 May 2020 were unnecessary and caused him to spend an excessive amount of time responding to them."
4. The first matter complained of inconsistently demanded that "everything should be in writing from this point" while claiming that the plaintiff unnecessarily emailed the defendant "at least 12 times over the issue that could have been clarified in 5 minutes phone call [sic]".
5. The plaintiff's cross-examination on this issue did not deal with all the correspondence between 29 April and 6 May 2020 but focussed largely on the claim that her complaints could have been dealt with in a five-minute phone call. She was not cross-examined about the defendant having "attempted" to contact her in the manner described in the outline of submissions.
6. The defendant did not give evidence.
7. As Mr Rasmussen points out in his submissions, from April 2020 onwards, the plaintiff's concerns were many. First, the defendant had not replied to four requests during April to prepare a draft agenda. Second, he had not responded to her concerns about the shortfall in the accounts. There was undoubtedly a shortfall, and there was no explanation until the second matter complained of, dated 7 May 2020, when the defendant admitted to the bookkeeping errors that caused the shortfall and apologised to everyone.

Conclusions concerning liability

1. I have found that each of the matters complained of conveys each of the imputations pleaded, and that each of them is defamatory.
2. The matters were published on an occasion protected by the defence of qualified privilege at common law. The defence has, however, failed for each of the matters complained of by reason of the plaintiff having discharged the onus of proof to the Briginshaw standard of establishing malice in relation to each of them.
3. The defence of justification to imputation 4(d) has not been made out.
4. The plaintiff is entitled to judgment and to the determination of damages appropriate for each of the three publications.

Damages

1. The plaintiff claims damages, including aggravated damages. The defendant brings a plea in mitigation.
2. The purposes of an award of damages for defamation are "consolation for the personal distress and hurt caused to [the plaintiff] by the publication, reparation for the harm done to [the plaintiff's] personal and (if relevant) business reputation and vindication of [the plaintiff's] reputation": Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31 at 60 per Mason CJ, Deane J, Dawson and Gaudron JJ. The task for the Court is to identify all of the relevant factors, to assess their significance and to make an evaluative judgment as to the appropriate award conformably with the Act.
3. The Court is to ensure that there is an appropriate and rational relationship between the harm sustained by the Applicant and the amount of damages awarded: s 34 of the Act.
4. Section 35 of the Act provides for a maximum amount of damages for non-economic loss that may be awarded in defamation proceedings. The maximum amount of damages that can be awarded for non-economic loss is $459,000 from 1 July 2023 (Government Gazette No 250 of 22 May 2023, n2023-0927).
5. Although there are three publications, care must be taken to avoid "double dipping" and the approach to the award of damages is for this to be one sum representing all publications, conformably with s 39 of the Act, whether there are only two publications, as occurred in Pavlovic v Karzon [2023] QCA 37 or as many as 28: Gayle v Fairfax Media Publications Pty Ltd (No 2) Gayle v The Age Company Pty Ltd (No 2); Gayle v The Federal Capital Press of Australia Pty Ltd (No 2) [2018] NSWSC 1838. Where only three of publications are involved, it is not necessary to carry out the careful analysis embarked on by McCallum J (as her Honour the Chief Justice of the Supreme Court of the Australian Capital Territory then was) in this judgment.
6. The heads of damage claimed by the plaintiff are: 1. The plaintiff's distress and the reasons for it: Mr Rasmussen relies upon several passages between Tcpt, 27 March 2023, pp 76 and 81. This is addressed for each of the matters complained of. 2. The effect of the publications on the plaintiff's behaviour: Mr Rasmussen points to the plaintiff's description of the profound impact of the publications (Tcpt, 28 March 2023, p 163) as well as to the observations of her husband (Tcpt, 30 March 2023, pp 298-309). The very serious impact on both her emotional and physical health was also evident while she was in the witness box, as is set out in the transcript. I will not distress the plaintiff by setting this out in detail, but the impact of the publications has clearly been both severe and prolonged. 3. The effect the publication has had on others: As well as telling the plaintiff not to sue, Mrs Byrnes told her that she was going to take over in the future to get the strata back on track and did not want the plaintiff at her elbow. In addition, Mrs Byrnes was the person who, when seeing the plaintiff at the auction of her mother's unit in December 2021, said "Oh, here they come now. The troublemakers." (Tcpt, 28 March 2023, p 126). She noticed changes in the behaviour of Nina Cruz, Larry Vincent and Randall Magro, all of whom distanced themselves from her and avoided her. 4. Her worry about this litigation (Tcpt, 28 March 2023, p 165): It has been an ordeal for her to prepare documents. Her husband confirmed this (Tcpt, 30 March 2023, p 307). 5. The impact on her position and standing: The plaintiff had been acknowledged not only nationally but internationally as a physicist. She had been a member of the Australian Institute of Physics and the American Physical Society (APS Physics) as well as the author of many scientific publications during her long career as a senior lecturer at the University of New South Wales. Imputations of the kinds of misconduct she was accused of by the defendant was very damaging to her reputation generally, as being truthful as a scientist (even after retirement) is as important as honesty is for a member of the legal profession (Crampton v Nugawela (1996) 41 NSWLR 176 at 192-3). 6. The defendant's failure and refusal to apologise: The plaintiff sent two requests for an apology prior to commencing proceedings, both of which were ignored. Her husband said that what she really wanted was an apology, not a court case, so that she could show people she was not guilty of what she had been accused of: Tcpt, 30 March 2023, p 308.

