Klason v Australian Capital Territory [2003] ACTSC 104 (11 December 2003)

Last Updated: 28 January 2004

JOHN ROSS KLASON v AUSTRALIAN CAPITAL TERRITORY [2003] ACTSC 104 (11 December 2003)

DEFAMATION - statement that department substantiated allegation of sexual abuse followed by statement that judge had found it not substantiated - whether earlier statement, bane was neutralised by later statement, antidote - relevance of further statement that record retained in accordance with child protection guidelines - defence of qualified privilege - allegation publication actuated by malice - need to prove dominant purpose or motive improper - relevance of earlier unfair treatment including earlier defamation found to have been published maliciously - possibility that some officers of defendant were misled by others - relevant principles.

Children's Services Act, 1986, s 73

Public Sector Management Act, s 9, subs 186(1)

Parmiter v Coupland (1840) 6 M & W 105

Sim v Stretch (1936) 52 TLR 669

Consolidated Trust Company Ltd v Browne (1940) 49 SR (NSW) 86

Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449

Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519

Lewis v Daily Telegraph Ltd (1964) AC 234

Slatyer v Daily Telegraph Newspaper Co Ltd [1908] HCA 22; (1908) 6 CLR 1

Farquhar v Bottom & Anor [1980] 2 NSWLR 380

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158

Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348

Chalmers v Payne (1835) 150 ER 67

English & Scottish Co-operative Properties Investment Society Ltd v Oldhams Press Ltd [1940] 1 KB 440

Slim v Daily Telegraph Ltd [1968] 2 QB 157

Bass v McDonald & TCN Channel Nine Pty Ltd (No 6) [2001] NSWSC 988

Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418

RZ Mines (Newcastle) Pty Ltd & Anor v Newcastle Newspapers Pty Ltd & Anor NSWSC 16/11/94

Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293

Horrocks v Lowe [1975] AC 135

Tse Wai Chun Paul v Cheng [2001] EMLR 777

Roberts & Anor v Bass [2002] HCA 57

M v M [1988] HCA 68; (1988) 166 CLR 69

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Lopes v Taylor (1970) 44 ALJR 412

Nuhic v Rail & Road Excavations [1972] 1 NSWLR 204

Australian Defamation Law & Practice (Butterworths: Sydney, 1999)

Gatley on Libel and Slander, 9th ed (Sweet & Maxwell: London, 1998)

No SC 209 of 2002

Judge: Crispin J

Supreme Court of the ACT

Date: 11 December 2003

IN THE SUPREME COURT OF THE )

) No. SC 209 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JOHN ROSS KLASON

Plaintiff

AND: AUSTRALIAN CAPITAL TERRITORY

Defendant

ORDER

Judge: Crispin J

Date: 11 December 2003

Place: Canberra

THE COURT ORDERS THAT:

1. it be declared that the plaintiff did not sexually abuse his daughter as stated in the data base and records of the ACT Department of Education and Community Services;

2. the proceedings otherwise be dismissed.

1. This is a claim for damages for defamatory statements allegedly made about the plaintiff by the defendant in the following documents:

* a report entitled "Consideration of matters arising from findings of Special Magistrate Symons", dated 21 September 2001 which had been prepared for the defendant by Mr Bruce Dockrill and "preparation documents thereof";

* an undated minute entitled "Background Briefing on Klason matter" ("the minute") which had been prepared for the Minister for Education, Youth and Family Services ("the Minister") by Ms Fran Hinton, the Chief Executive of the Department of Education and Community Services ("the Department") and Ms Sue Birtles, the Executive Director of Children's, Youth and Family Services ("Family Services") apparently in late 2001 or early 2002; and

* a letter dated 18 February 2002 written to the plaintiff by the Minister.

2. The plaintiff was apparently unable to obtain legal representation and, whilst he is clearly an intelligent and articulate man, the amended statement of claim contained a number of generalised statements reflecting heartfelt grievances against officers of the Department and argumentative propositions concerning his claim, rather than a series of paragraphs disclosing the precise cause or causes of action upon which he relied. The reply to the defence was similarly deficient. However, Mr Crowe SC, who appeared on behalf of the defendant, fairly conceded that no point would be taken about the inadequacy of the plaintiff's pleadings and that the defendant was prepared to meet the plaintiff's case on its merits.

3. The claim reflects the latest chapter in an unhappy and somewhat disturbing saga spanning more than a decade. During this time the plaintiff has sought vindication in respect of an allegation that he sexually abused his daughter, Amanda, and redress against those whom he claims maintained the allegation after he had been effectively exonerated by findings made in the Family Court of Australia and after successive judicial pronouncements that it was totally inappropriate for the Department to do so. It is necessary to provide at least a brief outline of the more significant events so that the present claim may be understood in context.

4. The plaintiff and his former wife were married in 1982. Their daughter, Amanda, was born on 5 July 1985 and their son Benjamin (Ben) was born on 8 June 1986. His wife already had three children as a result of an earlier marriage. The plaintiff and his wife separated on 31 December 1989. After the separation Amanda and Ben both resided with their mother and their half siblings. The plaintiff had regular access to them.

5. The plaintiff subsequently became concerned that his wife was turning the children against him and on 1 November 1992 he consulted a social worker for advice on how to deal with this problem. Later that month Ben indicated that he wished to live with his father and both parents agreed that he could do so. Amanda remained with her mother but continued to see the plaintiff during access visits.

6. The marriage was dissolved by a decree nisi issued by the Family Court of Australia on 19 January 1993.

7. During subsequent proceedings in the Family Court, the plaintiff gave evidence that during 1991 Ben had complained of being hit whilst in his mother's home. The plaintiff said that he had reported Ben's complaints to the relevant authorities but that no action had been taken. After a voluntary counselling session at the Family Court in May 1993, the plaintiff terminated the arrangement for his former wife to have access to Ben. He expressed concerns about Ben's physical safety and the fact that on two occasions he had been suffering from asthma when he returned to the plaintiff's home. The plaintiff also indicated that he was concerned about his former wife's physical care of the children.

8. During the same month, Amanda's maternal grandmother complained to a school counsellor that Amanda did not like going to her father's home because "he touches her on the boobs and watches her while she's in the bath". The counsellor noted that the grandmother "had asked leading questions and Amanda may just have been agreeing w/o any substance but she has been reluctant to go for some time".

9. The allegation was referred to the Child at Risk Assessment Unit ("CARAU") on 20 May 1993 and Amanda was interviewed at school, without warning, by social workers from Family Services. Regrettably the notes of these interviews were subsequently lost.

10. The allegations were investigated by Ms Wyndham, the Senior Investigation Officer of CARAU. Ms Wyndham interviewed Amanda, Ben and ultimately, the plaintiff. The plaintiff apparently told her that Amanda had been happy with him on access visits until the end of 1992 when she had often seemed upset and indicated that she missed her mother and wanted to go home. He had felt that her change of attitude may have been attributable to the death of one of her maternal uncles and his concern had apparently led him to take her to see the weekend social worker at Woden Valley Hospital. In subsequent proceedings he said that he had initially asked Ms Wyndham for assistance with this problem but later refused to cooperate with her when he found Ben "very distressed" after an interview with her and discovered that her real motivation had been to pursue the investigation into the allegation that he had sexually abused Amanda.

11. On 20 September 1993 the plaintiff filed a notice of child abuse alleging that both children had been hit by their half sister, who was a daughter of their mother's first marriage.

12. On the following day, his wife filed a similar notice alleging that the plaintiff had rubbed his hands on Amanda's breasts but making no specific allegations in relation to any abuse of Ben.

13. On 24 September 1993 consent orders were made in relation to the custody of Ben and Amanda. The plaintiff was granted interim custody of Ben, with his former wife to have access provided that Ben would not be left in the presence of the half sister without another adult person being present. The plaintiff's former wife was granted interim custody of Amanda, with the plaintiff to have access in the presence of at least one of a number of certain other adults.

14. Whilst the plaintiff's complaint concerning the treatment of Ben does not seem to have prompted a similar degree of investigation, Ms Wyndham responded to his former wife's complaint by conducting a series of five interviews with Amanda. In a report dated 10 April 1994, she described Amanda's responses to the questions that had been put to her.

