Webster v Coles Myer Limited; Thompson v Coles Myer Limited

CATCHWORDS: Tort - false imprisonment - plaintiffs apprehended by police following allegations by store managers in two stores in shopping mall - whether false imprisonment an intentional tort - whether physical restraint necessary - whether "but for" the defendant's servant's actions restraint would have occurred - whether the defendant was vicariously liable for its servant's acts - defamation - whether defendant's servant published the three matters complained of - whether defendant vicariously liable - whether plaintiffs identified - whether imputations conveyed and defamatory - whether publication made on an occasion protected by qualified privilege - malice - damages - whether there is overlap between the heads of damage for defamation and false imprisonment - aggravated compensatory damages - special damages - claim of exemplary damages for false imprisonment

Civil Liability Act 2002 (NSW) LEGISLATION CITED: Defamation Act 1974 (NSW), ss 7A, 9, 22, 46A, 48A Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 21 Police and Criminal Evidence Act 1984 (UK), s 24(6)

Abbott v TCN Channel Nine Pty Ltd (1987) Aust Torts Reports 80-138 Ainsworth v Burden [2005] NSWCA 174 Aitken v Bedwell (1827) Mood. & M 68; 173 ER 1084 Aktas v Westpac Banking Corporation Limited [2009] NSWCA 9 Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544 Allen v Tobias (1957-58) 98 CLR 367 Archer v Channel Seven Perth Pty Ltd [2002] WASC 160 Austin v Dowling (1870) LR 5 CP 534 Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 65 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 Bauer v NSW (District Court of New South Wales, Robison DCJ, 24 May 2005, unreported) Bennette v Cohen [2009] NSWCA 60 Bogusz v Thomson (1989) 95 FLR 167 Bonette v Woolworths Ltd (1937) 37 SR NSW 142 Boychuk Construction Corp. v O'Lain (1997) 161 Sask R 206 (QB) Bridges v Pelly [2001] NSWCA 31 Briginshaw v Briginshaw (1938) 60 CLR 336 Brown v Hirley (1838) 5 UCQB (OS) 734 (CA) Bugge v Brown (1919) 26 CLR 10 Calwell v Ipec Australia Ltd (1975) 135 CLR 321 Clark v State of New South Wales [2006] NSWSC 673 David Syme & Co v Lloyd [1984] 3 NSWLR 346 Davidson v Chief Constable of North Wales [1994] 2 All ER 59 Dickenson v Waters Ltd (1931) 31 SR (NSW) 593 Donald v McKeown [2004] NSWCA 285 Evatt v Nationwide News Pty Ltd t/as Cumberland Newspapers [1999] NSWCA 99 Federal Capital Press of Australia Pty Ltd v Edwards (1992) 108 FLR 118 Feria v Lange [2009] PGNC 4 Foord v John Fairfax & Sons Ltd (Supreme Court of NSW, 27 February 1987, unreported) Fraser v Holmes [2009] NSWCA 36 Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 547 Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 Gray v Motor Accident Commission [1998] HCA 70 Grinham v Willey (1859) 4H&N 496 Gross v Weston (2007) 69 NSWLR 279 Grundeman v Georgeson (Supreme Court of Queensland, Fryberg J, 19 May 1995, unreported) Guise v Kouvelis (1947) 74 CLR 102 Hall v Queensland Newspapers Pty Ltd [2002] 1 Qd R 376 Hayward v Thompson [1982] 1 QB 47 Healy v Askin [1974] 1 NSWLR 436 Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 Hutchins v Maughan [1947] VLR 131 Jones v E Hulton & Co [1909] 2 KB 444 Katsilis v Broken Hill Proprietary Co Ltd (1977) 18 ALR 181 Khodaparast v Shad [2000] 1 All ER 545 King v McKenzie (1991) Aust Torts Reports 81-118 CASES CITED: Kolokol v Amburuapi [2009] PGNC 1 Komba v Peke [1994] PNGLR 572 Lamb v Cotogno (1987) 164 CLR 1 Lee v Wilson (1934) 51 CLR 276 Lindholdt v Hyer [2008] NSWCA 264 Malec v JC Hutton Pty Ltd [1990] HCA 20 ; (1990) 169 CLR 638 Martin v Watson [1996] AC 74 Maxwell-Smith v Warren & Anor [2007] NSWCA 270 McDonald v Coles-Myer Limited (trading as K-mart Chatswood) (1995) Aust Torts Rep, 62,692 McHale v Watson (1964) 111 CLR 384 McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42 Morgan v Odhams Ltd [1971] 1 WLR 1239 Myers Stores Ltd v Soo [1991] 2 VR 597 Nixon v Slater & Gordon (2000) 175 ALR 15 Noye v Robbins; Noye v Crimmins [2007] WASC 98 Orpwood v Barkes (1827) 4 Bing 261 at 263; 130 ER 767 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 Photi v Target [2007] NSWDC 265 Pike v Waldrum and Peninsular & Oriental Steam Navigation Co [1952] 1 Lloyd's Rep 431 Platt v Nutt (1988) 12 NSWLR 2 Rabay v Bristow [2005] NSWCA 199 Roberts v Bass (2002) 212 CLR 1 Roberts v Buster's Auto owing Service Ltd (1976) 70 DLR (3d) 716 Robb v Morrison (1920) 20 SR (NSW) 163 Rogers v Nationwide News Pty Ltd (2003-4) 216 CLR 327 Ruddock v Taylor (2003) 58 NSWLR 269 Ryan v Ann St Holdings Pty Ltd [2006] QCA 217 Sadler & State of Victoria v Madigan [1998] VSCA 53 Scott v Shepherd (1773) 2 Wm BI 892; 96 ER 525 Sewell v The National Telephone Co Ltd [1907] 1 KB 557 Skalkos v Assaf [2002] NSWCA 14 Stanley v Powell [1891] 1 QB 86 State of New South Wales v Delly [2007] NSWCA 303 State of New South Wales v Ibbett (2006) 229 CLR 638 State of New South Wales v Ibbett (2005) 65 NSWLR 168 State of New South Wales v Lepore (2003) 212 CLR 511 State of New South Wales v Riley [2003] NSWCA 208 Steele v Mirror Newspapers Ltd [1972] 2 NSWLR 348 Symes v Mahon [1922] SASR 447 Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 Turner v MGM Pictures Ltd [1950] 1 All ER 449 Vignoli v Sydney Harbour Casino [1999] NSWSC 1113 Warner v Riddiford (1858) 4 CBNS 180; 140 ER 1052 Watson v Marshall & Anor (1971) 124 CLR 621 Webb v Bloch (1928) 41 CLR 331 Williams v Milotin (1957) 97 CLR 465 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448 Zorom Enterprises Pty Ltd (in liq) v Zabow (2007) 71 NSWLR 354

Duncan & Neill on Defamation (2nd ed.) TEXTS CITED: Justice David Ipp, "Problems with Fact-finding" (2 September 2006) Lawlink, Supreme Court of New South Wales (http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_ipp020906) The Law of Defamation in Canada (2nd ed.)

Plaintiff in 1842 of 2006: Karl Webster PARTIES: Plaintiff in 2538 of 2006: Stewart James Thompson Defendant: Coles Myer Limited

COUNSEL: Plaintiffs: Mr R Weaver / Mr S Ahmed Defendant: Mr G Parker

SOLICITORS: Plaintiffs: Konstan Lawyers Defendant: McCulloch and Buggy

[1] This action for damages for defamation and wrongful imprisonment has an unfortunate procedural history. The problems are: (a) Pleading problems : The plaintiffs filed separate Statements of Claim in May and June 2006 seeking damages for false imprisonment and negligence. The pleadings set out that on 25 October 2004 each of the plaintiffs was stopped, searched and interrogated by police officers following information alleged to be provided by the defendant's employee. The claim in negligence was misconceived but not abandoned until closing submissions, and the claim for false imprisonment was misconceived as a claim which should be brought under the Civil Liability Act 2002 (NSW). The plaintiffs did not bring claims for defamation until after expiry of the limitation period; on 1 August 2007 Armitage DCJ granted leave to commence proceedings out of time and made costs orders personally against the solicitor for the plaintiffs. The defence filed was a mere traverse, which did not properly particularise defamation defences.

(b) Case management problems : The matter was not conducted in the Defamation List and came before me only on 21 May 2008 to vacate the hearing date of 26 May 2008, when the parties realised the statutory requirement for a s 7A jury trial and the plaintiffs wanted to add a further publication. It was also necessary for a defence pleading qualified privilege and a Reply by the plaintiffs to be filed. When the parties came before me they decided to consent to waive the requirement for a jury trial; the plaintiffs abandoned the further publication (which was time-barred). At the request of the parties, who were anxious for a hearing date, I gave the matter a 3-day hearing fixture as a non-jury trial. I made an order for costs against the plaintiffs for the vacated hearing date.

(c) Problems with discovery: The plaintiffs never sought discovery of the CCTV tape or other relevant material from the defendant. By the time they issued a subpoena some months before the trial, the defendant said it had no documents to produce.

(d) Problems with interrogatories as to the defence of qualified privilege: In addition, the plaintiffs sought leave from Armitage DCJ to administer interrogatories seeking admissions necessary for the qualified privilege defence. Armitage DCJ refused to permit the plaintiffs to administer interrogatories as to the state of mind of the store manager who was alleged to have published the information to the police. The plaintiffs sought leave on the basis that any belief held by the store manager was relevant to qualified privilege and malice. However Armitage DCJ was persuaded by counsel for the defendant that such interrogatories were a fishing expedition.

(e) Other problems with interrogatories: In addition, the defendant's answers to interrogatories (Exhibit E) show the defendant refused to answer interrogatories concerning the accuracy of the statements in the COPS report on the basis that it was not a document created by the defendant. The plaintiffs never complained about these answers. Effectively, both the plaintiffs and defendant were in the wrong here. The plaintiffs should have administered the usual interrogatories seeking admissions as to publication and as to the information in the defendant's possession when the imputations were published. The defendant was not entitled to object to being interrogated about the accuracy of statements made to police officers and recorded in police records. As neither party sought rulings on this issue before the trial, these interrogatories do not provide the assistance they would ordinarily give.

[2] As a result of this procedural history, significant problems arose during the trial. These problems include: (a) Contemporaneous documents (the defendant's reports of the incident, the CCTV footage and the police statement prepared for the store manager) could not be located;

(b) Due to the lapse of time between the incident, the commencing of proceedings and the hearing, the store manager said she could not really remember the events;

(c) There were problems with the way the parties approached the issue of publication and identification;

(d) There were problems with the way the parties approached the defences of qualified privilege at common law and pursuant to s 22 Defamation Act 1974 (NSW) ("the Act"). For example, neither counsel referred me to relevant authority such as Aktas v Westpac Banking Corporation Limited [2009] NSWCA 9 and it was necessary for me to relist the matter to ask counsel for the defendant to address me on this issue;

(e) The plaintiff abandoned the claim for negligence in closing addresses, but then expressed concerns that the false imprisonment claim should have been brought under the Civil Liability Act ;

(f) The parties' submissions on damages failed to deal with a number of issues, such as overlap between heads of damages for the causes of action and whether the claim for special damages related to both the defamation and false imprisonment claim;

(g) The case took longer than the time estimated, and the parties' decision not to provide lists of authorities to each other (or to the court) at the commencement of the trial meant that issues of law took them both by surprise. A further week (extended to a fortnight due to failure to comply) was set for written submissions.

[3] When the matter came before me on 6 February, I identified issues not covered in the further submissions as including: (a) Issues of publication. The parties did not deal with issues about the relationship between the first publication and Miss Hart's subsequent identification of the plaintiffs in the second publication. The defendant dealt with all three publications as if they were one;

(b) Issues of identification, including problems arising from the conflicting descriptions in the first publications and identification of Mr Webster;

(c) Whether the Civil Liability Act applied to the false imprisonment claim in light of Court of Appeal authority to the contrary;

(e) Statutory qualified privilege (which the defendant conflated with the common law defence), particulars of malice as set out in the Reply and the impact of Aktas ;

[4] I have since received limited submissions on Aktas, vicarious liability, exemplary damages and the Civil Liability Act. I am grateful to Mr Weaver, counsel for the plaintiff, for his assistance in this regard. The defendant in the most recent submissions states the store manager, Miss Hart, believed in the truth of the imputations. The defendant's previous position had been that this was irrelevant, and that Miss Hart could not remember. Miss Hart's answers in cross-examination were ambiguous but tended to suggest she did not believe in the truth. These changes have complicated the hearing.

[5] It has consequently been necessary for me to set out the evidence in detail and to look at each issue the parties raised, even where the parties' submissions are either conflicting or non-existent. I shall start by setting out each of the matters complained of and the imputations alleged to arise from them.

[6] The statement of claim sets out that on or about 5:30pm on 25 October 2004 either Miss Hart and/or another employee of the defendant acting as servant or agent of the defendant spoke the following words to Constable Polley, an officer of the New South Wales Police Force: "There are two males about 18-20 years old, Lebanese in appearance who have attempted to buy gift vouchers in K-mart and Target with possible stolen credit cards. The men are currently in Coles. Please send police to investigate."

[7] The imputations alleged to arise in relation to each of the plaintiffs from this publication are the following: (a) The plaintiff was a dishonest person;

(b) The plaintiff had attempted to obtain gift vouchers from K-mart by means of deception. The second matter complained of

[8] This is a publication made shortly afterwards. Following the arrival of Constables Turnbull and Cozis at Ashfield Mall, Miss Hart, acting as servant or agent of the defendant, spoke words to the following effect to Constables Turnbull and Cozis: "There are two male people who tried to obtain gift vouchers using fraudulent credit cards. They are in the centre."

[9] The imputations alleged to arise in relation to each of the plaintiffs is as follows: (a) The plaintiff was a dishonest person;

(b) The plaintiff had attempted to obtain gift vouchers from K-mart by means of deception. The third matter complained of

[10] Following publication of the second matter complained of, Miss Hart went into the mall where she identified the plaintiffs and at the time or shortly afterwards said words to the following effect: "These are the blokes who attempted to obtain $500.00 worth of gift vouchers from K-mart and earlier attempted to obtain $1,500.00 worth of gift vouchers from Target using fraudulent credit cards. They are definitely the men who attempted the fraud at K-mart."

[11] Each of the plaintiffs pleads that the third publication conveys the following imputations: (a) The plaintiff fraudulently attempted to obtain $500 worth of gift vouchers from K-mart.

(b) The plaintiff fraudulently attempted to obtain $1,500 worth of gift vouchers from Target.

(c) The plaintiff was dishonestly in possession of a fraudulent credit card, which he used with the intention of dishonestly attempting to obtain a financial advantage.

[12] The defamation actions fall within the ambit of the Defamation Act 1974. As to publication, it is necessary for me to have regard to the evidence of each of the plaintiffs, Constable Turnbull, Miss Hart and other store employees and also the summary of information contained in the COPS report to determine what was said on the day in question. It will then be necessary for me to determine in accordance with the provisions of s 7A Defamation Act whether what was said conveyed the imputations pleaded and whether those imputations are defamatory.

[13] The principle issue in contention is exactly what was said on the day. Mr Parker appears to concede that the imputations pleaded by the plaintiffs would arise if I find the matter complained of to be as asserted by the plaintiffs and that the imputations were defamatory. However to err on the side of caution, I have made findings in this regard in any event.

[14] I shall first give careful consideration to the accounts of each of the persons present as to what occurred on the day in question. The delay since the events, the fact that so many documents were unavailable due to non-discovery and late subpoenae and the poor recollections of so many of the defendant's witnesses means there is no alternative other than to set out the relevant extracts from the transcript of their evidence.

[15] Mr Webster and Mr Thompson went to the K-mart shop on 25 October 2004 to return a Seinfeld DVD that Mr Thompson had purchased there. Mr Thompson had his receipt with him. It is important to note that both Mr Thompson and Mr Webster had previously worked in department stores, and were familiar with department store procedure. For the previous nine years, Mr Thompson was a middle-management store employee at Myer with about 60 persons in his department reporting to him. For the period 2001 to May 2003 Mr Webster had been a fragrance salesman for Trimex Pty Ltd and had sold fragrances as their representative in the Grace Bros Sydney store. As well as having this background of familiarity with store procedure, they were middle-aged men with a cultivated appearance and manner. They gave their evidence in this fashion, and the description of them given by the defendant's medical witnesses (set out in greater detail below) confirms my observations that their demeanour and presentation is that of sensible, responsible members of the community.

[16] The timing of these events is also very important. They arrived at Ashfield Mall at about 4.30 to 4.35 pm, and went straight to K-mart to return the Seinfeld DVDs (T-14). They then went to Danoz Direct and to the Food Court, which is where Mr Webster was stopped and searched by the police, who at 5.27pm processed the call they received concerning the plaintiffs and then came to the Food Court, which is where they were told the plaintiffs were.

[17] Mr Webster still had a very clear recollection of the events of the day in question. He described how he and Mr Thompson went into the K-mart shop to find the service counter. He did not participate in the discussion with the store employees, but was present the whole time that Mr Thompson was at the counter and was able to hear what was said by Mr Thompson and the K-mart staff (T-14).

[18] Mr Webster described how Mr Thompson said, "I want to return these DVDs" to the checkout lady on the service counter. She said "That's fine" but had to obtain authorisation from her manager because the sum involved was more than $100 (T-15). She did not leave the counter to do so (T-15 line 16). Another lady came "from the side out of nowhere really, out of the wings" (T-15). The whole of the conversation took a couple of minutes and consisted of conversation between Mr Thompson and the person who the plaintiffs later came to know as Miss Hart. Mr Thompson again said "I want to return these DVDs" and the conversation then went as follows: "A. I heard Stewart [Mr Thompson] say to this - can I mention the person's name?

Q. Yes sure. A. To Miss Hart, that he wanted to return -"I want to return these DVDs" and then Miss Hart said, "Well you know that they're not the complete collection. What's wrong with them? There's nothing wrong with them? It's only, you know it's only 1 and 2." And Stewart said, "No I thought it was the complete collection". Kelly Hart said, "No, no, no, no, you know that", it was the same line of wording, it's like you know that this is not the complete collection and it's only series 1 and 2. This went on for about five minutes.

WEAVER Q. Did she say at any stage anything in relation to Mr Thompson's eligibility to obtain a refund? A. No.

Q. But she refused him a refund, is that what you say? A. Refused.

Q. When you say this conversation took place over five minutes, did you join in the conversation? A. No, I was about ten feet behind because it wasn't my transaction. But as it got hotter I moved in. But I can still hear it."

[19] Mr Webster went on to describe what he meant by saying that the conversation got hotter as follows: "Okay. Kelly Hart said "You know this is not the complete collection, it's series 1 and 2, you know that." Kelly Hart said that several times. Kelly Hart said that loud enough for me to hear it and I'm behind Stewart. Kelly Hart would not listen to Stewart."

[20] Mr Webster said that Miss Hart "kept the same line of questioning up" and that Mr Thompson was "unable to communicate because of the level of questioning" (T-17). Eventually Miss Hart took the video, put it on the counter and said, "Give him a credit note" and after Mr Thompson obtained the credit note they went inside the store. However, before they left, Mr Webster was sufficiently upset to ask the young sales assistant for Miss Hart's name, according to paragraph 13 of Exhibit D. However, I heard nothing about this in the evidence. It is evidence that, if led, would have assisted the plaintiffs but I must disregard it.

[21] The plaintiffs both looked around inside the store but Mr Webster felt uneasy because he noticed security guards in the vicinity. He described these as follows: "Well, there was a tall man in a white shirt and pair of grey pants and a big belly and there was another gentleman that came next to me who I assumed was a sort of detective because he was very, very fit and he had - you know he was a - looked to me that he went to the gym a lot."

[22] He said that these gentlemen "hovered" within ten feet (T-18) for about a minute. Consequently they stayed at the store only about fifteen minutes after which they went to Danoz Direct, where they spent approximately five or six minutes making a purchase (T-19). According to paragraph 20 of Mr Webster's statement (Exhibit D) Mr Thompson "purchased the Ab King Pro with his credit card". If Mr Thompson had a valid credit card in his own name, and had used it to make a purchase of the Ab King Pro, this is evidence of significance. Mr Thompson in fact identified this credit card in his evidence as a Coles Myer Source Mastercard. They left the Ab King Pro at Danoz Direct because it was too heavy to carry with them on the understanding that they would return for it. Mr Thompson, who smokes, wanted to have a cigarette, so they went to the Food Court area. He then sat down in the Food Court area while Mr Thompson went into Franklins to make some purchases. It was at this stage that Constable Cozis approached Mr Webster and said: "She said "You've been trying to commit credit card fraud mate," and I'm like sorting through my mail, I went, "No," in my bag. And she said, "Yes you have, I've seen you in the video." And I went, "No, I think you've got the wrong person." And she - "We've seen you in Coles and Target," and I went "I didn't shop in Coles or Target," and then she said, "Where's your mate?" And I said "Stewart's inside Franklins," and then the other constable came from behind, well, approached. At that time Constable Turnbull went into Franklins to get Stewart and Cozis asked me the same questions again and I said, "Look, you've got the wrong person, I've seen the video," and then she - and I just kept on arguing because we didn't shop in Coles and Target, in fact I don't even know where it is. So that's what happened."

[23] The next thing that happened was: "Stewart came out with Turnbull. I said, "What's happening?" And he went "I don't know." Stewart said, "I don't know." And they - Turnbull started to search Stewart's stuff. He took his wallet and he made him take off his shoes and socks and did all that kind of - searched him, you know what I mean, very meticulously, through every piece - saying that we had tried to commit credit card fraud and we tried to obtain a $1500 transaction on the card and that we couldn't get it and snatched the card back. And so that was - this is very hard to explain because it was - we - I was terrified. But I remember, I remember what was happening."

[24] Although Mr Webster repeated that he did not have a credit card with St George, he was searched in front of people in the Food Court at that time where he was sitting (T-21.50). His bag was searched by an officer who first asked if there was anything in the bag that could be dangerous. It was approximately 5.30pm by this time and there were about twenty to thirty people in the Food Court crowding around watching. In particular, he saw Kelly Hart come from behind where he was sitting at a table with an A4 piece of paper and observed her say to Constable Cozis "Not him" pointing to Mr Webster but "it's him" pointing to Mr Thompson. She remained with the police for about three or four minutes, but he could not hear their conversation.

[25] Constable Cozis then said, "Let's take all of this downstairs" (T-23). Constable Cozis took Mr Webster down to the loading bay to be searched. Mr Thompson was not in earshot. There was a security guard dressed in white and grey whom he recognised as being the person whom he had seen earlier in K-mart. This was a man in a shirt with a big stomach and grey pants which looked like a security uniform (T-24). There was a body search after they were informed they were going to be searched and, in particular, he was asked to take his shoes and socks off, although the floor area was dirty and his shirt was lifted so that his chest was exposed (T-25). His bag was then searched for a second time and the police officer who searched, Constable Turnbull, proceeded to read the plaintiff's diary and asked if Mr Webster had a problem with drugs (T-25). At the end of the search, the police officers offered Mr Webster and Mr Thompson a lift home. They refused and Mr Webster said, "Who is the manager?" because he wanted to know who was making this claim. Constable Cozis said "You can't see her" and he replied "Right", got dressed and left (T-26).

[26] Mr Webster was cross-examined at length about his account of the events in question. He showed a good memory for events, and was not caught out in any errors or inconsistencies. In particular, he made concessions where appropriate (see for example T-40 to 42). He gave the same account of Miss Hart's statements in cross-examination as he did in examination-in-chief (T-45 to 46).

[27] In cross-examination significant emphasis was placed on his statements to his doctor, Dr Workman on 27 October 2004 that the events in question were a case of mistaken identity. He was convinced that the police had got the wrong people (T-52). However, this did not relieve his mind.

[28] Mr Thompson also had a good recollection of events. He gave evidence as follows: "I entered the Kmart store, both myself and Karl Webster went to the service desk. I actually had a Seinfeld DVD that I wanted to return. I approached the service desk and saw the service assistant there. I said to her, you know, I'd like to return this Seinfeld DVD. She said that she'd have to get a manager because it was of more value than $100. I said that's fine. She proceeded to bring her over - to get her manager and bring her manager over to me. The manager said to me "Why do you want to return them?" I said I wanted to return them because I thought I was actually purchasing the whole series, but I realised that it wasn't, it wasn't the complete series. She said that you know you should have realised that. And I said look I was under the assumption that it was the complete series from woe to go and that I wanted to return them.

This interaction went on for about four to five minutes. It just kept on going backwards and forwards and she was getting hostile. I was just saying you know I didn't realise that it wasn't the complete series. At that time it was when TV series were coming onto DVD, but she said it wasn't the company's policy to return DVDs. There was nothing wrong with the DVD. I had the sales receipt. I just thought it would have been a straightforward transaction, I thought it would have been fine. During that time, you know, it was going backwards and forwards; I began to feel real embarrassed because it was at the front of the store. Anyway in the end she reluctantly said to the sales assistant that was at the service desk, "Just return it," and she handed the DVD back to the service assistant and then walked off. I looked at the service assistant. She you know then proceeded to do the return for me. I provided ID for the transaction ... A learner's driver's licence. I provided that ID. In turn, the service assistant gave me a returns voucher for around about $115. I just couldn't believe that that conversation with that manager from Kmart had just escalated like that and I said to the service assistant - the assistant - would you mind telling me what your manager's name is, and she told me it was Kelly Hart, and I remembered that name.

The service assistant provided me the returns voucher. She explained to me the returns voucher had to be purchased in one transaction and - all in one go. I thought, okay. I proceeded with Karl Webster into the store. We went towards the back of the store to where the DVDs are and I had the intention of purchasing something for that full amount because that full amount had to be used in the one transaction. I was standing there and I could see an older security guard -

Q. What made you say he's a security guard? A. He had - he was wearing a yellow short sleeved shirt and it was embroidered with some type of security firm and he was standing off to my left and he was looking at a monitor that was monitoring that department and I immediately felt even more uncomfortable. He was looking at that monitor and then he was looking at me and it was - I thought it was quite obvious and I felt very uncomfortable and I thought, I'm not going to be able to make a decision about what I'd like to purchase so I said to Karl, Karl there's something up here, let's - I just want to get out of this store. Myself and Karl left the store where we then proceeded to Danoz Direct. I went into Danoz Direct - we both went into Danoz Direct. We actually tried out the equipment. I decided to purchase, I used my credit card.

