Gmitrovic v Commonwealth of Australia

Darko Gmitrovic, the plaintiff, commenced proceedings against the Commonwealth of Australia (incorrectly referred to as the Department of Defence) and Danielle Pokoney by statement of claim filed on 5 November 2014. The plaintiff claimed damages for defamation arising from the sending of two documents – an Intent to Sanction Minute and a Statement of Reasons (the matter complained of) – concerning disciplinary action taken in the course of his employment at the Department of Defence.

As the earliest of the emails said to be actionable was sent on 3 July 2013, the plaintiff required an extension of time pursuant to s 56A of the Limitation Act 1969 (NSW), which relevantly provides that defamation proceedings are to be commenced within twelve months. The plaintiff filed a notice of motion for such an extension on 5 November 2014, being the date on which he filed the statement of claim.

The issues that require determination are:

If this matter were to be determined by a jury, issues (2), (3) and (4) would be determined by the jury and, if the jury returned a verdict in favour of the plaintiff, I would be obliged to assess damages on the basis of the imputations found to be conveyed which were defamatory and in respect of which the defendants had not established the defence of qualified privilege. However, as I am both the tribunal of law and of fact, I propose to set out all relevant factual findings and address all issues, in order that, if the matter goes further, all requisite findings of fact have been made.

The plaintiff was employed by the Commonwealth in the Department of Defence. In 2012 he was the Facilities Program Manager for Defence Support Northern NSW.

Information and Communication Technology (ICT) at the Department of Defence received an investigation report dated 27 May 2012 concerning the plaintiff from a Policy Violation Officer within ICT Security Operations. The investigation report alleged that the plaintiff’s account had been identified as using an Anonymous Search Engine to hide search activity on the Defence Restricted Network (DRN). It also contained an allegation that the user (the plaintiff) had been seen excessively browsing internet websites during the working day.

The investigation report referred to relevant standards applicable to staff of the Department of Defence, including the plaintiff. These standards included a prohibition against being “wasteful of time and Defence ICT Resources” (examples given included excessive use of non-Government sites); and a prohibition against using such resources “to engage in dishonest, deceptive or malicious practices” (examples given included renaming or masking files or the sender’s identity to hide the true content or the sender’s identity). The investigation report contained the following passage:

Under cover of a minute dated 27 June 2012, Joshua Harrison-Brown (a Policy Violation Officer) and Michael James (Audit Manager) of ICT Security Operations reported the matter to the Conduct, Performance and Probation branch in the department for “review and action”. The covering minute was marked for the attention of Jacqueline Stores. On receipt, Ms Stores assessed the priority of the referral and, to that end, filled in a form referred to as a “CAPM” (Case Assessment and Prioritisation Model). She assessed its priority as medium.

Ms Stores appointed Ms Pokoney, Assistant Director of the Conduct, Performance and Probation branch, as the delegate for the matter. On 19 July 2012 Ms Stores allocated the matter to Kerstin Mahoney, an investigator within the Conduct, Performance and Probation branch, who then became the case officer responsible for its investigation. Ms Mahoney prepared an initial case summary which she forwarded to Ms Pokoney.

On 23 August 2012 Ms Pokoney instructed Ms Mahoney to “proceed to NOI [notice of investigation]”. Ms Mahoney prepared a minute addressed to the plaintiff, entitled: “NOTIFICATION OF COMMENCEMENT OF INVESTIGATION INTO SUSPECTED MISCONDUCT”. The minute was reviewed by Ms Pokoney, signed by Ms Stores (in Ms Pokoney’s absence) on 27 August 2012 and sent to the plaintiff on that day by email from Ms Mahoney.

The minute advised the plaintiff of the investigation into his conduct; the nature of the allegations (inappropriate use of ICT resources); the identity of the case officer; the potential consequences of a finding of misconduct; the fact that Mr Robertson would receive a copy of the minute and be notified of developments; and that the investigation was confidential. In the final paragraph of the minute, Ms Stores also encouraged the plaintiff to use the Employee Assistance Program if the matter caused him “undue distress”.

