Balzola v Passas

[2020] NSWSC 896

Supreme Court

New South Wales

Medium Neutral Citation:

Balzola v Passas [2020] NSWSC 896

Hearing dates:

29; 30 April 2019; 1; 3; 14 May 2019

Date of orders:

31 July 2020

Decision date:

31 July 2020

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

See paragraph 256

Catchwords:

DEFAMATION – oral defamatory statement – defences – common law qualified privilege – reply to attack – remedies – aggravated damages – compensatory damages – damage to reputation – injury to feelings – grapevine effect

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 100

Defamation Act 2005 (NSW) ss 7, 30, 34, 35

Evidence Act 1995 (NSW) s 140

Mental Health (Forensic Provisions) Act 1900 (NSW) s 32

Cases Cited:

Balzola v Passas [2019] NSWSC 1724

Bashford v Information Australia Pty Ltd (2004) 218 CLR 366; [2004] HCA 5

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

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31

Cerutti v Crestside [2016] 1 Qd R 89; [2014] QCA 33

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

Coles Supermarkets Australia Ltd v Clarke [2013] NSWCA 272

Feo v Pioneer Concrete (Vic) Pty Ltd [1999] 3 VR 417; [1999] VSCA 180

Howden v “Truth” and “Sportsman” Limited & Anor (1937) 58 CLR 416; [1937] HCA 74

Penton v Calwell (1945) 70 CLR 219

Tournier v National Provincial and Union Bank of England [1924] 1KB 461

Trkulja v Google LLC (2018) 263 CLR 149; [2018] HCA 25

Umeyor v Ibe [2016] EWHC 862

Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40

Texts Cited:

John G Fleming, Law of Torts (8th ed, 1992, Law Book Company)

Richard Parkes QC et al, Gatley on Libel and Slander (12th ed, 2017, Sweet and Maxwell)

Category:

Principal judgment

Parties:

Robert Balzola (Plaintiff)
Julie Passas (First Defendant)
Anthony Raciti (Second Defendant)

Representation:

Counsel:
Mr R Rasmussen (Plaintiff)
Mr N Kirby (Defendants)
Solicitors:
Stewart Cuddy & Mokkler (Plaintiff)
Otto Stichter & Associates (Defendants)

File Number(s):

2017/86708

Judgment

1. This action for damages for defamation arises out of the proceedings of the Annual General Meeting (AGM) of the Summer Hill State Electoral Conference (SEC) of the New South Wales branch of the Liberal Party conducted on 29 March 2016. The plaintiff, Mr Balzola, was not a member of the SEC or any branch of the Liberal Party within the Summer Hill Electorate. He was a member and President of the Five Dock branch. But he had been invited to the AGM by his friend, Joceline Khachan, who aspired to elected office at the SEC. Ms Khachan had asked Mr Balzola to attend as a scrutineer.

2. The first defendant, Mrs Passas: has been a member of the Liberal Party since 1994; was secretary of the Ashfield Branch within the Summer Hill Electorate; represented the Liberal Party as a local government councillor; and was also standing for office at the AGM.

3. The second defendant, Mr Raciti: then had been a member of the Liberal Party for seven years; was the outgoing President of the SEC; and aspired to be re-elected at the AGM.

The plaintiff’s case

4. The plaintiff’s case is that he was defamed by statements made about him by each of Mrs Passas and Mr Raciti during the course of the AGM.

5. The alleged statements and the imputations they are said to carry are as follows:

The words allegedly spoken

1. Mrs Passas: “[Robert Balzola] beats his wife. He has an AVO”;

2. Mrs Passas: “Balzola is a criminal”; and

3. Mr Raciti: “It is true, I saw it in the paper, he has a criminal record”;

4. Mrs Passas: “Thank God Balzola is here, he can pull “swifties””;

5. Mr Raciti: “Balzola beats his wife”.

Imputations

6. The pleaded imputations are:

1. Mr Balzola is a criminal;

2. Mr Balzola has a criminal record;

3. Mr Balzola beats his wife;

4. Mr Balzola has an Apprehended Violence Order against him;

5. (i)   Mr Balzola can pull swifties, meaning that he is a devious operator; or in the alternative

6. (ii)   Mr Balzola can pull swifties, meaning that he is capable of deceitful practices.

Issues

7. In pleadings and interrogatories (Exhibit H) Mrs Passas denies having uttered the words attributed to her by Mr Balzola. She does admit having said to her friends, Kerry-Anne Raiola and Max Raiola, as a whispered aside at the meeting, “I remember reading in the paper and hearing that Balzola had assaulted his wife and that he had had an AVO against him” (Affidavit, Julie Passas 28, January 2019 at [48]); Mrs Raiola said the comment was, “He’s been accused of assaulting his wife” (Affidavit, Kerry-Anne Raiola, 29 January 2019 at [16]). Mr Raiola said, the comment was, “[Mr Balzola]” was in the newspaper, it said he assaulted his wife” (Affidavit, Max Raiola, 29 January 2019 at [16]).

8. In pleadings and his answer to interrogatories (Exhibit N) Mr Raciti denies having uttered the words attributed to him by Mr Balzola. However, in his affidavit (22 January 2019 at [10]) Mr Raciti says that he has no recollection of having made the statements attributed to him or having heard the statements attributed to Mrs Passas. He explained that he had been in denial “for a long time” about suffering depression for which he is now being treated, and he believes that that is the reason why he has “no clear memories” of the AGM of 29 March 2016 (Affidavit at [14] and [16]).

9. In the alternative, Mr Raciti raises the common law of defence of qualified privilege of reply to attack. This is based upon the evidence of Ms Rosana Tyler (Affidavit, 21 January 2019), an observer at the AGM, who gives evidence that words very much like those attributed to Mr Raciti were spoken by him but only in immediate response to statements which she attributes to Mr Balzola imputing that Mr Raciti was engaged in organised crime as “part of the mafia” and corruption by “preferential treatment” through his wife who serves on the “Council” (Affidavit, Rosana Tyler, 21 January 2019 at [33]).

10. There are various issues raised concerning damages and in particular the availability of an award of aggravated damages in the circumstances. These need not be identified now.

Important background facts

11. In his witness statement of 17 February 2019 (Exhibit A), Mr Balzola sets out his distinguished curriculum vitae including enrolment in the Royal Military College, Duntroon, the attainment of his legal qualifications, his admission as a solicitor of this Court on 15 March 1995, service in the RAAF Special Reserve (Legal) as a flight lieutenant, association with the University of Notre Dame, and extensive lay service to the Catholic church.

12. He also states, without challenge, the following (Exhibit A, [10] – [13]):

In November 2008 my ex-wife falsely alleged assault against me. I was arrested by the police, taken to the Burwood Police Station and questioned by them without an ERISP. The police automatically sought and obtained an Interim Apprehended Violence Order (AVO) in respect of my ex-wife. The police charged me with two counts of common assault. Both counts were dismissed pursuant to s 32 of the Mental Health (Forensic Provisions) Act (its 1990 (NSW)). The AVO sought by the police was confirmed and made final on 18 January 2011. In July 2012, I sought, and obtained pursuant to s 72 of the Crimes (Domestic and Personal Violence) Act (2007 (NSW)) an order revoking that AVO.

