Anthony v Rockett[1999] QCA 434

SUPREME COURT OF QUEENSLAND

1. THE COURT:  This is an appeal against a judgment for damages for defamation in favour of the plaintiffs in an action tried without a jury in the District Court at Southport. The trial occupied some 15 sitting days or so, and generated a judgment spanning 78 pages of detailed reasons resulting, however, in awards totalling no more than $21,000.00.

2. "The Sands" is an apartment building containing 99 residential units situated at Surfers Paradise on land which is the subject of a registered building units plan. Few of the unit proprietors or owners live in their units; most are residents of other States or countries who use their units for letting to visiting tourists and others. Among the few who are, and in 1995 were, locally resident on the Gold Coast are Mrs Lynette Rockett and her husband Mr Devencorn, who are the successful first and second plaintiffs in the action and the respondents to this appeal. In 1995 they, or perhaps a company under their control, owned a unit in the building. By the time of trial, they had a considerably larger number of some nine units in "The Sands", and were engaged in a business of letting units in the building.

3. Section 27(1) of the Building Units and Group Titles Act 1980 constitutes the proprietors of such a building a body corporate. The body corporate of The Sands is the second defendant in the action and was originally an appellant in this Court, although its appeal has now been abandoned by notice in that behalf. Section 42 of the Act provides for a committee consisting of not more than seven proprietors, who are to include the chairperson, secretary and treasurer of the body corporate. It is neither possible nor necessary to summarise the functions and powers of the committee beyond saying that, subject to certain statutory restrictions, the decision of the committee on any matter is, by s 46(2) of the Act, declared to be that of the body corporate; and that the powers of the committee include undertaking expenditure on or relating to the common property and otherwise. See s 47 of the Act. Mrs Anthony, who is the first defendant and the remaining appellant before us, and who is ordinarily resident in Sydney, was the chairperson of the committee at all relevant times during 1995.

4. The plaintiff Mrs Rockett was elected to the committee in November 1994 and, either then or later, was designated "liaison officer". The Act does not provide for such an office, but the functions envisaged by the committee in so designating Mrs Rockett were to communicate with the resident manager Villaview Pty Ltd. The principal of that company was a Mr (or Dr) Eccles, whose functions included the maintenance of the building and the common property, or its supervision, and seeing to the enforcement of the by-laws. In company with some other buildings of this character and size, there had in the past been disputes between the committee of "The Sands" and previous resident managers; but, under the aegis of this particular committee, many of these difficulties had by 1995 been resolved. To that improvement in affairs, both Mrs Rockett and Mrs Anthony, who had been a member for some 10 years, had made material contributions. Relations between those two individuals had at first been good. However, they began to deteriorate from at about, or shortly before, the time of a letter, dated 21 December 1994 (ex 11), was faxed by Mrs Anthony to and received by Mrs Rockett on her return from holidays on 6 January 1995. The learned trial judge in his reasons adopted an adverse view of the tone and perhaps of the contents of ex 11, while adding that there was "little point in analysing or deconstructing the letter". Since we have formed a different impression, it is necessary to give some account of what it was about.

5. The letter, which was written and signed by Mrs Anthony in her capacity as chairperson, records that it was prompted by a couple of telephone calls made by Mr Ian Willis to Mrs Anthony on 21 or 22 December 1994. He was the principal of Body Corporate Consultants Pty Ltd, which provided secretarial services and advice to "The Sands", of  which he was the secretary/treasurer. Mr Willis had on or about that date reported to Mrs Anthony details of some actions Mrs Rockett was taking, which he or Dr Eccles regarded as impinging on the functions and duties of the secretary or of the resident manager and creating difficulties in their discharge. Three matters of concern are specifically mentioned in ex 11. The first was that Mrs Rockett had on 13 December 1994 written on "Sands" letterhead asking Willis to reduce his charges to the body corporate for photocopying done by him. The second was that she had withheld her signature to a body corporate cheque in payment of fees. The third concerned a letter she prepared for signature by Willis, or it may have been Eccles, for despatch to all contractors and suppliers to "The Sands" requiring that, on submitting invoices for payment, they state that no commission had been "involved" in the transaction in question. The underlying concern of Willis and Eccles seems to have been that resident managers were not obliged to accept directions from that source or nature in carrying out their duties of maintaining the building and the common property. The complaint could not be brushed aside as of little consequence. Relations between bodies corporate and resident managers  are ordinarily governed by the terms of detailed contracts between them. It is a matter of some notoriety that disputes over such contracts or their provisions and interpretation have at times been a fertile source of contention between resident managers and bodies corporate or their committees in many unit buildings in Queensland. The cost of litigating such disputes in court, and their frequency, was such as to lead to the original Act being amended to provide for resolution of such matters by statutory referees.

6. In this instance, Dr Eccles had on 16 December 1994 (ex 18) already written inquiring about the scope of the liaison officer's functions, and enclosing an extract from his contract. Later, on 8 February 1995 (ex 14), he was to write again complaining that "Mrs Rockett was trying to assume the position of Resident Manager". In addressing Mrs Rockett in the letter ex 11, Mrs Anthony recorded that "The Sands" had in the past already been "dragged" before the statutory referee on about 30 occasions, and had "learned how important it is for all our actions to accord with the rules". As a matter of fact or law, withholding payment of fees or intruding into others' responsibilities is potentially a repudiation of contract, of which a resident manager might under some circumstances be disposed to avail himself. The committee of "The Sands" were apparently satisfied with Mr Willis's performance, and it may be inferred from what is said in ex 11, that Mrs Anthony did not wish that relationship to be put at risk. The same may, perhaps with less confidence, be said of Dr Eccles, with whom relations were, it seems, not necessarily so happy. Use of "Sands" letterhead by a single committee member to give directions to the secretary or the resident manager, might, if the committee acquiesced in its continuation, in time be construed as acknowledging that Mrs Rockett had authority to act on behalf of the committee. It was not a matter about which words could afford to be minced. In ex 11, Mrs Anthony made it plain to Mrs Rockett that no committee member was authorised to write letters on behalf of "The Sands" on "Sands" letterhead paper except at the direction of the committee and as a result of a committee vote. "Lynne", she wrote to Mrs Rockett in ex 11, "I hope you will view this note as guidance, which may well have been offered before".

7. Anything less precise or more indefinite would only have promoted uncertainty on the matter. As Mrs Anthony in her letter pointed out to Mrs Rockett, the position of liaison officer was not mentioned in the Act, but had been instituted by the committee of "The Sands" only in order to facilitate communications between the committee and the resident manager, or, as his Honour found, "to check on the initiatives of the resident manager". It did not, his Honour considered, "confer any authority to commit body corporate funds", but only to ensure that the resident manager's proposals to do so were justified. Mrs Rockett did not, however, accept such a limited view of her functions. At the trial some three years later, she continued to maintain she had a wider power, including a discretion to spend body corporate funds for the upkeep of "The Sands", and to take initiatives herself without reference to the resident manager or the committee. His Honour found that, even if genuinely presented, "those claims do not stand up".

8. It was not only in evidence at the trial that Mrs Rockett demonstrated her reluctance to accept limitations on her authority to act independently of the committee. Like many land owners on the Gold Coast, the body corporate of "The Sands" had installed a spear pump with associated reticulation pipes designed to draw underground water for sprinkling lawns and gardens on the common property. This, if effective, would have served to reduce expenditure on water supplied by the Council. Unfortunately, in about 1990 the use of the spear pump system at "The Sands" had been discontinued because the water supplied by it was salty and killed the lawn and plants on which it was sprinkled. As a result, the condition of the pipes forming the reticulation system in the back garden in or near the car park, and perhaps other sections of it in the front garden, had deteriorated. Despite having received the warning in ex 11, Mrs Rockett on her own initiative set about having the reticulation pipes and associated equipment repaired or replaced.

9. Mrs Rockett consulted her husband and co-plaintiff Mr Devencorn. He is an engineer of experience, who conducts his own business Aircon Airconditioning. Early in January 1995 at his wife's request he inspected the spear pump at "The Sands". Having a screw driver with him, he removed the cover, and switched on the electric motor. He found it to be in working order and that, to the taste, the pump delivered potable water, but he also saw that the system did not reticulate water. From this he deduced it was the reticulation system that was at fault, and further inspection on that occasion confirmed his conclusion. After discussing the matter with Mrs Rockett, he spoke to a Mr Eric Roessler, who was a gardener who had previously done work for him or them. He explained on site to Roessler what needed to be done to repair the system, and Mr Roessler agreed to undertake the work in the area of the car park.

