Email Defamation Case in NSW District Court

In a case decided by the NSW District Court, an employer was found liable for sending defamatory emails about an employee to parents. The court assessed the damages and awarded compensation, aggravated damages, and special damages to the employee.

District Court New South Wales

Medium Neutral Citation: [NAME] v [COMPANY] t/as [NAME] & [NAME] [2019] NSWDC 98 Hearing dates: 7, 8, 9, 10, 11, 14, 15, 16, 17, 21 May and 7 December 2018 Date of orders: 04 April 2019 Decision date: 04 April 2019 Jurisdiction: Civil Before: Judge Levy SC Decision:

1. Verdict and judgment for the plaintiff for compensatory, aggravated and special damages, including pre-judgment interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW), in the total amount of $237,970.22;

2. Judgment for the cross-defendant plaintiff on the first defendant's cross-claim; 3. The exhibits are to be returned;

4. [NAME] are to pay the plaintiff's costs of the proceedings on the ordinary basis unless a party is able to demonstrate a basis for some other costs order;

5. The first defendant is to pay the plaintiff's costs of its unsuccessful cross-claim against him, such costs to be paid on the ordinary basis unless a party is able to show the basis for some other costs order on that cross-claim;

6. Liberty to apply on 7 days notice if further or other orders are required, including as to costs. Catchwords: DEFAMATION – determination of whether an email sent by the plaintiff's former employer, the proprietor of a [COMPANY], to parents of children at that [COMPANY], concerning the plaintiff's character and honesty, was defamatory of him – consideration of pleaded defences of truth or substantial truth, claim of a relevant interest, common law qualified privilege, statutory qualified privilege and triviality – consideration of cross-claim for alleged overpayment of wages; DAMAGES – assessment of compensatory, aggravated and special damages Legislation Cited: Civil Procedure Act 2005 (NSW), s 100 Defamation Act 2005 (NSW), s 25, s 30, s 33, s 34, s 35, s 36, s 38 Uniform Civil Procedure Rules 2005, r 15.21, R 15.22, r 15.30 Cases Cited: Adam v Ward [1917] AC 309 Ainsworth v Burden [2005] NSWCA 174 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 Hockey v Fairfax Media Publications Pty Ltd (2015) 332 ALR 257 Horrocks v Lowe [1975] AC 135 Megna v Marshall [2010] NSWSC 686 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16 Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 Texts Cited: [NAME], Defamation Law in Australia (2nd Ed, Lexis Nexis Butterworths, 2012) [NAME], The Law of Defamation in Australia and New Zealand (The Federation Press, 1998) [NAME], Australian Defamation Law and Practice (Lexis Nexis Butterworths, 2003) Category: Principal judgment Parties: [NAME] (Plaintiff) [COMPANY] t/as [NAME] (First defendant) [NAME] ([NAME] defendant) Representation: Counsel: [redacted] [NAME] ([NAME])

Solicitors: [redacted] [NAME] ([NAME]) File Number(s): 2017/100260 Publication restriction: None

Judgment

Table of Contents Defamation proceedings [1] – [2] Facts upon which the plaintiff's claim is based [3] – [11] Trial overview [12] – [13] Pleadings and procedural matters [14] – [26] Pleaded imputations [15] Defences pleaded [16] – [18] Cross-claim by [NAME] against plaintiff [19] – [21] Reply by plaintiff [22] Refusal of late application to further cross-examine plaintiff [23] – [26] Issues for determination [27] – [28] Evidence overview [29] – [30] Credibility of testimony [31] – [95] [NAME], the plaintiff [32] – [35] [NAME], the [NAME] defendant [36] – [45] All other witnesses [46] – [95] Background facts [96] – [182] Issue 1 – Publication of the email material [183] – [187] Issue 2 - Imputations [188] – [208] Principles [189] – [193] Imputation (a) – the plaintiff is dishonest [194] – [195] Imputation (b) – untruthful regarding studies and other issues [196] Imputation (c) – fired for disciplinary reasons [197] – [200] Imputation (d) – conduct leading to termination of employment [201] – [204] Imputation (e) – unfitness to work in [NAME] [205] – [207] Conclusions on imputations [208] Issue 3 – Whether imputations carried defamatory meanings [209] – [213] Issue 4 – Claimed defence of truth [214] – [256] Alleged deceit about academic qualifications [218] – [225] Alleged deceit about additional paid work [226] – [235] Alleged deceit about availability to complete studies [236] – [255] Conclusion concerning claimed defence of truth [256] Issue 5 – Claimed defence of actual or apparent interest [257] – [264] Issue 6 – Claim of common law qualified privilege [265] – [283] Principles concerning common law qualified privilege [266] – [270] Submission by [NAME] on common law qualified privilege [271] Consideration of those arguments [272] – [282] Concluded finding on claimed common law qualified privilege [283] Issue 7 – Claim of statutory qualified privilege: s 30 of the Defamation Act 2005 [284] – [294] Issue 8 – Claimed defence of claim of triviality [295] – [299] Issue 9 – Cross-claim by the first defendant [300] – [301] Issue 10 – Assessment of damages [302] – [322] Compensatory and aggravated damages [303] – [319] Special damages [320] Interest [321] Summary of damages assessment [322] Disposition [323] Costs [324] Orders [325]

Defamation proceedings 1. The plaintiff, [NAME], who is now aged 21 years, is an [NAME]. He brings these defamation proceedings against the first defendant, his former employer, [COMPANY], trading as [NAME] 163-875-134, and the [NAME] defendant, [NAME], the director and guiding mind of that company.

2. The proceedings arise from email comments [NAME] made about the plaintiff to a number of people on 4 April 2016. This occurred eleven days after the plaintiff had ceased working for [NAME]. The proceedings are governed by the provisions of the Defamation Act 2005 (NSW).

Facts upon which the plaintiff's claim is based 1. On Monday 4 April 2016, at 9.21am and again at 9.23am on the same day, unbeknown to the plaintiff at those times, he was the subject of adverse comments made by [NAME] in two identical emails sent by [NAME] to a total of 35 parents whose children attended at the [COMPANY] in Chatswood, NSW.

2. Those parents knew the plaintiff because of previous contact they had with him in the course of his former employment at [NAME]' [COMPANY]. The matter complained of by the plaintiff in those emails appeared under the heading of Staff Updates, in which [NAME] referred to the plaintiff in contentious terms, as follows: "… [NAME] – is unfortunately no longer with us due to disciplinary reasons. Whilst being good with the children in general, [NAME] was not truthful with us regarding his studies and some other issues, and I felt it was better for him to move on and possibly gain a bit more life experience. We wish him well with his future. ..."

1. In these proceedings, it becomes necessary to discern the meaning of those words in terms of whether they are defamatory. It also becomes necessary to determine whether they were actuated by malice.

2. The plaintiff did not become aware of those emailed comments about him until some weeks later. Immediately thereafter, he felt the sting of them. This occurred against a background where, in his locality, he had noticed some avoidant changes in the behaviour of certain [COMPANY] parents towards him. He also came to realise, from speaking with a child whom he knew, that his reputation had been damaged in that a parent of that child had reportedly thought of him as a liar: T68.26; T202.17. After the plaintiff investigated those circumstances, he was informed of the existence of the matter of which he complains in these proceedings. He is understandably concerned about the grapevine effect of those emailed words.

3. The plaintiff continues to feel the sting of those words. This was plain from a series of occasions that arose during the trial when he was observed to have either lost his composure, or became distressed or agitated whilst giving his evidence: T44.25; T51.21; T55.7; T65.21; T146.20 – T146.26; T147.17; T152.22 – T152.33; T153.7 – T153.33; T165.3 – T165.9; T167.41; T223.48.

4. The emails were stated to have been sent for the information of a number of parents whose children attended [NAME]' [COMPANY]: Exhibit "B", pp 48-49. [NAME] had sent the email twice, but only once to each of the total of the 35 named [NAME] listed in the address field.

5. The email sent at 9.21am went to 13 named [NAME] and the email sent at 9.23am went to 22 named [NAME]. [NAME] explained that the reason for the different despatch times of those emails was because there was a technical issue on her computer concerning the facility for a single email to be sent to all intended [NAME] at the same time.

6. The plaintiff claims that the comments about him in the emails impugned his integrity, honesty and fitness to work in the [NAME] sector, and were defamatory of him and his reputation. After he became aware of the content of the emails, he became quite ill and required psychological treatment. He claims compensatory, aggravated and special damages. 7. [NAME] have cross-claimed against the plaintiff seeking to recover alleged overpayment of wages. The plaintiff claims that cross-claim has been raised spuriously and is without merit.

Trial overview 1. At a pre-trial call-over on 5 October 2017, the parties estimated that the proceedings would require 4 days plus hearing days. In contrast, the trial proceeded well beyond that estimate, for a total of 11 hearing days. It appeared that [NAME] were approaching these proceedings as an employment case rather than a defamation case: T79.25 – T79.30; T107.9; T142.40; T148.19 – T148.25; T172.29 – T172.35; T286.27; T405.33 – T405.50.

2. At the hearing the plaintiff was extensively cross-examined. At times the questioning was repetitive and confusing. His credit and his honesty were the subject of attack. [NAME] repeatedly maintained and asserted, on numerous occasions throughout the trial, that the plaintiff had lied and had deceived his employer about his qualifications and other issues to do with his employment. The plaintiff found the attack on his credit distressing. At this point it is appropriate that I identify my concluded view that [NAME]' attack on the credit of the plaintiff was ultimately revealed to be without merit. It was not sustained in any material way. My reasons for that conclusion will be set out in the appropriate context in these reasons.

Pleadings and procedural matters 1. The relevant pleadings in this case are as follows:

1. The plaintiff's statement of claim which was filed on 3 April 2017;

2. The most recent of [NAME]' amended defences which was filed in Court by leave on 14 May 2018, the sixth day of the hearing;

3. The first defendant's cross-claim against the plaintiff, which was filed on 11 August 2017;

4. The plaintiff's reply to the cross-claim, which was filed on 6 October 2017.

Pleaded imputations 1. The plaintiff's statement of claim alleges the following accusations or imputations, which he claims carried meanings which were defamatory of him, as follows:

1. He is dishonest;

2. He was not truthful with [NAME] regarding his studies and some other issues;

3. He was fired for disciplinary reasons;

4. He had conducted himself in such a manner that a [COMPANY] terminated his employment;

5. He is not a fit person to work in [NAME].

Defences pleaded 1. In answer to the plaintiff's claim, [NAME] filed various defences. The most recent of which was further amended by leave, on the sixth day of the hearing, on 14 May 2018, so as to include expanded particulars.

2. The version of the amended defence which engaged with the plaintiff's pleading was a complex and convoluted document, which in summary, raised the following pleaded defences to the plaintiff's claim:

1. Substantial truth within the meaning of UCPR r 15.22(2);

2. Actual or apparent interest, within the meaning of UCPR r 15.21(1)(a);

3. Qualified privilege at common law, within the meaning of UCPR r 15.21(1)(b);

4. Qualified privilege, pursuant to s 30 of the Defamation Act 2005;

5. Triviality, within the meaning of UCPR r 15.30.

1. The plaintiff contested the aptness and the applicability of each of those claimed defences.

Cross-claim by [NAME] against plaintiff 1. On 11 August 2017, the first defendant, [COMPANY] t/as [NAME], filed a cross-claim against the plaintiff seeking damages from him. In essence, that cross-claim sought damages from the plaintiff for an alleged overpayment of wages to him. The claimed overpayment was said to be at the rate of $8.28 per hour for a total of 1,093.49 hours, namely $856.90, plus pre-judgment interest claimed pursuant to s 100 of the Civil Procedure Act 2005 (NSW).

2. The cross-claim was based upon the proposition that the plaintiff was paid at the rate of $22.23 per hour instead of $13.95, a difference of $8.28 per hour. The basis of the claim of an alleged overpayment was the claim by the first defendant cross-claimant that on 8 July 2015, the plaintiff had materially misrepresented that he either possessed or was entitled to possess, a [NAME] in Early Childhood Education and Care.

3. It was therefore argued that the plaintiff was paid at an inapplicable and excessive hourly rate in the case of someone with his lack of qualifications. The plaintiff's defence to the cross-claim of 14 September 2017, denied those assertions.

Reply by plaintiff 1. On 6 October 2017, the plaintiff filed an amended reply joining issue with [NAME]' defence dated 7 July 2017. The case was conducted on the basis that reply also applied to [NAME]' further amended defence dated 14 May 2018.

Refusal of late application to further cross-examine plaintiff 1. On the 10th day of the hearing [NAME] sought leave to have the plaintiff recalled for further cross-examination, apparently on matters concerning his previous psychological history. In my view, that application was based on speculative considerations (T510.41), and it was refused.

2. That refusal was not only on account of the late timing of that application and its speculative basis, but also in the interests of fairness. The application was made in circumstances where the case had already exceeded its pre-trial estimate by a considerable margin, and where there had been an earlier failure by [NAME] to pursue available forensic options in a timely manner despite extensive case management in the Defamation List. 3. [NAME]' application was refused in circumstances where it appeared that if the application was granted, the likely prejudice and injustice to the plaintiff would cause needless distress and inevitable delay that could not be adequately met by an order for costs. This was in the context where [NAME] acknowledged that the plaintiff had already experienced considerable and observable distress on multiple occasions in his evidence: T223.48.

4. There comes a point in litigation, as occurred in this case, where the parties must be held to abide by their forensic decisions and proceed accordingly: T504.48 – T511.17; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27.

Issues for determination 1. The pleadings and evidence reveal that the following issues arise for determination:

1. Whether there was a relevant publication of the email in question. My reasons for decision on that issue appear between paragraphs [183] and [187] of this judgment;

2. Whether the imputations arise as claimed by the plaintiff. My reasons for decision on that issue appear between paragraphs [188] and [208] of this judgment;

3. Whether the claimed imputations, if arising, carry meanings that were defamatory of the plaintiff. My reasons for decision on that issue appear between paragraphs [209] and [213] of this judgment;

4. Whether the claimed defence of truth been made out. My reasons for decision on that issue appear between paragraphs [214] and [256] of this judgment;

5. Whether the claimed defence of actual or apparent interest has been made out. My reasons for decision on that issue appear between paragraphs [257] and [264] of this judgment;

6. Whether the claimed defence of common law qualified privilege has been made out. My reasons for decision on that issue appear between paragraphs [265] and [283] of this judgment;

7. Whether the claimed defence of qualified privilege pursuant to s 30 of the Defamation Act 2005 (NSW) has been made out. My reasons for decision on that issue appear between paragraphs [284] and [294] of this judgment;

8. Whether the claimed defence of triviality claimed pursuant to s 33 of the Defamation Act 2005 (NSW) has been made out. My reasons for decision on that issue appear between paragraphs [295] and [299] of this judgment; 9. [NAME]' cross-claim against the plaintiff should succeed. My reasons for decision on that issue appear between paragraphs [300] and [301] of this judgment;

10. The extent of the plaintiff's entitlement to compensatory, aggravated and special damages. My reasons for decision on that issue appear between paragraphs [302] and [322] of this judgment.

1. A number of sub-issues arose within those issues. These will be identified and considered in the course of my reasons for decision on those matters.

Evidence overview 1. In the plaintiff's case, in addition to the plaintiff's own oral evidence, he also relied on the content of a tender bundle: Exhibit "B". The plaintiff called oral evidence from [NAME], a fellow [NAME] student, from his parents, [NAME] and [NAME], and [NAME], the latter being one of the [NAME] of the email of which the plaintiff complains.

2. In [NAME]' case, oral evidence was given by the [NAME] defendant, [NAME] and her former employees, [NAME]; and [NAME] employees [NAME] and [NAME]. [NAME] also relied upon a tender bundle of documents: Exhibit "1".

