Balzola v Passas - [2020] NSWSC 896 - NSWSC 2019 case summary — Zoe

NSWNSWSC

Balzola v Passas

[2020] NSWSC 896

Supreme Court of NSW|2019-04-30|Before: Campbell J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-04-30

Before

Campbell J

Catchwords

[2004] HCA 5 Briginshaw v Briginshaw (1938) 60 CLR 336
[1938] HCA 34 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
[1993] HCA 31 Cerutti v Crestside [2016] 1 Qd R 89
[2014] QCA 33 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519

Source

Original judgment source is linked above.

Catchwords

[2004] HCA 5 Briginshaw v Briginshaw (1938) 60 CLR 336[1938] HCA 34 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44[1993] HCA 31 Cerutti v Crestside [2016] 1 Qd R 89[2014] QCA 33 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519[1998] HCA 37 Coles Supermarkets Australia Ltd v Clarke [2013] NSWCA 272 Feo v Pioneer Concrete (Vic) Pty Ltd [1999] 3 VR 417[1999] VSCA 180 Howden v "Truth" and "Sportsman" Limited & Anor (1937) 58 CLR 416[2018] HCA 25 Umeyor v Ibe [2016] EWHC 862 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118

Judgment (56 paragraphs)

[1]

Judgment

This action for damages for defamation arises out of the proceedings of the Annual General Meeting (AGM) of the Summer Hill State Electoral Conference (SEC) of the New South Wales branch of the Liberal Party conducted on 29 March 2016. The plaintiff, Mr Balzola, was not a member of the SEC or any branch of the Liberal Party within the Summer Hill Electorate. He was a member and President of the Five Dock branch. But he had been invited to the AGM by his friend, Joceline Khachan, who aspired to elected office at the SEC. Ms Khachan had asked Mr Balzola to attend as a scrutineer.

[5]

Issues

In pleadings and interrogatories (Exhibit H) Mrs Passas denies having uttered the words attributed to her by Mr Balzola. She does admit having said to her friends, Kerry-Anne Raiola and Max Raiola, as a whispered aside at the meeting, "I remember reading in the paper and hearing that Balzola had assaulted his wife and that he had had an AVO against him" (Affidavit, Julie Passas 28, January 2019 at [48]); Mrs Raiola said the comment was, "He's been accused of assaulting his wife" (Affidavit, Kerry-Anne Raiola, 29 January 2019 at [16]). Mr Raiola said, the comment was, "[Mr Balzola]" was in the newspaper, it said he assaulted his wife" (Affidavit, Max Raiola, 29 January 2019 at [16]).
In pleadings and his answer to interrogatories (Exhibit N) Mr Raciti denies having uttered the words attributed to him by Mr Balzola. However, in his affidavit (22 January 2019 at [10]) Mr Raciti says that he has no recollection of having made the statements attributed to him or having heard the statements attributed to Mrs Passas. He explained that he had been in denial "for a long time" about suffering depression for which he is now being treated, and he believes that that is the reason why he has "no clear memories" of the AGM of 29 March 2016 (Affidavit at [14] and [16]).
In the alternative, Mr Raciti raises the common law of defence of qualified privilege of reply to attack. This is based upon the evidence of Ms Rosana Tyler (Affidavit, 21 January 2019), an observer at the AGM, who gives evidence that words very much like those attributed to Mr Raciti were spoken by him but only in immediate response to statements which she attributes to Mr Balzola imputing that Mr Raciti was engaged in organised crime as "part of the mafia" and corruption by "preferential treatment" through his wife who serves on the "Council" (Affidavit, Rosana Tyler, 21 January 2019 at [33]).
There are various issues raised concerning damages and in particular the availability of an award of aggravated damages in the circumstances. These need not be identified now.

[8]

The annual general meeting

The AGM was convened to be held in the upstairs function room of Mr Raciti's Haberfield restaurant during the evening of 29 March 2016. The evidence suggests that there were about 30 people present for the meeting. In a handwritten minute of the meeting kept by Mr Balzola because of his role as scrutineer for Ms Khachan he noted total attendees as numbering 29 (Exhibit A, Statement of Robert Balzola, Annexure D). Of that number 22 attendees were qualified to vote, being members of the branches within the Summer Hill electorate. In addition to the 22 electors the evidence shows that Mr Joe Tannous was present as the person appointed by the Liberal Party to conduct the ballot. He had been a member for over 20 years and was the President of the Strathfield SEC, which is an adjoining electorate to Summer Hill, for which reason he was eligible to conduct the ballot. Mr Ken Henderson was present, also as a scrutineer, a Mr Naji Najjar, as an observer, and Mr and Mrs Tyler were also present as observers. The Tyler's may have been eligible to attend as members of the Marrickville branch. They were not eligible to vote as they were not office holders of their branch. These persons bring the total number present to 28, but I garnered the impression from the evidence generally that there may have been other observers also present.
Another general impression arising out of the evidence is that the meeting was boisterous, if not rowdy. It was difficult to hear at times and one had to speak in a loud voice to make one's self heard, even by people closely nearby.
According to Mr Balzola's minute, the meeting got underway at 6:33 pm, but again as a matter of impression, I thought it may have been a little later than that. In accordance with what the evidence discloses was the usual procedure, the meeting was commenced by Mr Raciti as outgoing President of the SEC, giving a President's and Treasurer's report before handing the meeting over to Mr Tannous who declared all offices vacant.
From Mr Balzola's notes (Annexure D), it appears that while Mr Raciti was in the chair the following matters occurred: (1) No previous minutes of AGM; (2) No [treasurer's] report. No treasurer; (3) Declare new chair; (4) Division of meeting; (5) Tannous takes chair; (6) Proxy Forms called for; (7) (Recording of Proxies); (8) No recording; mobiles (? off); (9) Two scrutineers equal Phil Mertone, (?) Robert Balzola; (10) Call roll (of person's entitled to vote). The question marks are mine, querying my deciphering of the notes.
After the calling of the roll, Mr Balzola records that all positions were declared vacant and the ballot for the position of President was conducted. The group that he was there to support was successful and their candidate was elected. Mr Raciti's candidature was unsuccessful by a vote of 12 to 10. His nomination had been moved by Mrs Passas and supported by Mr Cameron Walter, another person who gave evidence.
One might infer that it was from this time, according to Mr Balzola's minute, that things heated up. The next election was for the position of Vice President and Mr Walter was Mr Raciti's and Mrs Passas's candidate. Again his candidature was defeated 12 to 10. At this time Mr Balzola records that Mrs Passas said "My husband will look after the ballot paper". I interpolate that Mr Henderson took a point of order, according to his evidence at this point. Mrs Passas then said, according to Mr Balzola's note, "Thank God, you can pull swifties". Mr Balzola recorded the time as 20:05 hours.
The next position to be filled was that of "Vice President Policy". Initially, something apparently went wrong with the numbers and there was a tied vote. On the second ballot, once again the vote was divided 12 to 10, those opposing Mr Raciti and Mrs Passas again winning the vote. At this point Mr Balzola records that Mrs Passas said "He beats his wife, she has an AVO", and Mr Raciti made the comment "It was in the paper". Mr Balzola recorded the time as 20:30. This is the only other contemporaneous note of a statement against him recorded by Mr Balzola. Thereafter, Ms Khachan was elected Secretary; a Mr Manikas, Treasurer; two delegates to State Council including Ms Khachan; and two delegates to Women's Council including Ms Khachan and her mother. A further five positions were filled and so far as I can understand the handwriting, all were taken by the group that Mr Balzola supported, including a third position for Ms Khachan, who was elected unopposed as the MLC Selector, Female. As it transpired her mother was elected unopposed as her alternate. At the completion of the ballot the chair was handed over to the new President, Mr George Andrade who figures in other evidence.

[9]

The evidence of Robert Balzola

Mr Balzola was a confident, assertive and combative witness. As a trained lawyer he was familiar with his case and did not feel compelled to give short sharp direct answers to questions asked of him in cross-examination. On the contrary, he was inclined to be discursive. He seemed happy to fully engage counsel in the "debate", at the same time he could be prickly, if not hypersensitive.
Perhaps contrary to his note in Exhibit A, Mr Balzola said he arrived at the meeting at about "10 past 7" (25.1T). He was closely followed by Mr Najjar. When Mr Balzola arrived the meeting was already underway with Mr Raciti in the chair. He said Mr Raciti made "some adverse commentary about [his] presence at the meeting" as he entered (29.32T). He clarified that this adverse commentary occurred "very soon after" he found a seat (32.43T). He referred to it as "an altercation" with Mr Raciti (32.29T). He believed Mr Raciti was addressing him in the Italian language, which Mr Balzola speaks a little. But he could not understand "so much of it" that Mr Balzola thought it may be a dialect (33.9T). He garnered the sense that he was being berated for being at the meeting (33.18T) and responded "in broken Italian" that he did not understand (33.38T).
These details are not recounted in Exhibit A, although Mr Balzola does state (at [16]) that he recalls "a dispute at the start of the meeting about visitors being present".
Although the Italian scolding is not relied upon as part of Mr Balzola's cause of action, it may provide important contextual evidence because Mrs Tyler's account of an exchange between Mr Raciti and Mr Balzola is said by her in her affidavit to have occurred at the beginning of the meeting when Mr Raciti was still in the chair before he was replaced for the ballot by Mr Tannous. I should also say that Mr Henderson volunteered in a somewhat non-responsive way to a question asked in cross-examination that "there'd been some sort of comment made from the chair towards him … in Italian, but I didn't pay attention to that" (136.45T; 143.20T; 143.50 - 144.15T; 145.28T; 150.45T).
Ms Khachan also gave evidence about Mr Raciti not being happy and saying something in Italian (164.5 - .25T). Mr Najjar did not give evidence about this matter, nor was he asked about it.
It is fair to say that there is nothing express in the statement of either Mr Balzola, Mr Henderson or Ms Khachan, or in the evidence of any other witness about Mr Raciti apparently expressing unhappiness in Italian at the appearance of Mr Balzola at the meeting while he remained in the chair.
Mr Balzola's evidence-in-chief (Exhibit A [17] - [18]) was as follows: As the meeting progressed I heard Julie Passas say 'He beats his wife. He has an AVO'. Mrs Passas said these words loudly and in an angry voice. She was looking at me when she spoke the words. I saw other people at the meeting looking in my direction when she did this. I heard Tony Raciti say loudly 'It is true I saw it in the paper he has a criminal record'. Tony Raciti was also looking in my direction when he said this. I think that he was actually pointing at me. People continued to stare at me. Julie Passas also said loudly 'Balzola is a criminal'. Tony Raciti agreed loudly with a 'yes' and 'It was in the paper'. Passas also spoke the words "Balzola has an AVO against him by his wife". I heard Tony Raciti say loudly 'Balzola beats his wife. It was in the paper'. Again he pointed at me. I saw many people staring at me. Some of them looked very concerned. Some looked at me in disgust. I felt very upset. I was very worried when I heard these words and saw the reaction of the faces of those at the meeting. I wanted to say something but felt that I shouldn't. I also heard Julie Passas say "Thank God you can pull swifties". She said these words in a loud voice and looked in my direction. She said this soon after she indignantly stood up and said that her husband would look after her ballot. She seemed to me to be very unhappy with the way in which the votes were going against her faction. I believe Ken Henderson attempted to take a point of order about it. I thought that Passas was talking about me when she spoke those words. Others at the meeting looked in my direction when she spoke those words.
Mr Balzola said that although he was "very unhappy and embarrassed at the accusations … [and] their falsity hurt [him]" he was counselled by Mr Henderson and Mr Najjar to remain calm lest the meeting descend completely into uproar and questions are later raised about the validity of the proceedings (Exhibit A [19]). The group that they were there to assist as scrutineers and in that way support, as political types say, had the numbers and were winning the ballots. It would be undesirable if anything happened calling the result into question. Mr Balzola heeded this counsel. After the meeting concluded at about 8:30 pm, some people who had been present appeared to shun him and others came up to him asking if the statements were true. He felt embarrassed by having to explain the truth to them (Exhibit A [20]).

