Bolton v Stoltenberg

[2018] NSWSC 1518

Supreme Court

New South Wales

Medium Neutral Citation:

Bolton v Stoltenberg [2018] NSWSC 1518

Hearing dates:

9, 10, 11, 12, 13, 16 April 2018

Date of orders:

15 October 2018

Decision date:

15 October 2018

Jurisdiction:

Common Law

Before:

Payne J

Decision:

See paragraph [273] 

Catchwords:

DEFAMATION – imputations – whether imputations made out from matters complained of

DEFAMATION – publication – Facebook – where defamatory posts made on public Facebook page “Narri Leaks” – relevance of Facebook “views”, “hits” and “likes” to publication – whether Facebook posts had been read and downloaded – whether plaintiff could be identified in each defamatory Facebook post

DEFAMATION – defences – common law qualified privilege – whether the “Narri Leaks” Facebook page had a limited audience with a special interest –whether malice proved

DEFAMATION – defences – statutory qualified privilege – Defamation Act 2005 (NSW), s 30 –whether conduct of the defendants in publishing the matter was reasonable in the circumstances – whether failure to contact plaintiff fatal to defence – whether language used was excessive and the publication itself lacked reasonableness

DEFAMATION - damages – whether plaintiff entitled to aggravated damages

DEFAMATION – remedies – permanent injunction

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 100
Defamation Act 1974 (NSW), s 22
Defamation Act 2005 (NSW), ss 8, 22, 30, 34, 35, 39
Evidence Act 1995 (NSW), ss 81, 183
Independent Commission Against Corruption Act 1988 (NSW)
Local Government Act 1993 (NSW), s 349

Uniform Civil Procedure Rules 2005 (NSW), rr 15.1, 15.19

Cases Cited:

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5
Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470
Brady v Norman [2008] EWHC 2481
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Broome v Cassell & Co Ltd [1972] AC 1027
Byrne v Deane [1937] 1 KB 818
Cantwell v Sinclair [2011] NSWSC 1244
Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1722
Clark v Ainsworth (1996) 40 NSWLR 463
Cripps v Vakras [2014] VSC 279
Dank v Whittaker (No 1) [2013] NSWSC 1062
David Syme & Co v Canavan (1918) 25 CLR 234; [1918] HCA 50
Davis v Nationwide News Pty Ltd [2008] NSWSC 946
Douglas v McLernon (No 3) [2016] WASC 319
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56
Fairfax Media Publications Pty Ltd v Pedavoli (2015) 91 NSWLR 48; [2015] NSWCA 237
Frawley v New South Wales [2006] NSWSC 248
Gardiner v John Fairfax & Sons (1942) 42 SR (NSW) 171
Google Inc v Duffy (2017) 129 SASR 304; [2017] SASCFC 130
Habib v Radio 2UE Sydney [2009] NSWCA 231
Hanrahan v Ainsworth (1990) 22 NSWLR 73
Higgins v Sinclair [2011] NSWSC 163
Ives v The State of Western Australia [2010] WASC 339
John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657
Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364
Kenyon v Sabatino [2013] WASC 76
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 2
Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188
Lindholdt v Hyer [2008] NSWCA 264; (2008) 251 ALR 514
Marshall v Smith [2013] WASC 452
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; [1982] HCA 50
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; [1979] HCA 3
Morgan v John Fairfax & Sons (No 2) (1991) 23 NSWLR 374
Morgan v Odhams Press Ltd [1971] 1 WLR 1239
Palmer Bruyn & Parker v Parsons (2001) 208 CLR 388; [2001] HCA 69
Polias v Ryall [2014] NSWSC 1692
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16
Rana v Google Australia [2013] FCA 60
Randwick Labor Club v Amalgamated Television Services (2000) NSWSC 906
Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; [1982] HCA 4
Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57
Royal Society for the Prevention of Cruelty to Animals New South Wales v Davies [2011] NSWSC 1445
Sierocki v Klerek (No 2) [2015] QSC
Sims v Jooste (No 2) [2016] WASCA 83
Slatyer v Daily Telegraph Newspaper Co (1908) 6 CLR 1; [1908] HCA 22
Theodore Skalkos v Joseph Assaf [2002] NSWCA 14
Triggell v Pheeney (1951) 82 CLR 497; [1951] HCA 23
Trumm v Norman [2008] EWHC 116
Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Reports 81-127
Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118; [1966] HCA 40
Vakras v Cripps [2015] VSCA 193
Vassiliev v Frank Cass Co Ltd [2003] EWHC 1428
Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350
Watts v Times Newspapers Ltd [1997] QB 650
Webb v Bloch (1928) 41 CLR 331; [1928] HCA 50
Wishart v Murray [2013] 3 NZLR 246; [2013] NZHC 540
Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283

Texts Cited:

Brown on Defamation (2nd ed, 1994, Thomson Reuters)
NSW Government Gazette No. 56 of 25 May 2017

Category:

Principal judgment

Parties:

Conrad Moran Bolton (Plaintiff)
Stephen Robert Stoltenberg (First Defendant)
Ann Loder (Second Defendant)

Representation:

Counsel:

Mr M. Richardson / Ms M. Rabsch (Plaintiff)
Ms S. Chrysanthou / Mr B. C. Dean (First Defendant)
Mr. R. W. Potter / Ms. L. Angelman (Second Defendant)

Solicitor:

Bell & Johnson Solicitors (Plaintiff)
Kalantzis Lawyers (First Defendant)
Peter Breen & Associates (Second Defendant)

File Number(s):

2015/366431

​

Judgment

1. PAYNE J: This case involves events which occurred in 2015 and 2016 in Narrabri. The key players are Mr Conrad Bolton, the Plaintiff, who is the former Mayor of the Narrabri Shire Council, Mr Stephen Stoltenberg, the First Defendant, who is the operator of a public Facebook page known as “Narri Leaks” and Ms Ann Loder, the Second Defendant and a current Narrabri Shire Councillor, who was at most relevant times the head of the Narrabri Ratepayers and Residents Association, and alleged in a variety of ways also to be a publisher of “Narri Leaks”.

2. Mr Bolton was represented by Mr Richardson with Ms Rabsch, Mr Stoltenberg by Ms Chrysanthou and Mr Dean, and Ms Loder by Mr Potter and Ms Angelman. Each capably presented the case of their respective clients and the Court is grateful for their assistance.