15. Ms Wyndham acknowledged that there had been considerable controversy and alarm concerning child sexual abuse allegations in the context of separation and divorce but said that the literature "on numbers of `substantiated, unclear and substantiated' cases" [sic] was sparse and that there were difficulties of comparison and methodology. In a concluding section in which she set out what she saw as competing factors in assessing the credibility of the allegations, Ms Wyndham identified those "confirming that sexual abuse may have occurred" as including the consistency and apparent credibility of Amanda's account and the fact that while she had overheard her mother's criticism of her father and may have had divided loyalties no information emerged which would have prompted her to speak about sexual matters. Ms Wyndham also suggested that her mother had not seemed to have been vindictive towards the plaintiff or to have fabricated or "maximised" Amanda's statements. Those factors which she identified as "not confirming that sexual abuse may have occurred" included the plaintiff's complete denial of any abusive actions, the lack of any "sexualised" or disturbed behaviour and the difficulty of ascertaining the facts in "the emotionally charged arena of custody and access disputes and the possibility that all parties may have concealed or distorted information". She ultimately concluded that there was a "high likelihood that Amanda was fondled on the breast by her father".

16. I have no doubt that Ms Wyndham approached the investigation in a conscientious and professional manner but her analysis of the competing factors seems to have been somewhat inadequate. It was obviously appropriate for her to have taken into account the consistency and apparent credibility of Amanda's account. However, Ms Wyndham should have realised that it was dangerous to rely upon a mere absence of information of anything that may have prompted her to speak about sexual matters, especially since she had older siblings. Furthermore, so far as I can determine from the interview transcripts tendered in evidence, she was not asked any questions relating to this issue and the proposition seems to have been based upon mere assumption. Similarly, she should have realised that her subjective impression of the mother's lack of vindictiveness toward the plaintiff could have offered no real confirmation of the truth of the allegation, even if the mother's complaint had not been an obvious riposte to the complaint made by the plaintiff the day before concerning the treatment that Ben had received in her home. On the other hand, whilst mentioning the plaintiff's denial and the absence of any emotional responses of the kind that might have been expected from an abused child, Ms Wyndham characterised these factors as merely "not confirming" the occurrence of sexual abuse when they should obviously have been recognised as factors militating against any conclusion that the alleged abuse had occurred.

17. At least some of the interviews were video taped and transcripts were later made by Auscript. Ms Wyndham made numerous handwritten alterations to the transcript of at least one interview, asserting that some content had been misconstrued due to Amanda's soft voice. The plaintiff tendered a video tape of the relevant interview and suggested that at least some of the alterations constituted unwarranted glosses on what Amanda had actually said. Regrettably, the video tape appeared to have deteriorated. The images were of extremely poor quality and, whilst the recording of the voices was relatively clear, Amanda often did speak very softly. I was unable to hear some of the answers that Ms Wyndham attributed to Amanda but equally unable to exclude the possibility that she may have said them.

18. It is clear, both from Ms Wyndham's report and from the video tape, that Amanda was complaining of the plaintiff having touched her chest over her clothing and of him having looked at her while she was in the bath. It was, of course, important to bear in mind that Amanda was only seven years old when these complaints were made and that the plaintiff had sometimes been obliged to help her dress and undress and, on occasion, carry her to bed after she had fallen asleep.

19. During the course of at least one interview, Ms Wyndham actually raised the possibility of his hand accidentally touching Amanda whilst he was dressing her but was apparently content to discount this possibility when Amanda apparently shook her head. The report did not mention that Ms Wyndham had apparently sought confirmation with the extremely leading question, "No, you've been dressed and he hasn't been trying to help you get dressed or anything?" Nor did it record the answer, "I don't really remember, but I remember that he helps me sometimes".

20. Amanda responded to a later question, as to whether it felt different from when his hand accidentally touched her, with words which Ms Wyndham recorded as "Like he wants to", though the Auscript transcript recorded only the word "Like" and I was also unable to hear the additional words attributed to her. With due deference to Ms Wyndham's obvious experience in interviewing children, I must say that this answer, even if given in the terms suggested, seemed to provide at most a flimsy basis for rejecting the possibility that this seven year old child may have been touched innocently. Amanda also agreed with a suggestion that she had asked him "not to do it" and Ms Wyndham recorded the comment, "He just does it". However only the word "He" appears in the Auscript transcript and I was again unable to hear on the video tape the rest of the words attributed to Amanda.

21. The plaintiff continued to be concerned about the physical abuse of his children by their older half sister and it appears that these concerns were not without foundation. A report from a medical practitioner, Dr Debra O'Brien confirms that the plaintiff had brought Ben to the Medical Centre at Tuggeranong Square on 10 November 1992 for a consultation about his asthma and that she had noted bruising on his thighs and back which Ben had told her were from his half sister. At a meeting with officers of the Department on 18 May 1994 it was noted that the half sister, who was then seventeen years old, had admitted to hitting Ben on the bottom but nowhere else. Nevertheless, the Family Services Branch concluded that there was no basis for an investigation, though it was agreed that his school should be contacted to see if any of his teachers had "concerns".

22. A Family Court counsellor who interviewed the plaintiff, his former wife and both children between 9 December 1994 and 11 January 1995 said that she had found an "ever increasing" animosity between the parents which had made it very difficult for the children, who were both reacting to the situation. The counsellor gave evidence that both children had been "counselled out".

23. The plaintiff's application for custody was heard by Butler J on 17 January 1995 and a written judgment was delivered on 15 February 1995. His Honour had had the benefit of expert evidence from an experienced psychiatrist, Dr Hugh Veness, as well as a report concerning the independent investigation carried out by the court counsellor. Neither suggested that there was any substantial evidence that Amanda had been sexually abused.

24. His Honour also noted that the legal practitioner who had been engaged to independently represent the children had "submitted strongly" on their behalf that the application "was not one of sexual abuse".

25. His Honour observed that it was important to recall that Amanda's "problems" had commenced at the time of her uncle's death, when her mother was upset and she had apparently been aware of her mother's need to be supported. His Honour said that this aspect of the matter had not been considered by Ms Wyndham to any degree. His Honour mentioned that the court counsellor had observed that Amanda had become suspicious and defensive after apparently misinterpreting an innocent conversational gambit by her, and suggested that this may have been attributable to the extensive questioning to which she had previously been subjected. His Honour found that Amanda did not suffer from anxiety and did not display any behaviour of the kind that might be expected when sexual abuse had taken place. Furthermore, she had said that she was no longer frightened in her father's presence or in his house. His Honour concluded that Amanda had misinterpreted her father's actions "whatever they were" and said that he was not satisfied that the plaintiff had sexually abused Amanda "or that there [was] any risk of him sexually abusing her".

26. Even on the somewhat more limited evidence before me, the findings of Butler J do not seem surprising. As Dr Veness pointed out, touching the outside of a child's clothing above the waist was not a usual form of sexual abuse and, in the circumstances mentioned by his Honour, the potential for misunderstanding was obvious. During the course of his submissions before me, the plaintiff suggested that he may have touched her whilst pulling her clothes on or off or even whilst tickling her. Such submissions are not, of course, evidence. However, possibilities of that kind should obviously have been considered by Ms Wyndham and other members of Family Services. No doubt, interactions of that kind between parent and child are normally enjoyable and hence unlikely to produce any subsequent complaint. However misunderstandings can occur even during normal interactions between parents and their children and Amanda was a young child whose parents had separated, whose uncle had died, whose younger brother had left her to live with her father and whose father had not only just terminated access between her mother and brother but had made serious allegations about her older half sister. Yet, as Butler J suggested, scant attention seems to have been given to the emotional impact which events of the kind described must have had upon a young child and of the added potential for misunderstanding and resentment.

27. As his Honour observed, the "peeking in the bath" was explained by the plaintiff's wish to note any sign of physical abuse that she may have received in her mother's home. Since he had formally complained of her younger brother suffering bruises as a result of the maltreatment he had received in that home, that explanation should have been obvious. In any event, whilst it is not clear just when this occurred, Amanda could have been no more than seven years of age and, even if had she felt embarrassed by it, there had been no logical reason to attribute the plaintiff's actions to prurient interest rather than simple parental concern.

28. Whilst the defendant had not been a party to the proceedings before Butler J and was not legally bound by his Honour's findings, Ms Wyndham had given evidence of her reasons for accepting the allegation and the issue had plainly received due consideration. It should have been abundantly clear from his Honour's findings that any record maintained by Family Services suggesting that the allegation had been substantiated would be grossly misleading. Yet the defendant maintained a data base annotation to that effect and apparently continued to list the plaintiff as a "maltreater".

