Jay v Petrikas

1. [1]

   PAYNE JA: I agree with Griffiths AJA.

2. [2]

   KIRK JA: I agree with Griffiths AJA.

3. [3]

   GRIFFITHS AJA: These reasons for judgment are structured as follows.

4. [4]

   These proceedings are the latest chapter in a protracted and costly dispute between the applicants and the respondents, who at all relevant times were members of the NSW Rural Fire Service (RFS). In brief, the present proceeding arises from orders made in the District Court on 13 December 2022 by Abadee DCJ, in which the then plaintiffs’ claim for damages based on the tort of injurious falsehood was dismissed (see Jay v Petrikas (No 4) [2022] NSWDC 628 (primary judgment or PJ)). Subsequently, Abadee DCJ made costs orders against the plaintiffs. They were ordered to pay the defendants’ costs on the ordinary basis until 26 November 2020 and thereafter on an indemnity basis (see Jay v Petrikas (No 5) [2023] NSWDC 7 (costs judgment or CJ)).

5. [5]

   The plaintiffs’ unsuccessful claim for damages was directed to three publications made in August and September 2016, which were published internally within the RFS and recorded allegations of bullying and harassment against the plaintiffs. The allegations were then the subject of an investigation which culminated in a report dated 25 October 2017 to the RFS by an external investigator, Mr Jason Plumridge. Mr Plumridge found that there was insufficient evidence to find that either of the plaintiffs had breached the relevant RFS Service Standards.

6. [6]

   In the proceeding below, the plaintiffs sought to make good their claim for damages for injurious falsehood on the basis that the allegations against them were, to the defendants’ knowledge, demonstrably false; in pursuing the allegations, the defendants’ object was to procure a disciplinary investigation against the plaintiffs; and, to the extent that the publications focused on a local RFS meeting held on 20 July 2016, the defendants provided the investigator with a distorted record of evidence and withheld from the investigator an audio recording of that meeting which the plaintiffs claimed definitely demonstrated what was or was not said at the meeting. In support of their claim of malice, the plaintiffs pointed to the fact that the defendants had continued to deny claims made against them notwithstanding that the production of the audio recording suggested that some of the allegations against Mr Jay were false.

7. [7]

   For reasons which will be developed, the applicants require both an extension of time and leave to appeal. Those applications were heard concurrently with the appeal. I will explain below why, although the applicants’ case for an extension and leave is borderline, time should be extended and leave to appeal granted. However, the appeal should be dismissed.

Extension of time and leave to appeal

1. [8]

   The material date for the purposes of r 5.2 of the Uniform Civil Procedural Rules 2005 (NSW) (UCPR) is 13 December 2022, being the date when the Court made substantive orders in the proceeding below. Contrary to the view, which was apparently taken by the applicants’ lawyers, time did not start to run from the date of the costs judgment (see Randren House Pty Ltd v Water Administration Ministerial Corporation [2020] NSWCA 14).

2. [9]

   Leave to appeal is also required because the matter in issue did not, on its face, involve an amount of $100,000 or more (see s 127(2)(c) of the District Court Act 1973 (NSW)). The primary judge rejected the applicants’ claims for exemplary and aggravated damages and found that the only actual damage they suffered was in the amount of $3,151.50 (being an unpaid invoice for Mr Jay’s legal representation during the Plumridge investigation). In those circumstances, to appeal as of right, the applicants need to demonstrate that their claim to damages, if successful on appeal, might realistically be assessed in an amount of $100,000 or more (see Trad v Harbor Radio Pty Ltd [2010] NSWCA 41 at [15]-[19] and McMillan v Coolah Home Base Pty Ltd [2023] NSWCA 172 at [58]-[59] per Mitchelmore JA).

3. [10]

   Addressing first the issue of delay in commencing the proceeding, it may be noted that the applicants failed to provide any timely evidence explaining the delay. It was only after the Court had reserved its judgment that they provided an affidavit dated 18 August 2023 by their instructing solicitor, Mr Alan Connolly. It purported to provide an explanation for the delay. Having regard to its belated provision and the absence of leave to file the affidavit, the Court declined to take it into account. Nevertheless, time should be extended having regard to the explanation that was provided from the Bar table that the delay was occasioned by the plaintiffs’ reliance on erroneous legal advice regarding timing.

4. [11]

   As to whether leave to appeal is required, the matter is again borderline. Arguably, there is a realistic possibility that, were the appeal to succeed, and exemplary and/or aggravated damages granted, damages might be assessed in excess of $100,000. I also accept that the question of the scope of the tort of injurious falsehood is one of general principle, and the other grounds necessarily travel along with it. One of the primary issues in the proceeding is whether the primary judge erred in concluding that the tort did not extend beyond economic and/or financial interests so as to include maliciously false statements which adversely affect a person’s reputation and standing.

5. [12]

   Leave to appeal should be granted even though, as matters have developed, it is both unnecessary and inappropriate to reach a final determination on the ambit of the tort. That is because the appeal will be dismissed on other grounds.

6. [13]

   I will outline the relevant background before summarising the primary judge’s findings and reasons for dismissing the plaintiffs’ case below.

(a) Dramatis personae

1. [14]

   The first and second applicants (Messrs Graeme Jay and John Peters) are two longstanding volunteer members of the Glossodia Brigade of the RFS. At the relevant times they held the positions of Captain and Deputy Captain/President of the Brigade respectively. They are aggrieved by the allegations made against them in the three relevant publications. As has been emphasised, their claim is based on the tort of injurious falsehood and not defamation. It appears this choice of cause of action may have resulted from difficulties created by the limitation period in bringing a claim in defamation (see PJ[9]).

2. [15]

   The first to fourth respondents (Messrs Chris Petrikas, David Ryan, Ian Wedge and Superintendent Karen Hodges) were members of the Hawkesbury Rural Fire District (Hawkesbury District) at all material times. Messrs Petrikas, Ryan and Wedge were volunteer members holding officer rank whereas Superintendent Hodges was an employee of the RFS and held the higher position of District Manager for the RFS Hawkesbury District. Glossodia Brigade is one of several brigades within the Hawkesbury District. The impugned publications are documents containing allegations of bullying and harassment against the applicants which were sent to, written by, or written for one or more of the first to fourth respondents.

3. [16]

   The role of some other people should be noted at this stage, even though none is a party to the proceeding. Mr Jason Heffernan was at all relevant times the Director of Regional Services for the RFS. It was Mr Heffernan who directed Mr Plumridge to carry out an investigation into the allegations against Messrs Jay and Peters, which culminated in the 25 October 2017 report as noted above. Below him in the hierarchy was Mr Ben Watson, who was the Regional Manager for Region East. Mr Watson was Superintendent Hodges’ superior. Another member of the Glossodia Brigade at the relevant time was Mr Daniel Naethuys. Prior to mid-2016, Mr Naethuys was in a relationship with Mr Jay’s then 17 year old daughter, who was also a member of the Glossodia Brigade. Mr Naethuys figures in some of the matters which gave rise to some of the allegations of bullying and harassment against Messrs Jay and Peters.

4. [17]

   Together with the Wilberforce Brigade and Oakville Brigade, Glossodia Brigade is within the South Sector of the RFS Hawkesbury District. There is a Senior Management Team (SMT) which is responsible for reviewing proposals from brigades and providing feedback on them. The SMT is comprised of the Fire Control Officer (Superintendent Hodges), the Group Captains and Deputy Captains of each group (including the South Sector) and two elected representatives of each group. When the impugned publications were made, Mr Petrikas was the Group Captain for the South Sector and Messrs Ryan and Wedge were each Deputy Group Captains for the South Sector. The two elected SMT representatives for the South Sector were Messrs Earle and Rutter who are not parties to these proceedings but also figure in the allegations against Messrs Jay and Peters.

(b) The allegations and the impugned publications

1. [18]

   The allegations of bullying and harassment stem from:

2. [19]

   The three impugned publications are as follows (the first and second publications being comprised of substantially the same material):

   1. (1)

      First Publication: On 25 August 2016, Messrs Petrikas, Ryan and Wedge sent the following letter to their supervisor Superintendent Hodges:

   2. (2)

      Three documents attached to the letter amounted to what the primary judge called “charge sheets”, listing alleged RFS policy breaches; a statement of facts, dates and location, evidence; and a list of witnesses. Attachments A-K were the 11 individual witness statements made by other attendees of the 20 July 2016 meeting regarding the allegations.