INDEX

Credit of witnesses who gave evidence - paragraph 19

Findings of fact - paragraph 27

Posts relevant to the claim for aggravated damages - paragraph 64

The pleaded imputations - relevant law - paragraph 69

First matter complained of - paragraph 75

Second matter complained of - paragraph 81

Third matter complained of - paragraph 86

Fourth matter complained of - paragraph 92

Fifth matter complained of - paragraph 99

Sixth matter complained of - paragraph 108

Rulings about evidence allowed on the voir dire - paragraph 113

Publication

Publication by Mr Stoltenberg - paragraph 117

Publication by Ms Loder - paragraph 161

Identification - paragraph 188

Qualified privilege - paragraph 192

Malice - paragraph 217

Statutory Qualified Privilege - paragraph 223

Conclusion on statutory qualified privilege - paragraph 227

Damages - paragraph 236

Effect of Narri Leaks posts on Mr Bolton and his family - paragraph 244

Conclusion on damages - paragraph 258

Injunctive Relief - paragraph 265

Costs - paragraph 269

Conclusion and orders - paragraph 274

Annexure A – First Matter Complained Of

Annexure B – Second Matter Complained Of

Annexure C – Third Matter Complained Of

Annexure D – Fourth Matter Complained Of

Annexure E – Fifth Matter Complained Of

Annexure F – Sixth Matter Complained Of

3. Mr Bolton has had a long and distinguished history of service in the Narrabri Shire. Mr Bolton was a councillor of the Narrabri Shire Council from 2004 to 2016 and Mayor from September 2012 to September 2016. He did not stand for re-election after that date, as a result of the conduct the subject of these proceedings. Mr Bolton’s record of public service was recognised in 2009 when he received an Australia Day award for his service to the community, and again in 2016 when he received an award from the Minister for Local Government for his work as Mayor of Narrabri Shire Council.

4. Prior to December 2013, Mr Bolton and Mr Stoltenberg, who was a former Town Clerk of various municipal councils, had a professional relationship and discussed (principally via e-mail and text) various issues relating to the Narrabri Shire Council. In about December 2013, Mr Bolton and Mr Stoltenberg fell out over the appointment of Ms Diane Hood to the role of General Manager of the Narrabri Shire Council. This was, in part, motivated by Mr Stoltenberg’s apparent belief that Ms Hood’s gender made it somehow less likely that she could fix the “shitfight” that the previous General Manager had created. In an e-mail Mr Stoltenberg sent to Mr Bolton the following appears (spelling and capitalisation as in original):

“A women !!!

Your been around too many strong chemicals in the spraying game.

National party placement , you have made a grave mistake , Even if she is reasonable , Marshall left a complete shitfight that only a truly experienced BLOKE could fix.”…

5. The relationship between the two men deteriorated thereafter. Essentially Mr Bolton first selectively responded and then ceased responding to Mr Stoltenberg’s increasingly strident electronic communications.

6. On 13 June 2015, Ms Rook at Mr Stoltenberg’s request created a new Facebook page called “Narri Leaks”. Mr Bolton relies on five allegedly defamatory posts published on “Narri Leaks” in 2015 and one in early 2016, after these proceedings had been commenced.  The essential subject matter of the imputations allegedly arising from the allegedly defamatory posts may be summarised as comprising:

1. deliberate breaches by Mr Bolton of the Local Government Act;

2. deliberate corruption by Mr Bolton of the selection process for the General Manager of the Council (the replacement for Ms Hood);

3. deliberate lies, coercion and intimidation of employees, contractors, residents and elected councillors by Mr Bolton to suppress the views of others on Council matters;

4. Mr Bolton’s corrupt, dishonest and intimidatory actions as Mayor of Narrabri Shire Council, warranting a full ICAC inquiry;

5. deliberate engagement in corrupt conduct by providing the Independent Regulatory and Pricing Tribunal (“IPART”) with information Mr Bolton knew to be false;

6. an allegation that Mr Bolton acquired millions of dollars through dishonest means.

7. Mr Bolton seeks damages, including aggravated damages, and injunctive relief.  The aggravated damages arise from a number of Narri Leaks posts created by Mr Stoltenberg which referred to these proceedings and compared Mr Bolton and his conduct to that alleged by various other media outlets against Mr Don Burke, Mr Craig McLachlan and Mr Harvey Weinstein.

8. From August 2016 until March 2018, Mr Stoltenberg relied on the defences of truth, honest opinion and fair report. Ms Loder adopted those defences from 1 November 2016.

9. On 29 March 2018, Mr Stoltenberg abandoned the defences of truth, honest opinion and fair report. All defences other than publication were abandoned by Ms Loder on 18 March 2018.

10. The remaining issues in the case are nevertheless legion. Mr Stoltenberg’s case may be described thus. First, with very few exceptions, the imputations pleaded by Mr Bolton were said not to be made out as they had been “pitched too high”.  Upon analysis, Mr Stoltenberg submitted, in all bar one of the matters complained of, he was essentially asking questions about Mr Bolton’s behaviour rather than making accusations. Ms Loder essentially adopted Mr Stoltenberg’s submissions about the pleaded imputations.

11. Mr Stoltenberg next submitted that Mr Bolton had not proved that any of the matters complained of were published. Publication on the internet requires proof that the matter complained of had been downloaded and viewed by at least one person, other than the plaintiff and his or her agents. Mr Stoltenberg submitted that the considerable evidence of posts by him to the Narri Leaks site boasting about the number of “hits” on the Facebook page during the weeks when each of the matters complained of were posted were insufficiently specific and should not give rise to inferences that any of the matters the subject of complaint were actually downloaded, even by one person. Mr Stoltenberg next submitted that by reason of some particulars of identification said to be given prior to the trial, Mr Bolton was precluded from relying upon the oral evidence given at the trial, including by Mrs Bolton, about the publication of each of the posts. Mr Stoltenberg also submitted that the business records of Facebook which were tendered were essentially unexplained in the evidence and that the Court should not infer that any of the matters complained of were in fact downloaded and read by anybody other than Mrs Bolton who, it was submitted, was Mr Bolton’s agent. Mr Stoltenberg also submitted that the Court should not infer that Mr Bolton had been identified in any of the matters complained of. As will become clear, I have concluded that each of the matters complained of was published.

12. A principal focus of Mr Stoltenberg’s defence was a reliance on common law qualified privilege and an analogy sought to be drawn with the decision of the High Court in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5. Mr Stoltenberg’s argument was labyrinthine.

13. The foundational proposition was that the particulars of identification allegedly given by Mr Bolton prior to the trial identified a limited community of readership of Narri Leaks. As I will explain, that proposition is untenable. Assuming that the subject matter of the request and answer was relevant to this issue, which I doubt, Mr Bolton plainly rejected the need to further particularise the pleading in his answer. No submission was advanced that Mr Bolton’s pleading was so limited.  Mr Stoltenberg submitted, by reference to remarks of Hunt J in Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188, that the Court should conclude that as Mr Bolton would have been required to provide such particulars had they been sought, it should therefore be concluded that he had described a limited audience of readers sharing a special interest for the internet posts in his answer to particulars wherein he explained why he was refusing to provide further particulars. 

14. Mr Stoltenberg identified the special interest of readers as being Narrabri residents and ratepayers concerned about Narrabri Shire Council finances and perhaps the appointment of General Managers of the Narrabri Shire Council.  It was submitted that by reason of the particularisation of Mr Bolton’s case the Court should not take into account the considerable evidence of readership of Narri Leaks outside the Narrabri Shire. In oral submissions it was suggested, as a fall-back, that the special interest of readers may extend beyond Narrabri residents and ratepayers and encompass all people with an interest in local government. 

