Allen v Lloyd-Jones - [2014] NSWDC 40 - NSWDC 2014 case summary — Zoe

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Allen v Lloyd-Jones

[2014] NSWDC 40

District Court of NSW|2014-03-05

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Court

District Court of NSW

Decision date

2014-03-05

Source

Original judgment source is linked above.

Judgment (29 paragraphs)

[1]

Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 Newsgroup Newspapers Ltd & Anor v Campbell [2002] EWCA Civ 1143 Pamplin v Express Newspapers Ltd (No. 2) [1988] 1 All ER 282 Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 Shepherd v Walsh [2001] QSC 358 Thoday v Thoday [1964] P 181 Tiufino v Warland (2000) 50 NSWLR 104 Trad v Harbour Radio Pty Ltd (No 2) [2013] NSWCA 477 Triggell v Pheeney (1951) 82 CLR 497 Texts Cited: Brown on Defamation, 2d (Thomson Reuters) Tobin & Sexton, Australian Defamation Law & Practice (LexisNexis) Category: Principal judgment Parties: Plaintiff: Anthony James Allen Defendant: Laurel Clare Lloyd-Jones Representation: Plaintiff: Mr B A M Connell / Ms A R Power Defendant: Mr C A Evatt Plaintiff: Andrew Warren & Associates Defendant: Carters Law Firm File Number(s): 2009/334582 Publication restriction: None

[2]

Introduction 1The plaintiff, the Mayor of Bega, commenced proceedings for defamation on 14 April 2009 for publication by the defendant of a letter dated 7 February 2009, addressed to the Honourable Nathan Rees, at the time the Premier of New South Wales. This letter described the events leading up to, and following, the circumstances in which the Bermagui home of Mr and Mrs Campbell, indigenous Australians, had been invaded by a group of white youths in the early hours of the morning in October 2006. The plaintiff had had a meeting with Mr and Mrs Campbell as part of the community's response to the ongoing problem of racial tensions. Mr and Mrs Campbell, dissatisfied with the outcome, complained to the Ombudsman. 2When the plaintiff saw their complaint letter, he telephoned Mrs Campbell and very shortly afterwards there was a meeting. The defendant's description of this telephone call and meeting in the 7 February 2009 matter complained of was the subject matter relevant to the plaintiff's defamation claim. 3The 11-day hearing ("the first hearing") commenced on 19 July 2010. On 9 May 2011, Colefax SC DCJ awarded $50,000 general damages and $15,000 aggravated damages for publications of the matter complained of to the Australian Broadcasting Corporation, the Sydney Morning Herald and two of their journalists, as well as to the 17 members of an action group known as the Committee for Reconciliation and Justice ("the Committee") ( added during the first hearing: T 41). 4The circumstances in which the judgment of Colefax SC DCJ was set aside in part, and the proceedings remitted for rehearing on the issues outlined below, are set out in Lloyd-Jones v Allen [2012] NSWCA 230 at [86]-[87] and Lloyd-Jones v Allen (No 2) [2012] NSWCA 315. Leave to appeal to the High Court of Australia was refused: Lloyd-Jones v Allen [2013] HCATrans 66. 5There are two issues in this retrial: the defence of justification pleaded to two of the four imputations, and a fresh assessment of damages. There are two reasons for the reassessment of damages, as opposed to some other alternative, such as reducing the damages awarded at the first trial. The first is that the defendant's common law qualified privilege defence succeeded on appeal in relation to the publication to the 17 committee members (agreed to have been the most significant publication in terms of extent of publication and hurt to feelings). The second is that this retrial is limited to the defence of justification pleaded to two of the four imputations conveyed by the matter complained of. If the defence fails for these two imputations, damages must be reassessed on the basis of the publication to the broadcasters and journalists as the publication to the Committee was made on a protected occasion. If the defence succeeds for these two imputations, I must take this into account when assessing damages for the remaining two imputations which are not the subject of these proceedings. 6Although the letter is addressed to the Premier of New South Wales, the plaintiff has never claimed damages for publication to him. The extent of publication the subject of these proceedings is limited to the two news organisations referred to at the end of the letter, namely the ABC "Four Corners" programme and the Sydney Morning Herald, as well as to two journalists in those organisations, namely Sarah Curnow and Joel Gibson. There is also a claim of "grapevine effect".

[3]

Background 7The events the subject of the matter complained of start with the escalation in 2006 of racial tensions in the Bega Valley Shire, leading up to what has been described throughout this case as a "home invasion" of the dwelling house occupied by the Campbell family, residents in the Bega Valley Shire for many generations. The situation became tense in early October 2006 after unknown persons sprayed graffiti on a bridge used by young indigenous Australians for fishing, saying: "Nigger, nigger, nigger - the KKK's getting bigger every day. You stink, so go and have a wash" (Exhibit D). There was also a confrontation at the bridge, in which Mrs Campbell, the mother of one of the indigenous youths, had successfully intervened. 8At about 2 am on Sunday October 8, 2006 the Campbell family was awoken by over 25 intoxicated white youths coming onto their suburban home and garden, waving iron bars and shouting "Come out you black coons, we're going to get you" (Exhibit D). Other Bermagui residents, including the family next door, were also awakened. There were children present, and they were terrified. Mr Campbell telephoned the police. The police arrived at 3.15 am, by which time several young people had already been injured. Mrs and Mrs Campbell's teenage sons, one of whom had been taken to Moruya Hospital with serious eye injuries caused by being hit over the head with an iron bar, were charged with affray, but no charges were laid at the time against the white youths, who had been permitted by police to drive away from the scene, despite at least one driver being inebriated. 9These events caused concern. Mr and Mrs Wells, neighbours of Mr and Mrs Campbell, arranged a meeting for them with the Mayor and Deputy Mayor at the Wells' home. This meeting was described by Mr Connell in his submissions as having been very friendly (written submissions, paragraph 2(e)). Practical assistance, such as removal of racist graffiti, was provided subsequent to this meeting. 10However, Mr and Mrs Campbell were not satisfied with the adequacy of the response to their concerns. They wrote to the NSW Ombudsman on 22 October 2006 (Exhibit D), asking why the white attackers were permitted by police to drive away despite being drunk, and why their sons had been charged before any of the white youths were interviewed or charged. Mr and Mrs Campbell asked the Ombudsman to "look into this matter on our behalf", adding that the Mayor and Deputy Mayor had "initially promised their support to look into this matter however there has been no further response or action"(Exhibit D). Mr and Mrs Campbell also claimed that they had been asked at this meeting not to speak to the media "for fear of bringing disrepute to our town's name and further fuelling the incident" (Exhibit D). 11This letter came to the plaintiff's attention on 26 October 2006. His evidence in the first hearing was that he was "very, very, very, very upset" (T 30) when he read it. He telephoned the Deputy Mayor and then drove from Bega to her home, on the outskirts of Bermagui. He told the Deputy Mayor he had come to Bermagui intending to meet with the Campbells that day. She went with him. He then drove to a petrol station in Bermagui, within sight of the Campbell home, to pick up a Mr Manns, whom the Deputy Mayor had telephoned from her home to invite, as he had prior experience as an Aboriginal liaison officer. The Deputy Mayor also invited Mr Wells, at whose home the previous meeting had taken place. 12When they picked up Mr Manns at the petrol station, the plaintiff and the Deputy Mayor suddenly realised that neither of them had rung the Campbells to arrange the meeting they had decided to have that afternoon. The plaintiff then telephoned Mrs Campbell from his car at a petrol station in Bermagui near the Campbells' home, asking Mrs Campbell if he and the Deputy Mayor, who was with him in the car, could come to her home for a "yarn" or a "chat" about their letter to the Ombudsman. 13Whether this meeting was agreed to by Mrs Campbell during the call is disputed, as is whether or not the plaintiff asked for a meeting in the next ten minutes. It is the evidence of the phone conversation which forms the subject matter upon which issues for this rehearing concerning imputations (a) and (c) are based. Mrs Campbell said in her evidence that she did not agree to any meeting and did not want the plaintiff in her home. Mr Campbell was not home at the time, and thus not in a position to agree. The plaintiff says that Mrs Campbell replied that her husband was not home, but that he could be in half an hour, and the plaintiff agreed to wait in his car for his arrival. It is common ground that the plaintiff did not mention to Mrs Campbell that he and the Deputy Mayor intended to bring two other persons, Mr Wells and Mr Mann, to this meeting. 14When the plaintiff telephoned Mrs Campbell, Mr Campbell was still at the local school where he worked as a teacher's aide. Mrs Campbell's evidence is that she immediately rang her husband to ask him to come home early from the school where he was the homework supervisor, as the plaintiff and the Deputy Mayor wanted to have a meeting. She also telephoned the defendant and asked her to attend. Mrs Campbell's reasons for asking the defendant to attend are disputed by the plaintiff. 15Whether by accident or because of the Campbells' reluctance to have this meeting in their home, it took place in the laneway, about half an hour after the Mayor's telephone call. Mr and Mrs Campbell, the defendant and her husband, the plaintiff, the Deputy Mayor and Mr Mann were present; Mr Wells arrived well after the meeting had started. The events of that meeting are the subject of findings in the first hearing that are adverse to the defendant and her witnesses on all issues. Accordingly, all findings of fact in relation to that issue are to be found in the judgment following the first hearing.

[4]

The matter complained of 16Any consideration of the evidence in dispute must start with a careful examination of the matter complained of. I have added numbers to the paragraphs for convenience. 17The text of the 7 February 2009 letter is as follows: "Dear Premier, 1. I believe that a very important matter needs rigorous investigation in relation to a prevailing police culture in the Bermagui/Narooma area. A situation which I believe is duplicated throughout many regional centres in Australia. 2. Below is an in-depth commentary on one particular matter here on the far south coast of NSW and I would ask your action to further investigate the handling of this matter by the Minister of Police, the Hon. Tony Kelly MLC; and the Far South Coast Area Command in relation to the Narooma police. 3. When the Palm Island case was unfolding to the north of our land in June 2007, a case was being heard in Bega Local Court in respect to a highly regarded indigenous family, of long-standing in the Bermagui community, who were suffering, and continue to do so, because of what would appear to be a deeply concerning entrenched police culture of separate justice for Aboriginal people. 4. In early October 2006 several large graffiti signs were painted on the Bermagui Bridge and adjacent roadway stating - "Nigger, nigger, nigger, the KKK is getting stronger every day" etc. A former Bermagui policeman, wanting to diffuse the matter, then painted it over. No inquiry, it would appear, was made to identify the racist graffitti [sic] writer/s [sic] identity and no further action was taken. 5. A short time later, 7th October, 2006, a scuffle occurred at the Bermagui bridge between three younger members of the Aboriginal Campbell family and some young whites. Following this at 1.30am on 8th October, 2006 two carloads of drunk whites arrived at the Campbell's home with the intention to invade and bash them with threats to set the house alight, and them calling to the sleeping residents "burn them, burn those coons, niggers etc." Some were armed with iron bars and poles with nails attached and these later became court exhibits. It would appear that the attackers were under the influence of drugs and alcohol. Ice was in liberal supply in the area at the time and allegedly was being supplied by an older man in the community (well known to police) whose home the offenders had visited that evening after a long drinking session at the Bermagui Country Club where they were asked to leave. 6. Awoken and terrified, the Campbells telephoned the police as they faced a shouting and attacking mob of approximately 20 plus young white people. The police finally attended at approximately 3 am after many phone calls by the Campbells seeking police intervention. As a result of this attack, the Campbell's son, Ian was injured and concussed. Hospital diagnosis suggested that he could well have been in danger of losing his left eye or being left with permanent sight damage. The result of this attack has left severe and lasting emotional and psychological damage not only for Ian but for his entire family. 7. At the time of the attack on their home, several very young children were sleeping in a tent on the front lawn. They were small cousins who were visiting for a "sleep-over" and they were extremely terrified by what had occurred. Despite the need for mandatory reporting when young children are involved in violent events, this matter was not reported to DOCs by the police. In my role as the family's social worker, I made a report to DOCs on 24th Oct. 2006 Ref. No: 1-9FIF91 and confirmed by a Mr. Quadan. 8. When the police finally arrived, the attending officers ordered the attackers to leave, without any arrests and without any breath testing conducted. Given their reported and very apparent intoxicated state it is very concerning that they were allowed to drive away in their cars. 9. Later that same day the young Indigenous Campbells, Ian, Garry, and Vivian were asked to attend the Bermagui police station. This was without their parents being present or informed and with the young people still very affected by trauma resulting from the invasion/assault. Contrary to legal requirements the police failed to contact the Aboriginal Legal Service (ALS) and a letter from the ALS solicitor confirmed that no fax had been received from the police concerning the detention of any of Campbells or their cousins Steven Rotumah and Brett Rotumah. 10. Upon their arrival at the Bermagui police station the Campbells were arrested and charged with assault and affray. At this time none of the white offenders had been interviewed. 11. I was contacted by the family on 13th October 2006 in my role as CEO (and social worker) of the Elm Grove Sanctuary Trust which is a charitable foundation working to provide social justice support and counselling to those requiring it. I assisted the Campbell's [sic] to make a formal, official complaint to the Deputy Premier, then Minister for Police, the Hon J A Watkins MP, and also to the NSW Ombudsman, Mr Bruce Barbour, regarding the procedures followed by the investigating officers in the case. 12. On 26th October 2006 I was asked by the Campbells to attend their home as a witness to a very over-powering and bullying attitude by phone of the Mayor of Bega Valley Shire Council, Mr Tony Allen, who stated that he would be coming to their home within ten minutes to speak to them regarding their letter to the Ombudsman. Mrs Campbell then asked that the Mayor delay his visit till later in the day until her husband was home from school, however the Mayor refused to delay his visit and proceeded to come to their residence. 13. Mrs Campbell was feeling extremely intimidated by his attitude and immediately contacted me to attend as her support person and to witness the event. She then telephoned her husband at Bermagui Primary School, where he is the Aboriginal Liason [sic] Officer, and he came home due to the urgency of the situation. 14. Mr Allen and his deputy Mrs Janette Neilson arrived as stated and immediately requested that I leave. The Campbells indicated that I was there at their request and therefore I remained. The Mayor was exceedingly aggressive and controlling in his attitude and basically wanted the Campbells to rescind their complaints to the Minister and Ombudsman and also to ensure that this would not appear in the media. Later I was told by a local newspaper that they were threatened with legal action by the Mayor should this incident be reported. I believe this threat was made in order to protect tourism and property price interests. Therefore no in-depth media release was ever published and very few people in the community were made aware of this racial attack. 15. Following their letter to the Ombudsman and the Minister of Police, the matter was followed up by Far South Coast Police Local Area Commander, Superintendent Jeff Loy, within the terms of Part 8A of the Police Act 1990. Inspector Peter Volf investigated the complaint and interviewed Mr and Mrs Campbell at their home on 6th December, 2006 in my presence. I was later informed in writing by Hon. Matt Brown MP, then Parliamentary Secretary for Police, that Superintendent Loy had reported back that Inspector Volf had said that Mr and Mrs Campbell had expressed their acceptance of his explanation of the manner in which police acted in response to the matter. I would state that at no time did I hear Mr or Mrs Campbell indicate their acceptance, to Inspector Volf, rather Mr Campbell stated at the finalisation of the meeting that they were "still not happy with the police handling of the matter". 16. On November 17th, 2006, I also contacted the Errol Wyles Justice Foundation to report the attack and the inadequate follow-up by police, and they agreed to assist in the matter as they saw it to be "disturbing and needing intervention". Solicitor Craig Longman of Levitt Robinson, Solicitors Sydney then agreed to take up the matter. 17. In Bega Local Court, beginning 12th - 15th June 2007 and resuming 25th June 2007 the Campbells were convicted of assault and affray. Senior Counsel Peter King defended them and immediately applied to the Supreme Court on appeal. This appeal commenced on 11th March 2008 based upon the inappropriate handling of the case by the police and the court. The Sydney Morning Herald featured this case on Pg 1 of their 12th March, 2008 edition. 18. Back in Bermagui and Narooma Mrs Campbell then reported being continually pulled over for alleged traffic offences which then turned out to be non-existent. The Campbells reported to me that ostracism and banning of the family from public venues occurred. The Campbells certainly felt under siege and as out-casts [sic] in their community. 19. On April 15, 2008 an article appeared in the Bermagui Times (a supplement of the Bega District News) announcing a police bravery award to Snr. Constable Barry (Narooma Police) for his actions on 8th October 2006, and also for "his investigation skills in conducting an efficient, detailed and timely investigation that secured so many arrests, in which all parties have been convicted due to the quality of the investigation and the evidence supplied by Senior Const. Barry". This award being handed down while the case was still under appeal in the Supreme Court over the inappropriate police handling of the matter. This purely served to further distress the Campbell family. 20. The Campbell's appeal was heard before Justice J. Hidden on 11th and 12th March, 2008 and their Counsel was Mr Peter Kind and solicitor L Behrendt. The Campbell's [sic] subsequently won their appeal in the Supreme Court with judgement [sic] being handed down on 3rd December 2008 by Justice Hidden that due to the police not acting in accordance with the law in regard to interviewing Aboriginal persons that their appeal would be upheld. Senior Counsel, Peter Kind in defending the Campbells said, "that a law intended to help Aborigines had been 'deliberately disregarded' by police who had failed to inform them of their rights to have the Aboriginal Legal Aid Service present during their questioning". 21. Sect. [sic] 20 of the judgement [sic] states - The fact remains that the plaintiffs were interviewed at a time when cl33 had not been complied with and when, to the knowledge of the police, there could not have been effective compliance. No explanation was forthcoming on the evidence on the voire [sic] dire for the interviews being conducted at the time they were, rather than at another time when the requirements of cl33 could have been met. As the evidence stood, the failure to comply with the clause was deliberate, a relevant matter by virtue of s 138(3)(e) of the Evidence Act. 22. Gary Campbell's family, whose heritage connection to Bermagui and surrounding areas dates back for many centuries, have now once again been the victims of a further unprovoked, racially-based, vicious attack. 23. At approximately 1am on the New Year's Day, 2009 Gary, his wife Muriel, and family were leaving the Bermagui Country Club to walk home when it is alleged they were attacked by two young white men who identified themselves as brothers from Cobargo. One allegedly stating that he was in the army "I'm not afraid of the Police and I have guns and I can shoot you black c--ts any time I want to. You may have won in Sydney but you won't win this tonight." 24. Gary now most likely faces surgery due to the kicking that he endured after being knocked to the ground and he and the other family members endeavour to heal both physically and emotionally. 25. Currently they await the outcome of the local Police action in relation to this matter. However, it is now three weeks since the attack and no charges have been laid and it would appear that the attackers have not been interviewed over the matter. Given the long delay to take action by the police, any sign of subsequent injury to the perpetrators [sic] hands will now be healed, thereby destroying most valuable evidence. 26. I am informed that the attackers [sic] identity is known and also that one of the alleged is in the Australian Defence Force (Army). I have also been told by a member of the Narooma police that they are known to police. I have also been informed by Narooma Police, who are handling this latest matter, that no action had been taken as yet due to them "having been too busy". 27. I am deeply concerned at the apparent prevailing Police culture which, on the face of it, seems to offer a separate form of justice for indigenous persons. One can even be forgiven for beginning to think that this "go-slow" campaign by the police in this latest matter with the Campbells is intentional and the result of resentment at the outcome of the Supreme Court judgement [sic]. I would most certainly like to think that I might be wrong in making this observation. 28. I believe that it is time that some definte [sic] and positive action be taken to investigate this attitude and to seek ways to provide better models to offset prevailing attitudes. 29. Gary [sic] parents George and Sadie Campbell reared their family in Bermagui as did his grandparents William and Ada and his great grandparents Thomas Ninum Campbell and Ada May Coombes, and great-great grandparents Margaret Nixon and William James Campbell who was born at Tilba prior to white settlement in this area. 30. For Gary and all his family their connection to the land in Bermagui is rooted in a deep respect and a strong sense of belonging. Gary as the Aboriginal Liason [sic] Officer at Bermagui Primary School feels honoured to share his family history and knowledge with the children that he teaches. Gary Campbell believes that the future is for all of us to share however it would appear that there are a minority of bigoted and racially-focused young people in the local area who do not share this conviction. 31. I believe that better leadership by those in responsible positions, especially a review of local policing culture and the founding of instructive programs to build better understanding is urgently needed so that we might circumvent far more serious events from occurring. 32. I respectfully request that you give this situation your consideration and that you take subsequent action to closely and independently investigate mine and indeed the wider community's concerns by introducing remedial measures so as to improve this situation. Thanking you, Yours sincerely, Sr Laurel Lloyd-Jones Ifsf C.E.O. Elm Grove Sanctuary Trust c.c. Sydney Morning Herald ABC Four Corners Program"

[6]

The issues for determination 19The plaintiff has already succeeded in relation to imputations (b) and (d) in the first hearing, in that the defendant has failed to prove them true. If the defendant fails to prove imputations (a) and (c) true, then the plaintiff is entitled to damages for all four imputations. If the defendant succeeds in proving imputations (a) and (c) true then the issue is what impact this will have on damages. 20The conduct of a partial rehearing of proceedings is difficult for any judge. I accordingly encouraged the parties to indicate to me the way they wished this rehearing to proceed. This included such issues as whether further oral evidence should be led, whether the transcript of the earlier proceedings should be tendered, whether issue estoppels arose from the first hearing (and if so, what these were) and how the question of assessment of damages should be approached. 21The first problem is that the facts in dispute relate to a telephone conversation between the plaintiff and Mrs Campbell which occurred on 26 October 2006, nearly eight years ago, about which the parties first gave evidence in July 2010, nearly four years ago. This is relevant in determining what to make of differences in the evidence given by both parties between what is asserted in the matter complained of, the evidence in the proceedings in July 2010, and the evidence before me. Both parties complain that the opposing party has given different evidence in the hearing before me, or "embellished" the case (plaintiff's written submissions, paragraph 1) by raising matters not raised at the first hearing. 22Mr Connell submits (written submissions, paragraph 1) that the essential elements of the phone call giving rise to imputations (a) and (c) are: (a)The allegation of refusal by the plaintiff to delay his visit; (b)That the plaintiff intended to come alone, and while Mrs Campbell was alone; and (c)Whether the plaintiff used a bullying tone or manner of speech. 23Mr Connell also submits that the defendant is issue-estopped on the following matters by reason of the findings made in favour of the plaintiff at the first hearing: Matter or Finding Paragraph(s) Finding on what happened in the laneway meeting, being the version given by the plaintiff, Mrs Neilson and Mr Manns. Colefax SC DCJ: [92]-[93] (and hence [37]-[41], [44]-[46] and [53]-[56]) Court of Appeal: [33], [37], [73] That the defendant knew what she wrote about the plaintiff as to the laneway meeting was false. Colefax SC DCJ: [128] Court of Appeal: [81]-[82] and reference in previous item. Publication and republication, to the Sydney Morning Herald and the Australian Broadcasting Corporation. Colefax SC DCJ: [104], [120] and [121], Exhibit C (matter complained of) Court of Appeal: [4] High Court refusal of leave including as to Ground 2(d) and see Applicant's Summary of Argument [43]-[45] Finding that the plaintiff and Mrs Neilson had each taken the steps that they had each promised to take at the meeting with the Campbells on 9 October 2006, and that the defendant prepared the letter to the Ombudsman for the Campbells, which the plaintiff received from the editor of the local newspaper. Colefax SC DCJ: [29] (and hence [21] and [28]) Court of Appeal: [19]-[24]

[7]

24Mr Connell referred me to the following authorities on issue estoppel: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 335 at [1], [2], [23], [24] and [27]; Fidelitas Shipping Co Ltd v Exportchleb [1966] 1 QB 630 at 642- 643; Thoday v Thoday [1964] P 181 at 199-200; Tiufino v Warland (2000) 50 NSWLR 104 per Handley JA (Powell JA agreeing) at [50]) and Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [126]. This is the extent of his submissions on this issue. 25Mr Evatt confined his submissions on issue estoppel to a statement that the defendant was not issue estopped on any part of the evidence, and should be entitled to lead all relevant evidence, including evidence of the meeting in the laneway. I have rejected this submission. 26In practical terms, the question of issue estoppel has little role to play in the findings of fact. The principal evidence consists of the evidence of the plaintiff, the Deputy Mayor and Mrs Campbell concerning the contents of the telephone call. (Mr Mann, who was also in the car, was unable to remember much at all of the conversation, and Mr Campbell knew only what Mrs Campbell told him about the call). There were no findings of fact on these issues in the first hearing. The defendant's evidence, its truth or falsity, and issues of her credit, are of limited relevance to these issues. Beyond repeating what she claims Mrs Campbell told her in a subsequent telephone call, the defendant played no part in the conversations that led to this meeting. 27Both counsel took a combative approach to the tender of material by the opponent and to the case as a whole. It is clear, from the transcript before me, that this was also the case in the proceedings before Colefax SC DCJ. In view of the undesirability of a third trial, in circumstances where publication is limited and the defendant is bankrupt, I have restricted my findings with care to the narrow compass of matters identified in the Court of Appeal's judgment, and in particular to the matters set out therein at [86]-[87]. 28The Court of Appeal judgment does not refer to the parties' submissions about the findings of Colefax SC DCJ on quantum, such as the award of aggravated compensatory damages for the pleading and subsequent withdrawal of the defence of contextual justification, or the impact of the purported "apology" given in court by the defendant. The parties have elected to address the issue of damages from an entirely fresh viewpoint, and I have accepted their wishes on this issue. 29For convenience, I shall refer throughout to the evidence of the parties in the proceedings before Colefax SC DCJ as evidence in "the first hearing". To avoid confusion, extracts of transcript from the first hearing are italicised.

[8]

The plaintiff's evidence on justification issues 30The plaintiff's evidence in both proceedings was that, apart from the meeting with the Campbells about one to two weeks beforehand, he had not met them before and had never been to their home: "Q. Well, you went to her home, so where does she live? A. I, I took directions from Ms Neilson. I don't - I can't tell you where she lives." (T 111 lines 26-27) 31The plaintiff's evidence in the first hearing was that he learned of publication of the matter complained of on the morning of 22 October and that during the morning he drove from Bega to Bermagui, the town in which not only Mr and Mrs Campbell but also the Deputy Mayor lived. This town is about one hour's distance from Bega by car. The plaintiff's evidence in the first hearing was that the phone call to Mrs Campbell was made from Councillor Neilson's home at Bermagui (T 29 lines 17-21). Prior to making the call, he had a discussion with her as follows: "Q. So what did you say to Councillor Neilson and what did she say to you? A. I said I was very, very, very, very upset about the content of the letter and she said that she was also very concerned about the content of the letter. And we discussed it, as to what we should do about it and we agreed that we should ring the Campbells and seek a meeting with the Campbells to discuss why the letter had to be written. Q. What did you do then? A. I phoned the Campbells." (Transcript before Colexfax SC DCJ, T 30 lines 7-15) 32The plaintiff described the contents of the conversation during the first hearing as follows: "Q. What did she say? A. She said, well, she just said: "Muriel speaking". And I said, "Mrs Campbell" or "Muriel" I just can't recall. But I would have called her Mrs Campbell, I am sure. "I have a letter in my possession which I would like the opportunity to come and discuss with you and your husband." She said: "Mr Allen" or "Tony", "My husband is not here at the present time. He's at school. He won't be back for half an hour. Could you wait until then?" I said: "Certainly. I can wait til then." That was the end of the conversation. Q. About what time of day did this conversation take place? A. The conversation took about, took place about 3 o'clock in the afternoon. Q. What did you do then? A. Mrs Neilson and I then went from Mrs Neilson's house to Bermagui. Mrs Neilson said, "I believe we should contact Mr John Manns", who was very well known to the Aboriginal community, just to show the Campbells out of respect to them that we had had Mr Manns there, just as a sign of respect to the Campbells." (Transcript before Colexfax SC DCJ, T 31 lines 15-32) 33The plaintiff repeated this at T 71-72: "I did ring the Campbells to arrange that meeting but I certainly was not overpowering and bullying, I really just can't believe that that could be put as a reaction to a simple phone call asking Mrs Campbell for permission to come and talk with she and her husband. I most certainly did not, as stated here, that "I would be coming to their home within 10 minutes to speak with them", I did not at any stage say to Mrs Campbell anything other than I would be happy to wait as long as was necessary for her husband to come home from school but indeed I was wanting to talk to them about the letter to the ombudsmen. I certainly didn't refuse to delay my visit, I said to Mrs Campbell that I was happy to wait until her husband came home..." (Transcript before Colexfax SC DCJ, T 71 line 43 to T 72 line 2) 34The evidence of the plaintiff was thus that the telephone call to Mrs Campbell was made, at the latest, from Mrs Neilson's house at Bermagui, and that after he made the call to Mrs Campbell, he telephoned Mr Manns to invite him to participate: "Q. Did you make a phone call to him [Mr Mann]? A. No, Mrs Neilson that's a good question. I believe I made the phone call. My memory's not that good but I would have had the phone. I would have made the phone call, yes. Q. Anyway you said before you met up with Mr Manns? A. Before we met up with Mr Manns? Q. Sorry. You met up with Mr Manns? A. Yes, yes. Q. What did you do and where did you go/ A. We waited we met Mr Manns in Bermagui and then we waited until we believed Mr Campbell would be home, well and truly home from school before we went to drove the car to the Campbells' where the Campbells lived. Q. Okay and what happened then? A. We got out of the car and walked we were walking up towards the Campbell house. Q. Who is we? A. The deputy mayor, Jeannette Neilson, and John Manns and myself. Q. Yes? A. We walked up a laneway and the Campbells were waiting in the laneway to meet us. Q. Yes. And what happened then? A. We naturally said hello and I noticed Mr and Mrs LloydJones away to the side and I indicated to the Campbells that I had just come to discuss the content of the letter and I asked why Mr and Mrs LloydJones should be there. Mrs Campbell said they were there because she has asked them to come. I said: "That's quite okay. I would just like to discuss the contents of the letter with the Campbells."" (Transcript before Colexfax SC DCJ, T 31 line 43 to T 32 line 33) 35The plaintiff's account of these events in the proceedings before me demonstrated a different, and slightly shorter, timeline. He had already decided to go to the Campbells' home after discussing this with Councillor Neilson, and set off on the one-hour trip from Bega to her home, just outside Bermagui (about five minutes by car from the Campbells' home). Councillor Neilson had decided to invite Mr John Manns to come as well, and it was she who had arranged to meet him in Bermagui at the garage which was within eyesight of the Campbell's home. More importantly, the plaintiff agreed that he had not telephoned Mrs Campbell from Councillor Neilson's home, contrary to his evidence in the first hearing: "A. I came to her place and - and she had thought about the meeting, obviously, and she said that she had contacted Mr John Manns to come to the meeting just to - out of respect to the Campbells, because for reasons that he was highly respected amongst the Aboriginal community and we weren't going there to be - we were just going there to reassure them that we were, we were genuine in our, in our desire to help them. So she arranged for Mr Manns to come there. And I apologise to the Court. I think in evidence I said that I made the phone call to the Campbells at Ms Neilson's house. That wasn't the case in, in recollection, because I presumed and I think Ms Neilson perhaps presumed that I had made the phone call or that she had made the phone call to organise a meeting and a time with the Campbells. But on the way to Bermagui to meet Mr Manns, she asked if I'd rung the Campbells and I said I hadn't. And she said, "Well, we - someone should." So I, I said, "Well, we'll - when we, when we get to, when we get to Bermagui with - to meet Mr Manns, we'll make the call." It was, it was an oversight and I apologise to the Court for - because it's only a five minute drive from Ms Neilson's house to the, to the service station where we met Mr Manns. So I was five minutes out in the timing, but that's what occurred." (T 53 lines 21-39). 36In other words, the plaintiff's telephone call to Mrs Campbell asking to see her was made while he was sitting in his car a short distance from the Campbells' home, with Mr Mann and Councillor Neilson already in the car with him. The likelihood that he conveyed to Mrs Campbell that he was already on the way to her home, and that he wanted a meeting within a particular time frame, needs to be viewed in context of these facts. 37The plaintiff's written submissions described this as being a difference in timing of five minutes of "no particular significance" (written submissions, paragraph 2(b)), in that it adds only about five minutes in time to the plaintiff's timeline. Mr Connell submits it is irrelevant whether the conversation took place in the plaintiff's car while he was not only on the way to Mrs Campbell's home but within sight of it, or from the Deputy Mayor's home, about five minutes from the Campbell's home by car. He adds: "There is significance in the fact that Mr Manns and Mr Wells had already been organised to attend as clearly they would be inconvenienced if the meeting was rescheduled for another day and the plaintiff was concerned not to inconvenience Mr Manns: T 59, 182." 38These submissions unduly gloss over the facts. Firstly, the plaintiff gave no evidence before me of inviting Mr Wells (the neighbour at whose home the October 2006 meeting had taken place) to this meeting, or that Mrs Campbell had been told of this. His evidence was similar at the first trial; he agreed at the first hearing (T 173) that he had not mentioned Mr Wells at all during examination in chief. The Deputy Mayor, in her evidence in this hearing (T 213) was that she had reconsidered her evidence about when she had telephoned Mr Mann and Mr Wells and realised she must have done this using her land line at home (T 213), before driving to the Bermagui petrol station to pick up Mr Mann. This was, of course, when the plaintiff and the Deputy Mayor realised that neither of them had telephoned the Campbells to see if they were prepared to have a meeting and, if so, at what time, and with what persons present. 39The fact that Mr Wells arrived 15 minutes after the meeting started is one of a series of pieces of evidence suggestive of the fact that this meeting was organised in a hurried fashion and a short time frame. More importantly, there is no evidence before me, or in the first hearing, that Mr Wells' presence formed part of the arrangements consequential on an agreed meeting, or that Mrs Campbell was told of it, or that Mr Wells' convenience had to be consulted. Nor is it clear why the convenience of Mr Manns, a retired person, was more important than the convenience of Mr Campbell, who had to come home from work early to attend this meeting. As to the importance of the roles of both Mr Manns and Mr Wells at the meeting, it is not in dispute that the plaintiff did not even tell Mrs Campbell that either of them was coming. 40Having noted the plaintiff's change in evidence about when and where the telephone call was made, I next note the plaintiff's description of what was said during his phone call to Mrs Campbell. In the hearing before me, he described the contents of the telephone call as follows: "Q. --what that person said and what you said? A. To the best of my recollection, a lady answered the phone and I said, "Look, it's Tony Allen calling. Is this Mrs Campbell?" and she said, she said, "Yes, it's Mrs Campbell," and I said, "I have a letter that you and Gary have written to the Ombudsman and I would like the opportunity" - and I can't remember whether I said "I" or "we", probably "we" because John Manns and Ms Neilson were also in the car at the time - "we'd like the opportunity just to come and have a yarn about what's in the letter." Q. And what did she say to you? A. Ms Campbell said that Mr Campbell wasn't at the house at the time and that she would prefer that I didn't come at that stage and I said, "That's fine. When will Mr Campbell be back?" She said that he was detained at school for a half hour but he'd be back in half an hour and I said, "Okay. Would it be okay to come, be convenient to come around in half an hour?" and she said, "Yes."" (T 54 line 45 - T 55 line 10) 41The plaintiff described his tone of voice during the phone call as being "the same as it is today" and Mrs Campbell's tone of voice is "normal". He was certain that she was happy for him to come to her home and happy for them to wait in the car for her husband to come home from the school where he was working: "Q. What was your state of mind at the time of making that phone call? A. That it had been a long day and this, this had, this had, this is the first time I'd come across this letter and because, because of the responsibilities that I attach to the role of the mayor and the promise that I'd made to the Campbells and to the Wellses and to Ms Neilson, I was very conscious of the need to protect our integrity and the integrity of the office that I hold or held, and so my state of mind was that we needed to talk to the Campbells and, and, and just find out what had gone wrong, if anything had gone wrong, and whether we could be of further assistance. Q. After the phone call finished, what happened next? A. When the phone call finished, I do remember - and this is the recollection that brought back the timing of the phone call. I do remember turning around to Mr Manns and apologising for holding him up a further half hour or perhaps longer. You don't like to have people's lives disrupted so I, I remember turning around and apologising to him because we had to wait that extra half hour before we could have the meeting. Q. Sorry, can you just say what words you said to him? A. I said, "John, old mate, I'm apologising. We, we don't have, we can't go to the meeting straight away. You'll have to bear with us for another half hour before we can go and meet with the Campbells." Q. Yes, and what did you do then? A. We waited. Q. For how long? A. Approximately half an hour." (T 58 line 21 to T 59 line 17) 42Mr Evatt read aloud to the plaintiff the following evidence he had given in the first hearing: "Q. ... Line M, "Above what time of day did this conversation take place?" "The conversation took place about 3 o'clock in the afternoon." "What did you do then?" "Mrs Neilson and I then went to Mrs Neilson's house to Bermagui. Mrs Neilson said, 'I believe we should contact John Manns.'" A. Yes. Q. John Manns wasn't in the car when you had that conversation, was he? A. I explained this morning that, that I, in hindsight, got that wrong with the Court and I apologise to, I apologise to the Court for that." (T 121 lines 5-36) 43Mr Evatt asked: "Q. Mr Allen, what did you want to discuss with Ms Campbell about the letter? A. We wanted to just - we wanted to clear up any misunderstandings or any confusion that had arisen since the meeting in the Wells' house. Q. No, you said, "I have a letter in my possession which I would like to come and discuss with you." What was it about the letter that you wanted to discuss with them about the letter? A. The obvious confusion that the letter stated that we hadn't done what we've promised to do and we wanted to speak to-- Q. You wanted-- A. --the Campbells-- HER HONOUR: No, don't interrupt Mr Evatt. Q. You wanted to what, sorry? A. Speak to the Campbells about whether there is a misunderstanding or whether there is other issues that we needed to help them with. EVATT Q. You wanted your name taken out of it. A. No. Q. Is that right? A. No. The letter was already sent. It was gone. Q. What? A. The letter had already been - it was, it was, it had already gone to the ombudsman. Q. Yes, but you could write a retracting letter couldn't you? A. We hadn't thought about that at the time but we did. Q. That's what you exactly thought of? A. No. Q. And you were angry? A. No. Q. What else has "very, very, very, very upset me"? A. Exactly that, that I was very disappointed and confused that a meeting of friends-- Q. You were confused? A. I was confused, absolutely confused. Q. Why were you confused? A. Because we'd gone in good faith to a meeting of friends of friends and Ms Nielson was a friend of both parties and we'd exchanged phone numbers--" (T 129 line 3 to T 130 line 2) 44Finally, I note that the plaintiff telephoned the Campbell home in the evening, which the plaintiff described as "friendly" (T 81). Mr Connell submits that it was the defendant's obligation to rebut this evidence and not his obligation to cross-examine (Hyhonie Holdings Pty Ltd v Leroy [2004] NSWCA 72). This is a difficult area, because the parties had agreed that the evidence would not include the events in the laneway or subsequent to that meeting, which would include this later phone call. However, the fact that the meeting proceeded in accordance with Colefax SC DCJ's findings, and that there was a friendly phone call afterwards, does not amount to evidence that the circumstances in which the meeting was called could not have been as stated by Mrs Campbell. 45Why was the most senior local government representative in the Shire wanting to come to the home of persons he had met only on this one occasion, in order to speak to them about a letter of complaint they had sent to the Ombudsman, and expecting that they would be happy to do so? Mr Connell submits (written submissions, paragraph 1(e)) that the plaintiff had been elected as a Councillor and Mayor a number of times over a lengthy period, and had performed these duties with constant interaction with the community in which he lived; evidence to this effect was given both in the first hearing (at T 19 - 20) and before me. Mr Connell goes on to note that the plaintiff was "no stranger to the Aboriginal community and also might properly be thought to know what was appropriate behaviour in this small country town (Exhibit A p. 15.11, 20.16.3)". The issues in Mr and Mrs Campbell's letter did not only concern them, but also the wider community (Exhibit 5, p. 305); T 53. In those circumstances, it was not necessary just to leave it to the Ombudsman to deal with the complaint. The plaintiff and the Deputy Mayor behaved with tact and prudence in so doing, according to Mr Connell's written submissions. 46Mr Connell submits that it was not put to the plaintiff, Mrs Neilson or Mr Manns "by counsel or the Court" in either of the hearings that this was "at all inappropriate leave alone an act of bullying, to contact Mrs Campbell and ask for a meeting with her and her husband" (written submissions 2(g)) and that none of the defendants gave evidence in support of such a case, including Mr Gary Campbell (Exhibit 7), who was not at home when the plaintiff called Mrs Campbell. I note, however, that it would not have been proper for the Court to put such a question to any witness, and the opinions of any witness as to whether the plaintiff's conduct was inappropriate or bullying should not take the place of a careful analysis of the factual material before the court. The question of whether this conduct was inappropriate or an act of bullying is an issue of fact for determination by me, not for the opinions of witnesses. 47At the time that the plaintiff was making this telephone call from his car, two other persons were with him. The first of these was the Deputy Mayor, Councillor Neilson.