10. The necessary piping and associated items were purchased by Mrs Rockett at her expense. Together with a concrete plinth on which to rest the pump, a galvanised cover for the pump that Mr Devencorn had fabricated at his engineering works, and a hammer drill he was lending for the purpose, they were brought by him to the site on Sunday 8 January 1995 in readiness for Mr Roessler. Mr Devencorn and Mr Roessler jointly unloaded the utility in which they had been brought. He helped Roessler drag the pipe on to the site; joined up some leads to the power point; and showed him what to do and where. Mr Devencorn later inspected the work after it had been done and confirmed that the spear pump system now worked successfully. In his opinion the water was suitable for irrigation. Mr Roessler's personal charge for the four hours of labour he did there was $60. The total invoice for both work done and materials supplied was $349.45 (ex 5). Much the larger part of it was for the materials purchased and supplied by Mrs Rockett.

11. At that stage Mrs Rockett was in the position that she had, in defiance of Mrs Anthony's letter (ex 11) of which she had received a fax on 6 January 1995, incurred expenditure and directed work to be done on 10 January for which she did not have the authority of the committee. What she did was to arrange for Mr Roessler to submit an invoice dated 10 January 1995 (ex 5) in his own name to "The Sands" for the full amount of $349.45. According to a notation on it, ex 5 was received on 11 January. Mrs Rockett proceeded on 12 January to approve payment of that amount to Mr Roessler, and on 13 January 1995 signed a body corporate cheque in his favour dated 13 January 1995 for that sum. Later, on 16 February 1995, he delivered his personal cheque (ex 8) to Mrs Rockett for the amount of the difference of $289.45 ($349.45 less $60 for his labour) representing the cost of materials which she had supplied at her own expense, but for which Roessler had charged the body corporate in the invoice addressed to it. That sum of $289.45 was part of a larger amount banked to the credit of Mrs Rockett or her company as late as 21 February 1995 (ex 9). There is no doubt about the reason for adopting this procedure for obtaining payment.  His Honour found that Mrs Rockett was "determined" that the invoice to the body corporate would not reveal her involvement or that of Mr Devencorn's company. Well before then she had, of course, received Mrs Anthony's letter.

12. The sequence of dates of these payments and credits are not unimportant because on 31 January 1995 Mrs Rockett herself sent a letter (ex 12) to Mrs Anthony reporting a number of items to be considered at the next committee meeting due to be held on 9 February 1995. She did not mention the work that had already been done; however, item 19 in that letter (ex 12) from Mrs Rockett was as follows:

"19.For consideration to be given for the spear pump system to be repaired that services the front garden to improve the sprinkler system due to low water pressure including the installation of a time clock system."

The meeting on that day lasted some seven hours or more. It commenced with the tabling and consideration of correspondence, beginning with those written by Mrs Rockett on "Sands" letterheads: (1) to Mr Willis concerning photocopying charges; and (2) to a named contractor or supplier concerning secret commissions. As to (1), after Willis had said at the meeting that his charges were fair and reasonable, no further action was taken. As to (2), it was resolved that quotations from tradesmen should be accompanied by statements that no commissions, secret or otherwise, were "applicable". To that extent, Mrs Rockett's initially unauthorised initiative on that issue was successful. It accorded with an earlier resolution on which, however, she had not been asked to take action. Mrs Anthony's letter (ex 11) of 21 December to Mrs Rockett was tabled and distributed. The minutes of meeting (ex 13) expressly mention the statement in the letter that individual committee members were not entitled to use "Sands" letterheads, or to speak on behalf of the body corporate, without the authority of a committee resolution; and also that it was not right for Mrs Rockett to withhold payment to the secretary of a legitimate account "because of her personal feelings". Only after another matter had been debated did a discussion take place about the exact duties and functions of the liaison officer, as to which it was resolved to defer consideration until the resident manager Dr Eccles arrived and presented his report to the meeting.

13. Rather surprisingly, his Honour described the course of events at the meeting as "something of an onslaught" on Mrs Rockett, and thought it "significant" that the letter ex 11 from Mrs Anthony was made "a public document, so that all committee members (and all unit owners and their privies) might come to learn of the 'guidance' Mrs Anthony thought Mrs Rockett needed". In so far as his Honour thought it "humiliating" to Mrs Rockett, and evidence of ill will on Mrs Anthony's part, that her letter to Mrs Rockett was tabled and copies circulated at the meeting, the learned judge was, with respect, in our opinion mistaken. The letter had been written by Mrs Anthony in her capacity as chairperson to Mrs Rockett as a fellow committee member concerning a matter or matters directly affecting the duties and functions of the committee and the method by which they were to be discharged. At committee meetings, it is, if not obligatory, certainly common practice to table correspondence that has been sent or received by the chairperson or committee members in the period between meetings. If Mrs Anthony had not tabled ex 11, it might have been claimed that she had not disclosed to the committee a matter that was relevant to the business of the meeting and to the manner in which the duties of committee members ought to be carried out.

14. After recording discussion and decisions on some other matters of business, which included "glass anomalies", concrete spalling, painting of the building, voting, and expenses of attending meetings, the minutes went on to refer to the resident manager's report and the letter (ex 18) from Dr Eccles dated 16 December 1994. In it he had complained that Mrs Rockett had been using the second floor store room "as an office to conduct her business". The minutes record that she denied this allegation. It was confirmed that the room in question was designated as a storage space for the cleaning contractor Ultimate Cleaning. The discussion then moved to the duties and functions of the liaison officer, and the complaint by Dr Eccles (who by then, it seems, had arrived at the meeting) about the "onerous restrictions" under which he had to work with the current liaison officer. It was resolved that he be authorised to repair or replace items which required, in effect, urgent attention. Other matters in his letter were considered and action resolved upon. Arrears of levy were considered and financial statements tabled. Under the general business item, Mr Renzella was authorised to replace two dead shrubs; and so on.

15. The meeting proceeded to consider the liaison officer's duties, with particular reference to the resident manager's complaint in his letter (ex 18) and report, which had been tabled at the meeting. Mrs Rockett is recorded as having "criticised" the chairperson, whereupon a vote of confidence in Mrs Anthony was moved and carried, unanimously, as the minutes record, "except for Mrs Rockett". This was followed by a discussion of some other matters such as pool panels and glass sliding doors. The minutes then briefly recount that it was resolved "not to repair the spear pump at this point in time because of the salt content in the water". The resolution to that effect was apparently referable or responsive to item 19 in Mrs Rockett's report (ex 12) of 31 January 1995, which had recommended that the spear pump system to the front garden be repaired. Other matters were then considered, including an air conditioning installation (of which the committee carried out an inspection) on the roof. The date of the next meeting was fixed for 31 March 1995.

16. We have examined here in some detail the proceedings at the meeting on 9 February as recorded in the minutes (ex 13). We have done so because it is evident from his reasons that his Honour regarded that meeting as the genesis of the ill will against Mrs Rockett which he found to have existed in making the later defamatory publications with respect to her. His reasons include the comment that:

"Assuming that the minutes (ex 13) record events in the order in which they happened at the meeting, which lasted seven hours or more, the fact is that Mrs Rockett received a battering, metaphorically speaking, before the spear pump item was reached."

This was said in the context of speculating about why Mrs Rockett had failed to inform the meeting on 9 February that work had already been done (in January 1995) on the spear pump system and some of the reticulation lines. He accepted Mrs Rockett's evidence that the atmosphere at the meeting was such that she was "not able to communicate the true situation of and true nature of her proposal for the spear pump system, being (or at least feeling herself) inhibited from doing so". His Honour nevertheless did not accept her claim of being "shouted down" as literally correct. He also found (for what relevance it may have ) that the committee had not acted unreasonably in deciding to spend nothing on the spear pump, given the assumption that the water it produced could not be used. He considered that abolition of the post of liaison officer was a reasonable measure in order to restore harmony.

