Supreme Court New South Wales

• Medium Neutral Citation: Cantwell v Sinclair [2011] NSWSC 1244
• Hearing dates: 04/04/2011, 05/04/2011, 06/04/2011, 07/04/2011, 11/04/2011, 12/04/2011
• Decision date: 25 October 2011
• Jurisdiction: Common Law
• Before: Rothman J

Decision

(i) Judgment for the plaintiff;

(ii) The defendant shall pay damages in the sum of $77,750 (including interest) to the plaintiff;

(iii) Within seven days of the date hereof, the plaintiff shall file and serve a document setting out its claim for any order as to costs and within a further seven days thereafter the defendant shall respond thereto. If there be no agreement, the Court shall contact the parties in order to direct written submissions and/or a short hearing on costs.

• Catchwords: DEFAMATION - defamatory imputations conveyed by email - qualified privilege - occasion of qualified privilege - two alternative bases - each destroyed by improper motive - damages awarded
• Legislation Cited: Defamation Act 2005
• Cases Cited: Aktas v Westpac Banking Corporation Limited [2010] HCA 25; (2010) 241 CLR 79; Ali v Nationwide News Pty Ltd [2008] NSWCA 183; Amalgamated Televisions Services v Marsden (1998) 43 NSWLR 158; Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366; Bellino v Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183; Bennette v Cohen [2009] NSWCA 60; Brett HOLMES v Andrew FRASER [2008] NSWSC 570; Cush v Dillon and Boland v Dillon [2009] NSWDC 21; Cush v Dillon; Boland v Dillon [2011] HCA 30; (2011) 85 ALJR 865; Goyan v Motyka [2008] NSWCA 28; Guise v Kouvelis [1947] HCA 13; (1947) 74 CLR 102; Haddon v Forsyth [2011] NSWSC 123; Higgins v Sinclair [2011] NSWSC 163; Holmes a Court v Papaconstuntinos [2011] NSWCA 59; Manefield v Child Care NSW [2010] NSWSC 1420; Megna v Marshall [2010] NSWSC 686; Papaconstuntinos v Holmes a Court [2009] NSWSC 903; Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460; Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500; Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1
• Category: Principal judgment
• Parties: Melanie Cantwell (Plaintiff); Douglas Sinclair (Defendant)
• Representation: Counsel: R Potter (Plaintiff); T Molomby SC / M M Fraser (Defendant); Solicitors: Lander & Rogers Lawyers (Plaintiff); Willis Lawyers (Defendant)
• File Number(s): 2009/297730

Judgment

1 Ms Melanie Cantwell claims damages for defamation arising from publications of the defendant, Mr Douglas Sinclair. Ms Cantwell and Mr Sinclair are each active in dragon boat racing and Ms Cantwell is and was at relevant times a paid employee of the dragon boat racing organisation in New South Wales, Dragon Boats NSW Inc (hereinafter "DBNSW"). Ms Cantwell was the business manager of DBNSW. Ms Cantwell was also a volunteer official of the Australian Dragon Boat Federation (hereinafter "AusDBF") and fulfilled the role of Administrative (Technical) Director.

2 Mr Sinclair is and was at relevant times a member, president and coach of the "Different Strokes" Dragon Boat Racing Club, which is a club affiliated to DBNSW.

3 On or about 4 April 2009, Mr Sinclair published throughout Australia, including NSW, a series of emails to a large number of persons all of whom are active in dragon boat racing. Those emails, in part at least, refer to Ms Cantwell and are the publications that Ms Cantwell alleges contain defamatory imputations.

4 Ms Cantwell submits that in their natural and ordinary meaning the emails convey imputations in or to the following effect (or not different in substance):

"(a) The plaintiff spitefully used her best efforts to prevent the defendant from being promoted up a grade (from level one to level two) as an Official of the International Dragon Boat Federation (IDBF) for the reason that the plaintiff was offended that she herself had not been invited by the IDBF to move grades from level one to level two. (First Email: 32-55, 85-113; Second Email: 55-85, 116-155)

(b) The plaintiff dishonestly misused her position as a director of the Australian Dragon Boat Federation by nominating her friends to be subsidised Officials for a forthcoming international dragon boat Regatta in Prague and excluding the defendant as a nominated subsidised Official. (First Email: 80-124; Second Email: 111-168)

OR ALTERNATIVELY (Fallback to (b))

(c) The plaintiff engaged in nepotism by nominating her friends to be subsidised Officials for a forthcoming international dragon boat Regatta in Prague and excluding the defendant as a nominated subsidised Official. (First Email: 80-124; Second Email: 111-168)

(d) The plaintiff sexually discriminated against men when nominating her female friends to be subsidised Officials for a forthcoming international dragon boat Regatta in Prague. (First Email: 80-124; Second Email: 111-168)."

5 Ms Cantwell claims she has been injured in her character and reputation, has been subject to hatred, contempt and ridicule and has suffered loss and damage as a result.

6 Mr Sinclair does not deny (although there is no formal admission in the pleadings) the publication of the emails. Mr Sinclair formally denies that the emails are defamatory and that they contain the imputations alleged by Ms Cantwell. Alternatively, Mr Sinclair maintains that each email was published on an occasion of qualified privilege at common law "in that the defendant as a member of the Dragon Boat Racing Community, and president and coach of the open 'Different Strokes' dragon boat racing club within that Community, had a duty and interest to communicate with other members of that Community, who had a reciprocal duty and interest in receiving such communication, on the subjects of the matters complained of, being subjects of public interest and subjects material to the management of the affairs of that Community and the conduct of the plaintiff as the Business Manager of the New South Wales State Body, [DBNSW], and Administrative (Technical) Director of the [AusDBF]." Aggravated damages are also sought by Ms Cantwell and opposed by Mr Sinclair.

7 Ms Cantwell filed an Amended Reply in which she denied that there was a qualified privilege and, in the alternative, resisted any qualified privilege on the basis that the publication had been "actuated by an improper motive or improper motives constituting malice by the defendant, namely:

(a) knowledge of falsity or recklessly indifference to truth or falsity of the defamatory imputations conveyed by the matter complained of on the part of the defendant;

(b) a desire on the part of the defendant to injure or discredit the plaintiff."

Particulars of the malice are provided and not reiterated in this judgment.

The publications

8 The first email is in the following terms:

From: [e-mail] [mailto:[e-mail]] On Behalf Of Doug Sinclair Business-Thinking Pty Ltd

Sent: Saturday, 4 April 2009 9:09 AM

To: [e-mail]

Subject: [DBNSWCIubs] Importance High please read all of this you too may be affected one day

This could happen to you too! Think about it!

This is important and is going to everyone across Australia.

Each of us becomes hooked on this sport in one way or another.

It is addictive as can be seen by visiting the homes of State and National Crew members at the height of their respective campaigns i.e., housework takes a back seat.

For some others it is not just the paddling but also about being a top Official or top coach or a top sweep or helping the sport grow and helping clubs develop.

For me it is about many of those things, more so than being a top athlete, that comes next and all above the housework.

For our sport to develop and mature to a point where the press take notice and broadcast us by their choice, plus we are approached routinely by significant sponsorships we need a few things to happen.

1) We need many people to step up to the plate and become world class paddlers

2) We need significant numbers of people to equally go through the rankings to world class coaches, Sweeps, Officials.

3) We also have to put in place serious and structured marketing plans including strategies to research our various marketing processes to filter the best and dump that which doesn't work. By learning along the way we should constantly improve our results.

Unfortunately a situation is now developing where only a select few get the opportunities they need to contribute to their full potential. Not because the opportunities are not there but because personal feelings, opinions, and friendships are proving to be a strong influencing factor from some with the controlling power. We are missing out on the contributions and development of many good people and Like CCTV systems you don't know what you didn't capture.

Why do I say that?

In 2007 I completed my IDBF Official exams during the Worlds in Sydney. I then devoted all my time at every chance I could get to grow my experience as an Official. Late 2007 I successfully approached IDBF for the right to attempt another grade level (L1 to L2) while in Penang 2008. I was about the first person worldwide to put my hand up but I needed some top officials roles to qualify.

In January 2008 when all looked good and I had confirmations for a top role at our Nationals plus a confirmation I could be assessed for L2 at Penang, Melanie Cantwell became aware of my plans.

She was offended that I should have such a chance because she had not been invited to move up from L1 to L2 by IDBF. I pointed out it was not an invitation; I worked for it, I applied for it, and I lobbied hard for it.

Some know the next bit of strong ugly political lobbying that came from Melanie to stop me both in Australia for my role as Chief Marshall at Nationals and also at IDBF to stop me being assessed for L2. Thankfully the organisers in Perth refused to bend to pressure so I did get to work as Chief Official.

The outcome was that although Melanie had not applied to IDBF for assessment she ended up switching me out from Penang assessment and switched both her and Janine Lette in. Both Melanie and Janine went from L1 straight to L3 through their assessments.

At Penang I asked each of Bryan Hartley and Mike Haslam if I could do my L2 Official's assessment in Prague. They said yes. I worked very hard to that end ensuring I had sufficient runs on the board.

7/10/'07Penrith	Regatta	Chief Finish Line Judge	DBNSW Race 1
ll/11/'07Roseville	Regatta	Chief Race Official	DBNSW Race 2
8/12/'07Penrith	Regatta	Chief Finish Line Judge	DBNSW Race 3
10/04/'08Champion Lakes WA	Regatta	Chief Marshall	AusDBF National DB Championships
11/04/'08Champion Lakes WA	Regatta	Chief Marshall	AusDBF National DB Championships
31/07/'08Penang	Regatta	Finish Line Water Umpire	IDBF World Club Crew Championships
1/08/'08Penang	Regatta	Finish Line Water Umpire	IDBF World Club Crew Championships
2/08/'08Penang	Regatta	Finish Line Water Umpire	IDBF Asian Dragon Boat Championships
3/08/'08Penang	Regatta	Finish Line Water Umpire	IDBF Asian Dragon Boat Championships
12/10/'08SIRC	Regatta	Chief Finish Line Judge	DBNSW Race 1
4/11/'08SIRC	Regatta	Chief Finish Line Judge	DBNSW Race 2
2/12/'08SIRC	Regatta	Chief Finish Line Judge	DBNSW Race 3
10/01/'09Tacoma	Regatta	Chief Umpire	DBNSW Race 4
7/02/'09Darling Harbour	Regatta	Chief Umpire	DBNSW Race 5
21/03/'09SIRC	Regatta	Chief Judge & Umpire	DBNSW State Titles

I was also the first person to ask to be considered for a role at the Nationals but that was turned down.

At the 2008 AusDBF Board Elections Melanie became Technical Director and Janine returned for another season as Administrative Director. I and another were to be nominated for roles on the board but politics prevented us receiving our democratic right of nomination and voting process. Most board positions were therefore filled unopposed due to the politics on the day.

Although nomination to be assessed for IDBF Official levels 2 and above don't require your country's board to be involved Melanie chose to involve herself in my case to the point where the end result of politics is that Melanie has autonomous control of selection/nomination of candidates to go forward in IDBF.

Today I received the announcement that Melanie's recommendations for Prague have been ratified and overturned a previous commitment made to me by members of IDBF. Those places are now:

Melanie Cantwell to attend workshops for Level 3/4 IDBF Official (Subsidised)

Janine Lette to attend workshops for Level 3/4 IDBF Official (Subsidised)

Phil Reader to attend workshops for Level 3/4 IDBF Official (Subsidised)

Karen Taylor to attend as Official (Subsidised)

Sylvia Wong to attend as Official (Subsidised)

Belinda Chung to attend as Official (Subsidised)

Doug Sinclair as general volunteer (not subsidised)

Correct me if I'm wrong but Sylvia has been absent in Hong Kong for the entire season.

Janine, Karen and Sylvia are close friends of Melanie.

Karen is a member of the same Club Melanie paddles with.

Melanie often complains the sport has a glass ceiling but this looks as though Females sit above the glass by a significant majority and more so if they are pals with Melanie.

There is something fundamentally wrong when two Directors of AusDBF keep to themselves every best opportunity offered from IDBF TWO OR MORE YEARS IN A ROW THEN HAND OUT THE OVERFLOW TO THEIR CLOSE PALS.

That is an abuse of privilege that should not be permitted.

It is greedy and selfish and not in the spirit of the sport.

I have had communications with each of Mike Haslam and Mike Thomas on this.

I have now recommended a change to the IDBF rules and regulations to prevent any Director of a Member to IDBF behaving in this selfish manner again anywhere in the world.

It's sad and embarrassing that Australia had to be the first.

In the suggested reform A Director would only be permitted one such opportunity every three years unless there are uncontested vacancies for their country.

I had my application in first, I work hardest all year volunteering at all regattas and working each time as a top level Official to get my CV ready for Prague and I was the one dumped by Melanie in recommendations to IDBF for going to Level 2/3 at Prague or else working as an Official to move me closer to Level 3.

Yet she still finds time to put herself forward yet again.

My understanding about the definition of Corruption is 'when you make decisions take actions that disadvantage others while prejudicially benefiting yourself'.

In a recent newsletter from Melanie to all clubs in NSW Melanie provided a special thanks to everyone who ever helped out in NSW regattas right down to naming people who ran errands, I was left out and when I questioned that I was told Melanie simply said she forgot to mention me, She claims she had focused on those who had largely worked the Sydney regattas.

So as you saw earlier in this email I contributed at each of the Sydney regattas. (Ask yourself are you beginning to see threads of prejudice that I am seeing here?)

A while back the board of DBNSW argued strongly that the Executive Committee (2 rep's from each club) had to accept that we needed a new constitution so we could enjoy being in the line to possibly receive grants of up to $10K per year.

Reluctantly the EC allowed the board to go spend a $10K grant to develop an offering.

The offering would embarrass even an intern or junior for its lack of quality. Curiously though it has two big elements:

1) Scrap the power of the EC

2) Install the full time employee Business Manager (you guessed it Melanie) as CEO with more power than individuals on the board.

["Chief Executive" means the chief executive officer of the Association, if any, appointed under this Constitution. Where the Association does not have a Chief Executive, the Association's secretary or Public Officer will assume the functions of the Chief Executive under this Constitution.]

What a great idea! Who needs a board anyhow.

Final comment:

At the last EC/BOM meeting the EC were pressured to consider and vote to bring officials in from other states to run our State Titles. The argument was that NSW officials would be prejudiced and operate unfairly. As one of them I was highly offended at that insult but anyhow the BOM and EC voted to allow just one visitor. So, no guesses who, Melanie and the BQM invited Janine Lette to be our Chief Official and as I understand it we paid her costs for the privilege.

Well I didn't see anything special at all through the day to warrant that decision until we got to the 2Km races.

Firstly you need to note that Melanie was NOT an official on the day and as such after registrations in the morning she had no rights of access to the tower (same as for any other paddler of which she was one).

One boat forced others well wide on the last turn and put two crews out of the race. One boat went up onto a pontoon and the crew had to disembark to get the boat back in the water. Janine watched the race from the balcony at the base of the tower. The offending crew was Tsunami of which Melanie is a member.

As I was the Chief Finish Line Judge on the day (and also Water Umpire because we didn't have one) I called for a DQ of Tsunami.

Based on 10sec start intervals Deb Harding and another (don't recall the name sorry) and me calculated the times on the photo finish system that provides 10thousandths of a second accuracy i.e., to 0.001 sec.

Janine refused our timing figures and announced the results she came up with by other personal means would be the results of the day. To my knowledge a Chief Official cannot do that.

I was not permitted to see the figures. Janine also refused to DQ Tsunami. Was this paid Official capacity as transparent as we expected and were told needed?

I and other clubs asked Melanie for the times Janine came up with on her own downstairs on the balcony but we never got the times and they have not been published or released by Melanie. That being the case I have hereby published the official tower times.

DBNSW 2009 State Titles: 2000M Race 2

Crew	Start Order	Finish Order	Finish Times	Adjustment	Calc'd Times	Final Placing	Comments
PD's A	8	1	08:19.17		08:19.17	1
PD's B	9	2	08:53.78		08:53.78	2
Sloths B	2	3	09:09.85		09:09.85	3
Tsunami	6	4	09:12.65	+0:20.00	09:32.65	4	Forced 2 crews aground on turn As Chief Judge and Umpire 1 recommended DQ. DQ recommendation overruled.
Sloths A	10	5	09:33.88		09:33.88	5
DSA Yellow	7	7	09:49.02	-0:10.00	09:39.02	6	driven aground on turn 4
DSA Blue	3	10	10:03.35	-0:20.00	09:43.35	7	driven aground on turn 4 and had to disembark to free the boat
Sloths C	4	6	09:48.89		09:48.89	8
Bei Loon	5	8	09:52.26		09:52.26	9
Nowra	1	9	09:54.41		09:54.41	10

I leave it in your hands.

I tried contacting the President of AusDBF by email at each of his home email and work but he doesn't respond.

By comparison John Taylor was always happy to chat and regularly wrote or replied about things. We even had a few drinks together and a dinner or two.

I now wonder whether the new President of AusDBF delegated all his work to others?

If so why did he make such a fuss to be elected if he couldn't afford the time to be approachable and do the job.

I am concerned as to where this will all lead.

Who will be the board at the next AGM of AusDBF in a few weeks?

More of the same perhaps.

Doug

9 The substance of the second email commences with the line "Please send this to all your paddlers and officials" and is otherwise in identical terms to the first email, but was sent to different addressees.

10 Each of the two emails recited above were sent to a significant number of persons. As earlier stated, Mr Sinclair does not admit, in the filed Defence, to the publication of the emails, but by answers to interrogatories confirmed that he was the author of both emails and that each of the emails was sent to the addresses designated in the emails themselves.

11 Evidence before the Court, and the inference that would be available from the sending of the emails, is that the emails were in fact widely distributed, intended to be redistributed and were redistributed. I am satisfied that all or substantially all of the dragon boat racing community either received and read the emails (one or both of them) or were told of the contents thereof. The grapevine effect, as it has been called in the cases, is of significance in these proceedings. For example, one of the addressees responded to the effect that the email had been sent "around Victoria" (see Exhibit A, p 233). The republication is an intended result of the original email, which, in its terms, asks persons to republish and expressly notes that the email is "going to everyone across Australia".

Defamatory meaning

12 It is an entrenched proposition that the test for whether a publication is defamatory, or conveys defamatory imputations, is if it could reasonably be postulated that "the ordinary reasonable reader" would consider that the publication conveyed the meaning alleged. The ordinary reasonable reader is said to be of fair average intelligence, fair minded, not overly suspicious, not naive, not straining or forcing meanings, not "avid for scandal" and one who reads the entirety of the publication about which complaint is made: Amalgamated Televisions Services v Marsden (1998) 43 NSWLR 158 at 165, per Hunt CJ at CL; Haddon v Forsyth [2011] NSWSC 123, per Simpson J. In the words of Hunt CJ at CL in Marsden, supra:

"The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is implied by that matter, or what is inferred from it: Jones v Skelton (at 650; 1065). In deciding whether any particular imputation is capable of being conveyed, the question is whether it is reasonably so capable, and any strained or forced or utterly unreasonable interpretation must be rejected: Jones v Skelton (at 650; 1065). The ordinary reasonable reader (or listener or viewer) is a person of fair average intelligence, who is neither perverse (ibid at 7), nor morbid or suspicious of mind, nor avid for scandal: Lewis v Daily Telegraph Ltd (at 260). That person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs." ( Marsden, supra, at 165B, references omitted.)

13 The process by which one determines what, if any, defamatory imputations have been conveyed is a process that ascertains the objective meaning of the publication in its context, and does not deal with the subjective understanding of any particular reader. In Haddon, supra, Simpson J described the process as a process "undertaken, in a sense, in an evidentiary vacuum". Her Honour cited and relied upon the judgment of Brennan J in Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500, at 506, 507, and said:

"[16] In Lamb, Brennan J (as he then was, and with whom Gibbs CJ and Stephen, Murphy and Wilson JJ agreed) said:

'Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation ... being a standard common to society generally ...' (p 506, internal references omitted)

Later, his Honour said:

'The defamatory nature of an imputation is ascertained by reference to general community standards, not by reference to sectional attitudes.' (p 507)

His Honour added that, notwithstanding that, a particular impact of a defamatory imputation may be proved. This, of course, was in relation to the assessment of damages."

In Lamb, supra, the judgment of Brennan J was the subject of concurrence by Gibbs CJ, and Stephen, Murphy and Wilson JJ.

14 In the present case, there can be no doubt that Mr Sinclair published the material which was read by most of the dragon boat community in Australia and, to the extent not read, the contents of it were repeated to them. The meaning of the publication is not derived by the same process as one would construe a contract. The publication is given a common sense meaning and inferences are available which the ordinary reasonable reader would derive.

15 A common sense approach must be taken to the existence of the imputations alleged by the plaintiff at [4] above and an imputation to the same or similar effect, or not different in substance, will suffice.

16 As to the first imputation set out in submission (a) at [4] above, the terms of the email expressly, or by necessary implication, allege that Ms Cantwell sought to prevent Mr Sinclair from being promoted up a grade because the plaintiff was offended that she had not been invited to upgrade. That imputation is clearly expressed under the heading "Why do I say that?" in the paragraphs commencing "She was offended" and ending with the words "I had sufficient runs on the board".

17 Unhelpfully, Ms Cantwell alleges that the imputation conveyed suggests that the plaintiff "spitefully" did those things. It is unclear what the word "spitefully" adds to the remainder of the imputation.

18 It would seem that the allegation is that the words convey an imputation that the plaintiff acted in a manner which did not seek to pursue her own interests but only sought to thwart the attempts of Mr Sinclair. In that regard, it seems that the claim that Ms Cantwell makes is that the email conveys an imputation that Ms Cantwell acted "maliciously" against Mr Sinclair. It may be, for example, that, if Ms Cantwell were acting in circumstances where only one person could be upgraded and there were a choice of either Ms Cantwell or Mr Sinclair, the conduct of Ms Cantwell to thwart Mr Sinclair may not be as blameworthy.

19 Overall and in the context of the entire email, the words convey the meaning that is described in [4](a) namely that Ms Cantwell acted spitefully (i.e. in a desire to injure and not for her own purposes) to prevent Mr Sinclair from being promoted up a grade as an official of the IDBF and did so because she was offended that she herself had not been invited to move grades. I have not repeated all of the terms of imputation [4](a), but I accept that the imputation is conveyed by the email.

20 The second imputation, described in [4](b) above, again unhelpfully, expresses the imputation alleged in terms that describe the actions of Ms Cantwell as being done "dishonestly". Again, it is not clear why Ms Cantwell has added that term.

21 There is little doubt that the email alleges a commitment by the IDBF to allow Mr Sinclair to upgrade. Mr Sinclair also alleges in the email that Ms Cantwell has total control over the nomination of candidates to go forward to the IDBF.

22 Further, Ms Cantwell, according to the email, nominated a number of persons for positions, which could give rise to an upgrading, but did not nominate Mr Sinclair into such a position. One of the persons who was nominated was allegedly undeserving. All of the foregoing is plainly conveyed by the email.

23 The email also expresses or implies that Ms Cantwell deliberately kept to herself (and her friends) the best opportunities and in so doing was abusing her position as a director of AusDBF. But is that an accusation of dishonesty?

24 I take the view that dishonesty in the alleged imputation ought not be given a technical meaning. Ordinarily, it means a lack of honesty and in that respect would include actions that were done fraudulently or with a disposition to lie or cheat or steal. However, an ordinary reading of the email does not accuse Ms Cantwell of lying or cheating other than in the sense that an abuse of her position as a director may be a form of corruption.

25 It would seem to me that the ordinary reasonable reader would construe the email as conveying the imputation that Ms Cantwell abused her position to obtain benefits for her friends and herself, but not that Ms Cantwell lied, cheated or behaved fraudulently in so doing. Imputation (b) is not conveyed by the email because it claims that the email alleges that Ms Cantwell acted "dishonestly".

26 Imputation (c) is claimed as an alternative to imputation (b). For all of the reasons already described in discussing imputation (b), the imputation that Ms Cantwell has engaged in "nepotism" by nominating her friends and excluding Mr Sinclair is clearly conveyed. The only possible issue is the use of the term "nepotism", which ordinarily relates to patronage on the basis of family relationship not friendship, but the context of the imputation plainly uses the word in a broader sense to mean advancing her friends on the basis of friendship and not merit and thwarting Mr Sinclair otherwise than on the basis of merit. Given that construction, imputation (c) is conveyed.

27 The last alleged imputation suggests that Ms Cantwell discriminated against men when nominating officials for the regatta in Prague. The offending passage in the email bears repeating. After setting out the persons nominated for the regatta in Prague and complaining that one of the persons nominated had been absent in Hong Kong for the entire season and another three are close friends of Ms Cantwell, one of whom is in the same dragon boat club, Mr Sinclair states in his email:

"Melanie often complains the sport has a glass ceiling but this looks as though Females sit above the glass by a significant majority and more so if they are pals with Melanie.

There is something fundamentally wrong when two Directors of AusDBF keep to themselves every best opportunity offered from IDBF TWO OR MORE YEARS IN A ROW THEN HAND OUT THE OVERFLOW TO THEIR CLOSE PALS."

28 The suggested imputation relates to sexual discrimination against men. However, even giving the term sexual discrimination a very broad meaning, the passage upon which Ms Cantwell relies does not seem to convey that meaning. The real complaint is not that men were not selected (one person selected was a male), or even that women were selected in preference to men, but that friends of Ms Cantwell were selected and in that sense imputation (d) adds nothing to imputation (c). I do not find that the email conveys an imputation that the plaintiff sexually discriminated against men.

29 There is little doubt that the email is defamatory. The mode or manner of publication, being an email, requires the Court to take a view that the document is more serious than some kinds of publications and is a personal communication to the addressee which invites far more attention and study than other forms of publication, even those that are otherwise in writing.

30 As earlier stated, there is no doubt that the email is defamatory in that it has injured the reputation of Ms Cantwell, damaged her standing in the community and the estimation in which other people hold her. Further, as a result of the email, people are likely to think less of Ms Cantwell: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460 at 477, [36], per French CJ, Gummow, Kiefel and Bell JJ.

31 Frankly, the imputations pleaded and found to be warranted may not reflect the full extent of the damage to the reputation, but the Court must determine whether the imputations pleaded, which I have found were conveyed, are defamatory and if so, determine the damage that has been caused (assuming the defences are not successful) by the imputations pleaded and conveyed - not otherwise.

32 The imputations conveyed, being the first and third imputations, are defamatory in that they are injurious to Ms Cantwell's reputation.

Witnesses and surrounding facts

33 Given that the major issue between the parties is the existence and application of qualified privilege, it is necessary to determine a number of aspects and make some comment on the evidence insofar as it goes to the truth or otherwise of the imputations conveyed. As earlier stated, the Court has dealt with whether imputations are conveyed and whether those imputations are defamatory without the need for evidence, other than the publication itself.

34 I reiterate that Mr Sinclair's pleadings do not raise truth or contextual truth as a defence. However, the accuracy or inaccuracy of the allegations is relevant to understanding the circumstances surrounding the publication, the interest, if any, of the addressees of the email as well as Mr Sinclair and the argument, to the extent that it is necessary to deal with it, that Mr Sinclair was motivated by malice. Further, the evidence is relevant to the question of damages, if and when, that issue were to arise.

Ms Melanie Cantwell

35 The plaintiff was called and gave evidence relating to her activities in the dragon boat community including in the DBNSW and the AusDBF and internationally.

36 Ms Cantwell's demeanour and evidence disclosed a person who was honest, forthright and significantly affected by the allegations made against her. I considered Ms Cantwell to be truthful and I do not accept that, spitefully or otherwise, she set about to thwart the ambitions of Mr Sinclair in the dragon boat community. The independent evidence, to which I will come, confirms that the activities of Ms Cantwell were to the contrary, namely, that she intervened to support Mr Sinclair's candidature for an upgrade at a time which would be the first opportunity when he could otherwise comply with the requirements of the IDBF or be in a position where the AusDBF could recommend him despite his non-compliance.

37 The evidence of Ms Lette, Mr Murphy, Ms Joanne Cantwell and Mr Alexandrou confirmed the reputation of Ms Cantwell prior to the publication of the email and the devastating effect of the publication on her, particularly as to her self-confidence, sense of worth and the damage to her reputation.

Mr Douglas Sinclair

38 The defendant, Mr Douglas Sinclair, gave evidence concerning his involvement in the dragon boat racing community, including membership and establishment of clubs and as an official.

39 Mr Sinclair gave evidence in a manner that seemed both arrogant and opinionated. He displayed a pattern of grandiosity and self-importance and displayed each attribute in both the manner and content of the evidence he gave. His evidence was that he had an entitlement to be upgraded, or at least to be examined for upgrading, in circumstances where the objective material before the Court, which was available to him for some period of time, suggested otherwise.

40 Mr Sinclair gave evidence about contact with Kevin Rudd, the Ambassador for China and various other senior international politicians and expressed views on the inability of others, particularly Ms Cantwell, to understand the needs of his dragon boat club and the sensitivities of its members, presumably because they were gay, which sought to paint himself as a special and unique person with special and unique talents that could be understood by high status and/or high achieving people only: see also [56]-[66] herein. There were significant aspects of his evidence that displayed attributes that would ordinarily be thought to be narcissistic personality traits.

41 Nevertheless, there is no reason to assume that the allegations he made about Ms Cantwell were anything other than that which he considered was the truth. I make no comment, at this stage, on whether that view is a reasonable one.

42 Mr Sinclair's evidence seemed to alter or be given depending upon what, he considered, best suited his case before the Court. There are a number of examples. The change in his answer as to whether, if he had received the emails from IDBF prior to sending out the emails about which complaint is made, he would have still sent the latter, is one example. Another is his reference to involvement in "intelligence and counter terrorism". A third example is the explanations he gave for seemingly irrelevant matters of fact that did not affect his case, or affected it only marginally. He explained Mr Haslam's email of 4 April 2009 as being at Mr Haslam's initiation and not in reply to an email sent to him because "when Mr Haslam replies to an email he always erases whatever ... is below. It's his pattern." This was to explain his non-discovery of the original email and/or the subject matter title. But no other emails in evidence from Mr Haslam fit that "pattern". I draw the inference that there was an original email from Mr Sinclair, to which Mr Haslam responded, which entitled "prejudice, bias and discrimination" was deliberately deleted from discovery and/or evidence before the Court.

43 It is at this point that a number of comments should be made as to the submissions on the evidence made by Mr Sinclair. At [35] of his submissions, Mr Sinclair refers to the transcript at p 79, relating to the upgrade of Ms Cantwell from Grade 1 to Grade 3. I deal separately with the improbability of the conversation to which Mr Sinclair attested or referred, namely that Ms Cantwell wanted to be at Grade 2 before Mr Sinclair, because as at May 2008, Ms Cantwell was already on Grade 2. That fact is confirmed by the cross-examination of Ms Cantwell at p 78-79.

44 Ms Cantwell agreed with the proposition that "at Penang" she "went up a level". That which was put to Ms Cantwell and with which she agreed was that she had moved a level, not two levels. That movement was from Grade 2 to Grade 3. That for which Ms Cantwell had no forewarning was the assessment by IDBF that she should move from Grade 2 to Grade 3. That lack of awareness involved no "blindness" on the part of Ms Cantwell.

45 For reasons which are not absolutely clear, Mr Sinclair also relies on the proposition that there were others who had suggested criticisms of Ms Cantwell. No attempt was made to justify those criticisms. Presumably, evidence would have been available and could have been called, if the criticisms were warranted and relevant.

46 It is clear that Mr Sinclair's attitude towards Ms Cantwell was almost obsessive. His attitude was that everything that stood in his way, and everything that was done either by the IDBF, AusDBF and/or DBNSW was at the instigation of Ms Cantwell and for her interests. The evidence is to the contrary.

47 For example, Mr Sinclair refers to Ms Cantwell as having "the dominant role in recommending people to go forward for IDBF assessment". The evidence is that Ms Cantwell listed the people recommended by the AusDBF Board. Likewise, Mr Sinclair blamed Ms Cantwell for his selection as a volunteer (as distinct from official) at Prague. The evidence is clear that Ms Cantwell had no role in the selection by IDBF officials as to who would be a volunteer and who would be an official. It is also clear that Mr Sinclair's name was put forward by AusDBF (indeed, listed by Ms Cantwell after decision of AusDBF) for selection as an official at Prague.

48 Another example is the perception Mr Sinclair had of the 2007 DBNSW Annual General Meeting held on 18 August 2007. He attributes, to a question asked of him, a criticism that he was unable to cope with the workload of dragon boat racing because of his work commitments. The question asked and answered implied no criticism.

49 Shortly after the AusDBF Annual General Meeting in April 2008, Mr Sinclair wrote to the new President of AusDBF about Ms Cantwell. Mr Sinclair's submission suggests that the reference to the "one strong cancer cell" on the Boards of DBNSW and AusDBF could not have referred to Ms Cantwell, because she was not a member of the Board of DBNSW. This denial is disingenuous. The reference was to Ms Cantwell. Mr Sinclair considered Ms Cantwell as the driving force behind DBNSW, because of her position as its only executive employee, who attended the Board meetings of DBNSW, even though she was not formally a member of that Board.

50 There are a range of criticisms made of Ms Cantwell in the submissions of Mr Sinclair. Those criticisms are generally rejected. For example, Ms Cantwell worked on a policy of international official exams. This was a policy, adopted by AusDBF, that formalised the basis upon which members of AusDBF would be recommended for accreditation by IDBF. It cannot be suggested, reasonably, that such a policy is inappropriate. It necessarily creates transparency and an objective basis upon which an entitlement to assessment may be understood.

51 The submissions of Mr Sinclair criticised Ms Cantwell for identifying the primary purpose of the policy as being "the creation of a list of persons qualified to officiate at international events". It criticises Ms Cantwell for not explaining why such a list could not simply be obtained from IDBF. First, Ms Cantwell, in these proceedings, was not required to explain anything relating to the process undertaken on behalf of AusDBF. Secondly, it seems that IDBF had no such list and because officiating at IDBF or other events was performed by persons who were not necessarily IDBF accredited, such a list, if it were to exist, would not be comprehensive.

52 Mr Sinclair's submissions deal with his own attitude and perceptions. At [28], there is a reference to the history of Mr Sinclair raising concerns about issues relating to governance of the sport. If that reference were intended to confine itself to the 12 to 18 months during which time Mr Sinclair was involved in dragon boat racing, then it is accurate insofar as it goes, although most of the concerns seem to relate to Ms Cantwell.

53 I accept that there is no evidence, nor do I perceive it to be the case, that Mr Sinclair was unpleasant in style in his personal contacts. However much describing him as "forceful and direct" may be correct, a more accurate description would be arrogant.

54 The submissions rely upon a psychological assessment said to have been done of Mr Sinclair that is repeated by him (Exhibit A, p 90). He describes himself (purportedly summarising the assessment) as "mentally function in the SUPERIOR bracket of Senior Executives except for anger when facing conduct of others that is either: Unethical, deceitful, or corrupt, and it was stated by one assessor that I 'don't suffer fools lightly'."

55 To the extent that Mr Sinclair relies upon that assessment, there is no evidence that such an assessment was made. It would require expert evidence. No expert evidence has been received. Further, it would require that the Court accept Mr Sinclair's perception of what is suggested was an expert assessment of his personality. The Court does not accept Mr Sinclair's perception, without evidence of the actual psychological assessment, which was not tendered.

56 Moreover the perception of the psychological assessment relates more to what I have earlier described as aspects of narcissistic behaviour. In the email sent to Ms Tanya White of 14 July 2007, Mr Sinclair referred to his current commitments as including "NSW representative and state organiser for the Australian Institute of Professional Intelligence Officers ... and the NSW co ordinator of CE and Conferencing ASIS". Mr Sinclair invited Ms White to "do a web search filtered to Australia for ASIS".

57 In cross-examination, Mr Sinclair denies that he was intending to convey the impression that he was attached to or working for the Australian Secret Intelligence Service. ASIS, apparently, also stands for a private organisation of "security professionals".

58 If that were his intention, it would be unnecessary and inconvenient "to filter" the search to Australia. Further, while "intelligence" (as a profession not a trait) may be included in the term "security", it seems, from the evidence before the Court, that ASIS International deals with security professionals, being persons who deal in security equipment and processes.

59 Mr Sinclair's explanation that ASIS was not intended to refer to the Australian Secret Intelligence Service (an intelligence arm of the Australian Government) was disingenuous.

60 Mr Sinclair also referred, in the context of his workload, to having undertaken an ASIO exam. There is no evidence as to whether he passed or, more relevantly, was considered suitable for employment in ASIO, psychologically or otherwise. The assessment, to which reference is made above, was described by Mr Sinclair as his "ASIO Psychology assessment" (Exhibit A, p 90).

61 In what seems to be his first email to Mr Watt on the latter's election as the President of AusDBF, Mr Sinclair introduced himself, referred to the enormous energy that Mr Sinclair tried to apply to make the World Championships a bigger success and that he was thwarted by Ms Cantwell (although her name was not used). He describes himself as a "change agent in industry with distinctions from AGSM and [who had] worked to salvage a multinational in 2002". He also referred to work he apparently says he was doing on a couple of big projects in China. This is the email that refers to the "cancer cell". (Exhibit A, p 38.)

62 He refers to what he says are completed negotiations with Prime Minister Kevin Rudd (as he then was) to become a patron of AusDBF. There is no evidence that confirms the objective reality of that proposition. Mr Sinclair also claims in that email that the involvement of Mr Rudd was stage one of a bigger and more ambitious project on a worldwide basis in which he was involved.

63 Mr Sinclair claims that the aforementioned more ambitious project includes Gordon Brown (then Prime Minister of the United Kingdom), Tony Blair (former Prime Minister of the United Kingdom), Paul Owen (BCU), David Gent (BCU), David Miliband (then United Kingdom Foreign Secretary), David Train (former United Kingdom Olympic Coach), Kevin Rudd (then Prime Minister of Australia), PM [sic] China, the President of the United States of America, Peter Garrett (then Minister for the Environment), Mike Haslam (IDBF) and others.

64 Again there is no direct evidence of the involvement of Mr Sinclair in such a project. Nor is there evidence of the involvement of any of the foregoing named persons in such a project. BCU, in the foregoing, stands, it would seem, for the British Canoe Union.

65 Moreover, there are a number of items of correspondence between Mr Sinclair and Mr Haslam, which are in evidence in these proceedings, none of which suggest that there is a relationship between the two arising from involvement of Mr Sinclair in such a project.

66 The aforementioned email claims that the Board (a reference to AusDBF Board) "has too many members that are way too unskilled to be allowed or trusted near some of what I am doing and who I am dealing with".

67 The negative attitude of Mr Sinclair towards Ms Cantwell seems to have become evident starting with his defeat at an election for the position of ordinary Director (Development) at the AGM of the DBNSW on 18 August 2007. At that meeting, Mr Sinclair was nominated and Ms Cantwell nominated Ms Wong. It was at that meeting that the question was asked of Mr Sinclair in the following terms:

"Your recent resignation from the website team was due to time commitments. How will your role on the Board affect this?"

Mr Sinclair answered this, capably, to the effect that his marketing commitments for AusDBF required far more time because of the World Championships and would ease post the World Championships allowing him the time (or words to that effect). There was a vote and Ms Wong received 32 votes and Mr Sinclair received 28. It was after that meeting that Mr Sinclair first wrote to Ms Cantwell making a number of complaints.

68 On 24 August 2007, Mr Sinclair wrote to Jon Taylor relating to the workings of the organisation committee of the World Championship opening ceremony. He made a number of complaints about the attitude of another member of the committee (not Ms Cantwell).

69 On 20 August 2007, Mr Sinclair wrote to Ms Cantwell and Mr Jon Taylor making complaints about the AGM. He complained about the question asked of him in relation to his time commitment, because it misrepresented the reason for his resignation from the particular committee. It seems he considered that question and answer the reason why he lost the election.

70 In the process of explaining his resignation, he implicitly maligned a number of members of the committee for "leaking information". He, according to this email, withdrew because of the "politics".

71 The email complains that Ms Cantwell was out of line for misrepresenting the reasons he resigned from the committee. There is no evidence that Ms Cantwell was aware of the email exchange between Mr Sinclair and Ms White.

72 He also complained that Ms Cantwell breached a resolution or agreement reached between him and "Christopher" that candidates would not be asked about their workload and other commitments. It is not clear that Ms Cantwell was aware of any such agreement.

73 Further, he complained that the question put to him about his workload was not put to the other candidate. He then made clear that he would step aside from being an executive committee representative because of her treatment of him and asked for an apology. Mr Sinclair then threatened disciplinary action, if the complaint were ignored.

74 Ms Cantwell responded to the email. She did so in appropriate terms. The response is the subject of complaint in these proceedings. I am unclear as to its relevance. Nevertheless, the substance of the response was:

"Thank you for your email outlining your perceptions of recent events. I cannot comment on all of these but it is clear that you are very upset. I am truly sorry you feel this way.

These recent events have been very frantic and sometimes someone's choice of words in high-pressure environments can be less than acceptable (or accurate) to some. It is deeply regrettable that this appears to be the case recently and has caused you this unnecessary upset."

75 I consider there is nothing untoward in the response. It is true that it does not accept Mr Sinclair's perception of the events, but it apologises for any hurt he may have felt. The relationship deteriorated dramatically thereafter.

76 A formal complaint against Ms Cantwell was lodged by Mr Sinclair that Ms Cantwell had "acted in a manner unbecoming of a Member or prejudicial to the objects and interests of Dragon Boats (NSW) Inc. or the sport of dragon boating" (which is a reference to, and a quote from, a particular by-law). The complaint was that Ms Cantwell had "deliberately and unconscionably set about to impede and injure [Mr Sinclair's] personal ambitions and efforts of self improvement within the context of skills and development in our sport ... generated out of malice and a need for recognition". The complaint includes a reference to Ms Cantwell (months later) apologising in relation to the misrepresentation as to his time commitments. I do not repeat the entirety of the complaint. It was treated as vexatious and not referred to a sub-committee for investigation.

Requirements for grading as an official

77 On 23 September 2007, Mr Sinclair was granted a Certificate as a Grade 1 International Race Official by the IDBF. The front of the Certificate, which is Exhibit A, p 24 and p 25, alerts the reader to the reverse side of the Certificate on which are printed the "details of the training and assessment undertaken". The level of grade, the name of the person to whom the Certificate is granted, the signature of the IDBF Executive President and the date are in handwriting, but otherwise the Certificate is a printed document.

78 The reverse of the certificate is in the following terms:

"INTERNATIONAL DRAGON BOAT FEDERATION

TECHNICAL RACE OFFICIALS AWARDS

THE PERSON NAMED OVERLEAF HAS QUALIFIED AS AN IDBF RACE OFFICIAL IN ONE OF THE GRADES DETAILED BELOW.

GRADE 1 International Race Officials Certificate (IROC)

Awarded to people with either an IDBF or IDBF Member's National Race Officials qualification or with at least two (2) years of officiating in Dragon Boat Races, at National Level qualified by their National or Territorial Association, who have taken and passed the IDBF International Race Officials Examination. This examination consists of a written paper on the Statutes, Bye-Laws, Competition Regulations & Rules of Racing of the IDBF followed by a verbal interview to assess the candidates officiating experience and knowledge of the sport. Those Technical Officials who hold an IROC, are authorised to officiate under supervision, at IDBF organised and sanctioned International Regattas.

GRADE 2 International Race Officials Licence (IROL)

Awarded to holders of the IROC, with at least three (3) years of officiating at National Level, including officiating experience in at least two (2) IDBF or IDBF Affiliated International Events or at three(3) National Championship. There are two(2) classes of IRO Grade 2 - TECHNICAL IRO and ORGANISATIONAL IRO. The Assessment for both classes of the IROL, is a verbal interview and a practical test of a candidates technical abilities or organisational experience and knowledge of the sport. A TECH IRO will be qualified to act as the Technical Director at an International Race or National Championships, and to officiate at Continental or Regional Championships and International Races, as a Member of the Competition Committee.

Holders of an Organisational IRO will have a wide knowledge of the sport and proven experience in organising Dragon Boat Races at International Race level or National Championships and shall have a working knowledge of the IDBF Competition Regulations. They will be capable of co-ordinating the work of a team of officials in the delivery of a Sport Racing Regatta or Dragon Boat Festival. An ORG IRO will be qualified as an Event Organiser to conduct Continental; Regional Championships and International Regattas, under the appropriate IDBF Competition Regulations and the IDBF Rules of Racing.

GRADE 3 Senior International Officials Licence (SIOL)

Awarded to holders of the IROL who have a wide range of experience of organising dragon boat events and officiating at both national and international level over a number of years, including carrying out the duties of a member of the Competition Committee at Championships or International Race level. On application by the individual concerned to the IDBF Race Officials Secretariat or on nomination by the Race Officials Secretariat, a candidate will be assessed, by a ROS Assessment Team, on their potential ability to carry out the duties of the Chief Official at Continental or Regional Championship level.

GRADE 4 International Chief Officials Licence (ICO)

Awarded to holders of the SIOL who have officiated, over a number of years as a SRO, at World Championship Regattas, carrying out different roles as a member of the Competition Committee or as a Chief Official at Continental level. On application by the individual concerned to the IDBF Race Officials Secretariat or on nomination by the Race Officials Secretariat, a candidate will be assessed, by a ROS Assessment Team, on their ability to carry out the duties of the Chief Official at an IDBF World Championship Regatta. An ICO will always be appointed as the Chief Official at an IDBF World Championship Regatta."

79 As stated, Mr Sinclair was certified as a Grade 1 International Race Official. The upgrading of race official status, about which complaint is made in the email, was an upgrading from Grade 1 certificate, issued on 23 September 2007, to a Grade 2 certificate, also referred to as a Grade 2 International Race Officials Licence.

80 At the time that the alleged agreement by IDBF occurred, Mr Sinclair did not have three years or more experience of officiating at National level. Nor did Mr Sinclair have officiating experience in at least two IDBF or IDBF affiliated international events or at three National Championships.

81 At least from 23 September 2007, Mr Sinclair was aware of that fact. Unless some special arrangement, not contemplated by the prescribed qualifications, were made for Mr Sinclair, he was, as at 4 April 2009, the date on which the first of the offending emails was sent, ineligible to be assessed for a Grade 2 certificate.

82 On 3 July 2007, as part of an exchange between Mr Sinclair and Mr Mike Haslam (the Executive President of the IDBF), resident in the UK, Mr Sinclair was advised, including the reasons for the changes, in the following terms:

"... We used to allow people to come directly to us for IDBF Assessment, in the early days but now with situations like you have in Aus, it is difficult for us to do that and as a matter of policy we now have to rely on our Members making the nominations.

What I suggest that you do is to encourage Mel and Jon Taylor into allowing anyone, with the minimum of experience required, that is as shown in the IDBF Scheme, to take the IDBF Exam in Sydney, at the world champs. That way at least people will have had a chance to take the exam whilst the IDBF are in town." (Exhibit A, p 3)

The IDBF Scheme, referred to in the foregoing extract, is a reference to the qualifications recited above and printed on the back of certificates.

83 Later on 3 July 2007 (about two hours later), Jon Taylor stated that the prerequisite for sitting the IDBF official exam is the AusDBF Officials Certificate, which, it seems, Mr Sinclair possessed.

84 Nevertheless, a further email exchange occurred on or about 18 May 2008, between Mr Sinclair and Mr Bryan Hartley, an IDBF Official with responsibility for coordinating and certifying officials at events. The email from Mr Sinclair to Mr Hartley seeks confirmation that Mr Sinclair was still in the mix for officials at an event in Penang. The email also complains about Ms Cantwell attempting to block Mr Sinclair's duties as an official in Australia in order to prevent him from qualifying for the Grade 2 exam.

85 Mr Hartley responded that he was still in the mix to be selected as an official but informed Mr Sinclair that if he wanted,

"to be considered for Grade 2 on the basis [he had] officiated at 3 national championships, we would want a report from your national association confirming your competence to perform at Grade 2. If you feel, however, that they would not provide it because of internal politics, the other alternative is to do 2 IDBF events so we can draw our own conclusions about your competence."

(Exhibit A, p 45)

86 At that stage, Mr Sinclair must have known that there were two alternative means of qualifying to take the exams. One was to officiate at two IDBF events and be assessed on his conduct and, otherwise, to present a report from the AusDBF confirming his competence to perform at Grade 2. Mr Sinclair had not officiated at two IDBF events. Nor was that a likely scenario in the short term.

87 On 30 June 2008, there was a teleconference, being a meeting of the AusDBF. That meeting considered the issue of Mr Sinclair's application to take the exam for Grade 2. The meeting was attended (by telephone) by Jeanine Lette, Kel Watt, Mel Cantwell, Dr Richard Lim, Michelle Hanton, and Loretta Lewis. Mr Christopher Alexandrou apologised for non-attendance.

88 The meeting was advised that the IDBF had advised Mr Sinclair that to sit for a Grade 2 exam he must have officiated at three national events and one international event. There was an exemption only if the person had been officiating for years and the member country provided a specific reason why this person's years of experience should be counted when asking for that person to sit for a Grade 2 exam.

89 The meeting had reported to it that Mr Sinclair had only officiated at the 2008 Nationals and was a volunteer at the 2007 Worlds. The meeting also recorded that the two IDBF officials, Mike Haslam and Bryan Hartley, had already informed Mr Sinclair that he did not meet the criteria.

90 The minutes of that meeting record that Ms Cantwell recommended to the meeting that the Board endorse Mr Sinclair to be assessed for his Grade 2 exam in 2009, by which time he would be expected to have the experience to be recommended, to which the other attendees agreed. Mr Watt was delegated the responsibility to advise Mr Sinclair. The meeting then discussed the other officials. Ms Kellett had an IDBF Grade 1 Certificate and the requisite experience. Ms Taylor, Mr Davey, Ms Riedal and Ms Styles were in a similar position. Ms Lette had an IDBF Grade 2 Certificate, as did Ms Cantwell.

91 There is a difference between work as an official and work as a volunteer at an event. It is only work as an official and not a volunteer, which qualifies as requisite experience.

92 On 15 June 2008, Mr Sinclair wrote to Mr Hartley seeking confirmation that the previous approval for him to attempt the Grade 2 Officials Assessment was still valid. In the course of that email, Mr Sinclair complains that Ms Cantwell had actively tried to block him in the lead up to the nationals stating that he should not be allowed to attempt the Grade 2 before she had it.

93 I note, at this juncture, that Mr Sinclair's evidence with respect to the conversation is glaringly improbable if not impossible because, as at May 2008, Ms Cantwell already had a Grade 2 Certificate.

94 The response from Mr Hartley was that Mr Sinclair should read the back of his IDBF Certificate and confirmed, again, that unless the AusDBF was prepared to put Mr Sinclair's name forward as being a suitable Grade 2 candidate, based on their knowledge of his experience, he did not meet the criteria for a Grade 2 official because he had not yet taken part in an IDBF event.

95 In his evidence, Mr Sinclair accepted that, at least as at June 2008, having read the email to which reference has just been made, that there were only two methods by which he could qualify to sit the exam for Grade 2 and they were if the AusDBF nominated him as someone who could have handled Grade 2 or if he had done the requisite number of national or international events, or both. Mr Sinclair denies that the recommendation from AusDBF required AusDBF to be satisfied of the criteria to which he was referred in the back of his certificate and which is recited above.

96 On 23 June 2008, Mr Sinclair wrote to Mr Watt in relation to his assessment as an official. He repeated his understanding of that which Mr Hartley had informed him, albeit in more beneficial terms than is evident from the wording of the document. Mr Sinclair referred Mr Watt to the AusDBF rule, which required persons wishing to become Grade 2 or Grade 3 Officials to submit their dragon boating CVs prior to the event in order to demonstrate that their experience satisfied the eligibility criteria laid out on the back of their IDBF Certificates.

97 In other words, Mr Sinclair was seeking AusDBF to nominate him for a Grade 2 exam in circumstances where he did not meet the stated requirements of AusDBF to be nominated and thereby to circumvent the express words of the AusDBF and/or IDBF prescriptions. Mr Watt responded to the effect that, in order for his name to be forwarded for the exams, it would have to be done by Ms Cantwell, who, Mr Watt indicated, was able to take care of the matter expeditiously.

98 The foregoing email exchange was copied to Ms Cantwell who, in turn, responded that the issue "is not quite that simple"; "that we should put the matter on the agenda for Monday's meeting"; and that, in her view, "AusDBF Board should be responsible for making the decision on which nominees were put forward from each State based on their experience".

99 That email was then copied to other members of the Board. There was at least one response. It is in that context that the meeting of 2 July 2008 occurred, as a consequence of which Mr Watt wrote to Mr Sinclair on 2 July 2008 at 5.07pm.

100 The 2 July 2008 email correspondence confirmed that the Board would not be putting forward Mr Sinclair's name as a candidate for the exam in Penang. It acknowledged the disappointment to Mr Sinclair and reported that there was discussion amongst AusDBF Board members which concluded that Mr Sinclair did not yet meet the criteria for the exam. Mr Watt said, in part:

"It's my understanding IDBF President Mike Haslam wrote to you recently and outlined the IDBF did not regard you as yet suitable, stating 'you do not meet the criteria for a Grade 2 Official as you have not yet taken part in an IDBF event.'

Below is the Criteria set by IDBF:

IDBF Level 2 - International Race Official (IRO) Grade 2 (license) - minimum of 3 years of officiating at AusDBF National Championships, including officiating experience in at least 2 International Races or at [least] 3 AusDBF National Championships may apply to be assessed.

Starting the sport in January 2007, you volunteered at the World Championships and did a good job down in boat loading, which is hard work and long hours, however no real Officiating experience was had in this role. Feedback from Worlds organisers and officials is that you contributed invaluably to the event. I am also aware you Officiated at DBNSW Local events in November and December 2007, and State Titles in the finish tower, and was Chief Marshall for 2 out of the 4 days at the National Championships in Perth this year.

Based on the above, your CV does not fit the above Criteria. With more officiating experience over the next 12 months, I believe the AusDBF could definitely consider nominating [you] to sit for [your] Level 2 exam in Prague in 2009."

Unfortunately, in hindsight, Mr Watt did not inform Mr Sinclair that it was at Ms Cantwell's suggestion that Mr Sinclair be recommended for the exam at the earliest opportunity after the criteria had been met, namely in Prague.

101 Mr Sinclair, in his evidence, did not accept (and seemingly still does not accept), that he did not meet the criteria established by the IDBF for the exam and did not meet the criteria established by the AusDBF for recommendation by them to sit the exam. Yet, he had been informed expressly and clearly of each of those facts by the International President and the Australian President.

102 Mr Sinclair's non-acceptance of these express criteria is consistent with the attitude, described earlier, that he displayed in the witness box. Mr Sinclair considered that the rules established for consideration were able to be circumvented, especially for him, because of the activities he had undertaken in the 18 months that he had been involved in the sport.

103 I have not attempted to recite all of the correspondence between each of the players in these events. I have recited the foregoing because it paints the appropriate picture of the animosity that had grown between Mr Sinclair and Ms Cantwell and the degree to which Mr Sinclair was blaming his disappointment and/or frustration on Ms Cantwell.

104 By 5 April 2009, Mr Sinclair was still complaining about his inability to come through the ranks and by-pass Ms Cantwell and wrote in an email to the International President that there is:

"CORUPTION [sic] sitting at the feet of IDBF i.e., the next layer where we connect.

...

That stinks and threatens to ruin the sport.

Perhaps IDBF needs a new rule that Directors of IDBF Members cannot put themselves forward more than once each third year unless all other offerings in their country are exhausted and placings are still available."

105 By return email, on 4 April 2009, Mr Haslam, understandably, took umbrage at the allegation of corruption. Mr Haslam confirmed to Mr Sinclair that the IDBF had absolutely nothing to do with how the IDBF Members operated. IDBF Members are the national dragon boat racing associations throughout the world. That was an internal matter, according to Mr Haslam.

106 Further, Mr Haslam informed Mr Sinclair that the international body does not consult with its members when selecting race officials for world championships, nor allow IDBF members to make any selections on its behalf. He encouraged Mr Sinclair to drop any such idea. He also informed Mr Sinclair that the issues that he had raised seemed more about personality clashes than IDBF or AusDBF corruption and the sooner that he recognised that aspect the sooner, it seemed, Mr Sinclair would be able to resolve the issues.

107 By this stage, notwithstanding the attitude of Ms Cantwell to the recommendation that Mr Sinclair be assessed at Prague and be an official at Prague, Mr Sinclair had been selected, by IDBF (a decision that did not involve Ms Cantwell or AusDBF) as a volunteer at Prague, and not an official. That information had been forwarded by the IDBF to a number of the national associations and particularly to representatives of AusDBF, including Mr Sinclair, by email dated 3 April 2009, at 6.03am (London time).

108 The IDBF had, notwithstanding the nomination by AusDBF, selected Mr Sinclair as a volunteer and not as an official. The officials selected were Ms Taylor, Ms Wong and Ms Chung. Ms Cantwell, Ms Lette, and Mr Reader were selected for "Prague training". The IDBF made it clear that they had selected people, inter alia, on the basis that up to a maximum of three people from each of the 13 countries would be selected as officials.

109 The selection email of 3 April 2009 was received and read by Mr Sinclair. He drafted an email, which attaches an email in the same form as the offending email and sent it to Stephen Davidson. He informed Mr Davidson that he would not send out the email for two days, pending a response to correspondence from Mike Haslam.

110 Mr Sinclair did not wait the two days. Instead he sent the email about which complaint is made and the second email about which complaint is also made. Mr Haslam confirmed, by email dated 4 April 2009, at 8.31pm (London time), that no IDBF official involved in selecting officials for Prague consulted with AusDBF, or any person from AusDBF and no one from AusDBF contacted them in relation to those matters. That understanding was further confirmed by Mike Thomas (Chair of the IDBF Competition and Technical Commission) on 4 April 2009 at 9.02pm (London time).

Qualified privilege

111 The principles that define the defence of qualified privilege have been the subject of much authority. The High Court, recently, had occasion, once more, to determine the issues. It said:

"[12] The defence of qualified privilege is based upon notions of public policy, that freedom of communication may in some circumstances assume more importance than an individual's right to the protection of his or her reputation. The question of whether the person making a defamatory statement was subject to some duty or was acting in the protection of some interest, in making the statement, is to be understood in this light.

[13] It was therefore encumbent [sic] upon Mrs Dillon to establish that she had a duty to convey the information about the rumour to Mr Croft. She gave evidence that she felt such an obligation, but of course this could not be determinative of the question for the trial judge, namely whether there was a duty of a kind which created the occasion to make the statement, in which case the privilege attached to it. That question fell to be determined by a consideration of the positions of Mr Croft and of Mrs Dillon within the CMA, the nature and importance of the matters conveyed and the relationship of the defamatory statement to those matters. Mrs Dillon's evidence as to the sense of obligation she felt, if accepted, may be relevant to the question of malice. It will be necessary to say something more about the two questions and the relationship between them.

[14] ... It may be seen from the passage from Toogood v Spyring above that the defence of qualified privilege is sufficient to overcome the law's presumption of malice (also referred to as 'implied malice'), a presumption which is based upon the making of a false and defamatory statement. The protection given by the privilege is, however, lost if the person making the statement did so for an improper motive. 'Express malice' is the term of art used to describe the motive of a person who uses a privileged occasion for some reason not referable to the duty or interest pursued. In the joint judgment in Roberts v Bass it was said that the privilege is qualified by the condition that the occasion must not be used for some purpose or motive which is foreign to the duty or interest which protects the making of the statement.

[15] ... A conclusion of express malice requires a finding that the maker of the statement was actuated by some improper purpose or motive, which is to say one not connected to the furtherance of the duty or interest so found. The nature and the extent of the duty or interest must be considered before the question of malice is addressed. In Roberts v Bass, Gleeson CJ observed that the 'kind of malice that defeats a defence of qualified privilege at common law is bound up with the nature of the occasion that gives rise to the privilege.'" ( Cush v Dillon; Boland v Dillon [2011] HCA 30; (2011) 85 ALJR 865 at 868-869, per French CJ, Crennan and Kiefel JJ.)

112 Dillon, supra, is the latest in a series of cases in which qualified privilege has been a matter of controversy: see Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366; Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1; Aktas v Westpac Banking Corporation Limited [2010] HCA 25; (2010) 241 CLR 79. The controversy was largely evidenced in intermediate courts of appeal and before trial judges: see, for example, Holmes a Court v Papaconstuntinos [2011] NSWCA 59; Bennette v Cohen [2009] NSWCA 60; Goyan v Motyka [2008] NSWCA 28. At trial level, the controversy has been slightly different, albeit without the benefit of the statement of principle in Dillon; see Cush v Dillon and Boland v Dillon [2009] NSWDC 21; Papaconstuntinos v Holmes a Court [2009] NSWSC 903; Brett HOLMES v Andrew FRASER [2008] NSWSC 570; Megna v Marshall [2010] NSWSC 686; Manefield v Child Care NSW [2010] NSWSC 1420; and Haddon, supra.

113 The principles to be applied have, as is obvious from the citation of Dillon, above, been clarified:

(i) Qualified privilege is based upon public policy, namely, in certain circumstances freedom of communication is a more important aspect of democratic government than an individual's right to protection of his or her reputation: Dillon, supra, at [12];

(ii) It is first necessary for a trial judge to determine whether there was a duty of a kind which created the occasion to make the statement to which qualified privilege attaches: Dillon, supra, at [13];

(iii) The determination of whether the occasion arose to which qualified privilege attaches is determined by consideration of the nature and importance of the matters conveyed, the relationship of the defamatory statement to those matters and the relationship between the maker of the statement and the person to whom the statement is made: Dillon, supra, at [13];

(iv) The relationship between the maker and receiver of the statement is a requirement of a reciprocity of duty or interest necessary to attract the defence of qualified privilege, meaning, that the maker of the statement has a duty or interest in making it and the receiver of the statement has a duty or interest in receiving it: Dillon, supra, at [12], [13], [32], [54]; Bashford, supra, at [9], [10], [137]; Aktas, supra, at [22], [41];

(v) Qualified privilege, if it were to exist, is defeated by an improper motive, otherwise termed "express malice", being a reason for the making of a statement not referable to the duty or interest pursued: Dillon, supra, at [14], [29];

(vi) Qualified privilege is also lost for so much of the statement that is not relevant and pertinent to the discharge of the duty or the safeguarding of the interest: Dillon, supra, at [19];

(vii) While knowledge that a statement is untrue may be evidence of malice, neither lack of belief in the truth of the statement nor objective falsity of the statement is sufficient to destroy qualified privilege: Dillon, supra, at [28], [29].

114 As was pointed out by the High Court in Bashford, supra, at [10], stating the principles at a high level of abstraction does not ease the difficulty in the application of the principles. Fundamentally, the controversies that have existed at trial level relate to the determination of whether there is a reciprocity of interest (assuming the trial judge has embarked upon that process), whether the motive for the making of the statement is an improper one and whether something said in the statement is irrelevant to the reciprocal duty to publish and receive the statement.

115 While analysis by analogy is problematic and the issues are never exactly the same, there is significant discussion on the difference between an interest relating to particular matters and a high level of abstraction, under the rubric of "public interest", as part of the requirements of fair comment under the former common law principles and under the Queensland Code. At one level, the highest level of abstraction, almost all issues could be pertinent and/or relevant to an interest in making and receiving a publication.

116 Thus, at the highest levels of abstraction, in a democracy such as Australia, it may be said that every citizen has a duty or interest in open government or government that is not corrupt and almost every other citizen has a duty or an interest to convey matters that impede open government or the discovery of corruption. As a consequence, any allegation of conduct by an official that impedes open government and encourages corruption or facilitates it would be subject to qualified privilege. That qualified privilege would remain even though the imputations and/or allegations were untrue.

117 In discussing "public interest", in the context just described, the High Court said:

"At common law, it would be meaningless to speak of a fair comment on 'organised crime and corruption in Queensland' or a fair comment on 'the existence of illegal activities' or a fair comment on 'trafficking in illegal drugs' without the comment referring, expressly or impliedly, to the conduct of individuals whose office or public activities invited public criticism and discussion. Thus, a comment on the conduct of a private individual who had secretly engaged in organised crime could not be justified at common law as a fair comment on a subject of public interest, no matter for how long or how heavily he or she had been engaged in organised crime. It is the failure to grasp this point that has led to the view that 'some subject of public interest' ... includes general abstractions unrelated to the conduct of particular individuals." ( Bellino v Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183, footnote 115, per Dawson, McHugh and Gummow JJ.)

118 Of course, the issue with which the Court is concerned when dealing with qualified privilege is very different from the question of "public interest" to which the High Court was referring in Bellino, supra. Nevertheless, the difficulties associated with general abstractions are as acute. The difficulty, however, is overcome when one combines the considerations of the matters conveyed and the relationship of the defamatory statement to those matters, with the relationship between the maker of the statement and the person to whom the statement is made (see [113](iii) above).

119 There is a requirement that there be a relationship between the maker of the statement and the person to whom the statement is made such that the matters conveyed (including the defamatory statement) give rise to a duty or interest to make the statement and a duty or interest to receive it.

120 Thus, in Aktas, supra, the bank's interest to communicate the information arose from its desire to refuse to pay on the cheque that had been presented. But the person who received the information had no interest in receiving it, unless, as a matter of objective fact, the drawer of the cheque had insufficient funds to meet its payment. Therefore, where the notice to dishonour a cheque from a bank inaccurately asserts that the drawer does not have funds to meet the payment, it is a defamation not protected by qualified privilege: Aktas, supra, at [41], per French CJ, Gummow and Hayne JJ.

121 In Dillon, supra, on the other hand, both the maker of the communication and the receiver of it had an interest and/or duty, respectively, to make and to receive. Even if the material be defamatory (by which term I here mean untrue and damaging of reputation), it is necessary for the person in the position of the receiver of the communication, in the Dillon situation, to be armed with the material necessary to investigate the allegation and/or to make decisions based on possible repercussions. The existing relationship between the maker and receiver of the communication in Dillon, supra, was such that, even though untrue, there was an interest to make and receive the allegation.

122 A difficulty, relevant to present circumstances, is exemplified by the judgment in Guise v Kouvelis [1947] HCA 13; (1947) 74 CLR 102. That case concerned a statement, by a member and committeeperson of a club, who remarked, in a loud voice, audible to 50 or 60 people, both members and non-members of the club, to a person playing cards: "You are a crook". The High Court (Latham CJ, Starke, McTiernan and Williams JJ) held that the words or statement about which complaint was made were not spoken on a privileged occasion and did not give rise to qualified privilege. The dissenting judgment of Dixon J is illustrative of the different views that persons may have of the reciprocity of interest and/or duty.

123 Latham CJ accepted that the other members of the club had an interest in receiving the information, because it affected their capacity to involve themselves in an exchange and play cards with the plaintiff. However, Latham CJ held that the defendant was not defending or protecting his own interests or his interests as a member of the club. Protection of those interests, according to his Honour, did not require any statement about the plaintiff to any other person.

124 Latham CJ went on to say that the defendant could have told the plaintiff that he was reporting his conduct to the committee and a communication with the committee would have been the subject of qualified privilege.

125 Starke J took the view that the defendant had no legal duty to make the statement and the 50 or 60 persons who heard it had no duty to receive it. Both McTiernan and Williams JJ agreed with the Chief Justice.

126 Dixon J concentrated on the interest of the maker of the statement, from a social or moral point of view, to make the communication and dismissed as currently irrelevant, the interest of others present in receiving the communication. His Honour concluded that the defendant's purpose was not primarily to communicate information to the bystanders, but to demand from the plaintiff a justification for what he had done and perhaps to expose him.

127 The fundamental difference in this case is manifest. Mr Sinclair had an interest in ensuring his access to higher grades of certification in order to officiate at dragon boat racing events. It was therefore in his interest to communicate issues that he considered were prejudicially affecting his access to such higher grades.

128 Some of the recipients of his email plainly had a corresponding interest and/or duty to receive the communication. Certainly, the members of the committee of either DBNSW or AusDBF had such an interest or duty. As a consequence, the communication by Mr Sinclair to the members of the committee of AusDBF and/or DBNSW was a communication on an occasion of qualified privilege.

129 Further, it would seem, given the context of the communication and the interest in officiating at international events, that the officials of the IDBF also had a corresponding interest and/or duty to receive the communication.

130 The difficulty arises in determining who, if anyone, other than the aforementioned, had a corresponding interest or duty to receive the communication.

131 Unlike Guise, supra, this was not a communication to Ms Cantwell, which others overheard. Nor was it a communication to those with an interest, which others overheard. This communication was deliberately addressed to persons beyond the class of members of the committee and/or officials of the three aforementioned bodies.

132 One of the addressees was a "Yahoo" group which contained 173 members, all of whom were involved in dragon boat racing, but beyond that description, Mr Sinclair was unaware of who they were, the interests they had, and/or any positions they held within the dragon boat racing community.

133 Other than the bare interests associated with some form of connection to or participation in dragon boat racing, Mr Sinclair could not have been aware of the interests of the persons to whom his emails were sent to receive the information in them.

134 Although there is, at least by implication, some suggestion that at one regatta there was a degree of incompetence and/or inappropriate officiating, there is no suggestion that a participant in dragon boat racing, who is not concerned to officiate and/or increase certification levels, is affected, prejudicially or otherwise, by the failure of Mr Sinclair to obtain higher levels of certification. Nor is there any indication that such persons are affected, or have an interest in, the availability of certification to all dragon boat community members.

135 It follows, from the foregoing, that the communication from Mr Sinclair to the members of the committee and/or officials of the IDBF, AusDBF and DBNSW was on an occasion of qualified privilege. The communication to other members of the dragon boat racing community was not on an occasion of qualified privilege.

136 Unlike a newspaper article, or a public broadcast or even an accusation shouted out in the precincts of a club (see Guise, supra), Mr Sinclair chose the recipients of his two emails. Mr Sinclair had deliberately selected recipients beyond the members of the committee and/or officials of IDBF, AusDBF and DBNSW. The communication with those persons, beyond the committee members and officials, is not a communication on an occasion of qualified privilege.

137 The defendant submits that the emails are directed towards the affairs of dragon boat racing in Australia. This is a generalisation, which goes beyond the purpose of the emails. The emails are directed towards selection for officiating and the certification of officials in dragon boat racing.

138 Further, the defendant's submissions that the emails concern "putting members forward for assessment by the international body" is accurate only to the extent that it must be understood as referring to members, seeking certification as officials, for assessment at a particular level of official. As such, the subject matter of the emails does not have "equal application to all members throughout all clubs, wherever they are in Australia".

139 A further submission is put by the defendant that the matter could be the subject of discussion at an annual general meeting. This may be so. If it were so, it could be the subject of discussion, on the basis of qualified privilege, because, on the occasion of its discussion (namely an annual general meeting), the attendees would have a sufficient interest in dealing with the matters on the agenda, which, on that hypothetical, would include the question of the certification of officials.

140 The defendant submits that it is impermissible to draw a distinction between ordinary paddlers (members of the dragon boat racing community) and members of the governing bodies for reasons analogous to the rationale adopted by Simpson J in Megna, supra. In Megna, supra, repetitive publications concerning local council affairs were distributed to all homes in a municipality. The difference, however, is that the distribution in Megna, supra, was a distribution that was not intended or directed at non-residents. In this case, the publication by Mr Sinclair was directed at non-officials and non-members of the committee.

141 Alternatively, and it is a matter upon which reasonable people may differ, all members of the dragon boat racing community had an interest in ensuring that each of them and all of them had the greatest opportunity to further any interest they may have in acting as an official at the highest level. Further, on that view, each participant in dragon boat racing also had an interest to ensure that there were sufficient numbers of competent officials for races that were conducted and that officials were chosen on the basis of merit, rather than "nepotism" (using the term broadly as it has been in the pleadings).

142 As stated, the existence or otherwise of an occasion for qualified privilege is a matter, in relation to the members of the dragon boat racing community other than officials and board members, upon which reasonable people may differ. I incline to the view that, in all of the circumstances, the former expressed view is the correct one and that the emails in question were, insofar as they were sent to members of the dragon boat racing community other than committee members and officials, not communicated on an occasion of qualified privilege. Nevertheless, I will deal with each possibility, concentrating on a broader view of qualified privilege, namely, that each addressee had the requisite interest to receive the communication.

Malice

143 Ms Cantwell, as has been already stated, seeks to overcome the defence of qualified privilege on the basis of malice, which I treat, for current purposes, as a submission that Mr Sinclair's conduct was actuated by "express malice" or "improper motive" (see [113](v)).

144 The particulars of improper motive on which Ms Cantwell relies are knowledge of the falsity of the allegation and/or reckless indifference to its truth and a desire on the part of Mr Sinclair to injure or discredit the plaintiff.

145 Other than to the extent that the conduct of Ms Cantwell was perceived as an obstruction to the entitlement of Mr Sinclair to be upgraded, there is not a great deal of material suggesting Mr Sinclair had an interest more generally in the rights to gain access to accreditation. Nevertheless, a primary motive relating to Mr Sinclair's access to higher accreditation may give rise to a relevant interest in greater openness and availability of accreditation generally. I accept, on that basis, that Mr Sinclair had an interest in greater openness and availability of accreditation as an official in dragon boat racing. It is for that reason, amongst others, that I have earlier found a reciprocity of interest.

146 Notwithstanding the submissions of Ms Cantwell, knowledge of the falsity of a defamatory imputation is not "conclusive evidence" that the publication was actuated by an improper motive. Knowledge that a defamatory statement is untrue is evidence of malice, but it is not conclusive. Further, a lack of belief in the truth of a defamatory statement is, even if proved, insufficient to destroy qualified privilege: Dillon, supra, at [28], [29], as summarised above at [113](vii).

147 There is no doubt that the allegations made are untrue. There is also no doubt that they are defamatory. While I accept that a reasonable view of the material that was given to, and/or available to, Mr Sinclair would have led him to a view that Ms Cantwell did not obstruct his selection as an official for Prague, whether the response was the objective or reasonable response to the material in the possession of Mr Sinclair is not the test.

148 If Mr Sinclair were to have an honest, but unreasonable, belief in the truth of the defamatory comments he was making and they were made on an occasion of qualified privilege, the qualified privilege would protect the communication. Further, a lack of belief in the truth of the allegation does not destroy the qualified privilege.

149 On the evidence before the Court, Mr Sinclair possessed an animus towards Ms Cantwell. The reasonableness of his opinion of Ms Cantwell is wholly irrelevant. Yet, the objective material before the Court discloses a dislike of Ms Cantwell and a view that Ms Cantwell was sinister and/or inappropriately obstructing his progression to the top of the dragon boat racing community or in a higher capacity as an official thereof.

150 Such a broad generalisation does not necessarily assist when one is considering the motive for the publication of the emails about which complaint is made. As I sought to make clear earlier, I disregard in relation to the allegation of malice, any issue relating to the objective truth of the allegations or any reckless indifference to the truth of them. There is no evidence before the Court that Mr Sinclair did not believe that the allegations he was making were true. I do not, therefore, need to deal with whether knowledge of the falsity of a statement is sufficient, without more, to overcome the occasion of qualified privilege.

151 However, the circumstances that gave rise to these emails give rise to certain inferences. After a significant period of complaining about Ms Cantwell, Mr Sinclair was content to be assessed at Prague for his Grade 2 Certificate and to work within the processes of AusDBF and/or IDBF to obtain whatever other results he was seeking.

152 Nevertheless, when he received notification that he had not been selected as an official in Prague, but selected only as a volunteer and was, by that selection, precluded from obtaining his certification as a Grade 2 official, it is fairly clear that Mr Sinclair was extremely angry. He blamed Ms Cantwell for that occurrence.

153 He wrote to AusDBF and IDBF for an explanation and asked for a response within 48 hours, otherwise the offending emails would be sent. He did not wait the 48 hours. He sent the emails, regardless of any response that may yet be received.

154 The attitude that Mr Sinclair displayed, the tone of the emails, the timing of the emails and his attitude generally, leads inexorably to the drawing of an inference that his motive in sending the emails to a range of addresses and persons of whom he did not know, was motivated, not by the furtherance of his interest in openness in the selection of officials or his understanding of the recipients interest in such a topic, but by a desire to injure or to discredit Ms Cantwell and by the anger at his failure to be selected as an official at the Prague World Championships.

155 That and not the more general motive associated with openness in the selection criteria was the motive for the sending of the emails. That is a motive or purpose, or both, for which the recipients of the email had no reciprocity. It was an improper motive, in the sense that it is a reason for the making of the defamatory statements, and the sending of the communication, whether or not it included the defamatory statements, not referrable to the duty or interest for which there was reciprocity and for which there would otherwise be qualified privilege.

156 As a consequence of the foregoing, the improper motive of Mr Sinclair in sending the emails and making the communication destroyed the qualified privilege that would otherwise have existed in the communication. In that sense, on the first alternative to qualified privilege, it destroyed the qualified privilege in a communication between Mr Sinclair and the officials and/or board members of IDBF, AusDBF and DBNSW. Further, on the second of the alternatives above, it destroyed the occasion of qualified privilege that existed between Mr Sinclair and all members of the dragon boat racing community.

157 Further, in relation to the above, if, as is my preferred view, the first of the alternatives is the only one which gives rise to a qualified privilege, the making of the statements and the sending of the emails to persons, other than those for whom there was a reciprocity of interest or duty, or both, points to a motive other than that which would give rise to the occasion for qualified privilege.

158 Mr Sinclair was constantly thinking about his non-selection throughout the time between the notification that he was to be a volunteer, and not an official, until the time he sent out the email (Transcript, p 206).

159 Moreover, the response of Mr Sinclair (Transcript, p 224) (that, informed by the officials of IDBF [Messrs Haslam and Thomas] that Ms Cantwell had no involvement in any decision to appoint Mr Sinclair a volunteer at Prague, or not to appoint him as an official, made no difference to whether Mr Sinclair sent the emails) points to the proposition that Mr Sinclair's motive was not the openness and availability of higher certification as an official, but anger at not being selected and malice towards Ms Cantwell whom he saw as his "nemesis".

160 The foregoing is not a suggestion that wilful blindness or absence of belief in the truth of the comment is sufficient to destroy qualified privilege. Rather, it is evidence of the motives of Mr Sinclair, which were not motives for which public policy would dictate that the individual's right to protection of reputation be subjugated to freedom of communication.

161 As a consequence of the foregoing, the communication contains defamatory imputations that have damaged the reputation of Ms Cantwell. The communications were, at least in part, on an occasion of qualified privilege, but that qualified privilege has been destroyed by an improper motive in sending the communication. It is therefore necessary to assess damage.

162 Damages in defamation are capped at a maximum of $311,000 (s 35 of the Defamation Act 2005). The purposes of an award of general damages in defamation are consolation for hurt to feelings, compensation for damage to reputation and vindication of the plaintiff's reputation. The vindication for plaintiff's reputation, while a purpose of general damages, does not give rise to greater damages than would otherwise be the case for the consolation and compensation. The award of damages and the reasons for judgment vindicate the plaintiff's reputation.

163 In this case, the publication was confined to persons in the dragon boat racing industry. However, a significant aspect of the activities of Ms Cantwell is in that community. Further, as has been stated, the effect on her feelings and self-confidence has been substantial.

164 Ms Cantwell submits that there should be a separate award of damage in respect of each email. I do not agree. In my view, each email was part of the one publication to all members of the dragon boat racing community. Were it otherwise, one would (and/or should) award separate damages in respect to each addressee because, as a matter of theory and practicality, the email is a different email to each addressee.

165 There can be little doubt as to the effect that this publication has had on Ms Cantwell and I accept the submissions made on behalf of Ms Cantwell, relying, in particular, on the evidence of Mr Alexandrou, Ms Lette and Mr Murphy.

166 Ms Cantwell enjoyed an extremely good reputation within the dragon boat racing community generally. That is not to say Ms Cantwell was universally loved. However, even in respect to those who did not admire or think well of Ms Cantwell, the emails would have been significantly damaging to her reputation because they would have "confirmed" or "verified" their otherwise unsupported view of Ms Cantwell. These communications have significantly damaged Ms Cantwell's self-confidence and capacity to socialise and to enjoy life.

167 The case that has been run by Mr Sinclair is one which, while not alleging truth as a defence, has sought to impugn Ms Cantwell and to support the views expressed by Mr Sinclair in his communication. Mr Sinclair has failed to apologise, which is consistent with the manner in which his defence has been advanced.

168 As to the grapevine effect, to which reference has already been made, the Court qualified the seriousness of that effect by making clear that an email is a personal communication. On the other hand, unlike emails, the internet is available generally to all who seek access to it: compare Higgins v Sinclair [2011] NSWSC 163 at [218].

169 Nevertheless, the grapevine effect has been significant. Evidence of the grapevine effect is before the Court. I have held and reiterate that all persons in the dragon boat racing community would have received the original emails, or a copy thereof, or known of the contents thereof. There are approximately 5,600 members of the dragon boat racing community, or there were at the end of 2008.

170 Ms Cantwell seeks aggravated damages. Aggravated damages are compensatory and are awarded for improper, unjustifiable conduct or conduct lacking in bona fides: Ali v Nationwide News Pty Ltd [2008] NSWCA 183. It must be conduct which increases the harm which the publication of the defamatory material originally caused.

171 In this case, Mr Sinclair, by the conduct of these proceedings, continues to assert the imputations of Ms Cantwell in the communications. Further, the imputations were conveyed and/or repeated by emails sent subsequently to the two offending emails. That continued assertion is in circumstances where, on any reasonable view, Ms Cantwell did not have a role in the selection of officials and volunteers for Prague. The continued promulgation of the allegations has aggravated the initial harm caused by the publication of the defamatory imputations in the communication.

172 As stated, Ms Cantwell has been defamed. She has been defamed in circumstances which are actionable and which should be compensated by damages. The conduct of the defendant after the defamatory publications to suggest the truth of the imputations and/or to repeat the defamation, for example that Ms Cantwell switched the defendant out of Penang and put herself in, exacerbated the damage. I reiterate that aggravated damages are compensatory, not punitive.

173 Ms Cantwell is entitled to a level of damage in compensation for the wrong done to her and the damage to her reputation and feelings, which properly compensates her for that damage and allows her to point to the judgment as a vindication of her reputation and to signify the falsity of the defamatory imputations.

174 This requires some estimate of the duration during which the damage will occur. The damage has occurred for the entirety of the period since the publication to the date of this judgment.

175 I consider that most, if not all, of the harm to Ms Cantwell's reputation will dissipate upon the publication of these reasons for judgment and knowledge of the judgment. Because the defamation occurred by email communication, it is possible for Ms Cantwell, or someone on her behalf, to circulate a summary of this judgment to all of the addressees to whom the original communication was made. While that will not overcome all of the grapevine effect, it will significantly diminish, if not totally eliminate, the damage that would otherwise have continued. Further, the damage is confined to the dragon boat racing industry not more broadly and Mr Sinclair is an individual, not a corporation or body commercially involved in publishing material.

176 The communication upset Ms Cantwell significantly. As already stated, it affected her self-confidence and, on the evidence before the Court, she was extremely distressed by the communication. A significant component of the award of damages shall be for compensation for hurt feelings. Another significant component shall be for the damage to reputation to which the Court has already referred.

177 Another aspect of the award of damages, albeit minor, shall be aggravated damages, which I reiterate are compensatory not punitive and relate to the continuing promulgation of the allegations in other communications and during the conduct of these proceedings.

178 I assess damages, including aggravated damage, for the defamation at $75,000. No part of that damage is for economic loss. It takes significant account of the confined community to which the two defamatory imputations were published and the lack of resources of an individual who is not engaged in commercial publishing.

179 Ms Cantwell claims interest from the date of publication. Any award of interest must take into account the diminishing impact of the published defamation. In this case continuing action has aggravated the damage and aggravating damages have been awarded as a consequence. It is difficult, without risking double counting, to take into account the continuing defamation of the plaintiff. As a consequence and given my view that the far greater part of the compensable harm occurred at the time of publication, I award interest at 2 percent over the entire period from the date of first publication, namely, 4 April 2009 until the date of judgment. I calculate that, with a degree of rounding down, at two-and-a-half years.

180 As a consequence of the foregoing, there will be judgment for Ms Cantwell against the defendant in the sum of $77,750, including interest. Costs are reserved for any additional argument.

181 The Court makes the following orders:

(i) Judgment for the plaintiff;

(ii) The defendant shall pay damages in the sum of $77,750 (including interest) to the plaintiff;

(iii) Within seven days of the date hereof, the plaintiff shall file and serve a document setting out its claim for any order as to costs and within a further seven days thereafter the defendant shall respond thereto. If there be no agreement, the Court shall contact the parties in order to direct written submissions and/or a short hearing on costs.

**********

Decision last updated: 26 October 2011