Bennette v Cohen - [2007] NSWSC 739

No judgment structure available for this case.

Reported Decision:
(2007) Aust Torts Reports 81-897

New South Wales

Supreme Court

CITATION: Bennette v Cohen [2007] NSWSC 739

HEARING DATE(S): 14 May 2007 to 1 June 2007

JUDGMENT DATE :
10 July 2007

JUDGMENT OF: Harrison J at 1

DECISION: Verdict for the defendant. Plaintiff to pay the defendant's costs.

CATCHWORDS: DEFAMATION – Defamation Act 1974 - words spoken at public meeting by parliamentarian about local developer – imputations that plaintiff was a thug and a bully and manipulated the system by bringing proceedings to stifle public protest – defences – substantial truth - common law qualified privilege – malice – comment of defendant - comments or statements of fact - proper material for comment - public interest - unlikelihood of harm - damages

LEGISLATION CITED: Defamation Act 1974 - ss 7A, 13, 15, 16, 30(3)(a), 32, 32(1), 32(2), 55(2)

CASES CITED: Adam v Ward [1917] AC 309
Bashford v Information Australia (Newsletter) Pty Limited (2004) 218 CLR 366
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183
Cole v Operative Plasterers' Federation (1927) 28 SR (NSW) 62
Green v Schneller [2000] NSWSC 548
Habib v Nationwide News Pty Limited [2007] NSWCA 91
Hanrahan v Ainsworth (1990) 22 NSWLR 73
Horrocks v Lowe [1975] AC 135
Hunt v Great Northern Railway Co [1891] 2 QB 189
John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164
Jones v Sutton (2004) 61 NSWLR 614
Markisic v Today-Denes [2005] NSWSC 1276
Morgan v John Fairfax & Sons Pty Ltd (1990) 20 NSWLR 511
Ohlstein v E & T Lloyd [2006] NSWCA 226
Perkins v New South Wales Aboriginal Land Council (Badgery-Parker J, 15 August 1997, unreported)
Praed v Graham (1889) 24 QBD 53
Pullman v Hill and Co Ltd [1891] 1 QB 524
Roberts v Bass (2002) 212 CLR 1
Sims v Wran [1984] 1 NSWLR 317
Sutherland v Stopes [1925] AC 47
Toogood v Spyring (1834) 1 Cr M & R 181
Uren v John Fairfax and Sons Pty Ltd (1967) 117 CLR 118
Watts v Times Newspapers Ltd [1997] QB 650

PARTIES: Jerry Lee Bennette (Plaintiff)
Ian Cohen (Defendant)

FILE NUMBER(S): SC 20985/2001

COUNSEL: B R McClintock SC with A T S Dawson (Plaintiff)
C A Evatt with J Rawlings (Defendant)

SOLICITORS: Banki Haddock Fiora (Plaintiff)
Carters Law Firm (Defendant)

- 104 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROGRESSIVE LIST

HARRISON J

10 July 2007

20985/2001 Jerry Lee Bennette v Ian Cohen

JUDGMENT

HIS HONOUR:

Introduction

1 The plaintiff is a local land developer in Suffolk Park on the north coast of New South Wales, just south of Byron Bay. The defendant is a prominent and well-known member of the Greens Party and a member of the New South Wales Legislative Council. The plaintiff commenced these proceedings in December 2001 alleging that he had been defamed by the defendant as a result of certain imputations arising from the matters complained of.

2 On 7 April 2001 at the Suffolk Park Hall, the defendant said the words attributed to him in Schedule A (“the first matter complained of”). On 19 May 2001, also at the Suffolk Park Hall, the defendant said the words attributed to him in Schedule B (“the second matter complained of”). On each occasion the defendant was addressing a public meeting or benefit concert that had been organised by supporters of Bill Mackay, a local environmental activist, in order to raise funds for his defence of defamation proceedings commenced against him by the plaintiff. The precise nature of these meetings, the number and make-up of persons present, and the precise reasons for the meetings, as well as the matters complained of, are all issues of some relevance to which it will be necessary in due course to return.

3 A trial pursuant to s 7A of the Defamation Act1974 (“the Act”) took place before Hulme J and a jury on 23, 24, 25, 26, 27 and 30 August 2004.

4 The jury found that the plaintiff had established that the first matter complained of conveyed the following defamatory imputations:

5 The jury found that the plaintiff had established that the second matter complained of conveyed the following defamatory imputations:

6 The matter came before the Court on 14 May 2007 for consideration of the defences raised and, if appropriate, for the assessment of damages. It proceeded for a total of 15 days concluding on 1 June 2007.

7 The factual background to the events giving rise to the matters complained of is relatively long and involved. It includes matters that occurred during a period spanning more than two decades, which are of varying degrees of significance and relevance. Having regard to the particular circumstances of this case, it is necessary to explore that background in some detail. As will emerge, many events arise in more than one context.

Factual background

8 The plaintiff was born in the United States of America in 1945. He emigrated to Australia in 1971. He married his wife Jillian Bennette in September of the same year. They moved to the Byron Bay area in 1974. They purchased a small farm at Newrybar south of Bangalow. On that property, over a period of 14 years, the plaintiff and his wife built a four-bedroom house, farm sheds, ancillary sheds, removed noxious plants, and planted a mini rainforest and over 2000 waratahs and native trees. The plaintiff also worked as a casual and part-time teacher in the local area.

9 In late 1979 the plaintiff set up a landscaping business specialising in native landscapes. That business was based on the property. The plaintiff did that work until 1981. The plaintiff sold the property in 1988. The plaintiff said that after almost 14 years it was time to move on. In 1988 the plaintiff purchased an eight hectare property at Suffolk Park. Suffolk Park is a short distance south of Byron Bay. The plaintiff’s Suffolk Park property, and the work performed by him over many years developing it, is central to the issues in this case.

10 The property was zoned by the Byron Shire Council as Residential 2A. The plaintiff said that it had formerly been a farming property until the 1960s when it was rezoned. By the time the plaintiff purchased the property it was overgrown with weeds, which he later removed.

11 The plaintiff's Suffolk Park land is situated a short distance from the coast. From photographs tendered in evidence it is clear that other residential subdivisions have taken place in the area, particularly to the east and southeast. The plaintiff's land is effectively sandwiched between this development and what appears to be virgin bushland to the west and northwest. Aerial photographs taken of the property in 1992 make this clear.

12 When the plaintiff purchased the Suffolk Park land a watercourse effectively bisected it that the plaintiff described as nothing more than a shallow, weed infested ditch. It was man-made with battered sides. He made the decision to relocate it. He took advice before doing so. The plaintiff said that he engaged a very experienced hydrological engineer and consulted with a local environmental group. He took advice from Bill Mollinson, who he described as one of the founders of permaculture in Australia. The plaintiff said that he wanted the construction and maintenance of the watercourse to be as little a burden on the community as possible. He sought advice on correct native plantings so that the creek would be essentially self-maintaining.

13 The plaintiff and his wife became members of the Ballina Environment Centre and the Suffolk Park Progress Association. He became a member of the Byron Shire Waste Water Management Committee. He removed noxious weeds using a bulldozer in accordance with weed notices issued by the council.

14 The plaintiff said he lodged a development application with the council in approximately October 1989. That was for a first stage of 25 lots but it provided for an overall development concept for the whole property. Most of the issues relating to this development application were worked out between the plaintiff, his consultants and council officers. Problems arose in relation to the creek.

15 The plaintiff said that the engineering department of the council at that time wanted to enclose the creek within a pipe. The plaintiff thought that this would not work from an engineering standpoint and, more significantly, was concerned with the aesthetics of his overall concept of creating a natural watercourse through the land that would attract wildlife and enhance the development. The council rejected the plaintiff’s original design for the creek. The plaintiff redesigned the creek and appealed to the Land and Environment Court. The matter was mediated and the plaintiff’s redesign was approved. That was in April 1992. A construction certificate was issued in December 1992.

16 Between 1988 and 1992 the plaintiff had found the council increasingly difficult to deal with. These difficulties are referred to in great detail in a Special Investigation Report dated August 1993 issued under s 433 of the Local Government Act 1993. The investigation related to the Byron Shire Council and was initiated in November 1991 in response to a number of allegations about the conduct of the council and certain council officers, especially in relation to planning matters. A significant portion of that report (Part 4, consisting of 48 pages) is entirely devoted to what is described as “The Bennette Case”. It deals in some detail with the plaintiff, his development of the Suffolk Park land and the stormy relationship that developed between him and the council and members of its staff.

17 The introduction to Part 4 records that the plaintiff had expressed considerable frustration and anger about the way in which the council, and in particular council staff, had dealt with several of his development applications and s 102 applications for amendments to development consents. The plaintiff complained about their unresponsiveness to his attempts to obtain information and clarification, and their changing requirements. In addition, the plaintiff alleged that further delays had resulted from disputes with, and mismanagement and misinformation on the part of, council staff in relation to matters such as engineering requirements and the release of linen plans. The report recorded that the plaintiff believed that this conduct on the part of council staff was a deliberate strategy of discrimination against him, aimed at causing him severe financial losses.

18 It is clear from the terms of the report that, at the very least, the plaintiff had become frustrated in the course of his dealings with the council in relation to his land, and suspicious that he was being singled out unfairly and inappropriately for special treatment. It seems clear that the plaintiff reacted angrily to this treatment. The defendant seeks to rely upon matters that are recorded in this report in his defence of the plaintiff's claim. It will be necessary to return to this report in more detail below.

19 Following the production of that report, the Byron Shire Council published apologies to the Bennette family in The Weekend Australian and The Northern Star on 17 December 1994. The council unreservedly apologised for what was described as “any harm or embarrassment caused to them by actions of former staff members of the council between 1989 and 1994”. The apologies went on to record regret “that the Bennette family suffered upset and hardship”. The apologies were signed by Max Eastcott, General Manager, and Ian Kingston, Mayor.

20 In due course the plaintiff developed Tallow Creek along the northwestern boundary of his land. The plaintiff and his family did much of the work themselves. The plaintiff carried out considerable work redirecting the creek, beautifying it, and restoring it to a healthy, natural watercourse.

21 They planted 15,000 native plants and trees along the banks of the creek and created what appears now to be a natural watercourse with structures created from rocks and other natural materials. A photograph tendered in evidence by the plaintiff taken in approximately 1998 depicts the creek in its finished state. It appears to be very beautiful and aesthetically pleasing. Other photographs confirm this. The creek now belongs to the Byron Shire Council as a result of a dedication required as a condition of development approval.

22 Stage one consisted of development approval for only 25 residential lots. This covered about two hectares out of a total area of eight hectares. The plaintiff submitted a second development application in 1991 for filling of the land. The plaintiff said that he carried out filling works upon the land in accordance with his development approval as an ongoing process from about 1993.