   3. (3)

      Second Publication: This document was made on 5 September 2016 by Superintendent Hodges. It comprised a copy of the First Publication, a briefing note authored by Superintendent Hodges which was sent to Mr Watson as Regional Manager, and emails by Mr Wedge to Superintendent Hodges on 4 and 31 August 2016 regarding the allegations. The briefing note read as follows:

   4. (4)

      The email dated 4 August 2016 (at 12.16pm) from Mr Wedge to Superintendent Hodges read as follows:

   5. (5)

      For context, though not part of the Second Publication, Superintendent Hodges replied on 11 August 2016 (at 1.45pm):

   6. (6)

      Mr Wedge’s second email dated 31 August 2016 (at 7.06pm) read:

   7. (7)

      Third Publication: This was also made on 5 September 2016 and comprised the following briefing note signed by Superintendent Hodges and sent to Mr Watson (with redactions):

3. [20]

   The primary judge described the relevant context to the allegations in the Third Publication as including: Mr Jay being made aware of the sexual relationship between his daughter and Mr Naethuys; Mr Jay asking Mr Naethuys to not be part of an emergency RFS “call out” because of this relationship; Mr Peters calling Mr Naethuys and making a warning if he did not resign; and Mr Peters contacting Mr Naethuys’ mother and stepfather regarding this relationship and telling him Mr Naethuys needed to resign.

(b) The investigation by Mr Plumridge

1. [21]

   On 13 December 2016, Mr Plumridge was engaged by Mr Heffernan to investigate the allegations of misconduct made against Messrs Jay and Peters. The relevant allegations were identified as follows:

2. [22]

   The allegations against Mr Jay were further particularised as follows:

3. [23]

   The reference in para (a)(i) to the meeting of 21 July 2016 is plainly in error; the relevant meeting was on 20 July 2016. The letter referred to in para (a)(ii) was one first sent in draft form from Mr Peters to Mr Jay on 18 July 2016, containing a proposed motion of no confidence against Mr Rutter, one of the elected SMT representatives, to be tabled at the 20 July 2016 meeting (see PJ[97]-[102]). The second draft of the letter included a second proposed motion, this time against Mr Earle, the other elected SMT representative, alleging a conflict of interest. The letter in its final form is set out at PJ[107]. The letter proposed two motions for Messrs Earle and Rutter to be stood down.

4. [24]

   Mr Plumridge was also directed to investigate the following allegations against Mr Peters:

5. [25]

   On the same date (i.e., 13 December 2016), Messrs Jay and Peters were sent letters advising that an investigation had been commenced against them. Neither elected to participate in a formal recorded interview in response to the allegations Both engaged (the same) legal representation. Mr Plumridge was provided with a suite of documentation to assist his investigation, including written submissions by Mr Jay, the complaint information (the three publications), and an audio recording of the 20 July 2016 meeting. He also interviewed 16 witnesses.

6. [26]

   Mr Plumridge provided his findings in an investigation report dated 25 October 2017. No allegation was found by him to have been sustained on the evidence provided.

(c) The RFS regulatory framework summarised

1. [27]

   Drawing on the primary judge’s analysis at PJ[23]ff, it is desirable to outline the statutory and regulatory framework within which the allegations against Messrs Jay and Peters were made and processed.

2. [28]

   The Rural Fires Act 1997 (NSW) (the Act) requires rural fire districts to be established for local government areas. The Act draws a distinction between the Commissioner and other staff of the RFS as opposed to “volunteer rural firefighters”. The volunteers are defined in s 8(2) to mean:

3. [29]

   The formation of rural fire brigades is provided for in s 15 of the Act. Such brigades are not established by the RFS but by local government authorities.

4. [30]

   Section 18 of the Act provides that a rural fire brigade is to appoint as its officers persons selected in accordance with the Service Standards of that brigade. The Act provides for members of a brigade to be registered (s 20) and confers certain functions on officers (s 21). Section 19 governs the appointment of officers of a group of rural fire brigades.

5. [31]

   Turning now to the Rural Fire Regulation 2013 (NSW) (as then in force), Pt 2 provided for such matters as removal of members of brigades, including for breach of discipline (regs 7 and 9), appeals from decisions to remove members (reg 8), and appeals from disciplinary actions (reg 10).

6. [32]

   The effect of regs 9 and 10 was that Service Standards made by the Commissioner of the RFS were given legislative force in the sense that:

7. [33]

   Service Standard 1.1.2 dealt with discipline. As the primary judge emphasised at PJ[41], there is no such thing as a “disciplinary investigation”; rather the regulatory framework recognised that there could be an investigation which might, thereafter, lead to a disciplinary hearing before a disciplinary panel. Different Standard Operating Procedures (SOPs) applied to investigations of allegations (SOP 1.1.2-2) and disciplinary hearings (SOP 1.12-3). The definition of “disciplinary action” included action taken against a volunteer member of the RFS for a breach of discipline pursuant to reg 9 in relation to a failure to comply with Service Standards (Service Standard 1.1.2, para 2.1(f)(iii)).

8. [34]

   Clauses 2.8-2.11 of Service Standard 1.1.2 provided for members to raise concerns of bullying with their supervisor. Clause 2.1 provided for the steps to be taken where a supervisor received an allegation of bullying:

9. [35]

   The primary judge summarised the process concerning alleged breaches of discipline at PJ[47]:

10. [36]

    As noted above, Mr Plumridge was asked by Mr Heffernan to investigate whether the allegations against Messrs Jay and Peters involved contraventions of various Service Standards, including Service Standards 1.1.2 (Discipline), 1.1.7 (Code of Conduct and Ethics) and 1.1.42 (Respectful and Inclusive Workplace).

11. [37]

    Service Standard 1.1.2 has been summarised above. The Code of Conduct and Ethics (the Code), as subsumed within Service Standard 1.1.7, is a document totalling 22 pages. By cl 3.1 of the Code, all RFS members are required to comply with what are described as NSW RFS Values and the Code.

12. [38]

    Section 4.6 of the Code stated:

13. [39]

    Service Standard 1.1.42 (Respectful and Inclusive Workplace) included the following sections relating to bullying (emphasis in original):

14. [40]

    The primary judge described at PJ[57] the various steps required of a supervising officer who received a complaint of inter alia bullying:

(d) Previous proceedings in the Supreme Court

1. [41]

   In Supreme Court proceedings commenced on 12 October 2022, the plaintiffs sought declaratory relief concerning the RFS’s conduct during and after the investigation by Mr Plumridge. Messrs Jay and Peters alleged the investigation was improperly delayed, the RFS liaised in a manner with the investigator which affected his impartiality, the RFS breached RFS Service Standard 1.1.2 (Discipline), and acted contrary to two RFS guides to be read alongside the Service Standards. They sought a declaration that the RFS breached Service Standard 1.1.7 by not acting with “accountability”, “fairness and equity” and in accordance with “ethical decision making” (see Jay v Petrikas [2022] NSWSC 1497 at [41]).

2. [42]

   The proceedings were dismissed by Robb J on 3 November 2022 pursuant to rr 13.4 and 14.28 of the UCPR.

3. [43]

   The proceeding in the District Court claiming damages for injurious falsehood was commenced on 6 March 2019, but the hearing did not take place until 21-25 November, 30 November and 1 December 2022. It is that proceeding which gives rise to the present appeal.

4. [44]

   The parties were substantially agreed that the following issues fell to be determined below:

5. [45]

   The parties were further agreed that the four elements of the tort of injurious falsehood (which all needed to be established) were those identified as follows by Gummow J in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at [52] (Palmer Bruyn) (noting, however that the parties had different views regarding the reach of the first limb) (citations omitted):

6. [46]

   I will now summarise the primary judge’s findings in respect of each of the six issues described above, noting that the primary judgment totalled 219 pages. Accordingly, the main focus will be on those parts of his Honour’s judgment which are relevant to the appeal.

(a) Primary judgment summarised

1. [47]

   The defendants admitted that each publication conveyed various representations. At PJ[145], [156] and [202], the primary judge found that these representations had been made (the representations are summarised below under the heading Issue (3)). His Honour then found that other representations were conveyed while others were not. The primary judge’s discussion on these matters is found at PJ[145]ff; [156]ff and [202]ff.

