(d) Accordingly, as the opponent bore the onus of establishing on the balance of probabilities that it was the claimant who obtained all the signatures upon the January letter, that onus was not discharged on the basis only of Mrs Parmer's evidence to which reference has been made.
20 Two issues arise out of these submissions. The first is whether there was evidence to support a finding that the claimant was the author of the letter. Although there was no express finding by the primary judge that he was, it seems to be implicit in her finding (at [140]) that the claimant "asked a total of 10 other people (including his own wife) to sign the matter complained of" and from her conclusion (at [44] and [64]), after considering the history of the claimant's correspondence and complaints relating to the opponent, that he "published the matter complained of". I shall return to this issue below but shall assume for the purposes of the second issue that the evidence supports a finding that the claimant was the author of the letter, being a finding which the opponent requests this Court to make in his Notice of Contention to which I later refer.
21 The second issue is whether upon the basis of Mrs Parmer's evidence, and upon the assumption that it is established that the claimant was the author of the January letter, it was open to her Honour to infer that first, it was the claimant who sought out each of the 10 signatures that ultimately appeared on the document and, second, that the persons who signed the document read it before they placed their signatures upon it.
22 In my opinion once it is accepted that the claimant was the author of the letter, the inference is available that it was he who sought support for its contents from other unit owners within the complex who would have an interest in righting the perceived wrong with respect to the activities of the Executive Committee of which he complained in the letter. Although the claimant submitted that the letter may have been given to other persons for the purpose of seeking out the signatures of other residents, this seems to me a highly unlikely scenario given the obvious interest of the claimant as author of the letter to obtain as much support for its contents as he could before it was presented to the Executive Committee.
23 In my opinion therefore, the inference is clearly open as a matter of probability that it was the claimant who sought out the signatures of those who ultimately signed it. Further, the inference is also open on the probabilities that before each of the signatories placed their signature upon the letter, as did Mrs Parmer when she was shown the letter by the claimant with a request that she sign it, each read it before signing.
24 Accordingly, on the basis that the claimant was the author of the letter, in my opinion it was open to her Honour to infer that it was he who sought out and obtained the 10 signatures to the document after each of the signatories had been shown the letter and had read it.
25 As I have indicated, the claimant submitted that there was no evidence to suggest that he was the instigator or author of the January letter or that he had "persuaded" the other signatories to adopt its contents by signing their name to it. During the course of oral argument counsel's attention was drawn to [28]-[43] of her Honour's judgment where she set out the background of the matter complained of and which included a history of the claimant's complaints about the members of the Executive Committee in general and the activities of the opponent in particular. It was pointed out that it was possible that the letters which the claimant had written to members of the Executive Committee and a newsletter he had distributed following a meeting as well as a complaint which he had lodged with the Consumer, Trader & Tenancy Tribunal (CTTT), might well enable an inference to be drawn that he was in fact the author of the January letter.
26 The difficulty with which the Court was faced was that the original exhibits, the contents of which her Honour had recorded in her judgment, were not available and copies had not been provided in the White Book. It was suggested that it may be possible to draw an inference not only from the nature of the complaints made by the claimant in the letters and the documents referred to but also from the form of the documents themselves, that the January letter was the work of the claimant. However, it was indicated to the opponent's counsel that if he wished to obtain an express finding that the claimant was the author of that letter, it would be necessary for him to file a notice of contention to that effect - a course which the claimant did not oppose.
27 Accordingly, at the conclusion of oral argument, the summons for leave to appeal and the appeal were adjourned part-heard to enable the relevant exhibits to be obtained and provided to the Court and for the parties to make submissions with respect thereto on the issue of authorship of the January letter. The exhibits were duly obtained and written submissions made with respect thereto. To those I now turn.
28 Exhibits C, D and E comprise letters written by the claimant in January April and May 2001 containing numerous complaints directed against the Executive Committee in general and the opponent, as Chairperson of the Executive Committee, in particular. According to the primary judge (at [34]), Exhibit D evidenced the claimant's increasing anger with respect to the conduct of the opponent in that capacity. Exhibit D, being a letter to Ryde City Council of 8 May 2001, was highly critical of the opponent and a Ms Read who was the secretary of the Executive Committee.
29 Exhibits G and H are decisions of the CTTT dismissing applications made by the claimant on 19 February 2002 and 4 February 2003 respectively. In the first of these applications the claimant sought the appointment of a strata manager to exercise the functions of the Owners Corporation and in the second, an order for the proper election of the Executive Committee as well as the appointment of a suitable strata manager. The first application records that the claimant was making numerous general allegations of mismanagement, intimidation and incompetence against the Executive Committee of which, as I have said, the opponent was the Chairperson.
