Wellington v Metcalf
[2022] VCC 1759
•21 November 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Defamation List
Case No. CI-21-01768
| HEATHER WELLINGTON | Plaintiff |
| v | |
| KIRSTY METCALF | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 9, 10, 11, 12, 16, 17, 18 and 24 August 2022 | |
DATE OF JUDGMENT: | 21 November 2022 | |
CASE MAY BE CITED AS: | Wellington v Metcalf | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1759 | |
REASONS FOR JUDGMENT
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Subject:DEFAMATION
Catchwords: Publications on Facebook – Defence of truth – Defence of statutory qualified privilege – Defence of Common law qualified privilege (Lange) – Defence of common law qualified privilege (reply to attack) – Malice – Aggravated damages.
Legislation Cited: Local Government Act 1989; Freedom of Information Act 1982 Defamation Act 2005; Independent Broad-Based Anti-Corruption Commission Act 2011.
Cases Cited:Williams v Manningham City Council [2015] VCAT 1367; Knupffer v London Express Newspapers Ltd [1944] AC 116, HL; Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; Jones v Skelton [1963] UKPC 29; Cornes v The Ten Group Pty Ltd & Ors [2012] SASCFC 99; Farquhar v Bottom [1980] 2 NSWLR 380; John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77; Slim v Daily Telegraph Ltd [1968] 2 QB 157; Amalgamated Television Services v Marsden (1998) 43 NSWLR 158; Lewis v Daily Telegraph Ltd [1964] AC 234; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; Gatto v Australian Broadcasting Corporation [2021] VSC 83; Hardie v Herald and Weekly Times Pty Ltd [2016] VSCA 103; Armstrong v McIntosh (No.4) [2020] WASC 31; Stocker v Stocker [2019] UKSC 17; Brose v Baluskas (No 6) [2020] QDC 015; Bazzi v Dutton (2022) 289 FCR 1; Rofe v Smiths Newspapers Ltd (1924) 25 SR(NSW) 4; Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; IW v City of Perth (1997) 191 CLR 1; Briginshaw v Briginshaw (1938) 60 CLR 336; Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30; Austin v Mirror Newspapers Ltd [1986] AC 299; John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227; Echo Publications Pty Ltd v Tucker; Fast Buck$ v Tucker (No 3) [2007] NSWCA 320; Chau v Fairfax Publications Pty Ltd [2019] FCA 185; Palmer v McGowan (No 5) [2022] FCA 893; Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; Defteros v Google LLC [2021] VSCA 167; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Farm Transparency International Ltd v NSW (2022) 403 ALR 1; Chetwynd v Armidale Dumaresq Council [2010] NSWSC 690; Marshall v Megna; Megna v Tory; Tory v Megna [2013] NSWCA 30; John Fairfax Publications Pty Ltd v O’Shane (2005) Aust Torts Reports 81-789; Poniatowska v Channel Seven Sydney Pty Ltd (2019) 136 SASR 1; Jensen v Nationwide News Pty Ltd (No 13) [2019] WASC 451; Australian Broadcasting Corp (ABC) v Obeid (2006) 66 NSWLR 605; Gould v Jordan (No 2) [2021] FCA 1289; Penton v Calwell (1945) 70 CLR 219; Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, Mowlds v Fergusson [1940] HCA 38; Kennett v Farmer [1988] VR 991; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; Wilson v Bauer Media Pty Ltd [2017] VSC 521; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; McDonalds v Dods [2017] VSCA 129; Ley v Hamilton (1935) 153 LT 384; Crampton v Nugawela (1996) 41 NSWLR 176; Cassell & Co Ltd v Broome [1972] AC 1027; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; Prendergast v Roberts [2012] QSC 144; Lower Murray Urban and Rural Water Corp v Di Masi; Lower Murray Urban and Rural Water Corp v Belbin; Lower Murray Urban and Rural Water Corp v Marciano (2014) 43 VR 348; Webster v Brewer [2020] FCA 1343; Dutton v Bazzi [2021] FCA 1474; Bazzi v Dutton [2022] 289 FCR 1; Kumar & Anor v Ragupathy [2021] VCC 532; Cables v Winchester [2018] VSC 392; Zuchowski v Howe; Howe v Cavendish Properties and Zuchowski [2022] VCC 1604; Peterson v Simopoulos [2021] VCC 1080; Hayson v Age Co Pty Ltd (No 2)[2020] FCA 361; Wagner v Nine Network Australia Pty Ltd[2019] QSC 284.
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Gilbertson KC with Ms E Nikou Madalin | Verduci Lawyers |
| For the Defendant | Mr J Castelan with Ms H Jager | HWL Ebsworth Lawyers |
HER HONOUR:
Introduction
1The plaintiff, Heather Wellington, is a local councillor on the Surf Coast Shire Council (‘SCSC’), representing the Winchelsea Ward. She has held that position since 2012. She successfully ran for re-election during the 2020 local government elections.
2The defendant, Kirsty Metcalf, is a ratepayer in the Surf Coast Shire and was an unsuccessful candidate for the Winchelsea Ward during the 2020 local government elections.
3During the election campaign, the defendant established a Facebook page called ‘Kirsty Metcalf Winchelsea Ward Candidate’. She subsequently changed the name of the Facebook page to ‘Kirsty Metcalf Surf Coast Bridge & Arrow’.
4The defendant uploaded numerous posts on her Facebook page about the plaintiff, some of which incorporated articles and ‘memes’. At issue in this case are seven separate posts to that Facebook page, which the plaintiff claims defame her.
5For the reasons set out below, I am satisfied the plaintiff has proved the defendant defamed her in seven publications and no defence has been made out. I award the plaintiff damages in the amount of $100,000, which includes a component for aggravated damages.
Background
Coombes Road, Freshwater Creek
6In early 2016 the defendant, her husband, Tim Metcalf, and their two daughters, moved from their home in Kangaroo Ground to an apartment they owned in The Esplanade, Torquay, (‘The Esplanade apartment’) while they looked for a suitable property to purchase in the Surf Coast Shire.
7In 2016, the defendant and her husband purchased a property at Coombes Road, Freshwater Creek.
8In about March of 2016, the Metcalfs engaged a design consultancy firm, Taylor Garwood Designs (‘Taylor Garwood’), to start work on their plans for the land. The Metcalfs wanted a home to live in and a structure big enough to house Mr Metcalf’s helicopter, as well as machinery and equipment they might use, such as horse floats.
9Mr Metcalf owns and operates a crane company, Metcalf Crane Services Pty Ltd (‘Metcalf Crane Services’), which operates in the infrastructure industry ‘up and down’ the east coast.[1]
[1]T710
10Mr Metcalf has a private and commercial pilot’s licence. Most of his helicopter use has been for private purposes.[2]
[2] T174
11At the time of engaging Taylor Garwood, Mr Metcalf intended to use his helicopter ‘to run around the state’ for his business.[3] He hoped to use it for other purposes in the future, in particular, to do sling work for emergency services and agriculture. It was always the Metcalfs’ intention to fly the helicopter in and out of the property and they selected the property with these future purposes in mind.
[3]T720, L17-18
12In May 2016, Sharon Berridge from Taylor Garwood met with Roger Curnow, an urban and regional planner at the SCSC, for a ‘pre-application meeting’. This meeting will be dealt with in greater detail later in these reasons. Taylor Garwood drew up designs for a large 21 metre x 21 metre structure that incorporated an aircraft hangar and dwelling. In front of the hangar portion of the building was a large concrete slab which I will call the concrete apron.
13Pursuant to the Victoria Planning Provisions (‘the Planning Scheme’), a house built on 60 hectares of land does not require a planning permit. The building plans for the construction of the structure, which incorporated the hangar and the dwelling, were approved on 8 November 2016 and work commenced shortly thereafter. The works were completed in about mid-2017 and the Metcalfs moved into the property in about June 2017.
Relevant planning provisions
14Clause 52.15 of the Planning Scheme says:
“… a permit is required to use or develop any land for a heliport or a helicopter landing site even if it is ancillary to another use on the land, unless the table to this Clause specifically states that a permit is not required … ”[4]
[4]Joint Court Book (‘JCB’) 292
15The clause then includes a ‘table of exemptions for use’ which relevantly provides as follows:
No permit is required to use land for a helicopter landing site if any of the following apply:
Emergency Services
The helicopter landing site is used by a helicopter engaged in the provision of emergency service operations.
Agriculture
The helicopter landing site is used by a helicopter engaged in agricultural activity in conjunction with the use of any land for agriculture.
16The plaintiff submits the effect of that clause is that:
(a) A development permit is always required for works which, at the time of construction, are contemplated to include a heliport or helicopter landing site. That requirement applies, whether or not it is anticipated the development will relate to a use for which a use permit is not required;
(b) There is no need to obtain a use permit in respect of uses which fall within the definitions of the exemptions in the table, properly construed; and
(c) Notwithstanding the foregoing, a use permit is still required in respect of any use not contemplated by the table of exemptions, including private commuter use.
17Under the Planning Scheme, a helicopter does not require a use permit if the use of the helicopter is restricted to no more than eight movements within a thirty-day period and the helicopter departs and lands at least 500 metres from the nearest amenity.[5] An amenity is defined to include a place of accommodation.[6]
[5] Department of Land, Water and Planning, Victoria Planning Provisions, cl 52.15-1
[6]Supra
18The Metcalfs’ nearest neighbour was about 331 metres from the concrete apron. This meant that, in the absence of a permit, Mr Metcalf had to tow his helicopter into the paddock for departure and also land in the paddock and tow it back into the hangar. He also had to limit his movements in and out of the property via helicopter to no more than eight per month.
The Metcalfs’ permit application
The first permit application
19The Metcalfs engaged TGM Group Pty Ltd (‘TGM’) to make an permit application for use of a helicopter landing site at the property.
20On 9 October 2017, TGM submitted the first application. The proposal was:
“… to use the existing site at…Coombes Road, Freshwater Creek as a helicopter landing and departure site to accommodate a maximum of three helicopters. The site is well located in a cleared area at the rear of the large shed/hangar where the helicopters are proposed to be stored.”[7]
[7]JCB 285
21The application was for nine helicopter movements between 7.00am and 8.00pm daily. The application noted there were no buildings and works proposed, helicopters are able to operate from the existing site and the site had sufficient parking areas to facilitate the parking demands for the use of the helicopters.
22In support of the application, TGM submitted the following:
“The proposal is consistent with the purpose of the Farming Zone as the land will continue to be used for agricultural purposes and there will be no loss of arable farming land as a consequence of the proposed helicopter use. Helicopters are more frequently used in farm management due to their reliability and operational versatility and ease of access to difficult sites.
At this location the helicopters will be used for aerial spraying to provide improved pastoral solutions, including the distribution of granulated fertilisers and seed as well as weed suppression activities. Thus the proposed use will result in improved agricultural outcomes for this land and the broader farming district.
The site is also an important strategic location to provide helicopter support for wildfire and control burn monitoring, in addition to aerial fire suppression both for grassland and forest fires in the Surf Coast and the Otway’s. Thus the use will play a vital role in early detection and suppression of fires that may impact farming land. Therefore the proposed use will play a vital role in the improvement and sustainable use of farming land in the surrounding district.”[8]
[8]JCB 287-88
23The proposed helicopter landing site was the concrete apron in front of the hangar which had been built at the same time as the dwelling and hangar.
24The submission noted, ‘The application does not propose any buildings and works as the helicopters will be stored in the existing shed’.[9]
[9]JCB 291
25The submission noted that no permit was required to use the land for a helicopter landing site if the helicopter landing site is used by a helicopter engaged in the provision of emergency service operations or is used by a helicopter engaged in agricultural activity in conjunction with the use of any land for agriculture. However, it also noted:
“… as the proposed flight movements per day exceeds the number of as-of-right flight movements of 8 in the 30 day period as contained in the table for exemptions to this clause, a Planning Permit is required.”[10]
[10]JCB 293
26Importantly, a permit was required to depart and land from the concrete apron, as this was within 500 metres of the nearest amenity. Unsurprisingly Mr Metcalf wanted to land and depart from the concrete apron rather than having to tow his helicopter to and from the paddock.
27On 24 October 2017, Bianca Wilkin, a senior statutory/strategic planner at the SCSC, wrote to TGM advising that a preliminary assessment indicated that the application might not have officer support as the number of movements per day was considered excessive ‘without supporting justification”.[11] The letter acknowledged a permit was not required for use associated with emergency services or agricultural purposes, but noted ‘it is difficult to ascertain that the use associated with these purposes amounts to the required nine movements per day as proposed’.[12] Ms Wilkin noted that, given the application ‘will proceed to notification, and is likely to attract attention’,[13] TGM may wish to consider providing supporting information.
[11]JCB 2385
[12]JCB 2385
[13]JCB 2385
28The SCSC required those within a one-kilometre radius of the property to be notified of the application.
Amended permit application
29On 3 November 2017 TGM wrote to the SCSC Statutory Planning Unit (‘the amended permit application’) and advised:
“We understand from your advice that the use of a helicopter for emergency and agricultural purposes does not require a Planning Permit. As we factored these uses into our proposed movements, we agree to reduce the proposed helicopter movements from nine (9) to four (4) per day.
In regard to the proposed four (4) movements per day request, my client is a helicopter enthusiast who uses helicopters for recreational as well as business pursuits … The helicopter will provide fast and reliable transport to Melbourne in particular, as the road network becomes more and more gridlocked on a daily basis. As advised, my client and his family also choose to use their helicopter for recreational purposes and thus it is important that they can operate from their own property …”[14]
[14]JCB 301
30TGM then raised a ‘query’ as to why ‘Council would choose to provide notice so far away from the proposal as my client specifically purchased this property and positioned their house away from sensitive uses’.[15] The letter goes on to say the noise levels are considered acceptable and:
“… we believe that Council has no basis to extend advertising this far and are concerned that Council will unduly promote resident concern and objection and thus prejudicing (sic) this application. Therefore we respectfully request that Council follow accepted advertising protocols and advertise to those adjoining and adjacent areas within close proximity to the subject site.”[16]
[15]JCB 301
[16]JCB 301
31TGM and the applicants were aware the application was likely to raise community concern. I shall refer to this as the Metcalfs’ permit application.
The Esplanade, Torquay
32Meanwhile, the defendant was engaged with the SCSC in relation to The Esplanade apartment.
33The Metcalfs had lived in this apartment while the Coombes Road property was being built. There were a number of problems with the apartment which are not relevant to this proceeding, save to the extent they involved the plaintiff, and gave rise to one of the imputations said to be conveyed by the first publication.
34The apartment is one of a number of apartments built above shops and a restaurant. Mr Metcalf gave evidence that living in the property was ‘never going to be long-term for us but it was completely unlivable (sic)’.[17] The main problems were noises and vibrations coming from the restaurant kitchen below and smells of oil and something ‘like sewerage’ coming into their kitchen area.[18] Mr Metcalf had ‘plenty’ of conversations with the builder trying to get him to fix the issues, but he was ‘not interested’.[19]
[17]T715, L27-28
[18] T715, L12-18
[19] T715, L19-25
35The plaintiff first became aware of the Metcalfs’ specific concerns on 16 August 2017 when she, along with other councillors, received an email from the defendant, which opened, ‘I am aware that councillor Carol McGregor has contacted you in regards to our home @ … The Esplanade’.[20] She went on:
“… I expressed an invitation for you all to visit, this was declined in silence. I now make direct contact with you, as my families representatives you should all be aware our family has moved out of our home due to health issues, mostly caused by an illegal kitchen exhaust the restaurant installed.
…
[20]JCB 243
The inaction from this council to bring the restaurant into compliance so that we do not hear, see, smell or feel the restaurant and its kitchen exhaust is a breach of your own planning scheme, the 2008 Health Act, EPA Legislation, our owners corporation rights and the Australian Human Rights Act, of which your local Laws are bound by.
I have expressed many times with your CEO, officers and Governance it is not and should not be at the expense of our family abandoning our home, the enjoyment and loss of our home, health, effort, energy and finances that we engage expert planning consultants, engineer consultants, environmental and acoustic consultants, lawyers and now the interest of State MP’s to fix this … .
If this was your home and health or the home and health of your loved one you would want the developer/ restaurant owner to fix it. I seek your help and assistance in what has become an ongoing struggle with your council officers, who in their own words told me to, ‘put the fight down and move out.”[21]
[21]JCB 243-44
36On 17 August 2017, Keith Baillie, chief executive officer (‘CEO’) of the SCSC, emailed councillors, including the plaintiff and said he was writing ‘to recommend that Councillors be cautious in responding individually on this’.[22] He noted the issue was a long-running and complex matter, involving many parties[23] and ‘[t]he relationships between parties, including between a number of residents are very difficult’.[24] He advised that the SCSC believed a legal proceeding was being prepared and because of this, any communication from the SCSC may be seen to ‘represent Council’s considered position’ in any legal proceeding. [25] He noted, ‘Kirsty is experiencing great distress and is having difficulty with her emotions’ and ‘Councillors would likely experience this stress in communications with Kirsty’.[26] He noted a number of staff had had ‘difficult’ interactions with the defendant.[27]
[22]JCB 252
[23] JCB 252-253
[24]JCB 252
[25]JCB 253
[26]JCB 253
[27] JCB 253
37Shortly after Mr Baillie sent his email, the-then Mayor of Council, Brian McKiterick, endorsed Mr Baillie’s suggested approach.[28]
[28]JCB 241
38That evening, the plaintiff responded to Mr Baillie and Mr McKiterick as follows:
“I am deeply uncomfortable about a suggestion that we not engage with a resident who has a planning problem. Am I missing something here?
I understand the CEO is not attempting to give us a directive, however I do feel we are being strongly steered towards not engaging.
Clearly we need to be conscious of the limits of our authority (which as individuals is essentially zero) and our obligations of confidentiality, however it is a core aspect of our role as elected representatives to engage directly with residents and provide a conduit for them to Councillors and officers.
We often do site visits before a hearing of submissions and/or decision of Council. I intend to visit, unless I am convinced that the democratic process will be upheld if Councillors do not respond to a reasonable request by a resident to view a planning problem prior to a permit application being decided.”[29]
[29]JCB 240
39The plaintiff contacted the defendant and said she had not been aware of the earlier correspondence requesting council officers visit and said, ‘I would certainly have responded to such a request, as I take the issues you raise seriously’.[30]
[30]JCB 243
40There ensued some back and forth between the plaintiff and defendant in relation to issue at The Esplanade apartment. The defendant noted her family was:
“… now in the situation of objecting to an amended permit for the illegal exhaust, even though the affects (sic) of it on our health and safety are known by council officers. This has added more stress as we feel it's not a valid permit and should have been issued with a building notice. Instead we have to defend ourselves and our home again, this time in a public forum.”[31]
[31]JCB 245
41The plaintiff visited the defendant at The Esplanade on about 21 August 2017. In a follow-up email, she provided the defendant with some general information about an upcoming hearing relating to the exhaust at The Esplanade apartment. She also said she would follow up council officers.[32]
[32]JCB 249
42The plaintiff did follow up. She wrote to both Mr Baillie and Mr McKiterick and said the defendant had told her she had felt:
“… compelled to move out from her home because of her experience. From my currently (limited) perspective, I certainly do not agree with any view (if there is one) that her reaction to the situation is disproportionate to the problem. Anyone who feels they need to leave their home because of intrusion by their neighbours will be upset. I am concerned that she may be being labelled ‘difficult’ or ‘anxious’ when in fact her reaction is perfectly understandable in response to her perception of a serious threat to her family's health and wellbeing.”[33]
[33]JCB 251
43The plaintiff visited the defendant’s home on a further occasion and followed up on a number of occasions with council officers. In particular, she sought clarification about documents the defendant had attempted to access and raised a concern that documents the plaintiff considered should be publicly available appeared to have been withheld from the defendant.[34]
[34]JCB 309
44The plaintiff gave evidence she could not recall exactly how the issue at The Esplanade apartment resolved, although she became aware the defendant was no longer living at the property and no longer sought further help from her.
45The following matters arising from the issue at The Esplanade apartment are relevant to my determination in this proceeding:
(a)the plaintiff’s engagement with the defendant, against the advice of the SCSC CEO and Mayor;
(b)the fact the issue related to a planning matter;
(c)the focus by the plaintiff on the defendant’s access to documents in her correspondence with council officers;
(d)the repeated reference by the defendant to The Esplanade apartment as her ‘home’.
46This episode is an example of the plaintiff’s approach to issues raised by ratepayers. She met with the ratepayer (the defendant), she wrote to council officers seeking clarification of matters, she gave advice about what documents should be available, and she advocated to the SCSC for release of those documents. The plaintiff’s conduct in relation to The Esplanade apartment was diligent and consistent with her long-expressed concerns about representing the community, challenging council officers when she disagreed with their advice, and seeking transparency in access to documents.
The March 2018 submissions hearing
47After filing the Metcalfs’ permit application and advertising as required by the SCSC within a one-kilometre radius from the proposed helicopter landing site,[35] it proceeded to a ‘submissions’ hearing in March 2018.
[35]JCB 506
48Ahead of that submissions hearing, the SCSC received forty-nine community responses to the application, forty-eight of which were from people objecting to the application.
The objections
49The objections canvassed a number of issues which can be summarised as follows:
(a)noise;
(b)loss of amenity and loss of privacy;
(c)too close to township;
(d)additional traffic;
(e)impact on property value;
(f)safety concerns in relation to power lines;
(g)safety concerns in relation to motorists;
(h)safety concerns related to storage of fuel;
(i)urbanisation of rural area/not in keeping with rural character/unsuitable in farming zone;
(j)impact on livestock/wildlife;
(k)too close to aged care facility;
(l)possible pollution;
(m)contamination of nearby homes and water sources from pesticides used in aerial spraying;
(n)sets a precedent for more helicopters in area.
50In addition to specific concerns, a number of objectors expressed scepticism of the Metcalfs’ intention to engage in emergency service or agricultural work, and had a view the likely intention was to run a commercial enterprise, including a charter flight business.[36]
[36]JCB 321-406
The submissions hearing
51On 20 March 2018, the submissions hearing proceeded. The plaintiff and defendant were both in attendance. The defendant and her husband made a PowerPoint presentation, which showed pictures of helicopters engaging in sling work,[37] and explained the way in which sling work was carried out. Their representative from TGM also made a submission.
[37]JCB 2316
52Although the Metcalfs’ permit application by then was for four movements per day for commuter or other non-exempt purposes, the Metcalfs indicated their intention was also to engage in other helicopter-related work, including sling work for emergency services and agricultural work.
53The extent of exemptions under cl 52.15 of the Planning Scheme is not something I have to determine in this proceeding. The stated exemptions include agricultural and emergency services work. The plaintiff does not believe the exemptions are intended to extend to any activity that could be broadly associated with agricultural or emergency services work. The defendant believes any use associated with those activities is exempt.
54The minutes from the meeting show the following concerns were raised:
(a)helicopters could be used for commercial use;
(b)number and frequency of movements of the helicopter;
(c)noise ꟷ disturbance to residents;
(d)loss of rural character;
(e)breach of privacy;
(f)safety issues;
(g)disturbance to the environment (animals/farming production).[38]
[38]JCB 418
55The plaintiff did not ask any questions during the submission hearing. It was put to her that the submissions hearing was the appropriate time to clarify any of the questions the plaintiff might have had.[39] The plaintiff said the submissions hearing was for her to hear the submissions from the applicants and any supporters, and the objections from those opposed to the Metcalfs’ permit application. She said this was not the forum to ventilate her concerns.
[39]T314
56The defendant said:
“… We just simply said these are the activities that we would like to pursue but we didn’t say what that would look and feel and sound like. And we didn’t at the time realise, I think, that that had a real impact on the community’s anxiety around what we were doing. So it would have been really helpful if we could have alleviated those anxieties by saying, ‘Well, look, in the event that we are able to put our helicopter on the register, it’s more than likely it would not be at our property, it would strategically be placed somewhere else, so that sort of removes that …”[40]
[40]T690, L4-15
57When asked whether the plaintiff should have asked those questions so she could have given those answers, she said:
“Yes, I absolutely do feel that those questions should have been asked so that we could respond to that and the agricultural, so that they didn't feel that, you know, we were going to fly the helicopter in and out, in and out, in and out because that was never, ever going to happen and that's not what does happen. But in their minds that's what potentially could happen. So we, at that meeting it would have been really beneficial for that to have been teased out.”[41]
[41]T690, L19-27
58In her defence, the defendant says the submission hearing ‘was the appropriate time for the plaintiff to express any concerns she had with the use permit application, and the plaintiff remained silent’.[42]
[42]JCB 3736
59Chris Marshall, who attended the submission hearing on behalf of the Metcalfs, agreed the submissions hearing was not the time for councillors to debate the merits of the application.
60It is not clear why the defendant considered it was the plaintiff’s, or any other councillor’s, duty to ask questions to ‘tease out’ community concerns, when the community concerns were already known to the Metcalfs, having been contained in the written objections. This was the opportunity for the Metcalfs to address those community concerns, an opportunity they took by speaking to a PowerPoint presentation and having their representative from TGM present on their behalf. It was entirely open to the Metcalfs to make clear what, and how, they intended to use the helicopter, and what the impacts of helicopter use would be. The defendant says she and her husband had always been open and transparent about their intentions.
61I do not accept the plaintiff was derelict in her duty as a councillor in not asking questions at the submission hearing, or that her failure to ask questions was part of a larger strategy to somehow assist the objectors. For this assertion to be correct the plaintiff must have decided, as at March 2018, that not asking questions would somehow ‘assist’ the objectors which is implausible.
62The resolution of the submissions hearing was to forward the Metcalfs’ permit application to the SCSC for consideration at the 24 April 2018 ordinary meeting.[43]
[43]JCB 419
Events leading up to the 24 April 2018 Council meeting
Coombes Road site visit
63On 12 April 2018, the Metcalfs emailed councillors, inviting them to visit the property and observe a helicopter taking off and landing.[44]
[44]JCB 478
64A number of councillors attended, including Rose Hodge. The site visit took place on 24 April 2018 prior to the council meeting. The plaintiff did not attend. She said she was likely working at the time,[45] but also did not think seeing one helicopter fly in and out would help her reach a decision.[46]
[45]T222, L6
[46]T221-222
The Metcalf Email and Submission
65After the site visit, Mr Metcalf and the defendant sent an email (‘the Metcalf email’),[47] and attachment (‘the Metcalf submission’) to Cr McGregor.[48] This is an important document in the case and was ultimately the subject of Freedom of Information (‘FOI’) proceedings in the Victorian Civil and Administrative Tribunal (‘VACT’).
[47] JCB 448
[48] JCB 489-490
66Cr McGregor circulated this email and attachment to all councillors, including the plaintiff. The attachment is headed ‘Councillors Meeting Notes’. It addresses various matters, including a question raised by Rose Hodge at the Submissions Meeting about alternative storage locations for the helicopter. Under a heading ‘History of Coombes Rd’, the Metcalfs write:
· “engaged Taylor Garwood in March 2016 with intention of concept design for a hanger shed and dealing with council. At this point we thought we required a council planning permit so our intention was to get the helicopter permit wrapped up within this process. Sharon met with Roger Curnow and outlined our intentions of a hanger shed and future intentions, all of which are a current work in progress. It was determined at this meeting that the Anglesea Rd is considered a tourist corridor and that our application would be looked on unfavourably by the planning committee.
· Roger did not respond to Taylor Garwood’s multiple emails and telephone follow up’s after the meeting.
· The process became displaced for two reasons. It was decided we would push on with the build, as you are all aware our current living situation at that time was intolerable so we progressed with the build and addressed the permit after we were settled.
· Fast forward to this day, building process is over and we have had the planning permit application in since late last Year and here we are.”[49]
[49]JCB 160
67The document then states:
· “Our intention was always to utilise this site to park helicopters specifically purchased for utility work – utility work is as we explained at the hearing of submissions lifting, agricultural, fire, sling work. This is all classed as commercial work under air law.
· (Refer 2) officer report states NO commercial charter including joy flights. If it was a joy flight op it would be 6 flights/hour @ 8/10-hour days on weekends and holidays. That’s not what we are doing here. We are pursuing utility work as it is in line with the work I have specialised in for the 35 years of my working life, 22 of which of which I have run my own business. Lifting is my speciality and my passion.
· (Refer 1) Councils report states it is noted… this is incorrect. We have purchased a utility machine and it will be here at the end of this work ... Yes, there will be some business use for travel to far Victoria. SA, NSW to save on my time, however the machine has predominately been purchased for utility work and not for the pleasure of social outings and simply my commuter needs. We will be working to get a contract for seasonal fire work which is 4-months of the year.
· The other 8-months the machine needs to be operating and we require the ability to get it out of the hanger. Whilst there is no financial implications to council, there is definitely financial implications to the special conditions of 6 movements to us.
· (Refer 3) whilst we are seeking 7 days we acknowledge that the machine would never reach the 1446 movements per year, we are simply seeking permission to be able to access the machine without any enforcement action and anxiety.
· (Refer 4) Planning 6 movements & your health department 10 movements, on what grounds is 6 and we would have thought health superseded the planning committees arrival at 6. Bearing in mind what I have requested is the potential to access a very expensive piece of equipment that needs to be able to leave our premises, hence 14 movements.
· We are sensitive to the surrounding homes and have designated a no-fly zone. We have a Marshall Day report validates there is no amenity loss, backed by the EPA. The other bodies for instance CASA and Air Services Australia have no objections to our permit. The new machine is quieter and according to Marshall Day report and EPA we can operate at 55 DB all day. We are asking for a movement a day, total time in and out of 6 minutes.
· (Refer 5) officer portrays the quiet ambience of a rural setting must be taken into consideration. Incorrect. Both Coombes and Anglesea are major roads with high volumes of traffic. You can experience this when we observe the take-off and landing.
· We are operating within the acceptable planning scheme of our machine being within the required 250 metres of the nearest amenity, the closest is 335 metres.