[10]

Cross-examination

In cross-examination, Mr Balzola said that Mr Raciti had used his name when making the disparaging comments in Italian. He used his name "quite repetitive[ly]" (37.46T). He understood the Italian word "silencio" which he took from Mr Raciti's tone to be a dressing down indicating he wasn't to speak (38.25T). Mr Balzola denied that it was "false and disingenuous" of him not to record a full account of the initial exchange in Italian with Mr Raciti because "there was no defamation … [as] it was said in another language" (46.15T). Mr Balzola said there was "actually deafening silence" in the meeting when Mr Raciti spoke to him in Italian (47.35T). He rejected "completely" the suggestion in cross-examination that the scolding in the Italian language "just never happened" and that he was "making it up (as he went along)" (47.43T). He denied that he was "lying" (48.10T).
Mr Balzola said the defamatory statements were made during the ballot part of the meeting after Mr Tannous had assumed the chair as returning officer and Mr Balzola had been confirmed as a scrutineer. The first statement from Mrs Passas, that "he bashes his wife, he has an AVO" followed closely after his confirmation as a scrutineer. When she said this she had turned in her seat to face the chair at the front of the room and gestured with her right hand in Mr Balzola's direction. Mr Balzola was then sitting more or less behind Mrs Passas at the side of the room (55.35 - .30T).
Mr Balzola said that the second defamatory statement - Passas - "He has a criminal record" and Mr Raciti - "It's true; it's in the papers" were said during the election for the first Vice President's position (68.40 - 69.5T). Mr Balzola's theory is that Mrs Passas was "upping the ante" (69.29T) in an attempt to provoke a reaction from him which could lead to the meeting being shut down. He accepted that there was a natural bias in the work of a scrutineer towards maximising the legitimate vote for "his" candidate and minimising the legitimate votes for the opposition. The role involves "positive discrimination" (70.10T).
Mr Balzola said that the third comment from Mrs Passas relating to him pulling "swifties" was made "well into the AGM" during the vote for the position of Secretary, about half an hour after the statement was made during the Vice Presidential vote (73.29 - .48T). He said at that time he said to Mrs Passas, "You are warned" (73.50T) which was a reference to his intention to sue for defamation if the comments continued. He also said that Mrs Passas's statement provoked "another moment of silence" at the meeting (74.5T). Mr Balzola's best recollection was the statement about "swifties" was said soon after Mrs Passas had said, "He's in the Australian Labor Party". He said he could not recall the exact syntax used (75.8T).
Mr Balzola agreed that he didn't make any note of Mr Raciti's "sustained attack" in the Italian language in his minute (80.10 - .35T). Interestingly, when it was put to Mr Balzola that it is "wrong and false" to say that Mr Raciti made any attack against him "in any language at all while he was the chair of the meeting" Mr Balzola responded by saying that proposition was "absolutely false" (80.48 - 81.3T).
He denied that the comment about "swifties" recorded at 20:05 in his minute (Annexure D) was the first statement made. He said the more serious statements about him having a criminal record, an AVO and it being reported in the papers preceded the "swifties" statement. He denied that this evidence was false (83.33T). He was challenged about the veracity of his response by reference to Annexure D where he had recorded an earlier comment by Mrs Passas that she had "known Robert Balzola for 20 years". His response was that he "did not write every single thing that was said" down (83.21 - .46T).
Having taken the opportunity to review his minute (Annexure D) Mr Balzola changed his evidence about the order in which the statements were made. He conceded that his memory was wrong and the Court should proceed on the basis that his contemporaneous notes were correct (85.25T). He said that he has "100 per cent confidence" in what he wrote, but not in his memory from 2016. He stood by his notes (86.25T).
By reference to Annexure D, Mr Balzola said (87.35T) there were two comments directly above the word "Passas" (87.35 - .40T): They are two different comments. They are two different defamations. One is "beating his wife" the other is, "He has an AVO." Both are false, both are attributed to Passas. The "beating his wife" comment is also attributed to Tony Raciti. That is explained by the colon. "It's true, it was in the paper" is solely attributed to Tony Raciti. And all that occurred around half past 8.
By reference to his minute he accepted that his earlier evidence about being accused of "beating his wife" being the first statement and "pulling swifties" the last was "probably erroneous" (89.39T). He maintained, however, that other things were said - "it was a bombardment of attack" - that he did not write down (89.43 - 90.09T). He agreed that the statements of beating his wife and the AVO "must be a reference to a time gone by" (91.40 - 92.09T).
Mr Balzola seemed to change his evidence again when he was cross-examined on his answers to interrogatories, verified on 13 September 2017 (Exhibit 7; 101.30T). Answering interrogatory 9, he said that the statement that "he beats his wife" was said twice on separate occasions. The first occasion was at 7:45 pm by Mrs Passas and the second occasion was 8:20 pm by Mr Raciti. This was somewhat at variance with the evidence he had previously given under cross-examination that both had said that at the same time, 8:30 pm. He seemed to move away from reliance upon Annexure D by saying that he was there to scrutinise not to report on Mrs Passas or Mr Raciti (102.2T). He rejected the proposition that he was "scratching around" for explanations of the inconsistencies in his evidence (102.6T). He was pressed about the difference between his earlier evidence about Annexure D that the statement by each of Mrs Passas and Mr Raciti about him beating his wife was made at 8:30 pm and the answer to question 9 in the interrogatories that Mr Raciti said that "he beats his wife" at 8:20 pm. (Mrs Passas apparently having said it at 7:45 pm, or thereabouts). He said he was "reminded" by the statement in answer to the interrogatories (109.35T). He said that his earlier statement that he had looked at his watch to record the time of 8:30 pm, was a reference to him recording not the time of the statement, but the time of the ballot (109.45T). He rejected the proposition that the statement about beating his wife, being subject to an AVO, and those matters being reported in the paper had never been said by Mrs Passas (110.6T).
He agreed that he had not recorded a statement that he was a "criminal" in Annexure D, notwithstanding the seriousness of the allegation and the consideration that he had recorded lesser statements (111.41 - 112.8T). Mr Balzola said he did not write down every single word spoken by Mrs Passas or Mr Raciti (112.11T). He was relying upon both his memory and Annexure D.
He was asked the following questions about the evidence contained in Ms Tyler's affidavit (115.1 - .20T): Q. I suggest to you that when Mr Raciti gave that report, he was asked a question and he said that he would have to follow the question up as he had lost some of the documents. Do you remember that? A. No, I don't remember that incident. Q. To that, you said, "That's because you've taken all the money. You took it and you spent it on your restaurant." That's what you said, isn't it? A. No. Q. Mr Raciti said, "I dare you to say that again," and you said, "Well, your wife's on council and you get preferential treatment. You're part of the mafia." A. No. Q. To which Mr Raciti said something along the lines of, "Well, you're the criminal," to which you responded, "How dare you call me a criminal"? A. No. Q. To which he replied, "Well, you're the one who's had charges and an AVO against you"? A. No.
He denied knowing that Mr Raciti and Mrs Passas were aligned (116.2T). It had arisen earlier in the evidence that he had misspelt Mr Raciti's name in Annexure D (78.46 - 79.9T). He had referred to him as Tony Rancini. He said at (116.5T): I didn't even know how to spell his name. I didn't meet him in my life before that night. I didn't know anything about him. I did not know he was married to Victoria Raciti, I misspelt his names on the records, I didn't even know who he was. I knew nothing about that man. He was a complete stranger to me. I interpolate that he also misspelt Mrs Raciti's name as Rancini in his minute. He denied that he was lying when he said that he did not know by 8:30 pm, "near the conclusion of this meeting", that Mr Raciti and Mrs Passas were politically aligned (116.44T). He subsequently agreed that by 8:30 pm he was aware that they were supporting each other in the sense of nominating or seconding each other. He said that that did not necessarily mean they were politically aligned (117.3-22T).

[11]

The evidence of Ken Henderson

Mr Henderson's evidence-in-chief was taken by the tender of his statement of 15 February 2019, which was admitted as Exhibit B. He attended the meeting on 29 March 2016 as an observer. From the statement, one would infer that no incident of interest in these proceedings occurred until after Joe Tannous occupied the chair to conduct the AGM and the ballot. At that point Mrs Passas interrupted the meeting loudly questioning why visitors were there and asking that they be excluded (Exhibit B at [3]). Mr Tannous overruled this objection and declared all positions vacant (at [4]). Mr Henderson said Mrs Passas continued to loudly interject (at [4]). As Mr Balzola said, Mr Henderson confirmed that Mr Andrade won the ballot over Mr Raciti for the President's position (at [5]). Mr Henderson said that matters of interest for the present case occurred after the second ballot for the Vice President (Development) had been decided. Mrs Passas stood up and said, "My husband will look after my ballot paper". Mr Henderson formed the view that she was about to leave the room which was irregular and he raised a point of order about it with the returning officer (at [7]). It was this point, on Mr Henderson's version, that Mrs Passas said "very loudly and very aggressively … "Thank God you are here. You are all full of swifties"" (at [8]). Mr Henderson said these words were uttered in the direction of both him and Mr Balzola (at [8]).
After the election of the Vice President (Policy) by the same 12 votes to 10 margin as the previous offices, Mrs Passas turned and looked at Mr Balzola and "yelled very loudly, pointing: "He beats his wife, he has an AVO" (at [10]). Mr Raciti then said loudly and angrily, "I know this is true, I saw it in the paper, he has a criminal record" (at [10]). Although Mr Balzola was visibly upset, Mr Henderson counselled him not to react (at [12]). Mrs Passas and Mr Raciti loudly proclaimed on two more occasions: "Robert Balzola is a criminal" and "He beats his wife", "He has an AVO" (at [13]).
Mrs Passas accused Mr Balzola and Mr Henderson of being members of the Australian Labor Party (at [14]). Mr Henderson said that during the remainder of the meeting there were further outbursts from Mrs Passas and Mr Raciti.

[12]

Cross-examination

I have referred to Mr Henderson's evidence in cross-examination about Mr Raciti's Italian tirade and I will not repeat that evidence here. Mr Henderson is the President of the Burwood branch of the Liberal Party. He had been invited to attend the meeting by Joceline Khachan. On his understanding both Mr Balzola and Mr Najjar had also been invited by Ms Khachan.
Mr Henderson and Mr Balzola had been political fellow travellers since 2012 and I infer were friendly to one another (135.25-35T). He denied having spoken to Mr Balzola about what happened at the AGM, or about the evidence in the case, since 29 March 2016. He had made some notes about what happened which he typed up the following morning, but that was as an aide memoire in the event of a challenge to the validity of the outcome of the meeting (137.25T). But he had not discussed the matter with Mr Balzola, "It was like a Chinese wall went up" (137.14T).
At the time the "swifties" comment was made, although said following his intervention and in response to his point of order, Mr Henderson thought the statement was directed at him, Mr Balzola and Mr Najjar because Mrs Passas said, "You are all full of swifties" (My emphasis). They were all sitting together and Mr Henderson had the impression they were all included (147.5T).
Mr Henderson said it was a tense meeting but he didn't regard it as noisy or rowdy initially. Mrs Passas was being a little bit noisy. Mr Henderson regarded that as normal for her. But things "blew up" when he challenged her right to leave the meeting (147.8 - .17T).
When it was put to Mr Henderson that Mrs Passas had never said Mr Balzola beats his wife or has an AVO, he said (147.35T) "… [I]t very much did happen. I was absolutely shocked and horrified to hear such a thing being said in a meeting of - you know, it stunned the room. There was dead silence. People were popeyed looking at one another. It was just - and it was very loud and vicious".
He said Mr Raciti, "came in behind her equally as loud. The first time he spoke, he absolutely screamed from the front desk. He was very angry he'd lost his position" (147.48 - .50T). He said counsel was "wrong" to suggest that that was not true (148.2T).
Mr Henderson said that the statement that Mr Balzola "beats his wife, has an AVO, has a criminal record and I've seen it in the newspapers was reiterated a number of times" (150.13T).
He didn't recall anything about Mr Raciti giving the treasurer's report. He adhered to the account he'd given of the statements made by Mrs Passas and Mr Raciti, but accepted he may have the order in which things were said wrong (152.23T). He reiterated that the room went "deadly silent" (153.22T). He believed that the conduct of Mrs Passas and Mr Raciti was designed to cause the meeting to breakdown into disarray so the outcomes of the ballot could be invalidated and a new meeting called (154.8T).
When cross-examined on Mrs Tyler's version (155.42 - 156.23T), he initially said that he did not recall that happening but believed that had he witnessed that exchange, he would have recalled it. He had a clear recollection that Mr Balzola did not respond to the attacks that had been made. He finally said, "But it may have happened … I've got a pretty good recall, but you know, like, some things you see as pertinent, some things you don't see as pertinent. If it slipped by, it slipped by. I do not recall" (157.15 - .20T).

[14]

The evidence of Joceline Khachan

In her statement of 15 February 2019, (Exhibit D), Ms Khachan said she and Mr Balzola had become good friends through their common attendance as parishioners at church. She has been a member of the Liberal Party since 2011 in the Haberfield branch where she was an office holder as at 29 March 2016. She attended the AGM on 29 March 2016 and confirmed that she had asked Mr Balzola to attend and to act as a scrutineer. She had also invited Mr Henderson to be an observer.
She recalled a controversy about observers being present which did not last very long. She did not regard the meeting as unusually noisy up until that point (Exhibit D at [9]).
She said as the meeting progressed, Mrs Passas and Mr Raciti each began to speak loudly and started to make loud accusations about Mr Balzola. They both spoke loudly enough to be heard across the room. Ms Khachan said she did not recall every word they said (at [10]).
She does not recall the order in which things were said, but she recalls Mrs Passas in a loud voice saying (at [11]): 1. "Thank God Robert Balzola is here, I have known him for 20 years, you can pull swifties"; 2. "Robert you are a wife basher"; 3. "It must be true it was in the papers"; 4. "Robert Balzola has a criminal record and … an AVO".
She said she recalled Mr Raciti responding to some of Mrs Passas' comments by saying, "Yes, that's true. I saw it in the papers". Apart from agreeing with Mrs Passas he also said "Mr Balzola has a criminal record" and "He beats his wife" (at [12]).
Although she was puzzled during the meeting as to why Mrs Passas and Mr Raciti were behaving as they did, it occurred to her later that they were deliberately attempting to disrupt the meeting in an attempt to have it "shut down" (at [15]). She believed that incumbent office bearers would have maintained their position until a new meeting could be convened. She estimated that could have been "a year away" (at [15]).
Ms Khachan was in the ticket opposing the ticket of Mr Raciti and Mrs Passas.

[15]

Cross-examination

Ms Khachan said that her statement had been prepared in conference with counsel for the plaintiff, she said (162.10 - .15T): I'll be honest with you; I don't exactly remember which order it happened. I do remember what was said, but I don't exactly remember in which order it happened because it was shocking to me. So I tried my very best to put them to where I think, yes, it did happen. Yes.
She thought the comment about knowing Mr Balzola for 20 years and he can pull a swiftie was the first thing which was said. She said that Mrs Passas would say something and Mr Raciti "would kind of bounce off that and agree and repeat it" (162.50T).
She said that at the beginning of the meeting "Mr Raciti was not happy, he was angry that (Balzola, Henderson and Najjar were there). He said something in Italian. I'm pretty sure he was angry that they were there. He said something in Italian not to me but -" (164.5 - .22T).
Initially she said she remembered the Treasurer's report, she knew there were questions, but she didn't remember what (165.20T). And initially she said she did not hear Mr Balzola respond in any way to any of the things that had been said to or about him (165.30T).
Ms Khachan was cross-examined about Ms Tyler's version and the following evidence emerged at (168.7 - 169.28T): Q. You say at paragraph 12 that each time Mrs Passas said something, Mr Raciti loudly agreed? A. That's right. Q. And that he also said, "He's a criminal. He has a criminal record and he beats his wife." A. That's right. Q. You actually remember Mr Raciti saying that? A. Yes. Yes. Q. I suggest to you that Mr Raciti, if he said that, said that in response to Mr Balzola accusing Mr Raciti of being in the mafia? A. Are you telling me that? Q. I'm suggesting-- HIS HONOUR Q. He's asking you. KIRBY Q. I'm suggesting that that is what happened? A. I don't think so, I'm sorry. Q. That during Mr Raciti's treasurer's report-- A. Yes. Q. --he admitted to losing some documents and Mr Balzola said, "That's because you put all the money into your restaurant." Do you remember that? A. Well, there were some words exchanged, but I don't remember what kind of words. Q. That after that, Mr Raciti responded to that allegation by saying to Mr Balzola words to the effect, "I dare you to say that again"? A. I remember that. Q. And then-- A. Because that was like a threat. Q. And then Mr Balzola said, "Well, your wife's a councillor, you get preferential treatment." Do you remember Mr Balzola saying something to that effect? A. No, sorry. Q. To which Mr Raciti said, "You're the criminal," to which Mr Balzola said in reply to that allegation, "How dare you call me a criminal." Do you remember that? A. It's coming back to me. Q. To which Mr Raciti qualified that remark by saying, "Well, you had charged against you in an AVO," words to that effect? A. Yeah, I remember he said he had an AVO, but it wasn't-- HIS HONOUR Q. No, but this was all-- A. --at that position, though; it was after the election, midway. HIS HONOUR: Sorry, Mr Kirby, go on. Q. What's being suggested to you, do you understand, by Mr Kirby is that it was in the context of that exchange that Mr Kirby is suggesting occurred that Mr Raciti said what he said about wife beating and AVOs? A. I don't remember him saying that before that. I wasn't paying attention. I was talking to my members, I remember, at certain stages, but when this came up it was really after the election. Sorry, in the middle of the election. Yes, sorry, I'm not much help, am I? Q. No, don't say that. You're just here to answer the questions, that's all. You're not here to help anybody.

[17]

Cross-examination

In cross-examination Mr Najjar said that he had been invited to the meeting by Dr Nasser Sadrak, the Vice President (Development) of the Haberfield Branch and Ms Kachan to attend. He arrived at about the same time as Mr Balzola. It was his recollection that he went upstairs ahead of Mr Balzola, but they sat together with Mr Henderson. He recalls some discussion about the Treasurer's report while Mr Raciti was still in the chair (173.25T). He said the comments by Mr Raciti and Mrs Passas began after Mr Raciti had handed over control of the meeting to Mr Tannous. The statements he has referred to were made before the vote for President, after that vote, after the first Vice President vote and after the second Vice President's vote. He said he was "very sure" the comments were made on 4 distinct occasions (174.29T).
He said there had been a running commentary in derogatory terms by Mr Raciti and Mrs Passas in relation to him, Mr Balzola and Mr Henderson before Mr Raciti vacated the chair and Mr Tannous declared all positions vacant (175.23T).
The first in time statement was the "swifties" statement which caused a number of delegates to look around and pull a funny face as though asking "what's going on" (176.16T).
The second comment was that Mr Balzola was a wife basher with a criminal record. This statement was made by Mr Raciti (178.15 - .20T). When challenged about whether he was "absolutely sure" Mr Najjar responded "well it happened 3 years ago" (178.25T). When asked whether he was agreeing with counsel he said "no … I'm absolutely sure because what, what was said was so shocking (178.34T).
He agreed he had discussed the matter with Mr Henderson and Ms Kachan and other persons in the Liberal Party over the years since the AGM (180.50 - 181.16T).
He was cross-examined as to credit based upon an earlier signed draft of his statement, (Exhibit G). That document purported to give a detailed chronological account of 8 statements made by either Mr Raciti and Mrs Passas describing a precise time to each statement between 7:15 pm and 8:45 pm. In that statement Mr Najjar said he provided those precise times to Mr Balzola from his mobile phone so that Mr Balzola could make an accurate note of the matters. He initially said those times were "guesstimates … They weren't correct so that's why I left them out" of the final version (184.30 - .39T). He was taxed about the detail that they had been provided via his mobile phone and agreed that was probably a false statement when it was written because his phone had been switched off in accordance with Mr Tannous' direction at the start of the meeting (185.25 - .43T). He agreed that that part of the draft statement was wrong when he wrote it (189.10T).
I will say now, having reviewed the whole of the evidence of all witnesses, although the point was fairly taken by counsel in cross-examination, I do not regard it as a matter upon which I should reflect discreditably upon Mr Najjar. The matter was contained in a draft, which was unserved and only saw the light of day in response to a call without notice for all draft statements of witnesses during the course of the trial. I accept his explanation that he realised the matter was wrong in conference with counsel and omitted it from the final version of the statement. I will evaluate all of the evidence in context later in these reasons.
He denied the details of Ms Tyler's version when it was put to him, but said, "I remember there was an exchange between them, but, no, I don't remember what was said" (189.46 - 190.20T).

[18]

The evidence of Julie Passas

Mrs Passas's evidence in chief was given by way of her affidavit of 28 January 2019. I have mentioned a little of her background already. She is a local government councillor and the Secretary of the Ashfield Branch of the Liberal Party. She had initially met Mr Raciti and his wife, Vittoria Raciti through assisting them when she was a councillor. She encouraged them to join the Liberal Party, which they did. She said that she had not met Mr Balzola before 29 March 2016, notwithstanding the comment I have recorded above that she'd known him for 20 years, but she had come across him, as I would put it, in political circles. She had known Mr Henderson since about 1995, they are not aligned politically. She knew Mr Najjar and they were on friendly terms, if not political fellow travellers.
Mrs Passas said that the AGM was scheduled to start at 6:30 pm. When she arrived in the meeting room there were about 15 people present in expectation of the meeting. Vittoria Racitti and Matthew Raciti, Mr Raciti's son, were working in the restaurant downstairs. She was in the company of her husband, Bill Passas.
Mrs Passas said that Mr Balzola, Mr Henderson and Mr Najjar arrived when nearly all persons attending were in the room. She said there was tension in the branches due to factionalism, branch stacking and attempted takeovers (Affidavit at [37]). She identified herself and Mr Raciti as moderates and Mr Balzola and his companions as "members of the Hard Right faction" (at [38]). They would prefer the designation, "conservatives".
When Messrs Balzola, Najjar and Henderson arrived, Mrs Passas commented, apparently to no one in particular, "Oh no, they're here to make trouble. They should not be here" (at [39]). She did not understand they had been invited.
Mrs Passas said, like other witnesses, that there was a meeting between Mr Tannous, Mr Andrade and Mr Najjar before the main meeting started. She was unaware of the content of their discussion and not all members agreed upon the personnel participating in that private meeting, and it is immaterial for my purposes.
Just before the meeting started, Mrs Passas's recollection is that Mr Balzola and his companions were walking around (at [43]). From time to time he stood near her (at [44]). Mrs Passas says that she addressed the meeting saying by reference to Mr Balzola and his companions, "They should not be at the meeting, they're here to make trouble" (at [45]). She said she had a private conversation with Mrs Kerry-Anne Raiola about them and Mrs Raiola asked "Who are they?" Mrs Passas says she replied "Two of them are former Labor Party members, Ken Henderson and Robert Balzola. I remember reading in the paper and hearing that Balzola had assaulted his wife and he had had an AVO against him". She said that Mr and Mrs Raiola commented upon what she had said (Affidavit [47] - [50]).
Mrs Passas denies making any other comment about Mr Balzola and specifically denies the allegations of statements attributed to her set out in paragraph 1 of the Statement of Claim (see 5 above).
She said she did not hear any comments made by Mr Raciti to Mr Balzola or about him (at [54]). She said the meeting was noisy and rowdy. It was difficult to hear what was being said even in conversations with persons sitting nearby (at [33] and [55]).
She attached a copy of an article from the Sunday Telegraph of 19 April 2019 reporting on the charges brought against Mr Balzola by his ex-wife.

[19]

Cross-examination

Mrs Passas said she kept news clippings of interest to her in her garage that had something to do with local things and political issues (206.35 - .45T). She was cross-examined about her refusal to comply with an order of NCAT that she attend counselling (209.5T; 231.10 - 35T) and her failure to discover the Sunday Telegraph article in her list of documents (210.15 - .35T). She was also cross-examined about the consideration that she appears to have affirmed her affidavit, yet took an oath before giving evidence in Court (212.8T). She denied that the substance of the comment she said she made to Mrs Raiola was the same as Mr Balzola "beats his wife" or that Mr Balzola "has an AVO" (219.35T - 220.25T). She also stressed, that her comment was "all past tense". She said she kept the article about Mr Balzola because she was more interested in the fact that he worked for the then Labor member of Federal Parliament, John Murphy (221.5T).
She was cross-examined on her verified answers to interrogatories. She was taken through the statement and confirmed her answer "no" to each of the questions seeking an admission about whether she'd uttered the statements attributed to her at the meeting. She did not think it incumbent upon her to disclose the comments she made to Mrs Raiola in answering any of the questions (226.10T). She answered by saying "I think that's what I said all along". She had already stressed that she did not use language to suggest that Mr Balzola was currently beating his wife or currently had an AVO (224.43T).
When it was put to her that from time to time she acted in a loud and abusive manner, Mrs Passas said that she has "a loud voice" and she was "loud and passionate" (233.13T). She agreed that she did not step back from any view which she held and she said she stands up for what she thinks is right (233.17T). She said that everyone in a democracy has the right to stand up in front of people and speak their voice about things (233.23T). She agreed that her loud and abusive manner in Council meetings had caused those meetings to be closed on 4 occasions (233.35 - 234.10T). She said it happens all the time in council as a result not only of her conduct, but of the conduct of other councillors (234.6T).
She denied that she behaved in a loud and abusive manner at the AGM in an attempt to close that meeting down (234.23T) and she denied being concerned about the possibility of a takeover of the SEC by persons whom she regarded as right wing members of the Liberal Party (234.26 - .30T). She said if she didn't want the meeting to go ahead she could have walked out with the people she was aligned with and deprived the meeting of a quorum (234.35T).
When Mrs Passas was challenged about whether she stood up for what she believed in, in a loud and abusive way and said the things attributed to her, she denied it and adhered to her earlier evidence (234.37 - 235.5T). She strongly disagreed that she was attempting to close the meeting down (235.24 - .45T). She said at (236.5 - .13T): The meeting was very rowdy, there was people (sic) in all different groups having conversations. It was noisy, and - which is not usual at branch meetings, but at AGMs, and people arrive, there were people there that really had no business to be there, so I would say that they're the people that are really interested in the numbers because I have never ever ever in the 20 years being in the Liberal Party attended any other AGMs or branch meetings of any conferences. I've only been interested in my branch, my conference, and that's it. I'm not a numbers person. I'm not looking to shore up numbers.
She accepted the proposition that Mr Raciti would have retained his position if the meeting had been closed down (236.28T). I interpolate that I do not understand that proposition. The clear evidence is that all positions had been declared vacant. And she again denied making the statements attributed to her. She did not believe Mr Balzola is a criminal, she knew he was a practising solicitor and she did not believe that criminals could practice as solicitors (237.10T). She did not regard the fact that he had an AVO taken out against him in the past as meaning he was a criminal (238.4T).

[26]

The evidence of Cameron Walter

Mr Walter's evidence in chief was given in his affidavit of 30 January 2019. He is a solicitor and the leading prosecutor for an important Federal Government Agency. He's been a member of the Liberal Party since the age of 16. As at 2016 he was a foundational member and office holder of the Summer Hill Branch. He is currently a member of the Maroubra Branch. He has known Mrs Passas for 20 years since he joined the Summer Hill Branch and he met Mr Raciti when he subsequently joined the Summer Hill Branch. He was present at the AGM in his capacity as a delegate from the Summer Hill Branch. Prior to the meeting, he had not met Mr Balzola nor Mr Najjar. He had known Mr Henderson for about 12 years.
He estimates that about 30 to 35 people attended the AGM. He was seated about half way down the table to the right of the chair. Mrs Passas was sitting opposite and Mr Raciti was at the end of the table while presiding. He remained there after he relinquished the chair to Mr Tannous. Mr Balzola and Mr Henderson were seated to the left of the chair towards the back of the room.
Mr Walter said the room was crowded and very noisy. At various stages the meeting was very rowdy. This included the point where positions were declared vacant and when the result of each ballot was announced. Mr Raciti, when presiding and Mr Tannous had to raise their voices to bring the meeting to order.
During the meeting Mrs Passas was circulating having discussions with various delegates including Mr Walter. Mr Walter cannot recall the detail of any discussion with Mrs Passas.
Mr Walter said he is aware of the nature of the allegations made by Mr Balzola, but he does not recall hearing Mrs Passas and Mr Raciti making the alleged comments (Affidavit at [13]). He does not recall hearing Mr Balzola making any comment to Mrs Passas or Mr Raciti (at [14]).
He states that "owing to the extremely noisy and chaotic nature of the meeting it would have been very difficult for me to have heard Julie Passas or Tony Raciti making these comments" (at [15]).