…

On 5 January 2010, I was falsely accused by the solicitor acting for my ex-wife in the family law proceedings of assault, I was charged by the Police. The charge went to a final hearing before a Magistrate and was dismissed with costs against the informant.

In 2012 I commenced proceedings for malicious prosecution against the State of New South Wales in respect of the charges prosecuted by my ex-wife’s solicitor and obtained a consent judgment in my favour which was entered by the District Court of New South Wales on 12 February 2014.

…

I am not a criminal and I do not have a criminal record. I have no criminal convictions and do not have any Apprehended Violence Orders (AVOs) against me.

Legal context of the dispute

13. As I have said, the matters relayed by Mr Balzola in Exhibit A, [10] – [13] are not disputed. For this reason it seems to me that if Mr Balzola proves the words he attributes to Mrs Passas and Mr Raciti were spoken by them at the AGM, they carry the imputations contended for and are defamatory of him. I say this calling to mind Howden v “Truth” and “Sportsman” Limited & Anor (1937) 58 CLR 416; [1937] HCA 74 where Dixon J (as the Chief Justice then was) said (at p. 421):

The imputation contained in a statement that a man has been convicted of an indictable offence and sentenced to imprisonment is not, in my opinion, sustained by proof of a conviction and sentence quashed on appeal, and no finding that the imputation was true should be allowed to stand. I find it difficult to imagine any circumstances in which an unqualified statement that a man had been convicted and sentenced could be reasonably held to be substantially true, when the fact was that the conviction had been vacated, however technical the ground for setting it aside might have been.

14. It follows that the real question for determination is whether the defamatory statements were made as alleged, and if so, whether Mr Raciti has established his defence of qualified privilege.

The annual general meeting

15. The AGM was convened to be held in the upstairs function room of Mr Raciti’s Haberfield restaurant during the evening of 29 March 2016. The evidence suggests that there were about 30 people present for the meeting. In a handwritten minute of the meeting kept by Mr Balzola because of his role as scrutineer for Ms Khachan he noted total attendees as numbering 29 (Exhibit A, Statement of Robert Balzola, Annexure D). Of that number 22 attendees were qualified to vote, being members of the branches within the Summer Hill electorate. In addition to the 22 electors the evidence shows that Mr Joe Tannous was present as the person appointed by the Liberal Party to conduct the ballot. He had been a member for over 20 years and was the President of the Strathfield SEC, which is an adjoining electorate to Summer Hill, for which reason he was eligible to conduct the ballot. Mr Ken Henderson was present, also as a scrutineer, a Mr Naji Najjar, as an observer, and Mr and Mrs Tyler were also present as observers. The Tyler’s may have been eligible to attend as members of the Marrickville branch. They were not eligible to vote as they were not office holders of their branch. These persons bring the total number present to 28, but I garnered the impression from the evidence generally that there may have been other observers also present.

16. Another general impression arising out of the evidence is that the meeting was boisterous, if not rowdy. It was difficult to hear at times and one had to speak in a loud voice to make one’s self heard, even by people closely nearby.

17. According to Mr Balzola’s minute, the meeting got underway at 6:33 pm, but again as a matter of impression, I thought it may have been a little later than that. In accordance with what the evidence discloses was the usual procedure, the meeting was commenced by Mr Raciti as outgoing President of the SEC, giving a President’s and Treasurer’s report before handing the meeting over to Mr Tannous who declared all offices vacant.

18. From Mr Balzola’s notes (Annexure D), it appears that while Mr Raciti was in the chair the following matters occurred:

(1)    No previous minutes of AGM;

(2)    No [treasurer’s] report. No treasurer;

(3)    Declare new chair;

(4)    Division of meeting;

(5)   Tannous takes chair;

(6)   Proxy Forms called for;

(7)   (Recording of Proxies);

(8)   No recording; mobiles (? off);

(9)   Two scrutineers equal Phil Mertone, (?) Robert Balzola;

(10)    Call roll (of person’s entitled to vote).

The question marks are mine, querying my deciphering of the notes.

19. After the calling of the roll, Mr Balzola records that all positions were declared vacant and the ballot for the position of President was conducted. The group that he was there to support was successful and their candidate was elected. Mr Raciti’s candidature was unsuccessful by a vote of 12 to 10. His nomination had been moved by Mrs Passas and supported by Mr Cameron Walter, another person who gave evidence.

20. One might infer that it was from this time, according to Mr Balzola’s minute, that things heated up. The next election was for the position of Vice President and Mr Walter was Mr Raciti’s and Mrs Passas’s candidate. Again his candidature was defeated 12 to 10. At this time Mr Balzola records that Mrs Passas said “My husband will look after the ballot paper”. I interpolate that Mr Henderson took a point of order, according to his evidence at this point. Mrs Passas then said, according to Mr Balzola’s note, “Thank God, you can pull swifties”. Mr Balzola recorded the time as 20:05 hours.

21. The next position to be filled was that of “Vice President Policy”. Initially, something apparently went wrong with the numbers and there was a tied vote. On the second ballot, once again the vote was divided 12 to 10, those opposing Mr Raciti and Mrs Passas again winning the vote. At this point Mr Balzola records that Mrs Passas said “He beats his wife, she has an AVO”, and Mr Raciti made the comment “It was in the paper”. Mr Balzola recorded the time as 20:30. This is the only other contemporaneous note of a statement against him recorded by Mr Balzola. Thereafter, Ms Khachan was elected Secretary; a Mr Manikas, Treasurer; two delegates to State Council including Ms Khachan; and two delegates to Women’s Council including Ms Khachan and her mother. A further five positions were filled and so far as I can understand the handwriting, all were taken by the group that Mr Balzola supported, including a third position for Ms Khachan, who was elected unopposed as the MLC Selector, Female. As it transpired her mother was elected unopposed as her alternate. At the completion of the ballot the chair was handed over to the new President, Mr George Andrade who figures in other evidence.

The evidence of Robert Balzola

22. Mr Balzola was a confident, assertive and combative witness. As a trained lawyer he was familiar with his case and did not feel compelled to give short sharp direct answers to questions asked of him in cross-examination. On the contrary, he was inclined to be discursive. He seemed happy to fully engage counsel in the “debate”, at the same time he could be prickly, if not hypersensitive.

23. Perhaps contrary to his note in Exhibit A, Mr Balzola said he arrived at the meeting at about “10 past 7” (25.1T). He was closely followed by Mr Najjar. When Mr Balzola arrived the meeting was already underway with Mr Raciti in the chair. He said Mr Raciti made “some adverse commentary about [his] presence at the meeting” as he entered (29.32T). He clarified that this adverse commentary occurred “very soon after” he found a seat (32.43T). He referred to it as “an altercation” with Mr Raciti (32.29T). He believed Mr Raciti was addressing him in the Italian language, which Mr Balzola speaks a little. But he could not understand “so much of it” that Mr Balzola thought it may be a dialect (33.9T). He garnered the sense that he was being berated for being at the meeting (33.18T) and responded “in broken Italian” that he did not understand (33.38T).

24. These details are not recounted in Exhibit A, although Mr Balzola does state (at [16]) that he recalls “a dispute at the start of the meeting about visitors being present”.