Credibility of testimony 1. In the paragraphs that follow I set out something of the factual background from the testimony of the witnesses, and I identify the conclusions I have reached on such matters concerning the credibility and reliability of the testimony of the witnesses who gave oral evidence.

[NAME], the plaintiff 1. I formed the view that the plaintiff was a careful and impressive witness. At times he found the subject matter of the proceedings particularly distressing. Those occasions of upset occurred both in his evidence-in-chief and during the course of cross-examination.

2. In the course of [NAME]' cross-examination of the plaintiff there were many instances of potential confusion. The plaintiff took great care to avoid misspeaking on those occasions. The factual challenges made to his evidence were identified as being centred around five principal topics.

3. Those matters related to the pursuit of his [NAME] qualifications in 2015 and 2016; the relationship of those matters to his employment at [NAME]' [COMPANY]; babysitting work he had undertaken outside of his work at the [COMPANY]; the content of his communications with [NAME], and whether it was he who had posted a negative internet review about [NAME]' [COMPANY] after he had left [NAME]' employment, the latter being an allegation which he denied, and which I find that [NAME] have failed to establish: T77.40 – T78.5.

4. In my assessment, none of those challenges had the effect of damaging the plaintiff's credit as a witness. Where appropriate, he made concessions on matters that he did not recall and he was careful to limit his evidence to his actual knowledge. I considered his evidence on critical matters of dispute to be both credible and reliable.

[NAME], the [NAME] defendant 1. I formed the view that [NAME], who held no [NAME] qualifications herself, was an unsatisfactory witness. In coming to that view I have disregarded and placed no weight on the fact that she was at times defensive and hesitant in some of her answers to questions that had been asked of her in cross-examination. Reactions of that kind by a party when giving evidence in the face of strong challenge are not uncommon in stressful litigation, as was the case here. Of themselves, those matters, and matters of demeanour, are well understood to be unfair indicators of discredit or unreliability. In my assessment of the credibility and reliability of her evidence, I have made positive allowance on account of those factors. 2. [NAME] also became upset at questions asked of her in cross-examination: T393.25. I draw no adverse inferences from that occurrence.

3. It was of interest that in her evidence, [NAME] showed a detailed recall of matters that assisted her case and at other times displayed a lack of recollection on matters that were inconvenient to her case. This was most evident when her evidence in chief is compared to her answers to questions in cross-examination.

4. Save for some unguarded answers, at times [NAME] gave argumentative and avoidant answers to clear and straightforward questions asked of her in cross-examination, sometimes answering questions with questions (T381.25 – T381.48), giving over-inclusive and non-responsive answers, and at other times speaking over the questioner to impose her view. She required that some questions be repeated, or for the recording of them to be replayed to her: T337.37 – T343.12. It was submitted on the plaintiff's behalf that this was an avoidant tactic on her part. It is not necessary for me to definitively decide that question. However, overall, I considered her apparent unwillingness to provide direct answers to questions asked of her at times during cross-examination, and her at times combative answers, detracted generally from her credit and her reliability as a witness.

5. It is of some significance to the issue of [NAME]'s reliability as a witness that aspects of her evidence were not consistent with the instructions she had given to her solicitors when they framed her defence to the plaintiff's claim. She was reluctant to make due concessions, and she sought to blame human error on the part of her solicitors for evident discrepancy, claiming, when she disavowed aspects of her amended defence, that her instructions had been misunderstood: T333.47. At other times she denied giving her solicitor instructions on some factual matters and sought to obfuscate in her answers on such matters: T382.5 – T383.50.

6. There was a marked and significant discrepancy between her evidence in which she stated that she thought the author of an internet post that disparaged her business (Exhibit "2") "may have been [NAME]" (T296.6) and the more definite instructions on that issue which she had given to her solicitors, whereby it was positively asserted, without proof, that it was the plaintiff who was responsible for that offending internet posting (Exhibit "B", pp 43-46), a matter that the plaintiff promptly denied when he was asked to respond to a letter of demand from the solicitors for [NAME]: Exhibit "B", p 47. 7. [NAME]'s solicitor was not called to support her assertion as to the state of his instructions on that question, although he was called to give evidence on other procedural matters that arose in the trial, and which were the subject of separate intra-trial rulings. I consider that [NAME]'s oral evidence in which she downplayed the effect of her preparedness to positively assert without supporting evidence, through her solicitor's letter of demand to the plaintiff, that the plaintiff was the author of that internet posting, was an indication of the unreliability of her factual assessments on contentious matters to which her evidence was directed.

8. Furthermore, I considered that such unreliability extended to her reconstruction of the chronology of critical disputed historical events upon which this case was founded.

9. I considered that [NAME]'s idiosyncratic interpretation of the document she gave the plaintiff comprising the terms of his employment with [NAME], particularly with regard to her so-called non-babysitting policy, was contrary to the plain and clear meaning of the written words within that document. When her evidence was tested in that regard, she retreated to an alleged verbal account of non-babysitting instructions she said she had given to the plaintiff at a staff meeting. Significantly, her evidence in that regard was not supported by [NAME] who was an important witness called to give evidence in the case for [NAME]: T350 – T351.

10. In my view, those matters indicate that [NAME]'s evidence should be regarded with considerable reserve before acceptance on any issue in dispute. I found myself unable to rely upon her evidence where her evidence was at variance from the plaintiff's evidence on critical matters in dispute, and where there was credible oral or documentary evidence to the contrary of her own evidence.

All other witnesses 1. No adverse credit issues emerged from the testimony of the nine non-party witnesses listed at [29] and [30] above. Before identifying my findings of fact it is appropriate that in the paragraphs that now follow, I outline a summary of the evidence of those other non-party witnesses.

[NAME]

1. In 2015 [NAME] was a fellow student with the plaintiff at [NAME]. She, like the plaintiff, had started studying Certificate III subjects for the first 6 months of 2015, and she then went on to do Diploma course units at the same [NAME]: T178.36. 2. [NAME] described her observations of the plaintiff whilst he was at [NAME] in early 2015 as being happy, energetic and very dedicated to completing his studies to work in an area in which he was interested: T178.45 – T178.48. That description of the plaintiff's attitude extended to her observations of the plaintiff when he began employment at [NAME]' [COMPANY]: T179.5. She described him as being an average student: T179.10. She rejected the notion that anyone thought the plaintiff might be dishonest: T179.20.

3. In mid-2016, [NAME] noted a change in the plaintiff's level of happiness and in his personality, in that he had become more withdrawn, was quite upset (T181.15), did not go out much, did not reply to messages (T179.30 – T179.43), and he was declining invitations: T180.2. 4. [NAME] related a conversation she had with the plaintiff in the middle of 2016 in which she recounted her recollection of him telling her he would no longer be working at the [COMPANY] because of an email that was sent to parents, and he was not happy to stay there anymore: T180.25. That account was not entirely accurate as it included a conflation. The email in question had been sent after the plaintiff was dismissed and escorted off [NAME]' premises, although it had been sent whilst the period of notice the plaintiff had already given to [NAME] was still current. In all other respects, I accept the evidence of [NAME]. She described the plaintiff as being "really upset" and quite devastated as he had been dedicated in his job and had been taking Saturday classes at [NAME] to meet his course obligations: T180.30.

[NAME] 1. [NAME] is a Diploma qualified child educator. She was called as a witness in the plaintiff's case: T108 – T115. She and the plaintiff had respectively started their Diploma and Certificate III courses at [NAME] together in 2015.

2. Ms [NAME] described her initial impressions on first meeting the plaintiff in 2015. She said he was very enthusiastic, energetic and excited to start his Diploma course: T108.25. She thought he was a straightforward and trustful sort of person: T109.19.

3. Ms [NAME] described some changes she had observed in the plaintiff from around June and August 2016, and her observation of him at that time was of him being a bit withdrawn and quite depressed, preferring to stay at home rather than going out: T108.39. She stated that he did not appear to be himself and it was not until towards August 2016, when he told her of events at his work, that she understood why this was so: T108.41 – T109.1.

4. Ms [NAME] was well placed to make those observations from her personal familiarity with the plaintiff in the context of their educational and social association. They studied together, and they were good friends: T110.19. She was not aware of the plaintiff having had any previous health or psychological problems: T111.37.

[NAME], the plaintiff's mother 1. [NAME], the plaintiff's mother, an office administrator, described the plaintiff as having had an air of elation at the commencement of his [NAME] course: T183.29. She also described how he was enjoying his placement at [NAME]' [COMPANY]: T183.48. 2. [NAME] said that when the plaintiff had brought home the employment contract given to him by [NAME], she had photocopied it. She confirmed there was nothing in it about a babysitting policy: T184.12; T185.25. She described the plaintiff as having to work a lot of extra days, which raised concerns for her because of the demands of his [NAME] course: T184.45 – T185.13. 3. [NAME] described how, after the plaintiff had encountered roster problems at work which conflicted with his [NAME] course requirements, where he was rostered to work a five day week in his part-time job, he had told her he did not want to resign from his position at the [COMPANY] but felt he had been compelled to do so because "[NAME] will not listen, she only gets angry": T187.18. She described how the plaintiff then put together a resignation letter which she then proof read for him: T187.22. 4. [NAME] described the plaintiff's dramatic and devastating reaction that occurred on 3 July 2016 after receiving a copy of the 4 April 2016 email that has led to these proceedings: T188.15 – T188.36. 5. [NAME] went on to describe how the plaintiff then became withdrawn, stayed in his room, hardly ate, wouldn't go out with his friends, and he would hardly engage in the home. She stated that those problems continued for some months: T188.45 – T189.10.

6. In that time, [NAME] took the plaintiff to the family doctor, who diagnosed depression and prescribed the plaintiff Lexapro, with repeat prescriptions: T189.30 – T190.10. She stated that the plaintiff has not yet completely recovered. She described him as having been fragile, and broken, and that he had not yet regained some self-confidence: T190.20. She stated that as a gradual process he was spending less time in his room from around August or September of 2016: T196.36; T197.13 – T197.35. 7. [NAME] was a careful witness. Her evidence was not challenged in any material way and I accept her evidence in its entirety.

[NAME], the plaintiff's father 1. [NAME], the plaintiff's father, a building certifier, also gave evidence to the effect that the plaintiff appeared overjoyed and happy to have been accepted into his [NAME] course: T198.25. [NAME] also described the plaintiff's sense of fulfilment at having been offered the placement with [NAME]' [COMPANY]: T198.38. 2. [NAME] described the plaintiff's disposition at that time as being very active socially with ex-school friends, and pursuing regular outings at weekends: T199.33. He described the plaintiff as being happy in his work: T199.40. 3. [NAME] described how, after the plaintiff experienced difficulties in his work, he and his wife had discussed the option of the plaintiff resigning. This arose once it became apparent that his work timetable had become unfavourable to him continuing in his [NAME] course: T201.35 – T202.3; Exhibit "C". In my view, nothing turns on the discrepancy between the evidence of the plaintiff and his mother as to his decision to resign from his employment with [NAME], and [NAME]'s evidence that he and his wife had assisted the plaintiff in that decision: T201.44. [NAME] described it as a family decision taken after he had recommended that course: T206.28 – T206.31. 4. [NAME] described the plaintiff as having become distraught, shaking and in tears on becoming aware of the content of the subject email which has led to this litigation: T202.34. 5. [NAME] also described how subsequently, the plaintiff "totally withdrew", did not converse much, and spent "the majority of his time in his room", and spoke unrecognisably at times: T202.37 – T202.45. He described how the plaintiff was taken to the family doctor who then referred him to a psychologist: T203.3. He described how the plaintiff had completely recovered after he completed stage one of his [NAME] course and had gained another position in the [NAME] sector: T203.16 – T203.30. In cross-examination, he qualified that evidence by stating that the long-term effect of the drawn out process of this present dispute on his son's health has yet to be determined: T208.11. I interpret [NAME]'s comment that the plaintiff had recovered to mean that the acute phase of the plaintiff's initial reaction to the publication had subsided somewhat.

6. In cross-examination, [NAME] confirmed that his son was seeing a psychiatrist: T208.42. Further cross-examination on the plaintiff's pattern of consultations with a psychiatrist was curtailed on considerations of fairness because this subject had not been raised beforehand with the plaintiff in cross-examination circumstances where the plaintiff's evidence had already been completed: T208.41 – T209.5. 7. [NAME]'s evidence was not the subject of material challenge. I consider him to be a truthful and reliable witness.

[NAME] 1. [NAME] was called by [NAME]: T420 – T425. She presently works at the [COMPANY] that took over from the [COMPANY]. She has been employed there since late 2013. 2. In that capacity, [NAME] knew the plaintiff as a pre-school assistant. They were rostered together at the [ADDRESS] premises. Her evidence was brief and it did not touch upon any issue of significance in these proceedings.

[NAME] 1. [NAME] was called by [NAME]. She was the faculty director responsible for training in the health and community services courses at [NAME], including courses in early childhood and the related Certificate III course. She had no personal knowledge or communications with the plaintiff: [redacted] 2. [NAME] described the status of the respective qualifications. A Certificate III qualification accredits a worker to be "on the floor" working with children to support a child's development whilst working under direction, whereas a Diploma is a level of qualification for persons aspiring to work in a leadership or management role, with the Diploma being the more senior qualification: T426.30 – T436.48.

3. Her evidence was generally directed at [NAME] course structure, the vocational framework and requirements, and qualifications for work in the [NAME] industry: T426 – T437. It had little to do with the defence of the plaintiff's claim of having been defamed by the email in question, and it remained puzzling as to why she had been put to the inconvenience of being called to give evidence when documents, an evidentiary statement or affidavit, or agreed facts on the subject matter of her evidence, would have sufficed. 4. [NAME] described the typical time frame for someone to complete the Diploma course as being 18 months, and about 6 months to complete the Certificate III course, but with variations that would allow for earlier assessment if prior [NAME] skill and experience were to be recognised: T432.5 – T432.32. 5. [NAME] explained that there was considerable scope for overlap in the teaching of quite a few Certificate III units and the Diploma course so that progress through the courses was negotiable, with scope for the availability of offset credit allowances for certain units undertaken: T433.1 – T433.16. [NAME] confirmed that in 2015, it was possible for a candidate enrolled in the Diploma course in early childhood to transfer into the Certificate III course before completing the Diploma, subject to negotiating administrative requirements: T435.20 – T435.34.

6. Those considerations were subject to a particular student's view of whether or not such a move was considered to be beneficial or convenient, including as to matters of time, effort and cost: T435.45. A transfer could be effected within a week or two, and would normally be the subject of advice: T436.2 – T436.15. 7. [NAME] described the general circumstance that, in cases of illness, if a student in a Diploma course were to miss some days of placement due to illness but would otherwise pass an assessment, flexible scope existed for assessing such a student as nevertheless being competent: T436.26 – T436.47.

[NAME] 1. [NAME] is a [NAME] educator employed at the [ADDRESS] premises by the new proprietor who took over from [NAME]. She had also been working at the premises when the plaintiff was employed there by [NAME] in August 2015: T438.

2. It remains puzzling as to why she was called to give evidence in [NAME]' case as she was not privy to, or could not recall, the particular conversations or events to which she had been directed in her examination in chief. She was overseas for part of those times.

3. Whilst she was employed by [NAME], Ms [NAME] had been shown and had read the staff update section of the email in question in the office after it had been sent to the families to whom it had been directed. She did so in the presence of other staff members for the purpose of informing herself of workplace changes.