[28]

The evidence of Anthony Raciti

Mr Raciti's evidence in chief was given by his affidavit of 22 January 2019. He said that he, his wife Vittoria Raciti and his son Matthew Raciti work at the family restaurant in Haberfield. He has been a member of the Liberal Party for 7 years and in 2016 he was the President of the SEC.
He remembers the AGM and recalls that it was noisy and that people had to be called to order. He is aware of the allegations made on behalf of Mr Balzola in paragraph 1 of the Statement of Claim (see 5 above) but he has no recollection of having made or heard any such statements (Affidavit at [10]). He has no recollection of any conversation or exchange with Mr Balzola (at [11]).
He disclosed that he is receiving treatment for depression and he believes that this condition is the reason why he has no clear memory of the conversations and events which took place on 29 March 2016 (at [16]). It is perhaps worthwhile interpolating at this stage that he annexed a report of his general practitioner, Dr Andrew Teh to his affidavit. The doctor confirmed that Mr Raciti had consulted him about depression on 26 April 2018. The doctor received a history of previous treatment for depression from another GP. Dr Teh assessed Mr Raciti as being acutely clinically depressed with elements of anxiety. He instituted a course of medication, but Mr Raciti refused referral to a psychologist. When he saw Mr Raciti on 12 December 2018 he had ceased all medications and reported that he was feeling much better. However, Dr Teh remained of the view that Mr Raciti was still depressed.
Two reports of Dr Charles Chan, Consultant Psychiatrist, were received in evidence as Exhibits 2 and 3. They are dated 24 January 2019 and 4 January 2019 respectively. Mr Raciti first consulted Dr Chan on 4 January 2019 on referral from a Dr Leanna Resplandor. Despite Mr Raciti apparently downplaying his symptoms, Dr Chan formed the opinion that he suffers from a Major Depressive Episode and prescribed a course of medication. In his report of 24 January 2019, Dr Chan expressed the view, "in general a person suffering from a Major Depression would have impairment in his concentration, short-term memory recall and motivation". There was no challenge to these medical matters in cross-examination.

[34]

The evidence of Joseph Tannous

Mr Tannous's evidence in chief was given by the reading of his affidavit of 22 January 2019 and some supplementary oral evidence about procedural matters given by leave.
Mr Tannous had been a member of the Liberal Party since about the age of 25, a period of 23 years. He has held a number of positions of responsibility within the Liberal Party. When he gave evidence, and when he chaired the AGM he was the chairperson of the Strathfield State Electorate Council. Professionally he is also involved in "Public and Government Affairs" with a registered lobbyist (Affidavit at [6]).
He explained that there are federal electorate conferences as well as State electorate conferences. Both these conferences have important functions relating to what might be referred to as grass roots politics. A key object of an AGM is to elect the office bearers of the FEC or SEC as the case may be for the succeeding 12 months. The Liberal Party constitution requires the AGM to be chaired independently of the SEC by the President of an adjoining SEC.
Mr Tannous confirmed some of the non-contentious details referred to about the conduct of the AGM at the restaurant. He arrived at 6:30 pm for a 7:00 pm start. He arrived early to enable him to discuss matters with attendees.
He said before the meeting started there was a lot of noise (at [18]). The meeting room was quite confined and attendees talking in loud voices made it extremely noisy. It was also tense. He was aware from discussions he had had with various persons leading up to the AGM that a concerted effort would be made by the right wing branch to oust the then current office holders including Mr Raciti and Mrs Passas and takeover the SEC. Apart from those entitled to vote, there were a number of persons present from other SEC's not entitled to vote at the AGM, including Mr Balzola, Mr Henderson and Mr Najjar, each of whom he knew. He said they were associated with the right wing. Mr Tannous thought their presence would increase the tension and possibly cause disruption (at [26]). Mr Raciti had also lost the support of Mr Andrade, which too contributed to the tension.
Mr Tannous addressed the question of the "side" meeting which took place prior to the AGM. He said that he went into an adjoining small room with Mr Raciti and Mr Andrade to try and discuss the situation "to deal with the tension". He felt his efforts were unsuccessful (at [28]).
At the start of the meeting "someone", probably Mrs Passas, I infer, said that Messrs Balzola, Najjar and Henderson should be excluded (at [29]). Mr Tannous said there was no rule preventing their attendance, but he did ask them to move away from the main table where the voting members were sitting. At someone's suggestion, again I infer probably Mrs Passas, he directed that mobile phones be turned to silent (at [30]).
He confirmed that Mr Raciti as the current President conducted the first part of the meeting, including presenting the President's Report and dealing with the Finance Reports. He then handed the meeting over to Mr Tannous for the elections. Mr Tannous confirmed that Mr Raciti remained seated at the head of the tables next to him.
Mr Tannous said the meeting remained noisy and he had to repeatedly call it to order, but he heard and saw nothing out of the ordinary during the meeting (at [34] - [35]). Mr Tannous is aware of the allegations made by Mr Balzola and sets them out in his affidavit at [38]. He states: "I did not hear any such words, or words to that effect, spoken by either [Mrs Passas] or [Mr Raciti]" (at [39]). He said that the noise frequently made it hard to hear people speaking.
In his supplementary oral testimony he said that Mrs Passas was being loud and rowdy from time to time and she was a person who he had to call into order. However, she was not the only one. He mentioned George Andrade and said Mr Raciti, "may have been another one" (258.5 - .28T).
As Chair, if the meeting got out of control he had power to terminate it (258.40T). Mr Tannous said that he never had to terminate a meeting previously because it got out of control (259.15T). Under the constitution he would have power to adjourn a meeting and in that event the positions declared to be filled would remain and the other positions would be filled at the adjourned meeting (259.1 - .10T).

[36]

The evidence of Rosana Tyler

Mrs Tyler is a solicitor in sole practice at Marrickville. She was first admitted in Tasmania in 1992 and admitted in New South Wales in 1996. She has been a member of the Liberal Party since 1998. As at March 2016 she was the immediate past Vice-President of the Marrickville SEC. Following an electoral redistribution the Marrickville branch of which she is a member was absorbed into the Summer Hill electorate and became a feeder branch for Summer Hill SEC. Before the amalgamation of local government councils in Sydney's inner west into the Inner West Council, Mrs Tyler was an elected councillor and deputy mayor of Marrickville Council. When she gave evidence she was a councillor on the Inner West Council. She had attended the AGM at the invitation of the Summer Hill SEC.
As at March 2016, Mrs Tyler knew Mrs Passas very well. They had at times been politically aligned. However, by the time of the meeting they had fallen out and Mrs Tyler was ill-disposed to Mrs Passas mainly because Mrs Passas had foiled Mrs Tyler's candidature for the presidency of the Marrickville branch by supporting Mr Andrade. During this period of ill-disposition, Mrs Tyler took an interest in Mrs Passas's political activities mainly for the purpose of reporting on them with sniping commentary to her interest group. Her interest group consisted of like-minded members of the Marrickville branch who are opposed to Mr Andrade and who met socially once per month to discuss political goings-on.
It may be important to say that although Mrs Tyler and Mrs Passas were ill-disposed toward each other in March 2016 they later reconciled when they served together as councillors on the Inner West Council. I have already said that Mrs Raciti also served on that council, but she was not a person aligned, or associated, with Mrs Tyler except, perhaps, in the broad sense in that they were both members of the Liberal Party.
Mrs Tyler accepted the invitation to attend in part because she was interested to record for her interest group anything that could be said critically about Mrs Passas's behaviour at the AGM, but she does not appear to have been in either the plaintiff's camp or the defendants' camp at the meeting.
Mrs Tyler knew Mr Raciti and his position, but had not spoken to him much, if at all. She regarded him as someone who was in Mrs Passas's camp. She knew Mr Najjar, and had heard of Mr Henderson and Mr Balzola. As she had not previously met Mr Balzola she could not, and did not, recognise him on the night.
As Mrs Tyler's evidence emerged it became apparent that there are three written iterations of her account: first, an email she had written to her interest group on 30 March 2016 providing a narrative of the meeting which is attached to her affidavit and marked "RT1"; secondly, an email she wrote to Mr Stichter, the defendants' solicitor, on 2 December 2018 (Exhibit L); and finally her affidavit of 21 January 2019 which was read as her evidence in chief.
Mrs Tyler was accompanied to the AGM by her husband, Ed Tyler, also a solicitor. They had a meal in the restaurant downstairs before going up to the meeting at about 7:15 pm in time for the 7:30 pm start.
As Mrs Tyler's recollection was called into question in cross-examination and because each of her three written accounts is in evidence, it seems appropriate to deal with them chronologically. The tone of her email of 30 March 2016 is chatty and a little gossipy. As she explained in oral evidence, her focus was on Mrs Passas, but she did observe in passing that Mr Raciti owned the restaurant and had been elected President of the SEC at the last AGM. She described him thus: "He seems a nice guy, but not the greatest player". I take the reference to "greatest player" to be her assessment of his political adroitness.
After she described the other persons she knew including Mr Najjar, she said that Mr Tannous was the Chair at the meeting. Although she said she was giving "an almost blow by blow account of what happened last night" it is not clear to me from the whole of her evidence that her account is a chronological narrative.
In any event, she said, in so far as may be relevant for my purposes: As the meeting started George [Andrade] and Julie [Passas] separately insisted that people not voting should leave the table and sit elsewhere. Joe [Tannous] wouldn't have a bar of it until the vote took place. I think everyone was jittery wondering if Ed [Tyler] and I held the balance of power. In any event I couldn't vote. As a councillor I can vote at LGC AGMs only. Julie then started shouting about how much she had done for Cedric [Spencer] and how he hadn't repaid any favours, that George was a minion, etc, etc. She carried on in a way you cannot imagine. Think 100 times worse than you could believe. She objected to the scrutineers, claiming that various people had been in the Labor Party 20 years before. Then Tony Raciti accused someone of having a criminal record (either George or one of George's supporters) … When the voting started (and Ed and I and others had to leave the table), it was clear that George had a majority of 2 votes.
In her email of 2 December 2018 (Exhibit L) she expanded on some of these matters. She said: The people I sent the e-mail to do not know Tony Raciti so there was no need for me to give a blow by blow account of anything to do with him, but I included salacious details about him because he was a perceived supporter of Julie (Passas) whom everyone knew. I recall that meeting very well because it was tempestuous and very nasty. Julie was shouting about how she should be given the Nobel Peace Prize for bringing warring factions together and as a result of everyone hating her she was bringing people together. She kept shouting this out. Tony Raciti was the President of the SEC at the time, and as he took his seat to start proceedings some people started to heckle him. I was not really paying much attention to who said what to him because I did not know the hecklers. However, what they were saying to him was offensive and the person who accused him of saying he was a criminal actually shouted that to Tony first. He said things about Tony and I recall the word mafia being used together with misuse of funds and getting favours from council because of money he paid. That's when Tony exploded about the other person having an AVO for something to do with domestic violence, and that he had criminal proceedings against him. The two of them shouted at each other trading insults. It was not a one way street. Julie was not involved in the exchange. If she had been I would have said so in my [earlier] e-mail! There were so many people at the meeting it was standing room only, with numerous observers. … Some of the people who attended had not been invited but turned up anyway. These people had no connection to the meeting. Julie asked (very loudly) that some of them (and I recall Henderson's name coming up) be expelled. She wanted a vote that people not involved with branches in the SEC be asked to leave. This was after Tony had left the chair and Joe Tannous was then chair of the meeting. Others backed Julie. I do not recall who, so a vote was taken but the vote decided these people could stay. … The person who says he was defamed loudly said worse things about Tony and his honest, (sic) and called Tony a criminal before Tony called him a criminal. Tony simply responded in kind and gave details of what the alleged criminality was. … I do not know Balzola at all other than his name.
In her affidavit of 21 January 2019, Mrs Tyler describes how having gone upstairs and taken a seat at the table, Mr Andrade, at some stage after the commencement of the AGM, moved a motion that people not entitled to vote should move away from the table (Affidavit at [26]). She continued [28] - [34]: While we were seated at the table and both before the meeting started and after the meeting started, Julie loudly and repeatedly said "Mr President, when am I going to get my Nobel Peace Prize for getting these enemies to come together?" I believed she was referring to me and to George Andrade but said nothing. I also heard Julie say of Ken Henderson (who I did not know and had never met): "I can see Ken Henderson. What is he doing here? There are others who also shouldn't be here. There are people here who haven't been invited officially who should be ordered to leave the room." I heard her say "Mr President, I believe these people shouldn't be here. They have no right to be here." Eventually a vote was taken and it was decided that the people concerned were allowed to stay. Tony gave the Treasurer's report, as usual. Some questions were asked and Tony said that he would have to follow that up as he had lost some of the documents. I then heard the words described below between Tony and the person I have now come to know is Robert Balzola. I was seated at the table when I heard an exchange of words. The words spoken were loud and clearly heard by me. Robert Balzola: "That's because you've taken all the money. You took it and spent it on your restaurant". Tony Raciti: "I dare you to say that again". Robert Balzola: "Well, your wife is on Council and you get preferential treatment. You're part of the Mafia". Tony Raciti: "You're the criminal". Robert Balzola: "How dare you call me a criminal". Tony Raciti: "Well, you're the one who's had charges and had an AVO against you". The discussion about charges and AVO was all in the past tense.

[37]

Cross-examination

In cross-examination, Mrs Tyler agreed the meeting was rowdy. She said this was because of the number of people who were there. On the other hand, she had been to meetings with the same number "where it has been slightly less rowdy, but still rowdy" (303.10T).
At the time of the AGM she and Mrs Passas had a "terrible relationship" and Mrs Tyler said in whatever space Mrs Passas is "she will be heard" (303.20T). Although Mrs Tyler's thought many of Mrs Passas's comments were directed at her, she did mention some other people present (303.39T).
After she had sent the email of 30 March 2016 she had no occasion to turn her mind back to that meeting (304.30T). She was approached by Mrs Passas in about October 2018 (305.20T) asking if she remembered the meeting and "would … be happy to be a witness" (304.50T). At that time Mrs Tyler had a vague recall and while she was speaking with Mrs Passas on the phone she scrolled through her computer and found the email of 30 March 2016 (304.48T). By that time Mrs Tyler and Mrs Passas had been reconciled for about 12 months (306.20T).
When cross-examined about the email of 30 March 2016, she confirmed the details of Mrs Passas objecting to the scrutineers, claiming that people had been in the Labor Party 20 years before, and Tony Raciti accusing someone of having a criminal record (307.20T). She agreed that at that time she thought that barb was directed to Mr Andrade or one of his supporters. She said, "In my little world I thought it was all about George" (307.33T).
Having said that there were a lot of comments flying back and forth from a number of people (307.39T), she said (307.43 - 308.3T): Whenever we have a meeting of this kind … the meeting always starts in the usual way, which is you have to present the minutes of the previous meeting, you have to present the treasurer's report and everybody gets to talk about that. But, as is also highly traditional, everybody has lost all the documents and, as is traditional, the president will say, "I have nothing to report. There is very little money. I don't actually have a record of the treasurer's report." So then some wit will always say - and every meeting that I have attended it's exactly the same - "That's because you spent the money" and every single meeting I've attended has been identical, even when I've been the president … of a LGC and I have not presented the treasurer's report somebody says, "Oh that's because you spent the money" and it's traditional. She agreed that the type of traditional exchange she had described about the treasurer's report may include "people … being members of the mafia [as] there [were] so many Italians there" (316.3T). But on the occasions of this AGM she said (316.12T): It wasn't meant to be taken seriously but it went further because of the things that were said afterwards. In fact I had the impression that people were trying to rile up Tony because from what I could see happened then was that it appeared that Tony had lost his temper and I don't know why people were trying to make him lose his temper. I took Mrs Tyler's reference to the things that were said afterwards to be a reference to the full exchange which she, in her affidavit, attributed to Mr Raciti and Mr Balzola. She said as of March 2016 she "wanted to show [Mr Raciti] and Julie [Passas] in a bad light. That was the intention." (316.43T). She was then asked, if that was so, why she didn't put the full exchange in the email of 30 March 2016. She responded that that "wasn't really relevant to things" that her interest group spoke about at their informal monthly meetings (317.6T). At the time she didn't realise that Mr Balzola was the person that Mr Raciti was "talking about" (317.18T). She assumed it was Mr Andrade "and it was a given that we would think those things of" Mr Andrade" (317.20T). She agreed that it was not obvious who the other person was. She could not see him from where she was sitting at that time, she just heard him. And Mr Andrade "always goes with an entourage" (317.33T).
As she had not made a full note in her email of 30 March 2016 of the whole exchange, it was suggested that she could not really remember what was said by whom. She answered at (318.1 - .8T): Certain things stick out because they're unusual, okay. So it's a given that people are going to accuse each other, you've taken the money, you've done this, blah, blah, blah, 'cause you say that at every meeting. The fact that somebody gets really upset by it, yeah that was, that was memorable and, and then you hone in on well why were they so upset and you, you remember more or less the gist of it. Although everybody normally laughs about that type of exchange, no one was laughing at the AGM and that's why Mrs Tyler took note of it "because it was an unusual thing…to be happening…that [Mr Raciti] got so upset" (318.21T).
She didn't accept that Mr Raciti's statement "might have been, "you beat your wife"" because it "had to do with an AVO" (318.34T). She was "not reporting word for word exactly what was said…there was a lot that was actually said", but she definitely heard Mr Raciti call the person he was having the exchange with "a criminal" (319.13T). When challenged about her use of the expression "criminal record" in her email of 30 March 2016 she said she put it that way because she was writing to people who are non-lawyers, but she was definite in evidence that what Mr Raciti said was, "You're a criminal" (320.46T). She agreed again that she did not know Mr Balzola that night other than by his name and she had been told that "he was the one who said these things" when she was interviewed by the defendants' lawyers (321.15 - .40T). She was shown a newspaper article about Mr Balzola with a picture of him. She denied speaking with either Mrs Passas or Mrs Raciti at council meetings about the case before October 2018 (322.29T).
She had never had any experience of meetings getting so rowdy that they had to be adjourned (323.3T). In answer to a question from me, she said that she had a recollection of the exchange involving Mr Raciti at the start of the AGM "because it was unusual, yes, yes" (326.32T).

[38]

Witness evaluation

The resolution of the question whether the five statements attributed, variously to Mrs Passas and Mr Raciti were actually spoken at the AGM involves the consideration, assessment and evaluation of the evidence of 14 lay witnesses, including the evidence of the parties. To some small degree I have indicated some views in my recitation and summary of their evidence above. That part of my reasons summarises what appears to me to be the gravamina of their evidence.
It is also obvious that the witnesses called on each side of the record are divided along "party" lines. Although I had the impression that Mr Najjar may have had a foot in each camp, basically those called on either side of the record were political fellow travellers with the plaintiff and the defendants respectively. Indeed personal loyalty, or even partisanship was a common theme (I imply no criticism) of Mr Rasmussan's cross-examination of many of the witnesses called for the defendants, as I hope my analysis of their evidence has made clear. Even Mrs Tyler, who attended the AGM, in part, to observe Mrs Passas's behaviour as an antipathetic critic of hers, has since been reconciled with her.
However, I did not form the view that political partisanship amounted to bias or a motive for being untruthful. On the contrary, the witnesses were decent people giving their best, genuine recollection of what happened at the AGM so far as those matters are relevant to this case. Obviously, given the differences amongst them in the accounts variously given they cannot all be either accurate or completely reliable in their recall.
Moreover, on all of the evidence, the AGM was a particularly rowdy, tense and acrimonious meeting. Although the room was small, I have the impression it was fairly crowded and despite what appears to be Mrs Passas's larger than life personality, it was unlikely that she would have been the focus of everyone's attention at all times. The same may be said about Mr Raciti. The attention of the attendees was likely to have been divided and even distracted at different times. According to Mrs Raiola the AGM was only quiet when people were actually casting their ballots. I accept that evidence. It should also be said that not everyone would have been paying attention to Mr Balzola, or for that matter attentive of his sensibilities. An offending comment which he heard and felt stung by could readily be lost in the hubbub. It also follows from this consideration that the fact that apparently honest witnesses did not hear what the plaintiff and his witnesses say was said loudly cannot be determinative of the issue of what was said. On the other hand it may say something about the extent of the "publication" of anything defamatory said.

[40]

Mr Henderson

Some aspects of Mr Henderson's evidence were somewhat exaggerated. I am not suggesting that he was consciously exaggerating for any dishonest purpose, but that aspects of what he said were overdramatised. I accept that anyone wanting to be heard at the meeting would need to speak in a loud voice. This seems consistent with the evidence of every witness. I accept that Mrs Passas made her interjections in a "very loud" voice (see [50] above) but "viciousness" may be another thing. And I am not satisfied that whatever Mr Raciti may have said, which I will come to, was "absolutely screamed from the front desk". I am prepared to accept he may have been angry even very angry when the numbers went against him. I should interpolate that before me Mr Raciti was of flat affect in his presentation which may have been due to his Depression. That he is capable of rancour was evident from his interjections during the cross-examination of his son, Matthew Raciti. These matters, which I will not hold against him were heard by both counsel and to some extent are recorded in the transcript. But I cannot accept that whatever comments he made were "absolutely screamed". It seems accurate to say after he relinquished the chair he remained at the front or head table, but interestingly Mr Tannous heard nothing to the effect of the words and saw none of the behaviour attributed to Mrs Passas and Mr Raciti (see [139 above]). It was not suggested to him that his evidence in that regard was untrue, although he accepted he could not recall every word said at the meeting.
I do not accept Mr Henderson's statement that the interjections of Mrs Passas "stunned the room" producing "dead silence" (see [50] above). One may accept Mrs Tyler's assessment that Mrs Passas behaved very badly as offering some support to Mr Henderson's impressions of her without accepting that the rowdy meeting was reduced to silence by her. There is a fair body of evidence that I have referred to, (including from Mr Henderson) that Mrs Passas was capable of being disruptive at meetings, perhaps especially when things were not running her way (see [49] above). As I have said, I accept Mrs Raiola's evidence that the meeting did fall silent from time to time but only when votes were being cast.
Although Mr Henderson gave evidence corroborating Mr Balzola's evidence about Mr Raciti's initial "Italian tirade", he did not accept the accuracy of Mrs Tyler's version of what happened when it was put to him (see [54] above). But he acknowledged, "It may have happened". He perceptively said, I repeat, (see [54] above): ... I've got a pretty good recall, but you know, like, some things you see as pertinent, some things you don't see as pertinent. If it slipped by, it slipped by. I do not recall" (157.15 - .20T).

[43]

Mrs Passas

Mrs Passas, on all of the evidence, as she would no doubt accept herself, presents as a forthright individual. I have the impression she regards it as a virtue to, even volubly and voluminously, speak her mind and stand her ground. She is a person not given to taking a backward step. She is disinclined to diplomatically apologise if someone takes offence at the views she expresses or the statements she makes. Given her success and the loyalty she has engendered among supporters, she is obviously a skilled political operator, who has sufficient self-confidence to interject and interrupt a meeting, if she considers the adoption of such tactics in her political interests or to her political advantage. These personal qualities made her a confident and assertive witness.
Mrs Passas accepted that she made some of the statements attributed to her at the meeting. She admitted that she objected to Mr Balzola's and Mr Henderson's presence at the meeting and did so openly. She may have been ambivalent about Mr Najjar. On all of the evidence, I formed the view that, if not allies, Mr Najjar and Mrs Passas, at least in the past had been able to work together.
Mrs Passas's evidence was that she did say, if only to Mrs Raiola and Mr Raiola that Mr Henderson and Mr Balzola were former members of the Labor Party (see [85] above); and she did say that Mr Balzola had assaulted his wife and had had an AVO against him. Again, this was apparently said as an aside to Mr and Mrs Raiola.
I have difficulty accepting that these things were said merely as asides, notwithstanding Mrs Raiola's and Mr Raiola's support in that regard. First, Mrs Tyler, in her account contained in the email of 30 March 2016 (Annexure "RT1") said she heard Mrs Passas object to the scrutineers, who included Mr Balzola, and claim that various people had been in the Labor Party. Mrs Tyler's version of this aspect is supported by Mr Najjar (175.20 - .25T); and also Mr Henderson (156.39T). These matters are given as instances of what Mrs Tyler regarded as Mrs Passas's very bad behaviour. I accept that Mrs Tyler did not hear the assault or AVO statements.
Even if Mrs Tyler did not hear the assault and AVO statements, I am inclined to think that Mrs Passas made them and in a loud voice. Accepting as I do the evidence of the rowdiness of the meeting, it must have been impossible to indulge in a softly spoken aside to a close confidant not intended for wider consumption.
As I have said, I accept that Mr and Mrs Raiola were decent, honest people. Although they liked and admired Mrs Passas and regarded her as a friend, I accept the force of Mr Raiola's definition that he at least did not regard her as a close personal friend. I accept that he would not allow misguided personal loyalty to cloud his judgment. At the same time, I am of the view that Mrs Raiola's recollection and Mr Raiola's recollection is not accurate and I prefer the evidence of Mr Balzola, Mr Henderson and Mr Najjar that the assault statement and the AVO statement were said loudly enough for anyone close enough to hear over what may have been the din of the meeting. This is not to say I accept that it was said more than once. I do not accept Mrs Passas's evidence that those statements were whispered or quiet asides. Indeed, to my mind the important thing about her evidence and the evidence of Mrs Raiola and Mr Raiola is that it establishes that Mrs Passas did say something at the AGM very like the statements complained of by Mr Balzola.
Although Mrs Tyler does not give that version of the assault and AVO statements by Mrs Passas she remains in many ways an impressive witness, I can only suppose again that those statements were lost in the rowdiness of the meeting. Even though she was there to critically observe Mrs Passas, she was also there to take in what was happening at the meeting generally. And the contents of the email demonstrate a number of events of interest to her politically took place. With respect, in her own way, she is just as much a political devotee as Mrs Passas, Mr Henderson and the others. Her evidence is generally acceptable to me, but I repeat that she missed those statements is not evidence that they were not said.
To the extent to which Mrs Passas was cross-examined to suggest the press clipping of 19 April 2019 (see [88] above) was something she may have procured after the event (see [89] above), I accept her evidence that she kept press clippings of interest to her in her garage. Now, it may be that the article being in her possession at all material times should have been discovered earlier. However, I readily accept that given her deep political involvement with the Liberal Party and in local government and, with respect, having regard to her apparent vintage, she is just the sort of person who is likely to keep what some people may refer to as a scrap book of press clippings of interest to her, which may prove useful in her political endeavours at some stage or other. To my own mind nothing turns on the consideration that she affirmed her affidavit yet took an oath before giving evidence in court. Both are equally solemn promises to tell the truth. A number of witnesses who affirmed their affidavits took oaths in court. This I think says more about the drafting of the affidavits than the sincerity of the witnesses.
I also accept that Ms Passas made comment about certain persons pulling swifties. I accept Mr Henderson's evidence that it was said in response to his point of order, when she was apparently dissatisfied with the outcome of the presidential election and was proposing to leave the meeting room at least temporarily. The statement may well have been directed at both Mr Henderson and Mr Balzola. Mr Carrie, a very close supporter of Mrs Passas, notwithstanding the noise and the difficulty making out what was being said in conversation, heard someone say that Mr Balzola "can pull swifties" (see [108] above). He could not identify the speaker, but as I have said, given Mr Henderson's evidence, Mr Balzola's evidence and in particular the consideration that the latter made a contemporaneous note in his minute of the meeting (Annexure D to Exhibit A), Mrs Passas must have been the speaker.

