Duffy v Trenowden - [2010] SADC 152

District Court of South Australia
(Civil)
DUFFY & ORS v TRENOWDEN
[2010] SADC 152
Judgment of His Honour Judge David Smith
10 December 2010
DEFAMATION - DAMAGES - GENERAL DAMAGES
Plaintiffs members of District Council of Ceduna elected for a period from 2000 to 2003 – defendant elected to a subsequent council – in the course of a meeting of Council defendant alleged that the plaintiffs, as members of the previous Council, were corrupt – consideration of whether the allegation was defamatory – whether it was protected by traditional qualified privilege, the Lange extended privilege or the statutory immunity conferred by s 39 of the Local Government Act 1999 – in respect of damages consideration of the extent to which the defendant’s apologies mitigated the plaintiffs’ entitlement.
Held: statement defamatory and not protected by any common law privilege or statutory immunity – plaintiffs awarded damages but substantially reduced by the mitigating effect of several apologies – general damages awarded of $13,000 in total.
Local Government Act 1999 s 39, referred to.
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Tournier v National Provincial and Union Bank of England [1924] 1 KB 461; Conservation Council of SA Inc v Chapman (2003) 87 SASR 62; Sadgrove v Hole [1901] 2 KB 1; Adam v Ward [1917] AC 309; Horrocks v Lowe [1975] AC 135; Roberts v Bass (2002) 212 CLR 1; Gross v Weston [2007] NSWCA 1; Clark v Molyneux (1877) 3 QBD 237; Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105; Puntiero v Water Administration Ministerial Corporation (1999) 199 CLR 575; Weinel v Fedcheshen (1995) 65 SASR 156; McCarron v Boree Shire Council [1971] 1 NSWLR 638; Ratcliffe v Evans [1892] 2 QB 524; Bickel v John Fairfax & Son Ltd [1981] 2 NSWLR 474, considered.

DUFFY & ORS v TRENOWDEN
[2010] SADC 152

In the course of a meeting of the District Council of Ceduna held on the 20 August 2003, the defendant made a statement to the effect that the previous Ceduna Council was corrupt. The statement was unfounded. At the next meeting, on the 17 September 2003, the defendant tabled a letter retracting the allegation. The plaintiffs, who were members of that previous Council, understandably, took exception to it. They regarded the speedy retraction as insufficient. Solicitors were instructed by both sides. There were negotiations and although the defendant again apologised, he did not meet all the terms of a compromise proposed by the plaintiffs. Accordingly, on the 21 July 2005, the six plaintiffs instituted this action against him seeking damages for defamation.
The Issues
The issues arising from the pleadings, the evidence and the arguments are:
·whether the statement made by the defendant was defamatory of the plaintiffs;
·whether the publication of the statement by the defendant was malicious thereby defeating the defence of qualified privilege which applied to the Council’s proceedings;
·whether the so-called “extended” privilege articulated in the case of Lange v Australian Broadcasting Corporation[1] applied;
·whether s 39 of the Local Government Act 1999 (SA) conferred an immunity on the defendant for any civil liability arising from what he said; and
·if the statement was defamatory and not privileged, to what extent were the plaintiffs’ entitlements to damages mitigated by the defendant’s apologies.
[1] (1997) 189 CLR 520.
Findings of Fact
The plaintiffs were members of what has been referred to as “the previous Council”. It was elected for three years in May 2000 (“the previous Council”). The first plaintiff, Peter Duffy, was the Mayor of that Council. He and some of the other plaintiffs had been serving on the Council for some time and were re-elected in 2000.
As the May 2003 elections approached there was, apparently, a mood for change in the electorate. In particular, there was a perception amongst ratepayers that the Council was spending excessively and was not transparent enough (251, 252). The Council had supported the development of a marina at Ceduna and consequently there were meetings of Council and developers which, for reasons of commercial sensitivity, were held in camera. The marina development was controversial and the wisdom of such a development was also an election issue (267). Such matters, whether they were well founded or not, fuelled the push for change on the Council.
There were no allegations of corruption against the previous Council or any individual councillors, save that in 2001 there was an investigation by the Anti-Corruption Branch of SA Police into the “... Administration of the Council and CEO ...” (203). The allegations which caused this investigation were determined to be unfounded. There was a report to that effect in the West Coast Sentinel Newspaper. Putting aside his remarks on the 20 August 2003, the defendant did not complain before or after the election that the previous Council or its members were corrupt. It was no part of his election campaign (306, 330 and 328-9).