[NAME] 1. [NAME], an early childhood teacher, was called by [NAME]. In 2015, she worked with the plaintiff at [NAME]' [ADDRESS] premises. 2. [NAME] described how, at about 4.30pm, at the end of her rostered shift on 24 March 2016, at the request of [NAME], she had walked the plaintiff out of the [ADDRESS] premises because [NAME] had told her that she did not want the plaintiff talking to the parents as he left: T450.42 – T452.7. 3. [NAME] recounted an earlier conversation which had preceded those events, where she had, as the plaintiff's supervisor, asked him "to be very honest" with her, and tell her whether he was "still babysitting" children who attended the [COMPANY]. She said she felt relieved when the plaintiff had replied that he was not: T452.17 – T452.25. On the face of the question, the plaintiff had plainly given an honest answer, although later, that answer troubled him because he had come to fear [NAME] because of an earlier exchange of words. 4. [NAME] identified the source of the information given to her which based her question about the plaintiff babysitting to be a child at the [COMPANY] who had reportedly told her he had seen the plaintiff at his home earlier that morning, and in response to the question as to why that was so, he stated: "he's walking my sister to school": T453.35. In my view it is a misnomer to ascribe the term babysitting to that activity. 5. [NAME] stated that she considered the described activity to be babysitting as it was a form of looking after a child: T453.40 – T454.18. In an arena where the meaning of words matters, especially concerning allegations of his honesty and a claimed defence of substantial truth, I do not accept that description as being apt, unless the term babysitting is used in a very loose way. That evidence must be considered in terms of the meaning to be given to [NAME]' "Staff Babysitting" document in terms of whether it was truly a policy, or whether it was simply a statement of preference, and whether it in fact applied to a child who was formerly, but no longer, an attendee at the [COMPANY].

[NAME] 1. [NAME] was called to give evidence in [NAME]' case: T459 – T473. In 2015 and 2016, she was the head teacher in childhood education at the [NAME] campus.

2. In her evidence she identified a series of email exchanges between herself and the plaintiff in March 2016: T459.30 – T463. In essence, she said that after discussion with the plaintiff, having regard to the units in the course he was undertaking, and having regard to some classes and some weeks of content that he had missed due to illness, she had recommended to him that he re-commence studies immediately and take classes on Wednesdays: T463.2 – T463.45. 3. [NAME] had informed [NAME] that she had made the recommendation that the plaintiff take up the Wednesday classes option: T463.10. [NAME] had recorded that it had been recommended that the plaintiff undertake additional course work in order to gain greater knowledge and therefore he would be attending Wednesday classes: T471.35. At that time, she was completely unaware the plaintiff had work commitments on Wednesdays: T464.16. In that context it becomes relevant to consider the context in which [NAME] sought to impose such work commitments on the plaintiff.

4. At the time of the events in question, the [NAME] campus had the option of "rolling enrolments" so that every few weeks opportunities arose for a student enrolled in the Diploma course to additionally enrol for the Certificate III qualification. She said that at worst, there may at times have been an eight to ten week wait to do so, but a delay of that magnitude would have been unusual: T466.8 – T467.25. She suspected the conversation with [NAME] to which she had referred, took place because they had been collaborating over "moving … [the plaintiff] … through his program": T470.47.

5. In cross-examination [NAME] identified a conversation she had with [NAME] on or about 11 May 2016, in which [NAME] had made a brief mention to her of a negative statement appearing on a website, and that the plaintiff was no longer employed at the [COMPANY]: T470.5 – T470.13. She did not see it as her role to become involved in employer – employee matters: T470.25. In any event, that matter did not achieve any relevance in this case as there was no evidence to link the plaintiff to that negative commentary, which was identified as being made by a person named "[NAME]": Exhibit "2".

[NAME] 1. [NAME] holds a responsible position as a marketing director for a large company. She came to know the plaintiff in 2015 in connection with his work at [NAME]' [COMPANY], where her children had attended. She was called to give evidence in the plaintiff's case: T116 – T125. 2. [NAME] confirmed that the plaintiff had undertaken babysitting work for her and her husband on one occasion in late 2015: T116.39. She said that in 2016, the plaintiff had also undertaken some work for her in walking her daughter and a friend of her daughter to a local public school on three mornings a week, namely on Mondays, Wednesdays and Thursdays: T117.6. That work was undertaken over the course of a few weeks until the plaintiff felt he had to stop doing so because his work with [NAME] was continuing: T117.9 – T117.11. 3. [NAME]'s child whom the plaintiff had walked to school had previously been an attendee at [NAME]' [COMPANY] in 2015: T117.17. After the plaintiff left the employment of [NAME], he resumed the work of walking [NAME]'s child to school: T117.46. [NAME] had obviously considered him to be reliable and trustworthy for such important work. 4. [NAME] gave illuminating evidence of a conversation she had with [NAME] after the plaintiff left the employ of [NAME]. Her account of that conversation, which will be set out in due course, was not challenged through cross-examination, although [NAME] later sought to contradict it in her own evidence.

5. I considered [NAME] to be an impressive and reliable witness.

Background Facts 1. In the paragraphs that now follow, unless otherwise qualified, I identify my findings on the background factual circumstances relevant to the issues to be determined in the case.

2. The plaintiff was born in 1996. He sat for his HSC in 2014. In that year, due to a recurrent illness he experienced in that year he did not achieve a sufficient ATAR score to pursue his ambition of undertaking a university course to qualify as a primary school teacher. Instead, he enrolled in the Diploma course in Early Childhood Education and Care at [NAME].

3. On 19 March 2015, through an arrangement that was negotiated between [NAME] by [NAME], as part of the requirements of the plaintiff's course, he commenced an assigned professional or work experience placement at [NAME]' [COMPANY] in [ADDRESS], Chatswood: T31.40 – T32.25. At that time the plaintiff was obviously not qualified with any [NAME] certificates or diplomas apart from clearance to work with children. I find that at that time, [NAME] must have known this was so because she had accepted his placement for professional work experience as part of his [NAME] course.

4. Between April and May 2015, the plaintiff's progress in that placement had become delayed because he had suffered recurrent tonsillitis and was unable to complete all of the formal requirements of his placement at [NAME]' [COMPANY]. However, and notwithstanding that fact, in May 2015, it seems that [NAME] was sufficiently impressed with him that she offered him part-time work to commence at [NAME]' [COMPANY] as soon as he had recovered from tonsillectomy surgery.

5.

Accordingly, in late June 2015, the plaintiff contacted [NAME] to advise that he had recovered from his tonsillectomy surgery. She then invited him to attend the [COMPANY] to sign an employment agreement.

6. On 3 July 2015, the plaintiff attended as requested and on that occasion [NAME] provided him with a written offer of employment at the [COMPANY] on Haig. That offer was for part-time employment to commence on 16 July 2015. The work was for a minimum of 16 regular hours per week "in the position of Certificate III in Early Education and Care" on the terms and conditions set out in that letter: Exhibit "B", pp 6-14. The maximum number of hours that the plaintiff could work was left undefined, which meant there was scope for reasonable variation within that part-time position.

7. Significantly, the offer made by [NAME] did not require that the plaintiff should possess a Certificate III qualification, nor did it refer to any representation allegedly made by the plaintiff to the effect that he held such a qualification. In my view, the job was not offered to the plaintiff as a Certificate III position on the basis that the plaintiff actually held such a qualification at that time. I reject [NAME]'s evidence to the contrary. Furthermore, I find that the plaintiff made no representation to the effect that he would complete such a qualification within a specified period of time. Instead, I find that the position was one in which he would work in that role or classification without the underlying qualification. In the circumstances of this case, that is an important distinction.

8. I am reinforced in that view because that portion of [NAME]' document described as "Offer of Employment", which annexed the job description of the position offered to the plaintiff, allows for that distinction in the Qualification/Essential Criteria section: "AQF Certificate III in Children's Services or an equivalent qualification, or in the opinion of the employer, possesses sufficient knowledge or experience to perform the duties at this level" Exhibit "B", p 12 [Emphasis added]

1. I find that at the time, the plaintiff was offered that position by [NAME] because, as foreshadowed in the terms of the Offer of Employment, she had formed the opinion that he possessed sufficient knowledge or experience to carry out the duties she proposed to allocate to him.

2. The plaintiff had commenced his professional placement with [NAME] on 19 March 2015. In that time he had obviously not completed his placement before the offer was made. In those circumstances I consider that it was most improbable that [NAME] could have reasonably believed that the plaintiff had a Certificate III qualification in [NAME], especially since she had accepted his placement from [NAME] in the knowledge that he was still pursuing his studies.

3. That said, I accept that [NAME]' [COMPANY] was undergoing expansion with more places to be allocated for children to attend there, and that [NAME] had the need for staff who held minimum qualifications as required by regulation. Whilst she may have had plans for the plaintiff to fill such a position when he was qualified, she could not have reasonably thought he was qualified at that time.

4. During the plaintiff's placement at [NAME]' [COMPANY], the advent of his severe recurrent tonsillitis meant that, to [NAME]'s knowledge at the time she offered the plaintiff employment, he had not yet completed his professional placement requirements, which was a necessary part of his course.

5. I am further reinforced as to my view on those matters because of [NAME]'s knowledge of the status of the plaintiff's incomplete qualifications, both at that time, and thereafter, because of ongoing discussions that had taken place between the plaintiff, [NAME] and [NAME] which involved an identified need for him to make up for some lost time in his placement. [NAME] was aware of this fact because she arranged for him to make up for that lost time at her [COMPANY] as distinct from her [COMPANY].

6. I do not accept that the plaintiff had ever represented to [NAME], or to her employees, or to any other person whose children attended [NAME]' [NAME] centres, either by the effect of any actual words used by him, or by silence, that he had completed a Certificate III qualification, as was asserted by [NAME]. I do not accept that [NAME] had a reasonable basis for ever having assumed otherwise.

7. Returning then to the plaintiff's contract of employment, it is plain that he ultimately signed that document, and that at that time he had provided [NAME] with a copy of his resume which clearly noted that the plaintiff had enrolled in his Diploma Course in 2015: Exhibit "B", p 15. [NAME] must have read that resume at that time. A fair reading of that resume does not reasonably suggest that at that time the plaintiff already held a Certificate III qualification.

8. The plaintiff had a confused recollection about the precise sequence of the events of him signing the contract of employment. That confusion was most probably because, as he explained in his evidence, it was his first job, he was excited about the prospect of working in that job, and he did not fully understand the documentation he had signed and needed his parents to explain it to him. I accept his evidence in that regard, which was supported by the evidence of his parents, whose evidence I also accept.

9. In my assessment, nothing of significance turns on the plaintiff's confusion about signing [NAME]' document that offered him employment. It is clear that he had signed the document on two occasions, namely 3 July 2015 and again on 8 July 2015, having taken a copy of it home in order to review it with the assistance of his parents, at which time an obvious error in the document about his rate of pay was corrected, from $20.13 per fortnight to $20.13 per hour.

10. On 8 July 2015, when for a [NAME] time the plaintiff signed the letter comprising the offer of employment with [NAME] he also signed a document entitled "Staff Babysitting Children who attend the [COMPANY]". I accept the plaintiff's evidence that he did not retain a copy of that document.

11. The plaintiff said, and I accept, that before [NAME] took that document from her file and gave it to him in early 2016 in the course of rebuking him about an episode of babysitting he had undertaken, he had no recollection of the document or its contents. 12. [NAME] referred to the abovementioned document as a babysitting policy: Exhibit "B", p 16. On its face, I consider the term "policy" to be a misnomer. In reality, it is nothing more than a statement by [NAME], of a preference that their employees "do not babysit children who attend the service". That document obviously formed part of the plaintiff's employment conditions and obligations.

13. At this point I observe that to the extent that [NAME] considered or claimed that the document comprised an "anti-babysitting policy" (T146.18), the document is internally inconsistent in that it provides that "Staff should contact parents outside of their work hours in regards to private babysitting arrangements" and should not be displaying signage "promoting babysitting services at the [COMPANY]". In my view, those words do not forbid or foreclose staff from undertaking babysitting work for parents of children who attended [NAME]' [COMPANY].

14. Therefore, on its face, the document plainly contemplated that staff at the [COMPANY] may develop relationships with children at the [COMPANY] "through private babysitting arrangements with families". I therefore do not construe [NAME]' document to be an anti-babysitting policy.

15. The document goes on to provide that "Each staff member must inform management of any arrangements made outside the [COMPANY] regarding this policy". The document concludes with a warning to staff in the following terms: "Any member of Staff who is discovered to have breached [COMPANY] confidentiality, or undermined the integrity of their employment relationship with the service in any way, is putting their employment at the [COMPANY] at risk, will be subject to implementation of the [COMPANY]".

16. The terms of [NAME]' Grievance Procedures were not the subject of evidence in these proceedings.

17. On about 16 July 2015, the plaintiff commenced working at [NAME]' [ADDRESS] premises in accordance with his employment contract. He plainly satisfied [NAME]' requirements of passing a three month probationary period. Were it otherwise, it would have been most unlikely that his employment with [NAME] would have continued beyond October 2015.

18. From July 2015, and continuing until late 2015, the plaintiff attended to the requirements of his job at the [COMPANY]. In doing so, he routinely undertook additional work to cover both scheduled and unscheduled absences of other staff members. He also undertook additional professional work experience at the [ADDRESS] premises to make up for the time he had missed in relation to his course requirements, which he had not yet fulfilled because he had been ill earlier in that year.

19. In October and November 2015, the plaintiff also lost some time from work when he had to undertake some lengthy dental treatment for a dislocated jaw. In that regard, he had an adverse reaction to an anaesthetic: Exhibit "B", p 17. In 2015, the plaintiff did not pass all aspects of his paperwork assessments with [NAME] and he had to make up some time: T39; T40.23 – T40.31. By the end of 2015, the plaintiff had not yet completed his professional experience module: T41.40. He therefore had to make up the time at [NAME]' [COMPANY]: T39.40.

20. In relation to those events, on 24 November 2015 a [NAME] undertook a work placement assessment of the plaintiff and advised him and [NAME] that he needed to retake a particular portion of his course. It must have been plain to [NAME] at that time, if not beforehand, that the plaintiff did not yet hold a Certificate III qualification. I do not accept [NAME]'s hyperbolic and overdramatised evidence where she said she "nearly had a heart attack" when she found out that the plaintiff had not progressed in his course: T265.2.

21. By the end of 2015, the plaintiff had built up excellent relationships with the staff and children at the [COMPANY], and with the parents of those children. The plaintiff had taken to the job. He saw it as an amazing opportunity and described it as a dream come true: T38.20 – T38.23. He found the staff friendly and he got on well with the children and their families: T41.41 – T41.46. 22. [NAME] had thought sufficiently highly of the plaintiff to entrust him with keys to the premises, thereby also entrusting him with tasks such as opening and locking up the premises: T38.48. At the time [NAME] gave the plaintiff those responsibilities, I consider that it was most improbable that she would have harboured concerns over his honesty, trustworthiness, or his qualifications and fitness to work in [NAME]' [NAME] sector.

23. On 23 December 2015, at a time whilst [NAME]' [COMPANY] was obviously closed, [NAME] had contacted the plaintiff to engage him to babysit her children who already knew him from his work at [NAME]' [COMPANY]. The plaintiff accepted and fulfilled that task. I accept that when he did so in good faith and in ignorance of the terms of [NAME]' staff babysitting preferences or, as [NAME] would have it, their babysitting policy.

24. That said, I nevertheless find that it could not reasonably be said either in a disciplinary sense or otherwise, that the plaintiff was in breach of any of the terms of [NAME]' so-called policy concerning babysitting. There is no evidence that the plaintiff had solicited that babysitting work during his working hours. The evidence is overwhelmingly to the contrary as [NAME] had approached him to do that work outside of working hours.

25. At the time the plaintiff undertook the babysitting of [NAME]'s children they were not attendees of [NAME]' [COMPANY]. At that time, the [COMPANY] was closed for the holiday season. Whilst it might be arguable that the plaintiff had not informed the management of the [COMPANY] of those arrangements, two things may be said about those circumstances. First, the so-called policy did not specify a time requirement for informing management of such arrangements, and secondly in any event, it would have been plainly impracticable for him to do so before the event at that holiday time of the year and in the circumstances in which he had been approached.

