Burke v Shiells
[2018] VCC 1645
•15 October 2018 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| DEFAMATION LIST |
Case No. CI-16-02440
| GAVIN PATRICK BURKE | Plaintiff |
| v | |
| GRAEME FRANCIS SHIELLS | First Defendant |
| and | |
| SANDRA JOY SHIELLS | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16, 17, 18, 19, 20, 23, 24, 25, 26, 27, 30 and 31 July; 1, 2, 3, 6, 7, 13, 14 and 15 August 2018 | |
DATE OF JUDGMENT: | 15 October 2018 (Revised) | |
CASE MAY BE CITED AS: | Burke v Shiells & Anor | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1645 | |
REASONS FOR JUDGMENT
---
Subject: DEFAMATION
Catchwords: Whether imputations defamatory of plaintiff – whether defendants liable for a re-publication of defamatory letters by a non-party – identity of publishers of defamatory material – whether defendant ratified actions of non-party in republishing defamatory letters – justification – qualified privilege – whether defence of qualified privilege defeated by malice – fair comment – distinction between comment and statements of fact – damages – aggravated damages
Legislation Cited: Limitation of Actions Act 1958, s5(1AAA), s23B; Defamation Act 2005 (Vic), s25
Cases Cited:Burke v Shiells & Anor (Ruling No 1) [2018] VCC 1095; Burke v Shiells & Anor (Ruling No 2) [2018] VCC 1109; Trkulja v Google LLC [2018] HCA 25; Webb v Bloch & Ors [1928] 41 CLR 331; Colonial Mutual Life Assurance Society Limited v The Producers and Citizens Co-operative Assurance Company of Australia Ltd [1931] 46 CLR 41; Sweeney v Boylan Nominees Pty Limited (2006) 226 CLR 161; Moroney v Zegers [2018] VSC 446; Cush v Dillon; Boland v Dillon (2011) 243 CLR 298; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Stephens & Ors v West Australian Newspapers Limited (1993-94) 182 CLR 211; Szanto v Melville [2011] VSC 574; Roberts & Anor v Bass (2002) 212 CLR 1; Marshall v Megna; Megna v Tory; Tory v Megna [2013] NSWCA 30; Gardiner v John Fairfax & Sons Pty Ltd. (1942) 42 SR (NSW) 171; Goldsbrough v John Fairfax & Sons Ltd & Anor (1934) SR (NSW) 524; Hunt v The Star Newspaper Company Limited (1908) 2 K.B. 309; Pryke & Ors v Advertiser Newspapers Limited & Ors [1984] 37 SASR 175; French v The Herald and Weekly Times Pty Limited (No 2) [2010] VSC 155; Trkulja v Yahoo! Inc LLC & Anor [2012] VSC 88; Wilson v Bauer Media Pty Ltd [2017] VSC 521; Herald and Weekly Times Limited v McGregor [1928] 41 CLR 254; Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Judgment:Judgment for the plaintiff. Damages assessed in the sum of $75,000.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Garrett | Gleeson and Co Lawyers |
| For the Defendants | Mr G Mukherji | Cosgriff Lawyers |
HIS HONOUR:
History of the proceeding
1 In 2015, the plaintiff, Gavin Burke, commenced a proceeding in the Magistrates’ Court at Echuca against the defendants, Mr Shiells and Mrs Shiells respectively, seeking damages in respect of publications he alleges were defamatory of him. The proceeding was later transferred to this Court.
2 Those publications consisted of three letters that were sent to the editor of The Riverine Herald (“the TRH”, as it was referred to during the trial), a newspaper published in Echuca in Victoria and distributed mainly in north-eastern Victoria and southern New South Wales.
3 Those letters were described during the trial as:
· The “Susan Williams letter”, published in the TRH on 23 March 2012;
· The “Samuel West letter”, also published in the TRH on 23 March 2012; and
· The “Shaun Williams letter”, published in the TRH on 1 August 2012.
4 Shortly before the dates upon which they were published, each of those letters was an attachment to an email sent to the editor of the TRH (“the editor”) with a request that the letter be published in the Letters to the Editor section of that newspaper. The emails in question were purportedly sent to the editor by those three named persons – Susan Williams, Samuel West and Shaun Williams. At trial, it was not in issue that no person of such name sent any of those emails.
5 The editor made some minor deletions to the letters before publishing them but it was not suggested by the parties that those deletions exacerbated any of the imputations that I have found were capable of arising from the published letters.
6 Copies of the Susan Williams letter, the Samuel West letter and the Shaun Williams letter, as they appeared in the TRH, are annexed to these Reasons and marked as Schedules “A”, “B”, and “C” respectively.
7 Mr Burke alleges that each of the letters were defamatory of him and were written or published by or with the authorisation of both defendants, Graeme Shiells and his wife, Sandra Shiells.
8 Pursuant to s5(1AAA) of the Limitation of Actions Act 1958, a proceeding to recover damages in respect of a defamatory publication must be commenced within twelve months of such publication unless an extension of time for the issuing of such proceedings has been made pursuant to s23B of that Act. The maximum extension that can be granted by a court is three years from the date of publication.
9 By mid 2015, any claim for damages in respect to the publication of the Susan Williams and Samuel West letters was time barred. In this proceeding, no claim is made by Mr Burke in respect of the publication of those two letters in the TRH in March 2012.
10 With regard to the Shaun Williams letter, on 31 July 2015 (one day short of three years after its publication in the TRH), Mr Burke brought an application to have the time in which a claim for damages could be brought in respect of its publication in August 2012, extended by three years. In due course, an Order for such extension was made by the Magistrates’ Court at Echuca.
11 In addition, Mr Burke alleges that both the Susan Williams and the Samuel West letters were later re-published by their inclusion in an application in respect of a planning matter made to the New South Wales Department of Planning & Infrastructure (“the Department”) brought by one Dianne MacFarlane (“Mrs MacFarlane”) in March 2015 (“the MacFarlane Re-publication”). Mr Burke alleges that in re-publishing the Susan Williams and Samuel West letters, Mrs MacFarlane was acting as an agent of, or on behalf of, Mr and Mrs Shiells or, alternatively, that they had consented to and/or authorised the re-publication.
12 Further, the plaintiff alleges that the defendants knew of the MacFarlane Re-publication and permitted the letters to remain on the Department’s website until 20 March 2018.
13 No claim is brought by Mr Burke against the TRH, the Department, or Mrs MacFarlane.
14 Documents filed by Mrs MacFarlane in support of her application (“the Application”) including the Susan Williams and Samuel West letters, could be downloaded by members of the public between about March 2015 and 20 March 2018, when they were removed from the Department’s website at the request of solicitors acting for Mr and Mrs Shiells.[1]
[1]Transcript (“T”) 1525
15 Initially, Mr Burke pleaded two causes of actions seeking damages – firstly, in respect of defamation and, secondly, in respect of injurious falsehood.
16 In his Third Further Amended Statement of Claim dated 16 July 2018, Mr Burke abandoned his injurious falsehood cause of action. The claim proceeded only as a claim for damages for defamation.
17 In summary, Mr Burke’s claim against Mr and Mrs Shiells is for damages in respect of:
(a) the publication of the Shaun Williams letter in the TRH on 1 August 2012; and
(b) the MacFarlane Re-publication of the Susan Williams and Samuel West letters between March 2015 and March 2018.
18 Initially, in a joint Defence dated 4 November 2015, Mr and Mrs Shiells both denied that they had sent or published any of the three letters in question, and denied that they had authorised the publication or re-publication of any of them.
19 Later, Mrs Shiells, in an Amended Defence, admitted that she had written the three letters and sent them to the editor. She admitted using the three false names.
20 Mr Shiells denies that he had any involvement in the writing or publication of any of the three letters.
21 In addition, Mr and Mrs Shiells have pleaded a number of defences – namely, justification, qualified privilege and fair comment – in respect of imputations pleaded in respect of the letters.
22 The alleged defamatory imputations pertaining to the three letters are set out respectively in paragraphs 11, 12, and 13 of Mr Burke’s Statement of Claim (as amended). They are:
With regard to the Susan Williams letter (paragraph 11) – that Mr Burke:
(a) has repeatedly made unjustified complaints in the press and other public forums regarding issues affecting residents and local government in the Echuca/Moama region and/or in the Shire of Murray; and
(b) is uninformed and/or mistaken about complaints which he raises in public forums in relation to Shire issues.
With regard to the Samuel West letter (paragraph 12) – that Mr Burke:
(a) has repeatedly made unjustified complaints in public forums regarding Shire issues.
With regard to the Shaun Williams letter (paragraph 13) – that Mr Burke:
(a) has made unjustified complaints in public forums in relation to Shire issues;
(b) is uninformed about complaints which he raises in public forums in relation to Shire issues;
(c) is mistaken about complaints which he raises in public forums in relation to Shire issues;
(d) causes divisions between persons living in the Echuca/Moama region and/or in the Shire of Murray;
(e) is prepared to make statements in respect of which he is reckless as to whether they are true; and
(f) often gets his facts wrong.
23 I have previously ruled that each of those imputations are capable of arising from the letters in question[2] and are capable of being considered as defamatory of Mr Burke.[3]
[2]Burke v Shiells & Anor (Ruling No 1) [2018] VCC 1095
[3]Burke v Shiells & Anor (Ruling No 2) [2018] VCC 1109
Background
Mr and Mrs Shiells
24 Mr and Mrs Shiells have lived in Moama in southern New South Wales since about 1997. They lived on Maiden-Smith Drive, Moama (“MSD”), a road which was situated in an area known as the River Gums Estate, and which, in part, ran parallel to the Murray River. Some of the blocks forming the estate were situated on the river side of MSD and abutted the river, while other blocks were situated across MSD, away from the river. The blocks on both sides of MSD were relatively large. Each of the blocks were subject to planning restrictions which limited the minimum size of blocks for subdivision purposes.
25 It was common ground between the parties that if any of the blocks could be further subdivided beyond the minimum sizes then permitted, the value of such blocks would increase.
26 For some years before 2012, some owners of blocks on MSD had campaigned for reduction in the minimum sizes for subdivision, which would enable them to further subdivide their blocks.
27 As early as 2008, Mr and Mrs Shiells had unsuccessfully applied for a subdivision of part of their block, which would involve a reduction of minimum block sizes. It was not in issue that the value of their land would have been substantially increased if they could achieve this.
28 At the times that the three letters were written and published in the TRH, Mr Shiells was a councillor for the Shire of Murray. He had been a councillor for some eight years and had been Mayor for part of that period.
Mr Burke
29 Mr Burke did not live on or near MSD. He and his wife lived in Moama on the Rich River Estate, some distance away. He was a person who was interested in Moama and the Shire of Murray community affairs, and was a regular writer of letters to the editor which were regularly published in the TRH, and was a regular attendee in the public gallery at monthly Shire Council meetings.
