Megna v Marshall - [2010] NSWSC 686 - NSWSC 2008 case summary — Zoe

NSWNSWSC

Megna v Marshall

[2010] NSWSC 686

Supreme Court of NSW|2008-02-18|Before: Simpson J

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Court

Supreme Court of NSW

Decision date

2008-02-18

Before

Simpson J

Source

Original judgment source is linked above.

Judgment (341 paragraphs)

[1]

Background 24 The claims arise out of a series of at least 28 publications that circulated in the local government area ("the Drummoyne Municipality") of the Drummoyne Council between March 1998 and September 2003. Twenty-six bore the heading "DRUMMOYNE COUNCIL RATEPAYERS ASSOCIATION" ("DCRA"), and gave a post office box number and identified themselves as "circulars", giving the month and year of publication. These publications bore, at the top, under the heading, what may be termed a slogan: "Investigating decision making by Drummoyne Council and its Councillors". All of these were dated between February 1998 and November 2000. Two of the publications, dated, respectively, May 2003 and August/September 2003, were entitled "Community View". These did not give a post office address, but invited comments to "Theresa Green" at an Internet address. Although the publications had the format of, and could easily be called, newsletters, it will be convenient to adopt the terminology given to them by their authors. I will continue to refer to them as circulars. 25 The DCRA circulars made frequent reference to the "Drummoyne Municipality Residents' Association" ("the DMRA"). The two publications entitled "Community View" were not attributed to the DCRA. 26 Of these publications, 17 are the subject of these proceedings. All of the circulars dealt with a number of different topics. Each topic was identified by a heading, in bold, upper case, print, underlined. By way of illustration, the circular dated February 1998 (not the subject of a specific claim), had the headings "COUNCIL FARCE", "MAYOR CAUGHT LYING? (Again)", "ANOTHER FARCE" and "REMEMBER". 27 Although there were gaps, sometimes of considerable length, in the publications, during the period of currency, the circulars were issued, on the whole, on a monthly basis; sometimes more than one was published in any given month. 28 In general, the content of the circular concerned a range of topics and subject areas, directed to the affairs of the Drummoyne Council, its councillors, and its administrative staff. Recurrent themes were the policies of Mr Megna, who was throughout the period of publication a Councillor, and who was, from time to time, Mayor, and of the performance of Mr Lloyd, who was, throughout the period, the General Manager of the Council, and of other staff and Council committees. It will be necessary, in due course, to say something about the language used in, and the tone of, the contents of the circulars. Some idea of that can be gauged from the headings I have quoted from the February 1998 circular. That was representative of the entire series. Frequently, the publications can properly be characterised as an attack upon either Mr Megna or Mr Lloyd. It is not going too far to describe them as ferocious. "Vituperative" is another apt description. 29 One thing that does emerge from a careful, chronological reading of the circulars is that, as time went on, they became increasingly shrill, vitriolic, and abusive. As that happened, their content of anything that could be called a "communication" (either of fact, or of opinion) correspondingly diminished. Some of the publications can hardly be called communications at all - they are properly characterised as abuse. 30 Although the evidence is not entirely clear, it is a fair inference that the circulars were delivered to residents and ratepayers of the Drummoyne municipality. 31 I will refer to the Drummoyne Council as "the Council"; and, for convenience of reference, to the parties by name. 32 Obviously, it would be far too cumbersome to attempt to include the content of all of the circulars and all of the imputations in the body of this judgment. In order to keep this judgment within manageable limits, I will append them in a schedule to the judgment and, in the body of the judgment, outline their contents only to the extent necessary to explain my reasoning. It is necessary to do so because the nature of the defence raised calls for separate consideration of the circumstances of each publication, and, indeed, the circumstances of publication of each imputation, as well as of the content of each circular, each item from which the imputations are derived, and each imputation. 33 The evidence establishes that, over the relevant period, there were a number of issues on which it could fairly be said that the performance of the Council (through its administrative staff) was less than optimal. These were the subject of trenchant comment in the circulars. They were also explored in considerable depth in the cross-examination of Mr Megna and Mr Lloyd. The evidence does not establish that these were typical, or representative of the Council's performance, nor that other, comparable, councils did not have similar lapses in administration. 34 I will make reference to some of these issues at a later point in this judgment.

[2]

The parties 35 The first plaintiff is Michael Megna. He was for many years a councillor of the Council, having first been elected in 1987. Between 1990 and 1993, and again between 1996 and 1999, he held the office of Mayor. He was endorsed by the Liberal Party. 36 In December 2000 the Council amalgamated with the Concord Council to form the City of Canada Bay Council. Mr Megna was elected also to that Council and, as at 2008, he held office therein. 37 The second plaintiff is Russell Lloyd. From November 1993 to November 2000 he held office as General Manager of the Council. He has had a career in local government since 1969. 38 The first defendant is David Marshall. He was at relevant times a councillor of the Council, elected as an Independent. He has held office as Mayor. 39 The second defendant is Richard Tory. He did not, so far as the evidence goes, hold office in the Council, although the evidence does show that he took an active interest in its affairs. The evidence discloses little about him. I am satisfied that he was a resident of the municipality and a ratepayer of the Council. 40 I have not the slightest doubt that Mr Marshall was a difficult, belligerent, and pugnacious member of Council, antagonistic to both plaintiffs. He held his views strongly, and expressed them forcefully, vigorously, and even (more often than not) intemperately. He tolerated no opposition, and reacted fiercely to anybody who behaved in a way that he perceived thwarted him in the path he considered appropriate. He saw himself (rightly or wrongly) as well informed in the issues relevant to local government, and in the relevant legislation. 41 He was undoubtedly a thorn in the side of anybody he perceived as standing in his way, and, especially, in the sides of those involved in the management and administration of the Council. In particular, he was a political opponent of Mr Megna and he appears to have regarded Mr Lloyd as an ally of Mr Megna's. The hostility he harboured towards each plaintiff may be gleaned from the content of the circulars, although, as I have said, the evidence does not establish that he was responsible for the draftmanship. 42 I have no doubt that the manner in which he chose to conduct himself in his role as councillor was aggressive and openly hostile. 43 At times, the proceedings took on the appearance of a full-scale investigation of the affairs of the Council over the relevant years (1998-2003), and the conduct, and the competing positions in respect of various issues, of those involved, including councillors and administrative staff (Mr Megna and Mr Lloyd in particular). 44 It is important to maintain focus. I am not engaged in an investigation of the propriety of the conduct of any Councillor (with the partial exception of Mr Marshall), nor of Mr Megna as Mayor, nor of Mr Lloyd as General Manager. Nor am I concerned with the reasonableness (or otherwise) of the views expressed in the circulars. 45 I stress that it is not my function to make determinations on the relative merits of any of the municipality issues explored in the circulars. The evidence was adduced for the purpose of establishing that the occasions on which Mr Marshall and Mr Tory published the circulars attracted the protection of qualified privilege at common law. That could be done by showing that they (each of them individually) had an interest in communicating with the recipients (that is, residents and ratepayers of the Drummoyne municipality) of the circulars on the subject matter of the circulars, and that those residents and ratepayers had a corresponding interest in receiving that information. I will explore this in more detail below.

[7]

● (only if both occasion and relevance are established), determination whether, notwithstanding that there is an occasion of qualified privilege, and that the communication is sufficiently relevant or germane to that occasion, the occasion was misused, or used for an ulterior or extraneous purpose, such as to give rise to a finding that the publisher was actuated by express malice . 51 The distinction between occasion and relevance on the one hand, and malice on the other, may be of considerable significance: the onus lies upon the defendant to establish privilege; the onus lies upon the plaintiff to establish malice. At least in relation to proceedings brought under the Defamation Act 1974 (prior to the amendments made in 1995), whether a publication was made under qualified privilege was a matter for the judge to decide: whether it was actuated by malice was a jury question. 52 That these are the three relevant questions, or steps in the process, appears to me to emerge from the authorities examined below. 53 As will be seen, in my opinion, this case raises a number of difficult issues about both the principles that govern, and the application of, the law of qualified privilege at common law. In two respects, the circumstances of this case push the defence of qualified privilege to its outermost boundaries. Those matters are: (i) the vitriolic tone and language of at least some of the publications; and (ii) the extent of publication. It has therefore been appropriate to examine, in some detail, the jurisprudence on the subject. 54 In any discussion of qualified privilege at common law, the starting point is, as always, Toogood v Spyring at 193. There the principle was stated as follows: "In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned . In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits ." (italics added) 55 The language of that passage has been adopted and repeated on numerous occasions. 56 In another famous passage, in Adam v Ward at 334, Lord Atkinson said: "It was not disputed … that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential."

[9]

The italicised words have particular relevance in this case. 59 It will be observed that, in Toogood v Spyring, what was said to be protected was the "communication". A communication may be the provision of factual information, or it may be the expression of an opinion, for example, as to the suitability of a candidate for a particular position of employment. 60 If a communication meets the Toogood v Spyring test - ie it is made in the discharge of a duty or in the conduct of the affairs of the maker, in matters where his (or her) interest is concerned - then, it is said, it is made on an occasion of qualified privilege. That, of itself, is insufficient to avail the publisher. A separate question is relevance to the occasion. A defamatory communication, even if made on a privileged occasion, is not protected unless it is shown to be sufficiently relevant to the occasion. I consider below the question of relevance. 61 It is convenient here to mention another matter to which it will be necessary to return. Even where a communication is published on an occasion of qualified privilege, and is relevant to that occasion, it may fail to secure the protection of the privilege. That will occur where the privileged occasion has been used for a purpose other than that for which the privilege is conferred. In those circumstances, the publisher is said to have been actuated by express malice, and the privilege is lost. 62 Malice is a separate issue. It is convenient to mention it here because it frequently happens, in the discussions in the authorities, that the two issues are considered together. 63 In Moit v Bristow [2005] NSWCA 322, McColl JA, with whom Beazley JA and Campbell AJA (as his Honour then was) said: "78 In order to determine whether a publication was made on an occasion of qualified privilege, the court examines all the circumstances of the case. These include the nature of the defamatory communication, the status or position of the publisher, the number of recipients and the nature of any interest they had in receiving it, and the time, place and manner of, and reason for, the publication …

[10]

79 In order to establish a publication was made on an occasion of qualified privilege, the publisher must call evidence which establishes 'that both the givers and the receivers of the defamatory information had a special and reciprocal interest in its subject matter, of such a kind that it was desirable as a matter of public policy, in the general interests of the whole community of New South Wales, that it should be made with impunity, notwithstanding that it was defamatory of a third party': Andreyevich v Kosovich (1947) 47 SR (NSW) 357 at 363 per Jordan CJ; applied in Bashford [[2004] HCA 5] by McHugh J at [55]; by Gummow J at [140]." 64 In para [78], her Honour was echoing, although not directly quoting from, Baird v Wallace-James (1916) 85 LJPC 193 at 198; (1916) SC (HL) 158 at 163, 164, itself quoted in Mowlds v Fergusson [1940] HCA 38; 64 CLR 206. 65 It is not necessary that the recipient have an interest in the specific communication. It is sufficient that the defendant establish that the recipient had an interest in receiving information of that kind: see Howe v Lees [1910] HCA 67; 11 CLR 361; Andreyevich v Kosovich (1947) 47 SR (NSW) 357 at 362; Bennette v Cohen at [207] per Campbell JA. 66 This is logical. The defence of qualified privilege protects false defamatory communications as well as those that are true. Ordinarily, nobody has a duty to make a false communication, defamatory of another; nobody is entitled to protect an interest by making a defamatory communication known to be false; there can therefore be no reciprocal interest in any recipient in receiving a communication that is false. There are exceptions to that proposition, but they are rare and confined. An employee, for example, may have a duty to pass onto a superior an allegation of criminal conduct on the part of another employee even though the first employee has reason to believe that the allegation is false. 67 What the law of qualified privilege protects is the publication of communications with respect to particular subject matters, where "the common convenience and welfare of society" is served by the exchange of information or opinion concerning those subject matters, and it does so even where the communication is subsequently shown to have been false, and damaging to the reputation of another. 68 Put another way: a publisher may be under a duty to publish a correct communication with respect to a particular subject matter or may have an interest in publishing a correct communication with respect to a particular subject matter, and a recipient may have an interest in receiving a correct communication with respect to that subject matter. Where those duties or interests are shown to exist, then the law of qualified privilege (subject to the question of malice) also protects a false communication with respect to that subject matter: see Andreyevich v Kosovich at 363. A recent illustration of the application of this principle is to be found in Fraser v Holmes. 69 The "interest" in the recipient must transcend mere curiosity: Stephens v West Australian Newspapers Ltd [1994] HCA 45; 182 CLR 211. 70 In Adam v Ward (p 334) Lord Atkinson drew a distinction between "a privileged occasion" and "a privileged communication". The same distinction was drawn by Dixon J in Guise v Kouvelis [1947] HCA 13; 74 CLR 102 at p 117. 71 This is readily understandable. It is not every communication that is made on what is otherwise a privileged occasion that attracts the privilege. To achieve that, the communication must have the requisite relevance to, or connection with, the subject matter with respect to which the privilege exists (Adam v Ward, p 318, per Lord Finlay, pp 320-1, per Earl Loreburn; Bellino v Australian Broadcasting Corporation [1996] HCA 47; 185 CLR 183 at p 228; Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366 at [27], [235]. It is then that the communication is said to have been published under qualified privilege (as distinct from, and a step further than, on an occasion of qualified privilege), and (always subject to the question of malice) secures the protection of the defence.

[14]

The Full Court decision was upheld in the High Court: Mowlds v Fergusson [1940] HCA 38; 64 CLR 206. 78 It is one thing to identify irrelevance of a communication to an otherwise privileged occasion. But what are the consequences of introducing into a privileged occasion an irrelevant communication? Tracing through the authorities, it is not easy to discern a consistent thread. 79 In Bellino (in a decision concerned with a section of the Queensland Criminal Code), Dawson, McHugh and Gummow JJ said: "It is true that, at common law, privilege only attaches to those defamatory imputations that are relevant to the privileged occasion. Where a potentially privileged communication consists partly of matters relevant to the privilege and partly of matters that are not relevant, qualified privilege only attaches to that part which is relevant to the occasion . Moreover, the inclusion of the irrelevant part in the communication affords evidence of malice and can destroy the privilege attaching to the relevant part." (p 228, italics added) 80 Their Honours then extracted the passage from Adam v Ward (at p 318) in which Lord Finlay made the observations quoted above. That is, Lord Finlay, in the first part of the second italicised passage, appeared to treat the introduction of irrelevance as depriving the occasion of privilege; but, in the second, as depriving the communication of privilege. 81 Dawson, McHugh and Gummow JJ treated the introduction of irrelevant material as depriving the communication of privilege, but also as potentially evidence of malice. 82 But in Horrocks v Lowe [1975] AC 135, Lord Diplock (like Dawson, McHugh and Gummow JJ in the last sentence of the extracted passage of Bellino, above) seems to have treated irrelevance only as evidence of malice, discounting the suggestion that irrelevance might go to whether the communication was or was not privileged. His Lordship said: "But where, as in the instant case, conduct extraneous to the privileged occasion itself is not relied on, and the only evidence of improper motive is the content of the defamatory matter itself or the steps taken by the defendant to verify its accuracy, there is only one exception to the rule that in order to succeed the plaintiff must show affirmatively that the defendant did not believe it to be true or was indifferent to its truth or falsity …

[19]

The language used 87 Can the privilege be lost, apart from by reason of malice, because of, for example, the nature of the language used? On my reading of the authorities, at least until the decision of the Court of Appeal in Skalkos v Assaf [2002] NSWCA 14, it has consistently been held that it cannot: see, for example, the passage cited from Huntley v Ward above. 88 In Adam v Ward, it was so held. Lord Atkinson said: "It was, however, strenuously contended … that the language used in a communication made on a privileged occasion must, if it is to be protected, merely be such as is reasonably necessary to enable the party making it to protect the interest or discharge the duty upon which the qualified privilege is founded. It has long been established by unquestioned and unquestionable authority, I think, that this is not the law." (pp 334-335) 89 His Lordship proceeded to refer, in detail, to three authorities to that effect: Spill v Maule (LR 4 Ex. 232); Laughton v Bishop of Sodor and Man (LR 4 PC 495); and Nevill v Fine Arts and General Insurance Co [1895] 2 QB 156; [1897] AC 68. Having done this, he said: "These authorities, in my view, clearly establish that a person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, even though his language should be violent or excessively strong , if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose of his vindication, though in fact it was not so." (p 339) (italics added) 90 In Spill v Maule, for example, the assertedly excessive terms of the defamatory statement were said to be evidence of malice. The same approach was taken in each of the other two cases cited. 91 Lord Dunedin said (immediately following the passage extracted in [75] above): "But when the defamatory statement is, so to speak, part and parcel of the privileged statement and relevant to the discussion, then I think the first way is the true way to put it, and under it will also range all the cases where the express malice is arguable from the too great severity or redundancy of the expressions used in the privileged document itself." (p 327, italics added) 92 He then quoted from Warren v Warren 1 CM&R 250, as follows: "But when there is only an excessive statement having reference to the privileged occasion, and which, therefore, comes within it, then the only way in which the excess is material is as being evidence of malice." (p 328, italics added) 93 Adam v Ward, therefore, it seems to me, is authority for the proposition that, provided that the defamatory statement is relevant to the subject matter in respect of which the privilege is conferred, an excess of language, no matter how abusive it may be, does not render the occasion unprivileged, or the communication unprivileged. (Whether the violence of the language may be evidence of malice is another question to which I will return.) 94 In Horrocks v Lowe, a case that, coincidentally, also involved local government, Lord Diplock said: "… what is said by members of a local council at meetings of the council or of any of its committees is spoken on a privileged occasion. The reason for the privilege is that those who represent the local government electors should be able to speak freely and frankly, boldly and bluntly , on any matter which they believe affects the interests or welfare of the inhabitants. They may be swayed by strong political prejudice, they may be obstinate and pig-headed, stupid and obtuse ; but they were chosen by the electors to speak their minds on matters of local concern and so long as they do so honestly they run no risk of liability for defamation of those who are the subjects of their criticism." (p 152, italics added) 95 Although not all of the italicised words are directed specifically to the nature of the language used, it may be inferred that "bold and blunt" speech, "obstinacy" and "pig-headedness", "stupidity" and "obtuseness" would give rise to strong language. Nevertheless, as I read his Lordship, the communication is privileged unless actuated by express malice. 96 The effect of these decisions, it seems to me, is that, in the United Kingdom, provided a defamatory communication is relevant to the occasion of qualified privilege, then, no matter how gross or inflammatory its terms, it remains privileged, unless the plaintiff establishes that the purpose of the defendant in publishing it was a malicious one. 97 It seems to me that the High Court has, generally, taken a similar approach. 98 In Roberts v Bass, Gaudron, McHugh and Gummow JJ said, on no less than three occasions, that: "… the vigour of an attack or the pungency of a defamatory statement concerning such matters cannot, without more, discharge the plaintiff's onus on the issue of malice." ([68])

[21]