29. Apparently undeterred by his Honour's findings, the plaintiff's former wife subsequently alleged that he had physically abused his son, Ben, and an officer from the Family Services Branch interviewed him at his school without his father's knowledge. It was not suggested that Ben had ever complained about being abused by anyone but his half sister and during the current proceedings it was not suggested that there was ever any evidence to support this allegation.

30. On 5 July 1996 the plaintiff commenced proceedings in the Family Court seeking orders including an injunction restraining the Director of Family Services, or her servants and agents, from contacting his son without leave of the Court. An application for an interim order was apparently not pursued after the Director of Family Services gave an undertaking on 19 August 1996 not to interview Ben pending the hearing of the application, without giving the plaintiff sufficient notice to enable him to bring the matter back before the court unless action was required under s 73 of the Children's Services Act, 1986. The need for such action was never suggested.

31. On 27 June 1997 Faulks J gave a brief judgment dealing with the Director's objections to producing certain documents on subpoena.

32. On 5 November 1997 his Honour gave a further judgment dismissing the plaintiff's application. In doing so, however, he cited the findings of Butler J rejecting the allegation that the plaintiff had sexually abused Amanda and even the existence of any risk of him doing so, and added the following comments:

The records of the data base would still seem to indicate that there had been a substantiated allegation. This failure, in my opinion, is a matter of deep concern, and the fact that the data base was only finally produced under subpoena after some time, while not in any way sinister because of the way in which the matter occurred would suggest that there is a serious question of integrity that needs to be considered by the Branch for the future. In my opinion, it is totally inappropriate to leave on any departmental data base or file any record which asserts as fact any matter which would be at variance with a court finding about the same matter.

33. I do not understand his Honour to have been suggesting that there is an all-embracing principle that departmental records must always accord with judicial findings. Issue estoppel arises only between the parties to the proceedings and, if the Department has had no opportunity to put significant evidence before a court, it may be quite inappropriate for it to simply adopt findings made in ignorance of relevant facts or to treat judgments as determinative of issues never properly canvassed. Furthermore, if investigations are not to be unduly hampered, the Department may need to make some record of unsubstantiated allegations, rumours, suspicions or other matters relevant to its investigations even though the truth of such matters could not be proven.

34. The requirements of confidentiality imposed by s 9 of the Public Sector Management Act provide some limited protection for the reputation of those subject to an investigation but some risk of causing real anguish to innocent people seems inescapable. Regrettably, this must be accepted as an unavoidable corollary of the paramount importance that society rightly attaches to the need to protect children from sexual and other forms of abuse and the need to properly investigate any allegation suggesting that a child may be at risk of being abused. However, the community is entitled to expect that the records will be as fair and accurate as possible. Hence, if a rumour proves groundless or an allegation is convincingly refuted, the relevant record should be promptly corrected.

35. An entry on a data base suggesting that an allegation that a person has sexually abused a child has been substantiated will imply that the truth of the allegation has been proven or, to use his Honour's formulation, assert "as fact" that the person has done so. That is a very grave imputation. There are few, if any, people so reviled in a civilised society as those who violate children for their own sexual gratification. If, as in this case, the person is innocent, then the maintenance of such a false assertion will certainly cause unjustified anguish and distress, to say nothing of the potential damage to the person's reputation. Furthermore, when the evidence available to the Department is tested in a court of law and found to be unsustainable, albeit in proceedings between parents vying for custody, then, as a matter of practical reality, that finding will be inconsistent with any contention on the Department's records that the allegation has been substantiated. Hence, as his Honour pointed out, it will be completely inappropriate for the Department to maintain such a contention.

36. In March 1998 the plaintiff wrote to the Privacy Commissioner complaining that the Department had maintained inaccurate information about him and that it had disclosed that information without his permission or consent.

37. On 19 March 1998 the Privacy Commissioner wrote to the Executive Director of Family Services, Ms Christine Healy, in relation to this complaint.

38. Following this communication, Ms Power, then a Senior Project Officer with the Department prepared a report dated 26 March 1998 entitled "Review of Substantiation of Sexual Abuse". That report included the following comments:

Issues for Further Consideration.

1 Dr Veness' statement that touching on the vagina is more usual than breast fondling seems ill-informed. If Mr Klason does have a problem in his sexual feelings about Amanda, the breast fondling could well have been a preamble to more serious interference that could have developed when she was older. If he does not have a problem, he has failed to adequately explain this allegation. It is interesting to note that he withdrew from the CARAU assessment when he realised that its focus was on Amanda's allegations. He also refused to be interviewed by Family Services workers. Are these the actions of a `guilty' man or a man who felt he was being `set up' by the system?

2 The family law dispute between the Klasons is littered with allegations and counter allegations and it is possible that both were out to make as much trouble as they could for one another, using the children as ammunition. Both children were undoubtedly under a lot of emotional pressure. Justice Butler believes that Amanda could have exaggerated the impact of the events to avoid access with her father. However, Annabell Wyndham found her to be truthful. If she wanted only to avoid access there were surely other more likely avenues open to her.

3 Everyone agreed that something happened. The moot point is Mr Klason's intentions toward Amanda. Justice Butler seems to have arrived at his decision based on acceptance that the father's actions were misinterpreted by the child. Annabell Wyndham comments, " . . . it seems clear that Amanda found her father's behaviour uncomfortable and frightening or at least highly anxiety provoking. Such touching would clearly be identified as abusive". However, Justice Butler and Dr Veness point out that there seemed to be no lasting or significant effects for Amanda.

Conclusion

In looking at the evidence to hand from all sides, it is clear that Amanda experienced inappropriate touching and that she found this highly distressing. The abuse was clearly on the `mild end of the scale' and there are no indicators that anything more serious may have happened. In fact, the indicators for emotional abuse appear far stronger than those for sexual abuse, other than the fact of Amanda's apparently truthful disclosure.

The difficulty seems to lie in the fact that the Client Information System can only reflect `substantiated' or `unsubstantiated' in relation to all forms of abuse. It would be better, and perhaps fairer, if the records reflected more accurately the specific form of abuse within each category.

39. On 8 May 1998, the Manager of the Court Unit, Mr Goggs, provided a memorandum to the Director of Family Services stating, inter alia, that he agreed that "our record cannot continue to reflect a substantiated notification when two judges of the Family Court have concluded it should not". Two recommendations were made in relation to the Department's Client Information System ("CIS"). First, that the "outcome" field be altered to permit subsequent amendments to records of whether an allegation had been substantiated or not and second, that the deletion of a person's name from the "maltreater" field be made possible. As incredible as it may seem, this proposal and the general tenor of the memorandum suggest that there had previously been no facility for amending the records in the manner proposed. Hence, once an adverse record was made, it apparently remained on the data base even if at some later stage the alleged "maltreater" was convincingly exonerated, as occurred in one earlier case before me, when the complainant conceded the falsity of the allegations, apologised for the harm caused to the person accused and later pleaded guilty to perjury.

40. In any event, it was subsequently recommended that the entries on the Department's data base relating to the plaintiff be amended by adding the words, "revised - not substantiated". Written records, such as the notification outcome report and the CARAU report of Ms Wyndham, were to have a further annotation: "After a hearing in the Family Court in 1995, the Court has determined that the alleged incident did not occur as reported and that sexual abuse is not substantiated - for details see file 111360 folios 49-81". It was also recommended that the reference to the plaintiff's name and his relationship as parent should be deleted from the CIS "maltreater" category. These recommendations were duly implemented but the plaintiff was not then informed of the amendments.

41. In response to a suggestion that even the phrase "not substantiated" may not be entirely fair when the falsity of an allegation has been established, Mr Crowe said that the phrase was understood by the Department to mean that the allegation had been effectively disproven and that the data base did not provide for a middle ground in which the truth of an allegation had neither been established nor refuted.

42. Later that year the plaintiff, having heard nothing about any action to correct the record, sought the assistance of the Commonwealth Ombudsman.

43. The plaintiff subsequently commenced proceedings for defamation in the Small Claims Court and on 28 March 2001, Special Magistrate Symons found that he had been defamed by certain passages in Ms Power's report and awarded him $2,000 in damages. In doing so, her Worship found that Ms Power had put herself in the position of `judging the judgment' and said that "it [was] difficult, if not impossible, to understand why the original substantiation of sexual abuse needed to be reviewed at all". The issue had been determined by the Family Court and Butler J had definitively found that the substantiation had been without foundation. She noted that the report had omitted significant parts of the judgment of Butler J and described their omission as surprising. She found that her review of the case had been permeated by arrogance and said that she could not be satisfied that Ms Power believed in the truth of some gratuitous comments.