15. Mr Stoltenberg recognised that the decision of Beech-Jones J in a similar context in Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350 posed a considerable hurdle to acceptance of this part of his argument. It was submitted that his Honour’s decision was wrong. It was submitted that Beech-Jones J had given insufficient attention to the internet context of the publication. As will become apparent, I do not agree that Beech-Jones J’s decision was wrong. The decisions relied upon by Mr Stoltenberg, being some first instance decisions of the High Court of England and Wales, and the Victorian Court of Appeal in Vakras v Cripps [2015] VSCA 193, are clearly distinguishable. As will become apparent I reject Mr Stoltenberg’s defence of common law qualified privilege.

16. Mr Stoltenberg next relied upon statutory qualified privilege under s 30 of the Defamation Act 2005 (NSW), although in a much more muted way. It was submitted that I should find that the publication of each of the matters complained of was protected by statutory qualified privilege and that Mr Stoltenberg’s conduct in publishing each of the matters complained of was reasonable. As will become clear, I reject the submission that Mr Stoltenberg’s conduct in publishing each of the matters complained of was reasonable. He is not entitled to rely on s 30 of the Defamation Act.

17. There was little by way of submission by the Defendants about damages, nor any complaint about the helpful schedule of damages awarded in other cases prepared for Mr Bolton.  The parties were at odds about whether the Court should grant injunctive relief, and if so, the breadth of that relief.

Credit of witnesses who gave evidence

18. In accordance with the usual practice in defamation matters in this Court no witness statements were exchanged prior to the trial.  Viva voce evidence was given by seven witnesses.

19. Mr Conrad Bolton was an impressive witness.  I accept his evidence in whole. The challenge to his credit in cross-examination, limited though it was, failed. Other than a variety of unsubstantiated rumours floated with various witnesses, which ultimately went nowhere, the only substantial attack on Mr Bolton’s credit concerned two Narrabri Shire Council “Code of Conduct” reports in late 2011 and early 2012 about Mr Bolton. Those reports do not cause me to doubt these credit findings or Mr Bolton’s honesty and reliability as a witness. In respect of the first report, a complaint was made by then Mayor Faber in March 2011 about remarks made by Mr Bolton to her. The Council resolved that matter by voting that Mr Bolton should apologise to Mayor Faber, which he did. A recommendation made to censure Mr Bolton was defeated.  A second complaint was later made by Mayor Faber relating to a communication Mr Bolton had with the then director of corporate services relating to the Crossing Theatre. That complaint was essentially dismissed, although the Council recommended that the Plaintiff re-read the Code of Conduct about discussion between councillors and contractors.

20. Mrs Bolton gave evidence in a quiet and thoughtful manner.  I accept her evidence. I also accept the evidence of Mr Flower, Ms Booby and Ms Collier who gave evidence in Mr Bolton’s case.

21. Mr Stoltenberg did not give evidence, as was his right. There is, however, an irony in this decision given the repeated public taunting by Mr Stoltenberg in the pages of Narri Leaks about these proceedings and the threats Mr Stoltenberg made to unmask Mr Bolton as a “bully” and a “sleaze” in evidence. Claims were made by Mr Stoltenberg about the content of evidence to be led by him in this case which, on the evidence before me, had no foundation whatsoever. I infer that Mr Stoltenberg’s evidence would not have assisted his case.

22. Mr Stoltenberg’s domestic partner, Ms Rook, did give evidence.  I accept Ms Rook’s evidence with important qualifications.  I do not accept Ms Rook’s evidence about how Facebook operates, nor her evidence seeking to contradict or explain Mr Stoltenberg’s claims on Narri Leaks about the extent of Narri Leaks’ readership. In evidence in chief Ms Rook at first claimed to be reasonably knowledgeable about the operation of Facebook and was permitted to give evidence about what she understood to be Mr Stoltenberg’s lack of understanding of Facebook and the statistics it collected.  In cross-examination, however, I formed the distinct impression that Ms Rook was tailoring her evidence to suit what she perceived to be Mr Stoltenberg’s interests in the litigation. I do not accept her evidence where she sought to discredit Mr Stoltenberg’s claims about the number of people who had viewed the Narri Leaks site during relevant periods. Because of her protestations in cross-examination of ignorance about the operation of Facebook and the meaning of the statistics collected which she herself produced in discovery, I found her evidence as a whole of little assistance. I would not accept her evidence about any issue concerning the operation of Facebook or Mr Stoltenberg’s knowledge without corroboration by other reliable evidence.

18. I also approach Ms Loder’s evidence with care.  I was troubled during her evidence about the fact that Ms Loder had apparently willingly lent her name and reputation in the community to Mr Stoltenberg’s Narri Leaks website, despite her regarding many things that Mr Stoltenberg said on that site as false in important respects.  Ultimately, however, I accept her evidence that she did not raise things she knew to be false with Mr Stoltenberg as he would likely bully her and in any event ignore her wishes. As will become apparent, this finding does not completely exonerate Ms Loder as a publisher of all of the Narri Leaks posts.

19. It is clear that Mr Stoltenberg had been seeking, since at least 2012, to find a public vehicle to express his own idiosyncratic views about the proper conduct of Narrabri Shire Council. The popularity of Ms Loder (and others) in the Narrabri community was seized upon by Mr Stoltenberg to pass off his own high handed commentary as having been adopted by Ms Loder.  I have some doubts about whether Ms Loder’s current expressions of regret that she did not disassociate herself from the very many things that Mr Stoltenberg wrote on Narri Leaks which were false was an accurate reflection of her state of mind in 2015 and 2016. Having studied her carefully when giving evidence, however, I find that Ms Loder was being truthful when she said that she knew that Mr Stoltenberg had disseminated false information about her for his own purposes and that she did not remonstrate with him because she was sure that he would ignore her wishes and “do what he want[ed] to do”.

20. I accept Ms Loder’s evidence that she did not seek to correct the many things published by Mr Stoltenberg on Narri Leaks that she knew to be false because she knew that Mr Stoltenberg routinely published false information on Narri Leaks and, I infer, he would not listen to reasonable opinions which differed from his, including those of Ms Loder, despite his telling the world that Ms Loder was one of the people principally responsible for the views expressed on Narri Leaks.  

Findings of fact

26. My principal findings of fact based on the evidence of the witnesses at the trial and the documentary evidence are as follows. I will deal with the facts relevant to Ms Loder’s liability as a publisher separately. 

27. Mr Bolton first had dealings with Mr Stoltenberg in 2010 or 2011. Mr Bolton and Mr Stoltenberg had professional and some limited personal dealings in the period 2010 to 2013. Mr Stoltenberg was knowledgeable and helpful about Council finance issues. Mr Bolton accepted the description of Mr Stoltenberg during this period as a “ratepayer activist”.