The minute was copied “for information” to Keith Robertson. Mr Robertson was then the Regional Estate Development Manager of Defence Support Northern NSW and was, relevantly, the plaintiff’s first line manager. Ms Pokoney explained the reasons for the minute being sent to Mr Robertson in the following terms in her examination in chief:

Ms Mahoney explained Mr Robertson’s need to know in the following way:

Ms Mahoney prepared a notification of suspected misconduct which was signed by Ms Pokoney and sent to the plaintiff on 28 November 2012. In the course of its preparation Ms Mahoney consulted with the members of staff of ICT who had referred the matter to the Conduct, Performance and Probation branch because she needed their technical assistance to formulate the allegations to be made against the plaintiff.

The notification informed the plaintiff of the allegations against him and the relevant provisions of the Australian Public Service (APS) Code of Conduct. The allegations included the following:

The notification also informed the plaintiff that Ms Pokoney had been appointed delegate. Ms Pokoney described the role of the delegate in this context as follows in cross-examination:

The notification was also sent to Mr Robertson, for the same reasons as given above with respect to the notice of investigation.

On 12 December 2012 the plaintiff sent an email to Ms Mahoney in the following terms:

By email to Ms Mahoney dated 17 December 2012 and copied to Mr Robertson, the plaintiff set out his response to the matters contained in the notification of suspected misconduct. Ms Mahoney, who was on leave throughout January 2013, forwarded the plaintiff’s response to Ms Pokoney by email on 7 February 2013.

When Ms Pokoney reviewed his response, she realised that she needed to consult ICT, as neither she nor Ms Mahoney had sufficient technical expertise to assess his response without expert assistance.

To that end Ms Pokoney and Ms Mahoney met with Mr Harrison-Brown and Mr James (the authors of the minute referring the matter for review by the Conduct Performance and Probation branch) on about 8 February 2013 to discuss technical matters. After the meeting, Ms Pokoney formulated questions for advice which she sent to Mr Harrison-Brown and Mr James by email on 14 February 2013 after seeking advice from Ms Mahoney as to whether she had “captured the required questions”.

Ms Pokoney’s email of 14 February 2013 said in part:

On 19 March 2013, Ms Pokoney, who had not received a response to her email of 14 February 2013, sent a further email requesting a response. Shortly after her email was sent, Ms Pokoney received a reply from Carolyn Bolling, a Principal ICT Security Officer, foreshadowing an imminent response. This was the first occasion on which Ms Pokoney had had any contact with Ms Bolling regarding the matter. Eventually, on 29 April 2013, Ms Bolling sent a response by email to Ms Pokoney (copied to Mr Harrison-Brown) which set out her proposed wording of the response, which was highlighted in maroon on the draft.

In early May Ms Pokoney and Ms Mahoney met with Ms Bolling and Mr Harrison-Brown about the wording of Ms Pokoney’s “breach finding decision”. By email dated 14 May 2013 Ms Pokoney sent them her draft decision for their review of the technical matters contained in it.

By email sent on 31 May 2013, Ms Bolling responded with suggested tracked changes to the draft decision. In early June there were further communications between them about wording and applicable protocols.

On 6 June 2013, Ms Pokoney, as the delegate of the Secretary, made a decision that the plaintiff had breached certain provisions of the APS Code of Conduct (the Decision). In a 19-page document she set out the allegations, the plaintiff’s response and her findings. She wrote the Decision herself, after taking into account the contribution made by ICT. The Decision concluded as follows:

After she had made the Decision, Ms Pokoney instructed Ms Mahoney to use the Decision to prepare a draft Intent to Sanction Minute. Ms Pokoney explained the relationship between the Decision, the Intent to Sanction and the Statement of Reasons as follows:

The draft of the Intent to Sanction Minute passed from Ms Pokoney to Ms Mahoney several times before it was ultimately settled by Ms Pokoney, who signed it as delegate on 3 July 2015 and forwarded it by email to Ms Mahoney so that she would, in her role as case officer, send it to the plaintiff and copy it to Mr Robertson. When Ms Mahoney received the final, signed version of the Intent to Sanction Minute she was already familiar with its contents, having regard to the collaborative way in which it had been prepared.