44. In rejecting a defence of qualified privilege on the basis of malice, her Worship stated:

While Ms Power did not overtly criticise any of the Family Court judgments in that report, she introduced new allegations which I have found, from all of the material before me, were baseless. She has attempted to re-establish and exaggerate the allegations which have already been found to be false, and which she knew had been found to be false, and she purported to cast doubt on both the wisdom and reliability of Butler J's findings. While the Review ultimately came up with the same recommendation of Faulks J, I find, having considered all of the evidence, that it did so in a defamatory manner.

45. Her Worship rejected a contention that it had not been incumbent upon the Director of Family Services to inform the plaintiff of an amendment to the records in the manner recommended by Mr Goggs and pointed out that the Privacy Commissioner had been assured that the Department would do so. Her Worship noted that this had not occurred until 31 May 1999, some 12 months later, and said that this was "inexcusable", given the sensitive nature of the matter, the involvement of the Family Court, the Privacy Commissioner and ultimately, the Commonwealth Ombudsman.

46. Her Worship added:

This is particularly so given that the Director of Family Services was a respondent in the Family Court proceedings and was aware in August 1996 that Butler J's findings of 17 January 1995 had not been appropriately noted on the respondent's relevant Family Services files.

To not take action at the time of the hearing on 16 August 1996 was unfortunate. For the Director of Family Services to have continued not to take appropriate action by the date of Faulks J's first decision, 27 June 1997, or by the date of Faulks J's second decision, 5 November 1997, and in the absence of any explanation for the delay being put before me is appalling.

47. Her Worship also observed that Faulks J had "clearly said" that it was "totally inappropriate to leave on any departmental data base or file any record which asserts as fact any matter which would be at variance with a court finding about the same matter".

48. Her Worship ordered the defendant to obtain from Ms Power a written retraction of substantial portions of her report.

49. On 16 May 2001 the plaintiff wrote to Mr Gary Humphries MLA, then Chief Minister of the ACT Government, referring to previous correspondence and asserting that he and his son had been victims of "systematic abuse, denigration, victimisation and malfeasance/misfeasance" from officers of the Department. He complained that those officers had pursued actions and disclosed highly defamatory allegations and information that they knew to be false and in contravention of a judgment in the Family Court. As a result he had suffered financial hardship and serious damage to his health and good name. He claimed that his son had also been subjected to unnecessary emotional and physiological distress. He cited various passages from the judgment of Special Magistrate Symons and suggested that in the light of those findings it could be assumed that previous Ministers of the ACT Government who had written to him in response to earlier complaints had been misled. He sought a full investigation.

50. There was an ensuing course of correspondence between the plaintiff and Mr Humphries MLA and, later, following the election of a new government, Mr Stanhope MLA who became Chief Minister in Mr Humphries' stead. During the intervening period Mr Bruce Dockrill was authorised pursuant to subs 186(1) of the Public Sector Management Act 1994 ("the Act") to conduct an investigation into the findings of Special Magistrate Symons "regarding the actions of Family Services Bureau staff, and other relevant matters".

51. In his report of 21 September 2001, Mr Dockrill found that Ms Power, Ms Healy and Mr Goggs had each committed breaches of the Public Sector Management Act, though he concluded that none had done so wilfully. He recommended that each should undergo counselling in relation to the seriousness of their breaches.

52. Ironically, whilst staunchly maintaining that it would be inappropriate to remove the record of the allegations against the plaintiff having been substantiated, the Department directed that documentation recording that its own officers had been reprimanded for breaches of the Act should be removed from their personal files after a period of six months.

53. Whatever the merits of these decisions, it should have been clear that the plaintiff had been treated most unfairly and was, at the very least, entitled to an apology and an assurance that measures had been taken to ensure that he would not be defamed again. It appears that he received neither.

54. The plaintiff's present claim was based substantially on the contents of the minute prepared for the Minister in late 2001 or early 2002 which was in the following terms:

Background

A history of events in relation to Mr Klason's involvement with the Department is at Attachment A.

In summary Mr Klason has made a series of complaints to Ministers, the Ombudsman, the Privacy Commissioner, and others, since he was the subject of a statutory child protection investigation following a report of suspected child abuse eight years ago.

In accordance with the legislation and policy and procedures of the day, Family Services conducted an investigation and substantiated the allegation of sexual abuse. At a later Family Court hearing the Judge subsequently found the allegations were not substantiated. In the opinion of another Family Court Judge and a magistrate of the Small Claims Court, Family Services failed to appropriately annotate documentation around the outcome of the initial investigation.

Last year Mr Klason was awarded a small sum in the small claims court. The Magistrate also ordered Family Services to retract the written opinion of the Family Service's worker who reviewed the case. This Magistrate was at the time, critical of Family Service's handling of the matter.

In May 20001, (sic) Mr Klason wrote to the then Chief Minister Gary Humphries demanding an inquiry into the matter. The Commissioner for Public Administration recommended the appointment of an independent Authorised Officer to conduct an investigation. At the conclusion of the investigation the Authorised Officer recommended that no charges be laid but that three officers from Family Services receive counselling. Counselling was provided through letters from the Chief Executive and in person by the Executive Director Children's, Youth and Family Services.

Mr Klason rang your office before Christmas and again in the week commencing Monday 14 January, seeking the "sacking of two officials" associated with the investigation and that reference to `paedophile' be removed from the Departmental file.

Issues

The three officers who were the subject of the independent Authorised Officer investigation are no longer working for Family Services. Although the "two officials" Mr Klason is referring to are still ACT Government employees one is on leave without pay working for a non-government agency and the other is with ACT Community Care. The third officer has resigned from the ACT Public Service.

The former managers and colleagues of all three officers regarded them as highly ethical and committed public servants. All have a long history of dedicated work in the area of children's welfare.

At no time has the word "paedophile" appeared on a Departmental file in relation to Mr Klason. A full review of files on 14 January 2002 indicates that the amendments recommended by the Office of the Privacy Commission have been complied with in full (see Attachment A).

Fundamentally, Mr Klason's concerns relate to the fact that Family Services' documents have been annotated to reflect the Family Court Magistrates' (sic) ruling, rather than erased from the record. Family Services made this decision in line with national standards of child protection practice, as well as Administrative Appeal Tribunal rulings in relation to similar cases.

55. The plaintiff was understandably critical of this minute and submitted, inter alia, that the statement that Family Services had "substantiated the allegation of sexual abuse" was defamatory.

56. The classic test of whether a statement is defamatory is that postulated by Lord Wensleydale (then Parke B) in Parmiter v Coupland (1840) 6 M & W 105 at 108; that a publication will be defamatory if "calculated to injure the reputation of another by exposing him to hatred, contempt, or ridicule ... ". More recently the test has been restated by reference to whether the words would tend "to lower the plaintiff in the estimation of right-thinking members of society generally" (per Lord Atkin in Sim v Stretch (1936) 52 TLR 669 at 671) or be "likely to lead ordinary decent folk to think the less of the person about whom it is made" (per Jordan CJ in Consolidated Trust Company Ltd v Browne (1940) 49 SR (NSW) 86 at 88). See also Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449.

57. The hypothetical ordinary reader has been variously described as a "reasonable reader", a "right-thinking member of society" or an "ordinary man, not avid for scandal" and sometimes as a "reader of average intelligence". Such a person is presumed to have no special knowledge and to be devoid of the extremes of suspicion or cynicism on the one hand and naivety and disbelief on the other: Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 per Kirby J at [134.1]. It has been said that he or she can and does read between the lines in the light of his or her general knowledge and experience of worldly affairs and has a capacity for implication that is much greater than that of a lawyer: Farquhar v Bottom and Anor (1980) 2 NSWLR 380 at 386.

58. In Lewis v Daily Telegraph Ltd (1964) AC 234 at 258-259, Lord Reid provided some guidance as to how an ordinary reader could be expected to construe statements concerning the character or conduct of others:

There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs . . .

What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning . . .

Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naïve. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question.

See also Slatyer v Daily Telegraph Newspaper Co Ltd [1908] HCA 22; (1908) 6 CLR 1 at 7; Sim v Stretch (1936) 52 TLR 669 at 671; Farquhar v Bottom [1980] 2 NSWLR 380 at 386; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 170.

59. In deciding whether any particular imputation is capable of being conveyed by the material in question the issue is whether it is "reasonably so capable, and any strained or forced or utterly unreasonable interpretation must be rejected": per Hunt CJ at CL in Amalgamated Television Services Pty Ltd v Marsden at 165. However, a wide degree of latitude will be attributed to the capacity of the ordinary reasonable member of society to draw adverse imputations where the language employed has been imprecise, ambiguous or loose: Amalgamated Television Services Pty Ltd v Marsden at 165 and Chakravarti v Advertiser Newspaper Ltd at [134.2]. It has been suggested that the nature of the publication may also be a material consideration: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 373.

60. In the present case, Mr Crowe submitted that any defamatory imputation had been effectively neutralised by the statement, that "At a later Family Court hearing the Judge subsequently found the allegations were not substantiated". I am unable to accept this submission.

61. It is true that the effect, nature and ordinary meaning of words said to be defamatory must be determined by reference to their context and the mode of publication. Hence, a plaintiff cannot complain of one passage taken in isolation if qualified by others: Chalmers v Payne (1835) 150 ER 67; English & Scottish Co-operative Properties Investment Society Ltd v Oldhams Press Ltd [1940] 1 KB 440; Slim v Daily Telegraph Ltd [1968] 2 QB 157; and Chakravati v Advertiser Newspapers Ltd. Hence, when a publication contains both an alleged imputation and a contradiction of that imputation, the publication must be taken as a whole. In Chalmers v Payne, Baron Alderson said (at 68):

[T]he question here is, whether the matter be slanderous or not, which is a question for the jury; who are to take the whole together, and say whether the result of the whole is calculated to injure the plaintiff's character. In one part of this publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together.

62. The question is whether the otherwise defamatory statement has been rendered non defamatory because the "bane" has been neutralised by the "antidote". In Bass v McDonald & TCN Channel Nine Pty Ltd (No 6) [2001] NSWSC 988 Sperling J cited at [15] a passage from Gatley on Libel and Slander, 9th ed (Sweet & Maxwell: London, 1998) at [3.29] which included the following:

It will be a question in each case whether the antidote is sufficient to offset the bane; the mere presence of a denial of a defamatory charge does not necessarily prevent the article being defamatory for the reader may be left in the position of having to choose between inconsistent assertions.

63. His Honour also cited the following statements by Hunt J in Farquhar v Bottom & Anor:

It was argued on behalf of the defendants to construe the matter complained of as a whole, and to conclude that the bane created by the author's assertion had been outweighed by the antidote of the defendant's denial: Chalmers v Payne (1835) 2 Cr M & R 156. The mere presence of a denial of a defamatory charge does not make the matter complained of as a whole incapable, nevertheless, of conveying the defamatory imputation so denied for, in such a situation, the reader is presented with two conflicting, assertions, with the choice of accepting either: Savige v News Ltd [1932] SASR 240; Hopman v Mirror Newspapers Ltd [1961] SR (NSW) 631.

There are cases, of course, in which the refutation is of such a nature that, taken as a whole, the matter complained of is incapable of conveying the imputation refuted, for example, where the imputation arises by way of inference only, and the matter complained of itself contains an express disclaimer of any intention to convey such an imputation: Stubbs Ltd v Russell [1961] UKHL 3; [1913] AC 386; or where the refutation consists of a statement of fact destructive of the entire basis upon which the imputation relies: Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679.

But such cases are comparatively rare: Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418.

64. In addition, his Honour referred to the decision of the NSW Court of Appeal in Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418, in which Samuels JA, with whom Moffit P and Hutley JA agreed, said at 419:

I do not doubt that there are occasions when a publication which seeks to refute a calumny which it expressly states may be held incapable of conveying any defamatory meaning ... In the ordinary case, the material to be examined consists of the words of the publication in their natural and ordinary meaning ... which may or may not support an imputation of a defamatory kind. But in a case such as this the material already contains a defamatory imputation; and the inquiry is whether that effect is overcome by contextual matter of an emollient kind so as to eradicate the hurt and render the whole publication harmless. [Emphasis added by Sperling J].

65. His Honour expressed respectful disagreement with a suggestion made by Hunt J in RZ Mines (Newcastle) Pty Ltd & Anor v Newcastle Newspapers Pty Ltd & Anor NSWSC 16/11/94 at 37-8 that, notwithstanding other considerations the jury had merely been "left with an assertion by the newspaper and a counter-assertion by the company, leaving it to the ordinary reasonable reader to judge for himself which is correct". His Honour adverted to a similar suggestion in Tobin: Australian Defamation Law & Practice (Butterworths: Sydney, 1999) at [3205], but explained that:

It is not a question of whether the assertion is true but whether the alleged imputation is conveyed. Once stated, the relevant imputation is conveyed unless, by reason of other things written or said, the imputation is eradicated. The publication may convey conflicting imputations, in which case the relevant imputation remains.

66. With due respect to those who have expressed contrary views, I agree with Sperling J that the mere addition of a denial or words supporting a contradictory inference does not necessarily prevent the publication in question from conveying a defamatory imputation. Whether it does so must be determined by reference to the overall effect of the published material.

67. In Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 the High Court held that the report of a person being arrested and charged was, of itself, incapable of conveying an imputation that he or she had been guilty of the conduct alleged. In the present case, however, the minute stated that Family Services had substantiated the allegation.

68. It is true that the statement that the allegation (singular) had been substantiated was followed by the concession that a judge had subsequently found that the allegations (plural) were not substantiated, but it was otherwise unequivocal. I have no doubt that, read without qualification, it would have conveyed to any reasonable reader the clear imputation that officers of the Family Services Branch had established that the allegation was true and, hence, the equally clear imputation that the plaintiff had been guilty of child abuse. The statement was not accompanied by any explanation that the alleged abuse had consisted only of touching his prepubescent daughter above the waist and over her clothing, that the so called "substantiation" had consisted only of one officer's subjective impression as to the truth of what she had been told, that the plaintiff had emphatically denied any impropriety, or that the allegation may have been attributable to a misunderstanding. Nor was it qualified by any statement to the effect that the Department no longer maintained that the truth of the allegation had been established. The following statement left it open to a reasonable observer to conclude that, whilst the evidence that the parties adduced in the subsequent proceedings had been insufficient to prove the truth of the allegation to the satisfaction of the judge, the Department had nonetheless established that the plaintiff had sexually abused his daughter.

69. Furthermore, the assertion that at least one reason for the decision by Family Services not to erase the record of the allegation had been to accord "with national standards of child protection practice" could have suggested to a reasonable reader that, notwithstanding the judicial finding, it was necessary to maintain the record to ensure that others would know that the allegation had been substantiated and could take steps to protect children from the plaintiff.

70. I find that the statement was defamatory in that it conveyed an imputation that the plaintiff had sexually abused his daughter.

71. Mr Crowe submitted that, even if I were driven to that conclusion, I should, nonetheless, dismiss the claim on the ground that any defamatory statement was published in circumstances the subject of qualified privilege. I have no doubt that this privilege normally applies to statements made in documents of this kind. Indeed, the powerful public policy considerations upon which the privilege is based are especially relevant to this area of public administration. Officers charged with protecting children from sexual abuse clearly have a duty to record and investigate allegations of such conduct and, equally clearly, have a duty to provide relevant information to the Minister. They must be free to carry out these duties without the constant fear of being sued for defamation if they make statements in good faith which subsequently prove to have been incorrect.

72. However, as the plaintiff rightly observed, a defence of qualified privilege cannot be sustained if the publication of the defamatory statement was actuated by malice.

73. In Horrocks v Lowe [1975] AC 135 at 149 Lord Diplock explained that:

The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has ... to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue. With some exceptions ... the privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused. For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit - the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.

74. The concept of malice was explained by Lord Nicholls of Birkenhead NPJ in Tse Wai Chun Paul v Cheng [2001] EMLR 777 at 783:

In ordinary usage malice carries connotations of spite and ill-will. This is not always so in legal usage. In legal usage malice sometimes bears its popular meaning, sometimes not. It is an imprecise term. Historically, even within the bounds of the law of defamation, malice has borne more than one meaning. Historically, defamation lay in publishing the words complained of 'falsely and maliciously'. In this context malice meant merely that publication had been a wrongful act, done intentionally and without lawful excuse... This was sometimes called malice in law, as distinct from malice in fact. But even malice 'in fact', otherwise known as express malice or actual malice, may cover states of mind which are not malicious in the ordinary sense of the word. This is so in the context of the defence of qualified privilege.