2. [48]

   This issue related to the first element of Gummow J’s test in Palmer Bruyn, which the primary judge concluded had not been established. In so concluding, the primary judge rejected the plaintiffs’ submission that the tort of injurious falsehood extended beyond protecting economic interests and applied to persons who were volunteers, such as the plaintiffs.

3. [49]

   The plaintiffs had pleaded the three publications concerned them “in connection with their profession as members of the New South Wales Rural Fire Service”. They acknowledged that there was a question of whether, in the absence of a “profession”, the tort would extend to them.

4. [50]

   The primary judge considered various authorities on the question whether the tort of injurious falsehood extended as far as that claimed by the plaintiffs, including Palmer Bruyn and Ballina Shire Council v Ringland (1994) 33 NSWLR 680 (Ballina SC). In Ballina SC, Gleeson CJ noted at 693B that some commentators (including Professor John Fleming) had supported an expansive view of the tort as not being confined to disparagement of property or business. Reference was made to an example given by Holt CJ in Anon (1706) 11 Mod Ref 99; 88 ER 921 of the tort applying in circumstances where a person falsely and maliciously wrote to the plaintiff’s fiancée, claiming that the woman was his own wife, thereby causing her to lose her prospective marriage.

5. [51]

   In Ballina SC, Kirby P described the essence of the tort at 711E as an:

6. [52]

   In Palmer Bruyn at [60], Gummow J said it was unnecessary to determine whether the damaging falsehood interfered with a “prospective advantage, even of a non-commercial nature”, where the publication concerned the conduct of the “business or profession” of the appellant in that case.

7. [53]

   In support of their claim that the tort applied to them, the plaintiffs relied heavily on the approach of EM Heenan J at first instance in Noye v Robbins & Crimmins [2007] WASC 98. Mr Noye was a sergeant in the WA police. A false statement was made by Ms Crimmins against Mr Noye, and Mr Robbins relied on the statement to bring criminal and disciplinary charges against Mr Noye. EM Heenan J held that the tort could protect Mr Noye in these circumstances, with the falsehood reflecting adversely upon his “professional, occupational commercial standing and interests” and affecting Mr Noye’s “reputation and standing as a police officer”. No limitation was placed on the subject matter of the false statement (at [82]).

8. [54]

   Abadee DCJ viewed Noye as not binding, insofar as it did not consider relevant authority (i.e., Palmer Bruyn and Ballina SC) and his Honour viewed the tort’s extension to “any statements” as merely an obiter observation.

9. [55]

   The primary judge also drew attention to the expression “not to deal with” (used by Professor Fleming in saying the tort was directed to statements “calculated to induce others not to deal with the plaintiff”) as used by Beazley JA in Hamod v NSW [2011] NSWCA 375 (at [692]). His Honour considered this phrase refers to the “infliction of injury of an economic kind”. Thus, at PJ[272]:

10. [56]

    The primary judge agreed with the observation in Noye at [280] that the representation must “‘reflect adversely upon his or her professional, occupation or commercial standing and interests’ to the extent that these reflect the plaintiff’s economic interests” (at PJ[277]). His Honour said that the plaintiffs “presented no argument as to why the scope of protection for the tort should be extended beyond protection of economic interests”. Furthermore, they did not plead, nor seek to prove, that (at PJ[282]) (emphasis in original):

11. [57]

    The primary judge saw the term “occupation” as connoting economic, not recreational activities. But the primary judge found that the RFS had no system that a profession would usually have of formal qualifications or accreditation. His Honour regarded the position of volunteer members of the RFS as distinguishable from Noye, where the police officer, if sanctioned by dismissal given the false representation, would have lost his full-time remunerative employment (at PJ[288]).

12. [58]

    The primary judge also saw as significant the fact that the circulation of the impugned publications was internal to the RFS and caused no harm to the plaintiffs’ economic interests (including to their positions of paid employment held outside of their RFS voluntary roles). To the extent that there was a complaint regarding the plaintiffs’ reputations within the RFS, this was viewed as the province of the law of defamation.

13. [59]

    Accordingly, the primary judge held that the first element of Gummow J’s test had not been made out. For completeness, however, his Honour proceeded to determine the remaining issues.

14. [60]

    At PJ[458], the primary judge found the following representations to be false:

15. [61]

    Relevantly, the primary judge found that the following separate representations were not false (those findings are challenged on appeal):

    1. (1)

       The defendants did not falsely represent that Mr Jay’s behaviour at the 20 July 2016 meeting amounted to bullying. This was because Mr Jay had reviewed drafts of Mr Peters’ letter which proposed the motions of no-confidence against Messrs Earle and Rutter. The plaintiffs were involved “in a scheme to ambush” these two SMT representatives without giving them notice. This behaviour involved “unreasonably heaping humiliation” on Messrs Earle and Rutter and potentially might have caused risk to their health. This satisfied the notion of “bullying” for the purposes of the Service Standards.

    2. (2)

       The defendants did not falsely represent that Mr Jay lied at that meeting and was dishonest. This was because the evidence revealed that Mr Jay lied when he told the participants at the meeting that he had no idea of the contents of Mr Peters’ letter.

    3. (3)

       The defendants did not falsely represent that Mr Jay breached the RFS Code relating to a “Respectful and Inclusive Workplace”. This was because Mr Jay failed to prove the falsity of the fact that he lied when he told the participants at the meeting that he had no idea about the contents of Mr Peters’ letter.

    4. (4)

       The defendants did not falsely represent that Mr Peters’ letter was known to Mr Jay to be libellous. This was because Mr Jay’s evidence was “disingenuous” (the primary judge had explained earlier at PJ[328] why he had formed adverse views as to Mr Jay’s credibility and reliability). The audio recording confirmed that Mr Jay insisted that the letter was read out.

    5. (5)

       The defendants did not falsely represent that Mr Peters falsely accused Messrs Earle and Rutter of being unfit to be SMT representatives. This was because neither the text nor the motions claimed that they were unfit to represent South Group. “Unfitness” carries with it a broad meaning, including the notion of an inability to discharge the responsibilities of a position or unsuitability. It was not false to represent that the matters raised against Messrs Rutter and Earle related to unfitness when viewed through the perspective of a reasonable person in the position of Superintendent Hodges.

    6. (6)

       Having regard to those findings, the defendants did not falsely represent that Mr Peters had breached Service Standard 1.1.42 or the Code.

    7. (7)

       Superintendent Hodges did not falsely represent that Mr Jay made a false report as regards the operational incident involving Mr Naethuys or supply false information in relation to that operational incident. This was because Mr Jay was involved in making inconsistent reports about whether or not Mr Naethuys was present on the truck which attended that operational incident.

    8. (8)

       For similar reasons, Superintendent Hodges did not falsely represent that Mr Jay breached the Code by supplying false information relating to that operational incident.

    9. (9)

       Superintendent Hodges did not falsely represent that Mr Peters had reported to others that Mr Naethuys had resigned. This was because Mr Peters reported that Mr Naethuys was intending to resign, knowing well that Mr Naethuys had no such intention.

    10. (10)

        Superintendent Hodges did not falsely represent that Mr Peters had attempted to procure Mr Naethuys’ resignation from the Brigade in circumstances where he did not want to resign. This was because Mr Peters communicated with Mr Naethuys and others (including his mother, stepfather and employer) to persuade him to resign.

    11. (11)

        For these reasons, Superintendent Hodges did not falsely represent that Mr Peters had bullied and harassed Mr Naethuys.

16. [62]

    The plaintiffs accepted below, as they did on appeal, that the issue of malice should be looked at from the perspective of the three publications separately, but viewing each publication itself as a whole, as opposed to deciding whether each false representation, as found, was malicious. The primary judge found that none of the false representations was relevantly malicious.

17. [63]

    The primary judge summarised at considerable length from PJ[461] to [545] the parties’ submissions on malice. His Honour noted at PJ[548] that the parties agreed “that the overriding question for determining whether false representations were malicious was whether the publishers were actuated by improper purpose in publishing them”.

18. [64]

    In addressing the question of malice, the primary judge identified what he described as the following “recurring general points”:

19. [65]

    Having regard to the significance of the question of malice in the appeal (primarily because, for the appeal to succeed, the appellants must establish appellable error in the primary judge’s analysis and findings regarding this question), it is desirable to say a little more about each of those six points.