[45]

Mr Raciti

As I have said above, Mr Raciti was unable to provide an account of what happened at the AGM saying that it was noisy and people had to be called to order. He attributes his absence of recollection, or at least lack of clear memory, to his depression (see also [171] above). That he has this condition is supported by the medical evidence and not called into question by Mr Rasmussan on behalf of Mr Balzola. I have already commented (at [122] above) that a short-term memory loss does not seem to explain an inability to give an account of one's self relating to matters which happened some four years ago. As Mr Raciti's explanation was not challenged and is unanswered, I will not question it further. However, it remains that Mr Raciti's inability to give an account does not assist his defence and his evidence must be put to one side. His answers to interrogatories are in evidence in the plaintiff's case (Exhibit N). In providing his answers he denied that he made the statements attributed to him. However, it is difficult to place any reliance on that denial as there is no evidence explaining why he may have had a recollection when he verified his answers that is now lost to him. Mr Raciti verified his answers to interrogatories on 16 November 2017. This is about five months before he consulted Dr Teh about his depression on 26 April 2018. However, Dr Teh received a history that Mr Raciti had been treated previously by another GP. And, in his affidavit Mr Raciti said that he had been in denial "for a long time" about suffering depression prior to seeking treatment (see [8] above). His affidavit verifying the answers to interrogatories was made at a time when he was under the penumbra of his depression. Although nearer in point in time to the AGM than the date of his affidavit or court appearance, I feel unable to place any affirmative reliance upon his denials.
I appreciate that Mr Raciti's evidence is corroborated by the evidence of Mrs Raciti and Matthew Raciti. As I have said, they were both looking after the restaurant which was busy on 29 March 2016. Matthew Raciti heard nothing, but he only arrived in time for the voting so would have missed the exchange Mrs Tyler speaks of and some of the earlier argy-bargy. I am not of the view that his recall is affected by his previous substance abuse and I accept that he had been abstinent for about 12 months before giving evidence. I am not satisfied that Matthew Raciti's family loyalty would cause him to consciously give false or misleading evidence. I bear in mind that Mr Walter also heard nothing of the alleged defamatory statements, I infer, due to the noise of the meeting. It may be that Matthew Raciti is in the same boat or was otherwise distracted by involvement in the election as a voter and by his engagement in conversation with others.
However, it seems apparent that Mrs Raciti arrived at the meeting before voting commenced because she had noticed the presence of Mr Balzola, Mr Henderson and Mr Najjar (see [124] above). Given her attendance to business in the restaurant it may be that she arrived after the commencement of the meeting and missed the exchange Mrs Tyler testifies about, if that occurred. Mrs Raciti said she took a seat to the right of the chair which must have put her opposite Mrs Passas, but near enough to ask, "Why are all these people here?" (see [124] above). She was sitting on the same side of the table as Mr Walter who also heard nothing of the matters complained of by the plaintiff. It was not put to Mrs Raciti that she was giving deliberately false or misleading evidence. Accepting, as I do, that at least certain things were said by Mrs Passas, I am left in the position that Mrs Raciti either did not hear because of the noise or was paying no attention to what Mrs Passas was saying after her initial query of the former.

[47]

Mrs Tyler

I have already said that I found Mrs Tyler in many ways to be an impressive witness. It is of course interesting that she gives a version of events different from that of the witnesses falling into the camps of the respective parties. The fact that her evidence differs from the other witnesses does not mean that it should be rejected. As Dixon J observed in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 proof of a fact "cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality" (p.361). Nor is the civil standard of proof discharged by the mere counting of heads, tallying up as in a ledger the number of witnesses who support version A over those who support version B. In any event, there are other factors which tend to support the version Mrs Tyler gives about the initial exchange between Mr Balzola and Mr Raciti.
An issue that causes me some concern about accepting Mrs Tyler's evidence is the consideration that her version emerges in three tranches. The account I have extracted from "Annexure RT1" (see [155] above) has Mr Raciti accusing someone of having a criminal record after Mr Tannous took the chair. She said Mr Tannous was in the chair when Mrs Passas's objection to scrutineers and complaint about "various people" having been in the Labor Party logically occurred (see [18] above). Item 9 on Mr Balzola's "agenda" recorded in his minute of the meeting also suggests that the appointment of the scrutineers occurred after Mr Tannous took the chair which was item 5. Mrs Tyler writes: Then Tony Raciti accused someone of having a criminal record … (emphasis added). Mrs Tyler then moves on to, "When the voting started …".
It should also be borne in mind that Mrs Tyler said that when she was approached by Mrs Passas "to be a witness" (see [160] above), Mrs Tyler "had a vague recall" only, until her recollection was refreshed by her reading her email of 30 March 2016. This was before she wrote her second version on 2 December 2018 (Exhibit L). It was then that her final version starts to emerge of people, who Mrs Tyler did not know, heckling Mr Raciti as he took his seat as Chair. This version is set out [156] above. It was during this exchange that Mr Raciti accused someone of being "a criminal". Mr Raciti "exploded". Obviously the sequence of events is different and the detail is amplified. The fully developed final version does not appear until Mrs Tyler's affidavit of 21 January 2019 (see [157] above). There the matter is set out, "chapter and verse".
Mr Rasmussan cross-examined Mrs Tyler about: the differences between the various accounts; the circumstance that she had no occasion to think about the matter again after 30 March 2016 until she was approached by Mrs Passas in October 2018; that although she knew Mr Balzola's name, he was unknown to her personally as at the AGM; she thought the person involved was Mr Andrade "or one of his supporters"; she was not in a position to see the person who was having the exchange with Mr Raciti; and until she was shown a photograph of Mr Balzola by the defendants' lawyers she did not know either what Mr Balzola looked like or that he was said to be the person involved.
All of these factors raise a question about whether the fuller versions, especially the evidence in Mrs Tyler's affidavit should be accepted. Indeed they raise a question about whether Mr Balzola was involved in the exchange she recounts in any of the iterations of her recall.
On the other hand, as I have said, there are factors which favour the acceptance of Mrs Tyler's evidence over and above her impressiveness as a witness, notwithstanding the protracted circumstances of the emergence of the final version. It seems to me very unlikely given the context of the case that Mr Raciti happened to be accusing some person other than Mr Balzola of being a criminal at the AGM. There is nothing in the evidence to suggest such a charge was being freely bandied about to all and sundry. The circumstance that it is "traditional" for there to be heckling of the chair over the treasurer's report at the commencement of a meeting is also a factor, although here that heckling escalated beyond the usual, I infer, good natured banter which normally occurs. There is also the to my mind somewhat strange account, not appearing in versions of the written statements of Mr Balzola and his witnesses of the "Italian tirade" directed by Mr Raciti at Mr Balzola at the commencement of the meeting, which Mr Balzola referred to as "an altercation" (see [23] above). The fact that this version does not appear in any of the statements, although it obviously provides a deal of context at least, is, once again, puzzling. As I have said, even Ms Khachan when it was put to her said, "It's coming back to me". Mr Henderson was not prepared to unequivocally deny that anything like Mrs Tyler's version occurred and he acknowledged he was focused on what he considered "pertinent" and other matters might have "slipped by".
Although she had only a vague recall of events when contacted by Mrs Passas in October 2018, it is not unusual that a witness's memory may be refreshed by reference to a contemporaneous record made by him or her. This is the main purpose of permitting that process in court in appropriate cases. Moreover, the process may bring back details beyond those actually recorded. This is inherent in the idea of refreshing one's memory. A witness who, having looked at a contemporaneous record, can do no more than vouch for the record, in truth has no recall and has failed to revive her or his memory.
I also bear in mind that the particular relevance of the evidence of Mrs Tyler relates to Mr Raciti's defence of qualified privilege and Mr Raciti carries the legal onus of proof: s 30 Defamation Act 2005 (NSW).

[48]

Legal considerations relevant to proof

Given the conflict in the evidence, I bear in mind the onus and standard of proof. It is for the plaintiff to prove what was said and the imputations carried or conveyed by those statements. It is, as I have said, for the defendant to prove the applicability of the specific defence of qualified privilege relied upon by Mr Raciti. Naturally, as these proceedings are civil proceedings, the standard of proof borne by each party in relation to the issues falling on them is to prove their case on the balance of probabilities. It is, in the circumstances of this case, worthwhile bringing to mind what that involves. In Briginshaw v Briginshaw (at p.361) Dixon J explained the following: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. This description of the nature of the civil standard of proof is now embodied in the provisions of s 140 Evidence Act 1995 (NSW). I should say, however, I do not regard this as a case where either the seriousness of the allegations, the probabilities of events having occurred as alleged or the gravity of the consequences flowing from findings of fact contended for are such as to engage any heightened vigilance on my part about the dangers of "inexact proofs, indefinite testimony or indirect inferences" (Briginshaw at p.362).
In cases of defamation arising from the spoken word, referred to at common law as slander (see s 7 Defamation Act), the alleged defamatory statements must be established with a certain degree of precision requiring the plaintiff to prove that the "material and defamatory part of (the alleged statement) has been published or that words to substantially the same effect were published" which would convey to the mind of a reasonable listener the meaning of the words pleaded in the Statement of Claim: Feo v Pioneer Concrete (Vic) Pty Ltd [1999] 3 VR 417; [1999] VSCA 180 at [31].
In Coles Supermarkets Australia Ltd v Clarke [2013] NSWCA 272, Simpson J (as her Honour then was) referred to "the degree of tolerance" the law allowed "where there is departure, in the words proved, from the words pleaded" (at [89]. Her Honour said: If it were to be held that [the defendant's] evidence signified acceptance that he had spoken words "to the substance and effect" of those alleged in [the plaintiff's pleading], it would be unnecessary to deal with the criticisms made of the primary judge's approach to the fact finding issue. Her Honour demonstrated that this degree of tolerance was accommodated by the law both in Australia and England "for a long time" by reference to Tournier v National Provincial and Union Bank of England [1924] 1KB 461. I will not set out the whole of the extracts relied upon by her Honour. However, in his Lordships judgment at 469 Banks LJ quoted Lord Coleridge CJ in Harris v Warre 4 CPD 125 at 128 as follows: It is still necessary to plead the exact language complained of, but proof of language substantially the same as that pleaded is admissible and should be submitted to the jury … "For a long time it has been held to be enough to prove the substance of the words alleged in the [pleading], but if there was difference between both the form and substance of the words alleged, and of the words proved, the defendant was entitled to succeed. In libel and slander the very words complained of are the facts on which the action is grounded. It is not the fact of the defendant having used defamatory expressions, but the fact of his having used those defamatory expressions alleged, which is the fact on which the case depends".
Simpson J (at [94]) said: The question is then one of degree and judgment. Did the evidence of [the defendant] amount to evidence that he had used language "substantially the same as that pleaded"; or did the language he used amount to "a material and defamatory part of the words complained of?"
By reference to Gatley on Libel and Slander (12th ed, 2017, Sweet and Maxwell) Mr Kirby of Counsel for the defendants invoked the concept of "fatal variance" (at [32.13 - 32.15]). However I did not understand that submission to invite me in any way to depart from the test as explained by Simpson J. As I understand it, if there is a material difference between the words proved and those pleaded, the variance is fatal to the plaintiff's claim. The question remains has the plaintiff proved that the defendants spoke words "to the substance and effect" of those pleaded?

[49]

Conclusions as to statements made

I am reasonably satisfied, that is to say I am actually persuaded on the balance of probabilities that a number of statements were made by either Mrs Passas or Mr Raciti concerning Mr Balzola.
First, not long after he had entered the function room for the meeting and before he vacated his seat at the table to make way for persons eligible to vote, Mr Balzola had an "altercation" with Mr Raciti substantially in the terms recounted by Mrs Tyler. That altercation occurred in English, not Italian. But Mr Balzola's evidence about the Italian tirade is, in my judgment, a reference to it. The plaintiff's evidence about the Italian tirade may have been an attempt to blunt the effect of Mrs Tyler's evidence, given it does not appear in any written account of what occurred put before me in evidence. It first emerged at the hearing after the existence and content of Mrs Tyler's evidence was known.
I appreciate that what appears at [155] above is somewhat out of sequence with what appears to be the order of events set out in Mrs Tyler's 30 March email, Annexure "RT1". But the other factors I have referred to above (at [195]-[196]) persuade me that probably the narratives in Exhibit L and in her affidavit, which are in substance the same, accurately relay what happened. The exchange may have commenced in the "traditional" way, but given the tense, or as I have said acrimonious, atmosphere, offence was soon given and taken. The original offence had been offered by Mr Balzola.
I find that the substance and effect of the exchange is as set out at [157] above. What Mrs Tyler recounted, because she found the exchange "memorable" for the reasons she explained, is the gist of what was said. I make this finding despite Mrs Tyler's concession that she was "not reporting word for word exactly what was said" and that "a lot", more I infer, "was actually said" (at [164] above). She was challenged about her use of the expression "criminal record" in "RT1" rather than simply "criminal" elsewhere in her evidence. And in one sense, the former may be a stronger expression especially in juxtaposition with "charges", as opposed to "convictions". A "criminal record", of course, implies the latter. However, she was adamant that the expression actually used was "a criminal" and I accept her evidence.
Secondly, I accept that Mrs Passas made the statement about "pulling swifties". It was said after the ballot for the new President had been concluded and around about the time of the ballot for the first Vice President. The statement was made in response to Mr Henderson's point of order when Mrs Passas said something about her husband looking after the ballot paper, suggesting she was going to absent herself from the meeting. Not only do I find Mr Henderson's evidence on this topic persuasive, but I, by and large, as my reasons so far no doubt have shown, accept the accuracy of Mr Balzola's minute of the meeting (Annexure D to Exhibit A). He has recorded the substance of that statement on page 3 of that document. I accept Mr Henderson's account that the statement was made to the effect, "Thank God you are here. You are all full of swifties" (see [43] above). I am prepared to infer that the statement was probably about both Mr Henderson and Mr Balzola (and possibly Mr Najjar) even though apparently made in response to Mr Henderson's point of order. Mr Carrie, a strong supporter of Mrs Passas, certainly had the impression that the statement was directed expressly at Mr Balzola (see [108]).
Thirdly, I am also satisfied that Mrs Passas made a statement in substance and to the effect that Mr Balzola had assaulted his wife and had been subject to an AVO for her protection. I am not so sure it was put in the terms that Mrs Passas rendered it in her affidavit (see [85]). In particular, so far as it matters, it was probably not put in the past perfect tense. As I have already said (at [181] above), I prefer the evidence of Mr Balzola, Mr Henderson and Mr Najjar that these statements were said loudly and deliberately enough for anyone close enough to hear over the din of the meeting. As I have said, (see [182] above), the fact that Mrs Tyler did not hear these statements does not dissuade me from finding that they were made.
Mr Balzola's note (p.4 Annexure D to Exhibit A) renders the statement in terms of "beating his wife" and an "AVO", in his lawyers shorthand, "ats (at the suit of) his wife". Mr Henderson has it in much the same terms, and around the same time, which is after the election of the Vice President (Policy) (see [44] above). Both say that at the same time Mr Raciti said something to the effect of, "It was in the paper". In her version (at [85] above) Mrs Passas said that she said that she had read it in the paper. I am satisfied that she probably did say something to the effect that the matter was reported in the paper.
Although she acknowledged some difficulties with her recollection, Ms Khachan rendered the comment by Mrs Passas as "wife basher", and attributed to Mr Raciti the form, "He beats his wife". Mr Najjar's evidence is that Mrs Passas used the expression "beats his wife" and "has an AVO" (see [71] above).
Whatever difference there may be between "bashes", "beats" or "assaults" does not amount to much, if anything, of substance. However, given Mr Balzola's contemporaneous note and the support of the other witnesses I have mentioned, I find that the statement made was probably to the effect of "beats his wife".
I appreciate that Mr Balzola, Mr Henderson, Ms Khachan and Mr Najjar give evidence to the effect that Mrs Passas made like comments, including accusing Mr Balzola of being a criminal, a number of times. Mr Henderson favoured three instances in total; Ms Khachan four instances and Mr Najjar gave an account of eight statements made by either of the defendants (see [77] above). As I point out at [21] above, Mr Balzola makes only two contemporaneous notes of statements by Mrs Passas in his minute of the AGM. I accept that as Mr Balzola was there to act as scrutineer "he did not write down every single word spoken by Mrs Passas and Mr Raciti" (112.11T; at [40] above). Given the relative inconsistencies in his various accounts and his shifting ground in relation to which of his memory, Annexure D or his answers to interrogatories was correct, I am not satisfied on the balance of probabilities that the statements about him beating his wife, having an AVO or perhaps being a criminal for those reasons were said on more than one occasion. I accept that Mr Balzola is supported in his evidence by the other witnesses called in his case. But I am not satisfied that their evidence about other statements made at different times during the AGM are sufficiently precise, even allowing for the degree of tolerance permissible to actually persuade me to a state of reasonable satisfaction of the truth of them. I infer a lot was happening at the AGM and given that these statements are said to have been made during the voting phase of the meeting, Mr Balzola would have been otherwise absorbed in what he described as the process of "positive discrimination" to ensure every vote cast in favour of the faction he supported was counted.
I do not accept that the probabilities favour an ongoing diatribe. I appreciate that the argument to support a finding of ongoing insults is the alleged motive to "shut the meeting down" and the apparent belief that, in that event, past office holders would retain their positions until a new AGM was convened. I acknowledge that Mrs Passas agreed she had that understanding, but denied engaging in that tactic. I have trouble accepting it as a factor which enhances the probabilities in favour of the plaintiff's argument. As I have said already, the positions had been declared vacant. Moreover, despite the tension, Mr Tannous was confident in his ability to steer the meeting to a successful conclusion. He had never had to abandon or adjourn a meeting because of rowdiness or unruliness.
Moreover, even had the tactic been deployed, and assuming it some prospect of success, why continually attack Mr Balzola? He was there as a scrutineer. Mr Andrade was the leader of the faction who had the numbers. Surely, any tactic of planned disruption would more logically have been directed at him and his immediate supporters who actually had voting rights and eligibility to stand for office which Mr Balzola did not. I accept that Mrs Passas made the statement summarised in Annexure D at around the time of the vote for the Vice President (Policy), but I repeat that I am not satisfied that she made further statements to like effect on an ongoing basis during the AGM.
Returning then to Mr Raciti, the findings I have made accepting Mrs Tyler's version effectively covers the pleaded statement at 5 above, that Mr Raciti said "it's true, I saw it in the paper, he has a criminal record". What I have found proved in that context falls into the category of proof "that a material and defamatory part of the pleaded statement has been published"; Feo v Pioneer Concrete at [31]. This, of course, is subject to the qualified privilege defence which I will deal with in due course.
The remaining question then is: am I satisfied on the balance of probabilities that Mr Raciti also said words to the effect, "Balzola beats his wife". According to his minute of the AGM (Annexure D), as explained in his evidence (see [37] above), Mr Balzola says that after the ballot for the Vice President (Policy) when Mrs Passas made the statement about him "beating his wife" Mr Raciti chimed in with the same comment and the statement, "It's true it was in the paper". I acknowledge that Mr Balzola's witnesses support his evidence that Mr Raciti played "chorus" to Mrs Passas's "leading lady" in these matters. As I have already said, more than once, Mr Henderson's evidence was, for instance, that Mr Raciti loudly screamed his support.
I accept that Mr Raciti's position is not advanced by his inability to give any contradictory evidence which is not adequately explained, in my view, by the psychiatric evidence tendered on his behalf, always bearing in mind that the onus of proving the words spoken rests at all times on the plaintiff. This of course means that I would be entitled to more readily draw the inference for which the plaintiff contends that the matters alleged were in fact stated. However, the matter that is nagging at my judgment is the consideration that Mr Tannous did not hear, in particular Mr Raciti, utter the words attributed to him by Mr Balzola. I have dealt with my concern in this regard at [189] above. Making every allowance for other matters which may have required his concentration and diverted his attention, as well as the rowdiness of the meeting and the resulting difficulty hearing, had Mr Raciti loudly screamed the words attributed to him, Mr Tannous could not have failed to hear him. They were virtually sitting beside one another. I regard Mr Tannous as an honest witness who had no particular interest in this litigation or its outcome. I accept that at a tense, heated or acrimonious political meeting, a deal of heckling and exchange of insults is likely to take place. An experienced operator like Mr Tannous may have become oblivious to such distractions. Mr Matthew Raciti referred to, "the normal type of comments that are usual at such meetings" (see [129] above). Allowing for these matters, I am still not satisfied that Mr Raciti would have behaved in the manner described by Mr Henderson, for instance, without Mr Tannous knowing of it.
I have generally accepted Annexure D as a reliable document. Mr Balzola acknowledged that even though he perceived "a bombardment of attack" he did not write everything down (see [38] above). He had other more pressing concerns. It may be that the record relating to Mrs Passas's second statement incorporates a belated note recording the substance of what Mr Balzola remembered Mr Raciti saying during their earlier exchange. However, I am not able to make any positive finding about the matter. I am not persuaded on the balance of probabilities that Mr Raciti operated in tandem with Mrs Passas making ongoing statements against Mr Balzola or even echoing this single statement that I have found Mrs Passas made in relation to Mr Balzola "beating his wife".
I am satisfied then that Mr Balzola has proved three statements, which in substance and effect match three of the five statements sued upon. First, in their exchange at the start of the meeting Mr Raciti said, "You're [a] criminal … who has had charges and had an AVO against you". Second, when the ballot for a new President had been concluded, in response to Mr Henderson's point of order about Mrs Passas purporting to absent herself from the meeting, she said, "thank God you are here, you are all full of swifties" making the statement about Mr Henderson and Mr Balzola. And third, following the conclusion of the ballot for the Vice President (Policy) Mrs Passas made a statement that Mr Balzola beats his wife and has an AVO against him for her protection.

[50]

Were the pleaded imputations conveyed?