The extent of publication

1. The defendant admits that all three publications were made to occupants as well as some strata managers of tenanted premises of a building, in the course of preparing for the AGM. A list of 18 email addresses appears at CB 821, but other persons such as Mrs Sue Byrnes clearly had read it; I could not see Mrs Nesci or Mr Knight's email addresses, and assume that their information came via Ms Lui or their companies. Mr Rasmussen points out that eight of these addresses are to companies where other persons in the office may have read the matters complained of.
2. The defendant claims that evidence of publication is merely "inferential" and that the cautions expressed in David v Abdishou [2012] NSWCA 109 at [286]-[287] should be applied (submissions, paragraph 5). Mr Lewis notes that in Ell v Milne (No.8) [2014] NSWSC 175, McCallum J determined that "considerably fewer" persons than the total number to whom an email was published would have read the email the subject of these proceedings.
3. I do not agree that the case is inferential. Each email had a dramatic headline in bold type. The defendant referred several times to his emails at the AGM ("If you go through my emails" at CB 657) and summarised their contents (CB 657); the plaintiff, in seeking to answer them during the meeting, referred them as being sent to "poison the well" (CB 706). I am satisfied, from the plaintiff's description of her conversation with Mrs Byrnes, that she and others had read and discussed them. There might be an inferential case that others would have read this correspondence such as the incoming strata manager or potential purchasers inspecting the strata records, but Mr Rasmussen did not put this, seeking only to rely on the grapevine effect.
4. Nevertheless, the defendant submits that the damages will be at the very low end of the scale referring to similar factual circumstances: Murray v Raynor at [96] ($25,000, as an alternative finding), Gough v Squillacioti at [71] ($25,000 excluding aggravation, as an alternative finding); Matthews v Pigram [2020] NSWDC 526 at [59] ($20,000 as an ex parte assessment); and Balzola v Passas [2020] NSWSC 896 at [253] ($10,000 for one slander).
5. Mr Rasmussen refers to the grapevine effect, which Campbell J noted in Balzola v Passas at [252] "can be difficult to measure", adding that this difficulty "itself requires restraint in assessment". There is no direct evidence of any ongoing reputational damage beyond statements made by Mrs Byrnes and the plaintiff's perception of the reactions of other owners, such as on the day of the auction of her mother's unit, although I accept she continues to fear repetition of the sting of the insult. Her reputation is to be vindicated but, as Campbell J went on to note, the dominant compensatory principle is established by s 34 of the Act, namely that the amount of damages is to be calculated for the purpose of ensuring an appropriate and rational relationship between the harm suffered and the damages awarded.