30 I accept that Mr Burke was generally known to have negative views concerning any reduction of block sizes on MSD. He was in favour of maintaining the minimum block sizes dictated by the planning regulations of that time.
Dianne MacFarlane
31 From 2004, Mrs MacFarlane had owned land and resided on MSD. She was also a Shire councillor. She was in favour of reduction of block sizes on MSD and wished to subdivide her own land. It was common ground that if minimum block sizes on MSD were reduced, the value of her land would increase substantially.
Dispute
32 For some years before 2012, there was friction between persons opposed to reduction in block sizes on MSD and those in favour of a reduction in block sizes. I accept that Mr and Mrs Shiells, and some others who owned blocks on MSD, were aware that Mr Burke was likely to continue to oppose any reduction of block sizes on MSD, and therefore hinder any attempt by them, or others, to further subdivide their blocks.
33 By March 2012, Mr Burke was regarded by Mr and Mrs Shiells, and others, as a person who might stand for election to the Shire Council. Elections were scheduled for October 2012. If elected as a councillor, his opposition to such reduction of minimum block sizes would, in all likelihood, have been more effective. In July 2012, Mr Burke formally announced his intention to stand for Council at the forthcoming election.
Was the Shaun Williams letter published by one or both of the Defendants?
34 I consider that, in addressing this issue, the circumstances in which all three of the letters were published should be examined.
35 In each case, the proposed letters were attached to, or contained in, an email sent to the editor, purportedly by persons named Susan Williams, Samuel West, and Shaun Williams respectively.
36 In their original joint Defence dated 4 November 2015, Mr and Mrs Shiells denied that they had sent, or were involved in, the sending of any emails to the TRH under the names of Susan Williams, Samuel West or Shaun Williams.
37 In an Amended Defence dated 18 February 2016, Mrs Shiells:
· Did not admit that she published or had been in any way involved in the publication of the Susan Williams or Samuel West emails;[4]
· Denied that she had published or been in any way involved in the publication of the Shaun Williams email.[5]
[4]Paragraphs 11A and 12A
[5]Paragraph 13A
38 In a Further Amended Defence dated 24 March 2016, Mrs Shiells admitted that each of the three letters had been written by her and been sent by her to the editor with a request that they be published in the Letters to the Editor section of the paper.
39 At all times, Mr Shiells has denied having anything to do with the publication of any of the three emails or the attached letters.
40 Both Mr and Mrs Shiells gave evidence at the trial and denied that Mr Shiells wrote or authorised any of the letters or emails to which they were attached.
41 Having observed Mrs Shiells give her evidence, I have concluded that she was close to her husband and supportive of him and, in particular, supportive of his work as a councillor and as Mayor of the Shire. I accept that she did not enjoy seeing letters in the TRH written by Mr Burke, and which were critical of the council and of her husband as a councillor or Mayor.
42 Mrs Shiells had not met or laid eyes on Mr Burke until November 2012, well after the letters in question were written by her, and published.
43 The evidence of Mr Shiells was that he had a policy of not replying to letters to the editor which were critical of him. He said that, shortly after being elected to the Council, the then Mayor and general manager of the Shire had advised him not to get involved in such correspondence – “they just become a tit for tat process and all it does is sell newspapers”.[6]
[6]T917-8
44 Mrs Shiells’ evidence was that she alone had decided to write the three letters using false names without any consultation with her husband. I consider that evidence was unconvincing.
45 In particular, I do not accept Mrs Shiells’ evidence as to why she used a false name for each of the letters. She stated that she believed that Mr Burke was a person with a reputation for violence and that she feared for her safety if she published the letters under her own name.
46 Mrs Shiells said that her principal reason for having that fear was information provided to her by friends who were nearby neighbours of Mr Burke in the Rich River Estate, where he and those neighbours lived.
47 By 2012, the Mayor of the Shire was Brian Sharp. Mr Sharp and his wife lived across the road from the plaintiff and his wife.
48 Having heard evidence from Mr and Mrs Burke, and from some of their neighbours, I accept that relations between the Burkes and some of their neighbours, including the Sharps, were poor. The Burkes appear to have had very little, if anything, to do with those neighbours socially. Whether this was caused by the behaviour of Mr and/or Mrs Burke or by the Sharps, or other neighbours, I am unable to say.
49 One objective sign of those poor relations was that on 27 May 2010, Mrs Sharp and three other neighbours – Mrs Shine, Mrs Mudge, and Mrs Ridley – each applied to the Local Court of New South Wales in Moama for Apprehended Violence Orders against Mr Burke. Each application alleged behaviour on the part of Mr Burke amounting to harassment and intimidation of his neighbours. The four applications were listed for hearing on the one date, but were referred by the Court to mediation. None of the applications proceeded beyond mediation and no court findings or orders were ever made concerning the allegations made by the applicants against him. None of the allegations against Mr Burke were ever reported to police.
50 Evidence in this trial was given by Mrs Sharp, Mrs Shine, and by Mrs Mudge’s son, Ryan. Mrs Ridley and Mrs Mudge did not give evidence.
51 The various allegations made by Mrs Sharp and her neighbours in those applications were strenuously denied by Mr Burke.
52 Regardless of whether or not all or any of the allegations made by the neighbours against Mr Burke were justified, for a number of reasons I reject the evidence of Mrs Shiells that she used false names in her three letters to the editor because she feared for her safety from Mr Burke.
53 Firstly, the references to Mr Burke in the letters were not particularly damming or scandalous of him. There would have been no reason for Mrs Shiells to suspect that Mr Burke would have reacted in a violent manner towards her as a consequence of any of the letters.
54 Secondly, in early 2012, Mr Burke was aged about seventy-one. Mrs Shiells had never met him. Her evidence was that she had not met or sighted him until the Shire Christmas function in November 2012, months after the letters were written.
55 Thirdly, if Mrs Shiells had had any such concerns, it is difficult to understand why she would have published the letters or why she would not have discussed the proposed letters with her husband, who knew Mr Burke both before and after his election to Council.
56 Fourthly, I do not consider that any of the matters raised by Mrs Shiells in the three letters were of such importance that the community of Moama or the Shire of Murray needed to be notified of them, especially if she had perceived a risk of violence.
57 Fifthly, when sending the letters to the editor, Mrs Shiells advised the editor that her address was 10 Lawson Drive, Moama. This was not her address, but it was an address she knew existed and at which people unknown to her resided. I consider that, if she genuinely believed that Mr Burke was a risk to her safety if she used her own name, she would have considered that she was putting the occupants of 10 Lawson Drive (whoever they were) at risk in the event that Mr Burke obtained details of that address from the TRH.
58 Sixthly, Mrs Shiells gave evidence that, at the Council Christmas function in November 2012, she had visited a table where Mr and Mrs Burke were sitting. Her evidence was:
“It actually crossed my mind that it would be nice if I could sit with Mr Burke and have a chat about these letters because it was common knowledge at that time that he knew who had written the letters … he started banging the table in an agitated way, like tapping it like this, ‘She’s the letter writer. She’s the letter writer’, and he did this about six times louder and louder each time … and I said to him, ‘Well, at least my letters are the truth …’.”[7]
[7]T1081
59 I consider that the significance of this exchange is that Mrs Shiells, notwithstanding her alleged belief that Mr Burke knew that she had written the letters, thought it would be nice to have a chat with him about them, and was prepared to confirm to him that she had written them. Any concern about her safety seems to have dissipated in circumstances that were not explained by her.
60 Mr and Mrs Shiells were well aware that Mr Burke was a person who was against the reduction of block sizes in MSD.
61 I find that by March 2012, Mr and Mrs Shiells understood that Mr Burke was a possible candidate for the October election for Shire councillors. By the time of the publication of the Shaun Williams letter in August 2012, she was aware that Mr Burke had, in the month before, formally announced that he was standing for election.
62 I am satisfied that each of the letters were written and published in an attempt to harm Mr Burke’s reputation in the Moama/Shire of Murray region so as to nullify or reduce the effect of his opposition to reduction in minimal block sizes in MSD which might hinder, or even prevent, the further subdivision of the Shiells’ land. I find they were written in order lessen his electoral prospects.
63 I conclude that the letters were written under false names principally to hide the fact that they were written by a resident of MSD who had an obvious financial interest in the reduction of minimal block sizes.
64 Such conclusion is strengthened by examination of the events which occurred in the periods leading up to the three letters being sent to the editor.
65 I note the following:
· On 21 February 2012, Council voted to reduce the minimum block sizes for blocks on MSD.[8]
[8]Exhibit 44
· At the next meeting of the Council, on 20 March 2012, Council voted to rescind that previous motion,[9] a rescission that did not please, and was not in the interests of, Mr and Mrs Shiells.
[9]Exhibit “P”
· The Council meeting of 20 March 2012 closed at 3.00pm.[10]
[10]Exhibit “P”
· Sixteen minutes later, at 3.16pm, the Susan Williams letter was sent by email to the editor.[11]
· On 22 March 2012, the Samuel West letter was sent to the editor.[12]
[11]Exhibit 48
[12]Exhibit 49
66 I think it unlikely that the timing of those letters so soon after the close of the March Council meeting was a coincidence. I am satisfied that those letters were written and sent to the editor as part of a campaign to achieve a reduction of permitted block sizes which would be likely to increase the value of their land on MSD. I find that part of that campaign was to undermine Mr Burke’s reputation.
67 Mrs Shiells’ evidence was that she knew little of matters relating to the potential subdivision of the land occupied by her and her husband. She said that she effectively left those matters and, basically, all Council matters, to her husband. Likewise, Mrs Shiells did not appear to involve herself in her husband’s Council activities. Her husband’s evidence was consistent with hers.[13]
[13]T954-5; T970; T1114; T1121; T1171
68 Both Mr and Mrs Shiells gave evidence that after the publication of the Susan Williams and Samuel West letters, they had discussed those letters. Both she and Mr Shiells gave evidence that, at that time, she did not tell her husband that she had been the author of them. Why Mrs Shiells would, at that time, have kept from her husband that she was the author of them she did not explain.
69 The evidence as to when Mr Shiells discovered that his wife was the author of both those letters was inconsistent.
70 In her evidence, Mrs Shiells stated that in about April 2012, she had told her husband that she was the author of the Susan Williams and Samuel West letters – that is, within a matter of weeks after their publication.[14]
[14]T1095
71 In his own evidence in Court, Mr Shiells also stated that Mrs Shiells had told him in about April 2012 that she had written the two letters.[15]
[15]T953
72 Notwithstanding, Mrs Shiells stated that when she wrote the Shaun Williams letter, she again did not disclose to Mr Shiells that she intended to write it, or that she had written it, until well after it was published in the TRH on 1 August 2012. Why she would keep her authorship of the third letter from her husband was not explained.