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The Deputy Mayor's evidence 48The plaintiff's submissions place great weight on Deputy Mayor, Councillor Neilson's, "discretion and experience" as "a woman of some considerable experience" (written submissions paragraph 2(a)). She had agreed to the plaintiff's proposal of going to see the Campbells, and made two contributions to this scheme. First, she invited Mr Manns to attend as a support person for the Campbells (and, it would appear from her evidence at T 213, she spoke to Mr Manns; according to her evidence in the first hearing, she also asked Mr Wells, but she did not refer to this in the hearing before me). Secondly, she suggested, having discovered that the plaintiff had not telephoned the Campbells to arrange the meeting that day, that he do so. 49The Deputy Mayor's description, in the first hearing, of how she came to accompany the plaintiff to the Campbells' home was as follows: "Q. So with that structure in mind can you take up what was said by whom after the general manager had offered to prepare a letter for you and the mayor to sign to go to the ombudsman? A. The mayor said, "I would like to go and discuss this with the Campbells" and I said, "Well I'd be quite prepared to come with you to have a discussion with them. Maybe there is something that we missed that we should have done." CONNELL Q. Where did this conversation take place? A. That conversation with the mayor took place not in the general manager's office but after we had left and we were travelling back home. Q. Back to whose home? A. Well, generally what happened, I would take my car to Cobargo and leave it there and I would travel in with the mayor because it's a lot cheaper, it saves money. So it would have been in the car coming back from Bega which is approximately an hour away from where we live. Q. And did something happen about that suggestion, was something done about it? A. Yes, yes. Q. What happened? A. The mayor travelled down to Bermagui and we drove into town and we parked in town and the mayor decided, he said, "I will call the Campbells to make sure they are home and to ensure it's okay to come and visit them." Q. At about what time of day was this? A. It was in the afternoon maybe around 2.30, something like that, I'm not exactly sure but it was in the afternoon though definitely. The reason I recall it was in the afternoon was because the mayor then rang the Campbells and Muriel answered the phone. Q. What did you observe or hear? A. I heard it because he had the phone in the car, I was in the car with him. HIS HONOUR Q. Could you hear both sides of the conversation, or was it on A. No, it wasn't on speaker phone. Q. So you could just hear the mayor? A. Yes. Q. Could you tell me what you heard him say? A. The mayor said, "Hello Muriel, we are in Bermagui and I have a letter here that you have sent to the ombudsman expressing concern that we haven't done some of the things that we agreed to do for you and I'd like to come up and discuss it with yourself and Gary." She said, "Well Gary's not home." Sorry, I can't tell you that. Q. You didn't hear that, did you? A. No, I didn't hear that. Q. Don't tell me something you didn't hear? A. No, when the mayor hung up the phone he turned round and advised me. [Objection] Q. Not saying what the mayor said to you about what Muriel said to him, what happened next? A. There was an interim during which we were waiting for Gary Campbell to come home from school. He worked at the school, and during that time Q. About how long was that interval? A. Probably halfanhour, about that. Q. And during that time? A. And during that time I decided to call John Manns who was very well respected by the aboriginal community because, in my view, I didn't want to go to the Campbells' with them feeling challenged. In my view, we were going there to find out what was wrong, what the issues were, because the letter clearly indicated there were problems, and I personally wanted someone there who had a strong rapport with the aboriginal community, to reassure them. So I rang John Manns I took the mayor's phone from him, and I rang John Manns, and I asked John, "would you be prepared to come down to a meeting with the Campbells in relation to the incidents that happened in Hill Street and other issues", and he said his answer to me was "I'd be prepared to come but I will only be at a meeting if Gary and Muriel are happy for me to be there", and I said, "that's fine, we'll leave that to them", and I told him where we were, and he came down and met us, and we waited" (Transcript before Colexfax SC DCJ, T 242 line 39 to T 244 line 48) 50The Deputy Mayor's evidence in these proceedings was that she had made errors in her evidence in the first hearing. The plaintiff had not said that he would ring the Campbells, or rung from them from her home, or rung them before Mr Mann was contacted. The plaintiff had rung the Campbells from his car after both the plaintiff and Councillor Neilson realised each had assumed the other would telephone the Campbells, but neither had. In cross-examination, Councillor Neilson explained: "Q. Did he not say when he picked you up, "I'll ring the Campbells"? This is when he picked you up? A. (No verbal reply) Q. Otherwise, you see, you say, "And we parked in town"? A. Yes. Q. I just can't work out why you would drive into town if it wasn't see the Campbells. That's all? A. Well, we were going into town and I, I presumed that he'd already rung them. And I found that he hadn't rung them and so he said, "Well, I'll ring them." And we'd already organised to meet John Manns at Bridge Motors. So he rang them from there. We were, we were parked at Bridge Motors. Q. When you were at your home-- A. Yes. Q. --did he say, "Look, I want to discuss this with the Campbells"? A. He said that over the telephone before he got to my place and asked me would I come with him. Q. Did he say he wanted a meeting with the Campbells? A. Well, he wanted to find out what we hadn't done, what, what was wrong because we thought we'd done everything they asked. And he didn't understand what was - the problem was. Q. Yes. But did he say he wanted to meet the Campbells-- A. Yes. Q. --to discuss those matters? A. Yes. Q. Then you say at line 20-- A. Line 20. Q. "He rang the Campbells and Muriel answered the phone." Is that right? A. Well, he told me it was Muriel. Yes. Because he-- Q. He said he was ringing the Campbells, didn't he? A. Yes. And, and, and it was Muriel because he - Muriel said - he said, "Hello, Muriel." Q. You couldn't hear who answered? A. No. He said, "Hello, Muriel.", so I knew it was Muriel and he said, "It's Tony Allen calling." Q. Then he said, "I have a letter here I want to talk to you about." Is that right? A. Yes. To the best of my recollection, yes. Q. I'm down to line 35? A. Yes. Q. "Hello, Muriel"? A. Yes. Q. "We are in Bermagui"? A. Yes. Q. First of all, he said, "I'm Tony" - you know, "I'm Tony Allen, the mayor"? A. "It's, it's Tony Allen calling." Q. Right? A. Yeah. Q. "Hello, Muriel. We're in Bermagui"? A. Yes. Q. "I have a letter here that you sent to the ombudsman." Right? A. Yes. Q. "Expressing concern that we haven't done something - some of the things that we agreed to do"? A. Yes. Q. "I want to come up and discuss this with you and Gary"? A. Yes. Q. Right? A. Yes. Q. He was angry when he said that? A. No, he wasn't at all. Q. Was he happy when he said that? A. He was just matter of fact. Q. He was happy? A. Well, I don't know that he was happy or sad. He was just ordinary. Q. He was very, very, very, very upset, wasn't he? A. No. Q. What? A. No. Q. He wasn't? A. No. He was confused I would say. Q. Well, just a moment. Didn't he say to you that he was very, very, very, very upset about the content of the letter? A. To me? Q. Yes, to you? A. He said to me that he couldn't understand it. I can't remember the exact words. You said that's a long time ago but he didn't - I don't recall him saying to me that he was very, very, very, very upset. Q. So if he said he had said that to you he would be wrong; is that right? A. I don't know. I don't recall him saying it. Q. Did he not say to you he was very, very, very, very upset about that letter? A. Not that I can recall. Q. Did you say to him you were very concerned about the letter yourself? A. I was concerned. Q. What? A. I was concerned. I was, I was confused and concerned because I thought we'd done what they'd asked us to do and it would appear that they felt we hadn't and I thought, well, what's, what's gone wrong. Q. Were you angry? A. No. Q. The mayor was very upset, wasn't he? A. I don't believe he was very upset. Q. He said to Muriel in your hearing that he wanted his name taken out of the letter? A. No. I don't recall that at all. Q. You mean he didn't say it or you just can't remember whether he said it or not? A. I don't believe he said it. Q. Are you there at page 243 at line 35? A. Line 35. Q. Have you got that there? A. Yes, I have. Q. That's the conversation that you say took place, is that right, between Mr Allen and Muriel Campbell? A. Yes, that's correct." (T 209 line 8 to T 212 line 2) 51The Deputy Mayor explained her change of evidence concerning ringing Mr Manns as follows: "Q. Then you said at line 35, "And during that time I decided to call John Manns"? A. Yes. And that's where I, I mentioned the-- Q. What? A. That's where I mentioned I had my timelines wrong because I rang - I, I checked my phone records and there were no calls on my mobile to John Manns. Q. Do you say that was wrong? A. Yes. Q. "And during that time I decided to call John Manns who's very well respected by the Aboriginal community"? A. Yes. Yes. Q. Is that right? A. Yes. I rang him from my home before we left I believe. Q. When did you find out that was wrong? A. When did I find out? Q. Yesterday? A. No, no, no, no. Q. The day after you said it? A. No.[Objection] Q. When did you realise your evidence before Judge Colefax was wrong? A. I'm just trying to think. It was - it was fairly recently and it hadn't made - John, John Manns said to me that he was in the car when the phone call was made and I said to John, "But I don't recall you being in the car", and he said, "I was there", and I thought, well, how could he have been there if I rang him after he - after the phone call. So I deliberately checked my phone records and could see that there were no calls on my mobile and then when I really sat down and thought about it I realised that I - I had to have made those calls to both John and Don Wells before I left home." (T 212 line 31 to T 213 line 30) 52Unlike the plaintiff, the Deputy Mayor had had prior dealings with the Campbells. She had provided Mr Campbell with "a reference that kept him out of gaol" (T 345) and her late husband had been a close friend of his. Mrs Campbell agreed that this was the case, although she added that her own association with the Deputy Mayor was limited to saying hello a few times (T 313, first hearing). 53However, the Deputy Mayor's presence on this occasion was not presented as being in order to assist the Campbells in having a yarn or a chat with the Mayor. She was coming to see them, as was the Mayor, about the letter the Campbells had written to the Ombudsman about their assistance to the Campbells being insufficient. 54Mr Connell submits that the Deputy Mayor was not cross-examined to the effect that the procedure was inappropriate in any way, or that it amounted to bullying (and, if so, that she was complicit). He goes on to add that this is not unnatural as such a contention was never part of the plaintiff's case (submissions, paragraph 2(g)). Both these statements are incorrect. Both in this hearing, and in the first hearing (at T 273 - 4), these matters were put, although the precise question in relation to the plaintiff's telephone call to the Campbells did not refer to it taking place in the car ,because the Deputy Mayor's evidence at the first hearing was that "he told me, the mayor said to me Muriel had asked him to wait until Gary came home from school" (T 273), not that he made the telephone call in the car in her presence. 55It was put to the Deputy Mayor that both she and the plaintiff were very upset about the letter (T 211) and that this was why they had gone to the Campbells' home at such short notice. The Deputy Mayor denied this, but agreed that it would be inappropriate to go to the Campbells' home without an appointment (T 219). She agreed that the plaintiff always spoke in a blunt manner, and that he "expressed his concern" (T 220) about what the complaint to the Ombudsman said about the meeting he and the Deputy Mayor had had with the Campbells. Mr Evatt put it to the Deputy Mayor that the plaintiff spoke in a loud, "bullying" voice (T 220), which the Deputy Mayor denied. 56Mr Connell submitted that the Deputy Mayor was a witness whose evidence should be given great weight, and that I should accept the her evidence, and that of Mr Manns, that the plaintiff did not speak in a menacing tone of voice (T 125, 210). This really is not the issue. I accept that the plaintiff spoke as the Deputy Mayor described, namely in a blunt manner. It was a very short phone call to someone he barely knew. "Menacing" is simply the wrong word to describe it. The question is whether his tone and what he was saying amounted to bullying or inappropriate language and/or conduct. 57The objective evidence shows the Deputy Mayor did have concerns about the meeting the plaintiff proposed to have with the Campbells. First, she said that she would go as well. Second, she invited not one but two persons who would be there, not to help the plaintiff, but to help the Campbells and be support persons for them, as they had been victims of a frightening incident very recently. Third, and most important, when she realised that the plaintiff had not even telephoned the Campbells to arrange a meeting, she told him to do so. I find the plaintiff's claim that he thought the Deputy Mayor had done this to be implausible, given his evidence about having Mr Campbell's telephone number on a piece of paper, the fact that he had already driven to Bermagui for such a meeting, and the fact that he was at the Deputy Mayor's home before the question of the format of the meeting (including the Deputy Mayor inviting another two persons) had crystallised. 58All of this evidence points to the Deputy Mayor endeavouring to placate an upset man, namely the plaintiff who was determined to see the Campbells that afternoon, while understanding that the Campbells might find an unexpected meeting with the two most senior local government officials in their home intimidating, particularly if there was no support person present. The Deputy Mayor's actions are more consistent with her having the belief that the Campbells would find the meeting intimidating, or feel bullied, unless they had some form of support present, as well as needing to be informed that the plaintiff was coming to see them. 59It is unfortunate that the plaintiff did not tell Mrs Campbell, when he rang, that arrangements had been made by the Deputy Mayor for both Mr Wells and Mr Mann to be present. In fact Mr Mann had told the Mayor he would only attend if the Campbells wished him to be there, yet that permission was never sought by the Mayor in the less than two minute telephone call he made to the plaintiff. It is also indicative of his state of mind, which was that he wanted to see the Campbells as soon as possible, and that other considerations (such as any need they may have for a support person) was not important. 60This brings me to a consideration of Mr Manns' evidence. Unfortunately it is of little assistance, as Mr Manns' memory of these events is now very poor.

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The evidence of Mr Manns 61Mr Manns' evidence in the first hearing was contradictory. At T 209 of his evidence before Colefax SC DCJ Mr Manns said: "Q. I want to ask you to tell me about that and I want you to tell me it in the first person, like a tape recording; who said what, casting your mind back and doing your best to give the substance of what they said in the first person. Who called you? A. Jeanette Nielson. Q. And what did she say to you? A. She asked me would I attend the meeting with her and Tony Allen at the Campbells' residence. I said I would, providing that they were agreeable to me being there. I then was arranged to meet them and Q. Where? A. At well it's a placed called near Bridge Motors at Bermagui. We waited there in Tony's car for a short Q. Sorry, just pausing. One step at a time, Mr Manns. You went to this place and about how long after the phone call had taken place did you arrive at that place? A. I can't remember whether it was half an hour, or an hour or so, what it I'm not sure. Q. And somebody arrived to pick you up, did they? A. No, I drove to there. Q. But did you then get into a car with someone else? A. I met Anthony and Jeanette Nielson there in Anthony's car. We sat in the car for a short while. Q. For about how long? A. Could have been 15 minutes, half hour." (Transcript before Colexfax SC DCJ, T 209 line 33 to T 210 line 12). 62However, he gave the following evidence at T 227-229: "Q. Did you hear Mr Allen ring up Mrs Campbell on the phone? A. Before we went to the? Q. Yes? A. He rang to see if if Gary was there. Q. What did he say on the phone? A. He asked her if Gary was there. Q. What do you understand was said by Mrs Campbell? CONNELL: I object. EVATT: Well he heard. Q. Did he say what Mrs Campbell said? A. No, he just said that Gary wasn't there at that stage, we were to wait. Q. Mr Allen in your presence rang Mrs Campbell? Is that right? A. Yes. Q. After they picked you up? A. Yes. After I after I met them. Q. I'm a bit unclear about it. Did you go there in their car? A. Yes. Q. So there was three of you in the car? A. That's right. Q. Were you in the back? A. Yes. Q. Before you got into the car, did Mr Allen ring Mrs Campbell? A. I don't know, I wasn't there. Q. Sorry, I thought you said you heard Mr Allen ring Mrs Campbell? A. Yes she did. Q. Where was that? A. I was in the car. Q. In the car? A. Yes. Q. On the mobile phone? A. Yes. Q. I beg your pardon. Where was the car when he rang? A. Where I said when we started, at Bridge Motors. Opposite Bridge Motors in Bermagui. Q. He got in the car and rang Mrs Campbell on his mobile? A. Yes. Q. And asked whether Gary was there? A. Yes. Q. Then did he say what Mrs Campbell said? A. He just said that she he wasn't back from school at that stage Q. Yes? A. and we would wait. Q. We would wait? A. Yes. Q. Did you wait or did you drive out there? A. No, we waited. Q. Waited where? A. At Bridge Motors. Q. For how long? A. Could have been 15 minutes, 20 minutes. Q. How long did it take you to drive to the Campbells' place? A. Five minutes. Q. It's close? A. Yes. Q. About what time did he ring? A. I couldn't give you a time. Q. Was Mr Campbell there when you arrived? A. Yes. Q. Did his wife Muriel do all the talking? A. Yes. Q. Did you hear Mr Allen say to Mrs Campbell on the phone, "I have a letter in my possession which I would like the opportunity to come and discuss with you and your husband"? Did he say that? A. I can't remember. Q. But you can remember him ringing and asking for Mr Gary Campbell? A. Yeah. Q. Did he say why he wanted to speak to Gary Campbell? A. He wanted to confirm whether Gary was home so that he could speak to both of them together. Q. Did you hear him ask Mrs Campbell whether he could speak to her? A. Speak to her? Q. Yes? A. No. Q. Did Mr Allen ring Mrs Campbell and did you understand that Mrs Campbell said that she didn't want to see Mr Allen? A. No. Q. You deny that? A. I don't know what she said. Q. You don't know what she said? Did Mr Allen say anything about the Campbells taking their names, that's Mr Allen sorry I'll start again. Did Mr Allen say anything to Mr or Mrs Campbell about the Campbells deleting their name from the letter to the ombudsman? A. I don't know. Q. Could that have happened? Could that have been said? A. It I don't know." (Transcript before Colexfax SC DCJ, T 227 lines 11 to T 229 line 33) 63His evidence in these proceedings was that he was telephoned by the Deputy Mayor but "can't remember" (T 226) what she said. He was in the car when the plaintiff rang Mrs Campbell, but that he was unable to remember what was said (T 228), or to whom that call was made (T 227). He did not hear what was said by the other person (T 228). 64Some of Mr Mann's answers were difficult to understand: "Q. So you don't know whether he rang up the Campbells or not, is that right, you can't remember? A. When he made the phone call I didn't know. Q. Well when did you know? A. Afterwards. Q. While you were still in the car? A. While we were still in the car. Q. Why, what was said to you? A. He turned and said to me that I had to ring Muriel to see whether Gary was home, and I when Gary wasn't there he hung up. Q. So was this telephone conversation just very short? A. Very short." (T 228) 65Neither the plaintiff nor the Deputy Mayor gave evidence that this occurred. Given Mr Mann's poor recollection and recounting of a conversation with little resemblance to what occurred, his evidence is of no probative value.

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The evidence of Mrs Campbell 66Mrs Campbell's evidence in the first hearing was as follows: "A. Well I got a phone call from Mr Allen and he asked me if he could come up to my house to have a meeting with me and Gary and I explained to him that I was at the house on my own. I told him I didn't want him to come there because I was just still terrified about what happened and I specifically told him I did not want him to come, I was at the house on my own. But his reply to me on the phone was, "I'm sorry Muriel, but I am on my way" and then he hung up. I started to panic. Q. How did he sound on the phone? A. He sounded like he was coming whether I wanted it or not. Q. Now, what did you then do? A. I started to panic a bit. I knew that Gary, when school hours were over, he had to do a homework centre that afternoon, so I actually rang Laurel and I explained what had happened on the phone call and I asked her if she would be able to come down just to keep me company because I didn't want to be at the house on my own. Q. Which she did? A. Yes, she did. Q. She came with her husband Edward? A. Yes, and after I spoke to Laurel I actually rang Gary again at the school because I was really panicking and I said, "You need to come home because Tony Allen rang me and he told me that he is on his way to the house" and Gary said, "Yes, well I'll just go and see the principal" and then yes, it was maybe a matter of ten minutes Gary had turned up and, by that time, everybody was there." (Transcript before Colexfax SC DCJ, T 295 lines 17-44) 67Mrs Campbell said she told the plaintiff that she "didn't want him to come" (T 296), and repeated this in cross-examination: "Q. So when you got a call from the mayor to say he wanted to talk to you about the letter to the ombudsman, you were rather surprised weren't you? A. Yeah, no he just said, "I need to come and speak to you and Gary", and I said, "No, well I don't want you to come because Gary isn't home; he's at work and I'm at the house on my own". I specifically told him I did not want him to come, I was on my own at the house. But his like I said, his reply to me on the phone was, "Sorry Muriel but I'm already in my car on my way". Q. Mrs Campbell A. That that really scared me. Q. Mrs Campbell, I didn't ask you that, did I? A. Well it's part of my answer. HIS HONOUR: Ask the question again, Mr Connell. CONNELL Q. Mrs Campbell, Mr Allen had rung you and said that he wanted to see you and your husband. A. Yes. Q. In those circumstances it would be pretty silly for him to come and see you when your husband wasn't yet home, wouldn't it? A. Yes, I told him, "My husband is not home, he's at work, I'm home on my own, I do not want you to come." Q. Do you recall what time this was? A. Around maybe in between half past 2.00 to 3.00, somewhere around there. I could be wrong but I know it was towards the end of school time, yes somewhere around that. Q. Because I suggest to you that, in fact, what happened was when you told him your husband wasn't home he said he'd come later? A. No, I beg your pardon, he did not say that to me. He told me, "It's too late Muriel, I'm in my car and I'm on my way" and then he hung the phone up on me. Q. The fact is he didn't turn up at your house until 3.30, did he? A. He didn't turn up at my house at 3.30, he was down the bottom of my laneway parked at about five past 3.00. Q. And he waited in the car, didn't he? A. Yes, him, John Manns and Jeanette Neilson. Q. And they waited there until after half past 3.00? A. Not quite sure if it was after half past 3.00 but yes, it was somewhere around the quarter I'm pretty sure, yes, when I walked out of the house on to the laneway that's when I spotted the car down the bottom and they got out and I really started panicking but, by that time, Laurel and Edwin had pulled up. Gary was like coming down the laneway so it made me feel a little bit at ease because it wasn't just me there. As I am sitting here I am not lying about the phone call. When he rang me I distinctly told him I did not want him to come to my house, I was at my house on my own and my husband was at work and I did not want him to come. Like I said, his reply to me on the phone was, "Sorry Muriel, I am in my car, I am on my way." Q. You understand A. That's what he said to me. Q. So there is no doubt we have to do this as part of the court procedure. I am suggesting to you that he did not say that at all? A. That's your suggestion, I am telling you what he said to me on the phone. Q. And in fact he told you he was ringing about the letter to the ombudsman? A. No, he didn't mention anything about a letter, he just said he needed to come and see me and Gary and I explained to him that I was at the house on my own and I did not want him to come there. Q. I am suggesting to you that he did tell you about the letter to the ombudsman and that was a bit shock to you because you didn't know he'd have it? A. No, I don't think he mentioned anything about a letter." (Transcript before Colexfax SC DCJ, T 315 line 8 to T 316 line 30) 68Mrs Campbell said at the first hearing that not only were Mr Manns and Mr Wells not mentioned, but that the plaintiff did not even mention having the Deputy Mayor with him; the first she knew was when the Deputy Mayor got out of the car (T 317). 69Mrs Campbell made a statement that formed part of the exhibits for the first hearing (Exhibit 5). Significantly, she sets out that the plaintiff said "I'm in my car on my way to your house to come for a meeting". The location of being "in my car" was inconsistent with the plaintiff's evidence at the first hearing but consistent with his evidence before me, where he agreed that he telephoned her from his car. It is not in dispute that Mrs Campbell told him her husband was not home. What is in dispute is, therefore, whether she told him she did not want him to come, and whether he said he was already on the way and would be there in ten minutes. 70According to Exhibit 5 and to her evidence in both proceedings, she then telephoned her husband at Bermagui Public School, told him the mayor was on the way, and asked him to come home immediately. She asked him to "Tell Noel Rutherford you can't do the homework centre because I need you here" (Exhibit 5, paragraph 8). She also rang the defendant and said "I'd rather if I had someone here 'cause I don't want to be at my house on my own. I asked him to come after Gary got off work, but he told me no, he's coming now." (Exhibit 5, paragraph 9). Mrs Campbell goes on to say in paragraph 10: "I was extremely upset and very anxious that I was alone. I was frightened of the Mayor coming when I was alone, I didn't want to be in my house when I was alone." 71Mrs Campbell's evidence in these proceedings was along similar lines: "Q. What did he say on the phone? A. He rang me and I asked him who was it, he said, "It's me, Tony Allen," I asked him what he want, he said in a very scary voice he said to me, I've started carrying on about, "I want my name retracted," I didn't understand what he was saying but it he was carrying on about a letter and I started getting a bit scared because even though I told him I was at my house on my own, my husband was at work, I did not want him to come there, he literally stood over me on the phone and said, "I'm very sorry but I'm in my car and I am on my way." Q. Did you want him to come? A. No, I did not. Q. He mentioned this letter of 22 October, did he? A. The 26th. Q. That's the one you wrote to the ombudsman? A. Yes, it is. Q. Just before you wrote that letter-- A. Yes. Q. --you had had home invasion problems, had you? A. Yes. Q. With racist youths, is that right? A. Yes. Q. So you told him you didn't want him to come to the home? A. No, I did not. Yes, I did, I told him I did not want him to come to my house. Q. Tell me about his tone of voice. A. It was very scary, he was actually it's like when you've got somebody telling you what you should do and even if you say no the answer I still, I'm going to do it. It was more of a stand over tactic. I was yeah, I was actually pretty scared because I did not want him to come to my house, I was at my house on my own and I was yeah. Q. He hung up, did he? A. No, he kept on carrying on about the letter and, yeah, after I told him I didn't want him, then he told me that he was still coming whether I wanted him not to or not. Yeah, the conversation ended and that's when I contacted my husband. Q. You contacted your husband-- A. Yes. Q. --by phone? A. Yes. Q. Did you contact anyone else by phone? A. Yes, Sister Laurel LloydJones. Q. That's Sister Laurel LloydJones? A. Yes. Q. What did you say to her on the phone? A. I explained to her that I got a phone call from Tony Allen and I told her what had been said on the phone and I told him that I did not want him-- ... Q. Can you do me a favour? Can you pretend I was there and sort of try and recreate the conversation to the best of your ability? So you're saying hello, this is Muriel, and then say what you said to her, can you do that? A. Yeah, I rang Sister Laurel Lloyd and I Laurel LloydJones, sorry, and I explained to her that I had-- Q. No, you said, hello, this is-- A. "Hello, this is Muriel," and Laurel said asked me was everything okay and I said, "No, look, I've just received a phone call from Tony Allen and he's demanded that he's coming to my house even though I told him that I was at my home on my own, my husband was at work, Gary, and I didn't want him to come, he still said to me, 'It's too late, I'm in my car, I'm on my way.'" EVATT Q. Did you tell her anything about the letter? A. Yes, he was I told Sister Laurel that he Tony Allen was carrying on about the letter and the only letter that I could think of was the one we had sent to the ombudsman. Q. You rang Gary as well? A. Yes, I did. Q. What did you say to him? The same or different or-- A. Yes, I told him the same." (T 232 line 22 to T 234 line 14) 72Mrs Campbell's distress when giving evidence was obvious in the first hearing, where she broke down when describing having to collect her son from hospital after he was injured in the home invasion (T 301); she said "I don't want to go through this again". Her level of distress when giving evidence before me was palpable. She nevertheless answered questions directly and frankly, and I was impressed by both her honesty and courage. On leaving the witness box she appeared to collapse and had to be helped to a seat, and it was clear that maintaining her composure had been a strain. 73I acknowledge that the findings in relation to Mrs Campbell during the first hearing are that her evidence as to what happened at the meeting were not accepted. However, that does not prevent me from finding that her evidence of what was said on the telephone is not only reliable but consistent with the changed evidence of the plaintiff, namely that he really was in his car when he telephoned her, and was parked at a short distance from her home.

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Mr Campbell 74Mr Campbell gave evidence in the first hearing but was unable to give evidence before me due to a family tragedy requiring his presence in Bermagui. No point is taken concerning his failure to give evidence a second time in these proceedings. 75Mr Campbell worked at the local school, and school hours finish at about 3.30 pm. However, on the day in question, Mr Campbell was working in the after-hours homework centre, which meant that he would not leave school until 5 p.m. Consequently, the inconsistency between the evidence of all the witnesses that these events happened at about 3 - 3.30 pm and the dates recorded on the Deputy Mayor's mobile phone account do not have any impact on whether he was at work or not, because he was working in the after-hours section. 76Mr Campbell's evidence is in fairly narrow compass. He described what his wife said to him as follows: "A. Muriel rang me up while I was at work and she sounded a bit stressed and said like "The mayor is coming and Jeanette Neilson is coming up to see us." I said, "oh when" and she goes, "They're coming straight away" and I said, "Well I'm at work, can you tell them to wait until I come home from work." She said, "No, they're on their way." (T 361) 77Mr Campbell did make these arrangements, and drove home to be present at the meeting. Beyond asking Mr Campbell to confirm that he knew the plaintiff had come about the letter, Mr Connell did not challenge this account of what Mrs Campbell had said. 78Mr Campbell does correct his wife on one detail; she had indeed mentioned the Deputy Mayor, Jeanette Neilson. In addition, it is clear from the conversation that Mrs Campbell did not tell Mr Campbell that she had asked the plaintiff not to come. It was not put to Mr Campbell that he had not wanted the meeting, nor did he volunteer this. He did, however, say that both he and his wife were very stressed because of the home invasion (T 378), that his wife had been particularly affected and became "terribly distressed" when called upon to discuss these events (T 373) and broke down during the meeting. 79Mr Campbell's description of the state of stress he and his wife were in is an indication of how powerful the impact of the home invasion had been on them: "Q. I am suggesting perhaps A. No, there was serious other things on her mind than the water hole at the time, you know, just the pressure and stress of what my family went through. The help we were supposed to receive, you know, we didn't receive it. You know, just all sort of things happen that quick, you know, like yes all of my mind is sort of elsewhere, you know? I was worried about other things that happened to my family. Q. I imagine all the events at the time you were very stressed? A. Yes, stress and that involved as well. Q. Stressed and? A. There was sort of stress involved as well, you know, I was still suffering the things as well, you know, like it was going through my mind, a lot of things. Q. Yes and I imagine that the events of that night with all that stress and so much happening that at times your memory wouldn't be perfect about things at all? A. Yes." 80Mr and Mrs Campbell had suffered a terrifying experience a few weeks before these events. One of their sons had been seriously injured when their home was invaded. Their children, not the invaders, had been charged. They were dissatisfied with the response of police and local government to what they saw as an ongoing problem, and they had written to the Ombudsman. The result had been a telephone call from the plaintiff to advise that he and the Deputy Mayor were in a car a short way from the Campbell home, wanting a meeting which, on any version of these events, was a meeting which was to take place as soon as Mr Campbell could get away early from his school duties. 81The final evidence of relevance is the evidence of the defendant.