75. In Roberts & Anor v Bass [2002] HCA 57 the High Court of Australia stressed that it is the purpose or motive for the defamatory statement that is the decisive issue. Gaudron, McHugh and Gummow JJ stated the general principle in the following terms at [75]:

An occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement. A purpose or motive that is foreign to the occasion and actuates the making of the statement is called express malice. The term "express malice" is used in contrast to presumed or implied malice that at common law arises on proof of a false and defamatory statement. Proof of express malice destroys qualified privilege. Accordingly, for the purpose of that privilege, express malice ("malice") is any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff.

76. Their Honours cited a further passage from the judgment of Lord Diplock in Horrocks v Lowe at 149:

So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. 'Express malice' is the term of art descriptive of such a motive.

77. Their Honours then continued at [76]:

Improper motive in making the defamatory publication must not be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication.

78. Their Honours added at [79]:

As we have said, malice means a motive for, or a purpose of, defaming the plaintiff that is inconsistent with the duty or interest that protects the occasion of the publication. It is the motive or purpose for which the occasion is used that is ultimately decisive, not the defendant's belief in the truth of the matter. As Cotton LJ said in Clark v Molyneux (1877) 3 QBD 237 at 249-250:

"The question is not whether the defendant has done that which other men as men of the world would not have done, or whether the defendant acted in the belief that the statements he made were true, but whether he acted as he did from a desire to discharge his duty."

79. Finally, their Honours held, at [104], that in considering whether the plaintiff has proved malice, it is necessary that the plaintiff not only prove that an improper motive existed but that it was the dominant reason for the publication.

80. These statements of principle do not, of course, imply that whenever a person's duty requires the preparation of a particular document the author is, in effect, provided with a legally impregnable platform from which he or she may take the opportunity to gratuitously defame others. The question is not whether the document was published on a privileged occasion but whether the publication of the portion said to have been defamatory of the plaintiff was actuated by an improper motive rather than by an intention to comply with the defendant's duty.

81. In the present case, there was no evidence from either Ms Hinton or Ms Birtles as to their motive for making the defamatory statement. However, a number of factors including the positions they held, the nature of the document, its subject matter and apparent purpose and the fact that it was addressed to the Minister provided obvious grounds for concluding that it had been published in compliance with their duty. Furthermore, the plaintiff bears the onus of proving that the publication of the relevant defamatory statement was so actuated.

82. On the other hand, there are a number of factors upon which the plaintiff is entitled to rely in support of his contention that he has discharged this onus.

83. First, and perhaps most obviously, there is the history of unfair and unreasonable treatment to which I have already referred. In the light of the findings by Butler J rejecting any suggestion that the plaintiff had sexually abused his daughter or that there was any risk of him doing so coupled with the strong submissions made by Amanda's independent legal representative that this had not been a case of sexual abuse, it should have been abundantly clear that the allegation had not been substantiated and that any assertion to that effect was false and misleading. Yet the defendant maintained that assertion on its data base and apparently also maintained an entry listing the plaintiff as a "maltreater". Furthermore, it persisted in doing so for many months even after Faulks J had observed that the failure to remove any records that the allegation had been substantiated was a matter of "deep concern" and that it was "totally inappropriate" to leave them on the data base. The first Departmental recommendation to amend the records was contained in a report by Ms Jayne Power dated 26 March 1998. Special Magistrate Symons subsequently found that this report was permeated by arrogance and contained comments which effectively renewed the false assertion and augmented it with fresh allegations that were baseless. Her Worship concluded that Jayne Power did not honestly believe in their truth and published them maliciously. Whilst the Department ultimately amended the records on the advice of Mr Goggs, it did not inform the plaintiff that it had done so until 12 months later and purported to defend this delay on the ground that, notwithstanding the sensitive nature of the matter and the undertaking it had given to the Privacy Commissioner, it had not been "incumbent" upon it to do so. Special Magistrate Symons rightly described the delay as "appalling".

84. The overall impression created by these and other matters referred to earlier, is not merely one of an isolated officer behaving unreasonably but of a more widespread attitude within Family Services involving an obdurate refusal to admit that the Department's initial assessment might have been wrong and resentment of the plaintiff for having the effrontery to insist that department records be amended to reveal the true position.

85. Second, even the judgment of Special Magistrate Symons did not evoke any apology, explanation, acknowledgement of the wrong that had been done to the plaintiff or an assurance that there would be no repetition. Instead, there was an outbreak of defensive and apparently disingenuous rationalisations.

86. Mr Dockrill's report recounts the fact that he had asked most of the staff he had interviewed for their interpretation of the word "substantiation" and that there had been a general view, more amongst those described as "practitioners" than staff at management levels, that it meant "that significant harm has occurred, or is likely to occur, or that on the balance of probability an incident has occurred to a child; it does not mean that the alleged offender is guilty of an offence as a court would require a greater standard of proof". He added that it had also been pointed out that the word had changed in the last couple of years and that it was likely to mean that a child was at serious risk of harm. He observed, not surprisingly, that the use of this word has the potential to cause considerable angst when viewed differently by practitioners and non-practitioners but said that he could find nothing to suggest that it had been used by staff of the Family Services Branch in any way other than that which would have been regarded as "normal" within the child protection community a few years earlier. However, a committee was apparently seeking to determine what meaning the word should have in the future.

87. It is difficult to take these assertions seriously and impossible to accept that they could offer any reasonable explanation for the allegations made by Ms Power or the other conduct that was so trenchantly criticised by the Magistrate.

88. The suggested approaches go well beyond George Orwell's concept of "newspeak" and embrace an elasticity of language not acknowledged since Lewis Carroll attributed to Humpty Dumpty the cheerful assertion that "words mean what I choose them to mean, neither more nor less". As even a cursory glance at the Pocket Oxford Dictionary would have made clear, the word "substantiate" means "to prove the truth of a charge or claim". The word itself obviously contains no hint as to the nature of the charge or claim or allegation that is to be substantiated. That must be deduced from the sentence in which the word is used. Hence, to state that an allegation that a man has sexually abused his child has been substantiated clearly means that the truth of that allegation has been established. To suggest that the statement might imply only that the child is at serious risk would be as absurd as suggesting that a record of the substantiation of an allegation that a particular person had robbed a bank implied only that security was lax and that, if a robbery had not already occurred, it soon might.

89. I might mention, in passing, that if the Department does intend to act on the basis that the word will mean whatever a committee chooses it to mean, then such an excursion into what might be described as "Humptyspeak" will undoubtedly undermine the credibility of information provided by those who adopt such an approach. For example, it may make it difficult for people to know whether recent statistics suggesting a substantial increase in the number of substantiated cases of child abuse genuinely reflect a greater incidence in the number of abused children or merely a shift in the semantic goalposts.

90. If a responsible officer has concluded only that the evidence is sufficiently credible to warrant further investigation or some other action, then he or she should plainly say so. A statement that an allegation of a particular person abusing a child has been substantiated will inevitably convey the imputation that the truth of the allegation has been proven. If that is not the case, then the person in question will have been unfairly defamed. Furthermore, if the statement is made by those who know full well that it is likely to mislead others into wrongly believing that the person has been proven to be a child molester then their knowledge of the falsity of the imputation conveyed will almost inevitably be sufficient to support a finding of malice and hence defeat a claim of qualified privilege.

91. It was also suggested to Mr Dockrill that Special Magistrate Symons might not have formed the same impression of the report had Ms Power been called to give evidence in explanation and that, in reality, she had merely been intending to ensure that other officers learned from the experience. There was no appeal from Special Magistrate Symons' judgment and, having read Ms Power's report, I am unable to accept that the report could reasonably have been interpreted other than in the manner it was. Both the title and the body of the report clearly conveyed the imputations that the initial allegation made against the plaintiff was true, that he may have had a "problem in his sexual feelings about Amanda" and that "the breast fondling could well have been a preamble to more serious interference that could have developed when she was older". It also suggested that the problem lay in the fact that the system could not record "the specific form of abuse" when, in truth, Butler J had not accepted that there had been any form of abuse. Ms Power's suggestions were baseless and the contention that they may have been intended only to ensure that other officers learned from the experience seems to have been quite disingenuous.

92. Whatever defensive sophistries and improbable explanations may have been offered by individual officers, her Worship's judgment had demonstrated beyond sensible argument that the plaintiff had been treated in a most reprehensible manner and I would have expected a responsible government body to have acknowledged that fact, apologised and offered to do what it could to allay any further concerns that he might have about its records or the records of any other body which may have had access to earlier notations on its data base. None of these steps were taken.

