Rockett v Anthony[1998] QDC 198

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REASONS FOR JUDGMENT

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REASONS FOR JUDGMENT - ROBIN QC D.C.J.

Delivered the 24th day of July, 1998

At an extraordinary general meeting of The Proprietors, “The Sands”, Building Units Plan No. 82 on 14 July 1995, it was:

Mrs Rockett and her husband are the plaintiffs in defamation proceedings against the Body Corporate and Mrs Anthony who was, at the time, and remains Chairperson of the Body Corporate and the committee. The publications giving rise to the proceedings are dated 20 April 1995, 21 June 1995 and 1 August 1995. Each of them is a “Chairperson's Report” addressed and sent to the unit owners in The Sands, which has been a landmark apartment building on the Esplanade at Surfers Paradise for decades. Each report is on Body Corporate letterhead and seems to have been sent with the more or less enthusiastic approval of committee members other than Mrs Rockett. It is clear that Mr Anthony bears responsibility for the contents of each publication. How much the others knew about those contents in advance is obscure. Relevant parts of the publications are set out below at pages 18, 23 and 25.

As the case was fought, there was no real issue about the defamatory nature of the publications. The defence asserts each of the publications was made:

As to (a), (b) and (c), the public good seems to me to have little to do with the case; otherwise, there seemed to be no contest so far as Mrs Rockett is concerned that the occasions of the publications potentially were ones of qualified privilege under s. 377(3), (5) and/or (7) of the Criminal Code, now s. 16(c), (e) and/or (g) of the Defamation Act 1889. Different consideration may apply to Mr Devencorn, who was not on the committee. The plaintiffs claim in their reply that the benefit of qualified privilege has been lost because the publications were not made in good faith; the case has really been about whether the plaintiffs could make out that claim, they having the onus of proof under s. 378, now s. 17 of the Defamation Act. Little was heard of the defence under s. 48A of the Building Units and Group Titles Act which the defence quotes in (d); the first defendant bears the onus of proof, which, as will be seen, she failed to satisfy.

There are 99 units in The Sands. Very few of the proprietors live in the building. Typically, units are let out, one would think, to holiday makers. As tends to happen in such buildings, various people concerned with The Sands came to have (or think they had) opposed interests, and there was a certain amount of coalescing into factions. One faction centred on Mr Belcher, who was, or who controlled the resident manager at the time from which the building's history has been revealed to the court. Mrs Anthony acquired a unit in 1990, and although visiting Surfers Paradise from her home in Sydney only periodically became prominent in the Body Corporate, and a member of its committee not long afterwards. She has been a leading light in an opposing faction. For present purposes it is convenient to adopt her description of it as “the owners”. The composition of the committee under Mrs Anthony has been relatively stable for some years, indicating a record of electoral success by “the owners”. The committee were opposed to the disposal and transfer of “management rights” in The Sands by Belcher interests to interests associated with Dr Eccles in 1993, but were unable to stop it. Between Dr Eccles and the Body Corporate issues continued to arise after the take-over, but both sides necessarily made efforts to work together in the interests of harmony and smooth operation of The Sands. The evidence shows that factionalism goes further. The building cleaner, for example, Ultimate Cleaning & Maintenance, which is controlled by Mr Renzella, has been at odds with Dr Eccles and aligned with the committee.

The plaintiffs, or one of them anyway, acquired their first unit in The Sands in 1993. By the end of the second week of the trial, they were to have 10 units. They became residents in the building in September 1997, on acquisition of the resident manager's unit from the receiver appointed to Dr Eccles' company. In the transaction they acquired other property, such as the balance of a long lease of a restaurant in the building, and access to other facilities which they use to conduct a letting business in respect of their own and other units. They have not become resident managers for the Body Corporate, although it may well be that they would like to do so.

At the beginning of the trial, the plaintiffs sought to amend their pleading to raise issues concerning what may be broadly called alleged harassment of them in the conduct of their letting business by the Body Corporate in denying access to facilities in the building, such as the laundry, and to what they said is their PABX system (the full list was much longer). I refused to permit the amendment, not only on the basis of its lateness, but because of a determination not to make findings on pleaded issues which might determine commercial disputes arising long after the publications sued upon. I may not have indicated sufficiently clearly to Mr Hampson, counsel for the plaintiffs, that my ruling left it open to him to ventilate these matters on a certain basis, particularly in cross-examination. This happened to an extent; nothing that emerged (or in my opinion was likely to emerge) would amount to useful evidence of lack of good faith in publications in 1995. There simply have been too many developments of a commercial nature; there is simply too much scope for “innocent” explanations of difficulties which the plaintiffs do appear to have had put in their way.

It is not possible to find that the plaintiffs intended to invest in The Sands, to the extent that it has happened, from the outset. There is no reason for doubting Mrs Rockett's assertion that it is something that happened over recent years because of a decision to centralise family interests on the Gold Coast, rather than have them in multiple geographical locations.

Mrs Rockett was invited and agreed to fill a vacancy on the committee of the Body Corporate at its meeting on 2 November 1994. She had attended the meeting as proxy for a committee member, Mrs Shands. The two ladies had done valuable work, discovering what were intriguingly called “the glass anomalies”. These seemed to have cost the Body Corporate a great deal of money. The general idea was that, without any proper basis, plastic shower screens in a considerable number of units in The Sands had been replaced with glass ones at the expense of the Body Corporate and/or an insurer. On the evidence before the court, I would accept that Mrs Rockett and Mrs Shands were the discoverers of the glass anomalies. For some reason, Mrs Anthony refused to accept that proposition, although quite unable to nominate any other discoverer. She was willing to express generous praise for Mrs Rockett's energetic work for the Body Corporate, both generally and in unearthing detail of the glass anomalies. The witnesses called in the defendants' case were as unwilling as Mrs. Anthony to acknowledge original discovery by Mrs. Rockett. Attempts to assign credit to someone else, such as Mr Willis, proved to be without justification.

From 2 November 1994, Mrs Rockett became “liaison officer” for the committee, replacing Mr O'Donnell, a resident of Brisbane. Although the plaintiffs made a case that the liaison officer had an independent discretion to spend Body Corporate funds for the upkeep of The Sands, it seems to me the role was one of checking on the resident manager to ensure that he or it made proper expenditures only. The position of liaison officer has no official status whatever. It was created as a matter of convenience so that a committee consisting mainly of members resident far from Surfers Paradise could communicate with the management and exercise a financial control through the liaison officer on a day to day basis. No one disputed Mrs Rockett's claim to be spending up to 25 hours per week on Body Corporate business. Dr Eccles went on record suggesting she appeared to be trying to take over the functions of the resident manager. I think there is something in this. I have indicated already my view that the liaison officer was to provide a check on the initiatives of the resident manager. Mrs Rockett's approach seems to have been that she was entitled to take initiatives herself, without reference to the resident manager or to the committee. She claimed precedent existed in the terms of Mr O'Donnell's appointment as liaison officer and in the way he carried it out. Even if genuinely presented, those claims do not stand up.

Things apparently worked well for a while, after Mrs Rockett's “appointment”, the committee working hard together to defeat the Eccles faction in elections for a new committee at the Annual General Meeting on 15 December 1994. The evidence was that the committee were not at all confident of prevailing, but they did prevail. During the “campaign” Mrs Rockett was fulsome in her praise of Mrs Anthony. Mrs Anthony told me that she had offered the Chairperson's role to Mrs Rockett, who not only had the advantage of being a Gold Coast resident but had shown herself willing to put much time into the affairs of The Sands, the response being (Mrs Anthony said) that Mrs Rockett regarded herself as lacking the ability to be Chairperson.

It is impossible to assess the motivations of the two ladies with any confidence. Mrs Anthony does not appear to have any ulterior motive leading to her wishing to remain on the committee. She has only one unit in the building. Living in Sydney, where I infer she has a business, she is necessarily an absentee Chairperson, but a conscientious one, securing re-election year after year. She does not seem to be interested in “hands on” management; rather, she prefers a deliberate, measured approach, whereby decisions are made by the committee at its meetings, held roughly quarterly. Necessarily, this could lead to delay, but urgent matters could be dealt with by the resident manager and the liaison officer, and flying “minutes” of committee decisions were not unknown, although Mrs Anthony said she could not recall any. Exhibit 40 may refer to one. See also Mrs Anthony's evidence at p. 603.

The committee's leisurely approach seemed to frustrate Mrs Rockett. My judgment is that she was keen to see things done with expedition and, with whatever ultimate goal in view, establish for herself a record and reputation for being effective. She began to take too much upon herself or “overstep the mark” to adopt the expression she attributed to another committee member, Mr Gaffney. Things began to go wrong almost immediately after the triumph of “the owners” at the 1994 AGM; there may have been portents of what was to come even before.

On or about 21 December 1994, Mrs Anthony wrote the following letter to Mrs Rockett:

The letter was faxed to Mrs Rockett on 6 January 1995, on Mrs Rockett's return from vacation.

Defence counsel, presumedly in line with his instructions, described the letter as “nice”, “gentle”, “friendly”, “kindly”. Mrs Rockett's view of it was to the effect that it was a hostile or threatening act, or a warning, and also a rebuke. There is little point in analysing or deconstructing the letter. Opposed views may be open as to what it signifies. I can understand it being taken as an intimation to Mrs Rockett that there would be consequences if she continued to take independent action, indeed as an intimation to Mrs Rockett that she was “finished” - which is the kind of reading I accept Mrs Rockett arrived at. The two ladies appear to have been involved in unpleasantness in a telephone call about 21 December 1994. If Mrs Anthony really wished to educate Mrs Rockett and keep her as an influential, productive committee member, the obvious way to do it was by an informal, uncensorious approach. I do not overlook that Mrs Rockett may have given Mrs Anthony provocation.