25. Although the Italian scolding is not relied upon as part of Mr Balzola’s cause of action, it may provide important contextual evidence because Mrs Tyler’s account of an exchange between Mr Raciti and Mr Balzola is said by her in her affidavit to have occurred at the beginning of the meeting when Mr Raciti was still in the chair before he was replaced for the ballot by Mr Tannous. I should also say that Mr Henderson volunteered in a somewhat non-responsive way to a question asked in cross-examination that “there’d been some sort of comment made from the chair towards him … in Italian, but I didn’t pay attention to that” (136.45T; 143.20T; 143.50 – 144.15T; 145.28T; 150.45T).

26. Ms Khachan also gave evidence about Mr Raciti not being happy and saying something in Italian (164.5 - .25T). Mr Najjar did not give evidence about this matter, nor was he asked about it.

27. It is fair to say that there is nothing express in the statement of either Mr Balzola, Mr Henderson or Ms Khachan, or in the evidence of any other witness about Mr Raciti apparently expressing unhappiness in Italian at the appearance of Mr Balzola at the meeting while he remained in the chair.

28. Mr Balzola’s evidence-in-chief (Exhibit A [17] – [18]) was as follows:

As the meeting progressed I heard Julie Passas say 'He beats his wife. He has an AVO'. Mrs Passas said these words loudly and in an angry voice. She was looking at me when she spoke the words. I saw other people at the meeting looking in my direction when she did this. I heard Tony Raciti say loudly 'It is true I saw it in the paper he has a criminal record'. Tony Raciti was also looking in my direction when he said this. I think that he was actually pointing at me. People continued to stare at me. Julie Passas also said loudly 'Balzola is a criminal'. Tony Raciti agreed loudly with a 'yes' and 'It was in the paper'. Passas also spoke the words "Balzola has an AVO against him by his wife". I heard Tony Raciti say loudly 'Balzola beats his wife. It was in the paper'. Again he pointed at me. I saw many people staring at me. Some of them looked very concerned. Some looked at me in disgust. I felt very upset. I was very worried when I heard these words and saw the reaction of the faces of those at the meeting. I wanted to say something but felt that I shouldn't.

I also heard Julie Passas say "Thank God you can pull swifties". She said these words in a loud voice and looked in my direction. She said this soon after she indignantly stood up and said that her husband would look after her ballot. She seemed to me to be very unhappy with the way in which the votes were going against her faction. I believe Ken Henderson attempted to take a point of order about it. I thought that Passas was talking about me when she spoke those words. Others at the meeting looked in my direction when she spoke those words.

29. Mr Balzola said that although he was “very unhappy and embarrassed at the accusations … [and] their falsity hurt [him]” he was counselled by Mr Henderson and Mr Najjar to remain calm lest the meeting descend completely into uproar and questions are later raised about the validity of the proceedings (Exhibit A [19]). The group that they were there to assist as scrutineers and in that way support, as political types say, had the numbers and were winning the ballots. It would be undesirable if anything happened calling the result into question. Mr Balzola heeded this counsel. After the meeting concluded at about 8:30 pm, some people who had been present appeared to shun him and others came up to him asking if the statements were true. He felt embarrassed by having to explain the truth to them (Exhibit A [20]).

Cross-examination

30. In cross-examination, Mr Balzola said that Mr Raciti had used his name when making the disparaging comments in Italian. He used his name “quite repetitive[ly]” (37.46T). He understood the Italian word “silencio” which he took from Mr Raciti’s tone to be a dressing down indicating he wasn’t to speak (38.25T). Mr Balzola denied that it was “false and disingenuous” of him not to record a full account of the initial exchange in Italian with Mr Raciti because “there was no defamation … [as] it was said in another language” (46.15T). Mr Balzola said there was “actually deafening silence” in the meeting when Mr Raciti spoke to him in Italian (47.35T). He rejected “completely” the suggestion in cross-examination that the scolding in the Italian language “just never happened” and that he was “making it up (as he went along)” (47.43T). He denied that he was “lying” (48.10T).

30. Mr Balzola said the defamatory statements were made during the ballot part of the meeting after Mr Tannous had assumed the chair as returning officer and Mr Balzola had been confirmed as a scrutineer. The first statement from Mrs Passas, that “he bashes his wife, he has an AVO” followed closely after his confirmation as a scrutineer. When she said this she had turned in her seat to face the chair at the front of the room and gestured with her right hand in Mr Balzola’s direction. Mr Balzola was then sitting more or less behind Mrs Passas at the side of the room (55.35 - .30T).

31. Mr Balzola said that the second defamatory statement – Passas – “He has a criminal record” and Mr Raciti – “It’s true; it’s in the papers” were said during the election for the first Vice President’s position (68.40 – 69.5T). Mr Balzola’s theory is that Mrs Passas was “upping the ante” (69.29T) in an attempt to provoke a reaction from him which could lead to the meeting being shut down. He accepted that there was a natural bias in the work of a scrutineer towards maximising the legitimate vote for “his” candidate and minimising the legitimate votes for the opposition. The role involves “positive discrimination” (70.10T).

32. Mr Balzola said that the third comment from Mrs Passas relating to him pulling “swifties” was made “well into the AGM” during the vote for the position of Secretary, about half an hour after the statement was made during the Vice Presidential vote (73.29 - .48T). He said at that time he said to Mrs Passas, “You are warned” (73.50T) which was a reference to his intention to sue for defamation if the comments continued. He also said that Mrs Passas’s statement provoked “another moment of silence” at the meeting (74.5T). Mr Balzola’s best recollection was the statement about “swifties” was said soon after Mrs Passas had said, “He’s in the Australian Labor Party”. He said he could not recall the exact syntax used (75.8T).

33. Mr Balzola agreed that he didn’t make any note of Mr Raciti’s “sustained attack” in the Italian language in his minute (80.10 - .35T). Interestingly, when it was put to Mr Balzola that it is “wrong and false” to say that Mr Raciti made any attack against him “in any language at all while he was the chair of the meeting” Mr Balzola responded by saying that proposition was “absolutely false” (80.48 – 81.3T).

34. He denied that the comment about “swifties” recorded at 20:05 in his minute (Annexure D) was the first statement made. He said the more serious statements about him having a criminal record, an AVO and it being reported in the papers preceded the “swifties” statement. He denied that this evidence was false (83.33T). He was challenged about the veracity of his response by reference to Annexure D where he had recorded an earlier comment by Mrs Passas that she had “known Robert Balzola for 20 years”. His response was that he “did not write every single thing that was said” down (83.21 - .46T).

35. Having taken the opportunity to review his minute (Annexure D) Mr Balzola changed his evidence about the order in which the statements were made. He conceded that his memory was wrong and the Court should proceed on the basis that his contemporaneous notes were correct (85.25T). He said that he has “100 per cent confidence” in what he wrote, but not in his memory from 2016. He stood by his notes (86.25T).

36. By reference to Annexure D, Mr Balzola said (87.35T) there were two comments directly above the word “Passas” (87.35 - .40T):

They are two different comments. They are two different defamations. One is “beating his wife” the other is, “He has an AVO.” Both are false, both are attributed to Passas. The “beating his wife” comment is also attributed to Tony Raciti. That is explained by the colon. “It’s true, it was in the paper” is solely attributed to Tony Raciti. And all that occurred around half past 8.