· We have been committed to improvements, ie, bitumen no dust and huge planting schemes and screens for privacy and protection for the benefit of ourselves and our neighbours.”[50]
[50]JCB 160-61
68The plaintiff gave evidence she saw the Metcalf submission a couple of hours prior to the meeting.[51] She considered it demonstrated the Metcalfs had always intended to build a helicopter landing site and run a helicopter business. She said:
“… I'd had this question of the development and whether a development permit was required and I'd raised it with officers and they said, ‘No, it was built as a farm shed and it didn't need a development permit’. And then when I got that letter, the applicant, to me, was saying in that letter, ‘We always wanted to bring a helicopter to Torquay. We'd planned our’ - you know, ‘We looked for a suitable site. We planned our construction. We had a problem with council about something so we proceeded and now here we are’. And it seemed to me to say very clearly, ‘We built our hangar and we built our landing site’ and I looked at it and thought why are the officers - prior to that I'd only seen, heard it referred to as a hangar and I hadn't really thought that was, you know, very significant but when I saw a letter from the applicant that said ‘We built it for this purpose’ and the officers had said to me if they built it for that purpose, it would need a permit, but they didn't build it for that purpose …”[52]
[51]T222
[52]T222, L23 – T223, L10
69She said she could not understand why the council officers had been saying this was a farm shed, when it was clear to her the intention was always to build a hangar and a helicopter landing site.
70The Metcalfs had made no secret of the fact they were building a hangar to house a helicopter and had intentions to use the helicopter on the property. The building permit and other documents were labelled ‘hangar’. The fact a dwelling was attached to the hangar, does not transform the hangar into something else.
71It is understandable the plaintiff had a concern the concrete apron was always intended to be a helicopter landing site. It is a conclusion difficult to avoid, given Mr Metcalf’s intention to expand his helicopter use and engage in business activities using his helicopter. It would be extraordinary, to the point of being unbelievable if the Metcalfs engaged a design firm, told them of their intentions, had them draw up plans for a dwelling, and hangar with a concrete apron, entirely suitable to use as a helicopter landing site, but always intended to land the helicopter a couple of hundred metres away in a paddock, and tow the helicopter into the hangar.
72The more likely scenario is the Metcalfs commissioned a design fit-for-purpose – a hangar and helicopter landing site attached. Because of a perception that things were getting ‘bogged down’ in the SCSC, and a desire to progress quickly so they could leave their unsatisfactory accommodation at The Esplanade apartment, they did not seek a use permit at the time of the build. Because they did not have a use permit and were therefore not going to be landing and taking off from the concrete apron immediately, they did not seek a development permit which would have been required for a helicopter landing site. Consequently, all they required was a building permit for the dwelling and hangar, which they duly obtained.
73In making this finding, I ascribe no nefarious motives to the Metcalfs. Mr Metcalf was generally a candid witness, who struck me as a pragmatic person. If he needed a permit, he would get a permit, as he had previously obtained in Kangaroo Ground. He was advised he needed no development permit for the dwelling and hangar, as it was on 60 hectares of land. He knew he needed a use permit for the helicopter if he wanted to land on the concrete apron or fly in and out more than eight times a month. He decided to defer that application to enable the build to proceed. This was an understandable decision.
74It was inevitable though that, having built a hangar and a concrete apron entirely suitable for use as a helicopter landing site, community concern and suspicion would be aroused when, just a few months later, a permit was sought to use the concrete apron as a helicopter landing site.
The pre-application ‘advice email’
75Because the Metcalf submission referred to a lack of response from Mr Curnow, Bill Cathcart, the manager of planning and development at the SCSC, felt the need to correct the record for councillors. At 3.46pm on 24 April 2022 Mr Cathcart forwarded an email dated 30 May 2016 from Mr Curnow to planning coordinator Phil Rosevear, to councillors. This email detailed Mr Curnow’s advice to Ms Berridge from Taylor Garwood, whom the Metcalfs had engaged at the design stage of their property development.
76Again, this email (‘the advice email’) has become an important document in the events that subsequently transpired, so I reproduce it here in full.
“Dear Sharon
“The proposal was discussed at the Planning Group meeting last Tuesday 24 May particularly in relation to future commercial use and operation of the land in association with the proposed large dwelling/hangar/farm building structure central to the site 500 m north of Coombes Road.
“It is appreciated that the land has recently changed ownership and unfortunately the Group did not have the benefit of a current title however it is understood your client owns 60 ha being the minimum area required for a dwelling not to require planning approval in the Farming zone providing all the setback requirements of the zone are compliant – appears to be the case.
“It is understood that a replacement dwelling, demolition of existing structures and associated private horse riding facilities, including a ménage are planned but it is the future commercial operation that raised some concern from a policy perspective in relation to existing planning strategies and being unrelated to agricultural activity on the land.
“The proposed operation of commercial charter flights and associated noise from expected frequent flights into this area is likely to raise a high number of objections being on the edge of the greater Torquay township just beyond the settlement boundary and proximate to existing and future residential development along the western end of Grossmans road.
“A helicopter landing site to be used by your clients for aerial commuting to their property, while unusual is understood given your client is a helicopter pilot, however their future intention appears to be both at a private and commercial scale. It is considered that your clients should be transparent and upfront about their intentions as incremental development is discouraged by VCAT.
“In the circumstances in this location a commercial proposal is considered unlikely to receive officer support
“In terms of the private helicopter landing site under the provisions of Clause 52.15 of the Scheme it appears that a planning permit is required for the proposed helicopter landing site in this location because the landing point is unable to meet the general exemptions of the Clause.
“Any application for a landing site is required to address the application requirements. It is noted that as part of these requirements flight movements and hours of operation times have been provided
· limit his flights to 8 in a 30 day period and 4 in a 24hr period.
· These flights would be between 7am and sunset on weekdays and 8am and sunset on weekends or holidays
“The Proximity to high tension power lines traversing the land is also likely to be an issue for CASA and SP Ausnet.”[53]
[53]JCB 496-97
77The plaintiff received this email shortly before the April council meeting. Prior to that time, neither she, nor the other councillors, were aware of it. It exacerbated her concerns, because it talked about the future commercial operation. The plaintiff said:
“… the issue of the house was never a problem. Of course, it was always reasonable to build a house on the site and you didn't need a permit for that, that wasn't the issue. The issue was the commercial - and then the operation of commercial charter flights. That - I'd heard - a lot of the residents had said that in their objections but I hadn't - I thought it was unusual that so many of them were saying it because usually you'll get one or two people in a big - you know, usually it's not such a consistent theme from objectors when there's no obvious, obvious evidence but - but that seemed to confirm that they were right which suggested that they had heard something authoritatively from somewhere. That concerned me. And then they talked about just beyond the settlement boundary and proximate to Grossmans Road, there was an aged care facility there and I thought this - if this is going - you know, council officers were obviously worried about it and yet the - and yet what we had got for the April meeting was, ‘This is a farm shed, you don't need to worry about the development. This is for commuter permits. There's an exemption for agricultural and emergency flights and you don't need to worry about them’ and I felt they just did not reconcile. I was really quite shocked when I read this, in conjunction with the other letter from the applicant - or the other - the meeting notes which, because this was obviously written in 2016 which was a couple of years before and people do sometimes change their minds, obviously. But in conjunction with the notes of the meeting which said, ‘We always wanted to run a helicopter business’ and that was written on the day, on 2018, so it seemed to me that the intention hadn't changed and I just couldn't - I could not reconcile the officer's report with these documents.”[54]
[54]T224, L17 – T225, L19
78Mr Curnow’s email also points out a planning permit would be required for the helicopter landing site ‘in this location’ because the landing point is unable to meet the general exemptions of cl 52.15. That is, it was not at least 500 metres from the nearest amenity. If the ‘helicopter landing site’ proposed was the paddock where Mr Metcalf was landing prior to obtaining the use permit, it would have met the general exemption requirements of cl 52.15 and, therefore, would not have required a permit. Mr Curnow can only be referring to what became the concrete apron and eventual helicopter landing site.
The Metcalf recap letter
79There is one other document that is relevant to the intentions of the Metcalfs and the responses of the objectors, and is therefore relevant to the issues in dispute in this case. This is not a document the plaintiff was aware of at the time of the April 2018 meeting as she only became aware of its existence through discovery in this proceeding.
80This is a document emailed to the defendant by Mr Metcalf, forwarding an email from Ms Berridge of Taylor Garwood.[55] It is a recap written by Ms Berridge of that meeting (‘recap letter’). It reads:
[55]JCB 1695
“The following is a recap of the points discussed between Roger Curnow and Sharon Berridge on 20.05.2016.
“Initially it was thought that the property was approximately 178ha but it is actually only 60ha. It is in a Farming Zone. It is in Freshwater Creek abutting the Bellbrae boundary. It is on the corner of Anglesea and Coombes Roads. Anglesea Road is considered a Tourist corridor.
“Sharon informed Roger of the client’s intention to:
“Initially:
Build a large shed like structure to incorporate a hanger and a residence
Create a helicopter landing site as an extension of this building
Use the residence and helicopter for personal use
“Sharon has since found out that the helicopter would be taking off and landing once a day.
“Roger’s response:
The staffroom and foyer etc need to be renamed as residential rooms, or not included in the initial application
A Planning Permit to build a residence isn’t required because the land meets the 60ha minimum requirement of land
The residence only needs a Building Permit but must meet all of the appropriate regulations
The helicopter landing site needs a permit as it isn’t 500meters from the nearest residence (refer to Clause 52.15 for further information)
An application for a new crossover is required (Contact James Priest)
“In the future:
Apply to carry out a Helicopter Charter business from the site
Change the ‘residence’ to a commercial building
Remove the existing sheds and outbuildings
Build a new residence
Build new stables and a ménage
“Roger’s response to additional structures on the property:
Initially it was discussed that the client could keep the kitchen, as it was thought the property was 178ha but, now we know that it is only 60ha the kitchen would need to be removed and the building changed to a habitable outbuilding which would allow for the proposed new residence to be built in the future
So long as the stables and ménage are used privately by the owner they don’t require permits as they are related to farming and/or agriculture
“Roger felt that the application might not be considered favourably. He didn’t state directly what would trigger a negative response, but he said that the planning committee would take into account:
The Torquay, Jan Juc and Bellbrae planning strategies etc
That the proposed use isn’t related to faming and/or agriculture, it would be considered Leisure and Recreation
That the property is at the edge of the township, near a proposed densely populated area
The frequency of flights
The noise created
“Overall, the meeting was very informative and I feel most issues and/or options were discussed. At the end of the meeting, Roger asked that Sharon do a recap and forward it to him, along with any relevant documentation by Monday so that he could add this project to the Agenda for, and discussed at, the next committee meeting on Tuesday. The accompanying documents are not final but give a very good indication of the proposal. They include:
Google site plan
Proposed site plan
Proposed Floor plan
Proposed elevations”’[56]
[56]JCB 1695-1696
81The recap letter demonstrates that in 2016, Ms Berridge understood her brief from the Metcalfs was to build a dwelling and a hangar with ‘a helicopter landing site as an extension of [the] building’.[57] She noted the helicopter landing site required a permit because it was not 500 metres from the nearest residence. She had informed Mr Curnow that the Metcalf’s future intentions included a helicopter charter business from the site, changing the dwelling to a commercial building, and building a new residence.
[57]JCB 1695
82Mr Metcalf said he never had any intention of doing charter work.
83However, Ms Berridge said what she told Mr Curnow at the pre-application meeting was what Mr Metcalf had told her. She said, ‘we got the information from the client as to the types of things that they wanted to look at as options’.[58]
[58]T777, L31 – T778, L2
84In relation to the ‘future intention’ to change the residence to a commercial business, she explained ‘[t]hat was if they decided that they wanted to move forward with possibly a charter’.[59] She said, after receiving the feedback from Mr Curnow that the future commercial operation raised some concern from a policy perspective, ‘that’s when [the Metcalfs] decided to just go ahead with the residence’.[60]
[59]T778, L28-30
[60]T779, L27-28
85Ms Berridge’s evidence was unequivocal. She had no interest in the proceeding. Her evidence provides an explanation as to why rumours had circulated within the community about the possibility of a charter business. By the time the Metcalfs made their permit application in November 2017, they appear to have decided against pursuing a charter business, but I accept Ms Berridge’s evidence that, at the time of her pre-application meeting with Mr Curnow, a possible future charter business was one option the Metcalfs were exploring, and had raised with her.
Council officers’ recommendation
86Ahead of the 24 April 2018 council meeting, Ransce Salan, general manager of the planning and development department at the SCSC, provided a recommendation on the Metcalfs’ permit application. In his report he notes ‘There are no buildings and works proposed as the helicopters are able to depart and land from the existing concrete pad adjacent to the existing shed/hangar’.[61] The report says the proposed use achieves an acceptable planning outcome, subject to a reduction in the movements proposed and the hours of operation. He recommended the application be approved subject to conditions.
[61]JCB 498
87This recommendation raised a question in the plaintiff’s mind as to whether the concrete apron and hangar could avoid the need for a development permit by being de-coupled from the Metcalfs’ permit application and identified as being for agricultural or farming purposes, when they would have required a development permit had they been identified as helicopter infrastructure at the time the building permit was obtained.
The April council meeting
88The April meeting occurred at about 6.00pm. This was the meeting at which councillors would debate, consider and vote on the Metcalfs’ permit application.
89The plaintiff said it was unusual to get this number of objections other than for ‘things on The Esplanade in Torquay or at Lorne’.[62]
[62]T232, L2
90At the SCSC meeting, the plaintiff questioned whether there was a requirement for a permit for both a development and a use in this circumstance.
91The reason the use permit was not sought at the time of the development was explained by Mr Metcalf. He wanted to press forward with the development of the land, and was prepared to accept the ‘as of right’ flights of eight per month, and the inconvenience of towing the helicopter to and from the paddock in order to move on with things. He said:
“The process seemed to be getting bogged down and I was keen to move out of our current dwelling that we were in on The Esplanade and I wanted a home to move into.[63]
[63]T721, L15-18
92He wrote to Ms Berridge on 23 May 2016, after receiving the Metcalf recap letter and said:
“Do we need to just agree to the 8 movements a month for the helicopter? Only to remain within their planning regs and to keep things moving forward. The reality is for private use it may only be a couple of times a week.”[64]
[64]JCB 226
93In response, Ms Berridge had noted she would ‘email Roger the revised flight movements’.[65] Presumably, these were the flight movements in keeping with the ‘as of right’ flight movements allowed under cl 52.15 of the Planning Scheme.
[65]JCB 226
94As is clear from the contemporaneous documents, it was always Mr Metcalf’s intention to use the hangar for his helicopter or helicopters, and it was always his intention to expand his helicopter use beyond commuter flights. Indeed, in the Metcalf Submission, the Metcalfs say Mr Metcalf would pursue utility work, which is Mr Metcalf’s ‘speciality and passion’, and would work to get a seasonal contract for fire work. The Metcalfs noted the seasonal fire contract would only be for four months of the year, and for the other eight months, the helicopter would need to be operating for financial reasons.
95The Metcalfs sought the permit for four flights a day seven days a week, though the defendant says they never intended to use all those flights. They wanted the ability to access the helicopter without ‘any enforcement action and anxiety’.[66] They noted the helicopter had been primarily purchased for utility work and ‘not for the pleasure of social outings and simply [Mr Metcalf’s] commuter needs’.[67]
[66] JCB 161
[67]JCB 160
96There was no suggestion in any of the documents, nor in Mr Metcalf’s evidence, he had ever given up his intention to use the helicopter for more than eight movements a month. It was simply deferred to a later application in order to move things along.
97The issue raised by the plaintiff was whether council officers were correct in determining that no development permit had been required at the time of the building permit, and no retrospective development permit was required now that a use permit was sought.
98At the meeting, the plaintiff raised this issue squarely. She said:
“… I think it’s a very critical question because we shouldn’t be considering a use if there is a requirement for a development permit and there’s not a development permit in place or being considered as part of the use …”[68]
[68]JCB 984
99In response to her question, Mr Cathcart said the developments on the site had been allowed under the farming zone as sheds and a dwelling within a shed. The development had occurred:
“… prior to this application coming in, and they all have building permits in place so we regard them as legal sites. The fact that they are there and they now want to be used for this use doesn’t mean they need a development permit because the consent wasn’t required at the time that they were built, so they are lawfully on site.”[69]
[69]JCB 984
100The plaintiff pointed out Practice Note 75 under the Planning Scheme says any development, buildings and works related to the use of land for a helicopter landing site or a heliport requires a planning permit, irrespective of whether the use is exempt. She said this ensures the impacts of the development can be adequately assessed, and she asked how confident the council officers were that no development permit was required. Mr Cathcart responded that the development was already on the site and:
“… if someone wants to come along later and use the slab out the front to put a helicopter on it, if someone wants to put a helicopter inside the shed then they can do so …”[70]
[70]JCB 985
101This answer did not satisfy the plaintiff. She had faced a similar situation in a development at McAdam Park. In that case, VCAT had taken a different view from the SCSC about what permit was required.
102Some councillors spoke in favour of the Metcalfs’ permit application. Cr McGregor, who supported the application, proposed an alternate motion which imposed some conditions on the use permit. Cr Goldsworthy noted he had gone out to the site and walked away feeling satisfied, and was happy to support the motion. Cr Duke had also attended the site to hear a helicopter take off and land and said, ‘I could hear the sounds quite clearly but it wasn’t a sound that was a real worry to me or it was deafening loud’[71] and so he was supporting it.
[71]JCB 987
103The plaintiff then spoke again. She said:
“… if you can build a massive shed that will hold three helicopters and you can build a landing pad and then you can say that is for farm use and five minutes later you say it’s for helicopter use and because it didn’t get a planning permit in the first instance because it was for farm use and then all of a sudden it becomes helicopter use, how does that work can I do that on my land I’ve got 100 acres. Can I build a massive shed and put three helicopters in it? No, I wouldn’t have thought so.
Can I start a helicopter business? No, surely not. That makes a nonsense of the planning provisions.”[72]
[72]JCB 988
104She then went on to say she would not be supporting the Metcalfs’ permit application and would strongly suggest to councillors the application not be approved. She said:
“I’m not necessarily saying it is the problem of the applicants that there is no permit for the development, I believe they may well have been told they didn’t need a permit and I think that is wrong so I think we should just take a big breath and look at it again …”[73]
[73]JCB 988
105The motion was defeated by a five-to-four vote. This prompted the defendant to say ‘[s]ee you in VCAT’.[74]
[74] JCB 989
106Cr Smith then proposed an alternate motion, which was to seek further information from the applicants. Cr Smith and Cr Coker both spoke to the new motion, both expressing concern there remained confusion and a lack of clarity around the purpose of the helicopter flights.
107The plaintiff spoke to support the new motion:
“… You know, I am just about orderly planning and that’s - I'm not saying, I'm certainly not suggesting it's never appropriate to have a helicopter on a rural property certainly for people commuting to work there is precedent in VCAT and people want to fly from their home and go to Melbourne or the Mornington Peninsula or wherever they might want to go for work …
“…. It is potentially quite appropriate for people to be commuting to Melbourne from a rural property. It's potentially also appropriate to run a helicopter business from a rural property of course but, and it is also potentially appropriate to develop helicopter infrastructure on a rural property, but orderly planning requires that the development and the nature of the business and the type of the use are looked at collectively really so I don't accept that this infrastructure was there. My understanding of it is it was built a year or so ago, and it was discussed with council and my understanding is it was always thought and known to be a helicopter proposal, I don't know if that is correct or not and that is the assumption I’ve made. And so, you know I think we just have to sort of look at this collectively and say what is the purpose of that development, did it need a planning permit? Can I build a massive shed on my farm property without a planning permit and a helicopter landing site just a slab of concrete without a planning permit and say I'm going to use it for farm business and then it turns into a heliport. That doesn't sound right to me so I just think we need to get that sorted out and I like the idea that we seek further information and perhaps we seek some advice about our interpretation of the planning scheme.”[75]
[75]JCB 990-91
108The only options available to the SCSC were to reject, accept or defer the motion. Ultimately, the SCSC determined to defer its decision on the Metcalfs’ permit application to the next meeting to obtain further information.
109Because the SCSC had not made a determination within the statutory time period allowed, the applicants were able to seek a determination of the application from VCAT.
110In her evidence, the defendant said the plaintiff ‘was questioning whether [her] home had the appropriate development permit or buildings and works permit’.[76] She said, ‘It was implied that we did not have a permit for the buildings and works which meant that our home was illegal’.[77] She said she believed the defendant was ‘going to rewind the clock and have [her] home taken down’.[78]
[76]T524, L16-18
[77]T524, L20-22
[78]T525, L10
111At that meeting, the plaintiff had said, ‘I'm certainly not suggesting it's never appropriate to have a helicopter on a rural property’.[79]
[79]JCB 990
112The defendant said, ‘I thought that she was misleading the people in the room’.[80] She went on to describe her state of mind at the time:
“We don't need a permit to house our helicopters. We don't - we can garage our helicopter in the shed. We did the same thing at Kangaroo Ground and we didn't need a permit to do it there so I was already aware that there was no planning provisions to garage your helicopter, that is just a given and it's accepted by - in planning law.”[81]
[80]T525, L25-26
[81]T526, L5-11
113She said the plaintiff was ‘just complicating everything. It was – it was a really simple use permit for the helicopter where it lands and takes off and that’s what she needed to focus on’.[82]
[82]T526, L20-23
114She said when the plaintiff said the development had not got a planning permit in the first place because it was for farm use, she:
“… was really shocked … because … we didn’t need a permit, it was our home. We don’t need a permit to garage our helicopter, the permit is for the use. So the – the distortions were really upsetting to me and I was getting really, really upset that the meeting wasn’t being focussed on the planning application in front of the councillors and that was for the use permit, not for our home, not for the garage, simply just please focus on the use of where it takes off and lands and make conditions around that, how many times a week they thought was acceptable and – well that’s about all that they could really put conditions on actually, or just refuse it – accept or refuse it but please don’t bring our home into this debate because its unnecessary and there’s no planning law to do that …”[83]
[83]T527, L9-25
115There was never a question the Metcalfs required any permit, other than a building permit, to build a house. The issue for the plaintiff was whether a development permit was required for the helicopter landing site and associated helicopter infrastructure, and whether the use permit sought for the helicopter landing site – four flights a day for commuter purposes – would, or could, result in unregulated flights, pursuant to a helicopter business that was said to be exempt from regulation under the Planning Scheme.
116The only person at that meeting who considered the comments by the plaintiff revolved around the Metcalfs’ house was, apparently, the defendant.
117In response to direct questioning as to how she had made the association between the potential rejection of the Metcalfs’ permit application and the removal of her house, the defendant said:
“… what was being alleged was that we had built the infrastructure to garage our helicopter in and that is true, we did build it to put all our things in - and there's many things in the shed other than a helicopter. And what was - around the buildings and works, with the buildings and works, if they are denied or refused then those buildings and works need to be taken off the land, that's just how planning - planning laws are. So the buildings and works are for the infrastructure here and if you get - go for a retrospective permit but it's denied, then you need to remove it.”[84]
[84]T531, L31 – T532, L11
118Mr Metcalf, in his evidence, said the council meeting ‘descended’.[85] He said all the objectors were ‘pretty noisy in the gallery … A lot of the objectors were yelling at the councillors to refuse it. This is prior to the vote’.[86] He was asked whether there was any suggestion about the legality of his house and he said ‘when the councillors couldn’t agree, the planning manager said, “You’re out of time, you either need to refuse it or accept it. The legality of their home is lawful”.’[87]
[85] T736, L26
[86]T736, L27-31
[87]T737, L2-5
119Mr Cathcart’s actual words were:
“There has been some developments on that site, all of which have been developed as allowed under the farming zone so they are sheds, a dwelling within a shed all of which meet the setback requirements under the zone and they all occurred prior to this application coming in, and they all have building permits in place so we regard them as legal sites. ... they are lawfully on site.”’[88]
[88]JCB 984
120The plaintiff did not raise the dwelling at this meeting.
121Mr Metcalf said he sought clarification after the meeting from a council officer, Gerald Leddin, about whether there was any issue with his house and was told, ‘[y]our home is lawful’.[89]
[89]T737, L22
122I am not persuaded that the defendant believed her home was under threat at that meeting. Her protestations that the Metcalfs’ permit application before the SCSC was a simple matter is also disingenuous. The Metcalfs knew they would have required a development permit for the helicopter landing site in its present location if they had pursued a use permit at that time. They had been told this by Ms Berridge, following her discussion with Mr Curnow. They also knew they would require a use permit for the number of flights they wanted, which were in excess of the exemptions under cl 52.15. They had decided to defer the application for a use permit to enable their development to proceed as they felt it was getting ‘bogged down’. The fact the helicopter landing site and use permit were now the subject of some controversy could hardly have come as a surprise. The fact questions were being raised by the plaintiff and others about the order in which things had been done was entirely predictable.
123There was nothing in the plaintiff’s words or actions during that meeting that could lead a fair-minded person to conclude she had any particular attitude to the existence of a helicopter landing site, or a helicopter business, on the property. Her concern was clearly, as she stated, about ensuring a proper and orderly planning process was followed.
Events leading up to the July council meeting
124After the April council meeting, the defendant emailed councillors to ‘shed light’ on the Metcalfs’ permit application .[90] She said a brother of a councillor had trespassed onto her property to take photographs. She said:
“All of the questions raised by Councillor Wellington at Council reflected his (sic) unsolicited visit to our home. Bill Cathcart explained our home is ‘legal’, however this did not stop the attack of our home in a public setting. Some who witnessed this have reached out to say how disgusted and dismayed they were by some Councillors review of our application. Whilst I am all for a rich debate, the spectacle that was made of the professionals and the process we went through to build our shed was malicious, defamatory and offensive.”[91]
[90] JCB 1040
[91]JCB 1040
125It was clear at this point the defendant was already characterising the debate at the council meeting as an ‘attack of our home’. She said neither she nor her husband were surprised by the decision as she was ‘prepared for the attack we received on the legitimacy to live in our home in advance’.[92]
[92]JCB 1041
126She said
“By all means debate the application, but restrain yourself from making it personal and misrepresenting truth, integrity and good governance. Your failure to debate within the prescribed conduct expected of councillors was a reflection on you as our Council representatives. Your failure to decide has given us the clear road to lodge at VCAT at council cost.”[93]
[93]JCB 1041
127While the apparently rowdy behaviour of the ‘gallery’ is not recorded in the transcript of the meeting, there is no evidence of remarks made by the plaintiff, or any other councillor, that ‘made it personal’ or demonstrate a failure to debate within ‘the prescribed conduct expected of councillors’. The plaintiff was raising legitimate concerns in relation to the process and the operation of the planning scheme. The fact the defendant did not like the questions the plaintiff was asking does not make the plaintiff’s remarks or concerns unreasonable.
128The plaintiff said as much in her response to the defendant:
“My questions relate to compliance with the planning scheme in relation to heliports, helicopter landing sites and use of helicopters. They are legitimate questions by a councillor acting in a planning decision-making role in relation to helicopters.”[94]
[94]JCB 1040
129This resulted in a further email from the defendant:
“Perhaps reflect on the facts and stay on point, rather than be distracted by attempts to determine whether OUR HOME is lawful. Again, listen to the audio as that is exactly the spin you were taking and that we should ‘turn back the clock and make them get a permit for the development’. This is our home. I would never trespass on yours, frighten your children and then question the validity of your home based on a lack of planning understanding, speculation, gossip and malice.
Again, what is lost on us is the trespassing, breach of our privacy and the way our application was managed at the Council meeting.”[95]
[95]JCB 1039
130The plaintiff reiterated she knew nothing about the alleged trespass and did not intend to engage in any further email debate.
131The following morning, 8 May 2018, the defendant emailed the plaintiff again, copying in all other councillors. She wrote:
“Good Morning Heather,
You and others can google – a link to the shed company central steel produced as their advertising. They can call our shed whatever they like, not our business.
What is our business is what you have begun with the on-line and public hate groups threatening to ‘tear our shed down’ on public forums and to us directly.
We attended your rally last night. It was cancelled. We attended with 30 others, all there to listen to the truth and support the helicopter, what will be their community asset.
Your details are all over the ‘No Heli-Port’ publicity for the ‘objectors’.
Again, this is our home and the personal commentary you and others have incited into the legality of our home/shed has begun a malicious witch hunt that has disgusted normal sound minded mothers and fathers within our community, the non-haters. And there are far more of those.
We have been told your objections meeting, the one you are assisting to organise, is on another night.
Whilst I too am happy that you do not continue to email, I do need to inform you of the destructive movement you have incited and ask again that you please consider the application in front of you and get your facts correct.[96]
[96]JCB 1054
132The defendant says this was a “‘line in the sand’ moment, when the plaintiff could have sought to placate a volatile situation, by opting out of the entire process of the Metcalfs’ permit application. The defendant submits that a councillor acting impartially would have sought to calm down those people who wanted to tear the defendant’s house down. Instead, in the defendant’s submission, the plaintiff ‘took sides’ and inflamed an already volatile situation.
133It is clear in this email communication that, far from the plaintiff ‘making it personal’, it was the defendant who personalised and inflamed the situation by accusing the plaintiff of ‘malice’, beginning online and public ‘hate groups’, and inciting a ‘destructive movement’. This is extreme language.
134In her communications with community members, the plaintiff was at pains to be fair to the Metcalfs, noting they may have been given incorrect advice from the SCSC and making it clear she had not reached a concluded view on the application. In fact, the plaintiff’s conduct demonstrates she was doing exactly what the defendant says she should have done ꟷ attempting to clarify the claims the objectors were making by asking the SCSC for answers.
135The assertion by the defendant that the plaintiff’s actions had ‘begun a malicious witch hunt that has disgusted normal sound-minding mothers and fathers within our community’, is objectively untrue.[97] Community members had lodged objections well before the plaintiff said anything about the Metcalfs’ permit application.
[97]T81, L14-16
The objectors’ meeting
136After the April council meeting, the plaintiff was contacted by some of the objectors, including Tarney Spencer and Norm Adams. The defendant relies on the plaintiff’s contact with some of the objectors to demonstrate that the plaintiff took sides with the objectors and was partisan, fixed in her view and unable to bring an impartial mind to the Metcalfs’ permit application. Somewhat paradoxically, it is also relied on as evidence the plaintiff was the person who created the ‘witchhunt’ by feeding misinformation to objectors.
137In an email to Dr Spencer on 28 April 2018, the plaintiff wrote:
“I am happy to help the community as needed. I have not formed a final view as to what sort of activity is appropriate on the site, or the appropriate frequency (if any) of helicopter movements. My objective is to ensure appropriate processes are in place so both Council and the community understand the nature of the application and all parties have a fair chance to contribute their views.”[98]
[98]JCB 1005
138She went on:
“I agree it would be useful for the community to form an incorporated association to give it a focus and a cohesive voice in relation to its current planning concerns (and potentially other matters of community interest) … .”[99]
[99]JCB 1005
139The plaintiff was also contacted by Mr Adams, one of the Metcalfs’ neighbours, and an objector. In his email of 25 April, Mr Adams referred to ‘positive and friendly eye contact’ between the Metcalfs and the planning officer and said, ‘[w]e believe that there has been an abuse of process’.[100] In her response, the plaintiff was careful to point out her concern was ‘proper process in the assessment of planning applications’.[101] She noted her opposition to ‘piecemeal’ development and pointed out:
“ … It is not necessarily the applicant’s fault if this is occurring – he may have been given incorrect guidance by our planning department.
To be fair to the applicant, it was not he who called for the resolution to be changed, it was the planning officer who rightly pointed out that we needed to either defer, reject or approve the application … .”[102]
[100]JCB 1003
[101]JCB 1001
[102]JCB 1002
140The assertion by the defendant that the plaintiff caused others to believe there had been an abuse of process is demonstrably incorrect. Others in the community had already formed this view and it was the plaintiff who was attempting to ensure the Metcalfs were not inappropriately blamed for the advice given by council officers. In this email, Mr Adams appears to have a view there was an inappropriate friendliness between the Metcalfs and the SCSC and an abuse of process. The plaintiff provided no support for this view and it cannot be reasonably maintained the plaintiff caused Mr Adams or anyone else in the community to form this view.
141The plaintiff informed Mr Adams she had been contacted by another community member, asked whether they had formed a group, and said she would be happy to meet with them to ensure they had a clear view about the process.
142She provided links to the Consumer Affairs Victoria website for step-by-step instructions on setting up an incorporated association and attached a sample ‘statement of purposes’. It was put to her that it was not a councillor’s role to help objectors set up an incorporated association.[103] The plaintiff disagreed and said she had done it with numerous community groups because most of them ‘don’t know how to do it … We’re elected as representatives of the community, we’re there to help them’.[104]
[103]T354
[104]T354, L14-23
143It was put to her ‘it doesn’t look independent or impartial’.[105] She said:
553Debra Pierlot met the plaintiff when they were both students at Coburg High School and has known the plaintiff for approximately fifty years. After Ms Pierlot’s retirement from nursing in 2020, Ms Pierlot said she sees the plaintiff ‘probably four times a week’ and maintains a close relationship with the her.[305]
[305] T481, L22-23
554Ms Pierlot described the plaintiff as being ‘the most honest person I know’ and said that ‘she’s held in very high regard by everyone’.[306]
[306] T482, L9-10
555Brian Edwards, a retired chief superintendent of police at Altona North and recipient of an OAM in 2001, met the plaintiff through his wife. He said the plaintiff was someone ‘held in the very, very highest esteem’.[307] Mr Edwards described the plaintiff as having an ‘abundance of expertise in both medical matters, public administration and the law’.[308] Mr Edwards said that the plaintiff ‘just by her very nature she attracts the very, very best of friends’.[309]
[307] T490, L31 ꟷ T500, L1
[308] T489, L11-13
[309] T489, L13-14
556He described her reputation as a councillor as ‘excellent’ and said the plaintiff ‘epitomises everything I would expect from a representative in local government’.[310] He said the plaintiff was ‘a person of the highest integrity’.[311]
[310] T489, L17-18
[311] T490, L16
557Hugh McKenzie, a retired lawyer, has known the plaintiff for thirty-five years. Mr McKenzie said that the plaintiff had the reputation of being a ‘worthwhile citizen’,[312] and ‘someone who helped everybody’,[313] ‘whether they were neighbours or people who were ill or people who were associated or were ratepayers and had some involvement with Heather’.[314] He said, the plaintiff always worked for ratepayers ‘to save money and get justice for someone if there was a problem in the way a council was heading’.[315]
[312] T495, L28
[313]T494, L6
[314] T494, L3-6
[315] T496, L30 ꟷ T497, L1
558He said he had never heard any suggestion of dishonesty or poor behaviour from the plaintiff.
559Mr McKenzie said his brother-in-law, who lives in Torquay, told him that the plaintiff was ‘doing a good job on the council against considerable odds’.[316] Other lawyers he knew thought the plaintiff was a person of integrity.
[316] T493, L27-28
Extent of publication
560The defendant concedes that publication of each matter has been made out, but submits the extent of publication is exceedingly limited.
561Darren Noyes-Brown read each of the publications and discussed the posts prior to the election on 23 October 2020 with about ten to 12 people.
562Ms Armstrong also read each of the posts, on one occasion towards late November.
563Janine Fisher read the seventh publication.
564The Facebook page was liked or followed by approximately ninety-five to one hundred people, but this does not mean that the posts were read by all the followers of the page. The page was publicly accessible, so may have been read by persons who did not ‘follow’ or ‘like’ the page.
565The plaintiff has not pleaded an inferential case for publication to any greater audience. The mere availability of the material on the internet does not establish the breadth of its distribution. There is no evidence as to the general availability of the material in response to, for example, Google searches of the plaintiff’s name, to support an inference of further publication.[317]
[317]McDonalds v Dods [2017] VSCA 129 at paragraph [48]
566The defendant submits there is evidence of only two people reading each of the publications and a third reading one of them.
567It is apparent from the comments on the posts, the crossover between the defendant’s Facebook page and other community pages, and the plaintiff’s own Facebook page, that the audience for the posts extended beyond two or three people. There is evidence that Cr Schonfelder had read the posts, as he told the plaintiff they were all true.
568I am satisfied that in a small community such as Surf Coast Shire, and particularly in the context of a council election, there would be a significant grapevine effect at play.[318] Mr Noyes-Brown discussed the posts with others and it is likely others also discussed the posts within the community. However, I am not satisfied the grapevine effect extended beyond the Surf Coast Shire.
[318]Ley v Hamilton (1935) 153 LT 384 at 386 (Lord Atkin); Crampton v Nugawela (1996) 41 NSWLR 176 at 193–5 (Mahoney A-CJ) and 198 (Handley JA); Cassell & Co Ltd v Broome [1972] AC 1027 at 1071 (Lord Hailsham of St Marylebone LC); Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388, 416 at paragraph [88] (Gummow J); Prendergast v Roberts [2012] QSC 144 at paragraph [31] (Mullins J)
Effect of publication on the plaintiff
569The plaintiff gave compelling evidence that the effect of the publications on her was significant and continues to this day. She became preoccupied with the defendant’s attacks on her and felt they would not stop. Even when experiencing a significant health condition in 2021, her thoughts were consumed with the defendant’s attacks against her.
570The publications have caused her sleep disturbance.[319]
[319]T467 and T478
571She has been hurt and upset and this has been observed by friends and relatives. Ms Debra Pierlot, who speaks with the plaintiff every day, described her as ‘consumed with distress’.[320]
[320]T484, L27
572The plaintiff was worried the publications would damage her professional reputation.[321]
[321]T469
573She said:
‘I chair the Research and Ethics Committee at Barwon Health. I’ve been selected for that because I’m viewed in my profession as a person who is ethical, and to have something like that on a public Facebook page was very, very upsetting for me.’[322]
[322]T169, L24-28
574Her hurt and distress were apparent when she gave her evidence. She felt that if she did not take action, the attacks would escalate.
Impact of publication on reputation
575There is evidence that the publications had an impact on the plaintiff’s reputation. Facebook user ‘Sharyn Faulkner’ commented on the first publication, ‘Good luck Kirsty, time to end this vindictive person’s reign of bullying’.[323] To that comment, the defendant responded, ‘thank you it’s time. I am feeling the wave of support and people standing with me’.[324]
[323]JCB 2126
[324]JCB 2126
576Cr Schonfelder ‘liked’ all the publications and told the plaintiff they were ‘all true’.[325] In an email he sent to the plaintiff on 16 November 2020, he wrote:
‘Kirsty’s posts are factual and I am unsure what malicious comments you are referring to.’[326]
[325] T174, L14
[326]JCB 2187
577It is no doubt deeply unpleasant for the plaintiff to have to work with a colleague who has made public his view of her, by reason of public ‘likes’, on defamatory posts. Though Cr Schonfelder’s views about the plaintiff may not have been formed as a result of reading the defendant’s posts, the opportunity to publicly display his views about the plaintiff by liking the posts would not have existed had the posts not been uploaded. This public demonstration would add to the general hurt and embarrassment the plaintiff feels. Comments and ‘likes’ are a natural and probable consequence of publication on Facebook.
578The defendant submits the plaintiff is a public political figure who must expect a degree of public criticism, fair or unfair. The defendant criticises the plaintiff for bringing a claim over posts that were seen by only a ‘handful’ of people.
579Any public figure, even in local council, would be aware that a degree of criticism, fair or unfair, comes with the job. The plaintiff is an experienced, sensible person who has been involved in public life for a decade, and in public administration and governance for most of her professional career. No doubt she has experienced her share of criticism, fair and unfair, during that time.
580These posts go well beyond the sort of ‘unfair’ criticism one might expect as a local councillor. They make allegations of corruption, obsession, lying, and fraud.
581To understand the events that gave rise to the posts requires a careful examination of the evidence and a review of many documents. Most people reading the defendant’s posts will not be in possession of all the facts necessary to reach a well-founded conclusion. They will form a general impression.
582It is apparent from the evidence before the Court that the plaintiff enjoys an excellent reputation. The fact she has been elected to local office since 2012 demonstrates she is held in high regard by her community. The defendant points to her resounding re-election in the 2020 election as evidence the posts did not harm the plaintiff’s reputation. However, most of these posts were published after the election, and therefore the plaintiff cannot be comforted in the knowledge that they have not damaged her standing in the community. I accept the unknown impact of the posts, at least until the next election, will cause her a degree of distress and hurt which should sound in damages.
583However, I am not persuaded that these posts caused any widespread or significant actual harm to the plaintiff’s otherwise excellent reputation.
584Fortunately for the plaintiff, the posts are written in a way that would cause most reasonable and fair-minded readers to approach the allegations with a significant degree of scepticism. A fair-minded, reasonable reader would not assess them to be a balanced and fair account, but would rather see them as self-serving and histrionic.
Aggravated damages
585The plaintiff claims she is entitled to aggravated damages to compensate her for the increased hurt and humiliation she has experienced as a result of defendant’s conduct up to the date of judgment.[327]
[327]See for example Praed v Graham (1889) 24 QBD 53 at 55 (Lord Escher MR); Broome v Cassel & Co Ltd [1972] AC 1027 at 1071 (Lord Hailsham of St Marylebone LC); Cerutti v Crestside Pty Ltd [2014] QCA 33 at paragraph [37] (Applegarth J).
586The test is whether the defendant’s conduct was improper, unjustifiable or lacking in bona fides.[328]
[328]Triggell v Pheeney (1951) 82 CLR 497 at 514 (Dixon, Williams, Webb and Kitto JJ)
587The plaintiff submits that the defendant’s attack on her was motivated by malice. The defendant was primarily concerned to avoid any scrutiny or debate of the Metcalfs’ permit application and did so by ‘blasting’ anyone who disagreed with her by labelling them as a bully spreading ‘misinformation’. She dressed this up as a legitimate fear for her home, but this was not her real concern. In fact, she wanted to avoid a legal challenge. She had an improper purpose which drove all her actions. She then engaged in a gratuitous and wrongful denigration and vilification of the plaintiff which is apparent from her conduct, which was ‘sensationalist, sardonic and nasty’. She harbours ill-will and spite toward the plaintiff, who she sees as the genesis and driver of the negative community sentiment about her property. She also wanted to extract some form of public revenge on the plaintiff. She has never genuinely sought to ‘correct misinformation’ and tellingly targeted the plaintiff almost exclusively and did not target those she alleges were engaging in the harassment and bullying she says she was subjected to.
588The plaintiff further submits the Court ought to place significant weight on the manner in which the defendant conducted her case. She has relied on a defence of truth, she has maintained the posts on her Facebook page and, under cross-examination, alleged that the plaintiff acted with dishonest and improper motives and brought this proceeding, not to address the defamation she has endured, but as a reflection of her ‘win at all costs attitude’.
589These sorts of allegations clearly impacted the plaintiff. When asked in re-examination how they made her feel, she became emotional and said:
‘I feel sick and I feel outraged and I feel completely attacked, and unfairly attacked.
…
I’m sorry, you shouldn’t ask me how I feel about it, it’s – sorry. I’m all right until I get asked how I feel.’[329]
[329]T447, L13-18
Findings
590Although the publications were posted on a public Facebook page and remain available today, there is no evidence that publication has been of broad scope or the posts have been widely read. The nature of the posts would tend to render them of interest primarily to persons within the local community and Surf Coast Shire. The name of the Facebook page, initially referencing Winchelsea Ward and subsequently referencing Surf Coast, would also serve to confine the people likely to click onto the page to those within the local community.
591The nature of the posts would also reduce what might otherwise be a more significant grapevine effect. Within the local community, they generated some interest, particularly in the context of the election. However, the posts are not likely to generate interest among a broader audience.
592People who did not know the plaintiff would, when reading the publications, be likely to form a view that they were published by the defendant in pursuit of a self-serving campaign and would likely approach the allegations made with a degree of scepticism. A reader would likely appreciate that the version of events posted is only one side of the story.
593Nevertheless some people would consider they were true and some people would consider they may be true or may contain elements of truth.
594The existence of the posts, particularly the cumulative nature of them, was likely to cause significant stress and hurt to the plaintiff and give rise to a reasonable fear that they would continue and escalate in content.
595The defendant, by her conduct, has aggravated the hurt and embarrassment felt by the plaintiff and has aggravated the harm done by the original posts. She has maintained a defence of truth, maintained the posts on her Facebook page and ventilated allegations about the plaintiff’s motives. An award of aggravated damages is appropriate.
Assessment
596The defendant submitted the plaintiff has chosen to be part of the hurly-burly of council life, is no stranger to the media, and is often quoted in the media ‘furthering her agenda’.
597Lee J stated, in Palmer:
‘Political figures occupy a special place in our system of representative and responsible government. Insofar as a subset of political figures (serving members of Parliament) are concerned, this special place carries with it protection against civil or criminal liability for actions done or statements made in the course of their legislative duties. Political figures more generally have a position which allows them to further their agenda, and potentially influence the course of economic and social policy and current events. But balanced against these considerable privileges are the costs or downsides of a political profile, including the reality that such figures must expect a degree of public criticism, fair or unfair, not usually visited upon other members of the public.’[330]
[330]Palmer (supra) at paragraph [524]
598The defendant submits nominal damages in line with the award in Palmer are appropriate in this case.
599The plaintiff submits an appropriate award is $150,000 to $200,000.
600There are well-established principles for assessing damages in defamation, such principles helpfully summarised by John Dixon J in Wilson:[331]
(a) Damages should provide consolation for hurt feelings, damage to reputation and vindication of the plaintiff’s reputation;[332]
(b) Damages ought to reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgement;[333]
(c) The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff. The award must be sufficient to convince a bystander of the baselessness of the charge;
(d) There must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded;
(e) The extent of publication and the seriousness of the defamatory sting are pertinent considerations;
(f) In determining the damage done to a plaintiff’s reputation, the Court should also take into account the ‘grapevine’ effect arising from the publication;[334]
(g) It is well accepted that injury to feelings may constitute a significant part of the harm sustained by a plaintiff;[335] and
(h) Aggravated damages are a form of compensatory damages and, where appropriate, form part of the general damages awarded to a successful plaintiff for non-economic loss, designed to reflect aggravation caused to a plaintiff’s hurt or injury by reason of some conduct of the defendant.
[331]Wilson v Bauer Media Pty Ltd [2017] VSC 521 at paragraph [59] (Dixon J) (‘Wilson’)
[332] Belbin & Ors v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 at paragraph [242]
[333] Wilson (supra) citing Carson v John Fairfax & Sons Ltd (1993) 178 CLR 4
[334]Lower Murray Urban and Rural Water Corp v Belbin; Lower Murray Urban and Rural Water Corp v Marciano (2014) 43 VR 348 at 388-390
[335] Wilson (supra) citing Carson vJohn Fairfax & Sons Ltd (supra) at 71
601Each case necessarily turns on its own facts. Other cases can offer some guidance but recent decisions in relation to political figures demonstrate how variable the award of damages can be.[336] Awards of damages where there has been defamation within a small community have also varied widely, depending on the circumstances.[337]
[336]See for example Palmer, where nominal damages of $20,000 were awarded to the Western Australian premier; Webster v Brewer [2020] FCA 1343 (‘Webster’), at paragraph [58], where damages of $350,000 were awarded to a member of the House of Representatives after publication of ‘the most serious kind of defamatory imputations that could be levelled at an individual’; Dutton v Bazzi [2021] FCA 1474, where damages of $35,000 were awarded before the findings on imputation were overturned on appeal (Bazzi v Dutton [2022] 289 FCR 1).
[337]See, for example, Kumar & Anor v Ragupathy [2021] VCC 532, where damages of $100,000 were awarded to plaintiffs who were defamed to other members of the local Australian Indian community, where allegations of corruption and branch stacking were made; Cables v Winchester [2018] VSC 392, plaintiff awarded $200,000 after being defamed on a Facebook page within the local community of Albury Wodonga, where allegations of mistreatment of staff at McDonalds franchises owned by the plaintiff were made, prompting investigations by union and head office; Zuchowski v Howe; Howe v Cavendish Properties and Zuchowski [2022] VCC 1604, where a property developer who was defamed on a local-area Facebook page in Patterson Lakes was awarded $205,000 over allegations he was corrupt and had bribed local council; Peterson v Simopoulos [2021] VCC 1080, where defamatory allegations of misuse of unit owners’ money and vandalism were circulated within an owners corporation was awarded $40,000.
602In the particular circumstances of this case, it is not appropriate to assess either the hurt to the plaintiff’s feelings, or the harm to her reputation as part of ‘the rough and tumble of politics’. A local councillor is of a different order than other elected representatives for whom the political role a full-time profession. Local councillors do not have the many privileges afforded other politicians, including parliamentary privilege.
603The plaintiff is in a position where her professional work, as well as her work as a councillor, depends upon her honesty and integrity. To perform her function as a councillor, she requires the community to have confidence in her. To obtain and perform her work in medical and legal governance, her clients must be confident she is a person of sound ethics and integrity. Were there to be a significant challenge to her ethics and integrity, it would affect all aspects of her professional life.
604However, it is significant that the publications were likely to be of limited public interest beyond the local community, and their publication was of limited scope, albeit made on a public Facebook page. It is also significant that the barrage of posts, day after day, created the opposite impression to that which the defendant sought. Instead of demonstrating she was the ‘bridge and arrow’, unleashing her ‘truth’ upon the community to set the record straight, the cumulative effect of the posts, and the sensationalist and ‘snarky’ tone used by the defendant, demonstrated it was she who had a vendetta against the plaintiff. The allegations would have had far less impact than if they had been more circumspect in their tone, or than if they had been published by a respected journalist or a credible news organisation.[338]
[338]French v Fraser (No 3) [2015] NSWSC 1807 at paragraph [90]’; also Webster (supra) at paragraph [59]
605It is also relevant to the consideration of damages that the plaintiff is a well-established person within the community and has been a councillor for ten years. Many community members are likely to have formed views about her which are unlikely to be swayed by partisan posts. The defendant, at least according to her own evidence, is somewhat reviled within the community.
606Some members of the community accepted the posts as true and other members may have considered them credible, particularly those who were unfamiliar with the details of the Metcalfs’ various applications or did not know the plaintiff.
607It is important, therefore, that the award of damage vindicates the plaintiff’s reputation and demonstrates the baselessness of the defendant’s allegations, while ensuring there remains a rational relationship between the harm the plaintiff has sustained and the damages awarded.[339]
[339]Hayson v Age Co Pty Ltd (No 2)[2020] FCA 361 at paragraph [169]; Wagner v Nine Network Australia Pty Ltd[2019] QSC 284 at paragraph [223].
608I accept the plaintiff’s evidence, and the evidence from other witnesses called in support of her case, as to the impact the posts have had on her life. I accept they weighed heavily on her, impacted her sleep, caused her and continue to cause her great stress, and that she worries that people might believe the allegations and question the very aspects of her personality and professionalism she most prides herself on – being an ethical and transparent person.
609In this case, the hurt and embarrassment are a significant component of the damage the plaintiff has suffered.
610Having regard to all the evidence and weighing up the various factors I must consider, I consider $100,000 is an appropriate award of damages, including aggravated damages.
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