"Nor can the vigour of an attack or the pungency of a defamatory statement, without more, be evidence of improper motive in respect of such a statement." ([74]) 99 I acknowledge that these observations were all made with reference to what permits a finding of malice. But there is no suggestion in the judgment that "the vigour of an attack" or "the pungency of a defamatory statement" could or would, absent malice, destroy the privilege that the occasion otherwise confers. 100 And Gleeson CJ said: "As Braddock v Bevins makes clear, when, in the course of an election contest, political views damaging to the reputation of a candidate, deliberately intended to harm his or her prospects of election, are published, what attracts the qualified privilege is interest in the honest expression of views, no matter how strongly put, and no matter how unreasonable they may be ." (at [14], italics added) 101 It may appear that that was not the approach that was taken by the Court of Appeal in Skalkos v Assaf. That case involved the publication to the Prime Minister (with copies to a government instrumentality and three of its employees) of a letter which was replicated (except for one sentence) in the Serbian language in a newspaper circulating in the Serbian community. 102 Put generally, the letter concerned government advertising and provision of information to the ethnic community. It suggested abuses and exploitation. 103 The publications were made in 1993. The plaintiffs' claims were therefore governed by the Defamation Act 1974, before the significant procedural amendments made in 1995. The issue of malice was decided by a jury, against the plaintiffs: ie the jury found that the plaintiffs had failed to establish that the defendants were actuated by express malice. The issue of qualified privilege remained with the trial judge for subsequent determination. He was, of course, bound by the jury's finding with respect to malice. 104 At first instance (Assaf v Skalkos [2000] NSWSC 418), Carruthers AJ found, in respect of each publication:

[25]

But this was preceded by: "It is well established that an occasion of privilege can be abused by the publication of additional matter that is ' extraneous ' … or ' beyond what was germane and reasonably appropriate to the occasion '. 107 He expressly referred to a submission that Carruthers AJ regarded "the vituperative tone" of the letter as relevant to the issue to be decided, and saw no error in this. He rejected a submission that the reference to the tone of the publication ("a splenetic and false attack") illustrated error of approach. Mason P said (at [27]): "In my view, these passages show Carruthers AJ treating fairness, appropriateness, rationality and accuracy as relevant, but not determinative factors; and as recognising that the jury's decision on absence of malice did not remove the need for the Judge to determine whether the defamatory imputations were published within the occasion of privilege. In proceeding this way his Honour did not err." 108 His Honour then referred to a submission that emphasised those features of the publications which pointed to the existence of an occasion of qualified privilege and said (at [38]): "These matters may readily be accepted. However, they merely provide the backdrop to the present issue, which is whether the offending imputations amounted to an abuse of the occasion of privilege in the various ways in which such abuse is formulated in the case law. All relevant circumstances attending the publication need to be considered on the issue of abuse of privilege." 109 And, at [42]-[43]: "42 The grossness of the falsity of the publication is pertinent to this issue of relevance. The defendants' particulars asserted that "members of the public had an interest in knowing the facts and matters stated" in the letter. This alone makes the factual accuracy of the matters stated relevant to the issue of abuse of the occasion of privilege. And clearly established dishonesty is in turn capable of casting light on this inquiry. To describe an allegation as a "splenetic and false attack" [as the trial judge did] (at [194]) is really just a colourful way of emphasising the extraneity of the particular defamatory imputations to the professed context of the letter. The jury's rejection of malice did not pre-empt the judge from concluding, in the particular case, that the privileged occasion was abused (see Guise v Kouvelis (1947) 74 CLR 102 at 117, Bellino at 200-1).

[26]

43 Carruthers AJ did not fall into the error of seeing every excessive statement as an abuse of the occasion of privilege (cf Adam at 328) nor did he regard the "splenetic" vigour of the imputations as sufficient in itself to forfeit the privilege. The statements at the commencement of par [194] were introductory yet pertinent to the conclusions stated in traditional terms at the conclusion of that paragraph of the judgment. Likewise par [202]. His Honour also recognised expressly that the untruthfulness of the imputations was not determinative (see at [184]) and that error in itself did not destroy the occasion of privilege (see at [202])." (italics in original) 110 His Honour referred to a passage from London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 23. That passage reads: "Again, it is, I think, essential to consider every circumstance associated with the origin and publication of the defamatory matter, in order to ascertain whether the necessary conditions are satisfied by which alone protection can be obtained, but in this investigation it is important to keep distinct matter which would be solely evidence of malice, and matter which would show that the occasion itself was outside the area of protection." 111 Giles JA (at [130]) said: "It must be remembered that the inquiry into relevance of the defamatory imputation to the occasion, whether expressed in those terms or in the various other ways to be found in the cases, is intended to distinguish between an imputation which should not bring liability for defamation and one which should. As in so many other areas of the law, the function of attribution of legal responsibility necessarily affects the inquiry … The inquiry is not a mechanical application of a form of words. Something may be privileged although untrue, irrational, or intemperately expressed. But that it is untrue, irrational or intemperately expressed may warrant the conclusion, or contribute to the conclusion, that the protection of the privilege should not be afforded. Absence of malice does not mean that all that is published is within the occasion of privilege." (italics added) 112 The third member of the Bench, Fitzgerald AJA, dealt briefly with the issue of qualified privilege but did not embark upon this question. 113 An application for special leave to appeal to the High Court was refused: Skalkos v Assaf [2002] HCA Trans 649 (13 December 2002, per Gaudron, Gummow and Callinan JJ). It is of significance, in this case, to note the reasons given for the refusal. Their Honours did not use the common formula that an appeal, if leave were granted, would have insufficient prospects of success; rather, that having regard to the way the defence of qualified privilege had been particularised, the case was not a suitable vehicle in which to consider any point of principle relating to that defence. (They also noted a potential issue concerning the applicability to Australian law, of the decision of the House of Lords in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, but concluded the case was also not appropriate for exploring that issue.) 114 It is true that there are passages in the judgments of Mason P and Giles JA that suggest that the "vituperative" tone of a communication, the degree of falsity, and "irrationality" are relevant to the question whether the communication was made on an occasion of qualified privilege, or, alternatively, whether the communication was relevant to an occasion of qualified privilege. One thing is clear: their Honours did not refer to those matters on the question of malice, because that issue had been decided against the plaintiffs and in favour of the defendants. 115 But closer analysis casts a different light on Mason P's judgment. At [30], his Honour referred to Carruthers AJ's conclusion that "the defamatory imputations were not pertinent to the occasion of qualified privilege"; at [38], citing Greenlands Ltd, he observed that "all relevant circumstances attending the publication need to be considered on the abuse of privilege"; at [39] he disagreed with an argument that Carruthers AJ had overlooked the fact that privilege may be attracted even though a publication contains untrue defamatory statements; at [40] he cited passages from Adam v Ward concerned with "extraneity"; at [43] he said that Carruthers AJ did not fall into the error of seeing every excessive statement as an abuse of the occasion of privilege, nor did he regard the "splenetic" vigour of the imputation as sufficient of itself to forfeit the privilege. 116 As I have mentioned, since malice was not an issue for Carruthers AJ, or for the Court of Appeal, these observations can be relevant only to one or other or both of the twin questions of whether an occasion of qualified privilege exists, and whether the communication is relevant to that publication. 117 Notwithstanding some indications in Skalkos that the "vituperative" language of the publications deprived them of the protection of qualified privilege (this appears most explicitly in para [130] of the judgment of Giles JA) there is no clear statement of principle to that effect in the judgment of the President. Rather, whether their Honours so approached the matter is to be drawn by inference from various observations. 118 It must be remembered that a communication, to have the protection of the defence, must have some content - either factual information or opinion. There may be cases in which the vituperative tone so masks or clouds or overrides any real communication of fact or opinion that there is no communication other than of vitriol, abuse, or vituperation. It may be that that is what Carruthers AJ had in mind, what Giles JA had in mind at [130], and what Mason P had in mind. 119 Another case in which the tone of a defamatory communication has intruded into the issue of qualified privilege is Goyan v Motyka [2008] NSWCA 28 (at first instance, Motyka v Gojan [2007] NSWSC 31, per James J). There, the subject matter of the proceedings was a series of letters written by the defendants in the English and Ukrainian languages, and published generally to members of a Ukrainian Association, and a book in which many of the letters were reproduced. In respect of each, at first instance, the defence of qualified privilege failed. It is important to note the reasons for its failure: as I read James J's judgment, the fundamental reason for the failure of the defence, in relation to each publication, was that it was not published on an occasion of qualified privilege. This, in turn, depended upon the finding that each was published to a person or persons not members of the Association, and thus to a person or persons who did not have the requisite reciprocal interest. 120 His Honour also made reference, in respect of some of the publications, to the content, which, he said, conveyed very little factual information and was almost entirely devoted to making accusations of impropriety. I read these references to mean that, even if the occasions of publication were subject to qualified privilege, these particular publications did not have the necessary relevance or connection to the occasion to make them privileged communications. Or it may be that he had in mind that the limited factual information meant that the publications had insufficient content to establish a subject matter that gave rise to an occasion of qualified privilege. The publications did not communicate anything with respect to which the publishers and recipients had corresponding interests. 121 I note here two paragraphs of significance from the judgment of James J: "187 The letter of 21 November 1999 conveys very little factual information and is almost entirely devoted to accusing Dr Motyka of conducting a campaign to create dissension, of egotism, villainy, brutality, evil and sadism and of being a monster and of having forfeited the right to identify himself as a Ukrainian. There is a suggestion that Dr Motyka may have misappropriated the funds of the [Association]. Some of the same accusations are made against [the second plaintiff]."

[27]

"192 As in the case of the letter of 21 November 1999, the letter [of 28 January 2000] conveys very little factual information and is almost entirely devoted to accusing Dr Motyka of being a dishonest, shameful person, of being a devil, of poking his nose into everything, of denigrating everyone, treating everyone as idiots and breaking up organisations, doing the devil's work, being a pillager-savage, terrorising persons, telling lies, perpetrating evil and injustice and persecuting others. Some of the same accusations are made against [the second plaintiff]." 122 Notwithstanding the obviously vituperative tone of the publications referred to in these paragraphs, James J, it seems to me, rejected the defence of qualified privilege, not because of that tone, but because of the absence of the necessary reciprocity between publisher and recipients. Had it been necessary to proceed to the next question, his Honour would also have found against the defendants because of the absence of the requisite relevance. 123 It was otherwise when his Honour came to consider the question of malice. His Honour found (at [217]) that the language used in each of the four letters was so excessive and so disproportionate that it should be inferred that Mrs Gojan was actuated, not by a dominant proper purpose of conveying matter which she had a duty or interest to convey and the recipients had an interest in receiving, but by a dominant improper purpose of injuring the plaintiffs and/or venting her personal spite against the plaintiffs. 124 On appeal, Tobias JA, with whom Giles JA and Handley AJA agreed, referred extensively to the judgment of Mason P in Skalkos. Of the publications in Motyka, Tobias JA said: "79 Further, I would not shrink from describing the attacks on the respondents as being vituperative, irrational, intemperate and splenetic. As they submitted, the language of the matters complained of was properly described as grossly excessive. This was exacerbated by the fact that, except for the letters in the book, the other letters sued upon did not purport to be a reply by the Goyans to an attack, public or otherwise, upon them by the respondents …" 125 At [89] and [90] he said: "89 In my view the respondents' submission that the publication of the relevant letters to the general Ukrainian community defeated the privilege because the class of people with the interest (if any) reciprocal to that of the Goyans was not the Ukrainian speaking community in Australia should be upheld. The class was far too wide to satisfy the requirement of reciprocity in the present case.

[28]

90 Furthermore, the language of the matters complained of was so excessive, vituperative, irrational and spiteful as to warrant the primary judge's conclusion that the protection of the privilege should not be afforded to the subject publications. My description of the matters complained of mirror those of the primary judge in his description of the 21 November letter (at [187]), the 28 January letter (at [192]) and the 28 August letter (at [203])." 126 On proper analysis of these paragraphs, it seems to me that the ratio of Tobias JA's decision to uphold James J in rejecting the defence of qualified privilege is to be found in [89]. That appears from the language of the paragraph and is also consistent with the findings made by James J, which were upheld. Paragraph [79] appears in that part of the judgment in which his Honour had, firstly, analysed the judgment in Skalkos (both at first instance and on appeal) and had then, in [78], recorded reliance placed upon those judgments by the respondents in Goyan. While, in [78] and [79], his Honour accepted the descriptions given to the publications, it would be wrong to interpret his judgment as meaning that so to characterise the publications dictated or even permitted the conclusion, for that reason, that the defendants were not entitled to the defence of qualified privilege. As I have said, the reason for that conclusion is to be found in [89]. Paragraph [79] states no principle of law, it is difficult to discern any principle of law in [90], although (leaving aside what I have said about [89]), it could be read as reflecting an assumption that the vituperative nature of an attack may be a basis for refusing a defendant the benefit of the defence. 127 If what appears at [90] is taken at face value, it would appear that Tobias JA regarded the vituperative tone of the letters as sufficient, of itself, to deprive the occasion of qualified privilege it otherwise would have had. But it cannot mean that, because the decision of James J was not that the privilege was lost by reason of the tone of the letters; his decision was, clearly, that there was no occasion of qualified privilege; and that was because of the absence of the essential reciprocity. 128 What appears at [90] is obiter. It does not express the reason or the rationale for the decision. Notwithstanding the persuasive force of a pronouncement of the Court of Appeal, to the extent that para [90] states any principle, it is not binding upon me. 129 I conclude that the tone of a publication is a matter not available to be taken into account in determining whether a communication was published on an occasion of qualified privilege, or was relevant to a privileged occasion. As will be seen when I come to deal with the individual publications, this is an important conclusion. The tone of at least some of the publications is so strident, so venomous, so vituperative, that, if that alone were a reason for denying the defence of qualified privilege, that result would follow in respect of those publications. 130 Whether tone is relevant to the question of malice is a different issue.

[30]

Braddock v Bevins represents the law in Australia: Roberts v Bass , at [72]. 133 In Braddock v Bevins, Mrs Braddock was the first of four plaintiffs. She was a long-standing member of the Labour party, and a Member of Parliament. Mr Bevins, the first defendant, was a member of the Conservative party, and a candidate in a then current municipal election. During the course of the campaign Mr Bevins made statements defamatory of Mrs Braddock. Those statements were made to an audience which consisted only of electors. 134 I have extracted above ([76]) the salient passage from the judgment of the Court. The point now to be made is that, although the facts of that case involved an election, there is nothing in the judgment that limits its application to statements made in the course of an election, or an election campaign, as distinct from statements on identical or similar matters made outside such a campaign. 135 This, I think, is consistent with what was said in Lange at p 561 (admittedly referring to a freedom of communication conferred by reason of the Australian Constitution): "If the freedom is to effectively serve the purpose of ss 7 and 24 and related sections, it cannot be confined to the election period. Most of the matters necessary to enable 'the people' to make an informed choice will occur during the period between the holding of one, and the calling of the next, election. If the freedom to receive and disseminate information were confined to election periods, the electors would be deprived of the greater part of the information necessary to make an effective choice at the election." 136 The written submissions filed on behalf of the plaintiffs question the applicability of Braddock v Bevins to Australia. Reference was made to Roberts v Bass. It was submitted: "The High Court in [ Roberts v Bass ] proceeded on the assumption that there exists in Australia a defence as expounded in Braddock v Bevins . That was only because the trial and appeal in South Australia had been conducted on that assumption … Gleeson CJ expressed doubt as to whether the test recognised in Braddock v Bevins formed part of the law in Australia at [4]. So did Hayne J at [224]." 137 That is not how I read para [4] of the judgment of Gleeson CJ. His Honour referred to a "common assumption" in the litigation, that there was one category of common law privilege relating to communications to thousands of electors in the course of an election, of the kind recognised in Braddock v Bevins, and another category relating to communications to the general public about political affairs, of the kind recognised in Lange. He questioned the utility, as a matter of principle, of such a distinction. 138 At [224] Hayne J questioned whether publication to electors generally about the common interest which electors have gave rise to an occasion of qualified privilege as those occasions were understood before the decision in Lange. 139 At [72], Gaudron, McHugh and Gummow JJ said that an assumption that Braddock v Bevins gives effect to the common law of Australia was correctly made. 140 Roberts v Bass also involved defamatory publications made during the course of an election. I recognise that the focus of that case was on the question of malice. In the lower courts, the case had been conducted on the basis that the applicable law of qualified privilege was that stated in Lange. Findings relevant to that defence were made. Although, in the High Court, all parties sought to depart from their earlier positions, the High Court did not permit them to do so. Accordingly, their Honours focussed on the issue of malice. 141 In Stephens v West Australian Newspapers Ltd, having referred to statements of principle to the effect that, for the purpose of the law of qualified privilege, "interest" is more than mere gossip or curiosity, McHugh J said: "As the decided cases show, however, circumstances may exist where the interest of the general public in a particular subject is such that a defence of qualified privilege is available even though the communication is made to the general public by means of a newspaper or other medium of general circulation. If a subject is one of public interest, members of the public have the requisite interest in receiving information on that subject from persons who have a corresponding interest or duty to communicate that information to the general public. If such information is published in good faith, both the author and the publisher of the article are protected 'for the common convenience and welfare of society'." (pp 261-262) 142 Later, his Honour said: "In the last decade of the 20th century, the quality of life and the freedom of the ordinary individual in Australia are highly dependent on the exercise of functions and powers vested in public representatives and officials by a vast legal and bureaucratic apparatus funded by public moneys. How, when, why and where those functions and powers are or are not exercised are matters that are of real and legitimate interest to every member of the community. Information concerning the exercise of those functions and powers is of vital concern to the community. So is the performance of the public representatives and officials who are invested with them. It follows in my opinion that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials. Moreover, a narrow view should not be taken of the matters about which the general public has an interest in receiving information. With the increasing integration of the social, economic and political life of Australia, it is difficult to contend that the exercise or failure to exercise public functions or powers at any particular level of government or administration, or in any part of the country, is not of relevant interest to the public of Australia generally. If this legitimate interest of the public is to be properly served, it must also follow that on occasions persons with special knowledge concerning the exercise of public functions or powers or the performance by public representatives or officials of their duties will have a corresponding duty or interest to communicate information concerning such functions, powers and performances to members of the general public …

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Accordingly, it is now appropriate for the common law to declare that it is for 'the common convenience and welfare' of Australian society that the existing categories of qualified privilege be extended to protect communications made to the general public by persons with special knowledge concerning the exercise of public functions or powers or the performance of their duties by public representatives or officials invested with those functions and powers." (pp 264-265) 143 Stephens v West Australian Newspapers Ltd was a judgment published concurrently with that in Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; 182 CLR 104, a decision that was subsequently extensively reviewed in Lange. 144 The second paragraph of the extract from Stephens v West Australian Newspapers Ltd, above, needs to be read in the light of that circumstance, together with the circumstance that nothing in the extract received the express endorsement of any other member of the High Court. However, in Theophanous, McHugh J referred to and effectively restated (in abbreviated form) those observations; they subsequently received express endorsement in Lange (at p 571). 145 The explanation of the interest of recipients of communication on matters concerning the exercise of functions and powers by public representatives and officials is salient in the present circumstances. Elected representatives can expect to be under the constant scrutiny of the electors and their performance made subject to review and comment. There is no reason to perceive an election campaign as in a special category. The interests of electors in having information about their representatives is continuous throughout the election cycle. 146 Contrary to the submissions made on behalf of the plaintiffs, I see no reason to draw a distinction between statements made during the currency of an election campaign, and statements made concerning the discharge of functions of elected representatives. The mere fact that the publications were not made in the context of an election has, to my mind, little (if any) materiality. Of course, as a matter of reality, the degree of scrutiny, and the level of comment, can be expected to intensify during an election campaign; but there is no difference in principle between the comment upon the performance of an elected representative during the tenure of office, and comment on the same person whilst a candidate. See also Roberts v Bass, per Gleeson CJ, at [11], and per Gaudron, McHugh and Gummow JJ at [69].