Q. What sort of a credit card? A. At that time I had a Coles Myer Source Mastercard so I used that. I believe that the Ab King Pro was around $199. I purchased it, said to the sales assistant, you know, there's a few other things I have to do in the shopping centre and of course I didn't want to lug the box around, can I come back to collect it, and he said sure, that's fine. Myself and Karl left the Danoz Direct store. We then proceeded to the Food Court of Ashfield Mall. I wanted to go outside and have a cigarette. There's a back entrance to the Mall, I went out and had a cigarette and I said to Karl, there's a few things - I have to get a few groceries from Franklins. Karl said, okay, you wait for me in the Food Court, he took a seat. I went into Franklins, I had a shopping basket, there was [sic] a few things I had to get. It was getting late in the afternoon. I was walking through the aisles, I had a few things in the basket. When a male police officer approached me -

Q. What did he say to you? A. That he wanted me to go with him.

HER HONOUR Q. No, he didn't say that, he said "I want you to come with me" - A. Sorry.

Q. Yes, so try and put that - so he said I want you to come with me - whatever? A. "I want you to come with me."

Q. Did you say anything in response? A. I did.

Q. What did you say? A. I don't know why I said - I said "Can't I just get these few things?" and he said "No you have to come with me." So I was walking with me, I just - I had no idea - no idea what was going on. I hadn't had any - you know, I have never been in trouble with the police previously. I didn't know what was going on, when I was walking out of the supermarket I noticed there were people in the aisle, there were people at the front of the store going through the checkouts. I noticed they were looking at me.

Q. How did you feel when you noticed that? A. I felt like embarrassment, humiliated - so much so that I started to wet myself. I - the police officer - the male police officer took me out to the Food Court. I was - even more people around there - I was feeling - feeling humiliated and shocked and I could see different people - people watching me. I saw Karl. Karl asked me "What's going on, Stewart what's going on". I said "I don't know." The police officer took me to one of the tables in the Food Court. Again I noticed more and more people were looking. I - it was like turning into like a circus. I noticed the security guard from Kmart there because he had the yellow shirt on, another type of security guard, whether it was from Ashfield Mall or not -

Q. Look would you mind describing this person who you just referred to. What was this person wearing? A. They had a blue - a blue shirt - they were, I assume, a part of the Ashfield Mall Security. I just remember the Kmart distinctly had the - he had a yellow shirt on, short sleeved shirt, and I remember seeing him in the Food Court again.

Q. When you noticed this were you required to do anything further by either of the constables that were there? A. Yes, I was.

Q. What did you have to do? A. The police officers asked me - I had a shoulder bag on, they asked me is there anything that you should be concerned about in your bag. And I answered "no".

Q. Did they tell you the reason why they'd brought you out to the Food Court by this stage? A. They were - yes they said, they were asking me where my St George credit card was, and I said "I don't bank with St George". But they kept on saying "Where is the credit card. We've seen you at Coles and we've seen you at Target." And I said, "I haven't been into any of those stores today". I - again, I was just feeling humiliated that all these people around and it was drawing such attention. They were just at me about where this credit card was, and at that time I didn't bank with St George. The male police officer asked me to take my shoes off. I had like black slide shoes on, as if I was concealing something under the sole of my feet. I took them off. They went through my bag paying particular attention to my wallet and other credit cards that I had. They seemed to pay great detail on everything that I had in my bag, like even pieces of paper. I remember - I took my shoes off, there was nothing there, I put my shoes back on and they continued to go through the contents of my bag.

Q. Did they ask you anything further in relation to your credit card, or anything related to that matter? A. They asked me, they again asked me where the St George credit card was, I said I didn't bank with them. I said that I had a Police Credit Union credit card, but I didn't have it on me. And they were just adamant that I had a St George credit card, and they just kept on asking me, and they just - they were just hostile that - and they were adamant that I had a St George credit card. And I just kept on saying that I didn't have it. And you know they could look through my - there was nothing for me - I didn't hide anything - there was nothing - I hadn't hidden anything in my bag.

Q. During the course of this discussion with the police, did anyone else arrive and talk to the police? A. Yes. Kelly Hart who - by that stage I knew her name because they'd asked the service assistant in Kmart. She came into the Food Court waving a piece of paper saying "Here it is" and she looked and pointed at me. She handed the piece of paper to the police.

Q. Did you hear her say anything else to the police? A. No I didn't.

Q. How long did she stay there in the vicinity of where you were being questioned by the police? A. I'm not sure of the time.

Q. Would it have been a matter of a few minutes, or would it have been longer? A. I think it would have been longer.

Q. Did you see her talk to the police again after that at any time? A. I don't recall, I don't think so.

Q. But you say that she stayed there for a while longer? A. Yes she did, she certainly did.

Q. I think you were saying that the police conducted a search of your bag, is that correct? A. Yes they went through my bag.

Q. When they'd finished doing that and they asked you to remove your shoes? A. Yes.

Q. Did they ask you to go anywhere else? A. Yes they did. They'd been through my bag, I took my shoes off, and so forth, they said to come out to the back, to the loading zone. So myself and Carl accompanied them to the loading zone. On the way there I started to cry, I just didn't know what was going on. I said, I actually work for Coles Myer, you know, am I being arrested, I just, I didn't understand what was going on. All I know is that it was turning - with all the people it was turning into a circus.

Q. When you were taken to the loading dock were you immediately behind or were you some way behind Mr Webster and the policeman who was with him? A. They were both in the vicinity. I was - sorry, what was the question sorry.

Q. Did you go down with Mr Webster - A. Yes.

Q. In other words did four of your all proceed at once or was there a break between the two groups, you and one police officer and Mr Webster and the other? A. I believe we all went at roughly the same time.

Q. And what happened when you got down to the loading dock? A. Got down to the loading dock. I was asked to lift my shirt, was patted down."

[29] Mr Thompson went on to say: "The male police officer patted me right down, you know, inner thighs, up under my shirt. I remember what I was wearing. To lift my shirt to see if I was concealing anything maybe under armpits or what have you, and I remember the female police officer saying to me - she said to me, she said you know this is where the law sucks, you know, we have to act upon these things. At the end of it they gave me a police records card and by that time the whole - I was just a mess, I didn't know really what had happened. They patted us down and they said to us "Would you like a lift home" and I just said no thank you, I'd had enough of the police."

[30] Mr Thompson added that he heard Constable Cozis say to Mr Webster: "I heard something to the effect that they were acting upon information given to them and as I said yesterday she said that in her work this is where the law sucks. We have to act on these - on this information."

[31] He went on to say that Constable Cozis said that they would both be charged but that to be arrested they would have to be in the police station.

[32] Mr Thompson's unchallenged evidence is that he produced his driver's licence and also had a Coles Myer Source Mastercard (used to purchase the Ab King Pro) which, combined with his occupation as a Myer employee, lack of prior criminal record, obvious respectability, age and high level of distress, are strong indicia of innocence or error. Some of this must have been said to Miss Hart for her to have made the statements set out in the third matter complained of. This is relevant to the issue of malice.

[33] The plaintiffs called Constable Turnbull, now a senior constable of police and the officer who attended on the day. Despite making many arrests in the course of his police career, he had a degree of recollection of this incident which was impressive. In fact, his ability to recall the incident was much better than that of the store manager Miss Hart.

[34] Senior Constable Turnbull recalled receiving a radio call. He was now unable to recall to whom he spoke, but on checking with the COPS entry he noted that it referred to "Peter" and had his contact details, so he assumed he had spoken with him. He recalled being directed from the Coles at Ashfield Mall to the K-mart store where he spoke with Kelly Hart, whom he understood was the manager. He set out his best recollection of the first matter complained of as follows: "Q. When you first saw someone in Coles at Ashfield Mall did they indicate that they had made the telephone call? A. To be honest with you, like I said I can't really recall too much about the specifics of the incident. I can't recall if I asked him he made the call or not. I think we may have gone there and asked him what the situation was because we were responding to a call we had received and then I believe that he re-directed us because he had in fact received the call from K-mart saying that people had tried to do a fraud...

Q. So he had received a call from K-mart and he redirected you, is that right? A. To the best of my memory that's how it happened, a person at K-mart contacted - I'm probably getting ahead of myself he - but contacted Coles and Target to let them know that someone was in that area trying to pass off a fake credit card."

[35] Senior Constable Turnbull then attended K-mart and had "a conversation with Kelly Hart in relation to two males attempting to use a fake - well not a fake credit card but a credit card to obtain some gift vouchers from K-mart". He was unable to recall if he viewed video footage at that time (T-130). He said that: "From what I can recall I either obtained a description of the people involved or I asked her to accompany myself and Constable Cozis to point out these individuals because she - from memory. She said something about them being at the Food Court which is on the, I don't know Ashfield Mall has sort of got two levels. Where the K-mart is - if the K-mart is here you just -

Q. Well, we can't pick that up on the transcript. But it's on two levels? A. It's on two levels, but at K-mart you can see the escalators from the front of the K-mart store there's like a - now there's a Gloria Jeans there, I don't know if it was the same back then, but there's a Gloria Jeans and then pretty much escalators and from the front of the K-mart store you can see these escalators which lead directly to the Food Court at the top of the escalators.

Q. Now did you attend the Food Court with Constable Cozis and observe a person sitting there? A. Yes I recall, obviously before I recall the taller, Mr Webster, the taller gentleman sitting in the Food Court and to the best of my recollection he was wearing a trench coat which I think helped me identify him.

Q. Do you see Mr Webster in the court today? A. Yes.

Q. The taller of the two gentlemen behind me? A. That's correct.

Q. Did you approach him or did Constable Cozis approach, do you recall? A. To the best of my memory we both would have approached him.

Q. Do you recall what you said to him? A. Again specifically I can't tell you directly what I said to him but it would have been, we would have approached him, introduced ourselves to let him know why we were speaking with him and either then myself or Constable Cozis would have asked him at that point in time where his friend was.

Q. Did you question him then about the issue of the credit cards or did you wait until you went and found the other person? A. I don't know if I would've asked him one or two questions about it, but I'm pretty sure what I would've done is probably gone and got the other gentleman and brought him back and asked them together.

Q. I don't think it's in dispute, and if I could just lead this. But it's the case that Mr Webster indicated that Mr Thompson was in the Franklins nearby, is that correct? A. Yes to the best of my knowledge.

Q. Did he give a description or did Kelly Hart give a description? A. I'd don't - again as you can appreciate it happened four years ago and doing this everyday this sort of thing sorry. I can't recall, I probably got a description off Kelly and gone up the top, seen Mr Webster and then asked him where his friend was. He said Franklins, gone in, and I think he was saying before he was wearing a hat and that. There was identifiable features of how I came across him. I probably would have asked him who he was and if his friend was out there and then brought him back.

Q. When you had the two of the gentlemen with you and Constable Cozis at the Food Court - A. Yes.

Q. Did you then raise with him the issue of use of a credit card or fraudulent use of a credit card? A. I would've spoken about the use of the credit card.

Q. Do you recall mentioning the type of credit card it was? A. No. No I remember just before someone saying something about St George card -

Q. But you have no independent recollection? A. No I can't remember what sort of card it was.

Q. It's the case that you conducted a search of both Mr Webster and Mr Thompson's personal items? A. I'm pretty sure before we searched them we probably would have conducted checks on the radio, generally that's the common practice to know who we're dealing with. Before we search people we want to know if they're drug users and stuff like that so we don't get injured ourselves, so we generally do checks before we search people.

Q. Now when you came back with Mr Thompson to where Mr Webster was in the Food Court - A. Yes.

Q. Do you recall whether or not Kelly Hart was there at the same time? A. I can't recall if she was there or not.

Q. Do you recall her at any stage being with you and Constable Cozis at that time in the Food Court? A. At the Food Court, again to be perfectly honest I couldn't tell you if she was there or not."

[36] After refreshing his memory from the COPS report he was taken through and he recalled the information provided to Constable Polley and added that "All I can say is that I spoke to someone in Coles" (T-133 lines 46-47).

[37] In the first matter complained of the wrongdoers were identified as men of Lebanese appearance. He could not recall there ever being a discussion about men of Lebanese appearance, nor could he recall having a discussion with anyone about it (T-134). He received the information given to Constable Polley that the persons of interest were in the Food Court on level 4 of the shopping centre (T-134) but could not recall where he was when he received that message. He agreed that the person reporting it was Kelly Hart (T-134). He agreed that he had effectively determined that Kelly Hart was the person reporting. The person reporting was not the person reporting on the telephone when they first telephoned, but the person reporting the incident, which had been categorised by the police as a fraud (T-134). This is important because it establishes a repetition of the initial telephone call to police from the person known as "Peter".

[38] At T-135 counsel for the plaintiff said: "Q. Thank you for clearing that up. And as you've already given evidence this afternoon you've attended the Food Court and seen Mr Webster there and then you've gone and attended Franklins and asked Mr Thompson to accompany him back to the Food Court as well. And you can see that reference there, "A manager from K-mart has then stated to police that the same persons of interest had attempted to obtain $500 worth of gift vouchers from K-mart". When you say "a manager from K-mart" who are you referring to? A. Most likely that would have been Kelly, Kelly Hart.

Q. Do you recall talking to any other manager from K-mart that afternoon? A. No. No from my memory I spoke to Kelly Hart and the girl at the service desk.

Q. It says there and they have earlier attempted to obtain $1,500 worth of vouchers from Target? A. Yes.

Q. Did you make any inquiries of staff from Target as to whether an attempt had been made? A. I did speak with Target after I dealt with people from K-mart and asked them to give us some footage and other things like that but they seemed a little bit uninterested -

Q. What does that mean, uninterested? What they didn't know what you were talking about or - A. No they knew I - they didn't come forward with any information. They didn't provide me with any footage after I requested it. They didn't really want -

Q. Where you say they have earlier attempted to obtain $1,500 in gift vouchers from Target, were you informed of that by the manager from K-mart or by someone from Target? A. Again I couldn't tell you who I first heard it off because I remember speaking to someone from Target who said that it did happen. But I just can't recall who I heard it off first, if it was the case that when Kelly Hart rung Target, if they said oh yeah they were up here before, and then Kelly's told me about that, or if Kelly's told me that she's spoken to someone from Target and we should go up there and they've told us about $1,500 I'm not sure.

Q. Now you say that the manager has then pointed out person of interest number 2 which would be Mr Webster is that correct? A. That would be ..(not transcribable)..

Q. And of course again as manager - A. No no no, PI2 is Stewart Thompson.

Q. Well when did that happen do you recall? A. I think what I mean in that - and I haven't written it very well to be honest with you, what I mean by that is the manager's pointed out PI2 is the person that had the card at K-mart not that she pointed him out shopping in Franklins but rather she - or he was the one that had the card at K-mart.

Q. Do you recall how that actually physically happened, was she standing there with him right in front of you and gestured to him directly or - A. I can't recall to be honest with you, I don't remember. I can't remember - I remember speaking, like I said I remember a trench coat, like speaking with him I can't tell you what we spoke about. I can't - I don't remember anyone coming up ..(not transcribable).. I don't remember anyone coming up.

Q. You recall attending the loading dock with Constable Cozis and Mr Webster and Mr Thompson? A. Yes.

Q. And you conducted a search of their person down there? A. That's correct.

Q. When you went down to the loading dock did you go as effectively a group of four or do you recall being separated in some way? A. I can't remember, to be honest with you I didn't until I spoke with you earlier, I didn't even remember going to the loading dock and searching them further. I don't remember if we walked as a group or if Constable Cozis was in front of me or behind me or if we had one each, or I can't really recall.

Q. Do you recall at any stage either Mr Thompson or Mr Webster asking you, "Are we going to be arrested?"? A. I remember receiving a number of phone calls after the matter. One of them was worried about being arrested and I informed him that I was still making inquiries, that as soon as I knew what happened I would get back to him.

Q. Do you recall being asked at any time while they were in the Food Court or down at the loading dock? A. No, I can't recall that.

Q. Do you have any recollection of Constable Cozis saying at any stage, "This is where the law sucks?"? A. No, I cannot recall that.

Q. Do you recall how long Mr Webster and Mr Thompson were with you and Constable Cozis? A. Again I'd be speculating but I wouldn't think it would have been any longer than half an hour. There's actually a way you might be able to tell because generally we call back on after the job in the ..(not transcribable).. message but I don't know -

Q. If you are able to determine that would be of some assistance thank you. A. So all up we were there from 5.32 to 6.32. So speaking to Coles first and then going to K-mart and getting the details, that wouldn't have taken more then 10, 15 minute I would have thought. So on the outside 40 minutes or so approximately that I would have -

Q. Did you, after they've gone on their way did you go back and see Kelly Hart do you recall? A. Yeah I didn't factor that in either so that was even less again that time because we did - we went back because that's when I did get that VHS tape of Mr Webster and Mr Thompson being just served at the counter.

Q. Can you tell her Honour what you can recall the videotape show? A. All I can really recall from watching the video tape is just watching what you would generally see at someone going through a K-mart store the return desk, just having a conversation with her, the shop attendant. I can't really recall much else.

Q. Now did you obtain a statement at any time from Kelly Hart? A. I did obtain a statement from Kelly Hart in the following days.

Q. Of course that would ordinarily have found its way into the subpoenaed material, did you undertake a search to see if you could find that statement? A. I did. What generally happens is the case file is created and all the items are put in an envelope pretty similar to this. And it's put in like an archive room. I've done that and made numerous attempts to locate it and unfortunately it wasn't there when I went to find it."

[39] Senior Constable Turnbull noted that he must have taken a copy of the CCTV footage and looked at it (T-142). He was not sure if he did this before he stopped the plaintiffs, or afterwards. He knew he was looking for two persons and that the taller one was wearing a trench coat. Mr Webster's trench coat (T-121) helped Senior Constable Turnbull identify him, as did the fact that he was in the Food Court, which he was told by Miss Hart (T-131). He had obtained a description of Mr Thompson "off Kelly [Hart]" but he thought that it was Mr Webster who told him Mr Thompson was wearing a hat (T-131).

[40] Senior Constable Turnbull was quite sure he spoke to "the girl" at the service desk (T-135). She and Kelly Hart were the only persons he spoke to. This confirms he did not speak to Miss McDonald or Miss Patel. His description of what this "young girl" (T-139) said is very illuminating: "Q. When you say the facts you had in front of you what you were talking about was merely what you'd been told by Kelly Hart wasn't it? A. And the lady at the service desk.

Q. What did the lady at the service desk say to you? A. Well again at the time I'm just saying I had two people saying the same sort of thing that from what I can remember summarised there was - was they returned a Seinfeld DVD set where they had to sign either a refund or an exchange voucher. Whilst they were still there they've attempted to use a credit card to purchase an amount of gift vouchers. And the girl behind the desk from what I can remember has looked at the signature at the back of the card and compared it to the signature on the refund voucher and they did not compare, they weren't accurate which is when she's contacted her superior, her manager or something like that and it's gone from there. From what I remember.

Q. Do you remember the name of the employee who was behind the service desk? A. No I don't

Q. Do you have any description of her? A. I remember she was a young girl but that's pretty much it, I couldn't really tell you much else.

Q. When did you interview her, do you recall, before or after you spoke to Thompson - A. Well I just spoke to them - or sort of spoke to Kelly and the service desk girl at similar times. Together. At the time.

Q. You'd spoken to Kelly Hart even before you've seen Mr Thompson and Mr Webster and then you've spoken to Kelly Hart after Mr Thompson - A. That's what I'm saying, when I was speaking to Kelly Hart that's when I think I remember speaking with the service desk girl as well, because she - like Kelly -

Q. Yes, but what time when you were speaking to Kelly Hart? A. Before I spoke to Mr Thompson and Mr Webster, yeah.

Q. Did you take a statement from the girl behind the counter? A. No, she was hard to get hold of and I don't remember taking a statement from her.

Q. Did you see the documents, the signatures that were different? A. Well no, because I never saw the card. I think I saw a signature on the back of the refund voucher but I never recovered the credit card." (T 139 - 140)

[41] In other words, both the defendant's employees told him about the Seinfeld DVD return and showed him the voucher Mr Thompson signed. This was a very specific allegation about a person returning a Seinfeld DVD and attempting a fraudulent credit card transaction at the same time. There is no suggestion either of the plaintiffs ever attempted to purchase a gift voucher; no such claim was put to them in cross-examination, nor was Mr Thompson's claim that he showed his driver's licence in order to obtain the refund challenged.

[42] Senior Constable Turnbull confirmed that in addition to speaking to someone at Target he spoke to Miss Hart about the Target allegations. His sole uncertainty was "I just can't recall who I heard it off first" [emphasis added] (T-135). He said that: "Again I couldn't tell you who I first heard it off because I remember speaking to someone from Target who said that it did happen. But I just can't recall who I heard it off first, if it was the case that when Kelly Hart rung Target, if they said oh yeah they were up here before, and then Kelly's told me about that, or if Kelly's told me that she's spoken to someone from Target and we should go us there and they've told us about the $1500, I'm not sure."

[43] At T-144 to 145 Senior Constable Turnbull agreed that he was conducting an investigation on behalf of the Police Service based on the information given to him, and he was acting in discharge of what he perceived to be his police duty. He was not acting at the direction of any other person who had received information, and he was not being directed by them. The actions he took were actions taken by him having regard to his perception of his requirements of the investigation and the authority vested in him. He was not reliant upon K-mart or any other civilian for those actions. He was given information by those persons and he was responding to that information and he was exercising what he regarded as his duty as a police officer to investigate those matters. He was not responding to any direction from a civilian person when he determined that he should search Mr Webster and Mr Thompson and this was part of perceived police protocol. He agreed that s 21 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) applied. However, the specific police power he referred to was the power to stop, search and detain (T-145 line 27).

The evidence of store employees of K-mart (Miss McDonald and Miss Patel)

[44] The defendant called two store employees who described a transaction at cash register nine on 25 October where two men asked for gift cards for $500. Cash register nine is in a different location to the service desk. Miss McDonald said the younger, shorter man could not produce his driver's licence for verification because it was in his car and she said she would not process the transaction without ID. After they left the store she rang Miss Patel and later that day she had a conversation with the store manager Miss Hart. I shall set out the evidence of both these employees in full.

[45] Miss McDonald was a checkout operator on cash register nine in the afternoon when two male customers came to her to ask for two $500 vouchers. She described the transaction as follows: "Yes, I had two male customers come to me and ask for two $500 vouchers and on that occasion I said to them, "That's a very generous gift you are giving." And they said, "That's right." And I said, "Well as company policy through our store manager we need a form of ID which is your driver's licence." And at that time the younger, shorter man said that his driver's licence was in his car. I did not process the purchase at the time because I insisted that they had the ID. I don't recollect them coming back to the store and after that I rang Rina the front end controller who then informed our store manager Kelly Hart and after that I don't recollect much at all."

[46] Miss McDonald did not leave her station to report the matter to Miss Patel. She rang her at the service desk. It is not permitted for her to leave the register.

[47] On Miss McDonald's version of events, she was the only person to see these two men. She rang Miss Patel only after they had left. Miss Hart came about half an hour later and "discussed things" but did not see them either. Miss McDonald did not have occasion to speak to any police officers (T-159). Senior Constable Turnbull said in his evidence that he attempted to speak to the Service Desk staff member who had first served the plaintiffs but although he had seen her on the CCTV, and thought he spoke to her in the store, she had never been available to be interviewed. He was quite sure she was a young woman. Miss McDonald, in addition to being a cash register operator and not a service desk attendant, is a woman in her senior years.

[48] Miss Patel was the front-end controller. She described this job as follows: "I had to look after for the registers and at the service desk and if they got any trouble they call me and if I can serve them or I have to ask my store manager what can I do for them."

[49] For gift vouchers for more than $50 photo ID is necessary and if there is no photo ID the approval of the store manager is required (T-161). Her recollection was that on the afternoon of 25 October Miss McDonald approached her (T-161 lines 36-38) to say that she was serving "the customer" and "the customer" wanted "the $500 gift card from the credit card". The customer did not have photo ID so Miss McDonald called and asked what should be done. She said that this transaction could not be authorised. Miss Patel said that Miss McDonald said she had the customer in front of her when she called so Miss Patel went (erroneously transcribed as "sent") to her register and "I said - I answered the same thing that we can't issue the gift voucher because customer doesn't have the photo ID".

[50] Miss Patel said that there were two male persons but she was unable to describe them. She did not look at the credit card and she did not have any discussion with the two men who then left the store. She then went to call the store manager to tell her what happened. She did not remember what happened after this but "[i]t was my lunch break and after that I know what happened that the police came" (T-163) but the police did not come to speak to her. After the late lunchtime she saw the police and Kelly Hart together (T-163).

[51] Miss Patel's evidence contradicts Miss McDonald's assertion that she rang Miss Patel only after the men had gone. Miss McDonald's version does not include any reference to Miss Patel being present while the men were there. In addition, Miss Patel places these events as occurring before lunch. Although this was a late lunch break, there is no suggestion that lunch occurred some time after 4.30pm. However, it is quite clear from Miss Patel's version that the two men she served had left the store (T-162) before she contacted Miss Hart. The police never interviewed Miss Patel. She is a middle-aged lady of Asian appearance, and does not fit the description given by Constable Turnbull or the plaintiffs of any person who served them. However, she was available for interview in the store when the police were talking to Miss Hart (T-163 to 164) and was not interviewed by him, nor did Kelly Hart speak to her about having called the police.

The evidence of the store manager of K-mart (Miss Kelly Hart)

[52] Miss Hart's recollection of events was as follows: "Q. Did something happen on 25 October 2004? A. I was called to the front due to an incident with a customer wanting to purchase a gift card for $500.

Q. Can you slow down so that we can all - A. Sorry. They had no proof of ID and that was the problem. There was no driver's licence that we could verify the person was who they were. And during the conversation it was then that the gentleman said to me it wasn't his card.

Q. And you were dealing with one person - A. Yeah.

Q. - but was he accompanied by someone or was he on his own? A. He was standing at the service desk on his own.

Q. Was there anyone within proximity to him is what I'm asking? A. Not really. Other customers were coming to the side and like the girls were serving them, but not close.

Q. What happened after you had that conversation where he wasn't able to produce the identification? A. It got heated.

Q. Pardon? A. It got heated. He became abusive and threatening.

Q. And then what did you do? A. Told him that I wasn't going to do the transaction. He had to get the proper ID or bring the person who owned the credit card for it to go through. He was abusive. And then I just got to the point where I said, "If you keep going this way, I'll call the police."