23 The plaintiff continued to develop his Suffolk Park land. In May 1996 he lodged a further development application with the Byron Shire Council seeking approval for the construction of 65 townhouses on 12 freehold lots. The plaintiff said that he spent about two years working with his consultants and with the council to ensure that the final overall development and layout was right. It went through some amendments. It was advertised at the end of 1996. The council refused this. In October 1996 the plaintiff lodged an amended development application. The council did not deal with this within the time required and the plaintiff filed an application in the Land and Environment Court upon the basis of this deemed refusal. In June 1997 the council staff recommended approval but on 10 June 1997 the council formally refused the development application. A notice of determination was issued on 18 June 1997.

24 The plaintiff appealed to the Land and Environment Court. A hearing of the plaintiff’s appeal to the Land and Environment Court against the council's refusal of his development application was listed in November 1999. The plaintiff ultimately withdrew that appeal in early 2000. In the meantime, in December 1999, the plaintiff had lodged a fresh development application for the same parcel of land reducing the number of dwellings from 65 to 40. The council again refused, or neglected to assess, that application within the statutory period and the plaintiff once again appealed to the Land and Environment Court. That appeal was upheld on 26 April 2001. Development subsequently proceeded on the land in accordance with that development consent. That work has now been completed.

The Bradbury incident

25 On 4 June 1996 the plaintiff's development application DA 96/191 came before the council. A Mr David Bradbury had been given permission to film the council proceedings. He was unaccompanied. The council meeting took place at night. The plaintiff said he observed Mr Bradbury to be wandering around during the proceedings filming the council members but also stopping close to people in the gallery and putting his camera close to their faces. During an adjournment in the proceedings the public gallery was cleared. An incident then occurred involving Mr Bradbury, councillor Tucker, the plaintiff and his wife.

26 The plaintiff said that he and his wife were packing up to leave. He observed Mr Bradbury filming councillor Tucker as he walked away from his chair towards the back door. Mr Bradbury had his camera “right in Mr Tucker's face”. An altercation ensued when councillor Tucker attempted to move Mr Bradbury's camera away from his face. The plaintiff said that Mr Bradbury “went to take a swing” at councillor Tucker with his free hand, in the course of which he struck the plaintiff's wife a blow to the side of her head and she fell to the floor unconscious. The plaintiff said he had “extreme concerns”. He said his first thought was to get his wife out of danger. He said he leaped and tackled Mr Bradbury, calling him “a mother fucker”. As a result of this incident, the plaintiff was charged with assault and using offensive language. He was convicted.

27 The plaintiff appealed to the District Court against his conviction and sentence. In reducing the fine from $750 to $100, the Chief Judge, Justice Blanch, made the following remarks: -

“A reading of the evidence very clearly indicates that Mr Bennette was in fact guilty of assault and an assault which lasted over a period of time and which was, in fact, responsible for quite a fracas occurring in the Byron Bay Council Chambers. Now of course that sort of conduct is a serious breach of the law in the context of our democratic institutions and it has to be viewed seriously.

There were in fact three offences committed arising out of the same sequence of events, one of them being maliciously damaging property for which he did receive a 556A having paid over $3000 damages. A second offence of offensive language and a further offence, the assault that I am referring to.

The magistrate, in analysing the case, dealt with it on the basis that he was not certain that Mr Bennette could control his temper. I see nothing in Mr Bennette's antecedents which would lead me to worry about the fact that he would commit any further offences and it is clear from the facts of this particular case that there was a degree of provocation so far as Mr Bennette was concerned …

Even accepting that it is totally out of character for him to have done so, the fact remains that there are three offences committed and even though they were committed at the same time they are serious offences for the reasons that I have given in the context of a council meeting.

He is a person without any prior convictions, with a long-standing marriage, a wife to whom he is obviously devoted and that accounts for the degree of annoyance that he felt on the night. He is a person who has been actively involved in the community's affairs, he takes part in surfing, he has taught in the area over a period of time and the evidence is that he has already suffered locally as a result of what has occurred.

He now acknowledges the wrongfulness of his actions and it is to his credit that he does that but it also should be borne in mind that the evidence of his guilt in respect of these matters is absolutely overwhelming and it would be extremely difficult for him to assert otherwise …

The Rivercare 2000 Gold Award

28 The plaintiff said that from 1993 to 1998 and beyond he had maintained Tallow Creek at no cost to the council “because we were so proud of it”. The plaintiff said that he spent approximately $35,000 of his own money up to 1998 maintaining mainly the eastern side of the creek. This included extra plantings and maintaining the public walkway.

29 In early 1998 the plaintiff saw a newspaper advertisement asking for people to become accredited for the work that they were doing on rivers, creeks and streams. The plaintiff applied for accreditation and the Department of Land and Water Conservation subsequently inspected Tallow Creek. Some months later the plaintiff received a call and was asked if he would show Tallow Creek to Rivercare Committee members. Subsequently, two people came up from Sydney and the plaintiff took them through the creek and showed them his development. In about November 1998 the plaintiff was notified that he was a finalist in the Rivercare Awards for 1998. An awards ceremony subsequently took place in Sydney at which the plaintiff and his family received a gold award.

30 News of this award appeared prominently in newspapers circulating in the Byron Bay area. Articles referred to Tallow Creek and to the plaintiff's development of his Suffolk Park land. Councillor Tucker moved a motion at the Byron Shire Council meeting on 8 December 1998 that the plaintiff and his family be acknowledged and congratulated for the Rivercare Award and for doing something for the community. A debate followed.

31 The plaintiff said the debate continued for about 45 minutes. Councillor Tucker spoke in favour of his motion. Others - which the plaintiff identified as the Greens on council - spoke strongly against the motion. A videotape recording of the proceedings, and of the debate, was tendered in evidence. The motion was lost. It became clear that the council was divided into at least two groups, one of which favoured, and one of which opposed, the plaintiff's development of his Suffolk Park land, if not the plaintiff himself. The plaintiff showed the council what he thought of their decision following the meeting by giving a Nazi salute and shouting “Seig Heil”. In the way of things, that controversy has spilled over into these proceedings. It will be necessary to return to this issue as well.

William (“Bill”) Mackay

32 The plaintiff first met Bill Mackay in about 1995 or 1996 when they were both teachers at Alstonville High School. The plaintiff was a casual teacher. The plaintiff said he had read about Mr Mackay in the Byron Shire Echo and that he had run (unsuccessfully) for council and was a member of the Suffolk Park Progress Association. The plaintiff said that Mr Mackay was one of a number of Greens who ran for council together with Jenny Coman. The plaintiff recalled that Mr Mackay was present at the council meeting on 8 December 1998 and also at the hearing before the magistrate when the plaintiff was dealt with for the Bradbury incident. According to the plaintiff, the defendant, Jan Barham, Ms Coman, Mr Hoskins and Mr Evans were also present.

33 On 15 December 1998, Bill Mackay published a letter in the Byron Shire Echo. Bill Mackay was still a local schoolteacher and had been the secretary of the Suffolk Park Progress Association during the 1990s. At one time the plaintiff had been a member of this association. It consistently opposed almost all or any development of the plaintiff's land. It would appear to have been closely and sympathetically associated with Green councillors on the Byron Shire Council.

34 Mr Mackay’s letter was in the following terms: -

“I was shocked to read last week that Jerry and Jillian Bennette had received a Rivercare 2000 gold award for the “restoration” of Tallow Creek. This award can only cast serious doubt on the merit of Rivercare 2000 activities across NSW.

It is true that the Bennettes planted thousands of seedlings but this was a considerable time after large stands of mature eucalyptus and paperbarks were clear felled and burnt.

Topographical maps show that the Bennette’s subdivision was a floodplain. Indeed, in the early 1980s, I walked through crystal-clear ankle-deep water that flowed over the entire basin. This wetland acted as a natural filter. The “restoration” of the creek meant dredging a channel which drained the wetland and provided fill where Jerry built his subdivision.

Stormwater and road run-off is channelled directly into the creek and the water is decidedly smelly and certainly not clear. More housing development on the west side of Suffolk Park has placed an extra load on the creek.

Local residents further downstream report that the water levels are the highest ever and express concern about the numbers of mosquitoes this season.

35 On 18 December 1998, the plaintiff's then solicitors wrote to Mr Mackay alleging that his letter was defamatory of the plaintiff. They demanded that Mr Mackay withdraw his statements and print an apology. They said they had instructions from the plaintiff that he would consider commencing defamation proceedings against Mr Mackay if he did not do so.

36 The plaintiff was asked whether Mr Mackay’s letter had any impact upon him when he read it. He said it did. He said the letter “was complete lies”. The plaintiff proceeded to give detailed evidence in support of that contention. I am satisfied upon the basis of that evidence that Mr Mackay's letter was erroneous to the extent that it stated or suggested that large stands of mature eucalyptus and paper barks were clear felled by the plaintiff, or that the plaintiff’s Suffolk Park land had been a wetland. I am also satisfied that stormwater and road run-off was not channelled directly into Tallow Creek and that it was not smelly or unclear. Far from placing an extra load on the creek, the plaintiff said that the council had acknowledged that the building of the creek had decreased any potential flooding problems on the western side of Broken Head Road.

37 Mr Mackay wrote another letter to the Byron Shire Echo that was published on 18 January 2000. It appeared under the (presumably editorial) heading “Dodgy award”. It was in the following terms: -

“Actions speak louder than words and developer Jerry Bennette's actions in Suffolk Park prove that his Rivercare 2000 award is not worth the paper it's written on. Despite having no approval to build, last week truckloads of fill were dumped on a site that once was a natural wetland. Thumbing his nose at Council officers, he continued bulldozing disregarding a stop work notice.

The National Parks and Wildlife Service are concerned at the destruction of the habitat of endangered species.

It turns out that the Bennettes nominated themselves for the Rivercare 2000 award. A government officer from Grafton inspected the site. Information was provided by the Bennettes with no input from local residents, no checking of historical records and no examination of the total ecology of Tallow Creek.

The developer has shown his disregard for the public interest. His most recent DA was unveiled just before Christmas and incorrectly advertised. Was this a cynical attempt to avoid public scrutiny?

Residents are also wondering if the recent works are timed to coincide with a hearing in the Land and Environment Court to be held in Byron Bay later this month. The Bennettes are attempting to get approval to build 65 units on the same site.

38 The plaintiff gave instructions to his solicitors, after this letter had been published, to commence defamation proceedings against Mr Mackay. Those proceedings were ultimately resolved some time after the publication of the matters complained of in the present proceedings. Mr Mackay consented to a verdict against him for $20,000, agreed to donate $1000 to a nominated charity, undertook not to make public statements about the plaintiff and promised to publish an apology in three local papers. The defendant relies upon the terms of settlement of those proceedings as part of his defence of the plaintiff's claim, and it will be necessary to return to the terms of settlement in more detail later. However, the terms of Mr Mackay's apology are instructive and, relevantly, are as follows: -

“I now wish to apologise to both Mr and Mrs Bennette. My letter was rude, ill informed and I acknowledge that it caused Mr and Mrs Bennette considerable hurt and injured their feelings.

I also acknowledge that I made several errors of fact in my letter.

39 The defamation proceedings commenced by Mr Mackay against the plaintiff were dismissed by consent in March 2005. No other orders were made at that time.

The 6 January 2000 site meeting and stop work order

40 Since approximately September 1999, the plaintiff had been busily engaged undertaking extensive filling works upon his land in accordance with approvals previously granted by the Byron Shire Council. David Milledge had been engaged by the council at about this time as an expert witness in the plaintiff's appeal against the council's deemed refusal of his development application. Mr Milledge was an expert in native fauna. Mr Milledge inspected the plaintiff's land in that capacity on 11 October 1999 when the filling works were in progress. He inspected the plaintiff's land again between 13 and 15 December 1999. On 14 December 1999 Mr Milledge reported that he had found a rare Mitchell snail on part of the plaintiff's land. Mr Milledge prepared an Interim Report to council on 24 December 1999. The plaintiff continued with filling works upon his land during December 1999 and January 2000.

41 In September 1999 Jan Barham had been elected to the Byron Shire Council. Ms Barham was a member of the Greens Party. She was a close friend of the defendant. In October 1999 Ms Barham made an enquiry of the council planning staff about the filling works being carried on by the plaintiff.

42 On 6 January 2000 someone from the Byron Shire Council had telephoned the plaintiff's wife informing her that the council wanted to inspect the plaintiff's works on the Suffolk Park land the following morning at 9.30. In the events that occurred, the meeting was postponed until 11.30am. The council officers present at the meeting were Mr Bob Hanby, an engineering officer; Miss Kate Singleton, a planner; and Mr Paul Montgomery, who was in the planning department. Also present was Mr David Milledge, to whom reference has already been made. Councillor Barham was present as well.

43 The council officers asked to inspect the land. The plaintiff asked them what development application they were dealing with and they said specifically DA 96/191. Councillor Barham asked the plaintiff if she could enter the land with Mr Milledge and the plaintiff refused. The plaintiff said he did this because neither had any right to come onto the land and, in his words, “they had no interest in being there anyway”.

44 According to the plaintiff, councillor Barham became very heated and demanded that she be able to enter the site. Thereafter, the council officers entered the site and carried out an inspection. A videotape of some of the events that occurred on the occasion of this inspection became an exhibit in these proceedings.

45 At some point later in the day the defendant came to the site. The plaintiff was not present at this time.

46 There was a further visit by council officers on 7 January 2000. One of the planning managers, Mr Peter Fryer and the council environment officer Mr Joe Hogan, attended the site. Mr Fryer had attempted to serve the plaintiff with a stop work notice, which the plaintiff refused to accept. The plaintiff said, “you will have to serve this on my lawyers.”

47 Mr Hogan then told the plaintiff that the council had received a complaint from the EPA regarding the soil on his property. He asked the plaintiff if he could inspect the sedimentation pond. The plaintiff gave him permission to inspect it.

48 The plaintiff then asked Mr Hogan how the complaint to the EPA had come about. Mr Hogan said, “I can't tell you” but at the same time he turned his clipboard around and on the top sheet were words that said, in effect, “Bennette, EPA complaint, Cohen”.

49 On 8 January 2000 the defendant again visited the plaintiff’s land.

50 Between 7 and 18 January 2000, following the receipt of legal advice, the plaintiff ignored the stop work notice and continued to carry out filling works on his land.

51 On 16 January 2000 the Suffolk Park Progress Association held an Extraordinary Meeting at the Suffolk Park Hall. The plaintiff was informed that the defendant was present at the meeting, along with councillors Barham and Coman. Following that meeting the Byron Shire Council commenced proceedings against the plaintiff in the Land and Environment Court seeking an injunction to restrain work on the site. Mr Milledge swore an affidavit on 22 March 2000 for use in those proceedings. Mr Milledge deposed to the presence on the land of what may be described as important threatened species of native fauna.

52 Also on 18 January 2000, the Byron Shire Council commenced Class 4 proceedings in the Land and Environment Court against the plaintiff in respect of his failure to comply with the stop work notice that had been issued. These proceedings came before the court for hearing on 23 March 2000. Orders were made by consent dismissing the proceedings and ordering the council to pay the plaintiff's costs agreed in the sum of $10,000. The council offered no evidence to the court in support of its application.

The Cohen AVO

53 During this period, on 8 January 2000, the plaintiff saw the defendant. The plaintiff was on his neighbour’s property and it was smoko. The plaintiff said that he was sitting on the back of his station wagon having a cup of tea when he saw the defendant drive up to a house in the same street, get out of his vehicle and go inside the house. The next relevant thing that the plaintiff noticed was the defendant marching up at what he described as “a radical pace”, and onto the property. The plaintiff said, “Ian, this is private property”. The defendant replied, “So what?”

54 After some further conversation the plaintiff said the defendant called him a thug and a mongrel and said, “Go back to America, you scum”. The defendant then said, “I'm going to get my lawyers onto you”, or something to that effect. The plaintiff said that the defendant called him a thug and a mongrel more than once, possibly three or four times. The plaintiff said that the defendant “was very agitated and angry” when he said these things. The plaintiff called the police who suggested that he apply for an apprehended violence order against the defendant. That is what he did.

55 On 11 January 2000, the front page of the Byron Shire Echo reported that the apprehended violence order proceedings were to be heard on 20 January 2000. Sometime thereafter, although the evidence does not disclose precisely when, the defendant issued a media release about the proceedings. It was in the following terms: -

“Bennette ordered to Pay

As a consequence of the failed Apprehended Violence Order taken out by Gerry [sic] Bennette against Ian Cohen MLC Mr Bennette has been directed by the court to pay costs.

‘My defence has been vindicated. It is gratifying to see the court throw out this baseless summons against me. The fact that there is an order for costs is a further indication that this whole exercise has been tainted as a means to attack a public figure somewhat vulnerable as an elected representative.’ Ian Cohen MLC said.

‘It surely raises the question. Was the plaintiff in any way in fear or using the legal system for a political vendetta?’ The Greens MLC asked.

‘While I am pleased the court has awarded costs against Mr Bennette, more importantly this will serve to discourage frivolous exercises taking up valuable time of the court and leave more room for cases which the Apprehended Violence Orders are properly designed for, to protect people in real fear of violence.’ Ian Cohen said.

‘This process has seen both sides engage legal counsel. It is an expense that I am fortunately able to afford. People who stand up for social and environmental causes are often faced with litigation of some description to stop the protest.

‘I have earmarked money to be saved with the award of costs to contribute to local court cases where members of the community are threatened by legal action. This all too frequently occurs against anyone of a cabal [sic] powerful and wealthy developers.

I hope others in our progressive community who benefit greatly from the tireless efforts of volunteers to save our environment and social amenity will support this initiative.' Ian Cohen said.

The Evans incident

56 Mr Ian Evans lived in Kalamajere Drive, Suffolk Park, which was adjacent to the plaintiff's development. On 18 January 2000, Mr Evans entered the plaintiff's land and, according to the plaintiff, walked at least 10 to 20 metres inside the land and past a prominent sign warning trespassers to keep out. A videotape of part of this incident was tendered in evidence before me. The plaintiff gave evidence that Mr Evans was asked by security guards to leave the property and that he refused. The videotape, on the contrary, appears to show that Mr Evans had an apparently amicable conversation with someone who was presumably a security officer. Following this he left the property, speaking into the camera as he did so, saying words to the effect “I'll see you in court”. Mr Evans was subsequently charged with trespass to the plaintiff's land.

The Kennedy incident

57 Two days later, on 20 January 2000, the plaintiff was on his land when he heard some shouting and foul language being used. He saw a man who he recognised as Mr Kennedy. Mr Kennedy kept swearing and calling him a Yank and saying things like “go back to America”. Mr Kennedy then said to the plaintiff, “I'm going to come over and belt the shit out of you”. Mr Kennedy then came onto the plaintiff's land and was warned by the plaintiff to leave immediately or he would call the police. Mr Kennedy then punched the plaintiff whereupon the plaintiff grabbed Mr Kennedy, threw him to the ground and sat on him until such time as the police arrived. Mr Kennedy was subsequently charged and convicted following a plea of guilty to assault upon the plaintiff. The plaintiff gave evidence in those proceedings.

58 The defendant relied upon this incident as evidence of the truth of some of the imputations. It was also referred to by the defendant in the New South Wales Legislative Council on 13 October 2000 during a debate upon the Home Invasion (Occupants Protection) Bill. On 3 October 2001 plaintiff wrote to the President of the Legislative Council complaining about the defendant's comments. In that letter he said, among other things, that the defendant's statements in Parliament “adversely affected [his] reputation in respect of dealings or associations with others” and “caused injury in [his] credit, character, reputation and profession”. The matter was referred to the Standing Committee on Parliamentary Privilege and Ethics, which recommended that the plaintiff's response to the defendant’s remarks be incorporated in Hansard.

The first matter complained of

59 Mr Mackay’s Statement of Claim alleging that the plaintiff had defamed him was issued on 2 April 2001. Shortly before 7 April 2001, the plaintiff learned of a meeting, scheduled for that date, in the Suffolk Park Community Hall. The plaintiff said that he became aware of the proposed meeting from public posters on the community noticeboards in the shopping centre and at the Suffolk Park Community Centre. The plaintiff said that he took steps to have his lawyers notify Mr Mackay that he was fearful or concerned that he may be further defamed at the meeting and to ask Mr Mackay to stop it. That included a letter dated 3 April 2001 from the plaintiff's solicitors to Mr Mackay's solicitors to which later reference is made.

60 The plaintiff made arrangements for a private investigator to attend the first meeting and secretly to record what occurred on tape. A transcription of the recording is the first matter complained of. The plaintiff first learnt of what the defendant had said about him at the meeting when he read that transcript.

61 His counsel asked the plaintiff what stood out in his memory from the time when he read it. The plaintiff said it was that “I was a thug and a bully and an environmental vandal and a whole lot of untruthful things and I could not fathom why any person that I'd only met a few times before and a parliamentarian could say those things about me”. The plaintiff said he read the words “these really ugly individuals” as a reference to him. The plaintiff said he knew it was a reference to his personality. He said, “it's inaccurate”.

62 In response to further questions the plaintiff went on to say that the words he read hurt him very much because he had done so much work to make the environment beautiful. The words “environmental vandalism” and “working illegally” hurt him immensely and it saddened him that a person of the defendant's status as an MLC would say such things when they were completely false. The defendant's use of words like thug and bully also hurt the plaintiff. He felt the defendant was a person of some status in the community who was using his position to turn the community against him. The plaintiff denied that he was a thug or a bully.

63 The plaintiff also denied that his purpose in bringing either the present proceedings, or the proceedings against Mr Mackay, was to stifle public protest. The plaintiff said, “Proper criticism of the way I conduct my development business is always welcome”.

The second matter complained of

64 Another meeting was held at the same venue on 19 May 2001. The plaintiff arranged secretly to record what took place at that meeting as well. The plaintiff was taken to the terms of a transcript of the recording. The plaintiff said, “I came to the conclusion that as [the defendant] not only said these things about me once but twice he would do anything in his power to destroy my business, my family and myself”. The plaintiff said that he “was deeply saddened”. He said he “felt extremely hurt that [the defendant] would say these things in a small community, which spread like wildfire, and especially in a community where I had my business and conducted my business”.

Post-publication incidents

65 The plaintiff said that from time to time after these two meetings, people had spoken to him in such a way as to indicate that they were aware of what the defendant had said about him. For example, a barrister who he had previously retained and who lived in Suffolk Park mentioned one of the benefit concerts to him and told the plaintiff that he had heard that derogatory things had been said about him, including that he was an environmental vandal, had ripped off the community and that he was a thug and a bully. Following that the plaintiff asked the barrister to act for him in another matter but the barrister declined to do so. The explanation he gave was, “I live in Suffolk Park”.

66 There was an incident in June 2001. The plaintiff said that he had some very good friends in Lennox Head who were managers of a surf shop in Ballina. On one occasion Ian Evans’ wife came into the shop and said, “How can you stand living next to the Bennettes? They are terrible, bad people”. Mr Bennette felt that these comments were part of a campaign against him, which was no longer confined to Suffolk Park. The plaintiff did not deal in his evidence in chief with the possible connection between the comments made by Mrs Evans on this occasion and the fact that the plaintiff had had her husband arrested for trespass in the recent past.

67 Again, sometime in 2001, the plaintiff said that he was working on his land when a woman walked by with her Golden Retriever. When he patted the dog the woman asked him what he was doing. He identified himself. The woman said, “You're not a very nice man. You are the bad developer that destroys the environment.”

68 On another occasion in 2002 the plaintiff was working on the land when a woman came out from a nearby house and said words to the effect, “You don't belong in Suffolk Park. Go back to America. You don't know what's in store for you”. The plaintiff said that these words hurt him deeply.

69 On yet another occasion, a neighbour informed the plaintiff that his wife had attended at least one of the meetings and that she had told him that the defendant had said “some very, very nasty things” about the plaintiff. Following what the defendant had said at the meetings, the neighbour's wife would not speak to the plaintiff and he was no longer invited to their house.

70 There was also a vet who had previously looked after the plaintiff's pets. Before the matters complained of he was friendly and courteous. The plaintiff said, “After the meeting he didn't even give me a nod”.

71 Similarly, a lawyer who had acted for the plaintiff in the early nineties ignored him after the meetings. The plaintiff was also told second-hand that people had been overheard talking about him, saying that he had destroyed the environment and that it was not good for Byron Bay. This was in mid-2002.

The Robertson incidents – January 2004

72 Paul Robertson lived on the beachfront at Lennox Head. He was the plaintiff's neighbour. The plaintiff and his wife had a friendly relationship with Mr Robertson and his wife until September 1999 when the relationship soured. The plaintiff said that this occurred because Mr Robertson put his house up for auction and when the house failed to reach the reserve Mr Robertson apparently blamed the plaintiff because construction work on the plaintiff's house was being carried on at that time.

73 The plaintiff said that in October 1999 Mr Robertson stalked his wife and yelled and stared at her while she was hanging clothes out on the line. The following day Mr Robertson trespassed on the plaintiff's property, walking around on it, lying down in front of it and summoning rangers to complain that works being carried out by the plaintiff on his house were illegal. On another occasion the plaintiff said Mr Robertson drove his car out of his driveway across the plaintiff's lawn just missing the plaintiff. He then drove down the end of the block, came back and parked his car, blocking the plaintiff's driveway. When the plaintiff asked him to move his car, Mr Robertson said, “You people got chased out of Suffolk Park, you’re going to get chased out of Lennox Head”.

74 The plaintiff complained that Mr Robertson continued to say things like this about him. On three occasions over a period of three years the plaintiff applied for an apprehended violence order against Mr Robertson. The last of these related to an incident that took place on 5 January 2004. The plaintiff said that on the previous day, a Sunday, he was riding his bike outside of Lennox Head and Mr Robertson saw him. Mr Robertson was driving his car at the time and doubled back to drive past the plaintiff. He made a sign with his hand like a gun as if to shoot the plaintiff. Then, that afternoon, the plaintiff and his wife were out walking when Mr Robertson’s dog attacked them.

75 On 5 January 2004 the plaintiff was again riding his bike when Mr Robertson, who was driving his car in the other direction, swerved as if to run the plaintiff over. The plaintiff had to get off his bike. Mr Robertson then parked his car on the verge out the front of the plaintiff's house. The plaintiff rode his bike back to the car. The plaintiff said, “When are you going to stop harassing us?” Mr Robertson replied, “When you move out of Lennox Head”. Mr Robertson went on to say, “You're a criminal. You are nothing but a fucking goose. You and your wife don't belong here”.

76 The plaintiff said that Mr Robertson was very agitated and he became afraid that Mr Robertson was going to assault him, so he put the wheel of his bicycle up against the driver's door. Mr Robertson kept demanding that he be permitted to get out of his car. Finally Mr Robertson crawled out on the other side of his car. The plaintiff said that Mr Robertson came around to his side of the car, hit him a couple of times on the back of the head and pulled his bicycle from underneath him. The plaintiff got up and said, “I have to defend myself” and they wrestled to the ground. The plaintiff grabbed Mr Robertson so that he could not strike him again. Mr Robertson then stuck his hand in the plaintiff's mouth as if to rip his jaw open. The plaintiff said that at no time did he strike Mr Robertson. The plaintiff said he was only trying to hold on to him so that he wouldn't strike him again, and to get his hand out of his mouth. The plaintiff said that Mr Robertson started yelling, “I’m dying, I'm dying”. At that point, a witness from across the road came over and said, “Jerry, I saw the whole thing. My mother is calling the police”. The plaintiff's wife then came over and said, “Get off him.”

77 The police came. The plaintiff applied for an apprehended violence order against Mr Robertson as a result of this incident. No police prosecution was commenced against Mr Robertson. The plaintiff said that he suffered a permanent injury to his jaw and other injuries for which he obtained medical treatment from his local doctor.

78 The following day, 6 January 2004, the plaintiff heard Mr Robertson drive down the street and return to his premises about 30 seconds later. The plaintiff got up about 15 or 20 minutes after that and went outside to see his garbage strewn all over the street with rubbish everywhere. The plaintiff was unable to say that Mr Robertson was responsible for what he saw.

79 The plaintiff commenced proceedings against Mr Robertson for assault in the District Court of New South Wales for what occurred on 5 January 2004. The plaintiff said that his witness did not turn up at the hearing and so his case was dismissed.

The plaintiff's witnesses

80 Lukas Van Zwieten is a senior research scientist with the New South Wales Department of Primary Industry, with a PhD in environmental chemistry. He is also the club captain of the Lennox Head/Alstonville Surf Lifesaving Club. He said he first came to know the plaintiff in 2000. He said that the plaintiff joined the club at about that time and came with a wealth of experience as a surf lifesaver and a good reputation. His reputation was that of a solid citizen and as an excellent lifesaver with medallions from overseas for heroic efforts. He developed a reputation as a philanthropist within the club. He donated a rescue boat, which was a crucial piece of equipment that had helped the club out immensely.

81 Mr Van Zwieten said that the club would not be receptive to having a bully within its membership. He agreed in cross examination, however, that he did not believe that the plaintiff was a thug or a bully but instead regarded him as a man of high reputation. He said he had lived in the area since 1995 and no one had ever said to him that the plaintiff was a thug or a bully. He said he knew of nothing to besmirch the plaintiff's reputation.

82 Robert Hanby is a senior development engineer with Tweed Shire Council. He commenced employment with the Byron Shire Council in late 1999 and resigned in December 2001. He gave evidence, principally, about the inspection of the plaintiff's land on 6 January 2000 and about the legality, or otherwise, of the stop work notice that issued a short time thereafter.

83 It seems fairly clear that the stop work order issued by the council was invalid. This is apparent if only from the fact that the Byron Shire Council agreed to settle the proceedings on terms that effectively conceded this very fact. It is therefore unnecessary to have regard to the evidence of Mr Hanby to find any further support for that conclusion.

84 Ross Tucker was a retired lieutenant colonel in the Australian Army who was first elected as a councillor of the Byron Shire in 1991. He has been a member of the council since that time and is currently the Deputy Mayor. He is the proprietor of the Saturday Star, a newspaper circulating in the Byron Bay area. Mr Tucker was the councillor who moved the resolution before the council in 1998 that the plaintiff and his family be congratulated for the Rivercare 2000 Gold Award.

85 Mr Tucker gave evidence about the plaintiff's reputation. He said generally he was a man who was very thorough in his work and his dealings. He described the plaintiff as a very fair man with a reputation amongst subcontractors who would work for him as being reasonable. He paid his workers promptly and gave clear and concise directions about the work he wanted done. More widely Mr Tucker said that the plaintiff had a reputation as a developer of land in Suffolk Park and that he was a good developer. His reputation concerning the environment was that of a hard worker, a reputation gained from planting thousands of trees in the Suffolk Park area. Mr Tucker said that the plaintiff had converted what was essentially a bad town drain that became a swamp in the wet season into a very pretty and effective waterway.

86 Mr Tucker gave evidence that in about June 2001 he had a conversation with the plaintiff in the course of which the plaintiff told him that the two meetings at Suffolk Park had not necessarily been for the purpose of raising funds for Mr Mackay's defence but rather to attack the plaintiff and his development. Mr Tucker said that the plaintiff told him he had been called a thug and a bully. The plaintiff said, “Jill and I had had enough and we are going to take legal action. We can't take any more. This is enough. This is the straw that broke the camel's back”. Mr Tucker said that when the plaintiff said these words he was agitated, highly-strung and angry.

87 Mr Tucker was also asked questions in chief at about what he observed to occur at council meetings involving councillor Barham and the defendant. He said that on a number of occasions the defendant would come from the public gallery down to the council meeting area to the rear of councillor Barham's chair where he would squat down and speak with her and on occasions pass small notes. The plaintiff submitted that this behaviour amounted to evidence that the Greens in general, but certainly councillor Barham in particular, were very closely connected to the defendant.

88 Mr Tucker was asked in cross examination whether or not the plaintiff enjoyed “to this day a very high reputation” in the Byron Shire. Mr Tucker said, “Not universally, no”. He went on to say, “there are people in the Byron Shire who are opposed to development, almost any development, and they have over that time been led to believe that Mr Bennette is one of those developers who aren't to be liked, trusted or enjoyed”.