20. [66]

    The first point concerns the process for investigating complaints of breaches of discipline. The primary judge acknowledged at PJ[550] the importance of RFS members being given the right to complain about another RFS member’s breach of discipline in circumstances where discipline is a very important quality for the effectiveness of the RFS’s work. It was within the context of this disciplinary framework that the primary judge found that the original complainants passed on their complaints of bullying and harassment to their supervisors, being the first, second and third defendants respectively. Those supervisors then acted in accordance with their rights to make allegations about breaches of discipline under Service Standard 1.1.2. In turn, Superintendent Hodges exercised her discretion under the regulatory framework to refer the allegations to Mr Watson, her superior (who in turn passed the allegations to Mr Heffernan). As noted previously, Mr Heffernan then engaged Mr Plumridge to conduct an independent investigation in accordance with Service Standard 1.1.2. The primary judge explained at PJ[554] why he considered that the actions of the first, second and third defendants in passing on the complaints to Superintendent Hodges did not arise from “personal ill-feeling” against the plaintiffs, but partly from a sense of responsibility to persons who had contacted them regarding the 20 July 2016 meeting and partly because of their own belief that disciplinary processes (incorporating an investigation) should be deployed.

21. [67]

    As to the second point (context of complaints), although the primary judge accepted that for historical reasons there was ill-feeling and ill-will from all the defendants towards Mr Jay, ill-will alone was insufficient to ground a finding of malice (see PJ[557]). His Honour then stated at PJ[562]:

22. [68]

    Another relevant aspect of context relates to the primary judge’s finding at PJ[565] that, notwithstanding that in the Third Publication Superintendent Hodges described certain provisions of the Service Standards and the Code as having been breached, those descriptions would have been viewed by Mr Watson as the expression of Superintendent Hodges’ opinions and not as though they were written by a lawyer.

23. [69]

    The third point relates to the identities of the publishers and publishees. In assessing the plaintiffs’ claims, the primary judge viewed as significant the status of the defendants and their respective roles under the RFS complaints and investigation framework, together with the status and roles of people such as Messrs Watson and Heffernan under that framework (see PJ[562]-[564]).

24. [70]

    The fourth point relates to the nature of the representations which the primary judge found to be false.

25. [71]

    The primary judge found at PJ[568] that the first two representations which he found to be false (both of which related to things that had occurred at the 20 July 2016 meeting) were in the nature of opinion. His Honour explained that the only reason why he found that these two particular representations were false was because the reason advanced for the opinion, or premise, was not established in either case. His Honour was not persuaded that there was an absence of belief on the part of the first, second and third defendants that Mr Jay had acted in a bullying way. Moreover, he found that there was evidence which supported their belief that Mr Jay had engaged in such conduct (see PJ[572]).

26. [72]

    As to the other two representations which the primary judge found to be false (namely Mr Jay having bullied and threatened Mr Naethuys and Mr Peters disclosing details of a confidential investigation to third parties), the primary judge found that the first of those false representations was “a half-truth” because there was an arguable basis for saying Mr Jay did bully Mr Naethuys, and he was not persuaded that there was malice (see at PJ[573]-[574]).

27. [73]

    As to the false representation concerning Mr Peters’ disclosure of the confidential investigation to third parties, the primary judge accepted that Superintendent Hodges republished that representation, but in circumstances where she did not know of its falsity and was not required to go behind the information she received from Mr Wedge (see PJ[576]). The primary judge also found that Mr Peters did in fact disclose information which he ought to have kept confidential and that Mr Peters’ actions in disclosing information to third parties involved “a deal of hypocrisy” (see PJ[578]).

28. [74]

    The fifth point relates to the nature of the falsehoods in the four representations which were found to be false. This point is adequately covered by my summary of the primary judge’s discussion of the previous four points.

29. [75]

    Finally, the primary judge addressed the plaintiffs’ reliance on the principle in Jones v Dunkel (originating in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8), a matter to which I will return below.

30. [76]

    Against the background of the six “recurring general points”, the primary judge addressed the questions whether the false representations which he had found had been made in the First and Second Publications were made maliciously. It will be recalled that these two representations were that Mr Jay:

    1. (1)

       bullied or intimidated other attendees at the 20 July 2016 meeting by raising his voice in an aggressive manner; and

    2. (2)

       was deliberately disruptive of that meeting because he ignored demands to speak in a calm manner.

31. [77]

    In concluding that these representations, although false, were not made maliciously, the primary judge emphasised that the representations were merely opinions and he explained that the only reason why they were determined to be false was because no reason had been advanced to support those opinions. The primary judge was not persuaded that the failure to provide the investigator, Mr Plumridge, with the audio recording of the impugned meeting demonstrated malice. His Honour reasoned that it was plausible that the existence of the recording was honestly forgotten given that the normal practice was to delete such recordings.

32. [78]

    The primary judge was not persuaded that the first to third defendants did not believe that Mr Jay had acted in a bullying manner. Such a belief was supported by the many complaints made by other participants at the 20 July 2016 meeting Though these complaints might have been exaggerated or overstated, it was “another thing to say that they were not honestly held” (at PJ[572]). The first to third defendants were not in a position to censor these complaints nor impede the right of the meeting participants to make the complaints.

33. [79]

    As to the third false representation (that Mr Jay had bullied and threatened Mr Naethuys), the primary judge described this as a “half-truth”. Superintendent Hodges had conflated a threat or range of threats that Mr Peters had made against Mr Naethuys with Mr Jay’s behaviour. While this might have been “clumsily summarised”, his Honour was not persuaded that this was malicious.

34. [80]

    The fourth and final false representation as found by the primary judge was that Mr Peters disclosed to third parties details of a confidential investigation into Mr Naethuys’ conduct. His Honour found that it was Mr Wedge who initially made this representation but it was republished by Superintendent Hodges. The primary judge found that Superintendent Hodges was not aware of the falsity of the representation and her republication of it did not involve malice.

35. [81]

    The plaintiffs submitted below that Jones v Dunkel inferences should have been drawn from the defendants’ election not to give evidence in respect of several matters, especially as regards the 20 July 2016 meeting. The primary judge considered Jones v Dunkel was not engaged, and even if it were, it could not “plug gaps” in Mr Jay’s case. His Honour concluded that the defendants had the benefit of a presumption of honesty and there was no substance in the plaintiffs’ case which sought to rebut that presumption.

36. [82]

    The claims of actual damage related to the appellants’ legal costs concerning the investigation carried out by Mr Plumridge, amounting to:

    1. (1)

       legal fees totalling $8,116.90 claimed by Mr Jay; and

    2. (2)

       legal fees totalling $25,193.30 claimed by Mr Peters.

37. [83]

    In responding to a request for further and better particulars as to how the legal fees incurred were a natural and probable consequence of the publications, being allegedly false and malicious in nature, the plaintiffs answered:

38. [84]

    Citing Palmer Bruyn at [136], the primary judge affirmed that actual damage was the gist of the tort of injurious falsehood; actual harm is not constituted by injury to reputation or feelings. The resulting actual damage must have “been intended by the defendant or be the natural and probable consequence of the defendant’s act”. “Intention” may be inferred by the Court. There was no need to prove that the loss or damage was reasonably foreseeable (Palmer Bruyn at [78]-[79]). Finally, moral and intellectual damage would not suffice.

39. [85]

    The primary judge determined that the issue of causation had to be dealt with first. Although actual damage might have been sustained, the plaintiffs had the burden of proof in establishing a causal connection between the malicious false statements and the actual damage. This required the plaintiffs to demonstrate that the false representations “were material to the decision to investigate and the scope of that investigation”.

40. [86]

    The primary judge was not persuaded that, but for the existence of the First and Second Publications, the Plumridge investigation would not have occurred.

41. [87]

    Nor was the primary judge persuaded that the two false representations in the Third Publication were causative of the Plumridge investigation. Those representations were that Mr Jay bullied or threatened Mr Naethuys and Mr Peters disclosed the fact and subject of the confidential investigation into Mr Naethuys to third parties. As to the former, the primary judge was not persuaded that the falsity (being the absence of proof of any threat by Mr Jay to Mr Naethuys) had such a material effect upon Mr Heffernan in his decision to retain Mr Plumridge to conduct the investigation.

42. [88]

    As to the third and fourth false representations, although the primary judge was satisfied that Mr Peters disclosed the confidential information to third parties, his Honour was not persuaded that it was only because of that false representation that Mr Heffernan initiated the external investigation.