The covering email from Ms Pokoney to Ms Mahoney (to which the Intent to Sanction was attached) included the following:

Ms Pokoney explained her choice of words in examination in chief:

Ms Mahoney understood these words as follows:

The Intent to Sanction Minute was marked “Staff in Confidence”. Ms Pokoney gave evidence of her understanding of what the expression, “Staff in Confidence”, meant as follows:

Ms Pokoney clarified her evidence by explaining that her understanding of the term was that it was up to the recipient to determine whether others had “a need to know”. A recipient would not need to revert to the original sender to obtain permission before making the judgment whether those to whom he or she wanted to send the document had a “need to know”. The original sender would have no control over whether a recipient passed on the information to others who might be adjudged to have a need to know.

Ms Mahoney drafted the Statement of Reasons from the notification of misconduct and the Decision. It was settled by Ms Pokoney.

On 9 July 2013 Ms Mahoney emailed the Intent to Sanction Minute and the Statement of Reasons to the plaintiff, and emailed the Intent to Sanction Minute to Mr Robertson. Ms Pokoney explained why the Intent to Sanction Minute was sent to Mr Robertson in her examination in chief as follows:

Ms Mahoney also confirmed her understanding of the protocol: that the Statement of Reasons is not provided to the person’s supervisor.

That day, 9 July 2013, Mr Robertson forwarded the Intent to Sanction Minute to Kathy Shields, his first line supervisor (and the plaintiff’s second line supervisor). At that time Ms Shields was the Director of Estate and Facilities Service in Defence Support, Northern New South Wales Group. Ms Shields explained why she expected to be told of the Intent to Sanction Minute in the following passage from her evidence in chief:

Ms Shields also explained that, as the plaintiff’s second line supervisor, she was the person who was ultimately responsible for making a final determination whether a pay or salary progression would take place.

Ms Shields, in turn, forwarded the Intent to Sanction Minute by email dated 9 July 2013 to Peter McLenaghan and Kellie Naylor, who both had expertise in human resources so that she could be appropriately advised as to how to deal with the plaintiff. Ms Shield’s explained that because it was not a “standard” Human Resources matter, it was outside her expertise and that of Mr Robertson. She wanted more detailed guidance as to what she and Mr Robertson ought do next as managers and supervisors.

At that time, Mr McLenaghan worked in Ms Shields’ business unit (Defence Support, Northern New South Wales) as the Human Resources expert. Ms Naylor was part of a shared services Human Resources team (known as the Personnel Services Support team) within the Department of Defence.

The plaintiff sent a response to the Intent to Sanction Minute to Ms Mahoney by email dated 26 July 2013 in the following terms:

Ms Pokoney sent the Intent to Sanction Minute and the Statement of Reasons to Ms Bolling by email on 30 July 2013 as she had been involved throughout and had assisted in the drafting of the Decision from which the Statement of Reasons had been prepared. Ms Pokoney explained the sending of these documents to Ms Bolling in the following terms:

On 29 August 2013 Ms Pokoney issued a Determination of Sanction which had the effect of terminating the plaintiff’s employment with the Department of Defence on 2 September 2013. She drafted it herself but consulted with Ms Mahoney in the course of the process. It was sent to the plaintiff and also to Mr Robertson.

On 3 September 2013 Ms Mahoney drafted a minute of termination of the plaintiff’s employment and sent it to the relevant section of the Department of Defence so that it could be notified in the Government Gazette.