28. In 2012, Ms Rook at Mr Stoltenberg’s request set up a Facebook page titled “Narri Leaks” on behalf of a proposed “Narrabri Ratepayers Association”.    Nothing apparently became of that entity as Mr Stoltenberg could not get anyone involved in the proposed organisation.   

29. In about December 2013, Mr Bolton and Mr Stoltenberg fell out over the appointment of Ms Diane Hood to the role of General Manager of the Narrabri Shire Council. Mr Stoltenberg was opposed to Ms Hood’s appointment based on her gender and what Mr Stoltenberg regarded as a lack of relevant experience.  Mr Stoltenberg was seeking the appointment of “a truly experienced bloke” to the role.  This was, in part, motivated by Mr Stoltenberg’s apparent belief that Ms Hood’s gender made it somehow less likely that she could fix the “shitfight” that the previous General Manager had created.  Mr Stoltenberg was also apparently motivated by his own financial interests. In e-mails to Mr Bolton, Mr Stoltenberg said (spelling and emphasis as in the original):

“A women !!!

Your been around too many strong chemicals in the spraying game.

National party placement , you have made a grave mistake , Even if she is reasonable , Marshall left a complete shitfight that only a truly experienced BLOKE could fix.”

“Bottom line is , it’s more important to you to have a spineless yes man you can control like a puppet than have a competent properly experienced and qualified GM…”

“Make no mistake, I will be more than the average shit stirrer if I see the shires performance continue as it has the last few years & my investments going backwards because of it.”

30. During the period from December 2013 to June 2015, the time that Narri Leaks was created, contact between Mr Bolton and Mr Stoltenberg was limited. Mr Stoltenberg continued to send a stream of electronic communications to Mr Bolton.  Mr Bolton eventually ceased to reply.  In June 2015, Mr Bolton knew of Ms Loder, the Second Defendant, but had never spoken to her.

31. On 13 June 2015, Ms Rook at Mr Stoltenberg’s request created a new Facebook page called “Narri Leaks”. Ms Rook and Mr Stoltenberg were the administrators of the Narri Leaks Facebook page created in 2015, which meant that they could change the photographs, modify the page, post to it and modify the posts, and add links to videos, amongst other things. 

32. Ms Rook created a filter in an attempt to prevent profanity being used in posts or comments, which would hide posts or comments containing profane words from the public (but not from the administrators).  Apart from that profanity filter, the Facebook page was open to the world and anyone, anywhere, with access to the internet, could add a comment or a post to the Narri Leaks page.  As administrators, Mr Stoltenberg and Ms Rook were each able to remove people’s posts by hiding or deleting them.  After about a week of operation, Ms Rook added a feature to the Narri Leaks page such that the administrators would have to approve posts before they were allowed to be added to the page. Ms Rook applied a standard for letting posts through which she described as preventing profanity or anything “defaming”. 

33. Ms Rook allowed onto the page posts relating to Narrabri Shire Council issues.  Mr Stoltenberg, however, allowed posts to be made to Narri Leaks which were not related to the Narrabri Shire Council. Mr Stoltenberg’s avowed purpose in making and allowing these posts was to drive traffic to the Narrri Leaks site; that is, to encourage downloads of posts to the site by as many people as possible from as wide a geographic area as possible. Ms Rook and Mr Stoltenberg were unable to stop comments being made before they were posted, although they could delete or hide a comment after it was posted. 

34. In June 2015, the existence of the Narri Leaks Facebook page was brought to Mr Bolton’s attention by his wife and daughter.   From that time, Mrs Bolton and her daughter would look at the Narri Leaks Facebook page a couple of times a day. Despite occasionally addressing Mr Bolton directly on the Narri Leaks site, Mr Bolton was never contacted by Mr Stoltenberg or Ms Loder or anyone from Narri Leaks or the Narrabri Shire Residents and Ratepayers Association seeking comment in relation to the material that was to be published on the Narri Leaks page. Mr Bolton did not post on the Narri Leaks website or seek to engage with the site. Mr Bolton, who is not a lawyer, formed his own view that the Narri Leaks site was engaged in criminal defamation, and concluded that he was not going to be involved with it.

35. On 15 June 2015, the first matter complained of, headed “Captain’s Call”, was uploaded to the Narri Leaks page by Ms Loder at Mr Stoltenberg’s request. The first matter complained of is set out in Annexure A to this judgment.

36. I find that Mr Stoltenberg was the author of this post and responsible for it being uploaded to the Narri Leaks Facebook page. The post was downloaded and read by Mrs Bolton who took a screenshot of it. I find that Mrs Bolton did so because she was upset about the allegations being made on the Narri Leaks page about her husband.  I reject the submission that Mrs Bolton acted as Mr Bolton’s agent in collecting this (or any other) evidence about Narri Leaks. That screenshot establishes that by the time it was taken the post had attracted two “likes” and two comments. The post was “liked” by Ms Loder and Ms Rook; the comments were made by people described as John Hartford and Andrew Boggabri.

37. Business records of Facebook tendered, eventually without objection, also established that by 20 January 2016 the “Captain’s Call” post had a “reach” of 661 and that 83 likes and comments had been added to the post. A different Facebook business record established that the post was “published 16 June 2015 at 12:51 by Stephen Stoltenberg”.

38. The process in hiring Ms Hood as General Manager in December 2013 involved the Narrabri Shire Council engaging a consulting firm to develop and promote job descriptions, eliminate unsuitable applications and formulate a short list which was then ratified by all councillors of the Narrabri Shire Council. A short list of interviewees for the position was prepared. There was a vote about the appointment of Ms Hood in which each councillor participated. Mr Bolton did not lobby or pressure other councillors to vote for an application for the General Manager position or any council position. Mr Bolton said, and I accept, that he had never ignored the recommendations of experts concerning the hiring of General Managers and did not do so on this occasion.

39. On about 24 June 2015, Mr Todd was selected as the General Manager of the Narrabri Shire Council to replace Ms Hood. The selection process for Mr Todd was the same as the process for Ms Hood’s selection except that a different outside consultancy group was used.  Mr Bolton said, and I accept, that he voted for Mr Todd on merit, he did not pressure any other councillors to vote for Mr Todd and the ballot was secret. Mr Todd remains the General Manager of Narrabri Shire Council.

40. On 27 June 2015, the second matter complained of was uploaded to the Narri Leaks Facebook page beginning with the words “again for the purpose of accurate facts”.  That post made various allegations concerning the hiring of a Mr Todd as General Manager. The second matter complained of is set out in Annexure B to this judgment.

41. The post was downloaded and read by Mrs Bolton who took a screenshot of it. Business records tendered, eventually without objection, established that by 20 January 2016 the post had a “reach” of 797 and 124 likes and comments had been added to the post. A separate business record established that the post was “published 28 June 2015 at 00:44 by Stephen Stoltenberg”.