[32]

Distribution 147 It has long been accepted that the defence of qualified privilege has little, if any, application to mass media publications or to publications "to the world at large". See Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 775; Stephens v West Australian Newspapers Ltd, pp 242, 260; John Fairfax & Sons Ltd v Vilo [2001] NSWCA 290; 52 NSWLR 373; Theophanous, p 133; Lange, p 572. That, really, was what underlay the decision in Lange, and led the High Court to extend the defence so that mass media publications could take advantage of it, in the limited circumstances there set out - the relevant circumstance being, essentially, that publication was reasonable. 148 The issue is one of reciprocity. Generally speaking, the wider the publication, the more difficult it will be for the defendant to establish the defence of qualified privilege. This is because it will be more difficult to establish the requisite reciprocity of interest in all of the recipients. As Ipp JA pointed out in Bennette v Cohen (at [10]), it was the limited application of this defence, to the exclusion of mass media outlets, that led to the introduction of a statutory variant (s 22 of the Defamation Act 1974). 149 That, however, does not necessarily mean that widely circulated publications will never have the benefit of the privilege. In Bashford defamatory statements were published in a trade journal circulated to subscribers who had an interest in issues concerning occupational health and safety. The judgments do not disclose the precise circulation numbers. By majority, the defence of qualified privilege at common law was upheld. Despite the breadth of circulation, (and despite the fact that the journal was published for profit) the majority held that the necessary reciprocity had been established. The analysis of McColl JA in Lindholt v Hyer [2008] NSWCA 264 at [84]-[87] is of interest. (Her Honour was dealing with a ground of appeal that neither of the other two members of the Court found necessary to determine.) 150 I infer that the number of recipients to whom the matter was published in Bashford was significant; because of their perceived interest in the subject matter, that circulation was widespread did not deprive the defendant of the defence of qualified privilege. 151 In Stephens v West Australian Newspapers Ltd, McHugh J recognised that a defence of qualified privilege might be available even where the communication is made by a newspaper or other medium of general circulation (pp 261-262). 152 Although, here, distribution was widespread, the evidence permits an inference, which I draw, that the recipients were those who lived or worked in the Drummoyne municipality who had a relevant interest in the affairs of the Council, and its Councillors, and the performance of its General Manager.

[33]

Volunteered communications 153 In Bashford, having considered a category of communications made in answer to attacks or requests for information, McHugh J stated that different considerations apply to volunteered defamatory information. His Honour said: "Ordinarily the occasion for making a volunteered statement will be privileged only where there is a pressing need to protect the interests of the defendant or a third party or where the defendant has a duty to make the statement to the recipient. The common law has generally perceived no advantage to society in giving qualified privilege to volunteered statements in the absence of a pre-existing reciprocity of interest between the defendant and the recipient. It has taken the view that the reputation of the defamed should be preferred over the freedom to publish volunteered but defamatory statements that may or may not be true. In most cases, a defendant who publishes a defamatory statement that neither protects his or her interests nor answers a request for information will have to rely on some other defence, such as truth or fair comment." (italics added) 154 The judgment of McHugh J in Bashford was a vigorous dissent from that of the majority. In those circumstances, ordinarily, it would be difficult to regard this passage as of binding authority. 155 However, notwithstanding that McHugh J was in dissent, it is his Honour's judgment that has commanded attention and has been repeatedly and extensively quoted, often with the notation that his Honour dissented "as to the outcome" (Bennette v Cohen, [8]; Lindholt v Hyer, [71]) or "on the facts" (Goyan v Motyka, [86]). I am, of course, bound by statements of principle of the Court of Appeal. I am not bound by every step in the reasoning process that culminates in those statements of principle. I confess that I have difficulty with the perception that McHugh J's judgment was a dissent merely as to "the facts" or "the outcome". As I perceive it, his Honour differed fundamentally on matters of principle from the majority of the Court. He said, for example: "The consequences of the majority judgment may be far reaching." (at [40])

[35]

Campbell JA agreed with Ipp JA on this issue. 157 That leaves a trial judge in a particularly awkward position. In my opinion, the observation by McHugh J, which was no doubt the source of the proposition numbered (iv) as stated by Ipp JA, is in clear conflict with the conclusions of the majority. Moreover, it seems to be inconsistent with virtually all of the cases to which I have already made reference, in this sense: almost none of those cases concerned a publication made either in response to a request for information, or in response to an attack, or even pursuant to a duty. All, including the election cases, are cases where the defamatory statement was volunteered. In none of them was there identified a "pressing need" to make the publication in order to protect the interests of the defendant or a third party. It may be that the answer lies in the words in the judgment of McHugh J: "The common law has generally perceived no advantage to society in giving qualified privilege to volunteered statements in the absence of a pre-existing reciprocity of interest between the defendant and the recipient." (italics added) 158 That, it seems to me, reverts to the position taken historically since Toogood v Sypring and Adam v Ward. 159 With considerable trepidation, since I am fully cognisant of the principle of stare decisis, and the obligation of a trial judge loyally to accept the guidance of superior courts, I am unable conscientiously to hold that the present publications, because volunteered, are, for that reason, beyond the protection of the defence of qualified privilege. 160 If, however, the statement of proposition (iv) by Ipp JA were binding upon me, I would do my duty and abide by it. But a careful reading of the judgment of Ipp JA in Bennette v Cohen reveals that there were two reasons for the rejection, in that case, of the defence of qualified privilege. The principal reason was absence of reciprocal interests between the defendant and the recipients (see [55]-[70]); the secondary reason was that the defamatory content of the publication was not relevant to any such interest ([71]). There is no finding that, because the defamatory imputations were not published as a matter of "pressing necessity", the defence of qualified privilege was not made out. 161 Accordingly, his Honour's acceptance of the "pressing necessity" test forms no part of the ratio of the decision. 162 This issue, like that of the tone of the publications, is of considerable importance in this case. Not one of the items in the circulars could be said to have been published under pressing necessity. 163 Were I literally to apply the "pressing need" test taken from McHugh J and adopted by Ipp and Campbell JJA, I would, inevitably, reject the defence of qualified privilege. That would bring the proceedings to an abrupt end, in favour of the plaintiffs. Having regard to the history of the proceedings, if that were held to be wrong, the entire proceedings would have to be re-heard. That is a consequence that could not be contemplated. 164 It would, perhaps, be possible to apply the "pressing need" test, reject the defence, and nevertheless proceed, hypothetically, to analyse what I perceive to be the real issues and to make relevant rulings. 165 There is potential unfairness in taking that course. It would throw the entire onus of challenging the decision on the defendants. 166 Accordingly, well aware that I may be severely criticised for taking this course, I will not apply the "pressing need" test.

[38]

Malice 172 Misuse of the occasion of qualified privilege gives rise to a finding of malice. In Horrocks v Lowe, Lord Diplock said: "The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue. With some exceptions which are irrelevant to the instant appeal, the privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused . For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit - the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege ." (p 149, italics added) 173 What follows indicates clearly that what his Lordship was referring to in the italicised passages was the defeat of the privilege by the existence of malice; it was not that the occasion itself, nor the communication, lost the privilege. 174 At the risk of repetition, I stress that it is necessary to draw a distinction between, on the one hand, a finding that an occasion of publication is one of qualified privilege together with a finding that what is published is relevant or germane to that occasion, and, on the other hand, a finding that the occasion was misused in such a way as to defeat, by reason of malice, the privilege that otherwise would have existed.

[43]

To answer the second question, it is not necessarily the entirety of any item that is to be considered. It is that part of the item from which the defamatory imputations are derived. 176 Since all circulars were published by both defendants to, essentially, the same recipients, there is a considerable degree of commonality in the question of reciprocity. The publishers and the recipients may be taken to have had the same interests throughout the period of publication. Reciprocity in this case will depend principally upon the content of the particular item under consideration - that is, upon the subject matter. That raises the question of the degree of generality with which the "occasion" may be, or the degree of specificity with which it must be, defined. 177 In Bashford, McHugh J strongly criticised the Court of Appeal and (at least by implication) the majority in the High Court, for the generality with which they defined the subject matter that created the occasion of qualified privilege: see, eg [59]-[60], [62]-[63], [101]. 178 For those Justices who participated in the joint judgment (Gleeson CJ, Hayne and Heydon JJ), it was sufficient to identify "occupational health and safety" as that subject matter. (That was drawn from the judgment of Hodgson JA in the Court of Appeal: Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470). Gummow J (at [149]) appears to have taken the same view; Kirby J agreed, in this respect, with the majority: [186]. 179 Mr Marshall was largely responsible for the distribution, and possibly, the printing of the circulars. Whether he was principally responsible for the content is something I cannot, on the evidence, say. What he circulated was, in its entirety, directed to the affairs of the Council, its elected councillors, and employed administrative staff. Individual items of the circulars arose out of the subject matters that occupied the time of the Council, whether Councillors or administrative staff. At is broadest (the highest level of abstraction) the affairs and conduct of Council, Councillors and officers are the subject matter of the circulars. But a greater degree of refinement must be introduced. It will be necessary to examine each item of each circular the subject of the proceedings to identify the subject matter said to give rise to an occasion of qualified privilege. 180 No question of duty arises: it could not be said that Mr Marshall, far less Mr Tory, had any duty to publish to anybody reports of their perceptions of what was taking place in the Council, or was being done by the Council. Duty can therefore be put to one side. It is not so, however, with interest. 181 In general terms, what was published by Mr Marshall was published because of his interest, as a Councillor himself, in the affairs of the Council, and was published by him to electors, ratepayers and residents of the municipality, and, (probably) occasionally to others (such as employees of businesses) who used Council facilities, and were affected to some degree, by the manner in which the Council was administered. If the content of the circulars were uniformly the affairs and administration of the Council, it would be a relatively short and easy step to conclude that the occasion of each publication was one of qualified privilege. But that the general purpose of the circulars, as proclaimed in the heading and slogan, was to deal with affairs and administration of the Council, does not necessarily mean that every item in every circular, when examined, contained information about Council business. The mere fact that the circulars bore the banner heading, and the slogan, that they did, does not mean that the entirety of their contents related to those matters. Each item must be considered individually. 182 I am also satisfied that the great majority of recipients were electors, residents or ratepayers. An argument was put that, inevitably, there was some publication outside those boundaries. Two answers may be made to that. Firstly, the evidence does not establish, with one exception, that any circulars were distributed outside the municipality. That one exception was to the Minister for Local Government, who, I am satisfied, had the relevant interest, at least as great as that of any ratepayer or resident, in the administration of the Council. 183 The second answer derives from Bashford. In that case, the publication was to a subscription audience, but, as I have inferred above, it was a relatively wide audience. Inevitably, in that case, it could be supposed, some copies would find their way to individuals not sufficiently engaged in occupational health and safety matters to have the requisite interest. That did not appear to trouble the High Court. The law does recognise "incidental publication" outside the circle of recipients shown to have the requisite interest: Stephens v West Australian Newspapers Ltd, p 263. 184 The evidence on the whole establishes to my satisfaction that, where the subject matter of any item is properly to be seen as Council business and affairs, the necessary reciprocity of interest in that subject matter between Mr Marshall and those to whom the circulars were distributed is demonstrated. In this respect the analogy with election cases is obvious. It does not, however, necessarily follow that each (or, indeed any) individual item is properly to be construed as directed to that subject matter. 185 Because Mr Tory is a resident and ratepayer, I am satisfied that he, too, had an interest on that basis alone in communicating with residents and ratepayers with respect to Council affairs. The evidence shows that he has taken an active interest in Council affairs. To some extent, that enhances his interest. 186 The evidence was detailed. Far from merely establishing that the subject matter of particular items was such as to pass the Toogood v Spyring, Adam v Ward tests of reciprocal interest, the cross-examination of Mr Megna and Mr Lloyd repeatedly explored the merits of each topic. It seemed that the cross-examiners wished to secure admissions from the plaintiffs as to incompetence or mala fides in the administration of the Council in respect of different issues; failing admission, to establish such incompetence or mala fides. That was, in my opinion, quite unnecessary, and prolonged an already prolonged case. I do not consider it necessary to determine, nor even explore, the merits of the competing positions taken on any of the issues; in my opinion, it is sufficient if it be shown that any individual subject matter was such that ratepayers and residents had an interest (not as a matter of idle curiosity) in being informed upon it. 187 Having regard to the foregoing, I propose to deal with each item of which complaint is made separately. The questions to which I will direct attention are, in each case:

[45]

● if so, was that part of the item from which the defamatory imputations were derived relevant or germane to the occasion of qualified privilege? 188 If both questions are answered affirmatively, then it will be necessary to consider the question of malice. However, since there is no reason to think that the answers to this question will vary from publication to publication, that can be reserved until all questions in respect of the individual publications have been answered. By this I mean that, if Mr Marshall and/or Mr Tory were motivated by malice on one occasion, there is nothing in the evidence that would distinguish that occasion from any other. A finding of malice will be of general application. 189 For the purpose of the first question, I will proceed upon the basis (as mentioned earlier in this judgment) that Mr Marshall was a Councillor on the Council; that Mr Tory had a relevant interest in Council matters; and that the circulars were distributed to recipients who were ratepayers and residents of the Drummoyne municipality, and had a legitimate interest in receiving information (and opinion or comment) on the functioning of the Council and its Councillors including its Mayor. 190 I have appended to this judgment a schedule setting out the passages in each circular said to be defamatory and the defamatory imputations found by the jury to have been conveyed. Accordingly, in the following analysis, I will confine myself to a broad outline of that material. 191 It is now necessary to outline, as briefly as possible, the content of the circulars, and the defamatory imputations found to have been conveyed; and the evidence relevant to each. In referring to the evidence, I will attempt to confine myself to that evidence that shows that any individual topic was (or was not) a matter in which residents and ratepayers had a relevant interest. 192 The appropriate course to take, at this stage, I think, in relation to each circular the subject of complaint, is to deal in sequence, with the series of questions representing the three strands of inquiry I have set out above ([175]). 193 I will defer questions of malice to be considered after this exercise, in respect of all 89 imputations, has been completed. 194 In referring to the various imputations, I will adopt the numbering of the Amended Statement of Claim.

[49]

● 2(e): that as General Manager of the Council Mr Lloyd had lied about his knowledge of the qualifications of a person retained by the Council as a consultant. 199 Unusually, the cross-examination (of Mr Lloyd) on this topic was mercifully brief. The evidence does not reveal when the issue arose (although the circular claimed that it began in February). Mr Lloyd's evidence was that a consultant, Mr Paul Davies, was engaged by the Council over a period of time, particularly in relation to heritage matters, and to prepare a development application for refurbishment of the Council's Civic Centre. Because the expected scale of his fees fell under the relevant threshold, it was not necessary for the Council to call for a competitive tendering process. 200 Mr Lloyd knew, at the time of his engagement, that Mr Davies was not registered with the NSW Board of Architects. He also knew that Mr Davies operated primarily through another firm which did employ a registered architect. Mr Lloyd did not accept that the engagement of an unregistered architect for that purpose was "an issue". 201 I see no reason not to accept Mr Lloyd's evidence at face value. 202 The subject matter of the engagement of professionals by the Council comes well within the broad classification of Council affairs and administration that I consider creates an occasion of qualified privilege; it is a matter on which ratepayers and residents of the municipality have an interest in receiving information, and on which, in conformity with my conclusions above, Mr Marshall and Mr Tory had an interest in informing residents and ratepayers. If a narrower (more concrete or precise) definition of the subject matter is to be attempted, then the qualification of a person retained by the Council to prepare a development application is also such a matter. I am, therefore, satisfied that this item was published on an occasion of qualified privilege. 203 The next question is whether what was published was relevant to the occasion. Despite the strongly worded tone of the item, there is, in my view, nothing that is irrelevant in the segment. 204 Subject to the question of malice, I conclude that this publication was protected by the defence of qualified privilege at common law.

[53]

● 2(c): that as Mayor of the Council Mr Megna had engaged in personal favouritism in his attitude to the performance of the Council's General Manager. 209 The oral and documentary evidence showed that, on 2 February 1998, Mr Tory wrote to Mr Lloyd, on "various matters", which he said had been raised by local residents. Mr Tory noted that the Council's business paper of 27 January 1998 indicated that the performance review had been completed. He said that the performance review was due on 7 November 1998 (sic - 1997). 210 Mr Tory asked why the matter was not mentioned in the business paper for October 1997 to allow discussion and "input" from residents; why the review had been completed "only recently" and not prior to the due date; and why Mr Lloyd had not advised Council if he were to seek re-appointment prior to that date. He also asked about the appointment of the review committee. (In cross-examination of Mr Megna it was accepted by counsel for Mr Tory that the review had commenced shortly after 7 November, was not completed "only recently", and that in thinking that it had been conducted "only recently", Mr Tory was in error.) 211 After discussing the letter with Mr Megna, Mr Lloyd replied on 4 February 1998. He said that he was not prepared to discuss issues concerning his contract but that the review was undertaken in accordance with the contract provisions, by a committee consisting of Mr Megna, a councillor nominated by Mr Megna, and a councillor nominated by himself. He said it was undertaken after the anniversary of his fourth year of service and the outcome was reported to Council. 212 This drew a reply from Mr Tory dated 9 February 1998. He repeated the questions he had previously asked and raised a further question about annual reviews during the preceding three years. 213 On 12 February 1998 Mr Lloyd replied, repeating that he was not prepared to discuss details of his contract but that he was satisfied that Council had dealt with the contractual arrangements in accordance with the contract. 214 Both Mr Megna and Mr Lloyd were extensively cross-examined on this issue. In some respects the cross-examination appeared to be designed to establish that Mr Tory had a legitimate grievance about the way his correspondence was treated. As I have said, the merits of any issue in dispute are not relevant to the present task. 215 In my opinion, it can been seen from the terms of the circular itself that the issues it raised concerned the administration of the Council - compliance with the terms of Mr Lloyd's contract of employment, a system for ensuring that the annual review clause it contained was implemented, and that the review was carried out in an impartial and unbiased fashion, were matters of legitimate concern to residents and ratepayers of the municipality. 216 The terms of Mr Lloyd's contract, compliance with its conditions, and Mr Lloyd's performance, are all matters on which Mr Marshall and Mr Tory had an interest in informing residents and ratepayers and on which residents and ratepayers had a reciprocal interest in receiving information. 217 To the extent that the legitimacy of Mr Tory's position has any bearing on the issue I have to decide, his correspondence strengthens the case that the issue was a matter on which ratepayers and residents had an interest, and on which Mr Marshall and Mr Tory had an interest in providing information. 218 I am, accordingly, satisfied that the circular was published on an occasion of qualified privilege. I am also satisfied that what was published was relevant to that occasion. 219 Subject to the question of malice, these imputations were published under qualified privilege at common law.