43. [89]

    In addressing the issue of remoteness, the primary judge addressed the two alternatives in Palmer Bruyn, namely whether the actual damage was “intended” or, alternatively, was that damage the “natural and probable” consequence of the defendants’ conduct.

44. [90]

    The primary judge was not persuaded that any of the defendants intended the plaintiffs to incur legal costs. As to legal costs being a “natural and probable consequence” of the defendants’ actions, the primary judge considered it was “simply a question of objective assessment by the Court” as to whether:

45. [91]

    In addressing both these matters, the primary judge viewed as significant the differences in procedure under the Service Standards between investigations and the possibility of subsequent disciplinary action. Relevantly, under those procedures, an investigator can report that the person the subject of the inquiry has a case to answer (wholly or partly) or does not have a case to answer. Alternatively, where it is concluded that a person has a case to answer, the appointing officer has a choice of whether the matter should be dealt with as a breach of discipline.

46. [92]

    Although the primary judge acknowledged that a person the subject of such an investigation has a choice whether or not to seek legal advice in the course of such an investigation, this was viewed as entirely a matter for them. Thus, any decision to obtain legal advice was not a natural or probable consequence of the commencement of an investigation. Although the Service Standards expressly provided for legal representation in proceedings before a disciplinary panel, there was no comparable right during the course of an investigation. The primary judge reasoned that it was less natural or probable that the plaintiffs would decide to engage lawyers to act at the investigation stage, nor did they adduce any evidence to show that there was a practice of involving lawyers at that stage.

47. [93]

    Finally, the primary judge found that there was no relevant aspect of the plaintiffs’ individual personalities which made it more natural or probable that they would seek legal representation and incur legal costs during the course of the investigation.

48. [94]

    The plaintiffs submitted below that, by reason of the matters and circumstances alleged, they had “been greatly injured in their character and credit and in their personal, business professional reputation and had been brought into public hatred, ridicule and contempt”. These claims were rejected by the primary judge, who found that there was no entitlement to aggravated damages because there was no reputational loss. As to exemplary damages, the primary judge was “not persuaded that any of the defendants acted consciously with contumelious disregard for the plaintiffs’ rights” (at PJ[698]). On the contrary, it was significant that the publications were confined to a narrow class of recipients and the defendants believed in good faith that they were carrying out their rights, roles and functions under the Service Standards.

49. [95]

    In entering judgment for the first to fourth defendants, the primary judge summarised his conclusions at PJ[703] as follows:

(b) Costs judgment

1. [96]

   The primary judge ordered the plaintiffs to pay the defendants’ costs of the proceeding (at CJ[36]):

   1. (1)

      up to and including 26 November 2020, on the ordinary basis; and

   2. (2)

      from 27 November 2020, on an indemnity basis (based on the plaintiffs’ failure to accept two offers of compromise).

Appeal

1. [97]

   The draft notice of appeal filed on 28 April 2023 raised 12 proposed grounds of appeal. They may conveniently be divided into the following three broad categories:

   1. (1)

      Grounds 1-8: these grounds concern the primary judge’s findings on the ambit of the tort of injurious falsehood, the falsity of the representations made in the publications, and the failure to give weight to the fact that the defendants did not give evidence.

   2. (2)

      Grounds 9-10: concerning whether the representations in the impugned publications were made maliciously and the failure to give weight to the fact that the defendants did not give evidence when the primary judge made findings as to their intentions and knowledge in publishing false representations.

   3. (3)

      Grounds 11-12: concerning the primary judge’s findings that the publications did not cause actual damage and his Honour’s assessment of aggravated and exemplary damages.

2. [98]

   On 22 May 2023, the respondents filed a notice of contention which claimed that, contrary to the primary judge’s finding that actual damage could be constituted by the debt jointly and severally incurred by the plaintiffs for their legal costs, the plaintiffs should fail because they had not suffered actual damage.

3. [99]

   As previously noted, the parties were agreed that all four elements of the test prescribed by Gummow J in Palmer Bruyn had to be established for the appellants to succeed. One of those elements requires malice to be proven. Thus, the appeal must fail if the appellants cannot establish appellable error in respect of the primary judge’s finding that the defendants did not maliciously publish any false representations in the impugned publications. In those circumstances, I shall turn immediately to that part of the appeal, with the remainder of these reasons structured as follows:

(a) Were the respondents actuated by malice in publishing the four false representations?

1. [100]

   The appellants contended that the primary judge erred by not finding that each of the respondents was “actuated by an improper purpose” which amounted to malice in making the four false representations because:

2. [101]

   In support of these claims, the appellants submitted that, for the purposes of the tort of injurious falsehood, malice is established if a person publishes a statement knowing it to be false, or with reckless indifference as to whether it is true or false (citing Noye). They also submitted that malice is apparent where the publication has been made for an improper motive or purpose. Relying on Noye (at [739]-[740]), they contended that to “pass on allegations for a variety of motives and purposes some of which include to cause harm to the plaintiffs in their profession is to act with malice”.

3. [102]

   The appellants furthered submitted that, absent a satisfactory explanation for a representation, malice can be inferred if, on the primary facts proved, it is unreasonable to hold a belief in the truth of the relevant statements (citing Trobridge v Hardy (1955) 94 CLR 147 at 164; [1955] HCA 68 per Kitto J).

4. [103]

   The appellants also contended that if they persuaded this Court that the primary judge should have found that more of the representations were false then it “would not have been open to the primary judge to fail to find that each false representation had been made with malice”. Otherwise, counsel for the appellants was content to rely upon his predecessor’s written submissions in support of grounds 9 and 10.

5. [104]

   There was substantial agreement between the parties regarding the principles to be applied in considering malice. The principles as identified by the defendants below were outlined by the primary judge at PJ[461] as follows (footnotes omitted):

6. [105]

   During the hearing of the appeal, counsel for the appellants was asked whether he accepted this statement of the relevant principles, to which he responded they were “mostly right”. Counsel identified two qualifications. The first qualification related to principle (a). Counsel submitted that authorities dealing with the question of malice in the context of other torts may shed light on the concept of malice in injurious falsehood. Reference was made to Kitto J’s observations in Trobridge in this regard.

7. [106]

   The second qualification related to principle (d), namely that there is a presumption that a publisher acts with a proper purpose and that this presumption can be overcome if a plaintiff establishes that there was “a predominantly improper motive”. Counsel did not contest the correctness of that principle but rather said that it was incomplete because “the circumstances can arise where a defendant is called upon to justify their conduct, or risk having the presumption fall away”, again relying upon Trobridge.

8. [107]

   Focusing for the moment on the four representations the primary judge found to be false, the appellants have failed to establish any error in the primary judge’s reasons or findings for concluding that malice had not been established. In particular, no error has been established regarding the reasoning summarised at [62]-[81] above. The respondents correctly submitted that the appellants had failed to engage with the evidence, the submissions or the finding, nor did they confront the difficulty posed by their claim that the false representations were published by the defendants for an improper purpose in circumstances where honesty of purpose is presumed and the appellants carried the onus of displacing that presumption.

9. [108]

   Something more should be said about Trobridge, upon which the appellants placed heavy reliance. Trobridge involved claims for damages against a police officer for trespass to the person and false imprisonment. As Fullagar J observed at 152, the plaintiff might also have sued for malicious prosecution but did not do so. The case turned on the operation of a statutory provision which stated that no action should lie against inter alia a police officer in carrying out the provisions of the Police Act 1892-1953 (WA) unless “there is direct proof of corruption or malice”. It was in this particular statutory context that Kitto J made the observations at 163 which are relied upon by the appellants here. Those observations were directed to what Kitto J described as the “direct” and “indirect” routes of establishing malice. He described the direct method of proving malice with reference to the example of a case of malicious prosecution and the evidence directly demonstrating that the prosecution was brought for an improper motive. His Honour said that:

10. [109]

    Kitto J contrasted this with the “indirect” route of proving malice where there is no direct evidence of improper motive. There may, for example, be evidence which shows that the defendant in an action of malicious prosecution had no reasonable or probable cause for bringing the prosecution. In such a case, if the fact finder considers that it is more probable than not that a prosecutor lacked a belief in the guilt of the accused, they may be justified in concluding that the prosecution was not instituted from a genuine desire to serve the ends of justice and, absent a satisfactory explanation, may find that the prosecutor was actuated by an improper motive.