26. In mid-January 2016, the plaintiff received a transcript of his [NAME] studies and provided a copy of it to [NAME]: Exhibit "B", p 18. That transcript showed that, as at 21 December 2015, the plaintiff's results for the academic year were that he had been assessed as being competent in four out of six course units, and not yet competent in respect of two units: Exhibit "B", p 18. The plaintiff's action in providing a copy of that document to [NAME] tends to contradict the suggestion from [NAME] that the plaintiff had not been truthful in his dealings with [NAME] about his studies. I do not accept [NAME]'s evidence to the effect that she had been pressing the plaintiff for his course results for some time beforehand.

27. The plaintiff had not concealed from [NAME] the fact that he had not yet completed all of the requirements of his course. If the position were otherwise, I consider it most unlikely that [NAME] would have remained silent on that subject until composing the subject email of 4 April 2016.

28. That view is confirmed by the content of an email dated 4 February 2016 the plaintiff sent to [NAME], at [NAME], in which he cited [NAME]'s expressed uncertainty about whether she still wished to go ahead with the plaintiff's traineeship program due to "bumps" that had occurred in his Certificate III course. [NAME] was cited as having said to the plaintiff that she "would have to think about it", and that she had requested a discussion with [NAME] in the following week.

29. The plaintiff's email recited [NAME]'s request that she really needed him to finish his Certificate III course within one month, which meant early March 2016: Exhibit "B", pp 20-21. In my view [NAME]'s cited need for the plaintiff to finish his course quickly was most probably due to the expansion of her business and her intention to deploy the plaintiff in a regulated position. I do not accept it was due to any misrepresentation on the part of the plaintiff.

30. In the circumstances of [NAME] wanting the plaintiff to complete his Certificate III course within a month as at early February 2016, it is unsurprising that the plaintiff did not feel able to work on Wednesdays, as was communicated to [NAME] as being his only choice in order to complete his course as soon as possible, which was her wish: Exhibit "B", p 31.

31. If [NAME] had truly felt that the plaintiff had been untruthful with her regarding his studies, given the forthright nature of her communications with the plaintiff, she would most probably have ventilated such a sentiment to him, in writing, well before he tendered his resignation to her on 13 March 2016 (Exhibit "B", p 36) and well before the email that comprises the matter of which the plaintiff complains.

32. The plaintiff forwarded the [NAME] email chain to [NAME] at 6.13pm on Thursday 4 February 2016: Exhibit "B", p 22. In my view, and well before 4 February 2016, [NAME] was well aware that the plaintiff had not yet completed his course. Whilst I accept that [NAME] was most likely anxious about filling staff positions in her expanding business, I do not accept that the plaintiff had been in any way deceitful to [NAME] as to the status of his studies or his qualifications.

33. However, the described events seemed to coincide with a downturn in the relationship between the plaintiff and [NAME].

34. Returning then to the consequences of the babysitting work the plaintiff had undertaken from [NAME] in December 2015, it transpired that in January 2016, [NAME] had ascertained that the plaintiff had undertaken babysitting work for [NAME]: T45.20. 35. [NAME] plainly took exception to the plaintiff having undertaken such work, and on 3 February 2016 she angrily and explicitly reprimanded him in stern terms: T44.5 – T44.18. Notwithstanding her denial that she had yelled at him when she had told him to cease such babysitting activity (T353.39 – T353.40), I accept the plaintiff's evidence that she yelled at him at that time, and that it was this reaction on her part which caused him to fear her: T44.13 – T46.32.

36. When the plaintiff was confronted by [NAME] in that manner on the subject of babysitting, he apologised to her profusely, and said he would not undertake further babysitting work for parents of children at the [COMPANY] again: T137.42 – T137.44. [NAME] confirmed that he said so: T353.47. I accept that the plaintiff's reaction to that confrontation was one of shock, apprehension and fear.

37. The plaintiff was quite shocked by those circumstances because he had not read or recalled any terms of his employment that contra-indicated babysitting activity outside of working hours: T44.16. When the plaintiff intimated to [NAME] that he could not recall any such term of his employment, she then provided him with a copy of the contract he had signed, which he then took home and discussed with his parents in the context that he had become scared and emotionally upset by the described circumstances: T44.30 – T45.50.

38. The plaintiff acknowledged he had made a mistake by not telling his employer about the babysitting he had undertaken. I accept his explanation that he did not have the issue in mind as he did not have a copy of that part of the contract documentation: T46.9. That said, on 23 December 2015, it would have been impracticable to inform his employer of such work. Thereafter, because the plaintiff was afraid that [NAME] might yell at him again, he refrained from doing any further babysitting for parents who had children at the [COMPANY]: T46.30 – T46.41.

39. In any event, the plaintiff's employment with [NAME] continued throughout February until 13 March 2016, which was when the plaintiff sent his resignation to [NAME] by email, in which he expressed his resignation to be effective from 15 April 2016: Exhibit "B", p 36. The period of notice given by the plaintiff was well in excess of the one week of notice he was required to give according to the terms of his contract of employment: Exhibit "B", p 9, cl 12.1.

40. Given the factual issues raised by [NAME] in this case, it is necessary to identify, review, and to form a concluded view of the sequence of events that led to the plaintiff tendering his resignation on 13 March 2016, and to also identify the circumstances in which [NAME] later terminated his employment on 24 March 2016, which she did without beforehand personally informing him of that decision, or the reason behind that discussion, and without initiating the Grievance Procedures that were referred to in the plaintiff's contract of employment. I do not accept [NAME]'s evidence that she had intimated to the plaintiff by telephone that she was going to terminate his employment.

41. Before identifying those matters, for context, it is also relevant to identify an alleged babysitting issue which was relied upon by [NAME] as a criticism of the plaintiff. I consider that criticism to be misplaced and fundamentally incorrect.

42. In early 2016, the plaintiff was working for [NAME] on Tuesdays, Thursdays and Fridays: T47.32. In early February 2016, [NAME] had made a private arrangement with the plaintiff for him to walk one of her children, who no longer attended at [NAME]' [COMPANY], and another unrelated child, to a local public school on three mornings per week, on Mondays, Wednesdays and Fridays: T47.4 – T47.15. This was at a time when, despite [NAME]'s evidence to the contrary which I do not accept, the plaintiff was not rostered to work for [NAME] on Wednesdays. This was also at a time when another of [NAME]'s children had still continued to attend [NAME]' [COMPANY].

43. I have set out the detail of those circumstances in order to provide the basis for my finding that I consider there had been no wrongdoing on the plaintiff's part, or on the part of [NAME] for that matter, concerning those events, notwithstanding that [NAME] apparently took a different view, as was intimated to the plaintiff by [NAME], a circumstance that was apparently influential to the plaintiff being peremptorily dismissed from his employment with [NAME].

44. Before examining the circumstances of the plaintiff's dismissal, in view of the defences pleaded by [NAME], it is necessary to identify some other relevant events that occurred earlier in February and March 2016.

45. In February and March 2016 the plaintiff had been in discussion with [NAME] personnel about the progress of his course: Exhibit "A", p 2. The context was the plaintiff's aim was to complete his Certificate III course as soon as possible. With that reasonable objective in mind, as the email correspondence in Exhibit "B" confirms, the plaintiff authorised [NAME], from [NAME], to speak with [NAME] about his study programme.

46. What then followed was a series of communications in which, on the late afternoon of Friday 11 March 2016, culminated in [NAME] deciding to change the plaintiff's roster to require him to work a 5 day week to commence on 14 March 2016 which, involved him being rostered for work for 40.5 hours in that week, which was well in excess of the 16 hours of part-time work that had been agreed when he was employed: Exhibit "C".

47. This was despite the plaintiff having earlier emailed [NAME] the day before, to advise her that he could not work on Wednesdays, and also despite clause 4.2 of the plaintiff's contract of employment which provided that the plaintiff would be given as much advance notice as possible in relation to the changes in his rostered working hours if it became necessary to address operational changes.

48. Beforehand, following on from the plaintiff's email of 10 March 2016 to [NAME], on 11 March 2016, [NAME] entered into discussion with [NAME] about the plaintiff's choice of [NAME] course work on Wednesdays. The plaintiff's choice in that regard was at that time entirely a matter for him. 49. [NAME] emailed the plaintiff at 10.46am on 11 March 2016 to express her disappointment with his choice for taking [NAME] tuition on Wednesdays. That communication was followed up by an email of 11.12am on 11 March 2016 to the plaintiff from [NAME], in which she cited [NAME]'s expressed frustration with the plaintiff over his choice of the option to attend at [NAME] on Wednesdays to advance his course work.

50. Plainly, [NAME] was annoyed with the plaintiff about those circumstances, and she communicated that fact to [NAME] at [NAME]. It appears that her annoyance related, at least in part, to her need to fill her staffing roster. 51. [NAME] having sought out a prior discussion or communication with the plaintiff to seek to reach a negotiated outcome on that issue, on the late afternoon of 11 March 2016, [NAME] peremptorily issued a roster in which the plaintiff was listed as being required to be on duty for all five days in the week commencing 14 March 2016, for a total of 40.5 hours: Exhibit "C".

52. Those circumstances led the plaintiff to the viewpoint that he should resign his employment with [NAME] in order to prioritise his [NAME] course. He submitted his resignation to [NAME] by email on the afternoon of Sunday 13 March 2016. In doing so, he acted more than reasonably in giving one month's notice with the intention of ceasing his work with [NAME] on 15 April 2016.

53. The plaintiff's stated reasons for resigning from his employment were that [NAME] had directed him to work a full five day week, namely, on Mondays and Wednesdays on top of his usual Tuesday, Thursday and Friday schedule. This was in circumstances where he had only been employed in a part-time position. This was also in circumstances where he had made [NAME] commitments for Wednesdays in order to complete his Certificate III course as soon as possible. In framing his resignation the plaintiff told [NAME] that he thought it was inappropriate and unreasonable that he be forced to take annual leave as she had suggested, in order to accommodate her roster.

54. On 14 March 2016, following the plaintiff's resignation email, [NAME] changed the roster so that he was no longer required to work on the following Wednesday. The plaintiff then attended to his work as usual on 15 March 2016. On that evening he became ill and he was admitted to hospital for intravenous treatment for a viral illness thought to have been contracted from a child at the [COMPANY]. In that regard, the plaintiff was issued with a medical certificate to cover an absence from his work between 16 March 2016 and 21 March 2016 on account of that illness.

55. On 21, 22 and 24 March 2016, the plaintiff returned to work and attended to his usual work at [NAME]' [COMPANY]. I now turn to the events that led to the plaintiff's dismissal from his employment with [NAME] on the afternoon of 24 March 2016.

56. As already described at [82] to [85] above, on 24 March 2016, the plaintiff had been informally asked by [NAME] whether he had been walking children to school. In response he immediately proffered a denial of that proposition. I accept that his denial was driven by his panicked reaction at having been told [NAME] had found out about this activity: T52.10. I consider that initial reaction of shock on the plaintiff's part (T52.49) occurred because he was afraid of being yelled at by [NAME]: T46.32.

57. Later that day, the plaintiff thought more about that denial, and a few hours later that day, he acknowledged to [NAME] that he had been walking children to school: T52.18 – T52.36. There was an element of discrepant confusion regarding that conversation with [NAME], whom he regarded as a friend and confidante, as well as being his work supervisor: T53.1 – T53.30.

58. The element of confusion was that whilst the plaintiff thought [NAME] had asked him about his activity of walking children to school, [NAME] said she had asked him about babysitting. In my view, the difference between those two descriptions was significant. On the basis of [NAME]'s question, the plaintiff had done nothing wrong with regard to observance of [NAME]' so-called babysitting policy.

59. Later that day, by telephone the plaintiff informed [NAME] that he had been walking the girls to school but he also told her he did not think he had done anything wrong as he believed that walking a child to school was outside the hours of his work at the [COMPANY] (T54.38) and that the children in question were school children who no longer attended [NAME]' [COMPANY]: T56.28. [NAME]'s telephone response was to get very angry at him. She then asked him to put [NAME] on the telephone: T54.1 – T54.9; T54.45 – T55.49.

60. I do not accept [NAME]'s evidence to the effect that in the conversation referred to above or at any earlier point in time, that she had intimated to him his employment would be, or was terminated.

61. In the conversation between [NAME] and [NAME] asked [NAME] to escort the plaintiff from the premises and to ensure he did not speak to any parents who were present to pick up their children. That response was an obvious and unambiguous dismissal and termination of the plaintiff's employment.

62. I accept the submission made on behalf of the plaintiff that [NAME]'s motive for having the plaintiff escorted from the premises was most probably to protect her business interests, she did not want the plaintiff to be telling parents of children at the [COMPANY] anything that might not be in accordance with her own construction of the events. If the plaintiff had an opportunity at that time to either volunteer or respond to questions about his enforced departure, this could have been damaging to the business interests of [NAME].

63. After the telephone conversation with [NAME] had concluded, [NAME] proceeded to explain [NAME]'s instructions to the plaintiff. He was upset over the circumstances. The plaintiff was then reassured by [NAME] that he could later retrieve his belongings. He was then escorted off the premises by [NAME].

64. The plaintiff was not paid his wages for the remaining period of his notice or the wages that were at least due to him for the ensuing week, pursuant to his contract of employment, if not for the balance of the notice period he had given [NAME]. In these proceedings he has made no claim for the loss of those wages.

65. At this point it is relevant to identify a revealing conversation between [NAME] and [NAME] that took place in about April 2016. After the plaintiff had left the employment of [NAME] sought out [NAME] by ringing her at her work to speak about the plaintiff. [NAME]'s evidence in that regard was as follows: "… Q. Can you tell us at least roughly when he resumed walking the children to school? A. I'd probably say around April, maybe - yeah. Q. Now, did you have a discussion around that time with [NAME]? A. [NAME] - yes. Yeah, I did. Q. Could you tell us roughly when that discussion occurred? A. Yeah. I would say it would be after somewhere around the time when [NAME] had left [NAME]. So I don't remember the dates, exactly, but it was sometime after or around the time that [NAME] had left [NAME]. Q. Could you tell us what [NAME] said to you and what you said to [NAME]? A. So she rang me at work and really just wanted to say, as a parent to another parent, that although [NAME] was really good with the children, there were - you know, he couldn't be trusted fully, and that she wanted me to be aware of - I guess that he's not a totally honest person, and she just wanted to warn me as a parent, you know, should I continue to use him in the future to look after our children. Q. What was your reaction to that? A. I was really surprised, because [NAME] has always been really good with our kids, and our kids adore him, and I've never found him to be dishonest, or didn't think that he had been dishonest with us. So, yeah, it surprised me. Q. Did you say anything to [NAME] in the telephone conversation about A. Yeah, I raised the fact that I thought that it was very unfair that she, so called, would not allow her staff member or members to babysit children of the [COMPANY] outside of their working hours, and that, you know, my previous day care centres that I've sent children to, you know, had never restricted that, and because we were new, you know, just moved back from Melbourne, you know, it's very hard to find someone who you trust to look after your kids, and when you do, you know, you always want to try to use them. Yeah, and so I said that it was unfair, and her, I guess, [her] counterclaim to that was, "Well, if you use him, then I can't use him to work for the days that I require him." And I basically said that, "You've employed him for a certain number of hours, and what he does outside of those hours is up to him, and I think that it's unfair, considering the pay conditions within the child care arena, is not very high, and so that's cutting someone's ability to earn outside of the scheduled working hours."" [T117.38 – T118.28] [Emphases added]

1. In my view, it is of determinative significance that the evidence given by [NAME] as cited above was not challenged in cross-examination. This was despite the fact that she claimed she had conveyed to her legal advisors her disagreement with the account given by [NAME] when she heard her give that evidence: T356.26. I do not accept [NAME]'s denials about that conversation: T355.30 – T356.26. The two highlighted portions of [NAME] unchallenged evidence of what [NAME] had told her, reveal an inconsistency and a tension within [NAME]'s stated attitude towards the plaintiff, on the one hand casting aspersions on his character, yet on the other hand, including that she was still wanting to continue to employ him.