17. It is difficult to find objective support in the evidence at trial for his Honour's conclusion that Mrs Rockett was "inhibited" at the meeting from communicating the true situation or nature of her spear system proposal. If one fact is clear from all the evidence and from his Honour's findings, it is that Mrs Rockett is not a person who is readily inhibited from acting decisively or from speaking her mind. She succeeded at the meeting in making her criticism of Mrs Anthony heard to the extent of precipitating the motion of confidence, from which she alone withheld her support. It was, his Honour later remarked, clear that by the February meeting "a battle for power had been joined". Speaking of Mrs Rockett's actions during the period covered by the trial, he found that she "proceeded in a fashion both provocative and threatening". He said she "appears to see herself as a 'can-do' person, for whom achieving a result is the important thing", whereas, as his Honour observed, it was "inappropriate" here to adopt a philosophy of "end justifies the means". Attitudes like these are not characteristic of persons inhibited from communicating their views. What is more, if Mrs Rockett had sought to disclose at the meeting on 9 February that she had already caused the spear pump system to be repaired and had expended corporate money on doing so, it is scarcely credible that committee members would not have sat up and listened to what she was saying. Disclosing details of  those events and actions was, however, not something that she claimed to have sought or wished to do either at that meeting, or in her report of 31 January 1995 (ex 12) which preceded it. Although not inhibited from writing unauthorised letters, she made no attempt, in her report (ex 12) before, or immediately after the meeting on 9 February, to communicate to the committee in writing what she had, without authority, already done in the way of repairing and paying for repairs to the spear pump system.

18. By the time of the next committee meeting on 31 March 1995, her actions in that behalf had become known to at least some of the committee members, and were disclosed to all of them at that meeting. On 24 March 1995 Mr Renzella of Ultimate Cleaners had written to Mrs Anthony as chairperson a letter (ex 27), in which he recorded Mrs Rockett's approach to him in "early January 1995" regarding the sprinklers in the car park, asking that he submit an invoice to the body corporate for a job that "her husband and some other chap" had carried out on the sprinkler system "as she was concerned that she may not get paid if the body corporate found out she was involved in this work". Since Mr Renzella had taken no part in the repair work, he was naturally reluctant to do what Mrs Rockett suggested, and it was then that she prevailed on Mr Roessler to submit the invoice in his name for the full amount. As has been noted, by the time of the meeting on 9 February 1995, the invoice had under her direction already been approved and paid out of body corporate funds, although it was only after that meeting, and not until 16 February that Roessler delivered his personal cheque to Mrs Rockett reimbursing her for $289.45, and not until about 21 February that the payment was credited to her account.

19. The meeting on 31 March 1995 (of which the minutes are ex 14) opened with the confirmation of the minutes (ex 13) of the meeting of 9 February 1995, and then proceeded to matters arising out of them. Mrs Anthony asked Mrs Rockett to "please explain" to the committee why she had asked the committee at its meeting on 9 February to approve the repair of the "spear pump" in the garage area when it had already been repaired by her husband. It was a matter that arose out of the minutes, and some explanation from her was certainly called for, although his Honour considered that the peremptory tone of "please explain" was evidence of an unfriendly attitude, and ultimately of ill will, toward Mrs Rockett. It was, he considered, another instance of her being "humiliated" before the committee. She is recorded in the minutes as having denied that her husband had fixed the pump. Committee member O'Donnell said Mrs Rockett had told him that in mid January, a few days after the job, her husband had fixed the pump. Mr Willis tabled the repair invoice dated 10 January 1995 for $349.45 (ex 5) and said that no quotes for the work had been received; that Mrs Rockett had approved the invoice on 12 January and signed the cheque for payment to "E Roessler" on 13 January 1995. The minutes (ex 14) state that the committee had investigated the matter by telephoning Mr Roessler at the address shown on ex 5, whereupon they were told by Mrs Roessler that the address was a private home, and that they must have the wrong number as her husband did not fix spear pumps. It was a matter on which his Honour commented in his reasons adversely to the defendants. The letter (ex 27) from Renzella was also tabled. The substantial effect of its contents are stated in the minutes, although again, his Honour considered, not with complete accuracy. The committee expressed its concern at the methods used by Mrs Rockett to have the account paid, and asked her to refund the amount paid by the body corporate. Mrs Rockett said that Mr Roessler had been paying her for the goods she had supplied to fix the spear pump system. She added that the parts used for the repair had been her property and she would take them back if asked to reimburse the body corporate.

20. It may have been partly this response that prompted his Honour to remark that Mrs Rockett proceeded in a provocative and threatening fashion. Evidently she was not feeling inhibited on this occasion. What happened next is recorded in the minutes as follows:

"As Mrs Rockett had revealed that she had deliberately mislead (sic) the committee, the members of the committee, other than Mrs Rockett, resolved unanimously to ask Mrs Rockett to resign from the committee."

The minutes record that Mrs Rockett refused to resign. The committee then resolved that at the next extraordinary general meeting Mrs Rockett be removed from the committee, and that unit owners be advised of the reasons for the motion. The minutes added that the committee did not, and would not, authorise repairs to the pump as it had been producing only salty water, unsuitable for use on the gardens, for the last five years. As to that, his Honour suspected it was a later interpolation in the minutes. He noticed that the committee failed to  investigate the spear pump system with any degree of real attention.

21. Although the committee had resolved to advise the unit owners of their reasons for proposing to remove Mrs Rockett from the committee, it was Mrs Rockett who was first off the mark following the meeting on 31 March 1995. She distributed to all unit owners in "The Sands" a circular (ex 21) dated 7 April 1995. It opened with a statement that, in anticipation of the proposal to "sack" her at any forthcoming extraordinary general meeting, the time had come to clear her name from "the smear campaign orchestrated by the chairperson" of The Sands. Mrs Rockett said she believed she was not guilty of misusing body corporate funds or of any other committee allegations. After declaring in the second paragraph of ex 21 her loyalty to body corporate members, the ensuing third to ninth paragraphs of ex 21 were devoted to details of a transaction in which Mrs Anthony was alleged to have received a payment from the body corporate to which she was not entitled for repairs to her unit in The Sands. In ex 21 Mrs Rockett then addressed the matter of the spear pump system. Her account of what had taken place was, as his Honour found, a recital of the true facts. It may, however, be observed that in ex 21 she omitted to disclose her failure to obtain prior committee approval for the work; or her conduct in persuading Mr Roessler to invoice the whole cost in his name; or her action in approving and receiving payment for all but $60 of it. In ex 21, her account of that aspect of the matter went no further than to say:

"However the installer included the material costs in his invoice for labour and took all material invoices for taxation purposes - approx $349."

No mention was made of the fact that she asked him to do so. The circular (ex 21) went on to contrast her own with Mrs Anthony's action in obtaining payment from body corporate funds; to justify the expenditure on the spear pump system; to complain of being found guilty of "overstepping the mark" in using "Sands" letterheads and in relation to the photocopying charges; and to allege continual "harassment" by the chairperson for the past three months.

22. The circular (ex 21) dated 7 April 1995, which his Honour at one point in his reasons  stigmatised as "inflammatory",was followed by a written request (ex 16) dated 2 June 1995 from Mrs Rockett for correction of the minutes (ex 14) of the committee meeting of 31 March 1995. Some 12 items said to be in need of correction are listed in ex 16; but, in the result, only those three numbered 1, 11 and 12 survived the trial to be the subject of submissions on appeal. Considered in conjunction, they are that the minutes (ex 14) were incorrect in recording:

1. that Mrs Rockett had asked the committee meeting on 9 February 1995 "to approve the repair of the spear pump in the garage area when it had already been repaired by her husband";

11. that "As Mrs Rockett had revealed that she had deliberately misled the committee"; and -

12. that "it had been producing only salty water for use on the gardens for the last five years".

One of Mrs Rockett's recurrent difficulties was that of distinguishing between: (a) what had been recorded in the minutes of meeting (ex 14); and (b) the true facts as she perceived them to be. His Honour expressly adverted to her apparent inability in giving evidence at the trial of keeping that distinction in mind. According to common practice in such matters, minutes are, or should be, essentially a record of committee resolutions and decisions, together where necessary with a summary of the effect of what has been said at the meeting so far as relevant to explain those resolutions and decisions. Minutes of what is said and done at a meeting are not designed to record the true facts as they are, or as they are later claimed to be, by any particular member at the meeting. Personal explanations or rationalisations of that kind are ordinarily left to the ensuing meeting when the minutes of the preceding meeting are presented for confirmation. There is nothing in the Act, which in s 45(4) requires minutes of committee meetings to be "full and accurate", to displace the application of this common practice in relation to meetings under the Act.