In the May 2003 elections there were 17 candidates for eight positions (251). Of the plaintiffs, only Mark Comas and Edwin Burge were re‑elected. Peter Duffy, Rosslyn Michell and Gregory Limbert stood but were not re‑elected. Vincent Slattery did not stand. The defendant, in his campaign, advocated less secrecy and less spending (252, 266). He was elected to the Council.
It was agreed that the allegedly defamatory remarks were made in the context of the defendant questioning the expenses incurred by the Council in having members attend, what was referred to in evidence as, “the Roads Conference” in Kalgoorlie (361).
On the 30 June and the 1 July 2003 there was a National Local Roads Congress held in Kalgoorlie, Western Australia (“the Roads Conference”). Mayor McCarthy, Councillor Cawood and the General Operations Manager of the Council attended the Congress.[2]
[2] See Exhibit P3; see also 309 onward.
The first meeting of Council after that Roads Conference, which the defendant attended, was the fateful meeting of the 20 August 2003. The defendant considered that the Ceduna Council could have been adequately represented at the Conference by one person (283). Through the Mayor he asked the Chief Executive Officer how much it cost the Council to send the delegation to the Conference (283). His evidence as to this was as follows:
A.The topic I raised was through his worship the mayor how much did it cost to go to Kalgoorlie.
...........
A.I thought it was my duty to do that so that I could report back to the ratepayers what the cost was.
Q.Did anyone respond.
A.The CEO responded in words similar to “It’s within the budget’ in a snappy type of a voice.
Q.Was that where it ended or did you take it further.
A.once again I thought it was my duty to find out for the ratepayers exactly what it cost, so I addressed his worship again and went through him to the CEO and asked the same question again, by saying ‘That was not what I asked, I asked how much did it cost’.
Q.Was there a response, were you given a response.
A.I got the same response as what I got from the CEO the first time, “It was within budget’, not in a very nice voice.
Q.How did you react to that.
A.I still couldn’t execute my responsibilities to the ratepayers or electors with that sort of answer, so the blood pressure went up a bit, I got slightly angry.
Q.Did you say anything.
A.Yes, I did. I muttered words to the effect ‘We’re getting back to the old corrupt council again’ in a low voice.
Q.Did you have any reason for making that comment or observation.
A.I felt it my duty to express the concerns of the people that I stood up for, but I bore no ill will to any particular person or any particular group when I said those words.
(283, 284)
(The emphasis is mine)
The other witnesses in the trial who were present in the meeting were Mark Comas, Edwin Burge and the then Deputy Mayor Alan Suter. There are some differences in detail but essentially they agreed that in the context of the defendant asking questions about expenditure he alleged that the previous Council was corrupt.[3] The evidence of Alan Suter was the most detailed and in substance supported that of the defendant. He thought that the defendant’s query was a “question without notice” (271). It does not matter when in the course of the meeting the exchange took place.
[3] See Comas 44, 45; Burge 108-10; Suter 253, 254.
Mr Suter said that upon the Chief Executive Officer repeating his answer to the effect that the expenses of the Council were within budget:
... Mr Trenowden became rather angry, and that was when he uttered the words, some inference, that there had been a degree of corruption within the previous Council’s operations ...
(253)
I find, as I have indicated in my opening remarks, that the defendant said words to the effect that the former Ceduna Council was corrupt.
There was an immediate angry reaction to the defendant’s remarks such that the Mayor had to call for order.[4] In particular, Mark Comas and Edwin Burge, who were members of the previous Council, were justifiably offended.
[4] See Comas 45-7; Burge 108-10; Suter 254.
The next day the Deputy Mayor Alan Suter learned that some of the councillors were “... very much offended” by what had been said. He decided to speak to the defendant and prevail upon him to make an apology (254). The defendant willingly agreed to do so. Accordingly, the defendant and Mr Suter met that evening and the defendant signed a letter drafted by Suter (255). That letter was tabled at the next meeting of Council on the 17 September 2003.[5] It read:
[5] See Exhibit P1 at 37.
Trevor Trenowden
12 Poynton Street
CEDUNA SA 5690
6^th September 2003
Ken McCarthy
Mayor of Ceduna
It has been pointed out to me that I used an unfortunate word in describing the actions of the previous Ceduna Council.
I wish to apologise for referring to corruption during discussion in the last Council meeting. I certainly do not allege that the previous council, nor any employee of council is, or has been in any way corrupt. What I should have said is that the previous council did not effectively consult with ratepayers.
Please accept my sincere apologies for this mistake. I would be happy to read out this letter at the next council meeting. Please feel free to provide a copy of this letter to any person who may be aggrieved at my comments during the meeting.
Yours sincerely,
Trevor Trenowden[6]
[6] Exhibit P1 at 26.