2. It is plain from the terms of the first of [NAME]'s comments about the plaintiff as cited above, that in the cited conversation with [NAME], she wanted her to know that she regarded the plaintiff not to be fully trustworthy, not totally honest, and that a warning was needed to be given to parents thinking about engaging the plaintiff to look after their children. Fortunately for the plaintiff, [NAME] did not share [NAME]'s cited opinions regarding him.

3. Thereafter, and without any involvement of the plaintiff, on an uncertain date shortly after the plaintiff left [NAME]' employ, a person self-described as [NAME] posted the following Google review of [NAME]' [COMPANY]: "… I am an ex employee. I had the worst experience working at [NAME]. When I resigned, the owner did not pay me my full entitlements. [NAME] took a lot of money from me and treated me quite inhumane. As for the actual service, I wouldn't leave my child there, not for one [NAME]. If she was a good boss and honest, I would not be writing this review." [Exhibit "2"]

1. On 24 May 2016, the solicitor for [NAME] wrote to the plaintiff with reference to the above Google posting. That letter from the solicitor for [NAME] positively asserted that [NAME] believed the plaintiff had written that Google comment shortly after having left [NAME]' employ. I do not accept [NAME]'s evidence in which she sought to disavow the instructions she had given to her solicitor as reflected in that letter. The letter asserted that the material was defamatory. An apology was sought from the plaintiff: [redacted]

2. In reply to that letter, also on 24 May 2016, the plaintiff wrote to [NAME]' solicitors to unambiguously inform them he was not the author of the Google comment: Exhibit "B", p 47. Therefore, he did not make the requested apology. Those events led to the plaintiff seeking legal advice, following which he initiated these proceedings.

3. At around that time, the date was not clear, [NAME] said she had spoken to seven other parents about the email dated 4 April 2016 that had referred to the plaintiff: [redacted] 4. [NAME] had decided to share [NAME]'s email with the plaintiff after he had disclosed to her that [NAME] had wrongly accused him of posting a bad internet review about the [COMPANY], and that she was demanding a retraction or an apology: T119.40. 5. [NAME] said that when she first read the subject email she considered that it contained a misrepresentation as to the circumstances of the plaintiff having left the employ of [NAME] as she had understood the plaintiff to have resigned from his employment, rather than being fired for "disciplinary reasons": T120.22. 6. [NAME] made the observation that in the time leading up to his resignation, the plaintiff was very stressed about his employment at [NAME]' [COMPANY]. In that regard, she noted that his confidence levels had been affected and there was a noticeable difference in him after 3 July 2016: T120.30 – T130.45. Her lay description of him was that he was "quite down" and "quite depressed": T121.14.

7. Subsequently, on 24 June 2016, the plaintiff withdrew from his Diploma course. He did not resume his studies until 4 October 2016, when he commenced a Certificate III in Early Childhood Education and Care course. He completed that course in December 2016.

8. In the intervening period between those two events, on 3 July 2016, the plaintiff became distressed on reading the subject email. On 21 July 2016, he sought medical treatment from his general practitioner for that distress. On subsequent occasions he sought further medical assistance and the assistance of a psychologist for his distress. The plaintiff also then sought legal advice.

9. On 22 July 2016, the plaintiff's solicitor wrote to [NAME]' solicitor concerning the defamatory content of that emailed newsletter. The plaintiff's concern over that matter continued to remain unabated, and on 28 November 2016, his solicitors served a Notice of Concerns on the solicitor for [NAME]. Despite two requests to do so, [NAME] have never apologised to the plaintiff over the content of the matter complained of in the emails in question. On 3 April 2017, the plaintiff filed his statement of claim against [NAME].

10. In early 2017, the plaintiff obtained his present part-time employment in the [NAME] sector: T160.38 – T160.40. He remains in that part-time employment.

11. I now turn to my consideration and reasons for decision concerning the issues that call for determination as identified at [27] above.

Issue 1 – Publication of the email material 1. [NAME], who was the undisputed guiding mind and director of the first defendant company, conceded that she had published the matter complained of to two groups of [NAME]: T288.40 – T289.12. I find that she must be taken to have done so not only for herself, but also in her capacity as director of her company, the first defendant: [redacted]

2. All of the persons to whom the matter complained of had been sent were parents who had children at [NAME]' [COMPANY]: T311.19 – T311.22. [NAME] received the material of which the plaintiff complains, on or about 4 April 2016: T118.33; T119.31 – T119.33. I infer from the format of the emails, and from the fields within them, on the balance of probabilities, that the matter of which the plaintiff complains was also published to those other named [NAME]. 3. [NAME] confirmed that all [NAME] would have known at the time the emails were received by them, that the reference to "[NAME]" in the emails identified the plaintiff: [redacted]

4. Therefore, on the evidence cited above, I cannot accept the submission made on behalf of [NAME] that the plaintiff has not discharged his onus of proving the material complained of had been relevantly published. In my opinion, the evidence is overwhelmingly to the contrary of that submission.

5.

I therefore find that the material of which the plaintiff complains was relevantly published.

Issue 2 - Imputations 1. The next issue to be determined is the question of whether in each instance, the accusations or imputations pleaded by the plaintiff, are in fact conveyed.

Principles 1. The principles to be applied in determining the existence, capacity and defamatory meaning of imputations are well settled: Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16, at [60]; Hockey v Fairfax Media Publications Pty Ltd (2015) 332 ALR 257, at [62]-[68].

2. Essentially, the test to be applied in this case is whether or not the ordinary reasonable reader of the emails complained of, would find that the pleaded imputations relating to the plaintiff were in fact conveyed. In addressing that question, the primary focus of attention must be to the ordinary natural meaning of the words of which the plaintiff complains, when considered within the context of the email when read as a whole.

3. In that regard, the relevant parts of the email content that must be read and considered in this case include the range, identity and connection of the addressees to the plaintiff, as well as the content cited at [4] above, under the heading "Staff Updates".

4. In that context it is plain from the terms and the structure of the emails that [NAME] sent the emails not only for herself, but also in the capacity of her role as the director of the company that employed the plaintiff.

5. I now turn to the consideration of each of the pleaded imputations as identified in [15] above

Imputation (a) – the plaintiff is dishonest 1. [NAME] sought to describe imputation (a) in diminished terms as "an attribution of general character and hence not conveyed". It was submitted that such conclusion should prevail because the emails specify one instance of dishonesty and do not suggest a general attribute of dishonesty.

2. In my view, that submission should be rejected as the ordinary natural meaning of the words "[NAME] was not truthful with us regarding his studies and some other issues" conveys multiple acts or instances of the plaintiff not being truthful. I accept the plaintiff's submission that the allegation of a number of acts of untruthfulness conveys the condition of dishonesty.

I therefore find that imputation (a) is sustained.

Imputation (b) – untruthful regarding studies and other issues 1. The plaintiff submitted that imputation (b), namely that he "was not truthful with [NAME] regarding his studies and some other issues" was conveyed. The defendant ultimately conceded that imputation (b) is conveyed, and accordingly, I so find.

Imputation (c) – fired for disciplinary reasons 1. In respect of imputation (c), [NAME] argued that since the word "fired" was not used by [NAME] in relation to her dealings with the plaintiff, and since other words carrying a similar degree of ignominy were not used by her, the compulsory aspect of the cessation of the plaintiff's employment at the [COMPANY] had been downplayed in [NAME]'s email to parents. 2. [NAME] further argued that the words chosen by [NAME] raise for the reader a number of possibilities, ranging from a constructive dismissal to a dismissal simpliciter, which, it was argued, also raised the possibility that [NAME] did not want the plaintiff presented to the readers of the emails as having incurred the most severe form of denouncement in his employment, namely dismissal or having been "fired".

3. In my view, those submissions should be rejected because they are based on a most selective and incomplete reading of [NAME]'s emails whereas the content should be read as a whole. Furthermore, as was correctly pointed out in the plaintiff's submissions in reply, [NAME]' submission appears to be an admission that the "fired" imputation was in fact conveyed.

4. I find that the ordinary natural meaning of the words: "[NAME] – is no longer with us due to disciplinary reasons", when considered in conjunction with the words: "I felt it was better for him to move on …", make it clear that it was [NAME], and not the plaintiff, who chose to terminate the plaintiff's employment. Consequently, I find that the "fired" imputation is conveyed and I therefore find that imputation (c) is sustained.

Imputation (d) – conduct leading to termination of employment 1. [NAME] submitted that imputation (d), namely that the plaintiff "conducted himself in such a manner that a [COMPANY] terminated his employment", is simply repetitive of imputation (c). [NAME] also argued that imputation (d) has no context and, it was argued, says nothing of the plaintiff that is not said to be attributed to him by imputation (c).

2. In that regard, [NAME] further argued that the only difference between imputation (d) compared to imputation (c) was the generality of the language employed, where the substance of imputation (d) is that the plaintiff was fired on account of his conduct at the [COMPANY]. [NAME] argued this was subsumed in imputation (c), namely, that the plaintiff "was fired for disciplinary reasons".

3. I consider those submissions by [NAME] should be rejected because of the ordinary natural meaning of the words used, where those words invoked unspecified disciplinary reasons arising from the nebulous, more ominous, yet opaque words: "some other issues".

4. I find that an ordinary reasonable reader of the matter complained of would take the meaning as was submitted by the plaintiff, namely that the plaintiff's conduct resulted in the termination of his employment.

I therefore find that imputation (d) is sustained.

Imputation (e) – unfitness to work in [NAME] 1. [NAME] submitted that imputation (e), namely that "the plaintiff is not a fit person to work in [NAME]" should not be sustained because it alleges an indefinite unfitness to work only in [NAME]'s [COMPANY], but also in "[NAME]" generally for an unspecified period, whereas the email is said not to foreclose future employment in [NAME], but "by implication", only for a "finite" period after the plaintiff gains a bit more life experience. The "finite" implication does not arise because the words used were contingent on the plaintiff gaining more life experience.

2. Therefore, I consider [NAME]' cited submissions should be rejected for that reason and because the vague reference in the matter complained of to "some other issues", and in particular, the suggestion that the plaintiff should "possibly gain a bit more life experience". That statement by [NAME] was expressed in the present tense. It plainly conveys the imputation that the plaintiff should not be working in [NAME]. I find that emphasis arose, particularly so, where it is widely understood in the community that the [NAME] profession demands of its workers a high standard of personal integrity and behaviour so as to qualify for a certificate of clearance for working with children.

3. Although not necessarily determinative, a convenient alternative means of testing [NAME]' argued position on imputation (d), is the obvious point that in any future applications for employment in the [NAME] sector, the plaintiff would almost certainly be obliged to disclose his previous employment positions in that sector. In that regard, due to the required standards of probity demanded in that profession, there would almost inevitably be employment and reference checks. If [NAME] were to be called upon to answer enquiries from prospective employers about the plaintiff's suitability or his work history, I consider that, consistent with the content of [NAME]'s cited email representing her views, a cloud of unsuitability would most likely emerge around the plaintiff from such a conversation. I find that imputation (e) is sustained.

Conclusions on imputations 1. For the above reasons I find that each of the claimed imputations as relied upon by the plaintiff, as cited at [15] above, arise as claimed.

Issue 3 – Whether imputations carried defamatory meanings 1. For the reasons that follow, I find that each of the pleaded imputations convey a meaning that was defamatory of the plaintiff.

2. In their amended statement of defence filed in Court on 14 May 2018 ([NAME] "11"), [NAME] did not admit that any of the imputations claimed by the plaintiff were defamatory. That was so notwithstanding that the stings of the imputations included the characteristics of dishonesty, committing acts of dishonesty, committing acts of indiscipline which led to dismissal, and being a person not fit to work in [NAME].

3. In light of those matters, the plaintiff submitted that an ordinary reasonable person reading the matter complained of, would think that each of the imputations would injure his reputation, and would attract opprobrium, disdain, ridicule and contempt from society, and that each imputation was clearly defamatory.

4. Ultimately, and belatedly in my view, in final submissions, on behalf of [NAME], it was "accepted that all imputations as set out in the statement of claim (a) to (e) are defamatory". In my view, that concession was appropriate.

5. In my view, an ordinary reasonable reader would fairly draw from the text complained of by the plaintiff in the emails, a general conclusion, impression and understanding that was adverse to, and injurious to, the plaintiff's otherwise good reputation: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37, at pp 575-576, at [134].

Issue 4 – Claimed defence of truth 1. In its distilled effect, [NAME] submitted that in the event that imputations (a) to (e) are found to be conveyed by the emails in question, each imputation is substantially true: Amended defence dated 14 May 2018; [NAME] "11", par 5. In that regard, [NAME] argued that the plaintiff had deceived [NAME] in relation to three relevant categories, namely:

1. His academic qualifications;

2. His performance of additional paid work;

3. His availability to complete study.

1. The pleaded defence of substantial truth is gleaned from paragraph 5 of an almost incomprehensible pleading that meandered over 8 pages (pp 2-10) of labyrinthine detail in sub-paragraphs and sub-parts to those sub-paragraphs, some of which was internally inconsistent and the large bulk of which was not made good by acceptable evidence.

2. A justificatory defence of substantial truth is permitted by s 25 of the Defamation Act, as follows: 25 Defence of justification It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

1. By s 26 of that Act, a justificatory defence of contextual truth is permitted, as follows: 26 Defence of contextual truth It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true, and (b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

Alleged deceit about academic qualifications 1. As to the first category of claimed deception by the plaintiff, [NAME] submitted that on 5 June 2015, the plaintiff had represented to [NAME] that he had completed a Certificate III in Early Childhood Education and Care: Amended Defence filed 14 May 2018, par 5.A(ii). The truth defence asserts that on 5 June 2015, the plaintiff had represented to [NAME] that he had completed a Certificate III in Early Childhood Education and Care. [NAME] maintained that position in her evidence in chief and in her answers given in cross-examination, as well as in final submissions made on her behalf ([NAME]' written submissions, par 62), which were in response to the plaintiff's written submissions (at paragraphs 59 and 60).

2. In answer to questions in cross-examination [NAME] did not concede that for regulatory purposes she knew she could not count the plaintiff as an educator because of the state of his qualifications: T380.16 – T380.22. She acknowledged she had counted him as an educator for regulatory ratio purposes: T380.11. She acknowledged that she was concerned that she might get into trouble over non-compliance with those regulatory ratios and said she held that concern at all times the plaintiff was employed: T380.36. She denied that she had made a mistake in counting the plaintiff for staff ratio purposes (T380.21), and claimed the mistake only became apparent in retrospect (T380.26) due to an alleged earlier deception by the plaintiff as to his qualifications. 3. [NAME] denied that the major reason she sent the email accusing the plaintiff of lying was to manufacture a reason for her business not complying with regulated staff ratios, namely an alleged misrepresentation by the plaintiff rather than fault on her part thereby scapegoating the plaintiff for her problem as she needed someone to blame for her default in regulatory compliance: T380.44 – T381.16.

4. I do not accept [NAME]'s cited denials. I consider that in the circumstances in which the plaintiff fell from favour in [NAME]'s eyes, the above-cited assumptions put to her, and which she denied, were more probably than not, correct. I do not accept her evidence she had been given to understand the plaintiff had fulfilled the component requirements of his course.

5. Ultimately, [NAME] did not assert that the plaintiff's signature on the contract of employment constituted a deception. Instead, it was argued that it was the plaintiff's positive response to [NAME] on 5 June 2015, and allegedly repeated on 8 July 2015, affirmatively suggesting that he had a Certificate III, constituted the relevant deception. 6. [NAME]' submissions assert that the cited context reveals that the plaintiff made an intentional and substantive misrepresentation as to his level of qualification.