Q. And what happened then? A. Well that's pretty much all I remember at that point. The next thing I remember was the police asking me - I remember a male and a female police officer asking me was that the gentleman, which I indicated it was but as to in between that, I can't really remember.

Q. Where were you when you indicated, is that the gentleman? A. In the foyer, the Food Court area, the foyer of the Food Court area.

Q. Do you recall making a telephone call yourself to the police? A. No.

Q. For about how long were you in the Food Court area with the police officers? A. I'd say a couple of minutes, it wasn't very long.

Q. And was there a video machine at Kmart on 24 October 20-04? A. Yes.

Q. And what areas did it observe? A. It recorded the service desk entry where the customers walk into the main entry, the front-end controllers booth and sound and vision. I can't remember - they were the basic cameras, I can't remember how many cameras we had in total.

Q. And did it take a video of the area where this conversation occurred? A. Yes.

Q. Do you know what became of the videotape? A. No.

Q. Now can you tell me, if you can recollect, who it was that called you to come and intervene in this transaction, which of your staff it was? A. Not which person and their name, no, it was a member from the front area but I can't remember who."

[53] Miss Hart explained the refund vouchers as consisting of a red voucher where the customer does not have proof of purchase whereas with a green voucher they have proof of purchase. It was the uncontradicted evidence of Mr Thompson that he was given a red voucher not a green voucher, because with a green voucher the customer could get their money back, whereas a red voucher had to be spent in the store to the value of that red voucher and no change was given because there was no proof of purchase. It was never explained why he was given this voucher if he had in fact provided proof of purchase.

[54] At T-184 Miss Hart said that on average they would fill out one book of red vouchers and one book of green vouchers each day, and each had 100 vouchers in it. She had no recollection of issuing a red voucher for any Seinfeld DVDs. She described the usual procedure when the police were called as being to "write down everything that's happened, as to if there were staff members involved or what the situation was. If there was an incident where you needed - like there was video footage, you would put your notes attached to the video tape and then lock it in a separate cupboard in the loss prevention office and notify loss prevention" (T-185). She had no recollection of the day in question, but "that's what we did" (T-185).

[55] All she could remember of the person asking for the voucher was that he was "a fair skinned, white Australian, my height or a little bit taller", "a bit smaller a bit slender than me, and I'd say, like I said fair skin, young". She thought he was "somewhere around 20, mid-20s" and repeated this several times (T-186). She was unable to remember there being a second person. She recalled the police coming on this day but did not remember them arriving or at what time or what she said to the police (T-186). She said that when the police are called "You have to write a report, you have to notify the relevant people such as loss prevention, and depending on the seriousness or the nature it could even go up higher, and yeah, there's a lot of paperwork and stuff off the floor, there's a lot that is involved" (T-186 to 187).

[56] The circumstances in which it was necessary to call the police were if they "couldn't deal with the situation or if we felt uncomfortable, like threatened" (T-187). This is because "you've got to have a witness, you've got to get statements, there's just - it's something you don't do on a whim, there's just a lot that's involved" (T-187).

[57] She did remember talking to the police but could not remember providing a statement or signing a statement.

[58] In cross-examination Miss Hart was asked: "Q. When you were first asked about this case and told there were legal proceedings on foot, how strong was your recollection of what had occurred on that day? A. Only just exactly what I said, just those key things that I remember, that's it. If you were - I don't know what you mean, like, just what I remember to the - same as today, but I suppose - it was a long time ago.

Q. When you say that you can recall being called to the counter in relation to someone seeking to obtain a $500 gift card, did you have that recollection independently when you came to court today or is it something someone had reminded you about in the last couple of years? A. The only time I was reminded was when I was asked - like do you mean when I was asked about the incident?

Q. Yes. A. I said, this is the incident I remember, that's it.

Q. Were you provided with any information that would help you remember that incident? A. I was asked do I remember one and I said, "Well, this is the one that sticks in my mind." And that's out of credit card fraud, that and an Asian man are the only two that I had an issue with where I was threatened, that's why I remember."

[59] Miss Hart agreed that she could have telephoned other shops to say there were suspicious persons around the mall (T-199) because credit fraud was "a big thing", "serious" and something that would stick in the memory, particularly if the person in question became abusive and threatening.

[60] All that Miss Hart could remember was that the person who could not provide ID was abusive and threatening and that, in failing to provide ID, he was attempting credit card fraud. She said, however, that he did show a credit card and said that it was "on the glass top, that was sitting on there, because the girls couldn't do the transaction because they had no proof of ID. So it was a Visa or a Mastercard or that I can't recall" (T-200).

[61] The following cross-examination occurred at T-200: "Q. And indeed there have been occasions when the store issues $500 gift cards aren't there? A. Yes, yes.

Q. The fact that there was no ID did not mean that it was an attempt to commit credit card fraud was it? A. But it wasn't his card.

Q. How did you know? A. Because when they asked him for ID and this is what - because the girls were asked for ID and if you have a look at ..(not transcribable).. now it'll say over a certain amount in this problem area stores you need to have proof of ID. So they will ask for ID and if a customer says, no, I don't have any ID and you go okay and you look at the name, like, there's lots of other things they have to do and take into account.

Q. But you don't know at what time of day this attempted fraud was? A. No, I can't remember what time it was, no.

Q. And I use 'attempted fraud' in inverted commas? A. I don't remember.

Q. Can I put to you quite squarely Miss Hart that the police came to Kmart at about 5.30 on the afternoon of 25 October and saw you and you told them that you believed there was someone around who they should go and interview, isn't that correct? A. Well, if you say so, I don't remember them coming to say those words to me, no.

Q. And that approximately 20 minutes before the police arrived you had made a phone call to both Target and Coles in the centre to say that there were two men acting suspiciously? A. I don't recall that.

Q. And that you had made that phone call because you had had a heated discussion with a man who wanted a refund on a series of DVD's, Seinfeld DVD's? A. I don't remember that, I don't remember the Seinfeld DVD's.

Q. And after you had between three and five minutes argued with the man that he should've known what he was buying and shouldn't be entitled to a refund you gave him the refund isn't that correct? A. No, I don't know.

Q. You can't remember? A. Well, you're telling me this happened. I don't remember it.

Q. But you can't tell me that it's absolutely not correct? A. It doesn't seem to make sense to me but -

Q. And then after this heated discussion with this man who wanted a refund on his DVD's you told the girl provide him with a voucher and you left that desk didn't you? A. I don't recall.

Q. When the police came you described what that man was wearing and told them that he was in the Food Court because you'd had your security guards follow him there, isn't that correct? A. I don't recall that."

[62] Miss Hart was unable to remember if they in fact employed any security guards that day (T-202 lines 12-13).

[63] Miss Hart repeated the explanation about someone else's credit card at T-204: "A. He was trying to make a purchase of a gift card for $500. The girl's asked him for ID which he didn't have. During the course of the conversation he said it wasn't his card. Straightaway -

Q. Can I stop you there. Did he say that to you? A. When I was called up there I asked him because the girl's had told me that and I said, "You cannot use someone else's card" that's why I remember it. Because you don't - the girl's know they're not allowed to get anyone to sign for anybody else's credit card and when I had the conversation with him and he said he was getting it for a friend, I said, well go get your friend or you've got to use your own credit card but you cannot use anybody else's credit card, because if we did that, then it comes back and the owner says, no I didn't make that purchase, then we're responsible.

Q. Miss Hart can I suggest to you that when you pointed out to the police the individual you say was abusive towards you, that you were - your actions were coloured by the fact that you'd had the heated conversation with him, weren't they? A. When you say coloured because I was threatened. Is that what you mean?

Q. What I mean is that what actually happened - you say happened between you and this man you pointed out to the police. Because of the abusive or threatening nature as you saw it of that conversation, that's why you pointed him out to the police isn't it? A. Not sure how to answer this because the only reason I called them was because it became threatening. So does that colour it?"

[64] Miss Hart said (at T-205) that she would not have bothered to telephone the police if he had walked away and not becoming threatening because it would not have bothered her but went on to say that the customer "became threatening" (T-205). It was a waste of time if the transaction did not go through to call the police and the reason she did so was his demeanour and what she perceived as a threat on his part because "he wouldn't" (T-205). She went on to say (at T-206): "Well if the gentleman said yeah, I'll just go and get my dad who's the owner of the card and walk away and go and do that, then that's fine, I've got no dramas with that". She described his conduct towards her as "upsetting" and "pretty colourful" and said that she was upset adding "Well what am I meant to do when he's standing there carrying on, like". She went on to say, however, she did not recall calling the police or other shopkeepers (T-206). She denied that she was angry and upset and that this was the reason for her telephone call. She denied that she rang the police "to spite someone" (T-206) and said she did not recall ringing the police. She was asked at T-207: "Q. But you weren't surprise when the police arrived, having been referred there by someone else? A. I can't - I wouldn't say I was - I don't remember. But when you say was I surprised. I don't think I would have been anything."

[65] She had the following explanation for pointing out the plaintiff: "Q. And it was only when the police arrived that you were effectively revisiting the heated conversation you had with this gentleman, isn't that the case? A. No I don't think that that would be. It'd be they would ask me questions and I would answer them. You're not going to lie to the police.

Q. No but when you went down to point out this gentleman, that was something you would have let pass if the police hadn't arrived, is that the case? A. Well the only reason I'd pointed him out was because of the credit card.

Q. You pointed him out because you were angry that he'd become aggressive and threatening in your eyes? A. I wasn't angry, I was upset if anything.

Q. Well it was that upset that caused you to go down and point him out and take the police there wasn't it? A. Well not if the police had asked me to - is this the person you had the problem with, well yes I'm going to answer the police.

Q. Did you tell the police that you hadn't looked at the credit card? A. No I don't recall.

Q. Did the police ask you on what you based your complaint? A. Not that I recall.

Q. You just told them that there was a person who'd been attempting credit card fraud, is that what you said? A. Yeah but do you mean - well when you said did I ask them based on my complaint. I didn't call them. I don't recall calling them.

Q. But when they came to the store, did they ask you details of why this person was now a person of interest? A. Well I would assume they would have asked me why and I would have told them what happened.

Q. Well you assumed that, do you have a recollection of it? A. Well not really but I - well to me that's what I think would have happened. They would have come and asked me what had happened and I would have answered them.

Q. Is it possible Miss Hart that when you identified the person in the Food Court, you identified the wrong person. Not the person you'd had the discussion with before? A. I don't think so, I don't.

Q. Can I suggest to you that you may have had a heated discussion with a gentleman and then a subsequent discussion with another gentleman in relation to the return of DVD videos, and had become confused as to which was the correct one? A. I don't - yeah I don't think so.

Q. You don't think so or you're not sure? A. I'm not sure. It would be better to say for - because you wouldn't do that.

Q. Why not? A. Because that's just wrong, it's not right, yeah and I wouldn't do that."

[66] Miss Hart was shown the police COPS report and was asked if she made the statement to the police which was contained in the paragraph which says "A manager from K-mart has then stated to police that the same persons of interest had attempted to obtain $500 worth of gift vouchers from K-mart and as they earlier attempted to obtain $1,500 worth of gift vouchers from Target". Her response at T-211 was: "A. Sorry. It says, "The manager from Kmart has stated to police that the same POIs had attempted to obtain $500 work of gift vouchers from Kmart," that's fine. "And as they earlier attempted to obtain $1,500 worth of gift vouchers from Target." Now, if that's there and I told the police that, then that's probably - that's what would have happened on the day. But do I remember that right now sitting here? No.

Q. So you don't have an independent recollection of having - A. $1,500 in my mind, no.

Q. Of having heard from someone from Target that someone had tried to get $1,500 worth of gift vouchers from them? You didn't - A. Am I linking - yeah. Like, right now is it possible? Yes, it is possible. But do I remember that? Like, yeah, until I just read that it wasn't in my mind.

Q. So you don't remember anyone from Target ringing you to say someone has tried to get $1,500 worth of gift vouchers from them? A. No, I don't remember that."

[67] She was then asked to read the paragraph about the manager: "Q. You can see the next paragraph says, "The manager has then pointed out the person of interest 2 who was shopping at Franklins. Police have spoken to person of interest 2 as well in relation to the matter." A. Mm-hmm.

Q. Is that - you've told us that you recall pointing out a person in Food Court to the police. A. Mm.

Q. Do you recall that there were two men there with the police in the Food Court? A. Not that I can remember. There was one guy but - they'd sort of - what do they call it? They patted a man down and there is another man, but I don't remember his face or I don't remember him.

Q. Do you recall saying to the police, "It's not him but it's him," pointing to one and the other? A. I remember pointing to a man saying to police that was the man, but I don't remember that, no.

Q. Do you remember saying to the police that those two men were definitely the ones involved in the attempted fraud? A. No, I don't recall that.

Q. Do you recall talking to someone called Peter who worked at Coles in Ashfield Mall on that afternoon? A. No.

Q. Do you recall a person called Peter who worked at Coles at that time? A. I don't recall. They are could have been a lot of people. The Coles Group changed - management always changed. I couldn't tell you.

Q. And do you recall making those phone calls before the police arrived to people at Coles and Target? A. I don't recall.

Q. Do you recall leaving the store and entering the Food Court area to see if they were still around after they left the store? A. I remember I was in there when the police were there, but whether that was after - I don't - I remember being there when the police were there but at what time the police came - like, what time does it say there? I don't recall the time."

[68] The witness was asked (T-214) if she intended to convey any of the imputations saying "Well no, there was one man abusing me, and he was the one that had the credit card and was trying to make the purchase".

[69] Miss Hart was in a state of some distress by this stage and was having trouble answering questions. Her answer was that she had no recollection. I asked her if it would be a fair summary to say that she was saying no she did not intend to convey the imputations, to which she agreed. This was later challenged by counsel for the defendant, who said that this was unfair.

[70] In his most recent submissions, counsel for the defendant submits that Miss Hart believed in the truth of the imputations.

[71] While interrogatories about belief and intention to convey are generally administered by the plaintiff, the onus of establishing these lies on the defendant. A defendant who refuses to answer interrogatories and leads evidence of inability to remember rather than a belief in the truth is asking a great deal of the Court to accept that the defendant's servant or agent believed in the truth, especially in the face of answers to the contrary in cross-examination.

[72] The following occurred at T-214 line 45: "WEAVER

Q. Can I suggest to you that you certainly intended to convey the meaning that one of the persons of interest who were detained by the police in the Food Court was a dishonest person didn't you? A. I don't know if they're dishonest, I think they were trying to use a credit card not the correct way."

[73] Again, I asked if I should take that as being a no, and she agreed. This was again categorised as unfair by counsel for the defendant in his closing submissions.

[74] At T-215 Mr Weaver said: "Q. Well are you saying to me now that you considered it was not [transcript correction] necessarily dishonest to do what the man was doing? A. Well, did he get the gift card with the $500 on it, then that's the wrong thing. But did it actually happen or go all the way through, no, it didn't." [75] Miss Hart became very distressed and tearful towards the end of her evidence, as I note at T-218. The following occurred at T-216: "Q. Miss Hart are you saying that when this incident occurred that caused you to identify this person to police that what they were doing you did not believe to be dishonest?

WITNESS: I don't want to say the wrong thing. That's what I'm worried about. The person trying to use the credit card I believe was trying to do the wrong thing. Did it go all the way through, technically no, it did not go all the way through. So did they actually do a dishonest thing? That's - and I don't want to say it the wrong way -

HER HONOUR: Alright. I think really Mr Weaver that'll have to be an answer to your question. She's looking very distressed. Is there anything else?"

[76] Counsel for the plaintiffs asked for Miss Hart to remain over the morning tea adjournment in case there were more questions. However, by this stage Miss Hart was in a dreadful state. She objected to having her address on the record and it was removed. Such was her state of near hysteria that I did not accede to the request of counsel for the plaintiffs for Miss Hart to remain over the morning tea adjournment in case there were any further questions.

[77] Miss Hart's level of distress was out of all proportion to what was a short and quite gentle cross-examination. Mr Weaver at all times spoke in a gentle and considerate tone of voice. He asked no unnecessary questions, never raised his voice and spoke to her with courtesy. However, it was apparent that she was either unable or unwilling (or both) to answer any more questions. Her demeanour was that of a person angry almost to hysteria because her word had been challenged. Having had the benefit of observing her demeanour in Court, I can understand how it is that she over-reacted to Mr Thompson's request for a refund.

[78] Mr Meyer was described by counsel for the defendant as "the real publisher". Mr Meyer's evidence was brief (T-219 to 221). He said he was the Administration Manager at Coles Supermarket and had no recollection of telephoning the police. He knew of no other person named Peter. He identified the telephone number on the police COPS report as being the telephone number of the store.

[79] Beyond having the same first name as the Informant, a first name he asserted was not shared by any other person at Coles Supermarket, Mr Meyer was unable to assist the Court to establish whether he was or was not the person who called the police. Given the kind of system Miss Hart said existed in K-mart, it seems surprising that there was no contemporaneous record kept by either Mr Meyer or whoever called the police on behalf of Coles. Constable Turnbull has said that "All I can say is that I spoke to someone in Coles" (T-133). He said that he spoke to someone from Coles first (T-144) and was directed to K-mart. The only other recollection he had of this person was that subsequent attempts to telephone to obtain the statement were not successful and he formed the view that this person was not interested in making a statement.

[80] On the balance of probabilities, and having regard to the evidence of Senior Constable Turnbull, I am satisfied that a person in Coles named Peter telephoned the police. However, that does not mean that the first publication was made by this person and not by Miss Hart. The subsequent information that the persons of interest were in the Food Court was provided by her, and she went to the scene and identified each of the plaintiffs.

[81] When she identified each of the plaintiffs, the act of publication for the first matter complained of was complete. By adding the identification of the plaintiffs she was adopting and authorising the statement made by "Peter" to Constable Polley.

[82] The correct view of the facts of the first matter complained of is that when she pointed out the plaintiffs she was identifying the unnamed persons in the first matter complained of.

[83] The second matter complained of consists of Miss Hart telling the police where to find the two men. This means that potentially the same act of identification gives rise to both publications. Miss Hart, in addition to identifying the persons "Peter" rang about (identifying them in both K-mart and Target) then identified them again as the persons who came to K-mart. These publications are very close in time and arguably the same. I asked the defendant for written submissions on publication and identification for each publication but did not receive any. I therefore propose to treat each of these publications as separate.

[84] The third publication is made some time later, when Miss Hart, despite evidence that the men have been searched and do not have any credit cards, insists that they were the ones. The COPS report sets this out clearly and I shall now consider this document in more detail.

[85] Having set out the oral evidence I now consider what assistance can be derived from those few contemporaneous records which are available for inspection by me. I should first consider a submission by the plaintiff as to the inferences I should draw in relation to a number of missing documents.

Contemporaneous documents identifying what was said

[86] No CCTV footage, internal memoranda or reports, police statements or other documents were produced by the defendant in relation to any of the incidents occurring in its shop on 25 October 2004. The parties never had discovery. The plaintiffs did prepare some interrogatories but as I have noted above, interrogatories concerning the defendant's state of mind were struck out on the basis that the defendant's state of mind was irrelevant.

[87] The plaintiffs did issue a subpoena to the defendant and the documents produced were tendered and are marked Exhibit "F". The plaintiffs complain that the defendant did not produce the following documents in answer to the subpoena, or otherwise in relation to calls made in Court: (a) the CCTV footage relating to any of the incidents;

(b) the police statement prepared for Miss Hart; and

(c) the internal report Miss Hart said she would have prepared for her employer.

[88] The plaintiffs ask me to draw the conclusions of law consequent upon destruction of documents going to the heart of litigation, referring me to Clark v State of New South Wales [2006] NSWSC 673, where the Court considered the inference a Court may draw from such non-production, citing Allen v Tobias (1957-58) 98 CLR 367.

[89] The plaintiffs also draws my attention to the statements by the High Court in Katsilis v Broken Hill Proprietary Co Ltd (1977) 18 ALR 181 at 197-198, referring to the inference to draw concerning the failure of a party to give or produce evidence which a party in its own interest would be expected to give or produce and the drawing of a conclusion that such evidence, if given or produced, would not support that party's case. The inference would depend upon some element of conscious repression or withholding of the evidence and must depend upon the deliberation with which the evidence is withheld and the appreciation or likely appreciation of the party of the significance in the case.

[90] In Bridges v Pelly [2001] NSWCA 31 at [52] Giles JA made clear, applying the principle in Katsilis, that what this means is a "common sense appreciation of the circumstances" which the plaintiffs submit is not a particularly high hurdle.

[91] The evidence of the police officer was that he was given the videotape, that he prepared a statement for Miss Hart, that he attempted to contact other persons, including the other shop assistant he saw in the video and Mr Peter Meyer, without success, that he remained enthusiastic about laying charges until approximately May 2005, when on the advice of his supervisor, he considered there was insufficient evidence, he closed the file and returned the CCTV footage to the defendant. A search of the police documents repository had failed to locate any documents in relation to this case, other than the COPS report.

[92] The terms of the subpoena were as follows: "(1) All documents up to the date of this subpoena in relation to any male person engaged, or alleged to have been engaged, in credit card fraud, or any attempt to unlawfully obtain gift vouchers at the Coles, Target and/or K- mart Stores at Ashfield Mall, in the period 25 October 2003 to 25 October 2004 ("the period").

(2) All film, video, photographs or other media containing pictures of any person engaged in such fraud.

[93] Although the defendant submits that all the plaintiffs is complaining about is the CCTV footage relating to each of the plaintiffs in these proceedings, this should also have brought up any reports that were lodged in relation to the other incident which occurred the same day and for that matter, any other attempted credit card fraud activity. It was Miss Hart's evidence that there had been an increase in credit card fraud activity and she had received an email which effectively had put her on her guard. The terms of this subpoena would have flushed out documents that would have been relevant to this issue.

[94] The defendant submits, and I accept, that the police statement provided by Miss Hart would not come within the period. Senior Constable Turnbull said (T-138) that he generally did not provide people with a copy of their statement. Senior Constable Turnbull was unable to locate the statement or a copy of it at the police station. There is no evidence that this statement was ever in the possession of Miss Hart, let alone the defendant.

[95] The CCTV footage was obtained by Senior Constable Turnbull on the day in question and returned to K-mart Ashfield some time after the file was closed on 13 May 2005. Mr Patrick Hill (of PCH Forensics Pty Ltd, which is a company that conducts insurance litigation and risk investigation services) said in his evidence that the CCTV tapes were taped over every 30 days and that when he came to inspect the records as at 16 May 2006 a search was made through CCTV footage but no videotape is obtained.

[96] The police action had concluded and no case was anticipated, foreshadowed or commenced. The likelihood is that when the videotape was returned, it was simply taped over in the usual manner. The same would be the case with the videotape of any other incident which allegedly occurred on the day.

[97] It is asserted that "it has not been established that Miss Hart wrote an incident or internal report concerning the events of 25 October 2004. It is submitted the probability is against such a report(s) having been written". However, this is not the evidence of Mr Hill. Mr Hill said that he had looked very carefully through a folder which contained reports of such incidents and there was no report for this incident.

[98] Miss Hart's evidence as to what she did in such circumstances was set out at T-185.

[99] The defendant's explanation for the mistake is that its employees did in fact have a person attempt to purchase $500 gift vouchers without providing identification authorisation and that Miss Hart was told of this. This report, had it been made, would have been a significant document that would have gone a long way to establishing that someone had in fact acted in a way described by the other employees called by the defendant.

[100] The defendant cannot have it both ways. It cannot assert that the effluxion of time meant that there was no recognition of the significance of this incident, when there was no difficulty in locating the two witnesses who had a clear recollection of a transaction at cash register nine. The failure to produce this document, as well as the failure to produce the internal report which I find Miss Hart did make, is hard to understand, given that Miss Hart herself said that in such circumstances the police were generally not called and that she had called the police on this occasion because she said she had felt threatened.

[101] The circumstances in which police were notified and a statement made by an employee who felt threatened, not resulting in a report which was put in the book that Mr Hill of PCH Forensics Pty Ltd said he went through carefully seems low. In addition, not one but two reports are missing, and both would have been caught by this subpoena.

[102] Although the defendant submits to me that "it is wrong on the material to assume there was ever an incident report prepared by Miss Hart at any time", and that because Mr Meyer rather than Miss Hart called the police, she could not have written up a report (T-185) misses the point. Miss Hart took the police into K-mart, gave them K-mart's property (in the form of surveillance tape) and provided a statement. These are far more important steps than telephoning the police.

[103] The defendant submits that the person likely to have prepared an internal report was Peter Meyer. Mr Meyer may well have prepared a report. However, Mr Meyer did not speak to the police; he merely directed Constable Turnbull to go to Miss Hart. The fact that Mr Meyer did so and prepared a report, if so, does not mean that a report would not have been prepared by Miss Hart. If anything, it makes it more likely that she would have prepared such a report.

[104] The evidence of Mr Hill from PCH Forensics Pty Ltd was unsatisfactory. He spoke confidently of going through the material with Miss Hart until it was pointed out that Miss Hart had left the Ashfield store some time before the date he said he was there (in 2007). Upon being asked if Miss Hart had come to the Ashfield store to help look for the missing tape (a straightforward question and a simple explanation of any apparent inconsistency) Mr Hill retreated from his claim that Miss Hart was present. He then said he could not remember, although how he could have identified the plaintiffs without some assistance of this kind is debatable.

[105] Mr Hill presented as a witness eager to show that he had carefully gone through documentation in his role as the investigator and his evasive answers about whether Miss Hart was present or not did not reflect well on his credibility. In addition, some of the enquiries he made were clearly pointless, such as his search through the videotapes already in the machines, on the basis that machines in some stores had a capability to record for longer than 30 days. The likelihood of the tapes still being in the machine three years later when the subpoena was issued, or of the machines still containing three years of videos, or that Mr Hill sat through three years of videos, looking for the missing tape, seems contrary to the "common sense" test adverted to by Giles JA.

[106] The terms of the subpoena were quite clear. There has been no submission that the terms of the subpoena were onerous or oppressive. It was a straightforward matter for the defendant to produce the volume inspected by Mr Hill, or at least that part which related to the period of time covered by the subpoena. The practical result is that the defendant has had the benefit of having these incident reports and other documents relating to the activities of male persons engaged in credit card fraud (and it may be that these included documents of a more substantial nature than the email referred to by Miss Hart, as well as incident reports).

[107] The plaintiff has been denied that right because these documents were not produced.