As Mr Rasmussan submitted, my task is to decide whether on the balance of probabilities Mr Balzola has established whether the pleaded meaning (see [6] above) of each of the statements I have found was made is conveyed by the publication complained of, and if so, whether those imputations were defamatory of him. This question is to be answered by application of the well-known, in the case of oral defamation, ordinary reasonable listener test.
It is not necessary for the purpose of the present case to expound at length the guidance to be derived from the many authorities cited on this point. Not all of the many characteristics of that everyman identified in the case law is in play on these facts. Given the statement from Howden v "Truth" and "Sportsmen" Limited referred to above at [13], I am satisfied that Mr Raciti's statement and Mrs Passas's second statement carried the imputation that Mr Balzola is a criminal, who beats his wife and has an apprehended violence order against him for her protection. These are, of course, (a), (c) and (d) as pleaded (see [6] above). There is no real difference between an imputation that a person is "a criminal" on the one hand and has "a criminal record" on the other except, as I have pointed out above, (at [206]) "criminal record" necessarily implies the existence of convictions whereas a person may be said to be a "criminal" with whom the law has yet to catch up.
In any event there was no real issue that if I was satisfied that the substance and effect of the pleaded statements had been made they were defamatory. The issues were really, as I have said, "fatal variance" as a question going to proof, and qualified privilege in respect of Mr Raciti. An aspect of the fatal variance argument advanced by Mr Kirby was "historical accuracy". This argument proceeded upon the basis that a statement that Mr Balzola had had charges and an AVO against him was historically accurate, an interesting argument in circumstances where leave to amend to plead justification was refused Balzola v Passas [2019] NSWSC 1724 (McCallum J, as her Honour then was). For my part, I regard this argument as untenable. First, I have not accepted the refinements on the statements put forward in Mrs Passas's evidence, nor have I relied upon Mrs Tyler's evidence that the statements were all in the past tense. Secondly, clearly accepting as I do, that the epressions used were "criminal" and "beats his wife", there is no room for that type of special pleading. Thirdly, given that the statements were made at a rowdy political meeting, I do not regard the capacity for such refinements to be an attribute of the ordinary reasonable listener. The ordinary reasonable listener is not a grammarian and, in any event, even were it otherwise, in the environment in which the statements were made he or she would have had no opportunity to parse them.
As I have said, it is not necessary to paint a full picture of all the attributes of the ordinary reasonable listener to decide this case. But it is apposite to refer to the unanimous judgment of the High Court of Australia in Trkulja v Google LLC (2018) 263 CLR 149; [2018] HCA 25 at [32], where their Honours said that the meaning conveyed to the ordinary reasonable person by even the written word is entirely likely to be only a matter of first impression. The same observation must be true of the spoken word which cannot be perused again. And the following statement supports the point that the ordinary reasonable person is not a grammarian (at [32]): The ordinary reasonable person is not a lawyer who examines the impugned publication over‐zealously but someone who views the publication casually and is prone to a degree of loose thinking. … such a person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions. There are no conspicuous headlines or captions here. But tone of voice and emphasis in speech may well do the same work for the listener. Their Honours approved and applied the dictum of Kirby J from Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 at p.574: [W]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject. In my view, this dictum is likely to be very apposite in cases of oral defamation.
I repeat, it seems to me although the words "conviction" and "sentence" are absent from the statements in contention in the case at hand, it falls into the same category as Howden v "Truth" and "Sportsmen". The important consideration here is however historically accurate statements about "charges" and "AVO" rendered in the past perfect tense may be, the charges brought were dismissed, albeit, for the first series of charges, under s 32 Mental Health (Forensic Provisions) Act 1900 (NSW) and the AVO was revoked. A listener hearing the statements at the meeting would understand the meaning of them in terms of the pleaded imputations, as I have found.
I turn then to the "full of swifties" statement. The imputation contended for is, "Mr Balzola is a devious operator" or "Mr Balzola is capable of deceitful practices". I confess to having had some difficulty deciding whether either of those meanings was truly conveyed by this statement made by Mrs Passas in context. It has to be remembered that the statement was a retort to the point of order objecting to her absenting herself from the room while the ballot was underway, presumably under some unspecified rule, not in evidence, but by which such meetings are governed. All parties present were members of the same political party and no doubt active in its affairs at a branch level. One can therefore attribute to the ordinary reasonable listener, in this context, at least a working understanding of how such meetings are required to be conducted. A "swiftie" in that context might just as well convey that a person knows the rules and knows how to use them to her or his advantage. In such circles such a quality may be a matter for admiration, rather like a sportsperson gifted with an impressive turn of speed.
I am not satisfied that the ordinary reasonable listener in that environment, in the context in which the expression was used, would garner the meaning that Mr Balzola (or Mr Henderson for that matter) was a person capable of devious practices. Indeed, the use of the expression may say more to the ordinary reasonable person about the speaker's chagrin at having been pulled up appropriately, than it does about the character of the subject of the statement. Qualified privilege
Mr Raciti relies upon the defence of qualified privilege in respect of the imputations carried to the ordinary reasonable listener by the words used in his retort to the statements I have found Mr Balzola made about him in accordance with my acceptance of Mrs Tyler's evidence. For ease of reference I record again that I have summarised Mrs Tyler's evidence at [146] above. It will be recalled that Mr Balzola accused Mr Raciti of having "taken all the money" from the SEC's funds and "spent it on [the] restaurant". Mr Raciti dared Mr Balzola to repeat the charge. Mr Balzola said words to the effect that because Mrs Raciti "is on council", Mr Raciti's business receives "preferential treatment" and he was "part of the mafia". This provoked the retort from Mr Raciti that Mr Balzola was "the criminal". When challenged about that charge by Mr Balzola, Mr Raciti said, "You're the one who's had charges and had an AVO against you".
Mr Rasmussan, relying on Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5, submitted that Mr Raciti's lack of recall of the AGM and in particular of the exchange between him and Mr Balzola, on Mrs Tyler's version, is a bar to him successfully raising this category of qualified privilege. That is because as explained by McHugh J in Bashford (at [58]; albeit it in dissent), a plea of qualified privilege "is a plea of confession and avoidance. It accepts that the communication is defamatory, that the defamatory matter may be false and that its publication has caused or may cause harm to the plaintiff". So far as avoidance is concerned, the plea "contends that the publication is immune from liability because the public interest requires that the duty and interest of the publisher and recipient should be preferred to the protection of the plaintiff's reputation". In this context, of course, the publisher is Mr Raciti and the recipients are the persons present at the AGM. Gummow J also drew the analogy with a plea of confession and avoidance (at [135]).
I cannot see it as impermissible for Mr Raciti to say he has no sufficient recall of the AGM to enable him to give evidence one way or another of what was said by whom, and when, even if he denied the statements attributed to him in the statement of claim in his answers to interrogatories. It is unfortunate that he did so, without making clear the state of his own recollection and the inquiries, if any, made of others to justify his answers. However, neither his lack of recall, on the one hand, nor his denials, on the other, bar him raising qualified privilege, in the alternative, by reference to the evidence of other witnesses. The only question is whether he has been successful in making good the elements of that defence.
In Penton v Calwell (1945) 70 CLR 219 at 233, Dixon J, sitting at first instance, said of the defence of qualified privilege: The defence of qualified privilege means that, in the absence of malice, the existence of which of course the defendant denies, the libel is not actionable, whether the charge it contains be true or untrue. It means that the publication of the defamatory statements is protected and that the question whether they are or are not true is immaterial. When the privilege of the occasion arises from the making by the plaintiff of some public attack upon the reputation or conduct of the defendant or upon some interest which he is entitled to protect, the purpose of the privilege is to enable the defendant on his part freely to submit his answer, whether it be strictly defensive, or be by way of counter- attack, to the public to whom the plaintiff has appealed or before whom the plaintiff has attacked the defendant. The privilege is given to him so that he may with impunity bring to the minds of those before whom the attack was made any bona fide answer or retort by way of vindication which appears fairly warranted by the occasion. His Honour added (p. 233 - 4): The foundation of the privilege is the necessity of allowing the party attacked free scope to place his case before the body whose judgment the attacking party has sought to affect … The purpose is to prevent the charges operating to his prejudice. It may be conceded that to impugn the truth of the charges contained in the attack and even the general veracity of the attacker may be a proper exercise of the privilege, if it be commensurate with the occasion. If that is a question submitted to or an argument used before the body to whom the attacker has appealed and it is done bona fide for the purpose of vindication, the law will not allow the liability of the party attacked to depend on the truth or otherwise of defamatory statements he so makes by way of defence. These statements of principle were approved by Gummow, Hayne and Bell JJ in Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44 at [33].
The plurality in Trad also said at [35]: That the matter complained of is sufficiently connected to the privileged occasion to attract the defence may appear upon any one of several considerations. The matter may be sufficiently connected with the content of the attack, or it may go to the credibility of the attack, or to the credibility of the person making that attack. Questions of degree inevitably will be presented. (My emphasis).
In Trad Kiefel J (as the Chief Justice then was) said at [130]: It has never been suggested that the defence of qualified privilege is absolute. It is not unbounded and may be lost on proof of actual malice. An attack upon a defendant's reputation does not provide an occasion for defamatory remarks having no connection to the attack or the need for the defendant to vindicate himself or herself. But it is not necessary to confine the scope of the privilege by other considerations, such as whether the response goes too far, is unreasonable or is out of proportion to the attack. Such considerations are essentially subjective and may create uncertainty as to the operation of the defence, which is largely a question of law. Moreover, such considerations may have the effect of blurring the boundary between facts relevant to the privilege and facts relevant to the issue of malice. A test of relevance is necessarily objective and does not confuse matters pertaining to the subjective question of whether a defendant was improperly motivated, and therefore malicious in using the words complained of, with matters from which it may be concluded that the words were spoken on an occasion of qualified privilege. Her Honour went on to point out that a defence of qualified privilege may be defeated by proof of malice, the onus lying on the plaintiff in that regard.
On the facts as I have found them to be I am satisfied on the balance of probabilities that Mr Raciti has made good his defence of qualified privilege. A direct attack was made upon his character and credibility while he was sitting as President of the SEC. By launching his attack Mr Balzola was appealing to the judgment of the members of the SEC and other members of the Liberal Party there present. In my judgment to prevent Mr Balzola's charges operating to his prejudice before that audience, it was commensurate with the occasion, that is to say, it was relevant, for Mr Raciti to counter-attack by impugning not only the truth of Mr Balzola's charges but "the general veracity of the attacker". To put the latter point another way, I am of the view that the otherwise defamatory matter contained in Mr Raciti's counter-attack was sufficiently connected with the privileged occasion because what he said went to "the credibility of the attack, or the credibility of the person making that attack".
I am satisfied that the occasion of the AGM provided the reciprocity of interest between Mr Raciti and the persons present at the AGM to provide the protection of the privilege to the communication. As I have said he was attacked in his capacity as President of the SEC conducting the first part of the AGM, and as a person who was an aspirant for re-election. Given the attack upon him, those present, especially the electors, but not only them, had an interest in hearing his response to the charge. That response was sharp and spontaneous and cut to the quick of the matter by seeking to undermine the veracity of the attacker.
Mr Balzola has not assumed the onus of seeking to establish on the balance of probabilities actual malice. As I have said, the defence is made out and given that this is the only statement I have found proved by Mr Balzola there must be judgment for Mr Raciti which I will order in due course.

[53]

Principles

In Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31 at 60 Mason CJ, Deane, Dawson and Gaudron JJ explained the purpose of an award for damages in defamation cases in the following terms: Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that "the amount of a verdict is the product of a mixture of inextricable considerations". The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. "The gravity of the libel, the social standing of the parties and the availability of alternative remedies" are all relevant to assessing the quantum of damages necessary to vindicate the appellant. The first quotation is a reference to the judgment of Windeyer J in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40 at 150. The second, to John G Fleming, Law of Torts (8th ed, 1992, Law Book Company) at p.595.
In Uren v John Fairfax (at p.150) Windeyer J also said: It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation that is simply because he was publically defamed.
In Cerutti v Crestside [2016] 1 Qd R 89; [2014] QCA 33 at [54] Applegarth J with whom the other members of the Court agreed, said: An appropriate award for general damages may fall within a fairly broad range, depending upon the circumstances. Those circumstances include the seriousness of the defamation, the extent of publication, the evidence about actual harm to reputation and injured feelings and the need for vindication. Even broadly comparable cases, such as imputations of dishonesty communicated to a very limited number of individuals, show a wide variation in awards. However, principles of compensation, the statutory command in s 34 of the Act to ensure "an appropriate and rational relationship" with the harm sustained and the need for some consistency between closely comparable cases constrain the proper exercise of discretion. Some level of consistency in awards is important to enable parties to predict with some confidence what an award is likely to be at trial, and to resolve their differences based on that prediction.
In general terms compensatory aggravated damages are payable to a plaintiff when the conduct of the defendant in the manner in which the defamation was published, and subsequently, increases the harm that would have been suffered by the plaintiff by reason of the defamation alone.
I also bear in mind the observation of Warby J in Umeyor v Ibe [2016] EWHC 862 at [1], explaining the comparative rarity of "slander" claims, inter alia, by reference to "the fact that spoken words are, as a rule, less likely than written publications to cause serious harm to reputation". This observation, of course, runs somewhat counter to the grapevine effect.

[54]

Consideration

It is to be borne in mind that the substance of Mrs Passas's defamatory statement is that Mr Balzola beats his wife and has an AVO against him for her protection. I have found that the imputation conveyed by that statement is that Mr Balzola is a criminal who beats his wife and has an Apprehended Violence Order against him for her protection. I accept that it is a serious matter to defame a person by saying he or she, especially he, is the perpetrator of domestic violence. I say especially he because it is notorious in our community that domestic violence perpetrated by men against women is much more prevalent than by women against men. Engaging in domestic violence is rightly regarded as despicable conduct by ordinary reasonable people. To say Mr Balzola had an AVO against him adds colour to the charge. Saying, as I have found Mrs Passas did, that she read it in the paper may add weight to the charge. At the time Mr Balzola would have been deeply wounded in his feelings and at least, his reputation would have suffered at least temporarily amongst those who heard it.
I say at least temporarily because as Mr Kirby has argued, the evidence, and this may be a two-edged sword, is largely that those who heard the statement and may have been "shocked" by it initially, seem to have been people previously well-disposed to Mr Balzola. He was embarrassed by the need to make his explanations to them after the meeting. But there is no reason to suppose following his explanation that: he had been charged on two occasions, but the charges had on each occasion been dismissed; on the first occasion under s 32 of the Mental Health (Forensic Provisions) Act, and on the second on the merits as the charges were baseless; and he had had the AVO revoked, which was both true and seems to have been accepted by those to whom the explanation was given, resulted in any ongoing diminution of his standing in their eyes.
I repeat that it must also be borne in mind that the publication was to a small number of around 30 persons only, a sizable number of whom failed to hear it because of the rowdiness of the meeting. It is not insignificant when considering damages that what Mrs Passas said was not in any real sense much different from what Mr Raciti said under the cover of qualified privilege. Again not everyone heard Mr Raciti's counter-attack. However, Mrs Passas's statement in context could not have added much to any injury to Mr Balzola's reputation suffered in Mr Raciti's counter attack which attracts no legal liability. The reality is that Mrs Passas's statement was made in the heat of a rowdy acrimonious political meeting attended by a limited number of individuals in which milieu the trading of insults is often likely to pass as no more than an exaggeration of the cut and thrust of political exchange. It seems that in this circle Mrs Passas was a well-known "stirrer", or perhaps worse, which probably diluted the credence afforded charges emanating from her. Of course, in such an environment many individuals are happy to give personal offence as a form of political discourse, even if they are not so keen to receive it.
I am not persuaded that there is much in Mrs Passas's conduct which adds to the assessment of the extent of the injury to Mr Balzola's feelings and reputation. I am not satisfied that she was motivated by any particular malice, other than the desire to discredit a political opponent who was enjoying success to her disadvantage. Again, this seems to be common enough among the political class. Moreover, as I have found, it was true Mrs Passas had "read it in the paper". However, she converted what appears to be a conventional "fair report" of court proceedings into a defamatory statement. The report itself was only of the initial steps in a Local Court prosecution. And, in any event, her statement runs afoul of the principle discussed by Dixon J in Howden v "Truth" and "Sportsmen". To the extent to which the statement was made for temporary political advantage, I will take Mrs Passas's conduct into account as an aggravating factor sounding in damages, but not by much.
I do not regard the conduct by Mrs Passas of the proceedings as circumstances justifying aggravated compensatory damages. Both defendants sought a late amendment to raise the defence of justification, which attempt was disallowed by McCallum J. Obviously to the extent that this was attempted on Mr Raciti's behalf there can be no increase in the damages. But her Honour refused the application to amend by applying the overriding purpose of civil litigation in as much as it was made late, the explanation for the delay was unsatisfactory and, if allowed, the amendment would only serve to complicate what otherwise appeared to be a simple case, which had already been fixed for trial.
I do not regard the cross-examination of Mr Balzola by Mr Kirby as being in any way unfair. It was in substance an appropriate testing of Mr Balzola's evidence and its length was contributed to by Mr Balzola's performance as a witness. In all respects, both counsel conducted the proceedings with an eye on the issues and with appropriate efficiency.
I have not forgotten the grapevine effect, which I accept can be difficult to measure. However, that difficulty itself requires restraint in assessment. As I have said there is no direct evidence of any ongoing reputational damage to Mr Balzola. I accept to a degree he continues to feel the sting of the insult. His reputation is to be vindicated, but the dominant compensatory principle is that established by s 34 of the Defamation Act, that the amount of damages is to be calculated for the purpose of ensuring an appropriate and rational relationship between the harm suffered and the damages awarded.
In fixing the amount I am about to award, I do not mean to trivialise the matter or to award merely nominal damages, imposing a Pyrrhic victory on Mr Balzola. However, I do not assess this case as sounding loudly in damages. In truth, the harm suffered was modest and allowing for vindication and a small degree of aggravation, as I have described, I assess Mr Balzola's damages in the sum of $10,000.
Although there is some ongoing personal hurt felt by Mr Balzola, any injury to his reputation, on my assessment, was very short lived. Bearing these matters in mind, I accept Mr Rasmussan's submission that the appropriate rate of interest under s 100 Civil Procedure Act 2005 (NSW) is 3.5 percent. For this purpose, I apportion $8,000 of the damages awarded to the past. Taking a broad brush, I allow interest for a period of 4 years and 4 months at that rate, in the sum of $1,213. The total damages then are $11,213.
I will provide the parties with the opportunity to make submissions on the appropriate costs order to be made in the circumstances.

Balzola v Passas

At a glance

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Judgment (56 paragraphs)

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Legislation Cited (4)

Cases Cited (21)

Cited By (3)