11. [110]

    The appellants relied upon Kitto J’s obiter observations in Trobridge in support of the proposition that, if on the primary facts proved, a belief in the truth of the statements would be unreasonable, it is open to a tribunal of fact to infer malice in the absence of any satisfactory explanation.

12. [111]

    Assuming, without deciding, that these obiter observations have some relevance to the tort of injurious falsehood, for the following reasons I do not consider that they assist the appellants’ case. First, I am not persuaded that the appellants have established primary facts which demonstrate that it was unreasonable for the respondents to believe the four relevant representations may have been true, even though the primary judge found these particular representations to be false.

13. [112]

    The first to third defendants were at the 20 July 2016 meeting, and their complaints as to Mr Jay’s conduct (the first two false representations) at the meeting were said to be “opinions”. Falsity was found on the basis that the reasons or premise advanced for both was not established as summarised at [71] above. That these were “opinions”, however, does not detract here from the reasonableness of holding these beliefs. These opinions were corroborated by the other complainants who had attended the relevant meeting. It is not to the point that these opinions may have been wrong. Furthermore, the first to third respondents were purporting to exercise their rights and responsibilities, as Group Captain and Deputy Captains, to make allegations of breaches of discipline under Service Standard 1.1.2.

14. [113]

    As for the reasonableness of Superintendent Hodges republishing the third and fourth false representations, that Mr Jay bullied and threatened Mr Naethuys and that Mr Peters disclosed confidential information about the investigation into Mr Naethuys to third parties, Superintendent Hodges was neither at the 20 July 2016 meeting nor involved in the controversy regarding Mr Naethuys’ actions. Her knowledge of the complaints arose by dint of her functions and responsibilities under the Service Standards (in particular cl 2.1 of Service Standard 1.1.2-2). Though it may have been clumsy to attribute “threatening” behaviour to Mr Jay when it was Mr Peters who had threatened Mr Naethuys, I do not see it as unreasonable that she conveyed the allegations in the manner she did, in light of her responsibilities, irrespective of their veracity. I agree with the primary judge’s observation that a Court should be slow to infer malice where the relevant disciplinary framework envisaged this course of action (see PJ[562]).

15. [114]

    In the First Publication, the first three defendants expressed no concluded view, one way or the other on the veracity of the allegations. Rather, the allegations and supporting material were passed on to Superintendent Hodges for review and further action. The Second and Third Publications, authored by Superintendent Hodges, contain some language which suggests that she had concluded that there had, in fact, been breaches of the Service Standards, but, like the primary judge, I do not regard that particular language as decisive when the documents are viewed as a whole. Read fairly, and appreciating that the language is not that of a lawyer, the documents indicate that Superintendent Hodges was not expressing any concluded views, but was passing the matters on to Mr Watson for further action. There are also references in the documents to the allegations needing to be proven, which is significant.

16. [115]

    Secondly, even in the absence of any direct evidence from the respondents, I consider that the primary judge gave adequate and acceptable reasons why no inference of malice should be drawn from the fact that the four representations were false (see PJ[459]-[581]). The history of ill-feeling or ill-will which the primary judge found existed between some or all of the respondents and the appellants does not equate to malice, particularly given the role and functions of each of the respondents under the Service Standards. As Callinan J stated in A v State of NSW (2007) 230 CLR 500; [2007] HCA 10 at [187] (with reference to the evidence of proof of malice in a malicious prosecution case):

17. [116]

    Thirdly, in oral address, counsel contended that by adopting the allegation that Mr Jay had engaged in bullying and harassing behaviour and putting that allegation forward “as true”, Superintendent Hodges had to have known that the allegations were untrue. A similar submission was made in respect of Mr Peters. Counsel submitted that the falsehood “cries out for explanation” and, absent an explanation from Superintendent Hodges as to why she acted as she did, “the proper inference is that it had to have been done maliciously”. The appellants have failed to demonstrate why it is that Superintendent Hodges (or, indeed, the other three respondents) had to have known that the four representations regarding the conduct of Mr Jay and Mr Peters were untrue. Under the Service Standards, none of the respondents was required to form a personal view, one way or the other, as to whether the complaints were in fact true. Instead, each had to form a view as to how the handling of the complaints should proceed, including whether or not to refer the complaints further up the chain of command if that was an appropriate course in the circumstances.

18. [117]

    Fourthly, as I have previously indicated, no appellable error has been established in relation to the primary judge’s assessment of the particular language used by Superintendent Hodges in her Briefing Notes, which was the language of a non-lawyer. Thus no inference can reasonably be drawn from the text of those Briefing Notes to the effect that Superintendent Hodges had personally determined that the allegations were either true or false. Rather, both she (and the other respondents) acted in a way which was consistent with the procedures for handling such complaints under the Service Standards.

19. [118]

    Finally, nothing of what I have said above is intended to suggest that the separate element of malice in the tort of injurious falsehood cannot be demonstrated by the drawing of inferences in an appropriate case. Rather, the circumstances here did not provide an adequate foundation for drawing such an inference.

20. [119]

    Insofar as the appellants contend that the issue of malice needs to be considered not only with respect to the four representations which the primary judge found to be false, but also to additional representations which they contended on appeal are also false, there is no need to address that submission in circumstances where, as will shortly emerge, the appellants’ appeal grounds relating to falsity will also be rejected.

21. [120]

    For these reasons, ground 9 is rejected. I will now address ground 10, which is related to ground 9, and concerns the principle in Jones v Dunkel.

22. [121]

    The appellants contended that the primary judge erred by not giving weight to the failure of the respondents to give evidence when making findings regarding intention and knowledge in publishing the false representations. They submitted that, in these circumstances, this Court should infer that the false representations were made with malice. After emphasising that the respondents’ knowledge and state of mind were matters uniquely within the respondents’ province, the appellants submitted that the primary judge ought to have found that the evidence of each of the respondents regarding their states of mind at the relevant times would not have assisted their case. They added that the respondents’ decision not to give evidence involved an election on their part to provide no explanation for the publications.

23. [122]

    It is not clear from the appellants’ oral or written submissions whether they place reliance on the first or second limbs of Jones v Dunkel or both (the two limbs are described by Kirk JA in Ling v Pang [2023] NSWCA 112 at [21]-[29]). Where the first limb applies, it permits an inference to be drawn, not that evidence not called by a party would have been adverse to the party, but rather that it would not have assisted the party (see Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [64]). Where the second limb applies based on the available evidence, the Court may more confidently draw an inference which is unfavourable to the party who failed to call a witness if that witness was in a position to cast light on whether or not the inference should be drawn.

24. [123]

    Assuming for the sake of argument that the appellants relied upon both limbs, the fundamental problem with their reliance on Jones v Dunkel is that neither limb operates to permit parties to bridge the gaps in the evidence. As Ward JA said in RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270 at [161] (Meagher JA agreeing at [29]) (citation omitted):

25. [124]

    Moreover, as French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ stated in Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [165], a Jones v Dunkel inference may only be drawn where there is prima facie evidence supporting as much:

26. [125]

    The appellants have not established any appellable error in the primary judge’s reasons for rejecting their reliance on the principle in Jones v Dunkel at PJ[579] and [580]:

27. [126]

    For these reasons, ground 10 is rejected.

28. [127]

    The rejection of the appellants’ case regarding malice is sufficient to dispose of the appeal as a whole (particularly given that the appellants’ claim that additional representations were false will also fail). For completeness, however, and although it is strictly unnecessary to do so, I would make the following observations on the remaining grounds of appeal.

(b) Did the primary judge err in not finding 13 additional representations were false?

1. [128]

   As noted above, the primary judge found that only four of the 45 plaintiffs’ pleaded representations were false (some of which were abandoned during the hearing below). On appeal, the appellants claimed that the primary judge erred in not finding 13 additional representations in the impugned publications were also false (one additional representation being withdrawn during the appeal hearing).

2. [129]

   The 13 representations which the appellants claim were false are as follows:

3. [130]

   The appellants also contended that the primary judge erred in his findings on falsity by not considering or giving weight to the failure of the respondents to give evidence.

4. [131]

   For the following reasons, I would reject the appellants’ claims of error. For convenience, I will group some of the representations together, as did the appellants’ counsel in oral address. It might also be noted that counsel was largely content to rely on his predecessor’s written submissions on these matters, in circumstances where those submissions totalled 36 pages, which far exceeds that permitted by the practice note.