30 Exhibit J contains the claimant's Notice of Grounds of Defence, Notice of Objection to Jurisdiction and a letter to the Registrar of the District Court bearing the claimant's signature and dated 25 August 2003. In the first of these documents, the claimant relevantly pleaded as follows:
"2. There has been no 'publication' to the public or to 3rd parties within a reasonable interpretation of the Defamation Act .
…
12. The conduct of the [claimant] (and others) was reasonable in the circumstances.
13. The matter complained of by [claimant] (and others) the subject of the letter dated 28 January 2003 was in the interests of fellow owners/residents in the complex and was in good faith.."
31 The second of these documents contains the assertion that there
"has been no 'publication' by the [claimant]. Due process of enquiry to an Owners Corporation and the following of normal legal procedure is not in my view 'publication' ".
32 The third document in Exhibit J, the letter to the Registrar of the District Court dated 25 August 2003, asserted that the Court had no jurisdiction to deal with the opponent's statement of claim as the January letter, being addressed "without prejudice" to the Owners Corporation, came within "the scope of the Strata Management Act and the CTTT Tribunal" and did
"not give rise, under any circumstances, in my view, within an owners corporation or within the premises of the same property to any action by any party in the complex (owners or resident) against any other party in the complex".
33 The letter also contained the assertion by the claimant that the defamation laws were not intended to relate to persons living at the same address or in the same complex discussing issues of legality and matters relating to their mutual interest as a consequence whereof there had been no publication or republication by him.
34 Exhibit A is a letter from the claimant to the primary judge dated 2 December 2004 in which he asserts that a complaint, which he called "a communication", within a complex such as that within which he resided, between owners and residents, an owners corporation and a strata manager, whether the complaint is verbal or in writing, was covered by absolute privilege. He further asserted that a communication within such a complex being complaints under the Strata Schemes Management Act 1996 was not a communication to a third party and therefore could not support a valid action for defamation. Accordingly, the claimant considered that there was no valid matter requiring an answer from him and that the proceedings should therefore be dismissed. He therefore advised her Honour that he would not be participating further in the proceedings.
35 Of some significance is Exhibit K (referred to by her Honour [at 47] as Exhibit A) which included a copy of the application by the claimant to the CTTT dated 4 February 2003. Paragraph 12 of the application form required the claimant to state the reasons for requesting the orders sought in the application (which was for a proper election of the Executive Committee and for the appointment of a suitable strata manager). The claimant responded to this paragraph by alleging that the current Owners Corporation and Strata Manager were not acting in the best interests of all owners in the complex and were generally running it down while levies were being spent on personal vendetta issues. He further asserted that the current Executive Committee election was not held in good faith. Of particular relevance was that the claimant referred to a copy of the January letter to which he attached to the application.
36 As the primary judge pointed out (at [47]), there was a substantial overlap between the content of par 12 of the 4 February 2003 application, the matter complained of as contained in the January letter and the matters raised in both the first and second applications to the CTTT.
37 The relevance of the foregoing as far as the primary judge was concerned was that it established malice on the part of the claimant. In that context she said:
"101. Essentially what these publications show is that the [claimant] continues to make the same allegations over and over. No amount of proof to the contrary, whether by reason of two CTTT findings or a meeting with members of the committee who are prepared to look into the matter in an objective fashion will convince him that what he is saying has no basis.
102. While I am satisfied that a substantial part of the dominant improper purpose was to attack the [opponent] by reason of prior hostility and ill-will I think there is a secondary motive which becomes quite clear when one reads the whole of the chain of correspondence. What is quite clear is that the target of the [claimant] is not merely the [opponent] but everybody who is a member of the Body Corporation strata plan executive committee. He wants to remove all of them, not simply the [opponent]."
38 Furthermore, when dealing with the defence of common law qualified privilege, her Honour described the language of the matter complained of as "extreme". She continued (at [90]):
"…It is a smear of the [opponent] from beginning to end. Essentially what is asserted is that as a result of the illegal conduct of the [opponent] and others the [claimant] has had to set up an interim committee. The members of this committee are not named. The [claimant] demands that the current committee should immediately cease holding any meetings, paying any bills (except those authorised by the [claimant], cease to retain the services of the [opponent] to carry out repair work and warns that 'failure to comply with the requests made in this letter will constitute offences against the SP' and would result in consideration being given to non-payment of levies until a properly elected committee is installed."