[108] The documents sought in item (1) of the subpoena should have been produced, but were not. As it happens, I am able to make findings without the benefit of that evidence; however, I should formally record that the circumstances in which the documents sought in item (1) of the subpoena are not produced is such as to give rise to the inference referred to by the High Court in Katsilis and by the Court of Appeal in Bridges v Pelly.

[109] There is no police notebook. The sole document to survive is the COPS report, which sets out the material upon which each of the matters complained of is based. I have removed details such as the personal addresses of the plaintiffs and Miss Hart. It is necessary to set out the rest of the document in full in order to understand what the police were told and by whom: [Page 1]

EVE026P New South Wales Police Service Date : 30/08/ COPS Time : 15:5 Page: Event Ref No : E 24209181

General Event Details Date/Time Reported : 25/10/2004 17:35 Event Classification : ACCEPTED Event Status : VERIFIED Clear Up Status/Date : NO FURTHER INVESTIGATION - 13/05/2005 Created By : CON TURNBULL, TIMOTHY P - ASHFIELD Updated By : DET SGT MCCARTHY, IAN BR - ASHFIELD

CIDS Incident : CHECK B/FIDES Priority : 3 Created : 25/10/2004 17:27 Resp Police : CST POLLEY Location : COLES ASHFIELD MALL, LIVERPOOL RD, ASHFIELD Informant: : PETER 9799 5144 CIDS Status : SEE INFORMANT CIDS Resource : Bcast Mobiles : AS37

UBD= 254 C2 THE INFORMANT STATES THAT TWO MALES ABOUT ABOUT 18-20 YEARS OLD, LEB IN APPEARANCE HAVE ATTEMTED TO BUY GIFT VOUCHERS IN KMART AND TARGET WITH POSSIBLE STOLEN CREDIT CARDS. THE POI'S ARE CURRENTLY IN COLES. SEE INFORMANT. NFD

CIDS Incident : CHECK B/FIDES Priority : 3 Created : 25/10/2004 17:27 Resp Police : CST POLY AS Location : RE: COLES ASHFIELD MALL, LIVERPOOL RD, ASHFIELD Informant: : X CIDS Status : UPDATE MESSAGE CIDS Resource : SYD 9735038 Bcast Mobiles : AS37

Actioning Mobile : AS37 Attend Date/Time : 25/10/2004 17:32 TO 25/10/2004 18:33 Officer : CON TURNBULL, TIMOTHY PETER GEORGE CON COZIS, CATHERINE MARIE

Narrative Details Date/Time Created : 25/10/2004 20:29 Created By : ASHFIELD - TURNBULL, TIMOTHY PE

LOC: Level 4 Ashfield Mall Liverpool Road Ashfield

POI1: Karl WEBSTER 19/01/1960 [Details deleted]

POI2: Stewart James THOMPSON 22/11/1973 [Details deleted]

EVE026P New South Wales Police Service Date : 30/0 COPS Time : 15:5 Page : Event Ref No : E 24209181

About 5:35 pm on Monday the 25th of October 2004 Police attended Coles supermarket located on level 1 of the Ashfield Mall in response to a message received via Police Radio of two POI's using fraudulent credit cards.

Upon attendance the P/R stated that the POI's were currently on level 4 of the Ashfield Mall in the Food Court section.

Police have attended this location and have observed POI1 sitting at a table. Police have approached him and informed him that they wanted to speak with him. Police have asked the POI where POI2 was. He stated that he was in Franklins shopping.

A manager from K-mart has then stated to Police that the same POI's had attempted to obtain $500.00 worth of gift vouchers from K-mart and they has earlier attempted to obtain $1500.00 worth of gift vouchers from Target.

The manager has then pointed out POI2 who was shopping in Franklins. Police has spoken to POI2 as well in relation to the matter.

Both POI's denied having any knowledge of using fraudulent cards. Subsequently both POI's were searched and nothing of Police interest was located.

The manager from K-mart stated that they were definitely the POI's involved in the attempted fraud at K-mart.

Police Involved Police in Charge : CON TURNBULL, TIMOTHY PETER GEORGE - ASHFIELD Created By : CON TURNBULL, TIMOTHY PETER GEORGE - ASHFIELD Date/Time Created : 25/10/2004 20:30

Police in Charge : CON COZIS, CATHERINE MARIE - ASHFIELD Created By : CON TURNBULL, TIMOTHY PETER GEORGE - ASHFIELD Date/Time Created : 25/10/2004 20:30

EVE026P New South Wales Police Service Date : 30/0 COPS Time : 15:5 Page : Event Ref No : E 24209181

Disseminations For the Attention Of : SENCON MADDRELL, PHILIP C - SCC FRAUD SQUAD INTELL Dissemination Reason : MONITOR FRAUD EVENTS IN THIS BROAD CATEGORYS Created By : SGT WEBBER, NIGEL ANDREW LES - SCC FRAUD SQUAD INT Date/Time Created : 26/10/2004 03:08 Completed By : SGT WEBBER, NIGEL ANDREW LES - 26/10/2004 03:08

Event Link Details Ref No. Linked Event : I 22451940 Assoc Type/Status : INVESTIGATION - CONFIRMED Reason for Assoc. :

Person Reporting Name Used : HART, KELLY Record Name : HART, KELLY CNI Number/Summary : 717710886 - OV-WRX-------I----- Date of Birth/Age Rge : 21/06/1968 Sex : F Contact Address : [Details deleted] Home Phone : [Details deleted] Work Phone : [Details deleted] Mobile : [Details deleted]

No Title Type Brief/ Date Status Sensitive Logged

Incident Details Incident Date/Time : 25/10/2994 17:35 to 25/10/2994 17:35 Incident Type : ACTUAL POWERS - PERSON SEARCH Authority : CRIMES ACT Further Class. : ITEM / OBJECT NOT FOUND Incident Status / Class : VERIFIED - ACCEPTED Clear Up Status / Date : CLEARED - 25/10/2004 Associated Factor : NO ASSOCIATED FACTOR

Incident Location Property Name : ASHFIELD MALL Address : 260A LIVERPOOL RD ASHFIELD NSW 2131 Premise Type : BUSINESS/COMMERCIAL RETAIL/WHOLESALE SHOPPING COMP L.A.C./Sector/Beat/NHW : ASHFIELD - ASHFIELD - NA - NA

Person of Interest Name Used/Status : THOMPSON, STEWART NO OFFENCE DETECTED Record Name : THOMPSON, STEWART JAMES CNI Number/Summary : 668266204 - OV - RX---P---I-E--- Date of Birth/Age Rge : 22/11/1973 Sex : M

CAS803S New South Wales Police Service Date : 30/0 COPS Time : 15:5 Page : Event Ref No : E 24209181

Tourist/Visitor State : NSW Tourist/Visitor Cntry : AUSTRALIA Aboriginal : NO Torres Strait Islander: : NO Contact Address : [Details deleted] Background Passport Number : [Details deleted]

Name Used/Status : WEBSTER, KARL NO OFFENCE DETECTED Record Name : WEBSTER, KARL CNI Number/Summary : 643350709 - OV--RX--DP---I-E--- Date of Birth/Age Rge : 19/01/1960 Sex : M Tourist/Visitor State : NSW Tourist/Visitor Cntry : AUSTRALIA Aboriginal : NO Torres Strait Islander: : NO Contact Address : [Details deleted] Background Passport Number : [Details deleted]

Reason For Search Details Description : Both POI's were stopped and spoken to by police after a witness stated to police that the POI's had just tried to use fraudulent credit cards at K-mart.

Witness Name Used : HART, KELLY Record Name : HART, KELLY CNI Number/Summary : 717710886 - OV-WRX-------I----- Date of Birth/Age Rge : 21/06/1968 Sex : F Contact Address : [Details deleted] Home Phone : [Details deleted] Work Phone : [Details deleted] Mobile : [Details deleted]

Incident Details Incident Date/Time : 25/10/2004 17:35 to 25/10/2004 17:35 Incident Type : ATTEMPTED FRAUD Further Class. : DECEPTION OFFENCE Incident Status/Class. : VERIFIED - ACCEPTED Clear Up Status/Date : NO FURTHER INVESTIGATION - 13/05/2005 Reason : CASE SUSPENDED, SEE CASE HISTO Associated Factor : FRAUD RELATED

CAS803S New South Wales Police Service Date : 30/0 COPS Time : 15:5 Page : Event Ref No : E 24209181

Incident Location Property Name : ASHFIELD MALL Address : [Details deleted] Premise Type : BUSINESS/COMMERCIAL RETAIL/WHOLESALE SHOPPING COMP L.A.C./Sector/Beat/NHW : ASHFIELD - ASHFIELD - NA - NA

Person of Interest Name Used/Status : THOMPSON, STEWART NOT KNOWN AT THIS STAG Record Name : THOMPSON, STEWART JAMES CNI Number/Summary : 668266204 - OV - RX---P---I-E--- Date of Birth/Age Rge : 22/11/1973 Sex : M Tourist/Visitor State : NSW Tourist/Visitor Cntry : AUSTRALIA Aboriginal : NO Torres Strait Islander: : NO Contact Address : [Details deleted] Background Passport Number : [Details deleted]

Name Used/Status : WEBSTER, KARL NOT KNOWN AT THIS STAG Record Name : WEBSTER, KARL CNI Number/Summary : 643350709 - OV--RX--DP---I-E--- Date of Birth/Age Rge : 19/01/1960 Sex : M Tourist/Visitor State : NSW Tourist/Visitor Cntry : AUSTRALIA Aboriginal : NO Torres Strait Islander: : NO Contact Address : [Details deleted] Racial App/Complexion : CAUCASIAN FAIR Build/Height/Weight : MEDIUM 188 TO 0 cms 0 to 0 kgs Hair/Eye/Facial Hair : BROWN HAIR Occupation/Skill : USHER Background Passport Number : [Details deleted]

Modus Operandi Details FRAUD METHOD USE FALSE INSTRUMENT Property Totals Detail FRAUD Value $500 Fraud Object Used UNKNOWN status MASTERCARD CREDIT CARD Fraud Instrument: FRAUDULENT ONLY Matched Objects Match Ref No : 1334204 Matching Criteria :

CAS803S New South Wales Police Service COPS Event Ref No : E 24209181 Matching Criteria : Victim : Organisation Name : K MART Branch/Outlet Name : ASHFIELD Organisation Type : COMMERCIAL ENTERPRISE CNI Number/Summary : 656802284 -V------------------ Contact Address : K-MART ASHFIELD, ASHFIELD MALL 260A LIVERPOOL RD ASHFIELD NSW 2131 Work Phone : 7985533

[110] Having set out the evidence, I now turn to a consideration of the submissions concerning publication.

[111] The first issue for determination is whether each of the publications was made and whether the defendant's servant or agent Miss Hart, the store manager, was the publisher on each occasion.

[112] As previously indicated, the defendant's submissions on publication are scant. The matters raised in paragraphs 9-10 of the submissions are: (a) there is "no evidence as to what precise words were used except for what Miss Hart said in the Food Court" and these words and gestures could not be defamatory of Mr Webster at all, whatever their import in relation to Mr Thompson. Accordingly, any action brought by Mr Webster in relation to each of the publications fails entirely on this ground alone;

(b) as to the first publication, Peter Meyer, an employee of Coles Supermarket Australia Pty Ltd, is shown as the informant for these. The case on the first set of words should not succeed for either plaintiff "because the defendant's employee did not say the words";

(c) there is "no evidence" as to what Miss Hart said because she does not recall, Senior Constable Turnbull does not recall and the statement Miss Hart gave to police on 1 November 2004 has not been produced on subpoenae to the defendant and to the Police Service. It is asserted that the entries are "too imprecise to support an award against the defendant" as what has been recorded "almost certainly was not what was said";

(d) the information recorded in the COPS statement "was not said" by Miss Hart.

[113] In addition, the defendant provided written submissions after the trial to submit the defendant was not vicariously liable for the publication.

[114] These submissions contain a series of misstatements about the elements of publication.

[115] It is convenient to deal firstly with the question of vicarious liability, which was raised very late in the submissions by the defendant, and then with the assertion that the COPS entries, and the evidence of Senior Constable Turnbull, are "too imprecise" and is "not what was said".

[116] Paragraphs 7, 9 and 10 of the Second Further Amended Statement of Claim plead Miss Hart was the defendant's servant or agent. Paragraphs 4 and 5 of the defence (answering paragraphs 7, 8 and 8A) contain a general denial but there is no specific traverse of vicarious liability. The plaintiffs were not put on notice of any denial of vicarious liability until a chance statement in the defendant's closing submissions, and were not on notice to interrogate, cross-examine or issue subpoenae.

[117] However, I agree with the plaintiffs' counsel's submission that Miss Hart's conduct falls squarely within the test referred to by Gleeson CJ in State of New South Wales v Lepore (2003) 212 CLR 511.

[118] I have set out in the section on false imprisonment a consideration of the elements necessary to establish vicarious liability. As the landmark case in defamation (Bonette v Woolworths Ltd (1937) 37 SR NSW 142) is very similar, I need only refer to the careful discussion of this issue by Jordan CJ, who explained (at 150-151): "An authority expressly given, whether it be particular or general, gives implied authority to do anything which is incidental to what is expressly authorised. Whether any authority has been expressly given, and if so what is the scope of the authority, are questions of fact to be determined by evidence. Evidence that a person is purporting to do acts on behalf of a principal in some capacity in such circumstances that the knowledge and approval of the principal may fairly be inferred is evidence that the principal has authorised him to act in the particular capacity. If there is evidence justifying such an inference, it justifies the further inference that the person has authority to do such acts as would be done, as a matter of ordinary business practice, by a person acting in such a capacity. If there is no evidence as to what authority was in fact expressly given, or what the business practice is, the jury may draw inferences based upon their own knowledge of business and affairs. This may be done, for example, where there is evidence that a person is manager or superintendent of a business: Macauley v. Bank of N.S.W. (1893) 14 LR (NSW) 269; (1893) 9 WN (NSW) 195; Citizens Life Assurance Co. v. Brown [1904] AC 423 or occupies a less responsible position: Goff v. Great Northern Railway Co (1861) 3 El & El 672; (1861) 121 ER 594; Mountney v. Smith (1904) 1 CLR 146 . Evidence that an agent was prohibited from doing an act which, apart from such a prohibition, might have been inferred to be within the scope of his authority is evidence which, if accepted, prevents it from being inferred that the act was in fact within the scope of his authority: Knowles v. Southern Railway Co. [1936] 2 KB 330; [1936] 2 All ER 682. If, however, a person ignorant of the prohibition is induced to act on the assumption that the agent possess an authority which such an agent would ordinarily possess, the doctrine of holding out may prevent the principal from disputing the agent's authority. This doctrine is immaterial in the present case.

It need hardly be said that if a principal expressly or impliedly authorises his agent to do a particular act, if certain circumstances should arise, he thereby authorises the agent to determine whether or not those circumstances have in fact arisen, and he cannot treat the act as unauthorised if the agent does it in the mistaken supposition that the circumstances have arisen: Bayley v. Manchester Co. (1872) LR7CP 415; Moore v. Metropolitan Railway Co. (1872) LR8QB 36; Percy v. Glasgow Corporation [1922] 2 AC 299. If an agent is authorised to do a particular class of acts, the principal is liable if the agent does an act of the class authorised notwithstanding that it is done mistakenly, negligently or wrongfully; and a principal cannot escape liability by expressly prohibiting his agent from making mistakes or being careless in carrying out his duties: Colonial Mutual Life Assurance Society Ltd. v. Producers & Citizens Co-operative Assurance Co. of Australia Ltd. (1931) 46 CLR 41."

[119] Neither of the parties referred to this authority, but it is still good law today. Miss Hart was doing an act of the class authorised and in fact her status as the store manager went a long way to having her statements cloaked in respectability as far as the police were concerned. The defendant is therefore vicariously liable for her statements.

[120] The defendant's submission that there is no evidence of the "precise words" said (submission (c) above) is misconceived. The substance of the words, rather than the precise words, must be proved. The modern rule is that the plaintiff does not need to prove all the words complained of were spoken; he need prove only so much of them as will sustain his cause of action. In Orpwood v Barkes (1827) 4 Bing 261 at 263; 130 ER 767 at 768 Park J gave an example that is often referred to: "It is not necessary in an action for slander for a plaintiff to prove all the words laid out in his declaration, although, if he were to leave out any that qualified the rest, the omission would certainly be fatal; as if a man were to say, 'You are a thief, for you stole a woman's heart', the latter words, as explaining the meaning of the charge, could not be omitted."

[121] Where a jurisdiction requires that imputations be pleaded, the plaintiff will succeed if the court finds that the variations or uncertainties in a slander still give rise to imputations which arise do not differ "significantly" (per Gallop J in Federal Capital Press of Australia Pty Ltd v Edwards (1992) 108 FLR 118 at 122). In Bogusz v Thomson (1989) 95 FLR 167 at 175 Miles CJ held that a plaintiff "is not bound to prove imputations precisely as alleged so long as the evidence permits of a conclusion which is broadly within their scope."

[122] This is even more the case where the imputation, and not the words spoken, is the cause of action, as is the case in actions brought under the Defamation Act 1974. If the imputation can still arise, that is sufficient.

Did Miss Hart actually have to speak all the words, particularly in relation to the first publication?

[123] Although there are cases in other jurisdiction asserting that only the speaker could be sued for slander (Brown v Hirley (1838) 5 UCQB (OS) 734 (CA); Boychuk Construction Corp. v O'Lain (1997) 161 Sask R 206 (QB)), it is arguable this has never been the law in Australia: Robb v Morrison (1920) 20 SR (NSW) 163. Isaacs J explained in Webb v Bloch (1928) 41 CLR 331 at 364, that all persons who are "in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication… In R. v. Paine (1696) 5 Mod. 163, at p. 167. it is held: 'If one repeat and another write a libel, and a third approve what is wrote, they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty: so that murdering a man's reputation by a scandalous libel may be compared to murdering his person; for if several are assisting and encouraging a man in the act, though the stroke was given by one, yet all are guilty of homicide.'" This famous statement about liability for publication does not differentiate between slander and libel; the reference to "repeat" suggests to the contrary.

[124] In any event, the provisions of the Defamation Act 1974 not only abolish the difference between slander and libel but make the imputation, not the words, the cause of action.

[125] In particular, even if the first matter complained of was first spoken by Mr Meyer and not by Miss Hart does not mean that Mr Meyer, to the exclusion of the defendant, was liable for the first publication. The matter complained of, in the form that it reached police, contained information both Peter Meyer and Senior Constable Turnbull said came from Miss Hart. Senior Constable Turnbull was uncertain whether he had heard the Target allegations from Miss Hart herself, or whether she told him that Target had said that the plaintiffs were "up there [in Target] before" (T-135). As Mr Meyer conceded in cross-examination, he could not have known of the plaintiffs' activities in K-mart unless Miss Hart had told him about the events in her store. He cannot be the sole publisher of the first matter complained of just because the Target allegations originated from him. Senior Constable Turnbull clearly identifies Miss Hart as the person who told him about the Target allegations, and the act of publication was only complete when Miss Hart identified the plaintiffs as those persons.

[126] The circumstances in which Mr Meyer repeated the information to police given to him by Miss Hart, adding his own information into it, and then referred the police to Miss Hart, who repeated it again to Constable Turnbull (who said that Mr Meyer said nothing to him other than to refer him to Miss Hart) mean that Miss Hart, by endorsing or authorising or, more likely, repeating the substance of the words used by Mr Meyer, published the first matter complained of to Constable Turnbull.

[127] As previously indicated, neither of the parties addressed themselves to the technicalities of the first publication. Counsel for the defendant took the position that because Mr Meyer is noted as the person who provided the information noted in the COPS report, it was impossible for Miss Hart to have published that information to the NSW Police Service or to any individual officer. However, I am satisfied from the evidence of Mr Meyer and Senior Constable Turnbull that when he and his colleague arrived at the shopping centre and were directed to Miss Hart they checked the information they received (namely the information set out in the first matter complained of) with Miss Hart, and she endorsed and authorised it, in a separate publication, by repeating this information.

[128] The submission that Miss Hart only identified Mr Webster is also misconceived. The police came looking for two offenders and she told police they were in the Food Court (this is the second matter complained of), according to the COPS report and Senior Constable Turnbull. The text of the third matter complained of clearly indicates Miss Hart was referring to both plaintiffs.

[129] However, the defendant relied strongly on the fact that Miss Hart could not remember as meaning that the evidence is too imprecise for me to find the publications were made. Is that the case?

Miss Hart's inability to remember what she said is of less weight than Senior Constable Turnbull's recollection

[130] Counsel for the defendant placed great weight on Miss Hart's inability to remember what was said, and submitted that the absence of evidence of "a third party" meant there was no evidence of publication.

[131] Contrary to the defendant's submissions, Senior Constable Turnbull not only set out in the COPS report, on the same day as the incident, clear details of what Miss Hart said to him, but he also retained a reasonably good memory of what was said. His description of each of the matters complained of is set out in his evidence above.

[132] How much weight should be given to the inability of Miss Hart to remember what occurred? In The Law of Defamation in Canada (2nd ed., at [22.3(6)(a)]) Professor Brown asserts that the positive testimony of a credible witness is entitled to greater weight than the negative testimony of an equally credible witness on the same subject matter. Thus, if a credible witness testifies that the defamatory words were spoken that testimony is to be preferred over someone who testifies that they did not hear or do not recall the occurrence.

[133] In a recent seminar paper on evidence Ipp JA has stressed the importance of contemporaneous records as objective evidence of what really happened: Justice David Ipp, "Problems with Fact-finding" (2 September 2006) Lawlink, Supreme Court of New South Wales (http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_ipp020906). Senior Constable Turnbull's recollection is supported by the COPS report.

[134] Senior Constable Turnbull was a credible, honest and independent witness. His recollection and his clear notes in the COPS report should, in my view, outweigh the inability of Miss Hart to remember the events in question.

[135] The defendant's denial of publication is difficult to understand given the insistence by the defendant, in the most recent set of submissions, that Miss Hart believed in the truth of the imputations. I also note that this is not a case where Miss Hart believed in the truth of the imputation but accidentally identified the wrong persons; she identified the plaintiffs less than an hour after their encounter and continued to insist on their guilt even when the police decided not to take them to the police station and arrest them.

[136] When considering Miss Hart's inability to remember, I should bear in mind that the young assistant referred to by the plaintiffs and Senior Constable Turnbull was not called. Miss Hart could not remember if anyone else was there. However, it follows from my preference of the evidence of Senior Constable Turnbull that I accept this young woman was there. While I do not draw an inference from the failure to call her, clearly she was the person at the Service Desk who initially served the plaintiffs. Miss Hart was the store manager, not a counter staff member.

[137] This brings me to the very difficult issue of whether Miss Hart identified one or both of the plaintiffs and the degree of importance to attach to the fact that the first matter complained of referred to two youths of Lebanese appearance.

Identification of the plaintiffs - the first publication

[138] The defendant's submission (see 112 above) that Miss Hart never identified Mr Webster at all, in that she said "Not him, but him" (meaning Mr Webster) conflates the issues of identification and publication. It is necessary for me to set out these two different issues in detail.

[139] When Mr Meyer telephoned the police to report the conduct of two persons, he did not know of the plaintiffs' existence. In other words, he did not make a publication of and concerning the plaintiffs. When police attended the premises in response to his call, he directed them to Miss Hart, whom I find was the person who identified the plaintiffs, and she directed the police to the Food Court. Having ascertained from Mr Webster (whom I find was pointed out by Miss Hart and other security staff as the other of the two offenders, and identified by the police who had watched the security camera video showing both plaintiffs) that Mr Thompson was shopping in Coles, Constable Turnbull then went to Coles where I find he was able to identify Mr Thompson from the video shown to him by Miss Hart.

[140] As I have already noted elsewhere, reference to the plaintiff is an essential part of any defamatory publication. Publication is not complete without it. Even if Miss Hart had not said one word to the police beforehand, if her response to being told that the police were here to look for two offenders was to point out the plaintiffs, she was conveying the imputations that they were the persons the police were looking for in relation to these allegations by the act of identifying them.

[141] As for saying "Not him, but him", Miss Hart's words were not identifying only one of the plaintiffs. Although Miss Hart appears from her words to be identifying Mr Thompson rather than Mr Webster, it is clear, from an examination of the factual issues and context, that she was identifying the two offenders, but explaining that Mr Thompson was the one (out of the two) who produced the fraudulent credit card.

[142] Suppose Miss Hart intended to refer only to Mr Thompson, and/or did not even know Mr Webster was with Mr Thompson. This still would not mean that she had not identified him because intention is irrelevant: Morgan v Odhams Ltd [1971] 1 WLR 1239 at 1242 per Lord Reid; Steele v Mirror Newspapers Ltd [1972] 2 NSWLR 348 at 351 per Moffitt P; Nixon v Slater & Gordon (2000) 175 ALR 15 at 29 per Merkel J. The test is not whether Miss Hart intended to refer to Mr Webster but whether the words would reasonably be understood by those to whom they were published, to refer to him or her: Jones v E. Hulton & Co [1909] 2 KB 444 at 480 per Farwell CJ, giving the well-known example of Mr Artemus Jones.

[143] It makes no difference whether a defendant takes every reasonable precaution to ensure that the words do not refer to the plaintiff if in fact they do: Lee v Wilson (1934) 51 CLR 276.

[144] Where the defamatory words are published about a class of persons to which the plaintiff belongs, the plaintiff must show that the words are directed to the plaintiff as an individual: Healy v Askin [1974] 1 NSWLR 436 at 439 per Lee J. In the present case, the evidence of Constable Turnbull that he was looking for two persons engaged in a joint criminal enterprise is sufficient to identify Mr Webster when Miss Hart identified the two plaintiffs in the Food Court. This is not a case where the allegation was that only one of a group of persons was engaging in the conduct complained of; each of the imputations applies to both of these plaintiffs.

[145] Counsel for the defendant referred briefly to theft in other stores and to the offenders being young men of Lebanese appearance as being an indication that this could not have been a reference to the plaintiffs. These are difficult issues of law concerning identification that require careful examination. It is unfortunate that I am doing this without the benefit of more helpful submissions from the defendant.

Can the plaintiffs be identified even though they are not "young" or "of Lebanese appearance"?

[146] The information provided to police in the COPS report refers to two young men (aged 18-20) of Lebanese appearance. While Mr Thompson looks comparatively young, neither he nor Mr Webster could be mistaken for youths. Both plaintiffs have very fair complexions and Anglo-Saxon features and could not be described as being of Lebanese appearance. Can it be said that because of this inconsistent or incorrect information, one or both of the plaintiffs was not identified as the persons about whom the imputations were conveyed?