On 3 September 2013, the plaintiff rang Centrelink and applied for a Newstart allowance. He filled in a customer declaration on 10 September 2013 which required him to specify the reason for “separation” (termination). As the information as to the reason for his separation was not forthcoming, his claim for Centrelink benefits was rejected. Ultimately there was a phone hook-up between the plaintiff, a Centrelink officer and Ms Mahoney, in the course of which Ms Mahoney confirmed that the plaintiff’s employment had been terminated as a result of misconduct. The plaintiff subsequently provided the Determination of Sanction document to Centrelink.

The employment separation certificate was provided to Centrelink on 23 September 2013. Once it was received, Centrelink informed the plaintiff that he would not be entitled to receive the Newstart allowance until 16 November 2013, to allow for an eight-week income maintenance period. The Centrelink documents in evidence record that:

After receiving this information, the plaintiff decided to apply for a carer payment and allowance instead. When filling in the claim form, the plaintiff represented that he provided additional care to his mother because of her disability or medical condition; that he provided this care seven days a week; and that he had started to provide the care in January 2009. The plaintiff signed and dated the claim form 22 October 2013. He represented, in support of the claim, that he provided personal care to his mother for at least the equivalent of a working day, each day. As a result, the plaintiff received a carer’s payment and allowance from 15 October 2013.

In about September 2013 the plaintiff consulted a solicitor, Mr McArdle, who advised him about making an application to the Fair Work Commission (the Commission). On 20 September 2013 the plaintiff applied to the Commission for an unfair dismissal remedy for the termination of his employment with the Commonwealth. Although Mr McArdle was initially on the record as the plaintiff’s solicitor in those proceedings, he ceased to act at a relatively early stage. The plaintiff represented himself in those proceedings thereafter.

The plaintiff tendered, in evidence in the present proceedings, Ms Pokoney’s witness statement dated 3 February 2014 from the proceedings in the Commission, to which were annexed several documents, many of which are also in evidence in these proceedings. The plaintiff’s application in the Commission was heard over two days: 5 and 7 March 2014. On 13 June 2014 Senior Deputy President Hamberger found that the plaintiff’s dismissal was harsh, unjust and unreasonable.

There was a further hearing in the Commission on 10 July 2014 for the purpose of hearing evidence and argument on an appropriate remedy. The transcript of the hearing on that day indicated that the hearing took about twenty minutes. In the course of the hearing, the Senior Deputy President asked questions, which the plaintiff answered as follows:

The plaintiff admitted in the hearing in the Commission that he would probably have become a full-time carer for his mother at some time and expected to remain in that role until her death.

On 31 July 2014 Senior Deputy President Hamberger delivered reasons for his decision to award compensation equivalent to 16 weeks’ salary (less deductions for failure to mitigate) of $22,798.08.

On 12 August 2014 the plaintiff wrote to the Department of Defence and sought $1.7m in compensation.

In late October 2014 the plaintiff consulted lawyers for the first time with a view to obtaining advice about suing the Commonwealth for damages for defamation.

By the time the plaintiff filed the statement of claim in these proceedings on 5 November 2014 he realised that he needed an extension of time. Accordingly, he filed a notice of motion on the same date seeking an extension of time.

In his notice of motion (which has been admitted as forming part of his evidence), the plaintiff said:

Section 14B of the Limitation Act provides that a cause of action for defamation is not maintainable if brought after the end of a limitation period of one year running from the date of the publication of the matter complained of. The matter complained of was first published on 3 July 2013. Accordingly, the limitation period expired on 2 July 2014. The proceedings were not commenced until 5 November 2014. The plaintiff requires an extension of time under s 56A to that date if the proceedings are to be maintainable.

Section 56A of the Limitation Act provides:

In his email of 26 July 2013 the plaintiff expressed his intention to “vigorously pursue all legal options” and “clear [his] name of imputations”. I do not accept the plaintiff’s denial that he was not at that time thinking of defamation proceedings in light of the language of the email and his admission that, as at that time, he “knew” that he had been defamed. However, the plaintiff did not consult a lawyer to advise him about suing for damages for defamation until about late October 2014.