42. On 27 June 2015, the third matter complained of was uploaded to the Narri Leaks Facebook page. It consisted of certain of the comments posted to the second matter complained of, the post beginning with “Again for the purpose of accurate facts…”. The third matter complained of is set out in Annexure C to this judgment.

43. These comments were downloaded and read by Mrs Bolton who took a screenshot of them. An individual named “Jeff Stoltenberg” made one of the comments. Mrs Bolton viewed Jeff Stoltenberg’s Facebook profile and found he lived in Queensland. An individual with a Facebook account named “Brad Pascoe” also made a comment on the post.  Mrs Bolton viewed his Facebook profile and found that at the time he lived in Wellington and now lives in Junee.

44. Business records tendered, eventually without objection, also established that by 20 January 2016 these comments were part of the 124 likes and comments which had been added to be post. A separate business record established that the post was “published 28 June 2015 at 00:44 by Stephen Stoltenberg”.

45. I find that there is no evidence that Mr Bolton:

1. had ever silenced the interchange of ideas and diversity of views on the Narrabri Shire Council;

2. had ever breached the Local Government Act 1993 (NSW);

3. had engaged in misleading conduct, coercion and intimidation to suppress a view on Council;

4. had improperly silenced employees, contractors, residents or other elected councillors as Mayor; or

5. had ever been the subject of a complaint to ICAC or an investigation by ICAC.

46. On 30 June 2015, the fourth matter complained of was uploaded to the Narri Leaks Facebook page.  It was headed “The carton [sic] below”. The fourth matter complained of is set out in Annexure D to this judgment.

47. Mrs Bolton downloaded and read the post and took a screenshot of it. That screenshot was taken at 12:38 am on 30 June 2015.  The post had been uploaded to Narri Leaks 54 minutes earlier. Shortly afterwards during that night Mr Stoltenberg woke Ms Rook up and asked for her help in deleting the post, which she provided. 

48. On 18 July 2015, the fifth matter complained was uploaded to the Narri Leaks Facebook page. The post is headed “The councils IPART submission…” and has appended comments. The fifth matter complained of is set out in Annexure E to this judgment.

49. Mrs Bolton downloaded and read the post and attached comments. She took a screenshot of them. Business records tendered, eventually without objection, also established that by 20 January 2016 the post had a “reach” of 1900 and 57 likes and comments had been added.  The post was published on 18 July 2015 at 09:43 by Stephen Stoltenberg.

50. I find that at that time the IPART was conducting an exercise, one aspect of which was known as “Fit for the Future”, in which local council finances across NSW were being investigated. The IPART process was a three-stage process. The first stage was analysis using a common benchmark across NSW undertaken by Treasury Corporation which was intended to create a level playing field for the assessment of local council finances. The second stage was a planning and reporting process whereby each council needed to develop one year, four year, and ten year plans. Narrabri Shire Council sought and obtained a 12 month extension and the Council finalised stage two within that further time frame. The third stage was the “Fit for the Future” process which concerned how each council was going to establish its financial controls in the future.  Each municipal or shire council was required to demonstrate to IPART that it fully understood the financial impacts of its decisions and the costs of these impacts. 

51. The Narri Leaks post referred to a proposed 30 per cent increase in rates and a $19m difference between budgeted and actual fees in the Narrabri Shire Council accounts. There is no evidence that IPART was provided with figures by Narrabri Shire Council or Mr Bolton which were incorrect, much less is there evidence that any figures were provided by anybody which were knowingly incorrect.

52. So far as the Narri Leaks post referred to a Narrabri Shire Council proposal for a “30% rate increase”, this was a controversial issue arising from the IPART process at the time. A letter from Paul Wern, the director of corporate services at the Council, to Ms Loder stated that “[t]here’s a potential special rate variation that may apply, that may be applied” and “[C]ouncil has determined the need to apply for a special rate variation” and that the variation would need to be a 20 per cent rise comprising ten per cent in year one, five per cent in year two and five per cent in year three. The proposed rate rise referred to by Mr Wern was part of the Fit for the Future process. I accept Mr Bolton’s evidence that as far as he understood it, the Council did not want such a significant rate rise and that that rate rise was not what the Council decided on at the end of the process. Ms Loder believed that the rate increase could be around 42 per cent in the long term.  She was opposed to any such rate rise.

53. So far as the $19m difference between budgeted and actual fees is concerned, the Narrabri Shire Council typically found there to be a difference between actual and budgeted fees.  During some periods, proposed developments, such as mining developments in 2008, 2011, 2012, 2013 and onwards, had the effect that development fees offset the impact on utilities like water and drainage. Mr Bolton said, and I accept, that the $19m figure identified in the Narri Leaks post simply meant that the actual fees received by the Council in a particular year were higher than what had originally been budgeted. There was no evidence before me that such a difference between actual and budgeted fees in 2015 was in any way remarkable or unusual, much less that it had any sinister significance.

54. Approximately eight community meetings about the Fit for the Future process were arranged by the Council. There was a process of public consultation by the Narrabri Shire Council about the IPART process. An advertisement put in a newspaper by the Council included the following statement:

“The community will have the opportunity to make comments on the submission when it is placed on public exhibition for 28 days in May 2015.”

55. During the period 10 June 2015 - 22 June 2015, there was a separate series of meetings, originally organised by “a community minded group of residents” including Mr Stoltenberg and Ms Loder.  On 10 June 2015, Mr Stoltenberg attended the meeting. On 18 June 2015, a meeting about the proposed rate increase in Wee Waa was held which approximately 100 people attended.  Mr Stoltenberg attended two subsequent meetings, one in Boggabri on 19 June 2015 and one in Narrabri on 22 June 2015.

56. Mr Bolton did not receive an e-mail invitation to the first meeting, but he became aware after the fact that other councillors had been invited. If Mr Bolton had been invited he probably would not have gone because he believed the Council had its own series of events where questions could be answered properly.  Mr Bolton was aware of subsequent meetings of what became the Narrabri Ratepayers and Residents Association, but he did not attend those meetings.

57. These proceedings were commenced by Statement of Claim on 14 December 2015.

58. On 7 January 2016, a Narri Leaks post headed “Mayor Bolton read this” was posted which included the text of an article which had earlier been published in the Sydney Morning Herald about pensioners and the high costs of living. The post and an appended comment form the sixth matter complained of, and are set out in Annexure F to this judgment.

59. Mrs Bolton downloaded and read the post and the comment by Andrew Thaler. She took a screenshot of the post and comment at around 7:07 pm on 7 January.  When she checked about an hour to hour and a half later that evening the comment by Mr Thaler was no longer on the page. She viewed Mr Thaler’s profile and found he lived in Nimmitabel.

60. Ms Rook had shared the Sydney Morning Herald article with Mr Stoltenberg on his personal Facebook page. Sometime shortly after the post had been downloaded by Mrs Bolton, Mr Stoltenberg was “yelling out” to Ms Rook about a comment on the page.  Ms Rook deleted the comment immediately. 