[147] Although it has always been the law that it is not necessary to prove the actual truth of the identifying features, a recent decision in the New South Wales Court of Appeal has thrown some doubt on these principles. In Maxwell-Smith v Warren & Anor [2007] NSWCA 270 the defendants published a book of cartoons about two solicitors in a legal firm making allegations about their conduct as solicitors in proceedings where they acted for a builder who sued the defendants for unpaid building work. The cartoons showed the two solicitors in a series of nefarious acts, and a logo identifiable as their firm's logo was satirized. In a s 7A separate trial (which proceeded before a judge and not a jury) in which I was the trial judge, I held that the plaintiffs were identified as the two solicitors after evidence was led from other lawyers, family members and residents of the small country town in which the plaintiffs conducted their legal practice. They identified the plaintiffs from a number of references in the cartoons including not only the firm logo but, in the case of Mr Warren, the fact that he regularly broadcast a programme of legal information for the listeners to the regional ABC radio station that broadcast in the small country town where the plaintiffs ran their two-man practice. Mr Warren was portrayed in the cartoon sitting in the ABC radio station purporting to broadcast some remarks about the defendants. He was portrayed from the rear, so his face was hidden. However, his identity was apparent to a number of the persons who read the matter complained of because of his regular ABC radio broadcast.

[148] Basten JA held, in relation to publications about plaintiffs who were shown as cartoon characters but not named in the publication: "[18] In order to find an imputation in that regard in relation to the two individual plaintiffs, it would be necessary to identify the time at which these events were said to have occurred and their roles within the firm at that time.

[19] From time to time, the trial judge appears to have recognized this fact, but only when it impinged on the case presented for the defendants. Thus, the defence asserted that the imputations were true in a number of respects, including, as set out at [78]: "(a) the plaintiffs acted as solicitors for the defendants, and gave them advice, in relation to their contract with the builder.

(b) the plaintiffs assured the defendants that they would safeguard their legal interests in connection with the building work. …"

[23] … [T]he plaintiffs simply sought to rely upon the fact that they were "the two partners" in the firm, as at the date of publication, namely March 2004. It may be accepted that this was well-established. However, it is clear from the material in the publication, and from the evidence given at trial, that Mr Warren at least had not been a partner, or even an employee of the firm, for much of the period over which the conduct complained of had occurred. That might not matter if the proceedings were brought on behalf of the firm: it does matter in relation to the pleadings by the two plaintiffs as individuals. For the purposes of s 9 of the Defamation Act , they must establish that each of the imputations was conveyed "of" him as an individual. The publication itself makes clear that the events of which it speaks took place over at least seven years. The evidence given by Mr Warren was that the firm started using the logo in about May 2000. That was shortly after he and Mr White became the only partners of the firm.

[24] The evidence concerning identification was given in relation to the time at which each witness read the book…"

[149] Basten JA agreed with the appellants' submissions that to identify the plaintiffs not only was it necessary for the reader to know the logo of the firm, but the recipients would also have to know that the plaintiffs were the individuals who handled the building claim the subject of the cartoons (at [36]). His Honour rejected the respondent's submission that it was not necessary for the recipients to have this knowledge.

[150] The particulars of identification were that the plaintiffs were the two partners of a firm whose logo appeared in many cartoons in a book about the defendants' lawsuit. The book of cartoons showed a series of pictures of the two solicitors (portrayed as two vultures in one cartoon) under the firm's logo. One of them regularly gave legal talks on ABC Radio in Bega and was shown (from the rear) in the ABC's radio studio. Although one of the plaintiffs joined the firm later than the other, both acted in the saga of litigation that was depicted in the cartoons.

[151] Basten JA held that identification has to be provided by each plaintiff, not for the publication, but for each of "the separate imputations": "[40] In the present case if, despite the form of the pleading, there were in fact two individual claimants, there was a failure to consider the identification evidence in relation to the separate imputations, as they applied to each separately. Because, under the Defamation Act , each imputation defamatory of another person constitutes a separate cause of action, some of the imputations at least could not stand."

[152] Basten JA went on to state a further requirement, which is of particular significance in the present case, namely that the evidence for each imputation not only had to be published of and concerning the plaintiff, but also needed to be true in fact as well as known in the community sufficient to identify each of the plaintiffs with each of the imputations: "[45] This evidence would have served to identify Mr White as the person of whom many of the imputations were conveyed. However, it may be doubted whether such extrinsic facts would have been widely known, even in a small community where rumours no doubt circulated. On the other hand, the thrust of the identification evidence was based upon membership of the firm as opposed to involvement in the litigation which was the subject of the booklet. What was required, in relation to each plaintiff, was some consideration of the likely extent of the knowledge of extrinsic facts within the community, sufficient to identify one or other plaintiff with the particular imputations. This did not happen.

[46] Further, had it happened, it would have been likely that none of the imputations arising from the conduct in the course of the litigation would have been conveyed of the other plaintiff, Mr Warren. Certainly the identification witnesses did not suggest that they identified Mr Warren with the booklet except in so far as they knew him to be a partner in Sautelle White. In the circumstances, the award of equal damages to both plaintiffs suggests that the claims were dealt with, consistently with the evidence, as if the imputations were conveyed in relation to the firm."

[153] Basten JA also made observations concerning the need to prove the truth of the identification of each of the plaintiffs in relation to the defence of qualified privilege, noting (at [56]) that one of the plaintiffs had not become a member of the law firm until after the dispute had been resolved by the Consumer Claims Tribunal (although he in fact was the solicitor acting for the builder in the subsequent appeals to the Supreme and High Courts and in bankruptcy proceedings).

[154] The Court of Appeal's decision in Maxwell-Smith is directly on point in these proceedings and I must take into account the requirements Basten JA enunciates as to the need to prove the truth of the identifying features for each of the plaintiffs not for the publication but for the imputations (as opposed to the publication)

[155] Having noted this apparent change in relation to principles of identification, I now consider the following issues of law: (a) When and by whom must the identifying factors be given?

(b) Do the statements of fact identifying the plaintiffs have to be true, or can there be false statements about the plaintiffs?

(c) Where the defendant in fact intended to refer to the plaintiffs, does the plaintiff still have to prove that the words would reasonably be understood to refer to the plaintiffs?

(d) Do the plaintiffs have to prove identification for each of the imputations in the manner set out by Basten JA in Maxwell-Smith ?

When and by whom must the plaintiffs be identified?

[156] The basic principle is that a plaintiff's cause of action must arise at the time of the defendant's publication and that identification must occur then (Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 65) but a recognized exception to this rule occurs when the defendant identifies the plaintiff in a later publication: Hayward v Thompson [1982] 1 QB 47; Grundeman v Georgeson (Supreme Court of Queensland, Fryberg J, 19 May 1995, unreported).

[157] Where there is an invitation to identify the plaintiff, the plaintiff may be identified by having regard to the statements of a third party: Baltinos v Foreign Language Publications Pty Ltd at 98D. Thus, any statements made by other persons (such as Peter) capable of identifying the plaintiffs as the persons referred to in each of the imputations may be relied upon.

[158] On the facts of this case, however, the plaintiffs were identified by Miss Hart and other employees of the defendant, including the shop assistant who assisted Miss Hart and the unnamed store employees who reported to Miss Hart that the plaintiffs were in the Food Court.

[159] On any test, the plaintiffs were identified by the defendant's servants or agents, and in particular by Miss Hart, in relation to each of the publications.

Can the publication contain false statements about the plaintiffs?

[160] In Maxwell-Smith Basten JA considered it important that one of the plaintiffs had joined the firm after some of the events giving rise to the imputations had taken place; in other words, imputations could not be conveyed where the factual basis for identification is false.

[161] However, there are many cases in which courts have held that a plaintiff may be identified by a fact, which is erroneous. In Abbott v TCN Channel Nine Pty Ltd (1987) Aust Torts Reports 80-138 Hunt J gave an example of such a publication: "The barrister appearing for the accused before Smith J yesterday was incompetent" (where the barrister is unnamed). Hunt J held it was not necessary for that barrister to prove he was in fact the barrister appearing for the accused if reasonable persons could, from appropriate extrinsic facts pleaded, identify the plaintiff.

[162] Using this example from Hunt J's judgment, let me assume that this publication about an unnamed barrister was illustrated by a photograph of this barrister (face obscured) sitting in an Australian Broadcasting Corporation studio in the course of his regular broadcast. (There was a similar extrinsic fact for one of the plaintiffs in Maxwell-Smith, as one of the plaintiffs regularly broadcast a legal information session on ABC regional radio in the country town where he and his partner practiced.) Basten JA held, however, that this plaintiff could not be identified because he had in fact joined the firm some time after the conduct referred to in some (but not all) of the imputations. In other words, there was a requirement that the extrinsic facts were true.

[163] Suppose, however, this statement about a barrister being incompetent was illustrated by a photograph (from the rear, like the photograph of Mr Warren) of the barrister broadcasting the ABC's "Media Watch" programme. His identity would not be a mystery. However, this photograph would be impermissible to identify him in order to give rise to an action for defamation, if he was not also the incompetent barrister who appeared for the accused. This was in fact Basten JA's finding in relation to the plaintiff in Maxwell-Smith who claimed identification from, inter alia, a cartoon showing him sitting in the ABC's regional radio studios.

[164] Plaintiffs who bring actions for defamation are quite often not named, and what is done is to plead particulars of identification or to lead evidence at the trial of the kind that occurred here, namely evidence of how they were identified (I note that no objection was taken at the trial by the defendant to any failure by the plaintiff to plead particulars of identification). Plaintiffs generally have little difficulty establishing identification. This is because the test for identification is a simple one; the question is whether it is reasonable to identify the plaintiff from the evidence in the case.

[165] The question of what amounts to reasonable identification was considered further by Hunt J in Foord v John Fairfax & Sons Ltd (Supreme Court of NSW, 27 February 1987, unreported). The matter complained of asserted that a New South Wales judge had been photographed drinking beer at a party attended by drug dealers and made serious allegations of criminal conduct. There was no identification of the judge in the article, but nine months later the defendant published a rather striking photograph of the plaintiff (a judge) drinking beer at a party. Hunt J declined to strike out the plea of identification as unreasonable notwithstanding the lengthy time lapse. Again, the issue was not whether or not the judge had been actually drinking beer at the party; the issue was whether it was reasonable to identify him.

[166] Another example, with similar imputations to those pleaded in Maxwell-Smith, arises from an article about the incompetence of a Queensland District Court judge identified as "Judge Hall". There were two Judge Halls in the Queensland District Court, and one of them (Judge Robert Hall, of Southport Court) sued for defamation. Although the references throughout were to "Judge Hall", there was one reference to "Judge Clive Hall QC" and to events in Townsville Court, where Judge Robert Hall had been the judge some years before going to Southport District Court. The jury held that he was not identified and he appealed.

[167] In Hall v Queensland Newspapers Pty Ltd [2002] 1 Qd R 376 the Queensland Court of Appeal unanimously set aside a jury finding that the plaintiff was not identified. The court noted that the defendant's case had depended on the fact that there were three facts inconsistent with his being the plaintiff (the references "Southport", "QC" and "Clive") but rejected the argument that no reasonable readers would have identified the plaintiff because of these inconsistencies. The Court set aside the finding that the plaintiff was not identified as perverse. Leave to appeal to the High Court was refused.

[168] Maxwell-Smith appears to be in conflict with these decisions. If Maxwell-Smith is correct, then the fact that the plaintiffs are not 18 to 20 year old Lebanese youths could be a compelling reason why there is no identification, notwithstanding their identification on a series of occasions by Miss Hart and by the police themselves, because these statements in the first publication are factually wrong.

[169] Identification evidence can be inconsistent. This sometimes occurs in criminal trials, where there are differing accounts of the accused's appearance from witnesses. What the court must do is to weigh up the factors demonstrating identification of the plaintiff with other evidence that is inconsistent. It should not be necessary for a plaintiff to have to identify himself in relation to each imputation in each publication, nor should it be necessary for the plaintiff to establish the objective truth of the identifying features.

[170] In the present case, the overwhelming inference is that the plaintiffs, and only the plaintiffs, were the two persons identified to the police by the defendant's employees and in particular Miss Hart. In my view, contrary to Maxwell-Smith, it is irrelevant, for the purposes of all three publications, that the plaintiffs are not Lebanese youths aged 18-20, because it was reasonable for the police to identify them as the persons committing the fraud from other factual material they were given by Miss Hart. The police are busy people whose job is to apprehend criminals. They do not have time to stop and argue about whether a potential offender looks Lebanese, or youthful. The police acted on the identification provided by Miss Hart and it was reasonable for them to do so.

[171] As I have set out above, the test for identification is not whether the defendant intended to refer to the plaintiff but whether the words would be reasonably understood by those to whom they were published to refer to him or her: Jones v E Hulton & Co [1909] 2 KB 444 at 480. The intention of the defendant to refer to other people is irrelevant.

[172] Is it necessary, however, to deal with this inconsistency, if a defendant has pleaded intention to convey? Is the test different if the evidence is that the defendant intended to refer to the plaintiffs? Is it still necessary for the plaintiffs to prove that the words were reasonably understood, using the objective test?

[173] As Professor Brown notes in The Law of Defamation in Canada at [6.6], if the defendant did intend to refer to the plaintiff, it may be enough if the recipient understood it as referring to the plaintiff regardless of how unreasonable or extraordinary it may have been for the recipient to do so: Hayward v Thompson [1981] 3 WLR 470 at 479. Professor Brown agrees with this view, noting "there is no social policy to be served in relieving a defendant from responsibility for a defamatory result he actually intended to achieve" but noting academic opinions to the contrary by Duncan & Neill on Defamation (2nd ed. at [602]) and Gillooly, "The Law of Defamation in Australia and New Zealand" (1998) at p. 61.

[174] In Baltinos v Foreign Language Publications (1986) 6 NSWLR 85 at 91, Hunt J notes that Priestley JA in David Syme & Co v Lloyd [1984] 3 NSWLR 346 at 362 held that intention to refer to the plaintiff is not only relevant to identification but decisive of that issue "when upholding the admissibility upon this issue of an interrogatory and the answer thereto whereby the defendant had admitted an intention to refer to the plaintiff."

[175] There are two problems on the facts of this case. The first is that the defendant has not answered interrogatories or led evidence of intention to convey, but has asserted in written submissions that the defendant's employee Miss Hart believed in the truth of all of the imputations. Does this mean that she intended to convey the imputations? The defendant did not answer this question in oral or written submissions. If I am to accept that the defendant had such a belief, intention to refer to the plaintiffs must also be conceded.

[176] The second problem is that in Maxwell-Smith the defendants intended to refer to the plaintiffs; they sent the plaintiffs copies of the publication containing their names and their firm's name (copies given to third parties had these names excised but the firm's logo remained). They pleaded defences of truth, qualified privilege and comment to all imputations. When the matter was before me as the trial judge, the defendants (who were litigants in person) did not raise any of the identification issues upon which the Court of Appeal later set aside the judgment.

[177] It may well be that if a defendant intended to convey the imputation and/or believed in the truth of the imputations, identification should be conceded. There may be exceptions, such as where the complaint is about the act rather than the person or where the particulars are fanciful, but where an accusation of wrongdoing by "Artemus Jones" is alleged, it is hard to see how a defendant can deny knowing there is a real Artemus Jones and then go on to plead a defence of qualified privilege.

[178] One of the problems in the conduct of the case by the defendant is that the defendant vacillated between relying on inability to remember and denying intention to convey before finally asserting there was a belief in the truth of the imputation. I have dealt with this problem in the next section of my judgment.

[179] For the purposes of s 7A, I am satisfied that each of the three publications was made to officers of the New South Wales Police Service by Miss Hart. While there is a slight difference between the identity of the police officer and what was said in relation to the first publication, I am satisfied that the imputations were still capable of being conveyed.

[180] I note in passing that the defendant did not address me as to how many publications were made during the course of this incident in Ashfield Mall. For example, the defendant could have argued that the first publication was not complete until identification had occurred, hence the first and second publication were really one publication. Since the defendant has not done so, I accordingly have not dealt with any challenges to there being three separate publications.

[181] Accordingly, I am satisfied that Miss Hart published each of the three publications pleaded in the statement of claim. This brings me to the issue of whether the imputations are conveyed and defamatory.

[182] The imputations pleaded consist in each case of an act, namely attempting to obtain gift vouchers from K-mart by means of deception and a condition, namely that the plaintiffs were dishonest persons.

[183] In relation to the first matter complained of, if I had erred in finding that Miss Hart published information about Target (and that this information was published only by Peter) it should be noted that no imputation is pleaded in relation to Target.

[184] Each of these imputations is capable of arising from the first and second publications and the defendant did not submit that such imputations were incapable of being defamatory.

[185] As to the third publication, each of these imputations, which include an imputation in relation to the gift vouchers from Target, is conveyed and defamatory.

[187] The defendant has pleaded defences of qualified privilege at common law and pursuant to s 22 Defamation Act. I shall first consider the defence of qualified privilege at common law.

Qualified privilege at common law - Exceeding the privilege

[188] Each of the matters complained of was published by the defendant's servant or agent to police officers in the course of carrying out their duties. On the face of it, there is a substantial community of interest of the kind where a publisher has an interest which corresponds with that of the publishee. However, I should note the warning in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 at [54] that when determining whether the occasion is privileged the Court should examine "all the circumstances of the case". This includes: (a) the nature of the defamatory communication;

(c) the number of recipients and the nature of the interest they had in receiving it;

(d) the time, place and manner of, and reason for, each publication.

[189] After considering all of these matters, the Court then makes a judgment as to whether the publisher had a duty or interest that justified the making of the publication and whether the recipients or some of them had a duty to receive or interest in receiving it. In Bashford at [77] the High Court noted that the customer of a shopkeeper is entitled to give an opinion as to the quality of the shopkeeper's goods which will be published on an occasion of qualified privilege, but the case is different where the customer voluntarily defames the character or reputation of the shopkeeper to potential customers. At [192] Kirby J warned that the mere fact that in a general sense the publication of defamatory matters is included in the context of a discussion of a subject where there is the requisite reciprocity does not ensure there is protection. Were this so, many grievous wrongs to the reputation of individuals would be privileged against redress simply because of a tenuous, remote or contrived connection between the defamatory imputation and the context.

[190] In Lindholdt v Hyer [2008] NSWCA 264 at [125]-[135] McColl JA collected the authorities and at [167] noted that gratuitous imputations that unacceptably harmed the plaintiffs' reputation and honour did not fulfil any reciprocal duty and interest of the publishers and recipients in communicating information about the taxi industry.

[191] Subsequent to the decision in Lindholdt v Hyer, the Court of Appeal has handed down three decisions reviewing the law relating to qualified privilege: Aktas v Westpac Banking Corp Ltd [2009] NSWCA 9, Fraser v Holmes [2009] NSWCA 36 and Bennette v Cohen [2009] NSWCA 60.

[192] Of these, the most important is Aktas, and it clearly and succinctly sets out what the law is in relation to qualified privilege.

[193] The first and perhaps the most difficult question is whether the publication was made on an occasion protected by qualified privilege.

Was the matter complained of published on a protected occasion?

[194] In Hodgson v. Canadian Newspapers Co. (1998) 39 O.R. (3d) 235 (reversed in part on other grounds and affirmed: (2000) 49 O.R. (3d) 161) the defendant denied the words published bore the meanings pleaded and testified as to an honest belief as to the meanings he intended to convey. Lane J held that the defendant was liable for what the words meant, not what the defendant intended to believe he meant, and that as there was no honest belief in the meanings the court found were conveyed, malice could be found. The defendant's evidence of belief, such as it is, goes to a belief in what Miss Hart intended to say. Her evidence is she never intended to say anything about Mr Webster and she intended only to accuse Mr Thompson of conduct in K-mart. The Court of Appeal explained this in Evatt v Nationwide News Pty Ltd t/as Cumberland Newspapers [1999] NSWCA 99. The journalist denied that she intended to convey the imputations but said she believed in a different meaning. In such circumstances a defence of qualified privilege is not made out: at [38]-[44] per Giles JA. Although this case dealt solely with a s 22 defence, the requirements for belief in the imputations found to be conveyed as opposed to some other imputation, is also a factor (although not necessarily the decisive factor) in the common law defence. In the present case, Miss Hart does not identify the other imputations, or even what she said; she simply cannot remember.

[195] The problem with the defendant's submissions on the defence is that it must run to the publication. If the publication was not made at all, the defence does not arise. If I find all three publications were made, I need to consider each publication separately and each of the defences of common law qualified privilege separately. The defendant's submissions conflate all these issues.

[196] It has always been the law that the communication must be reasonable to the requirements of the occasion: Archer v Channel Seven Perth Pty Ltd [2002] WASC 160 at [71] per Hasluck J; Skalkos v Assaf [2002] NSWCA 14; Guise v Kouvelis (1947) 74 CLR 102. This is not a malice issue, although there is an overlap for the reasons explained by Mason P in Skalkos v Assaf at [29]. A privilege does not extend to defamatory expressions which are wholly unwarranted. The Court will take into account all relevant circumstances attending the publication.

[197] A privilege may be lost if the communication is not made for the reason that makes the occasion privileged, even though the person to whom the communication is otherwise appropriate. Canadian and US cases on this issue deal with criminal allegations made not for the protected purpose of instituting an inquiry but for the purposes of insulting the plaintiff (Sonier v. Breau (1912) 41 N.B.R. 177) or embarrassing him (Otten v. Schutt 15 Wis.2d 497, 113 N.W.2d 152 (1962)).

[198] In Aktas McClellan CJ at CL referred to Bashford at [39], noting that the defence focuses on the subject matter of the communication rather than the actual communication. McClellan CJ at CL noted (at [41]) that two questions arise: (i) whether the "occasion" of publication was one where the necessary reciprocity existed; and, (ii) whether the matter defaming the plaintiff is sufficiently "relevant" to the privileged occasion to attract the defence.

[199] As to "occasion", communications made to ensure the detection of crime are protected: Aktas at [43]. Does this mean, however, that all publications to the police are published on an occasion of qualified privilege? Miss Hart said "The only reason I called [the police] was because it became threatening"; if the transaction did not go through it was a waste of time to call the police (T-205).

[200] Applying the facts in this case the "occasion" for the protected publication was the conduct of the plaintiffs in K-mart. Was Miss Hart entitled to complain to the police that she felt Mr Thompson's manner when he returned the Seinfeld DVDs was rude or threatening? It is the job of the police to solve crimes, not to stand over customers who are unpleasant to store managers. Was Miss Hart entitled, then, to make up a fictitious and alarming story of a crime spree in the shopping mall in order to ensure the police attended promptly?

[201] The balancing exercise carried out by McClellan CJ at CL in Aktas at [70] shows the need to weigh up the damage done by the mistake and the good reasons why the communication "refer to drawer" should be protected. However, what if instead of writing "refer to drawer", the Bank wrote "the drawer is a thief"? This is the reason for the need for the second requirement, namely relevance.

[202] There must be a sufficient connection between the imputation and the privileged occasion. McClellan CJ at CL illustrates this clearly and simply by comparing these two endorsements (at [75]).

[203] In Bashford Kirby J said at [194], concerning the difficulties of determining whether the material was within the scope that: "In some instances the titillating character of an irrelevant defamatory imputation in an otherwise justifiable context will be plain."

[204] This is a very clear case of the imputations not being relevant to the occasion. This is not a case of mistake or inaccuracy. Miss Hart has carefully not told the police that these customers made her feel angry and threatened by their conduct over wanting to return a DVD. She has instead made up a story about a false credit card.

[205] The worst of the three publications is the third publication. The likelihood is that Miss Hart made these statements after being told that the plaintiffs had been allowed to go home, although Senior Constable Turnbull was not sure (T-138). By this time Miss Hart knew that the police had not found evidence, yet she persisted in saying the plaintiffs were guilty. Even if the first two publications were questions of mistaken identity, Miss Hart is not willing to admit she was wrong and, with wilful blindness, repeats the slander.

[206] I am not satisfied that any of the publications is published on an occasion protected by qualified privilege. If I have erred in so holding, I will now consider whether each of the publications, if published on a protected occasion, is tainted by malice, in which case the defence of qualified privilege fails.

[207] Malice is a state of mind (Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544 at 550 per Hunt J) at the time the publication takes place. It is the defendant's primary or predominant motive in publishing the remark that is determinative: Roberts v Bass (2002) 212 CLR 1; McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42; Ainsworth v Burden [2005] NSWCA 174.

[208] In Australia, express malice for the purpose of defeating a common law qualified privilege 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 30). It is not to "be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication" (Roberts v Bass at 31). This does not mean, however, that each of these matters is irrelevant. Anyone of these matters, if proved, "usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication. Even knowledge or a belief that the defamatory statement was false will not destroy the privilege, if the defendant was under a legal duty to make the communication. In such cases, the truth of the defamation is not a matter that concerns the defendant, and provides no ground for inferring that the publication was actuated by an improper motive. Thus, a police officer who is bound to report statements concerning other officers to a superior will not lose the protection of the privilege even though he or she knows or believes that the statement is false and defamatory unless the officer falsified the information. Conversely, even if the defendant believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion. That is because qualified privilege is, and can only be, destroyed by the existence of an improper motive that actuates the publication" (Roberts v Bass at 31).

[209] In Gross v Weston (2007) 69 NSWLR 279 at 297, Hunt A-JA explained these propositions as follows: "(i) Except where the defendant was under a legal duty to publish the matter complained of, the defendant's knowledge that it was false is ordinarily conclusive evidence that the publication was actuated by an improper motive.

(ii) Recklessness in the publication of the matter complained of does not establish knowledge of its falsity unless it amounts to wilful blindness on the part of the defendant which the law equates with knowledge.

(iii) Recklessness - when present with other evidence - may neverthe­less be relevant to whether the defendant had an improper motive which actuated the publication.

(iv) If a plaintiff's case rises no higher than evidence that the defendant did not have a positive belief in the truth of what he published, there is no evidence that its publication was actuated by an improper motive.

(v) The absence of a positive belief in the truth of what was published may nevertheless be relevant - with other evidence - to whether the defendant's improper motive actuated the publication, but it will not establish that fact by itself.

(vi) Where the plaintiff relies on the defendant's knowledge of the falsity of the matter complained of to establish an improper motive, it is unnecessary to identify that improper motive, as there can be no proper motive in those circumstances unless the defendant has a duty to publish the matter complained of."