Mr Richardson of counsel, who appeared on behalf of the defendants, put to the plaintiff in cross-examination that he could have commenced defamation proceedings at any time in 2013 or 2014 after publication of the matter complained of. The plaintiff said:

The plaintiff admitted that the preparation of his statement of claim in the present proceedings took a couple of days. He said that he had to choose what to do first: bring a claim in the Commission, or commence his defamation proceedings. He said that he did not commence the defamation proceedings because he did not have “the time and the money”. He appreciated that a claim in the Commission had to be brought within 30 days of the date of dismissal. At that time he did not realise that there was a time limit on the bringing of defamation proceedings and did not check the law to ascertain whether there was any such limit.

The plaintiff admitted that there was nothing stopping him from commencing defamation proceedings in the period from mid-June 2014 until 5 November 2014 when he in fact commenced the proceedings.

I do not accept that the plaintiff was not contemplating defamation proceedings when he sent the email of 26 July 2013; the language is apt to the cause of action. The word “imputation” is one which is particularly apposite to the tort; as is the reference to reputation.

The burden imposed on the plaintiff by s 56A of the Limitation Act is that he is required to establish that it was not reasonable for him to commence proceedings within the first year of publication.

I am satisfied that, had the plaintiff appreciated that there was a time limit, he would have given sufficient priority to filing the statement of claim, notwithstanding his other commitments to his mother or to the commencement, preparation for and conduct of the proceedings in the Commission. His ignorance of the time limit does not mean that it was not reasonable for him to commence proceedings within the first year of publication: see the summary of principles in Noonan v MacLennan [2010] QCA 50; [2010] 2 Qd R 537 at [19]-[23] per Keane JA. He became aware of the publication on 9 July 2013. It took him about two days to draft the statement of claim. Even if he had been so caught up in the Commission proceedings until he succeeded on liability on 13 June 2014, there was still time within which to draft the defamation proceedings before the year was up.

The time limit in s 14B and the terms of s 56A do not have the effect of permitting potential plaintiffs not to inform themselves of the applicable time limit or to give priority to other demands on their time. In my view, the plaintiff took his time to commence defamation proceedings because he did not appreciate that there was a time limit. Had he investigated whether there was a limitation period he would have discovered that there was and found the time before the year was up to draft the statement of claim.

In my view, the plaintiff has not discharged the burden of proving that it was not reasonable for him to commence proceedings within the year. Accordingly, his cause of action in defamation is not maintainable and there must be judgment entered for the defendants.

However, for completeness, I am obliged to make all relevant findings of fact and law, having heard the matter as trial judge.

The matter complained of comprises the Intent to Sanction Minute and the Statement of Reasons. As can be seen from the narrative set out above, six people received part or all of the matter complained of. The table below lists those who received it; the role of each recipient; what they received; and when and from whom they received it.

The allegation that the defendants published any part of the matter complained of to Centrelink was specifically withdrawn by the plaintiff. Accordingly it is only necessary to address publication as set out in the table above.

It is not necessary to reproduce the matter complained of in its entirety for the purposes of these reasons. It is, however, necessary to extract at least those passages which are said to give rise to the imputations alleged. Of the six recipients, only Ms Bolling and Ms Mahoney (who was involved in its preparation) received the Statement of Reasons. Accordingly, a distinction must be made between the contents of the Intent to Sanction Minute and the Statement of Reasons.

The plaintiff alleged that the following imputations were conveyed by the matter complained of:

I note that the plaintiff refers only to the “minute” in the allegations set out above but he has made it clear that the matter complained of includes not only the Intent to Sanction Minute but also the Statement of Reasons.

Each imputation relied upon must be considered in the context of the whole of the matter complained of: Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; 54 NSWLR 165 at [26]-[28] per Mason P (Handley JA agreeing) and the passage set out at [43] per Young CJ in Eq.

As the tribunal of fact, the Court must place itself in the position of the ordinary reasonable reader. Such a reader is of fair average intelligence, fair-minded, not overly suspicious, not avid for scandal, not naïve, does not search for strained or forced meanings, reads the whole of the matter complained of and considers the context as well as the words alleged to be defamatory.

The Statement of Reasons describes the plaintiff’s conduct in using anonymizers as dishonest and deceptive. However, the Minute makes no such reference. In these circumstances, I am not satisfied that the Minute carries imputations (1) and (4).

Although the Statement of Reasons does refer to the plaintiff’s conduct as dishonest and deceptive, these adjectives are used only in the context of specific conduct. In these circumstances I am not persuaded that the general imputation as alleged is carried. It is one thing to say that a person is dishonest or deceptive in doing a particular thing; or that a particular aspect of the person’s conduct is dishonest or deceptive (as has occurred in the instant case); it is quite another to say that a person is dishonest or deceptive. The latter implies a level of generality that is lacking in the former.

Both the Minute and the Statement of Reasons describe the plaintiff’s approach to the Notice of Suspected Misconduct and to the investigation generally as arrogant and condescending. The difficulty in finding that the general imputation alleged is carried is the same as with respect to imputations (1) and (4): the matter complained of uses the adjectives in a specific context, but the imputation is expressed as a matter of broad generality. I am, accordingly, not persuaded that imputations (2) and (3) are carried by the matter complained of.

The defendants admit that these imputations were carried by the Statement of Reasons but deny that they were carried by the Intent to Sanction Minute. The plaintiff has not identified any basis on which it could be concluded that either of imputations (5) or (6) was carried by the Minute. Accordingly they were carried only in the publication of the Statement of Reasons to Ms Bolling and Ms Mahoney (they being the only people to receive the Statement of Reasons).

These imputations are drafted such that the ordinary reasonable reader must have conveyed to them that the plaintiff has in fact done the things specified in each of the imputations. The difficulty with the way in which these imputations have been formulated is that when one reads the Statement of Reasons as a whole, there are numerous references to the fact that the author does not know why the plaintiff has used anonymizers and what the plaintiff has done with the use of an anonymizer. The fact that an anonymizer prevents the author’s knowing which, if any, of the possible risks have eventuated, is inconsistent with the terms of the imputations.

An example of one such passage is sufficient to demonstrate the point. At paragraph 26 on page 25 of the Statement of Reasons, Ms Pokoney wrote:

An ordinary reasonable reader who read only the Minute would not even have conveyed to him or her the suspicion that the plaintiff had engaged in the activities referred to in the imputations. Such a person who read the Statement of Reasons would have conveyed to him or her the possibility that the use of anonymizers might have allowed the plaintiff to do the acts alleged, but not that the plaintiff had actually done any of the acts alleged.

Imputation (10) is in a separate category. It is not referred to expressly as a possibility in the Statement of Reasons at all. Rather it constitutes the worst possible inference that could be drawn from the plaintiff’s use of anonymizers. Only a deeply suspicious reader would even contemplate that possibility, much less regard it as having been carried by the matter complained of. As the test is one of the ordinary reasonable reader, the proposition that this imputation was carried must be rejected.

For the foregoing reasons, none of imputations (7)-(10) was carried by the matter complained of.

An imputation is defamatory of the plaintiff if it tends to lower the plaintiff’s reputation in the minds of right-thinking ordinary members of the community of fair average intelligence: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; 238 CLR 460 at [1]-[6].

The defendants accepted that imputations (5) and (6) were defamatory of the plaintiff. These are the only imputations which I have found to have been carried by the matter complained of. They were carried only by the Statement of Reasons and not by the Intent to Sanction Minute.