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The evidence of the defendant 82The defendant's evidence in the first hearing was as follows: "Q. Then, further down the page on the lefthand side, "3.30 pm (approx) phone call from Muriel Campbell asking for us to go to their place in Hill Street". A. Yes. Q. "BVSC Mayor Tony Allen has rung her to say that he and deputy mayor Jeanette Nielson were on their way over to their place for a chat." A. Yes. Q. "We changed quickly and were there in about 15 minutes. Allen and Nielson were there already sitting in their car. A lengthy - at times very heated discussion took place. Allen and Nielson were there objecting to their being named in the Ombudsman report that Laurel had typed out for the Campbells. By this time Muriel had spelt it out to them in no uncertain terms the treatment that they and other Kooris had received at the hands of police and the louts at Bermagui. They had Tony Allen apologising and promising to now follow, with senior police, the actions of the local police (and this inaction) that have allowed things to get this far." A. That's correct. Q. I suggest to you that insofar as that note records that Muriel Campbell told you that the plaintiff and deputy mayor, Jeanette Nielson, were on their way over to their place for a chat, that that is indeed what Mrs Campbell told you. A. Most certainly not, but that is what my husband recorded it as. She certainly was not saying it was a chat. Q. She was saying that the mayor and Mrs Nielson were coming over, wasn't she? A. She said they were coming. She asked him not to come and he said, "We're coming anyway. I'm on my way." Q. My question was quite simple, wasn't it, it was simply A. He didn't say, "A chat." Q. You see, Sister LloydJones, in the letter which is the subject of these proceedings when you give an account of the phone call - the account of Mrs Campbell telling you about the phone call, you say nothing, do you, about the plaintiff telling Mrs Campbell he was coming over in the company of Mrs Nielson? A. She said that he was coming to her house, I don't believe she even knew that Mrs Nielson was coming." (Transcript before Colexfax SC DCJ, T 513 line 23 to T 514 line 16) 83The defendant's evidence that the plaintiff did not even know that the Deputy Mayor was coming differs from the evidence of Mr Campbell. Given the Campbells' acknowledgement of the impact of stress on their memory, it is more probable than not that the plaintiff said that they were both coming. However, the real issue is not whether the plaintiff was coming alone, but whether Mrs Campbell was upset, scared or frightened by the prospect of the visit and, if so, whether the plaintiff's request for the meeting in these circumstances amounts to conduct which may amount to evidence of truth of the imputations. 84The defendant's evidence in the proceedings before me that Mrs Campbell rang her, sounding as if she was crying and saying: "A. Sorry. She said, "Laurel, can you come to my house very quickly. I've had a very bullying phone call from the mayor. He said he's coming straight away because he has a letter and he wants me to retract or something" she said." (T 279) 85As she had said in the first hearing, she stopped to change her trousers, as she had been gardening, asked her husband to accompany her, and arrived at the Campbell home about fifteen minutes later, at which time she saw the plaintiff, Deputy Mayor and Mr Manns outside the Mayor's car (T 281 - 2). 86In cross-examination the defendant denied that Mrs Campbell had asked her down just to "keep her company" (T 286), saying that Mrs Campbell was afraid (T 290). It was not put to Mrs Campbell that she had asked the defendant to her home only to keep her company. 87Mr Connell's submission is that I should not accept any of the evidence of the defendant because of the adverse findings made against her by the trial judge at the first hearing (T 296 - 8). Nevertheless, he cross-examined the defendant on a number of issues on the basis that these matters went to my findings on credit (T 298), although he restricted the issues in order to preserve his entitlement to rely upon the adverse findings made by the first trial judge. In particular, he cross-examined her (as he had done with Mrs Campbell) about whether the word "retract" was used. 88The defendant's evidence on this issue is of marginal relevance. The salient points of her evidence, namely that Mrs Campbell rang to ask her to come to her home immediately, and that the defendant effectively did so, are largely unchallenged, and corroborative of the evidence of Mrs Campbell that she was scared, did not want to be alone when the plaintiff came, and wanted support because she was expecting the meeting to start when the plaintiff arrived, rather than when her husband arrived home from the school. 89By agreement, the defendant's husband was not called, although the transcript of what he said at the first hearing was tendered. His evidence consists of what his wife told him that Mrs Campbell had said and is of little weight. He made a diary note, about which the defendant was cross-examined in the transcript extract above. His evidence is of limited assistance at best.

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The s 25 defence 90Counsel for the plaintiff provided me with a copy of his written submissions in the first hearing concerning, inter alia, the s 25 defence in relation to each of the imputations. The evidence relied upon for the two imputations concerning the telephone calls is set out in these submissions in a list of transcript references (submissions book, page 119). The plaintiff relies upon this evidence (summarised at submissions book, page 37) as demonstrating that the plaintiff "did not attend her [Mrs Campbell's] home", was not aggressive, complied with Mrs Campbell's wishes, and had "no intention of not complying with her wishes". Additionally, submissions were made that none of the defendant's witnesses were witnesses of credit (submissions book, pages 115 - 199). 91Essentially, the same submissions are made again before me, with renewed force, in that Mr Connell submits that I am estopped by the findings of credit made by Colefax SC DCJ as to the lack of credit of the defendant and all witnesses called by her. 92I shall first set out his Honour's findings. At [32]-[33] of his Honour's judgment, Colefax SC DCJ found that after the plaintiff telephoned Councillor Neilson, he telephoned Mrs Campbell and "told her that he had a letter that he wanted to speak to her and her husband about. Mrs Campbell said her husband would be home at 3 p.m. and asked the plaintiff to wait until then. The plaintiff says he agreed." His Honour then went on to make findings of fact in relation to the events of the meeting, and at [137] and [138] of his judgment set out the following findings in relation to the defence: "Substantial Truth/Justification: 137. The test for determining whether an imputation is substantially true is well established: "The defence depends upon the substantial truth of the defamatory meaning conveyed by a libel. Every material part of the imputations upon the plaintiff contained in the words complained of must be true; otherwise the justification fails as an answer to the action." (See Howden v Truth & Sportsman Ltd (1937) 58 CLR 416 at 420 per Dixon J.) 138. This defence can be quickly despatched. As I have already found, there was no substantial truth in the publication." 93At paragraph 2 on page 36 of the plaintiff's written submissions there is a reference to a statement to this effect in Cross v Queensland Newspapers Pty Ltd [2008] NSWCA 80 at [71], noting this test was applied in Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [274]. 94Colefax SC DCJ's findings in favour of the plaintiff on the s 25 defence were set aside in part on appeal (Lloyd-Jones v Allen [2012] NSWCA 230), for the following reasons (at [32]-[37]): "[32] Under s 25 of the Act the issue is whether the defamatory imputations are substantially true. Where the defence is pleaded to multiple imputations the court is required to consider the evidence in respect of each imputation in order to determine whether or not the defendant has proved that it is substantially true. In this case, based on the statements in the letter, imputations (a) and (c) concerned the respondent's conduct during the telephone conversation, and imputations (b) and (d) concerned his conduct at the meeting. [33] The trial judge's finding upon which the defence to all the imputations was rejected was expressly confined to the respondent's conduct at the meeting, and followed a detailed analysis of the evidence of what happened on that occasion. He undertook no analysis of the evidence of, and made no finding as to the respondent's conduct during, the telephone conversation. [34] Conflicting versions of a telephone conversation was given by both the respondent and Mrs Campbell. The respondent denied that his attitude was over-powering and bullying. He asserted the imputations were false. He denied he told Mrs Campbell he would be coming to her home in 10 minutes, although she had requested him to delay until her husband was there. Mrs Campbell's evidence included the following: Well I got a phone call from Mr Allen and he asked me if he could come up to my house to have a meeting with me and Gary and I explained to him that I was at the house on my own. I told him I didn't want him to come there because I was just still terrified about what happened and I specifically told him I did not want him to come, I was at the house on my own. But his reply to me on the phone was, "I'm sorry Muriel, but I am on my way" and then he hung up. I started to panic. [35] The appellant gave evidence of Mrs Campbell's distress and anxiety as a result of the conversation. [36] The issue of the truth of imputations (a) and (c) necessitated resolution of the competing accounts of the telephone conversation, and of the respondent's conduct during it. The trial judge's failure to do so precluded rejection of the defence that these imputations were substantially true. [37] There was no challenge to the trial judge's conclusion in respect of the respondent's conduct at the meeting, and the consequential rejection of the defence of truth to imputations (b) and (d)." 95The correct approach to the issue of the truth of imputations (a) and (c) involves resolution of the competing accounts of the telephone conversation and the plaintiff's conduct during it. These were findings of fact not made by the trial judge. 96In Howden v Truth & Sportsman Limited (1937) 58 CLR 416, the publication asserted that the plaintiff had been convicted of fraud when the sentence had in fact been quashed. The defence of justification, struck out for the reasons outlined by Dixon J at 420 - 421, related to the proof of falsity of these facts, and not to an imputation which included more than primary fact-finding, namely an assessment of an evaluative nature, required by reason of the terms in which these imputations are expressed. Similarly, the imputations in Cross v Queensland Newspapers Pty Ltd were allegations of "ripping off" investors and employees. 97The imputations in Herald & Weekly Times v Popovic fell into a different category, in that the imputations pleaded by both the plaintiff and defendant included an imputation of bullying which, in the case of the defendant's imputation, was asserted to be true. The jury rejected the defendant's plea of justification to the Polly Peck (Polly Peck (Holdings) Plc v Trelford [1986] QB 1000) imputations. The very nature of the role of the jury may have meant that, as juries are commonly instructed to do, they brought into their considerations the kind of evaluative assessment that the High Court of Australia, in Harbour Radio Pty Ltd v Trad (2012) 292 ALR 192, would direct that judges determining justification defences in relation to imputations of this kind should use. 98Both Colefax SC DCJ and Nicholas JA considered the justification evidence on the objective evidence, where the credit of the witnesses played a crucial role in determining the version of events to be accepted. Mr Connell submits that I should, conformably with the findings by Colefax SC DCJ that the defendant and her witnesses were not persons of credit, not accept their evidence, prefer the evidence of the plaintiff and his witnesses, and make findings accordingly. This is the course Mr Connell urged upon the Court of Appeal, as his submissions in that Court (as well as to me) make clear. 99The difficulty I have with this course is that, even if I accept the evidence of the plaintiff, the Deputy Mayor and Mr Manns and prefer it to the evidence of the defendant and her witnesses in relation to the issues of fact determined in the first hearing, it is still necessary for me to consider the objective evidence in these proceedings (upon which there was no fact finding in the first hearing) and then to make the judgment of an evaluative nature that the parties agreed, in their oral submissions, is necessary for imputations of this kind, by a careful analysis of the facts found, in the manner explained by the High Court in Harbour Radio v Trad, supra. 100The High Court handed down Harbour Radio Pty Ltd v Trad on 5 October 2012, three months after the Court of Appeal's judgment in Lloyd-Jones v Allen, supra, was handed down. In Harbour Radio Pty Ltd v Trad, supra, at [53] - [59], the High Court held that the Court of Appeal had taken an erroneous approach to the justification of imputations which, like the imputations before me, involved more than primary fact-finding, namely that an assessment of an evaluative nature is required by the terms in which the imputations are expressed, as is apparent from their content. The High Court explained this process as follows: "[53] For its part, 2GB submits that the Court of Appeal was correct in its identification of the right-thinking community member test, but erred in holding that the primary judge had not applied it and, on remitter from this court, itself should apply it. [54] The invocation of "right-thinking" persons as a criterion of the defamatory nature of the matter in question was doubted by Griffith CJ in Slatyer v Daily Telegraph Newspaper Co Ltd if it identified anything other than "a man of fair average intelligence". More recently, in Radio 2UE Sydney Pty Ltd v Chesterton, French CJ, Gummow, Kiefel and Bell JJ disfavoured any additional requirement of "right-thinking" and preferred, as the referee of the issue of whether a person had been defamed, an audience composed of ordinary decent persons, being reasonable people of ordinary intelligence, experience and education who brought to the question their general knowledge and experience of worldly affairs. Their Honours added that such a criterion "may be seen as a benchmark by which some views would be excluded from consideration as unacceptable". [55] A legislative objective of the procedures under s 7A of the 1974 Act was to overcome the complexities said to arise from the common law division of functions between judge and jury. Chesterton concerned the alleged inadequacy of jury directions at the second stage, under s 7A(3), when the jury determined whether the matter complained of carried the imputations and, if so, whether they were defamatory. Under s 7A(4) McClellan CJ at CL alone was required to determine all issues of fact and law relating to 2GB's defences. [56] Issues of fact upon which a defence of substantial truth turns may present a ready choice for decision by the judge sitting, as did McClellan CJ at CL, at the s 7A(4) stage. But in other cases the imputation may depend upon more than primary fact finding. Upon that factual substratum an assessment of an evaluative nature may be required by the terms in which the imputation is expressed. Imputation (g) is of that character. In such a case the judge should look to the reaction of an audience composed in the manner as described above by reference to Chesterton. [57] This is not how the primary judge proceeded, nor, having found error by the primary judge, did the Court of Appeal proceed in this way in the determination of imputation (g). Moreover, as 2GB submits, the Court of Appeal misconceived the primary judge's approach to imputations (b), (c) and (d). His Honour's consideration of the application of a test based on community standards was confined to the substantial truth of imputation (g). [58] The findings by McClellan CJ at CL respecting the views held by Mr Trad on the topics of women victims of sexual violence, homosexuals, Jews, child martyrs, terrorism, Anglo-Irish Australians and Hindus informed his conclusion of the substantial truth of imputations (b), (c) and (d). His Honour found that the communication of Mr Trad's views demonstrated the substantial truth of the imputation that he incites people to commit acts of violence (imputation (b)) and that he is a dangerous individual (imputation (d)). He found that Mr Trad's encouragement of others to share his views demonstrated the substantial truth of the imputation that Mr Trad incites people to have racist attitudes (imputation (c)). [59] In the Court of Appeal Mr Trad challenged the factual basis of the findings by McClellan CJ at CL: grounds 4-9. His appeal respecting the adverse truth findings succeeded on a ground not taken by him, that McClellan CJ at CL had proceeded on "a false basis". In the absence of a notice of contention by 2GB seeking to uphold the findings on any different basis, the Court of Appeal found it unnecessary to address the parties' submissions as to the factual basis for them." 101In Trad v Harbour Radio Pty Ltd (No 2) [2013] NSWCA 477 the Court of Appeal again upheld the defence of justification, but for different reasons as is explained at [64]: "[64] These conclusions differ in part from those reached by the court in the first appeal. However, with respect to imputations (d) and (g), the findings of the trial judge were rejected because the conclusion appeared not to be based upon the standard of "right-thinking members of the community". This court, wrongly as the High Court has held, failed to address the question by reference to the correct test. Further, in order to address the question, it would also have needed to form views about other findings which were not reconsidered. These include the questions relating to further injury to the appellant's reputation by imputations (h) and (k), viewed in the light of the bases on which the contextual imputations have been sustained." 102Having noted these general principles, I now set out my findings.