73 However, in Answers to Interrogatories sworn by him on 18 August 2017, Mr Shiells stated that he had no conversations with Mrs Shiells on any issue associated with the Susan Williams or Samuel West letters prior to their publication, and that he had no conversations with Mrs Shiells between the date of their publication and 2 August 2012, except to say to her, words to the effect that two letters had been published in the TRH which referred to Mr Burke. He said he did not recall discussing anything further in relation to either of those letters[16] between that time and 2 August 2012.
[16]Exhibit “AH”, Further Answers to Interrogatories 7(a) and 15(a)
74 Mr Shiells further swore that he had spoken to Mrs Shiells after the Shaun Williams letter had been published on 1 August 2012 and said to her, words to the effect that a letter had been published in the TRH which referred to Mr Burke, and that if she had anything to do with it, then she should stop sending such letters.[17]
[17]Exhibit “AH”, Further Answers to Interrogatory 23(a)
75 I consider that those Answers to Interrogatories are inconsistent with Mr Shiells’ evidence that he had been told by Mrs Shiells in April 2012 that she was the author of the Susan Williams and Samuel West letters. Those Answers also cause me to reject Mr Shiells’ evidence that he did not know that his wife was likely to have been the author of the Shaun Williams letter in August 2012. All three letters contained criticisms of Mr Burke and were ostensibly written by people whose initials were “SW”. Mr Shiells said that he was aware that prior to their marriage, Mrs Shiells’ initials were “SW”.
76 I note that in the Susan Williams letter, while the criticism of the plaintiff in the letter is restricted to MSD issues, there is also criticism of Tom Weyrich (another member of the Shire Council at that time). Prior to the letter being altered somewhat by the editor prior to publication, it had included the following words:
“Councillor Tom Weyrich also needs to do his homework a bit better so that he can actually debate issues at council rather than just shout abuse at other councillors when he doesn’t get his own way. He is the only rotten member that I can see because of his refusal to apologise for his disgraceful conduct. He does love to grandstand himself but never seems to achieve anything of substance. Do the honourable thing Tom, and apologise for your conduct or resign from council.”[18]
[18]Exhibit 48
77 The letter also contains praise of two members of Council staff, Mr Murdoch and Mr Arkinstall, unrelated to MSD issues.
78 There was no evidence that Mrs Shiells had any particular knowledge of Council affairs,[19] the performance of Council staff members, or the behaviour of Mr Weyrich at Council meetings. The bases of the criticism of Mr Weyrich and the glowing remarks concerning Council staff were not explained in evidence.
[19]T954-5; T970
79 In contrast, as a Council member, Mr Shiells would have had regular dealings and contact with other councillors and with Council staff.
80 On the basis of the inconsistencies to which I have referred, and the content of the Susan Williams letter, I have come to the conclusion, on the balance of probabilities, that Mrs Shiells did not act alone in preparing and publishing the letters. I find that Mr Shiells was involved in the publication of each of the three letters to the TRH. I am unable to say whether Mr Shiells played a major or minor role in such authorship, but I am satisfied that he was involved in the authorship of the letters and in the publication of each of them.
81 For the reasons previously discussed, Mr Burke’s claim, insofar as it relates to the publications in the TRH, is only in respect of the Shaun Williams letter.
82 A further matter that causes me to doubt the veracity of the defendants’ evidence, generally, was the admission by Mr Shiells that he knew that the first and second Defences filed by them was wrong insofar as it contained a denial that either he or Mrs Shiells had published any of the three letters. Mr and Mrs Shiells did not suggest that their first or second Defences were filed without instructions or that their instructions to their solicitors had been misunderstood.
83 Further, at the time that Mr Burke’s application to the Magistrates’ Court for an extension of time in which to bring a claim in respect of the Shaun Williams letter was heard in November 2015, counsel appearing on their behalf made a submission to the effect that Mr Burke’s suspicion that Mr or Mrs Shiells had sent the Shaun Williams letter was misconceived. That is, the submission made on behalf of Mr and Mrs Shiells was that Mr Burke only had a suspicion that they had been involved in the sending of the letters and that that suspicion was unfounded.[20] Both Mr and Mrs Shiells were in Court when those submissions were made to the Magistrate. They must have known that the submission was false. Neither of them took any step to correct that error. Both of them were aware that if Mr Burke’s application for the extension failed, he would have no claim against them in relation to the Shaun Williams letter.
[20]T946-7
84 I should make it clear that I do not conclude, and it was not suggested in the trial, that counsel appearing for the Shiells on that application was doing anything other than making submissions in accordance with the instructions he had from Mr and Mrs Shiells at that time.
Persons liable for the March 2015 re-publication
85 Mrs MacFarlane was an elected Shire councillor from 2004 to October 2012. She did not stand for re-election at the October 2012 election.
86 Mrs MacFarlane’s evidence was that, while she was a member of the Council, she did not consider any subdivision of her land. She first considered subdividing in about 2013 or 2014. She understood that this would require a change in the minimum size of permissible allotments in MSD.
87 Mrs MacFarlane engaged a Mr Langenbacher, a consultant from a firm named Planright, to assist her in taking her application to Council on a number of occasions. On each occasion it was knocked back by Council.
88 After a time, Mrs MacFarlane concluded that her application was unlikely to be approved. She learned of a process known as a Pre-Gateway Review, a process within the New South Wales Department of Planning & Infrastructure which deals with persons whose planning proposal or proposals to local council had or have been refused. Those persons could apply for an independent review.
89 Mrs MacFarlane’s understanding was that this process was to assist persons whose applications had been continually bogged down in Council. The review was to determine whether or not the proposal had merit. If such an application was considered to have merit, it would still have to be formally approved by the council and possibly by the Department.
90 To apply for such a review, Mrs MacFarlane was required to fill in an application form and pay a nominated fee. She had discussions with several other MSD residents. She prepared a proforma letter[21] and sent a copy of it around to all residents of MSD. It enquired as to whether residents had any interest in subdividing, and, if so, requested them to sign the document and return it to her. She recalled that she received thirteen or fourteen signed supporting forms out of a total of twenty-three MSD residents.
[21]T1209-10
91 Mrs MacFarlane organised a meeting at a local hotel to which all residents of MSD were invited. She explained to them that a Pre-Gateway application would cost money, and sought contributions from her fellow residents. Some, including Mr and Mrs Shiells, agreed to contribute – in their case, $3,000.
92 Mrs MacFarlane filed her Pre-Gateway application on 10 March 2015.[22] She attached to her application a package of documents (which were exhibits “C” and “D”). This was accompanied by an application fee of $20,000.
[22]Exhibit “B”
93 Having lodged the application, Mrs MacFarlane spoke with personnel from the Department regularly.
94 Perusal of the application form[23] discloses that:
[23]Exhibit “B”
· Mrs MacFarlane is the named applicant.
· Under the heading “A2 – Site Details” the applicant was required to identify the land that is to be the subject of the planning instrument and for which the applicant sought a review. The street address was identified as 11 Maiden-Smith Drive, Moama, New South Wales (Mrs MacFarlane’s address).
· On the following line, the applicant was required to provide the name of the site. She identified the site as “Maide-Smith Drive (sic) – all of the estate”. (My emphasis added).
· Further on in the form, the applicant was asked to provide details of “ALL AFFECTED LANDOWNERS WHERE THEY ARE NOT THE DIRECT APPLICANT”.
The details provided by Mrs MacFarlane are:
“THE INCLUDED LETTERS OF SUPPORT STATE NAMES ETC.[24]
[24]Court Book (“CB”) 504
…
ALL OF THE LANDOWNERS WHO WANT 2000SM HAVE SUBMITTED LETTERS OF SUPPORT IN THIS PACKAGE.”[25]
[25]CB 504
· At PART C3 of the application form, Mrs MacFarlane’s signature appears. The form contains the following question –
“In what capacity are you signing?”
Mrs MacFarlane wrote:
“PROPERTY OWNER / ON BEHALF OF LISTED ON LETTERS OF SUPPORT IN MAIDEN-SMITH DR.”[26]
(sic)
[26]CB 506
95 The application, having been filed with the Department, was placed on the Department website. Members of the public were able to visit that website, and view applications and documents filed in support of them.
96 Exhibit “C” contained a summary of Mrs MacFarlane’s Pre-Gateway Review. That summary reads as follows:
“Rezone and amend the minimum lot size for 23 lots fronting Maiden Smith Drive in the River Gums Estate from Zone R5 Large Lot Residential with a 5000m2 minimum lot size to Zone R2 Low Density Residential with a 2000m2 minimum lot size.”[27]
[27]CB 507
97 A little further down the same page, the following information appears:
“The application has been submitted by Dianne MacFarlane on behalf of the landowners who support the rezoning and change of minimum lot size in MSD, including:
…
1. Graeme & Sandra Shiel[l]s … .”[28]
[and ten other persons or families who resided at MSD].
[28]CB 507
98 The reference to twenty-three lots is a reference to all of the lots constituting MSD. It can be seen from the page referred to that there are only eleven supporting landowners referred to (in addition to Mrs MacFarlane). The owners of two of the lots are referred to as having provided letters of objection (as opposed to letters of support).
99 On the same Pre-Gateway Review Summary,[29] references under the heading “Documents” provided a link to various documents comprising the package of supporting material lodged by Mrs MacFarlane.
[29]Exhibit “C”
100 Amongst these is a link to “Letters of Support for Proposal”. By clicking on that link, one was able to locate and view all letters of support for Mrs MacFarlane’s application.
101 By clicking on the link “Newspaper articles RE: Council”, various newspaper articles or letters could be accessed, including the Susan Williams and Samuel West letters, which are located on page 57 of the package under a heading inserted by Mrs MacFarlane, which reads:
“Some comments from disgruntled residents of Maiden-Smith Drive who are fed up with this unfair, biased Council.”[30]
[30]Exhibit “D”, page 57 of the package
102 It is not in dispute that Mrs MacFarlane re-published the Susan Williams and Samuel West letters by including them in the package of documents provided to the Department in support of her Pre-Gateway application.
103 The issue is whether Mr and/or Mrs Shiells are in any way liable for that re-publication.
104 Counsel for Mr Burke submitted that both Mr and Mrs Shiells are liable on the basis that:
(a) their conduct was such as to amount to a re-publication of the Susan Williams and Samuel West letters by them;
(b) Mrs MacFarlane was acting as their agent when she re-published the letters; and/or
(c) they had ratified Mrs MacFarlane’s conduct in re-publishing the letters, either by their positive conduct and/or by acquiescence.