Communications are protected by qualified privilege when a person has an interest or duty (whether legal, social or moral) to make a statement on an occasion and the recipient of the statement has a corresponding duty or interest to receive it: Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 at [9]-[10] per Gleeson CJ, Hayne and Heydon JJ. Their Honours set out with approval the classic statement of principle from Toogood v Spyring (1834) 1 Cr M & R 181 at 193; 149 ER 1044 at 1049-1050:

The Commonwealth is a legal person. It can act only through human agents. These human agents must be able to communicate with each other for the benefit of the Commonwealth. The Secretary of the Department of Defence delegated disciplinary functions with respect to the plaintiff as an employee to Ms Pokoney. She had a duty, on completion of an investigation into an employee’s conduct, to prepare and sign an Intent to Sanction Minute and a Statement of Reasons. It was part of her function to send these documents to appropriate persons. Whether it was appropriate for a person to receive the Minute only or the Minute and the Statement of Reasons depended on the role the person played in the investigation and in the plaintiff’s employment.

The facts reveal that a distinction was drawn by those who published the Minute and the Statement of Reasons between those two documents. The only persons who received the Statement of Reasons were those who had been involved in the investigation and the documents from which the Statement of Reasons was derived: Ms Mahoney and Ms Bolling. The other four recipients received only the Minute.

Shortly prior to the conclusion of the hearing of the matter, the plaintiff conceded that the defendants had established the defence of qualified privilege with respect to the communications to Ms Mahoney, Mr Robertson and Ms Bolling. This concession was, in my view, correctly made. Ms Mahoney was effectively a co-author of the documents and had been intimately involved in the investigation, as had Ms Bolling. Ms Mahoney plainly had a duty, as the case officer, to publish the Minute to Mr Robertson as he was the plaintiff’s first line supervisor and had a need to know (and interest in knowing) what was proposed with respect to the plaintiff. Had he not known, the Commonwealth would have been at risk of failing, through Mr Robertson’s ignorance, to discharge the duty of care which it, as employer, owed to the plaintiff, as employee.

By reason of the plaintiff’s concession, it is unnecessary to consider the defence of qualified privilege with respect to the communications to Ms Shields, Mr McLenaghan and Ms Naylor since they did not receive the Statement of Reasons and the only imputations which I have found were carried ((5) and (6)) were carried only by the Statement of Reasons and not by the Intent to Sanction Minute. However, for completeness, I will set out my reasons for finding that the publication of the Intent to Sanction Minute to those persons occurred on an occasion of qualified privilege.

By publishing the Intent to Sanction Minute to Ms Shields, Mr Robertson was informing his own supervisor of an important matter concerning staff. The plaintiff, who was then on leave, had been issued with an Intent to Sanction Minute which proposed that his employment be terminated. Ms Shields had an interest in knowing of this matter because of the present and future consequences for staffing and management. She was the decision-maker for the assessment of the performance of staff in her area, including the plaintiff. Mr Robertson had a clear duty to pass on the Intent to Sanction Minute to Ms Shields.

Furthermore, Ms Shields and the plaintiff worked at the same physical location, whereas Mr Robertson worked in another location, remote from them. Therefore even though Mr Robertson was the plaintiff’s first line supervisor, it was important that Ms Shields was aware of the contents of the Intent to Sanction Minute since she, as the Commonwealth’s human agent most closely proximate to the plaintiff, would be in a position to observe his response (on his return from leave) to the Intent to Sanction Minute and would therefore be expected to discharge the duty of care owed to him by the Commonwealth, as one of its employees.

I am satisfied that the defendants have established that the Intent to Sanction Minute, which was published by Mr Robertson to Ms Shields was published on an occasion of qualified privilege.

As referred to in the narrative of facts, Ms Shields chose to send the Intent to Sanction Minute to Mr Leneghan and Ms Naylor to obtain expert advice as to how to deal with what she regarded as a “non-standard” human resources matter. The terms of the covering email indicated the purpose of the communication: to seek advice as to what Ms Shields and Mr Robertson ought be doing as “supervisors”. As such Ms Shields was communicating with persons who had a relevant duty and interest in the matter. They needed to know of the fate of an employee. Ms Shields, as the plaintiff’s second line supervisor, and Mr Leneghan and Ms Naylor, had a common interest in responding to the information that an employee within their purview had received an Intent to Sanction Minute. Their common interest was particularly significant because the sanction proposed, termination, was so serious.