Unfortunately, by the time of receipt of the fax, Mrs Rockett had embarked on the course that was to prove her undoing. She determined (I find in complete good faith) to get into operation a watering system in The Sands gardens which was fed by a spear pump, not used for some years. Four lines running to different parts of the grounds incorporated nozzles by means of which watering of the garden could occur. In about 1990, apparently because the water became too salty, use of the spear pump system was discontinued. It seems self evident that the Body Corporate's financial interests were served by use of “free” water from the spear pump; the court also heard that water pressure might be better. The spear pump was found to work, but the reticulation system was useless, piping having been cut up, for example. The plaintiffs decided to get the two lines servicing the “back” garden back into service. Mrs Rockett purchased appropriate materials. In addition, a concrete plinth on which the pump could be stood to work at its best was acquired, and Mr Devencorn's business fabricated a galvanised iron cover for the pump. A contact of his, Mr Eric Roessler put in place the concrete plinth and cover and refurbished the reticulation system to the rear garden on Sunday, 8 January 1995. No committee decision had been made or sought that the work be done; no other committee members had been approached by Mrs Rockett, although a few days after the work was done, she told Mr O'Donnell about it, giving him the impression that her husband had done the work. I am sure she did not say that - it was contrary to the true facts and there was no reason for her to say it. She may well have said that she and/or her husband played a part in the exercise. Mr O'Donnell's evidence was that the late Mrs. Heather Welch had independent information about it, at about the same time, which suggests the plaintiffs or one of them told her, and that no concealment was going on. Mr Renzella was another person who knew. I accept Mrs Rockett's evidence he expressed his opinion to the effect that getting the spear pump system operational again would be useful from the point of view of getting watering done.

Mr Roessler charged $60 for his work. The components he used which Mrs Rockett had bought in cost her $210.10. Ultimately, the Body Corporate was invoiced $349.45 for the job, the odd $79.35 being attributed to the galvanised iron cover. No invoice or quote was ever produced for that, although the plaintiffs suggested it was a precise figure worked out in some way at the time, rather than the balance remaining after the total of Mrs Rockett's invoices for materials and Mr Roessler's charge for labour was subtracted from $349.45, which the defendants suggested was the kind of sum which would not attract attention in an investigation within the Body Corporate.

Although the moneys made available for the purchase of materials by Mrs Rockett by a fair margin (and the supposed price of the cover provided by Mr Devencorn's firm narrowly) exceeded Mr Roessler's charge, the invoice to the Body Corporate collecting all three components was issued by Mr Roessler, once his concern at possibly having to pay tax on the full sum was allayed. Mrs Rockett was determined that the invoice to the Body Corporate would not reveal her involvement or that of Mr Devencorn's firm. Before getting Mr Roessler's co-operation, she had asked Mr Renzella (who was about the place when Mr Roessler was embarking on the work, and, in my opinion, knew it was being done) whether his firm would submit the invoice. She says he agreed to do it, he says he refused. “Refused”, to refer to the term adopted in his evidence, may be too strong, and suggest a finality that was not communicated to Mrs. Rockett. His letter to Mrs. Anthony of 24 March 1995 says he “declined to get involved” (Exhibit. 27). I think the probability is that his evidence at trial that Mrs. Rockett expressly stated she did not have permission to do the job is a reconstruction arrived at at some later time. On balance, I find that Mr Renzella communicated to her at least come receptiveness to her request. She knew he had submitted an invoice to the Body Corporate for private work on Mrs Anthony's unit - work which he did not carry out personally or by his own employees. Once Mr Roessler co-operated, it was no longer necessary for Mrs Rockett to pursue Mr Renzella. She made it clear to Mr Renzella she did not want the invoice to come from herself or her husband. She has never denied this. Her explanation was that it might lead to trouble if people well disposed to the Eccles faction scrutinising the Body Corporate records discovered there had been contracting with a committee member. I am satisfied that Mrs Rockett genuinely believed the committee would see things the same way, be grateful that no “smoking gun” was left about. Mr Roessler's invoice was dated 10 January 1995 and received by the Body Corporate the following day. She endorsed the invoice “ok” and initialled it on 12 January 1995 and payment was made to Mr Roessler the following day by a cheque which would have been signed by her and some other person, not identified. Mr Roessler accounted to Mrs Rockett for $289.45.

The evidence does not support any finding that either of the plaintiffs profited directly or indirectly from the transaction. There is no evidence to show the work was not effectively done, although Mr Lenane, who would have charged more than $79.35 for a galvanised cover, said that in the location close to the beach, a stainless steel one would have been more suitable. From the defendants' side, the work has been criticised as unnecessary, on the basis that the spear pump delivered water which was too salty to be useful for the garden. This seems to have been received wisdom within the committee, although it is doubtful that any of them had direct knowledge. There is evidence of testing performed by the Gold Coast City Council which establishes that two samples tested were not too salty for use. This does not necessarily conclude the issue. The plaintiffs believed the work they organised was useful. The probabilities are they were correct, although a horticulturalist's advice as to the plants that could use slightly saline water might have been needed. Salinity levels apparently may vary from time to time.

Except for the advice to Mr O'Donnell that the spear pump had pumped water which was not salty (or whatever similar advice she gave), Mrs Rockett informed no-one on the committee of the useful work that had been done on the “spear pump system” to quote the invoice. Mrs Heather Welch, a former Body Corporate secretary, was not on the committee. On 31 January 1995 Mrs. Rockett typed up a list of matters for consideration at a forthcoming meeting, which eventually took place on 9 February. Item 19 asked:

The minutes of the meeting record it was:

The committee members other than Mrs Rockett appear to have embraced the view that Mrs Rockett was wanting work to be done on the spear pump itself, on the assumption that it was inoperable. I am satisfied that this was not Mrs Rockett's proposal. Indeed, her memorandum of 31 January (exhibit 12) makes it clear her suggestion concerned only the reticulation system to the front garden, where there were two lines still needing repair, presumably involving work of the kind Mr Roessler had done on the lines at the back. On the face of it, it is odd that Mrs Rockett did not succeed in conveying clearly to the meeting the limited nature of the work she was suggesting be done, or that the pump functioned efficiently and that similar work had already been done to two of the sprinkler lines. A serious question arrises as to why she would deliberately refrain from doing so; one would think she would expect to get credit for having achieved what she did at the back. Assuming that the minutes (exhibit 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 had received a battering (metaphorically speaking) before the spear pump system item was reached. The first two pages of the minutes are:

This seems to me something of an onslaught on Mrs Rockett; it is significant that the “nice” and “friendly” letter from Mrs Anthony was made a public document so that all committee members came to learn (and all unit owners and their privies might come to learn) of the “guidance” Mrs Anthony thought Mrs Rockett needed. The minutes at the foot of page 4 record:

A couple of pages later it is recorded:

I accept Mrs Rockett's evidence that the atmosphere at the meeting was such that she was not able to communicate the true situation of and the true nature of her proposal for the spear pump system, being (or at least feeling herself) inhibited from doing so. I do not accept her claim of being shouted down as literally correct. Nor do I think the committee acted unreasonably in deciding to spend nothing on the spear pump, given the assumption made that the water it produced could not be used. This seems to have been a mere assumption and not the conclusion of any process of investigation.

As to her criticism of Mrs Anthony, in respect of which the minutes are strikingly circumspect, Mrs Rockett at first said the criticism concerned the expenditure of $2,960.00 of Body Corporate funds on Mrs Anthony's unit, part only of which was the Body Corporate's responsibility, a matter highlighted in Mrs Rockett's circular letter to unit owners in The Sands of 7 April 1995, (exhibit 21). (Mrs Anthony said that the payment was made by the Body Corporate to Mr Renzella's firm without her knowledge, thanks to the error of Mr Ian Willis, the secretary and that she reimbursed the Body Corporate in full on learning what had happened, subsequently successfully applying to the committee of the Body Corporate for reimbursement to the extent that the work was its responsibility.) Mrs Rockett became uncertain whether this issue really was the subject of her criticism; other evidence indicates that the criticism probably concerned the manner in which Mrs Anthony carried out her functions as Chairperson. It seems clear other committee members rejected the criticism from their endorsement of Mrs Anthony and their stripping from Mrs Rockett her function as liaison officer.

By some unidentified time after this meeting, Mrs Anthony and other committee members too, perhaps, had become aware of Mr Roessler's invoice and of the approach Mrs Rockett had made to Mr Renzella. No approach was made to the plaintiffs or to Mr Roessler, except for a desultory phone call to a lady who lived with Mr Roessler but denied she would have answered to the name Mrs Roessler at the time: she was not associated with the sole “Roessler” entry in the local telephone book. The enquiry was made, it seems, by Ms Heather Welch, a former secretary of the Body Corporate, who is deceased. It seems that the only information she obtained was that Mr Roessler did not repair spear pumps and that the address she had telephoned was a private residence. One would expect a competent investigator to persist a little longer and canvass the invoice with “Mrs Roessler”, even attempt to contact Mr Roessler. It is unsurprising the real Mrs Roessler has no recollection whatever of the call. Mrs Anthony and perhaps other committee members became concerned about Mrs Rockett's conduct on two bases, one that she had sought retrospective authorisation of work which had already been done without revealing that it had

The committee did not and would not authorise the repairs to the pump as it had been producing only salty water, unsuitable for use on the gardens, for the last five years.

The recorded facts are:

Mrs Rockett produced a lengthy memorandum seeking corrections of the minutes set out in the Chairperson's report of 20 April 1995, which she tabled at the following meeting of the committee on 2 June 1995, in an unsuccessful attempt to have the minutes changed. It is Exhibit 16. She exhibited some confusion as to the distinction between minutes being an accurate record of what transpired or was said at a meeting and whether or not what was said at the meeting accurately reflected the true facts. However, Mrs Rockett, I find, identified errors in the draft, in particular in items 1, 11 and 12, and the first and last of the items following. Before this, and before the first publication, a memorandum indicating the true facts or some of them had been prepared and distributed. There had been sent out to all unit owners (and I would infer they received - indeed the document is relied on in the defence) Mrs Rockett's letter, exhibit 21. It included the following account by Mrs Rockett which I find is the truth, subject to the possibility of there having been some small profit component in the $79.35:

In the circumstances, it is risible for Mrs Anthony to proceed on the basis that “the fairest way to all concerned is to quote in full the way the topic was recorded in the minutes”. That the Body Corporate solicitor, Mrs Cull, may have given advice in such terms cannot assist the defendants. In any event, the so-called “Minutes” were no more than a draft awaiting confirmation at the next meeting of the committee, which was not held for another six weeks. I note elsewhere, although the “minutes” were then confirmed without alteration, they were erroneous in a number of respects, some important. Underlying the defendants' claim to qualified privilege for the publications sued upon (each of which is defamatory of Mrs Rockett in my view) is the notion that publication of what got recorded in the minutes deserves protection. In my view this a questionable approach, given that the minutes themselves are slanted against Mrs Rockett - setting aside for the moment the falsity of assertions of fact, in particular that the spear pump was ever fixed or repaired or the subject of a request that it be from Mrs Rockett. Apart from everything in the minutes to do with repair or fixing of the spear pump having come from some source other than Mrs Rockett (and a source without any direct knowledge to boot, with the exception of Exhibit 27), the minutes are pejorative, and an interpretation rather than a recording of events, notably in the damning passage “Mrs Rockett had revealed that she had deliberately mislead the committee”.

Any claim in exhibit 29 that Mrs Rockett sought committee approval for work which had been done already is completely contrary to the facts, which one would think could easily have been ascertained. Such unjustified criticism of Mrs Rockett was embellished by other factual inaccuracies in the publication (also in a part which does not purport to be a quotation of minutes) such as the claim that the pump had produced only salty water, unsuitable for use on the gardens, for the last five years; the evidence suggests that the pump had not been used for five years, so that no-one knew the quality of water it might produce; it must be accepted that in 1990 the judgment was made that the water produced was too salty.

On 2 June 1995 Mrs Rockett attended the third committee meeting in a row which got underway with an attack upon her. Perhaps she brought this one upon herself by tabling her letter requesting amendment of the minutes of 31 March 1995. Those defective minutes were confirmed without appropriate alterations. The next item was:

I reiterate the finding that Mr Devencorn did not fix the pump. It is clear his firm provided the box. If he or it had fixed the pump as well, that was done without any claim whatever being made on the Body Corporate for remuneration.

Exhibit 30 is the second publication claimed by Mrs Rockett (correctly in my view) to be defamatory of her, a Chairperson's report dated 21 June 1995 sent to the owners of all 99 units in The Sands. It is a brief report on the meeting, referring to the plaintiff only in the following sentence:

On 6 July 1995, Mrs Rockett's solicitors wrote to Mrs Anthony demanding a retraction and apology in respect of the “offending sentence”. The letter, inaccurately my opinion, talks of the work that was done by Mr Roessler in terms of fixing or repair of the (spear) pump. It is unfortunate that the opportunity was not taken to record what really happened, as set out in Mrs Rockett's letter of 7 April 1995. The mistake of the solicitors, who had only just been engaged, makes it understandable that the committee members would have been confused at the February and March meetings. However, it is not the state of any committee member's thinking then that is of concern, but what was believed afterwards when defamatory matter was published.

The next significant meeting after June was to be the Extraordinary General Meeting of the Body Corporate on 14 July 1995. One of the agenda items was the removal of Mrs Rockett from the committee.

Mrs Anthony, contrary to her denials, appears to have taken an active role to ensure the success of the motion to remove Mrs Rockett at the EGM. See Exhibit 40, a “report from the Chairperson to unit-owners”. Exhibit 20 is a fax of hers to Mr Willis of 3 July 1995 which indicates, inter alia, that there ought to be some further dissemination of the minutes of the committee meeting of 31 March 1995 in connection with the EGM. This was one of the few matters not explored at length at the trial. In her response to some enquiry of Mr Willis, Mrs Anthony advises “first two pages only of minutes of 31/3/95 meeting are needed”. Although Exhibit 40, as tendered, does not include any extract from those (inaccurate) minutes, it appears inescapable that all unit holders were supplied for a second time with the defamatory material against Mrs Rockett in advance of the EGM - contrary to my assumption which Mr Morris QC (appearing for the defendants) on 1st July endorsed at p. 1436 of the transcript. This appears an excessive implementation of the committee's resolution that “unit owners be advised of the reasons for the motion”.

I found it hard to understand Mrs Anthony's insistence that she played no part in settling the agenda for the meeting. This seems contrary to the facts, as revealed by her fax of 3 July 1995, exhibit 20. It seems to me she was willing to take a technical point to prevent alternative views to her own such as those of Mr Kibbler communicated to her in his fax of 7 July 1995 (exhibit 17) from being made known to the meeting, as Mr Kibbler, a unit owner, plainly wished. The determination was made that on technical grounds (which one would think might have been overlooked) the letter could not be placed before the meeting; it concerns me that no action was taken to advise Mr Kibbler, so that he might make alternative plans to publicise his views. It ought not to be thought that Mrs Rockett was singled out in being denied any indulgence in getting her supporter's point of view made known or given effect to. The material shows that there was a similar “point-taking” response to Mrs Shands' attempt to have proceedings at general meetings tape recorded, and that record kept for a year: because she had not used the qualifier “tape” or “audio” or perhaps “video”, she was treated as making a completely otiose and silly request that written minutes be kept for a year, when it must have been notorious that they were already being made and preserved indefinitely.

At the meeting, a large majority, including many proxy votes, supported removal of Mrs Rockett. It was the smallest number of votes on the winning side of any of the ballots. Mrs Shands' pointless motion was passed unanimously.

After the meeting, Mrs Anthony sent out the third publication sued upon, the Chairperson's report of 1 August 1995, exhibit 31. This begins with a report as to the outcome of the Extraordinary General Meeting, mentioning inter alia the resolutions referred to above. The letter goes on to state the remaining committee members:

The report went on to deal in numbered paragraphs with six items raised in Mrs Rockett's letter, a copy of which, as faxed to one unit owner at 4.54 pm on 6 July 1995, is exhibit 26. The report goes on:

Mrs Rockett has sued in respect of the first sentence under the first (d), the whole of (e) and the whole of the second (d).

The report concludes:

Mrs Rockett's counsel has pointed out errors in the report, such as that in (b) belittling or minimising Mrs Rockett's connection with the building, which in truth went back to 1993, as the defendants surely knew. There is a gross repeated error in the insistence that work was done on the spear pump and a further reckless or dishonest denial to Mrs Rockett of the credit which she and Mrs Shands deserved in respect of the glass anomalies. On the evidence, Mrs Rockett made no “attempt to mislead the committee to authorise the work”; I think the committee 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 do 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 (if this merit criticism - which I think it does, although some unit owners might have disagreed) acting in excess of authority by circumventing and/or pre-empting the committee and its leisurely, but established practices and procedures.

With Mrs Rockett expelled from the committee, there was no practical reason for rehashing the issues that led to her expulsion. More than 16 weeks had passed since Mrs Rockett's inflammatory letter of 7 April 1995. One can only wonder why Mrs Anthony did not answer the slights against her (which could have meant adding to their currency, I suppose) in advance of the Extraordinary General Meeting, when it might have affected the level of support she could muster for her campaign (as I find it was) to have Mrs Rockett removed. Exhibit 26 contains not the slightest allusion to what Mrs Rockett had previously called “the Chairperson's issue”; for whatever reason, Mrs Rockett refrained from ventilating that again. Two Chairpersons' reports (not counting Exhibit 40) were issued after April 7, 1995 in which Mrs Anthony made no response to the slights upon her. To do so as happened in paragraph (d) created problems for the defendants. There is no evidence to support the assertion that “Mrs Rockett continues to make claims” and none to support the assertion that “Mrs Rockett knows these allegations are untrue”, an assertion the defendants came nowhere near establishing, unless Mrs Rockett was obliged to accept Mr Willis' say so. The report of 1 August 1995 has, for me, the appearance of kicking a foe who is already down. It was the fourth publication to unit owners of Mrs Rockett's supposed misdeeds, and she was no longer on the committee. The claim to a defence based on the unit owners' interest in being given the same information is wearing rather thin.

Mr Morris claimed that no account should be taken of such matters because they were not particularized in support of the plaintiffs' pleading in their reply that the defendants believed each of the publications to be untrue and were actuated in making each of the publications by ill will to the plaintiff or by some other improper motive. Mr Morris submitted, for example, that his clients were not alerted to any necessity to produce evidence that “Mrs Rockett continue(d) to make claims”, implying that they may well have been able to do so. The “four day” trial was litigated on a rather luxurious scale, and took the better part of each of four weeks. My assessment is that if the defendants had any such evidence, it would have been presented.

Although invited to by me, counsel referred me to no authorities establishing whether the plaintiff was or was not strictly bound by her particulars. In Mummery v Irvings Pty Ltd (1956) 96 CLR 99, at 110, in a context where it was considered basic that “the duty which the occupier of premises, as such, owes to invitees present on the premises is a separate and distinct duty from that which is involved when the servant of such an occupier causes injury to some person present on the premises by some casual act of negligence”, Dixon CJ and Webb, Fullagar and Taylor JJ said at 110:

In a well known passage in Dare v Pulham (1982) 148 CLR 658, Murphy, Wilson, Brennan, Deane and Dawson JJ said at 664:

The following appears in Cairns, Australian Civil Procedure (3rd) 121 - 122:

There was reference during argument at the trial to the question whether it was necessary to particularise matters which were obvious in relation to a sufficient pleading (as the reply is), as opposed to matters which might take the other side by surprise. I hold a view along those lines, and consider, for example, that it was necessary for the plaintiffs to particularise, as they did, reliance on reports of the resident unit manager (“not a person in whom such credence should be given”) critical of the plaintiff, as going to show an improper motive vitiating the defendants' publications. As it happens, my decision in the case places no weight on that matter. In my opinion, nothing was ventilated or sought to be argued by Mr Hampson which the defendants can reasonably contend came as any surprise to them or prejudiced their conduct of their defence.