[210] Proof of falsity is not proof of malice; the essence of the privilege is to protect a defendant who has made statements that are false and defamatory. However, knowledge of falsity, while not to be equated with malice, is generally conclusive evidence of an improper purpose which will defeat a qualified privilege: "If the defendant knew the statement was untrue when he or she made it, it is almost invariably conclusive evidence of malice. That is because a defendant who knowingly publishes false and defamatory material almost certainly has some improper motive for doing so, despite the inability of the plaintiff to identify the motive." ( Roberts v Bass at 32).

[211] Mere lack of belief in the truth of the communication is not equivalent to knowledge of the falsity. The High Court in Roberts v Bass noted at 35-36: "Further, mere lack of belief in the truth of the communication is not to be treated as if it was equivalent to knowledge of the falsity of the communication and therefore as almost conclusive proof of malice. The cases contain many statements to the effect that the privilege will be lost if the defendant did not honestly believe in the truth of a defamatory statement made on a privileged occasion. If those statements mean no more than that qualified privilege is lost when the defendant knows or believes the defamatory statement is false, they are in accord with settled principle and authority. But if they mean that the defendant loses the privilege unless he or she has a positive belief in the truth of the publication, it is not easy to reconcile them with basic principle. They are not reconcilable, for example, with the principle that recklessness as to the truth or falsity of a publication, short of wilful blindness, will not destroy an occasion of qualified privilege unless it appears that the recklessness is accompanied by some other state of mind. A person who is reckless as to whether the statement is true or false has no positive belief in the truth of the statement. Yet as the above statements of Lord Esher MR in Royal Aquarium and Clark show, recklessness, short of wilful blindness, is not enough to destroy the privilege. It must be accompanied by some other state of mind. Where that is so, the recklessness is evidence that the publication was actuated by the accompanying state of mind, be it anger, hatred, bias or unreasoning prejudice. As Jordan CJ pointed out in Mowlds v Fergusson : 'All that the Royal Aquarium Case decides is that if a defendant is proved to be affected by a particular prejudice and is proved to have made a defamatory statement on a privileged occasion, not to serve the legitimate purposes of the occasion but to indulge this prejudice, express malice is made out. In such a case, proof of the prejudice may serve both to explain how the defamatory statement came to be made, and also to justify the inference that it was made for the purpose of indulging the prejudice.'"

[212] Even if everything Miss Hart said in her evidence was accepted as truthful, the fact remains that the description of the plaintiffs as the perpetrators of fraud in a second shop is without basis. The fact that she had an argument with Mr Thompson which had made her upset was an important omission. The extreme language and serious allegations in each of the matters complained of are evidence of malice.

[213] In Roberts v Bass the High Court notes (at 34) that: "In exceptional cases, the sheer recklessness of the defendant in making the defamatory statement, may justify a finding of malice. In other cases, recklessness in combination with other factors may persuade the court that the publication was actuated by malice. In the law of qualified privilege, as in other areas of the law, the defendant's recklessness may be so gross as to constitute wilful blindness, which the law will treat as equivalent to knowledge. "When a person deliberately refrains from making inquiries because he prefers not to have the result, when he wilfully shuts his eyes for fear that he may learn the truth", said this Court in R v Crabbe , "he may for some purposes be treated as having the knowledge which he deliberately abstained from acquiring." In less extreme cases, recklessness, when present with other factors, may be cogent evidence that the defendant used the occasion for some improper motive. This is particularly so when the recklessness is associated with unreasoning prejudice on the part of the defendant."

[214] In Gross v Weston Hunt A-JA at 295 explained: "Recklessness, short of a wilful blindness, is not enough to destroy the defence of qualified privilege. In exceptional circumstances, the sheer recklessness of the defendant in making the defamatory statement may justify a finding of malice [improper motive]. The defendant's conduct may be so gross as to constitute wilful blindness, which the law will treat as equivalent to knowledge.

In less extreme cases, recklessness - when present with other factors - may be cogent evidence that the defendant used the occasion for some improper motive. This is particularly so when the recklessness is associated with unreasoning prejudice on the part of the defendant." (citations omitted)

[215] Whether a person is reckless will depend on the facts of the case, including the occasion and circumstances giving rise to the defamatory statements, the nature of the information and the basis upon which the claim of privilege is made.

[216] However, as malice is defined as an "improper purpose", recklessness does not meet the test unless it amounts to "wilful blindness" which is considered the equivalent of knowledge of falsity: Gross v Weston at 295 per Hunt A-JA, referring to the principles laid down in Roberts v Bass.

[217] Recklessness to the point of wilful blindness is clearly made out on the facts in this case. It is a very serious matter to identify the wrong person as the perpetrator of a crime, particularly where the persons accused had been in the store less than an hour before and there was CCTV footage of them given to police without a careful check of what the CCTV footage showed them doing. I am satisfied that even if I were to accept Miss Hart's evidence as truthful, only wilful blindness to the facts could explain her conduct.

[218] Malice must be proved by drawing inferences from proved facts (McKenzie v Mergen Holdings Pty Ltd at 51 per Clarke JA) and proof is not confined to the publication. Malice is a state of mind able to be inferred from the acts, conduct or expressions of the defendant or of persons whose acts, conduct and expressions are binding on the defendant. This means it is necessary to inquire into the state of mind of the defendant at the time of publication and to evaluate all those circumstances surrounding its publication, including events before and after the publication (Turner v MGM Pictures Ltd [1950] 1 All ER 449 at 455).

[219] However, a court will be slow to find evidence of malice because to do so is to restrict the protection offered by law to such occasions: Calwell v Ipec Australia Ltd (1975) 135 CLR 321; per Mahoney JA in King v McKenzie (1991) Aust Torts Reports 81-118 (imposing a Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336)).

[220] Evidence of the defendant's conduct and motivation may include evidence of hostility between the defendant and plaintiff, further repetition by the defendant, and whether the statements were gratuitously volunteered. The fact that an allegation is volunteered and not solicited may be considered with other evidence in supporting an inference that a defendant is motivated by malice.

[221] All of these factors are present here. As I have accepted the version of events given by the plaintiffs and Senior Constable Turnbull, and do not accept Miss Hart as a witness of credit, I accept the submission that she made a false allegation of criminal conduct out of ill-will. This is clear evidence of malice.

Qualified privilege pursuant to s 22 Defamation Act 1974 (NSW)

[222] These were publications made to individual officers of the NSW Police Service, and the basis upon which s 22 is a defence to such a publication was never explained to me. Mr Parker simply stated, on behalf of the defendant, that Miss Hart's conduct was "reasonable".

[223] Not only did Miss Hart fail to make any enquiries, she protested when the police let the plaintiffs go, saying she was sure they were the offenders. In her evidence she could not say what belief she had, or indeed anything of assistance to establish reasonableness, because she could not remember. None of the elements of this defence (as to which see Evatt, loc cit) are made out and both the defences must fail.

[224] Each of the plaintiffs brings a claim for false imprisonment.

[225] There are four issues to be determined in relation to the issue of false imprisonment: (a) Whether the defendant is vicariously liable for Miss Hart's actions;

(b) Whether false imprisonment is an intentional tort, or whether issues of liability and quantum fall to be considered under the Civil Liability Act 2002;

(c) Whether the physical restraint occurred at all;

(d) Whether the physical restraint was directly caused by Miss Hart, that is whether "but for" her urging the plaintiffs would have been confined ( Ruddock v Taylor (2003) 58 NSWLR 269 at [36] per Spigelman CJ; 222 CLR 612 at [11] per McHugh J), or whether the police officers exercised an independent discretion and Miss Hart did no more than provide information when requested as part of a police investigation;

(e) Quantum issues, such as whether to adjust the claims for damages for false imprisonment if damages are awarded for defamation so as to avoid double counting, I have considered this issue in the section of the judgment on quantum.

[226] There is no defence pleaded under the Civil Liability Act and the plaintiff raised the issue only in closing submissions, apparently in expectation that it would be raised on appeal by the defendant.

[227] Counsel for the plaintiff provided me with a copy of a decision of Robison DCJ in Bauer v NSW (District Court of New South Wales, Robison DCJ, 24 May 2005, unreported). This judgment was handed down before State of New South Wales v Ibbett (2006) 229 CLR 638, State of New South Wales v Ibbett (2005) 65 NSWLR 168 and Zorom Enterprises Pty Ltd (in liq) v Zabow (2007) 71 NSWLR 354.

[228] When the matter came before me on 6 February 2009 I enquired whether this issue had been considered further by the parties and drew attention to the decisions of the Court of Appeal in Ibbett and Zorom. These decisions made it clear that intentional torts are precluded from the operation of the Civil Liability Act.

[229] I have now received submissions from both the plaintiffs and the defendant agreeing that the Civil Liability Act does not apply to actions for false imprisonment. If it had done so, not only would there have been a cap on damages, but also exemplary damages would not have been available.

[230] The first issue is whether the defendant is vicariously liable for Miss Hart's actions in the false imprisonment claim.

[231] The issue of vicarious liability is an issue that was referred to only in passing by counsel for the defendant. The defendant only addressed the issue of vicarious liability in written submissions supplied after the hearing and submissions had concluded.

[232] The state of the pleading is as follows. Each of the plaintiffs has pleaded that Miss Kelly Hart was acting as the servant or agent of the defendant when she provided information to Mr Peter Meyer that they had attempted to buy gift vouchers in K-mart with possible stolen credit cards, when she identified each of the plaintiffs as the two male persons and said that they were "in the Centre" and when she identified them as persons who attempted to obtain $500.00 worth of gift vouchers and told the police that "they are definitely the men who attempted the fraud at K-mart."

[233] The defendant has admitted that it employed Kelly Hart but otherwise does not admit the allegations (paragraphs 2 and 3 of the Defence). In paragraph 5 of the Defence the defendant admits that "at the request of police officers" Miss Hart attended the Food Court and "identified two male persons to the police officers".

[234] The brief submissions supplied most recently by the defendant simply refer to Zorom. The defendant also submits that there is no vicarious liability for the defamatory publication. I have dealt with that submission elsewhere in my judgment.

[235] An employer is liable even for unauthorized acts if they are so connected with authorized acts as to be regarded as modes (although improper modes) of doing them: New South Wales v Lepore (2003) 212 CLR 511 at [42]. Whether an employer is vicariously liable is a question of fact in the circumstances of each case: Bugge v Brown (1919) 26 CLR 10. In broad terms, what the courts interpreting Lepore have done is to compare the wrongful conduct with the type of conduct the employee was engaged to perform and if there is a "sufficient connection" (Gleeson CJ at [40], [42], [52], [54], [67] and [74]), "sufficiently close connection" (Kirby J at [315] - [316], [319] - [320]) or a "close connection" (Gaudron J at [131] - [132], Gummow and Hayne JJ at [213]) the court may conclude the wrongful act was done in the course of employment, although in an "improper mode", to use Gleeson CJ's description at [2]. The decision in Lepore was referred to by Basten JA in Zorom at [23]. In Lepore at [50], Gleeson CJ considered the liability of an employer for an employee's "act of personal retribution" and "spontaneous act of retributive justice". His Honour noted (at [54]), that where acts of physical violence are concerned, the nature and seriousness of the criminal act may be relevant to a judgment as to whether it is to be regarded as a personal, independent act of the perpetrator or whether it is within the scope of employment.

[236] It was with these difficulties in mind that Gummow and Hayne JJ in Lepore carefully identified (at [239]) the two kinds of cases where liability would attach to an employer. The first of these is where the conduct of which complaint is made was done in the intended pursuit of the employer's interests or in the intended performance of the contract of employment, and secondly, where the conduct of which complaint is made was done "in the ostensible pursuit of the employer's business or the apparent execution of the authority which the employer held out the employee as having".

[237] It is this second basis which is relied upon by the plaintiff. K-mart viewed credit card fraud very seriously and had a procedure for dealing with it. A telephone call from not one but two stores in a shopping mall to advise of fraudulent credit card activities, in circumstances where one of them is asserted to be in a third store, would have (and did) brought the police running to the shopping mall.

[238] An example of the application of these principles to conduct in the ostensible pursuit of the employer's business occurred in Ryan v Ann St Holdings Pty Ltd [2006] QCA 217. The facts were that a security guard lured the plaintiff back into a club by asking him for assistance in getting someone to leave but when the plaintiff entered the club, the guard knocked him unconscious. In the course of upholding the verdict against the employer Williams JA noted that the connection between employment and the wrongful act was of critical importance because "where the opportunity for abuse becomes greater, so the risk of harm increases" (at [18]). Williams JA went on to note: "Essentially that means that where an employer clothes an employee with authority which, if abused, could lead to great harm, then (the risk being known to the employer) the easier it will be for a court to draw the conclusion that the wrongful act was done in the course of employment." (at [18])

[239] The evidence of all the defendant's witnesses summarised above sets out a system for reporting potential criminal conduct to the police. The defendant's stores have security cameras, security staff and special procedures for the purchase of items such as gift vouchers in order to prevent fraud and theft. It is an integral part of that system that the defendant's employees should report potential or actual dishonest conduct to the police, and it is clear from the evidence of Senior Constable Turnbull that such reports are accepted and processed without the inquiry that might otherwise be made if the informant was an unknown member of the public.

[240] The principles set out here have also been discussed by Jordan CJ in relation to defamation, in Bonette v Woolworths (loc cit).

[241] I am satisfied, on the facts of the case, that the defendant is vicariously liable for Miss Hart's conduct in relation to the false imprisonment claim as well as the defamation action.

[242] Because of the manner of presentation of the submissions for the defendant, it was not clear to me if this was a submission which the defendant was intending to make, but in view of the way the defendant's submissions have been put forward in a fairly brief and piecemeal fashion, I should set out my reasons for rejecting such a submission.

[243] In Sadler & State of Victoria v Madigan [1998] VSCA 53, the Victorian Court of Appeal explained that false imprisonment does not require total restraint of movement by the defendant of the plaintiff. It is enough to prove "'total restraint of movement' if there is a constraint upon the plaintiff's will so great as to induce him to submit to his deprivation of liberty (Watson v Marshall & Anor (1971) 124 CLR 621 at 626; Symes v Mahon [1922] SASR 447 per Murray CJ at 453; Myers Stores Ltd v Soo [1991] 2 VR 597 per O'Bryan J at 611, McDonald J at 625)" (at [28]). In Sadler the plaintiff was placed in an interview room pending interview and the Court of Appeal was of the view that there was no doubt he was subjected to "imprisonment" for the purpose of the tort of false imprisonment. The facts in that case show that a group of police officers were jointly responsible for the plaintiff's total confinement, which was clearly the result of the common design of the police officers in that each was active in promoting and causing the detention of the respondent (at [29], citing Myers Stores Ltd v Soo at 617 and 629-630).

[244] The plaintiffs were not under arrest. However, there was constraint upon their will so great as to induce them to submit to the deprivation of liberty, including leaving the Food Court to go to a delivery bay area for a further strip search. Having regard to these facts, I am satisfied that each of the plaintiffs was imprisoned for the purposes of the tort of false imprisonment. The question is, however, whether this physical restraint was caused by the defendant's servants or agents.

Whether the physical restraint was caused by the defendant's servants or agents

[245] The first point is whether, in the absence of restraint, the plaintiffs were imprisoned at all. In Myers Stores Ltd v Soo, police officers requested Mr Soo to accompany them to a security office where he was interviewed. In addition, Mr Soo agreed to attend the police station voluntarily for the purpose of a further interview. The trial judge found that the plaintiff was imprisoned from the moment he was spoken to by the police officer until he was allowed to leave because the police intentionally restrained his freedom of movement by actively escorting him and passively by making it known to him that they intended to ask him some questions and he had no option but to comply. This meant his freedom of movement had been totally restrained.

[246] In dismissing an argument that there was no imprisonment of the plaintiff, Murphy J, at 599-601, considered that Mr Soo was justified in concluding, as was the fact, that if he did not submit to do what was asked of him, he would have been compelled by force to do so.

[247] The next question is whether the physical restraint was caused by the police officers or by servants or agents of the defendant for whom the defendant is vicariously liable.

[248] In Ruddock v Taylor [2003] NSWCA 262 Spigelman CJ explained the correct interpretation of Myers Stores Limited v Soo [1991] 2 VR 597 as follows: " [29] In Myers Stores Ltd v Soo at 629, referred to with approval in Spautz at 26 and Cubillo at [250], McDonald J said: "To be liable for false imprisonment it must be the act of the defendant or his agent that imprisons the plaintiff or the defendant must be active in promoting and causing the imprisonment; Aitken v Bedwell (1827) Mood. & M 68; 173 ER 1084; Warner v Riddiford (1858) 4 CBNS 180; 140 ER 1052 and Halsbury , 4th ed, vol. 46, para 1326, para 1327. The act of imprisoning a person either personally or by an agent or by being active in promoting and causing the imprisonment thereby is the proximate cause of the imprisonment and is distinguished from the mere giving of information to a police officer or the mere signing of a charge sheet."

[30] The terminology of "proximate cause" is sometimes used in other areas of the law, e.g. insurance, to mean the "dominant" or "effective" or "direct" cause. (See e.g. Halsbury's Laws of England (4th ed) Vol 25, para 175.) The applicable terminology with respect to the tort of false imprisonment is "direct cause". (The Australian texts are unanimous on the need for directness. See Balkin and Davis, Law of Torts (2nd ed) Butterworths, 1996, p 59; Fleming, The Law of Torts (9th ed) LBC Information Services, 1998, p 36; Trindade and Cane, The Law of Torts in Australia (3rd ed) OUP, 1999, p 50.) There must be "direct violation of the protection which the law throws round the person" ( Williams v Milotin (1957) 97 CLR 465 at 474).

[31] In Aitken v Bedwell (1827) Mood & M 68; 173 ER 1084, which McDonald J applied in Myer Stores Ltd v Soo , a captain of a merchant ship in a foreign port had a seaman flogged and imprisoned by the port authorities. Lord Tenderden CJ's full charge to the jury was: "The plaintiff contends that what was done on shore was the act of the captain, the defendant says it was the act of the Russian authorities only. The question for you is, Whether the punishment inflicted on shore was done by the constituted authorities, on the mere complaint of the defendant, or whether the defendant was the actor and immediate promoter of it? If you think the defendant merely preferred his complaint, and left the constituted authorities to act as they thought fit, the defendant is entitled to your verdict; if, on the other hand, you think he did more, and was active in promoting and causing the punishment to be inflated, then he is answerable in this form of action." (Emphasis added)

[32] The italicised words indicate that the Lord Chief Justice's concluding reference to "promoting and causing" should be understood in terms of whether the trespass by way of battery and imprisonment was, as a matter of substance, the act of the captain. In Myers Stores v Soo , O'Bryan J at 616, referred to the formulation "actor and immediate promoter" from Aitken v Bedwell and posed the issue in terms of whether "an act of [the instigator] caused the unlawful imprisonment". In the event his Honour concluded that on the facts of that case the instigator participated with certain police officers in "a common design to detain" the plaintiff.

[33] It is not the case that an act indicating a wish or expectation that another should be imprisoned establishes liability for the tort. There will be such liability if the person who ultimately confines the plaintiff would not have acted at all but for the urging on the part of another. (See e.g. Dickenson v Waters Ltd (1931) 31 SR (NSW) 593 at 595-596; Pike v Waldrum and Peninsular & Oriental Steam Navigation Co [1952] 1 Lloyd's Rep 431 at 454-455.) It is otherwise if the ultimate actor exercises an independent discretion. (See e.g. Davidson v Chief Constable of North Wales [1994] 2 All ER 59.) See generally Clerk & Lindsell on Torts (17th ed) Sweet & Maxwell, 1995 para [12-23] to para [12-32]. On the distinction between direct and consequential injury see Hutchins v Maughan [1947] VLR 131 at 133; Platt v Nutt (1988) 12 NSWLR 231 at 244-246.

[34] The element of directness - the sufficiency of the nexus between the Defendant's act and the imprisonment - is satisfied, in the present case. The detention was, as her Honour found, "an inevitable consequence". The issue is whether the element of intention has been satisfied.

[35] In this line of case law, the person who instigated the sequence of events which culminates in an imprisonment, has generally actively sought that result. In that way, the person manifested an intention that there be an imprisonment. In the present case, her Honour's finding that detention was the "inevitable consequence" of the Ministerial decision - or at least of its "communication" to the relevant officer - does not encompass a finding that the Minister intended the particular result of imprisonment.

[36] The tort of trespass requires a wilful or negligent act. ( Stanley v Powell [1891] 1 QB 86; Williams v Milotin at 474; McHale v Watson (1964) 111 CLR 384 at 388). The relevant intention for false imprisonment is the intention to detain. ( Cowell v Corrective Services Commission at 743E).

[37] There can be no doubt that each Minister had an intention that the Respondent be removed from Australia. That was the very point of the decision to cancel the visa and whether or not that should occur was the substance of the departmental paper before each Minister. Detention was an inevitable step brought about by the self-executing operation of the statute, of which the Ministers must have been aware.

[38] American case law has developed a "doctrine of substantial certainty" to the effect that knowledge of a high level of certainty is sufficient to amount to intent for purposes of the tort of trespass. (See Trindade and Cane p 30 - p 36; Francis A Trindade, "The Modern Tort of False Imprisonment" in Nicholas Mullaney (ed), Torts in the Nineties Law Book Co, 1997 p 235 - p 236; William Prosser, Law of Torts (4th ed) West Publishing Co, 1971 p 31 - p 32). In the present case the questions of degree that may arise in applying a doctrine of substantial certainty are not present. Here detention was certain.

[39] The position is similar to the well known case where a person threw a lighted squib into a market, where it was tossed from one stall to another in an automatic reflex action by two stallholders, Messrs Willis and Ryal. The leading judgment said: "That the natural and probable consequences of the act done by the defendant was injury to somebody and therefore the act was illegal at common law ... Being therefore unlawful, the defendant was liable to answer for the consequences, be the injury mediate or immediate ... I do not think to maintain trespass, it is necessary that the defendant should personally touch the plaintiff; if he does it by a means it is sufficient ... He is the person who, in the present case, gave the mischievous faculty to the squib. That mischievous faculty remained in it till the explosion. No new power of doing mischief was communicated to it by Willis or Ryal". ( Scott v Shepherd (1773) 2 Wm BI 892; 96 ER 525.)"

[249] The High Court in Ruddock v Taylor (2005) HCA 48, upholding an appeal against the Court of Appeal's judgment, on issues unrelated to the law of false imprisonment, expressed similar views. In particular, McHugh J at [152]ff, referred to cases generally referred to as "police informant cases" setting out the circumstances in which a person who gives information to police that leads to a wrongful arrest may be liable to the plaintiff for false imprisonment. While McHugh J went on to note that this liability remained open even though the police officer may be immune from liability, this is a helpful discussion of the liability of the informant who brings about the arrest by doing more than simply provide information. This is not dissimilar to the principle for bringing actions for malicious prosecutions against persons who, in the exceptional circumstances enunciated by the House of Lords in Martin v Watson [1996] AC 74 do not merely provide information but are the sole motivating force putting the prosecution in train.

[250] McHugh J explained these principles at [152] and [153] as follows: "[152] Similar conclusions are also demonstrated by the long line of "police informant" cases. These concern the circumstances in which a person, who gives information to police that leads to a wrongful arrest, will be liable to the person falsely imprisoned for false imprisonment. The liability of the informant remains open although the police officers concerned may be immune from liability under statutory provisions authorising them to arrest persons on the basis of reasonable suspicion.

[153] A clear example of this differentiation is Davidson v Chief Constable of North Wales . The plaintiff in that case was arrested by police on suspicion of theft after police received information from a store "detective". The plaintiff had not committed any offence. She subsequently brought an action for false imprisonment against the police and the employers of the store detective. The English Court of Appeal held that the police involved in the arrest and imprisonment were not liable. They were protected by s 24(6) of the Police and Criminal Evidence Act 1984 (UK). However, the Court considered separately the liability of the store detective. The outcome ultimately turned on factual questions concerning causation. However, the Court of Appeal was not in doubt that it was necessary to consider the distinct liability of those who initiated the steps leading to imprisonment and those who effected it. This approach is obviously correct in principle. The submission of the appellants, that there is a general principle of law that whoever causes imprisonment cannot be liable if the conduct of the detaining officer is authorised by statute, must be rejected as inconsistent with authority and legal principle."

[251] In Noye v Robbins; Noye v Crimmins [2007] WASC 98 the trial judge dismissed a claim for malicious prosecution against an informant who falsely brought a claim against the plaintiff out of malice. This is because there is an important distinction between the making of an allegation of serious wrongdoing against an individual and actually setting the law in motion (at [727]) by instituting a formal prosecution against that person. The act of making an allegation may give rise to an action in defamation (to which defences of absolute or qualified privilege can be pleaded). However, malicious prosecution involves the need for proof of absence of reasonable and probable cause and actual malice. The trial judge held that as the plaintiff did not set the law in motion by instituting a prosecution, the claim failed.

[252] Can it be said that this is the situation in relation to false imprisonment? If one person cries out "stop thief" and a well-meaning passer-by or a police officer grabs and holds another person, can the person whose false words were the sole reason for apprehension, evade liability because he/she did not actually deprive anyone of liberty?

[253] The following principles can be distilled from the cases concerning police informants: (a) The precise information alleged to have been provided (and the acts of imprisonment which follow) must be distilled with precision in order to determine if there was a causative element between them. The need to identify the true cause of the detention is explained in Grinham v Willey (1859) 4H&N 496 at 498; Austin v Dowling (1870) LR 5 CP 534 at 538; Davidson v Chief Constable of North Wales [1994] 2 All ER 597 at 601-5.

(b) A person who gives the information to the police officer is not liable for the false imprisonment if the latter acts on his/her own initiative in arresting the person accused of the crime: Sewell v The National Telephone Co Ltd [1907] 1 KB 557 at 559-60; Roberts v Buster's Auto owing Service Ltd (1976) 70 DLR (3d) 716 at 722; Grinham v Willey (1859) 28 LJ Ex 242; Brown, Law of Defamation in Canada ", 2nd ed, 29.2(2)(c) fn 46.

[254] The question is whether the complainant desires to obtain a judicial determination and "for that purpose" (Sewell at 550-60) states facts to the police officer.

[255] The information provided to the police, which I have found comes from Miss Hart, was of a serious and alarming nature. This was a report of a serious and systematic fraud. There could be no question of the police doing anything other than investigate. The fact that a complaint of this nature was made by not one, but two large retail outlets, and that when police arrived one of the alleged offenders was in a third large retail outlet in the same shopping mall, meant that the police had to act quickly.