7. For the reasons already identified at [102] to [105], [109], [129] to [135] above, I do not accept that submission because I do not accept [NAME]'s evidence on that issue. I reject the assertion that on 5 June 2015 or subsequently, the plaintiff claimed he had a Certificate III qualification, either intentionally, or otherwise.

8. Instead, I accept the submission made on the plaintiff's behalf to the effect that the plaintiff's contract of employment, stating the job was "in the position of Certificate III", was nothing more than an identification of the level at which [NAME] expected the plaintiff would perform his duties. I do not accept that the plaintiff's signature on [NAME]' documents, or that any words spoken by him, constituted a representation that he held a Certificate III qualification, or requisite components thereof.

Alleged deceit about additional paid work 1. As to the [NAME] category of claimed deception by the plaintiff, [NAME] submitted that a factual finding ought to be made that the plaintiff had attempted to deceive the management of the [COMPANY] "in connection with his performance of additional pad (sic for paid) work".

2. Putting aside the matter of whether or not the plaintiff had been paid for any work he had undertaken for parents outside of his work at the [COMPANY], the evidence called by [NAME] to seek to support this component of the truth defence fell far short of the detail set out in its pleaded defence at paragraphs 5.A(ix) to (xii) of the amended defence filed on 14 May 2018. Those particulars were as follows: "5.A… ix. At all material times, it was a policy of the First Defendant that employees were not permitted to enter into private arrangements with parents of children who attended the first defendant's [COMPANY] ("the First Defendant's policy"). A document titled 'Staff Babysitting Children who Attend the [COMPANY]' not permitted to enter into private arrangements with parents of children who attended the first" defendant's [COMPANY] ("the First Defendant's policy"), signed by the Plaintiff on 8 July 2015 provides, so far as is relevant: "The [COMPANY] prefers that its employees do not babysit children who attend the service. Staff who enter into these private arrangements with parents will be required to always maintain the integrity and confidentiality of their work at the [COMPANY]. Each staff member must inform management of any arrangements made outside the [COMPANY] regarding to this policy. Each staff member has to sign a Confidentiality policy." A copy of this document is attached. x. On 8 July 2015, prior to the Plaintiff commencing employment with the First Defendant, the Plaintiff signed an acknowledgement indicating that he was aware of, and agreed to be bound by, the First Defendant's policy. xi. In breach of the First Defendant's policy, without the First Defendant's knowledge or consent, the Plaintiff entered into a private arrangement with a parent of a child who attended the First Defendant's [COMPANY] whereby he would provide babysitting services. This came to the [NAME] defendant's attention at the end of January 2016. xii. On 3 February 2016, the [NAME] defendant reminded the plaintiff of the relevant policy and issued him a first and final warning. That warning was issued verbally and in the presence of the nominated supervisor, [NAME]. The plaintiff confirmed that he would not perform any additional paid work for the relevant parent. The plaintiff made that representation verbally. The warning refferd (sic) tp (sic) at 5 A (xii) was issued verbally by the [NAME] (sic), and was in the terms: "You are definitely not permitted to do any more paid work for the [NAME] or any other family at the centres"."

1. In that regard, the following noteworthy matters emerge from the evidence:

1. The assertion of employees being "not permitted to enter into private arrangements" is in my assessment an unreasonable overstatement to the meaning of the so-called policy of [NAME];

2. The evidence of [NAME] did not support [NAME]' claim that [NAME] had made it clear to the plaintiff, in her presence, that he was not to undertake any more babysitting. In a credit-based case, where I held concerns over the reliability of [NAME]'s evidence on important matters of dispute, I consider this to be a very significant matter that weighs against acceptance of the evidence of [NAME] on this issue;

3. The assertion made in paragraph 5.A(xiii) of the amended defence, namely that [NAME] had warned the plaintiff that if he continued to perform the additional work this would result in the termination of his employment, was not supported by any evidence given by [NAME]. She was not asked any questions on this topic;

4. The evidence of [NAME] did not support the claim that the plaintiff had told [NAME] he had carried out additional work, as was asserted in the particulars of paragraph 5.A(xiii) of the amended defence; 5. [NAME] was not called by [NAME] to give evidence and her absence as a witness was not explained.

1. I accept entirely the plaintiff's evidence on the topic of additional work which [NAME] sought to characterise as babysitting. In my assessment, when he was asked about it by [NAME], his response of denial was an instinctive reaction of self-protection rather than dishonesty, as earlier explained. In my view, it was most probably driven out of his fear of what [NAME]'s response might be, along the lines of angrily yelling at him as she had done before.

2. In my view, the plaintiff's answer to [NAME] was not in the nature of a conscious or intentional deceit. It was a fear driven spontaneous reaction which was of transitory effect. Relevantly, he put [NAME] straight on that topic a few hours later after he had a chance to give that exchange some rational consideration.

3. The actual evidence given by [NAME] on the topic of her conversation with the plaintiff about babysitting was as follows: "Q. I'm now going to move to a separate date, and that is 10 March 2016. Did you have any discussion on that date with [NAME]? A. I had a lot of conversations with many staff, but can you remind me, is this a specific Q. Yes, did A. like Q. you have any discussions where it was just the two of you and concerning the issue of babysitting? A. Yes. I don't - I don't - I'm not sure if it's that day, but I do recall we had a conversation in the [COMPANY] kitchen, because I was told by a child - a child came to me and say, "[NAME], I say Mr [NAME] at my place in the morning." And because we were told in the staff meeting that we shouldn't babysit - so because I was his supervisor that time, I - I was concerned about, "Is he still babysitting?" So I went to him, I say, "[NAME], you need to be very honest with me. Are you still babysitting?" And he said to me, "No." And I was relieved. … Q. [NAME], can you go into any more detail as to what that child told you on that occasion? A. I remember that child came to me and said, "[NAME], I saw Mr [NAME] at my place this morning and I ask him why. He said because he's walking my sister to school." That's what I remembered. HIS HONOUR Q. Did you understand that to be babysitting work? A. Pardon? … Q. Well, say what you intend to say. A. Yeah. My intention is - to me, to my understanding as a early child teacher, if you look after a child, you look after a child. So I don't know if the definition of babysitting has a very specific meaning that you have two stay at a specific place. My understanding is - probably best way is he looked after the child that time. Q. You do understand that the [COMPANY] had a document called "Staff babysitting children who attend the [COMPANY]". You have to answer so it can be recorded. A. Yes. Q. Thank you. In the very first line of that document says, "The [COMPANY] prefers that its employees do not babysit children who attend the service", meaning the [COMPANY]. You understand that. A. I do. Q. Am I clear and correct that the child who [NAME] attended on that day to walk to school was not attending the [COMPANY]? A. I do. [NAME]: Thank you, no further questions for this witness." [T452.9 – T454.24]

1. At this point it is appropriate to note that the evidence of [NAME] did not support the particulars of a claimed defence of substantial truth as relied upon by [NAME] in their amended defence.

2. This is irrespective of the question of whether the plaintiff thought he was speaking to [NAME] in her capacity as his friend and confidante, and not as someone with whom he was having a formal conversation in her management position at the [COMPANY].

3. In my assessment, this aspect of [NAME]' claimed defence of substantial truth represents a strained misinterpretation and overstatement of a relatively trivial event where the plaintiff had quickly acted to correct any wrong impression after he had the opportunity to think about the relevant conversation, and where each participant in the conversation in question, namely the plaintiff and [NAME], had differing recollections, and significantly, where the person who claimed the plaintiff had been untruthful was not present when that conversation occurred.

4. When considered in the appropriate and correct context, [NAME]' evidence does not provide any substantive support for the defence of substantial truth.

Alleged deceit about availability to complete studies 1. As to the third category of claimed deception by the plaintiff, [NAME] relied on two claimed elements. The first was that he had incorrectly misrepresented the state of the options available to him whilst he completed his studies and to work at the defendant's [COMPANY], and secondly, that the plaintiff ceased working for [NAME] not because he had resigned, but because he was either dismissed, or because he had been constructively dismissed.

2. With regard to the plaintiff's study options, [NAME] had recommended to the plaintiff that in his best interest, he take classes on Wednesdays: T463.2 – T463.45. She informed [NAME] that this was her recommendation to the plaintiff: [redacted]

3. In early February 2016, there had been some discussion between [NAME] and the plaintiff about the plaintiff's continued traineeship at the [COMPANY] due to the "bumps" in the plaintiff's Certificate III course, which I take to mean his impeded progress in his course, which necessitated him seeking advice from his [NAME], as to his best options: Exhibit "B", pp 20-21.

4. On 10 February 2016 this resulted in the plaintiff giving [NAME] permission to speak with his employer on his course progress and his course results: Exhibit "B", p 23. The context for this was that he wanted to complete his Certificate III course as soon as possible and he had made this clear in an email to [NAME] on 4 March 2016: Exhibit "B", p 24. That permission was not an authority to negotiate and determine his work roster without further consultation with him. The context was that [NAME] was interested in moving the plaintiff through his course program and she had been collaborating with [NAME] to achieve that goal: T470.47. At that time, it must be remembered that [NAME] wanted the plaintiff to be completed within a month.

5. In the course of email exchanges, between [NAME] staff and the plaintiff, and discussions with [NAME], on 7 March 2016, [NAME] advised the plaintiff of his options and advised him that he could pursue his [NAME] option for completing his course: Exhibit "B", pp 25-30, p 27.

6. Consequently, at 7.14pm on Thursday 10 March 2016, the plaintiff sent [NAME] the following email in which he identified what he considered to be, and what he had been advised was, his best option: "Hi [NAME] As discussed today, I have been in contact with [NAME] at [NAME] and was told that the best option to complete my Certificate III was to commence [NAME] next Wednesday for the remaining Semester (May 25) together with one Friday (April 1). As I have no choice I am no longer able to work Wednesday's until the end of Semester. I apologise if the above does cause you any inconvenience however I have no option this semester as I need to complete my Certificate III as soon as possible as we have previously discussed. Thank you. [NAME]" [Exhibit "B", p 31]

1. In this context, I construe the meaning of the plaintiff's words "no choice" to be his best choice in the interests of successfully progressing through his course. Either way, the choice was his to make. The plaintiff's email was consistent with [NAME]'s desire that the plaintiff complete his course as soon as possible.

2. In response to the plaintiff's email cited above, at 10.46am on Friday 11 March 2016, [NAME] sent the plaintiff what I consider to be a combative reply. In that reply she referred to the two options [NAME] had given him, and in that context, she expressed her disappointment at his choice. Her disappointment plainly related to the plaintiff's choice in his own best interests, which clearly did not coincide with or suit her interests.

3. In that email, [NAME] argued that the plaintiff should work on Wednesdays and take annual leave on Thursdays, which she considered to be his best option that was an option the plaintiff was entitled to either accept or reject. He chose not to accept the idea of using his annual leave entitlements in that way. Nevertheless, she expressed an ultimatum that he was expected to work on the following Wednesday, as she had planned: Exhibit "B", p 32.

4. At 11.12am on Friday 11 March 2016, [NAME] emailed the plaintiff to follow up their earlier discussion, and to follow up another discussion [NAME] had with [NAME]. In that email, [NAME] stated: "… You elected to do the Wednesdays, but you did not inform me that you had prearranged work commitments. It is really important to communicate effectively with both [NAME] and myself. We have both invested a lot of energy and time in attempting to support your study, but we all must communicate honestly and effectively for this to happen. I think that you probably need to discuss the two options given to you with [NAME] and ensure that you come to an appropriate decision based upon your learning needs and work commitment." [Exhibit "B", pp 33-34]

1. That email exchange is relied upon by [NAME] as evidence of the plaintiff's alleged untruthfulness regarding his studies and his dealings with [NAME]. In my view, on the cited evidence as relied upon by [NAME], an argued shortcoming of adequate communication, which would not just apply to the plaintiff alone if accepted, does not amount to a deception as claimed by [NAME].

2. Unfortunately, the discussion that [NAME] had suggested take place between the plaintiff and [NAME] did not eventuate. Instead, [NAME] simply rostered the plaintiff to work a full 40.5 hour week, which necessarily meant he would not be able to attend to his [NAME] commitments if he obliged [NAME] in that regard.

3. I do not accept that submission that the recited events revealed a relevant element of untruthfulness on the plaintiff's part because in the context of the circumstances, he was selecting his best course of study option in the context of his part-time employment with [NAME]. I do not accept that the plaintiff was being untruthful to [NAME] when he identified and chose his best option. The plaintiff's options and [NAME]'s roster were separate considerations, although one obviously had an impact on the other. A substantial truth defence does not reasonably arise from those circumstances.

4. The plaintiff considered the position in which he found himself. He recognised that his part-time job that was supposed to accommodate his [NAME] studies became a rostered 40.5 hour week that conflicted with his advised best option for [NAME] studies. In those circumstances, absent prior discussion or negotiation with [NAME] on that matter, he felt he had to resign his employment, as already described at [154] to [156] above. He did so by email at 5.14pm on Sunday 13 March 2016: Exhibit "B", pp 33-34. 5. [NAME]'s response was to change the plaintiff's Wednesday roster by removing his name for that rostered time. By [NAME]'s silence, the plaintiff was permitted to continue to serve out the notice that he had given by the terms of his email dated 13 March 2016, that is, to work until 15 April 2016.

6. That situation remained the position until the events of 24 March 2016 when the plaintiff was peremptorily dismissed. In that period nothing was said to the plaintiff by [NAME], or someone on her behalf, either in terms of an invoked contractual Grievance Procedure, in writing or in conversation, to suggest that the plaintiff had been untruthful about his availability to do his studies, or with regard to his work roster.

7. On the afternoon of 24 March 2016, when [NAME] requested [NAME] to walk the plaintiff off the premises during the period when the plaintiff was working out his notice, he had not been informed by [NAME] that this would happen. Nor was he informed of the reasons why this would occur. [NAME] had effectively peremptorily dismissed him whilst he was serving out the reasonable notice he had given [NAME].

8. The precipitant for the plaintiff's dismissal appears to have been [NAME]'s ire at the plaintiff's outside activity of walking children to school, and possibly, his delayed progress through his course, as was affected by his illness. The former factor is confirmed by the [NAME] highlighted portion of [NAME]'s evidence cited at [168] above citing [NAME]'s statement, which [NAME] did not challenge in cross-examination of [NAME].

9. The plaintiff was peremptorily dismissed from his employment without [NAME] having invoked their stated Grievance Procedure. [NAME] did not put to the plaintiff that he had been untruthful, which was a basic requirement of procedural fairness in the workplace, especially where dismissal was being contemplated by the employer without the provision of particulars, or without having sought a fair discussion on the issue.

10. It was therefore misleading for [NAME] to say in her 4 April 2016 email, that the plaintiff was "no longer with us due to disciplinary reasons" in the context of an allegation of untruthfulness.

Conclusion concerning claimed defence of truth 1. I therefore find that none of the pleaded and particularised defences of substantial truth have been made good by [NAME]. I therefore reject each element of that claimed defence of substantial truth.

Issue 5 – Claimed defence of actual or apparent interest 1. [NAME] sought to maintain a defence of actual or apparent interest that, it was argued, justified the publication of the matter of which the plaintiff complains. That defence was mounted upon the following claimed elements: 1. [NAME]'s interest was said to have arisen as a consequence of her role as a manager of the [COMPANY] and the corresponding interest of the [NAME] of the emails arose as a consequence of those persons having children at the [COMPANY] at the relevant time; 2. [NAME] was subject to regulatory requirements concerning staff qualifications and staff-to-child ratios;

3. The plaintiff was "a very recent ex-employee", his employment having ended on or about 24 March 2016, the plaintiff's professional role at the [COMPANY] was a current issue at the time the emails were sent (10 days later) on 4 April 2016, and the emails were sent for purposes that included business-related information to parents concerning the plaintiff;

4. The information was of a nature that was incapable of being communicated to parents prior to the occurrence of "the relevant events", which I take to mean before the termination of the plaintiff's employment. It was suggested that a temporal-based complaint might have had some force had the emails been sent say six months after the relevant events.