93. Third, Mr Dockrill's notes of his interview with Ms Hinton record a number of statements that reflect a substantial misconception on her part as to the history of the matter. In particular, she is said to have "noted that Special Magistrate Symons did not conclude that Mr Klason had been defamed and that the overall quantum of the compensation was indicative of the Special Magistrate concluding that the wrongs were of a relatively minor nature". Both of these propositions were demonstrably false.

94. As I have mentioned, Special Magistrate Symons expressly found that Mr Klason had been defamed. More specifically, her Worship found that Ms Power had re-stated the allegations that the plaintiff had sexually molested his daughter, that she had known that at least some were not true and that, in making them, she had been actuated by malice. In this context it is difficult to imagine any rational person dismissing the wrong done to the plaintiff as being "of a relatively minor nature". It is true that the plaintiff was awarded only modest compensation but he had commenced proceedings in the Small Claims Court which has a very limited jurisdiction and, in any event, the fact that her Worship may have underestimated the amount of damages to which he would otherwise have been entitled could obviously have provided no justification for ignoring her more specific findings.

95. The damages also included a sum awarded for aggravated damages which had been awarded expressly because her Worship found that the plaintiff's "subjective hurt" had been increased by "the outrageous nature of the respondent's manner or motives". In fact, records on the Department's files reveal that Mr Jorgensen (the ACT Government solicitor representing the Department) expressed the opinion that if the matter had been litigated in the Supreme Court and the same findings had been made, the damages awarded to the plaintiff could have been as high as $200,000. Whilst it would be inappropriate for me to comment on the likelihood of a particular figure, there can be no doubt that they would have been substantial. In any event, if the Department is prepared to assume that the award of a modest sum justifies an assumption that any criticism of its conduct must have been comparatively trivial, it may be appropriate for judges to ensure that any future awards of damages are so large that even the most defensive executives will be obliged to take them seriously.

96. However, there is no reason to suppose that, in making these statements, Ms Hinton was attempting to mislead Mr Dockrill. In fact, that seems most unlikely. Mr Dockrill was carrying out an inquiry under the Public Sector Management Act arising, albeit indirectly, from criticism contained in the judgment and he would obviously have read it with due care. Hence, even if one were to ignore the standards of probity one is entitled to expect from senior public servants, it would be difficult to imagine her attempting to mislead him about judicial statements with which she must have realised he would be thoroughly familiar. Nor does it seem likely that the assertion was based upon a flight of fancy or unverified assumption. Indeed, the use of the word "noted" suggests that Ms Hinton was pointing to the perceived relevance of a fact that she understood had been already established or was independently verifiable. The only apparent explanation is that she had been earlier misled by members of her staff, who may have been anxious to trivialise her Worship's findings concerning the unfair manner in which the plaintiff had been treated.

97. Ms Hinton is also said to have explained that Ms Power would have understood the word "substantiation" to mean that on the balance of probabilities the action described had occurred and that this "notion is not a standard of proof required in courts". This statement seems to have been intended to convey the suggestion that the judgment of Butler J meant only that it had not been possible to prove the truth of the allegation on some higher standard such as that employed in criminal courts and that it was reasonably open to officers of the Department to maintain that it had been established on the balance of probabilities. Both propositions were specious.

98. In M v M [1988] HCA 68; (1988) 166 CLR 69 at 76 the High Court of Australia said that the Family Court should not make a positive finding that an allegation of sexual abuse is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 where Dixon J had said that:

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

The Court added, at 77, that these remarks had direct application to an allegation that a parent has sexually abused a child which they said was "an allegation which is often easy to make, but difficult to refute". However, even if due recognition of the factors in Briginshaw v Briginshaw could properly be seen as elevating the civil standard of proof beyond a mere balance of probabilities, their Honours made it clear that, in determining applications for custody or access of children, courts would not be bound to ignore allegations that could not be proven to that standard. Their Honours explained that the test to be applied in resolving the wider issue of what is in the best interests of the child "is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse": see 78.

99. This ruling, that custody and access will be denied if the evidence establishes only an unacceptable risk of sexual abuse, was made fifteen years ago and generated considerable controversy. It seems difficult to imagine that those responsible for investigating allegations of the sexual abuse of children would have remained unaware of the standard of proof required to deny a potential child abuser continuing access to his children. Furthermore, even a misapprehension as to the relevant onus of proof would not wholly explain the comment because, as I have mentioned, Butler J had not only rejected the allegation that the plaintiff had sexually abused his daughter but rejected the existence of "any risk" of him doing so. In any event, it is difficult to see how any of these comments could have had any relevance to Mr Dockrill's consideration if, as I was assured, the defendant accepted that a record of the allegation being "not substantiated" effectively meant that the alleged abuse had not occurred.

100. Ms Hinton was, of course, the Chief Executive of the whole department and may not have been personally aware of the relevant standard of proof or the precise nature of the findings made by Butler J and it seems likely that her comments again reflected points that had previously been made to her by members of her staff attempting to defend earlier stances taken in relation to the plaintiff.

101. Fourth, the briefing note itself seems to reflect at least some measure of defensiveness and an apparent willingness to trivialise or at least understate the plaintiff's grievances. Viewed overall and in the light of the findings by the magistrate, it seems markedly devoid of any substantial acknowledgement of the reality of the plaintiff's concerns, the disgraceful manner in which he had been treated and the distress which he must have experienced as a consequence. It clearly understated both the strength of the judicial findings in his favour and the gravity of the judicial criticism of the Department's conduct. The magistrate's findings that the plaintiff had been defamed by a report "permeated by arrogance", written by an officer whom she could not be satisfied had believed in the truth of some of its contents and published maliciously were all omitted in favour of generalised statements that he had "been awarded a small sum", that a retraction had been ordered and that the magistrate was "at the time" critical of the manner in which the matter had been handled. The language seems to have been chosen in order to suggest that the plaintiff had not had much to complain about.

102. The assertion that the word "paedophile" had never been on his file, was a semantic quibble that senior and experienced officers should have known would have been of little consequence to a man who had been wrongly accused of sexually abusing a seven year old daughter.

103. The suggestion that "fundamentally" the plaintiff's concerns had related to the fact that the records had been annotated to reflect the judgment of Butler J rather than being erased from the record was clearly misleading and again involved an unjust trivialisation of his complaints. It must have been obvious that, whilst he did seek to have the records erased rather than amended, his fundamental concerns related to the fact that he had been falsely accused of sexually abusing his daughter and that the Department had continued to maintain records asserting that this accusation had been substantiated after he had been effectively exonerated by the judgement of Butler J; that it had persisted in doing so despite trenchant criticism by Faulks J and that it had maliciously published further specious allegations which even the officer who made them did not honestly believe to be true. The letters he wrote to successive ministers make it plain that he wanted to clear his name, have action taken against those whom he believed had unfairly vilified him and obtain, if not compensation, at least an apology.

104. Fifth, the assertion that the Department had substantiated the allegation was not only made after the proceedings before Butler J had made it abundantly clear that such an assertion was unsustainable but in the face of successive findings by Faulks J and Magistrate Symons that it was totally inappropriate for the Department to maintain such an assertion.

105. Sixth, that assertion was made after Magistrate Symons had already found that the plaintiff had been maliciously defamed by the earlier report written on behalf of the defendant. Indeed, the minute had been generated by the need to respond to complaints made by the plaintiff in the light of those and related findings.

106. Finally, I accept the plaintiff's submission that these factors must be considered in the light of the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 308, 312 and 320-1. In circumstances such as these, where the other evidence in the case has provided a basis for inferences to be drawn against a party effectively "requiring an answer", and there is an unexplained failure by that party to call witnesses apparently in a position to give evidence of the relevant facts, the rule permits an inference that the evidence of those witnesses would not have assisted the party. The rule does not permit a further inference that any evidence which might have been given by those witnesses would have been damaging to that party. Furthermore, it cannot be used to fill gaps in the evidence or to convert conjecture and suspicion into inference. However, it does permit a judge to more readily draw an adverse inference from other evidence in the case by reason of the party having had the opportunity to call evidence as to the true position if that would have assisted its case. See generally Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 308, 312 and 320-1; Lopes v Taylor (1970) 44 ALJR 412 at 418 and 422; and Nuhic v Rail & Road Excavations [1972] 1 NSWLR 204 at 206-7.