38. By reference to his minute he accepted that his earlier evidence about being accused of “beating his wife” being the first statement and “pulling swifties” the last was “probably erroneous” (89.39T). He maintained, however, that other things were said – “it was a bombardment of attack” – that he did not write down (89.43 – 90.09T). He agreed that the statements of beating his wife and the AVO “must be a reference to a time gone by” (91.40 – 92.09T).

39. Mr Balzola seemed to change his evidence again when he was cross-examined on his answers to interrogatories, verified on 13 September 2017 (Exhibit 7; 101.30T). Answering interrogatory 9, he said that the statement that “he beats his wife” was said twice on separate occasions. The first occasion was at 7:45 pm by Mrs Passas and the second occasion was 8:20 pm by Mr Raciti. This was somewhat at variance with the evidence he had previously given under cross-examination that both had said that at the same time, 8:30 pm. He seemed to move away from reliance upon Annexure D by saying that he was there to scrutinise not to report on Mrs Passas or Mr Raciti (102.2T). He rejected the proposition that he was “scratching around” for explanations of the inconsistencies in his evidence (102.6T). He was pressed about the difference between his earlier evidence about Annexure D that the statement by each of Mrs Passas and Mr Raciti about him beating his wife was made at 8:30 pm and the answer to question 9 in the interrogatories that Mr Raciti said that “he beats his wife” at 8:20 pm. (Mrs Passas apparently having said it at 7:45 pm, or thereabouts). He said he was “reminded” by the statement in answer to the interrogatories (109.35T). He said that his earlier statement that he had looked at his watch to record the time of 8:30 pm, was a reference to him recording not the time of the statement, but the time of the ballot (109.45T). He rejected the proposition that the statement about beating his wife, being subject to an AVO, and those matters being reported in the paper had never been said by Mrs Passas (110.6T).

40. He agreed that he had not recorded a statement that he was a “criminal” in Annexure D, notwithstanding the seriousness of the allegation and the consideration that he had recorded lesser statements (111.41 – 112.8T). Mr Balzola said he did not write down every single word spoken by Mrs Passas or Mr Raciti (112.11T). He was relying upon both his memory and Annexure D.

41. He was asked the following questions about the evidence contained in Ms Tyler’s affidavit (115.1 - .20T):

Q. I suggest to you that when Mr Raciti gave that report, he was asked a question and he said that he would have to follow the question up as he had lost some of the documents. Do you remember that?

A. No, I don't remember that incident.

Q. To that, you said, "That's because you've taken all the money. You took it and you spent it on your restaurant." That's what you said, isn't it?

A. No.

Q. Mr Raciti said, "I dare you to say that again," and you said, "Well, your wife's on council and you get preferential treatment. You're part of the mafia."

A. No.

Q. To which Mr Raciti said something along the lines of, "Well, you're the criminal," to which you responded, "How dare you call me a criminal"?

A. No.

Q. To which he replied, "Well, you're the one who's had charges and an AVO against you"?

A. No.

42. He denied knowing that Mr Raciti and Mrs Passas were aligned (116.2T). It had arisen earlier in the evidence that he had misspelt Mr Raciti’s name in Annexure D (78.46 – 79.9T). He had referred to him as Tony Rancini. He said at (116.5T):

I didn't even know how to spell his name. I didn't meet him in my life before that night. I didn't know anything about him. I did not know he was married to Victoria Raciti, I misspelt his names on the records, I didn't even know who he was. I knew nothing about that man. He was a complete stranger to me.

I interpolate that he also misspelt Mrs Raciti’s name as Rancini in his minute. He denied that he was lying when he said that he did not know by 8:30 pm, “near the conclusion of this meeting”, that Mr Raciti and Mrs Passas were politically aligned (116.44T). He subsequently agreed that by 8:30 pm he was aware that they were supporting each other in the sense of nominating or seconding each other. He said that that did not necessarily mean they were politically aligned (117.3-22T).

The evidence of Ken Henderson

43. Mr Henderson’s evidence-in-chief was taken by the tender of his statement of 15 February 2019, which was admitted as Exhibit B. He attended the meeting on 29 March 2016 as an observer. From the statement, one would infer that no incident of interest in these proceedings occurred until after Joe Tannous occupied the chair to conduct the AGM and the ballot. At that point Mrs Passas interrupted the meeting loudly questioning why visitors were there and asking that they be excluded (Exhibit B at [3]). Mr Tannous overruled this objection and declared all positions vacant (at [4]). Mr Henderson said Mrs Passas continued to loudly interject (at [4]). As Mr Balzola said, Mr Henderson confirmed that Mr Andrade won the ballot over Mr Raciti for the President’s position (at [5]). Mr Henderson said that matters of interest for the present case occurred after the second ballot for the Vice President (Development) had been decided. Mrs Passas stood up and said, “My husband will look after my ballot paper”. Mr Henderson formed the view that she was about to leave the room which was irregular and he raised a point of order about it with the returning officer (at [7]). It was this point, on Mr Henderson’s version, that Mrs Passas said “very loudly and very aggressively … “Thank God you are here. You are all full of swifties”” (at [8]). Mr Henderson said these words were uttered in the direction of both him and Mr Balzola (at [8]).

44. After the election of the Vice President (Policy) by the same 12 votes to 10 margin as the previous offices, Mrs Passas turned and looked at Mr Balzola and “yelled very loudly, pointing: “He beats his wife, he has an AVO” (at [10]). Mr Raciti then said loudly and angrily, “I know this is true, I saw it in the paper, he has a criminal record” (at [10]). Although Mr Balzola was visibly upset, Mr Henderson counselled him not to react (at [12]). Mrs Passas and Mr Raciti loudly proclaimed on two more occasions: “Robert Balzola is a criminal” and “He beats his wife”, “He has an AVO” (at [13]).

45. Mrs Passas accused Mr Balzola and Mr Henderson of being members of the Australian Labor Party (at [14]). Mr Henderson said that during the remainder of the meeting there were further outbursts from Mrs Passas and Mr Raciti.

Cross-examination

46. I have referred to Mr Henderson’s evidence in cross-examination about Mr Raciti’s Italian tirade and I will not repeat that evidence here. Mr Henderson is the President of the Burwood branch of the Liberal Party. He had been invited to attend the meeting by Joceline Khachan. On his understanding both Mr Balzola and Mr Najjar had also been invited by Ms Khachan.

47. Mr Henderson and Mr Balzola had been political fellow travellers since 2012 and I infer were friendly to one another (135.25-35T). He denied having spoken to Mr Balzola about what happened at the AGM, or about the evidence in the case, since 29 March 2016. He had made some notes about what happened which he typed up the following morning, but that was as an aide memoire in the event of a challenge to the validity of the outcome of the meeting (137.25T). But he had not discussed the matter with Mr Balzola, “It was like a Chinese wall went up” (137.14T).

48. At the time the “swifties” comment was made, although said following his intervention and in response to his point of order, Mr Henderson thought the statement was directed at him, Mr Balzola and Mr Najjar because Mrs Passas said, “You are all full of swifties” (My emphasis). They were all sitting together and Mr Henderson had the impression they were all included (147.5T).

49. Mr Henderson said it was a tense meeting but he didn’t regard it as noisy or rowdy initially. Mrs Passas was being a little bit noisy. Mr Henderson regarded that as normal for her. But things “blew up” when he challenged her right to leave the meeting (147.8 - .17T).

50. When it was put to Mr Henderson that Mrs Passas had never said Mr Balzola beats his wife or has an AVO, he said (147.35T) “… [I]t very much did happen. I was absolutely shocked and horrified to hear such a thing being said in a meeting of – you know, it stunned the room. There was dead silence. People were popeyed looking at one another. It was just - and it was very loud and vicious”.

51. He said Mr Raciti, “came in behind her equally as loud. The first time he spoke, he absolutely screamed from the front desk. He was very angry he’d lost his position” (147.48 - .50T). He said counsel was “wrong” to suggest that that was not true (148.2T).

52. Mr Henderson said that the statement that Mr Balzola “beats his wife, has an AVO, has a criminal record and I’ve seen it in the newspapers was reiterated a number of times” (150.13T).

53. He didn’t recall anything about Mr Raciti giving the treasurer’s report. He adhered to the account he’d given of the statements made by Mrs Passas and Mr Raciti, but accepted he may have the order in which things were said wrong (152.23T). He reiterated that the room went “deadly silent” (153.22T). He believed that the conduct of Mrs Passas and Mr Raciti was designed to cause the meeting to breakdown into disarray so the outcomes of the ballot could be invalidated and a new meeting called (154.8T).

54. When cross-examined on Mrs Tyler’s version (155.42 – 156.23T), he initially said that he did not recall that happening but believed that had he witnessed that exchange, he would have recalled it. He had a clear recollection that Mr Balzola did not respond to the attacks that had been made. He finally said, “But it may have happened … I’ve got a pretty good recall, but you know, like, some things you see as pertinent, some things you don’t see as pertinent. If it slipped by, it slipped by. I do not recall” (157.15 - .20T).

Re-examination

55. During re-examination, Mr Henderson identified Exhibit C as the account he had typed up the morning after the meeting. Interestingly, this account recounts an exchange about the absence of previous AGM minutes and Treasurer’s report, which provoked a “comment from the floor”, the details of which were not set out. The account is substantially the same as that contained in Exhibit B.

The evidence of Joceline Khachan

56. In her statement of 15 February 2019, (Exhibit D), Ms Khachan said she and Mr Balzola had become good friends through their common attendance as parishioners at church. She has been a member of the Liberal Party since 2011 in the Haberfield branch where she was an office holder as at 29 March 2016. She attended the AGM on 29 March 2016 and confirmed that she had asked Mr Balzola to attend and to act as a scrutineer. She had also invited Mr Henderson to be an observer.

57. She recalled a controversy about observers being present which did not last very long. She did not regard the meeting as unusually noisy up until that point (Exhibit D at [9]).

58. She said as the meeting progressed, Mrs Passas and Mr Raciti each began to speak loudly and started to make loud accusations about Mr Balzola. They both spoke loudly enough to be heard across the room. Ms Khachan said she did not recall every word they said (at [10]).

59. She does not recall the order in which things were said, but she recalls Mrs Passas in a loud voice saying (at [11]):

1. “Thank God Robert Balzola is here, I have known him for 20 years, you can pull swifties”;

2. “Robert you are a wife basher”;

3. “It must be true it was in the papers”;

4. “Robert Balzola has a criminal record and … an AVO”.

60. She said she recalled Mr Raciti responding to some of Mrs Passas’ comments by saying, “Yes, that’s true. I saw it in the papers”. Apart from agreeing with Mrs Passas he also said “Mr Balzola has a criminal record” and “He beats his wife” (at [12]).

61. Although she was puzzled during the meeting as to why Mrs Passas and Mr Raciti were behaving as they did, it occurred to her later that they were deliberately attempting to disrupt the meeting in an attempt to have it “shut down” (at [15]). She believed that incumbent office bearers would have maintained their position until a new meeting could be convened. She estimated that could have been “a year away” (at [15]).

62. Ms Khachan was in the ticket opposing the ticket of Mr Raciti and Mrs Passas.

Cross-examination

63. Ms Khachan said that her statement had been prepared in conference with counsel for the plaintiff, she said (162.10 - .15T):

I’ll be honest with you; I don’t exactly remember which order it happened. I do remember what was said, but I don’t exactly remember in which order it happened because it was shocking to me. So I tried my very best to put them to where I think, yes, it did happen. Yes.

64. She thought the comment about knowing Mr Balzola for 20 years and he can pull a swiftie was the first thing which was said. She said that Mrs Passas would say something and Mr Raciti “would kind of bounce off that and agree and repeat it” (162.50T).

65. She said that at the beginning of the meeting “Mr Raciti was not happy, he was angry that (Balzola, Henderson and Najjar were there). He said something in Italian. I’m pretty sure he was angry that they were there. He said something in Italian not to me but -” (164.5 - .22T).

66. Initially she said she remembered the Treasurer’s report, she knew there were questions, but she didn’t remember what (165.20T). And initially she said she did not hear Mr Balzola respond in any way to any of the things that had been said to or about him (165.30T).

67. Ms Khachan was cross-examined about Ms Tyler’s version and the following evidence emerged at (168.7 - 169.28T):

Q. You say at paragraph 12 that each time Mrs Passas said something, Mr Raciti loudly agreed?

A. That's right.

Q. And that he also said, "He's a criminal. He has a criminal record and he beats his wife."

A. That's right.

Q. You actually remember Mr Raciti saying that?

A. Yes. Yes.

Q. I suggest to you that Mr Raciti, if he said that, said that in response to Mr Balzola accusing Mr Raciti of being in the mafia?

A. Are you telling me that?

Q. I'm suggesting--

HIS HONOUR

Q. He's asking you.

KIRBY

Q. I'm suggesting that that is what happened?

A. I don't think so, I'm sorry.

Q. That during Mr Raciti's treasurer's report--

A. Yes.

Q. --he admitted to losing some documents and Mr Balzola said, "That's because you put all the money into your restaurant." Do you remember that?

A. Well, there were some words exchanged, but I don't remember what kind of words.

Q. That after that, Mr Raciti responded to that allegation by saying to Mr Balzola words to the effect, "I dare you to say that again"?

A. I remember that.

Q. And then--

A. Because that was like a threat.

Q. And then Mr Balzola said, "Well, your wife's a councillor, you get preferential treatment." Do you remember Mr Balzola saying something to that effect?

A. No, sorry.

Q. To which Mr Raciti said, "You're the criminal," to which Mr Balzola said in reply to that allegation, "How dare you call me a criminal." Do you remember that?

A. It's coming back to me.

Q. To which Mr Raciti qualified that remark by saying, "Well, you had charged against you in an AVO," words to that effect?

A. Yeah, I remember he said he had an AVO, but it wasn't--

HIS HONOUR

Q. No, but this was all--

A. --at that position, though; it was after the election, midway.

HIS HONOUR: Sorry, Mr Kirby, go on.