The approach indicated in the High Court decisions and Mr Cairns' book is exemplified in a number of defamation cases. In Vlasic v. Federal Press (1976) 9 ACTR 1 at 5, Blackburn J said:

Counsel for the defendants, as Hunt J, has revisited the topic in Krahe v. TCN Channel (Pty Ltd) (1986) 4 NSWLR 536 at 542-43, having previously done so in Douglas v. John Fairfax & Sons Ltd (1983) 3 NSWLR 126, 133 where he said:

I cannot presently call to mind objection made on behalf of the defendants to the reception of evidence which ultimately seems to me important support for Mr Hampson's submissions on the good faith issue, which is the central one in this case. It may be noted that Exhibit 40, which in the end makes an appreciable contribution to the conclusions I reach, was tendered by Mr Hampson without any objection (p. 587), albeit in a context and in a fashion which by no means suggested its full significance.

Mrs Rockett has pleaded the following meanings in respect of the three publications:

21 June 1995, that she:

1 August 1995, that she

Broadly speaking, although those characterisations exhibit the traditionally overblown nature of imputations pleaded in defamation matters, those meanings are present. Mr Morris, while making no concession regarding any particular imputations, made no submission that the publications were other than defamatory of Mrs Rockett.

Mr Devencorn claims in respect of the first publication only. He pleads that it means he:

In my opinion those meanings are made out, the assertion of incompetence arising from the assertion that any work on the pump was pointless because of the salinity of the water. In the course of a rigorous cross-examination, Mr Morris got Mr Devencorn, who was protesting that all he was after was an apology, and especially an apology for his wife, to say that there was nothing calling for an apology to him in the defamatory publication. Assuming that concession was made, under pressure of cross-examination, it does not tell the whole story. Mr Devencorn made a strong case to the effect that he had been depicted as complicit with Mrs Rockett in an improper imposition against the Body Corporate. Mr Devencorn might well have had a claim in respect of the publication of 21 June 1995 on a similar basis, but no such claim was made by him, although Mrs Rockett's solicitors contended in Exhibit 22 (6th July 1995) that it was defamatory of him. Nor does he claim in respect of the publication of 1 August 1995, which makes no reference to him. At the commencement of the third week of the trial on 11 May 1998, Mr Hampson applied for amendment of the plaint to raise a claim by Mr Devencorn in respect of the second publication, it was not explained why the claim (which is not statute barred) had not been made earlier. The application was refused in the circumstances.

I feel certain that the evidence presented at trial fails to reveal the true dynamics of the relationships among the parties. There is a clue in the third publication (exhibit 31) in my opinion, when it speaks of Mrs Rockett having “usurped the committee's powers”. Some statements in the evidence given in the third week support that thought. It is not possible to say that the plaintiffs in 1994 and 1995 already proposed to acquire units in The Sands in the numbers which they have or to set up the letting business based on units in The Sands which they have. It is difficult to avoid suspecting that the plaintiffs had some agenda which involved Mrs Rockett establishing a record as a highly effective committee member able to achieve things expeditiously. I am unable to perceive any justification for Mrs Rockett's apparent belief that she derived authority from her position as liaison officer to commit the Body Corporate to expenditure. Even if (which may or may not have been the case) Mr O'Donnell, when he had that role, was permitted to exceed the bounds of his authority as recorded in writing, that seems to me insufficient justification for Mrs Rockett to do the same. Nothing in any resolution or Chairperson's report or any other document, in my opinion, gave the liaison officer any authority to commit Body Corporate funds. The role was to provide a check to ensure that proposals by the resident unit manager to do that were justified. Some of the criticism of Mrs Rockett's performance in the role seemed silly and petty. She was taken to task, for example, for acting to implement a resolution passed at the AGM of 15 December 1994 (motion 23) “that the committee be instructed to replace the main entry steel gates with powder coated aluminium and a new motor at a cost not exceeding $4,000”. A quotation within those parameters was before the meeting. It was said against Mrs Rockett that she ought not to have proceeded to implement the resolution, that that should have awaited a decision at the February 1995 meeting of the committee. Views might differ as to the desirability of such a leisurely approach. It seems to me that there was ample authorisation (by the AGM) for acceptance of the quotation. (Part of the controversy was over the colour the new gate should be; Mrs. Rockett got her way after approaching other committee members individually.) I would agree with Mrs Rockett's critics, however, in other criticisms, such as of her taking it upon herself to speak for the Body Corporate or the committee by use of its letterhead. If she wanted Body Corporate moneys to be expended on repairs to the spear pump system, she ought to have got clearance from the committee in advance. I think it had become clear by the February meeting that a battle for power had been joined. Perhaps it was inevitable that, as the person assuming the role of challenger, Mrs Rockett would stir up opposition. I do not think she had schooled herself in the procedures of The Sands Body Corporate and its committee as thoroughly as she might have thought. She proceeded in a fashion both provocative and threatening. The deception in the matter of the Roessler invoice does her no credit. Mrs Rockett appears to see herself as a “can-do” person, for whom achieving a result is the important thing. She displayed a lack of appreciation of the niceties which ought to have governed a conflict of interest situation. An “end justifies the means” philosophy is inappropriate here. Mrs Rockett's repeated protest that the Body Corporate was not being cheated just goes to show that her sensitivities and sensibilities are blunt rather than sharp. I think this goes to the keenness with which she would feel hurt at the defendants' defamatory utterances. I mean to convey the idea that her feelings would be less distressing and her damages accordingly more modest than if she exhibited a more punctilious approach. I do not suggest that she forfeit any of the protection of her reputation that the defamation laws offer citizens generally, nor that the characteristic which may attenuate her damages, if I am right about it, constituted a blemish on the reputation she bore in 1995.

It was not suggested Mrs Anthony had any undisclosed agenda. She began with a single unit in The Sands, still has just that one unit. It is only natural that she should derive satisfaction from her work as Chairperson and her ability to be re-elected year after year by the unit holders which on occasion(s) seems to have required some campaigning. It has not been suggested she profited from her position. There has been no concealment respecting the Body Corporate's payment (pursuant to committee resolution) of calls made from her mobile phone, the vast majority of which were presumably for Body Corporate purposes; any benefit to Mrs Anthony would doubtless be minuscule. It appears that, unlike other committee members, she has never looked to the Body Corporate to pay airfares incurred by her when visiting Surfers Paradise for meetings. She gets no other remuneration. There is nothing unusual or untoward in her having and promoting the interests of her favourites for preferment by the Body Corporate, such as Mr Renzella for cleaning services and Mr Willis for secretarial services. Mrs Rockett's disruptions to the routine established in the Body Corporate under Mrs Anthony for years would be most unwelcome. I think Mrs Anthony genuinely believed they represented a wrong way of going about things. I do not think Mrs Anthony relished the idea of sitting by doing nothing while Mrs Rockett established herself as a moving force in the affairs of the building. It is ironic that Mrs Anthony at one stage, she said, offered Mrs Rockett the Chairperson's position. Mrs Anthony did not enjoy the reality of Mrs Rockett taking initiatives, and, in my view, determined Mrs Rockett must be confined. When grounds emerged which might justify getting rid of Mrs Rockett, Mrs Anthony's mindset was one which told against any attempt to see things from Mrs Rockett's standpoint, or indeed any objective standpoint. I think that Mrs Rockett is right in saying she was not allowed to put her case and that Mrs Anthony, in effect, did not bother to look beyond supposed facts which seemed to accuse.

Mrs Anthony's assertions that she still “likes” Mrs Rocket (p. 658) struck me as unbelievable, made for the purposes of the case. The tone of the three defamatory publications does not suggest affection to me. Mrs Anthony's re-examination began in an interesting way:

Mr Morris' 8th question was asked in a way which clearly communicated to the witness that a different answer had been expected to the 7th. Whether or not her performance late in the day and after a very long cross-examination was affected by tiredness, in 1995 Mrs Anthony asserted as facts claims which were not facts, whose accuracy she made no serious attempt to check, notwithstanding that she was in possession of Mrs Rockett's quite different (and accurate) account. She showed nothing like the solicitousness to set the record straight which she did when defending her own good standing in The Sands against Mrs Rockett's attack. The outcome was that Mr Willis was left with the blame for an improper expenditure of far more than $349.45, but never subjected to any criticism or sanction for his failure to protect the funds of unit owners in the way that Mrs Rockett was. Mrs Rockett seems to me correct in her assertion that the whole episode of the work done on Mrs Anthony's unit, at the Body Corporate's expense initially, exhibits features indistinguishable from those which exposed her to condemnation, such as work being done and being paid for without reference to the committee, and actual (as opposed to the erroneously perceived - in the case of Mrs Rockett) application to the committee for retrospective authorisation of expenditure on work already done, and an absence of quotations obtained in the ordinary course for the work the committee was asked to authorise.