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Findings of fact 103The above facts set out the background, call content, the timing of the call and the meeting, the persons the plaintiff and Mrs Campbell asked to be present and the reactions of both the plaintiff and the Campbells to the proposed meeting. 104I am satisfied that Mrs Campbell said she was at home alone, indicated she did not want to meet the plaintiff without her husband and that he was still at work, and indicated that she did not want a meeting in her home. When seeking to fix a time to come to her home, the plaintiff indicated not only that he was "on the way" but that he was in his car, in the sense of being a very short distance from her home, having driven from Bega for that purpose. I am also satisfied that, this being the case, he said he wanted to have the meeting by using the language of immediacy, as opposed to being prepared to wait for Mr Campbell to finish work. Whether he actually said "in ten minutes" or some other time period, he was asking for a meeting as soon as possible. I also find that, either expressly or impliedly, he indicated that he had driven to Bermagui for this purpose and wanted the meeting to take place, and was prepared to push this point over the reluctance of Mrs Campbell who, I accept, did not want to have a meeting, and certainly not one at such short notice. 105I am satisfied that Mrs Campbell's state of mind was that she was "scared", not only by his call and the prospect of an imminent meeting with the plaintiff and with the Deputy Mayor without someone to support her, but also by the prospect of the plaintiff having some issue with the Campbells' letter to the Ombudsman, and that this was why she wanted a support person. There is no dispute that Mrs Campbell was not told that either Mr Mann or Mr Wells was invited, and I find she rang the defendant because she wanted a support person present (and not just for company, as Mr Connell submits). 106Whatever the timing of the telephone call and meeting (and I note the conflict between the telephone records and all of the witnesses on this issue), I am satisfied that Mr Campbell had to leave the school early to attend the meeting, and that his consent to the meeting was not sought by the plaintiff.

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Conclusions concerning imputation (a) 107Imputation (a) is that the plaintiff conducted himself inappropriately as Mayor in that he bullied a woman. Given the limited parameters of fact finding, I take into account the circumstances of the telephone call which are in evidence before me, but I also note the findings of fact adverse to the defendant and her witnesses as made by Colefax SC DCJ in the first hearing. 108Before applying the community standards approach explained by the NSW Court of Appeal in Trad v Harbour Radio, supra, I should consider whether the facts without that evaluative test are sufficient. 109The plaintiff, a high official, telephoned a woman he had met once before, who had been the victim of a frightening home invasion a matter of weeks before, wanting to meet her and her husband at their home more or less straight away. Although the plaintiff's explanation was that he was puzzled by the Campbells' complaint, it is clear he wanted to discuss a letter of complaint she and her husband had sent to the Ombudsman, the contents of which he thought were inaccurate. He gave no notice of his intention until he arrived a short distance from their home, such as to amount to very little notice to Mrs Campbell, and no notice at all to Mr Campbell, who was not at home. At T 219 the Deputy Mayor stated that it was inappropriate to go to someone's home without notifying them; I consider that the degree of notice given to the Campbells of this meeting was so insufficient as to amount to an inappropriate lack of notice, particularly given the subject matter of the visit. 110Mrs Campbell said in cross-examination that the reason she rang the defendant was that the plaintiff spoke to her in an "inappropriate" way, "bullying me on the phone" (T 245). I am satisfied that she felt bullied, and that she was entitled to feel this way by reason of the contents of the call, as set out above. 111However conciliatory the plaintiff may have been at the meeting (for example, he comforted her by putting his arm around her when she started crying), this meeting was doomed from the start by the inappropriate way that it was set up. The plaintiff should not only have consulted both Mr and Mrs Campbell about such a meeting, but inquired what support persons they might want, and told them that he intended to bring Mr Manns and Mr Wells. Indeed, Mr Manns said he would only attend if the Campbells wanted him to do so, and the plaintiff's failure to tell the Campbells that Mr Mann was coming is an indication of the hasty and inappropriate way that this meeting was planned, as is the late arrival of Mr Wells. These findings of fact support a finding in favour of the defendant as to the defence of justification for this imputation. 112As to the principles set out in Trad v Harbour Radio, supra, I note Mrs Campbell's response that the circumstances of the plaintiff's call "would be enough to scare anyone" (T 245). However, that is not evidence of community standards, and I have disregarded it. 113Applying community standards to the findings of fact set out above, a visit by a senior official such as the Mayor to the home of someone he had met once before, for the purpose of discussing a complaint made about him to the Ombudsman, would be enough in itself to be bullying conduct. For a senior official, or a police officer, or a politician to go to the home of someone who has made a complaint about them, however misguided or wrong that complaint may be, is conduct which by community standards would be inappropriate, especially if the official in question had only a brief professional acquaintance with the complainant of the kind that was the case here. The fact that the meeting was arranged at such short notice was also inappropriate, particularly since Mrs Campbell was not told that the plaintiff was bringing support persons. The presence of the Deputy Mayor would not have made the visit any the less alarming. Also of relevance to community standards would be the vulnerability of the Campbells as the victims of a frightening home invasion a matter of weeks before, in which racial tensions appears to have been a feature. No matter how conciliatory and friendly the plaintiff may have been at the meeting (and I note the findings of Colefax SC DCJ in favour of the plaintiff), the manner in which it was set up on the telephone would be, from the viewpoint of community standards, inappropriate in that it was bullying conduct to have set up the meeting in this fashion. 114The defendant accordingly succeeds in relation to the defence of justification to this imputation.

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Damages 120I first set out the manner in which the task of assessing damages in this rehearing must be approached. In Lloyd-Jones v Allen, supra, at [86] - [87], Nicholas AJ stated: "[86] In my opinion: (1) The defence of qualified privilege in respect of publication to the Committee should be upheld; (2) The defences of qualified privilege in respect of the publications to the news desk of "The Sydney Morning Herald" and to Sarah Curnow from Four Corners were not established; (3) The defences of comment and honest opinion were not established; (4) The defence of truth of imputations (a) and (c) was not decided. It remains open in respect of the publications to "The Sydney Morning Herald" and to Sarah Curnow from Four Corners. [87] These conclusions necessitate the setting aside of the award of damages. The respondent's claim for damages will depend on whether or not the appellant establishes the defence of truth to imputations (a) and (c) in respect of the publications to "The Sydney Morning Herald" and to Four Corners. There should be a new trial limited to these issues." 121Both the plaintiff and the defendant submitted that, rather than attempt to tailor the assessment of damages made in the first hearing (which included not only the imputations the subject of this judgment, but the additional publication to the committee members), I should approach the assessment of damages afresh. 122The issues which fall for consideration are: (a)The purposes of an award of damages in defamation: Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90 at [73] - [74] per Macfarlan JA. This includes the correct approach to the evidence of hurt to feelings, the seriousness of the allegations and the nature of the publication; (b)The appropriate principles to apply where the extent of publication is limited: Cerutti v Crestside Pty Ltd [2014] QCA 33 and the appropriate discount to apply where one or more of the imputations pleaded was proved to be true: Holt v TCN Channel Nine Pty Ltd, supra; Holt v TCN Channel Nine Pty Ltd [2012] NSWSC 770; Cerutti v Crestside Pty Ltd, supra, at [64] - [77]; (c)The plaintiff's claim for aggravated compensatory damages; (d)Matters raised in mitigation of damages, including publication of an apology and evidence concerning the failed plea of justification (Holt, supra at [26] - [32]).

[20]

The evidence in relation to damages 126The evidence in relation to damages in these proceedings must commence with the evidence of the plaintiff as to his own hurt to feelings. 127The plaintiff is a well-known and widely respected member of the Bega Valley Shire community whose role in local government over a lengthy period and good reputation was the subject of evidence by the Deputy Mayor (T 199), Mr Constance (T 138 - 9), Mr Cruse (T 43 - 48) and Mr Manns (T 223). Mr Constance, a Minister in the NSW Government, described him as having "enormous commitment and passion about the Bega Valley" (T 139) in local government and government circles generally. 128The plaintiff's evidence was that he found the publication gut-wrenching, and that he had to continue with the case because there was no other way to restore his reputation (T 88, 108 - 9). He had brought these proceedings to defend his integrity, which he considered had been challenged both by the Campbells' letter to the Ombudsman in 2006 (T 52) and by the matter complained of, which repeated these false claims. When the defendant publicly advertised for funds to conduct her defence and used an illustration of the three wise monkeys in the advertisement, this "basically gutted me as a person" and he "just couldn't describe to the court" the depth of his feelings (T 8882). Mr Connell draws to my attention that this sensitivity to the funding advertisement illustrated the plaintiff's fragility and how difficult the process of going through this litigation had been for him. He had been placed under great pressure in going through this litigation. 129Evidence of this kind is generally given in defamation proceedings; its absence may be an occasion for remark: Ell v Milne (No 8) [2014] NSWSC 175. Such evidence should be viewed in the context of the facts of the case. 130The plaintiff's demeanour in the witness box was that of a confident and successful businessman, with long experience in local government. Although he spoke of distress, the impression with which I was left was that he was angry, first that the complaint had been made to the Ombudsman in 2006, and then that these claims, as well as a description of his subsequent meeting with the Campbells, had been repeated to the Premier of New South Wales and to the media in the matter complained of. 131The circumstances in which the matter complained of was written are self-evident from its contents. That document is the key to the factual issues in this case. The matter complained of outlines the circumstances in which the Campbell family had been the victim of a series of incidents including a home invasion and, most recently, an assault, over a three-year period. The principal concern of the letter to the Premier is the conduct of the police over this period. The references to the plaintiff are at paragraphs 12 - 14 and relate to the history of the Campbells' requests for assistance rather than to conduct warranting investigation as part of the conduct of police. 132The first issue is the question of the seriousness of the imputations. This is often a question of degree as well as context. Imputations of criminal conduct are at the highest level of seriousness. Imputations of personality defects, such as selfishness, arrogance or bullying, tend to fall at the lower end. All of the imputations pleaded fall into this category. 133The first task I have is to assess what the damages would have been but for the mitigating effect of two of the imputations being substantially true, this being the course taken by Margaret Wilson J in Hallam v Ross (No 2) [2012] QSC 407 and approved by the Queensland Court of Appeal in Cerutti v Crestside Pty Ltd, supra, at [66]. Margaret Wilson J found that damages would have been assessed at $20,000 were it not for the mitigating effect of two of the imputations being substantially true. The two imputations, which were serious, contributed to the hurt and distress of the plaintiff but after allowance for their mitigating effect, damages were reduced to $12,000. A similar course was taken in Cerutti v Crestside Pty Ltd, supra, and by both the trial judge and the Court of Appeal in Holt v TCN Channel Nine Pty Ltd [2012] NSWSC 770 and Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90. 134This brings me to the manner in which the discount should be applied. Each of the plaintiff and defendant took an extreme position. The plaintiff submitted that no discount should be made at all. The defendant submitted that contemptuous damages of the lowest coin in the realm should be awarded.

[21]