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● 4(c): that as General Manager of the Council Mr Lloyd ordered a study at the cost of $60,000 which he knew was a sham designed to support a pre-determined result. 226 The genesis of the issue lay in a planning policy that the Minister for Local Government was proposing in September 1997. For present purposes it is sufficient to say that the proposed policy concerned housing density levels, and was intended to apply at least to the entire metropolitan area. The proposal, put briefly, was to increase housing density levels. 227 The Council sought to be exempted from the policy and proposed, to the Minister, in a report of a Strategy Advisory Committee, certain alternative initiatives. By letter dated September 1997 the Minister declined the exemption on the basis proposed by the Council, and pointed out failings in the Council's proposals. He then, however, referred to other initiatives that he "understood" Council had proposed and to which he appeared to be more favourably disposed. He advised that he anticipated that "successful progress" on those initiatives would result in the Council gaining an exemption, and that, in order to permit significant progress to be made in that respect, he would not act on part of the policy for six months. 228 The issue was obviously of interest and importance to residents and ratepayers. It attracted some press coverage, although the evidence of that is minimal (Ex 1D80). Public input was invited. 229 There was some evidence of the content of the report, and subsequent discussion, but as this post-dates publication of the defamatory imputation, I am satisfied that it is not material to the present consideration. 230 I accept that the issue concerning the Minister's proposal with respect to housing density, and the Council's response to it, and the action taken by the Council in support of its response, are all matters on which Mr Marshall and Mr Tory had an interest in informing residents and ratepayers, and residents and ratepayers had a reciprocal interest in receiving such information. Accordingly, the imputation was published on an occasion of qualified privilege. 231 I am also satisfied that there is nothing in this item in the circular that is irrelevant to that subject matter. 232 Accordingly, subject to the question of malice, this imputation was published under qualified privilege at common law.

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● 6(b): that as General Manager of the Council Mr Lloyd is incompetent. 247 No additional evidence was adduced that could identify an occasion of qualified privilege. In respect of this item, that question must be determined from what, if any, inferences can be drawn from the item itself. 248 While I accept that each of the five paragraphs in this item comes under the general rubric of Council affairs and management, on a more specific level the subject matter is fluid. The first paragraph is an attack on the Council newsletter; the second concerns apparent hostilities between the DCRA and some members of Council including Mr Megna; the third is largely a criticism of Mr Megna and Mr Lloyd (in their capacities as Mayor and General Manager of the Council); the fourth is similar; and the fifth, from which the defamatory imputations arise, is a comment upon the performance of Mr Megna and Mr Lloyd. 249 Because the defamatory imputations were conveyed by the last paragraph, consideration of the occasion of qualified privilege must focus upon what is contained therein, perhaps allowing some reference to the immediately preceding paragraph. The criticisms made are non-specific, but that does not necessarily prevent an occasion being subject to qualified privilege if the necessary interest and reciprocity are present. But analysis of the item demonstrates that there is, in reality, very little (if anything) in the way of factual information contained in these paragraphs. Nor is there any rational opinion conveyed. Although the competence of Mr Megna as Mayor and Mr Lloyd as General Manager are both subjects which justify the communication of information or opinion, to create an occasion of qualified privilege it is necessary that the communication have some content. This item fails to meet that basic requirement. There is no occasion of qualified privilege. If there were such an occasion, the imputations of incompetence (or the single sentence that conveys those imputations) would have the necessary relevance. 250 Because they were not published on an occasion of qualified privilege, these imputations do not have the protection of qualified privilege.

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It was conveyed separately by two paragraphs of the item, those extracted above. 267 On the evidence, the relevant facts were these. 268 Spencers Lane was a public roadway for which the Council was responsible. It was surrounded on three sides by properties owned by Southcorp Ltd. Its fourth side opened onto a public road. It was, in effect, a laneway that afforded access only to land owned by Southcorp Ltd. 269 In April 1996 solicitors acting for Southcorp wrote to the Council proposing purchase of the land that constituted Spencers Lane. 270 Mr Lloyd obtained a valuation of the property and invited Southcorp to make an offer to purchase the land for the sum of $288,000. He then found that there had been an error in the calculation of the area of the land that affected the valuation and advised Southcorp's solicitors that the Council would be looking for a purchase price "towards $200,000 to $220,000". 271 There were some other complications in the valuation that need not here be discussed. 272 Southcorp Ltd made an offer of purchase at $180,000. Mr Lloyd recommended to the Council that this offer be accepted. Resolution of that recommendation was deferred to enable Councillors to consider the valuation. In February 1997 Mr Lloyd again recommended Council proceed to accept the offer of $180,000. 273 In about February 1997 Mr Tory wrote (part of Ex 2D49) to some or all Councillors, raising "matters of concern", one of which was the sale of Spencers Lane. He asked why only one valuation had been obtained; he queried the qualification of the appointed valuer to perform the task; he asked why the valuation report had not been included in the Council papers; he queried the apparent lack of interest in the issue by most Councillors; he strongly criticised both Southcorp Ltd and Mr Lloyd with respect to the negotiations. 274 Ultimately, in circumstances that do not need here to be recounted, Southcorp Ltd purchased the property for a price of $220,000 based on a deferred settlement. 275 There was further correspondence between Mr Tory and Mr Lloyd on this issue. However, consistently with the position I have previously taken, correspondence that post-dates the publication does not bear upon the issues that fall for decision (other than where it might, for example, constitute an admission). 276 I am satisfied that the issue of the sale of the land was a matter of significant interest to Mr Marshall and Mr Tory, to the residents and ratepayers of Drummoyne, and therefore created an occasion of qualified privilege. I am further satisfied that what was contained in this item was relevant to that occasion. 277 Accordingly, subject to the question of malice, these imputations were published under qualified privilege.

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● 8(a): that as Mayor of the Council Mr Megna provided information which he knew to be false for an article in a local newspaper. 285 Despite the DCRA heading, and the usual slogan, this item could in no way be perceived as directed to the affairs or performance of the Council. It was a direct attack upon Mr Megna in the context of his political ambitions. References to him as Mayor were incidental to that. That does not mean that it is not a subject matter that gives rise to an occasion of qualified privilege. Indeed, the conduct and record of candidates for political office is precisely the kind of subject matter that has repeatedly been held to give rise to such an occasion (Braddock v Bevins, Roberts v Bass, Fraser v Holmes). 286 There is, I accept, something incongruous about a finding that, in a circular proclaiming itself to be concerned with affairs of local government, an occasion of qualified privilege exists to protect a discussion of the merits of a candidate for State political office. But there are two answers to that: as I have said above, the title and slogan of the circulars is not determinative of the existence of such an occasion; and, in my view, the evidence shows that there existed considerable overlap between the relevant State electorate and the Drummoyne municipality. Accordingly, residents and ratepayers of the Drummoyne municipality had an interest in receiving information about any such candidate. As I have said above, the occasion of qualified privilege has to be determined by reference to the content of the individual item. Here, the context is concerned with the suitability of Mr Megna as a potential elected representative in State Parliament. That classically creates an occasion of qualified privilege. 287 I am satisfied that this was an issue on which Mr Marshall and Mr Tory had an interest in communicating information. 288 The question of reciprocity, however, needs further consideration. The evidence did not disclose directly the electorate in which Mr Megna's ambitions lay. However, it was implicit in the cross-examination, and from all of the material, including Mr Megna's history, and I am prepared to infer that it was an electorate that, at least, overlapped significantly, with the Drummoyne municipality. Accordingly, residents and ratepayers of the Council had the requisite interest in receiving information concerning Mr Megna's integrity and suitability as a candidate. 289 The occasion of qualified privilege is thus established. 290 I am also satisfied that nothing contained in the item was irrelevant to that occasion. 291 Accordingly, this imputation was, subject to the question of malice, published under qualified privilege.

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(a) " YELLOW, THE COLOUR OF WHIMPS " 299 The opening line of this item was: "Wanted at the next Council Elections: 'Councillors with Guts.'" 300 In the next paragraph, the subject of Mr Lloyd's re-appointment was again raised. The circular purported to report something of the history of the issue, recording that certain (named) Councillors had voted to refer the question for re-negotiation to a committee of three (including Mr Megna), that four other named Councillors, including Mr Marshall, had voted in opposition to that course. It then reported that one (named) Councillor had been endorsed as a Labor candidate in a forthcoming Federal election, and that, for that reason, he wished to avoid becoming embroiled in "a controversial dog fight at a local Council level". The item then said: "Don't let us forget the lies, mistakes and devious dealings by Lloyd toward the ratepayers." 301 The item then reported that Councillors had voted to renew Mr Lloyd's contract for five years because: "The Labor contingent caved in and changed their previous 'no' vote." 302 The next paragraph was as follows: "There is no need to list Lloyd's lies and blunders. Our circulars are full of them. Why have Councillors allowed Lloyd to blatantly facilitate State Government Policy in many areas of Drummoyne Council arrangements, to change the face of this Municipality in form and life style, to bludge on incompetence and a complete vacuum of leadership and community initiatives? Why have they backed a sneak? In particular, with a voting majority now at hand, what 'watchdog' role have the Liberal faction adopted in Lloyd's stealthy implementation of Labor systems and procedures? You've got it - none !" 303 There was then an attack on two named Councillors, followed by another reference to the Councillor then a candidate in the Federal election. 304 It then reported, of the Labor candidate: "He stood at the meeting in a 'performance' anger mode, due to this and other circular contents within this Municipality, seeking anyone to come forward with proven corruption evidence about Lloyd, Council or Councillors. Listen, John, no one has discussed corruption (yet), just incompetance [sic]. And it's currently dripping from your own shoulders! Not a good performance from one seeking to lead us at a Federal level, and precisely why this circular exists. You've shown here, Johnno, you are simply not prepared to do the job required. You've simply joined the 'Megna Club'." 305 The item finished with the assertion that all Councillors had claimed to have "seen" Mr Lloyd's contract, but queried whether they had read and agreed with it; it stated that Councillor Marshall, the sole dissident in the vote, was not permitted to see the contract, and that Mr Megna had taken both copies home with him. The item finished: "Megna knows he (Marshall) will be the only Councillor to seek to peruse it with a magnifying glass and be aware of its contents." 306 Six defamatory imputations were found to have been conveyed by this item. They are:

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● 12(d): that as General Manager of the Council Mr Lloyd acted jointly with Mr Megna to prevent ratepayers discovering the truth about a court case taken by the Council. 337 From a mere reading of the item itself, it is quite impossible to discern the subject matter upon which it purports to be giving information. Again, it reads as an attack upon Mr Megna and Mr Lloyd. 338 Both Mr Megna and Mr Lloyd were cross-examined at considerable length on what was put forward as being that subject matter. It is unnecessary to explore it in the same depth. Put briefly, it was this. (Since the evidence involves assertions adverse to the reputation of a person who is not a party to the proceedings, and is not represented, I have chosen to anonymise the references). Mr Megna was politically closely aligned with a female Councillor who I will refer to only as AA. The two were also good friends. She lived in a family home, with her brother, in a street in the municipality. 339 Some time before September 1998 Councillor AA's brother made a complaint to Council about a noisy swimming pool pump in the house next door. Councillor AA had previously spoken to the relevant Council official about the same matter. The Council took up the matter. This eventually resulted in proceedings being taken in the Local Court by the Council. The cross-examination of each plaintiff was directed to establishing, firstly, that, because the complainant was a Councillor (and a close personal and political associate of Mr Megna) undue preference had been given to acting upon the complaint and taking what turned out to be unnecessary and inappropriate action; and, secondly, that that action had been taken without the necessary preliminary steps (such as noise control testing) having taken place. I emphasise that it is no part of my role to comment upon either of these issues. The mere fact that they exist as issues is sufficient, for the purposes of a defence of qualified privilege. 340 I am satisfied that if either of these was the subject matter of the item in the circular, it would have created an occasion of qualified privilege. 341 However, it is necessary to return to the item. 342 This item does not purport to give any such information. It asks questions, and levels abuse at Mr Megna and Mr Lloyd. On no level could it be construed as communicating information to interested residents or ratepayers. 343 In respect of these imputations, the defence of qualified privilege fails at the first hurdle. There is no occasion of qualified privilege. 344 Even if, by some stretch of the imagination, it could be said that the subject matter of the item was the propriety of the conduct of Council in either of the respects mentioned, nothing contained in it (from which the imputations are derived) is relevant to either of those subject matters. As I have suggested, the item is purely abusive. 345 If it were necessary to consider the relevance question in respect of these imputations, the defence of qualified privilege would also fail at the second hurdle.

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(b) " HERITAGE & CONSERVATION ORDERS " 355 This item commences with an apology for its length. It is, by the standards of the circulars in general, extremely lengthy. The item went on to assert: "Without any discussion in Council, with Councillors knowing little about the matters, Council wrote to residents recently, advising their properties are now to be possible subject of the above 'Orders.'" 356 It warned that the ramifications were extreme for homeowners. It turned to an attack upon the person the subject of the first matter complained of, described as "the unregistered architect", giving his name. 357 The item then purported to give a history of proposals for, generally, conservation. Despite that, there is little that could be called information in the item. Allegations of lying were made against a number of individuals, including a State government minister. The last paragraph of the item reads: "Returning to Council's meeting with residents on 30/11/98, newly appointed Councillor [W] obtained confirmation from Megna, twice before a packed house of residents, that he (Megna) would 'throw out' the proposed orders at the Council meeting on 15 Dec. It was clearly stated without qualification. But Megna has no 'power' to do that. He lied again! He agreed only because of the weight of opposition in the room. At the meeting on 3/12/98, he was asked the same question again. He said 'we will consider everything'?? and would not commit himself to his previous stance. At Council's Dec. meeting the Megna lie was etched in stone . He deferred a decision to the Feb. 99 meeting, (alleging advice from Council's solicitors as the reason). Why did he say he would 'throw out' the proposals in the previous public meetings? That's the Megna agenda, lie one day, slime out of it the next. Seems 5 of the 9 Councillors in attendance were against the proposals. Suggest your attendance at the Council meeting on February 17 at 6.30 p.m. (Civic Centre). (Bring the rope, it may be needed!)" (bold and underlining in original) 358 Two defamatory imputations were held to have been conveyed by this item. They are:

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● 14(c): that as Mayor of the Council Mr Megna cannot be relied on to keep his word. 359 Documentary evidence concerning this issue is to be found in Ex 1D60 and Ex 1D61. Put briefly, it appears that a "heritage review" was undertaken by the Council's heritage advisor in 1996. It had been put on display in order for electors to be given the opportunity to make submissions. 360 The significant issues concerning heritage listing potentially affected residents and ratepayers of the municipality, particularly in respect of property dealings. On one occasion Mr Megna told a meeting of residents that he had prepared a Mayoral Minute to "throw out" the proposal because of the strength of public opposition to it. At a later time, he somewhat retreated from this position. 361 If it were the case that the item communicated information to recipients concerning the proposed heritage and conservation orders, it would, obviously, attract a finding that it created an occasion of qualified privilege. 362 However, notwithstanding the length of the item, it is difficult to locate anything that could truly be categorised as "information". True it is, buried in amongst an attack upon the "unregistered architect" (see the first matter complained of) and attacks on Mr Megna, there are some, extremely brief, passages that could provide some information. For example, the reader is told that if Council declined an application for renovations or extensions (of a heritage building) the resident would find it necessary to relocate, or appeal to the Land and Environment Court. 363 However, these passages are few and far between, and it would take a most assiduous and determined reader to extract any real information from this item. 364 Further, the imputations derive from a very short part of the item, at the very end. By no stretch of the imagination could these paragraphs be said to convey information, or even opinion. They are a vitriolic attack upon Mr Megna with no semblance of conveying information. 365 These imputations were not published on an occasion of qualified privilege. If the occasion of qualified privilege question were satisfied, conduct alleged against Mr Megna, of lying to a meeting of residents and of being unreliable, would be relevant to that occasion. 366 In respect of these imputations the defence of qualified privilege fails by reason of the first question.

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The eighth matter complained of - February 1999 367 The majority of this circular was taken up with a single item, under the heading "LLOYD: HOW MUCH LONGER AND WHAT COST?". 368 The first paragraph reads: "Here we go again, a series of stuff-ups, serious and very costly errors indeed from Russell Lloyd, our Council's general manager. This mistake-prone 'trustee' of our community money and assets just gets worse as time passes. More variations on the same theme, month after month. The lies and lack of public disclosures keep rolling out, as though it's the norm." 369 There followed sub-headings identifying six separate properties in the municipality. 370 The first was at 16 Rokeby Road, Abbotsford. Under that sub-heading, appeared a very lengthy commentary, commencing with: "Council Development Approval was given for a 5 townhouse development on 2 Dec., 1997 and Building Approval in June '98. Two neighbours twice raised written objection to Council re: height of the building, i.e. the floor slab, in relation to ground levels, as approved. Bear in mind, building from underground level upwards had only reached garage wall stage at that time. Council ignored those letters (no replies or acknowledgments). It was only when the solicitor's letter hit Lloyd's desk that Council decided to react." 371 Put briefly, the item alleged that errors occurred in the process of approving the development, with potentially very expensive consequences. 372 There was then reference to a number of other properties and developments, and, in bold uppercase letters, the following: " WE CALL UPON LLOYD, GENERAL MANAGER OF DRUMMOYNE COUNCIL, TO CONSIDER A PERMANENT REST FROM THIS COUNCIL. " 373 The item continued: "We now have the situation where consultants' costs, Council's escalating legal expenses for referral of every item under the sun and the abnormal level of costly errors and mistakes are unacceptable to this community. We find his inability to genuinely consider local residents' wishes and preferences, his adversity toward local benefits for this community in preference to overall implementation of Labor State Govt. directives without question as unpardonable. Lloyd has been untruthful to local residents who have little or no knowledge or understanding of how he has unquestionably complied with the Labor Govt., input in Drummoyne Council's 'initiatives', particularly via their organisation known as 'IMROC' (Oh, we'll explain this 'matey' arrangement next month)." 374 Two defamatory imputations were found to have been conveyed by this item. They are:

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● 16(b): that as General Manager of the Council Mr Lloyd has lied to local residents. 375 Cross-examination of Mr Lloyd established that the Rokeby Road issue was one of significance for the Council. It involved, as was asserted in the circular, a development application, which was granted, for the construction of a number of townhouses on the site. On the adjoining site was another similar, completed, development. The approval that was granted permitted construction of a concrete slab at a point somewhere above ground level, to the perceived disadvantage of the adjoining property, and another neighbouring property at the rear. This resulted from a mistake made by the developer, in submitting inconsistent plans to the Council. The Council's error was in failing to detect the inconsistency, and in granting the approval as it did. 376 The approval, and commencement of construction, resulted in complaints by the owners of the two neighbouring properties, correspondence from solicitors, and, ultimately, litigation in the Land and Environment Court on three fronts. It concluded successfully for the Council, although, obviously, at a considerable cost both financially and in terms of the Council's time. There was a side issue in that a complaint from one resident was not answered by the Council, until another Councillor took up the issue on her behalf, at which point Mr Lloyd stepped in to manage the correspondence. 377 I have set this out at some length because it is obvious that the issue was one of substance, and continued over a lengthy period of time. 378 It follows that the subject matter of this item was one on which Mr Marshall and Mr Tory had an interest in communicating information to residents and ratepayers, who had a corresponding interest in receiving such information. 379 The item was therefore published on an occasion of qualified privilege. 380 As I have mentioned, there was also reference to five other properties, of which only two were the subject of any evidence of substance. One of those concerned a new façade constructed on the Five Dock RSL Club, which, it seems, was the subject of considerable controversy. 381 The remaining question is whether what was published in this circular was relevant to the occasion of qualified privilege. I am satisfied that it was. 382 Accordingly, subject to the question of malice, these imputations were published under qualified privilege.