89 Mr Tucker then gave the following evidence: -

90 Janice Mangleson lives at Byron Bay and has been a councillor on the Byron Shire Council since 1999. She has lived in the Byron Shire since 1972. She read some articles about the plaintiff in the local newspapers where he had received quite a lot of adverse publicity. She recalled reading claims that he was a very ruthless developer, and that there seemed to be a lot of letters coming from individuals, especially around the Suffolk Park area, that cast doubts on the kind of development that he was doing.

91 Ms Mangleson was aware of the benefit concerts to support Mr Mackay in proceedings brought against him by the plaintiff. She went to neither. She recalled a friend telling her things about the plaintiff following the concerts that were not very complimentary.

92 Ms Mangleson said that she had known the plaintiff since 1999. She was asked what his reputation was in 2001 at about the time the benefit concerts took place. Ms Mangleson said that with a significant section of the community the plaintiff's reputation was very poor because of the publicity, but that there were other people who believed that the plaintiff was making quite a considerable contribution to the community and to the environment.

93 In cross examination Ms Mangleson agreed that the plaintiff seemed to have two reputations in the area. She agreed that with many upright citizens he had a good reputation but that with others, perhaps those who were opposed to his development, particularly in the Suffolk Park area, “they have a not so favourable view of his reputation”. Ms Mangleson agreed that that had been the position “increasingly around that time of 1999, 2000, getting a lot worse”.

94 Ms Mangleson also recalled that there were articles and letters in the paper about the plaintiff. She was asked, in effect, whether she had ever heard people say in those early years of 1999 and 2000 whether the plaintiff was a bully. She replied, “Yes, I - they were also in those articles, yes, those words”. Ms Mangleson thought that the articles, which said that, came out in about 1999 or 2000, “but I think also prior to that”. She was then asked: -

Defences

95 The Defence relied upon was filed on 12 December 2005. It was pleaded in broad terms. However, it became clear during the course of the hearing that the defendant relied upon the following defences only: -

(i) That the imputations were a matter of substantial truth and either related to a matter of public interest and/or were published under qualified privilege: s 15.

(ii) That the imputations related to a matter of public interest or were published under qualified privilege, that one or more imputations contextual to the imputations complained of related to a matter of public interest or were published under qualified privilege and were matters of substantial truth, and by reason that those contextual imputations were matters of substantial truth, the imputations complained of did not further injure the reputation of the plaintiff: s 16.

(iii) That the imputations were published under common law qualified privilege.

(iv) That any matter published by the defendant amounted to comment of the defendant: s 32.

96 The defendant also raised his intention to rely upon a number of matters in mitigation of damages including the circumstances in which the publications complained were made, the substantial truth of the imputations, the reputation of the plaintiff and the facts relevant to the contextual background in which the defamatory publications were made and the bringing and continuing of these proceedings.

Substantial truth

97 The defendant contended that each of the imputations was substantially true. There was no dispute in the proceedings before me that this issue was to be determined having regard to the approach articulated by example in Sutherland v Stopes [1925] AC 47 at 79.

98 The plaintiff emphasised that, in having regard to this issue, each imputation must be dealt with separately. In particular, the plaintiff stressed that the imputation that the plaintiff is a thug, and the imputation that the plaintiff is a bully, are substantially different and cannot be dealt with collectively. The defendant made no application that one or other of the imputations be struck out upon the basis that they did not differ in substance, which the plaintiff contends is a tacit acknowledgement of their substantial difference.

99 Each word clearly has a different meaning. Both parties referred me to dictionary meanings. “Bully” is defined as a blustering, quarrelsome, overbearing person who browbeats smaller or weaker persons or who coerces or intimidates others by fear. “Thug” is defined as a brutal, vicious or murderous ruffian, robber or gangster. The plaintiff submitted that the defendant's evidence did not come close to establishing the truth of the imputation that the plaintiff was a thug, which was a more serious imputation than that the plaintiff was a bully. The plaintiff argued that the evidence did not establish that the plaintiff was a bully in any event.

100 The plaintiff submitted that the third imputation was wholly unsupported by any evidence establishing its truth.

101 The matters relied upon by the defendant in support of the defence of substantial truth of the imputations were many and varied. Indeed, by far the greatest amount of time during the hearing of the matter was devoted to this issue. It is necessary to deal with each of these matters in turn. However, for convenience, they can be grouped into a series of categories.

Imputations (a) and (b); the plaintiff is a thug and a bully

The plaintiff's treatment of the council and its officers

102 Cross examination of the plaintiff commenced with a series of questions about him personally. He was asked whether he had ever threatened to bring litigation to overcome opposition, whether he made threats to browbeat people, whether he made complaints to wear people down, whether he threatened violence to deter opposition or made threats to stop criticism. He was asked also whether he made accusations to deter his opponents, whether he harassed people to get what he wanted and whether he was overbearing, a browbeater, or quarrelsome. The plaintiff denied each and every proposition put to him.

103 On 24 May 1989 the plaintiff and his wife placed an advertisement in the Byron Shire Echo headed “Tallow Creek Down The Drain”. Among other things, the document said “Byron Shire Council engineers want to commit environmental vandalism by turning Tallow Creek into an urban drain”. The plaintiff agreed that he criticised the council engineers by saying that they wanted to commit environmental vandalism and that that was his view. The plaintiff agreed that what he said, “would be a very defamatory and upsetting statement”.

104 The plaintiff also agreed that his advertisement was designed to put pressure on Mr Alderson and council staff to approve his application, and that by giving all the telephone numbers of the members of the council he was hoping that readers of the advertisement would ring them and put pressure on them to do so. The plaintiff agreed that he was using it as a means to get his way. The defendant submitted that the placing of this advertisement was the conduct of a bully or someone who wanted to harass and bully council engineers. The defendant submitted that it was intimidation, harassment and browbeating.

105 The Special Investigation Report of August 1993 dealt in detail with an attempt by the plaintiff to have a Mr Peter Porritt “disqualified” from making decisions regarding the plaintiff's property on the grounds of what the plaintiff considered to be a “real likelihood of bias”. The basis of the plaintiff's objection was that he and his wife had been in conflict with Mr Porritt over a period of several years during which time, as their neighbour on a property at Newrybar, he was involved in what the plaintiff regarded as an illegal development - a food processing factory in a shed near the boundary of their property and only 60 metres from their house. The conflict escalated to the point where the plaintiff made threats and Mr Porritt called in the police.

106 Mr Porritt was appointed in July 1991 by the council as an engineer to deal exclusively with town planning matters. His position required him to deal with the plaintiff on engineering aspects of his development applications. The council refused the plaintiff's demands to remove Mr Porritt and in October 1992 the plaintiff complained to the Ombudsman. The Special Investigation Report describes a “litany of complaints and verbal abuse of some of council's offices over several years by [the plaintiff and his wife]”.

107 The defendant relies upon this material in two ways. First, the defendant says that if the conflict at the Newrybar property escalated to the point where Mr Porritt felt constrained to call in the police, it demonstrates that the plaintiff's threats to Mr Porritt must have been violent. Secondly, the material in the Special Investigation Report evidences at least verbal abuse of more than one council officer by the plaintiff over several years. In each case the defendant submits that these matters demonstrate that the plaintiff acted both as a thug and a bully.

108 The defendant then contended that a specific example of this conduct occurred in relation to a member of council staff whose first name was Simone. In support of his contention the defendant tendered a letter dated 26 March 2002 from the plaintiff to the council General Manager in which the plaintiff (relevantly) apologised in the following terms: -

“During the discussion with Simone I made certain statements directed at the actions of certain Planning Staff. The statements made were out of extreme frustration at the actions of certain Planning Staff that are obstructing the completion of my subdivision in accordance with court approved consent conditions.

I am informed that the statements upset Simone.

My statements regarding the actions of certain Planning Staff in no way were directed to or meant to upset Simone.

109 Another incident occurred following a failed attempt by the plaintiff to obtain information from the council pursuant to an FOI request. The request was made over-the-counter at the council on 11 June 1992 and was referred to the council's Administration Officer, Mr Rose. Mr Rose told the plaintiff that the council's practice at the time precluded access by the public to the type of information that he sought. The plaintiff then wrote to the council stating that he believed Mr Rose had breached the FOI Act and had committed an offence under s 317(a) of the Crimes Act. The plaintiff wrote that he intended to pursue the matter “to the full extent of the law”. Having received no reply, the plaintiff then made a formal complaint to the Ombudsman. Mr Rose then wrote to the plaintiff advising him that his request had been reconsidered and that he could obtain access to the relevant material.

110 In cross examination it was put to the plaintiff that he had accused council officials of corruption. The plaintiff replied, “I accused them of conducting themselves in a matter that may be corrupt”. The Special Investigation Report recorded that “Council staff eventually feel threatened and intimidated by such people [as the plaintiff]”. When asked whether or not he agreed that his demands made council staff feel threatened and intimidated, the plaintiff replied, “Perhaps”.

111 The plaintiff was then taken to another letter written by him on 22 March 1996 to the Mayor of the Byron Shire. By that letter, the plaintiff made a formal complaint of provocation and harassment against councillors Staples and Coman. The plaintiff said that the letter was provoked by councillor Staples’ illegal entry upon the plaintiff's property to investigate tree removal at a time when the plaintiff had consent to remove trees.

112 The plaintiff's letter went on to allege that his treatment at the hands of these councillors was “a payback”. It said, “the provocation and harassment is corrupt conduct under the relevant sections of the ICAC Act”. The plaintiff said that his purpose in writing the letter was to notify the Mayor that in the plaintiff's view councillors Staples and Coman had acted outside their positions as councillors in failing to make the proper checks to find out in the first instance that he had approved consent. It was the plaintiff's view that there was a vendetta against him and his development. The plaintiff denied that the letter was an extraordinary letter for a person in his position to write to a council.

113 On 16 July 1999 the plaintiff wrote to the then Minister for Local Government making what was described as a “formal complaint of possible corruption”. The letter included allegations such as that “certain Council staff [had] colluded to grossly abuse their positions of power and deliberately misuse Council resources to conspire against [the plaintiff's] development . . . in order to send us broke and force us off our land”. It contained an allegation that certain councillors had “abused their positions to publicly cause defamation, offence and embarrassment” and had “failed to act bona fide, with honesty and integrity in compliance with lawful orders and policies”. The letter even claimed that councillors had “used confidential information to gain advantage for their associates and to the detriment of other persons and ourselves”. The plaintiff continued by saying that in his opinion it appeared “that certain Councillors and certain Staff [were] prepared [to] abuse and breach their positions of public trust to conspire against [the plaintiff] and [his] development”. The letter even went so far as to suggest, “that the Councillors [were] also engaged in a form of ethnic cleansing using ratepayers funds”. The plaintiff wrote a further, but shorter, letter to the Minister dated 21 July 1999. That letter should be read with the earlier letter.