61. On 7 January 2016, Ms Rook added a disclaimer on the Narri Leaks Facebook page stating that Narri Leaks did not tolerate foul language or misbehaviour or posts which were “defamatory”.

62. In the September 2016 election, Ms Loder was elected as a councillor at Narrabri Shire Council. Mr Bolton did not stand as a candidate in that election. 

Posts relevant to the claim for aggravated damages

63. It will be recalled that these proceedings were commenced by Mr Bolton in December 2015. Narri Leaks continued to post material about Mr Bolton after the commencement of these proceedings, including about these proceedings.  On the evidence, Ms Loder had no involvement with any of these posts. Mr Stoltenberg was the publisher of each. The most important posts relied upon for the purposes of aggravated damages were as follows:

1. on 10 January 2016, Mr Stoltenberg posted to Narri Leaks a copy of an article about World Kidney Day. Mr Bolton, whose daughter suffers from a kidney illness, was quoted in the re-posted article. After a sarcastic reference to Mr Bolton and the Fit for the Future process, Mr Stoltenberg wrote “Pensioners , if you can’t cope with the rates after the 26% increase, you could always sell a kidney”;

1. on 3 February 2016, Mr Stoltenberg posted to Narri Leaks an attack on Mr Bolton based on the Code of Conduct matters referred to at [19];

2. on 7 April 2016, Mr Stoltenberg posted to Narri Leaks an entry which alleged that Mr Bolton had made an uninvited visit through a back door of a local woman’s home which resulted in her being “berated” in front of her children.  Ten people were alleged to have written statutory declarations about what they heard that night. I find that these allegations by Mr Stoltenberg were false. I accept Mr Bolton’s evidence that the woman the subject of Mr Stoltenberg’s post had refuted the claims in it. That woman, who Mr Bolton had known all of her life, had posted on the Narrabri Shire Council website thanking Mr Bolton for visiting her and explaining to her the process involved in getting play equipment installed in a local park;

3. on 25 May 2017, Mr Stoltenberg posted to Narri Leaks an entry which contained the following:

“…[Mr Bolton has] chosen to drag a young mother of 4 through the courts for 2 years , to stop her speaking out against not the council finances , but due to her involvement with the anti-CSG [coal seam gas] group , “people for the plains.””

5. I accept Mr Bolton’s evidence that coal seam gas and issues related to it did not have anything to do with his decision to litigate in these proceedings.

6. on 27 November 2017, Mr Stoltenberg posted to Narri Leaks an entry which contained a re-post of a Sydney Morning Herald article about Mr Don Burke, who was accused in the article of being a “psychotic bully” and a “misogynist”. Mr Stoltenberg’s post, immediately above a photograph of a smiling Mr Burke, contained the following (spelling and punctuation as in original):

“There is a defamation case Cr Ann Loder is involved in next April and all the lawyers say she has nothing to worry about , the plaintiff will lose on the facts before the court, and get a hefty costs order against him.

None the less , it’s a good opportunity to clear the air a lot of other matters , iv have had numerous women talk to me about what has happened in the past. It would be good to bring it all out in the open , might prevent things like it happening again.

Anyone effected , who feels this way might want to contact me or Ann , to just have a talk…

A knock out would be nicer than a points decision , that’s all”.

7. on 28 November 2017, Mr Stoltenberg posted to Narri Leaks an entry with the heading “Is a bully as bad as a sleaze”. That post contained the following:

“Take away the sexual angle , imagine a person constantly being a bully to women , because he understood the imbalance in power his position and the women , imagine his goal was not sexual favours , but rather to intimidate the women into forcing them to do , or not do , things that helped him build his power base.

Imagine a man not strong enough to stand over many other men at power who instead aimed for the more vulnerable in building his power base.”

8. on 8 January 2018, Mr Stoltenberg posted to Narri Leaks an entry consisting of a photograph of Craig McLachlan and an article about allegations of sexual harassment allegations which had been made publicly in the Sydney Morning Herald against Mr McLachlan. Mr Stoltenberg also made specific reference to Harvey Weinstein, who was by then notoriously the subject of very serious allegations of sexual assault and abuses of power over a long international career. That post contained the following:

“The Harvey Weinstein case shows even the most powerful bully can be brought to account if a handful of people find the courage to say enough and stand up.

Are enough people going to stand up to Narrabri’s most infamous bully and put an end to his reign ?”

64. Mr Bolton read all of these posts at or about the time they were posted. Mr Bolton said, and I accept, that these posts collectively made him feel that Narri Leaks was trying to misrepresent him in the community. I accept Mr Bolton’s evidence that these Narri Leaks posts were deeply upsetting and affected him and his family in a significant way.

65. I should make it clear beyond any doubt that despite the confident and dismissive tone of Mr Stoltenberg’s Narri Leaks posts, there was absolutely no evidence led before me of any conduct by Mr Bolton which could be described as bullying. I find that the allegations made against Mr Bolton in the posts described above were false.  

66. From August 2016 until March 2018, Mr Stoltenberg relied on the defences of truth, honest opinion and fair report. Ms Loder adopted those defences from 1 November 2016. Mr Bolton said, and I accept, that the impact of knowing that the defence of substantial truth was proposed to be run for this period was significant, despite his knowing that Mr Stoltenberg’s allegations were quite false.

67. I find that until Narri Leaks began Mr Bolton had enjoyed being part of the Narrabri community.  He helped with many different things that are important to the community, and he was very proud that as Mayor he was able to get the Council back on to a good track with a solid performance and a good direction for the community. The impact of Narri Leaks was that Mr Bolton is now wondering why he took the trouble to help.

The pleaded imputations - relevant law

68. Mr Bolton must satisfy the Court, on the balance of probabilities, that the hypothetical ordinary reasonable reader would understand the matter to have the meaning articulated in the pleaded imputations: Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16 at [5]-[6]; John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 at [26]; Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; [1982] HCA 4 at 506. The relevant meaning includes inferences and conclusions which the ordinary reasonable person draws from the words used. The ordinary reasonable reader may engage in a certain amount of “loose thinking”: Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245.

69. Ordinary reasonable readers are persons of ordinary intelligence, experience and education, who are neither perverse nor morbid nor suspicious of mind, nor avid for scandal.  The ordinary reasonable reader does not look at the matter complained of in isolation but rather in the whole context in which it is published. The context includes all the surrounding circumstances. The ordinary reasonable person is taken to have read the whole of an article and not just the headline or the particular portions of which complaint is made: Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; [1979] HCA 3 at 646.

70. Assertions about conduct which is potentially criminal or unlawful can carry many shades of meaning. At least three potential levels of meaning may be conveyed: that a person is guilty of criminal or unlawful conduct; that there are reasonable grounds to suspect that a person is guilty of criminal or unlawful conduct; and, that there are grounds to investigate whether a person is guilty of criminal or unlawful conduct. An allegation that a person has been charged with an offence or is under investigation does not necessarily impute that the person is guilty of the conduct, only that they are reasonably suspected of it: Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; [1982] HCA 50.