Publication principles
105 In the recent High Court decision of Trkulja v Google LLC,[31] the Court said:
“… In point of principle, the law as to publication is tolerably clear. It is the application of it to the particular facts of the case which tends to be difficult … .”[32]
[31][2018] HCA 25
[32]Trkulja v Google LLC (supra) at paragraph [39]
106 The Court referred to a number of cases as supporting the proposition that principles of law relating to publication were tolerably clear, including Webb v Bloch & Ors.[33]
[33][1928] 41 CLR 331 at 363-4
107 In Webb, Isaacs J said:
“The meaning of ‘publication’ is well described in Folkard on Slander and Libel … in these words: ‘The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him.’ In Starkie on the Law of Slander and Libel … it is said: ‘The declaration generally avers, that the defendant published and caused to be published; but the latter words seem to be perfectly unnecessary either in a civil or criminal proceeding; in civil proceedings, the principal is to all purposes identified with the agent employed by him to do any specific act’ &c. In Parkes v. Prescott (1) Giffard Q.C. quotes from the second edition of Starkie: ‘All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected.’
…
In R v Paine (2), it is held : ‘If one repeat and another write a libel, and a third approve what is wrote, they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty : so that murdering a man’s reputation by a scandalous libel may be compared to murdering his person ; for if several are assisting and encouraging a man in the act, though the stroke was given by one, yet all are guilty of homicide … .’
…
Lord Loreburn L.C. said (4) : ‘The principal and the agent are one, and it does not signify which of them made the incriminated statement or which of them possessed the guilty knowledge.’ Lord Halsbury agreed, and said (5): — ‘It matters not in respect of principal and agent (who represent but one person) which of them possesses the guilty knowledge or which of them makes the incriminating statement. If between them the misrepresentation is made so as to induce the wrong, and thereby damages are caused, it matters not which is the person who makes the representation or which is the person who has the guilty knowledge.’… .”[34]
(Emphasis added; footnotes omitted).
[34]Webb v Bloch & Ors (supra) at 363-5
108 Counsel referred me to the 1931 High Court decision of Colonial Mutual Life Assurance Society Limited v The Producers and Citizens Co-operative Assurance Company of Australia Limited[35] (“CML”).
[35][1931] 46 CLR 41
109 In that matter, Gavan Duffy CJ and Starke J said:
“… we apprehend that one is liable for another's tortious act ‘if he expressly directs him to do it or if he employs that other person as his agent and the act complained of is within the scope of the agent's authority.’ It is not necessary that the particular act should have been authorized : it is enough that the agent should have been put in a position to do the class of acts complained of … And if an unlawful act done by an agent be within the scope of his authority, it is immaterial that the principal directed the agent not to do it … The class of acts which Ridley was employed to do necessarily involved the use of arguments and statements for the purpose of persuading the public to effect policies of insurance with the defendant, and in pursuing that purpose he was authorized to speak, and in fact spoke, with the voice of the defendant. Consequently the defendant is liable for defamatory statements made by Ridley in the course of his canvass, though contrary to its direction.”[36]
(Emphasis added).
[36]Colonial Mutual Life Assurance Society Limited v Producers and Citizens Co-operative Assurance Company of Australia Limited (supra) at 46-7
110 Dixon J (as he then was), said:
“In most cases in which a tort is committed in the course of the performance of work for the benefit of another person, he cannot be vicariously responsible if the actual tortfeasor is not his servant and he has not directly authorized the doing of the act which amounts to a tort … But a difficulty arises when the function entrusted is that of representing the person who requests its performance in a transaction with others, so that the very service to be performed consists in standing in his place and assuming to act in his right and not in an independent capacity. In this very case the ‘agent’ has authority to obtain proposals for and on behalf of the appellant; and he has, I have no doubt, authority to accept premiums. When a proposal is made and a premium paid to him, the Company then and there receives them, because it has put him in its place for the purpose.
…
If the view be right which I have already expressed, that the ‘agent’ represented the Company in soliciting proposals so that he was acting in right of the Company with its authority, it follows that the Company in confiding to his judgment, within the limits of relevance and of reasonableness, the choice of inducements and arguments, authorized him on its behalf to address to prospective proponents such observations as appeared to him appropriate. The undertaking contained in his contract not to disparage other institutions is not a limitation of his authority but a promise as to the manner of its exercise. In these circumstances, I do not think it is any extension of principle to hold the Company liable for the slanders which he thought proper to include in his apparatus of persuasion.” [37]
(Emphasis added; references to authorities and citations omitted).
[37](Supra) at 48-50
111 More recently, the High Court, in Sweeney v Boylan Nominees Pty Limited,[38] considered CML.
[38](2006) 226 CLR 161
112 In Sweeney, the majority said:
“Colonial Mutual Life establishes that if an independent contractor is engaged to solicit the bringing about of legal relations between the principal who engages the contractor and third parties, the principal will be held liable for slanders uttered to persuade the third party to make an agreement with the principal. It is a conclusion that depends directly upon the identification of the independent contractor as the principal's agent (properly so called) and the recognition that the conduct of which complaint is made was conduct undertaken in the course of, and for the purpose of, executing that agency.
…
The conclusion reached in Colonial Mutual Life, that the party engaging an agent (albeit as an independent contractor) to solicit for the creation of legal relationships between that party and others is liable for the slanders uttered in the course of soliciting proposals, stands wholly within the bounds of the explanations proffered by Pollock for the liability of a master for the tortious acts of a servant. It stands within those bounds because of the closeness of the connection between the principal's business and the conduct of the independent contractor for which it is sought to make the principal liable … .
…
But the wider proposition that underpinned the argument of the appellant in this case, that if A ‘represents’ B, B is vicariously liable for the conduct of A, is a proposition of such generality that it goes well beyond the bounds set by notions of control (with old, and now imperfect analogies of servitude) or set by notions of course of employment.”[39]
(Emphasis added).
[39](Supra) at 170-1
113 In the current matter, there is no evidence that either Mr or Mrs Shiells discussed with Mrs MacFarlane how she could, or should, conduct the application, what documents she intended to include in support of her application, or which should be included or excluded.
114 Neither Mr nor Mrs Shiells directly authorised Mrs MacFarlane to include, in the packaging materials in support of her application, the copies of the TRH publication of the Susan Williams or Samuel West letters, or any other document.
115 Insofar as there may be some doubt about this, for a number of reasons I am not satisfied that Mr and Mrs Shiells knew, or had reason to believe, that Mrs MacFarlane would include copies of either of the Susan Williams or Samuel West letters in her Pre-Gateway application.
116 Firstly, there was nothing in either of those letters to indicate that they were written by a resident of MSD.
117 Secondly, there is nothing on the face of those letters which amounts to any sort of argument that minimum block sizes of properties on MSD should be reduced so as to allow further subdivisions of land situated on either side of MSD. In contrast, a letter by Ross McKenzie and Michael Kennedy, published on the same date and alongside the Susan Williams and Samuel West letters, was also included in the package of supporting documents by Mrs MacFarlane and does contain some argument and views in relation to the reduction of block sizes for subdivisional purposes in MSD. The point is, that while one might expect the McKenzie/Kennedy letter to have been included in the Pre-Gateway application, there would be no expectation on the part of Mr or Mrs Shiells that the Susan Williams or Samuel West letters would be included.
118 Thirdly, there was no evidence that Mrs MacFarlane sought advice from any of the residents of MSD as to what documents should be included with the Pre-Gateway application.
119 The fact that Mrs MacFarlane stated in her Pre-Gateway application that she acted on behalf of various landowners of properties in MSD, does not, in my opinion, amount to evidence against Mr and Mrs Shiells that she was acting as their agent, or as the agent of any of the other landowners who supported her application.
120 Although Mrs MacFarlane did not use the expression “agent” in her application, she did describe the name of the site relating to the application as “all of the estate”.
121 She effectively stated that she was signing the application on behalf of the owners of properties on MSD who had provided letters of support for her application. Even if Mrs MacFarlane considered she was acting with the authority of those MSD owners, that would not be conclusive as to whether she was in fact acting as their agent in any legal sense.
122 Similarly, I note the supporting notes set out in exhibit “C”:
“The application has been submitted by Dianne MacFarlane on behalf of the landowners who support the rezoning and change of minimum lot size in Maiden-Smith Drive including:
1. Graeme and Sandra Shiells, 23 Maiden-Smith Drive … .”[40]
[40]Exhibit C
123 It can be inferred, and I find, that those words were written by an employee of the Department (not by Mrs MacFarlane) and no more.
124 It is the Court’s role to determine what the relationship was between Mrs MacFarlane and Mr and Mrs Shiells, and to determine whether Mr and Mrs Shiells are in some way liable for the statements made by Mrs MacFarlane and any tortious conduct on her part, including the re-publication of the letters.
125 The words or titles used by a person cannot be conclusive. For instance, in litigation involving an issue of whether a person is a contractor or an employee, evidence of the title used by one or both of them is hardly conclusive. Often, a person might be described as an “independent contractor” rather than an “employee” for a number of reasons. In the end, it is not the name or title that one or other of the parties adopts that counts. It is the Court’s assessment of the true legal relationship between the parties which counts.
126 It is necessary to look beyond the wording used by Mrs MacFarlane or Department staff in the Pre-Gateway application.
127 Counsel for Mr Burke submitted that the following matters were relevant to the issue as to whether Mr and Mrs Shiells were liable in respect of the re-publication of the letters in question:
(a)Mrs MacFarlane organised a meeting of pro-subdivision landowners of property at MSD at the Border Inn Hotel in Moama, on a date which was unspecified.[41] Mr Shiells attended that meeting.
(b)At the meeting, Mrs MacFarlane told the attendees of her intention to apply for a Pre-Gateway Review, and told the attendees that this would cost money. She called for donations from those in favour of the application.
(c)At, or soon after the meeting, Mr Shiells agreed to contribute $3,000 to the cause. He later agreed to make a further financial contribution.
(d)Mrs MacFarlane engaged Mr Langenbacher of Planright to assist her with the application. He prepared proforma letters of support for the application, and they were distributed to all residents of MSD.
(e)A majority, but not all, of the residents of MSD signed and returned those letters of support to Mrs MacFarlane. Among those who signed letters of support were Mr and Mrs Shiells.[42]
(f)By letter dated 7 June 2016 (about four weeks after the application was lodged), the New South Wales Joint Regional Planning Panels (“JRPP”) sent a letter to all of the persons living on MSD.[43] That letter, in my opinion, constitutes no more than correspondence from JRPP to all persons who had expressed an interest in the Pre-Gateway application, whether positive or negative. It invited the recipient to make a submission on the proposal by a nominated date. It stated that the submission must include the reasons why the recipient supports or objects to the proposal.
(g)The letter from JRPP advised recipients (including Mr and Mrs Shiells) that the planning proposal, and other accompanying documents, may be viewed on the JRPP website. Details of the website were provided. It also advised that the proposal could be viewed at certain locations, including the Council offices at Mathoura and Moama.