107. In the present case, the defendant apparently had ample opportunity to call evidence to explain such matters as why it's officers had acted in the manner so trenchantly criticised by Magistrate Symons; why inaccurate statements were made to Mr Dockrill; why the briefing note apparently misrepresented and trivialised the fundamental nature of the plaintiff's concerns; what was meant by the assertion that the Department had substantiated the allegation that he had sexually abused his daughter; why the authors believed that their duty required them to again make that assertion when it had twice been held to have been totally inappropriate for the Department to have done so and why; if they had not been actuated by malice, would they have not ensured that the briefing note written after the previous judgment for defamation gave the Minister a fair and accurate statement of the judgment in question and the plaintiff's continuing concerns. Yet the defendant chose not to do so. In these circumstances, I think it is appropriate to infer that the evidence of Ms Hinton, Ms Birtles and/or other members of staff who might have explained any of the events to which I have referred would not have assisted the defendant in relation to any of these issues.

108. I am prepared to infer from the evidence already mentioned that there was, for some reason, an attitude of hostility and resentment towards the plaintiff amongst at least some of the staff of Family Services.

109. However, as damning as that inference may be, it is not, of itself sufficient to demonstrate that the portion of the briefing note, claiming that the Department had substantiated the allegation against the plaintiff, had been published predominantly because of some improper motive rather than in order to comply with the authors' duty.

110. Neither Ms Hinton nor Ms Birtles, who was apparently appointed as Director of Family Services after Ms Power's report had been prepared, had any apparent motive to defame the plaintiff or to deny that he had been treated unjustly, other than perhaps misplaced corporate loyalty and/or defensiveness. Furthermore, as the High Court said in Roberts & Anor v Bass at [96], honesty of purpose is presumed in favour of the defendant and the plaintiff bears the onus of rebutting that presumption.

111. The instances of unfair treatment of the plaintiff by some officers of the Family Services Branch, the attitude of hostility and resentment which they apparently harboured towards him and the other matters to which I have referred obviously warrant serious concern about the corporate ethos of the Branch but they do not rationally compel a conclusion that either Ms Hinton or Ms Birtles must have been actuated by malice in publishing the relevant portion of the briefing note.

112. The inaccurate statements that Ms Hinton made to Mr Dockrill concerning the magistrate's judgment are potentially more probative of this issue. They were, of course, made some months prior to the preparation of the briefing note but, if I had found that she had made them knowing of their falsity, I might well have regarded the combination of those statements and the general tenor of the briefing note as providing sufficient evidence of malice. However, as I have mentioned, it seems likely that all of these statements reflected false or misleading assertions made to her by other officers. In fact, the plaintiff himself had earlier complained that officers of the Family Services Branch had misled "government" in advice provided prior to the preparation of Ms Power's report.

113. I recognise that any plaintiff might experience an understandable sense of grievance if left with the impression that his or her claim had been prejudiced due to an inability to prove that some of the defendant's officers may have been misled by others. Such a consequence may seem repugnant to the very concept of vicarious responsibility which normally, of course, extends to all of a defendant's employees. However, I am bound by the principle confirmed in Roberts & Anor v Bass, that malice will only be established if the plaintiff proves that the dominant motive for the publication of the relevant statement was an improper one. The briefing note and all that it contained were apparently prepared and published by Ms Hinton and Ms Birtles and it is their motive rather than that of other officers that would have to be effectively impugned. I am unaware of any principle that would enable malice to be imputed to a defendant on the basis that the maker of the relevant statement had been misled by some other person for whose conduct the defendant was also vicariously responsible.

114. More fundamentally, I am not satisfied that, in stating that the Department had substantiated the allegation, the authors were not merely intending to assert what they regarded as an historic fact, namely, that Ms Wyndham had investigated the allegation and had "substantiated" it by forming a conclusion that it was probably true. Nor am I satisfied that, in then stating that Butler J had subsequently found the allegations not to be substantiated, they were not intending to acknowledge that the Department's conclusion had subsequently proven to have been wrong.

115. Ms Hinton and Ms Birtles would not have been the first people to have used the term in that manner. As mentioned earlier, the judgment of Special Magistrate Symons includes the statement that:

It is difficult, if not impossible, to understand why the original substantiation of sexual abuse of Amanda Klason needed to be reviewed at all. The issue had been determined by the Family Court and Butler J had definitively found that the substantiation was without foundation. (emphasis added)

It may be noted that her Worship used the term "substantiation" to refer to the earlier conclusion even though she found that conclusion to have been "without foundation". Her Worship was clearly using the term in much the same way as a judge or magistrate might refer to a conviction that had subsequently been quashed due to the discovery of further evidence exonerating the accused.

116. Mr Dockrill quoted this passage, both in his report of the investigation (referred to in the minute) and in his summary of her Worship's findings provided as appendix 1 to his report. He also referred to the recommendations of Mr Goggs that the relevant annotation be amended to read "initially substantiated". In these circumstances it is understandable that Ms Hinton and Ms Birtles may also have used the term "substantiated" to refer to Ms Wyndham's conclusion.

117. Consequently, whilst the use of the word was unfortunate and potentially misleading, I am not satisfied that either Ms Hinton or Ms Birtles were intending to assert that the truth of the allegation had been established or to put forward competing opinions and, in effect, invite the Minister to pick which one to accept. Hence, I am unable to be satisfied that, in making the statement in question, either of them were intending to make an assertion she knew to be untrue.

118. I accept that the briefing note seems to have been drafted with scant concern to ensure that the Minister was given a fair and accurate account of the plaintiff's grievances, the extent to which they were well founded, or the distress which the Department's insensitive and unfair treatment may have caused him. However, as mentioned earlier, the majority judgment of the High Court in Roberts & Anor v Bass at [76] expressly held that "leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice".

119. For these reasons I am unable to find that the publication was actuated by malice. Accordingly the plaintiff's claim in relation to the statements contained in the briefing note must fail.

120. The claim relating to defamatory statements said to have been contained in Mr Dockrill's report must also fail. Having perused those documents with due care, it is my opinion that the overall impression a reasonable reader would gain from the report is that Mr Dockrill had been investigating allegations of misconduct made by the plaintiff against several public servants in an apparently fair and objective manner. In so far as the report contains any reference to the allegation made against the plaintiff in 1993 or those made by Ms Power in 1998, it does so in a manner which seems to presuppose the falsity or at least unreliability of them. To return to the language of Baron Alderson in Chalmers v Payne, I am satsified that the bane was effectively neutralised by the antidote. Furthermore, the document was clearly published in circumstances attracting qualified privilege and there is no basis for any suggestion that the publication was actuated by malice.

121. It was not entirely clear from either the pleadings or the plaintiff's submissions whether the plaintiff's claim extended to records of Mr Dockrill's interviews with members of the defendant's staff prior to the preparation of his report. However, having read those records carefully, I have concluded that, whilst they contain some pleas in mitigation that must have strained Mr Dockrill's credulity, any defamatory statements were similarly neutralised and the publications were again the subject of qualified privilege.

122. Finally, the claim in relation to the letter sent to him by the Minister must fail because the letter does not contain any statements that could be regarded as defamatory of the plaintiff. Furthermore, there is no evidence that it was published to anyone other than the plaintiff and, even if published to a secretary or typist, such acts of publication would also have been the subject of qualified privilege.

123. Before leaving the matter, I should mention that whilst Mr Crowe's submissions made it clear that the defendant now accepted that the plaintiff had not sexually abused his daughter, the plaintiff was clearly concerned that other people, such as police officers and teachers, may have been informed of the earlier records and still believe that he had done so. It seemed to me that he was, at the very least, entitled to some formal finding sufficient to vindicate his reputation. Accordingly, I had the matter listed for directions and suggested that it may be appropriate for him to seek declaratory relief. The defendant subsequently consented to an order granting the plaintiff leave to further amend the statement of claim to plead that he was at all material times innocent of the allegation that he had sexually abused his daughter. Mr Crowe also indicated that this contention would not be disputed and that the defendant would not oppose a declaration to the effect that the plaintiff did not sexually abuse his daughter as stated in the data base and records of the ACT Department of Education and Community Services. I will make a declaration to that effect.

124. The claim must otherwise be dismissed.

I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 11 December 2003

Counsel for the plaintiff: Self represented

Counsel for the defendant: Mr R Crowe SC

Solicitor for the defendant: ACT Government Solicitor

Date of hearing: 31 October, 12 November 2003

Date of judgment: 11 December 2003