Louise O'Hara v Channel Seven Sydney Pty Ltd

District Court of NSW|2007-09-14|Before: Levine J

CITATION: Louise O'Hara v Channel Seven Sydney Pty Ltd [2007] NSWDC 181

DECISION: (1) Note that the parties agree that notwithstanding Schedule 4 Clause 2 of Defamation Act 2005, all four publications are to be dealt with under Defamation Act 1974; (2) The defendant is to provide a note to the plaintiff and the court by 4:00pm Monday 3 September outlining any proposed objections to imputations 10(d) and 10(e); (3) Imputations 7(b) and 8(b) will go to the jury; (4) Imputations 7(f), 8(k), 9(d) and 10(c) are struck out; (5) Plaintiff file and serve amended statement of claim in 7 days; (6) Defendant to notify of any objects to the statement of claim 7 days thereafter; (7) Matter stood over for directions to Friday 28 September 2007 at 9:30am.

LEGISLATION CITED: Defamation Act 1974 (NSW) Defamation Act 2005 (NSW)

Berkoff v Burchill and Anor [1996] 4 All ER 1008 Burton v Crowell Pub Co 82 F (2d) 154 (1936) Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564 Darbyshir v Daily Examiner Pty Ltd (29 August 1997) David Holmes v TCN Channel Nine Limited [2007] NSWDC 137 Donoghue v Hayes (1831) IR Ex Ch R265 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Entienne Pty Ltd v Festival City Broadcasters [2001] SASC 60 CASES CITED: Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 Falkenberg v Nationwide News Pty Ltd (Levine J, 16 December 1994) Hennessy v Lynch [2006] NSWDC 26 John Fairfax Publications Pty Limited v Blake; David Syme & Co Limited v Blake (2001) 53 NSWLR 541 Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 Mamdouh Habib v Nationwide News Pty Ltd (2006) 65 NSWLR 264 McDonald v The North Queensland Newspaper Company Limited [1997] 1 Qd R 62 McGuiness v J T Publishing Australia Pty Ltd [1999] NSWSC 471 Waterhouse v Hickie (Court of Appeal, 26 May 1995, unreported) Wild v John Fairfax Publications Pty Ltd (8 August 1997)

PARTIES: Louise O'Hara Channel Seven Sydney Pty Ltd

COUNSEL: Plaintiff: C J Dibb Defendant: T D F Hughes

SOLICITORS: Plaintiff: Carters Law Firm Defendant: Johnson Winter Slattery Lawyers

The plaintiff by way of statement of claim filed on 24 May 2007 seeks damages for defamation arising from four publications.

The matters complained of (from the Today Tonight show) are substantially similar. There are subtle differences. The first publication, made on 27 November 2001, which is a promotional segment for the second matter complained of, which was broadcasted the following night, 28 November 2001. The third matter complained of was published some time later on 3 February 2003, but contains some passing references to the first matter complained of (such as "remember Louise O'Hara"). The fourth matter complained of was published more than three years later, on 26 May 2006 but contains references to the earlier programs. Each of the matters complained of is set out in full in a schedule to this judgment.

The plaintiff pleads the following imputations as arising from each of the publications: "7. The first matter complained of, in its natural and ordinary meaning carried to an ordinary reasonable viewer the following imputations of and concerning the plaintiff, each of which was defamatory of her: (a) The plaintiff is a vexatious litigant; (b) The plaintiff is a nightmare neighbour; (c) The plaintiff is a person who has tormented the Prime Minister, John Howard, with complaints; (d) The plaintiff is a person who has made a large number of complaints which, because they have been trivial or ridiculous, have resulted in a waste of taxpayers and ratepayers money; (e) The plaintiff failed to pay a tradesman when she was obliged to do so; (f) The plaintiff is a ridiculous person.

The second matter complained of, in its natural and ordinary meaning carried to an ordinary reasonable viewer the following imputations of and concerning the plaintiff, each of which was defamatory of her: (a) The plaintiff is a vexatious litigant; (b) The plaintiff is a nightmare neighbour; (c) The plaintiff is a person who has targeted the Prime Minister, John Howard, with complaints; (d) The plaintiff is a person who has made large numbers of complaints to Council which, because they have been trivial or ridiculous, have resulted in unnecessary expense to ratepayers; (e) The plaintiff has failed to pay a tradesman, Matthew Young, when she was obliged to do so; (f) The plaintiff's conduct causes suffering to the whole neighbourhood; (g) The plaintiff made unjustified complaints about Mark Scanlon's restaurant to try to get it closed down; (h) The plaintiff made ludicrous complaints about the noise of flushing loos in a neighbouring hotel; (i) The plaintiff made ludicrous complaints about the noise made by opening poker machines in a neighbouring hotel; (j) The plaintiff made an unjustified attempt to prevent Ken Baxter from getting Council permission to renovate his home. (k) The plaintiff is a ridiculous person.