23. Items 1 and 12 in Mrs Rockett's circular (ex 21) fell within category (a) above. If in fact those items (1 and 12) in the minutes summarised what was said at the meeting, then the minutes (ex 14) were accurate, and called for no correction. Item 11 was actually or potentially different. In recording that, "as Mrs Rockett had revealed that she had deliberately misled the committee", the minutes were, it may be accepted, affecting to record not what she had in fact said, but rather an inference arrived at, and presumably expressed, by committee members or some of them at the meeting as explaining what followed, which was their resolution that Mrs Rockett be asked to resign from the committee. While accepting that Mr Willis as secretary accurately recorded resolutions passed at the meeting or meetings, his Honour criticised the minutes prepared by Mr Willis as being "slanted" against Mrs Rockett, and regarded as "inescapable" the conclusion that he had, even if unconsciously, written up the minutes "so as to embarrass Mrs Rockett". That is a strong finding to make against a person in his position, who provides similar services to some 60 or more bodies corporate in the district. It has the consequence in this case that, if the minutes are ignored as unreliable there is really no evidence about what was said and done at the meetings, which is not especially helpful to the plaintiffs' case in relation to some of the disputes about what took place there. For the most part, she said she could not recall what was said at the meetings. Elsewhere, his Honour expressed his conviction that Mr Willis' minutes ought not to be regarded as "necessarily unbiased", "necessarily complete" or "necessarily accurate". It is by no means easy to reconcile these varying findings on the matter.

24. It is at last possible now to turn to the first of the three publications complained of in the action as defamatory. It took place in Mrs Anthony's report (ex 29) dated 20 April 1995 circulated, in accordance with the committee resolution on 31 March, to each of the unit owners some two weeks after Mrs Rockett's own "inflammatory" circular. Having set out in ex 29 the extract from the minutes (ex 21) recording proceedings at the meeting on 31 March 1995 with respect to the spear pump system, the report went on to say that "the recorded facts are":

·the pump was repaired on Sunday 8 January 1995.

·the invoice was dated 10 January 1995.

·Mrs Rockett signed the invoice "OK for payment" on 12 January 1995.

·Mrs Rockett signed the cheque on 13 January 1995; and

·Mrs Rockett, as liaison officer, submitted a written request to the committee meeting on 9 February 1995 for the pump to be repaired. The committee resolved that the pump not be repaired.

25. The material published in ex 29 was alleged and also conceded, both at the trial and on appeal, to be defamatory in meaning, although in which of the numerous pleaded particulars was never precisely identified. His Honour, however, singled out as the "damning" and "most damaging" assertion that "Mrs Rockett revealed that she had deliberately misled the committee". The statement to that effect (beginning with the words "As ...") in the minutes (ex 14), and repeated in ex 29, was, as we have already suggested, properly not a statement of fact but rather an inference from things said or done at the meeting. Among the material in ex 29 there were two, or it may be three, separate subsidiary assertions of fact that his Honour specifically found to be false. They were that it was the spear pump that was fixed or repaired; that it was fixed or repaired by Mrs Rockett's husband Mr Devencorn; and that Mrs Rockett had requested the committee that it be fixed or repaired.

26. Saying that it was the spear pump that was, or that Mrs Rockett requested that it be, fixed or repaired was, on one view of the matter, literally false. In early January 1995 when Mr Devencorn switched on the pump, he had found it to be working. We say "on one view", however, because it depends on what, in the context of ex 14 and ex 29, is meant by the words "spear pump". The expression is used by persons at the Gold Coast with something less than complete precision. It is sometimes, perhaps often, used to signify not the spear pump as such or the motor that drives it, but the whole spear pump system including both the pump and the pipes through which the water is reticulated and sprayed; or, in short, the whole pumping and sprinkling system. The extent to which this usage is or was current can be detected not only in the committee minutes and the evidence of defence witnesses at the trial, but also in material emanating from other sources. The remittance advice (ex 6) presented to Mr Roessler on 13 January 1995 recording the payment to him of the amount of $349.45 describes "details" of the work done for which payment is being made as "spear pump repr". A letter (ex 22) from solicitors for the plaintiffs dated 6 July 1995 demanding that the defendant publish a retraction and apology, as well as providing retrospective ratification of Mrs Rockett's actions, speaks of her written request "for the repair of the pump". His Honour was disposed to excuse this as an error due to the solicitors having only recently been instructed; but, as late as 10 May 1996, which was after the action had been instituted in the District Court, the same solicitors wrote another letter, also part of ex 22, requesting an apology in a form attached to the letter that incorporated the statement that "Mrs Rockett, with the assistance of Mr Devencorn, arranged for the repair of the spear pump and attached irrigation system ...".

27. It was fundamental to the plaintiffs’ case at trial and their allegation of ill will on the part of the defendants that the "spear pump" as such had never been fixed or repaired either at all or by Mr Devencorn; and, perhaps too, that he had done no "work" on the reticulation system. The latter complaint seems to have lost some of its emphasis as events progressed, which is not altogether surprising. Mr Devencorn's initial inspection of the pump can fairly be regarded as work, and his attendance at the site, his engagement of and instructions to Roessler about the location of the pipes, and his subsequent inspection and test, are fairly capable of being regarded and described as involving work on the spear pump itself, or on the spear pump system as a whole. Indeed, in ex 21 of 7 April 1995, Mrs Rockett herself stressed that her husband had volunteered to test the system "thus saving a paid contractor ...", which suggests that she viewed it as a service that would ordinarily be paid for.

28. Even, therefore, if the material in ex 29 complained of as defamatory depended on a completely literal reading of the meaning of "spear pump" as distinct from "spear pump system", it is, contrary to his Honour's finding that the statement was false, fair to say that "work" was in fact done by Mr Devencorn on the spear pump and the spear pump system. If, instead, the matter is approached as one of substance, it is apparent that the real concern of committee members at their meeting on 31 March 1995, was the nature of Mrs Rockett's conduct before, at, and after the meeting on 9 February 1995. In particular, (1) she had on 10 January incurred a liability in the matter of the spear pump or the spear pump system without prior committee approval; (2) she had done so despite the instruction communicated to her in Mrs Anthony's letter (ex 11), which had reached Mrs Rockett on 6 January; (3) she had on 13 January then proceeded to expend body corporate funds in paying that liability; (4) in doing so, she had taken steps to conceal her involvement in that work and the payment for it by persuading Roessler to submit a false invoice in his name; (5) before and at the meeting on 9 February 1995, she had advanced her proposal that the section of the spear pump system in the front garden be repaired, and had done so without disclosing that the section of the system in the car park had already been repaired and paid for; (6) then and after that meeting she kept silent about the matter despite her knowledge of the resolution passed by the committee at that meeting that the "spear pump" not be repaired "at this point of time"; (7) following that meeting, she persisted in receiving and banking the amount due to her from Roessler on account of her own expenditure on materials for repairing the spear pump system. At the meeting on 31 March 1995, she refused to repay the money, and instead insisted on her right, as she supposed it to be, to take the materials back.

29. It is scarcely surprising that by doing so Mrs Rockett forfeited the confidence of her fellow committee members, or that she was asked to resign. A Mr Gaffney, who was a committee member at the time, said in evidence that he would not have been prepared to continue if she remained on the committee. His Honour, however, saw matters very differently. He seems to have considered that, viewing it objectively, her continued membership of the committee was desirable in the interests of the committee or of the unit owners of The Sands. He contrasted the "leisurely" approach of the other committee members to body corporate problems with her own attitude and actions. She may, he considered, "have had much to offer the body corporate on a committee which could work with her. Her 'pushiness' may have been an advantage". That, however, was a matter not for his Honour but for the committee, and ultimately for the unit owners to decide at an extraordinary general meeting at which her membership of the committee was raised. By contrast, his Honour seems to have approached the question almost as if it involved the judicial review of an administrative action. Referring to her conduct in having work done in January "without authorisation and arranging actual payment by devious means", he described it as no more than "serious misjudgment". It was, in our view, properly capable of being regarded by members of the committee as much more than misjudgment. Indeed, elsewhere in the reasons for judgment, his Honour himself condemned her conduct in arranging for Roessler to submit the false invoice, and of initially attempting to procure one from Renzella, as "indefensible". With respect to the "damning" statement that Mrs Rockett had "deliberately misled the committee", his Honour made a finding that the committee's concern regarding concealment was "well founded"; whereas their concern about retrospectivity was, he said, "ill‑founded". By "concealment" in that context he meant that she had "concealed her own and/or Mr Devencorn's role" in the work of repairing the spear pump system. By the "retrospectivity concern" he meant the belief of the committee members that, at the meeting of 9 February 1995, "she had sought retrospective authorisation of work which had already been done without revealing that it had already been done".

30. It is, of course, true that (except in her solicitor's letter ex 22) Mrs Rockett never sought retrospective authorisation of the work already done on the spear pump system. She had, as his Honour recognised, no need to do so, having by then not only done the work, but also arranged for it to be paid for out of body corporate funds without informing the committee of her action. It scarcely went in mitigation of her conduct that for some time she succeeded in concealing her conduct from the committee. Yet despite, or perhaps because of the initial success of her efforts at concealment, his Honour thought it would be "straining language" to say that the Roessler invoice was an attempt to mislead the committee. For her at the same time to ask the committee to sanction further work on the spear pump without disclosing what she had already done and paid for was, however, fairly capable of being considered by ordinary committee members as a form of deliberate misleading, the more so when, at the same meeting, she sat by even after hearing that nothing at all was to be spent on the system. Taken with other conduct such as deliberate concealment, silence has long been equated both at law and in equity with active deception or misleading conduct. On any view of it, it was open to committee members to regard Mrs Rockett's conduct in that light, and quite properly to form the judgment that someone who had acted as she had done had no place on a committee charged by statute with decision-making and expenditure on behalf of the body corporate. And that remains so, irrespective of whether it was the spear pump as such, or more broadly the spear pump system, that was the subject of discussion at the meetings on 9 February and on 31 March 1995.

31. So much for the first publication complained of, which was in ex 29. The second was part of ex 30, which was a report dated 21 June 1995 from Mrs Anthony as chairperson to owners of all 99 units in The Sands. It is a one-page report of proceedings at the committee meeting held on 2 June 1995 that refers to several different matters discussed at that meeting, including the decision of a statutory referee on an application by a former resident manager; the progress of negotiations with Villaview Pty Ltd (Dr Eccles) about the conditions on which the current resident manager's agreement would be validated; plans for repairing the concrete spalling, repainting the building, and replacement or repainting of entry doors; proposals to repair the swimming pool water heating system, which had broken down again; and Mrs Rockett's failure to repay the spear pump system money. The third paragraph contains the offending publication, which, as his Honour said, is "briefly reported" as follows:

"Mrs Lynne Rockett, a committee member, who without authority got her husband to do unnecessary work at The Sands and authorised payment by the body corporate through a third party, has not refunded the money, as requested by the committee at a previous meeting."

The evident purpose of the publication on this occasion was to report Mrs Rockett's failure to repay the money as requested by the committee. The only complaint capable of being made about the accuracy of the report is the reference in it to getting her husband to do "work" at The Sands that was "unnecessary". On the view we have already stated, it was open to the committee and its chairperson, on the opinion they had, whether rightly or wrongly, formed of the quality of the ground water, to regard the work as "unnecessary", and, as we have already noted, it is also true to say that Mr Devencorn had done "work" at The Sands. What may be open to complaint is the impression perhaps conveyed by the report that he might have benefited financially from doing the work, which was contrary to the facts. Read literally, however, as was the phrase "spear pump" by his Honour, the sentence in the report does not say so much.

32. The third and final publication complained of as defamatory was in a report (ex 31) from Mrs Anthony as chairperson to unit owners that is dated 1 August 1995.  It is a report on proceedings at the extraordinary general meeting of unit proprietors held on 14 July 1995. At that meeting Mrs Rockett's position on the committee was declared vacant by what his Honour described as "a large majority, including many proxy votes", of 59 in favour and nine against the motion. Specifically as regards the spear pump system, the passages particularised as being defamatory are those paragraphs in the report identified by the letters (e) and [second] (d). They are as follows:

"(e)The matter of the spear pump is very clear cut. Mrs Rockett, with no authority from the Committee authorised work which did not need to be done, so no degree of urgency was present.

The sequence of events is as follows:

·pump repaired 8 January, 1995.

·Invoice for work submitted in the name of "E Roessler" 10 January.

·Mrs Rockett signed the invoice 'Ok for payment' on the 12 January.

·January 13 Mrs Rockett signed cheque for Sands in payment of the invoice.

·9th February Mrs Rockett submits a written request to the committee meeting that the spear pump be repaired. She did not tell the Committee that she had already fixed the pump and signed a Body Corporate cheque for payment to "E Roessler'.

·The Committee rejected the request as it was known the water the pump produced was salty.

·March 31, 1995. At this, the next committee meeting, Mrs Rockett was asked to explain her attempt to obtain the Committee approval for repair of the pump. After detailed discussion, all the other members of the Committee resolved to ask Mrs Rockett to resign.  She refused. The Committee asked her to refund the money authorised without authority. $349.95.

The Committee then resolved to put a motion to the next EGM that Mrs Rockett be removed from the Committee and that unit owners be advised of the reasons for the motion.

·June 2nd 1995. Committee informed that Mrs Rockett had failed to refund the money paid for the pump.

(d)Mrs Rockett claims she has been unjustly dealt with by the Committee. However the other Committee Members could not be blamed for having no confidence in a member who has usurped the Committee's powers by the unauthorised work on the spear pump as an urgent matter on a Sunday, authorising the payment and  signing the cheque for work in which she was personally involved without consulting any other Committee Member or the Chairperson. Her subsequent attempt to mislead the Committee to authorise the work, and then her failure to explain the matter to the satisfaction of the Committee, is enough to indicate that the Committee would have failed to fulfil its responsibility to Unit Owners if the other members had not asked for her resignation and having her refuse this request, not given unit owners the opportunity to resolve the matter."

33. With respect to those two passages in ex 31, his Honour made two findings of falsity. One was "the gross repeated error in the insistence that work was done on the spear pump". The other was that:

"On the evidence, Mrs Rockett made 'no attempt to mislead the committee to authorise the work' ...".

His Honour went on to say that he thought the committee had "closed their minds and ears against Mrs Rockett's attempts to make clear the true facts - which, of course, are hardly creditable to her", but which in his opinion did not merit criticism "for any more than concealment of the plaintiffs' involvement in the work to the reticulation system associated with the spear pump and acting in excess of authority by circumventing and/or pre-empting the committee and its leisurely, but established, practices and procedures". These, or conclusions to this effect, have previously been the subject of comment in these reasons. They do not require repetition now, beyond saying that the significance of Mrs Rockett's conduct was a matter for the committee to assess, given that, as we think, it was fairly open to them to regard her efforts before and at the meeting on 9 February 1995, without disclosing what she had done, to secure approval for Item 19 in her report (ex 12) as involving "an attempt to mislead" the committee to authorise the work.

34. With these matters in mind, it is possible to turn to the real issue in the action, which was whether the defendants, and in particular Mrs Anthony, were entitled to the benefit of the qualified protection extended to defamatory statements by s 16(1)(e) of the Defamation Act 1889 or, as it formerly was, s 377(5) of the Criminal Code. Section 16(1) makes it a lawful excuse for the publication of defamatory matter:

"(e)If the publication is made in good faith for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is believed, on reasonable grounds, by the person making the publication to have, such a interest in knowing the truth as to make the person's conduct in making the publication reasonable under the circumstances."

The protection or excuse conferred by s 16(1)(e) is, however, forfeited if the publication is not made in good faith; and s 16(2) declares that for the purpose of the section:

"(2)... a publication is said to be made in good faith if the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; if the manner and extent of that publication does not exceed what is reasonably sufficient for the occasion; and if the person by whom it is made is not actuated by ill will to the person defamed, or by any other improper motive, and does not believe the defamatory matter to be untrue."

By s 17 of the Act, the burden of proving absence of good faith is imposed on the party alleging absence of good faith:

"17.When any question arises whether a publication of defamatory matter was or was not made in good faith, and it appears that the publication was made under circumstances which would afford lawful excuse for the publication if it was made in good faith, the burden of proof of the absence of good faith lies upon the party alleging such absence."

35. There can in our view be no doubt that the three publications of defamatory matter sued upon were each made on occasions capable of attracting the protection afforded by s 16(1)(e). Each of them was made by the committee, or the chairperson of the committee Mrs Anthony, for the purpose of giving information to the unit owners in The Sands in relation to proceedings of the committee or of the extraordinary general meeting concerning the conduct of one of the members on a matter as to which it was on reasonable grounds believed that the unit owners had such an interest in knowing the truth as to make the publisher's conduct reasonable in the circumstances. By virtue of s 46(2) of the Act, decisions of the committee on any matter were decisions of the body corporate, and, subject to the restrictions imposed by s 46 and s 47 of the Building Units Act, the committee had power to undertake expenditure of body corporate funds. It was proper that a matter affecting those funds, such as expenditure on the spear pump system, should be reported to the unit owners, together with an explanation of the circumstances in which the money came to be expended; and what action the committee had taken or was taking in respect of or to prevent a repetition of it. Under s 43(1)(j) of the Act it was for unit owners to determine whether, as the committee recommended, Mrs Rockett's office as committee member should be vacated. To do so, they would expect to know the reason for that recommendation. If they had not attended the extraordinary general meeting in person, they could nevertheless reasonably be expected to be interested in knowing, and to be informed about the fate of the motion that Mrs Rockett vacate office, and, if successful, the reason for it. It would be a surprising thing to say that a unit owner has no interest in proceedings at a general meeting which has taken place, or in matters relevant to it or to membership of the committee.

36. Given that, as we see it, each of the occasions on which the defamatory material in exs 29, 30 and 31 was published attracted qualified protection under s 16(1)(e), the remaining question for determination at the trial was whether or not the plaintiffs had succeeded in discharging the onus under s 17 of proving absence of good faith on the part of the defendants. The learned judge decided that the plaintiffs had succeeded in doing so. At one point in his reasons, his Honour said that, to the extent that any committee members may have had an honest belief that the publications were true, he considered that such belief cannot have been held reasonably. Elsewhere, he said there was no honest belief that the publications were true when they were published. He did, however, explain that the natural meaning of s 17, read with s 16(2), was such as to cast on a plaintiff the onus of showing that the defendant "does believe the defamatory matter to be untrue", and that it was not enough to prove that the defendant "does not believe the defamatory matter to be ... true". There is, his Honour observed, "much authority to show that lack of belief in truth does not embarrass defendants in a situation of qualified privilege". His Honour's ultimate conclusion appears to have been that the plaintiffs had failed to discharge the burden of proof that the defendants believed the defamatory matter to be untrue.

37. His Honour nevertheless found that, in making the publications, the committee members were actuated by ill will against Mrs Rockett and Mr Devencorn. The "dominant purpose" of the publications was, he concluded, to injure Mrs Rockett (and her husband where he was referred to) by the publications. His Honour prefaced this finding by saying, immediately before it, that there was no room for any of the committee members to argue that, in voting for Mrs Rockett's removal, they were acting in the interests of the body corporate. It seemed to him, he said, "an uncalled for disciplinary exercise". This was consistent with his earlier observation (on which we have already had occasion to comment) that she may have had "much to offer" the body corporate. The question to be decided was, however, not to be confused with that sometimes met with in companies of determining whether directors have acted bona fide in the interests of the company as a whole. It was whether or not the committee members were actuated in publishing the defamatory material by ill will against Mrs Rockett and against Mr Devencorn.

38. Because of the slightly ambiguous way in which his Honour's remarks on what he called the "ousting" of Mrs Rockett from the committee are phrased, it is perhaps not clear whether or not he regarded that action as proceeding from an "improper" motive. He did, however, say that "such a motive, in this case may be intertwined with one to injure"; and he then found that a motive to injure Mrs Rockett, and that ill will toward her, had "operated". In the end, however, the circumstances which his Honour said had led him to make the finding of absence of good faith against Mrs Anthony were identified by the learned judge in his reasons as "including" the following:

"(i)persistence in denying credit to Mrs Rockett for the work for the Body Corporate, particularly in discovery of the 'glass anomalies';

2. humiliation of Mrs Rockett by publication of Mrs Anthony's private letter to her of 21 December 1994 (Exhibit 11) to the committee at the meeting on 9 February 1995;

3. publication to all unit-owners in the building of the accusations against Mrs Rockett (presented as established facts) on at least four occasions (Exhibit 40 as well as the three publications sued on);

4. a publication (that of 1 August 1995) after Mrs Rockett's removal from the committee;

5. raising of the matters of concern at the meeting of 11 March 1995 in the form of a charge or accusation assuming wrongdoing ('a please explain ...'), rather than as an inquiry - and humiliation of Mrs Rockett from its being done in a formal committee meeting rather than [in private];

6. the charge that Mrs Rockett was a liar who 'continues to make claims ... (she) ... knows ... are untrue' in the publication of August 1995;

7. the patent twisting or omission of words in documents before the committee (Mr Roessler's invoice in Exhibit 11 and Mr Renzella's report in Exhibit 27, both of which clearly support Mrs Rockett's contention, made in her own document, Exhibit 12 (Item 19) also before the meeting that she was talking about the 'spear pump system' and not the 'spear pump') - it is the cumulative effect of the misrepresentation of three documents which is important and which fortifies the inference that Mrs Anthony should be treated as knowing that documents were selectively quoted in the 'minutes';

8. the cumulative effect of numerous false statements regarding Mrs Rockett in the publications, all discreditable to her - I am not prepared to accept this was no more than coincidence;

9. the decision to call the July 14 1995 Extraordinary General Meeting at all, and to fix the date thereof without any reference to Mrs Rockett, particularly given that her fate was to be decided at such meeting;

10. the probability that the meeting was called on a pretext."

39. The circumstance numbered (vii) refers to the verbal distinction between "spear pump" and "spear pump system", which has already been disposed of in these reasons. As to circumstances mentioned in (i), it will be recalled that the "scorns" that patient merit of the unworthy takes were long ago identified by Shakespeare as one of many common burdens of daily life. Given, however, the specific finding made by his Honour, it may be accepted that circumstance (i) represents a possible, if distinctly slender, foundation for inferring malice on the part of Mrs Anthony against Mrs Rockett. On any view, however, it ranks well down the scale of evidence capable of supporting an inference of actual spite or ill will of the kind required by s 16(2).

40. With respect to (ii), the publication on 9 February 1995 of Mrs Anthony's letter of 21 December 1994 (ex 11) to the whole committee was, as we have already given reasons for saying, a matter of obligation at the meeting and not something gratuitously done by her simply with a view to "humiliating" Mrs Rockett. The instruction given in the letter to Mrs Rockett to refrain from exceeding her authority by undertaking expenditure on behalf of the body corporate, or from passing herself off as locally authorised to represent the whole committee, was plainly called for in the circumstances which had been imparted to the chairperson by Mr Willis. Unless adhered to, confusion, or something more serious, would certainly have ensued. It was necessary that other committee members be made aware of it and of their own obligations in that regard. If the chairperson's direction did not in fact accord with prevailing committee perceptions of the powers of a single committee member, her action in tabling the letter invited debate on the subject. As it happened, both the actions of the committee and his Honour's own findings confirmed that Mrs Anthony was correct in her view of the limited extent of Mrs Rockett's authority, even if, as it later emerged, Mrs Rockett was not prepared to heed the warning. His Honour was, on the view we take of it, not justified in regarding this action by Mrs Anthony as evidence of ill will toward Mrs Rockett.

41. Circumstance (iii) is one of several such items in which, in his Honour's reasons, an inference of ill will is drawn from the very fact of publication of the defamatory matter itself. We consider that ordinarily the existence of ill will falls to be established independently of the fact of publication which, for the purposes of answering the inquiry, must necessarily be proved or at least assumed to have taken place and to be defamatory. There is a logical difficulty in the notion that publication of defamatory matter is protected if it is published in good faith, but that publication of the defamatory matter demonstrates lack of good faith. It was, however, at least partly the frequency with which the "accusation" was published that was the focus of his Honour's attention in circumstance (iii) as well as some of the other enumerated circumstances. There were four such occasions, of which the three publications in exs 29, 30 and 31 are the subject of the claim for damages in the action, and the fourth is not. The fourth was in ex 40, which was a report from Mrs Anthony dated 3 July, evidently prepared in anticipation of the extraordinary general meeting to be held on 14 July 1995. Item 5 in ex 40 refers to the motion from the committee that Mrs Rockett's position on the committee be declared vacant. The report was, as appears from item 2 of ex 20 (which is a handwritten note faxed by Mrs Anthony to Mr Willis as secretary), accompanied by the first two pages of the offending minutes (ex 14) of the committee meeting held on 31 March 1995.

42. It is not unusual for the chairperson in advance of a general meeting to circulate a report to members explaining the business to be considered at the meeting. It could no doubt have been done without recycling the minutes (ex 14) of that meeting, as in fact happened here. The committee had, however, received advice from their solicitor Mrs Cull to the effect that "the fairest way to all concerned is to quote in full the way the topic was recorded in the minutes". His Honour said the fact that such advice had been given "cannot assist the defendants". That may be so if the defendants had believed the minutes to be untrue, or if there was something more than the fact of publication to demonstrate ill will; but the advice, if acted upon as it appears to have been, suggests that Mrs Anthony's motive for publishing those minutes with the agenda was fairly attributable to the legal advice received by the committee rather than to any ill will against Mrs Rockett. His Honour seems not to have considered that in the context of good faith such an inference was readily available.

43. As regards the other three publications, ex 29 was the report dated 20 April 1995 to unit owners of proceedings at the meeting on 31 March 1995, which dealt with several different matters, of which Mrs Rockett's conduct was only one. The portion of the minutes (ex 14) quoted in ex 29 that refers to Mrs Rockett is prefaced with the remark that "in discharging my responsibility to you as Chairperson, the fairest way to all concerned is to quote the full way the topic was recorded in the minutes". Again, this reflects the legal advice received by the committee. The committee meeting on 31 March had resolved that all unit owners be informed about the matter, and owners in turn plainly had an interest in knowing that the committee was proposing that Mrs Rockett be removed at the next extraordinary general meeting. To us it seems impossible to regard publication of the extract from the minutes on this admittedly privileged occasion as itself evidence of ill will on the part of the defendants. The same applies to ex 30, which was another report to unit owners, this time of the committee meeting on 2 June 1995. The "brief report" it contained about the subject did not on this occasion incorporate the "damning" passage that Mrs Rockett had misled the committee or attempted to do so. Its purpose or effect was to record that she had not refunded the money received from the body corporate, although she had been asked to do so at the previous meeting on 31 March 1995.

44. This leaves for consideration ex 31, which in specification (iv) was also made the subject of a separate "circumstance" leading to his Honour's finding of absence of good faith. Exhibit 31, dated 1 August 1995, was again a report by the chairperson Mrs Anthony to unit owners, this time with respect to the proceedings which had taken place at the extraordinary general meeting on 14 July 1995.  It began by advising that the motion to declare Mrs Rockett's position on the committee vacant had been carried, and that the committee had been instructed to fill the vacancy. After  discussing other matters over the ensuing two pages, it returned to the topic of the spear pump or system. In doing so, ex 31 remarked that "other committee members could not be blamed for having no confidence in a member who has usurped the committee's powers by the unauthorised work on the spear pump"; and it repeated the "damning" statement about attempting to "mislead" the committee. By this time there may have been few members who, if they had assiduously been reading what had been sent to them, were not aware of or who did not recall the events leading up to Mrs Rockett's removal; but there may have been some who did not, and it was reasonable and relevant to recount once again what it was that had prompted the resolution from the committee proposing that she be removed. Equally, since the general meeting had taken place and the resolution to remove Mrs Rockett had been passed, it was reasonable for the chairperson to report what had happened at the meeting, and relevant to say why. Contrary to his Honour's conclusion on this aspect, publication on 1 August 1995 of the defamatory matter in ex 31 was, in our view, relevant to an occasion of qualified protection, or to matters on which that protection depended.

45. In addition to the portion of ex 31 relating to Mrs Rockett's removal from the committee, the report of 1 August 1995 also figured in circumstance (vi), which his Honour identified as "the charge that Mrs Rockett was a liar who 'continues to make ... claims ... [she] knows ... are untrue'". The reference is to the passage of ex 31 designated first (d), which is as follows:

"(d)Mrs Rockett continues to make claims that I tried to have the Body Corporate pay for repairs to my unit that were my responsibility to pay. Mrs Rockett knows these allegations are untrue. She was told this by the Secretary, that he had authorised the payment by mistake without my knowledge. He should have forwarded the invoice to me. As soon as I heard of the mistake I sent my cheque for the total amount. Mrs Rockett makes comparisons between my unit and two others which is invalid. Damage to my unit which is on the top floor of the Orchid Wing was caused by water leaking through from the roof. The ceiling and cornices were rotting from water penetration. This did not apply to the other units and they cost less to paint. In any case, the payment for repairs to the ceiling which were a Body Corporate responsibility, on account of the leaking roof, were approved (the lesser of two quotes) by a Committee meeting on 2nd November 1994, at which Mrs Rockett was present also holding a proxy of another Committee member, Mrs Beryl Shands, and she raised no objection then."

The passage itself in fact contains no express statement that Mrs Rockett is a liar. His Honour's statement to that effect is an inference he derived from the words of the report quoted in circumstance (vi). The sting of the statement, as we understand it to be, is, however, primarily in the use of the words "continues to make". On the evidence at trial, the last time on which Mrs Rockett had in fact made such a statement was in ex 21, which was her "inflammatory" circular dated 7 April 1995 to unit owners following the committee meeting on 31 March 1995. In it she recounted the incident in 1994 when Mrs Anthony's unit had been repaired, after which the repairer's invoice for $2960 had been presented to and paid out of body corporate funds. On finding that this had happened, Mrs Anthony promptly wrote to the committee enclosing her cheque for $2960 to reimburse the body corporate in that amount, which she regarded as a liability on her own account as owner of her unit. With respect to this repayment and the circumstances leading up to it, his Honour made the comment that "no explanation was forthcoming as to what induced Mrs Anthony to reimburse the body corporate ... I would draw the inference that Mrs Anthony was tipped off in some way". A competing inference is that she had no wish to be dishonest. There were said to be other "irregularities" in the transaction which his Honour considered went to show that Mrs Rockett's conduct in respect of the Roessler invoice "appeared to be viewed far more harshly" than that of Mrs Anthony.

46. That, even if true, was not enough to found a conclusion of ill will on the part of Mrs Anthony, or of the other committee members, toward Mrs Rockett, obvious differences between the two cases being that Mrs Anthony admitted in writing that a mistake had been made and repaid the money, whereas Mrs Rockett concealed her conduct and did not repay. The critical point being made by his Honour in or in relation to circumstance (vi) is, however, that Mrs Anthony failed to respond to the complaint in ex 21 dated 7 April until her report (ex 31) of 1 August 1995, which was a delay of almost four months. His Honour wondered why Mrs Anthony had not answered the slights against her in advance of the extraordinary general meeting, while himself observing that it "could have meant adding to their currency"; and he concluded that it was an instance where Mr Willis had been left to take the blame for what had happened. The report of 1 August 1995, his Honour said, "has, for me, the appearance of kicking a foe who is already down".

47. There was, as his Honour seems to have accepted, plainly an element of self defence in Mrs Anthony's response to Mrs Rockett's assertion in ex 21. Her response to it was certainly delayed; but Mrs Rockett had never withdrawn the allegation, and, late though it was, Mrs Anthony was entitled to answer it, otherwise she would almost certainly have been accused at the trial of having by her silence acknowledged the truth of it. Evidence that a person is harbouring ill will against an accuser is seldom to be found in the fact that there was delay in answering the accusation. Saying that Mrs Rockett "continues" to make claims, etc., may have referred to the fact that the matter had been raised at the committee meeting in November 1994. It is, in any event, difficult to see why in April 1995 Mrs Rockett should have seized on it as excusing her own conduct in relation to the spear pump system, to which it was logically not relevant. Tactically or for other quite proper reasons, Mrs Anthony may well have been right not to confuse the issue for debate at the general meeting by postponing the defence of her own conduct in a matter that was not relevant to the assessment of the conduct of Mrs Rockett.

48. It is convenient to refer here to circumstance numbered (viii) in conjunction with those in (iii), (iv) and (vi) already discussed, taken with his Honour's further finding about the "manner and extent" of the publication of ex 31. Circumstance (viii) stresses "the cumulative effect of numerous false statements regarding Mrs Rockett in the publications", all of them "discreditable" to her, which his Honour said he was "not prepared to accept as no more than coincidence". It is not easy to identify what are the false and discreditable statements being referred to in (viii). It may, once again, simply have been the defamatory statements sued upon, which his Honour was saying ought to be viewed cumulatively. If so, it was a matter already comprehended by (iii), which stressed frequency of publication ("on at least four occasions"). This view of (viii) accords with the submission on appeal of Mr Barlow, who had appeared as junior counsel for Mr Morris QC for the defendants at the trial. He submitted on appeal that it referred to the issue of the spear pump, the question of actual authorisation, retrospective authorisation, and so on. Mr Favell, who appeared for the plaintiffs on appeal but not at the trial, did not succeed in further elucidating the content of (viii).

49. Frequency of publication was, however, the foundation of another and separate finding that the defendants had forfeited the protection of s 16 because the manner and extent of publication had, within the meaning of s 16(2) of the Defamation Act, exceeded "what is reasonably sufficient for the occasion". It is difficult to find authoritative support for a conclusion that frequency constitutes "excess" in either form. In Rigby v Associated Newspapers Ltd (1966) 68 SR (NSW) 414, 426, Sugerman JA regarded "manner" as encompassing the level of prominence accorded to the defamatory matter in the publication; and in Plumb v Australian Consolidated Press Ltd [1975] 2 NSWLR 414, 430, Hutley JA discussed the extent to which the position or location of the offending words in the publication conferred a degree of prominence. Width of publication geographically, meaning by that whether circulation was national or only local, was treated by Wallace P as relating to "extent" of publication in Clines v Australian Consolidated Press Ltd (1966) 84 WN (Pt 2) (NSW) 86, 97. In Pervan v North Queensland Newspaper Co Ltd (1992) Aust Torts R, at 69, 125, Thomas J said:

"Consideration of the 'manner and extent' of the publication usually involves the subject matter, the extent to which it might go beyond matters strictly relevant to the subject in question, and the form and manner of presentation."

