Gair and Turland v Greenwood

Gair and Turland v Greenwood - [2020] NSWDC 586 - NSWDC 2020 case summary — Zoe

[4]

Background

Mr Gair is the Mayor of the Wingecarribee Shire Council (the Council) and he has held that position over a number of periods since 2008. Mr Gair has been a councillor since 1995. Mr Gair's father served on the Council from 1959 to 1970 and served as the Deputy Shire President in the mid-1960s.
Mr Turland has been the Deputy Mayor of the Council and was first elected to that position in September 2018. Mr Turland has been a councillor since 2012.
The defendant is a resident of the Shire. He is the registered owner of a business name "Tailormade Tunes".
On or about 2 October 2016 the defendant published a video on YouTube entitled "The Strife and Crimes of Duncan Gair". The video consists of a song against a background of photographs and animated images based on the lyrics. The lyrics included references by name to both Mr Gair and Mr Turland along with references to the plaintiffs as "crooks", "dodgy" and "corrupt". The photographs included images of both men. One of the images of Mr Gair was distorted to make some of his facial features pointed.
The following imputations are established regarding Mr Gair: 1. Duncan Gair as the Mayor of the Council was corrupt in that he misused his office as Mayor by dishonestly influencing the outcome of development applications for his friends; 2. Duncan Gair as the Mayor of the Council was corrupt in that he received money from developers in return for dishonestly influencing the outcome of development applications; and 3. Duncan Gair is a racketeer.
The following imputations are established regarding Mr Turland, based on the video and by reason of knowledge of the extrinsic fact of local viewers of the video that Mr Turland is a property developer: 1. Garry Turland is a crook; 2. Garry Turland as an elected councillor of the Council was corrupt in that he misused his position as an elected councillor by dishonestly influencing the outcome of development applications; 3. Garry Turland dishonestly used his position as an elected councillor of the Council to be able to influence the outcome of development applications in which he had an interest; 4. Garry Turland bribed the Mayor in order to obtain favourable outcomes for development applications; 5. Garry Turland engaged in a conflict of interest through his position as an elected councillor by being able to influence development applications in which he had an interest.

[5]

Mr Gair's Evidence

On or about 3 October 2016, Mr Gair was first made aware of the video by a resident of the Shire that he had known for many years. When Mr Gair first viewed the video he observed that it had been viewed 614 times.
Mr Gair deposed that he was and continues to be severely embarrassed and humiliated by the video. He was outraged by being falsely accused of corruption and concerned that a viewer may believe the content of the video and thereby that his reputation would be tarnished.
Mr Gair deposed that the imputations were untrue and antithetical to his approach to his responsibilities as the Mayor.
After seeing the video and discussing it with Mr Turland, Mr Gair and Mr Turland instructed a solicitor to have the video taken down from the internet. On or about 25 October 2016 Mr Gair was advised that YouTube had taken steps to block the video from being able to be seen by a user in Australia.
After 25 October 2016, the link to the video showed the title of it with a distorted image of Mr Gair's face, but access to viewing the video was prevented.
About six people raised the video with Mr Gair after it was published, including councillors, council staff and members of his family. Mr Gair's children were angry and annoyed about the content of the video.
The defendant has not apologised or published any correction as to the untrue or defamatory material.
After the plaintiffs commenced proceedings for defamation, the defendant has continued to publish further material suggesting that the Mr Gair is corrupt and has engaged in misconduct on the Council. These publications have included online posts on Facebook, other videos uploaded to YouTube, emails to Council employees and other councillors and emails to the courts in which the defamation proceedings have been litigated.
On 6 June 2018 the defendant sent an email to Mr Gair in which he made various allegations of criminal conduct by Mr Gair and threatened to "picket" Mr Gair's shop "in protest of your corruption and your witch hunt against me". This email caused Mr Gair considerable concern as he did not want his business affected.
On 7 June 2018 the defendant sent an email to the plaintiffs' solicitor making various allegations of wrong doing by Mr Gair and Mr Turland on the Council as well as misconduct relating to the defamation proceedings.
On 12 June 2018 the defendant sent an email to the plaintiffs' solicitor in which he threatened to write to Mr Gair's son describing the "undeniable evidence of his father's corruption dating back to 2007". The defendant referred to his "website under construction" entitled "Defying Defamation."
Later on the same day the defendant sent a text message to Mr Gair repeating some of the allegations he had made in his Defence.
On 23 October 2018 the defendant posted a message on a Facebook page entitled "Defying Defamation". That post stated that the defendant intended to expose corrupt councillors on the Council, which he described as "the most corrupt council in Australia".
On 5 April 2019 the defendant sent an email to the Chief Judge in Common Law of the Supreme Court, Justice Hoeben. In that email he continued to assert that Mr Gair and Mr Turland were corrupt councillors and that he had irrefutable evidence of corruption by the plaintiffs' solicitor. The defendant stated in the email that he had no assets apart from a bus in which he lived and that he spent his time putting material on his Facebook page "Defying Defamation"".
On 26 July 2019 the defendant uploaded a new video to YouTube and posted a message on the "Defying Defamation" Facebook page with a link to the new video. In the video the defendant sought financial donations from the public and repeated the allegations of corruption he had made against Mr Gair and Mr Turland in the video. The defendant circulated the Facebook post and the new video by email to a number of unknown persons. Mr Gair was shown a copy of the email that had been received by an employee of the Council.
In or about early December 2019 Mr Gair was informed by his solicitor that numerous emails and other items written by the defendant about him had been published on a public internet website entitled Southern Highland News. One of the emails published on that website was an email from the defendant to the Council's Manager of Governance dated 12 August 2019. In that email the defendant stated about Mr Gair: It now turns out he is a political degenerate and brazen fraudster (based on the scores of documents I've sourced that show he's nothing but a CROOK and a RACKETEER). … and that's what I called him in the parody song he's been suing me for the last two and a half years. A CROOK and a RACKETEER. A court action that's destroyed my life, when all I did was tell the truth. … FYI Crook (n) - a very dishonest person, especially a criminal or a cheat. Racketeer (n) - someone who makes money from a dishonest or illegal business activity.
A further email from the defendant to the Council's Manager of Governance dated 20 August 2019 referred to councillor Duncan Gair's "long-term systemic corruption".
On 20 August 2019 the defendant sent two text messages to the plaintiffs' solicitor. The text messages included the statements: The evidence I have of your client's [sic] long-term systemic corruption has been sourced from records in the public domain … I intend to forward all of this evidence to a number of government regulatory bodies, and including Wingecarribee Shire Council … I'll also be contacting Justice Gibson and informing her of the fact that whilst Councillor Gair is suing me for defamation for allegedly calling him corrupt, he has, on a number of occasions, committed criminal acts.
On 15 October 2019 the defendant sent an email to Council's General Manager and the seven other councillors in which he repeated his allegations of corruption and misconduct by Mr Gair and Mr Turland.
On 31 October 2019 the defendant posted a poem on the Defying Defamation Facebook page. The poem did not name Mr Gair or Mr Turland but referred to shonky councillors who had stuffed their deepest pockets with ill-begotten gains and were prepared to pursue litigation against the person who exposed them and this was clearly a reference to Mr Gair and Mr Turland.
On 22 November 2019 the defendant sent an email to the Associate to Judge Gibson that purported to be answers to interrogatories. The email continued the defendant's claims that he had "overwhelming" evidence of corruption and criminal conduct on behalf of Mr Gair and Mr Turland.
On 27 November 2019 the defendant sent a further email to the Associate to Judge Gibson continuing his allegations of the plaintiffs' corruption. At or about this time the plaintiffs instructed their solicitor to seek an interlocutory injunction to prevent the defendant from publishing further defamatory statements.
On 1 December 2019 the Southern Highlands News website published links to the "Defying Defamation" Facebook page. Another topic listed on that webpage on 1 December 2019 was entitled "Wingecarribee Shire Councillor Duncan Gair".
On 11 December 2019 the Court made an interlocutory injunction restraining the defendant from publishing any matter on the internet relating to the plaintiffs to the same effect as the imputations contained in the Amended Statement of Claim. The defendant was also ordered to take all reasonable steps to remove from the internet all matters that he had published, posted or uploaded relating to the plaintiffs to the same effect as the imputations pleaded in the Amended Statement of Claim.
Mr Gair deposed that the defendant's repeated accusations that he was corrupt and a crook has prolonged the hurt, distress and embarrassment that he has felt over the video and further damaged his reputation. Mr Gair has not yet decided whether or not to run for Council at the next election in September 2021. His current intent is to do so. He is concerned that this would be the first general election of the Council since the publication of the video and the defendant's later publications. Mr Gair hopes that any verdict for damages obtained in this matter will provide some vindication to him and repair some of the damage done to his reputation. He is concerned that the defendant will resume repeating the same defamatory statements that he made in the video and that such publications will cause further damage to Mr Gair's reputation, and may adversely affect his chances of being re-elected to the Council.

[6]

Mr Turland's Evidence

Mr Turland has worked as a builder for more than 40 years. He operates his own firm from an office in Bowral and owns a number of investment properties.
On or about 3 October 2016 Mr Turland was alerted to the existence of the video by two people. When he first watched video he observed that it had been viewed hundreds of times.
Mr Turland deposed that he was extremely angry and upset by the video. He was also distressed to see his wife's reaction to it and his children were angry about the untrue allegations in it.
Over about the next three weeks, Mr Turland received about 20 calls about the video from family and friends. They had all seen it and were enquiring after his welfare.
The defendant has not apologised to Mr Turland for publishing the video. Mr Turland deposed that the defendant has continued his campaign against him adding to the hurt, embarrassment and damage to his reputation.
After the plaintiffs commenced proceedings for defamation, the defendant has continued to publish further material suggesting that Mr Turland is corrupt and has engaged in misconduct on the Council. I will not repeat references to publications by the defendant that I have set out when dealing with Mr Gair's evidence.
On or about 31 December 2016 Mr Turland was informed by a local resident that there was an online message posted by a Facebook user called "Reclaim Highland FM", in which Mr Turland was referred to as a "dodgy developer". The contact information for the Facebook user "Reclaim Highland FM" on Facebook was referred to as www.tailormadetunes.com.
On or about 28 January 2017 Mr Turland was informed by a local resident that the defendant had posted a message on his Adz Nauseam Facebook page referring to Mr Turland as "a dodgy" and a "shonky councillor/developer" and his "equally dodgy mate, Duncan Gair". Mr Turland was sent a screen shot of that post. The plaintiffs' solicitor wrote a letter to the defendant's solicitor indicating that such material was aggravating the damage caused by the video and requesting that the post be removed.
On 15 September 2017 Mr Turland attended a business lunch at the Robertson Hotel, at which there were about 70 people present. As Mr Turland was leaving the hotel, the defendant appeared and started to yell words to the effect: You are corrupt, you are a crook and a corrupt Councillor. This Council is the most corrupt Council in the state. I will expose how corrupt you and the Council are.
On 16 September 2017 Mr Turland attended the Tulip Time parade along Bong Bong Street in Bowral. At the time Mr Turland was the chairman of the Council's Tulip Time Committee. Mr Turland was giving out balloons to children when the defendant appeared and started taking photographs of him, while yelling words to the effect: You are a corrupt Councillor. You are a crook Councillor. I will expose you as a corrupt Councillor. You are a developer and a corrupt Councillor. You will go to prison.
This public abuse was loud and occurred for about 15 minutes. In addition to the young children, there were about 1,000 people in the vicinity watching the parade.
On 22 May 2018 Mr Turland was being interviewed by the local television station concerning the Council upgrade of Station Street in Bowral. At that time he was approached by a group of about 30 protestors. The defendant was present and started yelling loudly words to the effect: I have evidence that you are corrupt, I cannot wait for you to be in the witness box. I will expose the things you have been doing.
On 23 May 2018 during the course of a Council meeting, the defendant attended the meeting and during the meeting shouted: I can't wait to have you in the witness box.
On 8 June 2018 Mr Turland received a text message from the defendant in which he said that he had sent emails to Mr Turland and to his wife. Mr Turland received a further stream of text messages over that day and the next day from the defendant. It is fair to say that in those text messages the defendant continued to accuse Mr Turland of corruption, criminal acts and to allege that he had overwhelming proof of those matters.
On 8 June 2018 Mr Turland received a long email from the defendant in which he repeated many of the accusations he had made in the video and used very threatening language and included mention of Mr Turland's wife. The email included allegations that the defendant had contacted a number of investigative journalists in relation to Mr Turland's behaviour. The defendant stated: If it takes every last cent I have in this world, I will see you fully investigated for your crimes, and I will not rest until you are incarcerated for your systematic and intent corruption. And that goes for your dodgy mates as well.
At or about this time the defendant sent a four page letter to Mr Turland's wife repeating the allegations that Mr Turland was corrupt and a criminal.
On 11 June 2018 the defendant sent an email to Mr Turland repeating his accusations and describing a large number of different people and organisations to whom he intended to repeat those accusations.
On 11 June 2018 the defendant sent an email to Mr Turland which was largely written to his wife. The opening paragraph of the email asked Mr Turland to pass the email to his wife.
On 11 June 2018 Mr Turland's wife told him that she had received a telephone call from the defendant. The defendant had asked her to meet with him but she declined. The defendant said to Mr Turland's wife in the course of that conversation words to the effect: I am going to come to your café and tell everyone that Garry Turland is a criminal and will be going to gaol.
On 12 June 2018 Mr Turland was copied into an email from the defendant to his solicitor. That email alleged that the defendant had more than ample evidence to make good his accusations.
At or about that time Mr Turland made a complaint to the police about the defendant's conduct as he was concerned about the defendant's approaches to his wife and attempts to disrupt the business at her café.
On or about 26 March 2019 the plaintiffs' solicitor received a text message from the defendant that stated: Your client, Deputy Mayor Garry Turland is a criminal, and there's evidence recently released in the public domain that proves he's a corrupt politician. I've been reliably informed by the local community group Worried Wingecarribeans that there is more evidence of Turland's corruption soon to be released.
Mr Turland conducted an internet search of his name at about this time and found a YouTube video uploaded on 18 March 2019 by a person under the name of "Worried Wingecarribeans". The video was entitled "Truth about Turland the Not So Golden Boy of Bowral". Mr Turland suspected that the defendant produced the video. The video remains available for public viewing on YouTube.
On 10 September 2019 Mr Turland was provided with a copy of an email that the defendant had sent to the Council and two Council officers. That email repeated the allegations that Mr Turland was a corrupt politician.
On 11 September 2019 the defendant sent an email to the Associate to Judge Gibson in which he attached the 10 September 2019 email to the councillors.
Mr Turland deposed that on more than one occasion in or about late 2019 and early 2020 the defendant appeared at the front of Council Chambers and loudly abused councillors and Council officers including Mr Turland. On those occasions the defendant shouted words to the following effect: You are corrupt. You are going to prison. I cannot wait to have you in Court.
On a number of occasions Council called the police to intervene and subsequently employed a security guard to attend Council meetings.
Mr Turland is very concerned as to the adverse impact that the defendant's actions have had on his wife. Mr Turland holds fears that the defendant could physically attack him or a member of his family. As a result of the personal distress and reputational damage he has suffered, Mr Turland has decided not to run for re-election to the Council at the next election.

[7]

Assessment of Damages - relevant principles

Damage to the plaintiff's reputation is presumed upon proof of publication: Bristow v Adams [2012] NSWCA 166 at [20]-[28]. The three purposes of an award of damages are: 1. Consolation for hurt to feelings; 2. Recompense for damage to reputation (including business reputation); 3. Vindication of the plaintiff's reputation.
Each matter complained of in an action for defamation constitutes a single cause of action even where each matter contains multiple actionable imputations: s 8 Defamation Act 2005. A court may assess damages for all causes of action in a single award of damages: s 39 Defamation Act 2005.
Section 34 of the Defamation Act 2005 provides that there must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. Section 35 of the Defamation Act provides that there is maximum damages amount, which in this case is $421,000.
The Court may take into account evidence that the making of the defamatory imputation had an especially adverse impact on a plaintiff's reputation in the eyes of some group or class in the community: Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 507.
The award of damages should be "sufficient to convince a bystander of the baselessness of the charge": Broome v Cassell & Co Ltd [1972] AC 1027 at 1071.
The Court may award damages for distress and anguish, inherent in which is a vindication of the plaintiff's reputation: Fairfax Media Publications Pty Ltd v Pedavoli (2015) 91 NSWLR 485 at [20].
Damage to reputation still occurs even where persons do not believe allegations made against a plaintiff, or were sympathetic towards the plaintiff: Morgan v Odhams Press Ltd [1971] 1 WLR 1239.
The "grapevine effect" is a concept aimed at explaining the basis upon which general damages may be awarded in defamation, conveying the notion that it is difficult to track and fully ascertain the extent of the actual damage involved in defamation beyond those to whom the material was immediately published and allowing the Court a means by which to conclude that a given result was "natural and probable": Palmer Bruyn & Parker v Parsons (2001) 208 CLR 388 and Cripps v Vakras [2014] VSC 279 at [565]. The effectiveness of the concept depends on factors including the nature of the defamatory material and the circumstances of publication: Palmer Bruyn at [89]. The concept is particularly apt in cases involving social and online media: Pedavoli at [20].
Aggravated damages are awarded where the defendant's conduct towards the plaintiff was improper, unjustifiable or lacking in bona fides: Triggell v Pheeney (1951) 82 CLR 497 and Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 130.

[8]

Assessment of Damages for Mr Gair

The video caused Mr Gair severe embarrassment and humiliation. He rightly feared that people viewing the video might believe the untrue accusations contained in it.
The defamation of Mr Gair was serious in that it struck at the heart of his character and his conduct as an elected politician. The imputations convey that Mr Gair is corrupt, open to bribery and has abused his position on the Council. The false allegations of corruption and criminal conduct were intended to undermine his many years of public service as a councillor and as the Mayor of the Council.
The video was seen by more than 600 people within the first day of it being uploaded. It is probable that it was seen by hundreds more, prior to YouTube blocking access to it. The evidence establishes that it was seen by people in the Shire, where Mr Gair's reputation was likely to suffer the most damage. I am satisfied that the defendant intended the video to be seen by Mr Gair's constituents and that it was a targeted publication intended to cause damage to Mr Gair's reputation.
Mr Gair is also entitled to aggravated damages. The allegations in the video were known by the defendant to be untrue. The video contained sensational and emotive language and images that were designed to ridicule Mr Gair. The defendant has refused to apologise. The video was the start of the defendant's long running and relentless campaign against Mr Gair. The imputations were repeated on a large number of occasions to various people after the publication of the video and during the course of the proceedings. The defendant has repeatedly alleged that the imputations are true and that he has evidence to establish that. The defendant has also used the proceedings as a medium to repeat the imputations publicly. However, he has not provided any such evidence in these proceedings or at all and his conduct serves to aggravate the damage suffered by Mr Gair. The defendant has sent threatening and offensive emails and text messages to Mr Gair relating to the proceedings.
The appropriate award of damages is $100,000.
Mr Gair is entitled to interest for the period of publication to the date of judgment (1,152 days) at the rate of 2.5%, which comes to $7,980 (rounded down to the nearest dollar).

[9]

Assessment of Damages for Mr Turland

The video caused Mr Turland to be very angry and upset. He has been distressed about the impact that the video had on his wife. He is concerned that the video has denigrated his family name in the Shire.
The defamation of Mr Turland was serious in that it struck at the heart of his character and his conduct as an elected politician. The imputations convey that Mr Turland is a crook, is corrupt, has dishonestly used his position on the Council to influence development applications that he was interested in, that he has bribed the Mayor for the same purpose and that he has preferred his own interests to the interests of the Shire. The false allegations undermine his public service as an elected politician.
The video was seen by more than 600 people within the first day of it being uploaded. It is probable that it was seen by hundreds more, prior to YouTube blocking access to it. The evidence establishes that it was seen by people in the Shire, where Mr Turland's reputation was likely to suffer the most damage and where his family was well known. I am satisfied that the defendant intended the video to be seen by Mr Turland's constituents and that it was a targeted publication intended to cause damage to Mr Turland's reputation.
Mr Turland is also entitled to aggravated damages. The allegations in the video were known to the defendant to be untrue. The defendant has refused to apologise. The video was the start of a long running and relentless campaign by the defendant against Mr Turland. A disturbing feature of that campaign has been the defendant's approaches to Mr Turland's wife and his threatening behaviour towards her and the prosperity of her business in the Shire. The defendant's contact with Mr Turland's wife was unwanted and has caused her and Mr Turland considerable distress. The imputations were repeated on a large number of occasions to various people after the publication of the video and during the course of the proceedings. The defendant has repeatedly alleged that the imputations are true and that he has evidence to establish that. The defendant has also used the proceedings as a medium to repeat the imputations publicly. However, he has not provided any such evidence in these proceedings or at all and his conduct serves to aggravate the damage suffered by Mr Turland. The defendant has sent threatening and offensive emails and text messages to Mr Turland and his wife relating to the proceedings.
The appropriate award of damages is $120,000.
Mr Turland is entitled to interest for the period of publication to the date of judgment (1,152 days) at the rate of 2.5%, which comes to $9,468 (rounded down to the nearest dollar).

[11]

Orders

The orders I make are as follows: 1. Verdict and judgment for the first plaintiff in the sum of $107,980. 2. Verdict and judgment for the second plaintiff in the sum of $129,468. 3. The defendant be permanently restrained by himself, his servants or agents, from publishing or causing to be published the matter complained of, namely the video "The Strife and Crimes of Duncan Gair", or matters substantially to the same effect as such matter on the world wide web (including YouTube) or otherwise. 4. The defendant is permanently restrained from publishing on the world wide web or otherwise any matter of and concerning the plaintiffs to the same effect as the imputations contained in the Amended Statement of Claim and set out below: 1. The first plaintiff as the Mayor of the Wingecarribee Shire Council ("Council") was corrupt in that he misused his office as Mayor by dishonestly influencing the outcome of development application for his friends; 2. The first plaintiff as the Mayor of the Council was corrupt in that he received money from developers in return for dishonestly influencing the outcome of development applications; 3. The first plaintiff is a racketeer. 4. The second plaintiff is a crook. 5. The second plaintiff as an elected councillor of the Council was corrupt in that he misused his position as an elected councillor by dishonestly influencing the outcome of development applications. 6. The second plaintiff dishonestly used his position as elected councillor of the Council to be able to influence the outcome of development applications in which he had an interest; 7. The second plaintiff bribed the Mayor in order to obtain favourable outcomes for development applications; 8. The second plaintiff engaged in a conflict of interest through his position as an elected councillor by being able to influence development applications in which he had an interest. 1. The defendant take all reasonable steps to remove forthwith from the world wide web (including Facebook.com, southernhighlandsnsw.org and YouTube.com), all matter that he has published, posted or uploaded concerning the plaintiffs to the same effect as the imputations set out in order 4(a) to 4(h) above, including the YouTube video uploaded under the name "Worried Wingecarribeans" on 18 March 2019. (6) The defendant is to pay the plaintiffs' costs of the proceedings on an indemnity basis as agreed or assessed. (7) I publish my reasons.

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Parties

Cases Cited (8)

Cited By (1)