I have previously reported on the saga of Graeme Jay and John Peters. Jay and Peters were (or are) members of the NSW RFS (RFS complaint ends up in court (February 20, 2023)).

Complaints were made about their conduct but an internal inquiry ‘found that there was insufficient evidence to find that either of the plaintiffs had breached the relevant RFS Service Standards’ ([5]). Not happy with that outcome they sued those who had made the complaints alleging the tort of ‘injurious falsehood’.  The trial judge found that 4 out of an alleged 45 representations were false, these false claims ‘did not concern any economic and/or financial interests’ – an essential element of the tort – and so the claim was dismissed. The trial judge also found that the ‘false representations were not … maliciously made’ nor did they cause any damage.  Having succeeded in the internal inquiry, the plaintiffs Jay and Peters were left having to pay their own legal costs and the defendants legal costs in excess of $90,000.

Unhappy with the outcome, Jay and Peters appealed to the Court of Appeal –  Jay v Petrikas [2023] NSWCA 297 (12 December 2023). Two issues arose. The first was whether they should be given leave to appeal given the financial value of the claim and the application to appeal was filed out of time. Although ‘the case for leave was borderline, the Court granted leave on the basis that the question of the scope of the tort of injurious falsehood was one of general principle…’ and there was therefore value in having an appeal court review the principles.  We don’t need to discuss the reasons for why leave to appeal was given in more detail.  

The second issue was whether the trial judge had made errors of law or reasoning. Even though Jay and Peters were given leave to appeal, their appeal was dismissed.

The parties agreed (at [45]) that to succeed in a claim for injurious falsehood, the plaintiffs had to establish:

… (1) a false statement of or concerning the plaintiff’s goods or business; (2) publication of that statement by the defendant to a third person; (3) malice on the part of the defendant; and (4) proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement.

The alleged damage was the legal costs incurred by Jay and Peters in responding to the initial complaint and internal inquiry. In a detailed judgement the trial judge reached the following conclusions ([95]):

(a)        the representations were not ‘of or concerning the plaintiffs’ goods or businesses’;

(b)       there was a very limited number of false representations found in the publications;

(c)        such false representations by the defendants, as have been found, were not actuated by malice;

(d)       such falsities, as have been found from the representations, were immaterial and therefore did not cause the decision to investigate or affect the scope of the investigation;

(e)        the plaintiffs’ incurring of legal expenses for advice and representation in connection with the investigation were not:

     (i)         intended by the defendants; or

    (ii)        the natural or probable consequence of their publication of false representations.

(f)        actual damage, for the purpose of this tort, could be constituted by the debt jointly and severally incurred by the plaintiffs to their solicitors.

The issue on appeal was whether the trial judge made any legal errors in coming to his original conclusion.  The Court of Appeal began by focussing on the issue of malice. The defendants in this case were volunteer and employed officers of the RFS who, having received complaints by subordinates, had passed them up the chain of command in accordance with the RFS Service Standards.  The plaintiffs’ claim was that these defendants knew the allegations to be false or were ‘recklessly indifferent’ as to the truth of the claims made.  The parties agreed (at [104]) that ‘malice involves the use of an occasion of publication for some improper purpose foreign to the occasion, such as to cause injury to another’; that is the plaintiffs had to prove that the defendants had another purpose, other than the application of the RFS disciplinary standards, when they published the details in emails and memoranda within the RFS. The Court of Appeal said that the appellants failed to show any error in the judge’s reasoning or application of the law with respect to ‘malice’. At [107] Griffiths AJA (with whom Payne JA and Kirk JA agreed) said:

… the appellants had failed to engage with the evidence, the submissions or the finding, nor did they confront the difficulty posed by their claim that the false representations were published by the defendants for an improper purpose in circumstances where honesty of purpose is presumed and the appellants carried the onus of displacing that presumption.

Critically the court found that the defendants were performing their functions under the RFS Service Standards in forwarding complaints.  Two of the allegations found to be false were said to be opinions expressed by some of the defendants, at [112] Griffiths AJA said (emphasis in original):

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

One representation that was found to be false was a statement in the Superintendent’s briefing not claiming that the appellant’s had breached the relevant service standard when this had not at that time been established and we must recall, was not established. The court said that the use of language by the Superintendent to the effect that the breach had been committed (and was not just alleged) this did not constitute evidence of malice.  At [113] the court said:

The Second and Third Publications, authored by Superintendent Hodges, contain some language which suggests that she had concluded that there had, in fact, been breaches of the Service Standards, but, like the primary judge, I do not regard that particular language as decisive when the documents are viewed as a whole. Read fairly, and appreciating that the language is not that of a lawyer, the documents indicate that Superintendent Hodges was not expressing any concluded views, but was passing the matters on to Mr Watson for further action. There are also references in the documents to the allegations needing to be proven, which is significant.

Finally, on the issue of malice and whether the respondents knew that four of the allegations were false, Griffiths AJA said (at [116]):

The appellants have failed to demonstrate why it is that Superintendent Hodges (or, indeed, the other three respondents) had to have known that the four representations regarding the conduct of Mr Jay and Mr Peters were untrue. Under the Service Standards, none of the respondents was required to form a personal view, one way or the other, as to whether the complaints were in fact true. Instead, each had to form a view as to how the handling of the complaints should proceed, including whether or not to refer the complaints further up the chain of command if that was an appropriate course in the circumstances.

With respect to damages, a number of complaints were made about Messrs Jay and Peters, and these led to the investigation. It was not the four false complaints that led to the investigation but the totality of them. It followed that the four complaints that were found to be false, or wrong, were not the cause of the alleged damage, that is incurring legal fees.

At [169]-[170] the court said:

The appellants have not established that any of the steps taken by the respondents in setting in train Mr Plumridge’s internal investigation involved conscious wrongdoing, breach of trust or the contumelious disregard of the appellants’ rights.

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

Given that the appellants could not and did not establish malice their claim had to fail. The Court decided not to give a detailed analysis of the tort and whether it could extent to protect non-economic interests instead preferring to wait for ‘a case in which it is essential to resolve that significant and complex question’ ([172]).

The appeal was dismissed with further obligations to pay the respondent’s costs.

Conclusion

Having been successful in defending themselves against allegations in the internal inquiry, Messrs Jay and Peters have expended a considerable sum of money to try and establish that their fellow volunteers, who received complaints from at least 15 members ([3]) were not motivated by the RFS disciplinary processes but by a desire ‘to shut down people they disagreed with’ ([167]).  In the course of these proceedings the grievances have been aired more widely and adverse findings about the credit of both plaintiffs have been made and published (see [136]).  It was the respondents, not the plaintiff/appellants who had ‘overwhelming success both below and on the appeal’ ([164]).

Clearly emotions run high, and people have considerable personal investment in their volunteering and their standing in an organisation like the RFS. But at some point trying to litigate for vindication becomes a process of sending good money after bad and I cannot imagine what it is like for volunteers involved, and those on the periphery, to continue to work together.  If they can still come together when the need arises, then all credit to them.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.