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● 18(c): that as General Manager of the Council Mr Lloyd lied to Council about Council's solicitor's advice. 391 The evidence establishes that an issue had arisen in the municipality concerning heritage and conservation. It arose because of the draft Heritage Local Environmental Plan which had been exhibited for some time (see the previous matter complained of). The proposal had two aspects: certain individual properties would be listed as having heritage value. This was likely to have some impact on the rights of the owners with respect to the use of the property. The other aspect was the declaration of certain areas as conservation areas. 392 Each had potential impact upon the rights, and the property values, of property owners. The community was divided, but, at one stage, at least, appeared to have been opposed to the proposals. 393 By reason of pecuniary interest provisions contained in the Local Government Act 1993, Councillors who had a personal pecuniary interest in the outcome of an issue on which a vote was to be taken were not permitted to vote. In respect of voting on the draft Heritage & Conservation Plan, issues arose as to the pecuniary interest of Councillors whose properties were subject to a proposal for listing as having heritage value, and Councillors whose properties were located in proposed heritage conservation areas, and their entitlement to vote on the proposals. Councillor T fell into the former category. Mr Lloyd advised him that he was not entitled to vote on the issue. 394 He did not give similar advice to Councillors whose properties were located in proposed heritage conservation areas. 395 Plainly, the author of the item "Pecuniary Interest" took the view that there ought be no distinction between the two, and that Mr Lloyd's advice was wrong, and was given in order to manipulate the outcome of the vote. 396 The present issue is not whether Mr Lloyd or the author of the circular was right or wrong, but whether the issue was of sufficient public interest to create an occasion of qualified privilege. I am satisfied that it was. This was a matter of considerable debate and division within the municipality. 397 Accordingly, these imputations were published on an occasion of qualified privilege. 398 I am also satisfied that, even if they were wrong, they were relevant to that occasion. 399 Subject to the question of malice, these imputations were published under qualified privilege.

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● 18(e): that as General Manager of the Council Mr Lloyd engaged in deception by deliberately leaving pages out of papers provided to Councillors who objected to a proposal he supported. 403 This item, in a sense, harks back to that earlier discussed, the question of proposed alterations to floor space ratios. 404 At a Council meeting of 19 January a resolution on that subject, including car parking contributions and other matters, was passed. Notice of a rescission motion was given by Mr Marshall and two other Councillors. 405 In the ordinary course, that rescission motion would have been considered at the next scheduled Council meeting. 406 However, in the meantime, another Councillor gave notice of a motion (concerning a marina) which resulted in the calling of an extraordinary Council meeting on 9 February 1999. 407 Mr Lloyd was responsible for the preparation of the agenda for that meeting. The meeting having been called, he took the opportunity to include, as the third item of business, the rescission motion with respect of floor space ratios. He also included a fourth item which is of no present materiality. 408 The Local Government Act requires 72 hours, or three days, notice of extraordinary general meetings. Less than that - probably 36 hours - was given of this meeting. The meeting was advertised in local newspapers and libraries in the municipality, but may not have been advertised in the public notices of the Sydney Morning Herald. 409 Eventually, the rescission motion was defeated, with the Deputy Mayor using his casting vote to achieve that end. 410 The advertising of general meetings in order to allow interested residents and ratepayers to attend is a matter of sufficient interest to those residents and ratepayers to qualify as an appropriate subject matter to create an occasion of qualified privilege. I am satisfied that, in respect of this item, the imputations were published on such an occasion. 411 Despite the somewhat violent tone of the item, it gives information which is relevant to that occasion. Accordingly, subject to the question of malice, these imputations were published under qualified privilege.

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The eleventh matter complained of - June 1999 438 The front page of this circular was in a different format to all others. While other circulars were divided into two columns, the front page of this circular was not, and was entirely devoted to a single subject, identified in large, bold, block letters underlined. The top line proclaimed: " URGENT ANNOUNCEMENT " 439 The second, in larger type, identified the subject matter as: " COUNCIL AMALGAMATION " 440 The first paragraph read: "Megna (Mayor) and Lloyd (General Manager) have been given the opportunity to secretly amalgamate Drummoyne Council with at least one other Council (Concord) without public approval or knowledge." 441 It referred to a media release and said that the then Minister for Local Government had written to Mr Megna: "… saying if you want to amalgamate with another Council, we will help you." 442 The circular said that the Council elections for the municipality scheduled for September 1999 would be cancelled "by legislation", with the Council carrying a simple resolution of "an intention" to amalgamate. 443 Again in large bold type, the circular said: " ● THERE NEED BE NO PUBLIC CONSULTATION BEFORE THIS RESOLUTION IS CARRIED BY COUNCIL. ● MEGNA (who was not going to contest the Election) AND LLOYD CAN CONTINUE THEIR RANGE OF LOCAL ABUSES UNTIL THERE IS AN ELECTION. ● MEGNA [COUNCILLOR L] & CO. will be allowed to stay on as Your Councillors, by this Government measure, even though the Residents of this Municipality say they have reached their 'use by' date. ● DO YOU WANT TO KEEP THESE DISCREDITED COUNCILLORS FOR ANOTHER 12 MONTHS? … Drummoyne Council has existed for more than 125 years. And this means an ad-hoc decision will be made by political hacks for their own gains in less then 3 weeks, and with no notice to YOU. …" 444 At the bottom of the page, again in large bold type and underlined appears the following: " MEGNA & LLOYD DON'T WANT YOU TO BE THERE FOR THE TRUTH TO BE DISCLOSED " 445 The circular was held to have conveyed seven defamatory imputations. They are:

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● 22(g): that as General Manager of the Council Mr Lloyd wishes to keep the truth about the proposed amalgamation of the Council with another Council from residents. 446 Mr Megna, in particular, was subjected to extremely lengthy cross-examination on this issue. Possible amalgamation was, the evidence establishes, an issue of very considerable concern to residents and ratepayers in the municipality. 447 The issue arose in about the middle of 1999, when the Minister for Local Government proposed that councils consider amalgamation. By media release (Ex 1D25) he indicated that the Government would view favourably proposals for amalgamation, and that, where a joint expression of interest from two councils was made, then, by legislation, the elections otherwise scheduled for the end of 1999 would be deferred for about one year. Should this be taken up by any council, Councillors of those councils would secure an extra year in office. As it happened, that year was 2000, the year that the Olympic Games were to be held in Sydney. 448 The issue generated a great deal of controversy in the community. The evidence establishes that a number of newspaper articles were written, letters were written to the editor, there was debate in Parliament, and political parties adopted a position on the issue. 449 By mayoral minute (Ex 1D27) Mr Megna proposed that the Council resolve to pursue amalgamation with Concord Council with the intention of developing a firm proposal by 31 March 2000. Consultants were engaged to advise, and a taskforce was set up. 450 I pause at this stage to note that the cross-examination explored events and discussions that post-dated publication of this circular. For the purpose of considering whether qualified privilege attached to that publication, I disregard that evidence. It cannot throw any light upon the interest of Mr Marshall and Mr Tory, at the time of publication, in communicating information to residents and ratepayers, nor to their reciprocal interest in receiving such information. 451 In any event, it is unnecessary. The proposed amalgamation of two councils is plainly an issue on which Mr Marshall and Mr Tory, and residents and ratepayers, had a reciprocal interest in communicating. 452 I am satisfied that these imputations were published on an occasion of qualified privilege. 453 Notwithstanding the strength of the language used and the argument put, there is nothing irrelevant in what was published. 454 Accordingly, subject to the question of malice, these imputations were published under qualified privilege.

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(a) " COUNCIL AMALGAMATION " 456 This item is extremely lengthy, covering both columns on the front page and a small amount on the second page. 457 Despite its heading, it contains little that is directed to communicating information about the amalgamation. 458 The first paragraph commences: " Welcome to the ratepayers of Concord Municipality . For the first time, you receive a copy of this Circular as a result of Concord … and Drummoyne … Councils' decision, without any discussion or public input whatsoever, to proceed 'to pursue discussion on amalgamation.' The process is nothing but fraud, but is given legitimacy by Harry Woods, State Minister for Local Government. Guess what? Our month-long initial investigation into 'Concord', its Mayor and Councillors, throws up just as much of the same muck as that in 'Drummoyne'. We look forward to publishing most of it in the forthcoming months prior to the next election, to show you just what incompetents decide Local Government policy in both areas and what they do with your money. 'Drummoyne' had Mayor Megna, (until Sept.8th), a proven and continuous public liar, Lloyd (general manager) the same, and a group of ineffective and politically controlled Liberal and Labor Councillors …" 459 There was then a paragraph with the sub-heading: "To the amalgamation!" 460 The item then went on to accuse the then Carr Government of NSW of attempting: "… to seize a gigantic slab of power over local individuals, to take away those individual's right to local democracy, their one source of available input at 'grass root' level, and dilute it into a smaller number of far larger Councils throughout this State. That's control. That's what this is about." 461 The item went on: "For good riddance, these Councillors voted on your behalf, without consultation, to cancel the Council elections in Sept., the only time in 4 years in which you are able to deal with inept Councillors. You also had your Constitutional Referendum decision of 1998, to vote for a new Mayor scrubbed. They call that democracy? And who paid for that Drummoyne Referendum back in Nov. '98? Of Course, YOU DID! The mug resident! More Council waste …" (bold and underling in original) 462 In the next column the following appears: " In fact, both Councils' staffs have already been told that there will be no staff redundancies . Based upon Megna's feeble record, how could we believe anything he says about anything? …" (bold in original) 463 There is then a reference to Council amalgamations in Victoria, and a series of rhetorical questions. 464 There is much more, but it is unnecessary to record it. 465 This item was held to have conveyed six defamatory imputations. They are:

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For a successful prosecution we need evidence. This could be in the form of statutory declarations, photographs, home movies and a willingness to appear as a witness in a court of law." 483 Recipients were invited to contact Mr Megna, and either of two other named Councillors. 484 He then distributed two issues of a newsletter entitled "Veritas". The first issue, published in October 1999, contained a number of items, one of which was: "David Marshall is against over overdevelopment? … or is he? Why was he acting for a developer who had excavated into neighbours' land and built contrary to approved plans?" 485 There were other items critical of Mr Marshall. 486 The second issue of Veritas, also issued in late in late 1999, again contained criticism of Mr Marshall; his conduct was labelled as "hypocrisy". 487 There is nothing in this that creates an occasion of qualified privilege. In any case, anything published in the item presently under consideration was not relevant to any occasion of qualified privilege. 488 The assertions contained in the item about publication of criminally defamatory circulars by Mr Megna are not borne out by the evidence; there is no evidence remotely approaching that accusation, such as to create an occasion of qualified privilege. Nor does the evidence bear out the assertions about the police report. I see nothing in this item which would justify the conclusion that it was published on an occasion of qualified privilege. Nor is anything contained in it relevant to any such occasion. 489 In respect of these imputations, the defence of qualified privilege fails. 490 A further item in this circular was entitled: " SUTTON PLACE, DRUMMOYNE " 491 It also contained an allegation of lies on the part of Mr Megna. That passage was said, also, to convey imputation 12(a). 492 There is nothing in this item which justifies a conclusion that was published on an occasion of qualified privilege, and the part of the item from which the imputation is derived is not relevant to any such occasion.

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(a) " COUNCIL AMALGAMATION RORT " 508 This was a very lengthy item (by the standards of the circulars), covering the entirety of both columns on the first page, the whole of the first column on the second page, and about a quarter of the second column on that page. The item opened with the following paragraph: "In our July, September and November '99 circulars, we alerted you to Drummoyne and Concord Councils' 'pursual of amalgamation', beginning in June, how that was simply a fraudulent front to their already secretly planned arrangements, how they were 'preserving' their own interests and just how Megna and Woods (each of the Councils' then Mayors), backed by their own deviate Councillor supporters, were manipulating you, the ratepayers to the hilt. Now, let's add the salt to the juice, confirmation of the real situation." 509 This was followed by a reference to an item at the Council's November meeting, concerning the merger proposal, described as "inexpliacably (sic) brief" signed by the Mayors of both Councils and "Executive Summary" of a "Preliminary Investigation Report", advising that the report was to be prepared by two separate (named) consultants. It suggested that this gave the appearance that the Council was "doing the 'right thing'" by appointing two independent consultants. It then described that as a "fraudulent charade"; this was followed by the assertions that both consultants were Brisbane based, and by a series of rhetorical questions about the efficacy and cost effectiveness of the use of interstate consultants in place of local, Sydney based, consultants. 510 In the next paragraph it was said that neither of the entities described as consultants was a registered business name. The paragraph continued: "So, why didn't Drummoyne Council tell us that in their Business Paper, dated 16/11/99 Council didn't need to check, because Lloyd (Gen. Mgr.) already knows it's a whole lot of 'wink, wink, nudge, nudge' stuff. Lloyd's Business Paper lied to the public …" 511 There were then many paragraphs about the consultants, and an attack on the Mayor of Concord, who, it was said, also held a role as President of the Local Government Association and another organisation. 512 Again, the question was asked why Sydney based consultants were not being used. The item went on: "Talk about a mates' deal. Isn't the whole thing racked with conspiracy and fraud?

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● 28(f): that as General Manager of the Council Mr Lloyd lied to the public. 517 If the title given, by the heading, to the item could be taken at face value, the item would have been published on an occasion of qualified privilege. That is because the subject matter of Council amalgamation is a matter of legitimate public interest to residents and ratepayers. 518 However, it is necessary to examine the true content of the item to determine, if, properly construed, that is its subject matter. 519 I accept that certain parts of the item are directed to legitimate questions about the manner in which the amalgamation issue was to be decided, for example the use of interstate based consultants to advise. But it is necessary, particularly in an item of the length of this one, to focus more precisely upon those parts of the item that gave rise to the imputations found by the jury to have been conveyed. 520 The first paragraph, giving rise to imputation 28(a), is merely a reminder of what was said to have been conveyed in previous circulars. 521 I have, somewhat reluctantly, come to the conclusion that what is contained is a subject matter of legitimate interest to residents and ratepayers of the Council, and is therefore published on an occasion of qualified privilege. What is contained is (whether right or wrong) relevant to that occasion. Imputation 28(a) was, therefore, subject to the question of malice, published under qualified privilege. 522 Similarly, the status of consultants employed by the Councils is a matter of legitimate public interest, as is the circumstance (if it be the circumstance) that the Business Paper prepared by Mr Lloyd dishonestly misled the public. This is the passage that gives rise to imputation 28(f). Accordingly, this imputation was published on an occasion of qualified privilege and is relevant to that occasion. Subject to the question of malice, imputation 28(f) was published under qualified privilege. 523 The paragraph commencing "Back in June '99", is focussed almost exclusively upon Mr Megna and his relationship with the Liberal party. It is not directed to any issue on which residents and ratepayers (as distinct, perhaps, from members or supporters of the Liberal party) had a legitimate interest. Imputations 28(b) and 28(c) are derived from this paragraph. They were not published on an occasion of qualified privilege, and are not relevant to any such occasion. Accordingly, in respect of imputations 28(b) and 28(c), the defence of qualified privilege fails. 524 Imputation 28(b) was also held to have been conveyed by a later passage, concerning the appointment of a task force to appraise the amalgamation proposal. There is, however, no real content to the assertion that Mr Megna lied in respect of the appointment of that task force and it could not be said to have communicated any information relevant to residents and ratepayers. 525 Imputation 28(d) arises from the passage, in bold print, in which reference was made to "these deviates". There is no semblance of information communicated to residents and ratepayers in this passage. Accordingly, this imputation was not published on an occasion of qualified privilege. Even if there were such an occasion, the characterisation of Mr Megna as a "deviate" is not relevant to any such issue. 526 In respect of imputation 28(d) the defence of qualified privilege fails.

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● 30(a): that as Mayor of the Council Mr Megna is a constant public liar. 552 There was evidence, in that part of the hearing that took place in February 2008, concerning an incident between Mr Megna and Mr Marshall, in which a windscreen was broken. 553 There was also reference to such an incident in Veritas No 2 (Ex J), published by Mr Megna in late 1999. The item in that publication was headed: " CRIMINAL ACT " 554 The item read: "Residents will no doubt have read newspaper reports of Cr David Marshall smashing my windscreen when I watched him delivering the defamatory 'Drummoyne Council Ratepayers' Association' monthly circular. He admitted to Police that he smashed the windscreen and they have referred it to their prosecutions section for further action. Not only was it malicious damage to my vehicle, it was actual bodily harm as I was sitting in my parked car when the shower of glass covered my body and entered my eyes. Cr Marshall and some members of his DMRA organisation thought it was a big joke as they yahooed in the public gallery at November's Council meeting. How would they like it if they or members of their families had to suffer similar circumstances? Life in Drummoyne, Marshall style." 555 On behalf of the defendants, it was submitted that what appeared under the heading "Why?" in the February 2000 circular was merely a response to Mr Megna in a public forum, and participation in a public discussion. Reference was made to evidence given by Mr Megna that Veritas No 2 was "political comment" and it was argued that, by the same process of reasoning, the topic discussed in this item also falls into the same category. 556 One short answer to that is that "political comment" is not necessarily the same thing as qualified privilege. The qualified privilege defence in this respect is not put on the basis of that special category of qualified privilege as constituted by a response to an attack. 557 Both reports of the incident are unedifying. I can understand why residents and ratepayers might have a lascivious interest in an incident of this kind between two Councillors. A lascivious interest is not, of course, sufficient to create an occasion of qualified privilege. I could also understand that a report of such an incident by an impartial third party, drawing attention to the conduct of two Councillors, would give rise to an occasion of qualified privilege. 558 I have more difficulty with the concept that the self-justification evident in both publications gives rise to such an occasion. Whether or not Veritas falls into that category is not a matter for present determination. The item now under consideration does not. 559 In respect of this imputation, the defence of qualified privilege fails.

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(a) " COUNCIL AMALGAMATION " 561 The item opened by reporting that the "forced and political merger" between the Councils was expected to be concluded that week. It then stated: " We can now clearly confirm the amalgamation process has been undertaken in a corrupt manner . The deviates from both Councils who instigated the corrupt dealings at the local level are Megna (ex Drummoyne Mayor) and [the named Mayor of Concord]." 562 This was followed by a reference to "their compliant voting followers" who were named. 563 There was further reference to the position taken by the circulars throughout the debate, some congratulation for residents who had supported the DCRA, and criticism of those who had not, followed by: "Where was that essential and real action back in June '99 when we brought the amalgamation proposal to your attention?? As usual, public fragmentation and apathy were the culprits. The deviates rely on it . The fact is, corruption has won the day, both [the Mayor of Concord] and Megna have 'won' this confrontation, so get used to it. The dictionary describes corrupt as 'dishonest, illegalities for money or power, immoral'. Hence, with legal opinion now at hand and in our support, we will treat those involved as such from here on, corrupt ." (bold and underlining in original) 564 There was then reference to what was said to have been a constitutional referendum, or poll of electors in 1977, in which electors were asked whether they approved of the amalgamation of the municipality of Drummoyne with all or parts of any other Council or Councils to which a very significant majority voted negatively. 565 The item went on: "The law has been contravened by [the Minister], [the Mayor of Concord] and Megna. Read the Local Government Act. They are in this corrupt act together and deserve punishment for political based public manipulations and self-interest. It is clearly a forced amalgamation . If you, the residents are fair dinkum in your opposition, sue them. Take them on! Take out an Injunction. Stop the merger. Stop Council business until a compulsory referendum is agreed to by the Minister …" 566 This item was found to have conveyed three defamatory imputations:

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● 32(f): that as a Councillor on the Council Mr Megna wants to lie, cheat and coerce on Council without interference. 579 Exhibit 2D48 is an extract from a transcript of proceedings in the Local Court at Burwood on 1 May 2000. The opening page of the transcript shows that there were before the magistrate proceedings brought by Mr Marshall against Mr Megna for an apprehended violence order, and a criminal charge of causing malicious damage brought by the Police against Mr Marshall. 580 The magistrate determined that the criminal prosecution should proceed first. 581 I infer that Mr Megna was the first and principal witness for the prosecution. It is necessary to draw that conclusion by inference because that part of the transcript that is the exhibit goes directly to cross-examination of Mr Megna by Mr Marshall, who represented himself in the proceedings. 582 The transcript is not particularly illuminating about the nature of the allegations made against Mr Marshall. 583 Mr Megna gave some evidence of the subject of the proceedings when he gave his evidence in chief in February 2008 (T 73). He said that, in November 1999, while in the process of delivering circulars at Drummoyne, Mr Marshall smashed Mr Megna's windscreen with a bar. This resulted in the Police bringing a charge against Mr Marshall. It was eventually dismissed. 584 This evidence was the subject of cross-examination, by Mr Marshall, also in February 2008, when he was representing himself, and when the defence of truth was still at large. 585 The heading of the item suggests that what follows will be an account of the proceeding in which Mr Marshall was alleged to have maliciously damaged Mr Megna's windscreen. It is conceivable that criminal proceedings involving two Councillors would be a matter of legitimate interest to residents and ratepayers of the municipality. That the event that gave rise to the proceedings appears to have been the distribution of circulars proclaiming themselves to investigate decision making by the Council and its Councillors would add some weight to such a finding. Even so, I would have serious reservations about finding that this was sufficient to give rise to an occasion of qualified privilege. 586 However, it is unnecessary to make that difficult decision. Analysis of the content of the item demonstrates clearly that, notwithstanding the heading, the item does not purport to provide information of any substance with respect to the court proceedings. As with a number of the items previously considered, the true subject matter of the item is vitriolic abuse of Mr Megna. I accept that vitriolic abuse may be the subject of qualified privilege, but it is necessary that there be some "information" content in the matter complained of. This item is, essentially, devoid of any such information. 587 Accordingly, these imputations were not published on an occasion of qualified privilege. 588 Even if the subject matter could be stretched to incorporate the substance of the proceedings in the Local Court, those passages which give rise to the imputation are not relevant to that occasion. 589 The defence of qualified privilege in respect of these imputations fails on both limbs of the test.

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The evidence 603 Neither Mr Marshall or Mr Tory gave evidence. Their motivation in publishing the circulars must therefore be decided by inference. 604 There is ample evidence, in the circulars themselves, that their author(s) harboured ill will, bias and prejudice towards Mr Megna and Mr Lloyd. But that is not sufficient to establish that that was the motivation for publication, even by the author. 605 From the content of the circulars themselves, I would infer that the author(s) had a deeply held conviction about the management of the Council (adverse to both plaintiffs) and, while this conviction was the source of the ill will, bias and prejudice that permeates the circulars, it was, in reality, that conviction, and not spite, that motivated their composition. But that is beside the point. There is another matter. 606 Here, it is to be remembered that authorship is unattributed. It has not been shown that either Mr Marshall or Mr Tory composed or contributed to the composition of the circulars. The most that is proved is that they delivered them, and, perhaps, that Mr Marshall had a hand in printing them. (Just what the jury accepted about publication cannot be known.) That they distributed or printed the circulars is insufficient to establish that they, or either of them, harboured ill will towards either plaintiff. 607 Even if (contrary to Roberts v Bass) it could be held, because of the tone of the circulars, that the author(s) were actuated by express malice, that malice cannot be transferred to defendants who are publishers by reason of distribution (or printing). There is no doctrine of transferred malice in the law of defamation apart from the ordinary principles of vicarious liability: Bass v TCN Channel Nine Pty Ltd [2003] NSWCA 118 at [77]. 608 There is some evidence of actual hostility between Mr Megna and Mr Marshall. The clearest such evidence is that of the confrontation in which Mr Megna's car was damaged, Mr Marshall was charged (at Mr Megna's behest) with the criminal offence of malicious damage, and Mr Marshall sought an apprehended violence order against Mr Megna. 609 But it would be wrong to treat that evidence as evidence of Mr Marshall's motive in publishing (distributing) the circulars. Firstly, it was the publication that gave rise to the incident; it was not the incident that gave rise to the publication. Secondly, the incident occurred well into the sequence of publications - the first circular was published in February 1998; this incident occurred in November 1999. 610 There is also evidence that Mr Tory corresponded with Mr Lloyd, in a challenging fashion. However, that is entirely consistent with an interested ratepayer seeking information on matters relevant to his status as a ratepayer and resident. 611 For reasons that I have given above, the abusive tone of the circulars does not of itself establish malice. There is no other evidence of the motivation of either defendant in publishing. I am unable to find that either Mr Tory nor Mr Marshall was actuated by express malice in publishing the circulars. Indeed, I incline to the view that the vigorous - "vituperative" - tone of the circulars, or some of the items therein suggests that the author(s) used the occasion of qualified privilege for precisely the purpose for which the privilege is conferred - to inform residents and ratepayers about matters to do with the conduct of Council, its Councillors, and the General Manager. 612 The following is a summary of my conclusions above.

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Matter complained of Item headed 1 Chummy Chums, Comfy Comfort March 1998 1 Chummy Chums, Comfy Comfort 1 Chummy Chums, Comfy Comfort 2 The Secret Deal Item April 1998 2 The Secret Deal Item 3 Message from the Mayor, '98: May 1998 4 Political Bull August 1998 4 LEP Draft Amendments 5 Yellow, the Colour of Whimps September 1998 5 Yellow, the Colour of Whimps 5 Megna, a bit slow again 6 Same Mayor, Split Council October 1998 6 Same Mayor, Split Council 6 Councillor''s 7 Councillor''s December/ January 1999 7 Heritage & Conservation Orders 7 Heritage & Conservation Orders 9 Lies and More Lies, March 1999 10 Omnibus (for all), but it was empty May 1999 10 Five Dock Leisure Centre: 11 Urgent announcement June 1999 Council amalgamation 11 Urgent announcement Council amalgamation 11 Urgent announcement Council amalgamation 11 Urgent announcement Council amalgamation 12 Council Amalgamation September 1999 12 Council Amalgamation 12 Council Amalgamation 12 Council Amalgamation 12 Liar, Liar, Liar lies again: 12 Liar, Liar, Liar lies again: 13 Council Amalgamation November 1999 13 Council Amalgamation 13 Council Amalgamation 13 Council Amalgamation 13 Council Amalgamation 14 Council Amalgamation Rort January 2000 14 Council Amalgamation Rort 14 Council Amalgamation Rort 14 Council Amalgamation Rort 14 Access to Council files 15 Why? February 2000 16 Council Amalgamation October 2000 16 Council Amalgamation 16 Council Amalgamation 16 Council Elections, 16 Recent Court Case 16 Recent Court Case 17 August/ Michael Megna - You asked for it! September 2003 17 Michael Megna - You asked for it! 17 Michael Megna - You asked for it! 17 Michael Megna - You asked for it! 17 Michael Megna - You asked for it! 17 Michael Megna - You asked for it! 17 Michael Megna - You asked for it! 17 Michael Megna - You asked for it! Imputation Paragraph of Judgment Whether published under Qualified Privilege 2(a): that as Mayor of the Council Mr Megna had not been impartial in his appraisal of the performance of Mr Lloyd 208 Yes, paragraph 219 2(b): that as Mayor of the Council Mr Megna had not acted in the interests of residents 208 Yes, paragraph 219 2(c): that as Mayor of the Council Mr Megna had engaged in personal favouritism in his attitude to the performance of the Council's General Manager 208 Yes, paragraph 219 4(a): that as Mayor of the Council Mr Megna manipulated the Council agenda to prevent residents being able to address the Council about the performance of Mr Lloyd 234 Yes, paragraph 235 4(b): that Mr Megna is a sneak 234 Yes, paragraph 235 6(a): that as Mayor of the Council Mr Megna is incompetent 246 No, paragraph 250 8(a): that as Mayor of the Council Mr Megna provided information which he knew to be false for an article in a local newspaper 284 Yes, paragraphs 289-291 8(b): that as Mayor of the Council Mr Megna is incompetent 293 No, paragraph 297 10(a): that as Mayor of the Council Mr Megna was not prepared to do the job required 306 Yes, paragraph 309 10(b): that as Mayor of the Council Mr Megna is incompetent 306 Yes, paragraph 309 10(c): that as Mayor of the Council Mr Megna lied to the public in an article in the local newspaper 314 Yes, paragraph 320 12(a): that as Mayor of the Council Mr Megna is motivated primarily by personal greed 326 No, paragraphs 330-333 12(b): that as Mayor of the Council Mr Megna lies routinely to the ratepayers 326 No, paragraphs 343-345 (sic) Domestic Dispute 12(c): that as Mayor of the Council Mr Megna acted jointly with Mr Lloyd to prevent ratepayers discovering the truth about a court case taken by the Council 336 No, paragraphs 343-345 (sic) Domestic Dispute 14(a): that as Mayor of the Council Mr Megna committed Council resources to supporting another Councillor in a private dispute with a neighbour because he was a crony of that other Councillor 351 No, paragraph 354 14(b): that as Mayor of the Council Mr Megna lied to a meeting of residents 358 No, paragraph 366 14(c): that as Mayor of the Council Mr Megna cannot be relied on to keep his word 358 No, paragraph 366 Keep 'Em Coming 18(a): that as Mayor of the Council Mr Megna is a liar 414 No, paragraph 418 20(b): that as Mayor of the Council Mr Megna colluded with Mr Lloyd to deprive the Council of relevant information 423 Yes, paragraphs 426-428 20(a): that as Mayor of the Council Mr Megna will behave dishonestly in negotiating terms for the lease of the Five Dock Leisure Centre 431 Yes, paragraph 437 22(a): that as Mayor of the Council Mr Megna colluded with Mr Lloyd to deprive the public of the opportunity to oppose the amalgamation of their Council with another 445 Yes, paragraphs 451-454 22(b): that as Mayor of the Council Mr Megna has engaged in abuses of his office 445 Yes, paragraphs 451-454 22(c): that as Mayor of the Council Mr Megna intends by secret action to extend his term of office so that he can continue his abuses in his office for his own gain 445 Yes, paragraphs 451-454 22(d): that as Mayor of the Council Mr Megna wishes to keep the truth about the proposed amalgamation of the Council with another Council from residents 445 Yes, paragraphs 451-454 24(a): that as Mayor of the Council Mr Megna is a continuous public liar 465 & 478 No, paragraph 472 24(b): that Mr Megna is dishonest in his public office as Mayor of the Council 465 No, paragraph 472 24(c): that as Mayor of the Council Mr Megna lacks credibility 465 No, paragraph 472 24(d): that as Mayor of the Council Mr Megna practices deceit at every Council meeting 465 No, paragraph 472 24(a): that as Mayor of the Council Mr Megna is a continuous public liar 478 No, paragraph 489 24(d): that as Mayor of the Council Mr Megna practises deceit at every Council meeting 478 No, paragraph 489 26(a): that Mr Megna is dishonest 496 No, paragraph 498 26(b): that as Mayor of the Council Mr Megna engaged in manipulation to avoid a Council election 496 No, paragraph 498 26(c): that as Mayor of the Council Mr Megna engaged in activity which was morally corrupt 496 No, paragraph 498 26(d): that as Mayor of the Council Mr Megna is devious vermin 496 No, paragraph 498 26(f): that as Mayor of the Council Mr Megna has engaged in criminal conduct 502 No, paragraph 504 28(a): that as Mayor of the Council Mr Megna fraudulently concealed from residents his plans to amalgamate Drummoyne and Concord Councils 516 Yes, paragraph 521 28(b): that as Mayor of the Council Mr Megna was a liar 516 No, paragraph 523 28(c): that as Mayor of the Council Mr Megna was dishonest in his political allegiance 516 No, paragraph 523 28(d): that as Mayor of the Council Mr Megna was a deviate 516 No, paragraph 525 28(e): that as Mayor of the Council Mr Megna took bribes to allow construction which did not comply with the conditions of Development Applications 534 Yes, paragraph 541 30(a): that as Mayor of the Council Mr Megna is a constant public liar 551 No, paragraph 559 32(a): that as a Councillor on the Council Mr Megna is dishonest 556 Yes, paragraph 568 32(b): that as a Councillor on the Council Mr Megna engages in illegalities for money or power 566 Yes, paragraph 568 32(c): that as a Councillor on the Council Mr Megna is immoral 566 Yes, paragraph 568 2nd December, 2000: 32(d): that as a Councillor on the Council Mr Megna openly deceives ratepayers 570 Yes, paragraphs 573 - Megna And Marshall 32(e): that as a Councillor on the Council Mr Megna is a proven and consistent public liar 578 No, paragraph 587 - Megna And Marshall: 32(f): that as a Councillor on the Council Mr Megna wants to lie, cheat and coerce on Council without interference 578 No, paragraph 581 34(a): that in his role as a member of the Council over many years Mr Megna has engaged in deception 594 Yes, paragraph 597 34(b): that in his role as a member of the Council over many years Mr Megna has engaged in political corruptness 594 Yes, paragraph 597 34(c): that in his role as a member of the Council over many years Mr Megna has engaged in manipulation 594 Yes, paragraph 597 34(d): that in his role as a member of the Council over many years Mr Megna has told repeated lies 594 Yes, paragraph 597 34(e): that in his role as a member of the Council over many years Mr Megna has acted vindictively 594 Yes, paragraph 597 34(f): that in his role as a member of the Council over many years Mr Megna has cheated 594 Yes, paragraph 597 34(g): that in his role as a member of the Council over many years Mr Megna has engaged in public dishonesty 594 Yes, paragraphs 597 34(h): that in his role as a member of the Council over many years Mr Megna has sought primarily to benefit himself 594 Yes, paragraph 597

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Matter complained of Item headed Imputation Paragraph of Judgment Whether published under Qualified Privilege 1 Architect, when not an Architect 2(d): that Mr Lloyd is incompetent as General Manager of the Council 198 Yes, paragraph 204 March 1998 1 Architect, when not an Architect (2e): that as General Manager of the Council, Mr Lloyd had lied about his knowledge of the qualifications of a person retained by the Council as a consultant 198 Yes, paragraph 204 2 Urban Design Study 4(c): that as General Manager of the Council Mr Lloyd ordered a study at the cost of $60,000 which he knew was a sham designed to support a pre-determined result 225 Yes, paragraph 232 April 1998 3 Going with the Hird 6(b): that as General Manager of the Council Mr Lloyd is incompetent 238 Yes, paragraph 242 May 1998 3 What time is it? 6(c): that as General Manager of the Council Mr Lloyd puts his own personal interests ahead of those of the community 254 Yes, paragraph 260 3 What time is it? 6(d): that as General Manager of the Council Mr Lloyd orchestrated a sneaky attempt to change the starting time of Council meetings without giving the public a chance to oppose it 254 Yes, paragraph 260 3 Old News - Spencers Lane, Five Dock 6(e): that as General Manager of the Council Mr Lloyd had lied about the use of ratepayers' money 266 Yes, paragraph 277 4 LEP Draft Amendments 8(c): that as General Manager of the Council Mr Lloyd is incompetent 293 No, paragraph 297 August 1998 5 Yellow, the Colour of Whimps 10(d): that as General Manager of the Council Mr Lloyd had lied to the ratepayers 306 Yes, paragraph 309 September 1998 5 Yellow, the Colour of Whimps 10(e): that as General Manager of the Council Mr Lloyd acted deviously towards the ratepayers 306 Yes, paragraph 309 5 Yellow, the Colour of Whimps 10(f): that as General Manager of the Council Mr Lloyd is incompetent 306 Yes, paragraph 309 5 Yellow, the Colour of Whimps 10(g): that as General Manager of the Council Mr Lloyd is a sneak 306 Yes, paragraph 309 6 Councillor's Domestic Dispute 12(d): that as General Manager of the Council Mr Lloyd acted jointly with Mr Megna to prevent ratepayers discovering the truth about a court case taken by the Council 336 No, paragraphs 343-345 October 1998 7 Councillor's Domestic Dispute 14(d): that as General Manager of the Council Mr Lloyd lied to the Council and ratepayers 351 No, paragraphs 352-354 December/ January 1999 7 Councillor's Domestic Dispute 14(e): that as General Manager of the Council Mr Lloyd acted jointly with Mr Megna to prevent the public finding out that there was no proper basis for legal action begun by the Council 351 No, paragraphs 352-354 8 Lloyd: How much longer and what cost? 16(a): that as General Manager of the Council Mr Lloyd is incompetent 374 Yes, paragraph 382 February 1999 8 Lloyd: How much longer and what cost? 16(b): that as General Manager of the Council Mr Lloyd has lied to local residents 374 Yes, paragraph 382 9 Heritage & Conservation Orders" 18(b): that as General Manager of the Council Mr Lloyd manipulated the vote at a Council meeting to achieve a result he desired by saying falsely that a Councillor who opposed the proposal was ineligible to vote because he had a pecuniary interest 390 Yes, paragraph 399 March 1999 9 Heritage & Conservation Orders" 18(c): that as General Manager of the Council Mr Lloyd lied to Council about Council's solicitor's advice 390 Yes, paragraph 399 9 Extra-ordinary Council Meeting 18(d): that as General Manager of the Council Mr Lloyd lied about having advertised a meeting, when in fact he had deliberately not done so to avoid residents attending 402 Yes, paragraph 411 9 Extra-ordinary Council Meeting 18(e): that as General Manager of the Council Mr Lloyd engaged in deception by deliberately leaving pages out of papers provided to Councillors who objected to a proposal he supported 402 Yes, paragraph 411 10 Omnibus (for all), but it was empty 20(d): that as General Manager of the Council Mr Lloyd colluded with Mr Megna to deprive the Council of relevant information 423 Yes, paragraph 428 May 1999 10 Five Dock Leisure Centre 20(c): that as General Manager of the Council Mr Lloyd will behave dishonestly in negotiating terms for the lease of the Five Dock Leisure Centre 431 Yes, paragraph 437 11 Urgent announcementCouncil amalgamation 22(e): that as General Manager of the Council Mr Lloyd colluded with Mr Megna to deprive the public of the opportunity to oppose the amalgamation of their Council with another 445 Yes, paragraph 454 June 1999 11 Urgent announcement Council amalgamation 22(f): that as General Manager of the Council Mr Lloyd has engaged in abuses of his office 445 Yes, paragraph 454 11 Urgent announcementCouncil amalgamation 22(g): that as General Manager of the Council Mr Lloyd wishes to keep the truth about the proposed amalgamation of the Council with another Council from residents 445 Yes, paragraph 454 12 Council Amalgamation 24(e): that as General Manager of the Council Mr Lloyd is a proven continuous public liar 465 No, paragraph 472 September 1999 12 Council Amalgamation 24(f): that as General Manager of the Council, Mr Lloyd is dishonest 465 No, paragraph 472 13 Council Amalgamation 26(g): that as General Manager of the Council Mr Lloyd colluded with Mr Megna to amalgamate Drummoyne and Concord Councils against the best interests of the residents 496 No, paragraph 499 November 1999 14 Council Amalgamation Rort 28(f): that as General Manager of the Council Mr Lloyd lied to the public 516 Yes, paragraph 522 January 2000 14 Access to council files 28 (g): that as General Manager of the Council Mr Lloyd took bribes to allow construction which did not comply with the conditions of Development Applications 534 Yes, paragraph 541 15 Council Amalgamation 30(b): that as General Manager of the Council Mr Lloyd has imposed deception on ratepayers 544 Yes, paragraphs 547-549 February 2000 15 Council Amalgamation 30(c): that as General Manager of the Council Mr Lloyd has been party to fabricating information 544 Yes, paragraphs 547-549 15 Council Amalgamation 30(d): that as General Manager of the Council Mr Lloyd has knowingly used a fraudulent consultant's report to achieve an amalgamation of Drummoyne and Concord Councils 544 Yes, paragraphs 547-549 15 Council Amalgamation 30(e): that as General Manager of the Council Mr Lloyd has committed substantial and voluminous irregularities 544 Yes, paragraphs 547-549

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(b) that Mr Marshall was a hypocrite in that prior to the 1995 Council election he had criticised a development at Abbotsford Cove which he then voted in favour of, once elected to Council. 617 In response, Mr Megna pleads that each imputation was published on an occasion of qualified privilege at common law, and pursuant to s 22 of the Defamation Act. (This latter plea was abandoned at the hearing.) The qualified privilege defence was limited to that species known as "response to an attack". He also pleaded a defence of comment to each of the imputations. At the hearing, the defence of comment was limited to the second imputation. 618 Mr Marshall filed a reply to the defence to the cross-claim at a time when he was not legally represented. Not surprisingly, it is hardly illuminating. The proceedings were conducted on the basis that Mr Marshall alleges that Mr Megna, in publishing the imputations, was actuated by express malice. 619 Mr Megna gave evidence about the circumstances of the publication of the Veritas leaflets. The first (not the subject of the cross-claim) was "professionally letterboxed" (T 84) to "the then Drummoyne municipality". The second (the subject of the cross-claim) was distributed to the same area - the "old Drummoyne municipality" - delivered by Australia Post. Its distribution was, therefore, essentially the same as I have found the distribution of the circulars to have been. 620 Mr Megna's evidence about his purpose in publishing the Veritas leaflets was somewhat confused. In cross-examination, he said that the first was published in response to items in the circulars but that in publishing the second he: "… was moving on to other items." (T 554) 621 In response to a specific question about the defence of qualified privilege by response to an attack, he said: "No, I didn't reply to things said about me. I am putting my side of the story." (T 554) 622 He repeated that, in publishing the second Veritas he had: "moved on to other items." (T 554) 623 He said: "If anything came up in the circular I would have responded to it, otherwise I was talking about topical events." (T 554) 624 However, immediately after that, in response to a specific question suggesting that in publishing the second Veritas, he was not attempting to respond to anything in any circular, he said that it was "certainly" his intention to put out copies of Veritas to respond to items from the circulars. 625 The evidence is, to say the least, confusing. However, it is, I think, a reasonable inference that the first Veritas leaflet was conceived as a means of responding to the publication of the circulars, and that this applied also to the second. 626 That, however, does not have the necessary consequence that everything published in Veritas, even that which is defamatory of Mr Marshall, can be construed as a reply to the attacks in the circulars. It is a question of construction of that part of the content of the second Veritas that conveys the defamatory imputations. 627 Given the sustained and continuing nature of the attacks made on Mr Megna by the circulars, and the wide variety of issues upon which he was attacked, I think it is proper to construe the second Veritas as coming within that category - a response to an attack made upon Mr Megna. 628 On behalf of the defendants it was argued that what was contained in the second Veritas was not in any way a direct response to any matter raised in the circulars. However, I do not, in the circumstances of this case at least, see that as being necessary. By the time the second Veritas was published the circulars had been issued, on a monthly basis, for at least a year. At least seven of them had conveyed imputations defamatory of Mr Megna. It is not to the point that some of those have now been successfully defended. For Mr Megna to raise issues concerning Mr Marshall's conduct, in relation to Council matters, was a legitimate form of response. 629 Asking myself the same questions as I asked in respect of the plaintiffs' claims, I find that the second Veritas was published on an occasion of qualified privilege (the subject matter giving rise to the occasion being the affairs of the Council, and, more particularly, Mr Marshall's role and conduct in relation to Council matters); there is nothing irrelevant in the content that would deprive the publication of the defence. 630 Accordingly, subject to the question of malice, these imputations were published under qualified privilege.

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The comment defence 631 Division 7 of the Defamation Act 1974 provided for defences of comment. By s 31 a defence of comment was not available unless the comment related to a matter of public interest. Section 32 was directed to comment of the defendant: that section provides: "(1) Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of the defendant. (2) A defence under subsection (1) as to any comment is defeated if, but only if, it is shown that, at the time when the comment was made, the comment did not represent the opinion of the defendant." 632 Section 30 defines "proper material" for comment. It, relevantly, provides: "(1) For the purposes of this section, but subject to subsection (2), ' proper material for comment ' means material which, if this Division had not been enacted, would, by reason that it consists of statements of fact … or for some other reason, be material on which comment might be based for the purposes of the defence or exclusion of liability in cases of fair comment on a matter of public interest. (2) A statement of fact which is a matter of substantial truth is proper material for comment for the purposes of this section, whether or not the statement relates to a matter of public interest. (3) The defences under this Division are available as to any comment if, but only if: (a) the comment is based on proper material for comment, or (b) the material on which the comment is based is to some extent proper material for comment and the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment. (4) …" 633 The relevant imputation is of hypocrisy, in a particular, defined, respect. Mr Megna has pleaded that the comment was his own comment; he pleads that (for the purposes of s 30(1)) the factual material contained in the publication is material on which a comment of hypocrisy might be made. It is not suggested that those statements were not factually correct. They were therefore, for the purposes of s 30(2), statements of fact "of substantial truth". I accept that what was said by Mr Megna represented his opinion. 634 I am therefore satisfied that the defence of comment is made out. 635 That makes it, strictly, unnecessary to consider the question of malice in relation to the defence of qualified privilege. However, in case I am wrong about comment, it is appropriate to deal with that issue. 636 I am satisfied that Mr Megna used the occasion of qualified privilege for the very purpose for which that species of qualified privilege is permitted: to defend himself against what were sustained and continuing attacks upon his character. I am satisfied that, although he no doubt harboured the same ill will towards Mr Marshall as Mr Marshall did towards him, the motivation for the publication was, as I have said, to reply to what had been launched at him; this was not, in the circumstances, an improper purpose. 637 Accordingly, the defence of qualified privilege also succeeds.

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Mr Megna 652 I have already given a short outline of Mr Megna's community activities, at least so far as they involved the Council. The evidence was more extensive than I have mentioned. 653 Mr Megna was born in and had lived his entire life in the Drummoyne municipality. He was first elected to the Council in 1987 and was re-elected in 1991 and 1995. He held office as Mayor in 1990 to 1993 and from 1996 to 1999. On the amalgamation of the Council with the Concord Council, and the formation of the City of Canada Bay Council in 2004 he was elected to that Council. 654 He gave evidence of the time he committed to his duties as Councillor and Mayor. 655 There was some evidence, independently of himself, of his reputation. Mr John Blackadder had been a resident of the Drummoyne municipality from 1965 to 2009, with the exception of two two-year periods (1977-1979 and 1981-1983). He had himself worked in local government, although not in the Drummoyne municipality. 656 During the period of the publication of the circulars, he had received them, and had heard other residents discussing them. 657 He came to know Mr Megna in the late 1980s, attending Local Government Association conferences and the like. His father had been associated with the Council in previous years. 658 He had some "very close" dealings with Mr Megna, at one time travelling to the United States with him for a conference. 659 He considered that Mr Megna was highly regarded by his colleagues, his fellow Councillors and Councillors from other Councils, regardless of their politics. He was considered to provide strong leadership to his community, a person "that you would be very pleased to associate with". He was always "very well regarded" by colleagues, administrative officials of Councils, his peers, his fellow Mayors and Councillors. 660 Mr Michael Fleming had also significant involvement in local government matters. He has held elected office, bureaucratic offices and has been Chief of Staff for local government ministers. At the time of giving evidence he held office as Manager of Major Projects in the Department of Premier and Cabinet, which had, in a recent re-organisation of Ministries, incorporated or absorbed the Department of Local Government. Between 1999 and 2002 he was Senior Police Advisor to the Minister for Local Government. 661 He was acquainted with Mr Megna. He met him at a Local Government Association conference and was present on occasions when Mr Megna spoke to the Minister about the amalgamation of the Drummoyne and Concord Councils. 662 He considered that Mr Megna was well regarded, and that this was evidenced by his election as Mayor. 663 Both Mr Megna and his wife, Mrs Mary Megna, gave evidence of the impact upon Mr Megna of the publication of the circulars. Mrs Megna gave an account on the receipt of the first circular, which she was shown by her mother, who also lived in the municipality. She said that she asked her husband about it and that he was upset. 664 The circulars continued to be published, she regularly asked him about the content but after about a year or a year and a half she ceased because the issue caused tension between them. 665 She was present when Mr Megna's parents, who also lived in the municipality, questioned him about the circulars. She said that this caused frustration and upset to him. 666 She also perceived that some acquaintances changed their attitude or behaviour towards her after a time. She gave one instance of taking her daughter to school when a group of mothers who saw her approaching appeared to cease their discussion; she gave another instance of their regular attendance at the local church, when she perceived that other parishioners tended to avoid them. 667 Mr Megna's own evidence of his reaction to the circulars was quite detailed. I cannot, of course, take into account his reaction to the publication of those items which I have found to have been published under qualified privilege. However, I accept his evidence, in general terms, that the publication distressed him, and that the escalating aggression increased the hurt. 668 Some indication of his reaction may be gauged by the steps that he himself took to meet the attacks: at his own expense he placed an advertisement in the newspaper seeking information as to the identity of the publisher(s); he produced the two Veritas leaflets, which he paid to have delivered throughout the municipality.

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● conduct, such as to attract wide publicity. 674 Some of these apply in the present case. The defamation of both plaintiffs proceeded, although it was not always the same defamation. However, there were repeated attacks, and, in my opinion, the repetitive nature of the attacks is a relevant consideration. 675 It was submitted on behalf of the plaintiffs, particularly with respect to Mr Megna, that Mr Marshall's attempt, in the early (2008) part of the proceedings, when he was unrepresented, in seeking to establish the truth of the imputations, is a consideration favouring an award of aggravated damages. I do not accept this. That is because it has not been shown that the defence was "bound to fail"; there may be many reasons why the defence of justification was abandoned, not the least of which is the already inordinate length and bulk of the proceedings. 676 I was referred to the decision in State of NSW v Riley [2003] NSWCA 208; 57 NSWLR 496. That was a case in which the causes of action were assault, battery, false imprisonment, trespass to property and negligence. However, the question of aggravated damages arose. Speaking generally, Hodgson JA pointed to the need, where aggravated damages are to be awarded, to avoid "double counting" and posed the question: "… what can the additional aggravated damages be compensation for when injury to feelings have already been included in ordinary compensatory damages?" (italics in original) 677 His Honour found "the only principled explanation" to be: "131 It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages [sic - feelings] neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified." 678 His Honour considered this to be consistent with the approach taken by Lord Reid in Cassell & Co Ltd v Broome [1972] AC 1027 at 1085, and added: "133 This means that, if a court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be for the difference justified by this approach, that is, an award of so much as is necessary to bring the damages up to the upper end of the available range. The approach also means, I think, that aggravated damages can be a matter of degree: the worse the defendant's conduct, the further from the centre of the range and towards the upper limit of the range the court may be justified in going." 679 I have concluded that this is not a case in which a separate award for aggravated damages ought to be made. Taking the approach laid out by Hodgson JA, I will bear in mind those factors mentioned by Nourse LJ as are applicable - the failure to make any apology or withdrawal, and the repetitious nature of the defamations - in assessing the damages to be awarded. 680 In this respect I consider the anonymity of the publications to have some relevance also. That comes within the description of "conduct calculated to deter the plaintiff from proceeding". 681 For the purpose of awarding damages, I think it is appropriate to treat each individual circular which has not been successfully defended as a separate entity. I do not propose to continue with the division of the circulars into different items, and I do not propose to calculate damages on the basis of individual imputations. It will, however, be appropriate to have regard to the imputations in the context in which they were conveyed. 682 A number of the imputations were repeated in the sequence of publications. For example, it was not at all uncommon for Mr Megna to be branded a liar, and both he and Mr Lloyd to be labelled as incompetent. I bear in mind what was said by the High Court in Carson at 54-56.

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ARCHITECT, WHEN NOT AN ARCHITECT: In February, Council advertised in local newspapers of a Development Application for the Civic Centre, Drummoyne, costing approx. $1.3m. The application was submitted by a party calling himself 'architect and heritage consultant' on behalf of the Council. No one checked if he was licenced to do the designing work or registered with the governing authority, the Board of Architects NSW. This Party's fee was approx. $70,000-$90,000, and that is being paid for by ratepayers. 2(a) That as Mayor of DC Mr Megna has not been impartial in his appraisal of the performance of the Council's general manager The Council Manager Mr Lloyd, advises he knew the party was not licenced (lie - he didn't know at all until a resident checked and informed Lloyd). Lloyd went on to advise the party has several tertiary qualifications and that he had completed work for other Councils and Govt. authorities. Notwithstanding, Lloyd didn't check if formally authorised to use the title 'architect.' And, we're talking about public moneys here. Further, not one other competitive quote was obtained. Lloyd says he doesn't have to do that. With this large fee at hand, a ratepayer could expect several quotes, absolutely, if only because Lloyd is the custodian of our public moneys. But no! Not in Drummoyne Council! Is there more to this than we realise? What is wrong with using a properly registered architect for public matters? 2(b) That as Mayor of DC Mr Megna has not acted in the interests of residents The Board of Architects NSW advises a fine applies to those nominating themselves as 'architects', i.e. those who are not registered with that Board. No 'Practical Examination' has been undertaken by this party, as the Board requires. Lloyd didn't check this, or the level of acceptable Professional Indemnity insurance held by the party. Lloyd has advised the Drummoyne group he is not about to cease employment of the party. It is known the party has already received approx. $30,000 of ratepayers money in fees. … 2(c) That as Mayor of DC Mr Megna has engaged in personal favouritism in his attitude to the performance of the Council's general manager 1 March 1998 CHUMMY CHUMS, COMFY COMFORT: The Drummoyne resident's (sic) group report further. The Council's Business Paper dated 27/1/98 (Item 1) advises Cnrs. Fasanella, Lesslie and Mayor Megna recently completed the annual performance review of Lloyd, the general manager. Ay? First problem! Lloyd has been there for 4 years, but no one can recall when the last annual review was undertaken! The fact is, there hasn't been a previous review in 3 years, in public anyway. The fact is - there wasn't one! And not one Councillor raised the question for those 3 years as to why the review wasn't being conducted. The Councillors knew it, but said nothing! Why? 'Comfortable'? When Lloyd was first appointed to the position 4 years ago, Megna, Lesslie and one other Councillor (now retired) attended to his appraisal. We won't go into that now, but anyone interested should have a look at that background, an interesting story. Residents, in January, queried why Megna and Lesslie retained their positions for this recent re-appraisal. Lloyd said the terms of his contract allowed for that, i.e. the Mayor, plus one councillor selected by the Mayor and one by Lloyd. Chummy stuff? Have a go at this! At the time of Lloyd's original appointment, Lesslie was the mayor. So if we take the Contract's terms re performance appraisal, as Lloyd indicates above, Megna (mayor) is first 'cab off the rank', Lloyd selects one other (Lesslie naturally), because Lesslie is the only person on Council who knows the actual Contract contents, and Megna selects Cnr. Fasanella. Real chummy! The question is, too, why are those who are closest to Lloyd permitted to attend to the performance appraisal? Anyone attending regular council meetings will hear Cr. Lesslie continually applauding Lloyd's ability to the point of absurdity. Why? For such a long time our Association couldn't understand why. The absence of annual reviews gives some insight. Lloyd will not disclose the Contract's contents. Why Not? It will be standard stuff … won't it? Why isn't an independent assessment completed by an independent party regarding the general manager's performance? Why should the same people be appointed? What is the criteria which prompts their 'glowing' admiration of Lloyd? Residents are still looking. Why aren't the details of the general manager's contract public knowledge? Why isn't real performance considered? Why is re-appraisal left to Councillors, when they have already demonstrated their lack of expertise in so many matters? What are Megna's and Lesslie's qualifications to adjudicate a $100,000 plus a year position? Councillors and the general manager call upon consultants' reports for almost everything, and yet, the boss of the council doesn't receive the same level of appraisal. Why not? Sounds a bit too 'clubby' for this Association, almost 'goo goo', except for the seriousness of the matter.

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SSSSSSSSHHHHHHHH SECRET DEAL: 4(c) That as GM of DC Mr Lloyd ordered a study at the cost of $60,000 which he knew was a sham designed to support a predetermined result In our March Circular, we drew attention to the lack of any formal annual review of the general manager's work performance by Councillors for the past 3 years. It was supposed to be an annual review. Well, what turns up in the Business Paper dated 17th March 1998 was none other than a Mayoral Minute (Item 3) - 'Personnel Matter, General Manager'. Naturally, discussion of this matter is for a 'confidential committee' (Open Meeting Guidelines permit). If a resident wished to address this Monthly Meeting about this topic, it would be necessary for them to write to Council to request permission to do so, prior to the above meeting. Hang on! If that resident had arrived at the Meeting on 17/3/98 at 7.30pm, they would never had known this particular item was listed for discussion that evening. So, how could a resident address the meeting? They couldn't. They would not have had permission. And, here's the Mayor's 'sneak' factor shining through. 4(c) That as GM of DC Mr Lloyd ordered a study at the cost of $60,000 which he knew was a sham designed to support a predetermined result … 4(a) That as Mayor of DC Mr Megna manipulated the council agenda to prevent residents being able to address the council about the performance of the GM

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6(a) That as Mayor of DC Mr Megna is incompetent GOING WITH THE HIRD: 6(b) That as GM of DC Mr Lloyd is incompetent Our April circular highlighted Megna's un-relenting march to have Lloyd reappointed to a 5-year work contract with Council, the discussion of which was referred to private session in Council. We can reveal, however, that Megna, McIntyre & York (do the Libs ever vote against each other?) and Lesslie almost certainly voted for Lloyd whilst Fassanella, Murphy, Tserakis & Marshall didn't. That's four all. That leaves Cr. Hird. We know Hird recently resigned from membership of the No-Aircraft-Noise Party (so much for loyalty to those who paid for his election). We understand also that he is selling his Drummoyne home to move to the Country. Without any 'party' behind him, Hird has no chance of Council re-election. We'll take bets he's either off the Council at the next election, or he'll join the Libs. Notwithstanding, in a split vote decision, Hird voted for retention of Lloyd for a further 5 years. And, if he doesn't stand next time? Via his vote, he will have left ratepayers with a wreath around ratepayers necks - Lloyd!

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3 May 1998 WHAT TIME IS IT? Business paper dated 17/3/98 initiated (& received approval) amended meeting times for the four Council Committees throughout each month. No mention to any changes in the important one, the Ordinary Council meeting, held at 7.30pm on the 3rd Tuesday of each month. We've known for some time Lloyd wanted an earlier start for the latter, so that he could arrive home earlier. Really! Hey, don't worry about the public and the fact that they need to get there after work, eat, etc. They only pay the bills. A 6.30pm start for most is impossible. It is impracticable. But that's OK, the less who attend, the less anyone knows about anything in Council. And besides, our 33,000 residents should well know Lloyd's personal interests supersede those of the community over time. The Ordinary Meeting on 21st April saw Cr McIntyre move a motion from the floor, without notice, to change the Ord. meeting starting time to 6.30pm. What a sneaky thing for Lloyd to do. Make no mistake, it was Lloyd's initiation. It was not a listed meeting item, the public had no say, nor will 99% of them know. 6(c) That as GM of DC Mr Lloyd puts his own personal interests ahead of those of the community … 6(d) That as GM of DC Mr Lloyd orchestrated a sneaky attempt to change the starting time of council meetings without giving the public a chance to oppose it.

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POLITICAL BULL: If there's one thing that sticks in the gut of this Association it's politics in local government. Like everyone, we have to tolerate, but will highlight any attempt between now and the Sept. '99 elections, that any candidate makes to gain political advantage from this Community. Unkept promises are the very reason why we now have the current upheaval in Federal politics. People have had enough. And so we now see the first attempt by our forgetful Mayor Megna. Front page photo and story in the District News edition of 14th July announced a 'soon' to be constructed pedestrian crossing over Great North Rd., Five Dock, located between the library building and the pending landscaping of the vacant land (owned by Council) opposite, being the old Police Station Site Is it to be a speed hump, zebra crossing, what in fact is it to be, other than imagination? You couldn't have guessed an election was in the air. Megna recently announced his intention to seek pre-selection for the Libs, for the next State Elections, due in March '99. Get used to it, there'll be plenty more of this. In 1997, as part of the Council's Five Dock Main Street Programme, the Roads and Traffic Authority ('RTA') provided Drummoyne Council with a grant of $30,000 to fund a traffic and parking study for the Five Dock commercial centre. Any changes in traffic flow must attract approval, not only from the RTA, but Sydney Buses where bus routes exist, as applies on Great North Road. Checks with both Authorities and an assistant to the State Govt. Minister advise that no application for the said crossing has been made or approved, Drummoyne Council also know nothing about it. The fact is that Sydney Buses will not agree to or approve any application for the 'raised' crossing at this location, as their buses not only occupy up to two bus lengths at a time at the adjacent bus stop on the corner of Garfield Street and Great North Road, but need manoeuvring space both in and out. It is the busiest bus stop in Five Dock. In the 'real' department, why has Megna never done anything about the unsafe and unprotected pedestrian crossing only 100 metres north along Great North Road, adjacent to the Barnstaple Rd. intersection? This crossing has already claimed injuries and is used twice daily by students and their parents from the nearby Public School. It remains a death trap. 4 August 1998 Megna has been 'in the chair' for a considerable time, but only now has shown interest in a crossing, for his own political benefit, via the newspaper article. It should be noted there are already crossings at the lights at Garfield St., so why locate another 20 metres down the road as Megna pontificates? The article is a lie. No facts were checked by the publisher, and the article was initiated by Megna. As we said, there'll be plenty of this from here to the elections. …

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LEP DRAFT AMENDMENTS: 8(a) That as Mayor of DC Mr Megna provided information which he knew to be false for an article in a local newspaper The Council's monthly meeting on 21/7/98 proposed amendments to the Drummoyne Local Environmental Plan 1986. It is in draft form at present on display. Briefly and in part, it's meant to encourage freehold commercial and shop owner/operators to develop/improve their properties/businesses. In summary, despite efforts by Cnrs Fasanella and Marshall (in tandem with local property owners' advices) to improve Floor Space Ratios in Five Dock, Councillors voted only marginal increases to the FSR. There will also be some small changes in Drummoyne. We've relegated this article to brevity status as it has become quite evident that Council Management's view of a changed Drummoyne, in particular, leaves much to be desired. Do they really believe investors are to come rushing forth to clamour for freehold and business purchases and development without carparking resolvement, without a total package, a 10 year Plan, a comprehensive package involving all aspects? Why would Five Dock freehold owners demolish their buildings or complete major alterations if only to gain a slight increase in floor space ratios in a replacement building? A dope could see that they won't. So, Council, again have done nothing worthwhile to assist! The smirks from Lloyd and Megna were noted at the meeting when one Councillor commenced a preamble about underground carparks. How on earth could that be paid for or even receive approval consent, the smirks revelled? neither had a clue. Those smirks did reveal one thing, i.e., Neither possess the ability required in their respective positions. We know it, residents are starting to know it, and they both know it!

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8(b) That as Mayor of DC Mr Megna is incompetent 8(c) That as GM of DC Mr Lloyd is incompetent 10(e) That as GM of DC Mr Lloyd acted deviously towards the ratepayers 10(d) That as GM of DC Mr Lloyd has lied to the ratepayers 10(e) That as GM of DC Mr Lloyd acted deviously towards the ratepayers 10(d) That as GM of DC Mr Lloyd has lied to the ratepayers 10(f) That as GM of DC Mr Lloyd is incompetent YELLOW, THE COLOUR OF WHIMPS: 10(g) That as GM of DC Mr Lloyd is a sneak Wanted at the next Council Elections: 'Councillors with Guts.' Item 1 of Drummoyne Council's Monthly Agenda dated 18/8/98 degenerated into pandemonium befitting of Councillors' end decision. The item related to decision time as to whether Mr Lloyd, the Council general manager for the past 5 years, was to be reappointed for a further 5 years, or if the position was to be offered for tender to the market place. Our April circular confirmed Mayor Megna, York, McIntyre (Libs), Hird (ex-No-Aircraft-Noise Party, now a wanting Lib.) and Lesslie were successful at that time, in a split vote, to refer the matter for negotiation of contractual terms to a Committee (Megna, Hird and Murphy), with Lloyd. Murphy, Tserakis, Fasanella (Lab.) & Marshall voted for open tender, i.e. against a straight out reappointment. So what's happened since then? Well, Murphy (leader of the Council Labor faction) has now become the Labor candidate for Lowe at the Federal Election on 3rd Oct, that's what! The last thing Murphy wants right now is to become embroiled in a controversial dog fight at local Council level, particularly involving any unfavourable media coverage relating to a Council manager layoff. Don't let us forget the lies, mistakes and devious dealings by Lloyd toward the ratepayers … … There is no need to list Lloyd's lies and blunders. Our circulars are full of them. Why have Councillors allowed Lloyd to blatantly facilitate State Government Policy in many areas of Drummoyne Council arrangements, to change the face of this Municipality in form and life style, to bludge on incompetence and a complete vacuum of leadership and community initiatives? Why have they backed a sneak? In particular, with a voting majority now at hand, what 'watchdog' role have the Liberal faction adopted in Lloyd's stealthy implementation of Labor systems and procedures? You've got it - none! 5 September 1998 … 10(b) That as Mayor of DC Mr Megna is incompetent He stood at the meeting in a 'performance' anger mode, due to this and other circular contents within this Municipality, seeking anyone to come forward with proven corruption evidence about Lloyd, Council or Councillors. Listen, John, no one has discussed corruption (yet), just incompetance. And it's currently dripping from your own shoulders! Not a good performance from one seeking to lead us at a Federal level, and precisely why this circular exists. You've shown here, Johnno, you are simply not prepared to do the job required. You've simply joined the 'Megna Club'. … 10(b) That as Mayor of DC Mr Megna is incompetent 10(a) That as Mayor of DC Mr Megna is not prepared to do the job as required MEGNA, A BIT SLOW, AGAIN Dist. News publication dated 18/8/98 runs a story about Megna's show of disgust towards Michael Knight, the State Govt's Olympic Minister, who recently announced a decision to allocate one lane in either direction on Victoria Road for usage by Olympic Games patrons during the 26 day Games Period. Megna screamed that no consultation had been made with local Councils and others, that local businesses would suffer, it would lead to loss of carparking etc. and so on … Time is running out, and nothing is yet done for Drummoyne. Good work, Megna, your article is real 'drop-kick' stuff and a lie in its phoney public outcry, and you want to be the State Member for this district? Try fishing instead of your pompous media strutting!

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SAME MAYOR, SPLIT COUNCIL: At the Council meeting of 15/9/98, Mayor Megna was re-elected for a third term. Cr. Hird, ex-No-Aircraft-Noise, and wannabe Lib., is Deputy mayor. Nothing is new. Residents have to put up with Lloyd, Council Gen. Mgr for 5 more years and Megna for 12 months, a cosy and matey team … For Megna, greed is good. Talk about ego! The man really believes he is best for this Municipality and takes whatever his mits can grab! A taker, not a giver. You are the pawns. … Now how did we know that would be used as a Council excuse to avoid doing things in this Municipality! A greasy address indeed, full of self-opinionated interest. You know - 'I am the greatest' type stuff. What did this all have to do with Megna's job for this community? Zero, and the gallery had to sit through the lot! Putrid! Listen Megna, if things were attended to properly in this district and you did your job, without the lies and inefficiences, this Association wouldn't need to exist. … 6 October 1998 COUNCILLOR''S DOMESTIC DISPUTE: In out (sic) September Circular, we raised the matter of a domestic dispute between Cr. McIntyre and her neighbour. Item 1 of Ordinary Council Meeting on 15/9/98, raised by Cr. Marshall, proposed 'that legal action commenced in Burwood Court, in relation to the neighbour, be discontinued'. Council's solicitor advised the meeting (according to Lloyd on the business paper) that 'the Court proceedings cannot be discontinued.' But, this Association asks, why not? Of course it can, at any time. Council is really after this ratepayer. Anyone with Court experience will know the Court can discontinue upon request. So what's the story? Why are you, the ratepayers, paying for Councillor's domestic dispute? We never found out! Cr. Marshall stood at the meeting to raise issues. A verbal slanging match then ensued between he and Megna. Marshall merely wanted the matter publicly discussed. We certainly want to know the Council's view. We already know the neighbour's. So what's the story? Why are you, the ratepayers, paying for a Councillor's domestic dispute? We never found out! Cr. Marshall stood at the meeting to raise issues. A verbal slanging match then ensued between he and Megna. Marshall merely wanted the matter publicly discussed. We certainly want to know the Council's view. We already know the neighbour's. Cr. Marshall had gone to the trouble of obtaining a document from the neighbour's solicitor, and commenced to advise the meeting of its contents, Lloyd, (sitting next to Megna as usual at all meetings for prompting purposes), immediately had a heart attack. The body language was acrobatic, it was fantastic to watch. The smirk turned to dismay. The gallery heard his whispered gulping plea to Megna: 'rule him out of order'! Megna dutifully responded, 'you're out of order, Cr Marshall, sit down, sit down, you're out of order'. Megna then hastily moved to Item 2 without breath. Lloyd was left chewing his pencil end fervorently, sweat forming. We still await the Council's explanation. That will come, even if we have to obtain a Court extract in the end. Council cannot stop that. Real juicy stuff, you'll get the answer soon.

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14(e) That as GM of DC Mr Lloyd acted jointly with the Mayor to prevent the public finding out that there was no proper basis for legal action begun by the Council COUNCILLOR'S DOMESTIC DISPUTE: Remember this domestic dispute between Cr. McIntyre and her neighbours of 20 years? As we reported in our Sept and Oct Circulars, it was supposed to be over a noisy swimming pool pump/filter. Well, not really. McIntyre just doesn't like the bloke. Noise readings for this pump were not available to the Court (fact is, they didn't exist - unsatisfactory ones that is), prior to or during the Court hearings, and the pump had been there for 15 years with no previous complaints. The pump noise was merely an excuse. Not to worry, McIntyre is pretty chummy with forgetful Megna. And he's the mayor. And they are both Liberal. So between them they got the Council involved and Council issued a Summons on the neighbours. Dogs? Nah, that's the system. The Council took on the neighbours, not McIntyre, as should have occurred. The story gets better. Cr. Marshall (DMRA) at the council meeting on 15/9/98, asked why Council was involved. Lloyd told Megna to rule him 'out of order', and Megna did. Chummy? They blocked Marshall. It should be noted that the business paper for that meeting (Item 1), in a 'Note from the Gen. Man.', stated 'the Court proceedings cannot be discontinued' (they really had it in for this neighbour). This was, of course, absolute bull!! December/ Well, at the Court, the Council's solicitor was made aware of the contents of Lloyd's business paper statements of 15/9/98. The solicitor exploded, denying ever having advised Lloyd of matters which were printed in that Paper. Trouble was that this solicitor's denial was made in the presence of the neighbours' barrister!!! In other words, at that very moment, it was evident Lloyd had lied in the business paper! That also means he lied to you, the ratepayers, members of the gallery and his own Councillors. The Paper is meant to be a truthful account of Council's position in everything which is discussed at meetings. 7 January 1999 … 14(d) That as GM of DC Mr Lloyd lied to the Council and ratepayers

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LLOYD: HOW MUCH LONGER AND WHAT COST? Here we go again, a series of stuff-ups, serious and very costly errors indeed from Russell Lloyd, our Council's general manager. This mistake-prone 'trustee' of our community money and assets just gets worse as time passes. More variations on the same theme, month after month. The lies and lack of public disclosures keep rolling out, as though it's the norm. 16(a) That as GM of DC Mr Lloyd is incompetent … 8 February 1999 WE CALL UPON LLOYD, GENERAL MANAGER OF DRUMMOYNE COUNCIL, TO CONSIDER A PERMANENT REST FROM THIS COUNCIL. It is obvious he cannot exercise adequate control over administration, staff and public report matters. … We now have the situation where consultants' costs, Council's escalating legal expenses for referral of every item under the sun and the abnormal level of costly errors and mistakes are unacceptable to this community. We find his inability to genuinely consider local residents' wishes and preferences, his adversity toward local benefits for this community in preference to overall implementation of Labor State Govt. directives without question as unpardonable. Lloyd has been untruthful to local residents who have little or no knowledge or understanding of how he has unquestionably complied with the Labor Govt., input in Drummoyne Council's 'initiatives', particularly via their organisation known as 'IMROC' (Oh, we'll explain this 'matey' arrangement next month).

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PECUNIARY INTEREST: At the same Council meeting, and for the same item, i.e. the Conservation & Heritage orders discussion, guess what funny trick Lloyd also pulled! If you have doubted this Association's continuing stringent criticism about this Council and Lloyd, have a go at this. We reproduce part of a letter from a resident, dated 22/2/99, and sent to the higher authority in complaint of Lloyd, a copy of which was sent to us" '… Prior to the commencement of discussion by Councillors of this Item, Mr Lloyd addressed the meeting and the gallery. He informed attendees that he had sought legal advice from Council's solicitors as to whether Cr Tsirekas was eligible to vote on this Item. Lloyd advised this Councillor currently owns a property which is listed as a heritage item, within this Municipality. Lloyd said the matter of 'pecuniary interest' was relevant to this Councillor and, accordingly, he was not only eligible to vote, but should not speak on this Item. It should be noted Cr Tsirekas immediately expressed his strong objection to Lloyd's statement. Lloyd rejected his response. Cr Tsirekas then requested he be permitted to address the meeting as a resident. That too, was refused by Lloyd. Cr Marshall then stood to query Lloyd on what basis the 'pecuniary interest' applied. Lloyd advised it was Cr Tsirekas' property ownership. Cr Marshall rejected Lloyd's advice, indicating Tsirekas could not be sure of any loss or gain monetarily regarding his property. Marshall said Council's original letter distribution to affected residents (in both categories) indicated that property owners could not be sure that any difference of valuation would occur in their properties. This, he said, was at the very core of just what 'pecuniary interest' matters were about. In fact, he continued, during the 3 public meetings held by Drummoyne Council in Dec. 98 to explain these proposed Orders, the management representative had gone to extraordinary length to convince residents that there would be no effect, detrimental or otherwise, upon those properties located within proposed Conservation or Heritage items. Lloyd changed his previously adopted stance and told Tsirekas it was up to each Councillor to decide if a 'pecuniary interest' applied. By this time, Tsirekas was sufficiently uncertain. The point is that Tsirekas had been sufficiently convinced by Lloyd of a possible contravention of the Act, and left the chamber whilst discussion took place on this item. That left 8 Councillors to vote on the matter, including the mayor. 18(b) That as GM of DC Mr Lloyd manipulated the vote at a Council meeting to achieve a result he desired by saying falsely that a Councillor who opposed the proposal was ineligible to vote because he had a pecuniary interest It should be noted a very strong antagonism has been present in this community from the very day of the initial announcement by Council of the proposed Orders. Council has attempted to indicate otherwise, but the mere presence in volume of residents at this meeting, and their vitriolic interruptions left no doubt of their anger. Lloyd was very much aware, prior to the Councillors' vote, of just what the end vote would be. It is this community's opinion he has manipulated that vote, by his interference to Tsirekas, had the latter remained to vote, Lloyd's recommendations on this item would have been defeated. The further point of this letter is that Cr Lesslie remained in his seat, took part in the item discussion and voted for Lloyd's recommendations. He was not the subject of the same advice given to Tsirekas by Lloyd, and yet, Lesslie also owns property in a proposed Conservation area in this Municipality. Lesslie's situation is an exact duplicate as that for Tsirekas, in the context of the proposals. Lesslie did not disclose his ownership of property in the proposed Conservation area. Without Lesslie's participation, Lloyd's recommendations would have been defeated.' Comment: In summary, Lloyd can't have it both ways. If 'pecuniary interest' advice to Tsirekas was correct, then why didn't Lloyd give that advice to Lesslie as well, g'on … have a guess. Lesslie's vote for the Orders saved Lloyd's recommendations and kept this issue 'alive'. Of course … that was unsaid! If Tsirekas remained in the chamber to vote, Lloyd's recommendations would have been defeated. Given Lloyd's advice, Lesslie is guilty of violating 'pecuniary interest' provisions. We await Lloyd's explanation. Be interesting to hear Lesslie's. Lloyd blatantly interfered in Councillors' decision making, because he knew, prior to this meeting, his recommendation would be lost via a straight and legitimate Councillors' vote. Lloyd stated that Council's solicitor had advised him that "Tsirekas could not participate'. But then neither could Lesslie. This Association says Lloyd has lied about that solicitor's advice. Our discussion with one solicitor and a barrister confirm Lloyd has either lied to Council about his legal advice, or Abbott Tout (solicitors) are wrong!!! And we know, it hasn't been the first time for that. We have been handed legal precedents which confirm our advice is correct!!! Residents can do a lot better than this grub. 9 March 1999 …

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EXTRA-ORDINARY COUNCIL MEETING: Held on 9/2/99, but why? Why extra-ordinary? It wasn't advertised anywhere. How are residents wishing to attend such an unusual meeting to know when it is to be held? