Megna v Marshall - [2010] NSWSC 686

No judgment structure available for this case.

CITATION: Megna v Marshall [2010] NSWSC 686

HEARING DATE(S): 18 February 2008; 19 February 2008; 20 February 2008; 22 February 2008; 25 February 2008; 26 February 2008; 29 February 2008; 11 March 2008; 17 November 2009; 18 November 2009; 19 November 2009; 20 November 2009; 23 November 2009; 24 November 2009; 25 November 2009; 26 November 2009; 27 November 2009; 2 December 2009; 3 December 2009

JUDGMENT DATE :
25 June 2010

JURISDICTION: Common Law

JUDGMENT OF: Simpson J

DECISION: (i) Verdict for the first plaintiff against each defendant in the sum of $395,000. (ii) Verdict for the second plaintiff against each defendant in the sum of $220,000. (iii) The first cross-claim is dismissed. (iv) On the second cross-claim, verdict for the second cross-claimant against the second cross-defendant in the sum of $307,500. Justice Simpson will hear the parties on the question of costs.

CATCHWORDS: DEFAMATION – privilege – common law qualified privilege – statements made in pursuance of duty or interest – occasion of qualified privilege – reciprocity of interest essential – relevance to occasion – election cases – privilege not limited to statements made in course of election or election campaign – extends to statements made concerning discharge of functions of elected representatives – mass media publications – extent of publication – volunteered communications – whether volunteered statement privileged only where there is a pressing need to protect interests of defendant or third party, or where defendant under a duty to make statement – ‘pressing need test’ not applied – anonymity - DEFAMATION – privilege – common law qualified privilege – privilege lost if maker actuated by malice – tone and language – privilege not lost because of nature of language used: Adam v Ward – whether tone relevant to malice - whether privileged occasion used for improper purpose – distinction between relevance to occasion of qualified privilege and misuse of occasion to defeat, by reason of malice – authorship unattributed – proof of distribution insufficient to establish ill will, no doctrine of transferred malice in law of defamation: Bass v TCN Channel Nine Pty Ltd – no evidence that publishers actuated by express malice - DEFAMATION – cross-claim – whether publications in response to circulars protected by common law qualified privilege – a ‘reply to an attack’ – comment defence – Defamation Act 1974, s 30, s 31, s 32 – comment represented opinion of publisher and therefore proper material for purpose of the defence – defence of qualified privilege made out - LIMITATION OF ACTIONS – s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946, claim in respect of first matter complained of statute barred - DAMAGES – general – compensatory damages – aggravated damages – relevant considerations

LEGISLATION CITED: Defamation Act 1974
Law Reform (Miscellaneous Provisions) Act 1946
Limitation Act 1969

CATEGORY: Principal judgment

CASES CITED: Adam v Ward [1917] AC 309
Andreyevich v Kosovich (1947) 47 SR (NSW) 357
Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55
Baird v Wallace-James (1916) 85 LJPC 193 at 198; (1916) SC (HL) 158
Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366
Bass v TCN Channel Nine Pty Ltd [2003] NSWCA 118
Bellino v Australian Broadcasting Corporation [1996] HCA 47; 185 CLR 183
Bennette v Cohen [2009] NSWCA 60
Braddock v Bevins [1948] 1 KB 580
Carson v John Fairfax and Sons Ltd [1993] HCA 31; 178 CLR 44
Cassell & Co Ltd v Broome [1972] AC 1027
Dow Jones & Company Inc v Gutnick [2002] HCA 56; 210 CLR 575
Fraser v Holmes [2009] NSWCA 36
Goyan v Motyka [2008] NSWCA 28
Guise v Kouvelis [1947] HCA 13; 74 CLR 102
Horrocks v Lowe [1975] AC 135
Howe v Lees [1910] HCA 67; 11 CLR 361
Huntley v Ward (1859) 6 CB (NS) 514
John Fairfax & Sons Ltd v Vilo [2001] NSWCA 290; 52 NSWLR 373
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Laughton v Bishop of Sodor and Man (LR 4 PC 495)
Lindholt v Hyer [2008] NSWCA 264
London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15
Megna v Marshall [2004] NSWSC 191
Megna v Marshall [2005] NSWSC 1302
Megna v Marshall [2005] NSWSC 1326
Megna v Marshall [2005] NSWSC 1347
Megna v Marshall [2006] NSWSC 70
Moit v Bristow [2005] NSWCA 322
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749
Motyka v Gojan [2007] NSWSC 31
Mowlds v Fergusson (1939) 40 SR (NSW) 311
Mowlds v Fergusson [1940] HCA 38; 64 CLR 206
Nevill v Fine Arts and General Insurance Co [1895] 2 QB 156; [1897] AC 68
Reynolds v Times Newspapers Ltd [2001] 2 AC 127
Roberts v Bass [2002] HCA 57; 212 CLR 1
Skalkos v Assaf [2002] NSWCA 14
Spill v Maule (LR 4 Ex. 232)
State of NSW v Riley [2003] NSWCA 208; 57 NSWLR 496
Stephens v West Australian Newspapers Ltd [1994] HCA 45; 182 CLR 211
Sutcliffe v Pressdram Ltd [1991] 1 QB 153
Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; 182 CLR 104
Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044
Tory v Megna [2007] NSWCA 13
Warren v Warren 1 CM&R 250

TEXTS CITED: Gatley on Libel and Slander, 11th ed (2008)

PARTIES: Michael Megna (First Plaintiff)
Russell James Lloyd (Second Plaintiff)
David John Marshall (First Defendant)
Richard Martin Tory (Second Defendant)

FILE NUMBER(S): SC 2004/181254

COUNSEL: T Molomby SC/R K M Rasmussen (Plaintiffs)
J Hmelnitsky (First Defendant)
A T S Dawson (Second Defendant)

SOLICITORS: Etheringtons Solicitors (Plaintiffs)
Horowitz & Bilinsky (First Defendant)
Osborne Bricknell Howell (Second Defendant)

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

Simpson J

25 June 2010

2004/181254 Michael Megna & Anor v David John Marshall & Anor
JUDGMENT

1 HER HONOUR: These proceedings involve the determination of defences raised by the defendants, David Marshall and Richard Tory, to claims by each of two plaintiffs, Michael Megna and Russell Lloyd, that each defendant, over a period of five and a half years (March 1998 – September 2003) published multiple defamatory imputations of him. Also involved are cross-claims by Mr Marshall against Mr Megna and by Mr Tory against Mr Marshall (the latter seeking indemnity or contribution).

2 That each plaintiff was the subject of defamatory material published by each defendant was established, in 2005, in a jury trial conducted under s 7A of the Defamation Act 1974.

History of the proceedings

3 So far as I can ascertain the following represents the history of the proceedings to date.

4 In February 2004 Mr Megna sought and obtained an order of the kind outlined in Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55. The precise terms of the order are not available to me, but I understand that it permitted persons appointed by Mr Megna to enter premises owned or occupied by Mr Marshall and seize documents. The purpose of the order was to identify the source of the defamatory publications referred to above, and extensively hereafter.

5 The statement of claim was originally filed on 8 April 2004. By reason of the dates of the publications, the claims are governed by the Defamation Act 1974, as amended in 1995. Pursuant to s 7A of that Act, issues of publication, whether the imputations were conveyed, and if so, whether they were defamatory, were committed for jury determination; all other issues were reserved for judicial determination.

6 A trial of the s 7A issues commenced in August 2005 before Studdert J and a jury, and proceeded over about three weeks. The principal issue was whether the plaintiffs were in a position to prove that either or both of the defendants were responsible for the publication of a series of 28 circulars, published between March 1998 and September 2003.

7 The jury found that the plaintiffs had proved publication by the defendants, and found that, in 17 of the circulars, 89 defamatory imputations had been published - 54 of Mr Megna, 35 of Mr Lloyd. It is to be noted that the “publication” found by the jury involved the distribution of the circulars. It did not encompass a finding that either Mr Marshall or Mr Tory wrote or composed them. There was some evidence from which the jury may have inferred that Mr Marshall had a role in the printing of the circulars. Just what view of that evidence the jury took is not known.

8 Between 2004 and 2005 the parties were before the Court on a number of occasions in various proceedings commenced by one or other of them, some of them concerning the disposal of assets. See Megna v Marshall [2004] NSWSC 191, Megna v Marshall [2005] NSWSC 1302; Megna v Marshall [2005] NSWSC 1347; Megna v Marshall [2005] NSWSC 1326; Megna v Marshall [2006] NSWSC 70.

9 Mr Tory appealed against the jury verdict. The appeal was heard on 25 October 2006; judgment was delivered on 19 February 2007: Tory v Megna [2007] NSWCA 13. The appeal was dismissed.

10 Defences were filed by or on behalf of Mr Marshall and Mr Tory on 2 February 2006 and 13 February 2006. Mr Marshall’s defence was evidently prepared by himself (or by somebody unschooled in pleading) and sought to raise defences of truth, contextual truth, comment, qualified privilege (pursuant to s 22 of the Defamation Act), and (pursuant to s 13), that the circumstances of publication were such that the plaintiffs were unlikely to suffer harm. It was amended from time to time.

11 The trial was fixed to commence in February 2008, with an estimated hearing time of three weeks. The plaintiffs were represented by senior and junior counsel; Mr Tory was represented by junior counsel; and Mr Marshall represented himself. In December 2007 Mr Marshall applied for adjournment, on the ground that he was suffering from back pain. That adjournment was refused.

12 Shortly before the trial commencement date, Mr Marshall again applied, to Hoeben J, for adjournment. As I understand it, he gave two reasons: his back condition, which had resulted in recent surgery; and the recent death of his wife.

13 Hoeben J again refused the adjournment application. There is no record of any reasons for the refusal.

14 Accordingly, the trial of the defences commenced before me on Monday, 18 February 2008. Representation was as set out above. Mr Marshall was unrepresented. Yet again, he applied for adjournment, citing the same two reasons: his back condition, and that he was still emotionally affected by the death of his wife.

15 Although the debate wandered off into areas not directly relevant (for example, the impact of proposed late amendments to the plaintiffs’ Reply) the real issue remained whether, by reason of Mr Marshall’s medical condition and/or his wife’s death, he was physically and/or emotionally unable to defend himself. Somewhat reluctantly, I also refused the adjournment. In doing so, I was conscious of Mr Marshall’s un-represented status, of his physical health, and of the compassionate circumstances that operated in favour of adjournment. I also bore in mind that the application had already been made to one judge, who had seen fit to refuse it, and that Mr Marshall had advanced nothing additional (indeed, he had produced evidence to Hoeben J which he did not produce to me) to support a departure from the ruling of Hoeben J. To those considerations had to be added the costs of vacating a three week, four party, three counsel trial. On balance, I concluded that the trial ought to proceed, and it did, with Mr Marshall representing himself.

16 Mr Megna gave evidence. Mr Marshall embarked upon his cross-examination. At that time, one of the defences upon which he relied was justification.

17 It soon became apparent, unsurprisingly, that Mr Marshall was out of his depth.

18 Nevertheless cross-examination continued over the next three hearing days. On Monday 25 February, Mr Marshall again sought adjournment, this time with a view to obtaining legal advice. I granted a short adjournment to the following day. On that day, counsel appeared for Mr Marshall, but was obviously not in a position to embark upon a hearing. On Friday 29 February, different counsel appeared. By this time it was quite apparent that the matter could not immediately proceed.

19 For various legitimate reasons, into which it is not now necessary to delve, the matter could not resume until almost two years later, November 2009.

20 Mr Marshall’s defence was substantially amended; justification was no longer relied upon.

21 Except for one thing, each defendant now raises only a single defence to the publications: that of qualified privilege at common law. It is that defence, as expressed in Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044; Adam v Ward [1917] AC 309; Braddock v Bevins [1948] 1 KB 580 (and adopted by the High Court in, for example, Roberts v Bass [2002] HCA 57; 212 CLR 1), and applied in NSW by the Court of Appeal in Bennette v Cohen [2009] NSWCA 60, and Fraser v Holmes [2009] NSWCA 36), that is the principal issue. A related defence, concerning the publication of defamatory material on political issues (see Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520) has not been invoked and expressly disclaimed. The substantial difference between what are, in effect, two strands of the same defence, is that the defence as explained in Lange requires proof, by the defendant, of reasonableness of conduct. Given that the Lange defence is not invoked, it is not necessary, in this case, for either defendant to establish that his conduct was reasonable.

22 The exception concerns the defence to the publication of one circular, the first. To this publication the defendants plead a limitation defence.

23 In response, the plaintiffs allege that, in publishing the defamatory imputations, the defendants were actuated by malice.

Background

24 The claims arise out of a series of at least 28 publications that circulated in the local government area (“the Drummoyne Municipality”) of the Drummoyne Council between March 1998 and September 2003. Twenty-six bore the heading “DRUMMOYNE COUNCIL RATEPAYERS ASSOCIATION” (“DCRA”), and gave a post office box number and identified themselves as “circulars”, giving the month and year of publication. These publications bore, at the top, under the heading, what may be termed a slogan: “Investigating decision making by Drummoyne Council and its Councillors”. All of these were dated between February 1998 and November 2000. Two of the publications, dated, respectively, May 2003 and August/September 2003, were entitled “Community View”. These did not give a post office address, but invited comments to “Theresa Green” at an Internet address. Although the publications had the format of, and could easily be called, newsletters, it will be convenient to adopt the terminology given to them by their authors. I will continue to refer to them as circulars.

25 The DCRA circulars made frequent reference to the “Drummoyne Municipality Residents’ Association” (“the DMRA”). The two publications entitled “Community View” were not attributed to the DCRA.

26 Of these publications, 17 are the subject of these proceedings. All of the circulars dealt with a number of different topics. Each topic was identified by a heading, in bold, upper case, print, underlined. By way of illustration, the circular dated February 1998 (not the subject of a specific claim), had the headings “COUNCIL FARCE”, “MAYOR CAUGHT LYING? (Again)”, “ANOTHER FARCE” and “REMEMBER”.

27 Although there were gaps, sometimes of considerable length, in the publications, during the period of currency, the circulars were issued, on the whole, on a monthly basis; sometimes more than one was published in any given month.

28 In general, the content of the circular concerned a range of topics and subject areas, directed to the affairs of the Drummoyne Council, its councillors, and its administrative staff. Recurrent themes were the policies of Mr Megna, who was throughout the period of publication a Councillor, and who was, from time to time, Mayor, and of the performance of Mr Lloyd, who was, throughout the period, the General Manager of the Council, and of other staff and Council committees. It will be necessary, in due course, to say something about the language used in, and the tone of, the contents of the circulars. Some idea of that can be gauged from the headings I have quoted from the February 1998 circular. That was representative of the entire series. Frequently, the publications can properly be characterised as an attack upon either Mr Megna or Mr Lloyd. It is not going too far to describe them as ferocious. “Vituperative” is another apt description.

29 One thing that does emerge from a careful, chronological reading of the circulars is that, as time went on, they became increasingly shrill, vitriolic, and abusive. As that happened, their content of anything that could be called a “communication” (either of fact, or of opinion) correspondingly diminished. Some of the publications can hardly be called communications at all – they are properly characterised as abuse.

30 Although the evidence is not entirely clear, it is a fair inference that the circulars were delivered to residents and ratepayers of the Drummoyne municipality.

31 I will refer to the Drummoyne Council as “the Council”; and, for convenience of reference, to the parties by name.

32 Obviously, it would be far too cumbersome to attempt to include the content of all of the circulars and all of the imputations in the body of this judgment. In order to keep this judgment within manageable limits, I will append them in a schedule to the judgment and, in the body of the judgment, outline their contents only to the extent necessary to explain my reasoning. It is necessary to do so because the nature of the defence raised calls for separate consideration of the circumstances of each publication, and, indeed, the circumstances of publication of each imputation, as well as of the content of each circular, each item from which the imputations are derived, and each imputation.

33 The evidence establishes that, over the relevant period, there were a number of issues on which it could fairly be said that the performance of the Council (through its administrative staff) was less than optimal. These were the subject of trenchant comment in the circulars. They were also explored in considerable depth in the cross-examination of Mr Megna and Mr Lloyd. The evidence does not establish that these were typical, or representative of the Council’s performance, nor that other, comparable, councils did not have similar lapses in administration.

34 I will make reference to some of these issues at a later point in this judgment.

The parties

35 The first plaintiff is Michael Megna. He was for many years a councillor of the Council, having first been elected in 1987. Between 1990 and 1993, and again between 1996 and 1999, he held the office of Mayor. He was endorsed by the Liberal Party.

36 In December 2000 the Council amalgamated with the Concord Council to form the City of Canada Bay Council. Mr Megna was elected also to that Council and, as at 2008, he held office therein.

37 The second plaintiff is Russell Lloyd. From November 1993 to November 2000 he held office as General Manager of the Council. He has had a career in local government since 1969.

38 The first defendant is David Marshall. He was at relevant times a councillor of the Council, elected as an Independent. He has held office as Mayor.

39 The second defendant is Richard Tory. He did not, so far as the evidence goes, hold office in the Council, although the evidence does show that he took an active interest in its affairs. The evidence discloses little about him. I am satisfied that he was a resident of the municipality and a ratepayer of the Council.

40 I have not the slightest doubt that Mr Marshall was a difficult, belligerent, and pugnacious member of Council, antagonistic to both plaintiffs. He held his views strongly, and expressed them forcefully, vigorously, and even (more often than not) intemperately. He tolerated no opposition, and reacted fiercely to anybody who behaved in a way that he perceived thwarted him in the path he considered appropriate. He saw himself (rightly or wrongly) as well informed in the issues relevant to local government, and in the relevant legislation.

41 He was undoubtedly a thorn in the side of anybody he perceived as standing in his way, and, especially, in the sides of those involved in the management and administration of the Council. In particular, he was a political opponent of Mr Megna and he appears to have regarded Mr Lloyd as an ally of Mr Megna’s. The hostility he harboured towards each plaintiff may be gleaned from the content of the circulars, although, as I have said, the evidence does not establish that he was responsible for the draftmanship.

42 I have no doubt that the manner in which he chose to conduct himself in his role as councillor was aggressive and openly hostile.

43 At times, the proceedings took on the appearance of a full-scale investigation of the affairs of the Council over the relevant years (1998-2003), and the conduct, and the competing positions in respect of various issues, of those involved, including councillors and administrative staff (Mr Megna and Mr Lloyd in particular).

44 It is important to maintain focus. I am not engaged in an investigation of the propriety of the conduct of any Councillor (with the partial exception of Mr Marshall), nor of Mr Megna as Mayor, nor of Mr Lloyd as General Manager. Nor am I concerned with the reasonableness (or otherwise) of the views expressed in the circulars.

45 I stress that it is not my function to make determinations on the relative merits of any of the municipality issues explored in the circulars. The evidence was adduced for the purpose of establishing that the occasions on which Mr Marshall and Mr Tory published the circulars attracted the protection of qualified privilege at common law. That could be done by showing that they (each of them individually) had an interest in communicating with the recipients (that is, residents and ratepayers of the Drummoyne municipality) of the circulars on the subject matter of the circulars, and that those residents and ratepayers had a corresponding interest in receiving that information. I will explore this in more detail below.

Credit issues

46 Issues arose concerning Mr Megna’s credibility. For example, he has given conflicting evidence concerning his reasons for not contesting the Mayoralty in the 2000 Council elections. On one occasion he said that that was because the Liberal Party had decided not to endorse candidates. In an affidavit sworn for the purpose of the application for Anton Piller orders, he deposed that the publication of the circulars was the “main reason” for his decision not to stand for election that year.

47 However, it is unnecessary to take time on this question. Mr Megna’s credibility is not an issue in the determination of the defence of qualified privilege. It is, of course, relevant to the question of damages. I have not overlooked that he gave evidence of the effect upon him of the publication of the circulars, and of his distress. In assessing that evidence, it is appropriate that I treat his evidence with some circumspection. However, his wife, who I found to be a frank and honest witness, confirmed that he had shown signs of distress at the publications, and it would not be surprising, and would accord with common human experience, that the publication of the imputations here in question would cause distress of the kind he described. Indeed, for a man of Mr Megna’s strength of conviction and determination in the political sphere, it could be expected that publications of the kind in question would cause heightened tension.

48 I found no difficulties with respect to the credit of Mr Lloyd. I was satisfied that he was a truthful witness.

Qualified privilege at common law

49 It is convenient here to outline what is involved in a defence of qualified privilege at common law, and to state the law that I propose to apply. I have found that no easy task.

50 I have come to the conclusion that the determination of a defence of qualified privilege at common law involves three strands of inquiry:

● identification of an occasion of qualified privilege by reference to all of the circumstances in which the communication is published, including, particularly, the subject matter of the communication: this involves the identification of a duty or interest in the publisher to communicate with respect to that subject matter, and the identification of a reciprocal interest in the recipient in receiving a communication with respect to that subject matter;

● determination whether the content of the communication was relevant , germane , or sufficiently connected to that occasion or subject matter;

and

malice

51 The distinction between occasion and relevance on the one hand, and malice on the other, may be of considerable significance: the onus lies upon the defendant to establish privilege; the onus lies upon the plaintiff to establish malice. At least in relation to proceedings brought under the Defamation Act 1974 (prior to the amendments made in 1995), whether a publication was made under qualified privilege was a matter for the judge to decide: whether it was actuated by malice was a jury question.

52 That these are the three relevant questions, or steps in the process, appears to me to emerge from the authorities examined below.

53 As will be seen, in my opinion, this case raises a number of difficult issues about both the principles that govern, and the application of, the law of qualified privilege at common law. In two respects, the circumstances of this case push the defence of qualified privilege to its outermost boundaries. Those matters are: (i) the vitriolic tone and language of at least some of the publications; and (ii) the extent of publication. It has therefore been appropriate to examine, in some detail, the jurisprudence on the subject.

54 In any discussion of qualified privilege at common law, the starting point is, as always, Toogood v Spyring at 193. There the principle was stated as follows:

or in the conduct of his own affairs, in matters where his interest is concerned

and the law has not restricted the right to make them within any narrow limits

55 The language of that passage has been adopted and repeated on numerous occasions.

56 In another famous passage, in Adam v Ward at 334, Lord Atkinson said:

“It was not disputed … that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.”

57 The applicability of these principles for the Australian law of defamation was affirmed in the majority judgment in Roberts v Bass.

58 The protection afforded is far reaching. It protects communications which are untrue in fact and defamatory of the person of whom they are made. In the best known UK text on defamation (Gatley on Libel and Slander, 11^th ed (2008), Sweet & Maxwell, para 14.4, quoting Huntley v Ward (1859) 6 CB (NS) 514 at 517) the following appears:

no matter how harsh, hasty, untrue or libellous

59 It will be observed that, in Toogood v Spyring, what was said to be protected was the “communication”. A communication may be the provision of factual information, or it may be the expression of an opinion, for example, as to the suitability of a candidate for a particular position of employment.

60 If a communication meets the Toogood v Spyring test – ie it is made in the discharge of a duty or in the conduct of the affairs of the maker, in matters where his (or her) interest is concerned – then, it is said, it is made on an occasion of qualified privilege. That, of itself, is insufficient to avail the publisher. A separate question is relevance to the occasion. A defamatory communication, even if made on a privileged occasion, is not protected unless it is shown to be sufficiently relevant to the occasion. I consider below the question of relevance.

61 It is convenient here to mention another matter to which it will be necessary to return. Even where a communication is published on an occasion of qualified privilege, and is relevant to that occasion, it may fail to secure the protection of the privilege. That will occur where the privileged occasion has been used for a purpose other than that for which the privilege is conferred. In those circumstances, the publisher is said to have been actuated by express malice, and the privilege is lost.

62 Malice is a separate issue. It is convenient to mention it here because it frequently happens, in the discussions in the authorities, that the two issues are considered together.

63 In Moit v Bristow [2005] NSWCA 322, McColl JA, with whom Beazley JA and Campbell AJA (as his Honour then was) said:

“78 In order to determine whether a publication was made on an occasion of qualified privilege, the court examines all the circumstances of the case. These include the nature of the defamatory communication, the status or position of the publisher, the number of recipients and the nature of any interest they had in receiving it, and the time, place and manner of, and reason for, the publication …

Andreyevich v Kosovich

Bashford

64 In para [78], her Honour was echoing, although not directly quoting from, Baird v Wallace-James (1916) 85 LJPC 193 at 198; (1916) SC (HL) 158 at 163, 164, itself quoted in Mowlds v Fergusson [1940] HCA 38; 64 CLR 206.

65 It is not necessary that the recipient have an interest in the specific communication. It is sufficient that the defendant establish that the recipient had an interest in receiving information of that kind: see Howe v Lees [1910] HCA 67; 11 CLR 361; Andreyevich v Kosovich (1947) 47 SR (NSW) 357 at 362; Bennette v Cohen at [207] per Campbell JA.

66 This is logical. The defence of qualified privilege protects false defamatory communications as well as those that are true. Ordinarily, nobody has a duty to make a false communication, defamatory of another; nobody is entitled to protect an interest by making a defamatory communication known to be false; there can therefore be no reciprocal interest in any recipient in receiving a communication that is false. There are exceptions to that proposition, but they are rare and confined. An employee, for example, may have a duty to pass onto a superior an allegation of criminal conduct on the part of another employee even though the first employee has reason to believe that the allegation is false.

67 What the law of qualified privilege protects is the publication of communications with respect to particular subject matters, where “the common convenience and welfare of society” is served by the exchange of information or opinion concerning those subject matters, and it does so even where the communication is subsequently shown to have been false, and damaging to the reputation of another.

68 Put another way: a publisher may be under a duty to publish a correct communication with respect to a particular subject matter or may have an interest in publishing a correct communication with respect to a particular subject matter, and a recipient may have an interest in receiving a correct communication with respect to that subject matter. Where those duties or interests are shown to exist, then the law of qualified privilege (subject to the question of malice) also protects a false communication with respect to that subject matter: see Andreyevich v Kosovich at 363. A recent illustration of the application of this principle is to be found in Fraser v Holmes.

69 The “interest” in the recipient must transcend mere curiosity: Stephens v West Australian Newspapers Ltd [1994] HCA 45; 182 CLR 211.

70 In Adam v Ward (p 334) Lord Atkinson drew a distinction between “a privileged occasion” and “a privileged communication”. The same distinction was drawn by Dixon J in Guise v Kouvelis [1947] HCA 13; 74 CLR 102 at p 117.

71 This is readily understandable. It is not every communication that is made on what is otherwise a privileged occasion that attracts the privilege. To achieve that, the communication must have the requisite relevance to, or connection with, the subject matter with respect to which the privilege exists (Adam v Ward, p 318, per Lord Finlay, pp 320-1, per Earl Loreburn; Bellino v Australian Broadcasting Corporation [1996] HCA 47; 185 CLR 183 at p 228; Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366 at [27], [235]. It is then that the communication is said to have been published under qualified privilege (as distinct from, and a step further than, on an occasion of qualified privilege), and (always subject to the question of malice) secures the protection of the defence.

Relevance

72 The relevance principle may be illustrated in this way: ordinarily speaking, discussion during the course of a Council meeting would attract privilege. The occasion confers a privilege upon the members of the Council, so that they may freely, openly and honestly exchange information and express views on matters relevant to Council business. For that purpose, the occasion is privileged. But the privilege conferred on specific communications is limited to those that are relevant to or have the necessary connection with Council business. If a defamatory statement is made that is not relevant to the business of the Council, while the occasion may be privileged, the specific communication is not. This emerges, in my opinion clearly, from various of the speeches in Adam v Ward. I acknowledge that Lord Finlay, in the first part of the second italicised passage below, might be read as having thought that the introduction of extraneous material deprived the occasion of privilege; but the second part of that passage and the first italicised passage is, in my opinion, consistent with what was said by the other members of the House of Lords.

73 In Adam v Ward, the following passages are salient:

something beyond what was germane and reasonably appropriate to the occasion

74 (By contrast) Lord Finlay:

and it does not extend to a communication upon any other extraneous matter

and the communication on the extraneous matter is not made upon a privileged occasion at all, inasmuch as the existence of privilege on one matter gives no protection to irrelevant libels introduced into the same communication

75 Lord Dunedin:

“If the defamatory statement is quite unconnected with and irrelevant to the main statement which is ex hypothesi privileged, then I think it is more accurate to say that the privilege does not extend thereto than to say, though the result may be the same, that the defamatory statement is evidence of malice.” (p 327)

76 And in Braddock v Bevins, Lord Greene MR, delivering the judgment of the Court, said:

within proper limits

Adam v Ward

77 In Mowlds v Fergusson (1939) 40 SR (NSW) 311, Jordan CJ said:

and if he restricts himself to a communication which is capable of serving the purpose of the occasion and is made with no other object than that of serving that purpose, he incurs no liability for libel or slander to any person of whom his communication may be in fact defamatory

Stephens v West Australian Newspapers Ltd

Mowlds v Fergusson

78 It is one thing to identify irrelevance of a communication to an otherwise privileged occasion. But what are the consequences of introducing into a privileged occasion an irrelevant communication? Tracing through the authorities, it is not easy to discern a consistent thread.

79 In Bellino (in a decision concerned with a section of the Queensland Criminal Code), Dawson, McHugh and Gummow JJ said:

qualified privilege only attaches to that part which is relevant to the occasion

80 Their Honours then extracted the passage from Adam v Ward (at p 318) in which Lord Finlay made the observations quoted above. That is, Lord Finlay, in the first part of the second italicised passage, appeared to treat the introduction of irrelevance as depriving the occasion of privilege; but, in the second, as depriving the communication of privilege.

81 Dawson, McHugh and Gummow JJ treated the introduction of irrelevant material as depriving the communication of privilege, but also as potentially evidence of malice.

82 But in Horrocks v Lowe [1975] AC 135, Lord Diplock (like Dawson, McHugh and Gummow JJ in the last sentence of the extracted passage of Bellino, above) seems to have treated irrelevance only as evidence of malice, discounting the suggestion that irrelevance might go to whether the communication was or was not privileged. His Lordship said:

“But where, as in the instant case, conduct extraneous to the privileged occasion itself is not relied on, and the only evidence of improper motive is the content of the defamatory matter itself or the steps taken by the defendant to verify its accuracy, there is only one exception to the rule that in order to succeed the plaintiff must show affirmatively that the defendant did not believe it to be true or was indifferent to its truth or falsity …

Adam v Ward … the proper rule as respects irrelevant defamatory matter incorporated in a statement made on a privileged occasion is to treat it as one of the factors to be taken into consideration in deciding whether, in all the circumstances, an inference that the defendant was actuated by express malice can properly be drawn

83 In Stephens v West Australian Newspapers Ltd Brennan J (as he then was) drew a distinction between:

the occasion

London Association for Protection of Trade v Greenlands Ltd

84 In Bashford Gleeson CJ, Hayne and Heydon JJ said:

“If the occasion is privileged the further question which arises is whether the defendant ‘has fairly and properly conducted himself in the exercise of it’.” (at [22])

Guise v Kouvelis

85 Where an issue of qualified privilege arises, it is as well to remember the final sentence of the above extract from Toogood v Spyring: the law has not restricted the right to make such statements within in any narrow limits.

86 It is true that the cases suggest that assessment of relevance to the occasion and questions of malice may share an evidentiary foundation. That is precisely what the majority of the High Court said in the last sentence of the extracted passage from Bellino, and what Lord Finlay said in Adam v Ward. However, Earl Loreburn, in Adam v Ward, at p 321, said:

but the two things are different

The language used

87 Can the privilege be lost, apart from by reason of malice, because of, for example, the nature of the language used? On my reading of the authorities, at least until the decision of the Court of Appeal in Skalkos v Assaf [2002] NSWCA 14, it has consistently been held that it cannot: see, for example, the passage cited from Huntley v Ward above.

88 In Adam v Ward, it was so held. Lord Atkinson said:

“It was, however, strenuously contended … that the language used in a communication made on a privileged occasion must, if it is to be protected, merely be such as is reasonably necessary to enable the party making it to protect the interest or discharge the duty upon which the qualified privilege is founded. It has long been established by unquestioned and unquestionable authority, I think, that this is not the law.” (pp 334-335)

89 His Lordship proceeded to refer, in detail, to three authorities to that effect: Spill v Maule (LR 4 Ex. 232); Laughton v Bishop of Sodor and Man (LR 4 PC 495); and Nevill v Fine Arts and General Insurance Co [1895] 2 QB 156; [1897] AC 68. Having done this, he said:

even though his language should be violent or excessively strong

90 In Spill v Maule, for example, the assertedly excessive terms of the defamatory statement were said to be evidence of malice. The same approach was taken in each of the other two cases cited.

91 Lord Dunedin said (immediately following the passage extracted in [75] above):

where the express malice is arguable from the too great severity or redundancy of

the expressions used

92 He then quoted from Warren v Warren 1 CM&R 250, as follows:

only an excessive statement

93 Adam v Ward, therefore, it seems to me, is authority for the proposition that, provided that the defamatory statement is relevant to the subject matter in respect of which the privilege is conferred, an excess of language, no matter how abusive it may be, does not render the occasion unprivileged, or the communication unprivileged. (Whether the violence of the language may be evidence of malice is another question to which I will return.)

94 In Horrocks v Lowe, a case that, coincidentally, also involved local government, Lord Diplock said:

boldly and bluntly

they may be obstinate and pig-headed, stupid and obtuse

95 Although not all of the italicised words are directed specifically to the nature of the language used, it may be inferred that “bold and blunt” speech, “obstinacy” and “pig-headedness”, “stupidity” and “obtuseness” would give rise to strong language. Nevertheless, as I read his Lordship, the communication is privileged unless actuated by express malice.

96 The effect of these decisions, it seems to me, is that, in the United Kingdom, provided a defamatory communication is relevant to the occasion of qualified privilege, then, no matter how gross or inflammatory its terms, it remains privileged, unless the plaintiff establishes that the purpose of the defendant in publishing it was a malicious one.

97 It seems to me that the High Court has, generally, taken a similar approach.

98 In Roberts v Bass, Gaudron, McHugh and Gummow JJ said, on no less than three occasions, that:

“… the vigour of an attack or the pungency of a defamatory statement concerning such matters cannot, without more, discharge the plaintiff's onus on the issue of malice.” ([68])

“… Without more, the vigour of the attack is not evidence of improper motive …” ([69])

99 I acknowledge that these observations were all made with reference to what permits a finding of malice. But there is no suggestion in the judgment that “the vigour of an attack” or “the pungency of a defamatory statement” could or would, absent malice, destroy the privilege that the occasion otherwise confers.

100 And Gleeson CJ said:

Braddock v Bevins

no matter how strongly put, and no matter how unreasonable they may be

101 It may appear that that was not the approach that was taken by the Court of Appeal in Skalkos v Assaf. That case involved the publication to the Prime Minister (with copies to a government instrumentality and three of its employees) of a letter which was replicated (except for one sentence) in the Serbian language in a newspaper circulating in the Serbian community.

102 Put generally, the letter concerned government advertising and provision of information to the ethnic community. It suggested abuses and exploitation.

103 The publications were made in 1993. The plaintiffs’ claims were therefore governed by the Defamation Act 1974, before the significant procedural amendments made in 1995. The issue of malice was decided by a jury, against the plaintiffs: ie the jury found that the plaintiffs had failed to establish that the defendants were actuated by express malice. The issue of qualified privilege remained with the trial judge for subsequent determination. He was, of course, bound by the jury’s finding with respect to malice.

104 At first instance (Assaf v Skalkos [2000] NSWSC 418), Carruthers AJ found, in respect of each publication:

● that an occasion of qualified privilege existed; but

● that the publication did not fall within that occasion.

105 Carruthers AJ therefore rejected the defence of common law qualified privilege.

106 This decision was upheld in the Court of Appeal. Mason P (at [28]) referred to the passage from Bellino extracted above, saying that this passage;

“… demonstrates that there is overlap between matters going to the question of malice and matters going to the question whether the publication complained of was within the protection of a claimed occasion of privilege.”

extraneous

beyond what was germane and reasonably appropriate to the occasion

107 He expressly referred to a submission that Carruthers AJ regarded “the vituperative tone” of the letter as relevant to the issue to be decided, and saw no error in this. He rejected a submission that the reference to the tone of the publication (“a splenetic and false attack”) illustrated error of approach. Mason P said (at [27]):

“In my view, these passages show Carruthers AJ treating fairness, appropriateness, rationality and accuracy as relevant, but not determinative factors; and as recognising that the jury’s decision on absence of malice did not remove the need for the Judge to determine whether the defamatory imputations were published within the occasion of privilege. In proceeding this way his Honour did not err.”

108 His Honour then referred to a submission that emphasised those features of the publications which pointed to the existence of an occasion of qualified privilege and said (at [38]):

“These matters may readily be accepted. However, they merely provide the backdrop to the present issue, which is whether the offending imputations amounted to an abuse of the occasion of privilege in the various ways in which such abuse is formulated in the case law. All relevant circumstances attending the publication need to be considered on the issue of abuse of privilege.”

109 And, at [42]-[43]:

“42 The grossness of the falsity of the publication is pertinent to this issue of relevance. The defendants’ particulars asserted that “members of the public had an interest in knowing the facts and matters stated” in the letter. This alone makes the factual accuracy of the matters stated relevant to the issue of abuse of the occasion of privilege. And clearly established dishonesty is in turn capable of casting light on this inquiry. To describe an allegation as a “splenetic and false attack” [as the trial judge did] (at [194]) is really just a colourful way of emphasising the extraneity of the particular defamatory imputations to the professed context of the letter. The jury’s rejection of malice did not pre-empt the judge from concluding, in the particular case, that the privileged occasion was abused (see Guise v Kouvelis (1947) 74 CLR 102 at 117, Bellino at 200-1).

Adam

“splenetic”

110 His Honour referred to a passage from London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 23. That passage reads:

“Again, it is, I think, essential to consider every circumstance associated with the origin and publication of the defamatory matter, in order to ascertain whether the necessary conditions are satisfied by which alone protection can be obtained, but in this investigation it is important to keep distinct matter which would be solely evidence of malice, and matter which would show that the occasion itself was outside the area of protection.”

111 Giles JA (at [130]) said:

untrue, irrational or intemperately expressed

112 The third member of the Bench, Fitzgerald AJA, dealt briefly with the issue of qualified privilege but did not embark upon this question.

113 An application for special leave to appeal to the High Court was refused: Skalkos v Assaf [2002] HCA Trans 649 (13 December 2002, per Gaudron, Gummow and Callinan JJ). It is of significance, in this case, to note the reasons given for the refusal. Their Honours did not use the common formula that an appeal, if leave were granted, would have insufficient prospects of success; rather, that having regard to the way the defence of qualified privilege had been particularised, the case was not a suitable vehicle in which to consider any point of principle relating to that defence. (They also noted a potential issue concerning the applicability to Australian law, of the decision of the House of Lords in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, but concluded the case was also not appropriate for exploring that issue.)

114 It is true that there are passages in the judgments of Mason P and Giles JA that suggest that the “vituperative” tone of a communication, the degree of falsity, and “irrationality” are relevant to the question whether the communication was made on an occasion of qualified privilege, or, alternatively, whether the communication was relevant to an occasion of qualified privilege. One thing is clear: their Honours did not refer to those matters on the question of malice, because that issue had been decided against the plaintiffs and in favour of the defendants.

115 But closer analysis casts a different light on Mason P’s judgment. At [30], his Honour referred to Carruthers AJ’s conclusion that “the defamatory imputations were not pertinent to the occasion of qualified privilege”; at [38], citing Greenlands Ltd, he observed that “all relevant circumstances attending the publication need to be considered on the abuse of privilege”; at [39] he disagreed with an argument that Carruthers AJ had overlooked the fact that privilege may be attracted even though a publication contains untrue defamatory statements; at [40] he cited passages from Adam v Ward concerned with “extraneity”; at [43] he said that Carruthers AJ did not fall into the error of seeing every excessive statement as an abuse of the occasion of privilege, nor did he regard the “splenetic” vigour of the imputation as sufficient of itself to forfeit the privilege.

116 As I have mentioned, since malice was not an issue for Carruthers AJ, or for the Court of Appeal, these observations can be relevant only to one or other or both of the twin questions of whether an occasion of qualified privilege exists, and whether the communication is relevant to that publication.

117 Notwithstanding some indications in Skalkos that the “vituperative” language of the publications deprived them of the protection of qualified privilege (this appears most explicitly in para [130] of the judgment of Giles JA) there is no clear statement of principle to that effect in the judgment of the President. Rather, whether their Honours so approached the matter is to be drawn by inference from various observations.

118 It must be remembered that a communication, to have the protection of the defence, must have some content – either factual information or opinion. There may be cases in which the vituperative tone so masks or clouds or overrides any real communication of fact or opinion that there is no communication other than of vitriol, abuse, or vituperation. It may be that that is what Carruthers AJ had in mind, what Giles JA had in mind at [130], and what Mason P had in mind.

119 Another case in which the tone of a defamatory communication has intruded into the issue of qualified privilege is Goyan v Motyka [2008] NSWCA 28 (at first instance, Motyka v Gojan [2007] NSWSC 31, per James J). There, the subject matter of the proceedings was a series of letters written by the defendants in the English and Ukrainian languages, and published generally to members of a Ukrainian Association, and a book in which many of the letters were reproduced. In respect of each, at first instance, the defence of qualified privilege failed. It is important to note the reasons for its failure: as I read James J’s judgment, the fundamental reason for the failure of the defence, in relation to each publication, was that it was not published on an occasion of qualified privilege. This, in turn, depended upon the finding that each was published to a person or persons not members of the Association, and thus to a person or persons who did not have the requisite reciprocal interest.

120 His Honour also made reference, in respect of some of the publications, to the content, which, he said, conveyed very little factual information and was almost entirely devoted to making accusations of impropriety. I read these references to mean that, even if the occasions of publication were subject to qualified privilege, these particular publications did not have the necessary relevance or connection to the occasion to make them privileged communications. Or it may be that he had in mind that the limited factual information meant that the publications had insufficient content to establish a subject matter that gave rise to an occasion of qualified privilege. The publications did not communicate anything with respect to which the publishers and recipients had corresponding interests.

121 I note here two paragraphs of significance from the judgment of James J:

“187 The letter of 21 November 1999 conveys very little factual information and is almost entirely devoted to accusing Dr Motyka of conducting a campaign to create dissension, of egotism, villainy, brutality, evil and sadism and of being a monster and of having forfeited the right to identify himself as a Ukrainian. There is a suggestion that Dr Motyka may have misappropriated the funds of the [Association]. Some of the same accusations are made against [the second plaintiff].”

…

122 Notwithstanding the obviously vituperative tone of the publications referred to in these paragraphs, James J, it seems to me, rejected the defence of qualified privilege, not because of that tone, but because of the absence of the necessary reciprocity between publisher and recipients. Had it been necessary to proceed to the next question, his Honour would also have found against the defendants because of the absence of the requisite relevance.

123 It was otherwise when his Honour came to consider the question of malice. His Honour found (at [217]) that the language used in each of the four letters was so excessive and so disproportionate that it should be inferred that Mrs Gojan was actuated, not by a dominant proper purpose of conveying matter which she had a duty or interest to convey and the recipients had an interest in receiving, but by a dominant improper purpose of injuring the plaintiffs and/or venting her personal spite against the plaintiffs.

124 On appeal, Tobias JA, with whom Giles JA and Handley AJA agreed, referred extensively to the judgment of Mason P in Skalkos. Of the publications in Motyka, Tobias JA said:

“79 Further, I would not shrink from describing the attacks on the respondents as being vituperative, irrational, intemperate and splenetic. As they submitted, the language of the matters complained of was properly described as grossly excessive. This was exacerbated by the fact that, except for the letters in the book, the other letters sued upon did not purport to be a reply by the Goyans to an attack, public or otherwise, upon them by the respondents …”

125 At [89] and [90] he said:

“89 In my view the respondents’ submission that the publication of the relevant letters to the general Ukrainian community defeated the privilege because the class of people with the interest (if any) reciprocal to that of the Goyans was not the Ukrainian speaking community in Australia should be upheld. The class was far too wide to satisfy the requirement of reciprocity in the present case.

126 On proper analysis of these paragraphs, it seems to me that the ratio of Tobias JA’s decision to uphold James J in rejecting the defence of qualified privilege is to be found in [89]. That appears from the language of the paragraph and is also consistent with the findings made by James J, which were upheld. Paragraph [79] appears in that part of the judgment in which his Honour had, firstly, analysed the judgment in Skalkos (both at first instance and on appeal) and had then, in [78], recorded reliance placed upon those judgments by the respondents in Goyan. While, in [78] and [79], his Honour accepted the descriptions given to the publications, it would be wrong to interpret his judgment as meaning that so to characterise the publications dictated or even permitted the conclusion, for that reason, that the defendants were not entitled to the defence of qualified privilege. As I have said, the reason for that conclusion is to be found in [89]. Paragraph [79] states no principle of law, it is difficult to discern any principle of law in [90], although (leaving aside what I have said about [89]), it could be read as reflecting an assumption that the vituperative nature of an attack may be a basis for refusing a defendant the benefit of the defence.

127 If what appears at [90] is taken at face value, it would appear that Tobias JA regarded the vituperative tone of the letters as sufficient, of itself, to deprive the occasion of qualified privilege it otherwise would have had. But it cannot mean that, because the decision of James J was not that the privilege was lost by reason of the tone of the letters; his decision was, clearly, that there was no occasion of qualified privilege; and that was because of the absence of the essential reciprocity.

128 What appears at [90] is obiter. It does not express the reason or the rationale for the decision. Notwithstanding the persuasive force of a pronouncement of the Court of Appeal, to the extent that para [90] states any principle, it is not binding upon me.

129 I conclude that the tone of a publication is a matter not available to be taken into account in determining whether a communication was published on an occasion of qualified privilege, or was relevant to a privileged occasion. As will be seen when I come to deal with the individual publications, this is an important conclusion. The tone of at least some of the publications is so strident, so venomous, so vituperative, that, if that alone were a reason for denying the defence of qualified privilege, that result would follow in respect of those publications.

130 Whether tone is relevant to the question of malice is a different issue.

Election cases

131 Defences of qualified privilege have arisen in the context of parliamentary or local government elections.

132 In Braddock v Bevins, Lord Greene MR, delivering the judgment of the Court, said:

provided they are relevant to the matters which the electors will have to consider

Braddock v Bevins

Roberts v Bass

133 In Braddock v Bevins, Mrs Braddock was the first of four plaintiffs. She was a long-standing member of the Labour party, and a Member of Parliament. Mr Bevins, the first defendant, was a member of the Conservative party, and a candidate in a then current municipal election. During the course of the campaign Mr Bevins made statements defamatory of Mrs Braddock. Those statements were made to an audience which consisted only of electors.

134 I have extracted above ([76]) the salient passage from the judgment of the Court. The point now to be made is that, although the facts of that case involved an election, there is nothing in the judgment that limits its application to statements made in the course of an election, or an election campaign, as distinct from statements on identical or similar matters made outside such a campaign.

135 This, I think, is consistent with what was said in Lange at p 561 (admittedly referring to a freedom of communication conferred by reason of the Australian Constitution):

“If the freedom is to effectively serve the purpose of ss 7 and 24 and related sections, it cannot be confined to the election period. Most of the matters necessary to enable ‘the people’ to make an informed choice will occur during the period between the holding of one, and the calling of the next, election. If the freedom to receive and disseminate information were confined to election periods, the electors would be deprived of the greater part of the information necessary to make an effective choice at the election.”

136 The written submissions filed on behalf of the plaintiffs question the applicability of Braddock v Bevins to Australia. Reference was made to Roberts v Bass. It was submitted:

Roberts v Bass

Braddock v Bevins

137 That is not how I read para [4] of the judgment of Gleeson CJ. His Honour referred to a “common assumption” in the litigation, that there was one category of common law privilege relating to communications to thousands of electors in the course of an election, of the kind recognised in Braddock v Bevins, and another category relating to communications to the general public about political affairs, of the kind recognised in Lange. He questioned the utility, as a matter of principle, of such a distinction.

138 At [224] Hayne J questioned whether publication to electors generally about the common interest which electors have gave rise to an occasion of qualified privilege as those occasions were understood before the decision in Lange.

139 At [72], Gaudron, McHugh and Gummow JJ said that an assumption that Braddock v Bevins gives effect to the common law of Australia was correctly made.

140 Roberts v Bass also involved defamatory publications made during the course of an election. I recognise that the focus of that case was on the question of malice. In the lower courts, the case had been conducted on the basis that the applicable law of qualified privilege was that stated in Lange. Findings relevant to that defence were made. Although, in the High Court, all parties sought to depart from their earlier positions, the High Court did not permit them to do so. Accordingly, their Honours focussed on the issue of malice.

141 In Stephens v West Australian Newspapers Ltd, having referred to statements of principle to the effect that, for the purpose of the law of qualified privilege, “interest” is more than mere gossip or curiosity, McHugh J said:

“As the decided cases show, however, circumstances may exist where the interest of the general public in a particular subject is such that a defence of qualified privilege is available even though the communication is made to the general public by means of a newspaper or other medium of general circulation. If a subject is one of public interest, members of the public have the requisite interest in receiving information on that subject from persons who have a corresponding interest or duty to communicate that information to the general public. If such information is published in good faith, both the author and the publisher of the article are protected ‘for the common convenience and welfare of society’.” (pp 261-262)

142 Later, his Honour said:

“In the last decade of the 20th century, the quality of life and the freedom of the ordinary individual in Australia are highly dependent on the exercise of functions and powers vested in public representatives and officials by a vast legal and bureaucratic apparatus funded by public moneys. How, when, why and where those functions and powers are or are not exercised are matters that are of real and legitimate interest to every member of the community. Information concerning the exercise of those functions and powers is of vital concern to the community. So is the performance of the public representatives and officials who are invested with them. It follows in my opinion that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials. Moreover, a narrow view should not be taken of the matters about which the general public has an interest in receiving information. With the increasing integration of the social, economic and political life of Australia, it is difficult to contend that the exercise or failure to exercise public functions or powers at any particular level of government or administration, or in any part of the country, is not of relevant interest to the public of Australia generally. If this legitimate interest of the public is to be properly served, it must also follow that on occasions persons with special knowledge concerning the exercise of public functions or powers or the performance by public representatives or officials of their duties will have a corresponding duty or interest to communicate information concerning such functions, powers and performances to members of the general public …

143 Stephens v West Australian Newspapers Ltd was a judgment published concurrently with that in Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; 182 CLR 104, a decision that was subsequently extensively reviewed in Lange.

144 The second paragraph of the extract from Stephens v West Australian Newspapers Ltd, above, needs to be read in the light of that circumstance, together with the circumstance that nothing in the extract received the express endorsement of any other member of the High Court. However, in Theophanous, McHugh J referred to and effectively restated (in abbreviated form) those observations; they subsequently received express endorsement in Lange (at p 571).

145 The explanation of the interest of recipients of communication on matters concerning the exercise of functions and powers by public representatives and officials is salient in the present circumstances. Elected representatives can expect to be under the constant scrutiny of the electors and their performance made subject to review and comment. There is no reason to perceive an election campaign as in a special category. The interests of electors in having information about their representatives is continuous throughout the election cycle.

10 May 1999
OMNIBUS (FOR ALL), BUT IT WAS EMPTY:
Such a good story, but more Council waste was the result. District News dated 29/3/99 advertised Drummoyne Council was to run their community bus between Rodd Point and the Five Dock Shopping Centre on Saturday 3/4/99 (once only, thank goodness) from 10.00am to 2pm. Mayor Megna’s name appeared in the ad. Hang on, Sydney Buses already run 4 bus routes through Rodd Point, so why on earth are ratepayers forking out the cost for this additional one day service?
We decided to check it out. But, we found one Councillor was already doing the same. So, there we were, the bus, followed by the Councillor, followed by this Association, up and around the streets of Rodd Point. A gravy train? And up and around we all went until 10.32 am when finally one (only one) passenger arrived, and 1 hour later that passenger was returned to Rodd Point in Noble Street. One! And that was the total usage all day! Let’s check the costs.
Petrol, these things run on petrol you know, Depot Staff please take note! The driver had to pay $15 from his own pocket (‘cause the Council forgot to fill the bus with fuel), cost of driver’s wages (time and half for first 2 hours @ $25.50 p.h. and double time for second 2 hours @ $35 p.h.) total of $115.00, cost of newspaper ad (say $150), plus bus wear and tear. All for one passenger! All this, not at Christmas, but on an Easter Holiday Saturday when so many people are away. We know it’s not a lot of money, but it is just another example of Council wastage. Another Megna fool of a decision. Why?
A question was asked of Megna by Cnr Tsirekas at the monthly Council Meeting on 20/4/99, optimistically seeking the success of this bus service. Well, Lloyd (gen. mgr.) perched in his usual protective position next to Megna, suffered the usual heart attack for such a difficult question. ‘Don’t answer that’ he was heard to squirm at Megna, sweat again forming. Megna responded ‘I don’t know’ with a shrug of the shoulders, ‘I’ll refer it to Mr. … for reply to the question’. (That’s so none of us will actually hear what answer is given). Lloyd resumed his stupid and nervous guilty grin. So that idiot Megna didn’t even bother to find out how his bright idea turned out. When a reply is forthcoming we’ll let you know what Council claims!
…
FIVE DOCK LEISURE CENTRE:
We know we continue to rake up this situation month after month. However, all is not what it appears here. We won’t let up. At Council’s monthly meeting on 20/4/99, Lloyd recommended the Centre’s lease (to the operating management) be renewed for a further 5 years. But no rent has been paid by this management since the Centre’s inception. Does anyone know, of any other business in the Universe who rents such business premises for nothing, and gets a lease renewal, when they’ve never paid any rent before, ever?
Yep! You’ve got it. Councillors voted to renew the lease, and can you believe, authorised Lloyd and Megna to negotiate the terms. Now there’s a class act. With approx. $70,000 plus in rent still outstanding at present, no provision will be made or requested of the management company to pay anything. Now doesn’t that smell a little bit to you? And the management is not part of Council, but a privately owned business, with no other association with Council (they are not residents or have anything else to do with Drummoyne Municipality at all). If a ratepayer tried this on, or asked Council for a ‘holiday’ on payment of rates, how long do you reckon you’d last?
20(b) That as Mayor of DC Mr Megna colluded with the GM to deprive the Council of relevant information
20(d) That as GM of DC Mr Lloyd colluded with the Mayor to deprive the Council of relevant information
20(a) That as Mayor of DC Mr Megna will behave dishonestly in negotiating terms for the leave of the Five Dock Leisure Centre
20(c) That as GM of DC Mr Lloyd will behave dishonestly in negotiating terms for the leave of the Five Dock Leisure Centre

11 June 1999 URGENT ANNOUCENMENT
COUNCIL AMALGAMATION
Megna (Mayor) and Lloyd (General Manager) have been give the opportunity to secretly amalgamate Drummoyne Council with at least one other Council (Concord) without public approval or knowledge.
MEDIA RELEASE
The Minister for Local Government, Harry Woods, has written to Mayor Megna saying if you want to amalgamate with another Council, we will help you.
There will be no:
NO DRUMMOYNE COUNCIL LOCAL GOVERNMENT ELECTION IN SEPTEMBER, 1999. It will be cancelled by LEGISLATION, with Drummoyne Council carrying a simple Resolution of ‘an intention’ to amalgamate. There doesn’t actually have to be any final amalgamation.
THERE NEED BE NO PUBLIC CONSULTATION BEFORE THIS RESOLUTION IS CARRIED BY COUNCIL
MEGNA (who was not going to contest the Election) AND LLOYD CAN CONTINUE THEIR RANGE OF LOCAL ABUSES UNTIL THERE IS AN ELECTION.
MEGNA, LESSLIE & CO. will be allowed to stay on as Your Councillors, by this Government measure, even though the Residents of this Municipality say they have reached their ‘use by’ date.
DO YOU WANT TO KEEP THESE DISCREDITED COUNCILLORS FOR ANOTHER 12 MONTHS? That’s the suggested period before an Election, and that may not be for Drummoyne Municipality but the ‘DRUMCORD’.
The DEADLINE for notification of any ‘AMALGAMATION INTENTION’ is 30 JUNE, 1999.
Drummoyne Council has existed for more than 125 years. And this means an ad-hoc decision will be made by political hacks for their own gains in less than 3 weeks, and with no notice to YOU.
Do you want to inherit Concord Council’s massive problems, and maybe some of its Councillors?
Do you want to lose control of your own district’s affairs?
Do you know anything about this proposal at all?
You have the opportunity on 11th SEPTEMBER 1999 at the forthcoming Local Government Elections to kick out our Council dregs and install quality people. Our best chance ever!
Council has one full Council Meeting on 15th June at 6.30 pm. It will be discussed then, or at an Extra-Ordinary meeting before 30th June, 1999. There may be an advertisement but even that could appear in the Sydney Morning Herald and not be seen by anyone.
MEGNA & LLOYD DON’T WANT YOU TO BE THERE FOR THE TRUTH TO BE DISCLOSED
22(a) That as Mayor of DC Mr Megna colluded with the GM to deprive the public of the opportunity to oppose the amalgamation of their council with another
22(c) That as Mayor of DC Mr Megna intends by secret action to extend his term of office so that he can continue his abuses in his office for his own gain
22(e) That as GM of DC Mr Lloyd colluded with the Mayor to deprive the public of the opportunity to oppose the amalgamation of their council with another
22(c) That as Mayor of DC Mr Megna intends by secret action to extend his term of office so that he can continue his abuses in his office for his own gain
22(b) That as Mayor of DC Mr Megna has engaged in abuses of his office
22(c) That as Mayor of DC Mr Megna intends by secret action to extend his term of office so that he can continue his abuses in his office for his own gain
22(f) That as GM of DC Mr Lloyd has engaged in abuses in his office
22(c) That as Mayor of DC Mr Megna intends by secret action to extend his term of office so that he can continue his abuses in his office for his own gain
22(c) That as Mayor of DC Mr Megna intends by secret action to extend his term of office so that he can continue his abuses in his office for his own gain
22(d) That as Mayor of DC Mr Megna wishes to keep the truth about the proposed amalgamation of the Council with another Council from residents
22(g) That as GM of DC Mr Lloyd wishes to keep the truth about the proposed amalgamation of the Council with another Council from residents

12
COUNCIL AMALGAMATION:
Welcome to the ratepayers of Concord Municipality. For the first time, you receive a copy of this Circular as a result of Concord … and Drummoyne … Councils’ decision, without any discussion or public input whatsoever, to proceed ‘to pursue discussion on amalgamation.’ The process is nothing but fraud, but is given legitimacy by Harry Woods, State Minister for Local Government. Guess what? Our month-long initial investigation into ‘Concord’, its Mayor and Councillors, throws up just as much of the same muck as that in ‘Drummoyne’. We look forward to publishing most of it in the forthcoming months prior to the next election, to show you just what incompetents decide Local Government policy in both areas and what they do with your money. ‘Drummoyne’ had Mayor Megna, (until Sept.8th), a proven and continuous public liar, Lloyd (general manager) the same, and a group of ineffective and politically controlled Liberal and Labor Councillors …
…
For good riddance, these Councillors voted on your behalf, without consultation, to cancel the Council elections in Sept., the only time in 4 years in which you are able to deal with inept Councillors. You also had your Constitutional Referendum decision of 1998, to vote for a new Mayor scrubbed. They call that democracy? And who paid for that Drummoyne Referendum back in Nov. ’98? Of Course, YOU DID! The mug resident! More Council waste. Imagine the residents of Hunters Hill Council (one of the State’s smallest) allowing an amalgamation or cancellation of their election … Shonks like Megna and Lloyd never get a look in on that Council.
…
Under amalgamation, it will produce the same revenue as that produced at present by both Councils, but there’s still the amount of work in the combined areas to spend it on, all of which needs the same number of staff. In fact, both Councils’ staffs have already been told that there will be no staff redundancies. Based upon Megna’s feeble record, how could we believe anything he says about anything?
…
LIAR, LIAR, LIAR LIES AGAIN:
Back to Megna …
Well, like the liar he is, 2 weeks later, Megna issued his own personal letter, signed by him, advising: ‘I strenuously deny all of the accusations made against myself by the above Senior Citizens Club and the above Ratepayers’ Association … the claims made by both these organisations are highly defamatory, devoid of any truth and totally lacking in evidence.’
Megna even denied the matter to his own Rotary Colleagues, and to his own Liberal Party members, But the Police were called whilst Megna was being detained by the 4 apprehenders (recorded fact), and the report clearly confirms results of the Police investigation. Not bad for one who is a Mayor. As we have been saying for 18 months, Megna is a liar, and you should visit Council meetings if only to witness the mouthful of deceit spewed out each time. We are sure he doesn’t even know when he is and isn’t lying.
At the time of writing, Drummoyne and Five Dock shopping centres have been the subject locations for many stickers in prominent positions. They say: ‘Mayor of Drummoyne Megna is a liar’. It would appear, others, apart from our Association members, are upset with him. This Association is not responsible for these stickers. One apprehending Councillor and Cr Tserakis (Labor) have continually asked for debate on the Mayor’s apprehension. Megna and Lloyd block any debate, advising ‘it is a private matter’. It may well be. But hang on, if so, why are Council employees (CanBay) and not Megna himself being used to remove the stickers which are replaced a couple of days later. What is the cost to ratepayers? We have the feeling the stickers matter will become a lot more stickier yet!
SUTTON PLACE, DRUMMOYNE:
At ‘Drummoyne’ monthly meeting on 17th August, 1999, Item 7, Councillors were confronted with results from the public exhibition of its draft/proposed Development Control Plans, i.e., in part, what can and can’t be built in the Drummoyne CBD. Ratepayers were vitally interested. Only nine submissions (from 33,000 residents) were received by the Council. So, due to your laziness and failure to respond (did anyone know it was on exhibition?) you are about to cop this new DCP which allows for 7 floors in parts of Sutton Place (up from 4 floors contained in the draft) because a developer said in his response that he could make more money from 7 floors than he could from 4 floors. And, yes, Crs. Megna, Lesslie, York, McIntyre, Hird, Fasanella and Tsirekas voted for the 7 floors.
We can advise you that last year Megna was up to his neck in discussions about redevelopment at Sutton Place and up to 7 storeys. He publicly denied it when asked as a Council meeting. More lies! So worried were other Councillors by adverse public reaction, that earlier this year, they voted to drop the seven intended storeys back to four storeys …
24(a) That as Mayor of DC Mr Megna is a continuous public liar
24(e) That as GM of DC Mr Lloyd is a proven continuous public liar
24(b) That Mr Megna is dishonest in his public office as Mayor of DC
24(f) That as GM of DC Mr Lloyd is dishonest
24(c) That as Mayor of DC Mr Megna lacks credibility
24(a) That as Mayor of DC he is a continuous public liar
24(a) That as Mayor of DC he is a continuous public liar
24(d) That as Mayor of DC Mr Megna practices deceit at every Council meeting
24(a) That as Mayor of DC he is a continuous public liar
24(a) That as Mayor of DC he is a continuous public liar

13
COUNCIL AMALGAMATION:
…
And how Megna, Woods and their tribes grabbed this opportunity to stay on Council. Why? You, the voter, would have kicked all 5 out of Drummoyne Council, had the September elections been allowed to proceed. The same would have happened in Concord. The deviates well knew that and, of course, voted to cancel each Council election, without your input, and, at the same time, stop you from voting for new Mayors. You, the local residents in Drummoyne, voted for that at the Constitutional Referendum of Nov, ’98. A few weeks ago, the 5 then voted for Cr. Fassanella as the new Mayor in a pre-arranged ‘deal’. We’ll get to Mayor (‘I just want to be your friend’) Fassanella later. You can’t get much more manipulation of each Municipality than this.
These deviates had ample opportunity to appraise each of their own positions and to offer residents the decision making process, but didn’t. All deserve shafting (at whenever the next election is held) in full retribution. They will all rely on apathy and forgetfulness of each electorate. THIS ASSOCIATION WON’T! You have been shonked to death with this farce. It is morally corrupt, and you being totally ‘controlled’ in what is supposed to be a local democracy. You can believe it or not, but we can tell you, to gain maximum benefit from an amalgamation, the Liberal and Labor political ‘heavies’ in the Drummoyne and Concord Council areas have already done the deals between themselves and have drawn up their respective target areas of favour, in which their candidates for the May 2000 elections will be pursuing. Wards are to be established. Can you believe it! The scum.
…
If these people are allowed to remain on Council, (can you imagine that level of devious vermin in an enlarged Council?) an individual local resident will have absolutely no redress to an enlarged Council injustice at all. And we’ve already highlighted some of Peter Woods’ (Concord Mayor) ‘characteristics’ in last month’s newsletter.
So, what to do? It is the residents who should decide whether our Council amalgamates or not. Simple as that! But why, all of a sudden, after 125 years of Drummoyne Council, do we need to amalgamate? The 5 Councillors have no charter to decide such an important matter. If the residents say ‘yes’ to it, so be it. But there’s no doubt, given a vote, we already know what you will decide, and so do the deficient Councillors. When Drummoyne’s Megna, his lap dogs and Lloyd (Council Gen. Mgr.) and Co. announced a ‘pursual’ of this amalgamation, it took them just 2 weeks to decide. On what basis was their decision made? Why? They had no consultant’s reports saying it was essential, Megna and Lloyd regularly ‘boast’ how well Drummoyne Council is performing and what a fantastic financial position it is in (really?). Residents, dopes that we all are, have never previously been advised of any reason that requires an amalgamation. Why not? The Councils don’t belong to Lloyd, Megna or Woods and Co. It is owned by the residents. They are the ones who say what goes. If their representatives cave in to political grubbery and deviousness, they’re out.
…
His very letter is a bloody lie, in what is doesn’t address. Why doesn’t Megna, with an equal effort, push for a Constitutional Referendum by residents concerning the amalgamation? Simple! He knows that if the residents said ‘no’ under that situation it would be impossible to implement. The bludger!”
…
$5,000 REWARD:
…
For those of you who may be ‘money hungry’, we urge you to check just where the criminal libel is in our newsletter. But wait, legal advice to us confirms that ‘criminal libel’ did appear in ONE EDITION issued in May this year. That edition was not produced by this Association but by Crs. Lesslie and Megna. Yep, the instigators of the $5,000 reward. Their bogus newsletter was a slandering payback for material released by this Association in the past. How’s that for ‘manipulation’. We’ve already conveyed the story to you of Megna’s apprehension at about 11.00p.m. on 20/5/99, whilst distributing the ‘bogus’ circular. One or both wrote it, and both delivered it. Barristers have confirmed ‘criminal libel’ therein and John Murray (State Local Member) was libelled criminally. Seems to us, if any Court matter proceeded, those who caught Megna would be in a position to ultimately claim the $5,000. Rotten? You bet!
…
26(a) That Mr Megna is dishonest
26(b) That as Mayor of DC Mr Megna engaged in manipulation to avoid a council election
26(c) That as Mayor of DC Mr Megna engaged in activity which was morally corrupt
26(d) That as Mayor of DC Mr Megna is devious vermin
26(g) That as GM of DC Mr Lloyd colluded with the Mr Megna to amalgamate Drummoyne and Concord Councils against the best interests of the residents
26(e) That as Mayor of DC Mr Megna lied to the public
26(f) That as Mayor of DC Mr Megna has engaged in criminal conduct

14
COUNCIL AMALGAMATION RORT:
In our July, September and November ’99 circulars, we alerted you to Drummoyne and Concord Councils’ ‘pursual of amalgamation’, beginning in June, how that was simply a fraudulent front to their already secretly planned arrangements, how they were ‘preserving’ their own interests and just how Megna and Woods (each of the Councils’ then Mayors), backed by their own deviate Councillor supporters, were manipulating you, the ratepayers to the hilt. Now, let’s add the salt to the juice, confirmation of the real situation.
…
So, why didn’t Drummoyne Council tell us that in their Business Paper, dated 16/11/99 Council didn’t need to check, because Lloyd (Gen. Mgr.) already knows it’s a whole lot of ‘wink, wink, nudge, nudge’ stuff. Lloyd’s Business Paper lied to the public …
…
Talk about a mates’ deal. Isn’t the whole thing racked with conspiracy and fraud?
Back in June ’99, Megna the liar was Mayor of Drummoyne. He was responsible for introduction of Drummoyne Council into this amalgamation situation. We believe, whilst he speaks for the Liberal cause, his actions reflect the Labor policy, i.e. he is even dishonest in his political allegiance and speaks with a forked tongue. If you doubt this, are you aware the Liberal Party will not endorse Megna as a Liberal candidate at the next Local Govt. election? They know he is a liar via his adverse Council manipulations over many years. He has discredited the local Liberal cause, substantially …
So, for you, the ordinary ratepayer, what can you do? Just remember, it is your vote that will kick out these deviates in due course. Those Drummoyne Councillors complying with the decision to pursue amalgamation without truthful independent consultants’ reports include Megna, Lesslie, York, McIntyre and, weakly, Hird. At the Council’s June ’99 monthly meeting, Labor’s Council representatives, Tsirekas and Fasanella, rejected the amalgamation idea, i.e. until they were told to ‘toe the Party line’. At the July monthly meeting, they just happened to change their minds, and voted to pursue amalgamation. Don’t forget them for that. The two DMRA members, Marshall and Wroblewski voted against amalgamation, as proposed by the Council.
In addition to all of the above, and, as previously advised to you, Drummoyne and Concord Council each appointed three Councillors from their respective Councils as ‘task force’ members, to appraise the amalgamation proposal. At the December monthly meeting, Megna stood to confirm an ‘unbiased’ selection to the Drummoyne Council group, i.e. himself (in favour), Fasanella (against) and Hird (undecided). That was supposed to be truthful. Liar Megna lied again, as you can see above. The Group already has a 2 to 1 vote for amalgamation. The same applies on Concord Council. So, you see, at each and every turn, these deviates have constructed the plan to amalgamate, without your input or truthful reporting …
AMALGAMATION POLL:
On 6/11/99, an Australia-wide Constitutional Referendum was held. At the same time, and in the Drummoyne Municipality, ordinary residents held their own poll, asking ‘Do you want Drummoyne Council to amalgamate with Concord Council?’ Simple question, no politics involved, just ‘Yes’ or ‘No’. NO OTHER AGENDA …
Then we had Megna lying in The Glebe (24/12/99). We quote, ‘I know of people who wanted to vote ‘yes’ (to amalgamation), but were discouraged or refused a vote by the DMRA workers at the booths. Also, which independent electoral authority counted the votes? None – the DMRA counted the votes themselves’.
A blatant lie by Megna once again and newspapers printed it!! …
ACCESS TO COUNCIL FILES:
…
HE LIED, and you should have watched his body language which ensued. The debate degenerated into bedlam, with abuse the name of the game. Why is Lloyd and Megna’s majority voting Councillors so protective? Suspicious? You bet! Well, this Association already knows of three development sites on which unit construction is either well underway or completed, and for which the ground floor slab levels do not comply with the DA approvals. And we know Lloyd and Co., are well aware of these. Why do we know that? Because those residents who are involved are telling this Association. Seems as though Wroblewski and Marshall may know similar information. Isn’t it their duty as Councillors to investigate and report on residents’ concerns?
And, why would Council allow such non compliance on sites and give the developers such favourable treatment, such leniency? It’s called ‘money’, and one can only presume who is getting it. If someone involved is not receiving payments or favours, then it has to be, simply, a matter of continuous gross incompetence …”
28(a) That as Mayor of DC Mr Megna fraudulently concealed from residents his plans to amalgamate Drummoyne and Concord Councils
28(f) That as GM of DC Mr Lloyd lied to the public
28(b) That as Mayor of DC Mr Megna was a liar
28(c) That as Mayor of DC Mr Megna was dishonest in his political allegiance
28(b) That as Mayor of DC Mr Megna was a liar
28(d) That as Mayor of DC Mr Megna was a deviate
28(b) That as Mayor of DC Mr Megna was a liar
28(d) That as Mayor of DC Mr Megna was a deviate
28(b) That as Mayor of DC Mr Megna was a liar
28(b) That as Mayor of DC Mr Megna was a liar
28(e) That as Mayor of DC Mr Megna took bribes to allow construction which did not comply with the conditions of Development Applications
28(f) That as GM of DC Mr Lloyd took bribes to allow construction which did not comply with the conditions of Development Applications
28(e) That as Mayor of DC Mr Megna took bribes to allow construction which did not comply with the conditions of Development Applications
28(f) That as GM of DC Mr Lloyd took bribes to allow construction which did not comply with the conditions of Development Applications

15
COUNCIL AMALGAMATION:
Our Circulars of the past few months have clearly demonstrated deception imposed upon this Municipality’s ratepayers, the level of which is simply breathtaking in its magnitude. If you have missed our proven information, please write to our P.O. box for a copy. For the sake of newsletter space, we exclude previous specifics. However, if you are at all interested in seeing first hand the level of rorts involved, we urge your attendance at an ‘Information Night’, to be held at the Drummoyne Civic Hall, Marlborough St, Drummoyne, 7.30 p.m. on Wednesday 1/3/2000.
What you will see and hear is Drummoyne Councillors, the Mayor, Lloyd (Gen. Mgr.) and Management staff, the Council’s fraudulent Consultant(s) and Co., extorting (sic) the virtues of an amalgamation of Drummoyne and Concord Councils in fabricated and abbreviated information. They will use a fraudulent consultant’s report (the information for which was prepared by [the named], Mayor of Concord, and President of the Local Govt. Association) to coerce agreement from you via Council’s recently delivered Merger Paper of 6 pages. All of the overall merger arrangements have never been the subject of you, the resident’s input and vote via an independent referendum, it has been thrust upon you all by the Minister for Local Govt, via these Council complying deviates. It is already clear residents do not wish to amalgamate now. This amalgamation proposal has not been agreed to by residents, because they are to have no formal say via a ‘constitutional referendum’. It is the only proper method of decision making for such an important and permanent arrangement. It is clearly evident Council and political interference is at its devious best here. A true independent audit and appraisal of any amalgamation proposal, including the mandatory inspection of Council’s full array of records by properly qualified consultants with no political agenda WILL throw up substantial and voluminous irregularities in both Concord and Drummoyne.
WHY?
Oh dear!. Oh dear! Did you see it? Megna signed it. Looked like a kid wrote it, such a funny little illiterate piece of junk which arrived this week. A perverse, hate-filled, piece of loathing literature. God, does Megna loathe Cr. Marshall. We’ll skip the recognisable and expected lie filled contents. But we do want to clear up one matter by way of the truth.. Last year, Megna physically hit Marshall with his vehicle while stalking Marshall in a Drummoyne street. Marshall a month later, and when again being stalked by Megna, smashed Megna’s windscreen during confrontation. Megna has had Marshall charged with causing malicious damage, Marshall has been successful in gaining the Court’s restraining of Megna via an Apprehended Personal Violence Order. One has to ask, why did Marshall smash Megna’s windscreen, - just for something to do? For practice??? No, you know Megna’s public propaganda is always a lie. And it is no different here. The two matters will be heard in Burwood Court on 1/5/2000, and it will be worth the visit to watch the antics. We’ll take bets now on who is telling the truth. And it will be truth which wins this fracas.
30(b) That as GM of DC Mr Lloyd has imposed deception on ratepayers;
30(c) That as GM of DC Mr Lloyd has been party to fabricating information;
30(d) That as GM of DC Mr Lloyd has knowingly used a fraudulent consultant’s report to achieve an amalgamation of Drummoyne and Concord Councils;
30(e) That as GM of DC Mr Lloyd has committed substantial and voluminous irregularities.
30(a) That as Mayor of DC Mr Megna is a constant public liar

16
COUNCIL AMALGAMATION:
… We can now clearly confirm the amalgamation process has been undertaken in a corrupt manner. The deviates from both Councils who instigated the corrupt dealings at the local level are Megna (ex Drummoyne Mayor) and Peter Woods (Concord Mayor) …
Where was that essential and real action back in June ’99 when we brought the amalgamation proposal to your attention?? As usual, public fragmentation and apathy were the culprits. The deviates rely on it. The fact is, corruption has won the day, both [the Mayor of Concord] and Megna have ‘won’ this confrontation, so get used to it. The dictionary describes corrupt as ‘dishonest, illegalities for money or power, immoral’. Hence, with legal opinion now at hand and in our support, we will treat those involved as such from here on, corrupt.
…
The law has been contravened by Minister Harry Woods, Peter Woods and Megna. Read the Local Government Act. They are in this corrupt act together and deserve punishment for political based public manipulations and self-interest. It is clearly a forced amalgamation. If you, the residents are fair dinkum in your opposition, sue them. Take them on! Take out an Injunction. Stop the merger. Stop Council business until a compulsory referendum is agreed to by the Minister …
COUNCIL ELECTIONS, 2nd December, 2000:
…
As well, Stephen Lesslie (Left Wing Labor Independent) voted continually throughout the merger process for amalgamation. If he did not want it and was looking after the residents’ interests, he could have stopped the process very early on. But didn’t. At the Council’s final meeting to vote on the merger, Lesslie changed his vote to ‘against amalgamation”. Why? He knew that Megna already had the five votes required for the merger. He too, registered a new Political Party, ‘No Amalgamation – Drummoyne & Concord”. He wants to cash in on the very substantial objection vote about this merger at the forthcoming election. But just in case it did go through (and happened to be popular with residents, he also registered a second political party name – ‘City of Canada Bay Residents’ Association’ So watch for these names on your Voting Papers – they are to be avoided like the plague. These are the types who openly deceive you.
…
RECENT COURT CASE --- MEGNA AND MARSHALL
Why didn’t the local papers print the truthful conclusion to this intriguing Court spat between the two profile Drummoyne Councillors? … The Court case indirectly involved this newsletter and its distribution. Our newsletter prints the truth and clearly events have been proven over the past 3 years. As an ex-mayor and leader of the majority voting Councillors on Drummoyne Council, Megna holds a deal of power re: local decision making. He is a proven and consistent public liar …
We’ll get on with it. Megna claimed that Marshall had maliciously damaged his vehicle windscreen. You see, Marshall assists delivery of these newsletters to you. Despite other accusations, he has no other role with this Association, and is not the writer of these articles. Marshall, however, does want you to know about the devious dealings by the deviates in and at Drummoyne Council, the wasted dollars, the horrific cost of ongoing consultants, wasted legal expenses and so on. Marshall has an encyclopedic knowledge re: the Local Government rule book and Council matters dating back more than 12 years. Megna will do anything to stop the issue of our newsletters. He wants to lie, cheat and coerce on Council without interference. Marshall, as a result, is at Megna’s tail whenever the manipulation arises.
…
Another time in Nov. 99, Megna was again stalking Marshall and pursued him through several streets in Abbotsford. At the point when Marshall feared he was about to be run down by Megna he produced his walking stick to stop Megna driving his car at himself, and that resulted in the smashed windscreen. Marshall told the Court that he wasn’t about to let Megna clout him again with his vehicle and held fear for his own safety.
What has not been reported? Once a liar, always a liar. Yep! Even in the witness box, under oath, Megna produced the lies, they rolled out, and he forgot and changed his Police statement on occasions. Even the Police Prosecutor, in the middle of the Court proceedings, let slipwith ‘made yourself a prime target for this maniac that’s run over you before?’ Marshall simply replied, ‘your words, not mine’ …
32(a) That as a Councillor on DC Mr Megna is dishonest
32(b) That as a Councillor on DC Mr Megna engages in illegalities for money or power
32(c) That as a Councillor on DC Mr Megna is immoral
32(a) That as a Councillor on DC Mr Megna is dishonest
32(b) That as a Councillor on DC Mr Megna engages in illegalities for money or power
32(c) That as a Councillor on DC Mr Megna is immoral
32(a) That as a Councillor on DC Mr Megna is dishonest
32(b) That as a Councillor on DC Mr Megna engages in illegalities for money or power
32(c) That as a Councillor on DC Mr Megna is immoral
32(d) That as a Councillor on DC Mr Megna openly deceives ratepayers
32(e) That as a Councillor on DC Mr Megna is a proven and consistent public liar
32(f) That as a Councillor on DC Mr Megna wants to lie, cheat and coerce on Council without interference
32(e) That as a Councillor on DC Mr Megna is a proven and consistent public liar

17 Aug/Sept 2003
Michael Megna -- You asked for it!
In an article in the Glebe and Inner West Weekly Newspaper dated 11th June 2003,, the local Community and the authors of the “Community View” Newsletter have been issued an invitation by Michael Megna ‘to put up or shut up’ over allegations made by the newsletter issue dated May 2003. We apologise to our readers for the delay in a response, but, as one can see, the attached summary of deception, self interest, political corruptness, manipulation, lie after lie, payback, cheating and straight out public dishonesty is immense, and these are only some of the major matters held. This Newsletter has no agenda, political or otherwise.
Michael Megna is a member of the Liberal Party, has been a Mayor of Drummoyne Council for 8 terms and President of the Drummoyne branch of the Liberal Party for too long. He is a member of so many other committees that space prevents our listing.
The response is issued to allow the local community to make an astute judgement as to whether Megna is a fit and proper person to vote for at the forthcoming Council election in March ’04 as a Liberal Party candidate and representative of that Party if endorsed; as an Independent; or if he should vacate political life altogether. The response is also issued to clarify the truthful surroundings of Megna’s public dealings and monotonous attempts at public profile statements in the Press.
The Megna agenda has always been to lie and deny when confronted with the following information or toward anything which is critical of his public life motive, i.e. to get elected to local, State or Federal politics. ‘I have done nothing wrong’, Megna said (Glebe 11/6/03). Have a go at this heap of scabby much and make up your own mind.
…
COMMENT:
Megna is a person obsessed with political corruptness, brim full of politics Megna-style, with a basic charter of self-benefit …
34(a) That in his role as a member of DC over many years he has engaged in deception
34(b) That in Mr Megna’s role as a member of DC over many years he has engaged in political corruptness
34(c) That in Mr Megna’s role as a member of DC over many years he has engaged in manipulation
34(d) That in Mr Megna’s role as a member of DC over many years he has told repeated lies
34(e) That in Mr Megna’s role as a member of DC over many years he has acted vindictively
34(f) That in Mr Megna’s role as a member of DC over many years he has cheated
34(g) That in Mr Megna’s role as a member of DC over many years he has engaged in public dishonesty
34(b) That in Mr Megna’s role as a member of DC over many years he has engaged in political corruptness
34(h) That in Mr Megna’s role as a member of DC over many years he has sought primarily to benefit himself

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Citations

Megna v Marshall [2010] NSWSC 686

Most Recent Citation

McDonald v The State of SA [2012] SADC 54

Cases Citing This Decision

19

Murray v Raynor [2019] NSWCA 274

Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195

Association of Quality Child Care Centres of NSW v Manefield [2012] NSWCA 123

Cases Cited

30

Statutory Material Cited

3

Megna v Marshall [2004] NSWSC 191

Megna v Marshall [2005] NSWSC 1302

Megna v Marshall [2005] NSWSC 1347

10	May 1999	OMNIBUS (FOR ALL), BUT IT WAS EMPTY: Such a good story, but more Council waste was the result. District News dated 29/3/99 advertised Drummoyne Council was to run their community bus between Rodd Point and the Five Dock Shopping Centre on Saturday 3/4/99 (once only, thank goodness) from 10.00am to 2pm. Mayor Megna’s name appeared in the ad. Hang on, Sydney Buses already run 4 bus routes through Rodd Point, so why on earth are ratepayers forking out the cost for this additional one day service? We decided to check it out. But, we found one Councillor was already doing the same. So, there we were, the bus, followed by the Councillor, followed by this Association, up and around the streets of Rodd Point. A gravy train? And up and around we all went until 10.32 am when finally one (only one) passenger arrived, and 1 hour later that passenger was returned to Rodd Point in Noble Street. One! And that was the total usage all day! Let’s check the costs. Petrol, these things run on petrol you know, Depot Staff please take note! The driver had to pay $15 from his own pocket (‘cause the Council forgot to fill the bus with fuel), cost of driver’s wages (time and half for first 2 hours @ $25.50 p.h. and double time for second 2 hours @ $35 p.h.) total of $115.00, cost of newspaper ad (say $150), plus bus wear and tear. All for one passenger! All this, not at Christmas, but on an Easter Holiday Saturday when so many people are away. We know it’s not a lot of money, but it is just another example of Council wastage. Another Megna fool of a decision. Why? A question was asked of Megna by Cnr Tsirekas at the monthly Council Meeting on 20/4/99, optimistically seeking the success of this bus service. Well, Lloyd (gen. mgr.) perched in his usual protective position next to Megna, suffered the usual heart attack for such a difficult question. ‘Don’t answer that’ he was heard to squirm at Megna, sweat again forming. Megna responded ‘I don’t know’ with a shrug of the shoulders, ‘I’ll refer it to Mr. … for reply to the question’. (That’s so none of us will actually hear what answer is given). Lloyd resumed his stupid and nervous guilty grin. So that idiot Megna didn’t even bother to find out how his bright idea turned out. When a reply is forthcoming we’ll let you know what Council claims! … FIVE DOCK LEISURE CENTRE: We know we continue to rake up this situation month after month. However, all is not what it appears here. We won’t let up. At Council’s monthly meeting on 20/4/99, Lloyd recommended the Centre’s lease (to the operating management) be renewed for a further 5 years. But no rent has been paid by this management since the Centre’s inception. Does anyone know, of any other business in the Universe who rents such business premises for nothing, and gets a lease renewal, when they’ve never paid any rent before, ever? Yep! You’ve got it. Councillors voted to renew the lease, and can you believe, authorised Lloyd and Megna to negotiate the terms. Now there’s a class act. With approx. $70,000 plus in rent still outstanding at present, no provision will be made or requested of the management company to pay anything. Now doesn’t that smell a little bit to you? And the management is not part of Council, but a privately owned business, with no other association with Council (they are not residents or have anything else to do with Drummoyne Municipality at all). If a ratepayer tried this on, or asked Council for a ‘holiday’ on payment of rates, how long do you reckon you’d last?	20(b) That as Mayor of DC Mr Megna colluded with the GM to deprive the Council of relevant information 20(d) That as GM of DC Mr Lloyd colluded with the Mayor to deprive the Council of relevant information 20(a) That as Mayor of DC Mr Megna will behave dishonestly in negotiating terms for the leave of the Five Dock Leisure Centre 20(c) That as GM of DC Mr Lloyd will behave dishonestly in negotiating terms for the leave of the Five Dock Leisure Centre
11	June 1999	URGENT ANNOUCENMENT COUNCIL AMALGAMATION Megna (Mayor) and Lloyd (General Manager) have been give the opportunity to secretly amalgamate Drummoyne Council with at least one other Council (Concord) without public approval or knowledge. MEDIA RELEASE The Minister for Local Government, Harry Woods, has written to Mayor Megna saying if you want to amalgamate with another Council, we will help you. There will be no: NO DRUMMOYNE COUNCIL LOCAL GOVERNMENT ELECTION IN SEPTEMBER, 1999. It will be cancelled by LEGISLATION, with Drummoyne Council carrying a simple Resolution of ‘an intention’ to amalgamate. There doesn’t actually have to be any final amalgamation. THERE NEED BE NO PUBLIC CONSULTATION BEFORE THIS RESOLUTION IS CARRIED BY COUNCIL MEGNA (who was not going to contest the Election) AND LLOYD CAN CONTINUE THEIR RANGE OF LOCAL ABUSES UNTIL THERE IS AN ELECTION. MEGNA, LESSLIE & CO. will be allowed to stay on as Your Councillors, by this Government measure, even though the Residents of this Municipality say they have reached their ‘use by’ date. DO YOU WANT TO KEEP THESE DISCREDITED COUNCILLORS FOR ANOTHER 12 MONTHS? That’s the suggested period before an Election, and that may not be for Drummoyne Municipality but the ‘DRUMCORD’. The DEADLINE for notification of any ‘AMALGAMATION INTENTION’ is 30 JUNE, 1999. *Drummoyne Council has existed for more than 125 years. And this means an ad-hoc decision will be made by political hacks for their own gains in less than 3 weeks, and with no notice to YOU.* Do you want to inherit Concord Council’s massive problems, and maybe some of its Councillors? Do you want to lose control of your own district’s affairs? Do you know anything about this proposal at all? You have the opportunity on 11th SEPTEMBER 1999 at the forthcoming Local Government Elections to kick out our Council dregs and install quality people. Our best chance ever! Council has one full Council Meeting on 15th June at 6.30 pm. It will be discussed then, or at an Extra-Ordinary meeting before 30th June, 1999. There may be an advertisement but even that could appear in the Sydney Morning Herald and not be seen by anyone. MEGNA & LLOYD DON’T WANT YOU TO BE THERE FOR THE TRUTH TO BE DISCLOSED	22(a) That as Mayor of DC Mr Megna colluded with the GM to deprive the public of the opportunity to oppose the amalgamation of their council with another 22(c) That as Mayor of DC Mr Megna intends by secret action to extend his term of office so that he can continue his abuses in his office for his own gain 22(e) That as GM of DC Mr Lloyd colluded with the Mayor to deprive the public of the opportunity to oppose the amalgamation of their council with another 22(c) That as Mayor of DC Mr Megna intends by secret action to extend his term of office so that he can continue his abuses in his office for his own gain 22(b) That as Mayor of DC Mr Megna has engaged in abuses of his office 22(c) That as Mayor of DC Mr Megna intends by secret action to extend his term of office so that he can continue his abuses in his office for his own gain 22(f) That as GM of DC Mr Lloyd has engaged in abuses in his office 22(c) That as Mayor of DC Mr Megna intends by secret action to extend his term of office so that he can continue his abuses in his office for his own gain 22(c) That as Mayor of DC Mr Megna intends by secret action to extend his term of office so that he can continue his abuses in his office for his own gain 22(d) That as Mayor of DC Mr Megna wishes to keep the truth about the proposed amalgamation of the Council with another Council from residents 22(g) That as GM of DC Mr Lloyd wishes to keep the truth about the proposed amalgamation of the Council with another Council from residents
12	COUNCIL AMALGAMATION: Welcome to the ratepayers of Concord Municipality. For the first time, you receive a copy of this Circular as a result of Concord … and Drummoyne … Councils’ decision, without any discussion or public input whatsoever, to proceed ‘to pursue discussion on amalgamation.’ The process is nothing but fraud, but is given legitimacy by Harry Woods, State Minister for Local Government. Guess what? Our month-long initial investigation into ‘Concord’, its Mayor and Councillors, throws up just as much of the same muck as that in ‘Drummoyne’. We look forward to publishing most of it in the forthcoming months prior to the next election, to show you just what incompetents decide Local Government policy in both areas and what they do with your money. ‘Drummoyne’ had Mayor Megna, (until Sept.8th), a proven and continuous public liar, Lloyd (general manager) the same, and a group of ineffective and politically controlled Liberal and Labor Councillors … … For good riddance, these Councillors voted on your behalf, without consultation, to cancel the Council elections in Sept., the only time in 4 years in which you are able to deal with inept Councillors. You also had your Constitutional Referendum decision of 1998, to vote for a new Mayor scrubbed. They call that democracy? And who paid for that Drummoyne Referendum back in Nov. ’98? Of Course, YOU DID! The mug resident! More Council waste. Imagine the residents of Hunters Hill Council (one of the State’s smallest) allowing an amalgamation or cancellation of their election … Shonks like Megna and Lloyd never get a look in on that Council. … Under amalgamation, it will produce the same revenue as that produced at present by both Councils, but there’s still the amount of work in the combined areas to spend it on, all of which needs the same number of staff. In fact, both Councils’ staffs have already been told that there will be no staff redundancies. Based upon Megna’s feeble record, how could we believe anything he says about anything? … LIAR, LIAR, LIAR LIES AGAIN: Back to Megna … Well, like the liar he is, 2 weeks later, Megna issued his own personal letter, signed by him, advising: ‘I strenuously deny all of the accusations made against myself by the above Senior Citizens Club and the above Ratepayers’ Association … the claims made by both these organisations are highly defamatory, devoid of any truth and totally lacking in evidence.’ Megna even denied the matter to his own Rotary Colleagues, and to his own Liberal Party members, But the Police were called whilst Megna was being detained by the 4 apprehenders (recorded fact), and the report clearly confirms results of the Police investigation. Not bad for one who is a Mayor. As we have been saying for 18 months, Megna is a liar, and you should visit Council meetings if only to witness the mouthful of deceit spewed out each time. We are sure he doesn’t even know when he is and isn’t lying. At the time of writing, Drummoyne and Five Dock shopping centres have been the subject locations for many stickers in prominent positions. They say: ‘Mayor of Drummoyne Megna is a liar’. It would appear, others, apart from our Association members, are upset with him. This Association is not responsible for these stickers. One apprehending Councillor and Cr Tserakis (Labor) have continually asked for debate on the Mayor’s apprehension. Megna and Lloyd block any debate, advising ‘it is a private matter’. It may well be. But hang on, if so, why are Council employees (CanBay) and not Megna himself being used to remove the stickers which are replaced a couple of days later. What is the cost to ratepayers? We have the feeling the stickers matter will become a lot more stickier yet! SUTTON PLACE, DRUMMOYNE: At ‘Drummoyne’ monthly meeting on 17th August, 1999, Item 7, Councillors were confronted with results from the public exhibition of its draft/proposed Development Control Plans, i.e., in part, what can and can’t be built in the Drummoyne CBD. Ratepayers were vitally interested. Only nine submissions (from 33,000 residents) were received by the Council. So, due to your laziness and failure to respond (did anyone know it was on exhibition?) you are about to cop this new DCP which allows for 7 floors in parts of Sutton Place (up from 4 floors contained in the draft) because a developer said in his response that he could make more money from 7 floors than he could from 4 floors. And, yes, Crs. Megna, Lesslie, York, McIntyre, Hird, Fasanella and Tsirekas voted for the 7 floors. We can advise you that last year Megna was up to his neck in discussions about redevelopment at Sutton Place and up to 7 storeys. He publicly denied it when asked as a Council meeting. More lies! So worried were other Councillors by adverse public reaction, that earlier this year, they voted to drop the seven intended storeys back to four storeys …	24(a) That as Mayor of DC Mr Megna is a continuous public liar 24(e) That as GM of DC Mr Lloyd is a proven continuous public liar 24(b) That Mr Megna is dishonest in his public office as Mayor of DC 24(f) That as GM of DC Mr Lloyd is dishonest 24(c) That as Mayor of DC Mr Megna lacks credibility 24(a) That as Mayor of DC he is a continuous public liar 24(a) That as Mayor of DC he is a continuous public liar 24(d) That as Mayor of DC Mr Megna practices deceit at every Council meeting 24(a) That as Mayor of DC he is a continuous public liar 24(a) That as Mayor of DC he is a continuous public liar
13	COUNCIL AMALGAMATION: … And how Megna, Woods and their tribes grabbed this opportunity to stay on Council. Why? You, the voter, would have kicked all 5 out of Drummoyne Council, had the September elections been allowed to proceed. The same would have happened in Concord. The deviates well knew that and, of course, voted to cancel each Council election, without your input, and, at the same time, stop you from voting for new Mayors. You, the local residents in Drummoyne, voted for that at the Constitutional Referendum of Nov, ’98. A few weeks ago, the 5 then voted for Cr. Fassanella as the new Mayor in a pre-arranged ‘deal’. We’ll get to Mayor (‘I just want to be your friend’) Fassanella later. You can’t get much more manipulation of each Municipality than this. These deviates had ample opportunity to appraise each of their own positions and to offer residents the decision making process, but didn’t. All deserve shafting (at whenever the next election is held) in full retribution. They will all rely on apathy and forgetfulness of each electorate. THIS ASSOCIATION WON’T! You have been shonked to death with this farce. It is morally corrupt, and you being totally ‘controlled’ in what is supposed to be a local democracy. You can believe it or not, but we can tell you, to gain maximum benefit from an amalgamation, the Liberal and Labor political ‘heavies’ in the Drummoyne and Concord Council areas have already done the deals between themselves and have drawn up their respective target areas of favour, in which their candidates for the May 2000 elections will be pursuing. Wards are to be established. Can you believe it! The scum. … If these people are allowed to remain on Council, (can you imagine that level of devious vermin in an enlarged Council?) an individual local resident will have absolutely no redress to an enlarged Council injustice at all. And we’ve already highlighted some of Peter Woods’ (Concord Mayor) ‘characteristics’ in last month’s newsletter. So, what to do? It is the residents who should decide whether our Council amalgamates or not. Simple as that! But why, all of a sudden, after 125 years of Drummoyne Council, do we need to amalgamate? The 5 Councillors have no charter to decide such an important matter. If the residents say ‘yes’ to it, so be it. But there’s no doubt, given a vote, we already know what you will decide, and so do the deficient Councillors. When Drummoyne’s Megna, his lap dogs and Lloyd (Council Gen. Mgr.) and Co. announced a ‘pursual’ of this amalgamation, it took them just 2 weeks to decide. On what basis was their decision made? Why? They had no consultant’s reports saying it was essential, Megna and Lloyd regularly ‘boast’ how well Drummoyne Council is performing and what a fantastic financial position it is in (really?). Residents, dopes that we all are, have never previously been advised of any reason that requires an amalgamation. Why not? The Councils don’t belong to Lloyd, Megna or Woods and Co. It is owned by the residents. They are the ones who say what goes. If their representatives cave in to political grubbery and deviousness, they’re out. … His very letter is a bloody lie, in what is doesn’t address. Why doesn’t Megna, with an equal effort, push for a Constitutional Referendum by residents concerning the amalgamation? Simple! He knows that if the residents said ‘no’ under that situation it would be impossible to implement. The bludger!” … $5,000 REWARD: … For those of you who may be ‘money hungry’, we urge you to check just where the criminal libel is in our newsletter. But wait, legal advice to us confirms that ‘criminal libel’ did appear in ONE EDITION issued in May this year. That edition was not produced by this Association but by Crs. Lesslie and Megna. Yep, the instigators of the $5,000 reward. Their bogus newsletter was a slandering payback for material released by this Association in the past. How’s that for ‘manipulation’. We’ve already conveyed the story to you of Megna’s apprehension at about 11.00p.m. on 20/5/99, whilst distributing the ‘bogus’ circular. One or both wrote it, and both delivered it. Barristers have confirmed ‘criminal libel’ therein and John Murray (State Local Member) was libelled criminally. Seems to us, if any Court matter proceeded, those who caught Megna would be in a position to ultimately claim the $5,000. Rotten? You bet! …	26(a) That Mr Megna is dishonest 26(b) That as Mayor of DC Mr Megna engaged in manipulation to avoid a council election 26(c) That as Mayor of DC Mr Megna engaged in activity which was morally corrupt 26(d) That as Mayor of DC Mr Megna is devious vermin 26(g) That as GM of DC Mr Lloyd colluded with the Mr Megna to amalgamate Drummoyne and Concord Councils against the best interests of the residents 26(e) That as Mayor of DC Mr Megna lied to the public 26(f) That as Mayor of DC Mr Megna has engaged in criminal conduct
14	COUNCIL AMALGAMATION RORT: In our July, September and November ’99 circulars, we alerted you to Drummoyne and Concord Councils’ ‘pursual of amalgamation’, beginning in June, how that was simply a fraudulent front to their already secretly planned arrangements, how they were ‘preserving’ their own interests and just how Megna and Woods (each of the Councils’ then Mayors), backed by their own deviate Councillor supporters, were manipulating you, the ratepayers to the hilt. Now, let’s add the salt to the juice, confirmation of the real situation. … So, why didn’t Drummoyne Council tell us that in their Business Paper, dated 16/11/99 Council didn’t need to check, because Lloyd (Gen. Mgr.) already knows it’s a whole lot of ‘wink, wink, nudge, nudge’ stuff. Lloyd’s Business Paper lied to the public … … Talk about a mates’ deal. Isn’t the whole thing racked with conspiracy and fraud? Back in June ’99, Megna the liar was Mayor of Drummoyne. He was responsible for introduction of Drummoyne Council into this amalgamation situation. We believe, whilst he speaks for the Liberal cause, his actions reflect the Labor policy, i.e. he is even dishonest in his political allegiance and speaks with a forked tongue. If you doubt this, are you aware the Liberal Party will not endorse Megna as a Liberal candidate at the next Local Govt. election? They know he is a liar via his adverse Council manipulations over many years. He has discredited the local Liberal cause, substantially … So, for you, the ordinary ratepayer, what can you do? Just remember, it is your vote that will kick out these deviates in due course. Those Drummoyne Councillors complying with the decision to pursue amalgamation without truthful independent consultants’ reports include Megna, Lesslie, York, McIntyre and, weakly, Hird. At the Council’s June ’99 monthly meeting, Labor’s Council representatives, Tsirekas and Fasanella, rejected the amalgamation idea, i.e. until they were told to ‘toe the Party line’. At the July monthly meeting, they just happened to change their minds, and voted to pursue amalgamation. Don’t forget them for that. The two DMRA members, Marshall and Wroblewski voted against amalgamation, as proposed by the Council. In addition to all of the above, and, as previously advised to you, Drummoyne and Concord Council each appointed three Councillors from their respective Councils as ‘task force’ members, to appraise the amalgamation proposal. At the December monthly meeting, Megna stood to confirm an ‘unbiased’ selection to the Drummoyne Council group, i.e. himself (in favour), Fasanella (against) and Hird (undecided). That was supposed to be truthful. Liar Megna lied again, as you can see above. The Group already has a 2 to 1 vote for amalgamation. The same applies on Concord Council. So, you see, at each and every turn, these deviates have constructed the plan to amalgamate, without your input or truthful reporting … AMALGAMATION POLL: On 6/11/99, an Australia-wide Constitutional Referendum was held. At the same time, and in the Drummoyne Municipality, ordinary residents held their own poll, asking ‘*Do you want Drummoyne Council to amalgamate with Concord Council?’ Simple question, no politics involved, just ‘Yes’ or ‘No’. NO OTHER AGENDA … Then we had Megna lying in The Glebe* (24/12/99). We quote, ‘I know of people who wanted to vote ‘yes’ (to amalgamation), but were discouraged or refused a vote by the DMRA workers at the booths. Also, which independent electoral authority counted the votes? None – the DMRA counted the votes themselves’. A blatant lie by Megna once again and newspapers printed it!! … ACCESS TO COUNCIL FILES: … HE LIED, and you should have watched his body language which ensued. The debate degenerated into bedlam, with abuse the name of the game. Why is Lloyd and Megna’s majority voting Councillors so protective? Suspicious? You bet! Well, this Association already knows of three development sites on which unit construction is either well underway or completed, and for which the ground floor slab levels do not comply with the DA approvals. And we know Lloyd and Co., are well aware of these. Why do we know that? Because those residents who are involved are telling this Association. Seems as though Wroblewski and Marshall may know similar information. Isn’t it their duty as Councillors to investigate and report on residents’ concerns? And, why would Council allow such non compliance on sites and give the developers such favourable treatment, such leniency? It’s called ‘money’, and one can only presume who is getting it. If someone involved is not receiving payments or favours, then it has to be, simply, a matter of continuous gross incompetence …”	28(a) That as Mayor of DC Mr Megna fraudulently concealed from residents his plans to amalgamate Drummoyne and Concord Councils 28(f) That as GM of DC Mr Lloyd lied to the public 28(b) That as Mayor of DC Mr Megna was a liar 28(c) That as Mayor of DC Mr Megna was dishonest in his political allegiance 28(b) That as Mayor of DC Mr Megna was a liar 28(d) That as Mayor of DC Mr Megna was a deviate 28(b) That as Mayor of DC Mr Megna was a liar 28(d) That as Mayor of DC Mr Megna was a deviate 28(b) That as Mayor of DC Mr Megna was a liar 28(b) That as Mayor of DC Mr Megna was a liar 28(e) That as Mayor of DC Mr Megna took bribes to allow construction which did not comply with the conditions of Development Applications 28(f) That as GM of DC Mr Lloyd took bribes to allow construction which did not comply with the conditions of Development Applications 28(e) That as Mayor of DC Mr Megna took bribes to allow construction which did not comply with the conditions of Development Applications 28(f) That as GM of DC Mr Lloyd took bribes to allow construction which did not comply with the conditions of Development Applications
15	COUNCIL AMALGAMATION: Our Circulars of the past few months have clearly demonstrated deception imposed upon this Municipality’s ratepayers, the level of which is simply breathtaking in its magnitude. If you have missed our proven information, please write to our P.O. box for a copy. For the sake of newsletter space, we exclude previous specifics. However, if you are at all interested in seeing first hand the level of rorts involved, we urge your attendance at an ‘Information Night’, to be held at the Drummoyne Civic Hall, Marlborough St, Drummoyne, 7.30 p.m. on Wednesday 1/3/2000. What you will see and hear is Drummoyne Councillors, the Mayor, Lloyd (Gen. Mgr.) and Management staff, the Council’s fraudulent Consultant(s) and Co., extorting (sic) the virtues of an amalgamation of Drummoyne and Concord Councils in fabricated and abbreviated information. They will use a fraudulent consultant’s report (the information for which was prepared by [the named], Mayor of Concord, and President of the Local Govt. Association) to coerce agreement from you via Council’s recently delivered Merger Paper of 6 pages. All of the overall merger arrangements have never been the subject of you, the resident’s input and vote via an independent referendum, it has been thrust upon you all by the Minister for Local Govt, via these Council complying deviates. It is already clear residents do not wish to amalgamate now. This amalgamation proposal has not been agreed to by residents, because they are to have no formal say via a ‘constitutional referendum’. It is the only proper method of decision making for such an important and permanent arrangement. It is clearly evident Council and political interference is at its devious best here. A true independent audit and appraisal of any amalgamation proposal, including the mandatory inspection of Council’s full array of records by properly qualified consultants with no political agenda WILL throw up substantial and voluminous irregularities in both Concord and Drummoyne. WHY? Oh dear!. Oh dear! Did you see it? Megna signed it. Looked like a kid wrote it, such a funny little illiterate piece of junk which arrived this week. A perverse, hate-filled, piece of loathing literature. God, does Megna loathe Cr. Marshall. We’ll skip the recognisable and expected lie filled contents. But we do want to clear up one matter by way of the truth.. Last year, Megna physically hit Marshall with his vehicle while stalking Marshall in a Drummoyne street. Marshall a month later, and when again being stalked by Megna, smashed Megna’s windscreen during confrontation. Megna has had Marshall charged with causing malicious damage, Marshall has been successful in gaining the Court’s restraining of Megna via an Apprehended Personal Violence Order. One has to ask, why did Marshall smash Megna’s windscreen, - just for something to do? For practice??? No, you know Megna’s public propaganda is always a lie. And it is no different here. The two matters will be heard in Burwood Court on 1/5/2000, and it will be worth the visit to watch the antics. We’ll take bets now on who is telling the truth. And it will be truth which wins this fracas.	30(b) That as GM of DC Mr Lloyd has imposed deception on ratepayers; 30(c) That as GM of DC Mr Lloyd has been party to fabricating information; 30(d) That as GM of DC Mr Lloyd has knowingly used a fraudulent consultant’s report to achieve an amalgamation of Drummoyne and Concord Councils; 30(e) That as GM of DC Mr Lloyd has committed substantial and voluminous irregularities. 30(a) That as Mayor of DC Mr Megna is a constant public liar
16	COUNCIL AMALGAMATION: … *We can now clearly confirm the amalgamation process has been undertaken in a corrupt manner. The deviates from both Councils who instigated the corrupt dealings at the local level are Megna (ex Drummoyne Mayor) and Peter Woods (Concord Mayor) … Where was that essential and real action back in June ’99 when we brought the amalgamation proposal to your attention?? As usual, public fragmentation and apathy were the culprits. The deviates rely on it. The fact is, corruption has won the day, both [the Mayor of Concord] and Megna have ‘won’ this confrontation, so get used to it. The dictionary describes corrupt as ‘dishonest, illegalities for money or power, immoral’. Hence, with legal opinion now at hand and in our support, we will treat those involved as such from here on, corrupt. … The law has been contravened by Minister Harry Woods, Peter Woods and Megna. Read the Local Government Act. They are in this corrupt act together and deserve punishment for political based public manipulations and self-interest. It is clearly a forced amalgamation. If you, the residents are fair dinkum in your opposition, sue them. Take them on! Take out an Injunction. Stop the merger. Stop Council business until a compulsory referendum is agreed to by the Minister … COUNCIL ELECTIONS, 2nd December, 2000:* … As well, Stephen Lesslie (Left Wing Labor Independent) voted continually throughout the merger process for amalgamation. If he did not want it and was looking after the residents’ interests, he could have stopped the process very early on. But didn’t. At the Council’s final meeting to vote on the merger, Lesslie changed his vote to ‘against amalgamation”. Why? He knew that Megna already had the five votes required for the merger. He too, registered a new Political Party, ‘No Amalgamation – Drummoyne & Concord”. He wants to cash in on the very substantial objection vote about this merger at the forthcoming election. But just in case it did go through (and happened to be popular with residents, he also registered a second political party name – ‘City of Canada Bay Residents’ Association’ So watch for these names on your Voting Papers – they are to be avoided like the plague. These are the types who openly deceive you. … RECENT COURT CASE --- MEGNA AND MARSHALL Why didn’t the local papers print the truthful conclusion to this intriguing Court spat between the two profile Drummoyne Councillors? … The Court case indirectly involved this newsletter and its distribution. Our newsletter prints the truth and clearly events have been proven over the past 3 years. As an ex-mayor and leader of the majority voting Councillors on Drummoyne Council, Megna holds a deal of power re: local decision making. He is a proven and consistent public liar … We’ll get on with it. Megna claimed that Marshall had maliciously damaged his vehicle windscreen. You see, Marshall assists delivery of these newsletters to you. Despite other accusations, he has no other role with this Association, and is not the writer of these articles. Marshall, however, does want you to know about the devious dealings by the deviates in and at Drummoyne Council, the wasted dollars, the horrific cost of ongoing consultants, wasted legal expenses and so on. Marshall has an encyclopedic knowledge re: the Local Government rule book and Council matters dating back more than 12 years. Megna will do anything to stop the issue of our newsletters. He wants to lie, cheat and coerce on Council without interference. Marshall, as a result, is at Megna’s tail whenever the manipulation arises. … Another time in Nov. 99, Megna was again stalking Marshall and pursued him through several streets in Abbotsford. At the point when Marshall feared he was about to be run down by Megna he produced his walking stick to stop Megna driving his car at himself, and that resulted in the smashed windscreen. Marshall told the Court that he wasn’t about to let Megna clout him again with his vehicle and held fear for his own safety. What has not been reported? Once a liar, always a liar. Yep! Even in the witness box, under oath, Megna produced the lies, they rolled out, and he forgot and changed his Police statement on occasions. Even the Police Prosecutor, in the middle of the Court proceedings, let slipwith ‘made yourself a prime target for this maniac that’s run over you before?’ Marshall simply replied, ‘your words, not mine’ …	32(a) That as a Councillor on DC Mr Megna is dishonest 32(b) That as a Councillor on DC Mr Megna engages in illegalities for money or power 32(c) That as a Councillor on DC Mr Megna is immoral 32(a) That as a Councillor on DC Mr Megna is dishonest 32(b) That as a Councillor on DC Mr Megna engages in illegalities for money or power 32(c) That as a Councillor on DC Mr Megna is immoral 32(a) That as a Councillor on DC Mr Megna is dishonest 32(b) That as a Councillor on DC Mr Megna engages in illegalities for money or power 32(c) That as a Councillor on DC Mr Megna is immoral 32(d) That as a Councillor on DC Mr Megna openly deceives ratepayers 32(e) That as a Councillor on DC Mr Megna is a proven and consistent public liar 32(f) That as a Councillor on DC Mr Megna wants to lie, cheat and coerce on Council without interference 32(e) That as a Councillor on DC Mr Megna is a proven and consistent public liar
17	Aug/Sept 2003	*Michael Megna -- You asked for it!* In an article in the Glebe and Inner West Weekly Newspaper dated 11th June 2003,, the local Community and the authors of the “Community View” Newsletter have been issued an invitation by Michael Megna ‘to put up or shut up’ over allegations made by the newsletter issue dated May 2003. We apologise to our readers for the delay in a response, but, as one can see, the attached summary of deception, self interest, political corruptness, manipulation, lie after lie, payback, cheating and straight out public dishonesty is immense, and these are only some of the major matters held. This Newsletter has no agenda, political or otherwise. Michael Megna is a member of the Liberal Party, has been a Mayor of Drummoyne Council for 8 terms and President of the Drummoyne branch of the Liberal Party for too long. He is a member of so many other committees that space prevents our listing. The response is issued to allow the local community to make an astute judgement as to whether Megna is a fit and proper person to vote for at the forthcoming Council election in March ’04 as a Liberal Party candidate and representative of that Party if endorsed; as an Independent; or if he should vacate political life altogether. The response is also issued to clarify the truthful surroundings of Megna’s public dealings and monotonous attempts at public profile statements in the Press. The Megna agenda has always been to lie and deny when confronted with the following information or toward anything which is critical of his public life motive, i.e. to get elected to local, State or Federal politics. ‘I have done nothing wrong’, Megna said (Glebe 11/6/03). Have a go at this heap of scabby much and make up your own mind. … *COMMENT:* *Megna is a person obsessed with political corruptness, brim full of politics Megna-style, with a basic charter of self-benefit …*	34(a) That in his role as a member of DC over many years he has engaged in deception 34(b) That in Mr Megna’s role as a member of DC over many years he has engaged in political corruptness 34(c) That in Mr Megna’s role as a member of DC over many years he has engaged in manipulation 34(d) That in Mr Megna’s role as a member of DC over many years he has told repeated lies 34(e) That in Mr Megna’s role as a member of DC over many years he has acted vindictively 34(f) That in Mr Megna’s role as a member of DC over many years he has cheated 34(g) That in Mr Megna’s role as a member of DC over many years he has engaged in public dishonesty 34(b) That in Mr Megna’s role as a member of DC over many years he has engaged in political corruptness 34(h) That in Mr Megna’s role as a member of DC over many years he has sought primarily to benefit himself