The third matter complained of, in its natural and ordinary meaning carried to an ordinary reasonable viewer the following imputations of and concerning the plaintiff, each of which was defamatory of her:

(a) The plaintiff is a person who has made a large number of complaints to Council which, because they have been trivial and ridiculous, have resulted in unnecessary expense to ratepayers; (b) The plaintiff has brought a large number of unjustified court cases against the Council, costing it large amounts of money; (c) The plaintiff is a vexatious litigant; (d) The plaintiff is a ridiculous person. 10. The fourth matter complained of, in its natural and ordinary meaning, was defamatory of the plaintiff:

The fourth matter complained of meant and was understood to mean:

(a) The plaintiff is a vexatious litigant; (b) The plaintiff has made 130 unjustified complaints to Council; (c) The plaintiff is a ridiculous person." A preliminary problem: The savings provisions

When the matter came before me, it was necessary to determine the manner in which the trial should proceed. Three of these publications occurred prior to the 1 July 2006, the date upon which the Defamation Act 2005 (NSW) ("the 2005 Act") comes into force. A preliminary issue which needed to be resolved was whether the first three proceedings should be conducted in accordance with the Defamation Act 1974 (NSW) ("the 1974 Act"), the 2005 Act or a combination of the two. This is because while the cause of action for the first three publications each accrue under the 1974 Act, while the fourth publication is published after the commencement for the 2005 Act in circumstances which fall outside the provisions of Schedule 4 - Savings, transitional and other provisions of the 2005 Act.

The provisions in Schedule 4 of the 2005 Act are as follows: Part 2 - Provisions consequent on enactment of this Act

(1) This Act applies to the publication of defamatory matter after the commencement of this Act, unless subclause (2) provides otherwise.

(2) The provisions of this Act (other than this clause) do not apply to a cause of action for the publication of defamatory matter that accrues after the commencement of this Act (the "post-commencement action") if:

(a) the post-commencement action is one of 2 or more causes of action in proceedings commenced by a plaintiff, and (b) each cause of action in the proceedings accrues because of the publication of the same, or substantially the same, matter on separate occasions (whether by the same defendant or another defendant), and (c) one or more of the other causes of action in the proceedings accrued before the commencement of this Act (a "pre-commencement action"), and (d) the post-commencement action accrued no later than 12 months after the date on which the earliest pre-commencement action in the proceedings accrued.

(3) The existing law of defamation continues to apply to the following causes of action in the same way as it would have applied to those causes of action had this Act not been enacted:

(a) any cause of action that accrued before the commencement of this Act, (b) any post-commencement action to which the other provisions of this Act do not apply because of subclause (2).

(4) In this clause, the "existing law of defamation" means the law (including all relevant statutory provisions and principles and rules of the general law) that applied in this jurisdiction to the determination of civil liability for the publication of defamatory matter immediately before the commencement of this Act.

It can be seen that the post commencement action referred to in paragraph 2(d) above accrued well after the 12 month period referred to. This is not an unusual problem; the same situation occurred in Hennessy v Lynch [2006] NSWDC 26. Counsel for the plaintiff in those proceedings submitted to me that it was commonsense for the 2005 Act to be applied to all action, as that was now the law. However, since the jury provisions in the 2005 Act are not retrospective (Mamdouh Habib v Nationwide News Pty Ltd (2006) 65 NSWLR 264) and there are substantial procedural differences, not least because the imputations are no longer the cause of action, I rejected that application and determined that the provisions of the 1974 Act should apply to all causes of action, even though the cause of action which accrued under the 2005 Act fell outside the period of time under the savings provisions. In Hennessy v Lynch, as in the present case, there was a high degree of similarity between each of the publications. This is a not uncommon feature of defamation actions, partly because of the technical nature of what constitutes publication and partly because where there is a serial defamation the plaintiff must sue individually on each cause of action other than in exceptional circumstances, for the reasons explained by Hunt J in Burrows v Knightley (1987) 10 NSWLR 651.

The second reason for this problem is that while the Defamation Act 1974 was amended in 2003 to reduce the limitation period from 6 years to 1 year, causes of action accruing prior to the amendments which were enacted on 19 February 2003 still has a 6 year limitation period. While it may be that some amendment to the savings provisions may be desirable, in practical terms it will only be in the case where there are publications between late 2001 and 19 February 2003 which are likely to continue to cause these kinds of problems.