71. In Chase v Newsgroup Newspapers Ltd  [2002] EWCA Civ 1722 at [45] Brooke LJ (Rix LJ and Keene LJ agreeing at [67] and [68]) said:

“The sting of a libel may be capable of meaning that a claimant has in fact committed some serious act, such as murder. Alternatively it may be suggested that the words mean that there are reasonable grounds to suspect that he/she has committed such an act. A third possibility is that they may mean that there are grounds for investigating whether he/she has been responsible for such an act.”

72. No doubt there are many other shades of meaning capable of being conveyed in a given case.

73. It must be determined, in respect of any imputation found to have been carried, whether the imputation is defamatory. In order to make a finding that a publication was defamatory a court must consider whether the allegedly defamatory material tends to lower the plaintiff’s reputation in the minds of right thinking ordinary members of the community: Slatyer v Daily Telegraph Newspaper Co (1908) 6 CLR 1; [1908] HCA 22 at 7; Gardiner v John Fairfax & Sons (1942) 42 SR (NSW) 171 at 172; Mirror Newspapers Ltd v World Hosts Pty Ltd at 638; Reader’s Digest Services Pty Ltd at 505-506.

First matter complained of

74. The first matter complained of consists of a Narri Leaks post headed “Captain’s Call” which begins with a link to s 349 of the Local Government Act 1993 (NSW) and excerpts of ss 349(1)(b) and (2)(b) of the Local Government Act, which provide that an appointment will be made with regard to:

“The applicant who has the greatest merit.”

…

“The abilities, qualifications, experience and standard of work performance of those persons relevant to those duties.”

The post subsequently includes the statements:

“…to put a person previously in charge of a limited responsibility organisation in the hundreds of millions, does not automatically mean they will cope with a many faceted organisation, as a general purpose Council is.”

“…the people doing the picking, our Councillors, on the evidence, have not done a very good job of picking the best person on merit.”

“A view that has been voiced in some Councils , is that a Mayors “Captains Call”, is a problem. The suggestion that a strong, long experienced GM who knows the ropes backwards and cannot be prevailed upon, may not be popular with a certain type of Mayor.”

“It is essential that the GM is picked according to the criteria set out in the act and not some other reason determined by a strong Mayor able to swing other Councillors to his point of view.”

“…in a close vote a Mayor is able to prevail on enough Councillors so as to pick a person other than the one deemed the best on merit. In other words we get yet another “Captains Call”.”

75. The imputations pleaded about the first matter complained of are:

1. “The Plaintiff, in his role as Mayor of Narrabri Shire Council, was willing to breach the Local Government Act by making a “Captains Call” to hire a weak and inexperienced General Manager that he could control”;

2. “The Plaintiff, in his role as Mayor of Narrabri Shire Council, was willing to breach the Local Government Act by ignoring the recommendations of expert consultants hired by Council and instead prevailing on other councillors to pick a candidate on criteria other than merit”;

3. “The Plaintiff in his role as Mayor of Narrabri Shire Council corruptly favours candidates for the position of General Manager who are weak and inexperienced over those who are strong and experienced so he can engage a candidate he can dominate and exploit”.

76. The hypothetical ordinary reasonable reader would understand the matter to have the meaning articulated in each of the first two pleaded imputations. The references to the Mayor’s “Captain’s Call” and “a certain type of Mayor” would be understood by the hypothetical ordinary reasonable reader to refer to the Mr Bolton. The specific links to the Local Government Act and the provisions about appointment would be understood by the hypothetical ordinary reasonable reader as an accusation that Mr Bolton had breached or was willing to breach the Local Government Act by making an appointment otherwise than on merit so that he could control that person. Each imputation is defamatory as it tends to lower the Plaintiff’s reputation in the minds of “right thinking ordinary members of the community”.

77. I reject Mr Stoltenberg’s submission that the “Captains Call” refers to some hypothetical Mayor or a Mayor other than Mr Bolton. I reject the submission that an ordinary reasonable reader would not approach this on precisely the basis which is set out, namely, that Mr Bolton was willing to breach the Local Government Act by ignoring recommendations of expert consultants. The references in the post to the Local Government Act are otherwise inexplicable. The submission that Mr Stoltenberg set out the Local Government Act merely to tell readers that this is the standard that needs to be applied and “the standard we hope will be applied” has an air of unreality about it.

78. I reject the submission that the imputations pleaded are strained or unreasonable. It is not the case that the first and second imputations would only be understood in that way by someone avid for scandal. I reject the submission that the post is limited to a suggestion that information should be provided. The point of the post is that this breach of the Local Government Act is in the process of happening. The whole point of the post is that, present tense, “we get yet another “Captain’s Call””.

79. In relation to the third imputation I do not accept that in the understanding of the hypothetical ordinary reasonable reader corruption is limited necessarily to “dishonesty” or to “personal gain” as was submitted by Mr Stoltenberg. The word “corruption” would be understood by the ordinary reasonable reader to be wide enough to encompass conduct forbidden by an Act of Parliament. In the context of allegations about the conduct of the Mayor it is wide enough to include conduct in breach of the Local Government Act. My reason for rejecting the third imputation is that I do not think that after reading the whole of the post, the hypothetical ordinary reasonable reader would understand that Mr Bolton had selected the new General Manager in order to dominate a weak and inexperienced person.

Second matter complained of

80. The second matter complained of consists of a Narri Leaks post headed “Again for the purpose of accurate facts…” which includes the statements:

“It would be a fair question the ratepayers to ask, has he [Mr Todd] ever put a set of statements together on his own ?

By way of his published resume and the staff structures on the 2 councils he has worked at, not only has he never acted as a GM , he has never been a director. From these documents he has never supervised a significant number of staff.

Again, sticking to the facts, could the Mayor point out exactly what made a 36 yr old who had not even ever held the position of Finance Manager stand out ? I know there was at least 1 very experienced GM in the field , but I have heard there may have been more than one experienced GM , and Mr Todd was in fact the least experienced by a long way of the candidates. This last assumption simply due to the fact anyone with such a limited LG experience in councils would almost never apply in the 1^st place.

My Mayor, like that famous day at Eagle Farm racecourse in August 1984, Fine Cotton, the rate payers are lining the fence yelling, “RING IN”.”

…

“To most readers it would seem the local government act has been breached, in that the job has not been awarded on Merit as required by the act.”

…

“It would seem there should be an independent enquiry by either the ombudsman, the department of local government or ICAC…”

81. The imputations in the second matter complained of are:

1. “The Plaintiff, in his role of Mayor of Narrabri Shire Council, acted corruptly by favouring a grossly unqualified candidate for the position of General Manager of Council in preference to vastly more experienced candidates”; and

2. “The Plaintiff in his role of Mayor of Narrabri Shire Council, breached the Local Government Act by awarding the position of General Manager of Council on criteria other than merit”. 