114 The defendant submitted that the letter contained false allegations and amounted to bullying the council to bring about an investigation and to get rid of it. It was put to the plaintiff, but he denied, that the letter was part of his tactics to get back at those council staff and council employees and councillors who were not in favour of his development. Counsel for the defendant made some play of the fact that the plaintiff was unable in cross examination to recall any evidence that could have been used as support for those allegations.

115 It was put to the plaintiff that, “Just because the council doesn't approve of your development, does that make the Mayor and council officers’ conduct dishonest?” The plaintiff replied, “In certain cases, yes”. The plaintiff agreed with the proposition that a large faction - the Greens - within council hated him as a developer. The plaintiff stood by all his allegations in the letter, including the allegation referring to ethnic cleansing. The plaintiff said that he and his wife had been targeted in the Suffolk Park and Byron Bay areas, because he was an American developer and she was his wife. The plaintiff agreed that in writing the letter to the Minister he was hoping that action would be taken against the council and its staff, even including the calling of a public inquiry into its conduct.

116 The defendant submitted that the allegations contained in the letter were “horrendous”. He submitted that the allegations were all made because of problems that the plaintiff had had with his development applications, which problems the plaintiff failed to reveal to the Minister in his letter. The defendant re-emphasised the fact that the plaintiff remained unable to recall the details of how councillors or staff had abused their positions, had failed to act bona fide or without honesty and integrity, or had misused confidential information to gain advantage for their associates.

117 Although not specifically relating to the conflict between the plaintiff and the council, the following incident fits conveniently into the present analysis. On Christmas Eve, 1999 the plaintiff rang the office of the National Parks and Wildlife Service. He did so in response to a fax received by him shortly before midday in which it was alleged that the NPWS had received a report suggesting that the plaintiff was destroying the habitat of threatened species on his land. When the plaintiff telephoned to discuss the matter he was put through to Michael Murphy, who the plaintiff described as “Mr Milledge’s mate in the snail saga”, who gave the plaintiff what he described as “a fairly bureaucratic answer” and told him that he would have to stop work. The plaintiff said that in those circumstances he “explained to him in the strongest terms what [he] felt about his letter and his actions”.

118 The plaintiff made a note of the conversation in his diary for that day. It became evidence in the proceedings. Apparently describing his conversation with Mr Murphy, the plaintiff wrote, “I blew the shit out of him”. Furthermore, the plaintiff ignored Mr Murphy's advice to stop work but instead continue to do so.

119 On 6 January 2000 an on-site meeting took place at the plaintiff's land. Much of what occurred on that day was recorded by videotape and the tape became an exhibit in the proceedings. The meeting was controversial in almost every imaginable way and was the catalyst for the issue of the ill-fated stop work order and aborted proceedings in the Land and Environment Court in March of the same year.

120 A transcript of the audio recording was produced but its accuracy is doubtful and it remains controversial for that reason. Two aspects of what occurred at that meeting stand out. The first is what can only be described as a confrontation between the plaintiff's wife and councillor Barham. Councillor Barham can be heard to refer to threats that had been made by the plaintiff, or on his behalf, and the plaintiff's wife can be heard, in a loud and persistent voice, to challenge councillor Barham to specify the threats to which she was referring. Councillor Barham refused to do so, which only appears to have excited the plaintiff's wife all the more.

121 The second incident involved the plaintiff. He can be seen and heard to ask Mr Milledge in a loud voice, “Where's the wetland! Where's the wetland!” It is reasonably apparent, and not seriously contested, that the plaintiffs outburst was fuelled by his frustrations that Mr Milledge’s opinion that the plaintiff's land contained wetlands was, on the one hand, completely erroneous, and on the other hand likely to cause further delays to his development whether it was erroneous or not. The plaintiff denied that he said the words in a sneering voice. In my opinion, such a description of the way in which he spoke was not wholly inaccurate, although sarcastic, loud and aggressive is probably a more palatable description and one with which the plaintiff ultimately agreed. In either event, as other contemporary events have demonstrated, the plaintiff was not unjustifiably aggrieved with what was occurring at that time. Indeed, the plaintiff conceded that he threatened to call the police. As the plaintiff said, “We were exhibiting our frustration at the council's conduct against our development”.

122 The defendant also relied upon material contained in an e-mail from Randall Evans to Peter Fryer and Chris Pratt dated 7 February 2000. The document records that the plaintiff returned Mr Evans' telephone call in a very angry mood stating “due to Council placing a stop work order on [the] property no council staff or any other government authority officer including NPWS [would be] permitted onto the . . . property without . . . consent”. The document then goes on to record the following: -

123 The plaintiff denied making any such statement. He also denied that he was in an angry mood. The plaintiff did not agree that the words, if said by anybody, would be the act of a thug or bully. The plaintiff said he “would take it as a warning not to trespass” on a person's property.

124 The following day the plaintiff wrote to the General Manager of the Byron Shire Council in which he said “Council is put on notice that Council’s Senior Officers will be held personally liable for illegal entry onto enclosed land owned by Jerry Bennette as notified in the attached letter”.

125 Although the evidence does not make it entirely clear, it would seem that the “attached letter” referred to was a letter of the same date from the plaintiff to the General Manager, marked to the attention of Mr Evans. By that letter the plaintiff put the council on notice of a number of matters in unequivocal terms including the following: -

“3. NO Council Staff, Council Consultants, NPWS officers, and any other person including Councillors are to enter my enclosed land at Suffolk Park without my express permission.

4. Should any of the persons or their associates described in 2 above [sic] enter my enclosed land at any time without my express permission the safety of those persons cannot be guaranteed.

5. Should any of the persons or their associates described in 2 above [sic] enter my enclosed land police charges of criminal trespass will be initiated.

126 In the context of the e-mail and these letters, the plaintiff was cross examined about whether or not he said to a council officer that he (the plaintiff) would not be responsible for his safety if he came on to the premises. It should be noted immediately that nowhere in these documents written by the plaintiff did he make such a statement. However, responding to that question, the plaintiff said that his property was a construction site and in the event that a council officer entered the property and fell over or was hurt, he “could not be responsible and [he] was telling that that was so”. The plaintiff denied that any statement by him, to the effect that he would not be responsible for their safety, was meant to convey that they would suffer, or would be likely to suffer, some sort of physical harm from the plaintiff or his security guards. The plaintiff said that his words “the safety of those persons cannot be guaranteed”, in his letter of 8 February 2000, was a warning about danger, not a threat of danger.

127 A similar issue arose in relation to the plaintiff's dealings with, and attitude towards, Mr Milledge. It was not seriously disputed in these proceedings that the plaintiff engaged upon a campaign to have Mr Milledge removed from anything to do with his development. The plaintiff's solicitors wrote letters to Mr Milledge and to the Byron Shire Council accusing Mr Milledge of acting as an advocate and not as an independent expert. The letters spoke of a personal history of antagonism against the plaintiff and of the making of unsubstantiated complaints to the council. One letter suggested that there was “such a history between the parties that it is absolutely unreasonable for [the plaintiff] to expect, irrespective of what supervision is taking place, that Mr Milledge will deal reasonably with [the plaintiff's] application”. Mr Milledge was ultimately removed.

128 However, well before this occurred, and only four days after the explosive site meeting on 6 January 2000, Mr Milledge wrote a letter to Ken Webber at Wilshire Webb Solicitors. In that letter he complained that the plaintiff had approached him when he was waiting for the meeting to commence and had stated in a most threatening manner, that if Mr Milledge ever set foot on the plaintiff’s property the plaintiff “would not be able to guarantee that [he] would not suffer physical harm”.

Unlikelihood of harm

274 It is a defence that the circumstances of the publication of the matters complained of were such that the person defamed was not likely to suffer harm: s 13.

275 Each party drew my attention to the decision of the New South Wales Court of Appeal in Jones v Sutton (2004) 61 NSWLR 614. It was held in that case that the test to be applied under s 13 of the Act is whether, in the circumstances of the publication, the plaintiff was not likely to suffer harm. This requires proof of the absence of a real chance or possibility of harm. The court held that whilst bad reputation as such is not relevant to the defence under s 13, because it is not a circumstance of the publication, reputation may have some relevance where, for example, the recipient's special knowledge of the person's reputation may be caught up in the circumstances of the publication.

276 At par [12] in that case, Beazley JA dealt with the correct test for the application of the section: -

“In Morosi, the Court (at 799) explained the operation of the section in these terms:

‘. . . [Section 13] is concerned with ‘the circumstances of the publication’ and the likelihood of harm. It looks to those circumstances as at the time of publication, and requires the tribunal of fact, being aware of those circumstances, to consider prospectively as it were, the likelihood of harm ensuing, and not whether harm did actually ensue . . . The subsequent acts or statements of persons from which it appears, or may be inferred, that the person defamed was or was not upset by the defamatory publication can have only a limited bearing on whether that person's reputation was likely to be damaged or his feelings were likely to be hurt’.”

277 Her Honour went on to note, at par [13], “… s 13 is not limited to publication involving trivial matters or content”. Her Honour continued, at par [34], “The authorities are clear that the section is not concerned with whether harm was occasioned” at all.

278 Paragraph [16] of her Honour's judgment is also instructive: -

Morosi

Chappell

of the publication

such that

The quality of the circumstances of the publication must be the factor which renders it unlikely that the person defamed will suffer harm.

Morosi

supra

279 The authorities dealing with this section give examples of where the defence might apply, including “publications of a limited extent, particularly where ‘a slightly defamatory statement’ was made in private circumstances, to a limited number of persons and with jocular effect. It may be relevant that the persons to whom the statement was published were aware of the plaintiff's reputation”: see Jones v Sutton at par [13].

280 In support of his argument that the circumstances of the publication of the matters complained of were such that the plaintiff was not likely to suffer harm, the defendant emphasised the evidence before me which dealt with the plaintiff’s reputation prior to the publications. For example, evidence given by Mr Tucker suggested that the plaintiff might have had two reputations, depending upon whose opinion was sought. The relevant passage of Mr Tucker's evidence is quoted at par [89] above.

281 This idea could be seen as well in the evidence of Ms Mangleson in which she said that the plaintiff had received “quite a lot of adverse publicity in the local papers” . . . claiming that he was a very ruthless developer”. She said, “there seemed to be a lot of letters coming from individuals, especially around the Suffolk Park area, that cast a lot of doubts on the kind of development that [the plaintiff] was doing”. Ms Mangleson said, “with a significant section of the community [the plaintiff's reputation] was very poor because of the publicity, but there were other people who believed that he was making quite a considerable contribution to the community and to the environment”. Ms Mangleson specifically agreed with the proposition that the plaintiff seemed to have had two reputations in the area: see par [93] above.

282 It was the defendant's submission that the plaintiff was unlikely to suffer any harm because the major circumstances of the publication, that would make it unlikely that he would do so, were the extent of the publication, the nature of the recipients and their relationship with the plaintiff. The defendant relied upon a passage taken from Perkins v New South Wales Aboriginal Land Council (Badgery-Parker J, 15 August 1997, unreported), cited by her Honour Beazley JA at par [15] in Jones v Sutton (supra) that “. . . It would be relatively easy to make out the defence in circumstances where the publication was to a small number of persons well acquainted with the plaintiff and able themselves to make a judgment of their own knowledge as to the likelihood that there was any substance in the imputation conveyed”.

283 The defendant submitted that it was unlikely that the plaintiff would suffer harm because everyone in attendance at the meetings was there with a common purpose. The defendant submitted that those present at the meetings would, in effect, all have held the same view of the plaintiff’s reputation, being the unfavourable view referred to in the evidence of Mr Tucker and Ms Mangleson.

284 The plaintiff submitted that the defendant had not established that the circumstances were such that the plaintiff was unlikely to suffer harm. He referred to the grapevine effect, and in particular to the fact that whatever may have been the constitution of the audience, a serious allegation - not a jocular remark - made by the defendant, who was a prominent, high profile, local politician, about a similarly prominent local developer, would in all likelihood be spoken about beyond the confines of the meetings. The plaintiff submitted that in any event, the prospect that there may have been even a small number of people in the audience at the meetings who were sympathetic to the plaintiff, would alone be sufficient to dispose of the defence; wider publication in those circumstances would be unnecessary.

285 I am not satisfied that the defendant has established that the circumstances of the publication of the matters complained of were such that the plaintiff was not likely to suffer harm. There was some likelihood that he would. The question of whether or not the plaintiff in fact suffered harm is irrelevant. At par [226] I found that the audience would have consisted almost exclusively, if not entirely, of interested residents of the Suffolk Park neighbourhood, whose individual and collective interest in attending the meetings was to support Mr Mackay. Such a finding permits of the possibility that others from a different group may also have been present. It cannot be said that these circumstances were such that there was no likelihood of harm to the plaintiff, whatever might be said about the magnitude of such harm.

Damages

286 I propose to make an assessment of damages against the contingency that any of my findings about the defences are set aside.

287 The plaintiff submitted in writing that an appropriate award of damages in this case is a substantial award, which includes a significant component for aggravated damages. Oral submissions on the last day of the trial served to qualify and clarify the plaintiff’s position.

288 It was submitted on behalf of the plaintiff that he was a man of good reputation outside the “green” sector of Byron Bay. Mr Van Zwieten gave evidence that the plaintiff's reputation was that of a solid citizen, an excellent lifesaver with medallions from overseas for heroic efforts, and as a philanthropist within the surf club. It was said that the plaintiff was well known within the club for having donated a rescue boat, described as “a crucial piece of rescue equipment which [had] helped the club out immensely”. In fact, Mr Van Zwieten described the plaintiff as being “the club's main benefactor”. The plaintiff submitted that the capacity of the imputations to damage his reputation in the area of his life that mattered greatly - that is, the surf club - could not be doubted and was unchallenged.

289 Councillor Tucker described the plaintiff's wider reputation as being “a good developer” because of the result of the subdivision of his land in Suffolk Park. Councillor Tucker's evidence about the plaintiff’s reputation is referred to in some detail above commencing at par [85].

290 Ms Mangleson also gave evidence about the plaintiff's reputation. Her evidence about the plaintiff is also referred to in some detail above commencing at par [90].

291 The plaintiff submitted that none of the evidence about his reputation was challenged by the defendant, other than to confirm in the cross examination of Ms Mangleson that the plaintiff seemed to have had two reputations, with a not so favourable view of his reputation held by those who opposed his development. However, as material referred to above at par [94] discloses, Ms Mangleson agreed that she may have heard the plaintiff referred to as a bully as early as 1999 or 2000 “but I think also prior to that”.

292 The plaintiff contended that he was hurt significantly by the defendant’s publication of the imputations. In this respect the plaintiff emphasised the following matters: -

(a) what the defendant said was entirely false;

(b) the plaintiff and his wife had worked so hard to make the environment beautiful;

(c) the defendant's status as an MLC would mean that people would listen to him;

(d) the things that the defendant said were said not only once, but twice, giving the plaintiff the impression that the defendant would do anything in his power to destroy the plaintiff's business, his family and himself;

(e) the prospect of the defendant's allegations spreading like wildfire through such a small community in which the plaintiff had, and conducted, his business;

(f) despite his status in the community, the defendant had chosen to go out and say things about the plaintiff without asking his consent and without doing any proper research which would have informed him immediately that what he had said was untrue;

(g) the plaintiff could not bring himself to listen to the tapes of the matters complained of, having seen the transcripts shortly after the second benefit concert, because they were so hurtful and because the plaintiff feared the damage that listening to the tapes would do to him. When the plaintiff heard the tapes for the first time during the course of the proceedings before Hulme J in August 2004, he “almost cried” and was profoundly affected by what the defendant had said;

(h) the evidence given by the plaintiff about the way people spoke to him, which indicated that they were aware of what the defendant had said. The plaintiff submitted that this evidence, with minor exceptions, was unchallenged. The plaintiff submitted that he found each of these incidents to be a painful and hurtful experience;

(i) the plaintiff also experienced hurt in dealing with the present litigation and said that he found it “highly traumatic” to have to go through the 7A trial, as well as the present proceedings, particularly faced with the realisation that the defendant was relying upon the defences of truth, qualified privilege, fair protected report, likelihood of harm and consent. The plaintiff described the pain of having to relive the various items relied upon by the defendant as particulars of truth and said he was “shocked because those items” were “simply not true”;

293 The plaintiff agreed that the present proceedings are not concerned with a mass media publication. Senior Counsel for the plaintiff fairly conceded that the plaintiff was “not so primarily interested in a huge verdict, except in one sense”, meaning aggravated damages. He submitted that the plaintiff was “much more interested in what he regards as the vindication of his name from these allegations”. He submitted that the present case is not one for nominal or contemptuous damages. It was submitted on behalf of the plaintiff that “[T]he hurt to feelings here . . . must be absolutely enormous”. It was conceded that the defendant’s failure, or omission, to apologise was irrelevant.

294 The plaintiff submitted that the factors warranting an award of aggravated damages primarily derived from the manner in which the case was conducted on behalf of the defendant at trial. As Lord Esher said in Praed v Graham (1889) 24 QBD 53 at 55, “the jury in assessing damages are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they give their verdict”. In the present case the plaintiff emphasised the defendant's persistent reliance upon truth as a defence, associated as it was with intense cross examination of the plaintiff over several days. There was also the issue of cross examination of the plaintiff based upon an erroneous copy of the surf club log, in circumstances where the defendant, through his counsel, neither sought to withdraw the cross examination nor to apologise for the misunderstanding.

295 In Uren v John Fairfax and Sons Pty Ltd (1967) 117 CLR 118 at 150 Windeyer J said: -

for

because

296 Any proper assessment of the plaintiff's damages in the present case must be made having regard to the factual background with which I have dealt already, and to the insights which it gives to the plaintiff himself. For reasons best known to, and perhaps only understood by, the plaintiff, he conducted his life and his business affairs in what seems to have been a high state of constant aggravation and agitation. I have described this above in some detail. The plaintiff was not afraid of conflict, certainly never went out of his way to avoid it and, on one view, was largely instrumental in creating it. With only slight exaggeration, it is correct to say that the plaintiff appears to have dedicated much of his life to putting people off side. I have already mentioned Mr Robertson's recollection of the plaintiff telling him that he didn't get angry, he got even. As far as I can determine, it is more accurate to say that the plaintiff got both angry and even.

297 In my opinion it is difficult to disregard the plaintiff's combative nature in assessing a sum by way of damages which would properly and adequately operate as a consolation to him for the wrong done. In my opinion, it lies ill in the mouth of the plaintiff to complain about the way in which the defendant responded to the present proceedings when the facts suggest that the plaintiff's stock in trade has included the rough and tumble of litigation, of threat and counter threat, and an almost unyielding belief in the correctness of his own position. The whole of the plaintiff's story serves only to confirm that we are paid in our own coin.

298 I am not satisfied that the plaintiff has established that the hurt to his feelings arising from the matters complained of was as significant or deep as the submissions of his counsel would suggest. The plaintiff showed himself as a man who was prepared to dish it out when it suited him. I cannot accept that he was unable to deal with the sting of the matters complained of in the same robust way in which he conducted every other aspect of his life. Accordingly, I propose to have only modest regard to injury to the plaintiff's feelings in my assessment of damages.

299 In the same way, the plaintiff's reputation was as I have described it. Even the plaintiff's most ardent supporters would have been hard pressed to say otherwise. The “two reputation” concession made by Mr Tucker and Ms Mangleson is tacit support for this proposition. I consider that the injury to the plaintiff’s reputation was slight.

300 Having regard to all of these matters, I would have awarded the plaintiff, as a vindication to the public because he was injured in his reputation and as a consolation to him for the wrong done and for his hurt feelings, the sum of $15,000.

Orders

301 Accordingly, I make the following orders: -

**********

SCHEDULE A

Transcript of First Meeting: 7 April 2001

Bill McKay: Uh, so, um, there is a plan to get round to what we’re doing tonight, um, Ian Cohen, he’s going to get up and say a few words. Mr Ian Cohen.

: Thanks. It seems to be a, a night of, ah, not saying much about the, the unmentionable. It’s wonderful to, to be here so, what would you call it? “Bennette-a-fit”? A worthy cause. Ah, Bill and myself go back to, ah, what, around about ’82, the Nightcap campaign which was in the hills and trying to stop the rainforest, er, being logged and, ah, so I suppose we moved down the coast to capture peace of mind and a quiet life and look what happened.

Uh, it’s interesting isn’t it, just the way we see that front, that that that point of conflict that occurs in a place like Byron Bay where we’ve got, ah, we’ve got such a beautiful area, everyone loves being here and we’ve got these really ugly individuals. I’ll be the foremost, and I’m mindful of the fact that there might be someone here for Mr, Mr Bennette on all this.

Male Voice: (Unintelligible)

: Um, and, ah, we have the situation where, ah, we’ve got some very ugly individuals. He almost became a neighbour of mine and wanted to move in next door and we had a little, ah, run in (unintelligible) fortunate, but the unfortunate thing is that he then moved down to Suffolk Park and we’ve seen what he has been doing down there ever since, it’s a pretty horrendous situation.

Ah, I consider what’s happened to Bill because Mr Bennette should be, if anything, ah, taking, ah, court action, if he’s so aggrieved, against the publication, the Echo. But he’s not, he’s focussing on Bill. So I consider this to be vexatious litigation.

Male Voice: Hear, hear.

: And I think this is something that, ah, we as a community have to stand against and we have to stand really strongly against, because we see it happening in too many places to the point that, um, there’s a, a terminology of it, they all it “Slaps”, the slap suit and it’s been very big in America where the litigation runs rampant and it’s interesting, ah, of course that Mr Bennette comes from Canada not America but it doesn’t really make much difference. The slap is, is a strategic litigation against public protest and it would appear that that’s the type of thing that’s occurring and he’s certainly not just coming out of the blue and being terribly offended.

