District Court New South Wales

• Medium Neutral Citation: Sleeman v Tuloch Pty Ltd t/as Palms on Oxford (No 3) [2013] NSWDC 92
• Hearing dates: 5, 6, 7, 11, 12 June 2013
• Decision date: 19 June 2013
• Jurisdiction: Civil
• Before: Gibson DCJ

Decision

(1) Judgment for the defendants.

(2) Plaintiff pay defendants' costs.

(3) Liberty to restore in relation to costs.

(4) Exhibits retained for 28 days.

• Catchwords: TORT - defamation - security guard refuses the plaintiff entry into the Palms on Oxford nightclub - whether the matter complained of was published - extent of publication - grapevine effect - whether the defendants (the nightclub operator and licensee) were vicariously liable for statements made by a security guard not in their employ - defence of honest opinion - defences of qualified privilege at common law and pursuant to s 30 - whether publication made on a protected occasion - reasonableness (s 30) - whether malice established - whether the malice of one defendant was sufficient for a finding of malice against all defendants - whether the defendants were vicariously liable for any malice of the security guard - whether offer of amends (s 18) reasonable - whether defence of triviality made out (s 33) - damages appropriate for limited publications - judgment for the defendants
• Legislation Cited: Defamation Act 1974 (NSW), s 13; Defamation Act 2005 (NSW), ss 18, 20, 31, 30, 33 and 34; Liquor Act 2007 (NSW), ss 73 and 77; Uniform Civil Procedure Rules 2004 (NSW), r 14.30
• Cases Cited: Adam v Ward [1917] AC 309; Adeels Palace Pty Ltd v Moubarek (2009) 239 CLR 420; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; Barach v University of New South Wales [2011] NSWSC 431; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251; Bennette v Cohen [2009] NSWCA 60; Bezant v Rausing [2007] EWHC 1118; Biffa Waste Services Ltd v Maschinenfabrik Ernest Hese GMBH & Ors [2008] EWCA Civ 1257; Bristow v Adams [2012] NSWCA 166; Bristow v Adams [2011] NSWDC 11; Bushara v Nobabananas Pty Ltd [2013] NSWSC 225; Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691; Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41; Cornwall v Rowan (2004) 90 SASR 269; Costello v Allstaff Industrial personnel (SA) and Bridgestone TG Australia [2004] AIRComm 13; Cush v Dillon; Boland v Dillon (2011) 243 CLR 298; Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; Deutz Pty Ltd v Skilled Engineering [2001] VSC 194; Dillon v Cush; Dillon v Boland [2010] NSWCA 165; Dougherty v Chandler (1946) 46 SR (NSW) 370; Egger v Viscount Chelmsford [1965] 1 QB 248; Ehiozee v EDO Nigerian Association of NSW Ltd [2013] NSWSC 239; Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803; For the Good Times Pty Ltd v Coltern Pty Ltd [2007] NSWSC 807; Fraser v Holmes [2009] NSWCA 36; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165; Guise v Kouvelis (1946) 46 SR (NSW) 419; Gulic v O'Neill [2011] NSWCA 361; Habib v Nationwide News Pty Ltd [2010] NSWCA 34; Haddon v Forsyth [2011] NSWSC 123; Haertsch v TCN Channel Nine Pty Ltd [2010] NSWSC 182; Hawley v Luminar Leisure Pty Ltd [2006] IRLR 817; Hay v Australasian Institute of Marine Engineers (1906) 3 CLR 1002; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Horrocks v Lowe [1975] AC 135; Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets (No 6) (2007) 63 ACSR 1; Jeffrey v Giles [2013] VSC 268; Jennings v Buchanan [2005] 2 NZLR 577; John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; John Fairfax Publications Pty Ltd v O'Shane [2004] NSWCA 164; Jones v Sutton (2004) 61 NSWLR 614; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366; King & Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305; Lamb v West (1884) 15 LR (NSW) 120; Lang v Willis (1934) 52 CLR 637; Lloyd-Jones v Allen [2012] NSWCA 230; Longdon-Griffiths v Smith [1951] 1 KB 295; LVMH Watch & Jewellery Australia Pty Ltd v Lassanah [2011] NSWCA 370; Marshall v Megna; Megna v Tory; Tory v Megna [2013] NSWCA 30; McLeod v Jones [1977] 1 NZLR 441; Mersey Docks & Harbour Board v Coggins and Griffith (Liverpool) Ltd [1947] AC 1; Morgan v Odham's Press Ltd [1971] 1 WLR 1239; Nail v News Group Newspapers Ltd [2004] EWCA Civ 1748; Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 150 CLR 626; Orcher v Bowcliff Pty Ltd (No 4) [2011] NSWSC 862; Orcher v Bowcliff Pty Ltd [2012] NSWSC 1088; Papaconstantinos v Holmes a Court (2012) 293 ALR 215; Perkins v Redmond Co Pty Ltd (2007) 5 DCLR (NSW) 21; Portelli v Tabriska Pty Ltd [2009] NSWCA 17; Quintano v B W Rose Pty Ltd [2009] NSWSC 446; R v Gutch (1829) Mood & M 432; Roberts v Bass (2002) 212 CLR 1; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; Schellenberg v British Broadcasting Commission [2000] EMLR 296; Sims v Wran [1984] 1 NSWLR 317; Sinclair v Bjelke-Petersen [1984] 1 Qd R 484; Sleeman v Tuloch Pty Ltd t/as Palms on Oxford [2013] NSWDC 43; Smith v Streatfeild [1913] 3 KB 764; Staff Aid Services v Bianchi (2004) 133 IR 29; Szanto v Melville [2011] VSC 574; Teskey v Toronto Transit Commission (2003) OJ No. 4545; The Producers' and Citizens' Co-operative Assurance Company of Australia Limited v Colonial Mutual Life Assurance Society Limited (1931) SASR 244; Tournier v National Provincial and Union Bank of England [1924] 1 KB 461; Trad v Harbour Radio Pty Ltd [2011] NSWCA 61; Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] ICR 327; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58; Watson v Foxman (1995) 49 NSWLR 315; Webb v Bloch (1928) 41 CLR 331; Zorom Enterprises v Zabow & Ors [2007] 71 NSWLR 354
• Texts Cited: Brown on Defamation, 2nd ed. (Carswell); Faulks Committee (Recommendation 276); Fleming's The Law of Torts, 8th ed, 1992; Gatley on Libel and Slander, 11th ed; Tobin & Sexton, Australian Defamation Law and Practice (LexisNexis)
• Category: Principal judgment
• Parties: Plaintiff: Richard Sleeman; First Defendant: Tuloch Pty Ltd (ACN 086 654 140) t/as Palms on Oxford; Second Defendant: Peter Inwood; Third Defendant: Rodney Innes
• Representation: Plaintiff: Ms L Evans; Defendants: Ms S Chrysanthou / Ms B R Styles; Plaintiff: Camille E Dezarnaulds & Associates; Defendants: Sylvester & Browne Lawyers
• File Number(s): 2012/225941
• Publication restriction: None

Judgment

Introduction

1 The publication the subject of these defamation proceedings consists of three sentences spoken shortly before midnight on 23 December 2011 by a person identified in the statement of claim as the "defendants' security guard/doorman" ("the security guard"), outside the Palms on Oxford nightclub in Darlinghurst. The plaintiff, who had been waiting in a queue to get into this nightclub, alleges that the security guard said to him:

"You are way too drunk. Go and sober up somewhere else. You can't come in".

The relevant legislation is the Defamation Act 2005 (NSW) ("the Act").The imputations are:

(a) The plaintiff was excessively drunk in a public place;

(b) The plaintiff was so drunk that he needed to sober up somewhere else;

(c) The plaintiff was so drunk as to warrant him not being admitted to the nightclub.

2 The statement of claim also sets out that an additional imputation was conveyed to the three persons alleged to have heard the matter complained of. It is pleaded that each knew the plaintiff "strongly opposed drinking alcohol", giving rise to the imputation that the plaintiff was a hypocrite, in that he pretends to oppose drinking of alcohol when he himself consumes alcohol to such an excess that he becomes drunk.

3 The defendants against whom these proceedings have been brought are as follows:

(a) The first defendant is a corporation conducting the business of the Palms on Oxford, a licensed premises nightclub;

(b) The second defendant is the sole director and secretary of the first defendant; and

(c) The third defendant is the licensee of Palms on Oxford.

4 The defendants are not sued as the publishers of the matter complained of in the generally accepted way (Webb v Bloch (1928) 41 CLR 331), but on the basis of vicarious liability for the alleged publication by the security guard. In the defence they have jointly filed, each defendant:

(a) Does not admit publication of the matter complained of;

(b) Challenges capacity and denies that the imputations are defamatory;

(c) Claims that if the matter complained of was published, the defendants are not vicariously liable;

(d) Relies upon the defences of qualified privilege at common law and pursuant to s 30, honest opinion, triviality and offer to make amends; and

(e) Relies on the circumstances of the publication in mitigation of damages.

5 The Reply filed on 15 March 2013 pleads malice in reply to both of the qualified privilege defences. There is no defeasance of the defence of honest opinion.

6 The plaintiff also commenced proceedings in the Administrative Decisions Tribunal in relation to these events. That claim was brought on the basis of exclusion from the nightclub by reason of age discrimination. No claim was made that these proceedings had any relevance in relation to damages issues, despite some overlap in heads of damages, because the Tribunal proceedings are not proceedings for defamation, and because the Tribunal judgment has not been handed down.

Pre-trial applications and rulings

7 The procedural history of the claim is of relevance to the way the case was conducted at trial. The defendants challenged the vicarious liability pleadings in a hearing in the Defamation List on 30 November 2012, and the plaintiff was ordered to provide further particulars of the basis of the vicarious liability for each defendant. No judgment is available, but the orders made indicate that the plaintiff was not directed to plead liability for publication in accordance with Webb v Bloch principles. The plaintiff filed an amended statement of claim on 20 December 2012 providing these particulars and joining (without leave) two additional defendants, namely the security guard (Clint James Unwin) and his employer (ADCAS Pty Ltd).

8 These proceedings were then set down for hearing. The first problem was that Mr Unwin and ADCAS Pty Ltd were not told of the hearing date, or served, until after the statement of claim became stale. Proceedings against them were then discontinued as part of a series of case management rulings prior to the trial: Sleeman v Tuloch Pty Ltd t/as Palms on Oxford [2013] NSWDC 43. The second problem was that the claim against the defendants continued to be pleaded on vicarious liability principles applicable to other tortious claims rather than on the principles generally applicable in defamation law (Webb v Bloch, supra).

The issue of publication

9 Where the matter complained of is a slander, the court must first determine whether the matter of complained of was published as claimed. In The Producers' and Citizens' Co-operative Assurance Company of Australia Limited v Colonial Mutual Life Assurance Society Limited (1931) SASR 244 at 251, Murray CJ explained this procedure as follows:

"The actual words spoken by the defendant must, therefore, be given by the witnesses, so far as they can recollect them, and then the inquiry will be, first, whether their recollection and accuracy can be trusted, and secondly, whether the words deposed to and accepted as having been correctly reported bear the same, or practically the same defamatory meaning as the words set out in the statement of claim."

10 I shall first consider issues relevant to publication, namely:

(a) Whether the matter complained of was published;

(b) Whether those imputations which are conveyed are defamatory; and,

(c) Whether any of the defendants are vicariously liable.

Evidence of publication

11 The plaintiff is a sports journalist. He was born in 1951 and is currently 62 years old. On the night in question he arranged to meet three friends at the Oxford Hotel, a hotel in Oxford Street, Darlinghurst. They planned to have drinks at the Oxford Hotel and then to spend the evening at a nightclub, the Palms on Oxford. It was a pleasant Friday evening, the day before Christmas Eve, and the gay revellers thronged the streets.

12 Mr Everingham, who met the plaintiff at this hotel at 10 pm, was the first to arrive. He had been a friend of the plaintiff for over thirty years and they regularly met for a night out, often in Oxford Street. They remained in the Oxford Hotel, where they were joined at about 11 pm by Mr Kemp and Mr Clifford, Mr Everingham's partner. The plaintiff said that during this time he either did not have anything to drink, or had one drink. Mr Kemp and Mr Clifford both consumed one or two drinks after their arrival. The plaintiff said, and these witnesses confirmed, that the plaintiff's opposition to consumption of alcohol to excess was known by them to be a view of longstanding.

13 The plaintiff and his friends intended to go to the nearby "Palms on Oxford" nightclub at about 11.30 pm. The plaintiff had been to these premises once before. He was aware there was a security guard at the entrance, and that there was "always a queue" waiting to get in:

"Q. You'd been there the year before, hadn't you?

A. Yeah, once the year before, and I was in a queue and only gained entrance because one of the people I was with knew the security guard.

Q. Well you gained entrance didn't you, because you were waiting in the queue?

A. Waiting in the queue, yeah.

Q. And you jumped the queue, because someone knew one of the security guards?

A. Well, there was considerable doubt as to - I don't believe we would have got in at all. There was a - we were standing out there waiting for some time, and we got in - the only reason we got in was because one of the people we were with is an ex-policeman who knew the security guard.

Q. You didn't believe you'd get in because it was so busy?

A. At that stage I didn't know whether it was busy or not?

Q. Well there was a queue, wasn't there?

A. There was a queue. There's always a queue.

Q. There was other people waiting to get in?

A. Yes.

Q. They didn't get in and you got in?

A. I don't know whether they got in or not?

Q. And you only got in because you knew someone?

A. That's why I got in, yes - why we got in.

Q. And you're used to having that sort of preferential treatment are you, when you go out?

A. The preferential treatment wasn't for me, it was for the ex policeman I was with." (T 97-98)

14 All four walked 20 metres up the road to the Palms on Oxford nightclub. There was only one entrance, and there was a security guard standing at the door, as well as a queue waiting to get in.

15 Mr Unwin, who gave evidence for the defendants, said that he was that security guard. According to Mr Unwin's evidence, and the security log he said he completed later that night, the plaintiff and his friends attempted to walk into the nightclub without queuing. He claims he told them to join the queue. The plaintiff and his three friends deny this.

16 The plaintiff and his three friends waited in the queue for about ten minutes. According to the plaintiff, he was still five or six persons back from the head of the queue by this time. According to the plaintiff's three friends, Mr Kemp and Mr Clifford had now advanced to the front of the queue, and Mr Everingham and the plaintiff were directly behind them. Although the plaintiff said that Mr Kemp and Mr Clifford had moved to one side so that one of them could have a cigarette, he later agreed that Mr Kemp and Mr Clifford had already been told by the security guard that they could go into the nightclub, and were in the process of doing so (T 102) when the words the subject of this litigation were spoken.

17 The plaintiff described what happened as follows:

"Q. Now could you tell her Honour what happened in late 2011? Well, on the date - on December 23 2011, what happened?

A. On that day, I worked from home throughout the day. I was working on a book project, and I arranged to meet some friends in the city. I met - I drove in from my home around 9.30 at night, I guess, having been at my home throughout the day. I met one of my friends, Mr Everingham, at the Oxford Hotel around 10, 10.15 maybe. We were there for an hour to an hour and a half. We were joined at around 11 by Mr Everingham's partner, and a younger friend of Mr Everingham, whose name is Will Kemp. During that time, I had no alcohol. I drink very rarely. We decided around 11.30 to leave that venue and go to Palms nightclub, which is on the same side of the street, slightly downhill, only about 20 metres at most. There was a short queue there at the time, and we joined that queue--

Q. I'll stop you there. How many in the queue, would you say?

A. With us in the queue, there was probably a dozen, I guess. 12 to 15.

Q. Keep going.

A. It was reasonably early in the night by nightclub standards, 11.30 at night and I suppose I was fourth or fifth in the queue. The doorman was about from me to you away, 4 to 5 metres I guess, slightly uphill because it's a slope, and he pointed above the heads of the few people in front of me and pointed directly at me and quite loudly, above the traffic noise and the hubbub of the area, because it was very crowded, you can imagine, the Friday before Christmas. He said very loudly and very pointedly, you're way too drunk, you can't come in here, go away and sober up somewhere else. I was--

Q. Could I stop you there, please, sorry. While you were in the queue, and the fourth or fifth back from the queue as you say, where were your friends who you mentioned, Warwick Everingham, Adam Clifford?

A. Mr Everingham was directly behind me. The other two I'm uncertain of - I'm pretty sure they were either slightly to the right or in front of me. I know that Mr Everingham was directly behind me. To pinpoint exactly where the other two were, I'm not certain. They may have been having - one of them may have been having a cigarette, they may have been slightly to the side or in front of me.

Q. Now, just to clarify, the answer you've just given, or the description you've just given as to where people were located, where your friends were located - is that at the time that the words were spoken?

A. That's at the time the words were spoken, yes.

Q. Carry on, you were--

A. Well I was - my reaction was, I was shocked and bewildered. I was standing in the queue, not animated in any way, not talking to anyone, facing the front. I was well dressed in a collared shirt and reasonably stylish jeans and shoes. I was giving no impression that anybody - any reasonable person, anybody at all could draw that I was affected in any way by alcohol.

...

Q. Did the security guard approach you and perhaps see if there was alcohol on your breath, to your understanding?

A. Didn't move from his spot by the door.

Q. He remained the distance you've said, 4 or 5 metres away?

A. Didn't move from his spot, yes.

Q. And you certainly weren't drunk, if I haven't asked you? I'll ask you again.

A. I was not drunk, I had no alcohol at all.

Q. At the time the words were spoken, or immediately after, what was your reaction?

A. I was stunned and bewildered for a few seconds, because it was - completely at a loss to explain why I was being attacked so loudly, and because I was allegedly drunk and so drunk that I couldn't get in to mix with other people, and so drunk that I had to be banished elsewhere. It was bewildering. I very quickly came to the realisation that I was being excluded because I was too old, I just simply didn't fit into the queue or the sort of people that the doorman wanted in the club, and calling me drunk and so drunk that I couldn't go in and I had to go somewhere else was simply his way of excluding me.

Q. The words spoken by the security guard, was your impression that they were said to your group, or what was your impression?

A. It was said to me, pointedly, directly, aggressively and loudly.

Q. When you say pointedly, did he point at you?

A. He pointed at me directly, and the words were said loudly and aggressively.

Q. And he pointed to you as he was saying the words, did he?

A. Pointed to me as he was saying the words.

Q. You said your reaction to the words - was this something that happens to you, or used to happen to you when you - I withdraw that. You said something along the lines of being stunned and bewildered. Is this something that usually happened to you on a night out on Oxford Street?

A. No, it's not happened to me before." (T 6-9)

18 The other witnesses gave a slightly different version, namely that Mr Everingham called Mr Kemp and Mr Clifford back to stop them from continuing to enter the nightclub, and told them the plaintiff had been refused entry on the basis that he was too drunk (T 302, 311). Mr Everingham said at T 430:

"Q. Now, what happened next, when you were in the queue?

A. For some reason the - well, when we were just standing in the queue, chatting quietly, and for some reason the security guard decided - made a decision that we weren't getting in, and said that we weren't getting in because we were drunk. I don't think he used those words. He just said that, "You've had enough, you're not having any more here," words to that effect, which I was really dumbfounded by, because I wasn't - I hadn't had too much to drink. It was obvious to me I hadn't had too much to drink, and I think it was obvious to the security guard we hadn't had too much to drink either. There was obviously some other reason for him saying that. There had been a decision made that we weren't going to get in; simple as that.

Q. All right, and did he greet you, the security guard?

A. I don't remember him saying anything much other than that"

19 The plaintiff said that there were many other people in the vicinity within earshot:

"Q. You said that there were about a dozen people in the queue?

A. Around a dozen people in the queue.

Q. Were there passers by?

A. There were - it was a very busy area, the busiest night of the year, I suspect, the Friday night before Sunday Christmas in one of the largest entertainment areas of the city, so - I think within the immediate area there was - in addition to the dozen in the queue, another 20 or so in the immediate area. It could well have been within earshot and probably were. In, in the vicinity - that is within, within the radius of this room - it could well have been 50 to 100 people.

Q. Just to be clear, 12 in the people in the queue or thereabouts?

A. Yep.

Q. Twenty people or so in the immediate area, you say--

A. Yes.

Q. --would you call them the passers by or?

A. Yeah, yes.

Q. And then within what distance? I'm sorry if you've already said, within what distance were the 20?

A. Within the distance of this room, so I suppose in a--

Q. I'm sorry, I just - I think your evidence was "20 or so in the immediate area"?

A. Yes.

Q. And then you said, "In the vicinity there might've been 50"?

A. Fifty, correct.

Q. Just back to the 20--

A. Yes.

Q. --who you said were in the immediate area, would you say they were the passers by or?

A. They were passers by people within - people in the queue and passers by.

Q. You make a distinction, so the 20 is made of the 12 in the queue and then 8 or so passers by?

A. No, no, 12 in the queue and another 20 within in earshot in the, in the immediate vicinity.

Q. Overall, the size of this courtroom?

A. It could've been 50 to 100 people." (T 10-11)

20 The plaintiff's evidence differed from the evidence of Mr Clifford, Mr Everingham and Mr Kemp in a number of respects. This is to be expected where the events in question occur quickly, and witnesses see events from a different vantage point. However, the differences between the plaintiff's evidence and the evidence of these witnesses showed a pattern of exaggeration by the plaintiff on issues such as the loudness and aggressiveness of the security guard's voice, where they were in the queue, the ability of those present to hear him, and what was said. His evidence that the security guard was aggressive not only conflicted with the evidence of the other witnesses, but with statements he had previously made in the Administrative Decisions Tribunal (Exhibits B, D and F).

21 The plaintiff's evidence was that he was standing alone, 4 - 5 metres from the doorman, in the third, fourth, fifth or sixth position in the queue (T 7 - 8, 11, 102 - 3). He said the security guard looked at him from a distance of about 4 metres or even further. In addition, he said that Mr Clifford and Mr Kemp were another 5 metres away and had separated from him (T 103 - 105). Since Mr Kemp and Mr Clifford had, the plaintiff agreed, been told they could go inside (T 102), this suggests that they would have been on the other side of the security guard.

22 However, the plaintiff's description of where he was - isolated, further down in the queue and vulnerable - is contradicted not only by the evidence of the security guard but also by the three witnesses the plaintiff called. Mr Clifford said "I was standing at the front of the queue and Mr Sleeman and Mr Everingham were right behind me" (T 489). Mr Everingham said he was standing in the line with Mr Sleeman and was two metres at most from the nightclub door (Exhibit 13, p 41; T 459). Mr Kemp said he had walked past the door and started to go in, accompanied by Mr Clifford. Similarly, although the plaintiff said that he had become separated from his three companions (T 103 - 105) and that they were five metres or so away, Mr Clifford's evidence was that he and Mr Kemp were standing in front of the plaintiff and Mr Everingham for approximately 10 minutes while they waited in the queue (T 489). This was confirmed by Mr Everingham who said they were "in the queue, which is closed [sic], which is by the door" (T 432) for three to four minutes (T 458). Mr Kemp said that they were in the queue for 10 minutes, and that the plaintiff and Mr Everingham were "standing behind us" (T 311).

23 While he was in the queue the plaintiff said he did not talk to anybody (T 99 - 102). It was in these circumstances that the security guard spoke to him aggressively and loudly without prior warning (T 9, 103, 146, 148). Again, this differed from the evidence of his three friends, who described the group as having conversations. Mr Clifford said he was talking to Mr Kemp, while the plaintiff and Mr Everingham were talking to each other (T 489). Mr Everingham said he and the plaintiff were "chatting quietly" (T 430; 459). Mr Kemp observed the plaintiff and Mr Everingham chatting together (T 320). In addition, none of these witnesses mentioned shouting or loudness by the security guard. Mr Everingham (T 43) and Mr Kemp (T 303) described what the security guard said without any mention of his shouting, being aggressive or even speaking loudly.

24 Mr Kemp said he had his back turned to the plaintiff when he heard someone say, "You're way too drunk. You're not coming in" (T 303). He turned around and saw the security guard still "talking" to the plaintiff but did not say what further words were said. Mr Clifford, standing with Mr Kemp with his back to the guard, did not even hear this:

"Q. And then what happened then?

A. I got to the front of the queue. Me and Will were at the front, and we were told we were allowed to go in.

Q. Sorry, I missed that last

A. Me and Will, we were standing together.

Q. Yes.

A. And we were told we were allowed to go in, by the bouncer.

Q. Do you recall the words spoken by the bouncer to you, or not?

A. "You can go in."

Q. Did he greet you?

A. I think he nodded his head and said, "Hi." I can vaguely remember that.

Q. Did he say anything else? Was there any other

A. Not that I can recall.

Q. So you and Will pass through the door of the

A. Yeah.

Q. And what happened next?

A. We were walking - about to walk down the stairs, and I heard Warwick say - call my name.

Q. Yes.

A. And I turned around and he said, "We can't go in."

Q. Did he say anything else?

A. Sorry. I can't specifically remember, at that exact moment.

Q. Okay, sorry to interrupt you. So he said, "We can't go in."

A. Yeah.

Q. And then what happened next, or what was said next?

A. Then he said after that, "They said Richard's drunk."

Q. Okay. Did he say anything else?

A. Sorry. Not that I can remember, not in that

Q. Okay, and so Mr Everingham, "They say - or they said Richard's drunk"?

A. Yeah.

Q. Then what happened next?

A. We basically turned around and walked back out." (T 466-467)

25 According to Mr Kemp, Mr Everingham called him and Mr Clifford back "We can't go in. Richard's been told he's too drunk" (T 304). Mr Kemp's claim that he turned around after hearing the security guard saying that the plaintiff was too drunk, and saw him still speaking these words to the plaintiff, cannot be correct, as he turned around after hearing these words. Since he was with Mr Clifford, and in the process of entering the club, the likelihood is that he, like Mr Clifford, did not know about what had happened until Mr Everingham told them. That would mean that neither of them, and not only Mr Clifford, heard or saw what happened.

26 The plaintiff said that after he was told he could not enter, he said to the security guard, "quietly and deliberately", that "discrimination was disgraceful and any discrimination in a gay club was particularly disgraceful" (Exhibit 13, pp 17 and 35; see also T 9). None of the other witnesses heard this conversation or mentioned it.

27 The question of what the plaintiff said to the security guard is of significance. The nightclub's incident log (Exhibit 5) contains a note of the guard's version of what was said by both of them. That version does not refer to an age discrimination complaint, but to a threat to publicise the event in the media.

28 If there was any conversation between them, it was not noticed by the other witnesses (Mr Everingham, standing next to the plaintiff, said there were "no arguments" and they just left: T 435).

29 It is common ground that the security guard said nothing about the plaintiff's age. According to Mr Everingham, Mr Clifford suggested age discrimination as the explanation for his exclusion. Mr Everingham thought "another agenda" was being served, although he did not know what this agenda was:

"Q. So you've said that the plaintiff was dumbfounded?

A. Yes.

Q. Because he was clearly not drunk, and that there was another agenda at play, you said?

A. Yes.

HER HONOUR

Q. How did you know that?

A. Okay. Look, I just didn't think that the doorman was saying with any real conviction that we were really drunk. I don't believe that that doorman thought that we were drunk either. I believe that there was another agenda being served. I didn't know what it was. Right?

EVANS

Q. Yes.

A. I think it was Adam that said, "You're too old," and that started to make sense. That seemed an obvious suggestion. I come from a community that's - it's a gay community. We've been discriminated against all our lives. I've grown up with it, right. And here I am in a situation, a gay place run by gay people, who are deciding to discriminate against me because I'm too old, too fat, too ugly, whatever it happens to be. All right?

Q. Okay.

A. And that made me angry. I'm not angry about being called a drunk. I couldn't care less that someone calls me a drunk. But I really am angry about just being discriminated against by my own people, and that seems to have been lost in this whole - this whole scenario. No one seems to have said that at all.

Q. All right. So you said the doorman didn't - you don't believe the doorman--

A. I don't believe the doorman believed what he was saying, because it was so obviously untrue, we were not drunk and no one in their right minds could say that we were drunk. And if he's a security guard he should be able to see if someone's actually drunk if that's part of his job to do that. No one could have said that we were drunk. It was just impossible after one beer." (T 433-434)

30 It is unclear at what precise stage Mr Clifford suggested this. Mr Everingham said that when the security guard refused the plaintiff permission to enter the premises, they were all "dumbfounded". It was shortly after the incident occurred that Mr Clifford volunteered the suggestion that the plaintiff's age could have been the reason. Since Mr Clifford had not had the opportunity to see or hear the exchange, this was supposition.

31 The plaintiff said that someone in the immediately vicinity called him a "dinosaur" (T 155, 157). He was not sure where the "dinosaur" comment came from (T 9, 11, 70) but he thought it came either from someone in the queue or a passer-by (T 10-11).

32 Mr Kemp did not mention hearing the word "dinosaur". Mr Everingham said:

"Q. What I want to suggest to you was he was on one side of the security guard because he'd been let past--

A. Could've been, yeah, could've been.

Q. --and you were on the other side of the security guard on Oxford Street--

A. Yeah, that's sounds about right.

Q. --and you said to him, "Adam, come back, we're not being let in--

A. I, I just said that we're not, they're not letting us in.

Q. --they think we're too drunk."

A. Yeah.

Q. You didn't laugh, did you, at Mr Sleeman at that point?

A. Not at that point. Later, yeah.

Q. Well, did you think it was funny at some point?

A. Yeah, later on, yeah.

Q. Well, tell me about that, what did you think was funny about it?

A. Well, he's just, you know, the, you know, the idea of him being a dinosaur is funny, just a good natured dragging that you get, that you do with friends.

Q. But you didn't laugh at him until you got to the Taxi Club?

A. Maybe on my way up there.

Q. You thought it was funny, didn't you, because it was a silly situation?

A. Well, it wasn't a silly situation but just good natured dragging, "You're a dinosaur, you're too old ..(not transcribable).. you're too old, you can't go anywhere with you, you're too old."" (T 460-461)

33 Mr Clifford said:

"Q. All right. Well, on that night, apart from your knowledge of him generally over that 22 years, why do you say that night he didn't look drunk?

A. He looked perfectly normal. He was well dressed. He was in a pressed shirt, collared shirt, pants. He wasn't slurring. He wasn't anything other than he always looks or behaves.

Q. So then you were at the Palms and then at some point this happened, and then what happened after what you've already told us?

A. Well, there was a bit of a crowd and some comments were said in the crowd.

Q. Right, and what were they?

A. I didn't see who said it, but someone said something like to the effect of, "Ah, you old dinosaur," or something like that.

Q. When you say a bit of a crowd, how many people did

A. Probably 15 to 20 people, maybe. That was in the line behind us, but there were a few people on the street as well. It was a busy night.

Q. So you're saying there were 15 to 20 on the queue?

A. Yeah.

Q. And then a few people around.

A. Yeah." (T 468-469)

34 The plaintiff said that people were chuckling and laughing at him (T 11-12). It was put to the plaintiff that this was a recent invention, as this claim had not been raised in the Administrative Decisions Tribunal proceedings (T 164).

35 While there are inconsistencies and omissions between the accounts of what was said, the evidence of these witnesses is that the plaintiff was refused admittance to the Palms on Oxford because he was drunk. The evidence of the security guard who says he was on duty, and who made an entry into a security log about these events, differs in important respects.

Evidence of Mr Unwin

36 Mr Clint James Unwin gave evidence that he was working from 9:00pm to 3:00am that evening. He was a public servant who had worked in the evenings as a security guard for ADCAS Pty Ltd at the Palms on Oxford premises for approximately 12 years. On the night in question he was working with another security guard named Harry, a man of similar build and age, but of Indian origin. As Mr Unwin was the more experienced of the two, he remained on the door when he worked with Harry, who would go downstairs every 15 minutes to do a "sweep" of the premises (T 190).

37 Mr Unwin's description of what occurred is as follows:

"Q. what happened to lead you to write this incident report?

A. Okay, I was standing at the front door of Palms and I was the only person there, Harry was downstairs. By my recollection three males walked to the door. They approached from a southeasterly direction, from Bondi direction, the top of Oxford Street, and they went to go in. I stated to the males, "There's a line, can you please line up?" The males didn't want to line up and I stated, "Sir, everyone, we need to line up," so the males finally went to the line, the line was only short, by my memory.

When the males got to the front of the line I, I just each male, as I always do, "Gentlemen, where have you been today? How are we?" And I saw one male, I describe as being approximately 50 to 60 years of age, tall, which I now know to be Mr Sleeman, had reddish complexion, dark red complexion, so it's my, my experience and, and skill to be able to see that this person may have consumed some drinks. I do not know how many, and that's why I asked, "Excuse me, sir, how much have you had to drink tonight?"

He stated he had none. His two friends, I said, "How much have we had to drink?" His two friends then said, "We've been to dinner and we've consumed a couple with dinner," so now I had conflicting stories with his friends, so I said to each male, I said, "Excuse me, gents, which one is it? None, or one, or two? Can you help me out?" At that time Mr Sleeman immediately became irate and refused to be what I believe, to be questioned by me. I stated to the males, "I'm just doing my job. How many have we had to drink?" He became abusive and refused to answer my questions and said that I he should not be subject to the questions of me.

He then walked away in disgust, about 2 to 3 metres, and I continued to speak to his two friends. They were quite calm and in a patient demeanour, and I explained to them, "I'm just trying to do my job and ascertain how much we've had to drink." I struck a conversation with them for several minutes and explained to them that:

"Your friend has appeared to not want to come in, as he's objected to being questioned about his alcohol intake, but you two are welcome to go into the club."

At that time they state we continued a conversation about letting Mr Sleeman in, and I said, "He's, he's doesn't want to enter." He's 2 or 3 metres from the doorway now, he's several metres away near the footpath. The gutter. At this time I allowed them entry and ultimately in the end Mr Sleeman was over near the gutter and that's when he stated, "Do you know who I am? You'll regret refusing me entry." And at this time I heard his remarks. I did not know who he was, I was just doing my job, and in the end he, he that's when I said to his friends:

"Look, your, your, your friend is becoming a bit, you know, aggressive and, and abusive. I don't think it would be a good idea for him to come in but you two are still welcome to enter."

In the end they left with Mr Sleeman. That's when Mr Sleeman said, "I'm going to name and shame you to the media. You'll regret refusing me entry." So after they left, several minutes later, I went down and made contemporaneous notes of his entry, taking into effect that I deemed his threats to be serious.

Q. Now, did you ever shout at any of these men at any time?

A. At no time was there a reason to shout to anyone.

Q. Did you ever say to any of them words to the effect of, "You are way too drunk to come in. Go and sober up somewhere else"?

A. No, that's not true.

Q. Do you recall ever shouting at patrons outside the club?

A. No, that's not true. I, I didn't have a chance to ascertain Mr Sleeman's sobriety because he walked away and refused to enter. I was in the process of trying to and he objected to being questioned by me and that's when he moved away, and I continued the conversation with his two friends, and they were in close proximity to me, so there was no need to raise my voice at all.

Q. Now, you say it's Mr Sleeman, how do you know it's Mr Sleeman? When did you see him?

A. Apart from seeing Mr Sleeman on the night, several weeks later, I'm not sure exactly when, Rod Innis explained to me that a complaint had been made to the media about him being refused entry for age discrimination and being too drunk. That's when I realised the entry and I pointed the entry out to Rod, saying, "This is who I think the entry is."

Q. So you made a connection, did you, in your mind

A. Yes.

Q. between the allegation of well, the media interest

A. Yes.

Q. and what had happened

A. Yes, due to his

Q. and recorded in this entry?

A. Sorry, yes.

Q. When did you first know that it was a person called Mr Sleeman?

A. I went to the, the ADT a while ago, February, and I saw Mr Sleeman in court.

Q. Are you sure that he's the person that relates to this entry?

A. Yes, I am. I am.

Q. Or the incident log?

A. Yes, I am.

Q. Are you sure that he's the person that you just spoke about to her Honour that said certain things on 23 December 2011?

A. Yes, I am." (T 191-193)

38 Mr Unwin's evidence was that he remembered the plaintiff, whom he first noticed when he and his companions had attempted to enter the nightclub without queuing up. He made the point, a number of times during his evidence, that there were three men (he had no recollection of there being four men) who were big and strong, a matter of some concern to him since he weighed 75kgs and was of more slender build. From observation in the courtroom, this is an accurate description of the build of Mr Clifford, Mr Everingham and the plaintiff. Mr Everingham is a former champion athlete, and he and Mr Clifford, who are partners, are very actively involved in sports. The plaintiff is a sports journalist; his history is one of active participation in sport related activities. Mr Kemp, who is just into his twenties, looked his age or younger, and also looked to be fit and strong.

39 Mr Unwin denies speaking the words complained of (T 192) or being aggressive (T 195) or shouting (T 192). In particular, he said he did not refuse the plaintiff permission to enter because of his age:

"Q. So did you exclude him because he was mature age?

A. No." (T 193)

40 He went on to say in cross-examination that he had never refused any person because of their age as this would have been contrary to the purpose of the nightclub, which played "retro" music from the 1970s and 1980s, and had regular attendees of a mature age, including patrons in their fifties, sixties and even seventies (T 188).

41 Mr Unwin said that following these events he filled out the incident log (Exhibit 5). Mr Unwin said he filled out incident number 480265 (and also the second entry, 480266, in relation to another incident) on the night in question shortly after these events occurred. This entry reads:

"Refuse male. Refused to line-up. Lined up & then want [went] in. Male abused security & said he would publicly defame our names in newspaper."

42 The third defendant, Mr Innes, is the licensee of the nightclub. He described having a conversation with Mr Unwin that same night, in which Mr Unwin told him that he had had to refuse entry to someone. He thought he had this conversation early in the morning of 24 December:

"Q. I can put to you this though, I think. Do you agree that it would be most unlikely that you, the licensee of the premises, and the security guard, who was on duty at the time of this incident, would not have - I withdraw that. When was it again that you spoke to Clint Unwin on the night?

A. On the 23rd, 24th?

Q. 23rd.

A. Or 23rd/24th. Somewhere - it was 1, quarter past, half past 1 or somewhere around there.

Q. At the time you spoke to him he had already filled in the incident log?

A. Yes.

Q. Are you aware of what time he put in on the incident log?

A. To be honest, no. I can't remember.

Q. Well, have a go, putting it all together.

A. It would have been, it would have been about half an hour, 40 minutes beforehand, so 12.15, 12.30.

Q. Just one sec. Sorry, your Honour, I just wanted to clarify an answer. All right. So sitting there in the witness box, you were at first unsure of the time he might have put it in the incident book, but you gave an answer 12.15 or 12.30.

HER HONOUR: No. What he said was he couldn't remember and you asked him to have a guess.

EVANS: Right.

...

Q. Now, did you have cause to - I withdraw that. Did you do one of your visits to the door - I withdraw that. When did you first see the incident log, if at all?

A. When Clint come down and told me about it, about the incident.

Q. Now, he would have needed to be away from the door at that point?

A. Correct.

Q. What was the arrangement made for someone to be on the door while he was downstairs?

A. The other security - Harry was on the door.

Q. Is it your recollection that Clint Unwin spoke to you downstairs at the time, around the time that he entered the incident log?

A. Yes.

Q. And is the reason you say that be he was generally needed on the front - someone was needed on the front door and he needed to get back to the front door when he could?

A. I don't understand what you mean.

Q. Well, is it the case that Clint Unwin was the - you say he was regularly on Friday nights, don't you?

A. Yes.

Q. Now, could he, while on duty and whilst not undertaking a sweep of downstairs or other duties - first of all, how long would a sweep of downstairs take, do you say?

A. Anything from two minutes to 10, 15.

Q. Are you aware that he was doing a sweep around about the time he filled in the incident log or not, of whether he was?

A. That's what he was doing. He said to me, "I've just gone through the venue and I just wanted to fill in this incident book."

Q. He said, "I'm just going through the venue."

A. No, he's just been through.

Q. Just been through, sorry.

A. Because he had been through the venue to come out to the office.

Q. "Just been through the venue. Going to fill in this incident log", something like that. Okay.

Q. Did he tell you when he - go ahead. Have some water.

A. No, you're right.

Q. Sorry. Okay. So "just been through the venue", you understood to mean he had done a sweep of the venue?

A. Yes.

Q. A security sweep of the venue?

A. Yes.

Q. And what does that involve?

A. Just checking to see intoxication, smoking, open-toe shoes, anyone fighting and that the ladies are using the ladies' and the men are using the men's.

Q. A very elegant way of putting it, if I may say, Mr Innes. Now - unless I misunderstood, of course. Now, see the

CHRYSANTHOU: Even I understood that.

EVANS: Thank God for that. Right. Good.

Q. Did you have an idea? You've said generally it might take two to 10 minutes to do a sweep?

A. Generally.

Q. Do you have any reason to know how long that particular sweep had taken?

A. No, not at all.

Q. Well, as the regular security guard on the door, whether he was doing a sweep or something else for the venue or for his employer within the venue, it would have been important for him to get back on the door quickly, as quickly as he could, wouldn't it?

A. Yes.

Q. If I put to you that during the period we're talking about, this period from probably half an hour to 40 minutes before 1.15, if I put to you that Clint Unwin didn't make a security sweep during that period, what would you say to that?

A. That particular security sweep? I know he did.

Q. You know he did?

A. Yes.

Q. And how are you sure it was a security sweep?

A. Because I was in the office and we have cameras right above where I was standing.

Q. And what do the cameras show you with regards to--

A. The whole venue.

Q. But what did the cameras show him doing?

A. Walking through.

Q. But a security log is a important document, isn't it?

A. Security log? Incident report?

Q. Incident log.

A. Yes." (T 363-366)

43 Mr Innes went on to say:

"Q. You said he went downstairs. Originally your evidence was that he went downstairs to do a sweep and - I'll just see if I can get the words of the conversation from my note. Well, he referred to doing a sweep, didn't he, and that he was filling in the incident log, didn't he?

A. Yes.

Q. "Just been through the venue. I'm going to fill in this incident log."

A. That's when he told me what the, what it was about.

Q. Good. Now, your original was that he said he was about to, and now you say that he already had.

A. The incident log has got two parts to it.

Q. Yes.

A. The first part, which is a, a, a short summary of what happened, and the second part is the, well, it's the log part of it. That's what he was coming in to fill out, the log part. He'd already filled out the incident. That's why, and then that's when I said to him, "There's no point. There's nothing to, nothing to put, nothing to put in there."

Q. He'd already put the short summary--

A. Yeah, the--

Q. --of what had happened and he was putting in the log part?

A. He was about to put the log in.

Q. What do you mean by the log part?

A. That's if - each one is numbered and then there's a, at the end of the book there's another page that corresponds with that number which you can put a full report into it.

Q. So did he ever - right, I'll withdraw that. So he was telling you, "I've done the short bit."

A. Mm-hmm.

Q. "I'm about to fill in the long bit of the log book."?

A. Mm.

Q. And have you ever seen the long description of the--

A. No, because I told him not to both.

Q. You told him not to bother?

A. Yeah.

Q. Aren't you required to fill in that part of the log book?

A. No, because there was nothing really to report on there. It was that somebody was going to name and shame. I said, "Oh, don't worry about it. Just, you know, it'll, it'll - that's when he had, had - that's when we had a laugh about it. I said, "Oh, don't worry about it. It's someone just being smart."

Q. Now, what you've referred to as the longer description of the incident at the back of the book--

A. Yeah.

Q. --could that be what I've been referred to as the venue incident log?

A. That's all in one - it's all the security log. It's all the same book.

Q. Okay.

A. Yeah.

Q. But is there some kind - there's an obligation, you accept, to fill in the short description part with the sequential numbering?

A. The only, the only time you need to fill in the long is if there is a major incident. Someone's had a fight. They've cut themselves. They've thrown a glass at someone, if you need a more detailed description of a person or something like that.

Q. You didn't require him to fill in the long description at the back of the log book at that time. Did you ever require him to do so?

A. No.

Q. So as far as you know, Clint Unwin didn't create another document between the short entry here in the log book and then the longer log book entry at the back of the book?

A. No. No.

Q. You've never seen an account of this incident?

A. Only what's, only what's in the, the short version there.

Q. All right. Now, when he was telling you what it was about, he would have told you, wouldn't he, whether Mr Sleeman, who's the plaintiff in these proceedings - as I'm sure you know by now--

A. Yes.

Q. --whether he came in to the venue or not, whether he actually stepped in the doors of the venue?

A. No, his words were, "Oh, you might get a complaint about me later because I refused, refused this guy because he was drunk and he threatened to name and shame us," and that's when I just went, "Yeah, right," and that's my exact, that's - and then that was it; that was the end of it. And he, that's all he wrote down on there.

Q. When as the next time - I apologise if you've said this before. When was the next time or the first time you saw the entry in the incident log?

A. Well, that was then.

Q. So you did have a look at it?

A. Well, he just put it up in front of me; that was about it." (T 377-379)

44 Mr Unwin was not cross-examined about this conversation, about which he did not give evidence. His evidence was that he thought no more of these events until Mr Innes spoke to him later in January.

45 The plaintiff was asked about the accuracy of Incident Log 480265:

Q. And does it have an incident number?

A. Yes. 480265. It says location door, reported by Armen [Transcription error: Unwin].

Q. Could you read out the number again?

A. 480265.

Q. And if I told you that purported to be an incident log of the incident, what's your reaction to that?A. There's no resemblance to what happened at all. Completely unrelated to the incident involving me.

Q. Why do you say that?

A. Well, it says refused to line up. Well I never refused to line up, I just stood in the queue as per normal and wasn't animated in any way, so I stood as anyone would stand in a queue. So it says refused to line up, and it says lined up and then went in. Well, I never got near the entry to the club, because the doorman told me I couldn't go in. So it says then went in, and when - and then went in, well, I never went into the club. It says male abused security. At not point did I abuse security or say a word to security other than on the way out when I spoke quietly to him about the discrimination that had just occurred. Then it says - and said he would publicly defame our names in newspaper, and I never at any stage said that. And no mention of the fact that I'd been accused of being intoxicated. So there's a box here for intoxication, that's not ticked. There's a box here for refuse entry, that's not ticked. It just - it's - there's no resemblance whatever, it simply is unrelated to the incident involving me." (T 48-49)

46 The reference to "Armen" is the signature of Mr Unwin. The reference to the box for "refuse entry" and the box for "intoxication" not being ticked are, I consider, significant. They support the evidence of Mr Innes about the conversation he had with Mr Unwin, and Mr Unwin's evidence that he was still in the process of determining what to do when he spoke to the plaintiff.

47 Ms Evans submitted that I would reject this document as being a forgery or, alternatively, as being so obviously wrong that it was a hopelessly inaccurate record. She particularly relied upon the reference to the fact that the document said "then went in". The plaintiff did not in fact go in, although Mr Clifford and Mr Kemp had been told they could go in.

48 This was a document filled out in haste by a security guard who said he was at the time in a state of some anxiety. It was a very busy night, being the last night of trading before Christmas Eve. It was filled out in circumstances similar to hospital and emergency records, where the maker of the record has other concerns; in the present case, these were safety issues because of the possibility of inebriated or violent persons seeking entry to licensed premises, in circumstances where Mr Unwin was the security guard expected to keep them out.

49 Trial judges have repeatedly been warned against over-literal interpretations of the informalities in documents filled out in haste by persons processing information in busy situations, such as ambulance officers or hospital emergency admissions staff (Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [55] - [57] and Gulic v O'Neill [2011] NSWCA 361 at [24]).

50 I am satisfied that this record, despite the alteration of the time and informal language, was filled out on the night in question by Mr Unwin, who signed his name at the end, and that the reference to the response of the person refused entry about media publicity is strongly indicative that this person was the plaintiff. Given his subsequent conduct in contacting the Star Observer newspaper about this incident, I am of the view that the plaintiff did in fact say words to this effect to the security guard. I am also satisfied that, as a contemporaneous document, this document is the best record of what in fact occurred. I also consider the evidence of Mr Innes about his conversation with Mr Unwin on the night in question to be a reliable account of the circumstances in which Mr Unwin drew these events to his attention.

51 The plaintiff challenges whether the security guard was Mr Unwin at all. He gave evidence that the security guard who stopped him entering was very different in appearance.

Description of the security guard's appearance

52 The plaintiff challenges that Mr Unwin was the security guard in question. He stated that the security guard was of Islander or Middle Eastern appearance, about 1.8 metres tall, and heavy-set. He thought he saw someone who looked like this sitting in the public area during the Administrative Decisions Tribunal hearing, but this person turned out to be a Mr Negaren (T 181), a director of the security company which employs Mr Unwin, who had attended the Administrative Decisions Tribunal in that capacity. There is no suggestion that Mr Negaren worked as a security guard or was present on the night in question.

53 Mr Everingham's description of the guard was closer to the appearance of Mr Unwin. He described the security guard as Mediterranean (Exhibit 13, p 44) but, when shown a photograph of Mr Unwin, he said that he "could be" the security guard they saw on the night (T 444). He thought the security guard was wearing a white shirt and black pants.

54 Mr Kemp said the security guard was "a big Islander guy" (T 302) and was neither Middle Eastern nor Mediterranean (T 303, 313, 319). He thought the security guard was wearing a black button-up shirt, black pants and boots, and an ID. He said the guard did not look anything like the photograph of Mr Unwin (T 319).

55 Mr Kemp's evidence of the events on the night in question is, I find, less reliable than the evidence of Mr Clifford and Mr Everingham. I am satisfied that Mr Kemp was with Mr Clifford, heading into the club entrance, and that neither of them saw or heard the security guard speak to the plaintiff, or knew what had happened, until Mr Everingham called them back.

56 Mr Clifford said that the security guard was of Middle Eastern appearance or "kind of Islander-ish" (T 468). These are two very distinct racial types. In addition, Mr Clifford could not give any other details of significance concerning this security guard's appearance or apparel. Mr Clifford, when shown the photograph of Mr Unwin and another security guard (Exhibit 3), said the guard in question had the build of the person standing on the right of Mr Unwin (T 483 line 23), whom Ms Chrysanthou identified as a Mr Arnold in her submissions. There is no suggestion that he was working with Mr Unwin that night. Contrary to the evidence of Mr Kemp, the gentleman identified in Exhibit 3 as looking like the security guard on the night in question could not be described as a big muscular Islander.

57 There was no challenge to Mr Innes' evidence that no guard of Islander appearance (whether 1.8 metre tall or otherwise) worked at the Palms on Oxford in December 2011 (T 348).

58 The security guard who was working with Mr Unwin on 23 December 2011 was a Mr Harpreet (Harry) Gill, who was considerably shorter than Mr Unwin, of Indian/Pakistani appearance, and not overweight (T 340, 189). Mr Gill did not report any incident to Mr Innes that night (T 341) and no notes of any incident appeared in the incident log under his hand (Exhibit 5), both of which confirm that Mr Unwin carried out the writing up of incidents. Mr Gill has not worked at the Palms on Oxford since approximately February or March 2012, when he was reallocated on the security guard roster (T 190, 340).

The plaintiff's complaint to the Star Observer

59 Mr Innes received a telephone call on Monday 9 January 2012 from the Melbourne editor of the Star Observer, Ms Noonan. According to Mr Innes' affidavit of 27 September 2012 (paragraph 5), Ms Noonan referred to an incident in which a male had been refused entry to the club "on Christmas Eve" (Exhibit 8) and claimed that age discrimination had been levelled at him by the security guard. Mr Innes asked Ms Noonan to send an email in relation to the issue, and said that he would respond after he had made further enquiries. He received an email inquiring about the events and responded that the club "does not and has not discriminated against persons for any reasons let alone someone's age" (Exhibit 9). He also stated that the club was closed on the date given, namely Christmas Eve (24 December). Following Ms Noonan's 10 January correction of the incident date to 23 December (Exhibit 8), he had a conversation with Mr Unwin, as indicated in Mr Innes's email in reply (Exhibit 8), and the incident book entry was located. This chain of emails confirms the existence of the incident book and the second conversation Mr Innes had with Mr Unwin.

Conclusions concerning the identity of the security guard

60 For the plaintiff and his witnesses to be correct, there would have to be a cover-up by the defendants in order to falsely represent that Mr Unwin was the security guard/doorman at the relevant time (I note the plaintiff has particularised this claim in the Reply), create a false entry in the incident log (and a reconstructed log book), hide the identity of the real security guard, and give untruthful evidence both in these proceedings and the Administrative Decisions Tribunal.

61 Mr Unwin and Mr Negaren are not defendants in these proceedings. Nor were they defendants in the Administrative Decisions Tribunal proceedings. They have nothing to gain by participating in perjury and falsification of documents in relation to a complaint of the kind brought by the plaintiff against one of their clients. Nor is it clear why the licensee, Mr Innes, or the first and second defendants, who gave evidence they had mature-age clientele who enjoyed hearing 1970s and 1980s music, would be likely to have a policy of excluding persons in their 60s. From my observation of the plaintiff and his witnesses in the witness box, their well-dressed appearance and physical fitness meant they presented as being considerably younger than their stated ages. They did not appear to be elderly, or physical decrepit, in any way.

62 The circumstances in which the plaintiff did in fact contact the Star Observer are consistent with the threat noted in the log book, repeated by Mr Unwin to Mr Innes, that the plaintiff would "defame" the nightclub for excluding him.

63 Counsel for the plaintiff submitted that I should not accept the evidence of Mr Inwood, Mr Unwin or Mr Innes on any of the matters about which they had given evidence, on the basis that they should not be believed. However, none of these witnesses was caught out on a lie, or behaved in such a way that I should draw so serious a conclusion that their evidence and their documentation are all concocted.

64 There are inconsistencies and errors in the evidence of Mr Unwin in relation to the conversation he claimed he had with the plaintiff and his friends in which he said they told him they had been playing golf and had had a few drinks with dinner. I am satisfied that this evidence is wrong and should be disregarded. I am not, however, satisfied that it is dishonest. Witnesses can, and do, make errors of recollection.

65 I am, however, satisfied that the notation Mr Unwin made in the incident log on the night in question is accurate. Even if I were to reject all of his other evidence, the notation in the incident log is contemporaneous evidence of what occurred, as are the conversations and emails about which Mr Innes gave evidence. Mr Innes is an impressive witness who gave clear and consistent evidence on all issues.

66 I am satisfied that Mr Unwin was the security guard on the door in question, and that he had a conversation with the plaintiff, in the course of which he refused the plaintiff entry to the club. I am satisfied that, after some brief inquiry about drinking, he refused the plaintiff entry to the club. Precisely what was said by either the plaintiff or Mr Unwin is unclear, but I am satisfied there was some conversation, however limited, and that this included statements the plaintiff made after he was excluded.

67 The next issue for determination is whether this very unclear picture of events sufficiently resembles the matter complained of for the purpose of establishing whether or not the words pleaded by the plaintiff, or words not significantly different, were spoken.

Conclusions concerning publication

68 It is sufficient to prove the words were in substance what was said, and that any variance or error is immaterial unless there is a substantial difference (Lamb v West (1884) 15 LR (NSW) 120; Sinclair v Bjelke-Petersen [1984] 1 Qd R 484). "Every case must depend upon its own circumstances, and no rule can be laid down as to what constitutes a substantial difference": Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 at 470 per Bankes LJ. It is generally sufficient if the words "accurately express the substance of what was said": Jennings v Buchanan [2005] 2 NZLR 577 at [5] per Lord Bingham of Cornhill.

69 McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318 - 319, in relation to claims that misleading or deceptive statements were made, noted the fallibility of memory, as opposed to a reliable contemporaneous record of what was actually said, as well as the "relatively subtle nuances" of actual words. Watson v Foxman, supra, was considered and explained by McColl JA in Habib v Nationwide News Pty Ltd [2010] NSWCA 34 at [339], and I respectfully adopt the same precise and careful method of analysis McColl JA applied in Habib v Nationwide News Pty Ltd, supra.

70 The need for "attention to detail" in such cases is important: Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets (No 6) (2007) 63 ACSR 1 at [353]. In Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets (No 6), supra, McDougall J considered that it was necessary for the court to feel an "actual persuasion" (at [355]) that the words were spoken.

71 The principles set out by McDougall J in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets (No 6), supra, at [353] - [355], by Young CJ in Eq in For the Good Times Pty Ltd v Coltern Pty Ltd [2007] NSWSC 807 at [185] and by McLelland CJ in Eq in Watson v Foxman, supra, at 318-319 relate to statements made in the course of business transactions. However, I consider such principles should apply with equal, though not greater, force to slander. It would be inappropriate for there to be a higher standard of precision required for statements in business than for statements about personal reputation. The tension between freedom of speech and protection of reputation suggests that the publication of a slander should require the same level of particularity as a misleading or deceptive statement in business.

72 Mr Clifford clearly did not hear what was said, and had his back to the security guard at the crucial time. Yet, according to Mr Everingham, Mr Clifford is the person who volunteered the explanation that the plaintiff had been excluded because of his age. This is an indication of the degree of reconstruction of events which occurred as the group endeavoured to absorb the upset they felt at the plaintiff being excluded from the nightclub for what they saw as no apparent reason, in circumstances where he clearly was not drunk.

73 I have rejected the evidence of Mr Kemp and found that he, like Mr Clifford, did not hear the matter complained of as they had both already headed into the nightclub entrance and had their backs turned. Mr Everingham, who did hear what was said, stated the security guard referred to drunkenness, but thought the security guard was referring to both of them.

74 I am satisfied that the plaintiff was excluded from the nightclub following a brief verbal exchange with the security guard about alcohol consumption. However, that is insufficient evidence that a conversation along the lines pleaded by the plaintiff actually took place. As set out above, the evidence of the plaintiff and his witnesses falls short of establishing that the matter complained of, or words not substantially different, were published. I must also have regard to the more likely version of events recorded by Mr Unwin in the incident log, and repeated to Mr Innes, and the implausibility of the claims that Mr Unwin was not the security guard who spoke the words on the night in question. I give no weight to Mr Unwin's description of the conversation in his affidavit, which contains wrong references to a conversation about golf and appears to be a reconstruction (in much the same way as the evidence of Mr Kemp), but this does not assist the plaintiff. Taking all of the evidence into account, the plaintiff has failed to discharge the burden of proof to establish that the matter complained of was published.

75 I note that republication has not been pleaded, and that the evidence of Mr Fox (T 36) that friends reported to him they had witnessed the plaintiff being thrown out of the club because he was "blind drunk" was evidence of hurt to feelings only. The same applies to the grapevine publication heard by Mr McDermott.

76 In the event that I have erred in holding that the plaintiff failed to establish that the words were published, I set out my findings in relation to defamatory meaning, vicarious liability, the defences and quantum, on the basis that the plaintiff has been able to establish that the words were published. I have, however, dealt with some of the issues, an in particular capacity and quantum, in less detail than would be the case if findings in favour of the plaintiff on publication had been made. The principal difficulties for the plaintiff, if he had succeeded in relation to publication, are the vicarious liability issues in relation to the very unusual way that the plaintiff has approached the issue of vicarious liability for publication and, in relation to the defences of qualified privilege at common law and pursuant to s 30, the problem of establishing vicarious liability for malice for each of the defendants.

Capacity and defamatory meaning

77 The defendants complain that, contrary to r 14.30 Uniform Civil Procedure Rules 2004 (NSW) (UCPR), the imputations do not differ in substance (written submissions at [96]) and that no extrinsic facts were pleaded to identify the plaintiff (at [84]); hence the case "fails on the pleading". The form and capacity of the imputations formed part of the rulings made by Elkaim SC DCJ on 30 November 2011; imputations 2(a) and 5(a) were redrafted in accordance with those rulings. I do not propose to traverse these findings.

78 For a publication to be actionable, it must be "of and concerning the plaintiff", which means the plaintiff must be identified. I reject the submission of the defendants (written submissions, paragraphs 80 - 90) that the plaintiff was not able to be identified. He was identified by his companions. The extent of publication, and whether others knew who he was, are issues relevant to damages only.

79 When determining whether imputations are conveyed, the test is that of the ordinary reasonable listener: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158. Each imputation must be considered in the context of the entire publication: Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165.

80 The defendants concede, in written submissions, that each of the imputations is carried by the words spoken (written submissions, paragraph 96).

81 The imputation of hypocrisy (imputation 5(a)) presents difficulties, as the extrinsic facts need to reflect accurately all the material which gives rise to the imputation, not merely one fact plucked out of a series of events. An imputation of hypocrisy would clearly arise if, for example, the plaintiff was a Moslem, or a recovering alcoholic, to whom alcohol was forbidden. In the present case, the three persons identified as the recipients of the matter complained of who had this specific knowledge also knew that the plaintiff, from their own observations of him over the previous half to one and a half hours, was not drunk.

82 The question is not whether Mr Kemp in fact believed the plaintiff was drunk, but whether, on an objective test (Morgan v Odham's Press Ltd [1971] 1 WLR 1239 at 1261 per Lord Guest), the ordinary reasonable listener would consider such an imputation to be conveyed by the extrinsic facts.

83 The extrinsic facts are deficient, in that they do not take into account the other material necessary for the ordinary reasonable reader to find that this imputation would be conveyed. The defendants submit that this would include evidence of what the plaintiff was doing on the night, namely not drinking, which was a matter conceded by the plaintiff to have been known by each of the persons named as being in possession of the extrinsic facts (T 14). I am satisfied that the imputation of hypocrisy should fail for this reason, in that the ordinary reasonable listener would have needed to have this information and would, in the circumstances, not consider such an imputation to have been conveyed.

84 The defendants challenge whether imputations of drunkenness would be capable of being defamatory. These submissions are misconceived. The imputations are not simply of drunkenness, but public drunkenness, and to the extent that the plaintiff should be refused entry to licensed premises. Each of imputations (a) - (c) is defamatory. So, too, would an imputation of hypocrisy be defamatory.

Vicarious liability

85 The defendants have, unusually, not been sued as publishers of the matter complained of: Webb v Bloch, supra. Instead, the particulars of publication provided in the statement of claim pleaded only that the words were spoken by the security guard/doorman of the nightclub, and that the defendants were vicariously liable for the statements of this security guard/doorman, who was at all times alleged to be subject to their orders and under their control.

86 The defendants brought an application challenging the capacity of imputations 4(a) and 5(a) and the adequacy of the vicarious liability pleading before the Defamation List Judge, Elkaim SC DCJ. On 30 November 2012 his Honour heard the application and made the following orders:

(1) Leave to the plaintiff to replead Particulars 4(a) and 5(a) of the Statement of claim and to replead paragraph (b) in relation to aggravated damages.

(2) The plaintiff is to file an Amended Statement of Claim giving the particulars of the basis upon which the first and second defendants are vicariously liable for the actions of the security guard.

(3) The plaintiff is to give particulars of the basis upon which the licensee is vicariously liable for the actions of the security guard unless that allegation is derived only from the third defendant's position as licensee.

(4) The plaintiff is to pay the defendant's costs in respect of preparation for the hearing today. In respect of the hearing today the plaintiff is to pay half the defendants' costs.

(5) The plaintiff is to file and serve the Amended Statement of Claim within 14 days.

(6) The defendants are to file and serve a Defence to the Amended Statement of Claim by 22 January 2013.7. Listed for further directions in the Defamation List on 1 February 2013.

87 Although the parties thought that reasons for making of these orders were given on the day, attempts to obtain any judgment handed down have been unsuccessful. Whether or not there is a judgment, it is clear from the orders made, and the particulars provided, that the argument before his Honour proceeded upon the basis that liability of the defendants for publication should be dealt with as if this were a claim for vicarious liability in tort, rather than in accordance with the principles in Webb v Bloch which apply in relation to liability for defamation by persons other than the original publisher. This has added a great deal of unnecessary complexity to this claim.

88 Consequent to these orders, in the Amended Statement of Claim filed on 20 December 2012, the plaintiff provided the following particulars:

"Particulars of Vicarious Liability

At all material times the First Defendant conducted the business the Palms and is and was the second defendant's alter ego. The Second Defendant was at all material times and from 2005 the sole director and secretary of the First Defendant. The Second Defendant has attended the Palms regularly and often during trading hours to ensure that the Nightclub staff adhere to all appropriate liquor licensing laws and regulations as well as venue policy documents. The Second Defendant has been and is very well aware of the type of patrons that attend the Palms and has made it his business to take an active part in the management of the Nightclub.

At all material times the Third Defendant was the Licensee of the Palms. It was his duty as Licensee to oversee the general operation and running of the licensed premises. He was responsible for all patrons who entered the licensed premises. He was required by the appropriate liquor licensing laws and regulations to not serve alcohol to intoxicated patrons. In order to comply with those laws the Third Defendant deployed the Fourth Defendant for the purposes of securing the Nightclub including ensuring that intoxicated persons did not enter the licensed premises. The Second and Third Defendants gave the Fourth Defendant all necessary instructions and supervision required to enable him to complete his deployment.

The Fifth Defendant was at all material times a corporation that engaged in the hiring out of security personnel for licensed premises. The Fifth Defendant contracted the fourth defendant to provide security services to the Palms.

The defendants, and each of them, are joined pursuant to s 5 of the Law Reform Miscellaneous Provisions Act 1946 (NSW)."

89 The references to the fourth and fifth defendants should be ignored. The actions against Mr Unwin and his employer were discontinued.

90 The defendants submitted that the plaintiff should be held to his pleading of vicarious liability, on the basis that this is the case they had come to meet. There are already significant difficulties for the plaintiff in relation to the need to establish malice in relation to each of the defendants (Tobin & Sexton, Australian Defamation Law and Practice (LexisNexis) at [18,045]).

91 If the plaintiff had, during the trial, sought leave (preferably before the trial) to rely upon Webb v Bloch principles instead of bringing this convoluted claim, this would have been a difficult request to refuse. However counsel for the plaintiff's response to these issues has been to underline the plaintiff's intention to rely upon vicarious liability as pleaded, rather than upon the principles enunciated in Webb v Bloch, supra, and to ask this court to apply principles of "temporary" employment as explained in English authorities such, as Hawley v Luminar Leisure Pty Ltd [2006] IRLR 817, Biffa Waste Services Ltd v Maschinenfabrik Ernest Hese GMBH & Ors [2008] EWCA Civ 1257 and Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] ICR 327. None of these cases has been considered, let alone followed, in Australia (which is "out of step with overseas developments such as those in the European Union", according to Macken's Law of Employment, 7th ed., 2011, at p. 92).

92 Unlike the much simpler Webb v Bloch test for liability in defamation, vicarious liability in tort operates as a doctrine of strict liability imposed on a defendant irrespective of personal faultlessness, or in addition to personal liability, arising where one person is held liable for the wrongful act or omission of another by virtue of the special relationship between the parties: Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36 at 57 per Fullagar J.

93 Issues of vicarious liability most commonly arise where a tort is committed by an employee in the course of employment. The law distinguishes between employees and independent contractors, in that an employer is not vicariously liable for acts done in the course of employment where the worker is an independent contractor: Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 32. While the question of whether a person is an employee or an independent contractor is a question of law depending on the circumstances of the case, including control (see Hollis v Vabu Pty Ltd, supra, at 43-45), no submission could be, or was, put that the security guard who published the matter complained of was the employee of any of the defendants.

94 This is very different to the principles generally applied where a person other than the original publisher is asserted to be liable for the defamatory publication. The often-cited principles explained by Isaacs J in Webb v Bloch, supra, at 364 are:

"In Parkes v. Prescott Giffard Q.C. quotes from the second edition of Starkie: "All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected." In R. v. Paine it is held: "If one repeat and another write a libel, and a third approve what is wrote, they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty: so that murdering a man's reputation by a scandalous libel may be compared to murdering his person; for if several are assisting and encouraging a man in the act, though the stroke was given by one, yet all are guilty of homicide." A little later, in R. v. Drake, that law was reaffirmed. In The Queen v. Cooper Lord Denman C.J. said: "If a man request another generally to write a libel, he must be answerable for any libel written in pursuance of his request: he contributes to a misdemeanour and is therefore responsible as a principal." In that case the defendant was indicted for "publishing and causing to be published" the libel in question. The judgments show that all the defendant did was to authorize the publication of the libel, in law that he published it." (citations omitted)

95 On these principles, all persons who participate in the publication may be jointly and severally liable for the whole damage suffered by the plaintiff; liability extends to any person who participated in, secured or authorised the publication. The concept of publication is a broad one. In R v Gutch (1829) Mood & M 432 Lord Tenterden CJ explained at 437-438:

"... A person who derives profit from, and who furnishes means for carrying on the concern, and entrusts the conduct of the publication to one whom he selects, and in whom he confides, may be said to cause to be published what actually appears, and ought to be answerable, although you cannot shew that he was individually concerned in the particular publication."

96 An example may be seen in Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41. Colonial Mutual Life Assurance Society Ltd employed an agent to canvass for business on its behalf. While canvassing for business, the agent slandered the plaintiff. The company denied liability, relying upon a term of the agreement that the agent would not cast any aspersions upon any person or institution which could bring that person or institution into disrepute or discredit. The High Court rejected the defence stating that:

"we apprehend that one is liable for another's tortious act "if he expressly directs him to do it or if he employs that other person as his agent and the act complained of is within the scope of the agent's authority." It is not necessary that the particular act should have been authorised; it is enough that the agent should have been put in a position to do the class of acts complained of - Barwick v English Joint Stock Bank, LR 2 Ex 259; Lloyd v Grace, Smith and Co., (1912) AC at p 733. And if an unlawful act done by an agent be within the scope of his authority, it is immaterial that the principal directed the agent not to do it."

97 However, the plaintiff in these proceedings has expressly excluded any reliance upon liability for publication on Webb v Bloch principles. Instead, the plaintiff argues that Mersey Docks & Harbour Board v Coggins and Griffith (Liverpool) Ltd [1947] AC 1 and Hollis v Vabu Pty Ltd, supra, are no longer the law. It is submitted that the control test has been adapted by the English courts in Hawley v Luminar Leisure Pty Ltd, supra, Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd, supra, and Biffa Waste Services Ltd v Maschinenfabrik Ernest Hese GMBH & Ors, supra. These authorities deal with problems of divided control, where the host business (in this case, the licensed premises) will be vicariously liable for the torts of the agency providing the security services. In particular, Ms Evans drew my attention to the discussion, in Viasystems, of Brennan J's analysis of dual control in vicarious liability in Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 150 CLR 626 at [32].

98 Ms Evans also referred me to Macken's Law of Employment (7th ed., 2011), pages 86 - 92, and to the discussion of the principles in Deutz Pty Ltd v Skilled Engineering [2001] VSC 194, where Ashley J set out a series of principles relating to the circumstances in which liability will be shifted from the general employer (in the present case, the security company) to the temporary employer (in the present case, the company running the licensed premises). This authority is of little assistance, since Ashley J states (at [109] - [112]) that only in exceptional circumstances will this occur.

99 This is not the law in Australia in relation to intentional torts. The legal principles for vicarious liability in relation to an employer where there is an intentional tort on licensed premises have been explained in Zorom Enterprises v Zabow & Ors [2007] 71 NSWLR 354. The plaintiff's action against the licensee and occupier of the hotel failed, as in so many other cases involving security staff, on the issue of control: see also Portelli v Tabriska Pty Ltd [2009] NSWCA 17 at [69]. A hotelier or licensee may owe a duty of care to take steps to protect or prevent injury or a wrong to a parton as a matter of general principle, but it will depend on the particular circumstances of the case whether that duty can be found to exist, and whether it had been breached. In the present case, while the defendants owed a duty to take reasonable care to prevent injury to the plaintiff from for example, the drunken or violent conduct of other patrons, by reason of the statutory power designed to prevent entry and remove persons from the licensed premises using reasonable force (Adeels Palace Pty Ltd v Moubarek (2009) 239 CLR 420 at [26]), did they owe him a duty to do so in such a way as to prevent him from being defamed by the security staff at the same time? Ms Evans' suggestions that the security guard should have been more diplomatic and said "I think you may be drunk", or spoken to him in a quiet voice so that others could not know that he was being ejected from the nightclub, do not fall within the duty to exercise reasonable care in the performance of statutory responsibilities.

100 Where a security firm is contracted to provide security services to give effect to obligations of the licensee and nightclub manager, and the guard employed by that company neglects his duties, it is the responsibility of the guard's employer, not the defendants, for the reasons explained in Perkins v Redmond Co Pty Ltd (2007) 5 DCLR (NSW) 21 at [143], unless there is a complete delegation. Where, however, the security company is retained to perform specific services, its duty is not enlarged beyond the prudent performance of those services: Quintano v B W Rose Pty Ltd [2009] NSWSC 446.

Evidence concerning control of the security staff

101 The evidence of the nature of the relationship between the defendants and the security company is largely unchallenged. Mr Unwin gave evidence that he was not employed by any of the first to third defendants. He and the other security guard who was stationed at the Palms on Oxford nightclub were employees of ADCAS Pty Ltd (T 186 and 335). ADCAS Pty Ltd contracted with the first defendant to provide security services to the Palms on Oxford nightclub.

102 All matters relating to the selection, training and employment of the security guards were matters for ADCAS Pty Ltd. This included:

(a) The first defendant contracted with ADCAS Pty Ltd for the provision of security guards, but did not interview them, provide them with training, or decide which security guard should be rostered at any given time. In fact, the first defendant expected the security guard to be fully qualified and trained by ADCAS Pty Ltd (T 336-337).

(b) ADCAS Pty Ltd made all arrangements in relation to providing security guards to be rostered at any given time in response to receiving a request for one (T 186).

(c) The first defendant was not given advance notice of which security guard would be rostered at any given time (T 336) and security guards would be transferred to another site without any prior warning or consultation with the first defendant, as happened with "Harry".

(d) Neither the first nor second defendants interacted with the security guard in relation to their duties. Mr Unwin gave evidence that his boss, Mr Negaren, who was the manager at ADCAS Pty Ltd, was the person he went to if there were any issues in relation to his employment (T 186-187).

(e) The third defendant's role was to remind the doorman of their obligation under the Palms on Oxford policy but otherwise played no role in their supervision (T 186).

103 The unchallenged evidence points to the security guards being professional independent contractors engaged by a different company that was unrelated to any of the existing defendants. As previously noted, Mr Unwin and the company which employed him are not parties to these proceedings.

104 Counsel for the plaintiff placed great weight on the fact that the security guard was required to exclude persons wearing open-toed shoes. However, this requirement would not give control of the security guard's activities to the defendants; it was simply nightclub policy. Counsel for the plaintiff also referred to the participation of the night club in compulsory precinct meetings for licensed premises in Oxford Street. However, attendance at those meetings, and participation in those activities was part of the nightclub's statutory obligations in relation to supervision of its activities, and gave it no extra control over its security staff.

105 Counsel for the plaintiff did not cross-examine Mr Unwin about any special reasons for his having been a security guard at the same venue for so many years. What little evidence I have on this issue appears to be that the choice of where to work is a matter for ADCAS Pty Ltd and its employees. The evidence of Mr Innes and Mr Inwood was that they had no say in this matter.

106 None of the factors indicating employment as listed by the AIRC Full Bench in Staff Aid Services v Bianchi (2004) 133 IR 29 at [27] can be made out on the facts in this case. The "quite exceptional circumstances" required, even under the English decisions (Hawley v Luminar Leisure Pty Ltd, supra, at [14]), cannot be made out. In Hawley v Luminar Leisure Pty Ltd, supra, the licensed premises played an active role in the security guard's training and supervision, and had the right of dismissal in certain circumstances. That is not the case here. On the facts as pleaded, the principles enunciated in Hawley v Luminar Leisure Pty Ltd, supra, cannot be made out.

A servant of two masters?

107 The security guard, whoever he may have been, was the employee of ADCAS Pty Ltd. I should briefly note some additional issues about the plaintiff's submission that the security guard could be regarded as the employee of the nightclub at the same time.

108 Contrary to what was submitted, Hawley v Luminar Leisure Pty Ltd, supra, does not assist the plaintiff, as the court held that the nightclub, not the security company, had assumed the employer position, not that both the nightclub and the security company were liable (at [82]). Unlike other jurisdictions such as Canada (Teskey v Toronto Transit Commission (2003) OJ No. 4545), in Australia, the concept of an employee being the servant of two masters has never been recognised: Costello v Allstaff Industrial personnel (SA) and Bridgestone TG Australia [2004] AIRComm 13 at [25]; the highest it has come is not to be struck out as unarguable: Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803 per Collier J at [72], [78]. The concept of joint employment has similarly been rejected in the United Kingdom: Mersey Docks & Harbour Board v Coggins and Griffith (Liverpool) Ltd, supra.

109 I invited both parties to consider Orcher v Bowcliff Pty Ltd (No 4) [2011] NSWSC 862, where Harrison J granted leave to add the licensee of a hotel as a defendant, noting statements in Fleming's The Law of Torts, 10th ed (2011) at 449 that "[r]ecent jurisprudence indicates a shift in the view that liability can only be allocated to one employer". In Orcher v Bowcliff Pty Ltd, supra, the plaintiff was assaulted by a drunk hotel employee in an "entirely foreseeable" accident; the case turns on its facts and it is of no assistance on this issue. Harrison J granted leave to join the licensee on a General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 basis. However, the issue did not arise at trial: Orcher v Bowcliff Pty Ltd [2012] NSWSC 1088. This is as far as any consideration of these principles has gone in New South Wales.

110 The question is not whether Mr Unwin is a modern-day Truffaldino, but whether the modern Australian test of employment - a multi-factor test, where control is only one of a number of relevant indicia - can be satisfied on the facts of the case in order to identify who that employer may be: Hollis v Vabu Pty Ltd, supra, at [43] - [45]; Staff Aid Services v Bianchi, supra, at [27]. That test cannot be satisfied on the facts in this case.

111 In the event that I have erred in this finding, I set out my findings in relation to the defences pleaded. I have included the additional imputation of hypocrisy in these findings.

The defences

112 The defences are common law and s 30 statutory qualified privilege, honest opinion, triviality (s 33) and offer of amends (s 18).

Common law qualified privilege

113 The court must determine the following issues in relation to the defence of common law qualified privilege:

(a) Whether the publication was made on an occasion of qualified privilege;

(b) Whether the defamatory matter was relevant to that occasion; and,

(c) Whether by reason of the presence of malice the privileged occasion is lost.

An occasion of qualified privilege?

114 Where a person has an interest or a duty, whether legal, social or moral, to make a statement on an occasion and the recipients have a corresponding interest or duty to receive it, such a publication will be made on a protected occasion: Adam v Ward [1917] AC 309 at 334 per Lord Atkinson; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 at [9]-[10]. The principles governing qualified privilege are broad; as Gummow J explained in Bashford v Information Australia (Newsletters) Pty Ltd, supra, at [139], citing Dixon J in Guise v Kouvelis (1946) 46 SR (NSW) 419, when explaining that it was a question of fact and degree in each case, noted:

"[T]he very width of the principles governing qualified privilege for defamation makes it more necessary, in deciding how they apply, to make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication."

115 This "close scrutiny" requires a careful consideration of the relevant facts and circumstances surrounding the publication. By reason of my findings of fact, I have made findings in relation to each of a series of fact situations, including the fact situation put forward by the plaintiff and the fact situation put forward by the defendants.

116 The principles upon which a defendant must establish that the publisher and the recipient had a common interest arising out of the same set of circumstances were explained by the High Court in Cush v Dillon; Boland v Dillon (2011) 243 CLR 298 at 305-307. These are summarised by counsel for the defendants as follows:

(a) The defence of qualified privilege is based on notions of public policy;

(b) It is incumbent on the defendant to establish that he/she had a duty to convey the information; and,

(c) Whether a duty exists depends on the relative positions of the publisher and recipient, the nature and importance of the matters conveyed, and the relationship of the defamatory statements to these matters.

117 The principles have recently been considered by the High Court in Papaconstantinos v Holmes a Court (2012) 293 ALR 215 (in relation to statements which are volunteered) and by the New South Wales Court of Appeal in Marshall v Megna; Megna v Tory; Tory v Megna [2013] NSWCA 30 at [75]-[97] per Beazley JA.

118 In particular, strict reciprocity is not essential and incidental publication may be protected: Gatley on Libel and Slander, 11th ed., [14.66] and [14.73]; Haddon v Forsyth [2011] NSWSC 123 at [314]. The general test is whether the publication goes beyond the exigencies of the occasion.

119 The facts of the present case are a clear example of an occasion when the duty owed is not simply moral or social, but legal. These are licensed premises (Exhibit 6), and the licensee is required to comply with provisions of the Liquor Act 2007 (NSW). This includes the requirement, under s 73, of prevention of excessive consumption of alcohol in licensed premises, not to supply alcohol to intoxicated persons, and refuse entry to an intoxicated person. In addition, there are obligations to refuse entry to any person who is quarrelsome or disorderly, and not simply intoxicated (s 77 Liquor Act). This requires the services of a licensed security guard with appropriate training to form an impression based on the appearance of the patron as he/she presents himself or herself for entry into the club (T 188, 338).

120 Essentially the licensed security guard was hired for the purpose not simply of allowing people to enter the premises, but to ensure that the entry of those persons into the premises was in compliance with these statutory requirements. The potential for injury, accident, medical emergency or other potential problems arising from an intoxicated, quarrelsome or disorderly person coming onto licensed premises requires proactive regulation of the entry into licensed premises, and an essential part of that regulation requires the refusal of entry to persons known or suspected to be such persons. In other words, licensed security guards are not hired to let people in, but, where appropriate, to keep people out. Although he is called a "doorman" in the statement of claim, his job is not simply to open the door.

121 The plaintiff submitted that the occasion could not be privileged (or alternatively that the privilege was lost), because there was "excessive publication" (Gatley on Libel and Slander, 11th ed., [14.66]). Publication must be proportionate to the occasion, but the fact that there is some incidental publication (for example, to other persons in the queue, or in the immediate vicinity of the plaintiff in the street) should be permitted as otherwise society and its business could not be conducted.

122 As it happens, I am satisfied that the other persons in the queue, entering the nightclub or in the street nearby all had an interest in receiving information that a person within reasonably close physical proximity was being excluded from a night club. The security guard had a duty to these persons to warn of his actions in case there were any consequences.

123 Excessive publication offers only limited protection; for example in Bezant v Rausing [2007] EWHC 1118, a claim was brought where the claimant's daughter opened the letter. Gatley on Libel and Slander notes at [14.66] that "the minimal nature of the publication and the unlikelihood of damage meant that the claim was an abuse of process" and the claim was summarily dismissed on this basis. Gatley on Libel and Slander goes on to note that many of the older authorities on excessive publication would be summarily dismissed in this fashion. However, these principles have been rejected in New South Wales (Ehiozee v EDO Nigerian Association of NSW Ltd [2013] NSWSC 239; Bristow v Adams [2012] NSWCA 166 at [41] per Basten JA; Barach v University of New South Wales [2011] NSWSC 431), which may explain the large number of defamation claims in Australia for publication to one or to a handful of persons.

Relevance to the occasion

124 A defendant must establish that the communication was relevant to the occasion of qualified privilege: Horrocks v Lowe [1975] AC 135 at 151 per Diplock LJ. The defence will fail if the defamatory matter exceeded what was reasonably incidental to the legitimate purpose of the occasion: Papaconstantinos v Holmes a Court, supra, at [75]; Bashford v Information Australia (Newsletters) Pty Ltd, supra, at [27]. There must be sufficient connection to the privileged occasion to attract the defence. Anything not relevant to the discharge of the duty will not be protected: Marshall v Megna; Megna v Tory; Tory v Megna, supra, at [98].

125 The matter complained of, and the imputations asserted to arise therefrom, were relevant to the occasion, namely the reason why the plaintiff was refused entry to the Palms on Oxford nightclub.

126 The basis upon which relevance is challenged is that the matter complained of is alleged to have been published by the security guard in a loud voice, enabling as many as 70 or more persons to hear what was said, and in an aggressive tone.

127 Imputations of public drunkenness and unfitness to be admitted to licensed premises are matters which are relevant to other persons seeking entry to the nightclub or passers-by within the immediate vicinity. The fact that these words were spoken in a loud and aggressive manner do not detract from this relevance. Such a tone of voice and manner may, in the circumstances, have been appropriate. This could well have been the case if the plaintiff had been drunk as alleged.

128 I note my findings in relation to publication that I am satisfied that the security guard was Mr Unwin and that he did not speak in a loud or aggressive tone of voice. However, whoever the security guard was on the night in question, the fact-finding result would be the same. On the case as pleaded by the plaintiff, a security guard who spoke the words in the matter complained of in the manner asserted by the plaintiff would still be complying with the Liquor Act, in that there could be circumstances in which it may be appropriate to speak to an intoxicated, quarrelsome or disorderly person in this fashion.

129 I am satisfied that the communication was relevant to the occasion of qualified privilege. The issue of malice, which may defeat this defence if the plaintiff can establish it, is set out in more detail below.

Statutory qualified privilege

130 The statutory defence of qualified privilege (s 30) requires there to be an interest or an apparent interest in receiving the information. In the present case, not only did the plaintiff have such an interest, as well as his friends, but so did those persons who were in the immediate vicinity.

131 I shall deal with each of the matters in the s 30 checklist as follows:

(a) Sections 30(3)(a) and (b) - given the concerns about public drunkenness and the need for other persons in the immediate vicinity to know that a person was being excluded from licensed premises for such a reason, I consider the matter to be one of public interest and one performed by the security guard in the course of his activities under the Liquor Act.

(b) Section 30(3)(c): The seriousness of any defamatory imputations - these imputations are low in seriousness compared with other defamatory imputations.

(c) Section 30(3)(d): The extent to which the matter published distinguishes between suspicion, allegations and proven facts - I must take into account the difficulties under which Mr Unwin was operating, namely that he had a matter of seconds or at most minutes in which to determine whether to admit the plaintiff. The defendants should succeed on this particular.

(d) Sections 30(3)(e) and (f) - there could be few better examples of a publication needing to be made expeditiously, and in the business environment in which the defendants operate, than a statement by a security guard in relation to the drunkenness of a person attempting to enter licensed premises. The defendants make out these particulars.

(e) Section 30(3)(g), the source of the information - this was based upon Mr Unwin's own observation. He had been trained in order to observe the signs of alcohol consumption and he was relying upon that training. I consider the defendants here established this item in the checklist.

(f) Sections 30(3)(h) and (i) - the failure of the plaintiff to verify the information or to consult the plaintiff is the key issue in relation to this defence. However, in LVMH Watch & Jewellery Australia Pty Ltd v Lassanah [2011] NSWCA 370, Bergin CJ in Eq considered that the making of an enquiry afterwards was sufficient. In situations of emergency, such as an enquiry by a police officer or a security guard, this must be correct.

(g) Section 30(3)(j), any other circumstances the court considers relevant - I consider that the context of the situation is of great significance. This was a security guard who was performing a job which required him in effect to make decisions which required him to act quickly and without the luxury of proper enquiry.

132 For the reasons set out above, I accept the submission of the defendants that they are able to make out each item in the s 30 checklist.

133 The security guard had to form an impression of the plaintiff based on his appearance and his behaviour, doing the best he could, if he took the view that entry must be refused (T 337-338). Mr Unwin, for example, clearly formed a view about the plaintiff on the night in question based on their exchange of conversation. It is irrelevant that he was mistaken. Mr Kemp apparently also formed the view that the plaintiff was drunk, even though he had been with the plaintiff since 11:00pm (T 13 line 50; T 316 line 18).

134 It was reasonable not only to inform the plaintiff and his friends but it was reasonable that persons in the immediate vicinity, including those in the queue and on the street or roadway within a reasonable radius, should be warned that this event had occurred. Although Mr Kemp's evidence was that he saw security guards refusing entry to persons at least once a night when he was in Oxford Street (a place he frequented five nights a week) that does not undercut the seriousness of the potential damage their behaviour could do to passers-by, particularly if the persons excluded from entry were angry and/or sought to confront the security guard or other persons in the immediate vicinity.

135 I also note that the security guards contracted by ADCAS Pty Ltd were qualified and experienced security guards (Exhibit 4; T 337). Mr Unwin was a trained security guard with many years of experience.

136 As with common law qualified privilege, malice plays a role in this defence, although the degree to which it is of significance is uncertain. This is discussed in more detail below.

Honest opinion - section 31

137 Section 31 Defamation Act 2005 (NSW) essentially reproduces the common law defence of fair comment (Fraser v Holmes [2009] NSWCA 36 at [74]). The comment provisions in the Defamation Act 1974 (NSW) suffered from the problem that the defence had to be pleaded to the imputations, rather than to the matter complained of.

138 A s 31 defence requires consideration of the imputation in the context of the matter complained of to determine whether the allegations made of and concerning the plaintiff are statements of fact or opinion. The difference between fact and opinion has been explained by Giles JA in John Fairfax Publications Pty Ltd v O'Shane [2004] NSWCA 164 at [25]; it must be seen as a "deduction, inference, conclusion, criticism, remark or observation" (Lloyd-Jones v Allen [2012] NSWCA 230 at [43] per Nicholas AJA). It would be an oversimplification to regard the statement as being merely opinion: Trad v Harbour Radio Pty Ltd [2011] NSWCA 61; Marshall v Megna; Megna v Tory; Tory v Megna, supra, at [361].

139 However, s 31 has been even more unsuccessful than its predecessor under the Defamation Act 1974 (NSW). It has yet to succeed in any action where it is pleaded. In Lloyd-Jones v Allen, supra, at [43] Nicholas AJA approved its dismissal by the trial judge in the briefest of terms. The difficulty is that even imputations that a plaintiff is a bully or a coward (Bennette v Cohen [2009] NSWCA 60) have been interpreted as comment.

140 In Marshall v Megna; Megna v Tory; Tory v Megna, supra, however, an imputation of hypocrisy in the cross-claim was determined to be comment (at [351] - [371]). That is the true innuendo imputation pleaded in these proceedings.

141 Marshall v Megna; Megna v Tory; Tory v Megna, supra, does not refer to Bennette v Cohen, supra. It is not easy to reconcile decisions of the Court of Appeal that imputations of being a coward or a bully are fact, while an imputation of being a hypocrite is a statement amounting to comment.

142 Conformably with Marshall v Megna; Megna v Tory; Tory v Megna, supra, I am satisfied that the imputation of being a hypocrite, if such an imputation were capable of being conveyed (contrary to my findings) would be capable of amounting to comment.

143 However, imputations (a) - (c), when viewed in the context of the matter complained of, which relate to the plaintiff being excessively drunk, are incapable of amounting to an opinion. Statements to the effect that a person is drunk, or excessively drunk, are statements of fact.

144 I should briefly note whether, in relation to the true innuendo pleaded, the material is proper material for comment (Sims v Wran [1984] 1 NSWLR 317 at 322). "Proper material" is defined under s 31 as being substantially true, or published on an occasion of qualified privilege.

145 The role of the security guard at the nightclub front door was to exclude persons whose inebriation level could pose a danger to themselves, or to others, or to the venue. It required making a snap decision on very little information; just the appearance of a patron, or a few words in response to a question, might be sufficient basis for forming such an opinion. The risk of error was high, but so was the risk of failing to exclude a patron whose inebriation level resulted in personal injury, damage or worse. I am satisfied that any imputation of hypocrisy was based on material which was proper material for comment.

146 The remaining element of the defence, that the opinion must related to a matter of public interest, is clearly established, for the reasons explained by McColl JA in John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 at [123] - [180]. Governmental, media, medical and community groups' discussions about issues of public drunkenness have been, as the plaintiff noted in his evidence, matters of public interest for some years.

147 I would be satisfied that the defence of comment succeeds for the imputation asserted to arise by way of innuendo, but I reject the defence in relation to imputations (a) - (c).

148 In relation to malice, I repeat the observations I have made concerning my findings as to the qualified privilege defences as set out below.

Malice

149 The particulars of malice provided in the Reply are as follows:

(a) It was obvious to the doorman/security officer of "Palms on Oxford" that the Plaintiff was sober.

(b) Failure of the doorman/security officer to make proper or any enquiries and to ascertain by inspection at close quarters the sobriety or otherwise of the Plaintiff.

(c) Cover up by the Defendants in falsely representing that the Fourth Defendant was the doorman/security officer at the relevant time.

(d) Failure of the Defendants to disclose the name and address of the relevant doorman/security officer because of fear he would admit he was wrong in refusing admittance to the Plaintiff.

(e) Discrimination against the Plaintiff by the Defendants on the grounds of his physical appearance.

(f) Wrongfully false allegations made against the Plaintiff in the Defence that the Plaintiff was red faced, loud, agitated and quarrelsome and thereby not eligible to be admitted to the "Palms on Oxford".

(g) Insulting offer of amends.

(h) Wrongful attempts of the Defendants to escape liability because of a false claim they were not vicariously liable for the conduct of the doorman/ security guard.

(i) False statement in the Defence that it is not defamatory to allege that a teetotaller is drunk."

150 These particulars fall into the following categories:

(a) Particular (a) has been abandoned;

(b) Particular (b) relates to the failure of Mr Unwin to make "proper or any enquiry" before publishing the matter complained of;

(c) Particulars (c), (d) and (h) relate to what is called the "cover-up" namely the claim that the defendants have, by false representations and "wrongful" behaviour, sought to lie or otherwise withhold information from the court in these proceedings;

(d) Particular (e) is an allegation of discrimination against the plaintiff by each of the defendants on the grounds of his physical appearance; and,

(e) Particulars (f), (g), (h) and (i) relate to the conduct of this litigation.

151 Malice in relation to qualified privilege functions as follows, in relation to each of the defences:

(a) If proved (and the burden of proof lies on the plaintiff: Dillon v Cush; Dillon v Boland [2010] NSWCA 165), the common law qualified privilege defence is defeated;

(b) Malice will also be defeated if the plaintiff can prove that the publication of the matter complained of was actuated by malice: s 30(4); and,

(c) If proved, malice will also defeat a defence of honest opinion.

152 The relevant principles in relation to malice are discussed and explained by the High Court in Roberts v Bass (2002) 212 CLR 1 and in Cush v Dillon; Boland v Dillon, supra at [29] and [109]. Statements made by mistake, out of ignorance, due to carelessness or stupidity or even in circumstances amounting to recklessness will not destroy an occasion of qualified privilege: Marshall v Megna; Megna v Tory; Tory v Megna, supra, at [288] - [289].

153 The plaintiff's version of events was that he was singled out without warning by the security guard who simply spoke the words in the matter complained of "out of the blue". I have rejected that evidence, but even if the evidence given by the plaintiff was believed in its entirety, this would make no difference in my findings in relation to malice, for the reasons set out in more detail below.

Particular (b)

154 Counsel for the plaintiff submitted that the failure of Mr Unwin to smell the plaintiff's breath, or attempt to do so, amounted to a failure to make "proper or any enquiry". In addition, it was submitted that he should have spoken to the plaintiff in a more conciliatory nature, such as by saying "I think you may be drunk", which may have elicited a more informative response.

155 Mr Unwin gave evidence about the need to make decisions in a very short timeframe in circumstances where he had very little information to go on. He was trained to ascertain whether a person was drinking or not, and he was not cross-examined about any breaches of the protocols or skills he learned from the courses he had undertaken (apart from the suggestion that he should have smelled the plaintiff's breath, the provenance of which was never explained). Mr Unwin described some of the risks that a security guard would face when confronted by three men, one of whom he propose to exclude from entry into a nightclub. I am satisfied that he made proper enquiries.

The cover-up - Particulars (c), (d) and (h)

156 As indicated elsewhere in this judgment, I find the submission that the defendants have instituted a plan to exclude older members of the community from their nightclub, forged a security log entry and employment records, and procured false testimony from Mr Unwin to the effect that he was the security guard on the night, when it was someone else (by inference, a person not in the conspiracy) to be implausible.

Particular (e)

157 The Reply does not state in express terms that the plaintiff was excluded because of his age. Particular (e) refers to the plaintiff's "physical appearance" but what aspect of his "physical appearance" that may be was never made clear. There was reference to the plaintiff as being conservatively dressed, but that the plaintiff told the court he was wearing jeans. As indicated elsewhere, the plaintiff presented as a fit and healthy man who looked younger than his stated age.

158 Whatever else the security guard said, he did not say that the plaintiff was too old. The claim that the plaintiff was excluded for age reasons was the explanation proposed to the group by Mr Clifford, according to Mr Everingham (T 433):

"A. I think it was Adam that said, "You're too old," and that started to make sense. That seemed an obvious suggestion. I come from a community that's - it's a gay community. We've been discriminated against all our lives."

159 Mr Clifford simply leapt to a conclusion that the plaintiff was too old. He did not see or hear the events which led to the plaintiff being excluded. He was told about them by Mr Everingham, but all he knew was that the plaintiff was being excluded because the security guard said the plaintiff was drunk. Nothing was said about the plaintiff's appearance at any time.

160 There is no evidence of there being any intention of the security guard, let alone the defendants, to exclude persons on the basis of their appearance. Although Ms Evans led evidence of Mr Kemp never having to wait in line to attend Oxford Street venues because he was young and handsome, that does not mean the reverse is the case. This particular is not made out.

Conduct of the litigation - Particulars (f), (g), (h) and (i)

161 While conduct on the part of a defendant subsequent to the publication may provide evidence of an improper motive, it is an inference the courts are reluctant to draw: Tobin & Sexton at [18,040].

162 As is set out in more detail elsewhere in this judgment, the defendants have been successful in the defence of offer of amends and in their arguments concerning vicarious liability. Particulars (g) and (h) are not made out. I have accepted in general the evidence of Mr Unwin in relation to the circumstances in which he refused the plaintiff admittance to the Palms on Oxford, but even if I had not, he was entitled to give evidence to this effect. The circumstances in which the mere giving of evidence which is not accepted by the court would amount to evidence of malice would have to be exceptional. Counsel for the plaintiff could not direct me to any authority where such a finding had been made.

163 However, there is a more fundamental reason why a plea of malice must fail, and that is that the malice must be the malice of the defendants, in circumstances where a defendant is shown to be a servant or agent: Tobin & Sexton at [18,045]. In addition, although the law on this issue is unsettled, in my view, it is the better view that each of the defendants must individually be shown to be malicious. This brings me to a consideration of the problem of vicarious liability for malice in relation to a statement by a person other than the defendant.

Vicarious responsibility for the malice of a servant or agent

164 Mr Unwin is not a servant of any of the defendants. In addition, the first defendant is a corporation. In Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 72 per Hunt J and in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [113]-[127] per Callinan J, the limited circumstances in which a corporate publisher may be liable for the knowledge of its employees are set out and explained.

165 Where the publication has been made by a person who is not an employee, but who is argued to be an agent, real difficulty arises. Ms Chrysanthou relied upon Hay v Australasian Institute of Marine Engineers (1906) 3 CLR 1002 at 1011-1016. The plaintiff in those proceedings had brought a claim against an organisation in relation to defamatory material handed around at a conference by the organisation secretary who, it was alleged, was motivated by a desire to injure the plaintiff, which would defeat a defence of qualified privilege. Griffith CJ, with whom Barton J agreed, said that:

"The rule as to imputing the knowledge of a servant to the master is a rule of common sense. If I employ a man to receive information for me, and information is given to him, the knowledge of my servant may properly be imputed to me. And if I employ a man to act at his discretion as my servant, and he acts within the scope of his authority, I am properly held responsible for what he does, and if he does a wrongful act I am responsible for the consequences. But if I tell him to do a lawful act, and he afterwards on his own account does the act with a wicked motive, that does not make it unlawful in me. A lawful act does not become unlawful because it is done with an unlawful motive. You cannot impute the knowledge of a servant to his master in a matter in which the knowledge has not been communicated to the servant for the purpose of being transmitted to the master. The words of Vaughan-Williams, LJ, in Re Hampshire Land Co, (1896) 2 Ch , at p 749, seem to me applicable in principle to the present case, in regard to the suggestion that officers ought to be taken to have communicated knowledge received by them to their employers. After referring to two cases that had been cited, he said -

The test applied by the court was this - First, was it within the scope of the duty of the officer to give notice to the other Company of the information he had got; and, secondly, was it within the scope of his duty, as the officer of the Company sought to be affected by notice, to receive such notice?

I think that exactly the same principle applies to the suggestion that the knowledge of Corby, the secretary, was the knowledge of the trade union of which he had become the servant, and that on that account the contention entirely fails. The other two persons by whom the statement was published were in the same position as Corby, and the same arguments apply to them."

166 O'Connor J concurred:

"... it is said that the occasion has been misused because Corby had knowledge that the resolutions contained an untrue statement about the plaintiff. I do not think it necessary to refer to the cases cited by Mr Ferguson or to follow in detail the able argument, in which he endeavoured to show that Corby's knowledge, whatever it was, in regard to the affairs of the Institute, particularly in regard to the documents in his possession after the registration, was to be imputed to the corporation. I assume for the purpose of this judgment that the corporation had a knowledge of everything in the documents which Corby had officially in his possession, and that they had knowledge of everything which he knew as official manager of the corporation. Even under those circumstances there was no evidence whatever that the corporation in publishing this report in any way misused the occasion."

Malice and joint tortfeasors

167 While the malice of a servant or agent may be vicariously attributed to an employer or principal, what is the situation where a defamatory publication is made by more than one person, such as members of a committee or joint or concurrent tortfeasors where some, but not all, may be argued to be malicious? Tobin & Sexton at [18,065] note this as being "still not authoritatively resolved in Australia so far as this issue is concerned". Essentially the question is whether the plaintiff must establish that each of the three defendants is malicious, or whether the malice of one will be sufficient to establish the malice of all. This is further complicated by the fact that this was not a situation (such as Egger v Viscount Chelmsford [1965] 1 QB 248), where the persons in question were members of the same committee. Each of the three defendants performed a different function in relation to the conduct of the Palms on Oxford nightclub.

168 The conclusion that the malice of one defendant may be imputed to one or more co-defendants was first expressed in Smith v Streatfeild [1913] 3 KB 764, where the malice of the author of a pamphlet was imputed to the printers, even though the printers were otherwise completely innocent for any malicious intent. In Brown on Defamation, 2nd ed. (Carswell), Professor Brown notes at [16.5] that this decision "foretold disastrous consequences" for publishers, and was subject to severe criticism by writers (such as Fleming's The Law of Torts, 8th ed, 1992 at p 580), Law Reform Commissions (such as the Faulks Committee (Recommendation 276)) and eventually overruled in Egger v Viscount Chelmsford, supra, in relation to qualified privilege. Egger v Viscount Chelmsford, supra, was referred to in Cornwall v Rowan (2004) 90 SASR 269 at 373 (at [450]) and in Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251 at [77], where the court said that:

"there is no doctrine of transferred malice in the law of defamation apart from the ordinary principles of vicarious liability: Dougherty v Chandler (1946) 46 SR (NSW) 370; Egger v Viscount Chelmsford [1965] 1 QB 248 CA."

169 In New Zealand, McLeod v Jones [1977] 1 NZLR 441 at 444, White J arrived at a similar conclusion.

170 However, in Roberts v Bass, supra, Callinan J appeared to embrace the view expressed in Smith v Streatfeild, supra, at [117] and [126]. Kirby J nevertheless expressly approved the view in Egger v Viscount Chelmsford, supra, stating that "each person's malice must be judged individually" (at [182]). Their Honour's views remain in conflict.

171 The difficulty is that in Webb v Bloch, supra, the decision of Smith v Streatfeild, supra, was accepted by the High Court as correct (at 363) although, as Tobin & Sexton note (at [18,060]), this acceptance was not necessary to the ratio of that case.

172 Smith v Streatfeild, supra, was distinguished by Slade J in Longdon-Griffiths v Smith [1951] 1 KB 295, a decision described as a "tottering authority" by Jordon CJ in Dougherty v Chandler (1946) 46 SR (NSW) 370 at 375-376 as follows:

"Where several defendants are charged with joint defamation, and express malice is established against one only, it has been said that the express malice of the one is fatal to the success of a plea of privileged occasion of fair comment by all or any ... This may be true enough where the others are, on general principles, vicariously liable for the acts of the one ... But, except in this class of case, I think, with all respect, that, as a matter of principle, where, to defeat a plea of several defendants sued jointly, it is necessary for the plaintiff to prove express malice, he must fail as against any defendant to whom he is unable to sheet home express malice."

173 These authorities were all recently considered in LVMH Watch & Jewellery Australia Pty Ltd v Lassanah, supra, where Bergin CJ in Eq at [66] stated:

"[66] The Respondents' submissions included the contention that where there is a joint publication or publication by joint tortfeasors then the malice of one or some infects the others so that all are liable. In this regard the Respondents relied on Webb v Bloch (1928) 41 CLR 331 and submitted that if the employees of the Shop were malicious, the police officers who took part in the publication are deemed to have been infected by their malice and would lose the defence of qualified privilege [OB 61-64]. The Appellant and the Police questioned the correctness of this proposition and in doing so relied upon Egger v Viscount Chelmsford [1965] 1 QB 248 which overruled the case of Smith v Streatfeild [1913] 3 KB 764 upon which the High Court had relied in Webb v Bloch. In Egger v Viscount Chelmsford the Court of Appeal (Lord Denning MR, Harman and Davies LJJ) limited the principle to circumstances in which an agency was proved. This limitation had also been noted by Jordan CJ, with whom Maxwell and Owen JJ agreed, in Dougherty v Chandler & Ors (1946) 46 SR (NSW) 370 at 375-376. Having regard to the conclusions I have reached below it is unnecessary to decide this issue."

174 Although Bergin CJ in Eq considered it was "unnecessary to decide this issue", her Honour did in fact set aside the qualified privilege findings on the basis that a party not sued for defamation (LVMH Watch & Jewellery Australia Pty Ltd ("LVMH")) had not been motivated by malice. The plaintiffs' action for defamation against the police arose from statements police made, outside the LVMH store, where police had made the plaintiffs sit on the footpath while they spoke to store staff. (In fact there had been no hold-up and the plaintiffs, an intellectually disabled man and his carer, successfully brought proceedings against both the police and LVMH for false imprisonment). Her Honour set aside trial findings that LVMH store staff pressed the "hold up" emergency button after the plaintiffs left the store, and considered this evidence conclusive in setting aside the qualified privilege findings in the defamation action the plaintiffs had brought against the police. Her Honour's findings that LVMH was not malicious suggest that her Honour favoured the Smith v Streatfeild approach.

175 However, LVMH (called "the Appellant" throughout the judgment) should not have been a party to the appeal at all; LVMH was only the cross-defendant to the police cross-appeal (LVMH Watch & Jewellery Australia Pty Ltd v Lassanah, supra, at [22]). LVMH's malice (or absence thereof), if relevant to the court's findings on the qualified privilege defence, required the court to rule specifically on whether malice by a third party or co-defendant could be relevant in determining the malice of the police. LVMH should not have called itself "the Appellant", or made submissions on appeal, including submissions on malice, when it was not in fact the appellant. The findings by Bergin CJ in Eq concerning the absence of malice by LVMH should not be read as endorsing the Smith v Streatfeild approach. The neutral view her Honour took is clearly as set out in LVMH Watch & Jewellery Australia Pty Ltd v Lassanah, supra, at [66].

176 Whether or not the malice of one may infect all defendants, there still must be analysis of malice on a defendant-by-defendant basis, if only to determine which defendant was malicious. The plaintiff in these proceedings has not even attempted this.

177 Not only have the defendants been treated as if they are one person, but no attempt has been made to identify the basis upon which one or more of them may be vicariously liable for the malice of the security guard in excluding the plaintiff from the nightclub. Beyond proffering the motive of age discrimination (and the basis upon which the defendants put a plan into operation to bring this about was never the subject of evidence or submissions), the basis upon which the malicious motive of one or all of the defendants, individually or in concert, was never explained.

178 The plaintiff has failed to discharge the onus in relation to malice on these bases.

Malice and s 30

179 I briefly note the submission of the defendants in relation to the role of malice in s 30 Defamation Act 2005 (NSW). A finding of the presence of malice may play a part in defeating a s 30 defence. In LVMH Watch & Jewellery Australia Pty Ltd v Lassanah, supra, at [137]-[142] Bergin CJ in Eq took this principle further, and considered that absence of malice was sufficient to defeat a s 30 defence, either by itself or in combination with one or more findings in favour of the defendants in relation to the checklist.

180 I therefore also note that malice has not been established by the plaintiff, a relevant factor for the purposes of s 30 (s 30(4)).

Triviality - s 33

181 Section 33 of the Defamation Act 2005 (NSW) provides:

"33 Defence of triviality

It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm."

182 The formula "unlikely to sustain any harm" differs from the formulation "not likely to suffer harm" contained in s 13 Defamation Act 1974 (NSW) which was the provision in force when Jones v Sutton (2004) 61 NSWLR 614 was handed down. The defence of unlikelihood of harm is not found in any other common law jurisdictions. Rich J, in Lang v Willis (1934) 52 CLR 637 at 650, held that this defence was available for slander since its introduction in 1847 "to meet the hard conditions of pioneer days". It was considered appropriate for publications made in the heat of a family squabble, or a quarrel in a shearing shed, or in a taproom or bar. More recently, in Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691, Moffitt P noted that publication of a defamatory statement to friends in a bar may fall within s 13.

183 Counsel for the defendants submits that the difference between s 33 and s 13 of the repealed legislation picks up the language of Mahoney JA in King & Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305. This decision was distinguished in Jones v Sutton, supra, where the court noted that what Mahoney JA had meant to say was that the plaintiff was "likely" not to be harmed at all. However, following the change of language in the section to restrict the wording, it may be that this is no longer the case. In Papaconstantinos v Holmes a Court, supra, at [105] McCallum J adopted this interpretation of s 33. While there is no judgment at appellate level supporting this interpretation, McCallum J's judgment was considered on appeal in relation to the qualified privilege defence, and no point was taken about the correctness of her Honour's approach to the s 33 defence.

184 Ms Evans also adopted the criticism of Jones v Sutton, supra, in Szanto v Melville [2011] VSC 574 at [157]-[164], namely that upset and hurt to feelings should be included. This is a controversial submission as it is inconsistent with the ratio of Jones v Sutton, supra, as Kaye J noted in Szanto v Melville, supra, at [163]-[164].

185 Although the defendants submit that I should apply the more generous test set out in Jones v Sutton, supra, I am of the view that I should, conformably with the approach taken by McCallum J in Papaconstantinos v Holmes a Court, supra, have regard to the change of wording in s 33 and adopt the same approach in the interpretation of this provision as that taken by McCallum J.

186 This publication has many of the features of actions in relation to which this defence is brought. There is publication of an imputation towards the bottom of the range in terms of seriousness, and it was made in private circumstances and to persons with knowledge of the plaintiff's reputation (Jones v Sutton, supra, at 618). In relation to any incidental publication, there is no evidence that any of those persons knew who the plaintiff was. In addition, there is evidence that drunkenness is common in Oxford Street, that refusal of people for drunkenness was a common occurrence in Oxford Street nightclubs at that time of night, and that the allegation could have been made to Mr Everingham as well as the plaintiff (T 324-326).

187 An allegation of being drunk in Oxford Street could well fall within the range of publications protected by s 33. However, the imputations pleaded by the plaintiff go beyond that. They connote not merely drunkenness, but drunkenness to the extent that he had been, and should be, denied access to licensed premises, and in circumstances which would make him in the eyes of those knowing the extrinsic facts a hypocrite. The question is whether these factors are outweighed by the other factors in the s 30 checklist.

188 Although this is a borderline case, the circumstances are that the publication was made to one or more of the plaintiff's three "very dear" friends, all of whom were "dumbfounded" by the allegation, and who were in his company for long enough, both before and after this incident, to form their own views. Indeed, their views were that the plaintiff must have been excluded for another reason, namely his age.

189 Taking all of the above into account, the defence under s 33 is made out.

Offer to make amends - s 18

190 Where a defendant has made an offer to make amends and it has not been accepted by a plaintiff, the defendant may be entitled to a defence under s 18.

191 Although the procedure of offer of amends has been successfully used in the United Kingdom (see, for example, Nail v News Group Newspapers Ltd [2004] EWCA Civ 1748), it is a defence rarely relied upon in Australia, with the result that there has been only passing judicial consideration in cases tending to turn on their own facts (as occurred in Bushara v Nobabananas Pty Ltd [2013] NSWSC 225 at [93] - [107]). The defence has yet to be relied upon successfully in Australia.

192 The defendants made an offer promptly, having been served with the statement of claim shortly after it was filed on 30 August 2012. There was no reply by the plaintiff to that offer, although such a procedure is available. The plaintiff never responded, and never sought an apology from the defendants (T 272). Ms Evans submitted that the issue of a statement of claim amounts to a request for an apology, but such a submission cannot survive a defence which includes an offer of amends making a provision of this kind. Moreover, the defendants' offer remained open from the time it was made up until the trial of these proceedings.

193 The next issue is whether the offer is reasonable. The defendants submit that it is reasonable because:

(a) It was made promptly after receipt of the statement of claim;

(b) It included an offer to publish an apology;

(c) The defendants pointed out that they were not vicariously liable for publication by a security guard, and this and other defects in the pleading were the subject of a successful application in the Defamation List;

(d) The security guard was doing his job, and the defendants had a duty to ensure that he did his job pursuant to the Liquor Act 2007 (NSW);

(e) There were strong defences of triviality and qualified privilege.

194 An offer of amends is not like an offer of compromise. The purpose of the introduction of this provision was "to avoid expensive litigation" (Second Reading Speech, Mr Bob Debus MLA, 13 September 2005, p. 17637). Mr Debus went on to state, in the context of s 20, that "sorry is a singularly powerful word", capable of healing the hurt caused by "an ill-conceived or careless publication".

195 When determining what is reasonable, the fact that an offer is made speedily, and includes an offer to publish an apology, is significant. It is all the more significant where no apology has been sought but where the plaintiff's evidence has been, in the proceedings before me, all that he wanted was an apology.

196 Ms Evans submitted that the offer of apology was not reasonable, pointing me to the matters raised in the proceedings for relief in the Administration Decisions Tribunal. She submitted that the defendants should have offered not only to apologise, but also to guarantee that their age discrimination should not recur, and to acknowledge their wrongdoing.

197 I do not accept this submission. The offer of amends procedure relates to defamation proceedings only. It should not be extended to litigation in other courts or tribunals. The plaintiff was entitled to his remedy in the Administrative Decisions Tribunal, having already commenced proceedings there, and could have sought relief of this kind from that Tribunal. As Mr Debus pointed out in the Second Reading Speech, the offer of amends procedure should not preclude the making of other settlement offers (Hansard, p. 17637).

198 While I do not consider the defendants' view of their success in this litigation ((c) - (e) above) to be relevant, their prompt and genuine offer of amends was, in the context of the facts of this case, reasonable, particularly since it remained open up until the trial. Accordingly, this defence would succeed.

199 I also note that an offer of amends is not a matter that can be taken into account as a matter going to damages, and cannot be relied upon in relation to any claim for aggravated compensatory damages. In addition, the circumstances in which an offer of amends would, if pleaded, be capable of amounting to malice would have to be exceptional, and I reject this particular of malice.

200 I shall include some brief observations on the subject of quantum.

Quantum

201 While damage is presumed (Bristow v Adams, supra, at [20] - [31]), this is a limited publication to between one and three recipients (depending upon how many of the plaintiff's friends heard what was said) in circumstances where, as Mr Everingham stated, the allegation that the plaintiff was drunk was dumbfounding.

202 The defendants submit that this was a case that should never have been brought, as the costs far outweigh any benefit to the plaintiff. This is a familiar complaint in defamation litigation (Bristow v Adams [2011] NSWDC 11) but it is one with which appellate courts have little sympathy: Bristow v Adams at [41] per Basten JA. The summary procedure for dismissal of actions on the basis of disproportionate costs (Schellenberg v British Broadcasting Commission [2000] EMLR 296) has been decisively rejected by the New South Wales Court of Appeal.

203 Publications to one or more persons are a feature of Australian defamation actions. No judicial comment was made, in Cush v Dillon; Boland v Dillon, supra, or Jones v Sutton, supra, to the effect that publication of a few words, to one to three persons whose response was sceptical or disbelieving, was an action that should not have been brought. Accusations of public drunkenness to the extent that the plaintiff should be refused admission to licensed premises, although not as serious as allegations of adultery, or of improper conduct by an alderman, are not accusations warranting nominal damages.

204 The damages awarded in both Cush v Dillon; Boland v Dillon, supra, and Jones v Sutton, supra, were $5,000. Both those decisions were handed down prior to the imposition of a cap on damages in defamation, which was introduced to discourage inappropriately high verdicts. In Jones v Sutton, supra, there was evidence of the "grapevine effect", as there has been here; moreover there were three publications, and not merely one.

205 In Haddon v Forsyth, supra, at [369], a claim for damages brought under the current legislation, Simpson J stated she would have awarded $5,000 for a publication to 5 - 10 people accusing the plaintiff of sexual harassment. Claims for damages in defamation are now conducted on principles appropriate for a cap on damages. In Jeffrey v Giles [2013] VSC 268, where extensive evidence of grapevine effect and damage in a local community arising from website publications was led, damages of $8,000 and $12,000 were awarded to each of the plaintiffs.

206 I take into account the principles explained by the High Court in Rogers v Nationwide News Pty Ltd, supra, at 347 per Hayne J, and the provisions of s 34 regarding an appropriate relationship between the harm sustained and the amount awarded. Whether there was publication to one or three persons, or to a queue of more than a dozen, or to the many passers-by, I am satisfied that an appropriate sum to award would be $3,000. This amount would also take into account the "grapevine effect" of publications coming to the attention of the plaintiff's professional associates such as Mr McDermott. Many of these publications were, I find, made by the plaintiff himself, such as his conversation with Mr Tim Webster, and thus not compensable.

207 Aggravated compensatory damages should not be awarded. The particulars relied upon are knowledge of falsity and the allegation that the security guard knew the plaintiff was sober. Neither of these particulars would justify an award of aggravated compensatory damages: Haertsch v TCN Channel Nine Pty Ltd [2010] NSWSC 182 at [49] - [62]. Nor would the conduct of the trial by the defendants (about which submissions were made, but which was not particularised; see Gatley on Libel and Slander at [34.58]) warrant the award of such damages; see Jeffrey v Giles, supra, at [57].

Concluding remarks

208 I have found that the matter complained of was not published, but that if it were, none of the defendants is vicariously liable for the statements of the security guard, whether he was Mr Unwin or some other security guard employed by ADCAS Pty Ltd. I have also made alternative findings that if the matter complained of were published, the three imputations conveyed by the natural and ordinary meaning are defamatory, but published on occasions protected by qualified privilege at common law and pursuant to s 30 of the Act, and that the plaintiff has failed to prove any of the defendants were malicious. I have also held that the defences of triviality and offer of amends have been made out but that the defence of honest opinion would fail in relation to the imputations arising by way the natural and ordinary meaning. In the event that damages were to be awarded, I would have awarded $3,000. I would not have awarded aggravated compensatory damages.

Orders

(1) Judgment for the defendants.

(2) Plaintiff pay defendants' costs.

(3) Liberty to restore in relation to costs.

(4) Exhibits retained for 28 days.

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Decision last updated: 19 June 2013