The plaintiffs called no evidence other than their own to show the effect of the publications. They spoke of strategies adopted to avoid contact with other unit owners, by going to their own unit by one route rather than another, for example. There was some reference to being actually cold shouldered or ignored by one unit owner or another on occasions, but it is not clear to me that followed from the defamatory publications. There could have been other explanations for it. Even assuming in favour of the plaintiffs (what might exaggerate the fact) that all unit owners read the publications, nearly all of them were absentees, at The Sands only occasionally, if at all. The publications may have had the effect that Mrs Rockett was voted off the committee; it cannot be said that would have happened if Mrs Anthony's two Chairperson's reports preceding the Extraordinary General Meeting had been limited to the true facts. However, there is no evidence of a single vote at the EGM being influenced by any publication of the defendants'. It would be wrong to regard Mrs Rockett's loss of office as a committee member (a fortiori her loss of office as liaison officer) as sounding in damages for the defamation.

As the years have passed, the plaintiffs have obviously found the resolve to move about in The Sands environment and confront unit owners. Indeed, they plainly desire contact which might lead to unit owners becoming and remaining clients of their letting business. The evidence shows that the plaintiffs in conducting the business have encountered a lack of co-operation, and even obstruction, at least from their point of view. That may or may not be connected with the campaign against Mrs Rockett led by Mrs Anthony in the first seven months or so of 1995; the plaintiffs have not proved it is, indeed, have been precluded by my ruling from doing so. Mr Devencorn, whom I found an impressive witness, frankly conceded that the plaintiffs held hopes that this litigation would lead to resolution of many (if not all) of the problems experienced by them in The Sands. They are in an invidious position, funding not only their own side of the litigation, but the Body Corporate's to the extent of some 15%, given their aggregate unit entitlement in the Body Corporate. Accepting that the conduct of defendants in defamation proceedings (likewise plaintiffs) leading up to and throughout the trial may be relevant, the likelihood of extraneous considerations coming into play here, as the plaintiffs' have continued to increase their ownership of units in and other interests associated with The Sands, is simply too great to overlook. As indicated elsewhere, this action is not an appropriate occasion for resolving commercial disputes that might have arisen.

In the unusual circumstances, the defendants' relevant conduct, generally speaking, came to an end with the dissemination of the Chairperson's report of 1 August 1995 and its impact on the minds of readers and the direct consequences of that.

An exception concerns the way in which the plaintiffs were treated at trial in their cross - examination. As to the relevance of the conduct of both sides, until completion of the trial hearing, see Broome v Cassell & Co Ltd (1972) AC 1027, 1071-72. It was suggested that the plaintiffs (Mr Devencorn in particular) had written out the Roessler invoice. This seemed to be done on the basis of a handwriting (or printing) comparison, which I have attempted to carry out. The writing on the document (a photocopy only, as the Body Corporate has apparently not preserved the original for production) does not appear to me to be Mr Devencorn's. He denied it was, and the defendants' representative steered clear of asking Mr Roessler, who gave evidence subsequently, whether the writing was his. The plaintiffs were, in my opinion, subjected to an suggestions of conduct akin to forgery. The questioning of Mr Devencorn was preceded (page 444) by an offensive reference to perjury. It was suggested (page 432) he should be apologising to Mrs Anthony. As to Mrs Rockett, it was asserted to her some 16 times at pages 221-223 that she had described Mrs Anthony as “screaming and ranting and raving” (or some close variant), another half a dozen times at pages 230-231; Mrs Rockett had used the expression “scream and rant” at page 221. The “raving” was entirely Mr Morris' embellishment, of which he made the most. Mrs Rockett had to face suggestions she was paranoid (224) and “obtuse” (245) and party to the suggested “forgery” - 246. Whether or not the defendants ought to apologise has been an issue at least since 10 May 1996 when the plaintiffs' solicitors wrote to the defendants' requesting an apology and enclosing a suggested (although not insisted upon) form. See exhibit 23.

On the other side, very late in the trial, leave was given for an amendment to the defence to assert that the plaintiffs had mitigated their damages by their scandalous, defamatory attack on Mrs. Anthony made on their instructions in circumstances to which absolute privilege attached. What occasioned the amendment was the conclusion of cross-examination of Mr Renzella:

Mrs Anthony gave signs of being much distressed at Mr Hampson's suggestion, although she was slower to react than Mr Renzella. She eventually left the court, although loud cries could be heard from outside for a considerable period of time. I understand that Mrs. Anthony appeared to have some kind of fit or collapse and that an ambulance was brought for her. It was difficult to judge at the time how much was spontaneous reaction and how much (I think there was some) was self-inflicted or for display. A complicating feature is that the dramatic incident happened at the end of a two hour session of the trial which went very badly from Mrs. Anthony's point of view, beginning with damaging evidence led by Mr Morris at p. 921 from Mr Talbot consistently with his punctilious approach to his duty to the court. The effect of the evidence (quoted below on p. 55) was that Mrs Anthony had schooled him in signals she would give from the back of the court as to how he should answer questions in the witness box. This dramatic incident coincided with a dramatic change in the demeanour of Mrs. Anthony, who appeared to me much agitated, though externally she evinced a steely composure, her head determinedly turned sideways. It was arranged that she would face further cross-examination by Mr Hampson immediately after lunch. That never occurred, as she had been borne away by the ambulance.

I accept that a defamation plaintiff's conduct in blackguarding the defendant in or out of court before or after a defamation sued upon may be relevant. Although allowing the amendment Mrs. Anthony sought, I was of the view that it might prove pointless. I disagree with Mr Morris assertion that whatever allegation there was regarding the relationship with Mr Renzella ought to have been put to Mrs. Anthony. In my view, it would not have gone to her credit. It could, however, if there was anything in it, be relevant to assessment of Mr Renzella's credit, in particular regarding exhibit 27. It remains the situation that the plaintiffs struck a blow at Mrs Anthony in this way, even if it did not land. Mr Hampson submitted I should not proceed on the basis that his clients (or either of them) gave instructions to raise this matter, there being no evidence of it. Referring to Sir William Bolton's “Conduct and Etiquette at the Bar”, 79, he submitted that no more could be presumed than that he asked the question on instructions from the solicitors. Especially given that there was no attempt to retract, I think it would be specious not to identify the plaintiffs with the conduct of their case. In the end, I agree with Mr Morris that “honours are about even” in respect of conduct at the trial. (See p. 1338.)

It is important to consider the veracity of the minutes, in light of the comfort the defendants sought from having published an account of events which might be seen as independently produced.

Mr Willis was the secretary of the Body Corporate and a proprietor of a company called Body Corporate Consultants Pty Ltd, which provided services of an administrative nature for the second defendant. His tasks included preparation of minutes of general meetings and committee meetings. The latter, at least, could last many hours. Mr Willis' evidence confirms that he exercised a considerable editorial judgment as to what ought to be included in the minutes, and that they ought not to be taken as necessarily recording those matters which he did record in the precise order in which they happened, some rearrangement being resorted to in the interests of a more intelligible record being made of meetings which might, for example, have dealt with the same topic at more than one stage. Mr Willis does not retain the notes he takes during meetings once the minutes are prepared, nor does he make any audio recording. It is quite clear that many things may have happened at committee meetings which did not get recorded in the minutes, although I do not suggest Mr Willis left things out for any ulterior motive. He did indicate, in a general way, that he might censor personal attacks which he thought not fitting to incorporate in minutes. In respect of the committee meeting of 31st March 1995, at least two paragraphs appear which may record “events” which did not happen at the meeting. The minutes for 31st March 1995 contain as the third paragraph under “Matters arising...”, a description of such an event:

It is clear the “investigation” did not happen at the meeting. This paragraph is either an interpolation or a record of something somebody (never identified) said. The burden of the defendants' case was that the late Mrs Heather Welch had carried out the investigation; interestingly, Mr Willis claimed responsibility for it personally; when given a broad hint by Mr Morris that Mrs Welch might have been responsible he seemed to suggest it was a third person.

More serious, as a possible example of interpolation of foreign material in the minutes, is the following statement seven paragraphs on:

This does not sound like a record of something resolved or said at the meeting. Both of these paragraphs featured in the first publication. The second, intriguingly, was not included in what was offered to unit owners as a quotation from the minutes in Exhibit 29 but followed on from it immediately. This may be an indication that the author of the first publication knew the minutes, then still in draft, were misleading. One may speculate and wonder whether it is an indication that the publication was prepared before the minutes. Mr Willis' cross-examination at 1023-24 is unhelpful from the point of view of showing when minutes reached their final form. At page 4 of 8 is an item unconnected with this case in which events appearing after the meeting are recorded as part of the minutes of the meeting, including action by Mrs Anthony which appeared to have the effect of precluding a firm called “CTW” becoming a successful tenderer, I with the consequence that Mr Renzella would be successful.