I am satisfied that the defendants have made out the defence of qualified privilege in respect of each of the communications in respect of which the defence was not expressly conceded.

I have found that the defendants are not liable to the plaintiff because the two imputations carried, which were defamatory, were published on an occasion which the plaintiff concedes was one of qualified privilege.

Although the question of damages does not arise, I propose to address the question since I am obliged to make all factual findings which reflect my advantage as trial judge.

Section 36 of the Defamation Act 2005 (NSW) provides:

Although some comparison is appropriate between awards for defamation and awards for non-economic loss in personal injury cases (being for pain and suffering), there is no precise analogy between the two types of case: Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [270]-[271] per McColl JA (Spigelman CJ, Beazley JA, McClellan CJ at CL and Bergin CJ in Eq agreeing). Reputation may be of great significance to an individual; the effect of damaging it may be devastating.

Unless aggravated damages are awarded, the damages that may be awarded for non-economic loss in defamation proceedings are limited by s 35(1) of the Defamation Act as adjusted by an amount published in the Government Gazette. The relevant figure for the year succeeding 1 July 2015 is $376,500.

The plaintiff is presumed to have a reputation. There are three purposes for an award of damages in defamation: consolation for hurt to feelings; recompense for damage to reputation (including, where relevant, business reputation); and vindication of the plaintiff’s reputation: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60-61.

Because of the plaintiff’s concession that the defence of qualified privilege has been made out with respect to all publications save those to Ms Shields, Mr McLenaghan and Ms Naylor, I am concerned to assess damages for the imputations conveyed to them in the publication of the Intent to Sanction Minute. The only imputations which I have found were carried were carried only by the Statement of Reasons.

However, even if I had found the other imputations were carried by the Intent to Sanction Minute I would not have been persuaded that the plaintiff has suffered any material harm to his reputation as a result of such publication. At the time Ms Shields received the Intent to Sanction Minute (on 9 July 2013), she was shortly to be notified of the Determination of Sanction (dated 29 August 2013). As for the two human resources experts (Mr McLenaghan and Ms Naylor), there is no evidence that they knew the plaintiff at all. From their point of view, the Intent to Sanction Minute was no more than a confidential report about an employee in respect of whom their advice had been sought about procedural and management matters.

The plaintiff was plainly aggrieved and hurt by the termination of his employment. However, this circumstance ought not to be mistaken for damage to reputation occasioned by the Intent to Sanction Minute.

I regard the harm to the plaintiff’s reputation by publication of the Intent to Sanction Minute to the three people (on the hypothetical basis set out above) as so minimal as not to warrant an award beyond nominal general damages of one dollar.

There is, in my view, no basis on which an award of special damages could be made. The publication of the Intent to Sanction Minute by Ms Pokoney had no causal relationship with the termination of the plaintiff’s employment. She was the author of the Intent to Sanction. She was not persuaded by the plaintiff’s response dated 26 July 2013 that she ought not, as delegate, terminate his employment. In so far as he will ever seek employment again (which depends on his mother’s health and life expectancy), any loss of earning capacity is as a result of his termination, not the publication of the Intent to Sanction Minute.

I note for completeness that the plaintiff sought to argue that the defendants’ publication of the matter complained of was motivated by malice or improper purpose. As no reply had been filed to the defence, it was not open to the plaintiff to seek to defeat the defence of qualified purpose by resort to allegations of malice or improper purpose. Had I considered there to be material in the evidence that would support such allegations, the question would have arisen whether the plaintiff ought to have been granted leave to amend to add a reply. However, I did not consider there to be any basis for such allegations in the material tendered. Nor was any such application made, although Mr Richardson drew the Court’s (and the plaintiff’s) attention to the fact that there was no such pleading at an early stage of the hearing when I was hearing objections to evidence and before any witnesses had been called. Accordingly, I refused to allow the plaintiff to conduct his case on that basis.

For the foregoing reasons I make the following orders: