Bennette v Cohen [2007] NSWSC 739 | Case summary

Bennette v Cohen [2007] NSWSC 739 | Case summary | Zoe

[13]

8 The plaintiff was born in the United States of America in 1945. He emigrated to Australia in 1971. He married his wife Jillian Bennette in September of the same year. They moved to the Byron Bay area in 1974. They purchased a small farm at Newrybar south of Bangalow. On that property, over a period of 14 years, the plaintiff and his wife built a four-bedroom house, farm sheds, ancillary sheds, removed noxious plants, and planted a mini rainforest and over 2000 waratahs and native trees. The plaintiff also worked as a casual and part-time teacher in the local area. 9 In late 1979 the plaintiff set up a landscaping business specialising in native landscapes. That business was based on the property. The plaintiff did that work until 1981. The plaintiff sold the property in 1988. The plaintiff said that after almost 14 years it was time to move on. In 1988 the plaintiff purchased an eight hectare property at Suffolk Park. Suffolk Park is a short distance south of Byron Bay. The plaintiff's Suffolk Park property, and the work performed by him over many years developing it, is central to the issues in this case. 10 The property was zoned by the Byron Shire Council as Residential 2A. The plaintiff said that it had formerly been a farming property until the 1960s when it was rezoned. By the time the plaintiff purchased the property it was overgrown with weeds, which he later removed. 11 The plaintiff's Suffolk Park land is situated a short distance from the coast. From photographs tendered in evidence it is clear that other residential subdivisions have taken place in the area, particularly to the east and southeast. The plaintiff's land is effectively sandwiched between this development and what appears to be virgin bushland to the west and northwest. Aerial photographs taken of the property in 1992 make this clear. 12 When the plaintiff purchased the Suffolk Park land a watercourse effectively bisected it that the plaintiff described as nothing more than a shallow, weed infested ditch. It was man-made with battered sides. He made the decision to relocate it. He took advice before doing so. The plaintiff said that he engaged a very experienced hydrological engineer and consulted with a local environmental group. He took advice from Bill Mollinson, who he described as one of the founders of permaculture in Australia. The plaintiff said that he wanted the construction and maintenance of the watercourse to be as little a burden on the community as possible. He sought advice on correct native plantings so that the creek would be essentially self-maintaining. 13 The plaintiff and his wife became members of the Ballina Environment Centre and the Suffolk Park Progress Association. He became a member of the Byron Shire Waste Water Management Committee. He removed noxious weeds using a bulldozer in accordance with weed notices issued by the council. 14 The plaintiff said he lodged a development application with the council in approximately October 1989. That was for a first stage of 25 lots but it provided for an overall development concept for the whole property. Most of the issues relating to this development application were worked out between the plaintiff, his consultants and council officers. Problems arose in relation to the creek. 15 The plaintiff said that the engineering department of the council at that time wanted to enclose the creek within a pipe. The plaintiff thought that this would not work from an engineering standpoint and, more significantly, was concerned with the aesthetics of his overall concept of creating a natural watercourse through the land that would attract wildlife and enhance the development. The council rejected the plaintiff's original design for the creek. The plaintiff redesigned the creek and appealed to the Land and Environment Court. The matter was mediated and the plaintiff's redesign was approved. That was in April 1992. A construction certificate was issued in December 1992. 16 Between 1988 and 1992 the plaintiff had found the council increasingly difficult to deal with. These difficulties are referred to in great detail in a Special Investigation Report dated August 1993 issued under s 433 of the Local Government Act 1993. The investigation related to the Byron Shire Council and was initiated in November 1991 in response to a number of allegations about the conduct of the council and certain council officers, especially in relation to planning matters. A significant portion of that report (Part 4, consisting of 48 pages) is entirely devoted to what is described as "The Bennette Case". It deals in some detail with the plaintiff, his development of the Suffolk Park land and the stormy relationship that developed between him and the council and members of its staff.

[16]

21 They planted 15,000 native plants and trees along the banks of the creek and created what appears now to be a natural watercourse with structures created from rocks and other natural materials. A photograph tendered in evidence by the plaintiff taken in approximately 1998 depicts the creek in its finished state. It appears to be very beautiful and aesthetically pleasing. Other photographs confirm this. The creek now belongs to the Byron Shire Council as a result of a dedication required as a condition of development approval. 22 Stage one consisted of development approval for only 25 residential lots. This covered about two hectares out of a total area of eight hectares. The plaintiff submitted a second development application in 1991 for filling of the land. The plaintiff said that he carried out filling works upon the land in accordance with his development approval as an ongoing process from about 1993. 23 The plaintiff continued to develop his Suffolk Park land. In May 1996 he lodged a further development application with the Byron Shire Council seeking approval for the construction of 65 townhouses on 12 freehold lots. The plaintiff said that he spent about two years working with his consultants and with the council to ensure that the final overall development and layout was right. It went through some amendments. It was advertised at the end of 1996. The council refused this. In October 1996 the plaintiff lodged an amended development application. The council did not deal with this within the time required and the plaintiff filed an application in the Land and Environment Court upon the basis of this deemed refusal. In June 1997 the council staff recommended approval but on 10 June 1997 the council formally refused the development application. A notice of determination was issued on 18 June 1997. 24 The plaintiff appealed to the Land and Environment Court. A hearing of the plaintiff's appeal to the Land and Environment Court against the council's refusal of his development application was listed in November 1999. The plaintiff ultimately withdrew that appeal in early 2000. In the meantime, in December 1999, the plaintiff had lodged a fresh development application for the same parcel of land reducing the number of dwellings from 65 to 40. The council again refused, or neglected to assess, that application within the statutory period and the plaintiff once again appealed to the Land and Environment Court. That appeal was upheld on 26 April 2001. Development subsequently proceeded on the land in accordance with that development consent. That work has now been completed. The Bradbury incident 25 On 4 June 1996 the plaintiff's development application DA 96/191 came before the council. A Mr David Bradbury had been given permission to film the council proceedings. He was unaccompanied. The council meeting took place at night. The plaintiff said he observed Mr Bradbury to be wandering around during the proceedings filming the council members but also stopping close to people in the gallery and putting his camera close to their faces. During an adjournment in the proceedings the public gallery was cleared. An incident then occurred involving Mr Bradbury, councillor Tucker, the plaintiff and his wife. 26 The plaintiff said that he and his wife were packing up to leave. He observed Mr Bradbury filming councillor Tucker as he walked away from his chair towards the back door. Mr Bradbury had his camera "right in Mr Tucker's face". An altercation ensued when councillor Tucker attempted to move Mr Bradbury's camera away from his face. The plaintiff said that Mr Bradbury "went to take a swing" at councillor Tucker with his free hand, in the course of which he struck the plaintiff's wife a blow to the side of her head and she fell to the floor unconscious. The plaintiff said he had "extreme concerns". He said his first thought was to get his wife out of danger. He said he leaped and tackled Mr Bradbury, calling him "a mother fucker". As a result of this incident, the plaintiff was charged with assault and using offensive language. He was convicted. 27 The plaintiff appealed to the District Court against his conviction and sentence. In reducing the fine from $750 to $100, the Chief Judge, Justice Blanch, made the following remarks: -

[23]

Having considered the matters that have been put, in my view the breach of the law involved is of such a serious kind in this case that it really rules out the exercise of a discretion under s 556A. There does, in my view, have to be a conviction to mark the seriousness of the offences … I am sure that the assault arose purely out of the fact that he saw his wife suffer and that he lost control of himself as a result." The Rivercare 2000 Gold Award 28 The plaintiff said that from 1993 to 1998 and beyond he had maintained Tallow Creek at no cost to the council "because we were so proud of it". The plaintiff said that he spent approximately $35,000 of his own money up to 1998 maintaining mainly the eastern side of the creek. This included extra plantings and maintaining the public walkway. 29 In early 1998 the plaintiff saw a newspaper advertisement asking for people to become accredited for the work that they were doing on rivers, creeks and streams. The plaintiff applied for accreditation and the Department of Land and Water Conservation subsequently inspected Tallow Creek. Some months later the plaintiff received a call and was asked if he would show Tallow Creek to Rivercare Committee members. Subsequently, two people came up from Sydney and the plaintiff took them through the creek and showed them his development. In about November 1998 the plaintiff was notified that he was a finalist in the Rivercare Awards for 1998. An awards ceremony subsequently took place in Sydney at which the plaintiff and his family received a gold award. 30 News of this award appeared prominently in newspapers circulating in the Byron Bay area. Articles referred to Tallow Creek and to the plaintiff's development of his Suffolk Park land. Councillor Tucker moved a motion at the Byron Shire Council meeting on 8 December 1998 that the plaintiff and his family be acknowledged and congratulated for the Rivercare Award and for doing something for the community. A debate followed. 31 The plaintiff said the debate continued for about 45 minutes. Councillor Tucker spoke in favour of his motion. Others - which the plaintiff identified as the Greens on council - spoke strongly against the motion. A videotape recording of the proceedings, and of the debate, was tendered in evidence. The motion was lost. It became clear that the council was divided into at least two groups, one of which favoured, and one of which opposed, the plaintiff's development of his Suffolk Park land, if not the plaintiff himself. The plaintiff showed the council what he thought of their decision following the meeting by giving a Nazi salute and shouting "Seig Heil". In the way of things, that controversy has spilled over into these proceedings. It will be necessary to return to this issue as well. William ("Bill") Mackay 32 The plaintiff first met Bill Mackay in about 1995 or 1996 when they were both teachers at Alstonville High School. The plaintiff was a casual teacher. The plaintiff said he had read about Mr Mackay in the Byron Shire Echo and that he had run (unsuccessfully) for council and was a member of the Suffolk Park Progress Association. The plaintiff said that Mr Mackay was one of a number of Greens who ran for council together with Jenny Coman. The plaintiff recalled that Mr Mackay was present at the council meeting on 8 December 1998 and also at the hearing before the magistrate when the plaintiff was dealt with for the Bradbury incident. According to the plaintiff, the defendant, Jan Barham, Ms Coman, Mr Hoskins and Mr Evans were also present. 33 On 15 December 1998, Bill Mackay published a letter in the Byron Shire Echo. Bill Mackay was still a local schoolteacher and had been the secretary of the Suffolk Park Progress Association during the 1990s. At one time the plaintiff had been a member of this association. It consistently opposed almost all or any development of the plaintiff's land. It would appear to have been closely and sympathetically associated with Green councillors on the Byron Shire Council. 34 Mr Mackay's letter was in the following terms: -

[39]

I regret my actions and unreservedly apologise to both Mr and Mrs Bennette for having published a letter, which was hasty and poorly thought through. Mr and Mrs Bennette and I have now resolved the matter. As part of that resolution, we have agreed, at Mr and Mrs Bennette's request, that I make a donation to the New South Wales Heart Foundation rather than paying damages for the defamation." 39 The defamation proceedings commenced by Mr Mackay against the plaintiff were dismissed by consent in March 2005. No other orders were made at that time. The 6 January 2000 site meeting and stop work order 40 Since approximately September 1999, the plaintiff had been busily engaged undertaking extensive filling works upon his land in accordance with approvals previously granted by the Byron Shire Council. David Milledge had been engaged by the council at about this time as an expert witness in the plaintiff's appeal against the council's deemed refusal of his development application. Mr Milledge was an expert in native fauna. Mr Milledge inspected the plaintiff's land in that capacity on 11 October 1999 when the filling works were in progress. He inspected the plaintiff's land again between 13 and 15 December 1999. On 14 December 1999 Mr Milledge reported that he had found a rare Mitchell snail on part of the plaintiff's land. Mr Milledge prepared an Interim Report to council on 24 December 1999. The plaintiff continued with filling works upon his land during December 1999 and January 2000. 41 In September 1999 Jan Barham had been elected to the Byron Shire Council. Ms Barham was a member of the Greens Party. She was a close friend of the defendant. In October 1999 Ms Barham made an enquiry of the council planning staff about the filling works being carried on by the plaintiff. 42 On 6 January 2000 someone from the Byron Shire Council had telephoned the plaintiff's wife informing her that the council wanted to inspect the plaintiff's works on the Suffolk Park land the following morning at 9.30. In the events that occurred, the meeting was postponed until 11.30am. The council officers present at the meeting were Mr Bob Hanby, an engineering officer; Miss Kate Singleton, a planner; and Mr Paul Montgomery, who was in the planning department. Also present was Mr David Milledge, to whom reference has already been made. Councillor Barham was present as well. 43 The council officers asked to inspect the land. The plaintiff asked them what development application they were dealing with and they said specifically DA 96/191. Councillor Barham asked the plaintiff if she could enter the land with Mr Milledge and the plaintiff refused. The plaintiff said he did this because neither had any right to come onto the land and, in his words, "they had no interest in being there anyway". 44 According to the plaintiff, councillor Barham became very heated and demanded that she be able to enter the site. Thereafter, the council officers entered the site and carried out an inspection. A videotape of some of the events that occurred on the occasion of this inspection became an exhibit in these proceedings. 45 At some point later in the day the defendant came to the site. The plaintiff was not present at this time. 46 There was a further visit by council officers on 7 January 2000. One of the planning managers, Mr Peter Fryer and the council environment officer Mr Joe Hogan, attended the site. Mr Fryer had attempted to serve the plaintiff with a stop work notice, which the plaintiff refused to accept. The plaintiff said, "you will have to serve this on my lawyers." 47 Mr Hogan then told the plaintiff that the council had received a complaint from the EPA regarding the soil on his property. He asked the plaintiff if he could inspect the sedimentation pond. The plaintiff gave him permission to inspect it. 48 The plaintiff then asked Mr Hogan how the complaint to the EPA had come about. Mr Hogan said, "I can't tell you" but at the same time he turned his clipboard around and on the top sheet were words that said, in effect, "Bennette, EPA complaint, Cohen". 49 On 8 January 2000 the defendant again visited the plaintiff's land. 50 Between 7 and 18 January 2000, following the receipt of legal advice, the plaintiff ignored the stop work notice and continued to carry out filling works on his land.

[40]

51 On 16 January 2000 the Suffolk Park Progress Association held an Extraordinary Meeting at the Suffolk Park Hall. The plaintiff was informed that the defendant was present at the meeting, along with councillors Barham and Coman. Following that meeting the Byron Shire Council commenced proceedings against the plaintiff in the Land and Environment Court seeking an injunction to restrain work on the site. Mr Milledge swore an affidavit on 22 March 2000 for use in those proceedings. Mr Milledge deposed to the presence on the land of what may be described as important threatened species of native fauna. 52 Also on 18 January 2000, the Byron Shire Council commenced Class 4 proceedings in the Land and Environment Court against the plaintiff in respect of his failure to comply with the stop work notice that had been issued. These proceedings came before the court for hearing on 23 March 2000. Orders were made by consent dismissing the proceedings and ordering the council to pay the plaintiff's costs agreed in the sum of $10,000. The council offered no evidence to the court in support of its application. The Cohen AVO 53 During this period, on 8 January 2000, the plaintiff saw the defendant. The plaintiff was on his neighbour's property and it was smoko. The plaintiff said that he was sitting on the back of his station wagon having a cup of tea when he saw the defendant drive up to a house in the same street, get out of his vehicle and go inside the house. The next relevant thing that the plaintiff noticed was the defendant marching up at what he described as "a radical pace", and onto the property. The plaintiff said, "Ian, this is private property". The defendant replied, "So what?" 54 After some further conversation the plaintiff said the defendant called him a thug and a mongrel and said, "Go back to America, you scum". The defendant then said, "I'm going to get my lawyers onto you", or something to that effect. The plaintiff said that the defendant called him a thug and a mongrel more than once, possibly three or four times. The plaintiff said that the defendant "was very agitated and angry" when he said these things. The plaintiff called the police who suggested that he apply for an apprehended violence order against the defendant. That is what he did. 55 On 11 January 2000, the front page of the Byron Shire Echo reported that the apprehended violence order proceedings were to be heard on 20 January 2000. Sometime thereafter, although the evidence does not disclose precisely when, the defendant issued a media release about the proceedings. It was in the following terms: - "Bennette ordered to Pay

[48]

The Kennedy incident 57 Two days later, on 20 January 2000, the plaintiff was on his land when he heard some shouting and foul language being used. He saw a man who he recognised as Mr Kennedy. Mr Kennedy kept swearing and calling him a Yank and saying things like "go back to America". Mr Kennedy then said to the plaintiff, "I'm going to come over and belt the shit out of you". Mr Kennedy then came onto the plaintiff's land and was warned by the plaintiff to leave immediately or he would call the police. Mr Kennedy then punched the plaintiff whereupon the plaintiff grabbed Mr Kennedy, threw him to the ground and sat on him until such time as the police arrived. Mr Kennedy was subsequently charged and convicted following a plea of guilty to assault upon the plaintiff. The plaintiff gave evidence in those proceedings. 58 The defendant relied upon this incident as evidence of the truth of some of the imputations. It was also referred to by the defendant in the New South Wales Legislative Council on 13 October 2000 during a debate upon the Home Invasion (Occupants Protection) Bill. On 3 October 2001 plaintiff wrote to the President of the Legislative Council complaining about the defendant's comments. In that letter he said, among other things, that the defendant's statements in Parliament "adversely affected [his] reputation in respect of dealings or associations with others" and "caused injury in [his] credit, character, reputation and profession". The matter was referred to the Standing Committee on Parliamentary Privilege and Ethics, which recommended that the plaintiff's response to the defendant's remarks be incorporated in Hansard. The first matter complained of 59 Mr Mackay's Statement of Claim alleging that the plaintiff had defamed him was issued on 2 April 2001. Shortly before 7 April 2001, the plaintiff learned of a meeting, scheduled for that date, in the Suffolk Park Community Hall. The plaintiff said that he became aware of the proposed meeting from public posters on the community noticeboards in the shopping centre and at the Suffolk Park Community Centre. The plaintiff said that he took steps to have his lawyers notify Mr Mackay that he was fearful or concerned that he may be further defamed at the meeting and to ask Mr Mackay to stop it. That included a letter dated 3 April 2001 from the plaintiff's solicitors to Mr Mackay's solicitors to which later reference is made. 60 The plaintiff made arrangements for a private investigator to attend the first meeting and secretly to record what occurred on tape. A transcription of the recording is the first matter complained of. The plaintiff first learnt of what the defendant had said about him at the meeting when he read that transcript. 61 His counsel asked the plaintiff what stood out in his memory from the time when he read it. The plaintiff said it was that "I was a thug and a bully and an environmental vandal and a whole lot of untruthful things and I could not fathom why any person that I'd only met a few times before and a parliamentarian could say those things about me". The plaintiff said he read the words "these really ugly individuals" as a reference to him. The plaintiff said he knew it was a reference to his personality. He said, "it's inaccurate". 62 In response to further questions the plaintiff went on to say that the words he read hurt him very much because he had done so much work to make the environment beautiful. The words "environmental vandalism" and "working illegally" hurt him immensely and it saddened him that a person of the defendant's status as an MLC would say such things when they were completely false. The defendant's use of words like thug and bully also hurt the plaintiff. He felt the defendant was a person of some status in the community who was using his position to turn the community against him. The plaintiff denied that he was a thug or a bully. 63 The plaintiff also denied that his purpose in bringing either the present proceedings, or the proceedings against Mr Mackay, was to stifle public protest. The plaintiff said, "Proper criticism of the way I conduct my development business is always welcome". The second matter complained of 64 Another meeting was held at the same venue on 19 May 2001. The plaintiff arranged secretly to record what took place at that meeting as well. The plaintiff was taken to the terms of a transcript of the recording. The plaintiff said, "I came to the conclusion that as [the defendant] not only said these things about me once but twice he would do anything in his power to destroy my business, my family and myself". The plaintiff said that he "was deeply saddened". He said he "felt extremely hurt that [the defendant] would say these things in a small community, which spread like wildfire, and especially in a community where I had my business and conducted my business". Post-publication incidents 65 The plaintiff said that from time to time after these two meetings, people had spoken to him in such a way as to indicate that they were aware of what the defendant had said about him. For example, a barrister who he had previously retained and who lived in Suffolk Park mentioned one of the benefit concerts to him and told the plaintiff that he had heard that derogatory things had been said about him, including that he was an environmental vandal, had ripped off the community and that he was a thug and a bully. Following that the plaintiff asked the barrister to act for him in another matter but the barrister declined to do so. The explanation he gave was, "I live in Suffolk Park". 66 There was an incident in June 2001. The plaintiff said that he had some very good friends in Lennox Head who were managers of a surf shop in Ballina. On one occasion Ian Evans' wife came into the shop and said, "How can you stand living next to the Bennettes? They are terrible, bad people". Mr Bennette felt that these comments were part of a campaign against him, which was no longer confined to Suffolk Park. The plaintiff did not deal in his evidence in chief with the possible connection between the comments made by Mrs Evans on this occasion and the fact that the plaintiff had had her husband arrested for trespass in the recent past. 67 Again, sometime in 2001, the plaintiff said that he was working on his land when a woman walked by with her Golden Retriever. When he patted the dog the woman asked him what he was doing. He identified himself. The woman said, "You're not a very nice man. You are the bad developer that destroys the environment." 68 On another occasion in 2002 the plaintiff was working on the land when a woman came out from a nearby house and said words to the effect, "You don't belong in Suffolk Park. Go back to America. You don't know what's in store for you". The plaintiff said that these words hurt him deeply. 69 On yet another occasion, a neighbour informed the plaintiff that his wife had attended at least one of the meetings and that she had told him that the defendant had said "some very, very nasty things" about the plaintiff. Following what the defendant had said at the meetings, the neighbour's wife would not speak to the plaintiff and he was no longer invited to their house. 70 There was also a vet who had previously looked after the plaintiff's pets. Before the matters complained of he was friendly and courteous. The plaintiff said, "After the meeting he didn't even give me a nod". 71 Similarly, a lawyer who had acted for the plaintiff in the early nineties ignored him after the meetings. The plaintiff was also told second-hand that people had been overheard talking about him, saying that he had destroyed the environment and that it was not good for Byron Bay. This was in mid-2002. The Robertson incidents - January 2004 72 Paul Robertson lived on the beachfront at Lennox Head. He was the plaintiff's neighbour. The plaintiff and his wife had a friendly relationship with Mr Robertson and his wife until September 1999 when the relationship soured. The plaintiff said that this occurred because Mr Robertson put his house up for auction and when the house failed to reach the reserve Mr Robertson apparently blamed the plaintiff because construction work on the plaintiff's house was being carried on at that time. 73 The plaintiff said that in October 1999 Mr Robertson stalked his wife and yelled and stared at her while she was hanging clothes out on the line. The following day Mr Robertson trespassed on the plaintiff's property, walking around on it, lying down in front of it and summoning rangers to complain that works being carried out by the plaintiff on his house were illegal. On another occasion the plaintiff said Mr Robertson drove his car out of his driveway across the plaintiff's lawn just missing the plaintiff. He then drove down the end of the block, came back and parked his car, blocking the plaintiff's driveway. When the plaintiff asked him to move his car, Mr Robertson said, "You people got chased out of Suffolk Park, you're going to get chased out of Lennox Head". 74 The plaintiff complained that Mr Robertson continued to say things like this about him. On three occasions over a period of three years the plaintiff applied for an apprehended violence order against Mr Robertson. The last of these related to an incident that took place on 5 January 2004. The plaintiff said that on the previous day, a Sunday, he was riding his bike outside of Lennox Head and Mr Robertson saw him. Mr Robertson was driving his car at the time and doubled back to drive past the plaintiff. He made a sign with his hand like a gun as if to shoot the plaintiff. Then, that afternoon, the plaintiff and his wife were out walking when Mr Robertson's dog attacked them. 75 On 5 January 2004 the plaintiff was again riding his bike when Mr Robertson, who was driving his car in the other direction, swerved as if to run the plaintiff over. The plaintiff had to get off his bike. Mr Robertson then parked his car on the verge out the front of the plaintiff's house. The plaintiff rode his bike back to the car. The plaintiff said, "When are you going to stop harassing us?" Mr Robertson replied, "When you move out of Lennox Head". Mr Robertson went on to say, "You're a criminal. You are nothing but a fucking goose. You and your wife don't belong here". 76 The plaintiff said that Mr Robertson was very agitated and he became afraid that Mr Robertson was going to assault him, so he put the wheel of his bicycle up against the driver's door. Mr Robertson kept demanding that he be permitted to get out of his car. Finally Mr Robertson crawled out on the other side of his car. The plaintiff said that Mr Robertson came around to his side of the car, hit him a couple of times on the back of the head and pulled his bicycle from underneath him. The plaintiff got up and said, "I have to defend myself" and they wrestled to the ground. The plaintiff grabbed Mr Robertson so that he could not strike him again. Mr Robertson then stuck his hand in the plaintiff's mouth as if to rip his jaw open. The plaintiff said that at no time did he strike Mr Robertson. The plaintiff said he was only trying to hold on to him so that he wouldn't strike him again, and to get his hand out of his mouth. The plaintiff said that Mr Robertson started yelling, "I'm dying, I'm dying". At that point, a witness from across the road came over and said, "Jerry, I saw the whole thing. My mother is calling the police". The plaintiff's wife then came over and said, "Get off him." 77 The police came. The plaintiff applied for an apprehended violence order against Mr Robertson as a result of this incident. No police prosecution was commenced against Mr Robertson. The plaintiff said that he suffered a permanent injury to his jaw and other injuries for which he obtained medical treatment from his local doctor. 78 The following day, 6 January 2004, the plaintiff heard Mr Robertson drive down the street and return to his premises about 30 seconds later. The plaintiff got up about 15 or 20 minutes after that and went outside to see his garbage strewn all over the street with rubbish everywhere. The plaintiff was unable to say that Mr Robertson was responsible for what he saw. 79 The plaintiff commenced proceedings against Mr Robertson for assault in the District Court of New South Wales for what occurred on 5 January 2004. The plaintiff said that his witness did not turn up at the hearing and so his case was dismissed. The plaintiff's witnesses 80 Lukas Van Zwieten is a senior research scientist with the New South Wales Department of Primary Industry, with a PhD in environmental chemistry. He is also the club captain of the Lennox Head/Alstonville Surf Lifesaving Club. He said he first came to know the plaintiff in 2000. He said that the plaintiff joined the club at about that time and came with a wealth of experience as a surf lifesaver and a good reputation. His reputation was that of a solid citizen and as an excellent lifesaver with medallions from overseas for heroic efforts. He developed a reputation as a philanthropist within the club. He donated a rescue boat, which was a crucial piece of equipment that had helped the club out immensely. 81 Mr Van Zwieten said that the club would not be receptive to having a bully within its membership. He agreed in cross examination, however, that he did not believe that the plaintiff was a thug or a bully but instead regarded him as a man of high reputation. He said he had lived in the area since 1995 and no one had ever said to him that the plaintiff was a thug or a bully. He said he knew of nothing to besmirch the plaintiff's reputation. 82 Robert Hanby is a senior development engineer with Tweed Shire Council. He commenced employment with the Byron Shire Council in late 1999 and resigned in December 2001. He gave evidence, principally, about the inspection of the plaintiff's land on 6 January 2000 and about the legality, or otherwise, of the stop work notice that issued a short time thereafter. 83 It seems fairly clear that the stop work order issued by the council was invalid. This is apparent if only from the fact that the Byron Shire Council agreed to settle the proceedings on terms that effectively conceded this very fact. It is therefore unnecessary to have regard to the evidence of Mr Hanby to find any further support for that conclusion. 84 Ross Tucker was a retired lieutenant colonel in the Australian Army who was first elected as a councillor of the Byron Shire in 1991. He has been a member of the council since that time and is currently the Deputy Mayor. He is the proprietor of the Saturday Star, a newspaper circulating in the Byron Bay area. Mr Tucker was the councillor who moved the resolution before the council in 1998 that the plaintiff and his family be congratulated for the Rivercare 2000 Gold Award. 85 Mr Tucker gave evidence about the plaintiff's reputation. He said generally he was a man who was very thorough in his work and his dealings. He described the plaintiff as a very fair man with a reputation amongst subcontractors who would work for him as being reasonable. He paid his workers promptly and gave clear and concise directions about the work he wanted done. More widely Mr Tucker said that the plaintiff had a reputation as a developer of land in Suffolk Park and that he was a good developer. His reputation concerning the environment was that of a hard worker, a reputation gained from planting thousands of trees in the Suffolk Park area. Mr Tucker said that the plaintiff had converted what was essentially a bad town drain that became a swamp in the wet season into a very pretty and effective waterway. 86 Mr Tucker gave evidence that in about June 2001 he had a conversation with the plaintiff in the course of which the plaintiff told him that the two meetings at Suffolk Park had not necessarily been for the purpose of raising funds for Mr Mackay's defence but rather to attack the plaintiff and his development. Mr Tucker said that the plaintiff told him he had been called a thug and a bully. The plaintiff said, "Jill and I had had enough and we are going to take legal action. We can't take any more. This is enough. This is the straw that broke the camel's back". Mr Tucker said that when the plaintiff said these words he was agitated, highly-strung and angry. 87 Mr Tucker was also asked questions in chief at about what he observed to occur at council meetings involving councillor Barham and the defendant. He said that on a number of occasions the defendant would come from the public gallery down to the council meeting area to the rear of councillor Barham's chair where he would squat down and speak with her and on occasions pass small notes. The plaintiff submitted that this behaviour amounted to evidence that the Greens in general, but certainly councillor Barham in particular, were very closely connected to the defendant. 88 Mr Tucker was asked in cross examination whether or not the plaintiff enjoyed "to this day a very high reputation" in the Byron Shire. Mr Tucker said, "Not universally, no". He went on to say, "there are people in the Byron Shire who are opposed to development, almost any development, and they have over that time been led to believe that Mr Bennette is one of those developers who aren't to be liked, trusted or enjoyed". 89 Mr Tucker then gave the following evidence: -

[49]

"Q. I think you are probably right. There must be many people who favour development in the Byron Shire? A. Yes, there are people who approve. Q. Among those people Mr Bennette has a high and excellent reputation? A. Among those that know him, some that know him, I would say that would be correct. Q. But not so good with the anti-developers. Does that fairly sum it up? A. I don't think it sums it up but it is not incorrect. But there are others who would be unknowing specifically of Mr Bennette and his development but might be guided by what they hear at public meetings, in the press and from reports of court actions and the like." 90 Janice Mangleson lives at Byron Bay and has been a councillor on the Byron Shire Council since 1999. She has lived in the Byron Shire since 1972. She read some articles about the plaintiff in the local newspapers where he had received quite a lot of adverse publicity. She recalled reading claims that he was a very ruthless developer, and that there seemed to be a lot of letters coming from individuals, especially around the Suffolk Park area, that cast doubts on the kind of development that he was doing. 91 Ms Mangleson was aware of the benefit concerts to support Mr Mackay in proceedings brought against him by the plaintiff. She went to neither. She recalled a friend telling her things about the plaintiff following the concerts that were not very complimentary. 92 Ms Mangleson said that she had known the plaintiff since 1999. She was asked what his reputation was in 2001 at about the time the benefit concerts took place. Ms Mangleson said that with a significant section of the community the plaintiff's reputation was very poor because of the publicity, but that there were other people who believed that the plaintiff was making quite a considerable contribution to the community and to the environment. 93 In cross examination Ms Mangleson agreed that the plaintiff seemed to have two reputations in the area. She agreed that with many upright citizens he had a good reputation but that with others, perhaps those who were opposed to his development, particularly in the Suffolk Park area, "they have a not so favourable view of his reputation". Ms Mangleson agreed that that had been the position "increasingly around that time of 1999, 2000, getting a lot worse". 94 Ms Mangleson also recalled that there were articles and letters in the paper about the plaintiff. She was asked, in effect, whether she had ever heard people say in those early years of 1999 and 2000 whether the plaintiff was a bully. She replied, "Yes, I - they were also in those articles, yes, those words". Ms Mangleson thought that the articles, which said that, came out in about 1999 or 2000, "but I think also prior to that". She was then asked: -

[54]

(v) That the circumstances of the publication of the matters complained of were such that the defendant was not likely to suffer harm: s 13. 96 The defendant also raised his intention to rely upon a number of matters in mitigation of damages including the circumstances in which the publications complained were made, the substantial truth of the imputations, the reputation of the plaintiff and the facts relevant to the contextual background in which the defamatory publications were made and the bringing and continuing of these proceedings. Substantial truth 97 The defendant contended that each of the imputations was substantially true. There was no dispute in the proceedings before me that this issue was to be determined having regard to the approach articulated by example in Sutherland v Stopes [1925] AC 47 at 79. 98 The plaintiff emphasised that, in having regard to this issue, each imputation must be dealt with separately. In particular, the plaintiff stressed that the imputation that the plaintiff is a thug, and the imputation that the plaintiff is a bully, are substantially different and cannot be dealt with collectively. The defendant made no application that one or other of the imputations be struck out upon the basis that they did not differ in substance, which the plaintiff contends is a tacit acknowledgement of their substantial difference. 99 Each word clearly has a different meaning. Both parties referred me to dictionary meanings. "Bully" is defined as a blustering, quarrelsome, overbearing person who browbeats smaller or weaker persons or who coerces or intimidates others by fear. "Thug" is defined as a brutal, vicious or murderous ruffian, robber or gangster. The plaintiff submitted that the defendant's evidence did not come close to establishing the truth of the imputation that the plaintiff was a thug, which was a more serious imputation than that the plaintiff was a bully. The plaintiff argued that the evidence did not establish that the plaintiff was a bully in any event. 100 The plaintiff submitted that the third imputation was wholly unsupported by any evidence establishing its truth. 101 The matters relied upon by the defendant in support of the defence of substantial truth of the imputations were many and varied. Indeed, by far the greatest amount of time during the hearing of the matter was devoted to this issue. It is necessary to deal with each of these matters in turn. However, for convenience, they can be grouped into a series of categories. Imputations (a) and (b); the plaintiff is a thug and a bully

[55]

The plaintiff's treatment of the council and its officers 102 Cross examination of the plaintiff commenced with a series of questions about him personally. He was asked whether he had ever threatened to bring litigation to overcome opposition, whether he made threats to browbeat people, whether he made complaints to wear people down, whether he threatened violence to deter opposition or made threats to stop criticism. He was asked also whether he made accusations to deter his opponents, whether he harassed people to get what he wanted and whether he was overbearing, a browbeater, or quarrelsome. The plaintiff denied each and every proposition put to him. 103 On 24 May 1989 the plaintiff and his wife placed an advertisement in the Byron Shire Echo headed "Tallow Creek Down The Drain". Among other things, the document said "Byron Shire Council engineers want to commit environmental vandalism by turning Tallow Creek into an urban drain". The plaintiff agreed that he criticised the council engineers by saying that they wanted to commit environmental vandalism and that that was his view. The plaintiff agreed that what he said, "would be a very defamatory and upsetting statement". 104 The plaintiff also agreed that his advertisement was designed to put pressure on Mr Alderson and council staff to approve his application, and that by giving all the telephone numbers of the members of the council he was hoping that readers of the advertisement would ring them and put pressure on them to do so. The plaintiff agreed that he was using it as a means to get his way. The defendant submitted that the placing of this advertisement was the conduct of a bully or someone who wanted to harass and bully council engineers. The defendant submitted that it was intimidation, harassment and browbeating. 105 The Special Investigation Report of August 1993 dealt in detail with an attempt by the plaintiff to have a Mr Peter Porritt "disqualified" from making decisions regarding the plaintiff's property on the grounds of what the plaintiff considered to be a "real likelihood of bias". The basis of the plaintiff's objection was that he and his wife had been in conflict with Mr Porritt over a period of several years during which time, as their neighbour on a property at Newrybar, he was involved in what the plaintiff regarded as an illegal development - a food processing factory in a shed near the boundary of their property and only 60 metres from their house. The conflict escalated to the point where the plaintiff made threats and Mr Porritt called in the police. 106 Mr Porritt was appointed in July 1991 by the council as an engineer to deal exclusively with town planning matters. His position required him to deal with the plaintiff on engineering aspects of his development applications. The council refused the plaintiff's demands to remove Mr Porritt and in October 1992 the plaintiff complained to the Ombudsman. The Special Investigation Report describes a "litany of complaints and verbal abuse of some of council's offices over several years by [the plaintiff and his wife]". 107 The defendant relies upon this material in two ways. First, the defendant says that if the conflict at the Newrybar property escalated to the point where Mr Porritt felt constrained to call in the police, it demonstrates that the plaintiff's threats to Mr Porritt must have been violent. Secondly, the material in the Special Investigation Report evidences at least verbal abuse of more than one council officer by the plaintiff over several years. In each case the defendant submits that these matters demonstrate that the plaintiff acted both as a thug and a bully. 108 The defendant then contended that a specific example of this conduct occurred in relation to a member of council staff whose first name was Simone. In support of his contention the defendant tendered a letter dated 26 March 2002 from the plaintiff to the council General Manager in which the plaintiff (relevantly) apologised in the following terms: -

[58]

I unreservedly apologise to Simone for any upset caused." 109 Another incident occurred following a failed attempt by the plaintiff to obtain information from the council pursuant to an FOI request. The request was made over-the-counter at the council on 11 June 1992 and was referred to the council's Administration Officer, Mr Rose. Mr Rose told the plaintiff that the council's practice at the time precluded access by the public to the type of information that he sought. The plaintiff then wrote to the council stating that he believed Mr Rose had breached the FOI Act and had committed an offence under s 317(a) of the Crimes Act. The plaintiff wrote that he intended to pursue the matter "to the full extent of the law". Having received no reply, the plaintiff then made a formal complaint to the Ombudsman. Mr Rose then wrote to the plaintiff advising him that his request had been reconsidered and that he could obtain access to the relevant material. 110 In cross examination it was put to the plaintiff that he had accused council officials of corruption. The plaintiff replied, "I accused them of conducting themselves in a matter that may be corrupt". The Special Investigation Report recorded that "Council staff eventually feel threatened and intimidated by such people [as the plaintiff]". When asked whether or not he agreed that his demands made council staff feel threatened and intimidated, the plaintiff replied, "Perhaps". 111 The plaintiff was then taken to another letter written by him on 22 March 1996 to the Mayor of the Byron Shire. By that letter, the plaintiff made a formal complaint of provocation and harassment against councillors Staples and Coman. The plaintiff said that the letter was provoked by councillor Staples' illegal entry upon the plaintiff's property to investigate tree removal at a time when the plaintiff had consent to remove trees. 112 The plaintiff's letter went on to allege that his treatment at the hands of these councillors was "a payback". It said, "the provocation and harassment is corrupt conduct under the relevant sections of the ICAC Act". The plaintiff said that his purpose in writing the letter was to notify the Mayor that in the plaintiff's view councillors Staples and Coman had acted outside their positions as councillors in failing to make the proper checks to find out in the first instance that he had approved consent. It was the plaintiff's view that there was a vendetta against him and his development. The plaintiff denied that the letter was an extraordinary letter for a person in his position to write to a council. 113 On 16 July 1999 the plaintiff wrote to the then Minister for Local Government making what was described as a "formal complaint of possible corruption". The letter included allegations such as that "certain Council staff [had] colluded to grossly abuse their positions of power and deliberately misuse Council resources to conspire against [the plaintiff's] development . . . in order to send us broke and force us off our land". It contained an allegation that certain councillors had "abused their positions to publicly cause defamation, offence and embarrassment" and had "failed to act bona fide, with honesty and integrity in compliance with lawful orders and policies". The letter even claimed that councillors had "used confidential information to gain advantage for their associates and to the detriment of other persons and ourselves". The plaintiff continued by saying that in his opinion it appeared "that certain Councillors and certain Staff [were] prepared [to] abuse and breach their positions of public trust to conspire against [the plaintiff] and [his] development". The letter even went so far as to suggest, "that the Councillors [were] also engaged in a form of ethnic cleansing using ratepayers funds". The plaintiff wrote a further, but shorter, letter to the Minister dated 21 July 1999. That letter should be read with the earlier letter. 114 The defendant submitted that the letter contained false allegations and amounted to bullying the council to bring about an investigation and to get rid of it. It was put to the plaintiff, but he denied, that the letter was part of his tactics to get back at those council staff and council employees and councillors who were not in favour of his development. Counsel for the defendant made some play of the fact that the plaintiff was unable in cross examination to recall any evidence that could have been used as support for those allegations. 115 It was put to the plaintiff that, "Just because the council doesn't approve of your development, does that make the Mayor and council officers' conduct dishonest?" The plaintiff replied, "In certain cases, yes". The plaintiff agreed with the proposition that a large faction - the Greens - within council hated him as a developer. The plaintiff stood by all his allegations in the letter, including the allegation referring to ethnic cleansing. The plaintiff said that he and his wife had been targeted in the Suffolk Park and Byron Bay areas, because he was an American developer and she was his wife. The plaintiff agreed that in writing the letter to the Minister he was hoping that action would be taken against the council and its staff, even including the calling of a public inquiry into its conduct. 116 The defendant submitted that the allegations contained in the letter were "horrendous". He submitted that the allegations were all made because of problems that the plaintiff had had with his development applications, which problems the plaintiff failed to reveal to the Minister in his letter. The defendant re-emphasised the fact that the plaintiff remained unable to recall the details of how councillors or staff had abused their positions, had failed to act bona fide or without honesty and integrity, or had misused confidential information to gain advantage for their associates. 117 Although not specifically relating to the conflict between the plaintiff and the council, the following incident fits conveniently into the present analysis. On Christmas Eve, 1999 the plaintiff rang the office of the National Parks and Wildlife Service. He did so in response to a fax received by him shortly before midday in which it was alleged that the NPWS had received a report suggesting that the plaintiff was destroying the habitat of threatened species on his land. When the plaintiff telephoned to discuss the matter he was put through to Michael Murphy, who the plaintiff described as "Mr Milledge's mate in the snail saga", who gave the plaintiff what he described as "a fairly bureaucratic answer" and told him that he would have to stop work. The plaintiff said that in those circumstances he "explained to him in the strongest terms what [he] felt about his letter and his actions". 118 The plaintiff made a note of the conversation in his diary for that day. It became evidence in the proceedings. Apparently describing his conversation with Mr Murphy, the plaintiff wrote, "I blew the shit out of him". Furthermore, the plaintiff ignored Mr Murphy's advice to stop work but instead continue to do so. 119 On 6 January 2000 an on-site meeting took place at the plaintiff's land. Much of what occurred on that day was recorded by videotape and the tape became an exhibit in the proceedings. The meeting was controversial in almost every imaginable way and was the catalyst for the issue of the ill-fated stop work order and aborted proceedings in the Land and Environment Court in March of the same year. 120 A transcript of the audio recording was produced but its accuracy is doubtful and it remains controversial for that reason. Two aspects of what occurred at that meeting stand out. The first is what can only be described as a confrontation between the plaintiff's wife and councillor Barham. Councillor Barham can be heard to refer to threats that had been made by the plaintiff, or on his behalf, and the plaintiff's wife can be heard, in a loud and persistent voice, to challenge councillor Barham to specify the threats to which she was referring. Councillor Barham refused to do so, which only appears to have excited the plaintiff's wife all the more. 121 The second incident involved the plaintiff. He can be seen and heard to ask Mr Milledge in a loud voice, "Where's the wetland! Where's the wetland!" It is reasonably apparent, and not seriously contested, that the plaintiffs outburst was fuelled by his frustrations that Mr Milledge's opinion that the plaintiff's land contained wetlands was, on the one hand, completely erroneous, and on the other hand likely to cause further delays to his development whether it was erroneous or not. The plaintiff denied that he said the words in a sneering voice. In my opinion, such a description of the way in which he spoke was not wholly inaccurate, although sarcastic, loud and aggressive is probably a more palatable description and one with which the plaintiff ultimately agreed. In either event, as other contemporary events have demonstrated, the plaintiff was not unjustifiably aggrieved with what was occurring at that time. Indeed, the plaintiff conceded that he threatened to call the police. As the plaintiff said, "We were exhibiting our frustration at the council's conduct against our development". 122 The defendant also relied upon material contained in an e-mail from Randall Evans to Peter Fryer and Chris Pratt dated 7 February 2000. The document records that the plaintiff returned Mr Evans' telephone call in a very angry mood stating "due to Council placing a stop work order on [the] property no council staff or any other government authority officer including NPWS [would be] permitted onto the . . . property without . . . consent". The document then goes on to record the following: -

[63]

In relation to David Milledge. There is evidence of Milledge illegally entering my property for unauthorised purposes. Milledge has been warned off my property as a person who presents a real threat to my property and myself. Should Milledge enter my enclosed property without a court order my agents or myself will use whatever force necessary to remove Milledge and have him arrested." 126 In the context of the e-mail and these letters, the plaintiff was cross examined about whether or not he said to a council officer that he (the plaintiff) would not be responsible for his safety if he came on to the premises. It should be noted immediately that nowhere in these documents written by the plaintiff did he make such a statement. However, responding to that question, the plaintiff said that his property was a construction site and in the event that a council officer entered the property and fell over or was hurt, he "could not be responsible and [he] was telling that that was so". The plaintiff denied that any statement by him, to the effect that he would not be responsible for their safety, was meant to convey that they would suffer, or would be likely to suffer, some sort of physical harm from the plaintiff or his security guards. The plaintiff said that his words "the safety of those persons cannot be guaranteed", in his letter of 8 February 2000, was a warning about danger, not a threat of danger. 127 A similar issue arose in relation to the plaintiff's dealings with, and attitude towards, Mr Milledge. It was not seriously disputed in these proceedings that the plaintiff engaged upon a campaign to have Mr Milledge removed from anything to do with his development. The plaintiff's solicitors wrote letters to Mr Milledge and to the Byron Shire Council accusing Mr Milledge of acting as an advocate and not as an independent expert. The letters spoke of a personal history of antagonism against the plaintiff and of the making of unsubstantiated complaints to the council. One letter suggested that there was "such a history between the parties that it is absolutely unreasonable for [the plaintiff] to expect, irrespective of what supervision is taking place, that Mr Milledge will deal reasonably with [the plaintiff's] application". Mr Milledge was ultimately removed. 128 However, well before this occurred, and only four days after the explosive site meeting on 6 January 2000, Mr Milledge wrote a letter to Ken Webber at Wilshire Webb Solicitors. In that letter he complained that the plaintiff had approached him when he was waiting for the meeting to commence and had stated in a most threatening manner, that if Mr Milledge ever set foot on the plaintiff's property the plaintiff "would not be able to guarantee that [he] would not suffer physical harm". 129 Mr Milledge gave evidence of this before me. He repeated the words that he had written in his letter of 10 January 2000. Mr Milledge said that when he heard these words, he felt threatened and felt that the plaintiff may assault him. He described the plaintiff's demeanour as very menacing and very threatening.

[67]

"It is our view that Mr Pratt has conducted himself in a petty, vexatious and frivolous manner that can only be regarded as provocative and retaliatory, and has seriously disrupted the construction certificate assessment process as agreed and confirmed by yourself." 136 Counsel for the defendant submitted that this highly critical letter was disingenuous and amounted to harassment of council staff. He also drew attention to a letter written to the General Manager by the plaintiff's solicitor on 26 September 2001 on the same topics. He submitted that this letter was designed to force the council to approve the plaintiff's development by the making of accusations, by pressure and intimidation. The plaintiff denied that either letter was intended as a bullying tactic. 137 When asked what he sought to achieve by the writing of these letters, the plaintiff said, "A proper assessment and approval of my construction certificate". There is no doubt that the plaintiff felt that Mr Milledge's role, as an expert retained by council to provide an objective and impartial opinion in relation to some aspects of the plaintiff's development, had shifted from the provision of such an opinion to the adoption of the role of an advocate for those opposing the plaintiff's plans. The plaintiff contended that even if the letters were insulting, they were a legitimate method for him to adopt in the circumstances at the time. 138 When analysing the plaintiff's dealings with the council, whether in writing, or in the form of his spoken words or actions, it is important constantly to bear in mind the particular context out of which, or within which, these matters arise. The plaintiff was a developer. The Byron Shire Council was staunchly, and at times irreconcilably, divided into pro and anti-development camps. On almost any view of it, the plaintiff's attempts to develop his land by subdivision had run into more than the usual number of obstacles. These obstacles were almost invariably associated with delay, sometimes significant delay. Court proceedings were required to resolve a deadlock on more than one occasion. Significant animosity and ill feeling developed between the plaintiff and the council. These feelings were not all one-sided. With varying degrees of intensity and emphasis, this situation continued from approximately 1989 until at least the date of the matters complained of and beyond. 139 Although coming somewhat early in this period, one particular section of the Special Investigation Report in 1993 appears accurately to outline the position, as it existed at that time. The following passage is an example: -

[71]

142 The defendant submits that, whether provoked by the clearly inappropriate conduct on the part of the council or not, the plaintiff has revealed himself, over a long period of years leading up to, and beyond, the date of the matters complained of, as both a thug and a bully. He relies upon all, or any one of, the examples described above. 143 On the contrary, the plaintiff argues that, while accepting the extravagance of his language and behaviour, he was doing nothing more or less than employing strategies and tactics, which, according to his own lights, were legitimate means of attaining his ends. On no account, according to the plaintiff, could it be demonstrated that anything said or done by the plaintiff in all of his dealings with the council amounted to the use of strength or power to coerce others by fear or to intimidate weaker persons. Presumably, even if the plaintiff were a blustering and quarrelsome person, or even occasionally overbearing, he did not browbeat those who were smaller or weaker. 144 More particularly, the plaintiff argued that on no account could it be said that anything done or said by him to the council or its staff demonstrated him to be a brutal or vicious ruffian, robber or gangster. Whatever might be said about the plaintiff being a bully - and the plaintiff made no admission of any such thing - it was submitted that nothing in the foregoing analysis came vaguely close to establishing the truth of an imputation that the plaintiff is a thug. 145 One can think of many adjectives to describe the plaintiff. On the positive side he was single-minded, determined, energetic and enthusiastic, particularly about his land and its development. Less flatteringly, the plaintiff could also be described as ruthless, officious, selfish, intimidating and - to use the vernacular - not someone to be messed with. One of the most difficult things to understand about the plaintiff, however, is whether the council and its staff treated him so badly because of his less flattering characteristics, or whether he was so offensive, and made so many threats and complaints about them, because he was delayed or obstructed at almost every turn. The answer, in my opinion, probably lies somewhere in between. For example, the Special Investigation Report from 1993 did not deal only with the plaintiff. On the other hand, that section of the Report that dealt with the plaintiff was particularly voluminous. 146 For my part, the characteristic that can be said most often and most accurately to describe the plaintiff is his apparently unyielding propensity to complain. The plaintiff is almost unique in my experience as someone who would so often resort, or threaten to resort, to the criminal law for the issue of apprehended violence orders. He would threaten to sue for trespass - even including the initiation of charges of criminal trespass - at almost any opportunity, and on occasion carried out his threats. He wrote letters complaining to the Minister for Local Government. He wrote letters complaining to the ICAC. He wrote to the President of the Legislative Council complaining about what the defendant said about him during a debate in Parliament. He wrote letters to local newspapers complaining about all manner of things. He constantly wrote to the Byron Shire Council, almost invariably in a complaining tone. He made allegations of corruption. He complained to the Ombudsman. He complained that councillors were engaged in a vendetta against him and his development. He complained that the Mayor and council officers were dishonest. He complained that Mr Porritt and Mr Milledge were, in effect, biased against him and his development. He complained about Mr Pratt. 147 I do not, however, consider that even the most outlandish, aggressive, threatening, selfish, offensive or just simply unpleasant behaviour, which appears to be the plaintiff's stock in trade, and to which he has continuously resorted in his dealings with the council and its staff, combine to demonstrate that he is a thug or a bully. Incidents involving physical violence 148 Section 55(2) of the Defamation Act 1974 provides a that where there is a question of the truth of an imputation concerning any person, and the commission by that person of a criminal offence is relevant to that question, proof of the conviction by a court of that person for that offence is conclusive evidence that he committed the offence. In the present case, it was not in dispute that the plaintiff was convicted of assaulting Mr Bradbury in the way described earlier in these reasons. 149 The defendant submitted that it was a bold plaintiff who would sue in defamation in respect of imputations that he was a thug or a bully when a conviction for assault stood against him. The plaintiff agreed in his evidence in chief that he called Mr Bradbury "a mother fucker". He agreed in cross examination that he ripped off Mr Bradbury's microphone and tried to smash his camera on the table. Indeed, the plaintiff agreed that he said to Mr Bradbury that he would "jam the camera up [his] arse". The evidence does not reveal whether or not the plaintiff made this threat before, or after, the camera was damaged. 150 The defendant sought in argument to emphasise what he described as "the chilling" judgment of Magistrate Linden who heard the case at first instance. However, the matter was finally disposed of by way of an appeal to the District Court, as earlier discussed. I accept, in these circumstances, the plaintiff's submissions that the only relevant remarks, and the only remarks to which I can have regard, are those of Justice Blanch. The plaintiff tendered, and I have also had regard to, the transcript of those proceedings, including evidence given by the plaintiff. Part of that transcript contains, as if it were necessary, a public acknowledgement by the plaintiff that what he did was wrong. 151 The plaintiff described in his evidence in chief an incident that occurred on 20 January 2000. On that occasion the plaintiff was on his land and he heard someone swearing and calling him "a Yank" and saying, "go back to America". He recognised the person as Michael Kennedy. Mr Kennedy then said, "I'm going to come over and belt the shit out of you". The plaintiff said he replied, "No, you're not, I am on private property". Mr Kennedy ignored the plaintiff and came on to the plaintiff's land. The plaintiff warned him to leave immediately, threatening to call the police, but Mr Kennedy punched him in the head. In response to this, the plaintiff grabbed Mr Kennedy and threw him to the ground and sat on him until such time as the police arrived. Mr Kennedy was charged with assault and pleaded guilty. 152 In cross examination the plaintiff agreed that he sat on Mr Kennedy for approximately 30 minutes in the blistering heat. Mr Kennedy was face down on the ground. There were at least two witnesses to this incident. 153 Lisa Finkenauer was at the time visiting friends in the house next door. She was able to see from the kitchen window that there was a fight taking place. She said it sounded really urgent so she went straight out and stood at the fence. The plaintiff and Mr Kennedy were somewhere between five and eight metres away from her. Ms Finkenauer said that she was calling out to the men to stop. "It was actually quite violent". She said the plaintiff was yelling that Mr Kennedy was a trespasser and he was making a citizen's arrest and that the police should be called. Mr Kennedy was pinned down in quite an uncomfortable looking position and he was struggling to get out and was calling to be let up. 154 Ms Finkenauer then gave the following evidence: -

[74]

"I yelled out for help several times, I tried to get his hands away from me. We went backwards around the car, across the public footpath towards my house. I fell over. He landed - I landed on my back, he sat on my chest and then he started - I got the hands out of my eyes, his fingers out of my eyes, then he started choking me by the throat." 161 Philip Vickers was a witness to this incident and gave evidence about it. He said that the plaintiff was yelling at Mr Robertson "but he also was sort of either pushing him or he had his hands around his throat or on his chest". He said the plaintiff was "holding him down and yelling at him". Mr Vickers recalled Mr Robertson crying out for help saying, "Someone please help me, please help me". He said he saw the plaintiff sitting on Mr Robertson for three or four minutes and Mr Robertson appeared to be helpless and defenceless. 162 The plaintiff sued Mr Robertson for assault but lost. 163 Over the years Mr Robertson and the plaintiff have had disputes about house numbers in the street, a fence erected by the plaintiff which Mr Robertson said blocked his view of the beach, mutual verbal abuse, including allegedly racial jibes at Mr Robertson's wife, reports to the council about Mr Robertson's dog being on the reef illegally, as well as the incidents earlier described. Mr Robertson sought to have issued an apprehended violence order against the plaintiff. The plaintiff did the same, apparently on three occasions. Mr Robertson said that although he never kept a record of it, he estimated that the plaintiff had called the police to his house on at least 20 occasions. The plaintiff said that Mr Robertson had his dog attack the plaintiff, which Mr Robertson denied. Mr Robertson denied that he was ever violent to the plaintiff. This is not an exhaustive list. 164 The defendant relies upon these incidents, as evidence of the truth of the imputations that the plaintiff was both a thug and a bully. There is no doubt that each of the three main incidents involved violence in some form by the plaintiff. The Bradbury incident involved the plaintiff striking Mr Bradbury, verbally abusing him and damaging his property. The Kennedy incident involved the plaintiff sitting on Mr Kennedy for approximately 30 minutes in what appeared to be extreme and uncomfortable circumstances. The main Robertson incident involved similar behaviour, the plaintiff sitting on Mr Robertson and causing some form of injury to his face. The Kennedy incident was not initiated by the plaintiff, who was forced to defend himself. Some evidence suggests that the plaintiff used more force to do so than was warranted. The Robertson incident, on the contrary, does appear to have been initiated by the plaintiff although the plaintiff emphasises that he did so as a result of provocation by Mr Robertson. 165 Each of these incidents is particularly unfortunate. Dealing only with the plaintiff, at one level they can be viewed as nothing more than childish behaviour on the part of a grown man who should have known better. At another level, each incident demonstrates a propensity on the part of the plaintiff to resort to violence, or to react in a violent way when somewhat less, albeit permissible, violence may have been called for, in order to achieve his own particular purpose. The Kennedy incident is in many respects the most disturbing of the three, given its duration, and the descriptions given by Ms Finkenauer and Ms Isgrove of what occurred during that time. The remarks of Justice Blanch adequately describe the Bradbury incident and require no elaboration. The Robertson incident appears to be the final and unfortunate result of constant niggling by both men who were once friends and should have known better. 166 In my opinion, these incidents do not bespeak the truth of the imputations that the plaintiff is a thug or a bully. They certainly demonstrate that the plaintiff was impulsive, impatient, content to resort to violence when it suited him and arguably somewhat immature in the way that he reacted to particular situations. He had a short fuse. Unfortunately, he is not alone within the community as a person with these attributes. But violence has many shades and the plaintiff's propensity to violence does not, in my opinion, approach brutality or viciousness. His tendency to violence, if that is what he has, is not demonstrably utilised to coerce or intimidate the small or weak. The plaintiff's propensity for violence would appear to be, in my opinion, an unfortunate flaw in his character or personality. I do not think however, taking these incidents into account, that it can be said that he is truly a thug or bully as properly understood. Other miscellaneous incidents 167 The plaintiff was involved in a series of incidents with Ian Evans. Mr Evans and his wife had been opponents of the plaintiff's development. The plaintiff said that they constantly walked around the cul-de-sac in Sallywattle Drive, Suffolk Park where the entrance to the plaintiff's development was located. 168 Sometime in 1992, the plaintiff had a caravan on his land as a site office. Mr Evans and the plaintiff had a conversation in the vicinity of the van. Mr Evans' recollection of the conversation was that the plaintiff said, in effect, that if people got in the way of the plaintiff so as to disrupt his development plans, "he would bring bikies down from Queensland to break kneecaps". The plaintiff denied saying this, although he agreed in cross examination that if anyone were to make such statements, they would be the statements of a bully or a thug. The plaintiff said he would regard such statements as threatening. According to the plaintiff, he told Mr Evans that he had an approved construction site and that he wanted to get on with the work as quickly as possible. He told Mr Evans that he would appreciate it if he and his family did not enter the site, as it would be a danger to them. The plaintiff said he made no mention of physical violence. 169 On another occasion, according to Mr Evans, the plaintiff started up noisy machinery on his property one year on Boxing Day or the day after. The noise from the machinery caused vibration in Mr Evans' house, which was nearby, and it so disrupted the tenants, who had leased it for the holiday period, that they moved out. Mr Evans said that he lost the holiday rental of the house as a result. When Mr Evans asked the plaintiff if he could park the machinery somewhere else, he refused. 170 On yet another occasion, Mr Evans said that, at a stage when most of the plaintiff's land had been filled and levelled and had pegs on it, he (and presumably his wife) were walking over the land "just looking to see where, you know, where the blocks of land were and where the creek was". Mr Evans said that the plaintiff came over to them and told them that they had to get off his land "and that if he saw [them] on his land again, he would shoot [them]". The plaintiff denied saying these words. Mrs Evans was not called to give evidence in the proceedings. If someone accompanied Mr Evans other than his wife on this occasion, that person was not called to give evidence. 171 Finally, on 18 January 2000, according to the plaintiff, Mr Evans walked about 20 metres onto the plaintiff's land past a prominent sign warning trespassers to keep out or they would be prosecuted. The plaintiff was not present but security guards employed by him were. Mr Evans did no damage to the property but the plaintiff called the police and he was prosecuted for trespass. The plaintiff gave evidence in the proceedings. Mr Evans was acquitted. As earlier noted, the incident was captured on videotape. That was the last contact Mr Evans had with the plaintiff. The defendant submitted that the calling of the police by the plaintiff and having Mr Evans prosecuted were the acts of a bully. 172 Harold Simmons was a retired public servant who lived in Suffolk Park. His home was near the plaintiff's land. For a time he had been a member of the Suffolk Park Progress Association. On 3 July 2001 he was walking along Sallywattle Drive with his dog "Bogart" when he passed some people including the plaintiff. Mr Simmons said that he heard the plaintiff say, "Here's that fucking arsehole here to annoy me again". The plaintiff again told Mr Simmons to " fuck off" and clenched his fists aggressively. 173 The plaintiff did not remember saying this but agreed it would be "a wrong thing to say". According to the plaintiff, what he actually said on this occasion was, "There's that old fart from the Suffolk Park Progress Association who has constantly opposed my development". (Mr Simmons had in fact written two letters, dated 10 January and 21 February 2000, to the Byron Shire Council setting out in some detail a series of objections which he had to the plaintiff's development application 99/0943). When asked why, of the approximately 500 people in the Suffolk Park area who opposed his development, he had singled out Mr Simmons for this description, the plaintiff replied, "Well, because he looked like an old fart". The plaintiff denied that those words were "a really aggressive and bullying thing to say", although he agreed that had he clenched his fists in the way described by Mr Simmons in the witness box, that would have been threatening. 174 Terrence Digwood lived in Byron Bay from 1992 until 2003. He was at one time closely associated with the Suffolk Park Ewingsdale Small Towns and Villages Development Strategy Committee. At one time he was also a member of the Suffolk Park Progress Association and would appear to have had an interest in local environmental issues. Mr Digwood gave evidence that he frequently walked around the whole of the Suffolk Park area, including the plaintiff's land and Tallow Creek. 175 Having observed what he thought may be noxious weeds on the plaintiff's land, Mr Digwood arranged for someone from the Department of Land and Water Conservation to visit it with him. He was told by an officer from the Department that an oily slick coming out of the soil was an acid sulphate leak. Shortly thereafter Mr Digwood was travelling on a bus with the plaintiff and he said to the plaintiff, "I saw an acid sulphate leak coming out of [your] land last week when I was with a government officer down there at the creek". Mr Digwood said that at this point, the plaintiff jumped up and said, "You'd better watch it, I will get my lawyers on to you". Mr Digwood said that he felt quite intimidated and didn't press the issue about the acid sulphate any further. The plaintiff said in evidence that he was concerned that he may have been charged with a criminal offence and that Mr Digwood was making a serious allegation about him. The plaintiff said he simply asked Mr Digwood to substantiate it or he would have a letter sent to him from his lawyers asking him to do so. 176 Claire Daily was a carpenter and lived in Suffolk Park. At one time she was building a carport at premises in Azolla Place when she observed an incident involving the plaintiff. During the course of her work she was waiting for a truck to deliver timber to the site. When the truck arrived it backed over the gutter across the verge. At this point the plaintiff came running, shouting at the top of his voice and shaking his fists and saying to the truck driver, "Get your fucking truck of my fucking land you fucking bastard". Ms Daily said she was "totally intimidated by his extremely aggressive manner". 177 The plaintiff said he recalled the incident. He said he had just seeded the vacant block next to the house where Ms Daily had been working. A Lismore plywood truck came up to deliver materials and he backed over the verge, sinking his wheels into ground that the plaintiff had just worked on. The plaintiff said, "I just asked him to get his truck of my land and he told me to get effed". The plaintiff agreed that he was angry and upset but not aggressive. He agrees he may have said, "fuck off my land" on a number of occasions. 178 Frances Eliott is a scientific officer working in the field of molecular biology at Southern Cross University. In 1992 she purchased land from the plaintiff. Settlement of the sale occurred in 1993. The land that she purchased became subject to a covenant created by the plaintiff requiring her to complete construction of any house on the land within 12 months of the date of settlement. She recalled an incident that occurred involving the plaintiff in late 1994. 179 Ms Eliott said that the plaintiff came up to her and confronted her about not having completed her house within 12 months. She said the plaintiff was "extremely angry and verbally abusive". She said he "yelled and screamed at me". Ms Elliott said she could not recall word for word what the plaintiff said but did recall that "he was very loud, very aggressive, very angry, very intimidating". She subsequently received a letter dated 27 January 1995 from the plaintiff which included the following paragraphs: -

[76]

The costs of a Supreme Court action against you will be far greater than compliance to the covenants and my request." 180 The plaintiff conceded in cross examination that he wanted to enforce the council rules, or the covenant, as he saw it. The plaintiff said, "I certainly did. It affected my business and the demeanour and the look of the subdivision. I was required to follow the rules. Why shouldn't they?" Ms Eliott said that when she received the plaintiff's letter, she felt like he was intimidating her and she sought legal advice. 181 On another occasion, in 1999 or 2000, Ms Eliott observed the plaintiff speaking to a builder who was building a house next door to hers. She recalled the plaintiff said that if people get in his way, he will make sure they know what it is like to live the rest of their lives without kneecaps. She said her husband also heard these words said, but he was not called to give evidence in the proceedings. 182 On yet another occasion, Ms Eliott said that she heard the plaintiff describe her as "that feral bitch". She said the plaintiff had said those words to her face previously. She said the plaintiff told her that she should go back to the hills where she belonged "and that people like [her] don't belong in Suffolk Park". Ms Eliott said this occurred in the middle of a very angry verbal abuse from the plaintiff. She said the plaintiff was "extremely angry, very red, really abusive" and she was "very shocked and intimidated again". Ms Eliott said, "I thought he had lost his mind. He was so angry. I thought he was potentially dangerous". 183 The plaintiff's own diary confirms his use of the terminology. In an entry from 6 January 2000 the plaintiff wrote, "Pile standing by Milledge's car parked in front of the feral's house". The plaintiff agreed that this was a reference to Ms Eliott. The plaintiff said that her house was painted in colours that were not appropriate, presumably having regard to the neighbourhood he was hopeful of establishing. The plaintiff said, "I thought the colours and the way the house was painted . . . was detracting from the development and I made a complaint to council". The council took no action. A photograph of Ms Eliott's house was tendered in evidence. I am unsurprised that the council was untroubled. 184 Ms Eliott was not cross examined to suggest that these incidents did not occur. 185 The plaintiff gave evidence in apprehended violence order proceedings taken by him against Mr Cohen. That was on 21 September 2000. In the course of that evidence the plaintiff was asked the following question: -

[77]

"Q. You have yourself abused local citizens who opposed your form of development, haven't you? A. I have." 186 When asked questions about this in cross examination the plaintiff said that he had only abused other people who had abused him. He said, "the only time that I abused anybody was when I got abused myself". 187 Paul Davies is a scriptwriter and has been living in Suffolk Park since 1990. At Easter, 2002 Harold Simmons came across to his house from the house next-door and told him that there was a disturbance happening on the footpath nearby. Mr Davies went out and saw that there was a group of schoolchildren waiting for the bus with their parents. They were in a state of some agitation because the footpath seemed to have been closed off in some way. The plaintiff was there at the time. 188 Mr Davies approached the plaintiff who told him that the footpath was being dug up for electrical cable. Mr Davies asked the plaintiff whether or not he had authorisation to close the footpath. Mr Davies said that the plaintiff exploded and came at him in a very aggressive manner, shouting at the top of his voice, saying "fuck off". Mr Davies said that the plaintiff then came towards him in a menacing way a number of times, gesticulating with one hand and filming him with a camera held in the other. Mr Davies said that he didn't want to become involved in a physical confrontation with the plaintiff, so he backed off, but the plaintiff kept coming towards him with the camera still running. The plaintiff called Mr Davies a liar. He was extremely angry and physically threatening. The plaintiff invited Mr Davies to write a letter to The Echo. Mr Davies considered that to be a challenge he was unwilling to accept. 189 This series of events provide a cameo of the plaintiff in his dealings with what were in fact his neighbours. They present a picture of the plaintiff that is not inconsistent with that which emerges from a review of his dealings with the council and its staff. They again show the plaintiff to be aggressive, impatient, offensive and intimidating. However, as with the other incidents upon which the defendant relies, they do not, in my opinion, either alone or in combination, demonstrate the truth of the imputations that the plaintiff is a thug or a bully.

[92]

Should your client continue to so publish and hold the meeting then we put you on notice that we shall be using this letter and the publications in support of an application for aggravated damages." 194 Mr Mackay gave evidence that prior to the receipt of that letter it had been his intention to speak at the concert. He said that he had intended to inform the community "of what were the circumstances of the case". However, any intention he had to do so had to be revised after he received the letter. 195 Mr Mackay said that, by the time the matter finally settled, he felt that he had no alternative but to agree to every aspect of it. He felt he had no choice. He said that because of the terms of clause 5, he was no longer able to comment about Mr Bennette's development. He said that, "it seemed that even though the $20,000 didn't come close to covering his costs he had got what he wanted". In other words, in the defendant's submission, the plaintiff had managed to shut him up. 196 The plaintiff explained his solicitor's letter. He said that he believed that "quite simply the holding of the meeting and the things that were to take place would be defamation in itself". He acknowledged that the letter did not in terms say anything about that. The plaintiff said, "in my view it implied that". 197 The plaintiff denied that his real motive in trying to stop the meeting was to prevent Mr Mackay from raising funds for his defence. He agreed that if the letter had been written to prevent Mr Mackay from raising money for his defence, it would have been written for a wrong purpose. The plaintiff denied that the letter was an attempt by him and his solicitors to stifle public protest or public meetings or protests about him and his developments. 198 Part of the imputation now being considered is that the plaintiff "manipulated the system". It is important to understand, if it is capable of being understood, precisely what "the system" is. 199 First it was submitted on behalf of the defendant that in the present case "the system" was manipulated by the plaintiff when he, knowing full well that defamatory statements about him would be made, or would be likely to be made at the meeting, he sent investigators in "to manipulate the system to obtain recordings of anything defamatory with the intention of taking action". The defendant submitted that it was wrong for the plaintiff to do this secretly, knowing, or presumably anticipating, that he is going to have defamatory statements made about him at a gathering where everyone had paid a fee on admission to provide funds to help Mr Mackay defend proceedings brought against him by the plaintiff, and knowing that everyone at the meeting would be critical of the plaintiff. The defendant submitted that this is manipulating the system and that it was completely wrong for the plaintiff to do it. 200 Secondly, the defendant submitted that the bringing and maintaining of defamation proceedings against Mr Mackay was a manipulation of the system. In this respect the defendant points particularly to clause 5 of the terms of settlement of the proceedings. The defendant submits that the imputation includes the tort of abuse of process but is not restricted to it. In other words, accepting that the tort of abuse of process is the use of legal process in its proper form in order to accomplish a purpose other than that for which it was designed and thereby cause damage, the substantial truth of the imputation in the present case can be established even if proof of the tort can not. 201 I was referred to Hanrahan v Ainsworth (1990) 22 NSWLR 73. In an action in tort for damages for abuse of legal process, the central issue for determination is whether the proceedings have been brought and continued for an improper or ulterior purpose, that is, a purpose not within the scope of the process: per Kirby P and Mahoney JA. The institution of the proceedings with an improper or ulterior motive is not enough. Proof of the misuse or attempted misuse of the process is necessary: per Clarke JA. His Honour put the matter thus at 120: -

[93]

"The tort of abuse of process is concerned with the use to which proceedings are put. The intentions or motives of the person who sets the proceedings in motion are relevant only if put into effect. It is the use of the process to effect an improper purpose that is the gist of the action." 202 The precise meaning of the subject imputation is deceptively vague. It has not, perhaps understandably, been framed in terms of the commission of a particular tort. However, the case relating to it would appear to have been conducted before me upon the basis that the imputation conveyed the meaning that the plaintiff was a person who would use, in effect, whatever means were at his disposal to stifle public protest, including, but not limited to, the commencement and continuation of legal proceedings for defamation. The imputation extended as well to the writing of letters threatening certain consequences both before and after proceedings were commenced, and to the bargaining for overly restrictive terms in settlement of those proceedings. 203 The key to the true meaning of the imputation, and resolution of the question of whether or not it is substantially true, is, in my opinion, to be found in the juxtaposition of the words "manipulation" and "stifle". It should be remembered that one of the findings of the jury was that the imputation was defamatory. It follows that the jury must have considered that the plaintiff was doing something that was otherwise permissible but for a wrongful or improper purpose, or doing it in a wrongful or improper way. Some other cognate pejorative adjectives could also be used in substitution. Using legal process for a proper purpose is not wrongful. Nor, subject to some limitations that are not presently relevant, is regular or constant use of or resort to legal process wrongful. The plaintiff has clearly shown himself to be a person who regularly resorted to the law when it suited him. 204 Similarly, preventing criticism of oneself, whether in the form of public protest or howsoever otherwise, is not of itself wrongful or improper. Indeed, a letter threatening to sue for defamation before the defamation occurs, in order to prevent it, may be entirely permissible, and is a step regularly taken in mitigation of loss. 205 The sting of the present imputation seems to me to be that the plaintiff deviously used the system to achieve a result of shutting down, suppressing, crushing or stopping public protest but in a way that he could not have achieved by using the system properly. The thrust of the imputation appears to be that the plaintiff was a person who did this wrongfully or improperly, even if not strictly unlawfully. 206 In my opinion the defendant has not established that this imputation is substantially true. The defamation proceedings against Mr Mackay were settled on terms favourable to the plaintiff. Those terms undoubtedly included a term that went beyond what was necessary or sufficient simply to protect the plaintiff from further defamation by Mr Mackay. However, Mr Mackay was represented by competent legal counsel who negotiated the terms of settlement on his behalf, and who presumably advised him about the wisdom of agreeing to them. The proceedings did not appear to me at least to be vexatious or frivolous and the plaintiff's prospects of success appeared to be reasonable. The monetary terms of the settlement were undoubtedly arrived at upon the basis of commercial considerations involving compromises on both sides that the evidence before me did not expose to scrutiny. 207 The apology required by the plaintiff and tendered by Mr Mackay falls into the same category. Its curious republication in the plaintiff's solicitor's letter to the General Manager of the Byron Shire on 24 February 2004 does not advance the defendant's submission that it demonstrates the plaintiff to be manipulating the system in the way alleged. Indeed, the plaintiff was at liberty to utilise the apology for his own purposes as and when he chose. Its use, as a reminder to those who might consider defaming the plaintiff in the future that they do so at their peril, does not, to my mind, improperly extend the use to which the apology could legitimately be put. It does not assist the defendant to establish the substantial truth of the imputation. 208 One of the bases upon which the defendant asserted that the present imputation was substantially true was that, if the plaintiff had genuinely wanted vindication and damages for injured reputation and a public apology, he would have brought his claim against the Byron Shire Echo and not solely against Mr Mackay. The plaintiff submitted that this was "an absurd proposition". The plaintiff submitted that, if the plaintiff had had the purpose that the defendant asserted he had, it would have been far more effective to bring a claim against the Byron Shire Echo given the number of articles and letters written and published about the plaintiff in that paper. Shutting down the Byron Shire Echo, or bringing proceedings against its publisher to stifle coverage of the plaintiff's development activities would, according to this submission, have been a much better way of carrying such a purpose into effect. The plaintiff submitted that not suing the Byron Shire Echo was consistent with the plaintiff's own evidence that he had no difficulty with legitimate public criticism of his development activities. 209 The letter written by Mr Mackay's solicitors on 3 April 2001 did not, in fact, have the effect of stifling public protest in the sense that it led to the cancellation of the second benefit concert, even if Mr Mackay felt so intimidated that he chose to say nothing himself. The demand that Mr Mackay "not hold the meeting/benefit" was completely ignored. 210 Nor, in my opinion, was the use of a private investigator secretly to record what occurred at the meeting indicative of some form of wrongful conduct or manipulation of the system. The position may have been otherwise if the plaintiff, or his identified representative, had turned up at the meeting seeking to interrupt it, or to threaten or intimidate those proposing to attend it. Although there may conceivably be cases where the means, by which a plaintiff comes to be possessed of the detail of what a defendant has published, assume importance, the present is not such a case. I consider it to be a neutral factor.

[103]

"The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be 'honest', that is, a positive belief that the conclusions they have reached are true. The law demands no more." 218 It is the occasion upon which defamatory material is published which is privileged, not the material itself. Whether an occasion is privileged or not is a question of law: see Pullman v Hill and Co Ltd [1891] 1 QB 524 at 529. The test as to whether an occasion is privileged is objective and the onus of proof rests upon the defendant. In determining the question of whether an occasion is privileged the court must look at the circumstances surrounding publication of the particular communication. "A privileged occasion is not merely a matter of time and place; the nature of the communication must be considered": Cole v Operative Plasterers' Federation (1927) 28 SR (NSW) 62 at 66. 219 The plaintiff submitted that in deciding whether material was published on an occasion of privilege, the court must focus on the defamatory imputations found by the jury citing Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 228. In Bashford v Information Australia (Newsletter) Pty Limited (2004) 218 CLR 366 at 415, Gummow J said:-

[104]

"The defence of qualified privilege is a plea in confession and, as such, is predicated upon the existence of a defamatory imputation to which the privilege attaches. To speak of qualified privilege attaching to a non-defamatory statement is to ignore this fundamental characteristic." 220 The plaintiff further submitted that a privileged occasion may be abused by the publication of matter that is "beyond what was germane and reasonably appropriate to the occasion" because "a man ought not to be protected if he publishes what is in fact untrue of someone else when there is no occasion for his doing so, or when there is no occasion for his publishing it to the persons to whom he in fact publishes it": see Adam v Ward (op cit) at 321. 221 In the plaintiff's submission, when one has regard to the nature and content of the matters complained of and to the imputations found by the jury, it is apparent that no privilege can attach to the occasion of their publication. The plaintiff submitted that the matters complained of were vicious, rambling attacks on the plaintiff. The language used amounted to abuse and the rehashing of allegations without any mention of the basis upon which they were made. The plaintiff submitted that the language used and the tone in which it was expressed was vituperative in the extreme. The plaintiff submitted that the matters complained of were not published on an occasion of privilege. 222 What then were the circumstances surrounding publication of the matters complained of? Both occasions at the Suffolk Park Hall, on 7 April 2001 and on 19 May 2001, have been described as a concert, a gathering and a meeting. In each case, however, it is uncontroversial that the intended purpose of the events was to raise money to assist Mr Mackay in his defence of proceedings commenced against him by the plaintiff seeking damages for defamation. 223 The precise number and make up of those attending remains in some doubt. It would seem to be a fair inference that those who did attend were on the whole sympathetic to Mr Mackay's plight. So much appears to emerge from listening to the audiotapes of what occurred on each occasion, particularly some interjections apparently coming from the body of the meeting during the defendant's speeches, if not from the wording of the advertising material for the meetings themselves. In this last respect the words used in flyers were identical, extending an invitation to a "Community Benefit Concert . . . to support local resident Bill Mackay's defence of defamation action undertaken by developer Jerry Bennette". Publicity given to the first meeting in an article published in the Byron Shire Echo headed "Benefit for Bill Mackay" quoted Mr Mackay as saying "Defamation is a lengthy, complex and expensive affair but I have been encouraged by the support and generous offers of assistance from many residents across the whole Shire". 224 One of the plaintiff's submissions drew directly upon the uncertainty attending the question of precisely who was present at each of the meetings. The plaintiff submitted that one could not assume that everyone present at the meeting was there to support Mr Mackay. The plaintiff submitted that the evidence did not establish who was there and that, accordingly, the relevant interest of the audience could not be established. The plaintiff argued that the defence of common law qualified privilege only applied to a relevantly limited publication - that is to say, a publication to an audience with the essential reciprocal interest referred to by Lord Atkinson in Adam v Ward (supra) and that the evidence did not establish that the matters complained of were published in an appropriately limited way. 225 The plaintiff submitted that it was a fundamental requirement of reciprocity of duty and interest that publication to a person who does not share in this reciprocity is not generally privileged and that the defendant had engaged in what was, in effect, an excessive publication. It was the defendant's contention, however, that if strict reciprocity were essential, society and its business could not be conducted, as others without a direct interest in the communication are regularly employed in helping to make the communication and it would be impossible to communicate if every defamatory communication had to be confined to those with a direct duty or interest in relation to its subject matter: see Gatley (supra) at par 14.67. The defendant argued that it was sufficient if a significant proportion of the audience was in the same interest: see Hunt v Great Northern Railway Co [1891] 2 QB 189. 226 In my opinion, the limited evidence about the make-up of the people who attended the meeting is sufficient to support a finding that the audience would have consisted almost exclusively, if not entirely, of interested residents of the Suffolk Park neighbourhood, whose individual and collective interest in attending the meetings was to support Mr Mackay. In the same way, it seems highly unlikely, given the personalities involved, that anyone other than a detractor of the plaintiff would have attended either of the meetings, if there was any chance that, in doing so, they would be giving support to the plaintiff's opponent. The plaintiff's private investigator, employed to record the proceedings, is an irrelevant exception to that general proposition. 227 Can it be said that the defendant's remarks were germane and reasonably appropriate to the occasions? Were these the occasions for the defendant to say what he said? 228 The defendant's remarks were somewhat discursive. Although there was no specific evidence about it, it appears fairly clearly that the defendant did not speak from prepared notes. On the occasion of the first meeting the defendant spoke for longer. He related in brief a history of the association he had had with the plaintiff. He made reference to the AVO taken out against him by the plaintiff. He related having gone to the plaintiff's land and calling the plaintiff a thug and a bully at that time. He referred to being taken to court by the plaintiff and of the need he had to obtain proper legal representation. He emphasised, in effect, the importance of being represented. He said the magistrate was scathing of the plaintiff and ordered him to pay costs. The defendant said that he had not met many more unsavoury characters than the plaintiff. He emphasised the need to stand up to such people. 229 The defendant went on to congratulate the audience for the support they were giving Mr Mackay and the environment. He described the plaintiff as "relentless". He referred to the plaintiff's award from the Department of Land and Water Conservation and appears to have suggested that the plaintiff obtained the award by manipulating the system. He described the plaintiff as "this developer who is just pushing the system as hard as he can". 230 The defendant then noted that councillors Barham and Coman were present and commended them for the work they were doing "striving and communicating with the community". He exhorted the audience not to allow "the Bennettes of this world to get away with far more than . . . they should". 231 The defendant said less on the second occasion. Referring to his first speech, he noted that the plaintiff had not come back and sued him or taken out another apprehended violence order against him. He said, "I suppose we must be getting somewhere". He described the plaintiff as "a rather paranoid fellow". The defendant repeated that he had gone down to the plaintiffs land "and basically called him a bully and a thug" which he said "seemed reasonable at the time". He noted that the plaintiff "was grossly offended and absolutely shattered by it". The defendant said "It's really important that we recognise that . . . we have these sort of people in our community and that the issue is not going to go away . . . when we have increasing pressure from very ugly bullies and thugs, white shoe brigade, developers, people like Jerry Bennette who are out to carve out as much as they can financially and profit out of what is our heartfelt community, so it is incredibly important that . . . we all gather for such occasions and keep the energy going and give people like Bill our utmost support". The defendant then referred to councillors Barham and Coman and praised them again for their work. He said, "These people, these women, who are bravely up there on council need your support, just in exactly the same way, for exactly the same reasons, that Bill needs your support". He concluded by saying, "we're a very powerful, strong, gentle, caring community so let's keep in mind that Bill and others, like Jan and Jenny, really need our support physically to be there". 232 I am not satisfied that the defendant had a duty to make any statements on the occasions that he did. In fairness, I did not understand it to be contended on behalf of the defendant that he did so. Rather, the defendant argued that he had a social (and perhaps even a moral) interest to make his communications and that the audience had a corresponding interest to receive them. The defendant submitted that what he said on each occasion was fairly warranted. He argued that his communications were those, which the interests of society require to be unfettered. 233 The nature of the occasion was to raise funds for a particular individual. That individual's need for funds was a direct result of the actions of the plaintiff. Although the meetings were advertised as having good food and entertainment, support for Bill Mackay was their principal aim. The meetings were transparently fundraisers, or rallies. The reciprocity of social (or moral) interest of the defendant and the audience was the raising of funds to cover Mr Mackay's legal costs and, upon the basis of portion of the defendant's first speech, arguably also the raising of funds to go towards helping to meet any verdict that the plaintiff may have recovered against him. 234 If it is contrary to public policy and the general interest of society that persons should be hampered in the exercise of their rights by constant fear of actions for slander, then, in my opinion, the occasions upon which the defendant spoke were privileged occasions. The rallying point around which support for Mr Mackay was to be focused was the litigation commenced by the plaintiff against him. I have already referred to the descriptions given by Mr Mackay of how he felt when he was sued. Even without the benefit of these descriptions, it is clear that litigation is often unpleasant and frightening for most of those involved. The plaintiff and Mr Mackay were locked in battle. The consequences for Mr Mackay were potentially ruinous. The defendant chose these occasions as the opportunity to give a description of Mr Mackay's opponent. The defendant had an interest in saying it and the audience had an interest in hearing it. It was the same interest. 235 I disagree with the plaintiff's submission that the matters complained of were vicious or rambling attacks on the plaintiff. It is accepted that what the defendant said was defamatory. But I am not satisfied that the defendant used the occasion for some purpose or motive foreign to the interest that would otherwise protect the making of his statements. The significant subject matter of the meetings was a comparison of the relative merits of the protagonists in the litigation. The reciprocal social interest of the defendant as the speaker, and of the audience as the listeners, was the elaboration of such matters. Each of the meetings was an appropriate occasion to do so, and, in my opinion, they were occasions to which the relevant privilege attached. Malice

[112]

[104] "Finally, in considering whether the plaintiff has proved malice, it is necessary that the plaintiff not only prove that an improper motive existed but that it was the dominant reason for the publication." 239 The plaintiff's particulars of malice are manifold. In this respect the defendant has drawn my attention to what was said by Ipp JA in Habib v Nationwide News Pty Limited [2007] NSWCA 91 at par [29], in which his Honour referred to his own remarks in Ohlstein v E & T Lloyd [2006] NSWCA 226 at pars [60] to [61]. In the present case the plaintiff has particularised numerous alleged examples of malice and I have had regard to all of these examples in forming my view. 240 The plaintiff's principal submissions on malice emphasised the following matters. The plaintiff submitted that the defendant "had no conceivable basis" for calling the plaintiff any of the things which he called him. According to the plaintiff, the defendant had embarked upon "a long campaign to smear and traduce" the plaintiff. He submitted that the defendant's conduct was "disgraceful". The plaintiff said that the defendant, in publishing the matters complained of, was motivated by spite or ill will and a desire to destroy the plaintiff's reputation, to injure the plaintiff financially and to cause the Byron Shire Council to refuse, or to impede, development applications by the plaintiff. The plaintiff alleged that the defendant was out to destroy his business as a property developer as evidenced by the tone and content of the matters complained of, the history of animosity between the plaintiff and defendant, false statements in the matters complained of, the omission of relevant facts from the matters complained of and the circumstances of the publication. The plaintiff alleged that the defendant was malicious in publishing the imputations in question knowing them to be false, or was recklessly indifferent as to their truth or falsity. The plaintiff gave particular emphasis to the enumerated matters that follow. 241 First, the plaintiff contended that the defendant did not contact the plaintiff before publication and has not apologised to the plaintiff notwithstanding the findings of the jury in this case. 242 Secondly, the plaintiff contended that the matters complained of were intrinsically malicious. In this respect, the plaintiff drew particular attention to the wording of the matters complained of, most examples of which have already been referred to earlier in these reasons. 243 Thirdly, the plaintiff said that the matters complained of contain several factual inaccuracies. For example, the defendant suggested at the first meeting that the plaintiff had sued Mr Mackay for $750,000 by way of intimidation without mentioning the fact that Mr Mackay had himself brought proceedings for defamation a few days before the first concert claiming the same amount. In the plaintiff's submission, this demonstrates that the defendant was attempting erroneously to paint Mr Mackay as a victim with no real means to take on the plaintiff. 244 Fourthly, the plaintiff pointed to the use by the defendant at the first meeting of the words "what started the problem I think" in the context of a reference to the plaintiff's Rivercare 2000 award. The plaintiff said that the "problem", which that award started, was the decision of the so-called "green forces" in Byron Bay to campaign against the plaintiff and his development. 245 Fifthly, the plaintiff said that the defendant, despite not giving evidence in the proceedings, revealed a malicious attitude to the plaintiff by denying that the matters complained of were published of and concerning the plaintiff in circumstances where he had simultaneously pleaded a defence of truth, and had sworn answers to interrogatories administered by the plaintiff in which he failed to recall whether or not he had spoken the words sued upon, which the plaintiff spoke at each concert. 246 Sixthly, the plaintiff relied upon the defendant's answer to an interrogatory in which he admitted saying, in November 1999, to the Secretary of the Lennox Head/Alstonville Surf Lifesaving Club that the plaintiff, in effect, had assaulted a junior member of the club. The plaintiff submitted that the defendant could have had absolutely no basis for making such an allegation or, alternatively, must have known it was false. The attack has been left entirely unexplained in the evidence and, uncontradicted, demonstrates malice on the part of the defendant. 247 Seventhly, the plaintiff submitted that the defendant's visits to the plaintiff's land on 6 and 8 January 2000 were evidence of malice on his part. In particular, the visit on 8 January 2000 was the occasion upon which the defendant admitted calling the plaintiff a "mongrel" and a "thug". The plaintiff submits that language of that type is intrinsically malicious. The defendant denied on oath that he said to the plaintiff "you are scum, go back to America" (plaintiff's interrogatory 56). Ms Eliott gave evidence that the defendant had said words to the effect of "take your American style developing or bullying tactics back to America". The plaintiff submits that the defendant's denial on oath, in answer to interrogatory 56, could only have been a lie in those circumstances and is accordingly further evidence of malice on his part towards the plaintiff. 248 Eighthly, the plaintiff submitted that the defendant's involvement in the events of early January 2000 is indicative of a willingness on his part, despite having no standing to do so, to interfere in the plaintiff's development activity. For example, the defendant made a complaint to the Environmental Protection Agency that became part of the circumstances giving rise to the council's issue of the stop work notice on 7 January 2000. 249 Ninthly, the defendant made his speech in the New South Wales Legislative Council, to which earlier reference has been made, in which, according to the plaintiff's submission, he entirely gratuitously accused the plaintiff of acting illegally in defiance of a council stop work order. The plaintiff submitted that on this occasion the defendant also completely misrepresented the circumstances of the incident involving Mr Kennedy in a way unfavourable to the plaintiff. 250 Tenthly, during the course of the proceedings, the plaintiff was cross examined on the contents of the Lennox Head/Alstonville Surf Lifesaving Club log that was allegedly forged but, in either event, certainly altered from the original. The plaintiff submitted that, despite the fact that cross examination of the plaintiff based on the erroneous document was wholly misconceived (although not intentionally so), the total absence of any apology from the defendant, or of any attempt to withdraw that cross examination, pointed to the defendant's vindictive attitude, which is demonstrative of malice. In the plaintiff's submission, allowing that cross examination and those allegations of lying on oath to stand, without apology or correction, is a disgraceful act on the part of the defendant. 251 The plaintiff submitted that the defendant used the occasion of the meetings for purposes extraneous to the occasion. The plaintiff submitted that the first two imputations could not possibly have been relevant to an occasion of qualified privilege - in this case, a benefit to raise money for Mr Mackay's defence of the plaintiff's proceedings. (The plaintiff conceded that the third imputation was relevant to the occasion). He submitted that the defendant's purpose was improper. The plaintiff conceded that mere lack of belief in what was published did not of itself demonstrate the existence of malice. He cited Roberts v Bass (supra) at par [87] as follows: -

[115]

"If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled. There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant's dominant motive may have been to obtain some private advantage unconnected with the duty or the interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true." 254 I am not able to conclude, in the circumstances of this case, that the defendant's desire to protect the relevant interest played no significant part in his motives for publishing what he believed to be true. I am certainly not satisfied, and I am accordingly unable to find, that the defendant misused the occasion of either of the meetings to give vent to his personal spite or ill will towards the plaintiff or any cognate notion. The evidence would appear to reveal quite clearly that some actual ill feeling existed between the plaintiff and the defendant, or more relevantly, that the defendant harboured ill will toward the plaintiff. The events of January 2000 suggest as much. The terms of the defendant's media release, dealing with the result in the proceedings taken against him by the plaintiff for an apprehended violence order, do the same. 255 However, when one has regard to the matters complained of, including both the audio recordings and the transcripts, it seems to me that the defendant was using each occasion to rally support for Mr Mackay's situation and to characterise the plaintiff in a particular way for that purpose. The burden of the plaintiff's detailed and articulate submissions on this point is that one cannot listen to the tapes, or read the transcripts, of the matters complained of in isolation, without having regard to the significant, relatively longstanding and even, to some extent, poisonous history which the plaintiff and defendant have shared. But a close examination of the particular matters upon which the plaintiff relies as evidence of malice satisfies me that the defendant's purpose in saying what he said at the meetings was not infected by the existence of a dominant motive unconnected with an interest, which constitutes the reason for the privilege. The matters complained of, as I have already noted, were discursive and delivered in a rambling and, to some extent, disorganised fashion, including references to some irrelevant and extraneous material. But in my opinion neither the irrelevant or extraneous material on the one hand, nor the material which conveyed the relevant imputations on the other hand, strikes me as so vitriolic or vituperative as to reveal a motive which negates the privilege. 256 Counsel for the plaintiff submitted that my consideration of this issue should be informed by a Jones v Dunkel inference arising from the fact that the defendant was not called to give evidence, and gave no explanation, of what he said about the plaintiff, or why he said it. However, the defendant was entitled to the benefit of a presumption that he had an honest belief in the truth of what he said unless and until the contrary is proved. A reasonable explanation for a failure to call the defendant may be that he did not wish to be exposed to cross examination, and to the giving of evidence, that may have imperilled the presumption. Comment 257 Having regard to my earlier findings concerning substantial truth, and to the parties' respective submissions on the defence of comment, this defence will only be made out if: -

[117]

"Though 'comment' is often equated with 'opinion' this is an over-simplification. More accurately it has been said that the sense of comment is 'something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc'." 260 The plaintiff submitted that nothing in the matters complained of was anything other than fact. The plaintiff submitted that even if the third imputation could qualify as an opinion, there were insufficient facts stated to support it as such. The plaintiff submitted that whether or not something is a statement of fact or an opinion depends upon the circumstances in which it is made. I have had particular regard to that submission in forming the views that I have reached. 261 In my opinion, all of the imputations qualify as comment. Although the matters complained of were different, and while not all of the matters spoken by the defendant on each occasion are necessarily relevant to consideration of the present issue, at least two clear themes emerge. First the defendant speaks on the first occasion of the court action taken by the plaintiff against Mr Mackay as well as a defamation case in which the defendant himself had been personally involved. He refers to "slap suits" and poses the rhetorical question, "if you think you're going to get hit by defamation, did he manipulate the system? I'll leave it up to you". 262 Secondly, on each occasion the defendant refers to the plaintiff's having taken proceedings against the defendant alleging, in effect, acts of violence. On the first occasion he refers to the fact that the plaintiff "took out an AVO against me" and to the fact that the defendant was required to get proper legal representation to defend it, had to appear in court and ultimately received a costs order in his favour. The defendant said, "So, don't be intimidated by the likes of him. We can go through the court processes and we can win". On the second occasion, the defendant refers again to having been through a court case with the plaintiff "a few months back" which "was about him taking an apprehended violence order out against me because I went down to his site and told him what I thought of him and basically called him a bully and a thug". The defendant continued, "he was grossly offended and absolutely shattered by it, it would seem, and, er, so he took me to court and lost". The defendant continued, "It is proven in a court of law that [the plaintiff] is a bully and a thug so I'm not telling you anything". 263 Although it is not necessary for a defendant to have set out, in the course of publishing the matters complained of, material from which a reader or listener could reasonably infer that what has been said is a deduction, inference, conclusion, criticism, or remark or observation, the defendant in the present case has done precisely that. From both the written and spoken versions of each of the matters complained of in the present case, one gets the very distinct impression that the imputations are a round-up or summary of the factual matters to which the defendant has referred. In all cases the imputations appear to me to draw upon no more or less than the defendant's personal experiences with the plaintiff or his knowledge of Mr Mackay's experience with him. The principle is succinctly characterised by Giles JA in O'Shane at pars [29] and [32] as follows: -

[118]

[29] ". . . In any given case, the question is whether the words would be regarded by the ordinary reasonable reader as comment or statement of fact, and the defendant must satisfy the tribunal of fact that they would be regarded as comment. All the circumstances are to be taken into account, and it must be remembered that the ordinary reasonable reader does not parse and pore over the published matter as the lawyers are inclined to do at trial." [32] "It has often been said that in order that the words be comment, the reader should have the opportunity to judge for himself whether the opinion is well founded. It is necessary to look behind these words. Giving the opportunity by presenting or indicating facts may assist in characterising the words as comment, but not because the reader can judge for himself whether the opinion is well-founded; rather because the reader can see that the author is expressing an opinion based on the facts. Saying that the reader has the opportunity expresses the result, not a necessary purpose, and does not exclude the words being comment in other circumstances." 264 In my opinion, the ordinary reasonable listener would have understood these imputations as expressions of opinion. The circumstances of the publications, the language used and the degree of emotion and judgment all point to opinion rather than fact. The defendant appears to me to have given the audience on each occasion the opportunity to judge for themselves how far his opinion is well founded rather than to proffer the imputations in this case as a series of facts. Proper material for comment 265 "Material is proper material for comment in accordance with the common law; this particular element of the defence is not codified: section 30(1)": per Hunt JA in Sims v Wran [1984] 1 NSWLR 317 at 322. At common law the basis for comment must be true. "Under the Act, therefore, and subject to s 30(3)(b), a comment will not be based on proper material for comment if the material on which it is based is inaccurate, including because it is incomplete": per Giles JA in O'Shane at par [51]. 266 Although the plaintiff urged upon me that the defence of comment should fail at all levels, he argued in particular that any putative comment made by the defendant could not qualify as such for the reason that the material on which it was based was inaccurate or incomplete. In particular, he emphasised the failure by the defendant to draw to the attention of the audience the fact that Mr Mackay had himself sued the plaintiff claiming $750,000 and that the defendant's pejorative references to the plaintiff as having sued Mr Mackay for the same amount were inaccurate or incomplete by reason of that omission. 267 However, the difficulty with that submission, it seems to me, is that it would require proof that the defendant was aware of Mr Mackay's proceedings when he spoke at the first meeting on 7 April 2001 when those proceedings had been commenced only days before. The evidence does not satisfy me that the defendant had that knowledge at the relevant time. Indeed, there is no evidence about it at all. Moreover, the omission, which the plaintiff contends is relevant in this respect, could only have had a bearing on the third imputation, which arose out of the first meeting. Even if the inference were available that the defendant knew or should have known of Mr Mackay's proceedings by the time of the second meeting on 19 May 2001, no relevant imputation arose from the matters complained on that occasion. Public interest 268 In Green v Schneller [2000] NSWSC 548, her Honour Simpson J, at [19] said the following: -

[120]

"By bringing an action a person makes public the facts of the case, and his character as disclosed by the evidence, and invites comment. Similarly, if someone publishes articles or writes open letters to the Press in order to call attention to some abuse or to ventilate his own grievances or those of his class, he gives the public an interest in the matter." 271 At the time of publication of the matters complained of, and for a considerable time beforehand, the plaintiff had been, in the Byron Bay and Suffolk Park area, a local identity of some notoriety. He wrote regularly to local papers expressing sometimes-controversial opinions about matters that concerned him. His letters invited replies in the same publications. The evidence reveals that he publicly and regularly asserted his rights and was not shy about coming to the law in order to enforce them. The plaintiff's development of his Suffolk Park land had become, for better or worse, and whether he liked it or not, a matter of considerable local public interest. The plaintiff's defamation action against Mr Mackay was itself intimately connected with that development and with the broader discussion of local environmental issues and controversies that it had spawned. 272 It was agreed between the parties to the present proceedings that the matters complained of could be looked at in order to determine whether or not the defendant's comment related to a matter of public interest. Moreover, the parties agreed that the defendant ought not to be limited to the way in which he particularised public interest, and that I should have regard to the whole of the evidence for this purpose. Approaching the matter in the way it seems to me that the matters upon which the defendant commented were clearly matters related to a matter of public interest. Comment of the defendant 273 I did not understand the plaintiff to contend that the relevant comment was other than the comment of the defendant. Nor did the plaintiff suggest that the comment did not represent the opinion of the defendant for the purposes of s 32(2).

[126]

281 This idea could be seen as well in the evidence of Ms Mangleson in which she said that the plaintiff had received "quite a lot of adverse publicity in the local papers" . . . claiming that he was a very ruthless developer". She said, "there seemed to be a lot of letters coming from individuals, especially around the Suffolk Park area, that cast a lot of doubts on the kind of development that [the plaintiff] was doing". Ms Mangleson said, "with a significant section of the community [the plaintiff's reputation] was very poor because of the publicity, but there were other people who believed that he was making quite a considerable contribution to the community and to the environment". Ms Mangleson specifically agreed with the proposition that the plaintiff seemed to have had two reputations in the area: see par [93] above. 282 It was the defendant's submission that the plaintiff was unlikely to suffer any harm because the major circumstances of the publication, that would make it unlikely that he would do so, were the extent of the publication, the nature of the recipients and their relationship with the plaintiff. The defendant relied upon a passage taken from Perkins v New South Wales Aboriginal Land Council (Badgery-Parker J, 15 August 1997, unreported), cited by her Honour Beazley JA at par [15] in Jones v Sutton (supra) that ". . . It would be relatively easy to make out the defence in circumstances where the publication was to a small number of persons well acquainted with the plaintiff and able themselves to make a judgment of their own knowledge as to the likelihood that there was any substance in the imputation conveyed". 283 The defendant submitted that it was unlikely that the plaintiff would suffer harm because everyone in attendance at the meetings was there with a common purpose. The defendant submitted that those present at the meetings would, in effect, all have held the same view of the plaintiff's reputation, being the unfavourable view referred to in the evidence of Mr Tucker and Ms Mangleson. 284 The plaintiff submitted that the defendant had not established that the circumstances were such that the plaintiff was unlikely to suffer harm. He referred to the grapevine effect, and in particular to the fact that whatever may have been the constitution of the audience, a serious allegation - not a jocular remark - made by the defendant, who was a prominent, high profile, local politician, about a similarly prominent local developer, would in all likelihood be spoken about beyond the confines of the meetings. The plaintiff submitted that in any event, the prospect that there may have been even a small number of people in the audience at the meetings who were sympathetic to the plaintiff, would alone be sufficient to dispose of the defence; wider publication in those circumstances would be unnecessary. 285 I am not satisfied that the defendant has established that the circumstances of the publication of the matters complained of were such that the plaintiff was not likely to suffer harm. There was some likelihood that he would. The question of whether or not the plaintiff in fact suffered harm is irrelevant. At par [226] I found that the audience would have consisted almost exclusively, if not entirely, of interested residents of the Suffolk Park neighbourhood, whose individual and collective interest in attending the meetings was to support Mr Mackay. Such a finding permits of the possibility that others from a different group may also have been present. It cannot be said that these circumstances were such that there was no likelihood of harm to the plaintiff, whatever might be said about the magnitude of such harm. Damages 286 I propose to make an assessment of damages against the contingency that any of my findings about the defences are set aside. 287 The plaintiff submitted in writing that an appropriate award of damages in this case is a substantial award, which includes a significant component for aggravated damages. Oral submissions on the last day of the trial served to qualify and clarify the plaintiff's position. 288 It was submitted on behalf of the plaintiff that he was a man of good reputation outside the "green" sector of Byron Bay. Mr Van Zwieten gave evidence that the plaintiff's reputation was that of a solid citizen, an excellent lifesaver with medallions from overseas for heroic efforts, and as a philanthropist within the surf club. It was said that the plaintiff was well known within the club for having donated a rescue boat, described as "a crucial piece of rescue equipment which [had] helped the club out immensely". In fact, Mr Van Zwieten described the plaintiff as being "the club's main benefactor". The plaintiff submitted that the capacity of the imputations to damage his reputation in the area of his life that mattered greatly - that is, the surf club - could not be doubted and was unchallenged. 289 Councillor Tucker described the plaintiff's wider reputation as being "a good developer" because of the result of the subdivision of his land in Suffolk Park. Councillor Tucker's evidence about the plaintiff's reputation is referred to in some detail above commencing at par [85]. 290 Ms Mangleson also gave evidence about the plaintiff's reputation. Her evidence about the plaintiff is also referred to in some detail above commencing at par [90]. 291 The plaintiff submitted that none of the evidence about his reputation was challenged by the defendant, other than to confirm in the cross examination of Ms Mangleson that the plaintiff seemed to have had two reputations, with a not so favourable view of his reputation held by those who opposed his development. However, as material referred to above at par [94] discloses, Ms Mangleson agreed that she may have heard the plaintiff referred to as a bully as early as 1999 or 2000 "but I think also prior to that". 292 The plaintiff contended that he was hurt significantly by the defendant's publication of the imputations. In this respect the plaintiff emphasised the following matters: -

[135]

(j) finally, the plaintiff's hurt to his feelings was seriously aggravated upon learning in 2002 of the defendant's conversation in 1999 with Mr Fletcher, the secretary of the surf club. The plaintiff learned that the defendant had contacted Mr Fletcher, then the secretary of the surf club, in 1999 and alleged that the plaintiff had assaulted a junior member of the club. As has been noted earlier in these reasons, the defendant admitted that conversation. The plaintiff submitted that this constitutes a significant part of the plaintiff's hurt to feelings and is relevant to his claim for aggravated damages. 293 The plaintiff agreed that the present proceedings are not concerned with a mass media publication. Senior Counsel for the plaintiff fairly conceded that the plaintiff was "not so primarily interested in a huge verdict, except in one sense", meaning aggravated damages. He submitted that the plaintiff was "much more interested in what he regards as the vindication of his name from these allegations". He submitted that the present case is not one for nominal or contemptuous damages. It was submitted on behalf of the plaintiff that "[T]he hurt to feelings here . . . must be absolutely enormous". It was conceded that the defendant's failure, or omission, to apologise was irrelevant. 294 The plaintiff submitted that the factors warranting an award of aggravated damages primarily derived from the manner in which the case was conducted on behalf of the defendant at trial. As Lord Esher said in Praed v Graham (1889) 24 QBD 53 at 55, "the jury in assessing damages are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they give their verdict". In the present case the plaintiff emphasised the defendant's persistent reliance upon truth as a defence, associated as it was with intense cross examination of the plaintiff over several days. There was also the issue of cross examination of the plaintiff based upon an erroneous copy of the surf club log, in circumstances where the defendant, through his counsel, neither sought to withdraw the cross examination nor to apologise for the misunderstanding. 295 In Uren v John Fairfax and Sons Pty Ltd (1967) 117 CLR 118 at 150 Windeyer J said: -

[137]

296 Any proper assessment of the plaintiff's damages in the present case must be made having regard to the factual background with which I have dealt already, and to the insights which it gives to the plaintiff himself. For reasons best known to, and perhaps only understood by, the plaintiff, he conducted his life and his business affairs in what seems to have been a high state of constant aggravation and agitation. I have described this above in some detail. The plaintiff was not afraid of conflict, certainly never went out of his way to avoid it and, on one view, was largely instrumental in creating it. With only slight exaggeration, it is correct to say that the plaintiff appears to have dedicated much of his life to putting people off side. I have already mentioned Mr Robertson's recollection of the plaintiff telling him that he didn't get angry, he got even. As far as I can determine, it is more accurate to say that the plaintiff got both angry and even. 297 In my opinion it is difficult to disregard the plaintiff's combative nature in assessing a sum by way of damages which would properly and adequately operate as a consolation to him for the wrong done. In my opinion, it lies ill in the mouth of the plaintiff to complain about the way in which the defendant responded to the present proceedings when the facts suggest that the plaintiff's stock in trade has included the rough and tumble of litigation, of threat and counter threat, and an almost unyielding belief in the correctness of his own position. The whole of the plaintiff's story serves only to confirm that we are paid in our own coin. 298 I am not satisfied that the plaintiff has established that the hurt to his feelings arising from the matters complained of was as significant or deep as the submissions of his counsel would suggest. The plaintiff showed himself as a man who was prepared to dish it out when it suited him. I cannot accept that he was unable to deal with the sting of the matters complained of in the same robust way in which he conducted every other aspect of his life. Accordingly, I propose to have only modest regard to injury to the plaintiff's feelings in my assessment of damages. 299 In the same way, the plaintiff's reputation was as I have described it. Even the plaintiff's most ardent supporters would have been hard pressed to say otherwise. The "two reputation" concession made by Mr Tucker and Ms Mangleson is tacit support for this proposition. I consider that the injury to the plaintiff's reputation was slight. 300 Having regard to all of these matters, I would have awarded the plaintiff, as a vindication to the public because he was injured in his reputation and as a consolation to him for the wrong done and for his hurt feelings, the sum of $15,000. Orders

[142]

And it's only a community that's united that can deal with a thug and bully, ah, and, I think that, you know, it's unfortunate we see Bill really in the hot seat this time but he did take me to court. I had to get proper legal representation it was all very, you know, sort of, er um, organised and austere. It wasn't just appearing in court and representing oneself, but, ah, the, ah, magistrate was scathing, I think, of Mr Bennette and he paid, had to pay costs and, er, and lost the case. So, don't be intimidated by the likes of him. We can go through the court processes and we can win. And further to that I've read, and, I don't, I'm not capturing the, sort of the co - continuity a lot because I'm away a lot in Sydney and I miss out sometimes but, uh, I saw where he's talking about a, a, a, a, a, a demand of something like $750,000 on, er, on Bill. Well that's, you know, that's a load of rubbish because you've seen what's happened. I, I was involved in a, um, in a, uh, defamation case against, er, the Daily Telegraph and this has gone on for a period of about 4 years and I was getting sort of, ah, a bit of rough treatment from my lawyer saying well you actually were there, you passed laws that actually stop us from taking them to the cleaners now. So, generally speaking those types of, of events you end up with costs or, er, awards being made by the courts these days between about forty and eighty thousand dollars. I don't know where he got the $750,000 from but presume it's just another type of intimidation material. So it's interesting also during the, uh, during the case to, uh, to hear that, you know, he's having to go to a psychologist and, ah, under medication, and you know, I guess, he might be a little deluded, he thinks the world is against him, and I wonder why. But the thing about Mr Bennette, and I've known him for quite a few years, and I haven't met many more unsavoury characters around this area and, ah, and you know you really do have to stand up to these sort of people and, er, as a community I think we're quite capable of doing that. And it's fantastic to see so many people here tonight and, ah, we're supporting Bill but we're supporting ourselves and we're supporting the environment and the man is relentless. To think that he got a, and that is what started the problem I think, he got an award from the Department of Land & Water Conservation - digging a ditch through and yeah, you know, a lot of us don't have the time and energy to chase every one of the things that we have done and I believe, or should I say if I'm in, in doubt ask a question, if you think you're going to get hit by defamation, did he manipulate the system? I'll leave it up to you. Further to that it's interesting that he has such a tenacity for working through the system that somehow or other and I just found out this today, he has actually, um, gone down to the government in Sydney and they've called the Mayor, they had called the Mayor down to, uh, discuss the matter. So the other problem here I think is the fact that Mayor went to Sydney, didn't tell the other councillors before he told, ah, before he was asked a question in the council, council's out there, if I'm wrong let me know, but he didn't tell anyone else until he was asked a question by Tucker in council. So here we have on the one had this, this developer who is just pushing the system as hard as he can and we've got a Mayor who isn't talking to his council let alone talking to the public. So I suggest that you all get on the blower and talk to Mr Wilson who I don't think's doing a particularly good job of public representation at the present time, and say, "Why don't we know about what Mr B - Bennette is doing at a state government level?". And this is, this is part of the work, that's nuts and bolts, the ongoing work that we have to, to undertake to maintain vigilance so that we get proper communications right throughout our community so that we protect people like Bill, who just happens to be the person in the hot seat at the moment and that we try to create enough impact within the council. Jenny Coman, Jan Barham are here tonight. I think they're the only councillors, yes, and they have been consistent in striving and communicating with the community and that is absolutely what we expect, what we demand, not of just two of the councillors, but the whole lot. So please make your feelings known and keep it ongoing, keep the pressure up because I think there's something in council at the moment that is allowing the Bennettes of this world to get away with farm more than what they should. I've probably said enough now, let's get back to more entertainment except, uh, it's a fantastic show of support that you're here tonight. I'm supporting at, uh, the state level wherever I possibly can. Councillors, a sm - small minority of good Green and Independent progressive councillors are doing their thing at that level. Let's keep the information going, let's keep the pressure up and, ah, lets hope that, ah, Mr Bennette moves on.

[146]

Ian Cohen: Well he has, so they say, he has his spies out everywhere, he's a rather paranoid fellow I notice he's pursuing Bill in a similar way. I went through a court case with Jerry Bennette a few months back and, ah, it was about him taking an apprehended violence order out against me because I went down to his site and told him what I thought of him and basically called him a bully and a thug … seemed reasonable at the time. And, uh, he was grossly offended and absolutely shattered by it, it would seem, and, er, so he took me to court and lost. And, uh, I, I was able … Male Voice: Even if he is a bully and a thug? Ian Cohen: Well I think it does, it can sort of go through the, ah, legal, ah, how would you say it? Sort of, ah, sequence of, ah, um, objective thought on the matter. It is proven in a court of law that Jerry Bennette is a bully and a thug so I'm not telling you anything … (Voice masked by applause) … It's really important that we recognize that, um, we have these sort of people in our community and that the issue is not going to go away ah, when we have increasing pressure from very ugly bullies and thugs, white shoe brigade, developers, people like Jerry Bennette who are out to carve out as much as they can financially in profit out of what is our heartfelt community, so it is incredibly important that, um, we all gather for such occasions and keep the energy going and give people like Bill our utmost support, I'll certainly continue to do it from the point I'm at and he's in a court process at the moment so we really should raise some money and keep him in there so he keeps proper legal advice, ah, because what's going on all round this place is a pretty terrible thing and Byron is at crisis point and it's not going to go away and hopefully very soon, ah, we can get to a point of real … (unintelligible) … We thought we had it. I have to just add also tonight that, ah, I'm here, ah, actually speaking on behalf of Jan Barham who's up to be our Councillor and Jenny Coman also of Byron Shire Council. Just to let you know, slightly off the track, but we've got some real bullies and thugs right in our council. And I would just like to let you know that Jan really is a bit wrecked and Jenny is absolutely exhausted - thirteen meetings this week. They spend all day and they are two of the only councillors that actually do their homework and sit down all weekend reading the council papers trying to get, keep up with it and they are being treated in a most derogatory fashion by a bunch of chauvinists. I'm sorry, I'll say it, I'm one, I suppose in a way, have been, will be, can't help it - you know that sort of thing, but they are really being attacked by, er, Tom Wilson, the Mayor and Hugh Ermacora. And I don't like to sort of bring the whole vibe of tonight down, I think it's wonderful, it's a wonderful thing to hear the music and feel the positive way that we want to go, but I, we just ask you please individually and collectively go along to the Council meetings and listen to what's going on please. These people, these women, who are bravely up there on council need your support, just in exactly the same way, for exactly the same reasons, that Bill needs your support. So we can do it, we're a very powerful, strong, gentle, caring community so let's keep in mind that Bill and others, like Jan and Jenny, really need our support physically to be there, like that um, uh, I …

Bennette v Cohen

At a glance

Court

Decision date

Before

Source

Judgment (147 paragraphs)

Parties

Cases Cited (12)

Cited By (3)