In the present case, Counsel for the parties are experienced members of the defamation bar and they were able to resolve the problem by the plaintiff and defendant each consenting to an order that the provisions of the Defamation Act 1974 (NSW) apply to all four publications in these proceedings.

A further preliminary matter was that the defendant sought leave to amend to add two imputations to the fourth publication. These were as follows: (d) The plaintiff is one of Australia's greatest whingers; (e) The plaintiff is one of those most to blame for Councils wasting hundreds of thousands of dollars. The defendant was given until Monday 3 September to provide a note to the court outlining any proposed objections to these imputations. No such objections were made.It was agreed between the parties that if there were no such objection raised, I would then proceed to provide a judgment concerning the orders that I made on 31 August 2007 about the imputations which are the subject of challenge.

The nature of the objections falls within a narrow compass. Objection is taken to imputations 7(b) and 8(b) on the basis that the use of the term "nightmare neighbour" is imprecise and to imputations 7(f), 8(k), 9(d) and 10(c) ("The plaintiff is ridiculous") are rhetorical.

Imputation 7(b), 8(b) and the use of the words from the publication

The references in each of the publications are as follows: (a) First publication: "the neighbours from hell"; "John Howard's nightmare neighbour". (b) Second publication: "driving neighbours mad", "Her neighbours are her targets", "the neighbourhood is suffering", "driving her neighbours mad", "campaigns against neighbours", "drives the whole neighbourhood mad", "attempting to live with their nightmare neighbour".
In David Holmes v TCN Channel Nine Limited [2007] NSWDC 137 I considered a similar application in relation to a challenge to a very similar publication, where A Current Affair program asserted that the plaintiff made life for tenants at a caravan park "a living hell". I noted that the Court of Appeal has indicated that as long as the use of exact words does not lead to any obscurity (Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 at [29] per McColl JA) such pleadings are permissible. Similarly in John Fairfax Publications Pty Limited v Blake; David Syme & Co Limited v Blake (2001) 53 NSWLR 541, Hodgson JA at [52] - [54] held that there were instances where a pleader could use the words of the matter complained of. Each case must turn on its own facts and it is not an inflexible rule that the words of the matter complained of can never be used.

The first matter complained of is extremely short. It is a good example of the "X is disgusting" analogy explained by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 as being the only way to encapsulate the defamatory sting of a pithy publication. The second publication offers a variety of descriptions about the plaintiff's conduct towards her neighbours, and in only one of these does the phrase "nightmare neighbour" appears. The test of what must be established should the defendant elects to justify such an imputation is straightforward; all that the defendant needs to do is to prove that the events described in the matter complained of, or events of a similar nature, occurred.

It was for these reasons that I rejected the challenge to imputations 7(b) and 8(b).

Imputations 7(f), 8(k), 9(d) and 10(c) and "ridiculous light" imputations

In the course of submissions as to what was meant by the imputation that "the plaintiff is ridiculous", Mr Dibb submitted that this is a "ridiculous light" publication that holds the plaintiff up to ridicule.

While the traditional formula is "hatred, ridicule and contempt", the concept of imputations which hold a person up to ridicule did not receive much judicial attention until Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443. The matter complained of published a photograph of the plaintiff, a footballer, in which it was possible to see his penis. At 449, Hunt J considered an imputation that the plaintiff was a person whose genitals had been exposed to the readers of the defendant's magazine was an imputation capable of defaming the plaintiff. This is because the publication of this imputation was capable of subjecting the entirely blameless plaintiff to a more than trivial degree of ridicule. Hunt J traced the history of imputations arising from ridicules to Burton v Crowell Pub Co 82 F (2d) 154 (1936), which his Honour noted "continues to be cited by the text writers as authority for defamation, by the exposure of the plaintiff to ridicule".

The identical situation occurred in McDonald v The North Queensland Newspaper Company Limited [1997] 1 Qd R 62. Again, a photograph was published of the plaintiff, a footballer, passing the football while being tackled and in each of the photographs shown part of his penis was visible outside the right leg of his shorts. The court noted it was to be assumed that publication of the photographs made it likely that the plaintiff would be ridicules by other persons; the issues was, on that assumption, the photographs were "defamatory matter". In so finding, the Queensland Court of Appeal specifically rejected a submission that the Defamation Act 1974 was materially different from both the common law and the Defamation Act 1889 (Qld), which codified defamation law in Queensland. The court noted that whilst the Defamation Act 1974 had made significant changes to common law principles, none were material when determining whether an imputation, including an imputation of ridicule, arose (at 65).

In 1996 the Court of Appeal in England carefully reviewed the history of ridicule in Berkoff v Burchill and Anor [1996] 4 All ER 1008. The plaintiff was an actor and he sued over articles which gave rise to the imputation that he was "hideously ugly". The Court of Appeal held by a majority that while insults which did not diminish a person's standing amongst other person did not found an action for libel or slander, words were capable of being defamatory of a plaintiff if they held him up to contempt, scorn or ridicule even if they neither imputed disgraceful conduct to him nor asserted some lack of skill or efficiency in the conduct of his trade or business or professional activity (business libel). Neill LJ, describing this as "a far from easy case" considered that ultimately it was a question for the jury. Phillips LJ concurred, noting that there was difficulties with the matter complained of in this case because the law of defamation protects reputation, and reputation is not generally dependant upon physical appearance. However, there were many ways that indicating a person is "hideously ugly" and whether this had exposed the plaintiff to ridicule to the extent that his reputation had been damaged must be answered by the jury. Millet LJ, in a strong dissent, noted that "[m]any a true word is spoken in jest. Many a false one too" (at 1018) which line has become the most often quoted from this decision, a somewhat surprising result since Millet LJ was handing down a strong dissent in which he admitted to treating the plaintiff's claim with "unjudicial levity" because he founded "impossible to take it seriously". He dismissed the proceedings as being frivolous as the defendant's newspaper article and considered the time of the court should not be taken up with either of them.

The point about the article saying Mr Berkoff, a well-known stage actor, was "hideously ugly", was that actors are one of the few professions who make a living from their appearance. However, this was not explored in this judgment.

The principles enunciated by the Court of Appeal were examined in a series of decisions by the defamation list judge in the Supreme Court of New South Wales Levine J.

In Wild v John Fairfax Publications Pty Ltd (8 August 1997) the plaintiff brought proceedings over a photograph of him standing in front of a billboard which had two scantily clad young women. The words superimposed upon the photograph were "they like to watch". The imputations pleaded were that the plaintiff was a dirty old man, a voyeur, a sexist and the kind of low individual who would pose in front of a billboard of scantily clad young girls for the purpose of having his photograph in the Sydney Morning Herald.

Levine J noted that the matter complained of, being a photograph, does not lend itself easily to verbal description, and in this regard was similar to the Ettingshausen photograph. Noting that the article for which the photograph was an illustration was a serious review of media stereotypes of femininity, Levine J dismissed the defendant's contention that the photograph was more than humorous and that even if it were, "if a man in jest conveys a serious imputation he jests at his peril" (adopting the statement of (Smith B in Donoghue v Hayes (1831) IR Ex Ch R265 at 266). His Honour noted the essence of the plaintiff's submission that the publication imputed conduct which went beyond mere humour but was capable of imputing actual conditions on the part of the plaintiff that would render him liable to hatred, ridicule or contempt.

A similar conclusion was reached by his Honour in Darbyshir v Daily Examiner Pty Ltd (29 August 1997). The plaintiff, a solicitor, placed an advertisement in the Daily Examiner for her legal office. Someone in the Daily Examiner added a cartoon figure of a vulture to the advertisement. The plaintiff pleaded imputations that as a lawyer the plaintiff is a vulture, predatory, unprincipled and someone whom consumers should avoid. Levine J noted at [4] that the argument that the matter complained of could only be taken as a joke or merely as humorous could only succeed if the court could be persuade that the joke was benign and that the matter complained of was otherwise incapable of imputing some disparagement of the plaintiff as arising from the joke. Levine J at first noted that he did not know what to make of such a publication and that it was preeminently a question for the jury. The case was, his Honour considered, in the same category as Wild v John Fairfax Publications Pty Ltd, namely an "extraordinarily unusual" case. However, given some of the more recent cases about business libel, the defamatory meaning of this case may be seen somewhat more clearly today.

In McGuiness v J T Publishing Australia Pty Ltd [1999] NSWSC 471, the plaintiff sued over a cartoon which showed him sitting under a tree looking distressed. The photograph had been taken after the plaintiff, a policeman, had had to shoot dead a man who had taken hostages. The original photograph of the plaintiff sitting under the tree looking distressed had received wide publicity. However, the defendants published the same picture under the headline "COP THIS" and in a "bubble" showed the plaintiff reflecting that it had been fantastic to shoot someone dead and that next time he would used both barrels. Imputations are pleaded that the plaintiff was a hypocrite, in that he falsely claimed to be distressed by his role in a fatal police wounding when in fact he had enjoyed killing a man; that he was was a danger to the community in that he was looking forward to his next opportunity to kill someone; and that he was a sadistic killer. Levine J accepted the submissions of the plaintiff that the sting of the libel was that the plaintiff was not what he pretended to be, in that the policeman was shown as a hyprocrite for saying that he had not enjoyed emptying his service revolver into another human being. Levine J rejected a submission that the defendant's publication was nearly cruel or insensitive, noting that it did not necessarily followed that it was not defamatory. Two of the imputations were struck out as not differing in substance but the matter was one where the imputations should go to the jury.

However, where it was clear from the context that the ordinary reasonable reader would understand from reading the whole of the material that none of its contents were to be taken seriously no imputations could be conveyed. Examples of this are Falkenberg v Nationwide News Pty Ltd (Levine J, 16 December 1994) where the plaintiff sued over a "Far Side" cartoon which showed the devil giving his telephone number, coincidentally the same telephone number of the plaintiff's, and Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564 where Levine J held that a satirical article imputing the plaintiff's lack of success as a professional football coach to his inadequate upbringing and his psychological harm and mental problems. The matter complained of asserted that South Sydney's poor showing in the 2002 NRL season may be linked to the coach being put in child care as a toddler, and quoted an unnamed psychologist as saying that there could be a connection. A subheading "Coleman's mother blamed for Souths' disastrous year" repeated these assertions in relation to the plaintiff's mother's decision to put the plaintiff into child care as a toddler. Levine J noted at [25] that as a matter of impression, neither the plaintiff nor his mother (who was the second plaintiff) could point to imputations which an ordinary reasonable reader to convey anything disparaging.

In Entienne Pty Ltd v Festival City Broadcasters [2001] SASC 60 the Full Court of the Supreme Court of South Australia considered and approved these decisions.

I have set out these decisions in some detail because the factual basis giving rise to the imputations in each of the "ridiculous light" publications needs to be considered carefully.

The following can be distilled from these judgments: (a) In each of them, an imputation of an act or condition for which the plaintiff was likely to be ridiculed was set out. Some of them are self-evidently grossly defamatory, such as the imputations about the police constable who pretended to be distressed when in fact he enjoyed killing a member of the public and next time plan to use both barrels, while others (such as being prepared to have a photograph showing ones' penis published) are essentially jury questions. None of the imputations merely asserted that the plaintiff had been held up to ridicule. (b) Some publications are a cartoon or intended as a joke, The fact that some imputations may impute conduct which is unlikely to cause ordinary right thinking members of the public to think less of the plaintiff is a matter that can be dealt with in accordance with the principles enunciated by Hutley JA in Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669. When dealing with such imputations, or imputations where some members of the community may not disapprove of conducts such as being an abortionist or a communist, these matters are, for the reasons explained by Hutley JA, essentially matters for community standards and therefore for the jury to decide.
In the present case, none of these principles apply. The plaintiff has firstly not identified any act or condition which makes her look ridiculous. Secondly, while the publication is highly critical of the plaintiff, it does not contain any material of any significantly joking nature. Thirdly, it cannot be said that the conduct imputed to the plaintiff is conduct which places her in a "ridiculous light". She is portrayed as, and called, "a vexatious litigant".

It is for this reason that the defendant's submission that this imputation is rhetorical is correct. A rhetorical imputation is one which "does not seem to add anything" and is "an unnecessary pleader's flourish": Waterhouse v Hickie(1995) Aust Torts Reports 81-347 per Priestley JA.

Accordingly, even if the matters complained of were capable of portraying the plaintiff in a ridiculous light, an imputation that "the plaintiff is ridiculous" would not sufficiently encapsulate the act or condition and each of imputations 7(f), 8(k), 9(d) and 10(c) has been struck out.

(1) Note that the parties agree that notwithstanding Schedule 4 Clause 2 of Defamation Act 2005, all four publications are to be dealt with under Defamation Act 1974. (2) The defendant is to provide a note to the plaintiff and the court by 4:00pm Monday 3 September outlining any proposed objections to imputations 10(d) and 10(e). (3) Imputations 7(b) and 8(b) will go to the jury. (4) Imputations 7(f), 8(k), 9(d) and 10(c) are struck out. (5) Plaintiff file and serve amended statement of claim in 7 days. (6) Defendant to notify of any objects to the statement of claim 7 days thereafter. (7) Matter stood over for directions to Friday 28 September 2007 at 9:30am.

Channel 7 Promo 27 November 2001 (end of Today Tonight ) [Naomi Robson + my house + "Street Fight" + L O'Hara] Naomi Robson "Now to tomorrow night and proof that no matter how good the neighbourhood you can still have the neighbours from hell. In fact our Prime Minister John Howard is experiencing the torment first hand and here's a preview". [Channel 7 reporter Liz Kefford + L O'Hara in Martin Place on my way to LEC] Channel 7 "The Council and the neighbours describe you as a vexatious litigant Have you got anything to say about that" [Baxter] Baxter "She's a persistent rash that you want to scratch and itch at and just won't go away". [Scanlon restaurant owner] Scanlon "She's just a habitual complainer, a person who attacks others'. [Channel 7 reporter Liz Kefford followed L O'Hara into Macquarie Street on my way to LEC] Channel 7 "Louise you owe a tradesman $1600" [Mat Young] Mat Young "Its very unusual. It doesn't happen very often to us" [Mayor] Mayor "Wasting taxpayers and ratepayers money" [L O'Hara getting into lift in LEC building] Channel 7 "Haven't you got anything to say Louise" Naomi Robson "John Howard's nightmare neighbour. That's tomorrow night so I hope you can join me for that and until then have a great evening. Please take care and good night".

Channel 7 broadcast 28 November 2001 ["street fight" + L O'Hara + my house] Channel 7 "complaining and driving neighbours mad. There is no one better than the woman you're about to meet. For the past seven years Louise O'Hara has been on the warpath. Her neighbours are her targets and among them Prime Minister John Howard". [L O'Hara in Martin Place] Liz Kefford "Louise I'm Liz Kefford from Today Tonight. I was wondering if I could ask some questions please". [Baxter] Baxter "She's I think just almost like a sort of a persistent rash that you're wanting to scratch and itch at." [Mayor] Mayor "It's beyond me why someone behaves like this". [Mark Scanlon proprietor of restaurant] Scanlon "The neighbourhood is suffering because of this one individual" [L O'Hara in street with dreadful expression] Channel 7 "Like the Prime Minister Louise O'Hara lives in the exclusive Sydney water front suburb of Kirribilli". [Prime Minister] Channel 7 "She owns two houses worth more than a million dollars and around here she's just as famous as John Howard but for all the wrong reasons". [L O'Hara on my stairs date 27 11 2001] Channel 7 "She's driving her neighbours made." [Scanlon] Scanlon "There's always been trouble around her. I've experienced in seven years off and one some difficulties with this resident". [Victim 1] [inside restaurant] Channel 7 "Victim number 1 restauranteur Mark Scanlon has had many dealings with Ms O'Hara. She has repeatedly tried to have his up market eatery closed down". [Scanlon] Scanlon "She used to exaggerate and make vexatious claims that ah my patrons were um running amok inside my restaurant".

Liz Kefford "The Council and the neighbours described you as a vexatious litigant. Have you got anything to say about that?"

Channel 7 "The evidence of her constant campaigns against neighbours and businesses lies piled up to the ceiling in her front room"

"As you can see her interest in other people's affairs has been a life time commitment."

Baxter "It's what drives the whole neighbourhood mad."

Channel 7 "Victim number two Ken Baxter lives around the corner from Louise O'Hara".

Channel 7 "Despite his property being a street away from where she lives she tried to stop him renovating the back of his home"

Baxter "She's lodged objections to basically every development that's been taken place round here".

Scanlon "I've seen her habitually complain to Council and all the time she lives in a run down property she won't make good"

[my gutter, my house] Channel 7 "The situation is so bad that even the local hotel situated behind her home has had numerous complaints against it"

Channel 7 "It may sound ludicrous but Louise O'Hara has objected to the noise of flushing toilets, people walking up and down the stairs, computers printing and opening the doors of poker machines to collect money at the end of the night".

Channel 7 "Victim number 3 Manager Paul Watson is at his wit's end".

Paul Watson "Pubs don't please everybody but we're here for the community and we try to do that. We try to make it a fun environment for people to come and have a good time."

Mayor "The Council's fairly desperate and I know the community around her are desperate".

Channel 7 "Residents and business have been attempting to live with their nightmare neighbour but what irks them and the local Council is the derelict and dangerous state of her own home and in particular her roof which she refuses to repair."

Baxter "The tiles were there, they were left run, then the Council took them back again, then they were put back again and then No Stopping signs were put up. I mean you can only describe it as sort of Alice in Wonderland".

Mayor "I would describe her as a vexatious litigant".

Channel 7 "Victim Number 4 is North Sydney Mayor Genia McCaffery and she's had an earful of this troublesome ratepayer.

For over five years her Council has tried to get Louise O'Hara to fix the property."

"There's been numerous Court hearings which have cost the Council many tens of thousands of dollars".

Mayor "We issue orders. Um She doesn't comply with the orders. We then issue fines. At that point we end up back in Court. She pleads leniency from the Court. The Court grants her extension. The extension runs out. We issue orders and the whole process is repeated again".

[L O'Hara + Liz Kefford in Martin Place on way to LEC]

It's been in an state of appalling disrepair from months and months and months".

[Liz Kefford follows L O'Hara into Macquarie Street]

Liz Kefford "Have you got anything to say about that Louise".

Matthew Young "I think I've given up on the situation to tell you the truth".

Channel 7 "Victim number 5. Roofing contractor Matt Young had an agreement with Louise O'Hara to do some guttering work at the property. After buying the materials he's been left high and dry".

Matthew Young "I'm out of pocket $1600 and even if she did call me I don't think I'd want to deal with somebody like that".

Channel 7 "When Today Tonight finally caught up with her it was appropriately outside Court."

Channel 7 "Where she's been having her say yet again. But to us not a word.

Lousie why won't you tell us your side of the story?

Naomi Robson "She's a woman on a mission. Liz Kefford reporting there"

Zammit "My missus done the complaining I don't know My missus used to complain I never used to ring up the Council"

Zammit "But she was complaining about the same things over and over and over and over again"

Naomi Robson "Neighbours who complain and complain"

Vic Hale "They even complain about me starting me car".

Naomi Robson "The most amazing cases forcing residents to move and businesses to shut down.

[also "radical plan to take prostitutes off the street" etc]

[Picture of North Sydney Council Mayor + "Driven Mad" + my house in the background + Naomi Robson]

Naomi Robson "But first tonight voices of discontent in the suburbs, and these voices can go on and on.

They've become known around Australia as serial complainants and their whinges are costing taxpayers a fortune.

Vic Hale "Yeah it is unbelievable. They drive you mad."

Zammit "Vic Hale is the biggest actor. I don't know how come he hasn't won an oscar yet".

Vic Hale "They even complain about me starting me car".

Zammit "This is not his land. We are still on Council land. His land starts from this brick wall. Here look".

Zammit "Even this car is parked illegally. It's parked on the strip".

Channel 7 "Every neighbourhood has them. People who just can't stop complaining, and they're costing ratepayers millions of dollars".

Channel 7 "The cost of some neighbourhood disputes is almost immeasurable. Councils can spend more than $20000 trying to resolve one single dispute.

A Sydney council estimate a dispute cost them more than half a million dollars in legal fees for one year alone".

Mayor "There will be some people who abuse the system".

Channel 7 "Ratepayers have every right to complain says North Sydney's Mayor Genia McCaffery. Afterall we're a democracy, but it's serial unsatisfied complainers who waste time and money".

Channel 7 "The Council and the neighbours describe you as a vexatious litigant. Have you got anything to say about that?"

Channel 7 "Remember Louise O'Hara. Well over the years she's continually badgered the Council and her neighbours."

Channel 7 "From complaints about the noise of loos flushing in the pub down the road to garbage trucks that wake her up."

Mayor "She's certainly driven several members of staff round the twist to be honest and she's clearly cost the Council quite a lot of money in terms of time and staff and legal cases".

Channel 7 "In yet another Court appearance a Judge said

"I am not satisfied that Ms O'Hara can ever be convinced she's being dealt with fairly and I can think of no other case where the Court has been so indulgent"."

[L O'Hara walking up her front stairs and in Broughton Street]

Harry Woods "Well I think they can make the system work in their favour.

We've had instances of what is commonly called a vexatious litigant".

Channel 7 "New South Wales Minister for Local Government Harry Woods says"

Harry Woods "Unfortunately there are a small minority of ratepayers who constantly work the system".

Harry Woods "People are taking Councils or Governments to Court. They seem to know the processes. It doesn't cost them a lot of money but it costs the Government and inevitably the taxpayer a lot of money".

Channel 7 "The solution? Well you can cross your fingers and hope eventually these trouble makers will go away".

Channel 7 "But some Councils aren't taking the chance and have introduced new policies to deal with the problem".

Channel 7 "But if Council can't find anything Mr Zammit why do you still keep complaining?"

Zammit "Because they can't find anything it's not because it don't exist.

Zammit "No". Fourth matter complained of Program Third Segment on 26 May 2006 ["Biggest whingers"]

Channel 7 Naomi Robson "Now to the neighbours who could easily claim the title of Australia's greatest whingers, the people you are about to meet have racked up hundreds upon hundreds of complaints between them.

In fact they seem to have turned complaining into something of a sport.

And despite years of bickering with their neighbours or local Councils nothing it seems will ever make them happy.

Zammit "You can see where the rope is. Where he used to put the clothes".

Jason "Wyong Council don't want to know nothing about me"

Mayor "Its got to be hundreds of thousands of dollars across Councils across the state".

Vexatious complainants, every neighbourhood has them."

[Zammit speaking, then Jason at Wyong Shire Council building]

"Their whines and whinging costs you and your Councils hundreds and thousands in wasted resources".

[L O'Hara in local street and going up front steps]

Channel 7 "Tonight you are about to meet three of the worst".

Zammit "The same things over and over and over and over again".

Channel 7 "There's Emmanuel Zammit 72 complaints to Council".

[L O'Hara in Martin Place going to Land and Environment Court]

Channel 7 to L O'Hara "The Council and the neighbours describe you as a vexatious litigant.

Channel 7 "Then the queen of complainants, Louise O'Hara

Channel 7 "and then the man on the van Jason Garvey

Jason "Is this another cover up. Yous (sic) got something to hide"

[Jason continues speaking in background on screen at Wyong Shire Council]

"Please be a man for once in your life and come out.

No you haven't got the guts to come out to face me face to face.

Channel 7 "Jason is his local Council's enemy No. 1.

Never missing an opportunity to vent his anger at Council's staff.

[Council staff], [Jason at Wyong Shire Council building]

Channel 7 "If he looks familiar you might remember him from our story three years ago when again his mission was to make life impossible for neighbours and his Council".

[video cassette loaded with date 5:45PM 24 AUG 2000 i.e. six years ago]

Jason "I want to prove that I have been given the wrong end of the stick".

Channel 7 "Back then this makeshift McGyver was using an arsenal of home made gadgets to catch out his neighbour, a truck operator. His biggest weapon this home made 24 hour surveillance camera he set up on his roof".

Jason "No I'm not a nuisance, no. You just give me what I'm entitled to, and you take what you're entitled to".

Channel 7 "Jason's house is smack dab in the middle of an industrial area and it's been zoned that way for the past 30 years. Yet he constantly complains to Council about drainage and noise issues."

"And that's why he's been complaining for 5 years. 119 separate times".

Vic Hale "Yeah, it is unbelievable. They drive you mad".

Zammit "Vic Hale is the biggest actor. I don't know how come he hasn't won an Oscar yet".

Channel 7 "Then there's the case of Emmanuel Zammit. He can't remember how many times he and his wife have complained to his Council about fellow neighbour Vic Hale".

Zammit continues in background "… because they can't find anything

It's not because it don't exist. It's because they don't want to see it

Vic Hale "They even complain about me starting me car".

Zammit "We are still on Council land. His land starts from this brick wall. Here look".

Zammit "Even this car is parked illegally. Its parked on the strip".

Channel 7 "Emmanuel has been whinging about his neighbour for years".

Vic Hale "Lunatics. To be able to do what they are doing and carry on like this is absolutely ridiculous".

Zammit [showing book of photos] "I sent them in, I have them to the Council. They took them and I never got a response about them".

[Zammit then continues in background, but it seems inaudible]

Channel 7 "The Council has had to process over 7 years of complaints from Emmanuel. In each case they found nothing".

Vic Hale "The money that it's costing the Council to come down here on all these times of ratepayers money is absolutely ludicrous, just for these one people".

Channel 7 to Zammit "Have you made 72 complaints all up?"

Zammit "My missus done the complaining. I don't know. My missus used to complain, I never used to ring up the Council".

Zammit "but she was complaining about the same things over and over and over and over again".

Channel 7 "Over and over and over indeed. Council spending up to $20000 to resolve one single dispute".

Mayor "The problem for Councils is that they tie up an incredible amount of staff time and if they involve legal cases as well legal fees

and that money of course is paid for by the community".

[North Sydney Mayor / Local Government Association President]

Channel 7 "Local Government Association's President Genia McCaffery says complainants like Zammit can cost local councils up to $500000 in legal fees a year".

Mayor "It is important that a Council um is responsive to complaints, listens to complaints and I know in my own um case that ah often you listen to complaints and you get some real solutions from it. So its how you balance that".

Channel 7 to L O'Hara "The Council and the neighbours describe you as a vexatious litigant. Have you got anything to say about that?"

[L O'Hara in Martin Place on the way to LEC hearing]

Channel 7 "Then of course there's the Queen of complainants Louise O'Hara".

"Over the years she's flooded her Council with every complaint you can think of"

Mayor "It does wear down our staff. And when they get complaints that in fact are unsolvable um it's very debilitating and"

Naomi Robson "And if you have been the victim of a serial complainant we'd like to hear your story, so please leave the details on our website at yahoo7.com.au/todaytonight or just give us a call".

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Defamation Act 1974(NSW)

Defamation Act 1889(Qld)

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