The guy, um, has been through a lot of court situations. In fact, um, I have, um, I actually have a cheque in my pocket at the moment from Mr Bennette and he lost a case that he took against me, ah, where he’s claiming that, er, I was, er, so threatening that he was in fear of his life and he took an AVO out against me because I went down to the site, asked by a number of people in the community to have a look at where he was working on the days that he was doing things that we consider not just, uh, inappropriate or, um, you know, environmental vandalism, which is what is occurring down there, but that he was working illegally.

So I went down there, had a few words with him, ah, which were, uh, not particularly heated, although as we walked away he sort of made some comments and so I called him a bully. I think I called him a thug and a bully and it came out in court and to be quite honest, he is.

And further to that I’ve read, and, I don’t, I’m not capturing the, sort of the co – continuity a lot because I’m away a lot in Sydney and I miss out sometimes but, uh, I saw where he’s talking about a, a, a, a, a, a demand of something like $750,000 on, er, on Bill. Well that’s, you know, that’s a load of rubbish because you’ve seen what’s happened. I, I was involved in a, um, in a, uh, defamation case against, er, the Daily Telegraph and this has gone on for a period of about 4 years and I was getting sort of, ah, a bit of rough treatment from my lawyer saying well you actually were there, you passed laws that actually stop us from taking them to the cleaners now.

So, generally speaking those types of, of events you end up with costs or, er, awards being made by the courts these days between about forty and eighty thousand dollars. I don’t know where he got the $750,000 from but presume it’s just another type of intimidation material.

So it’s interesting also during the, uh, during the case to, uh, to hear that, you know, he’s having to go to a psychologist and, ah, under medication, and you know, I guess, he might be a little deluded, he thinks the world is against him, and I wonder why.

But the thing about Mr Bennette, and I’ve known him for quite a few years, and I haven’t met many more unsavoury characters around this area and, ah, and you know you really do have to stand up to these sort of people and, er, as a community I think we’re quite capable of doing that.

And it’s fantastic to see so many people here tonight and, ah, we’re supporting Bill but we’re supporting ourselves and we’re supporting the environment and the man is relentless. To think that he got a, and that is what started the problem I think, he got an award from the Department of Land & Water Conservation – digging a ditch through and yeah, you know, a lot of us don’t have the time and energy to chase every one of the things that we have done and I believe, or should I say if I’m in, in doubt ask a question, if you think you’re going to get hit by defamation, did he manipulate the system? I’ll leave it up to you.

Further to that it’s interesting that he has such a tenacity for working through the system that somehow or other and I just found out this today, he has actually, um, gone down to the government in Sydney and they’ve called the Mayor, they had called the Mayor down to, uh, discuss the matter. So the other problem here I think is the fact that Mayor went to Sydney, didn’t tell the other councillors before he told, ah, before he was asked a question in the council, council’s out there, if I’m wrong let me know, but he didn’t tell anyone else until he was asked a question by Tucker in council.

So here we have on the one had this, this developer who is just pushing the system as hard as he can and we’ve got a Mayor who isn’t talking to his council let alone talking to the public. So I suggest that you all get on the blower and talk to Mr Wilson who I don’t think’s doing a particularly good job of public representation at the present time, and say, “Why don’t we know about what Mr B – Bennette is doing at a state government level?”.

And this is, this is part of the work, that’s nuts and bolts, the ongoing work that we have to, to undertake to maintain vigilance so that we get proper communications right throughout our community so that we protect people like Bill, who just happens to be the person in the hot seat at the moment and that we try to create enough impact within the council.

Jenny Coman, Jan Barham are here tonight. I think they’re the only councillors, yes, and they have been consistent in striving and communicating with the community and that is absolutely what we expect, what we demand, not of just two of the councillors, but the whole lot. So please make your feelings known and keep it ongoing, keep the pressure up because I think there’s something in council at the moment that is allowing the Bennettes of this world to get away with farm more than what they should.

I’ve probably said enough now, let’s get back to more entertainment except, uh, it’s a fantastic show of support that you’re here tonight. I’m supporting at, uh, the state level wherever I possibly can. Councillors, a sm – small minority of good Green and Independent progressive councillors are doing their thing at that level. Let’s keep the information going, let’s keep the pressure up and, ah, lets hope that, ah, Mr Bennette moves on.

Thanks a lot.

**********

SCHEDULE B

Transcript of Second Meeting: 19 May 2001

Bill McKay: Ian Cohen’s going to say a few words, um

Ian Cohen: So …

(Laughter)

Ian Cohen: It was negotiated if I would like to say a few words. Last time we had a certain benefit which I was really happy to be at and spoke, um, I said some terrible things about Jerry Bennette and he hasn’t come back and sued me or taken me, ah, for another case of, ah, apprehended violence orders so I suppose we must be getting somewhere.

Crowd Noise: Yeah.

Ian Cohen: Well he has, so they say, he has his spies out everywhere, he’s a rather paranoid fellow I notice he’s pursuing Bill in a similar way. I went through a court case with Jerry Bennette a few months back and, ah, it was about him taking an apprehended violence order out against me because I went down to his site and told him what I thought of him and basically called him a bully and a thug … seemed reasonable at the time. And, uh, he was grossly offended and absolutely shattered by it, it would seem, and, er, so he took me to court and lost. And, uh, I, I was able …

Male Voice: Even if he is a bully and a thug?

: Well I think it does, it can sort of go through the, ah, legal, ah, how would you say it? Sort of, ah, sequence of, ah, um, objective thought on the matter. It is proven in a court of law that Jerry Bennette is a bully and a thug so I’m not telling you anything … (Voice masked by applause) …

It’s really important that we recognize that, um, we have these sort of people in our community and that the issue is not going to go away ah, when we have increasing pressure from very ugly bullies and thugs, white shoe brigade, developers, people like Jerry Bennette who are out to carve out as much as they can financially in profit out of what is our heartfelt community, so it is incredibly important that, um, we all gather for such occasions and keep the energy going and give people like Bill our utmost support, I’ll certainly continue to do it from the point I’m at and he’s in a court process at the moment so we really should raise some money and keep him in there so he keeps proper legal advice, ah, because what’s going on all round this place is a pretty terrible thing and Byron is at crisis point and it’s not going to go away and hopefully very soon, ah, we can get to a point of real … (unintelligible) … We thought we had it.

I have to just add also tonight that, ah, I’m here, ah, actually speaking on behalf of Jan Barham who’s up to be our Councillor and Jenny Coman also of Byron Shire Council. Just to let you know, slightly off the track, but we’ve got some real bullies and thugs right in our council. And I would just like to let you know that Jan really is a bit wrecked and Jenny is absolutely exhausted – thirteen meetings this week.

They spend all day and they are two of the only councillors that actually do their homework and sit down all weekend reading the council papers trying to get, keep up with it and they are being treated in a most derogatory fashion by a bunch of chauvinists. I’m sorry, I’ll say it, I’m one, I suppose in a way, have been, will be, can’t help it – you know that sort of thing, but they are really being attacked by, er, Tom Wilson, the Mayor and Hugh Ermacora.

And I don’t like to sort of bring the whole vibe of tonight down, I think it’s wonderful, it’s a wonderful thing to hear the music and feel the positive way that we want to go, but I, we just ask you please individually and collectively go along to the Council meetings and listen to what’s going on please. These people, these women, who are bravely up there on council need your support, just in exactly the same way, for exactly the same reasons, that Bill needs your support.

So we can do it, we’re a very powerful, strong, gentle, caring community so let’s keep in mind that Bill and others, like Jan and Jenny, really need our support physically to be there, like that um, uh, I …

**********

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Citations

Bennette v Cohen [2007] NSWSC 739

Most Recent Citation

Whitehall v Oxborough [2018] NSWDC 315

Cases Citing This Decision

4

Bennette v Cohen (No 2) [2009] NSWCA 162

Bennette v Cohen [2009] NSWCA 60

James v Wilson [2019] NSWSC 17

Cases Cited

12

Statutory Material Cited

1

Jones v Sutton [2004] NSWCA 439

Slatyer v Daily Telegraph Newspaper Co Ltd [1908] HCA 22

CITATION:	Bennette v Cohen [2007] NSWSC 739
HEARING DATE(S):	14 May 2007 to 1 June 2007
JUDGMENT DATE :	10 July 2007
JUDGMENT OF:	Harrison J at 1
DECISION:	Verdict for the defendant. Plaintiff to pay the defendant's costs.
CATCHWORDS:	DEFAMATION – Defamation Act 1974 - words spoken at public meeting by parliamentarian about local developer – imputations that plaintiff was a thug and a bully and manipulated the system by bringing proceedings to stifle public protest – defences – substantial truth - common law qualified privilege – malice – comment of defendant - comments or statements of fact - proper material for comment - public interest - unlikelihood of harm - damages
LEGISLATION CITED:	Defamation Act 1974 - ss 7A, 13, 15, 16, 30(3)(a), 32, 32(1), 32(2), 55(2)
CASES CITED:	Adam v Ward [1917] AC 309 Bashford v Information Australia (Newsletter) Pty Limited (2004) 218 CLR 366 Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 Cole v Operative Plasterers' Federation (1927) 28 SR (NSW) 62 Green v Schneller [2000] NSWSC 548 Habib v Nationwide News Pty Limited [2007] NSWCA 91 Hanrahan v Ainsworth (1990) 22 NSWLR 73 Horrocks v Lowe [1975] AC 135 Hunt v Great Northern Railway Co [1891] 2 QB 189 John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164 Jones v Sutton (2004) 61 NSWLR 614 Markisic v Today-Denes [2005] NSWSC 1276 Morgan v John Fairfax & Sons Pty Ltd (1990) 20 NSWLR 511 Ohlstein v E & T Lloyd [2006] NSWCA 226 Perkins v New South Wales Aboriginal Land Council (Badgery-Parker J, 15 August 1997, unreported) Praed v Graham (1889) 24 QBD 53 Pullman v Hill and Co Ltd [1891] 1 QB 524 Roberts v Bass (2002) 212 CLR 1 Sims v Wran [1984] 1 NSWLR 317 Sutherland v Stopes [1925] AC 47 Toogood v Spyring (1834) 1 Cr M & R 181 Uren v John Fairfax and Sons Pty Ltd (1967) 117 CLR 118 Watts v Times Newspapers Ltd [1997] QB 650
PARTIES:	Jerry Lee Bennette (Plaintiff) Ian Cohen (Defendant)
FILE NUMBER(S):	SC 20985/2001
COUNSEL:	B R McClintock SC with A T S Dawson (Plaintiff) C A Evatt with J Rawlings (Defendant)
SOLICITORS:	Banki Haddock Fiora (Plaintiff) Carters Law Firm (Defendant)