CITATION:	Megna v Marshall [2010] NSWSC 686
HEARING DATE(S):	18 February 2008; 19 February 2008; 20 February 2008; 22 February 2008; 25 February 2008; 26 February 2008; 29 February 2008; 11 March 2008; 17 November 2009; 18 November 2009; 19 November 2009; 20 November 2009; 23 November 2009; 24 November 2009; 25 November 2009; 26 November 2009; 27 November 2009; 2 December 2009; 3 December 2009
JUDGMENT DATE :	25 June 2010
JURISDICTION:	Common Law
JUDGMENT OF:	Simpson J
DECISION:	(i) Verdict for the first plaintiff against each defendant in the sum of $395,000. (ii) Verdict for the second plaintiff against each defendant in the sum of $220,000. (iii) The first cross-claim is dismissed. (iv) On the second cross-claim, verdict for the second cross-claimant against the second cross-defendant in the sum of $307,500. Justice Simpson will hear the parties on the question of costs.
CATCHWORDS:	DEFAMATION – privilege – common law qualified privilege – statements made in pursuance of duty or interest – occasion of qualified privilege – reciprocity of interest essential – relevance to occasion – election cases – privilege not limited to statements made in course of election or election campaign – extends to statements made concerning discharge of functions of elected representatives – mass media publications – extent of publication – volunteered communications – whether volunteered statement privileged only where there is a pressing need to protect interests of defendant or third party, or where defendant under a duty to make statement – ‘pressing need test’ not applied – anonymity - DEFAMATION – privilege – common law qualified privilege – privilege lost if maker actuated by malice – tone and language – privilege not lost because of nature of language used: Adam v Ward – whether tone relevant to malice - whether privileged occasion used for improper purpose – distinction between relevance to occasion of qualified privilege and misuse of occasion to defeat, by reason of malice – authorship unattributed – proof of distribution insufficient to establish ill will, no doctrine of transferred malice in law of defamation: Bass v TCN Channel Nine Pty Ltd – no evidence that publishers actuated by express malice - DEFAMATION – cross-claim – whether publications in response to circulars protected by common law qualified privilege – a ‘reply to an attack’ – comment defence – Defamation Act 1974, s 30, s 31, s 32 – comment represented opinion of publisher and therefore proper material for purpose of the defence – defence of qualified privilege made out - LIMITATION OF ACTIONS – s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946, claim in respect of first matter complained of statute barred - DAMAGES – general – compensatory damages – aggravated damages – relevant considerations
LEGISLATION CITED:	Defamation Act 1974 Law Reform (Miscellaneous Provisions) Act 1946 Limitation Act 1969
CATEGORY:	Principal judgment
CASES CITED:	Adam v Ward [1917] AC 309 Andreyevich v Kosovich (1947) 47 SR (NSW) 357 Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55 Baird v Wallace-James (1916) 85 LJPC 193 at 198; (1916) SC (HL) 158 Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470 Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366 Bass v TCN Channel Nine Pty Ltd [2003] NSWCA 118 Bellino v Australian Broadcasting Corporation [1996] HCA 47; 185 CLR 183 Bennette v Cohen [2009] NSWCA 60 Braddock v Bevins [1948] 1 KB 580 Carson v John Fairfax and Sons Ltd [1993] HCA 31; 178 CLR 44 Cassell & Co Ltd v Broome [1972] AC 1027 Dow Jones & Company Inc v Gutnick [2002] HCA 56; 210 CLR 575 Fraser v Holmes [2009] NSWCA 36 Goyan v Motyka [2008] NSWCA 28 Guise v Kouvelis [1947] HCA 13; 74 CLR 102 Horrocks v Lowe [1975] AC 135 Howe v Lees [1910] HCA 67; 11 CLR 361 Huntley v Ward (1859) 6 CB (NS) 514 John Fairfax & Sons Ltd v Vilo [2001] NSWCA 290; 52 NSWLR 373 Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 Laughton v Bishop of Sodor and Man (LR 4 PC 495) Lindholt v Hyer [2008] NSWCA 264 London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 Megna v Marshall [2004] NSWSC 191 Megna v Marshall [2005] NSWSC 1302 Megna v Marshall [2005] NSWSC 1326 Megna v Marshall [2005] NSWSC 1347 Megna v Marshall [2006] NSWSC 70 Moit v Bristow [2005] NSWCA 322 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 Motyka v Gojan [2007] NSWSC 31 Mowlds v Fergusson (1939) 40 SR (NSW) 311 Mowlds v Fergusson [1940] HCA 38; 64 CLR 206 Nevill v Fine Arts and General Insurance Co [1895] 2 QB 156; [1897] AC 68 Reynolds v Times Newspapers Ltd [2001] 2 AC 127 Roberts v Bass [2002] HCA 57; 212 CLR 1 Skalkos v Assaf [2002] NSWCA 14 Spill v Maule (LR 4 Ex. 232) State of NSW v Riley [2003] NSWCA 208; 57 NSWLR 496 Stephens v West Australian Newspapers Ltd [1994] HCA 45; 182 CLR 211 Sutcliffe v Pressdram Ltd [1991] 1 QB 153 Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; 182 CLR 104 Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044 Tory v Megna [2007] NSWCA 13 Warren v Warren 1 CM&R 250
TEXTS CITED:	Gatley on Libel and Slander, 11th ed (2008)
PARTIES:	Michael Megna (First Plaintiff) Russell James Lloyd (Second Plaintiff) David John Marshall (First Defendant) Richard Martin Tory (Second Defendant)
FILE NUMBER(S):	SC 2004/181254
COUNSEL:	T Molomby SC/R K M Rasmussen (Plaintiffs) J Hmelnitsky (First Defendant) A T S Dawson (Second Defendant)
SOLICITORS:	Etheringtons Solicitors (Plaintiffs) Horowitz & Bilinsky (First Defendant) Osborne Bricknell Howell (Second Defendant)