[256] As was the case in Martin v Watson, the police were left with no alternative other than to stop and search the plaintiffs and, for that matter, arrest them and charge them. Senior Constable Turnbull clearly felt he had enough information to charge the plaintiffs and given the willing co-operation of Miss Hart, the videotape CCTV which clearly showed the plaintiffs in the store, it is surprising that they were not charged. What probably saved the plaintiffs from the humiliation of being charged and taken to the police station was the triumph of police experience and common sense when confronted, not with two Lebanese youths, but with two respectable middle-aged men with no prior criminal records, a valid credit card, a story of showing photo ID for the refund and a long employment history, including, in the case of Mr Thompson (the alleged principal in the fraudulent transaction) as a long term Myer employee. The notation in the COPS report that Miss Hart was sure that these were the men who perpetrated credit card fraud not only in the store for which she worked but also at Target, is conduct going far beyond the mere setting in process of a criminal investigation by furnishing information to the police. She is telling the police, not that they should make enquiries, but that they are the guilty persons.

[257] The active role played by Miss Hart throughout the whole of this transaction, including her insistence upon the plaintiffs' guilt, amounts to conduct going well beyond providing information to the police to obtain a judicial determination.

[258] Looking at the timing of events, her active role throughout and her insistence upon the plaintiffs' guilt, she must be seen as the motivating force behind the police enquiries. Accordingly, on the unusual facts of the case, Miss Hart was the person responsible for the plaintiffs being falsely imprisoned. The fact that the police were doing their duty in searching the plaintiffs and in temporarily depriving them of their liberty does not absolve the defendant from liability. The behaviour of the police in these circumstances was reasonable; Miss Hart's behaviour was not.

[259] The plaintiffs have made out a case for false imprisonment.

[260] As the plaintiffs have succeeded in relation to both the defamation and false imprisonment claims, I shall now proceed to determine the issue of damages.

[261] Karl Webster had a difficult childhood, according to Dr Michael S Armstrong, who had been his treating psychiatrist since 12 September 2000, when Mr Webster sought his assistance for anxiety and obsessive thoughts. Dr Armstrong was not the first psychiatrist to see Mr Webster; he had previously consulted other psychiatrists, including Dr K Vaughan and Dr Khan.

[262] Mr Webster was the second of three sons who grew up in East Balmain at a time when it was, as Dr Armstrong notes in his report of 22 January 2006 "a much rougher place than it is now". Mr Webster's father drank and physically abused Mr Webster as well as his mother. All three children had serious problems. The eldest brother died at 28 from a combination of heroin and alcohol and the youngest brother suffered schizophrenia. After years of abuse, Mr Webster's father deserted the family and Mr Webster, who had always been close to his mother, took on the major responsibility in looking after her welfare as her physical health was poor.

[263] Dr Armstrong describes Mr Webster as "intellectually exceptionally gifted" but notes that his academic performance deteriorated rapidly after Mr Webster discovered that he was gay during his teenage years, and began drinking and taking drugs. He managed to complete the HSC in 1977 and obtained a position as a junior clerk at the Australian Law Reform Commission for about two years. He worked in theatre as a lighting technician between 1980 and 1989 (apart from a year when he worked as a workers compensation clerk at National Employers' Mutual Limited).

[264] Between 1989 and 1995 he worked as a real estate sales agent for Crystal Realty Newtown and from 1995 to 1999 as a sales supervisor at Val Morgan Cinema Advertising. In 1999 his mother was diagnosed with cancer. Although Mr Webster's working life had been fairly consistent up to that point, he stopped work and received a CentreLink benefit to care for his mother, working part-time as an usher at the Randwick Ritz Cinema.

[265] Between 2001 and 2003 Mr Webster worked as a fragrance salesman for Trimex Pty Limited, placed in Grace Bros store in Sydney. In May 2003 he commenced employment as a Community Outreach Worker/Co-ordinator at the Bobby Goldsmith Foundation Incorporated. While working there, he suffered a serious back injury on 31 December 2003, whilst lifting a heavy patient and he remained off work for a number of months up until July 2004 because of his back problem.

[266] Early in Mr Webster's adult life, he entered into the 12 Step Program set up by Alcoholics Anonymous and as his psychiatrist, Dr Armstrong, notes in reports, he remained completely abstinent from speed and alcohol thereafter.

[267] Dr Armstrong records (report, 9 April 2008), that following the incident at Ashfield Mall Mr Webster sought an urgent appointment with him and came to Dr Armstrong's office on Friday 29 October in an agitated state, saying he had taken the day off work because he was "overwhelmed by the whole thing". Dr Armstrong attempted to treat him using desensitisation of the incident.

[268] At Mr Webster's next appointment on 17 November he told Dr Armstrong that he was "just out of it with stress" and was particularly distressed because "the police wouldn't ring back, they won't call us … so every day I thought I was going to get locked up".

[269] The Bobby Goldsmith organisation was going through a turbulent period at this time, which eventually culminated in the dismissal of the previous Chief Executive Officer. These ongoing problems appeared much worse to Mr Webster following the incident, as did his medical condition of irritable bowel syndrome.

[270] At the next session on 25 November 2004, Mr Webster told Dr Armstrong of a panic attack while shopping at Bondi Junction.

[271] Dr Armstrong reports that during 2005 Mr Webster ended his relationship with Mr Thompson in April. In May he took two weeks leave but after coming home he had gone to K-mart and the anxiety was worse. At the end of September 2005, Mr Webster said his back pain had returned and he had advised that an operation might be necessary.

[272] Two days before the first anniversary of the Ashfield Mall incident, Mr Webster had problems and obtained a medical certificate to go off work on sick leave from 27 October to 4 November because of his anxiety state.

[273] Mr Webster reported that this caused problems at work and that he was having increasing problems at work because he could not concentrate. At a session on 17 November Mr Webster said that as well as work stresses, he was having to cope with back pain, problems with his former partner, Mr Thompson, and the Ashfield Mall incident. On 20 December 2005 Mr Webster told Dr Armstrong that because of his stress, his general practitioner had put in a WorkCover claim and he had been off work since Friday, 16 December. His back operation was scheduled for March 2006.

[274] On 9 January 2006, WorkCover accepted Mr Webster's claim. He was referred to a clinical psychologist for further assistance. His consultation of the psychologist related to his problems at work, not the problems at Ashfield Mall. Reading the reports of Dr Armstrong and Miss Shepherd, the clinical psychologist, it was the work problems that were the major problem for him. He was due to return to work after his operation on 21 August but did not do so.

[275] At about the time of the second anniversary of the Ashfield Mall incident, he again had further discussion with Dr Armstrong about the Ashfield Mall problems. He had had to take two breaks from work because of it, and his employers had been unsympathetic.

[276] In 2007 the plaintiff's problems worsened. His income had dropped to $550 per fortnight and he was no longer able to stay in the small apartment he had been renting. He was having significant problems at work and was still suffering from some back pain. He was offered a job in July 2007, which consisted of presenting products in a store, a job similar to the position he had held for Trimex Pty Limited in 2001-2003, when he had worked in Grace Bros.

[277] However, returning to a supermarket to do shopping was still a problem for him. On 10 September 2007 he commenced part-time employment with Telstra Corporation Limited as a sales representative. He remained in that position until 10 June 2008.

[278] The defendant attacks Mr Webster's claim for general damages as well as for past and future economic loss on two bases. Firstly, relying upon the report of Dr Robert D Lewin of 10 December 2008, the defendant submits that as far as Mr Webster's psychiatric problems were concerned, "the storm has passed" (Dr Lewin, page 10) and that his feelings of anger, outrage and humiliation were "within the normal range of human responses" (page 10).

[279] The extreme stresses imposed on Mr Webster as a consequence of his employment circumstances between December 2005 and March 2006 are the real cause of any problems he suffers (written submissions, paragraph 21). The stress claim made by Mr Webster to his employer related to his complaints about his fellow employees, and there is no evidence in the material linking that period to the events of 25 October 2004. In particular, the events of 25 October 2004 did not cause the period of incapacity between December 2005 and March 2006 or indeed any other period taken off work by reason of stress.

[280] Further, the plaintiff receives WorkCover payment attributable to his very serious spinal surgery. The treating specialist regards Mr Webster as totally incapacitated for all forms of employment. Mr Webster himself does not regard himself as capable of resuming work pending medical clearance.

[281] In his report of 29 December 2008 Dr Armstrong has carefully answered a number of the points raised by Dr Lewin. He draws attention to the need to work on his pre-existing fear of supermarkets and of false accusations (although of pederasty) which could be made by people in supermarkets. He cites ten occasions during sessions between October 2000 and approximately one month before the incident at Ashfield Mall when Mr Webster sought advice and expressed concerns about being anxious while in supermarkets. Dr Armstrong compares this to Mr Webster's anxiety and obsessive symptoms after the Ashfield Mall incident, on pages 3 and 4 of his report and notes that anger, outrage and humiliation more than four years after the events in question is indicative of psychopathology (page 5).

[282] He cites a number of events underlying these unresolved emotions which he notes are not discussed in Dr Lewin's report or given sufficient weight.

[283] These include the failure of the police to return calls and resolve the matter for ten days. He notes that Dr Lewin failed to identify specific detail of Mr Webster's pre-existing phobia of supermarkets and was therefore unable to assess fundamental changes that took place to this as a result of the Ashfield Mall incident.

[284] Whereas previously that fear had fluctuated considerably and at times been at low levels or virtually absent, after the incident, his fear of supermarket and shopping centres became "severely and persistently present" and had only slowly dwindled (page 6).

[285] The phobia was now quite different in character and related in particular to shops similar to K-mart, which is indicative of a specific phobia.

[286] Dr Armstrong has the advantage not only of being Mr Webster's treating doctor but also of having seen the plaintiff on very many occasions between 2000 and the date of trial. His findings are corroborated by the two reports of Dr Thomas Oldtree Clark, dated 19 August 2005 and April 3, 2008. Dr Clark, reporting before the date of the plaintiff's work problems (which the parties agreed commenced in December 2005 - see the date in paragraph 21) notes that the plaintiff's boss is "supportive" as are his peers (page 3) and diagnoses a rage reaction requiring counselling and psychiatry for the next five years. He considered the plaintiff was able to work but needed to be aware of his anger and the need to control it. This means Mr Webster's absences from work and subsequent departure from the workforce are not related to this incident.

[287] In his subsequent report Dr Armstrong notes that the plaintiff "eventually left the Bobby Goldsmith Foundation, unable to cope with the management as he had done previously". He notes that Mr Webster had "a persistent back pain and is physically unsuitable for the work, always at risk of causing an exacerbation of his back problem?

[288] He was able to work for three days a week at Telstra.

[289] Both Mr Webster's and the defendant's doctors speak in glowing terms of Mr Webster's character. Dr Lewin describes Mr Webster as "an intelligent and principled man who has evidently worked hard to overcome these difficulties". There is no suggestion in Dr Lewin's report that Mr Webster is exaggerating or pretending. Dr Lewin considers Mr Webster has recovered, not that he is exaggerating or lying about his symptoms.

[290] This brings me to a consideration of the evidence concerning the plaintiff's back injury. Mr Webster frankly conceded in cross-examination that the serious injury he suffered to his back prior to this incident had deteriorated to the point that he was unable to work and is receiving a WorkCover payment attributable to his very serious spinal surgery. His treating doctor is of the view that he is totally incapacitated for all forms of employment and Mr Webster in his evidence said he was not able to work.

[291] In view of the overlap between heads of damage I propose to deal with the claims for general damages and aggravated compensatory damages for defamation and false imprisonment at the same time and in the same way as was done in Photi v Target [2007] NSWDC 265, this being the approach that the parties agreed to.

[292] As to the correct approach to general and aggravated compensatory damages for false imprisonment, I gratefully borrow the careful analysis of the correct approach to the relevant principles set out by Bergin J in Vignoli v Sydney Harbour Casino [1999] NSWSC 1113 at [87] - [106]. I have set these out in more detail below.

[293] As to the correct approach to general and aggravated compensatory damages for defamation, I accept and follow the analysis set out by Hayne J in Rogers v Nationwide News Pty Ltd (2003 - 4) 216 CLR 327. I have set this out in more detail below.

[294] As to the overlap between defamation and false imprisonment, I shall, with the consent of the parties, adopt the same approach that I took in Photi at [167] - [178].

[295] In assessing damages for defamation in this action, as in Photi, I must give very great weight to the very limited nature of the publication. These were slanders published to one or more police officers. However, they are a very special kind of publication, in that the natural and probable consequence of making an allegation of criminal conduct to the police is that it will be investigated and records kept. In addition, the imputations are of the utmost seriousness, especially in the case of Mr Thompson, who as an employee in the same department store group could expect that such an allegation would damage if not destroy his professional reputation. He in fact gave evidence of having concerns and fears to this effect.

[296] While the plaintiffs suffered humiliation and inconvenience as a result of the deprivation of liberty, this was of short duration and, thanks to the conduct of the police officers, no more unpleasant than such an occasion would have to be. The real difficulty for the plaintiffs was firstly that they were accused of criminal conduct in a shopping centre (which touched off fears and concerns they both already had) and secondly that they were accused of criminal conduct of a very serious nature, namely credit card fraud in two stores.

[297] All of the doctors who examined the plaintiffs portray their responses to these events as being a direct result of what occurred. None of the doctors suggest that the responses of the plaintiffs were exaggerated or feigned.

[298] In the case of Mr Thompson, the impact went far beyond hurt to feelings. His level of distress is of an exceptional nature. His serious and repeated suicide attempts and suicidal ideation, his loss of employment after many years as a popular and highly respected Myer store staff member and the ongoing difficulties he has had, despite determined attempts to return to the workforce, are evidence of injury of a most serious kind. When approaching general damages for defamation and using analogies from personal injury in the manner described by Hayne J, I should use analogies of the kind of injuries that would produce similar results.

[299] The correct approach to general damages when aggravated compensatory damages are awarded is to award damages at the top of the range. I shall deal with the issue of aggravated compensatory damages further below.

[300] Each of the plaintiffs also claims for out-of-pocket expenses and for past and future economic loss. It is important not to award general damages for items that relate to damages awarded under these headings so I shall set out the claim Mr Webster makes in this regard.

[301] Mr Webster makes a limited claim for past economic loss:

1. Past Economic Loss 17/11/2004 - 19/11/2004 $267.00 ITR 30/6/04 3 days @ $445 net per week 27/10/2005 - 4/11/2005 $623.00 ITR 30/6/04 7 days @ $445.00 net per week 19/12/2005 - 16/3/2006 $5,562.50 ITR 30/6/04 12.5 weeks @ $445.00 net per week Total claim for Past Economic Loss $6,452.50
2. Future Economic Loss The Plaintiff claims a 'buffer' by way of a general diminution of his earning capacity by reason of ongoing panic attacks, avoidant behaviour and inability to work in a public retail situation because of a persistently higher level of anxiety Subject to oral submissions Reference:

1. Amended Statement of Particulars, filed 20 August 2008 2. Plaintiff's Chronology (Exhibit B1)

[302] Mr Webster claims for consultations with: Dr Armstrong $2,081.40 128.75 Dr Chung $100.00 Dr Rhodes $89.40 Dr Workman $211.00 $148.70 Total $2,759.25

[303] Effectively, apart from the two days that Mr Webster was absent in November, I am of the view that the other claims for past economic loss are unrelated to the ongoing problems Mr Webster had with his employment. The psychiatric assistance he was receiving for his problems was of long standing. While I accept that he found these events deeply distressing, I am satisfied that the programme he already had in place for dealing with stress in his daily life was able to cushion the blow caused by the conduct of Miss Hart. Accordingly I only propose to award the figure of $267 for his absence in November 2004.

[304] Although Mr Webster made a general claim for out of pocket expenses, I am satisfied that his visits to his doctors would have been made in any event as part of his ongoing treatment for pre-existing problems. I do not propose to award any out-of-pocket expenses. That is not to diminish the very real impact that this incident had on Mr Webster; however, his feelings were those of anger and upset, not suicidal ideation or other responses requiring medical assessment or treatment.

[305] Mr Thompson's claim for general damages, past and future economic loss and out-of-pocket expenses, is of a very substantial nature.

[306] Mr Thompson, who was born in 1973, completed his HSC in 1991 and after a year of studying at the University of Tasmania and some casual work, commenced employment in 1995 for a Myer Store in the Coles-Myer Company Group.

[307] In the almost 10 years that he worked at Myer, he rose to a senior position as team leader, first in cosmetics and fragrances, where approximately 100 people were under his supervision, and, at the time of the Ashfield Mall incident, in fashion accessories, where about 60 people reported to him. It was put to him in cross-examination that he was held in high regard and he agreed that this was the case.

[308] Notwithstanding this long and stable work history, Mr Thompson's early life had not been easy. As Dr Jacobson notes in his report of 22 January 2009, Mr Thompson's background of childhood physical abuse meant that he had a vulnerability to any alleged humiliating and aggressive incident.

[309] Unlike Mr Webster, Mr Thompson enjoyed extremely good physical health and in fact had gone to the Ashfield Mall for the purpose of purchasing an "Ab King Pro".

[310] Mr Thompson consulted his general practitioner on 29 October 2005. He obtained a medical certificate for the period 29 October to 4 December 2005 but did not remain away from work; instead he went to work because of the pre-Christmas rush at Myer. Over this period he was, however, consulting his general practitioner (on 3 November), St Vincent's Mental Health Clinic (on 8, 11 and 17 November) and he continued to consult his general practitioner throughout November, December 2005 and January, February and March 2006. He had increasing problems and took two days off in April. He told Dr Clark that although he was taking an anti-depressant, this did little to settle him and after taking a month's sick leave, he left Myer. He felt he was becoming paranoid at work and over-reacted when a Myer internal investigator made what was apparently an innocent enquiry of him.

[311] The incident was devastating to the Mr Thompson because as a long-term Myer employee he had a great sense of loyalty to the company, as Dr Clark notes on page 2 of his report of August 19, 2005. Like Mr Webster, he sought other employment, working first with Sensis Pty Ltd, as a media solutions consultant (until 6 April 2006). He felt unable to work in stores and was averse to shopping at Myer outlets.

[312] Although Mr Thompson had been diagnosed as suffering a depressive disorder in the past, he had recovered and said he was in good health mentally at the time of the Ashfield Mall incident. Following the incident, he lost about 4 kilograms in weight, lost his motivation and libido, lost his ability to concentrate and read anything other than simple newspaper articles, and was diagnosed by Dr Clark, in his report of 19 August 2005, as suffering from severe or major depression. Dr Clark has set out a careful analysis of the factual matters leading him to this conclusion and I note in particular his reference to Mr Thompson's recurrent thoughts of death and suicide ideation. This was a prophetic statement because the plaintiff did indeed make a very serious attempt at suicide on 20 March 2006.

[313] The circumstances of Mr Thompson's attempted suicide were described by a friend who, concerned at a letter he had received, knocked on his door and was unable to get in. When Mr Thompson did not answer, the friend went to see another friend who lived in the same building and at great personal risk, managed to climb across from one balcony to another in the high rise building in which the plaintiff lived. The balcony door was open so the friend was able both to see Mr Thompson lying on the floor unconscious and to enter the premises in order to telephone for an ambulance.

[314] It is clear from the ambulance report and hospital notes that this suicide attempt was both serious and came reasonably close to success. But for the courageous attempts of the plaintiff's friend, Mr Thompson would have died from an overdose of the drugs that he took. I did not hear the defendant submit to the contrary.

[315] The plaintiff was admitted to the Psychiatric Emergency Care Centre and remained there until 24 March, when he was discharged. Following that, he had a series of consultations with a psychiatrist, Dr Jacobson. He resigned his employment with Sensis Pty Limited and remained on CentreLink benefits until June 2007, when he went to live in Alice Springs and commenced employment with Woolworths in the Customer Service Department.

[316] While in Alice Springs, Mr Thompson consulted Dr van Dijk, as well as having a medico legal consultation with Dr Thomas Clark. He was drinking heavily at this period and resigned from Woolworths Alice Springs on 30 March 2008, returning to Sydney.

[317] He was transported by ambulance from Redfern to Royal Prince Alfred Hospital on 3 June 2008 with suicidal ideation and admitted to Royal Prince Alfred Hospital Mental Health Clinic, where he remained until 11 June 2008. He had four further consultations with Dr Jacobson over this period. He again sought treatment on 25 June 2008, when he presented at St Vincent's Hospital Emergency Department with self-harm ideation and was admitted for treatment. He moved to Tasmania in July 2008 to live with his mother and stepfather. He consulted Parkside Psychiatric Centre in July 2008. He attempted employment with the Advocate Newspaper, Burnie, as a phone sales representative for classifieds in October 2008 but resigned after two days. He has not worked since.

[318] The defendant relies on the report of Dr Robert Lewin. Dr Lewin saw Mr Thompson for an hour and a quarter on 10 December 2008. He noted that Mr Thompson had been taking anti-depressant medication for 12 months before the accident and that the Ashfield Mall incident was one of a number of problems Mr Thompson mentioned to a social worker at St Vincent's hospital on 8 November 2004, a matter of two weeks after the incident. Dr Lewin noted the hospital records indicated Mr Thompson had a clear suicidal intent when he attempted an overdose in March 2006 and that a prior history of approximately two years was recorded, which would take his problems back past 2004. However, some caution needs to be exercised in this regard as even Dr Lewin agrees that the period of two years prior to March 2006 is an approximation.

[319] Dr Lewin noted that while Mr Thompson said he had not been troubled by depression or anxiety prior to the events of 2004, he agreed he had been distressed following the break-up of a long-term relationship in 2000 and consulted a general practitioner because he was feeling "down". He also took anti-depressant medication on his doctor's advice for several months.

[320] In addition, although Mr Thompson said that he had been binge drinking since the incident at the Ashfield Mall, he did have an alcohol-related black-out during 2003 and was concerned that he had unprotected intercourse on an occasion when he had been drinking heavily. He was given treatment and an AIDS test which was negative. In addition, although Mr Thompson said he was not a drug user, he had smoked marijuana during his late high school years, last using marijuana at the age of 20.

[321] As is the case with Mr Webster, Mr Thompson did not present to Dr Lewin as a person prone to exaggeration or invention of symptoms. Dr Lewin described Mr Thompson as "an articulate, thoughtful young man" who "interacted warmly". He gave his history in "a straightforward manner". He diagnosed Mr Thompson as suffering from major depressive episode now in partial remission and noted the family history of alcoholism and bipolar effective disorder. Mr Thompson was receiving treatment for alcoholism but did not have bipolar effective disorder.

[322] Dr Lewin concludes: "… Mr Thompson's current psychiatric condition occurs against the background of a degree of personal vulnerability. He described the experience of adversity during his childhood years. It is evident that there was a drinking problem prior to October 2004. On the other hand, Mr Thompson displayed evidence of resourcefulness and intellectual ability."

[323] He diagnosed major depressive episode now in partial remission and alcohol dependence, which he considered to be a pre-existing psychiatric condition. He considered that Mr Thompson's "depressive symptoms are somewhat worse than those evident prior to October 2004".

[324] He concludes by noting that a person treated in the fashion Mr Thompson was treated would be likely to suffer "relatively mild and transient symptoms" but that it would be unlikely that a person of ordinary fortitude would continue to suffer symptoms more than four years later. Mr Thompson's vulnerability factors as identified in this case are likely to be the patent explanation for his enduring pattern of distress.

[325] By comparison, Dr Jacobson's report of 22 August 2008 notes Mr Thompson's drinking over the previous ten years as being 3 to 4 standard drinks, three to five days a week, which is the high normal range. He notes that Mr Thompson was able to perform very well as a long term Myer employee for many years prior to the incident at the Ashfield Mall and that after the incident he continued to do so before developing the problems that caused him to resign. After that time, there is a marked and significant change in his work history.

[326] Dr Jacobson, who has the advantage of being the plaintiff's treating doctor and of having seen him at a period of time much closer to the incident in question, noted that he did not find the plaintiff was re-experiencing memories of previous abuse as claimed by Dr Lewin, and that his memories, nightmares, anxiety and avoidance (which is relevant for post traumatic stress disorder) specifically related to the incident at Ashfield Mall. This was why he avoided supermarkets and decided to resign from a job at Myer which he had previously thoroughly enjoyed. I note the defendant issued a subpoena for his personnel file and that it is evident from Mr Parker's cross-examination of Mr Thompson that the contents of this file showed the very high regard in which Myer held Mr Thompson. That is unlikely to be the case if Mr Thompson was drinking heavily, depressed and having time off due to suicide attempts prior to the incident.

[327] I have difficulty with Dr Lewin's description of the plaintiff's depressive symptoms as "somewhat worse" than those evident prior to October 2004. It is hard to imagine a more extreme reaction than three hospitalisations for a serious suicide attempt and suicide ideation, and complete inability to work from a person whose prior worklife was stable. Similarly, I have difficulty with Dr Lewin's categorisation of an isolated incident in 2003 when the plaintiff had unprotected sex after heavy drinking as indicating, without more, a pre-existing condition of alcoholism. I accept Mr Thompson's evidence and his statements to his doctors concerning the amount he was drinking over this period of time. A more likely explanation is that the occasion when Mr Thompson had an alcoholic blackout during which he had unprotected sex was a one-off incident. Dr Lewin has failed to expose his reasons for this and other oracular pronouncements he has made, and the value of his report is considerably lessened as a result.

[328] I accept Dr Jacobson's comments in his report of 22 August 2008, that if Mr Thompson had a background of alcohol dependence or substance abuse, then this would have been evident over the course of therapy and in addition there would be prior evidence of matters such as problems with the police, difficulties at work, such as absences. As Dr Jacobson noted, the plaintiff had consistently held jobs which would not tolerate any hint of alcohol problems and I accept his expert opinion that it would be unusual in someone with alcohol dependence to be able to hide his condition so successfully.

[329] I accept the findings of Dr Jacobson that the plaintiff has chronic adjustment disorder with mixed anxiety and depressed mood, social failure and major depression, following upon the events at the Ashfield Mall. I also accept his opinion as a treating specialist that Mr Thompson did not suffer from alcohol misuse prior to the distress of the incident but that he developed alcohol misuse problems as a result, exacerbated by reminders in the form of pending Court hearings. I place particular regard on the fact that what triggered the suicide attempt, according to Dr Jacobson, was that Mr Thompson had to attend a Court-related medical appointment and also that the listing and vacating of hearing dates in these proceedings caused him distress and anxiety.