5. [132]

   Counsel for the appellants said that he relied on the same oral submissions for representations (i) to (iii).

6. [133]

   Representation (i) related to the primary judge’s reasoning at PJ[364]-[374]. PJ[364]-[372] comprised the primary judge’s summary of the parties’ submissions. PJ[373]-[374] reflect the primary judge’s consideration of the representation that Mr Jay lied about the 20 July 2016 meeting:

7. [134]

   The appellants’ criticism of the primary judge’s finding that representation (i) was not false turned largely on the primary judge’s assessment of the fact that the audio recording of the meeting did not record Mr Jay expressly saying that he had no idea of the contents of Mr Peters’ letter (see PJ[373]).

8. [135]

   His Honour also took into account that Mr Jay gave an affidavit dated 11 November 2020 in which he verified the truth of the allegations in the statement of claim, including the pleading that he did not know about the contents of Mr Peters’ affidavit which was contradicted by evidence that he had reviewed drafts of the letter. Moreover, Mr Jay gave evidence in which he accepted that it was possible that during the meeting he did say something along the lines claimed. Although no such statement was recorded on the audio recording, the primary judge described this as not being conclusive because there were breaks in the audio recording and Mr Jay may have made the statement during such a break (at PJ[373]). I respectfully agree with the significance the primary judge attached to these matters.

9. [136]

   The second aspect of the representation relates to the primary judge’s finding that Mr Jay lied because in fact it was he who had given the letter to Mr Eather (who was another member of the Glossodia brigade). Mr Jay’s denial of this matter was rejected by the primary judge based upon his adverse credit findings made against Mr Peters and Mr Eather and his view that Mr Jay was the “natural candidate” to have provided the letter to Mr Eather (see PJ[374]). Having regard to the principles in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [41] and [93], there is no reason to doubt those findings. As previously noted, the primary judge made a strong adverse credit finding against Mr Jay personally. The impugned findings are not “glaring improbable” or “contrary to compelling inferences” (see Fox v Percy at [29]).

10. [137]

    There is also a more fundamental problem with the appellants’ challenge to the primary judge’s findings at PJ[373]. As was pointed out at the hearing of the appeal, this particular paragraph is not challenged in the appellants’ statement under r 51.36(2) of the UCPR. The challenge to the finding at PJ[374] relates to a different point.

11. [138]

    As to the challenge to the primary judge’s finding at PJ[377] that the representation that Mr Jay was dishonest was not false, his Honour’s reasons in that paragraph make clear that this conclusion flowed from his Honour’s reasons for finding that representation (i) was not false. That necessarily picks up the primary judge’s reasoning at PJ[373] regarding the significance of Mr Jay having provided a verifying affidavit, his oral evidence of the possibility that he may have said something along the lines represented at the meeting, and the inconclusive nature of the audio recording. I respectfully agree with that reasoning. The appellants have failed to demonstrate any appellable error in respect to it. The primary judge’s finding that Mr Jay gave oral evidence “of the possibility that during the meeting he did say something along the lines represented was very significant”, was supported by that part of Mr Jay’s cross-examination when, after it was put to him that he did say something along the lines represented, he responded “[w]ell I guess anything’s possible Mr Richardson, but I don’t – I certainly don’t recall doing it and I don’t believe I did…”.

12. [139]

    Turning now to representation (iii) that Mr Jay had breached the Service Standard and the Code, and the challenge to the primary judge’s findings at PJ[393]-[395] that the representation was not false, the appellants relied upon the same submissions as they did for the first two representations. The rejection of those submissions necessarily means that the appellants have failed to establish any appellable error in respect of representation (iii).

13. [140]

    The appellants also criticised the primary judge for not making a Jones v Dunkel inference regarding representations (i) and (ii). For reasons given above, there is no substance in that complaint. The primary judge was correct to conclude at PJ[579] that Jones v Dunkel had no application to fill gaps in the appellants’ case where they carried the burden.

14. [141]

    Whether or not a statement is libellous is a different question from whether a statement is true. The primary judge made clear that he was not applying a technical interpretation of the word “libellous” in materials which were provided to Superintendent Hodges. The use of that word was not intended as an expression of legal opinion regarding the law of libel. Instead, the primary judge adopted the commonly understood meaning of “libellous”, being a statement, which tends to cause people to think less of another person (at PJ[360]). I accept the respondents’ submission that the appellants have failed to identify any error in this approach.

15. [142]

    In their outline of written submissions at [53]-[57], the respondents provided additional reasons why no appellable error has been demonstrated in relation to these two particular representations. I accept those submissions.

16. [143]

    In their outline of written submissions, the appellants did not address any particular contentions relating to this matter, apart from repeating what they said regarding the two previous representations relating to libel. Those submissions having been rejected; it necessarily follows that this aspect of the appellants’ case must also fail.

17. [144]

    In their outline of written submissions, the appellants were content to adopt their submissions for the following two representations (i.e., representations (viii) and (ix)). Nothing more needs to be said where those other submissions will be rejected for reasons which I am about to explain.

18. [145]

    It is convenient to group these alleged errors. The basis for the primary judge’s findings concerning the first two of these representations primarily related to what his Honour regarded as a contradiction or inconsistency in the relevant records. On the one hand, there was a radio log which was consistent with Mr Jay’s evidence that there were three members of the crew on the fire truck as at 13:15. On the other hand, the same radio log recorded an entry 35 minutes later stating that there were four crew on the truck including the Captain (i.e., Mr Jay) and three other volunteers, one of which was Mr Naethuys. Similarly, the fire incident report also recorded Mr Naethuys and three other volunteers under the sub-heading “Crew Names”. Mr Jay was responsible for making those entries. No appellable error has been established in relation to these two matters. Fox v Percy considerations must also apply in reviewing the primary judge’s findings, based as they were in part on his Honour’s adverse credibility findings regarding Mr Jay.

19. [146]

    As the respondents pointed out, the appellants did not make any submissions below on this representation or that relating to representation (xiii).

20. [147]

    On the appeal, the appellants repeated their submissions regarding the representation of bullying. They contended that the primary judge erred in finding that Mr Peters’ conduct met the “unreasonable” element of the definition of bullying (see at [39] above) because that was not open in the circumstances. They contended that it was clear to anyone with knowledge of the facts that Mr Naethuys’ position with the Brigade was untenable. I do not accept those submissions.

21. [148]

    The behaviour constituting this representation relates to Mr Peters’ actions reflected in representations (xii) and (xiii) and this particular issue should fail for the same reasons as explained immediately below.

22. [149]

    In relation to representation (xii), the appellants made short submissions below on why they contended that this representation was false. On appeal, they claimed that the primary judge erred in concluding that this representation had not been proved to be false. They pointed to the fact that Mr Naethuys had told Mr Peters that he was going to resign and they repeated that his position was untenable having regard to the circumstances and his past relationship with Mr Jay’s daughter. They also submitted that the Court should infer from the fact that Mr Naethuys did not give evidence that his evidence would not have assisted the respondents.

23. [150]

    As to representation (xiii), the appellants challenged the primary judge’s finding that this representation was not false in circumstances where Mr Peters gave uncontradicted evidence that Mr Naethuys told him around 6 June 2016 that he was going to resign and this was confirmed by text messages. Moreover, they pointed to the fact that in a letter dated 29 July 2016 from the RFS Director of Professional Standards to Mr Naethuys, it was confirmed that Mr Naethuys had advised a third party that he was not planning to return to the Brigade and he would be requesting a transfer. As to the statement made by Mr Naethuys, which was obtained by Mr Wedge, the appellants acknowledged that there is an implication that Mr Naethuys changed his mind about resigning only after 29 July 2016, but that the statement did not say that Mr Naethuys told Mr Peters of his change of mind. The appellants also pointed to the fact that the minutes of the meeting of the Brigade on 17 August 2016 recorded that Mr Naethuys had “left the brigade”. They said that there was no evidence that Mr Peters had been informed of any change of mind by Mr Naethuys by that date.

24. [151]

    These submissions overlap and should be rejected for similar reasons.

25. [152]

    First, Mr Peters accepted that he had contacted Mr Naethuys’ mother and stepfather about the allegations on 6 June 2016, during which he had told them that Mr Naethuys needed to leave the Glossodia Brigade. This supports the assertion of there being a procurement of Mr Naethuys’ resignation. On 15 June 2016, Mr Peters via email correspondence told Mr Naethuys that, if he did not resign, Mr Peters would refer him to the Professional Standards Unit (PSU). This threat was followed through with, with the PSU then referring the matter to the Ombudsman, though the latter ultimately refused to intervene owing to it being a private matter. This accords with a finding that Mr Peters was attempting to procure Mr Naethuys’ resignation.

26. [153]

    Secondly, the primary judge found at PJ[436] that Mr Peters had reported to other members of the Brigade on 17 August 2016 that Mr Naethuys had left the Brigade. This finding is not challenged.

27. [154]

    Thirdly, the primary judge acknowledged that Mr Naethuys may have given conflicting signals as to his intentions but, by 17 August 2016, Mr Peters knew that he had not procured Mr Naethuys’ resignation (see PJ[438]). I accept the respondents’ submission that this finding was correct and supported by the evidence that Mr Naethuys had not in fact resigned.

28. [155]

    Fourthly, the evidence also indicated that, as late as October 2016, Mr Peters was pursuing Superintendent Hodges in relation to his request made on 5 August 2016 that Mr Naethuys’ name be removed from the brigade register (see PJ[182] and [208]).

29. [156]

    Finally, as to the submission that the Court should make an adverse inference from Mr Naethuys not being called to give evidence in the proceeding, a number of points should be made. Having regard to the relevant principles summarised at [121] to [124] above, I am not persuaded such an inference should have been made. He was not a member of the Glossodia Brigade when the proceeding was instituted and in any event he cannot be described as being in the camp of any of the respondents. It should also be noted that the RFS was not of itself a party to the proceedings.

(c) Actual damage caused by publication?

1. [157]

   On causation, the appellants submitted that the primary judge erred in finding that there was a lack of causation. They submitted that his Honour incorrectly applied the relevant legal principles and made an unreasonable finding of fact. They claimed that the primary judge was “clearly wrong” in drawing a distinction between the investigation that took place and formal disciplinary action. They also contended that, on the primary judge’s alternative consideration of causation as a “natural and probable consequence” of the impugned actions, it was “simply unreasonable” for the primary judge not to be persuaded that it was a natural and probable consequence of the respondents’ publications of malicious falsehoods that Messrs Jay and Peters would incur legal expenses in the course of the investigation.

2. [158]

   The primary judge’s analysis of the claim of actual damage was directed to the following three elements:

   1. (1)

      whether the false features of the representations were material to investigate or to the scope of the investigation; or

   2. (2)

      alternatively, whether the incurring of legal expenses was a natural and probable consequence of the allegedly malicious falsehoods; and

   3. (3)

      whether as a matter of fact the appellants actually incurred damage.

3. [159]

   I consider that the primary judge correctly found that the occurrence of actual damage is “necessary but insufficient” to establish causation. It is incontrovertible that the complaints against Messrs Jay and Peters led ultimately to Mr Plumridge’s investigation. But that is not the focus of the relevant inquiry. That focus is on whether the false components of the publications caused the Plumridge investigation, i.e., the four representations which were found to be false. That is not the case. The investigation was initiated by Mr Heffernan having regard to all the allegations and complaints raised against the appellants.

4. [160]

   The appellants’ submissions on causation essentially relied upon the Court upholding their contention that this Court should find the additional 13 representations to be false. That contention has been rejected.

(d) Erroneous assessment of aggravated and exemplary damages?

1. [161]

   The appellants claimed that an appropriate award of aggravated damages would be approximately $75,000 for Mr Jay and $50,000 for Mr Peters. As for exemplary damages, they submitted that an appropriate award of damages would be $50,000 each.

2. [162]

   As to aggravated damages, the following observations made by Payne JA in a case of defamation KSMC Holdings Pty Ltd (t/as Hubba Bubba on Haig) v Bowden [2020] NSWCA 28 at [150] are apt (citations omitted):

3. [163]

   The appellants relied upon the following matters in support of their appeal concerning aggravated damages:

4. [164]

   Self-evidently, most of these matters are raised by the appellants elsewhere on the appeal and each of them has been rejected. The failure to apologise would not warrant a grant of aggravated damages and given the respondents’ overwhelming success both below and on the appeal it was not unreasonable for them to defend the proceedings as they have done. It may be accepted that Mr Jay was dealing with an emotionally fraught situation regarding his daughter’s past relationship with Mr Naethuys, but that consideration does not warrant a grant of aggravated damages, particularly in circumstances where the respondents were acting in accordance with the supervisory roles cast upon them under the Service Standards.

5. [165]

   As to exemplary damages, the appellants have failed to identify any error in the primary judge’s brief description of some of the relevant principles at PJ[687]:

6. [166]

   The appellants contended that the respondents “sought not only to blacken the reputation of the Appellants, but to subvert the disciplinary mechanisms of the Rural Fire Service to do so”. In making the allegations and seeking to invoke disciplinary action, they further allege the respondents “abused positions of trust granted to them by the state of New South Wales”. The publications were, it is further argued, “a cynical and cruel assault” on Mr Jay.

7. [167]

   In oral address on the appeal, the appellant’s counsel suggested that, were this Court to allow their appeal grounds on this point, the Court would be dealing with a situation where:

8. [168]

   The Court’s attention was not drawn to any comparable awards of exemplary damages; this being, on the appellants’ case, “of limited assistance because of its discretionary nature”. It was submitted that the test for whether or not such an award should be made turned on an objective analysis of the circumstances, and the extent of the moral turpitude involved.

9. [169]

   I am not persuaded that an award of exemplary damages would be warranted. The appellants have not established that any of the steps taken by the respondents in setting in train Mr Plumridge’s internal investigation involved conscious wrongdoing, breach of trust or the contumelious disregard of the appellants’ rights.

10. [170]

    On the contrary, the publications were distributed internally to the RFS and were generated or received by RFS officers in accordance with procedures contemplated by the Service Standards. Moreover, for the reasons given above, the appellants have failed to establish their claims of malice.

(e) The ambit of the tort of injurious falsehood

1. [171]

   The primary judge’s reasons for rejecting the then plaintiffs’ contention that the scope of the tort of injurious falsehood was broad enough to cover their non-economic interests is summarised at [48] to [59] above. Relying heavily on the judgment in Noye, the appellants contended that the primary judge erred in:

   1. (1)

      holding that the tort of injurious falsehood does not extend to representations concerning the plaintiffs’ positions as officers in the RFS;

   2. (2)

      finding that the work of an officer of the RFS is not an occupation or profession for the purposes of the tort of injurious falsehood; and

   3. (3)

      ruling that the tort of injurious falsehood does not extend beyond economic and/or financial interests.

2. [172]

   In circumstances where the appeal fails on the essential ground of malice, I consider that the determination of the ambit of the tort should await a case in which it is essential to resolve that significant and complex question. I would, however, make one limited observation. It concerns the issue whether Professor Fleming’s expansive view of the tort is supported by the example given by Holt CJ in Anon (see at [50] above). It will be recalled that the example given there of the reach of the tort was of a person falsely and maliciously writing to the plaintiff’s fiancée, claiming that she was his own wife and thereby causing her to lose her prospective marriage. In my view, the significance of that example should take into account the historical fact that, when that case was determined in the early part of the 18th century, women were not afforded the same property rights as men and the prospect of marriage offered some women an opportunity for economic advancement. As Blackstone stated in Commentary on the Laws of England (Book II, Ch 1, 1765-1769), in 18th century England, the common law barred women from holding property or possessing their own legal identity independently of their husbands or fathers; women were heavily restricted in their ownership and dealings with property (see as reproduced in H Ballantine and F Schenk, Blackstone’s Commentaries (Blackstone Institute, 1915) at 304). I respectfully doubt that Holt CJ’s example relates to an interest of a non-commercial nature.

3. [173]

   In view of the rejection of the appellants’ appeal on causation, it is not necessary to deal with the respondents’ notice of contention regarding whether actual damage had properly been established.

4. [174]

   I propose the following orders:

   1. (1)

      Time be extended for the filing of the summons seeking leave to appeal.

   2. (2)

      Leave to appeal be granted.

   3. (3)

      The appellants to file a notice of appeal in the terms of the draft notice of appeal within seven days.

   4. (4)

      The appeal be dismissed, with costs.