1. In my assessment, [NAME]' arguments concerning actual or apparent interest have been overstated to the point of unreliability. Those arguments raise matters that stray well beyond the reasonable limits of the concepts of actual or apparent interest. In the paragraphs that immediately follow, I set out my reasons for that conclusion.

2. First, as to sub-paragraph (1) of [257] above, the reciprocity of interest was in my assessment simply limited to the need to tell parents that the plaintiff was no longer employed at the [COMPANY]. The parents had a relevant interest in being told of that fact. Apart from the statement: "We wish him well with his future", the remainder of the email was both gratuitous and irrelevant to that purpose.

3. Secondly, as to sub-paragraph (2) of [257] above, the plaintiff's departure from [NAME]' [COMPANY] had nothing to do with regulatory requirements concerning qualifications and staff-to-child ratios. The details of those requirements were not placed into evidence. [NAME] had not employed the plaintiff as a qualified person. As was understood in the limited evidence given on staff ratios, this only applied in relation to qualified persons. Therefore there was no relevant commonality of interest in the manner claimed.

4. Thirdly, as to sub-paragraph (3) of [257] above, other than noting the plaintiff's departure from his employment, I do not accept that the emails dated 4 April 2016 were sent for the purpose of business-related communications concerning the plaintiff. The language used went well beyond that stated purpose by adding gratuitous comments that impugned the plaintiff's character and reputation in an injurious way.

5. Fourthly, as to sub-paragraph (4) of [257] above, I do not accept the premise relating to the termination of the plaintiff's employment. In fact the plaintiff gave notice before his employment was peremptorily terminated by [NAME]. To assert the plaintiff's employment had been terminated for disciplinary reasons was misleading where the plaintiff had already resigned, and beforehand, there had been no reasonable disciplinary process. The compelling conclusion is that the plaintiff had not been relevantly disciplined, but instead, was peremptorily dismissed whilst serving the notice he had given eleven days earlier.

6. The authors [NAME], Australian Defamation Law and Practice, Lexis Nexis Butterworths, 2003, observed at [11,005] that where justification has been pleaded as a defence, there is (truth being such a defence) very likely to be a tactical battle over the extent of the evidence that can be called by the defendant in support of that plea. In that regard, those authors observed that the principles which govern that type of conflict are far from settled. In my view, in this case, [NAME] have failed completely in their efforts at seeking to establish the truth or the substantial truth of the claimed allegations of dishonesty.

7. The above analysis also relates to the claimed defence of common law qualified privilege, which is the subject of the consideration of Issue 6, which now follows.

Issue 6 – Claimed defence of common law qualified privilege 1. [NAME] sought to rely upon a defence of qualified privilege at common law because, it was claimed, [NAME] had sent the emails on 4 April 2016 in furtherance of a duty in, or concerning an interest in, communicating the matters stated in the emails to the normal [NAME] who had either a corresponding duty or interest in receiving that information.

Principles concerning common law qualified privilege 1. "If a statement is made on an occasion of qualified privilege there is a defence at common law, but the privilege is defeated if the plaintiff can prove that the defendant was actuated by malice"; [NAME], Defamation Law in Australia (2nd Ed, Lexis Nexis Butterworths, 2012).

2. The test to be applied to determining whether common law qualified privilege arises, was stated in Adam v Ward [1917] AC 309, at [334] as follows: "A privilege occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential."

1. The potential ambit for a defence based on common law qualified privilege is not capable of exhaustive definition. It is a flexible concept that is case and fact dependent to cater for unexpected combinations of circumstances across a variety of endeavours: [NAME], The Law of Defamation in Australia and New Zealand (The Federation Press, 1998), p 170.

2. At pp 171-175 of that text, the author has conveniently set out an analysis of the elements within the statement cited from the decision in [NAME] v [NAME], and as distilled from a range of other cited authorities, as follows, with the citations omitted:

1. The element of duty need not be a legal duty but may be social or moral such that a great mass of people of ordinary intelligence and moral principle have considered it their duty to make or receive the subject communication;

2. There must be a real, definite or existing interest that founds the claimed duty, and the fact that the defamatory statement may be "interesting" is insufficient to constitute an interest for the purpose of defence;

3. In general, the question of whether [NAME] honestly believe on reasonable grounds, that such a duty or interest exists is an irrelevant consideration at this stage of the inquiry, but such beliefs have relevance to the issue of malice;

4. There must be a reciprocity of duty or interest between the maker of the statement and its [NAME];

5. Irrelevant inclusions are not covered by the privilege;

6. A defence of qualified privilege will be defeated if [NAME] were motivated by express or actual malice, which may be presumed from the defamatory character of the material that was published;

7. Malice may be negatived if it is accepted that [NAME] honestly believed in the truth of the defamatory statement;

8. If [NAME] did not honestly believe in the truth of the defamatory matter, or if [NAME] were recklessly indifferent to its truth or falsity, this is generally conclusive evidence of malice.

1. On the question of qualified principle at common law, I take guidance from well settled and conventionally applied authority, which conveniently states that the determination of the defence of qualified privilege at common law should proceed according to the answers to three questions, as identified in Megna v Marshall [2010] NSWSC 686, at [175], namely:

1. Were the circumstances in which the communication was published such as to give rise to the requisite duty or interest in the publisher and the reciprocal interest in the [NAME] of the publication so as to create an occasion of qualified privilege? 2. If the answer to the preceding question is in the affirmative, was the matter complained of made sufficiently relevant, germane or of sufficient connection to the occasion? (If the answer to both of the preceding questions is in the negative, then there is no defence of qualified privilege. It the answers are in the affirmative, the next question requires consideration)

3. If the answer to both preceding questions is in the affirmative, was the publisher actuated by express malice? (Malice defeats a claim of qualified privilege)

Submission by [NAME] on common law qualified privilege 1. [NAME] sought to construct a basis for their submitted defence of common law qualified privilege by pointing to a series of ten asserted factual matters, the first two of which were not in dispute. Those matters are as follows: 1. [NAME] owned and managed a business in the form of two [NAME] centres. This element of [NAME]' argument is not in dispute; 2. [NAME] was the subject of regulatory requirements concerning the minimum education requirements for staff and the permitted staff-to-student ratios. This element of [NAME]' argument is also not in dispute;

3. It was argued that the plaintiff was a very recent employee who had ceased employment as at either 24 March 2016 or within the range of possible dates for his constructive dismissal;

4. It was argued that the [NAME] of the emails, as parents of children at the [COMPANY], had, on 4 April 2016, a legitimate interest in receiving factual information on various business matters pertaining to the management of the [COMPANY], which included whether or not the staff there were duly qualified;

5. It was argued that the ostensible and actual purpose of the emails was to provide parents with up to date information as to the number of staff at the [COMPANY], the identities of included staff and relevant business-related information about those staff;

6. It was argued that the parents must be taken to have developed business and social relationships with various staff members, and should be taken to want to know whether any staff had left and the reasons for leaving;

7. It was argued that the parts of the emails of 4 April 2016 that concerned the plaintiff, specify the facts of his recent departure from the [COMPANY], and the reasons for his departure;

8. It was argued [NAME] must be taken to have anticipated, on a reasonable basis, that parents might entertain concerns in relation to whether or not the staff to whom their young children were entrusted were appropriately qualified to look after them (in addition to any formal regulatory requirements that needed to be satisfied as to qualifications of employees);

9. It was argued [NAME] must be taken to have anticipated, on a reasonable basis, that she would receive enquiries from parents in the event that a member of staff disappeared without explanation;

10. It was argued [NAME] must be taken to have anticipated, on a reasonable basis, that the [COMPANY] might be placed in jeopardy at the hands of the regulatory authority in the event that staff was not properly qualified and, if parents entertained any suspicion in this connection, they might have notified the regulatory authority.

Consideration of those arguments 1. There is no need to further analyse the elements of arguments (1) and (2) of [271] above as those matters are not the subject of dispute. However, in my opinion, for the reasons that follow, each of the other identified elements of argument numbered (3) to (10) of [271] above, both individually, and in combination, do not sustain the claimed defence of common law qualified privilege:

1. As to element (3) of [271], I do not accept there was a constructive dismissal as claimed by [NAME]. In fact the plaintiff was actually and peremptorily dismissed by [NAME] at a time when he was working out his notice pursuant to the terms of his contract of employment, at which time he was escorted off the premises. In my view, the notion of a constructive dismissal is raised spuriously in this case as he had already resigned from his employment;

2. As to elements (4), (8) and (10) of [271] above, there was no reliable evidence introduced by [NAME] as to an argued requirement that only persons who are qualified in [NAME] may work in [NAME] centres. If that were so, [NAME] should not have employed the plaintiff in the described position in the first place. The plaintiff had the required clearance certification for working with children. That was all that was required of the plaintiff. [NAME]' regulatory obligation was to maintain a specific ratio of qualified staff to the number of children at its [NAME] centres. That is an independent question that has no relevance to the employment of the plaintiff. There was no evidence of a requirement that the plaintiff have a qualification in order to fill the position in which [NAME] had employed him.

3. As to elements (5), (6), (7) and (9) of [271] above, whilst there may have been a legitimate interest in [NAME] providing parents with children at their [NAME] centres with up to date business-related information as to the identity of staff working at their [NAME] centres, including the names of staff no longer working there, in my assessment each of the imputations that arise from [NAME]' emails comprise irrelevant inclusions that are gratuitous, and outside the purposes of that interest. The cited imputations went well beyond any legitimate purpose by gratuitously raising the matters complained of by the plaintiff concerning his reputation and character.

1. In my assessment, those matters indicate that the argued claim for common law qualified privilege is not reasonably maintainable on the facts of this case.

2. In submissions in reply, the plaintiff argued that the matters identified at [271] above, should result in a finding that [NAME]' imputations were so unreasonable that [NAME] must have known the imputations were false. In my view, that submission should be accepted.

3. This is because [NAME] claimed the plaintiff had been dismissed for dishonesty, when the fact was that she knew the plaintiff had already resigned his employment and was working out his notice until she peremptorily ordered that he be escorted off the premises after he had completed his work obligations for that day without any apparent resort to the [COMPANY]'s Grievance Procedures: Exhibit "B", p 16.

4. If [NAME] had truly believed that the plaintiff should be dismissed for dishonesty, it was surprising he had been permitted to work to the end of the day before being escorted off the premises. Be that as it may, the compelling conclusion is that when [NAME] dismissed the plaintiff from the defendant's employ and directed that he be escorted from the premises, she must have known that beforehand, he had not been informed of his dismissal. A dismissal for alleged dishonesty called for a procedurally fair opportunity to address such an allegation. This did not occur. This suggests that [NAME] did not believe on reasonable grounds that the plaintiff had been dishonest. 5. [NAME]' pleaded defence that the plaintiff had lied to parents of children at the [COMPANY] remained an unsupported assertion. None of the witnesses called in [NAME]' case supported that proposition. The plaintiff submitted, correctly, that [NAME]' pleaded claims in that regard had completely collapsed. That element of the defence was completely without substance.

6. I therefore do not accept [NAME]' claims concerning the existence of alleged valid disciplinary issues. I accept the plaintiff's submission that those claimed disciplinary issues were so fundamentally unreasonable, that they cannot be reasonably believed to be true.

7. In my view, those matters support the plaintiff's claim of malice. [NAME] said she had not intended any malice in sending the email in question: T393.20. Be that as it may, I do not accept that [NAME] had sincerely believed the truth of those matters raised in the defence to the plaintiff's claim. If I am wrong in that finding, I nevertheless also accept the plaintiff's alternative submission that the statements made in [NAME]'s emails were so reckless that they were made with wilful blindness to the truth: Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57, at [84]-[86].

8. In that regard, I accept the plaintiff's submissions in reply that identify relevant factors that support the proposition that [NAME]' comments were reckless: 1. [NAME]'s concern that the [COMPANY] had not complied with regulations concerning staffing ratios was not reasonable. It was not supported by evidence. That concern on her part was not referenced to any identifiable or applicable regulatory provision. It appears that she has overstated the regulatory requirements. [NAME]'s decision to employ the plaintiff was an issue that was distinct from her regulatory obligations concerning a particular (but unparticularised) qualified staff-to-child ratio;

2. On the issue of notice, [NAME] had a concern about what the plaintiff might say to parents about his resignation, thus making it desirable for [NAME] to discredit him; 3. [NAME]'s attitude to the plaintiff's activity of walking a former [NAME] attendee to a public school at the request of parents was unreasonable, especially when those children were no longer attending [NAME]' [COMPANY], also where such activity was not reasonably contemplated by [NAME]' so called babysitting policy or statement of preference on babysitting; 4. [NAME] delivered a disproportionately angry response to the plaintiff on those issues when they arose; and 5. [NAME]'s telephone call to [NAME] to seek to prevent the plaintiff from continuing to work for [NAME] after he had left his employment at the [COMPANY] was spiteful, as is evident from [NAME]'s unchallenged account of the terms of [NAME]'s remarks about the plaintiff, as cited at [168] above.

1. In my assessment, those matters convincingly support the plaintiff's contention that in this case, [NAME]' claim of common law qualified privilege is defeated by malice.

2. Finally, turning to the three questions posed in Megna v Marshall [2010] NSWSC 686, as identified at [270] above:

1. The circumstances did not give rise to the requisite duty or interest in the publisher and a reciprocal interest in the [NAME] of the emails;

2. Therefore, the question of whether the publication was sufficiently relevant or germane or connected to the occasion does not arise;

3. The plaintiff has established that the email publication complained of by the plaintiff was actuated by malice on the part of [NAME].

Concluded finding on claimed common law qualified privilege 1. Therefore, for the above reasons, I reject the claimed defence of qualified privilege at common law.

Issue 7 – Statutory qualified privilege: s 30 of the Defamation Act 2005 1. Pursuant to s 30 of the Defamation Act 2005 (NSW), [NAME] claim a defence of qualified privilege: Paragraph 6D(viii) and the ensuing 10 sub-paragraphs of the amended defence dated 14 May 2018; [NAME] "11". In my view, for the reasons that follow, that defence does not apply to the facts of this case. That section provides no liability shelter to [NAME].

2. Section 30 of the Defamation Act 2005, as at 4 April 2016, was in the following terms: 30 Defence of qualified privilege for provision of certain information (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the [NAME]) if the defendant proves that: (a) the [NAME] has an interest or apparent interest in having information on some subject, and (b) the matter is published to the [NAME] in the course of giving to the [NAME] information on that subject, and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances. (2) For the purposes of subsection (1), a [NAME] has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the [NAME] has that interest. (3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account: (a) the extent to which the matter published is of public interest, and (b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and (c) the seriousness of any defamatory imputation carried by the matter published, and (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and (e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and (f) the nature of the business environment in which the defendant operates, and (g) the sources of the information in the matter published and the integrity of those sources, and (h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and (i) any other steps taken to verify the information in the matter published, and (j) any other circumstances that the court considers relevant. (4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice. (5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.

1. A [NAME] will have an interest, or an apparent interest in having the information in question if the publisher believes, on reasonable grounds, that at the time, the [NAME] had a relevant interest or an apparent interest: s 30(1)(a) and s 30(2) of the Defamation Act 2005.

2. At paragraph 6D(viii), sub-paragraphs (i) and (ii) of the amended defence filed on 14 May 2018, [NAME] pleaded that as a registered service provider, the matter complained of was of public interest. I do not accept that the interest of the [NAME] extended to having the matter complained of provided to them other than to simply inform them that the plaintiff was no longer employed by [NAME]: s 30(1)(a) and (b) of the Defamation Act 2005.