[330] In many ways the opinions of the psychiatrists are not far apart. All of them agree that Mr Thompson has suffered a psychiatric illness as a result of what happened to him. The only difference is that Dr Lewin says that the plaintiff is in partial remission. All of the psychiatrists agree that the incident has caused significant stress and that it is likely that his psychiatric problems will go into remission (see Dr Jacobson's report and also Dr Lewin, 10 December 2008, page 10).

[331] The defendant makes the following submissions in relation to Mr Thompson's claim for damages: (a) As Mr Thompson's primary anxiety is about the Court case and this continues to aggravate his existing condition, he suffers from a litigation-induced neurosis which is not compensable.

(b) There is "no evidence" [to use a phrase frequently employed by the defendant] that his alcohol abuse is caused by the events of 25 October 2004. It is submitted that Mr Thompson "is alcohol dependent" (written submissions, paragraph 25). It is submitted that Dr Lewin's report should be preferred to Dr Jacobson's report, as Dr Jacobson "did not have a history of the degree of alcoholism suffered by Mr Thompson", in other words, the incident in 2003.

(c) Alternatively, since Dr Jacobson specifically says that Mr Thompson does not fit the criteria for alcohol misuse, he has vastly improved and is fit to resume work, and does not have an alcohol problem.

(d) The lapse in time between Mr Thompson's symptoms in June 2007 (in relation to the alcoholism) means that the alcohol problem he suffers is unrelated to the Ashfield Mall incident. The suicide attempt occurred in March or April 2006; counsel for the defendant mentioned this lapse of time as being significant also. Alternatively, if they were related, by 29 June 2007 (see Dr Jacobson's letter) Mr Thompson's condition was vastly improved and he was fit to return to work and has not suffered any damage. There is "no evidence" (paragraph 27) as a matter of causation that the alcohol dependence was caused by events so long before.

[332] The defendant submits that Mr Thompson has recovered from the effects of the event, that any award for impaired earning capacity should be in the nature of a buffer, and past loss of earning capacity should be limited to the period April 2006 to June 2007.

[333] The defendant does not concede Mr Thompson is entitled to any claim for the period from 20 March 2006, when he was in hospital for treatment following his overdose, presumably on the basis that he did not resign his employment until 6 April 2006.

[334] Finally, the defendant submits that Mr Thompson should not be provided with ongoing costs of "counselling and the like" (written submissions, paragraph 32) as the counselling is related to his pre-existing conditions which were not caused by the 25 October 2004 event.

[335] As set out above, the claim brought by Mr Thompson for general and aggravated compensatory damages is accompanied by a substantial claim for past and future economic loss, as well as past and future out-of-pocket expenses.

1. Past Economic Loss 29/10/2004 to 4/11/2004 (1 week) @ $684.65 net per week $684.65 ATO N/A 2004 4/11/2004 to 4/1/2005 (8.7 weeks) @ $684.65 net per week $5,966.23 ATO N/A 2004 12/4/2005 to 13/4/2005 (2 days) @ $735.93 net per week $294.37 ATO N/A 2004 9/5/2005 (1 day) @ $735.93 net per week $147.18 ATO N/A 2004 The plaintiff claims the difference between his earning capacity as at the date of injury ($735.93) and his earnings with Sensis Pty Ltd during the period 4 July 2005 - 6 April 2006 ($615.70) being $120.20 net per week over 39.587 weeks, totalling $4,754.33 ATO N/A 2004 ITR 2006 Total economic loss for the period 7 April 2006 to 31 May 2007 (56.57 weeks at $735.93) net per week, totalling $41,631.50 ATO N/A 2004 PAYG P/S Centrelink 2007 Economic loss being the difference between his earnings at Woolworths and his likely earnings as a Departmental Manager at Myer for the period 1 June 2007 to 1 April 2008 (43.42 weeks) at $235.93 net per week, totalling $10,244.00 ATO N/A 2004 PAYG P/S Woolworths 2008 For the period 2 April 2008 to 30 January 2009 (43.42 weeks) at $735.93 net per week $31,954.00 ATO N/A 2004 PAYG P/S Centrelink 2008 Total of claim for past economic loss to 30 January 2009 $95,676.26

[337] Mr Thompson also claims future economic loss of a very substantial kind. He claims $735.90 weekly loss to the age of 65 (a total of 30 years) which with the 5% multiplier and 15% vicissitudes amounts to $514,000

[338] This kind of ambit claim is common in personal injury litigation. It is unhelpful for a trial judge to receive such an unrealistic claim and to be left to work out what to award. In practical terms, on the medical evidence of his own doctors (notably Dr Jacobson) Mr Thompson clearly has a significant ability to return full time to the work force later this year. I have dealt with this submission, and with the defendant's more sensible proposition that future economic loss should be limited to a "cushion", below.

[339] Mr Thompson claims the following past out-of-pocket expenses: Pharmaceutical costs $20.90 Ambulance 20/3/2006 $169.00 Medicare items $3,083.00 Total $3,272.90

[340] Mr Thompson claims future out-of-pocket expenses. The defendant submits that Mr Thompson should not be provided with ongoing costs of counselling as his counselling is "related to his pre-existing conditions which were not caused by the 25 October 2004 events." (written submissions paragraph 32).

[341] This submission is totally contrary to the evidence. Prior to 25 October 2004 Mr Thompson was, as I have noted on a number of occasions, a respected and reliable Myer employee who required no counselling or medical assistance.

[342] I shall now consider the principles relating to economic loss relevant to the claim brought by Mr Thompson.

[343] The general principles for economic loss are set out in Rabay v Bristow [2005] NSWCA 199 at [73]-[74] and [79]: " [73] Compensation for loss earning capacity is awarded because of the diminution in an injured plaintiff's earning capacity "is or may be productive of financial loss": Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347. It is incumbent upon the plaintiff to prove the loss for which compensation is claimed ( Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 412) but, conversely, it is not incumbent upon the injured plaintiff to prove what employment he or she "is not incapacitated from performing". It is for a defendant which contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person: H Luntz, Assessment of Damages for Personal Injury and Death (4th Ed) at 118 [1.9.20].

[74] The primary judge was entitled to take into consideration the fact that the respondent had an employment history which demonstrated a consistent pattern of full time employment in work which might fairly be described as having been of a heavy manual nature: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at 143 per Gleeson CJ, Gummow, Kirby and Hayne JJ.

[79] The assessment of damages for future economic loss involves reference to future or hypothetical events. It was described as "the process of estimation of possibility" in Malec v JC Hutton Pty Ltd [1990] HCA 20 ; (1990) 169 CLR 638 at 643 per Deane, Gaudron and Gummow JJ. This is, as Santow JA has pointed out, "necessarily an imprecise matter of estimation, carried out within broad parameters … ": Donald v McKeown [2004] NSWCA 285 at [38]."

[344] It is for a defendant who contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to him, and the primary judge can take into account past employment history. Further economic loss tends to require the process of estimation of possibilities and is of necessity an imprecise exercise.

[345] Both plaintiffs were always employed persons but no claim is made for past and future superannuation, on the schedules set out by me. I have granted leave to make such submissions in the case of Mr Thompson. The amount of superannuation in relation to the amount of past economic loss I propose to award to Mr Webster would be de minimis.

[346] I have accepted Mr Thompson as a witness of credit. His attempts to return to the workforce show a degree of willingness to work of a very high order, and which one would expect from a person who had such a good employment record before this incident. I accept that the sole reason for his work problems is the incident of 25 October 2004. As already indicated, I consider the opinions of his treating doctors of considerably more assistance than the defendant's medico-legal report, the latter having been prepared after a comparatively short interview some years afterwards. Mr Thompson's history speaks for itself in any event.

[347] I accept Mr Thompson should be entitled to be recompensed for his past economic loss as claimed. The problem is to determine what the future holds for him. Clearly he is likely to be able to return to the workforce and in fact Dr Jacobson says he expects Mr Thompson will resume his normal social and work life within six months of 22 January 2009.

[348] In practical terms, having regard to Mr Thompson's ability to work , the most sensible approach is to award a cushion representing 1 to 2 years of his previous salary. These are difficult times to obtain employment, and his long period of time out of the work force and medical history may cause him problems. Doing the best I can, to use the phrase often employed where evidence of economic loss is not precise, I propose to award the sum of $50,000 for future economic loss.

[349] I similarly propose to award a cushion for future out-of-pocket expenses of $5,000. It may be that in the future Mr Thompson recovers quickly; it may be that he requires a considerable amount of future therapy and medical assistance. I am satisfied that his counselling relates to the problems he developed after the incident, and consider a reasonable cushion to allow for such counselling expenses should be given.

[350] Having determined the comparatively straightforward issue of economic loss, I now turn to a consideration of the quantum of damages for the defamation and false imprisonment claims as well as issues of overlap of heads of damages and whether aggravated and exemplary damages should be awarded.

Principles relevant to damages for false imprisonment

[351] Each of the plaintiffs claims general damages for the harm caused to him by the wrongful acts of the defendant in causing his false imprisonment. Such damages are to compensate each of the plaintiffs for the injury to liberty, being the loss of time considered from a non-pecuniary viewpoint, as well as the injury to feelings, namely the indignity, mental suffering, disgrace and humiliation caused by the false imprisonment. It is in relation to this latter category that there is an overlap with defamation damages which is discussed more particularly below.

[352] It is always important to establish the circumstances in which compensatory damages are general in nature and when they may be increased by the conduct of the defendant in circumstances which would justify an award of aggravated or exemplary damages.

[353] I shall first consider the issue of general or compensatory damages. It is appropriate to take into account the whole of the conduct of the defendant from the time of the incident up until the time of the verdict: Vignoli v Sydney Harbour Casino [1999] NSWSC 1113 at [89]. I note the warning Bergin J gives concerning the correct method of comparison of awards of damages in false imprisonment cases and respectfully adopt her Honour's statements at [93] that there should be an appropriate and rational relationship between the award of damages and the harm suffered by the plaintiff. Although it is not mandatory, I may have regard to awards of damages which have been approved by the Court of Appeal. Some of those decisions, however, are ten or more years old (see, for example, McDonald v Coles-Myer Limited (trading as K-mart Chatswood) (1995) Aust Torts Rep, 62,692, where the Court of Appeal found that $12,500 damages was not "significant" and increased the damages award to $27,000).

[354] It is not uncommon for damages awards for false imprisonment to include sums for aggravated and exemplary damages, as the cases referred to above demonstrate.

[355] As set out above, I have had regard to the many statements of principle set out by the Court of Appeal and the High Court concerning the principles for assessment in actions for damages for defamation. The facts in this case are very unusual. This is not a case where the allegation has been made by one feuding neighbour about another, or in the context of a business dispute. The three matters complained of are reports to the police of serious criminal conduct. In determining the damages bear a rational relationship to the hurt caused, as required by s 46A Defamation Act 1974, it is appropriate to have regard to other cases where a claim is brought for a false allegation made to the police out of malice.

[356] A case with similar facts, where the claim was brought as injurious falsehood, is Noye v Robbins; Noye v Crimmins, a long-running claim for compensation for injurious falsehood and malicious prosecution; the damages assessment by the trial judge can be found at [2007] WASC 98. Miss Crimmins made false allegations against a police officer that he fraudulently compiled a false inventory of goods stolen at her home, assisted her in making a false insurance claim and then demanded and received $1,000 from the proceeds. The plaintiff was charged with the offences but the prosecution withdrawn. The trial judge was satisfied the allegations were made out of the malice Miss Crimmins had towards the plaintiff and were made in an attempt to get a better deal on unrelated criminal matters with which she had been charged, and proceeded to assess damages.

[357] While actions for injurious falsehood and defamation are very different to actions for defamation and wrongful arrest, the special nature of false allegations made to the police, and the very serious consequences that can follow, means that some assistance, albeit slight, can be gained when considering issues on damages. In Noye, in determining whether the plaintiff should be awarded damages for malicious prosecution and injurious falsehood the trial judge noted statements by Kirby J in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 419, that there was a considerable overlap in heads of damage between defamation and injurious falsehood and took into account the hurt to feelings caused by the plaintiff being shunned and avoided by fellow police officers. The trial judge awarded damages for non-pecuniary loss, noting that this had been permissible in England (Khodaparast v Shad [2000] 1 All ER 545). The trial judge awarded the plaintiff $35,000 for damage to reputation, $187,676 for pecuniary loss and $50,000 for non-pecuniary loss.

[358] When awarding damages for defamation at the same time as a cause of action for which exemplary damages are available, it is important to remember that exemplary damages are not available for defamation actions.

Problems in the approach to the award of damages where heads of damage overlap

[359] The factual basis for each claim arises out of the same events. I note the following issues concerning damages: (a) Overlap between heads of damage : There are references in passing, in judgments on claims for multiple claims including defamation and false imprisonment as to overlap between heads of damage: Komba v Peke [1994] PNGLR 572 (defamation and malicious prosecution); Palmer Bruyn & Parker v Parsons (2001) 208 CLR 388 (defamation and injurious falsehood); Gray v Motor Accident Commission [1998] HCA 70 (aggravated and exemplary damages). In State of New South Wales v Riley [2003] NSWCA 208 at [119] the Court of Appeal noted the trial judge's findings as to possible areas of overlap between a number of claims for damages including false imprisonment and in particular to overlap between compensatory and aggravated compensatory damages. However, there is no discussion in these cases as to the method of determining or applying any discount or adjustment made in order to avoid double counting for heads of damage that overlap.

(b) Whether to award separate damages for each tort or a global figure : The general approach is to award a separate sum for each cause of action, although this approach has been questioned in some jurisdictions. In Feria v Lange [2009] PGNC 4, where the plaintiff sought damages for defamation, breach of constitutional rights and other claims, Cannings J noted inconsistent prior decisions in his court as to whether a global figure or an amount for each cause of action should be awarded in such circumstances (see also Feria and Kolokol v Amburuapi [2009] PGNC 1 ).

(c) Whether the claim for special damages arose from the false imprisonment claim only: Counsel for the defendant submitted that the structure of the statement of claim meant that the claim for special damages was only brought in relation to the false imprisonment claim. That is clearly wrong, as is his submission that the claim for exemplary damages related only to the defamation claim (and should be struck out as impermissible by reason of s 47 Defamation Act ). While the statement of claim could perhaps have said so more clearly, it is evident that the claim for exemplary damages was restricted to the false imprisonment claim and the claim for special damages was pleaded in relation to both claims.

[360] As to (a) and (b) above, Mr Weaver, counsel for the plaintiffs, indicated that he was aware of the decision in Photi v Target Australia Pty Ltd [2007] NSWDC 265 and indicated acceptance of assessment of damages along similar lines. Counsel for the defendant did not address me on the issue although invited to provide further written submissions on this issue.

[361] I have taken these issues into account when assessing damages for each of the claims brought by the plaintiffs.

[362] I set out in full the defendant's submissions on both aggravated and exemplary damages: "It is submitted that there is no basis upon which an awards [sic] of exemplary or aggravated damages in favour of either plaintiff.

The matters of aggravation particularised in paragraph 11(c) of the Statement of Claim are not made out. Miss Hart [sic] evidence is to the effect that she believed she was reporting to police the actions of the man concerning the gift voucher/credit card incident. It is plain she believed that man to be Mr Thompson. It is also the case that she was mistaken. The evidence is not sufficient to establish that her actions were malicious or spiteful. The defendant has not persisted in harbouring, much less publicising, any suspicion as to the integrity of either plaintiff.

The defendant's conduct through Miss Hart, was mistake as to the identity of Mr Thompson. There is no basis upon which to submit the defendant's conduct was high-handed or in contumelious disregard of either plaintiff's rights. Miss Hart did what she believed was correct. The defendant did not exhibit conduct worthy of punishment. The Court ought not punish for mistakes as distinct from a contumelious disregard of the plaintiffs' rights.

It is submitted that neither plaintiff should be awarded exemplary damages against the defendant. It is not shown that the defendant has been guilty of conscious wrongdoing in contumelious disregard of the plaintiffs' rights. Nor has it been shown that the defendant has committed a particularly flagrant violation of the plaintiffs' rights. Furthermore, the defendant's conduct subsequent to the events of 25 October 2004 does not demonstrate a cruel or reckless disregard for the plaintiffs.

The claim in relation to aggravated damages is compensatory in nature. There is no basis upon which to award aggravated damages, bearing in mind that the gravamen of the defendant's conduct is in the nature of a mistake. There is no conduct by the defendant after 25 October 2004 of any relevance. The false imprisonment and, for that matter, the defamation were not of such a nature as to be inflicted in aggravated circumstances.

It is submitted that no award should be made for aggravated damages." (Defendant's submissions, paragraphs 33-38, numbering excluded).

[363] I have set out the defendant's written submission on these issues in full partly to demonstrate the issues considered relevant by the defendant, and partly to illustrate the degree of lack of information provided to me by the defendant on these issues. As is the case with the defendant's submissions on other issues, the defendant simply states that "there is no evidence" and therefore no basis to make an award.

[364] However, the consideration of the claims made by the plaintiffs for damages, including aggravated compensatory damages and exemplary damages, needs to be considered in a full and careful fashion.

[365] I note that in Vignoli Bergin J took into account a failure to apologise (at paragraphs [114]-[115]). There has been no plea of failure to apologise here and I do not consider that I should have regard to this issue.

[366] Clarke JA in McDonald v Coles-Myer Limited had regard to the hurtful experience of the trial, the persistence of false and hurtful allegations, and the damage to the plaintiff's reputation. In the present case, I can have regard, as Bergin J did in Vignoli at [121], to the circumstances of the plaintiffs' evidence and the presentation of each of them in the witness box, in which they showed the distress that each experienced.

[367] The cross-examination was unusual in that their accounts of the events on the day in question was not challenged, but instead each was submitted to a searing cross-examination about their personal lives and in particular their alcohol consumption. A significant portion of the case was taken up with assertions that the plaintiffs both had drinking problems prior to the events in question. In the case of Mr Webster, who was a recovering alcoholic, who took great pride in his lengthy abstinence, this must have been particularly hurtful and I had the opportunity to observe him in the witness box looking upset as these matters were put to him. These allegations were equally distressing to Mr Thompson and as I have already indicated, I prefer the evidence of Dr Jacobson concerning Mr Thompson's pre-incident drinking history. I am satisfied that since Mr Thompson was able to hold down a busy and demanding job and where none of the likely indicia of alcohol abuse (such as absences from work, drink-driving offences, brushes with the law or health problems) were evident. I am satisfied that the occasion when he had a blackout and had unprotected sex was the exception that proved the rule, rather than proof of regular chronic drinking.

[368] Mr Parker's cross-examination of Mr Thompson did not pull any punches. Mr Thompson has a prior history of suicide attempts, which his doctors relate not only these events but the stress of the litigation flowing from them. Plaintiffs in defamation action often give evidence that the stress of litigation is a matter of concern to them. Watching Mr Thompson's demeanour in the witness box, I could see he was visibly affected by Mr Parker putting to him that he was already a chronic drinker and had an unstable personality prior to the accident. Conduct of litigation is a factor that can be taken into account when considering issues of aggravated compensatory damages; conduct of a much lesser kind was taken into account by the trial judge in Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 547 at [19], [40] - [41].

[369] The defendant submits there is no basis upon which to award aggravated damages because the defendant's conduct "is in the nature of a mistake". However, I do not accept that this is what the evidence shows. The evidence of Senior Constable Turnbull is quite clear. He was told, both by Miss Hart and by the unnamed young lady shop assistant at the service counter about the return of the Seinfeld DVDs by Mr Thompson in circumstances where it was asserted that in addition to returning the Seinfeld DVDs, an attempt was made to purchase a $500 gift voucher using a credit card with a signature that did not match the signature of Mr Thompson on the credit voucher records.

[370] I accept the evidence of the plaintiffs that they were followed by security guards; in a busy place such as a shopping mall, this is the only way the police could have known that the plaintiffs had gone to the Food Court. A telephone call was made to the police less than an hour after the transaction was completed, in circumstances where Miss Hart must have had the events in question fresh in her memory, and in circumstances where she had CCTV tape of the transaction, which she had taken out of the machine for the purpose of giving it to the police, either during this period of time or shortly thereafter. Where such a short time frame is involved, in circumstances where it is clear beyond doubt that the plaintiffs were served by Miss Hart and a young shop assistant, not Miss McDonald on cash register nine, it is beyond belief that Miss Hart could make such a mistake, or that she would have confused a transaction in which she herself, with a young assistant, served the plaintiffs at the service counter with a transaction at cash register nine, with Miss McDonald. It is significant that Senior Constable Turnbull did not interview Miss McDonald. In other words, there was no mistake. Miss Hart reported Mr Thompson and his companion to the police because she felt "threatened", to use her own words, although even on her version of events, taken at its highest, Mr Thompson was no more than an insistent customer wanting his rights.

[371] Accordingly, I am of the view that there is conduct by the defendant after 25 October 2004 which is of relevance and this conduct includes the manner of conduct of the hearing. The defendant's conduct on the day in question was not a mistake but a deliberate and malicious reporting of innocent members of the public as potential criminals simply because they had annoyed a bad-tempered store manager.

[372] The imputations are of great seriousness. The plaintiffs were searched in front of a number of members of the public and the details of the event recorded on the COPS computer records. Both plaintiffs felt compelled to tell their employers what had occurred, and in the case of Mr Thompson the consequences of being investigated for credit card fraud in another branch of the corporation he worked for could have been very serious indeed. Nevertheless, the extent of publication was extremely limited, and I need to have regard to the warnings of the Court of Appeal, in a number of recent cases, as to the need to exercise restraint in the award of damages in cases of limited publication.

[373] Taking into account not only Miss Hart's conduct but also the matters set out above, I am of the view that aggravated compensatory damages should be awarded to each of the plaintiffs. This means that the damages award should be at the upper end of the scale.

[374] Taking all of the above factors into account, I am of the view that the sum to award to Mr Webster should be $50,000 for the defamation claims and $20,000 for the false imprisonment claim. Interest should run on both these sums and I grant liberty to apply.

[375] The damage to Mr Thompson was much greater. The evidence demonstrates that his hurt to feelings is of an exceptional degree. I am of the view that I should award him $70,000 for the defamation claims and $20,000 for the false imprisonment claim. Interest should run on both these sums and I grant liberty to apply.

[376] The parties agree that the claim for exemplary damages relates only to the claim for false imprisonment, as exemplary damages are not available for defamation.

[377] Exemplary damages are not compensatory in nature but punitive: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448 at 471. They are "to assuage any urge for revenge felt by victims and to discourage any temptation to engage in self-help likely to endanger the peace" and "to mark the court's condemnation of the defendant's behaviour" (Lamb v Cotogno (1987) 164 CLR 1 at [9] and [10]). They are an exceptional remedy, rarely awarded. They are not awarded in defamation actions and I must take care to ensure any exemplary damages relate to the false imprisonment claim.

[378] The conduct of the defendant's servants demonstrating contempt for the plaintiffs' rights was to telephone the police and claim the plaintiffs had attempted a fraudulent transaction when this was not the case. Miss Hart's motive was revenge, because she felt "threatened" by the conduct of the plaintiffs when they asked for a refund for some DVDs purchased from the store. It is common ground Miss Hart never even spoke to Mr Webster, and I have found that Mr Thompson spoke to her in a courteous way. I have found that Miss Hart was actuated by malice.

[379] In State of New South Wales v Delly [2007] NSWCA 303 the Court of Appeal awarded $10,000 exemplary damages for the failure of the police to inform the plaintiff the reasons for arrest and the circumstances in which they kept her at the police station for one and a half hours after they knew she was no longer a suspect. The Court (by majority) set aside the trial judge's assessment of $25,000, which had been awarded on the three bases set out by the Court of Appeal at [85].

[380] In the present case, the basis for the award of exemplary damages is the making of allegations of criminality known to be false which resulted in the plaintiffs undergoing the humiliation of being questioned and searched. This is conduct of a much worst kind than that described in Delly. However, there is clearly an overlap with the defamation claim here, and I must be careful to avoid awarding punitive damages for what was said. Nevertheless, the making of a false accusation for reasons of malice resulting in police questioning and searches is conduct warranting the severest condemnation by a court. Miss Hart must have known or suspected that if she alleged there was a false credit card the plaintiffs would be searched. The police are busy people whose time should not be wasted by fanciful or untruthful complaints. Such conduct brings the criminal justice system into disrepute. But for the sensible conduct of the police officers, and in particular Senior Constable Turnbull's supervisor, the plaintiffs could have been charged and face criminal prosecutions in court.

[381] Taking all of the above into account, I am of the view that each of the plaintiffs should be awarded the sum of $10,000 exemplary damages. This is not a case where the exemplary damages should be a sum appropriate to warn public officials in the manner described by the Court of Appeal in Ibbett at [226]. This was an isolated act of spite by a store manager; this is not a case where the policies of the store were to blame.

General damages - defamation $50,000.00 General damages - false imprisonment $20,000.00 Past and Future Economic Loss 267.00 Past and Future Out-of-Pocket Expenses NIL Exemplary Damages $10,000.00 Total $80,267.00

General damages - defamation $70,000.00 General damages - false imprisonment $20,000.00 Past Economic Loss $95,676.26 Future Economic Loss (cushion) $50,000.00 Past Out-of-Pocket Expenses $3,272.90 Future Out-of-Pocket Expenses (cushion) $5,000.00 Exemplary Damages $10,000.00 Total $253,949.16

[382] I was not addressed on interest and grant liberty to apply.

[383] As to costs, I drew the attention of both parties to the provisions of s 48A Defamation Act 1974 (NSW). The difficulties referred to in [1]-[3] of this judgment are also relevant to costs.

[384] Long judgments can suffer from lack of comprehensibility and cogency. The role of the trial judge should be to make clear findings on all-important matters by setting out succinct summaries of the facts and the law. This is difficult to achieve where one or both of the parties have not turned their minds to the causes of action pleaded or sought case management in a specialist list, especially in complex actions such as defamation.

[385] I have set out the orders below, including a liberty to apply. I have noted in my judgment that the parties will need to exercise this right in relation to any claim for past and future superannuation, interest and costs issues but I have granted a general liberty in case there are other issues that have been overlooked.

(1) Judgment for Karl Webster in the sum of $80,267.00. (2) Judgment for Steward James Thompson in the sum of $253,949.16 (3) Liberty to apply in relation to interest and costs. (4) Exhibits retained for 28 days.

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.