Q. What's being suggested to you, do you understand, by Mr Kirby is that it was in the context of that exchange that Mr Kirby is suggesting occurred that Mr Raciti said what he said about wife beating and AVOs?

A. I don't remember him saying that before that. I wasn't paying attention. I was talking to my members, I remember, at certain stages, but when this came up it was really after the election. Sorry, in the middle of the election. Yes, sorry, I'm not much help, am I?

Q. No, don't say that. You're just here to answer the questions, that's all. You're not here to help anybody.

The evidence of Naji Najjar

68. In his statement of 16 February 2019, Exhibit E, Mr Najjar confirmed that he attended the AGM of 29 March 2016 as a non-voting observer. Mr Najjar is a member of the Bass Hill branch of the Liberal Party. He agreed with the general estimate of between 20 to 30 people present.

69. Mr Najjar knew both Mr Raciti and Mrs Passas. He also knew Vittoria Raciti, who is married to Mr Raciti, as she was a councillor on what is now the Inner West Council. He sat with Mr Henderson and Mr Balzola.

70. His recollection is similar to Mr Henderson’s in that the first incident he recalls is when Mrs Passas stood up during the election saying loudly “my husband will look after my ballot paper” and Mr Henderson called a point of order. He recalls Mrs Passas saying in response, “thank God you are here Robert. You can pull swifties” in a loud voice looking at Mr Balzola. “Others in the room [were looking] where she was looking” (Exhibit E at [8]).

71. He said that Mrs Passas made a number of statements about Mr Balzola including: “Balzola is in the Labor Party”; “Balzola beats his wife”; and “Balzola has an AVO” (at [9]). Each time Mr Raciti loudly voiced his agreement. He also said, “Balzola has a criminal record. You are a criminal” and “It must be true, I saw it in the papers”. He said these statements were repeated more than once and accompanied by finger pointing gestures. Mr Najjar noticed that Mr Balzola was visibly upset, but he counselled him to remain calm (at [10]).

Cross-examination

72. In cross-examination Mr Najjar said that he had been invited to the meeting by Dr Nasser Sadrak, the Vice President (Development) of the Haberfield Branch and Ms Kachan to attend. He arrived at about the same time as Mr Balzola. It was his recollection that he went upstairs ahead of Mr Balzola, but they sat together with Mr Henderson. He recalls some discussion about the Treasurer’s report while Mr Raciti was still in the chair (173.25T). He said the comments by Mr Raciti and Mrs Passas began after Mr Raciti had handed over control of the meeting to Mr Tannous. The statements he has referred to were made before the vote for President, after that vote, after the first Vice President vote and after the second Vice President’s vote. He said he was “very sure” the comments were made on 4 distinct occasions (174.29T).

73. He said there had been a running commentary in derogatory terms by Mr Raciti and Mrs Passas in relation to him, Mr Balzola and Mr Henderson before Mr Raciti vacated the chair and Mr Tannous declared all positions vacant (175.23T).

74. The first in time statement was the “swifties” statement which caused a number of delegates to look around and pull a funny face as though asking “what’s going on” (176.16T).

75. The second comment was that Mr Balzola was a wife basher with a criminal record. This statement was made by Mr Raciti (178.15 - .20T). When challenged about whether he was “absolutely sure” Mr Najjar responded “well it happened 3 years ago” (178.25T). When asked whether he was agreeing with counsel he said “no … I’m absolutely sure because what, what was said was so shocking (178.34T).

76. He agreed he had discussed the matter with Mr Henderson and Ms Kachan and other persons in the Liberal Party over the years since the AGM (180.50 – 181.16T).

77. He was cross-examined as to credit based upon an earlier signed draft of his statement, (Exhibit G). That document purported to give a detailed chronological account of 8 statements made by either Mr Raciti and Mrs Passas describing a precise time to each statement between 7:15 pm and 8:45 pm. In that statement Mr Najjar said he provided those precise times to Mr Balzola from his mobile phone so that Mr Balzola could make an accurate note of the matters. He initially said those times were “guesstimates … They weren’t correct so that’s why I left them out” of the final version (184.30 - .39T). He was taxed about the detail that they had been provided via his mobile phone and agreed that was probably a false statement when it was written because his phone had been switched off in accordance with Mr Tannous’ direction at the start of the meeting (185.25 - .43T). He agreed that that part of the draft statement was wrong when he wrote it (189.10T).

78. I will say now, having reviewed the whole of the evidence of all witnesses, although the point was fairly taken by counsel in cross-examination, I do not regard it as a matter upon which I should reflect discreditably upon Mr Najjar. The matter was contained in a draft, which was unserved and only saw the light of day in response to a call without notice for all draft statements of witnesses during the course of the trial. I accept his explanation that he realised the matter was wrong in conference with counsel and omitted it from the final version of the statement. I will evaluate all of the evidence in context later in these reasons.

79. He denied the details of Ms Tyler’s version when it was put to him, but said, “I remember there was an exchange between them, but, no, I don’t remember what was said” (189.46 – 190.20T).

The evidence of Julie Passas

80. Mrs Passas’s evidence in chief was given by way of her affidavit of 28 January 2019. I have mentioned a little of her background already. She is a local government councillor and the Secretary of the Ashfield Branch of the Liberal Party. She had initially met Mr Raciti and his wife, Vittoria Raciti through assisting them when she was a councillor. She encouraged them to join the Liberal Party, which they did. She said that she had not met Mr Balzola before 29 March 2016, notwithstanding the comment I have recorded above that she’d known him for 20 years, but she had come across him, as I would put it, in political circles. She had known Mr Henderson since about 1995, they are not aligned politically. She knew Mr Najjar and they were on friendly terms, if not political fellow travellers.

81. Mrs Passas said that the AGM was scheduled to start at 6:30 pm. When she arrived in the meeting room there were about 15 people present in expectation of the meeting. Vittoria Racitti and Matthew Raciti, Mr Raciti’s son, were working in the restaurant downstairs. She was in the company of her husband, Bill Passas.

82. Mrs Passas said that Mr Balzola, Mr Henderson and Mr Najjar arrived when nearly all persons attending were in the room. She said there was tension in the branches due to factionalism, branch stacking and attempted takeovers (Affidavit at [37]). She identified herself and Mr Raciti as moderates and Mr Balzola and his companions as “members of the Hard Right faction” (at [38]). They would prefer the designation, “conservatives”.

83. When Messrs Balzola, Najjar and Henderson arrived, Mrs Passas commented, apparently to no one in particular, “Oh no, they’re here to make trouble. They should not be here” (at [39]). She did not understand they had been invited.

84. Mrs Passas said, like other witnesses, that there was a meeting between Mr Tannous, Mr Andrade and Mr Najjar before the main meeting started. She was unaware of the content of their discussion and not all members agreed upon the personnel participating in that private meeting, and it is immaterial for my purposes.

85. Just before the meeting started, Mrs Passas’s recollection is that Mr Balzola and his companions were walking around (at [43]). From time to time he stood near her (at [44]). Mrs Passas says that she addressed the meeting saying by reference to Mr Balzola and his companions, “They should not be at the meeting, they’re here to make trouble” (at [45]). She said she had a private conversation with Mrs Kerry-Anne Raiola about them and Mrs Raiola asked “Who are they?” Mrs Passas says she replied “Two of them are former Labor Party members, Ken Henderson and Robert Balzola. I remember reading in the paper and hearing that Balzola had assaulted his wife and he had had an AVO against him”. She said that Mr and Mrs Raiola commented upon what she had said (Affidavit [47] – [50]).

86. Mrs Passas denies making any other comment about Mr Balzola and specifically denies the allegations of statements attributed to her set out in paragraph 1 of the Statement of Claim (see 5 above).

87. She said she did not hear any comments made by Mr Raciti to Mr Balzola or about him (at [54]). She said the meeting was noisy and rowdy. It was difficult to hear what was being said even in conversations with persons sitting nearby (at [33] and [55]).

88. She attached a copy of an article from the Sunday Telegraph of 19 April 2019 reporting on the charges brought against Mr Balzola by his ex-wife.

Cross-examination

89. Mrs Passas said she kept news clippings of interest to her in her garage that had something to do with local things and political issues (206.35 - .45T). She was cross-examined about her refusal to comply with an order of NCAT that she attend counselling (209.5T; 231.10 – 35T) and her failure to discover the Sunday Telegraph article in her list of documents (210.15 - .35T). She was also cross-examined about the consideration that she appears to have affirmed her affidavit, yet took an oath before giving evidence in Court (212.8T). She denied that the substance of the comment she said she made to Mrs Raiola was the same as Mr Balzola “beats his wife” or that Mr Balzola “has an AVO” (219.35T – 220.25T). She also stressed, that her comment was “all past tense”. She said she kept the article about Mr Balzola because she was more interested in the fact that he worked for the then Labor member of Federal Parliament, John Murphy (221.5T).

90. She was cross-examined on her verified answers to interrogatories. She was taken through the statement and confirmed her answer “no” to each of the questions seeking an admission about whether she’d uttered the statements attributed to her at the meeting. She did not think it incumbent upon her to disclose the comments she made to Mrs Raiola in answering any of the questions (226.10T). She answered by saying “I think that’s what I said all along”. She had already stressed that she did not use language to suggest that Mr Balzola was currently beating his wife or currently had an AVO (224.43T).

91. When it was put to her that from time to time she acted in a loud and abusive manner, Mrs Passas said that she has “a loud voice” and she was “loud and passionate” (233.13T). She agreed that she did not step back from any view which she held and she said she stands up for what she thinks is right (233.17T). She said that everyone in a democracy has the right to stand up in front of people and speak their voice about things (233.23T). She agreed that her loud and abusive manner in Council meetings had caused those meetings to be closed on 4 occasions (233.35 – 234.10T). She said it happens all the time in council as a result not only of her conduct, but of the conduct of other councillors (234.6T).

92. She denied that she behaved in a loud and abusive manner at the AGM in an attempt to close that meeting down (234.23T) and she denied being concerned about the possibility of a takeover of the SEC by persons whom she regarded as right wing members of the Liberal Party (234.26 - .30T). She said if she didn’t want the meeting to go ahead she could have walked out with the people she was aligned with and deprived the meeting of a quorum (234.35T).

93. When Mrs Passas was challenged about whether she stood up for what she believed in, in a loud and abusive way and said the things attributed to her, she denied it and adhered to her earlier evidence (234.37 – 235.5T). She strongly disagreed that she was attempting to close the meeting down (235.24 - .45T). She said at (236.5 - .13T):

The meeting was very rowdy, there was people (sic) in all different groups having conversations. It was noisy, and - which is not usual at branch meetings, but at AGMs, and people arrive, there were people there that really had no business to be there, so I would say that they're the people that are really interested in the numbers because I have never ever ever in the 20 years being in the Liberal Party attended any other AGMs or branch meetings of any conferences. I've only been interested in my branch, my conference, and that's it. I'm not a numbers person. I'm not looking to shore up numbers.

94. She accepted the proposition that Mr Raciti would have retained his position if the meeting had been closed down (236.28T). I interpolate that I do not understand that proposition. The clear evidence is that all positions had been declared vacant. And she again denied making the statements attributed to her. She did not believe Mr Balzola is a criminal, she knew he was a practising solicitor and she did not believe that criminals could practice as solicitors (237.10T). She did not regard the fact that he had an AVO taken out against him in the past as meaning he was a criminal (238.4T).

The evidence of Kerry-Ann Raiola

95. The evidence in chief of Mrs Raiola is in her affidavit of 29 January 2019. She has been a member of the Liberal Party for 16 years and regards Mrs Passas as a personal friend. She has known Mr Raciti for 22 years, both as a friend and a member of the Liberal Party. She had not met Mr Balzola before 29 March 2016.

96. Mrs Raiola was sitting near Mrs Passas, to the left of the chair, but not actually at the table. She said, “The meeting and conversations were rowdy” (Affidavit at [11]). She saw the person she now knows to be Mr Balzola arrive and she regarded his demeanour as, my word, purposeful. She confirmed in substance the details of the conversation relayed by Mrs Passas, but put it differently. She said Mrs Passas said “softly, “they’re here to cause trouble. That one over there that’s Robert Balzola, I’ve seen him in the paper. He’s been accused of assaulting his wife” (at [16]). She said the meeting remained noisy going quiet only during voting.

Cross-examination

97. She agreed that Mrs Passas can be forthright in her opinions, loud, and not afraid to stand up and say something (280.25T). Mrs Raiola admired Mrs Passas and regarded herself as very loyal to her. She did not agree that her evidence was affected by her loyalty. She said “I don’t think I’ve said anything to support Julie on a personal level in the affidavit” (280.45T). She adhered to her evidence.

The evidence of Max Raiola

98. Mr Raiola’s evidence in chief was given by his affidavit of 29 January 2019. He has been a member of the Liberal Party for 19 years and has known Mrs Passas for 23 years “as a friend, client and as a member of the Liberal Party” (Affidavit at [5]). He has known Mr Raciti “for the last 25 years as a client, friend and as a member of the Liberal Party” (at [6]). Prior to 29 March 2016 he had not met Mr Balzola, but did know of him. He was aware that Mr Balzola had formerly been in the Labor Party and then joined the Liberal Party (at [7]).

99. He and his wife arrived at the AGM about 20 minutes before the meeting started. There were about 20 people present at that time. They sat near Mrs Passas. Mrs Passas and Mrs Raiola were sitting next to each other and he was more or less behind and between them. Visitors had to sit or stand away from the table. Mr Raiola said (at [12]) “some visitors, which included the person I now know to be Mr Balzola, came to the meeting and were involved in some exchanges at the beginning of the meeting. I did not fully hear what was said, the room was crowded and noisy which made hearing anything difficult during the non-formal parts. It was a very disorganised and messy meeting. For the whole room to have heard anything during the non-voting part, it would have had to be shouted”.

100. He overheard a conversation between Mrs Passas and Mrs Raiola during which Mrs Passas said, “He was in the newspaper, it said he assaulted his wife” (at [16]).

Cross-examination

101. Mr Raiola said that during the time that he had known Mrs Passas, she had been a client for about 10 years until she retired (286.35T). He regarded Mrs Passas as a friend but she did not fit in to his definition of good friend, which he regarded as “someone that you see every week and you eat at the table” (286.50T). He regarded her as a friend, but she was not someone with whom he and his wife socialised.