Although Mr Willis was resistant to suggestions that he might have written up minutes so as to embarrass Mrs Rockett, I think the conclusion that he was doing so, at least at an unconscious level, is inescapable. For three committee meetings in a row (9th February 1995, 31st March 1995 and 2nd June 1995) the first subject matter of any interest in Mr Willis' minutes is adverse to Mrs Rockett: one has to get to the third page, the third page and the second page respectively before encountering anything of substance that is not adverse to her. Such an observation would be of no significance at all if others were dealt with in similar fashion. It is true one can find Dr Eccles (not a committee member) mentioned adversely, but never at such length. Mr Willis seems to have been particularly tender regarding Mrs Anthony's potential sensitivities. He recorded that on 9th February 1995 “Mrs Rockett had criticised the chairperson, Mrs Anthony”, following which a vote of confidence in Mrs Anthony was passed and Mrs Rockett's position of liaison officer was abolished. The context was a discussion of the role of liaison officer and difficulties Dr Eccles reported he had working with Mrs Rockett as liaison officer. The minutes (kept available for search as long as the relevant building units plan is in existence) give no hint as to what criticism might have been ventured of Mrs Anthony. Similar discretion was shown in the minutes of a committee meeting on 2nd November 1994 (when Mrs Rockett was made a member of the committee). On p. 4 of 6 appears the following item:

Mrs Anthony's letter enclosed a cheque reimbursing the Body Corporate for a sum of $2960.00 for monies it had paid to the building cleaner, Mr Renzella, for tiling and painting which he had engaged other contractors to do, taking a 10% commission for himself on top of their charges. It seems clear the bulk of the work had nothing to do with water damage for which the second defendant might have had responsibility. The Body Corporate's cheque, after being signed by Mr Willis, was countersigned by another committee member, Mr O'Donnell, in unusual circumstances, the cheque having been brought around to him by Mr Renzella, rather than transmitted with others already signed by Mr Willis and requiring Mr O'Donnell's signature. The explanation was said to have something to do with Mr Renzella's urgent need to get people paid and Mrs Anthony's having just returned to Sydney. Mr O'Donnell had hardly signed the cheque before Mrs Rockett and Mrs Shands came along to him enquiring after it, and suggesting he was “naive” (to quote him) to sign it. Mr O'Donnell acted in complete good faith, thinking he was signing a cheque for a payment the responsibility of the Body Corporate. So far as the evidence in the case shows, it was unprecedented for Mr Renzella to be involved in work of this kind. I would say it was unusual for him to invoice the Body Corporate rather than Mrs Anthony, although that may not be clear. No explanation was forthcoming as to what induced Mrs Anthony to reimburse the Body Corporate, with an indication of being aware of her “fiduciary responsibilities”. I would draw the inference that Mrs Anthony was tipped off in some way. There are other irregular aspects of the transaction, such as the stamping “paid” of another contractor's quotation or invoice (in a higher sum), rather than Mr Renzella's. In her own circular of 7th April 1995, Mrs Rockett alluded to the transaction in a way likely to embarrass Mrs Anthony, and making a point that irregularities involving herself appeared to be viewed far more harshly. No explanation was ventured until “the third publication” of 1st August 1995, after Mrs Rockett had been removed from the committee. The explanation was that there had been a “mistake” by Mr Willis who “should have forwarded the invoice to (Mrs Anthony)”. Mr Willis, although acknowledging the mistake in his evidence, never saw fit to record it in the minutes, although when that very committee meeting discussed a “mistake” by Dr Eccles which had embarrassed another committee member, Mr Talbot, this was made the subject of permanent and fairly public record - see p. 5 of 6.

Mr Willis had reason not to feel well-disposed to Mrs Rockett. One issue is revealed in the minutes of 9th February 1995 under the heading Correspondence, which I set out again:

Mr Willis agreed that “because of her personal feelings” was a misquotation of a letter it purported to describe. This letter might have been seen as a personal communication by Mrs Anthony to a new committee member calculated to assist her; from that point of view, that it has been given wider distribution and “publicity” in the minutes would seem surprising.

It might be noted at this point that this is not the only misrepresentation of a letter in the minutes. A more serious instance concerns Exhibit 27, which is paraphrased most inaccurately in the minutes of 31st March 1995 and, therefore, in the first publication of 20th April 1995, after Mrs Rockett has published, accurately, what really happened in relation to work done in January 1995. Mr Renzella's letter is, in fact, closer to Mrs Rockett's version than the account of it in the minutes. As to the work which Mrs Anthony and the other committee members (excluding Mrs Rockett) assumed had been done, and yet was made the subject of a dishonest attempt to get retrospective approval, and the work which had not yet been done (which I find is the work for which approval was sought), all present at the meeting on 9th February 1995 had Exhibit 12, which outlined Mrs Rockett's proposal for work on the spear pump system in the front garden in Item 19. Item 11 of that same document contains mother criticism by Mrs Rockett of Mr Willis, this time for wasting the second defendant's money by accepting a more expensive quotation for work than one which his instructions required him to accept.

It may be unduly harsh to suggest that Mr Willis deliberately gave a slant to his minutes to harm Mrs Rockett, but my view of the interpersonal dynamics of the situation leaves me convinced that Mr Willis' minutes ought not to be regarded as necessarily unbiassed, necessarily complete or necessarily accurate. This is not to suggest that he has failed in his principal task, which I would take to be to record resolutions accurately.

The most damaging assertion of the minutes of 31st March 1995, from Mrs Rockett's point of view, is in the phrase “As Mrs Rocket had revealed that she had deliberately mislead (sic) the committee”. Nobody suggested Mrs Rockett had confessed to anything beyond what is contained in other statements attributed to her as comments of her own to the committee. There was no consensus among committee members as to just what Mrs Rockett had done to mislead the committee. One view was that it was seeking a retrospective approval for work which had already been done. I think it is clear Mrs Rockett never did that. She would have no reason to do it, as payment for the work done in January 1995 had already been made. Then there is the indefensible conduct regarding the Roessler invoice and the earlier attempt to procure a Renzella invoice; one can understand that Mr Renzella might have been regarded as approachable given what Mrs Rockett had discovered regarding his submitting an invoice for work actually done by others on Mrs Anthony's unit. Mr Roessler had certainly done some actual work for which he was paid which was incorporated in his invoice. That participation by Mr Roessler is acknowledged in Mr Renzella's letter (Exhibit 27) but, for whatever reason, concealed in the minutes of 31st March 1995, which give the impression that Mr Roessler had no involvement at all. Any committee member who concluded that, in the face of Mr Renzella's letter, was, in my opinion, rushing into premature judgment against Mrs Rockett, closing his or her eyes to circumstances reducing the scope of her offending. Given that the Roessler invoice was, on the evidence, never likely to come before the committee (just as Mr Renzella's invoice for work on Mrs Anthony's unit was never likely to, although it did in the end) it is straining language to say that the Roessler invoice (or any that Mr Renzella might have produced in its place) was an attempt to mislead the committee.

As a group, the committee members were decent people exercising demanding functions in the interests of unit owners in the building as a whole. So far as the circumstances which led them to unite against Mrs Rockett are concerned, the general picture is pretty clear. The committee were acting on a false view of the facts which seemed to accuse Mrs Rockett of duplicity in more than one respect. I think it is likely that Mrs Rockett attempted to give her explanation broadly as set out in Exhibit 21 to the meeting. Given the distribution of Exhibit 21 well before the distribution of “the first publication”, it was patently unfair to Mrs Rockett to ignore the case she put forward and to rely on her apparent silence, one might almost say her apparent confession, in Mr Willis' minutes. While I have not been prepared to accept claims by Mrs Rockett to the effect that she was shouted down at the meeting, unable, because she could not be heard, to make explanations, the concerted attack made on her early in the meeting based on substantially spurious supposed facts would, in my opinion, make it difficult for anyone to present a contrary case. It seems to me the others at the meeting were not in a frame of mind to be receptive to explanations from Mrs Rockett. It seems clear a significant factor leading to such an attitude was Mr O'Donnell's statement that Mrs Rockett had told him in mid-January that her husband had fixed the pump, contradicting the denial Mrs Rockett had just uttered. Mr O'Donnell has persisted in this version, telling the court he is sure of the use of the word “fixed”. I think Mr O'Donnell gave his evidence honestly and would assess him, along with Mr Devencorn, as the most fair-minded of the gentlemen associated with The Sands who gave evidence. Unusually, among that group, he was able to get on with Dr Eccles. Whether or not the word “fixed” was said to him, as he recalls, I find he was mistaken in taking from whatever Mrs Rockett said that the spear pump had been repaired, in the sense of being made to function as a pump when it would not before the repair. The only evidence in the case (which there is no reason to disbelieve) is that the pump functioned at all material times. Mrs Rockett's version of what she said to Mr O'Donnell was (p. 87):

This was converted within a third of a page by Mr Morris to become equivalent to “her husband had got the pump to work” - see lines 50 and 58, also p. 88 line 13. She was always emphatic that the pump was not repaired and did not need to be repaired. The cross-examination of Mrs Rockett as to what was said to him over the phone in January 1995 (pp. 265-66) revealed not the slightest appreciation on the part of the cross-examiner that Mr O'Donnell would be so insistent regarding the use of the word “fixed”, which does not feature in the cross-examination in any relevant way. If it matters, Mr O'Donnell's version of the telephone conversation was simply not put to the plaintiff in this particular.

By the meeting of 31st March 1995, Mr O'Donnell had reasonably reached the conclusion that the committee was not going to work well if Mrs Rockett remained. That was the general view, which owed not a little to an attitude of obdurate disinclination to attempt to understand Mrs Rockett's point of view or to personally seek, without preconceptions, to identify the true facts. The minutes appear to establish that Mrs Rockett was stripped of her authority as a signatory on the second defendant's bank account. It is difficult for the court to set at naught the combined view of five committee members that Mrs Rockett's performance made desirable her removal from the committee, a view which commended itself to a majority at the Extraordinary General Meeting in July 1995. The background that she had shown herself less of a team player than an initiator disposed to act alone made Mrs Rockett's conviction on the charge preferred by Mrs Anthony a strong likelihood, despite a flimsy factual basis. The general view had become that the committee would work more peaceably with Mrs Rockett gone - grounds for forcing her out appeared to be presented on 31st March 1995. I reluctantly conclude the others deliberately refrained from looking into those “grounds”. Mr Gaffney appears to have expressed to Mrs Cull the view that if Mrs Rockett remained on the committee, he would not. As the trial proceeded, it became more and more difficult to resist concluding that before 31 March 1995 enough committee members to “carry the day” had decided Mrs Rockett must go, and felt no need to be fair or scrupulous about means directed to that end, beyond getting some general guidance from Mrs Cull (very likely with a view to avoiding proceedings like the present one).

I do not think the evidence of any of the committee members (or others) present at committee meetings is particularly reliable. All of them seemed to me to be reconstructing on the basis of the minutes, in which only limited faith can be placed. In truth, only this litigation would have created any necessity for any of them to recall events in any detail. The first defendant, Mrs Anthony, apparently became so concerned at the evidence Mr Talbot might give that she attempted to prepare him by instructions to the effect:

This general instruction referred to signals to be given by Mrs Anthony who sat in the back of the court throughout Mr Talbot's evidence, indeed, generally speaking, throughout all the evidence called in her case, until 13 May. Her suggesting such arrangements, which Mr Morris very properly brought to the court's attention, hardly enhances Mrs Anthony's credit. Mr Talbot denied he had availed himself of her assistance in giving any answers. At many points, he was “cagey” in his approach, offering the unhelpful answer, “possibly”.

So far as the evidence goes, it was a Mr Kibbler, author of Exhibit 17, who brought in the description “vendetta” to describe the approach to Mrs Rockett of her fellow committee members. Unfortunately, it did not lead the author(s) of Exhibit 31 to have second thoughts. Unsurprisingly, Mr Hampson made the most of the description. It is not possible to find on the evidence presented anything in the nature of a conspiracy or concerted action against Mrs Rockett. On the other hand, I find it not possible to accept at face value their common assertion that the matters which have been ventilated at length in this action were not discussed in advance of committee meetings or distribution of the publications sued on to any extent involving any of them. I reached that view before hearing the evidence of Mrs Cull at p. 1209 and pp. 1231-33 that a few committee members as the least had worked out a scenario for the 31st March meeting in advance, which would culminate in a resolution to put her removal to an Extraordinary General Meeting if she would not resign. It is unnecessary to say any more on this aspect, which appears to have been explored because the plaintiffs pleaded, rather grandly, that all of the committee members believed the relevant publications to be untrue. To the extent that any may have had an honest belief the publications were true, as to the whole of them, I think such belief cannot have been held reasonably, and that there was a total lack of enthusiasm for seeking out the truth. The attitudes of Ms Cominos and Messrs Zuccala, Gaffney, Talbot and O'Donnell seem to me not to matter. Mrs Anthony's certainly do, and, in my judgment, the second defendant is fixed with them. Mrs Anthony was permitted, for all purposes relevant to this action, to act for it, and did act for it.

In the end, I find that the defendants were actuated in making each of the publications by ill will to Mrs. Rockett or by some other improper motive, as pleaded in para. 3(d) of the reply. The improper motive was particularised as an intention to:

In the circumstances, it has not been shown that there was anything untoward in the removal of Mrs. Rockett from her position as liaison officer. I am not persuaded that was other than a sensible course to resolve disharmony with the resident unit manager, with whom, however regretfully, the committee would have regarded themselves as “stuck”.

Ousting Mrs. Rockett from her position on the committee seems to me a different matter. As indicated already, the probabilities are that Mrs. Anthony and most (if not all) of the others remaining on the committee after the Extraordinary General Meeting in July 1995, including Mr Gaffney, had determined to try to get Mrs. Rockett from the committee prior to the meeting of 31 March 1995, as opposed to developing an intention in that regard only during the course of the meeting. Removal of Mrs. Rockett would seem to me an uncalled for disciplinary exercise in respect of the errors of judgment she had actually committed - not so if she had actually done everything Mr Willis' minutes record against her. If erroneous perceptions can excuse the development of motives which would otherwise be condemned, there are problems in holding the motive to oust “improper”. Such a motive, in this case, may be intertwined with one to injure. After careful consideration, I find a motive to injure Mrs. Rocket, and indeed, illwill towards her operated.

Although personally attracted to the view that the motive with which defamatory matter is published ought to be assessed at the time of publication, I find myself bound by authority to the effect that regard must be had to “the defendant's conduct prior to and following the publication”. In Griffiths v. Queensland Newspapers_Pty Ltd (1993) 2 Qd.R. 367, 371, the Court of Appeal said:

The material formerly found in s. 377 is now found in s. 16 of the Defamation Act. This case, like the New South Wales one, cited provides an example of a trial judge exceeding the proper bounds in showing the restraint urged before lack of good faith is found against a defendant in the leading case of Horrocks v. Lowe (1975) AC 135. In Griffiths, the Court of Appeal held there was ample evidence on which the jury could find an absence of good faith. At 372 in the report the following appears:

I accept Mr Morris' point that it is inappropriate to apply to the present defendants the same expectations of balanced reporting and offering a right of reply which may be relevant to publications by newspapers and public broadcasters.

The circumstances which lead me to the finding of absence of good faith against Mrs. Anthony (and the Body Corporate which is fixed with what she did) include the following:

As to the last matter, although Mr Hampson's “pretext” point was one with which I felt little sympathy during the disjointed trial, consideration of all relevant matters in a more careful way shows it has to be taken seriously. The ostensible reason for an extraordinary general meeting of unit owners having to be held was the committee's inability to approve expenditure exceeding $40 per unit, an aggregate of $3,960. The meeting approved a quotation from Allgas in the sum of $3,991. If Allgas could have been talked into reducing its quotation by $32, a special resolution may not have been necessary. It may be that Allgas' co-operation could not be obtained, or that the costs of removal of the existing heating system for The Sands swimming pool, which were substantial, had to be taken into account in applying the $40 cap. I do not think it was ever in the least likely that the unit owners would opt for the alternative quote of $13,355 plus removal costs. More seriously, concerns arise from the likelihood that pool heating had already been satisfactorily attended to cover the months of cooler weather (indeed, until the annual general meeting due in December 1995) and that any decision taken at an extraordinary general meeting on 14 July 1995 was not going to produce any useful result in the water until the cooler months were over. According to the minutes of the committee meeting of 2 June 1995, the matter was dealt with as follows:

A firm called Sirius was engaged and was paid $1,140 for temporary repairs on 13 July 1995. Presumably Sirius gave some kind of warranty for its work for the requisite period; presumably this work was proving effective as at the date of payment. If there was an “emergency” situation, as referred to in Exhibit 40, which explains the calling of the Extraordinary General Meeting, actual operation of a new heater was not going to be achieved for months. If there had been any evidence available to support Mrs. Anthony's assertion (pages 603-05) of a situation of danger and real emergency necessitating urgent action actually taken, I would expect that to have been presented at the trial. The quotation which the Extraordinary General Meeting accepted was dated 4 May 1995.

The report from the Chairperson to the unit owners, Exhibit 40, presumably sent out early in July 1995, begins as follows:

Perhaps because of the way the document got into evidence, there was no particular exploration of the rather amazing fixing of a date for a meeting which would decide Mrs. Rockett's situation without any reference to her. I do not accept that any serious attempt was made to reach her by telephone. Telstra records show Mrs. Anthony telephoning Mrs. Rockett dozens of times per month until their rift in January 1995, after which there were no contacts. The evidence shows Mrs. Rockett could be contacted by other means, such as facsimile transmission. According to a schedule produced by Mr Hampson summarizing the Telstra evidence, from February to July 1995 inclusive, there was a single call made by Mrs. Anthony to Mrs. Rockett, in July.

It is not necessary to go in detail into other matters which might be added to the above list, such as allowing Mr Kibbler's views to be lost, unaired, or the singling out of Mrs. Rockett for completely disproportionate condemnation for her mistakes. Mr Hampson was unsuccessful with his submission regarding Mrs Anthony's and others' supposed reliance on a report from Dr Eccles leading to the plaintiff's ceasing to be liaison officer. The proposition that basing statements on information from someone regarded as “a person to whom credence could not be given ... might be cogent evidence of malice” appears in Gatley on Libel and Slander (8th) 1341 and is said to be supported by Adam v. Fisher (1914) 30 Times Law Reports 288; 136 LT 376. On examination the case is hardly compelling authority for the quoted proposition. So far as I can tell, Dr. Eccles' report had no effect other than Mrs. Rockett's ceasing to be liaison officer, which I am willing to accept was a way of promoting harmony in The Sands.

The matters on which I have been prepared to place reliance go to two aspects of the good faith element of a qualified privilege defence, namely lack of “ill will ...or ... any other improper motive” and lack of belief that the defamatory matter was untrue.

The truth aspect appears to be one on which it is only in the most exceptional circumstances, that is, when cogent evidence of the right kind is available, that a plaintiff will succeed in excluding the defence. Section 16(2) of the Defamation Act 1989 refers to a defendant who “does not believe the defamatory matter to be untrue”. The natural meaning of this is that a plaintiff wishing to exclude the defence, in which respect s. 17 places the onus on such a plaintiff, must show the defendant “does...believe the defamatory matter to be untrue.” This approach is harmonious with what must be shown to exclude the good faith element of a qualified privilege defence on fee basis of either of the two elements of good faith listed immediately before, namely that the publication “does not exceed what is reasonably sufficient for the occasion (in manner and extent)” and that the defendant “is not actuated by ill-will, et cetera”. If this be so, it is not enough for a plaintiff to prove that the defendant “does not believe the defamatory matter to be...true”. There is much authority to show that lack of belief in truth does not embarrass defendants in situations of qualified privilege.

The defendant's belief or lack thereof may be of crucial importance in assessing motive. In his influential judgment in Horrocks v. Lowe (1975) AC 135, Lord Diplock said at 149-151:

The case concerned a single publication by a Labour councillor about a Conservative councillor at a local authority council meeting, incorporating criticism of the plaintiff's conduct “quite unjustified”, notwithstanding that the defendant always and still believed everything he said was true and justifiable. His state of mind was characterised as “gross and unreasoning prejudice”, owing to his anxiety to have the plaintiff removed from the Management and Finance Committee. Mr Lowe's campaign would seem to have had limited prospects of success, given that the Conservatives controlled both the committee and the council. The single feature relied on to show malice, apart from the making of the offending speech, was a refusal to apologise, when requested two days later. Lord Diplock said at 152 that “A refusal to apologise is at best but tenuous evidence of malice, for it is consistent with a continuing belief in the truth of what one has said”. There has never been any apology from the present defendants.

Hunt J. in Spautz v. Williams (1983) 2 NSWLR 506 at 520-21 helpfully listed a number of general statements concerning what must be proved in relation to the issue of malice in civil defamation law:

(I have not included the authorities cited.)

I am not sure whether (6) survives the New South Wales Court of Appeal case cited in Griffiths. Out of consideration for the defendants, I assume that it does. In the Full Court of the Supreme Court of South Australia in Shelmerdine v. Mewett B.C. 9300265 (12 May 1993) at page 10, in what became the judgment of the Court, there was set out a long quotation from another judgment of Hunt J, in Barbaro v. Amalgamated Television Pty Ltd (1985) 1 NSWLR 30, at 50:

At page 16, the Full Court described the evidence as disclosing “a writing of the letter without any real belief in the truth of the defamatory statements ... (proving) that the appellant was recklessly indifferent to truth or falsity.” The following conclusion of the trial judge was upheld as correct:

The same assessment must be made of Mrs. Anthony in this case. Her mind represents that of the Body Corporate for present purposes. I think the other committee members (Mrs. Rockett excepted) simply tended to go along with her. My sympathies lie very much with Ms. Cominos, who was new to the committee, not even present at the dramatic meeting of 31 March 1995. In those circumstances, it would be quite unreasonable to expect her to have stood out against the others. Only Mrs. Anthony is sued, apart from the Body Corporate. It is clear she was the leading force. The publications were calculated to and intended (by those who authorised their publication, knowing their contents) to injure Mrs. Rockett's reputation, and, indeed, Mr Devencorn's in those that allude to him. Mrs. Anthony and the committee members who gave evidence in her case were setting out to persuade the court they believed the defamatory publications were true in their entirety. They failed. It is not necessary in order to decide this case to say that Mrs. Rockett and Mr Devencorn proved they believed the defamatory passages, particularly in reference to deliberately misleading the committee, were untrue. There was no honest belief they were true when the publications were made. Speaking of them as a body, the committee members were in some difficulty in identifying the precise nature of the charge against Mrs. Rockett. The attempts made towards ascertaining “the truth” could hardly have been more desultory. Indeed, they seem to me calculated to avoid getting the most reliable information available.

So far as the evidence goes, none of the committee members who ended up opposed to Mrs. Rockett (and this did not include Ms. Cominos) showed the slightest interest in identifying the true facts, none of them showed the slightest concern that the defamatory publications might be unfair to the plaintiff's. I think it is clear they wanted to be rid of Mrs. Rockett because they did not like her and wanted to be free of the necessity of having to work co-operatively with her on the committee. I am willing to accept that her continued presence on the committee made committee work less congenial to them. She turned out not to be their kind of person, rather someone they felt they would have to watch carefully. What was there against her? Serious misjudgment in getting work to the spear pump system done in January 1995 without authorization and arranging actual payment by devious means. It is probably irrelevant that she acted in good faith. The others did not act in good faith when they persisted in accusing her of deceiving the committee. She may have had much to offer the Body Corporate, on a committee which could work with her. Her “pushiness” may have been an advantage. There was absolutely nothing in the case to show that the unit owners in The Sands as a body were better off with Mrs. Rockett gone from the committee; I do not think any of the committee members who voted for her removal believed that; there is no room for them to argue they were acting in the interests of the Body Corporate. The dominant purpose of the publications, in my view, was to injure Mrs. Rockett (and her husband where he was referred to) by the publications, which continued after she was removed from the committee.

Although the plaintiffs asserted qualified privilege was lost because the defendants published matters irrelevant to any occasion of qualified privilege, I am not persuaded about that, except in relation to the publication of August 1st, 1995 which could be seen as wholly irrelevant. In the context of whether an improper motive could be inferred from publication of “defamatory matter that is not really necessary to the fulfilment of the particular duty or the protection of the particular interest upon which the privilege is founded”, Lord Diplock said in Horrocks v Lowe at 151:

The plaintiffs gave as particulars of their plea that the extent of the publications exceeded what was reasonably sufficient for the occasion that:

My view has been that “excess” is demonstrated in there being multiple publications of accounts of the deprecated conduct attributed to Mrs Rockett. It is difficult to reconcile any complaint that all unit owners were sent the publications with the descriptions of the privileged occasions in the defendants' particulars:

(It might be noted that these particulars, focussing so heavily on Exhibit 21, were not being given in support of the defendants' plea that their publications were hitting back at Mrs Rockett for defaming Mrs Anthony in Exhibit 21. One would have thought in those circumstances that those making the publications might have taken some steps after becoming aware of Exhibit 21 to ascertain whether the “assertions” in it might have been accurate.)

Mr Morris submitted that it was not open to Mr Hampson to go beyond the plaintiff's particular, set out above, so that the court could not, in determining whether any of the publications sued on was published to an excessive extent, have regard to the publication of any of the others. There is a good deal of unreality in that approach. Mr Hampson's particular might even be effective for the plaintiff's purpose on the basis that, Exhibit 40 informing the unit owners of supposed “information” it was in their interests to have, and this being the publication most easily identified as implementation of the committee's resolution of 31 March 1995 that a motion against Mrs. Rockett be “put to the next EGM... and that unit owners be advised of the reasons for the motion.”, the bombarding of each and every unit owner with other publications was excessive. In the end that is the view I take.

Mrs Rockett, having made out her allegations in paragraph 3(a) and (d) of the reply, also (c) in relation to the third publication, is entitled to damages against the defendants in respect of all three publications, assessed by me as $7,500 in respect to the first publication, $2,500 in respect of the second publication and $10,000 in respect of the third publication.

As to the qualified privilege defence based on answering or refuting defamatory matter “concerning the defendants” in Exhibit 21, I would observe that the defamatory matter of which Mrs. Rockett complains goes far beyond what such an exercise by way of response could possibly be thought to require. I would reiterate in a general way all that goes before regarding the defendants' lack of good faith, given that only the publication of 1 August 1995 contains any answer or refutation. So far as the second defendant is concerned, it seems to me there was nothing defamatory to refute or answer. This defence seems to me entirely spurious, the defendants' lack of bona fides being established by the decision apparently taken to wait almost four months before responding to Exhibit 21. Only the third publication refers to it. The inference is inescapable that Mrs Anthony wished to ensure unit owners concentrated on matters embarrassing to Mrs Rocket until (if this could be achieved) Mrs Rockett was got out of the way and wished to avoid any canvassing of issues involving herself. I have already commented on the apparently baseless assertion in Exhibit 31 that “Mrs Rockett continues to make claims”, which has the appearance of attempting to present as current claims last made in April 1995. If Mrs Anthony believed Mrs Rockett's allegations against her called for an answer, she would surely have given the “answer” much earlier than 1 August 1995. The first and second publications are completely irrelevant to the occasion of privilege asserted under s. 377(7), as is Exhibit 31, apart from the first (d).

Mr. Devencorn is entitled to an assessment of damages in respect of the first publication. It depicts him as having done work (which he did not do, apart from arranging for his firm to fabricate a box to cover the spear pump) and being complicit in a dishonest exercise to suggest Mr. Roessler had done the work - the implication being (contrary to the fact, as known to Mr. Renzella, among others) that Mr Roessler had done no work at all. The defendants' claim to qualified privilege as pleaded and particularised focuses on Mrs Rockett's membership of the committee and her activities, “her husband” being mentioned as a kind of adjunct to her. Publication of defamatory matter in respect of him to the effect I have just described cannot, it seems to me, be justified in terms of the interests of the defendants or of the unit owners in The Sands having supposed “information”. Even in regard to Lord Diplock's warning, I think defaming Mr. Devencorn by untruths damaging to his reputation irrelevant to the canvassing of issues involving Mrs Rockett as a committee member. The repeating of the effect and/or contents of Exhibit 29 in Exhibit 30 and Exhibit 40, which followed, amounts to “excessive” publication. That conclusion is enough to require a determination that the defendants lost their qualified privilege so far as Mr. Devencorn is concerned, in respect of Exhibit 29.

The court ought not lose sight of Mr Devencorn's assertion that he is not after damages, but an apology. None has been forthcoming, and the court cannot require one. The only means available for vindicating Mr Devencorn's reputation is by an award of damages, which ought to be modest in the circumstances. The courts respect (including its connotation of “admire”) plaintiffs who take such a stance. In Horrocks v. Lowe, at first instance the plaintiff was awarded £400 damages. Lord Diplock noted at 147, “The only reason why the award of damages was low was because he made it clear through his counsel that what he sought was not substantial damages, but to reinstate his reputation.” The defamation of Mr. Devencorn seems to me a more serious one in all the circumstances. During pursuit of an interest in the topic of the implications of a very modest award of damages, particularly from the point of view of carrying costs, as I think Mr. Devencorn's should, the Canadian case of Geddie v. Rink (1935) 1 WWR 87 came to my attention. The jury found a general verdict, but assessed no damages. After further instructions from the trial judge on the subject of damages, they retired again, and brought in a verdict for $10 damages, for which sum the judge entered judgement with costs. On appeal, in the leading judgment at 90 ff, Martin JA said:

Mackenzie JA said at 100:

The result is that the first plaintiff will have judgment in the action against the defendants for $20,000; the second plaintiff will have judgment against the defendants for $1,000.

The parties will be offered the opportunity to consider these reasons and make submissions as to appropriate orders. As it happens, the judgment sums were referred to during the submissions. This led Mr. Morris to submit that the plaintiffs must be limited to Magistrate Court costs, if they succeeded at all. I indicated an interest in being referred to authorities indicating whether a practice has developed in the Supreme Court of limiting defamation plaintiffs to District Court costs or Magistrates Court costs in accordance with damages recovered, or in the District Court of limiting a successful plaintiff to Magistrates Court costs accordingly.