[41]T1017, T1271
[42]Exhibit “U”
[43]Exhibit “V”
128 Counsel for Mr Burke submitted that it should be inferred that:
(a) having received this letter, Mr and Mrs Shiells would have visited the JRPP website and viewed the application and all supporting documents, including the copies of the Susan Williams and Samuel West letters;
(b) having visited the website, Mr and Mrs Shiells would have seen that Mrs MacFarlane:
§ was purportedly bringing the application on behalf of MSD residents including them
§ had included the Susan Williams and Samuel West letters in the package of supporting documents.
129 I do not agree that such inferences should be drawn.
130 The application itself is vague and imprecise, to say the least. The applicant is Mrs MacFarlane alone. The land identified as the subject of the application is described, firstly, as 11 Maiden-Smith Drive and also “Maide-Smith Drive – all of the estate” (sic).
131 I do not consider that the evidence discloses facts which constitute an agency agreement whereby actions of Mrs MacFarlane would bind Mr and Mrs Shiells or the residents of MSD as principals.
132 I consider that the evidence is consistent with no more than:
· The application being brought by Mrs MacFarlane alone.
· Mrs MacFarlane having knowledge that, if the panel concluded that her application had merit, and if she was in due course successful in having minimum block sizes reduced, this would be to her advantage and probably to the advantage of all MSD landowners, in that their blocks would also probably increase in value.
· Landowners in MSD, including Mr and Mrs Shiells, appreciating that if Mrs MacFarlane was, in due course, successful in having minimum block sizes reduced, this would be to the advantage of all MSD landowners for the reasons expressed above.
· Other MSD landowners, including Mr and Mrs Shiells, elected to support Mrs MacFarlane in her application (both financially and by writing letters of support) because they generally supported her application, and perhaps also that they believed the value of their land would increase should her application be successful.
133 However, I consider that this all falls well short of what would be required to constitute an agency agreement or even an authority to act generally on behalf of any of those other MSD landowners in connection with her application.
134 I accept that Mrs MacFarlane called for financial and other assistance from her neighbours, and that it was likely that all of the neighbours were likely to benefit financially if her application was successful; however, I do not consider that this is enough to constitute an agency between Mrs MacFarlane and any of those supporting neighbours.
135 If it is correct that the signing of letters of support constituted the type of support, encouragement or contribution referred to in Webb, then it would follow that each of the MSD landowners who provided letters of support or perhaps financial support to Mrs MacFarlane would be equally liable for any libellous documents provided by her to the Department in support of her application. I do not consider that this could be so.
136 The facts in both Webb and in CML were very different from the current case. In both, one party appointed another as agent. There was no issue that this was the starting point. From there, consideration was given to the scope of the agent’s authority. Here, in my opinion, there was no agency arrangement. There was merely a group of neighbours providing Mrs MacFarlane with some financial and/or general support for her application. I do not consider that this would be sufficient to constitute any agency.
137 I do not consider that the evidence establishes:
(a) that Mr or Mrs Shiells were aware that Mrs MacFarlane was holding herself out as agents for them;
(b) that Mr or Mrs Shiells had viewed the application and were aware that the Susan Williams or Samuel West letters had been included in the support package; and
(c) that Mrs McFarlane had engaged in activities to persuade any person to enter into legal relations with any owners of land on MSD.
138 In the current matter, I find:
(a)there was no evidence so as to establish that Mrs MacFarlane was acting as agent for Mr and Mrs Shiells when she lodged her application or supplied the packaging material in support of it;
(b)there was no evidence that Mrs MacFarlane had been engaged to solicit the bringing about of legal relations between Mr and/or Mrs Shiells and any third party; and
(c)in those circumstances, I do not consider that CML lends support to the submissions on behalf of Mr and Mrs Shiells that they were liable for any defamatory material contained in that support package.
139 I consider that Mrs MacFarlane’s application was hers alone. I do not consider that it is sufficient that she had some financial assistance from the Shiells and other neighbours. Nor is it sufficient that some, or even all, of those neighbours might profit if her application was successful.
Ratification
140 Counsel for Mr Burke submitted that where a person purports to act as an agent of another, an unauthorised act by the former, if subsequently ratified by the latter, may bind that latter person.
141 To succeed in this submission, Mr Burke must adduce evidence that acts of the “agent” were indeed ratified.
142 Firstly, for the reasons previously set out, I am not satisfied that the evidence establishes that there was an agency relationship between Mr and Mrs Shiells and Mrs MacFarlane.
143 Secondly, for the reasons previously set out, I have come to the conclusion that there is no evidence that Mr or Mrs Shiells were aware that Mrs MacFarlane had included the Susan Williams or Samuel Williams letters in the package provided in support of the Pre-Gateway application.
144 It is possible that they visited the website, and if so it is possible that they observed the letters in question; however, I consider that it was unlikely this occurred. The evidence of Mr and Mrs Shiells is that they did not do so. Importantly, I do not consider that they would have thought it was at all likely that Mrs MacFarlane would have included those letters. They were letters which were written and published more than three years earlier. There was no evidence that they had been discussed by Mr or Mrs Shiells or anyone else since. The letters contained no argument in favour or against reduction in MSD block sizes.
145 The package of supporting material was large. The offending letters were displayed on a small part of page 57 of exhibit “D”, being one of at least 99 pages of supporting documents, not counting the application form itself. I consider it highly unlikely that a perusal of the website would have alerted either Mr or Mrs Shiells to the presence of the letters unless they were specifically looking for them. I see no reason why they would have suspected that the letters would have been included in the package.
146 Although I do have reservations concerning Mr and Mrs Shiells’ credit concerning other parts of their evidence, I see no reason to doubt their evidence that they had no idea Mrs MacFarlane had included the letters in her supporting material. I consider that they had no reason to suspect she would do so.
147 Mrs MacFarlane’s evidence that Mr Shiells had looked at the website because he supported the subdivision, was not evidence that he had actually done so. She gave no evidence of having any such knowledge of whether he did so or not. She is likely merely to have assumed that all persons in support of her application would look at it. This is not evidence that they did so.
148 Counsel for Mr Burke submitted that Mr Shiells’ letter of 17 March 2015 amounted to a ratification of her inclusion of the Susan Williams and Samuel West letters in her support package. I do not agree. I consider that it merely indicated that he supported her application.
149 Counsel submitted that in forwarding letters of support to Mrs MacFarlane, Mr Shiells had “armed her” with material to persuade the Department to allow for reduction in block sizes and that it should be inferred that he was ratifying her conduct in lodging the application. I disagree. I consider that the letter was merely evidence of what it said – that is, that he (a resident of MSD) supported her application for reduced block sizes.
Conclusion as to publication
150 It follows that I am not satisfied on the balance of probabilities that Mr or Mrs Shiells are liable for the re-publication of the Susan Williams or Samuel West letters. Mrs MacFarlane was merely lodging an application with which the Shiells agreed and supported. Even accepting that the Shiells believed that they stood to profit if her application was successful, this falls well short of an agency, or any broader relationship between them.
151 Further, I am not satisfied that Mr or Mrs Shiells ratified Mrs MacFarlane’s publication of the two letters. To reach that conclusion I would have to be satisfied that Mr or Mrs Shiells knew that the letters were in the package and then took no step to have them removed from the site.
152 It follows that I do not consider that Mr or Mrs Shiells re-published the Susan Williams or Samuel West letters to the Department or on the Department website, in March 2015, or that they are in any way responsible for the letters remaining on the website between that time and March 2018.
153 It follows that Mr Burke’s claims against Mr and Mrs Shiells in respect of the Susan Williams and Samuel West letters fail. His claim is confined to the Shaun Williams letter.
The Shaun Williams letter
154 The defamatory imputations of the Shaun Williams letter are set out in paragraph 22 above.
155 In Burke v Shiells & Anor (Ruling No 2),[44] I referred to the general test as to whether there has been an injury to a claimant’s reputation as being whether the published matter is likely to lead an ordinary reasonable person to think less of the plaintiff.
[44][2018] VCC 1109
156 For the reasons expressed in that Ruling, I find that the imputations set out in paragraphs 13(a), (b), (c), (d) and (g) of Mr Burke’s most recently Amended Statement of Claim, and in the variant to imputation pleaded in paragraph 13(i), were capable of being defamatory of Mr Burke. I find that, looking at the evidence as a whole, those imputations are in fact defamatory of him.
Defences
157 Mr and Mrs Shiells plead the following defences with regard to those allegations:
Publication
158 Mrs Shiells admits that she wrote and published the Shaun Williams letter. Mr Shiells denies being involved in any way with the publication of the Shaun Williams letter. For the reasons previously set out, I have concluded that he and Mrs Shiells wrote, or were involved in, the publication of the letter.
Justification
159 The defamatory imputations relating to the Shaun Williams letter are set out in paragraph 13 of the Statement of Claim. They are that Mr Burke:
(a) has made unjustified complaints in public forums in relation to Shire issues;
(b) is uninformed about complaints he raises in public forums in relation to Shire issues;
(c) is mistaken about complaints which he raises in public forums in relation to Shire issues;
(d) causes divisions between persons living in the Echuca/Moama region and/or in the Shire of Murray;
(g) is prepared to make statements in respect of which he is reckless as to whether they are true; and
(i) often gets his facts wrong.
160 Mr and Mrs Shiells plead that, in those meanings alleged, the Shaun Williams letter was substantially true. It follows, they allege, that they have a defence to Mr Burke’s claim at common law and pursuant to s25 of the Defamation Act 2005.
161 Particulars of the Defence are set out in the particulars to paragraphs 13A and (by reference to) 11A of their respective defences.
162 In relation to imputations (a), (b), (c), (g), and (i), Mr and Mrs Shiells rely upon:
(a) a number of letters written by Mr Burke and published in the TRH between September 2008 and February 2012;
(b) a number of letters written by Mr Burke between September 2008 and January 2010 relating to a group of councillors known as the “Group A councillors”;
(c) a number of letters written by Mr Burke between January 2011 and February 2012 concerning Mrs MacFarlane;
(d) a letter written and published by Mr Burke concerning delays in the building of a bridge across the Murray River near Moama;
(e) Statements made by Mr Burke to the TRH in December 2008 concerning alleged misuse of the Mayoral car;
(f) a letter written and published by Mr Burke on 19 March 2012 concerning the provision of a loan by Council to KSK Developments (“KSK”).
The causing of divisions in the community
163 In relation to imputation (d), Mr and Mrs Shiells rely upon applications for personal violence orders made by Margaret Sharp, Alistair Shine and the Mudge family in May 2010.[45]
[45]Paragraph 13A, particular (b) of the respective Defences of Mr and Mrs Shiells
164 There was no evidence of any such application by Alistair Shine, and no evidence of any application by members of the Mudge family other than Mrs Mudge.[46]
[46]Exhibit “AG”
165 I consider that the applications brought by Mrs Sharp and Mrs Mudge do not amount to evidence that Mr Burke caused divisions between persons living in the Echuca/Moama/Shire of Murray regions.