Aggravated damages

1. The plaintiff claims aggravated damages on the following bases: 1. The defendant's failure to give the plaintiff any reasonable opportunity to respond to the allegations before they were published. 2. The plaintiff's hurt to feelings was increased by the knowledge that the defendant knew that the imputations were false. 3. The defendant's failure to apologise.
2. It is sometimes appropriate to consider each of the publications individually, in the event that one or more of the matters may warrant aggravated damages but not another. However, the same factors apply to all three, so I will consider them in a group.
3. In Pavlovic v Karzon, no challenge on appeal was brought to the award of aggravated damages. A key factor was failure to apologise, in that the defendant failed to retract the defamatory imputations or apologise for them for nearly four years, whereas an apology had been accepted by the plaintiff from another publisher. While all cases must turn on their own facts, the way in which the trial judge approached the task of assessing aggravated damages (which was not disturbed on appeal) is helpful. If anything, the factors in this case are stronger, in that the defendant did not send the emails because he was angry, but because he wanted everyone to believe that the mistakes in the administration of the owners corporation were mistakes made by a person other than himself. I am also satisfied that he wanted to punish the plaintiff out of petty spite because she had picked up mistakes that he had made, including the fact that Lot 7's builder was unlicensed.
4. By denying the plaintiff the chance to answer the allegations, he caused the plaintiff great hurt, as she was unable to defend herself either in answering the correspondence or at the subsequent AGM. Her knowledge of the falsity of the allegations made them particularly hurtful, as her very distressed behaviour at the AGM and in her evidence shows.
5. The plaintiff made two requests for an apology from the defendant before commencing these proceedings. It was important for her to clear her name. I consider the failure to apologise was wrongful because the defendant knew what he had said was false, and thus is a basis for aggravated damages.
6. The plaintiff is entitled to an award of aggravated damages for all three publications on all three bases put forward by the plaintiff. Conformably with Bauer Media Pty Ltd v Wilson (No 2), this lifts the cap on general damages.

The impact of MFI 5 on damages

1. The defendant relies, in mitigation of damages, on the evidence led in support of the defences. Mr Lewis relies upon "the truth of any imputations which were found to be substantially true and also the evidence before the court directed to a plea of justification", citing Fairfax Media Publications Pty v Kermode (2011) 81 NSWLR 157 at [86]; Pamplin v Express Newspapers [1988] 1 WLR 116 at 120; Prager v Times Newspapers Ltd [1988] 1 WLR 77 at 93 (submissions, paragraph 42).
2. A defence of justification was pleaded only to one imputation, imputation 4(d), and that defence failed. However, Mr Lewis also submits that a defendant is also entitled to rely in mitigation on evidence that was before the Court on an unsuccessful, or partially successful, plea of justification: Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96 at [26]-[32].
3. None of the evidence in relation to the unsuccessful plea of justification revealed any factor capable of mitigating the damages. MFI 5 is inadmissible and I prefer the answers in cross-examination given by the plaintiff to any other evidence or document asserted to undermine this.
4. Mr Lewis also submits that the fact that the plaintiff took the owners corporation to the Civil and Administrative Tribunal after the 11 May 2020 AGM "would have had more of deleterious [sic] effect on her reputation than the matters complained of", adding that it is "instructive to note that despite being personally acquainted by many of the owners and agents in the Building, not one gave evidence on her behalf." (submissions, paragraph 82).
5. The claim that the plaintiff's reputation suffered damage in the eyes of the recipients of the matter complained of by reason of this second cause is similarly without foundation. As is made clear by the minutes of meeting of the owners corporation, it was in fact Mrs Nesci and Mr Roberts who initially went to Fair Trading to complain about Mrs Nesci's husband not being permitted to carry out building work because he was unlicensed. The plaintiff agreed to attend the scheduled mediation but Mrs Nesci and Mr Roberts then cancelled the mediation. The fact that the plaintiff, later brought further proceedings so that she could clear her name is directly related to the matters complained of.
6. Nor do I accept that the plaintiff had a reputation as a "troublemaker" independently of the matters complained of, or the submission by Mr Lewis that this was because of the incident with the police on 27 November 2019 (submissions, paragraph 82); if there was one topic which would not have been raised at an auction where a good sale would reflect on other units, it would be the circumstances in which renovations by an unlicensed builder had been permitted by the owners corporation, an event the owners and defendants were careful to keep off the agenda and out of discussion at the 11 May 2020 meeting. Any reputation the plaintiff had as a troublemaker occurred after, and as a direct result of, the matters complained of, and the litigation that followed. I am satisfied that, prior to that, as she said in her letter of 5 March 2020 to the defendant, there were no disputes or other issues between her and the other owners, save for the Lot 7 unlicensed builder issue, and I note those items of correspondence from the other owners which are in the Court Book were, previously, uniformly polite and friendly.