82. I find that the hypothetical ordinary reasonable reader would understand the matter to have the meaning articulated in the second pleaded imputation. The specific assertion that “it would seem the Local Government Act has been breached, in that the job has not been awarded on Merit”, despite being couched as appearing “to most readers”, would plainly be understood by the hypothetical ordinary reasonable reader as an accusation that the Mayor of Narrabri had breached the Local Government Act by making the appointment of Mr Todd otherwise than on merit. That imputation is defamatory as it tends to lower the Plaintiff’s reputation in the minds of “right thinking ordinary members of the community”.

83. I was initially attracted to the proposition that the first imputation had also been established. The hypothetical ordinary reasonable reader would, I had initially thought, have understood the reference to Fine Cotton and “ring in” as referring to the notorious attempt to pass off a better racehorse, Bold Personality, as one known as Fine Cotton.  The “Fine Cotton affair” is a phrase associated with corrupt and incompetent conduct. To have switched a racehorse, only to have a large group of punters line the fence yelling “ring in, ring in” as the horse was brought back to scale, bespeaks both fraud and incompetence. Those elements, the seriousness of the crime and the comically ill-conceived conspiracy, whereby punters did indeed line the fence at Eagle Farm yelling “ring in” as Bold Personality was being brought back to scale, were clearly understood by me, and no doubt Mr Stoltenberg, as alleging that Mr Bolton as Mayor acted corruptly in favouring a grossly unqualified candidate for the position of General Manager of Council in preference to vastly more experienced candidates. 

84. I am ultimately persuaded, however, that Ms Chrysanthou was correct when she characterised my knowledge of the Fine Cotton “ring in” as specialised knowledge, not possessed by the hypothetical ordinary reasonable reader.  That conclusion is supported by the decision of McCallum J in an earlier phase of this case who concluded that the ordinary reasonable reader would not necessarily know about the Fine Cotton incident.

Third matter complained of

85. The third matter complained of consists of the Narri Leaks post headed “Again for the purpose of accurate facts…” (the second matter complained of) together with the comments set out below. The relevant comments made on the post were:

Ann Loder: “…Anyone else agree about getting ICAC and The Minister for local government involved need to like this post. We need to let Council know we are serious and are not going to be intimidated by them.”

NARRI LEAKS: “It looks pretty obvious, council chose the least experienced of those interviewed, the least on merit. Why did they spend all the money on the consultant if they were not going to take any notice of him ? There is no way the consultant would have recommended a person who had not even had prior experience as a director, let alone GM. This man has less experience than many of councils mid level managers.”

Ann Loder: “Lyn, its not about who didn’t get the job, but it is about who did. We know there were 4 candidates interviewed for the position. 1 was the successful applicant, 1 was Greg, another was a guy who is currently employed as a GM and unfortunately I don’t know anything about the 4^th applicant, so I can’t comment about him. If we took Greg out of the equation, there is still at least one other candidate that has more experience as a GM than the one that actually got the job. The complaint here is that the Councillors are required by law to choose the best applicant for the job. There were at least 2 of them that had far more experience than the one chosen, and one of them has a legal background and is strong in finance. To me this sounds like Council was worried that the other two candidates may have too much experience and wanted someone that would have to learn the ropes first before they could get their teeth into the job.”

Jeff Stoltenberg: “Ring in, Ring in”

NARRI LEAKS: “Council has snubbed its nose at the community and put on yet another L plater, to further what ever its secret agenda is.”

NARRI LEAKS: “In this instance, it looks like rather than properly experienced people giving Narrabri a wide birth for its many problems, it looks like at least 2 and possibly 3 , properly experienced people did apply, but the council managed to find the only applicant who did not have experience as a director.”

1. Mr Stoltenberg to pay Mr Bolton damages of $100,000 comprising $80,000 in general damages and $20,000 in aggravated damages;

2. Mr Stoltenberg to pay Mr Bolton interest on the award in the amount of $10,000;

3. Mr Stoltenberg to pay Mr Bolton’s costs as agreed or assessed;

4. Mr Stoltenberg by his servants or agents, is permanently restrained from publishing or broadcasting any of the following allegations:

1. The Plaintiff, in his role as Mayor of Narrabri Shire Council, was willing to breach the Local Government Act by making a “Captains Call” to hire a weak and inexperienced General Manager that he could control;

2. The Plaintiff, in his role as Mayor of Narrabri Shire Council, was willing to breach the Local Government Act by ignoring the recommendations of expert consultants hired by Council, and instead prevailing on other councillors to pick a candidate on criteria other than merit;

3. The Plaintiff in his role of Mayor of Narrabri Shire Council, breached the Local Government Act by awarding the position of General Manager of Council on criteria other than merit;

4. The Plaintiff, in his role of Mayor of Narrabri Shire Council, breached his duties by deliberately rejecting experienced candidates for the position of General Manager of Council in favour of a worse and inexperienced candidate, so that he would not be challenged by a competent General Manager;

5. The Plaintiff in his role of Mayor of Narrabri Shire Council deliberately corrupted the selection process for the General Manager for Council;

6. The Plaintiff in his role of Mayor of Narrabri Shire Council, over a three year period, breached a number of laws including the Local Government Act, in his effort to silence the interchange of ideas and the diversity of views on Council;

7. The Plaintiff in his role of Mayor of Narrabri Shire Council told deliberate lies and engaged in coercion and intimidation of employees, contractors, residents and elected councillors in his effort to suppress the views of others on council matters;

8. The Plaintiff’s corrupt, dishonest and intimidatory actions as Mayor of Narrabri Shire Council, warranted a full ICAC inquiry;

9. The Plaintiff, in his role as Mayor of Narrabri Shire Council engaged in corrupt conduct by providing the Independent Regulatory and Pricing Tribunal (IPART) with information he knew to be false;

10. The Plaintiff in his role as Mayor of Narrabri Shire Council acted illegally by providing the IPART with information he knew to be false;

11. The Plaintiff in his role as Mayor of Narrabri Shire Council knew and did not reveal that Councillor Ken Flower, the chairman of the finance committee, had falsified the Council’s books.

5. Ms Loder to pay Mr Bolton damages of $10,000;

6. Mr Bolton’s claim against Ms Loder is otherwise dismissed;

7. Each party to pay their own costs of Mr Bolton’s claim against Ms Loder;

8. Exhibits to be returned to the parties. Exhibits not to be destroyed until any period for appeal has expired.

**********

Annexure A – First Matter Complained Of

Annexure B – Second Matter Complained Of

Annexure C – Third Matter Complained Of

Annexure D – Fourth Matter Complained Of

Annexure E – Fifth Matter Complained Of

Annexure F – Sixth Matter Complained Of

Decision last updated: 15 October 2018