The impact upon damages of partial success under s 25 135First, I note that where a defendant has not entered a plea of justification, evidence of the truth of the defamatory statement is not admissible in order to mitigate damages: Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312 at [273] per Gillard J. However, where evidence introduced in support of justification partially justifies one or more of the imputations pleaded, the award of damages should be mitigated accordingly: Associated Newspapers Ltd v Dingle [1962] 2 All ER 737; Pamplin v Express Newspapers Ltd (No. 2) [1988] 1 All ER 282 at 287 per Neill LJ, cited in Newsgroup Newspapers Ltd & Anor v Campbell [2002] EWCA Civ 1143 at [30]; Li v Herald and Weekly Times Pty Ltd [2007] VSC 109 at [89]; see also Mahommed v Channel Seven Sydney Pty Ltd [2009] NSWSC 631 at [296]. 136The submission by the plaintiff that no discount in damages should occur is inconsistent both with the authorities set out above and with Besser v Kermode [2011] NSWCA 174. In holding that the provisions of s 26 Defamation Act 2005 (NSW), prevented the "pleading-back" of the defendant's imputations, McColl JA (at [86]) stated that a defendant seeking to justify defamatory matter under the 2005 Act could "to the extent that the defendant fails to establish all the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, rely on those proved to be true in mitigation of the plaintiff's damages: partial justification". The NSW Court of Appeal has explained and applied these principles in Holt v TCN Channel Nine Pty Ltd [2012] NSWSC 770. At the time these proceedings were heard, the Court of Appeal had not yet handed down its judgment dismissing the appeal, and the correctness of Adamson J's approach (relied upon by Mr Evatt, but challenged by Mr Connell) has been endorsed. 137Mr Connell's reliance upon Tobin & Sexton, Australian Defamation Law & Practice (LexisNexis) at [22,115]) to assert no deduction should be made is also misconceived. This section relates to issues of mitigation of damages and to the warning given by the New South Wales Court of Appeal in Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232 at 287 that the principles enunciated in Burstein v Times Newspapers Ltd [2001] 1 WLR 579 should be approached with caution, as its applicability under Australian law was still undecided. These principles would not in any event be relevant where a defence of justification has been partially successful. 138This brings me to Mr Evatt's competing submission, namely that damages for the remaining two imputations should be reduced to a "vanishing point" (Pamplin v Express Newspapers Ltd (No. 2), supra) and an award of what Mr Evatt called "nominal damages" of only five cents ($0.05) be made. 139Although Mr Evatt categorised such an assessment as "nominal damages" (referring to the famous one farthing damage awards in Kelly v Sherlock (1866) LR 1 QB 686 and Dering v Uris [1964] 2 QB 669), awarding the lowest coin in the realm is in fact a contemptuous, rather than a nominal, award of damages: Brown on Defamation, 2d (Thomson Reuters) at [25.7] at fn 2031 and [25.8]; Pamplin v Express Newspapers Ltd (No 2) [1988] 1 All ER 282 (one halfpenny); Bailey v Truth and Sportsman Ltd (1938) 60 CLR 700 (one farthing). Mr Evatt has confused these two different kinds of damages awards. 140Despite the cap on damages under the uniform legislation being designed to mirror similar capped damages legislation, awards of nominal damages are rare, and contemptuous damages non-existent. The only award described as nominal damages under the uniform legislation is the damages assessment in Beaven v Fink [2009] NSWDC 218, where $2,500 was awarded for a slander to one person (affirmed in Fink v Beaven [2010] NSWCA 92). The damages award of $4,500 for the mass media publication in Holt, supra, was referred to by the trial judge as an amount which was "slightly, but not substantially, more than derisory" (at [54] and [62]) and by Macfarlan JA as "undoubtedly small" ([2014] NSWCA 90 at [76]). 141Holt is an important decision on these issues, but care must be exercised, as this was an award of damages for a mass media publication, and the substantial truth defence succeeded in relation to the defendant's contextual imputations. The awards of damages in Cerutti v Crestside Pty Ltd, supra, and in Hallam v Ross, supra, are a more reliable guide, since both awards are made for non-media publications of a limited nature, where a defence of justification has succeeded in relation to certain of the plaintiff's imputations. 142The publication was made to the two named journalists and the news organisations for which they worked. I take into account that there was coverage, in the Sydney Morning Herald of 4 March 2009, of the circumstances in which the Campbell family was assaulted for a second time on January 1, 2009, which referred to the defendant's letter to the Premier about this (Exhibit 7). However, there is no reference to the plaintiff or to any of the events the subject of this litigation, as Mr Evatt pointed out. 143In Hallam v Ross, supra, Margaret Wilson J concluded that a similarly limited publication, of imputations of a more serious nature, warranted an award of $20,000 (reduced accordingly to $12,500). The Queensland Court of Appeal in Cerutti v Crestside Pty Ltd, supra, similarly considered that limited publication of imputations of a more serious nature warranted an award of $20,000 (reduced accordingly to $15,000), although aggravated compensatory damages were also included. 144Taking into account the lower level of seriousness of the imputations in these proceedings, an appropriate award of damages for all four imputations is $10,000. For the reasons explained by Applegarth JA, it would be erroneous to apply a 50% discount because two of the four imputations have been established to be true. While there is a degree of overlap and similarity between the language and content of the imputations, the imputations relating to the events at the meeting are of slightly more weight, and the reduction for the imputations which relate more to the contents of the telephone conversation should accordingly be less than 50%. I accordingly propose to award the sum of $6,000 general damages. 145In the event that I have erred in holding that the defence of justification is made about to the two imputations the subject of these proceedings, the amount that I would have awarded would be $10,000. 146In assessing this sum, I have not made allowance for the other bases upon which the defendant relied in relation to mitigation of damages. I note that, in the course of the hearing, I refused to allow the defendant to lead evidence of the plaintiff's bad reputation. This was firstly because the defendant had specifically abandoned any such plea, in the course of pre-trial correspondence and, secondly, because the evidence of mitigation was not in the relevant sector of the plaintiff's reputation: Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430 at [22]. 147The second issue raised as mitigation was the "apology" offered by the defendant to the plaintiff in court. The text of the 20 July 2010 apology was: "On 7th February 2009, I Sister Laurel Lloyd-Jones, made statements about the Mayor, Councillor Anthony Allen. My intention was not to hurt Mr Allen but to stand up for the truth and in support of my clients, the Campbell family. If Mr Allen has suffered as a result of my statement in regard to his actions, then I extend my compassion and sorrow for his suffering as this was genuinely not my intention. The stating of what I believe to be the truth holds a most fundamental importance in my life from which I cannot defer." 148The contents of this apology, and in particular the last paragraph, fail to acknowledge any of the elements of the plaintiff's claim and come close to amounting to a repetition of the libel. 149The next issue for determination is the question of aggravated compensatory damages. Although Mr Evatt appeared to submit that aggravated damages could not be awarded where a defence of partial justification succeeded, such an award was made in Cerutti v Crestside Pty Ltd, supra (at [76]).

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Aggravated compensatory damages 150For an award of aggravated damages it must be demonstrated that the impugned conduct was lacking in bona fides or improper or unjustifiable in all the circumstances: Triggell v Pheeney (1951) 82 CLR 497 at 514 per Dixon, Williams, Webb and Kitto JJ. 151The plaintiff relies upon the written submissions made at the first hearing in seeking an award of aggravated compensatory damages . The written submissions provided to Colefax SC DCJ identified (at pages 28 - 31) seven bases for seeking such an award: (a)The defendant's failure to inform the plaintiff of the allegations before publishing the matter complained of. (b)The defendant's knowledge of the falsity of the allegations (c)The defendant's failure to apologise, the "apology" given in court being a maintaining of the truth of the libel. (d)The defendant's conduct in taking part in interviews about the litigation: Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [79] - [85]. (e)The defendant's conduct in putting on the record defences of truth and contextual truth, and bad reputation, and maintaining these: T&S 22-035 and 22-075. In particular it was submitted that the contextual imputations were false and "over the top". I note that the claim of bad reputation was abandoned before the trial. (f)The conduct of the case by the defendant's legal representatives, including calling the case an abuse of process and "even going to the point" (submissions, page 30) of suggesting to the plaintiff in cross-examination that he brought these proceedings to shut the defendant up, and that his bringing of the claim was bullying (at T 161). I note the same matters were put to the plaintiff in his cross-examination in these proceedings. (g)A general submission that "the conduct of the defendant in aggravating damages should push the award to the very top of the range". 152The most significant basis for the claim is that made for the failure of the defence of justification to imputations (b) and (d), coupled with the withdrawal of the contextual justification defence. This must be addressed on two bases: (a)That the plea of justification succeeds for the two imputations the subject of these proceedings; and (b)That the plea of justification has failed for all four of the imputations.

[23]

The unsuccessful plea of justification to two (or all four) of the imputations and the abandonment of the contextual truth defence 153Colefax SC DCJ awarded aggravated compensatory damages of $15,000 in relation to only one of the issues in Mr Connell's list, namely the making of a plea of contextual truth. No award was made for the failure of the s 25 defence. 154His Honour stated at paragraphs [151] - [152]: "151. Those are disturbing assertions. The plaintiff was clearly and visibly upset when taken to them during his evidence in-chief. My assessment of the plaintiff is that such a display of public emotion was highly unusual for him and extremely embarrassing. 152. The defence of contextual truth was not withdrawn until the defendant commenced her submissions on 23 November 2010. It was submitted that they had to be withdrawn because of the implications flowing in the decision of Kermode v Fairfax Media Publications Pty Limited [2010] NSWSC 852 decided 4 August 2010. However the defendant permitted the pleading to remain on foot for almost four months and caused the plaintiff considerable anxiety leading up to the trial and in his evidence. This is a case which clearly calls for aggravated damages because of the way in which the litigation was conducted. The allegations in the pleadings were in my view totally unreasonable and without foundation. I award aggravated damages in the sum of $15,000.00." 155In Ell v Milne (No 8) [2014] NSWSC 175 at [89]-[90] McCallum J declined to award aggravated compensatory damages for a defence of justification withdrawn during the hearing, as well as for contextual imputations struck out in an earlier argument: "[89] ... The plea of justification, withdrawn well before the final hearing, is a factor capable of increasing the injury to Mr Ell's reputation. The pleading of the defence may have extended the "vitality" of the defamation in the sense considered by the majority of the High Court in The Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 263. Equally, the contextual imputation alleging electoral fraud, which was struck out before trial, was in my view unjustifiably maintained and may have increased the effect of the libel. [90] However, I am not persuaded that the degree to which those factors have in fact aggravated the injury to the plaintiff's reputation is more than very slight. I accept, as submitted by Mr Tobin, that those are matters which have been put on the record and which remain on the record in a formal sense "for many moons". However, the matter has not received the kind of attendance in the public gallery as in some cases over which I have presided. There was no evidence of its having been reported. In my assessment of the circumstances of this particular case, I doubt whether the conduct of the defence in this litigation would have received any serious attention in any person's assessment of Mr Ell's reputation." 156A pre-trial ruling on the contextual imputations in these proceedings was deferred by consent, as the parties were waiting on the Court of Appeal's decision in Besser v Kermode (2011) 282 ALR 314. The contextual imputations were abandoned during submissions, but the gap between the hearing and submissions was no fault of the defendant. 157Assuming some, or even all, contextual imputations had been struck out, the fact that excessively highly pleaded imputations are drafted is not uncommon in defamation litigation and should not be, without more, a basis for the award of aggravated compensatory damages. The robust but reasonable defence of proceedings, including a plea of justification which fails, does not permit an award of aggravated damages; it is the pleading and persisting in a defence of truth without a proper basis which does: Cerutti v Crestside Pty Ltd, supra, at [38]. 158The award of aggravated damages for the failure of the plea of justification to imputations (b) and (d), if seen in context with the success of imputations (a) and (c), would be difficult to justify in terms of the factual overlap of the four imputations. If I have erred in relation to those findings, I would still not have awarded aggravated damages, both for the reasons enunciated by McCallum J in Ell v Milne (No 8), supra, and because of the strong evaluative nature of the sting of the imputations. The defendant was present at the meeting, and was told about the phone call; no matter how poor her credit may be as a result of the findings of Colefax SC DCJ, her conduct lacks the necessary elements for such an award. I note that Colefax SC DCJ did not make such an award either, confining his comments to the impropriety of the pleaded contextual truth imputations.

[25]

Failure to inform and knowledge of falsity 160Whether the relevant conduct warrants such an award will depend on the circumstances of the case: Australian Defamation Law and Practice at [22,045] and [22,060]. In Ell v Milne (No 8), supra, McCallum J noted: "Ms Milne's alleged recklessness in publishing the matter complained of without making inquiries as to the truth of the imputations is not logically a factor that aggravates injury to reputation - the letter says what it says. Ms Milne's failure to make enquiries of Mr Ell prior to publication "as a consequence of which the matter complained of came to his notice without forewarning" is a factor which might have aggravated the injury to Mr Ell's feelings but it is not logically capable of aggravating injury to reputation." 161The same reasoning should be applied here. This is a long letter that, similarly, says what it says, and the failure to make inquiries is not logically capable of aggravating injury to reputation. Similarly, the plaintiff's knowledge of the falsity, even if applied to all imputations rather than two, is not logically capable of aggravating hurt to feelings, given the evaluative nature of the imputations. 162Mr Connell submitted that the findings of fact at the first hearing warranted an award of aggravated compensatory damages and has referred to evidence of the plaintiff's asserted improper motives, which led Colefax SC DCJ to make a finding that she had been actuated by malice. I first note that, when awarding damages, s 36 requires the court to disregard the malice or other state of mind of the defendant except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff. While malice or reckless indifference does not warrant an award of aggravated damages of itself, the plaintiff's awareness of the defendant's state of mind may aggravate the hurt to feelings: Cerutti v Crestside Pty Ltd, supra, at [40]. However, the Court of Appeal in Lloyd-Jones v Allen, supra, set aside the trial judge's findings as to the defendant's malice. 163While I am constrained by the findings of fact of the first hearing in relation to the imputations to which the defence of substantial truth has failed, I am of the view that each of the plaintiff's claims for aggravated compensatory damages is not made out on any of these bases.

[26]

Failure to apologise 164Damages may be increased by an unjustifiable failure to apologise, but this will depend upon the circumstances, including whether an apology was sought and, if no apology was sought, whether the failure was lacking in bona fides, improper or unjustifiable: Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 659 - 60. The mere absence of an apology is not sufficient: Shepherd v Walsh [2001] QSC 358 at [69]. In Carson v John Fairfax & Sons Pty Ltd (1992 - 3) 178 CLR 44 at 66 Dean, Dawson and Gaudron JJ commented that they had "difficulty in understanding how the mere absence of an apology can aggravate damages... No doubt want of an apology may be a relevant factor in establishing that the defendant is motivated by a desire to injure the plaintiff but that does not mean that want of apology itself aggravates the plaintiff's injury". 165The plaintiff's solicitors' letter of 3 March 2009 (Exhibit E in the first hearing) did not provide the text of an apology, but required the defendant to submit "the draft of a clear and unqualified apology and retraction, to be approved by Mr Allen, for publication to the same persons who received or viewed the matter complained of." However, this letter went much further. It also sought payment of an unspecified sum "in lieu of the damage that has been caused to his reputation and as compensation for his hurt to feelings", an acknowledgement that the defendant had been engaged in a vindictive and unjustified campaign and a demand that she "immediately cease and forever desist" from defaming the plaintiff, plus payment of "reasonable legal costs". 166In Jones v Sutton (No 2) [2005] NSWCA 203 at [44] - [47] the Court of Appeal analysed a letter in very similar terms, including wide-ranging reference to other publications, which put the defendant in an invidious position, and which meant, "more insidiously" (at [47]), that if she had made the apology, she may have been making admissions about other matters. In addition, as is the case here, the making of the apology did not guarantee a response that no proceedings would be taken; similarly, the plaintiff in these proceedings (see Exhibit E) was also seeking an unspecified amount of damages. The Court in Jones v Sutton (No 2), supra, concluded that the request for apology was "unreasonable" (at [67]) and unlikely to promote a resolution of proceedings. In fact, so unreasonable was the apology that it was one of the factors rendering the proceedings an "exceptional case" in relation to the indemnity costs order which would otherwise have been made: at [41] - [42]. 167 Conformably with the reasoning of the Court of Appeal in Jones v Sutton (No 2), I do not propose to award aggravated compensatory damages under this head.

Allen v Lloyd-Jones

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Judgment (29 paragraphs)

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Legislation Cited (1)

Cases Cited (35)

Cited By (2)