102. He regarded Mr Raciti as a friend and a client. Again, Mr Raciti did not meet Mr Raiola’s definition of a good friend (287.20T).

103. When asked about his loyalty to Mrs Passas he said, “does that basically say that I will not be honest and tell the truth just because I’m loyal?” (289.15T). When asked about his loyalty to Mr Raciti he said, “I’m only loyal to people who will do the right thing” (289.46T).

104. It was suggested that he wasn’t paying attention at the AGM. He said, It was a “very, very noisy meeting”. It was “very hard to, not only hear, or to pay total attention to anything” (290.41T).

The evidence of Thomas Carrie

105. Mr Carrie’s evidence in chief was given in his affidavit of 21 January 2019 in which he described himself as “a witness for the first and second defendants” (Affidavit at [1]). He corrected a mistake orally in that he had said that Mr Raciti had been re-elected president at the AGM.

106. He describes himself as “friends” with Mrs Passas and Mr Raciti; the former for 15 years; and the latter for 10 years. He is a member of the Summer Hill Branch of the Liberal Party. He has been a campaign worker for Mrs Passas and stood with her as a candidate in two council elections, unsuccessfully I infer.

107. When he saw Mr Balzola, Mr Najjar and Mr Henderson arrived he commented to Mrs Passas “What are they doing here? They shouldn’t be here” because they were not members of the SEC (at [19] – [20]). He recalled Mrs Passas addressing the meeting objecting to the presence of Messrs Balzola, Najjar and Henderson and arguing that the meeting should not proceed until they left the room (at [26]). He recalled some persons including Mr Tannous leaving the room before the meeting started, apparently for a conference (at [28]). He included Mr Balzola in that number. When they returned to the meeting room, Mr Tannous ruled that visitors could remain but should not sit at the main table where the electors were seated (at [29]). It is Mr Carrie’s recollection that it was Mrs Passas who asked everyone to turn off their mobile phones (at [30]), although other evidence indicates, as one might expect, that it was Mr Tannous in his capacity as Returning Officer who made that direction.

108. He did not pay much attention to the conversations because he was, I infer, concentrating on the business at hand. He heard someone say that Mr Balzola “can pull swifties” he is unable to say who (at [32]). He said the meeting was noisy and it was frequently difficult to make out what was being said in conversations with other persons (at [36]).

Cross-examination

109. In cross-examination Mr Carrie agreed that he admired, looked up to and was very loyal to Mrs Passas (252.25 - .34T), but he did not regard his loyalty as affecting his memory of what happened (252.38T).

The evidence of Cameron Walter

110. Mr Walter’s evidence in chief was given in his affidavit of 30 January 2019. He is a solicitor and the leading prosecutor for an important Federal Government Agency. He’s been a member of the Liberal Party since the age of 16. As at 2016 he was a foundational member and office holder of the Summer Hill Branch. He is currently a member of the Maroubra Branch. He has known Mrs Passas for 20 years since he joined the Summer Hill Branch and he met Mr Raciti when he subsequently joined the Summer Hill Branch. He was present at the AGM in his capacity as a delegate from the Summer Hill Branch. Prior to the meeting, he had not met Mr Balzola nor Mr Najjar. He had known Mr Henderson for about 12 years.

111. He estimates that about 30 to 35 people attended the AGM. He was seated about half way down the table to the right of the chair. Mrs Passas was sitting opposite and Mr Raciti was at the end of the table while presiding. He remained there after he relinquished the chair to Mr Tannous. Mr Balzola and Mr Henderson were seated to the left of the chair towards the back of the room.

246. I am not persuaded that there is much in Mrs Passas’s conduct which adds to the assessment of the extent of the injury to Mr Balzola’s feelings and reputation. I am not satisfied that she was motivated by any particular malice, other than the desire to discredit a political opponent who was enjoying success to her disadvantage. Again, this seems to be common enough among the political class. Moreover, as I have found, it was true Mrs Passas had “read it in the paper”. However, she converted what appears to be a conventional “fair report” of court proceedings into a defamatory statement. The report itself was only of the initial steps in a Local Court prosecution. And, in any event, her statement runs afoul of the principle discussed by Dixon J in Howden v “Truth” and “Sportsmen”. To the extent to which the statement was made for temporary political advantage, I will take Mrs Passas’s conduct into account as an aggravating factor sounding in damages, but not by much.

247. I do not regard the conduct by Mrs Passas of the proceedings as circumstances justifying aggravated compensatory damages. Both defendants sought a late amendment to raise the defence of justification, which attempt was disallowed by McCallum J. Obviously to the extent that this was attempted on Mr Raciti’s behalf there can be no increase in the damages. But her Honour refused the application to amend by applying the overriding purpose of civil litigation in as much as it was made late, the explanation for the delay was unsatisfactory and, if allowed, the amendment would only serve to complicate what otherwise appeared to be a simple case, which had already been fixed for trial.

248. I do not regard the cross-examination of Mr Balzola by Mr Kirby as being in any way unfair. It was in substance an appropriate testing of Mr Balzola’s evidence and its length was contributed to by Mr Balzola’s performance as a witness. In all respects, both counsel conducted the proceedings with an eye on the issues and with appropriate efficiency.

249. I have not forgotten the grapevine effect, which I accept can be difficult to measure. However, that difficulty itself requires restraint in assessment. As I have said there is no direct evidence of any ongoing reputational damage to Mr Balzola. I accept to a degree he continues to feel the sting of the insult. His reputation is to be vindicated, but the dominant compensatory principle is that established by s 34 of the Defamation Act, that the amount of damages is to be calculated for the purpose of ensuring an appropriate and rational relationship between the harm suffered and the damages awarded.

250. In fixing the amount I am about to award, I do not mean to trivialise the matter or to award merely nominal damages, imposing a Pyrrhic victory on Mr Balzola. However, I do not assess this case as sounding loudly in damages. In truth, the harm suffered was modest and allowing for vindication and a small degree of aggravation, as I have described, I assess Mr Balzola’s damages in the sum of $10,000.

251. Although there is some ongoing personal hurt felt by Mr Balzola, any injury to his reputation, on my assessment, was very short lived. Bearing these matters in mind, I accept Mr Rasmussan’s submission that the appropriate rate of interest under s 100 Civil Procedure Act 2005 (NSW) is 3.5 percent. For this purpose, I apportion $8,000 of the damages awarded to the past. Taking a broad brush, I allow interest for a period of 4 years and 4 months at that rate, in the sum of $1,213. The total damages then are $11,213.

252. I will provide the parties with the opportunity to make submissions on the appropriate costs order to be made in the circumstances.

Orders

256. My orders are:

1. Judgment for the plaintiff against the first defendant in the sum of $11,213;

2. Judgment for the second defendant against the plaintiff;

3. Direct the parties lodge written submissions not exceeding 3 pages in length with my chambers setting out the costs order for which he or she contends and the reasons why it should be made within 14 days with a view to the matter being determined in chambers on the papers without the need for any party to appear.

4. Reserve liberty to apply in respect of Order 3.

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Decision last updated: 31 July 2020