The letter was addressed to the Mayor because Alan Suter considered that was the correct procedure. Some of the plaintiffs were somewhat dismissive of it for that reason.[7]
[7] Comas 71, Duffy 162, 185-6, Slattery 247.
The evidence of some of the plaintiffs, as to if and when they saw that first letter of apology, was inexplicably vague.[8]
[8] Limbert 93, Duffy 162, 183, Michell 211, 212, Slattery 246.
The plaintiffs met after that August Council meeting and under the leadership of Peter Duffy decided to seek legal advice about redressing what they regarded as a serious slur upon them (164).
In early September 2003 Peter Duffy took advice from Mr Townsend of Messrs Cowell Clarke Solicitors (164). Mr Duffy said that by October 2003 he thought that he would “... put the cue in the rack, so to speak ...” (168), but at the Annual Oyster Fest in Ceduna on the October long weekend of 2003 he was spoken to by a number of ratepayers, whom he named, who asked about such things as whether the allegations of the Council’s corrupt activities were being investigated (166-168). Mr Duffy said that as a result of that he became concerned and decided that a public vindication was required (168).
On the 23 December 2003 a letter threatening action was written to the defendant by Messrs Cowell Clarke on behalf of the plaintiffs.[9] The defendant, as a result, retained the local solicitor Mr Darcy O’Shea who replied by letter dated 9 March 2004.[10] The tone of the letter was largely conciliatory. Notably, Mr O’Shea enclosed the letter of apology which had been tabled in the September 2003 meeting of Council.
[9] See Exhibit P1 at 40 and 41.
[10] See Exhibit P1 at 42.
Then by letter dated the 20 April 2004 Messrs Cowell Clarke proposed the following compromise:
... my clients are prepared to settle their claims against your client on the following basis:
1.That on or before Friday, 7 May 2004 he orally apologises to Mr Peter Duffy, Mr Mark Comas, Mr Jon Hoffrichter, Mr Greg Limbert, Mr Brian Workman, Ms Rosslyn Michell and Mr Edwin Burge in the form attached hereto, and apologises in writing to Mr Vincent Slattery (who now does not live in the Ceduna area) in the form attached hereto.
2.That at his expense, he publishes on or before Friday, 7 May 2004 in the West Coast Sentinel newspaper, the apology in the form attached hereto, such publication to be in a size or no less than one eighth of a page and to appear on page 3 of the newspaper.
3.That on or before Friday, 7 May 2004 he pays my clients’ legal costs and outgoings totalling $6,987.50 plus GST of $698.75 a total of $7,686.25 on a full indemnity basis.
4.As at 14 April 2004 our costs and outgoings were $5,787.50 plus GST of $578.75 a total of $6,366.25. With estimated costs to compete and fees to Mr Neville Morcombe QC of counsel of $500.00 plus GST, the total will be $6,987.50 plus GST of $698.75 a total of $7,686.25.
This offer is to be accepted unconditionally in writing received by this firm on or before 5pm on Friday, 30 April 2004 or it will lapse.
...[11]
[11] See Exhibit P1 at 40, 41.
In response, the defendant, on or about the 27 April 2004, apologised, not orally, but in writing, by registered mail, to each of the previous councillors. The apology was in accordance with what was demanded and the wording was as follows:
During an open Council meeting of the current Ceduna Council held on 20 August 2003 at the Council Chambers at 44 O’Loughlin Street, Ceduna, I made a statement to all Council members present at that meeting and other persons present at that meeting that the former Ceduna Council was corrupt.
You were a member of that Council.
I now recognize that this statement was unfounded and that it was embarrassing and distressing to you.
I wish to take this opportunity of unreservedly withdrawing this allegation and all imputations upon you and to express my sincere regret for having made such a statement.[12]
[12] See 293, 294, see Exhibit P1 at 44, 45.
The defendant explained that he was willing to give a face to face apology to each of the plaintiffs but his solicitor deflected him from doing so (294, 295).
The defendant also caused the apology demanded to be published in the West Coast Sentinel of the 6 May 2004. Hereunder is a copy of the apology:
(296, see also Exhibit P1 at 52)
The defendant did not pay the plaintiffs’ demanded legal costs and disbursements of $7,686.25.
Following the making of the written apologies in late April 2004, and the publication of the apology in the West Coast Sentinel on the 6 May 2004, there were no further demands from the plaintiffs.[13]
[13] See Agreed Fact 335.
Then over a year later, on the 21 July 2005, this action was instituted.
Defamatory Meaning
The defendant contends, rather surprisingly, that the statement, to the effect that the previous Council was corrupt, was not defamatory.
A statement is defamatory if it “... exposes the plaintiff to hatred, ridicule or contempt in the mind of a reasonable man ...”[14] The test is objective. In particular, the task is to determine the natural and ordinary meaning of the words as they would be understood by ordinary people using their general knowledge and commonsense.[15]
[14] See Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 per Atkin LJ at 486.
[15] See Duncan & Neill on Defamation 2^nd Ed Ch 4.
Ordinarily understood, the meaning of “corrupt” includes, to use ones office or position improperly, dishonestly, or unfaithfully, to derive benefits, or rewards, or favours to which one would not otherwise be entitled. It means a perversion of integrity by bribery or favour.[16]
[16] See The Shorter Oxford English Dictionary 1973 Ed.
The words uttered by the defendant would have been so understood.
Further, they impute to the plaintiffs the commission of a criminal offence punishable by imprisonment.[17] As such, the statement constitutes a slander which, exceptionally, is actionable per se; that is, the person so defamed is not required to show actual damage and substantial, rather than merely nominal, damages may be awarded in the absence of such proof.[18]
[17] See ss 249, 251 Criminal Law Consolidation Act1935 (SA).
[18] See Gatley on Libel and Slander 11^th Ed at [3.6], [4.2] and [4.3].
I do not accept the defendant’s contention that the words were no more than a “vigorous epithet” and, like “vulgar abuse”, not actionable.[19] In this submission, counsel for the defendant, Mr Heywood‑Smith QC, relied upon Gray J, who, in Conservation Council of SA Inc v Chapman[20], embraced the United States position, that speech properly characterised as “... rhetorical hyperbole, the vigorous epithet and loose figurative language ... in discussions of government or political matters”, is not defamatory.[21] Besanko J with whom Doyle CJ agreed in Chapman, did not accept that position.[22] His Honour adverted to it and then specifically did not entertain it as a new category of words which were not actionable.[23]
[19] Ibid at [3.35].
[20] (2003) 87 SASR 62 at [105]-[107] and [113].
[21] Ibid at [105].
[22] Ibid at [322].
[23] Ibid.
In any event, I would not characterise what the defendant said as a “vigorous epithet” any more than I would regard it as “vulgar abuse”.
The words used by the defendant were clearly defamatory.
Identification
The plaintiffs must prove that the defamatory statement was published of them.[24] There was, rightly, no debate about this. I am satisfied that the defamatory statement identified the previous or former Council and thereby referred to, amongst others, the plaintiffs.
[24] See Sadgrove v Hole [1901] 2 KB 1 per AL Smith MR at 4.
Qualified Privilege
A privilege extends to statements made on an occasion where one person has a duty or interest in making the statement and the recipient of the statement has a corresponding duty or interest to receive it.[25]
[25] See Adam v Ward [1917] AC 309 at 334 per Lord Atkinson.
Meetings of local councils are such privileged occasions. In Horrocks v Lowe[26], Lord Diplock articulated the reason for the privilege in the following terms:
My Lords, what is said by members of a local council at meetings of the council or of any of its committees is spoken on a privileged occasion. The reason for the privilege is that those who represent the local government electors should be able to speak freely and frankly, boldly and bluntly, on any matter which they believe affects the interest or welfare of the inhabitants. They may be swayed by strong political prejudice, they may be obstinate and pig-headed, stupid and obtuse; but they were chosen by the electors to speak their minds on matters of local concern and so long as they do so honestly they run no risk of liability for defamation of those who are the subjects of their criticism.
[26] [1975] AC 135.
As the name implies, this privilege is not absolute but is qualified by the requirement that the occasion not be used to publish a statement for some purpose or motive foreign to the duty or interest that protects the making of the statement.[27] In Roberts v Bass (supra) at [75] Gaudron, McHugh and Gummow JJ explained the qualification in the following terms:
An occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement. A purpose or motive that is foreign to the occasion and actuates the making of the statement is called express malice. The term “express malice” is used in contrast to presumed or implied malice that at common law arises on proof of a false and defamatory statement. Proof of express malice destroys qualified privilege. Accordingly, for the purpose of that privilege, express malice (malice) is any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff.
[27] See Roberts v Bass (2002) 212 CLR 1 per Gaudron, McHugh and Gummow JJ at [62].

In their joint judgment in Roberts v Bass (supra), referred to above, Gaudron, McHugh and Gummow JJ restated the law relating to qualified privilege. The following points of principle, relevant to this case, are drawn from the joint judgment and the authorities referred to therein.
·The defence of qualified privilege protects the publication of a defamatory statement unless the publication was actuated by an improper purpose or motive not in keeping with the duty and interest which gave rise to the privilege, namely express malice (“malice”).[28] The starting place is to recognise that, given the occasion of privilege, the defendant is presumed to be using the occasion bona fide for a proper or honest purpose.[29]
[28] See Roberts (supra) at [89] and [79].
[29] Ibid at [90], [96] and [97].
·The onus is upon the plaintiff to negative the defence of qualified privilege by proving that the defamatory publication was actuated by malice.[30]
[30] Ibid at [76], [90], [96], [97] and [103].
·The plaintiff will succeed in proving malice if he proves that the publication by the defendant was actuated by a purpose or motive foreign to the interest and duty which gave rise to the privilege and that it was the dominant purpose or motive.[31]
[31] Ibid at [75], [79] and [104].
·Evidence of the defendant’s:
-ill will;
-recklessness;
-lack of belief in its truth;
-knowledge of its falsity;
-bias;
-prejudice;
-gratification of anger; or
-any other motive than duty or interest
may give rise to the inference that the statement was published for a motive or purpose which was foreign to the occasion of the qualified privilege.[32]
·Whether an improper motive or purpose is proved depends upon the cogency of the evidence as to such matters. In weighing the evidence the following parameters apply:
-The defendant’s knowledge that the statement was false is “... almost invariably conclusive evidence ...” that the publication was actuated by an improper motive (except where the defendant was under a legal duty to publish the matter complained of).[33]
-Recklessness as to the truth of the statement which is so gross as to amount to wilful blindness will, like knowledge of the falsity of the statement, be regarded as “almost conclusive evidence” of improper motive.[34]
-Recklessness which is not so characterised in combination with other proven factors may persuade the Court that the publication was actuated by malice.[35]
-Lack of belief, by the defendant, in the truth of the defamatory material if proved will be evidence, that may give rise with other evidence, to an inference that the publication was actuated by malice.[36]
[32] Ibid at [76], [85]-[87] and [98].
[33] Ibid at [77] and [78].
[34] Ibid at [84].
[35] Ibid at [84].
[36] Ibid at [98]. Further, there is a summary of principles elicited from Roberts by the New South Wales Court of Appeal in Gross v Weston [2007] NSWCA 1 at [42]; see also Gatley 11^th Ed at [17.4].
The defendant contends that his defamatory utterance has the protection of the privilege. The plaintiffs argue that they have negatived it and in particular have established that his utterance was motivated by an improper purpose. I turn to the facts relating to this issue.
I accept the credibility and reliability of the witnesses on both sides.
In order to make findings as to what motivated the defendant to make the offensive statement it is necessary to determine his state of mind. As to this there is both direct and circumstantial evidence. The direct evidence is the defendant’s own testimony as to his state of mind. The circumstantial evidence is the testimony of, not only the defendant, but also other witnesses as to the surrounding circumstances from which inferences can be drawn.[37]
[37] Ibid at [97]-[99] and see also Horrocks per Lord Diplock at 149H.
I find as follows.
·Ceduna is and was at the relevant time a medium sized country town with a population of 3,500 people (301).
·The defendant, who was 64 at the time of trial, had lived in the Ceduna area since 1964. He started out there as a farmer but work related injuries caused him to seek other work in and about the town (276, 277).
·He involved himself in community activities and kept abreast of local politics (250, 302). As a consequence, he came to know “a large percentage” of the people in the community including the plaintiffs (301).
·In 1979 he was first elected to the Ceduna Council and served until 1985 (277). In about 1986 he obtained the job of Council’s General Inspector and remained in that position until about 2002 (302 but see 278). He resigned because having suffered a heart attack he could not manage all the work (278). He then took up a supervisory job in an Aboriginal organisation which operated a farm near Ceduna for the unemployed. He was working in that position at the time of the trial (279).
·In May 2000 the plaintiffs, amongst others, were elected and in some cases re‑elected, to the Ceduna District Council for the prescribed three year term. If the defendant’s evidence (at 302) as to when he resigned from the position of General Inspector is correct, he was working for the previous Council for about two years of its three year term.
·In about 2001 there was an investigation by the Anti-Corruption Branch of SA Police into “... the administration and the CEO ...” of the Council (192, 196 and 203-4). The allegations of corruption were determined to be unfounded. There was a report in the West Coast Sentinel, to that effect, of which the defendant was aware (326).
·In the course of its three year term there were no allegations of corruption levelled at either the Council as an entity, or any of the individual plaintiff councillors, by either members of the community or the defendant.[38]
·The defendant knew the plaintiffs and had both business and social contact with some of them (304, 305). He regarded them as “... community minded honest people ...” (306). He dismissed any suggestion that they would abuse their office as councillors and for instance accept a bribe. He said “... I would have thought they were all above that sort of effort” (328). Further, he said that he did not take any action to “check out” whether any of them had committed a criminal offence because “... I didn’t – honestly didn’t think there was ...” (330). Such was the defendant’s conviction about the integrity of the plaintiffs.
·As indicated, in the preliminary findings (see [4]) there was a mood for change amongst the voting ratepayers as the May 2003 election approached. There was a perception that the Council were spending excessively and was not transparent enough (251, 252). The defendant was encouraged to run by four or five electors who were concerned about the marina proposal and Council’s expenditure on travelling (306). Corruption was not an issue in the election. In particular, the defendant’s platform was “Roads and Financial Matters” (281 and 307).
·The defendant was elected to Council in May 2003.
·Consistent with his convictions about the integrity of the previous Council and in particular the plaintiffs, the defendant, when in Council, did not cause any inquiries to be made or action taken in respect of the conduct of the previous Council or its councillors (328-330).
[38] See Comas 41, Limbert 83, Burge 106, Duffy 156, Michell 209, Slattery 242-243.
Against that background the defendant made the defamatory comment in the meeting of the 20 August 2003. I here refer to my previous findings as to what happened at the meeting.[39]
[39] See [8] to [14] above.
In his evidence-in-chief, the defendant explained his state of mind when he made the defamatory remarks as follows:
... As I’ve said before, it just came out ... I didn’t premeditate anything towards the gentlemen in council; it just came out ...
(328)
“When I got slightly agitated, they were the first words that just sprung out. I had no intention of pointing at anybody, just they were the first words that sprung out ...”
(315)
“... Well being rebuffed, made me a little bit irate ...”
(314)
In cross-examination however, he suggested that the investigation conducted by the Anti-Corruption Branch of SA Police into the Council’s administration and its Chief Executive Officer in 2001, must have been in the back of his mind.[40] This belated claim was hesitant and unconvincing.[41] When pursued about it, he retreated and said that his remark “... just came out ...” (327 line 15). I do not accept that the investigation by the Anti-Corruption Branch in 2001, consciously motivated the defamatory remark. Rather, I consider that the defendant had no adequate explanation for what could have motivated him to make such an unwarranted remark and, in the midst of his evidence, was speculating about what could have provoked it.
[40] See 326-328, see also [5] above.
[41] See 326 line 21, 327 lines 3, 15 and 21.
The witnesses as to what happened in the meeting were Alan Suter, the Deputy Mayor, and Councillors Edwin Burge and Mark Comas. Each of them emphasized that the defendant was visibly angry at the time of his outburst.[42]
[42] See Suter 253, Burge 108, Comas 45.
On a number of levels the acceptable evidence demonstrates that the defendant abused the occasion of privilege.
First, I am satisfied that the defendant knew that what he said was false.
The defendant admitted that he knew the allegation was false. Further, the plain inference arising from the wider circumstantial evidence is also that he knew what he was saying was false. He was an involved member of a relatively small community and was familiar with, and interested in, what was happening in the town and in local government. He was ideally placed to know himself that the Council was not corrupt and also be aware that there was no such perception in the community. At the time there was no live issue of corruption and the defendant knew it. The defamatory comment was a product of his anger and that was the sole or dominant motivation for the outburst.
Knowledge that a statement is false will ordinarily be conclusive evidence that it was actuated by malice. There is no basis upon which this case should be regarded as other than ordinary, such as the defendant having a duty to pass on information which he believed was false.
For those reasons, I am satisfied that the plaintiffs have proved that the publication was actuated by malice and therefore not protected by the privilege.
Secondly, and in the alternative, if I am in error in so characterising the defendant’s state of mind, then I would conclude that, in making the statement, he was reckless to the point of wilful blindness which in the circumstances would also constitute malice.
Thirdly, and in the further alternative, if I am in error in the above two characterisations of the defendant’s state of mind, then I would conclude that he lacked an honest belief as to the truth of the statement and that state of mind, together with the other evidence canvassed by me in [45] to [49] above, would also persuade me that the publication was actuated by malice.
I see no point in considering the further arguments of plaintiffs’ counsel other than to acknowledge their cogency. I would add here that the irrelevance of the defamatory statement to the occasion of privilege[43] is evidence which is generally relevant to whether or not the defendant was using the occasion for an improper motive or purpose. I have used it in that way.
[43] The Kalgoorlie Roads conference occurred in the life of the May 2003 Council and had nothing directly to do with the previous Council.
I conclude by invoking the following apposite comments of Brett LJ, as he then was, in Clark v Molyneux[44]:
If it be proved that out of anger, or for some other wrong motive, the defendant has stated as true that which he does not know to be true, and he has stated it whether it is true or not, recklessly, by reason of his anger or other motive, the jury may infer that he used the occasion, not for the reason which justifies it, but for the gratification of his anger or other direct motive.
[44] (1877) 3 QBD 237 at 247.
Accordingly, I am satisfied that the plaintiffs have negatived the defence of the so-called “traditional qualified privilege”.
Lange or “extended” Qualified Privilege
Despite indications to the contrary in Roberts[45] counsel for the defendant Mr Heywood-Smith QC argued that the “extended” qualified privilege articulated in Lange v Australian Broadcasting Corporation[46] applied to this case. I disagree.
[45] (Supra) at 64-74.
[46] (1997) 189 CLR 520.
The so-called Lange extended privilege does not arise in this matter because:
·it generally applies to publications concerning governmental and political matters, made to mass audiences by the general media and not to a small audiences who have an immediate and direct interest in receiving the information;[47]
·it is effectively an extension of the defence of qualified privilege in the sense it does not overlap with it, but applies only where the common law principle of qualified privilege does not;[48] and
·the common law defence of traditional qualified privilege plainly applies to this case. [49]
[47] Roberts (supra) at [73].
[48] Ibid at [67] – [74].
[49] Ibid at [67].
Accordingly, there is no justification for applying the “extended” qualified privilege articulated in Lange (supra). In any event, if I am in error, for the same reasons as I have concluded that the plaintiffs have established malice and thereby negatived traditional qualified privilege, I would also conclude that the defendant has failed to establish that in making the subject utterance he behaved reasonably, which is a requirement for the Lange defence.
Section 39 of the Local Government 1999
The defendant claims the statutory immunity in s 39 of the Local Government 1999 (SA) the terms of which are:
39—Protection of members
(1) No civil liability attaches to a member of a council for an honest act or omission in the exercise, performance or discharge, or purported exercise, performance or discharge, of the member's or council's powers, functions or duties under this or other Acts.
(2) A liability that would, but for this section, attach to a member of a council attaches instead to the council.
Provisions such as s 39, which take away common law rights, are to be construed strictly and clear and unambiguous language is necessary if the provision is to be applied.[50] As McHugh said in Puntiero at [34] “... provisions taking away a right of action for damages of the citizen are construed strictly even jealously ...”
[50] See Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105 per Kitto J at 116; see also Puntiero v Water Administration Ministerial Corporation (1999) 199 CLR 575 per Gleeson CJ and Gummow J at [4] and per McHugh J at [33] to [36].
Further, contrary to the submission of counsel for the defendant Mr Heywood-Smith QC, the burden of proving the application of the statutory immunity lies upon the defendant as the person seeking the benefit of that immunity.[51]
[51] See Public Torts and Contracts 1^stEd 1982 by Aronson and Whitmore at 158.
This provision clearly does not apply in this case.
First, the immunity conferred by the section is predicated upon the defendant’s conduct being related to his or the Council’s statutory powers, functions or duties. In connection with the defence of qualified privilege I have found that the defendant misused the occasion of privilege. In particular, I found that he uttered the defamatory words for a purpose or motive foreign to the interest and duty which gave rise to the privilege. By a parity of reasoning, what the defendant said could not be regarded as related, as required by the statutory language, to his position as a councillor. He had effectively stepped outside the purpose of the occasion.
Secondly, the operation of the immunity is also predicated upon there being an “... honest act or omission ...” by the member of the Council. As I have indicated, the onus is upon the defendant to bring himself within the wording of the section and in particular that requirement of honesty. I have found that the defendant made the defamatory statement knowing that it was false. That finding applies here. Therefore it could not be said that the defendant’s statement was “an honest act or omission”.[52]
[52] For a discussion of “honesty” see Weinel v Fedcheshen (1995) 65 SASR 156 at 172 and 173.
Finally, in this discussion there has been an assumption that in speaking at Council’s meeting, on the 20 August 2003, the defendant was acting “in the exercise, performance or discharge, or purported exercise, performance or discharge, of ... functions or duties under this or other Acts”. It is not clear to me from a perusal of the provisions of the said Local Government Act that there is a specific grant of statutory power for a councillor to make statements at meeting of council. It is certainly a necessary incident of a local government council carrying out its business but there is no power duty or authority to do so spelled out.
The plaintiffs, by their counsel Mr Ower, contend convincingly, that there being no specific statutory authority, the immunity section, predicated, as it is, upon that being the case, can have no operation to confer immunity. The case of McCarron v Boree Shire Council[53] is a compelling example. The local Council had mistakenly published a notice advertising a property for sale because of there being overdue rates. This was held to be defamatory. The Council relied on an immunity clause similar to s 39. The New South Wales Court of Appeal held that, although there was a power to sell to recoup outstanding rates, there was no specific power or duty authorising such advertisements and, accordingly, the immunity clause did not apply.[54]
[53] [1971] 1 NSWLR 638.
[54] See Manning JA at 651-654.
If necessary, I would hold that when the defendant spoke at the meeting of 20 August 2003 he was not exercising a specific power duty or authority of himself as a councillor or of the Council, under either the Local Government Act or another Act and so was not acting “... in the exercise, performance or discharge, or purported exercise, performance or discharge, of ... functions or duties under this or other Acts” within the meaning of s 39 of the said Act.
For all those reasons I conclude that s 39 of the said Local Government Act does not confer immunity on the defendant in respect of his comments.
Damages
I refer here and adopt under this heading the findings of fact set out at the beginning of this judgment.
The purposes of an award of damages in defamation are:
·to compensate the claimant for the distress he or she suffers by reason of the publication;
·to repair the harm to his or her reputation including business and professional reputation; and
·to vindicate reputation.[55]
[55] See Gatley (supra) 11^th Ed at [9.2].
The above three-fold proposition has sometimes been distilled into two. In Uren v John Fairfax & Son Pty Ltd[56] Windeyer J said:
It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways—as a vindication of the plaintiff to the public and as consolation to him for a wrong done.
[56] (1966) 117 CLR 118 at 150.
Damages are at large and are not to be assessed by reference to any formula and nor are they limited to any pecuniary loss which may have arisen from the publication. Further, the conduct of the parties from the time of publication to judgment is relevant.[57]
[57] See Gatley (supra) 11^th Ed at [9.2].

The words here spoken were serious indeed. They alleged a criminal offence of grave proportions against the plaintiffs. I accept also that the harmful impact of such a defamatory statement would have been intense given that the publication was made in a public place in a relatively small country community. I do note, in this respect however, that there was little evidence that the community took up the allegation. I suspect that the plaintiffs were held in such high regard that the community might have been disbelieving. Having said that I am cognisant of the fact that this particular slander is actionable per se and the law presumes that damage to reputation will result.[58]
[58] See Ratcliffe v Evans [1892] 2 QB 524 at 528.
Each of the plaintiffs spoke of the outrage and anger they felt when, in the case of Comas and Burge they heard what was said, and in the case of the others when they learned about it. These feelings were exacerbated in the case of Messrs Duffy and Burge when they were approached by members of the community and queried about what had been said.
The uncontested evidence, which I accept, was that each of the plaintiffs was held in high regard in the local Ceduna community and so in that sense there is an additional impact upon them as compared with an ordinary member of the community.[59]
[59] See Bickel v John Fairfax & Son Ltd [1981] 2 NSWLR 474 at 481-483.
The plaintiffs are clearly entitled to an award of damages for this serious allegation.
It is trite law that, though it is no defence, the prompt publication of an apology can mitigate the entitlement to damages.[60]
[60] See Gatley (supra) 11^th Ed at [35.55].
In this case there were repeated apologies.
Immediately after the offensive publication the defendant regretted it and, guided by the Deputy Mayor Alan Suter, wrote and tabled the letter of the 6 September 2003 which, despite the submission to the contrary by counsel for the plaintiffs, I regard as plainly relevant. It was the first of several apologies and retractions.
In the time following September 2003 the plaintiffs gathered together, took and considered legal advice about their position. Nothing formal happened until the letter before action in December 2003. Mr Duffy, who was the principal plaintiff and plainly the force behind this litigation, agreed that as at October 2003 he was contemplating “putting the cue in the rack” until at the Oyster Fest in Ceduna on the October 2003 long weekend he was queried by members of the community about the allegation. He decided then, with justification, that a public vindication was required. In December 2003 a letter before action was sent to the defendant. What followed, including settlement negotiations, is set out in detail in the earlier findings.[61] I confirm that the defendant’s solicitor forwarded to the solicitor for the plaintiffs a copy of the first letter of apology dated 6 September 2003. There followed separate letters to each of the plaintiffs and the publication in the West Coast Sentinel of the 6 May 2004.
[61] See [20] – [25] above.
These proceedings were instituted in July 2005 - a month before the expiration of the two year statutory time limit.
I consider that the apologies substantially discount the damages to which the plaintiffs are otherwise entitled.
I make the following awards:
Mr Duffy  $3,000
Mr Comas  $2,000
Mr Limbert  $2,000
Ms Michel  $2,000
Mr Burge  $2,000
Mr Slattery  $2,000
TOTAL                  $13,000
I would award interest on the awards over the period since the date of institution of this action to the date of this judgment calculated at the rate of 4 per cent per annum.
I will hear counsel as to interest and costs and therefore the final order.