3. I do not accept the [NAME] had interest to the extent claimed, and I do not accept that [NAME]' conduct in publishing the material was reasonable in the circumstances because [NAME] acted without affording the plaintiff the procedurally fair and reasonable opportunity to comment on the aspersions or allegations contained in the matter of which the plaintiff complains, and the fact that the publication 10 days after the plaintiff's dismissal was gratuitous and too distant in time to the time of the plaintiff's departure to call into question matters concerning his honesty and fitness for his work: s 30(1)(c) of the Defamation Act 2005. There was no good reason for publishing those imputations against him at that time.

4. The reasonableness of the conduct of [NAME] in publishing the matter complained of may be assessed by taking into account the factors identified in s 30(3)(a) to (j) of the Defamation Act 2005.

5. The claimed interest is a broad one that must be more than a matter of gossip or curiosity. The issue of interest in the context of statutory qualified privilege requires that reasonableness be established, as distinct from qualified privilege at common law, where duty or interest must be established and the claimed interest must not be vague or insubstantial: Griffith v Australian Broadcasting Corporation [2010] NSWCA 257, at [103]-[104].

6. The question of whether [NAME]' conduct was reasonable in the circumstances is determined according to broad discretionary considerations, as is evident from the terms of s 30(3)(j) of the Defamation Act 2005, which is additional to the non-exhaustive range of considerations permitted by s 30(3)(a) to (i) of that Act.

7. My conclusion that [NAME]' conduct in publishing the material complained of was unreasonable is also based on the considerations identified in s 30(3) of that Act, as follows:

1. As to s 30(3)(a) and (b), the publication was to a defined and relatively small group of parents. There was no relevant public interest in those circumstances;

2. As to s 30(3)(c), the assertion of dishonesty was within the range of most serious allegations that might be levelled at a young man working with children at the outset of his chosen vocation. The effect of such an allegation serves to poison the minds of the [NAME] concerning the plaintiff's probity. The assertion of dishonesty as a disciplinary reason for termination of the plaintiff's employment was not reasonable in the circumstances of this case where the effect of the antecedent email correspondence between the plaintiff, [NAME] and [NAME] as summarised at [236] to [255] above shows another point of view, that is the plaintiff's point of view, and where the allegation of dishonesty was not fairly put to the plaintiff beforehand, and he was not ever given the opportunity to invoke [NAME]' Grievance Procedures as provided by his employment contract. The allegations did not represent a balanced point of view (s 30(3)(j)) and were unreasonably published in the circumstances: s 30(3)(c);

3. The allegation of dishonesty and the imputation of unfitness did not distinguish between suspicion, allegations, and proven facts, and instead, all of the imputations were presented as if they were proven facts: s 30(3)(d);

4. In the circumstances there was no public interest for the matter complained of to be published per se, or published expeditiously: s 30(3)(e). The plaintiff had already left the employ of [NAME] 11 days earlier and there was no good reason at that time to besmirch his reputation;

5. Given the nature of [NAME]' [NAME] business, and given that the plaintiff was well regarded by the children attending at the [COMPANY], and by their parents, it was reasonable for [NAME] to inform the parents of those children that he was no longer in the employ of [NAME]: s 30(3)(f). However, the additional information of a contentious nature, was gratuitous to any interest the parents might have had in knowing that the plaintiff was no longer employed by [NAME];

6. The contentious information in [NAME]' email was an expression of opinion which was tendentious, to say the least. It was unbalanced and self-serving, without leaving scope for a positive view of the plaintiff's honesty and character. The opinion was unreasonably conveyed without an opportunity for the plaintiff to respond. He was not even given a contemporaneous copy: s 30(3)(g) and (j).

7. The matter published did not contain anything that could be seen to provide the plaintiff's side of the story, and as a consequence, it was not balanced because [NAME] had apparently made no attempt to include such an account: s 30(3)(h) and (j);

8. Where a person such as the plaintiff was considered by an employer such as [NAME] to have been dishonest about a specific matter, such as his studies, and other unspecified issues, the requirements of fairness dictate that those harboured suspicions be placed before the affected person for comment. [NAME] did not do so in this case. The plaintiff was summarily dismissed by being ignominiously walked off the premises, in front of others, without explanation, either to him, or those other persons who were in a position to observe that event. What then followed 10 days later, was the despatch of the unbalanced defamatory emails of 4 April 2016. This was in circumstances where no attempt had been made by [NAME] to verify with the plaintiff the alleged instances of asserted dishonesty. In those circumstances, the publication was manifestly unreasonable: s 30(3)(i) and (j).

1. I find that in publishing the matter complained of, [NAME], the guiding mind of the [NAME] defendant, was actuated by malice.

Accordingly, the claimed defence of qualified privilege pursuant to s 30 of the Defamation Act does not apply. The compelling inference to be drawn from the fact that the plaintiff was not given a reasonable pre-publication opportunity to respond to the assertions made against him, is that [NAME] knew the imputations that were conveyed were false. Knowledge of the falsity of the defamatory material on the part of [NAME] is normally taken to be conclusive evidence as to the existence of a desire or motive to injure the plaintiff: [redacted]

2. The claim of statutory qualified privilege as contemplated by s 30 of the Defamation Act 2005 is not maintainable. Even if it was, it is defeated by malice.

Issue 8 – Claimed defence of triviality 1. By paragraph 7.E of the amended defence filed on 14 May 2008, [NAME] plead a defence of triviality in that it was asserted the publication was such that it was unlikely the plaintiff would suffer harm within the meaning of s 33 of the Defamation Act. That section provides as follows: 33 Defence of triviality It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.

1. The plaintiff submitted that the triviality defence ought not be upheld because the matter complained of, although it had been sent to a limited number of [NAME], was nevertheless aimed at the very group of people who knew the plaintiff and who had children in the geographic area where the plaintiff lived and worked.

2. The pleaded defence of triviality sought to suggest that the matter was somehow trivial in view of the plaintiff's age. If anything, the plaintiff's relatively young age accentuated his vulnerability to the sting of the defendant's carefully chosen words. The emailed matter complained of delivered an injurious blow not only to the plaintiff's reputation, but also to his self-esteem.

3. The plaintiff's submissions correctly pointed out that the effect or blow of the defamation the plaintiff has suffered also hindered his academic progress, it badly damaged his reputation amongst parents of children in the field in which he had chosen to work, and it took the plaintiff a year to be able to gain permanent part-time employment in his chosen field of endeavour. The plaintiff's submissions stated, correctly in my view, that the triviality defence was not established and should not be upheld.

4. Ultimately, on considering those matters, in final submissions, appropriately in my view, [NAME] conceded and no longer pressed the claimed defence of triviality.

Accordingly, I reject the pleaded defence of triviality. The timing of the abandonment of the defence of triviality has some relevance to the claim for aggravated damages.

Issue 9 – Cross-claim by the first defendant 1. The cross-claim brought by the first defendant is based upon the premise that the plaintiff had misrepresented his qualifications to [NAME]. In my assessment, on the facts as I have found them, the cross-claim is unmeritorious. [NAME]' written offer of employment was for the plaintiff to work in a Certificate III position and not on the basis of an assertion that he possessed that qualification.

2. As already explained at [218] to [225] above, at the outset, the [NAME] defendant must have known the plaintiff did not have Certificate III qualifications in [NAME] at the time: Exhibit "B", p 15. I therefore consider that the first defendant's cross-claim against the plaintiff on account of an alleged overpayment of wages to be spurious. That cross-claim should be dismissed. Consequently, the first defendant should pay the plaintiff's costs of that cross-claim.

Issue 10 – Assessment of damages 1. In the paragraphs that follow I set out my assessment of the plaintiff's entitlement to damages.

Compensatory and aggravated damages 1. [NAME] submitted the appropriate assessment of compensatory damages should be $10,000: [NAME] "12". [NAME]' damages submission was predicated on the premises that the plaintiff's young age, the limited nature or distribution of the publication and the fact that he has current employment, justify a limited assessment along those lines. In my view damages of that order would be manifestly inadequate.

2. In assessing the appropriate sum for the plaintiff's entitlement to compensatory damages for defamation, a number of relevant factors must be taken into account.

3. Foremost amongst those factors is the requirement that the amount of such damages must bear an appropriate and rational relationship to the harm suffered by the plaintiff: [redacted]

4. Another relevant factor to be taken into account is that, in this case, [NAME] did not seek to mitigate the injurious effect of the defamatory matter by making an apology to the plaintiff or issuing a correction of the misleading impression created by the publication, as was twice requested on the plaintiff's behalf: s 38(1) of the Defamation Act.

5. The state of mind of [NAME] is not generally relevant to an assessment of the amount of compensatory damages: s 36 of the Defamation Act. The relevance of a finding of malice is its effect of defeating any claim of qualified privilege, either at common law, or pursuant to statute, as already discussed.

6. In assessing the appropriate amount for the plaintiff's compensatory damages I consider the following matters provide the rationale in favour of a significant award of such damages:

1. The plaintiff has suffered the significant sting of [NAME]' defamatory email. He felt ill on learning of the material of which he complains. He needed medical and psychological help to deal with those reactions and with his state of depression that ensued;

2. I accept the submission made on behalf of the plaintiff that the publication of the matter complained of was quite a callous defamation of a vulnerable young man;

3. The plaintiff's character was seriously impugned in [NAME]' emails and his reputation suffered damage, both directly, in the eyes of the [NAME], and by reason of the grapevine effect, which was evidenced by a child repeating the reputational slur that he was thought to be a liar. That damage to the plaintiff's reputation was not intended to come to his attention. It only came to his attention by chance because one of the [NAME] was troubled by the publication and decided to share it with him after some deliberation;

4. A direct grapevine effect of the defamation has been the fact that [NAME] staff necessarily became involved in the case at the behest of [NAME], which has undoubtedly left a cloud over the plaintiff's presence in the early childhood education sector to an unknowable degree;

5. For the plaintiff, one of the untoward and disrupting effects of the email was that he felt the need to pull out of his [NAME] course and to delay the further pursuit of his studies. It took him some considerable time to obtain another part-time position in the [NAME] sector. That said, he makes no claim for loss of earnings on account of that latter factor;

6. Although the initial audience of [NAME]' publication was limited, the group to which [NAME] chose to send the emails was vital to the plaintiff's advancement in his chosen career. They were in the locality where he lived, and the grapevine effect already had an adverse effect, as is evident from the comment made to the plaintiff by a child (who was not an intended [NAME] of the matter complained of, but who was nevertheless a number of a foreseeable audience) and some identified staff at [NAME], if not others. The plaintiff had to deal with those [NAME] personnel who were aware of this litigation. It is important that the plaintiff not remain the subject of the injurious shadow cast over him by the original defamation.

1. On behalf of the plaintiff, in the aggregated circumstances described above, it was submitted that he should be armed with an award of compensatory damages of sufficient significance to clearly convey that: "This story was not right. Do not believe it": T519.15. I accept that submission as being apt to the circumstances described in the evidence in this case, and in my findings on the matters that were in issue.

2. In arriving at the appropriate sum for damages to vindicate the plaintiff and to assuage his hurt feelings and restore the damage to his reputation, the foregoing factors must be balanced against the matters identified by the defendant, as summarised at [304] to [309] above.

3. In undertaking that task I accept as apt, the submission made on behalf of the plaintiff, where it was submitted that a sizeable sum was required, having regard to the injury to the plaintiff's reputation, the injury to his feelings and health, including his initial sense of grievance and longer term hurt that persisted to the time of trial, with manifest and readily stirred signs of significant upset.

4. In my assessment, those matters have been aggravated by [NAME]' knowledge of the falsity within the matter complained of, taken together with the repeated failures of [NAME] (on or shortly after 28 November 2016 and 22 July 2017) to publish an apology (Exhibit "B", pp 51-52; pp 59-60), and where [NAME] repeatedly continued to maintain at the trial that the plaintiff had lied and deceived [NAME] about his qualifications, including mentioning in final submissions, when it was suggested that he was dishonest. In that latter regard, and of relevance to the assessment of aggravated damages, throughout the trial, [NAME] attacked the plaintiff on multiple occasions both in evidence and in submissions with assertions as to alleged lies (T18.44; T19.33; T19.46; T27.6; T167.28; T221.11; T221.34; T223.25; T228.25; T228.43; T229.10; T233.35; T233.44; T249.15; T265.28; T348.15; T353.36; T380.45; T481.44; T487.30; T517.9; T545.41) and deceptions (T27.12; T233.43; T517.6; T545.43; T546.8). I have rejected those attacks as lacking in substance.

5. This not only warrants a significant award of compensatory damages but also a palpable amount for aggravated damages.

6. The plaintiff correctly pointed to the purpose of an award of damages for defamation as being "to nail the lie": Ainsworth v Burden [2005] NSWCA 174, at [89]. The plaintiff further submitted, also correctly, that in this case the size of the damages award should be sufficiently large to vindicate the plaintiff in the eyes of the community where the targeted audience for the matter complained of, although limited, was a significant feature of the plaintiff's life and chosen work endeavours at the time.

7. Initially, the plaintiff submitted that an appropriate award of compensatory damages would be an amount exceeding half of the maximum limit referred to in s 35(1) of the Defamation Act. Ultimately, the plaintiff submitted that compensatory damages should be assessed in the range $200,000 to $250,000, to which an element of $25,000 should be added for aggravated damages.

8. In my view, and not intending to convey the impression that the defamation complained of should be seen in diminished terms, I consider that the lower end of that range is appropriate, especially since there will be an award of a measure of aggravated damages.

9. I accept the force and quantum of submissions made on behalf of the plaintiff regarding the need for vindication of the plaintiff's hurt feelings and humiliation. I find the plaintiff has justified his claim for aggravated damages. In my assessment, the appropriate and proportionate aggregate sum should be $225,000, which includes an amount of $25,000 for aggravated damages.

10. I find that the above matters serve to justify the plaintiff's entitlement to aggravated compensatory damages as was ultimately submitted on his behalf.

11. I therefore assess the plaintiff's compensatory damages, including an element of aggravated damages, in the aggregated amount of $225,000.

Special damages 1. The plaintiff's special damages have been agreed: [NAME] "7": T519.40 – T519.47. I therefore assess the plaintiff's special damages at $915.30.

Interest 1. The plaintiff claims pre-judgment interest on his damages pursuant to s 100 of the Civil Procedure Act 2005. I consider that interest should be awarded on the compensatory damages of $200,000 calculated at 2 per cent over 3 years, which yields an amount of $12,000. I also assess interest on special damages of $915.30 at 2 per cent over 3 years, namely $54.92. Therefore I assess the combined claim for interest in the total amount of $12,054.92.

Summary of damages assessment 1. My assessment of the plaintiff's damages is summarised as follows: (a) Compensatory and aggravated damages $225,000 (b) Special damages $915.30 (c) Interest $12,054.92 Total $237,970.22

Disposition 1. The plaintiff has established his entitlement to a damages award including interest in the total amount of $237,970.22. He should therefore have a judgment entered in his favour for that amount. He should also have a judgment entered in his favour on the first defendant's unsuccessful cross-claim that was brought against him.

Costs 1. As the plaintiff has succeeded in obtaining a judgment in his favour, he should have an order that [NAME] should pay the plaintiff's costs of his own proceedings and the first defendant should pay the plaintiff's costs on its cross-claim. Those costs should be paid on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders 1. I make the following orders:

2. Judgment for the cross-defendant plaintiff on the first defendant's cross-claim;

3. The exhibits are to be returned; 4. [NAME] are to pay the plaintiff's costs of the proceedings on the ordinary basis unless a party is able to demonstrate a basis for some other costs order;

6. Liberty to apply on 7 days notice if further or other orders, including as to costs, are required.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 April 2019