If, as in Pervan, manner and extent also involved circulation, then, as his Honour held there, publication in that instance in a local newspaper reaching beyond the Johnstone Shire exceeded what was reasonably sufficient for the occasion.

50. The conclusion we have reached is that frequency or repetition of publication is capable in some circumstances of affecting "extent" of publication, where the consequence is that more persons are reached by the defamatory publications; but it is not suggested that that is what happened here, where no one beyond the 99 or so unit holders, possibly with their associates or guests, is alleged to have received or read the offending material. The frequency (three or four occasions) of publication in the circumstances of the present case was in our opinion not such as to deprive the defendants of the protection afforded by s 16(1)(e) to publication of this defamatory material. It could not, in any event, have affected the first publication, or the second publication (which itself was very brief) but at most the third or the fourth. The "cumulative effect" could have operated, if at all, only in relation to the later publications.

51. This leaves for consideration two of these other specific matters, which were relied on as justifying the finding that the defendants had acted without good faith but which are not listed among the 10 enumerated "circumstances". One was a letter (ex 17) dated on or about 7 July 1995 from Mr Kibbler, the owner of unit 305, who wrote to the secretary expressing regret at the committee's decision to ask for Mrs Rockett's resignation. He praised Mrs Rockett and thought it would be detrimental to The Sands and its owners if the "vendetta", as he called it, resulted in the motion to remove her being carried. No doubt he could have expressed that view at the general meeting, which he evidently did not mean to attend. Not having given evidence at the trial, the truth of the contents of Mr Kibbler's letter (ex 17) was no more than his opinion that a "vendetta" existed, and a hearsay opinion at that. Failure to table and read the letter at the meeting cannot constitute evidence of ill will on the part of the defendants or their supporters, who attended in order to vindicate their view of Mrs Rockett's conduct, and not that of Mr Kibbler. The appropriate course for Mr Kibbler would have been to appoint a proxy to represent and (although not strictly entitled to do so) perhaps to attempt to read his opinion at the meeting. For what is known of it, his may in fact have been one of the votes given in support of Mrs Rockett.

52. Mrs Rockett would have been the obvious choice as Mr Kibbler's proxy but she did not attend the general meeting on 14 July. His Honour regarded it as "rather amazing" that the date of the meeting was fixed without reference to her; but, as the learned judge himself pointed out, there was "no particular exploration" of that fact at the trial. That being so, it was not legitimate to use it as evidence of ill will or the absence of good faith on the part of the defendants. Mrs Rockett circulated a letter and how-to-vote card (ex 26) on 6 July 1997; but made no protest about the date fixed for the meeting. She was realistic about the strength of the opposition ranged against her.

53. His Honour's amazement at the choice of date for the general meeting may also have influenced his conclusion, embodied in circumstance (x), that the general meeting was called on a "pretext". By that he meant that the "ostensible reason" for calling the meeting was to obtain approval for expenditure on pool heating which, by a small margin, the committee would not, without the approval of a general meeting, have been entitled to undertake. The fact is, however, that the committee needed no "pretext" for convening an extraordinary general meeting to remove Mrs Rockett from the committee, which under the Act only a general meeting is empowered to do. They could, it is true, have waited until the next annual general meeting; but, as his Honour found, Mrs Anthony genuinely believed that Mrs Rockett's disruptions to established routine represented "a wrong way of going about things". The committee shared her view. They were not bound to prolong that state of affairs by deferring action on their resolution passed at the meeting on 31 March 1995 to propose her removal from the committee at the next extraordinary general meeting. Predictably, having despatched the agenda dated 3 July (ex 4) for that meeting, they received from Mrs Rockett's solicitors the letter dated 6 July 1995 (ex 22) threatening action for damages for defamation if the apology was not received. The letter said nothing about deferring the general meeting or changing the date of it, or about abandoning the motion to remove Mrs Rockett. Proposing the motion at a general meeting was the procedure appointed under the Act for doing so. Indeed, it was by then plain to any rational mind that they and Mrs Rockett had reached the parting of the ways.

54. When account is taken of all these matters, we consider that the learned trial judge was not justified in finding that, in publishing the defamatory material complained of in exs 29, 30 and 31, the defendants, and in particular Mrs Anthony, were actuated by ill will within the meaning of s 16(2) of the Defamation Act; or that the manner and extent of the publication exceeded what was reasonably sufficient for the occasion; or that the matter in ex 31 was not relevant to the occasion. In concluding, as we do, that the finding of ill will cannot stand, we are conscious that we are differing from his Honour on a matter of fact which ordinarily lies well within the province of a trial judge. There are, however, several reasons why we consider this Court is justified in doing so here.

55. In the first place, the appeal does not seek to set aside a jury verdict or finding to that effect, but is an appeal against the judgment of a judge sitting alone. In the matter of drawing inferences from proved or undisputed facts, this Court is in as good a position to do so as the trial judge: see Warren v Coombes (1979) 142 CLR 531, 551. Of course, there is a well settled exception to this attitude or practice on appeal as regards findings of a trial judge that are based on impressions of the credibility of witnesses whom he or she has had the advantage of seeing and hearing giving evidence. But, although his Honour in the present instance enjoyed that advantage, and we do not, it was not on any such impression that the learned judge professed to rely in finding that the defendants were actuated by ill. Rather, he was at pains to specify and candidly expose in his judgment the particular reasons which led him to that conclusion. Having studied those reasons, set out in the circumstances enumerated (i) to (x) and elsewhere, we are satisfied that, considered individually and cumulatively, they are not sufficient to justify the conclusion of ill will or absence of good faith that was reached by the learned trial judge in this action.

56. Moreover, as regards some more specific, and material, but subsidiary, findings, we find ourselves in fundamental disagreement with his Honour, or with particular inferences that he drew in relation to them. His conclusion about the tone and content of Mrs Anthony's initiating letter (ex 11) of 22 December 1994 is an example, as well as the inference he drew from her action in tabling it at the committee meeting on 9 February 1995; another is the significance or insignificance, both overall and in assessing the attitude and decisions of the committee, properly to be attached to the distinction between "spear pump" and "spear pump system". A similar disagreement or difference exists in the characterisation of Mrs Rockett's conduct in attempting to conceal her unauthorised expenditure on repairs to that equipment. As appears from these reasons, we also consider that his Honour's approach to the committee decision that Mrs Rockett be removed erroneously assumed that it was for him to determine if the committee members were, objectively, justified in the impression they formed of the seriousness of her conduct. It would seem that genuine and justifiable disapproval of Mrs Rockett's actions leading initially to an attempt to discipline her and ultimately to a determination to remove her from the committee were mistakenly interpreted as malice or as revealing a lack of good faith on the part of Mrs Anthony and of the committee.

57. Finally, it must be said that, even allowing for the disrupted and discontinuous sequence of the trial, and for the fact that the lengthy reasons for judgment could not have been formulated at a single sitting, there are nevertheless several obvious instances of contradiction or inconsistency in particular findings or conclusions reached in respect of the same topic at different places in those reasons. The assessment of Willis's minute-taking impartiality and accuracy is one example, as is his Honour's varying assessment of the seriousness of Mrs Rockett's concealment of her part in the spear pump affair. In some of these instances it is really not possible with any real confidence to identify the conclusion finally arrived at.

58. For these and other reasons specified in what we have said here, we consider that his Honour's final conclusion that s 16(1)(e) was not available to the defendants in the circumstances disclosed by the evidence at trial ought not to stand. In our respectful opinion, the plaintiffs failed at the trial to discharge the burden of proof imposed on them by s 17.

59. Having said this, we should add that we have considered whether it would be possible for Mr Devencorn alone to retain the verdict of $1000 in his favour. His voluntary contribution of time and effort to the greater good of The Sands merited better recognition than becoming the subject of one or more defamatory publications. But he elected to join in suing for damages in respect of it, and, like his wife Mrs Rockett, he must abide the outcome of the decision we have reached, which is that both he and she failed to prove an essential ingredient in their action against the defendant Mrs Anthony.

60. The appeal by the appellant first defendant Mrs Anthony is allowed with costs; and the judgment against her at the trial is set aside. In lieu, there will be judgment in favour of the first defendant in the action, together with the costs of the action including reserved costs if any.