Conclusions concerning damages

1. Comparable awards of damages are often described as being of little assistance, and should be treated with caution because each case turns on its own facts.
2. Applying the relevant principles for the assessment of damages, even allowing for the removal of the cap by reason of my finding on aggravated damages, the amount to be awarded should be modest, in order to take into account the factors set out above. In the circumstances the sum I propose to award, inclusive of aggravated damages, is $35,000.

Injunctive relief

1. Neither the plaintiff nor the defendant have any further connection with the building. The plaintiff's mother's unit was sold in December 2021. The plaintiff gave no evidence of any continuing activity on the strata committee after the 11 May 2020 AGM. The defendant ceased having any connection with the building at about the same time. There is no evidence the defendant has made any statements about the plaintiff to any third party since the AGM.
2. In Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351, McCallum J stated (at [13] to [15]): "So far as I am aware, the proposition that a permanent injunction should ordinarily accompany an award of damages following the unsuccessful defence of a common law claim is unknown in any other field. The court would not, without more, make an order restraining the unsuccessful defendant in a professional negligence or motor vehicle accident claim from acting negligently in the future. I accept that the analogy is imperfect but it is appropriate to test what appears to be a premise of the plaintiff's argument. I do not think it can be said, without qualification, that the restraint of speech -even indefensible speech - necessarily or ordinarily serves the public interest. Nor can it be said, without qualification, that the public interest is "not offended" by the restraint of indefensible defamation. The public interest is offended by any court-imposed restraint that is not reasonably necessary in the circumstances. It is tempting to think that is particularly so in the case of injunctions to restrain publication, since such orders necessarily impair or take away a person's freedom of speech. Upon reflection, however, it is difficult to articulate any principled basis for placing defamation in a special category in this context; any restraint of ordinary freedom imposed by order of the court warrants the same caution. In my view, as a matter of principle, the critical factor in determining whether to grant a final prohibitory injunction in aid of a claim for defamation should be an assessment of the existence and degree of any threat or risk of a repeat of the publication of the defamatory matter successfully sued on in the proceedings. Such an order should only be made where the court is satisfied that the order is reasonably necessary to address that threat or risk."
3. Although her Honour's remarks were addressed to a media publisher who had removed the matters complained of as soon as the jury findings were handed down, the same principles should apply here.

Orders: 1. Judgment for the plaintiff for the first, second and third matters complained of in the sum of $35,000. 2. Costs reserved. 3. Liberty to apply in relation to costs and interest. 4. Exhibits retained until further order.

Amendments 25 August 2023 - typographical errors in paragraphs [49] and [101] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 August 2023