166 I accept the submission of counsel for Mr Burke that the causing of divisions between residents of a community means much more than a person merely having a difference of opinion with his neighbours, or even behaving aggressively towards his neighbours or falling out with all or some of them.
167 Causing a division would, in my view, involve some conduct by Mr Burke which divided other persons so as to set one neighbour or group of neighbours against other neighbours. It would not equate to a situation where Mr Burke merely fell out for one reason or another with one or more of his neighbours, regardless of whether the falling out was the fault of Mr Burke or not.
168 I am not satisfied that the defendants have established that Mr Burke caused divisions between persons living in the Echuca/Moama/Shire of Murray region. It follows that I am not satisfied that Mr and Mrs Shiells have established that imputation (d) is substantially true.
Imputations (a), (b), (c), (g), and (i)
169 With regard to the balance of the imputations, although worded differently, I consider that the substantial truth of each falls to be considered on the basis of the alleged conduct of Mr Burke in relation to:
· the Group “A” councillors’ complaint
· the Mrs MacFarlane complaint
· the Murray River bridge complaint
· complaints regarding the misuse of the Mayoral vehicle; and/or
· complaints regarding the KSK loan.
170 For the reasons set out below, I have come to the conclusion that I am not satisfied that Mr and Mrs Shiells have established that any of the imputations are substantially true.
The Group “A” Councillors
171 It was not in dispute that for some years prior to 2012, some Shire of Murray councillors had referred to themselves as Group “A” councillors. Indeed, on electoral papers they had identified themselves as being part of a Group “A” ticket.
172 Mr Burke wrote a number of letters to the editor[47] and one letter to the Pastoral Times[48] in which he made reference to Group A councillors.
[47]Letters to the TRH dated 5 September 2008 (exhibit 1), 18 September 2008 (exhibit 4), 28 November 2009 (exhibit 5) and 6 January 2010 (exhibit 6)
[48]Letter to the Pastoral Times (exhibit 2)
173 Mr and Mrs Shiells plead in their respective Defences that in those letters, Mr Burke had written or made statements that candidates identified as Group “A” were voting as a “unity ticket” and as a “block vote”.[49]
[49]Paragraph 11A of the respective Defences
174 They submit that those statements were unjustified, because a review of some records of Council demonstrates that councillors identified as Group “A” did not vote as a block on all occasions.
175 In Mr Burke’s letter dated 5 September 2008 (exhibit 1), he states that Group “A” make up a unity ticket which leaves ratepayers with the belief that it is used to ensure that certain candidates have an increased chance of being elected. There is nothing about all Group “A” councillors voting as a block.
176 In the letter to the Pastoral Times dated 9 December 2008 (exhibit 2), Mr Burke does state: “‘A’ group candidates seemed to need to form a unity ticket either to protect their own position or deny others to be elected democratically”.[50] I consider that the reference to councillors being elected democratically is a reference to them being elected by ratepayers, not to councillors voting as a block in Council.
[50]Exhibit 2
177 The letter dated 18 September 2008 (exhibit 4) makes no mention of block voting or of a unity ticket but merely raises the issue of “Forming the A group to control council”. There was no evidence as to whether or not the Group A councillors did or did not control Council.
178 In the letter of 28 November 2009 (exhibit 5), Mr Burke, in part, repeats the content of his letter to the Pastoral Times the previous year - “‘A’ group candidates seemed to need to form a unity ticket either to protect their own position or deny others to be elected democratically”. Notwithstanding, later in the letter, Mr Burkes urges councillors within the A group to vote independently on all issues and “thank all those who do so”. It is unclear whether that comment refers to his gratitude to those who in the past have voted independently or gratitude to those who may do so in the future.
179 In the letter dated 6 January 2010 (exhibit 6), Mr Burke urges all prospective candidates “to ready themselves for the local government elections with the intent of breaking up the ‘A’ group to form a more independent council”.[51]
[51]Exhibit 6
180 Mr Burke’s evidence was that the basis of his allegation that Group “A” voted as a block were his observations of voting on certain important decisions from the public gallery.
181 There was no evidence before the Court of any particular vote concerning the performance of Group “A”, although Mr Shiells stated that he had looked at some of the voting records which showed that the A group did not always vote as a block.
182 I consider that when all these letters from Mr Burke are looked at, and noting they were written prior to January 2010, Mr Burke plainly identifies himself as a person opposed to unity tickets and elected councillors voting as a block; however, he does not state that the Group “A” councillors always vote as a block. He does not allege that the Group “A” councillors never vote independently.
183 In a letter to the editor dated 19 March 2012 (exhibit 23), Mr Burke did state that he rejected the comments of Mr Shiells (the then Mayor) that Group “A” councillors vote independently when contentious matters are voted upon.
184 I am not satisfied that these letters by Mr Burke demonstrate that the imputations set out in those paragraphs are justified.
The Dianne MacFarlane complaint
185 Whilst she was a councillor, Mrs MacFarlane voted in Council on matters relating to the reduction of block sizes in MSD. Mr Burke had expressed his view in letters to the editor that, being an owner of land on MSD, she had a conflict of interest and should not have voted on motions relating to such issues.
186 It was admitted by Mrs MacFarlane that the value of her land on MSD was likely to increase if a motion which permitted further subdivision of her land was passed by Council.
187 I consider that Mr Burke was entirely correct in his view that Mrs MacFarlane had a conflict of interest in such issues and ought not to have voted.
188 I consider that Mr and Mrs Shiells have not established that Mr Burke’s statements regarding Mrs MacFarlane constitute the substantial truth of any of the imputations referred to.
The Murray River Bridge complaint
189 The evidence was that for many years the Murray Shire Council had supported the building of a second bridge across the Murray River in the vicinity of Echuca/Moama.
190 In letters to the editor dated 28 September 2011[52] and 13 July 2012,[53] Mr Burke had expressed views concerning the frustration of ratepayers in relation to delays in construction of a second bridge. Although that construction depended to a large extent on funding from the New South Wales and Victorian governments, Mr Burke had suggested, in those letters, that the Council could have done more to lobby State governments to provide the funds required.
[52]Exhibit 18
[53]Exhibit 50
191 In his letter of 28 September 2011, Mr Burke stated that the delays were:
“… an indictment on previous governments and councils with their party politics … It appears to me that councils are merely accepting the drivel from successive governments with no idea as to what is to happen next.”[54]
[54]Exhibit 18
192 In the second of those letters, Mr Burke identified Councillor Sharp (the Mayor for much of the previous sixteen years) as being one who could have done more to arrange a deputation to politicians concerning the bridge. He made reference to Councillor Sharp not attending a rally which had been organised a short time before in relation to the proposed second bridge.
193 Mr Burke stated:
“Your lame excuse to direct the blame away from councils is rejected and it seems to indicate a need for change of council members who did not think it important to attend [the rally].”[55]
[55]Exhibit 50
194 Mr and Mrs Shiells submitted that:
(a) Mr Burke had suggested in those letters that the delay in the building of the second bridge was caused by the Shire of Murray councillors;
(b) Mr Shiells had given evidence that the delays were due to inaction of councils on the Victorian side;[56] and
(c) there was no evidence before the Court to support the proposition that delays had been caused by Shire of Murray councillors and that Mr Burke’s suggestions were unjustified.
[56]T916
195 Counsel for Mr Burke submitted that the letters did not state that the councillors were to blame for the delays. He submitted that the complaints were not directed at any particular council (there being separate councils in both Victoria and New South Wales) or particular State governments, and that the letters were merely a call to ratepayers to agitate to force council to be more accountable on the issue.
196 However, I note that in the second of the letters referred to, Mr Burke made reference to his rejection of Councillor Sharp’s direction of blame “away from councils”. I consider that this does amount to an allegation by Mr Burke that “councils” (presumably both Victorian and New South Wales, including the Shire of Murray) had been to blame, at least in part, for the delays.
197 In any event, I accept the submission of counsel for Mr Burke that, on the evidence before me, I could not be satisfied as to who was to blame (if anyone) for the delays in construction of the second bridge. I do not consider that I could be satisfied that the Shire of Murray was faultless on the basis of the evidence.
198 It is Mr and Mrs Shiells who carry the onus of establishing that the relevant imputations are substantially true. I do not consider that they have discharged that onus with regard to Mr Burke’s statements concerning Council responsibility for the delays in question.
The misuse of the Mayoral vehicle
199 There was evidence before the Court that following a community forum conducted at Mathoura in December 2008, a journalist reported in the 12 December edition of the TRH that Mr Burke had raised at the forum a number of concerns, including concerns over the use of the Mayoral car and that Mr Burke did not believe that Council had provided an adequate response to issues raised.[57]
[57]Exhibit 3
200 It was not reported that Mr Burke had alleged actual misuse of the car.
201 In their respective Defences, Mr and Mrs Shiells plead that neither the Mayor’s car, nor Council’s fleet of cars, were misused or improperly used during any relevant period.
202 In the absence of evidence to the contrary, I have assumed that the purpose of the forum was to provide ratepayers of the Shire with an opportunity to raise any concerns they may have had with regard to Council matters generally. If any ratepayer had a concern about the use of the Mayoral car, I have assumed that the forum was a legitimate opportunity to raise such concerns.
203 I am not satisfied that Mr and Mrs Shiells have established that any of the relevant imputations were substantially true on the basis of Mr Burke’s apparent concerns about the possible misuse of the Mayoral car.
The KSK loan
204 On 18 September 2009, a letter from Mr Burke to the editor was published in the TRH.[58] In it, Mr Burke made reference to a number of matters which had occurred when Councillor Sharp was Mayor of the Shire, including what he described as the “KSK development farce”.
[58]Exhibit 4
205 In a letter to the editor published in the TRH on 19 March 2012, Mr Burke referred to costly legal proceedings, some of which resulted from Council’s own mistakes. He said:
“I refer particularly to the KSK development and the poor council advice which meant council was required to provide a loan to the developer of around $80,000.”[59]
[59]Exhibit 23
206 KSK is a reference to KSK Developments Pty Ltd. Uncontested evidence was given at trial that in 2007, KSK had been given negligent advice by Council staff at a time when Council had granted a development application made by it.
207 In December 2008, Council’s consent to the application was declared invalid by the New South Wales Land and Environment Court. KSK issued a proceeding in the New South Wales Supreme Court against the Shire of Murray, alleging negligence on its part and claiming damages in excess of $1.4 million.
208 Mr and Mrs Shiells called as a witness, Gavan Kennaugh, a director of KSK. His evidence was unsatisfactory in a number of respects. Initially, he denied that KSK had made any such claim against the Council. He referred to such a proposition as “completely unfounded and untrue” and as “lies”.[60] It was only after he was shown a copy of the Writ and Statement of Claim which he had personally signed that he conceded that KSK had indeed brought the proceeding in the Supreme Court against the Council and that the proceeding had been issued on KSK’s instructions.[61]
[60]T1361
[61]T1371
209 It appears that the claim was later resolved, although Mr Kennaugh appeared to have no knowledge of the details of such resolution.
210 It was uncontested that KSK brought a later application for the development, or a similar development, which complied with planning regulations and which was approved by Council.
211 Mr Shiells took no issue with Mr Burke’s description of the matter as the “KSK development farce”; however, he did dispute that Council had ever given KSK a loan of around $80,000 or any other amount.
212 Mr Burke’s evidence was that he had been told of the $80,000 loan by Mr Shiells himself at a meeting he had with him in the company of Mr Moon, who later also was elected to the Shire Council.[62]
“… For the defence to succeed, it is essential that the whole of the words in respect of which it is relied on should be comment, that they should be fair, and that they should be on a matter of public interest. It must be indicated with reasonable clearness by the words themselves, taking them in the context and the circumstances in which they were published, that they purport to be comment and not statements of fact ; because statements of fact, however fair, are not protected by this defence. In other words, it must appear that they are opinions stated by the writer or speaker about facts, which are at the same time presented to, or are in fact present to, the minds of the readers or listeners, as things distinct from the opinions, so that it can be seen whether the opinions are such that they can fairly be formed upon the facts … .”[84]
(Emphasis added).
[83](1934) 34 SR (NSW) 524
[84](Supra) at 531-2
265 His Honour stated that a statement of opinion, if made to a person who has not brought to his mind the facts upon which it is based, is a statement of fact and not a comment. The comment must be fair, and it cannot be fair if the facts alleged as its basis are untrue; or if the opinion is one that a fair-minded person might not reasonably form upon the facts upon which it is put forward as being based, or if it is stated maliciously and for the purpose of injuring the person criticised, and not as bona fide criticism, although the fact that it is unnecessarily strong does not make it unfair if it is bona fide.[85] His Honour also made it clear that the burden is on the publisher of proving the facts to be true.
[85](Supra) at 532
266 In Hunt v The Star Newspaper Company Limited,[86] Fletcher Moulton LJ said:
“… comment in order to be justifiable as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment. … The justice of this rule is obvious. If the facts are stated separately and the comment appears as an inference drawn from those facts, any injustice that it might do will be to some extent negatived by the reader seeing the grounds upon which the unfavourable inference is based. But if fact and comment be intermingled so that it is not reasonably clear what portion purports to be inference, he will naturally suppose that the injurious statements are based on adequate grounds known to the writer though not necessarily set out by him. In the one case the insufficiency of the facts to support the inference will lead fair-minded men to reject the inference. In the other case it merely points to the existence of extrinsic facts which the writer considers to warrant the language he uses. Any matter, therefore, which does not indicate with a reasonable clearness that it purports to be comment, and not statement of fact, cannot be protected by the plea of fair comment. … .”[87]
(Emphasis added).
[86](1908) 2 KB 309
[87]Hunt v The Star Newspaper Company Limited (supra) at 319
267 Here, I consider that the facts upon which the comments or opinions expressed in the Shaun Williams letter are not sufficiently identified so as to enable the reader to see whether those comments or opinions are justified or not.
268 In Pryke & Ors v Advertiser Newspapers Limited & Ors,[88] King CJ stated:
“A statement can be regarded as comment as distinct from allegation of fact only if the facts upon which it is based are stated or indicated with sufficient clarity to make it clear that it is comment on those facts. To amount to comment there must be ‘a sufficient substratum of fact stated or indicated in the words which are the subject matter of the action’. … . Where the facts upon which the comment is made are in the public arena or are well known or easily ascertainable, it is not necessary that those facts be stated, but is sufficient that they be clearly indicated. Such clearly indicated public fact ‘are open to comment on the ground that the public have at least the opportunity of ascertaining for themselves the subject matter upon which the comment is founded’. … .”
(Emphasis added).
[88](1984) 37 SASR 175 at 192
269 Counsel for Mr and Mrs Shiells submitted that there was evidence to indicate that the facts relevant to the Shaun Williams letter were “easily ascertainable” and there was no need for facts to be stated in the publication. I do not accept that this is the case. While it may be so that Mr Burke was a regular contributor to the Letters to the Editor, I do not consider that the evidence before me indicates that the facts upon which comments made in the Shaun Williams letter were sufficiently known to the likely readers of the TRH or “easily ascertainable” by them.
270 It follows that the defence of fair comment fails.
Damages
271 It follows from my findings that Mr Burke has established an entitlement to damages in respect of the publication of the Shaun Williams letter.
272 Although the TRH published an apology to Mr Burke in relation to the letter, no apology was ever provided by either Mr or Mrs Shiells. In assessing damages, I will ignore the TRH apology.
273 Compensatory damages are awarded as:
· a vindication of the plaintiff’s reputation
· reparation for the harm done to the plaintiff’s reputation
· consolation for the distress, upset and injury to the plaintiff’s feelings occasioned by the publication.[89]
[89]French v The Herald and Weekly Times Pty Limited (No 2) [2010] VSC 155 at paragraph [79]; Trkulja v Yahoo! Inc LLC & Anor (supra)
274 Section 34 of the Defamation Act provides that in determining the amount of damages to be awarded in any defamation proceedings, the Court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
275 Section 36 of the Act provides that, in awarding damages, the Court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate, or at any other time, except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.
276 The damages must be sufficient to demonstrate to the bystander the baselessness of the allegation about Mr Burke in the defamatory material and thus to “nail the lie” in it.[90]
[90]Trkulja v Yahoo! Inc LLC & Anor (supra) at paragraph [60]
277 Matters to be taken into account in determining an award of damages in favour of Mr Burke would include:
· the nature and extent of Mr Burke’s reputation
· the nature of the imputations
· the effect of the imputations on his particular reputation
· an evaluation of the injury done to his feelings
· the conduct of Mr and Mrs Shiells.
278 There was no specific evidence as to Mr Burke’s reputation prior to the publication of the Shaun Williams letter.
279 Some damage to the reputation of Mr Burke is presumed by law.[91] Having said that, there was no additional evidence pointing to any specific damage to his reputation in the community as a consequence of the publication. In fact, he was elected to the Council in October 2012, although I note that he did not receive a large number of first preference votes and relied heavily on second preferences. I do not consider that the evidence establishes that this was caused by the publication of the Shaun Williams letter.
[91]Wilson v Bauer Media Pty Ltd [2017] VSC 521 at paragraph [59]
280 As a starting point, I accept the submission made by counsel for Mr Burke that the most serious of the imputations is that set out in part (d),[92] that Mr Burke is prepared to make statements in respect of which he is reckless as to whether they are true. This is a serious defamatory statement made of a person standing for local council and in the context of an election campaign.
[92]See paragraph [22] above
281 The imputation that Mr Burke is a person who causes divisions in his community is of some significance, particularly in the case of a potential local councillor. I consider that a person who causes such divisions between others in the community is likely to be thought less of by others in that community.
282 Many of the other imputations are not of the same gravity. These are largely comments made regarding the accuracy of statements made by him – that his complaints are uninformed, unjustified, mistaken, or based upon incorrect facts. I do not regard these as being as damaging to his reputation and unlikely to cause him significant distress or upset.
283 Many of the authorities and decisions to which I was referred by counsel related to allegations of dishonesty, fraud, criminality, immorality or offensive and outrageous behaviour. I do not consider that the imputations concerning Mr Burke are anything like as serious.
284 I consider that a large portion of the upset experienced by Mr Burke arose from the anonymity of the letter, coming as it did after the earlier, anonymous letters of March 2012.
285 I gained the impression that had the author(s) of the letter been identified, Mr Burke was likely to have entered into a spirited response and debate by way of responding letters to the editor, as he had done in the past on numerous occasions when someone had written a letter to the editor with which he disagreed. Instead, he embarked upon a lengthy and, no doubt, frustrating and possibly infuriating search to determine the author’s identity.
286 In support of Mr Burke’s claim that the publication of the letter had had a serious effect on his mental health, evidence was called from:
· Treating general practitioners, Dr Karunanayake and Dr Henry; and
· a treating clinical psychologist, Ms Hilton.
Each gave oral evidence and reports from each were tendered.[93]
[93]Exhibits “H”, “J”, “M”, “N” and “O”
287 The apparent purpose of calling these witnesses was to establish that Mr Burke had suffered from Major Depression and Anxiety and that those conditions arose as a consequence of the publication of the defamatory letters, including the letters published in March 2012.
288 For the reasons expressed below, I consider that the evidence of these practitioners are of little assistance to Mr Burke.
289 Firstly, these witnesses did not distinguish between the effects that the Shaun Williams letter had upon Mr Burke as opposed to the effects of:
· the Susan Williams and Samuel West letters published in March 2012
· the re-publication, in March 2015, of those letters
· the various unhappy, if not tragic, events that had occurred within his family.
290 Dr Karunanayake and Dr Henry had practised at the Echuca Moama Family Medical Practice.
291 Dr Henry had first seen Mr Burke on 29 August 2013, about one year after the publication of the Shaun Williams letter. His previous general practitioner had retired. Dr Henry had referred Mr Burke to Ms Hilton, a psychologist in October 2013. He reported that Mr Burke’s Depression had continued off and on from 2013, to when he last saw him in August 2015.
292 Dr Karunanayake had only commenced seeing Mr Burke from January 2016. The Shaun Williams letter had been published in August 2012, some three-and-a-half years earlier. He noted from other historical medical notes that “newspaper articles” were said to have affected Mr Burke and had resulted in him being treated for Major Depression and Anxiety. It is not clear from either of Dr Karunanayake’s reports whether he had ever made any connection between Mr Burke’s Depression and Anxiety and the Shaun Williams letter, or whether he was relying upon the history provided by Mr Burke, or upon notes of other doctors who had seen Mr Burke at or near to August 2012. He reported that Mr Burke had continued on antidepressant medication until the current time, but had required more counselling as this Court hearing date approached.
293 The progress notes of the practice concerning Mr Burke were tendered.[94] On the basis of those notes, I find as follows:
[94]Exhibit “K”
· Mr Burke had first been seen at the practice in May 2012 for unrelated matters.
· Between May 2012 and the end of December 2012, a Dr Morgan saw Mr Burke on four occasions concerning unrelated matters. On none of those occasions did Dr Morgan make any note of newspaper letters or of Depression or Anxiety.
· On numerous occasions after 29 August 2013, Mr Burke had complained to Dr Henry about how stressful his “work” as a councillor was and that there had been complaints in the local media about him.
· Around 2013, Mr Burke reported working seven days per week. I have assumed that his only work was performing his duties as a Shire councillor.
· In about March 2014, Mr Burke’s daughter had been diagnosed with bowel cancer.
· His son had had a significant problem with drugs that caused him and his wife concern.[95]
[95]T759
· From June 2015, Mr Burke took extensive time away from Council duties because of stress related to those duties. Mr Burke believed that that there was too much pressure at work, there were legal issues between councillors, and that he thought there was a lot of dishonesty involved.
· In about November 2016, his niece died in a hit and run accident.
294 I accept that since about 2013, Mr Burke has suffered from Depression, requiring anti-depressive medication. In addition, he is likely to have suffered from anxiety problems over the same period. There was no evidence that he had suffered from Depression or Anxiety before mid 2013.
295 From mid 2013, Mr Burke complained to his general practitioners and to Ms Hilton that he was under substantial stress “at work” with the Council, which I interpret as a reference to his duties as a Shire councillor. He was not otherwise employed.
296 Ms Hilton reported that, in October 2010, Mr Burke’s involvement with the Shire had caused him a high degree of Anxiety. He told her that “I was really hurt by the treatment of other councillors”[96] and that he had never been hurt like that before. He told her that being on the Council had brought with it a number of stressors, which he believed was due to his strong values and being outspoken about what he believes in.
[96]Exhibit “M”
297 Ms Hilton reported a downturn in his condition in 2015, some three years after the Shaun Williams letter had been published. Initially, in October 2013, his symptoms of Depression were diagnosed by Ms Hilton and Dr Henry as “mild”.[97] These had deteriorated by 2017 to “severe” and “extremely severe”. By early 2017, Ms Hilton reported that his symptoms of Anxiety had reduced slightly to a moderate level.
[97]Exhibit “O” at page 3; exhibit “M” at CB 119
298 In June 2014, solicitors acting for Mr Burke wrote to the Mayor, senior staff and councillors of the Shire of Murray, stating that they had been instructed by Mr Burke that since September 2014 and ongoing, there had been harassment of, personal attacks on, and pressure applied on Mr Burke, designed to pressure him into “conforming to the party line”. The letter contained a demand that this cease, or an application for an injunction would be made.[98]
[98]Exhibit 39
299 In February 2014, an article appeared in the TRH stating that the Murray Shire Council would be placed under New South Wales Government control if relationships between councillors did not improve.
300 On 18 August 2015, Mr Burke wrote to the then Mayor of the Shire Council tendering his resignation from the Council “due to [his] failing health”.[99]
[99]Exhibit 40
301 On, or shortly prior to April 2015, Janice McLeay was appointed by the Shire to investigate a number of complaints made against various councillors. Five of those complaints were made against Mr Burke. One allegation, that Mr Burke had behaved in a way that amounted to bullying and harassment of the general manager of the Shire, was found by Ms McLeay to be substantiated. Another was found to be partially substantiated and three others were found to be not substantiated.
302 Mr Burke made no admissions concerning any of these complaints and I make no finding in respect of them. Their relevance to this proceeding is solely that they demonstrate from about April 2015, Mr Burke, and probably the Shire Council and administration as a whole, were going through a very difficult period. Regardless of whether the complaints concerning Mr Burke were legitimately made, I consider that the very fact that they were made and were the subject of an enquiry, would have been of great concern to him and a cause of substantial stress for him.
303 I note my earlier comments, based on the reports and evidence of the doctors and psychologist and their clinical notes, that Mr Burke’s Depression appears to have worsened from about this time.
304 I note that in Ms Hilton’s first letter to Dr Henry after his referral to her, dated 24 March 2014,[100] there was no reference to any newspaper articles or letters being the cause of any of Mr Burke’s problems. Rather, Ms Hilton referred to Mr Burke having lots of issues at work and that his honesty and integrity had been challenged by some Council members.
[100]Exhibit 26
305 Taking all of the evidence into account and noting in particular that:
· the Shaun Williams letter was published in August 2012
· Mr Burke was elected to the Council in September 2012
· the evidence of Mr Burke’s difficulties in his role as a councillor in 2014 and 2015 –
I am not satisfied that Mr Burke has established that his Depression and Anxiety are linked, to any substantial degree, to the publication of the Shaun Williams letter. The Depression and Anxiety are, in my opinion, far more likely to have been caused by, or significantly contributed to, by the problems he encountered after he was elected to Council in October 2012, and the unfortunate family tragedies to which I have previously referred.
Aggravated damages
306 Aggravated damages are awarded if there is an increase in the hurt to the plaintiff’s feelings because of the plaintiff’s knowledge or perception of a defendant’s misconduct.
307 Aggravated damages are a form of compensatory damages. They are not punitive in nature. Section 37 of the Defamation Act provides that a plaintiff cannot be awarded exemplary or punitive damages for defamation.
308 In assessing damages, I am able to take into account that no apology was ever made by Mr or Mrs Shiells (as opposed to the TRH).[101]
[101]Herald and Weekly Times Limited v McGregor [1928] 41 CLR 254 at 263; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at paragraphs [81]-[83]
309 I consider that there are a number of grounds upon which aggravated damages should be awarded:
(a) the letter was published under a false name. Mr Burke was unable to know who was making these criticisms about him. This was likely to exacerbate his feelings of hurt, and I find that it did;
(b) both Mr and Mrs Shiells initially denied having anything to do with the letter. Mrs Shiells later admitted she had written it and sent it to the editor with a request that it be published in the TRH. Mr Shiells maintained his denial throughout the trial;
(c) in the application to the Magistrates’ Court for an extension of time in which to bring a proceeding in respect of the Shaun Williams letter, Mr and Mrs Shiells were present in Court when their counsel (as I find, on their instructions), and told the Court that neither of them had anything to do with the publication of the letter. They knew that this was not true, but did not intervene to correct that false submission;
(d) neither Mr nor Mrs Shiells have apologised to Mr Burke for the publication of the letter;
(e) the dominant purpose of the letter was to reduce the prospects of Mr Burke’s election to Council, where Mr and Mrs Shiells considered he was likely to vote against their subdivision proposal if elected;
(f) after the letter was written, and after the election, Mr Shiells continued to make baseless and unwarranted complaints against Mr Burke in order to increase the prospects of him not voting on their subdivision application.
310 An award of damages in defamation proceedings will always depend on the particular characteristics of the case. As Kaye J (as he then was) said in Trkulja v Yahoo! Inc LLC & Anor,[102] any guidance provided by awards of damages in other defamation proceedings would be quite limited.
[102][2012] VSC 88 at paragraph [58]
311 Taking into account that I do not consider that any of the defamatory material was at the high end of the range of such material, and taking into account the matters that I have referred to as aggravating damages to some degree, I have come to the conclusion that an award of damages should be made in favour of Mr Burke against both of Mr and Mrs Shiells in the sum of $75,000, which sum includes an amount of $15,000 by way of aggravated damages.
Injunctions
312 There have been no similar or continued defamatory publications made by Mr or Mrs Shiells concerning Mr Burke for more than five-and-a-half years, and there is no evidence of any intention on their part to do so in the future. I consider it most unlikely and I am not persuaded that I should order the injunctions sought.
Interest and costs
313 I shall hear the parties in relation to interest and costs in the event that agreement cannot be reached by them in respect of those matters. If such be the case, the parties should contact my associate to arrange a suitable time and date for any outstanding issues to be determined.
Form of Orders
314 I direct that by 4.00pm on Thursday, 18 October 2018, counsel consult and consider the appropriate form of Orders to be made so as to give effect to my findings as set out in these Reasons. In the unlikely event that the parties are unable to reach agreement regarding the form of Orders, each party should submit by 4.00pm on that date, the Orders that each considers should be made.
- - -
Schedule A
The “Susan Williams letter”, published in the TRH on 23 March 2012
“Get the facts on the issues
To the Murray Shire’s serial pest and constant complainer, Mr Gavin Burke.
How very uninformed you are about so many things, including matters pertaining to Maiden Smith Drive.
Not being a resident of Maiden Smith Drive, as you are not, I strongly suspect that you have not even seen the covenant on the Certificate of Title of the transfer of land in Maiden Smith Drive dated 19/7/1988 that you claim the residents all signed.
If you had, you would realise that the original covenant only refers to the quality of the buildings to be built on the land … .
Obviously, you believe you are the saviour and spokesperson for the common man … in future, please do not pretend to be speaking for all the residents of Maiden Smith Drive.
There are many in the street who are happy to ‘live and let live’ rather than cause the ill feelings you … are doing with your extremely ‘one-sided’ and ‘selective’ points of view.
Councillor Tom Weyrich also needs to do his homework a bit better so that he can actually debate issues at council rather than just ‘shout abuse’ at other councillors when he doesn’t get his own way … .
Can I suggest you all have another read of the current LEP (as I have) so that you may gain a clearer understanding of the facts and accept the truth.
I am forever grateful that we have such well-educated and dedicated professionals as Mr Greg Murdoch and Mr Simon Arkinstall … to clarify such issues.
Susan Williams, Moama.”
Schedule B
The “Samuel West letter”, published in the TRH on 23 March 2012
“Disappointment over criticism
How blessed I feel to live in such a beautiful area as this, and especially the jewel in the crown, the township of Moama.
A person would have to be blind not to appreciate the real beauty and serenity that surrounds us living in this little piece of paradise.
Imagine my disappointment to read regular letters from one of our citizens, Mr Gavin Burke, doing nothing but criticising and complaining.
If this shire is no good enough for you Mr Burke, please leave.
Otherwise, can I suggest you take part in some positive thinking exercises or maybe yoga to settle this hostility you have for all things good.
If everyone spread love for our fellow man instead of hatred, what a wonderful would this would be.
Love to you all.
Samuel West, Moama.”
Schedule C
The “Shaun Williams letter”, published in the TRH on 1 August 2012
“Transparency is the key
How refreshing it was to read John Kenley’s letter (July 18) stating the facts about the proposed Echuca-Moama bridge.
It is unfortunate that we still have such ‘uninformed’ residents as the ‘lost’ Gavin Burke, who constantly writes in to the paper to voice his misguided opinions.
I have yet to read one of his letters that actually has the facts correct.
Now we see he is keen to run for council.
Well I am sorry, Mr Burke, but I will not be voting for a man who appears to be nothing more than a constant whinger who apparently has some skills in outdated auditing techniques.
I too have sat in the gallery of the Murray Shire Council meetings and I have noticed how independently each of the councillors discusses and votes for particular issues. I believe this group of councillors has been very accountable and extremely transparent in all their dealings. What about you Mr Burke?
Are you going to be transparent about yourself and the divisions you have caused in the community and your neighbourhood?
Shaun Williams,
Moama.”
1
17
0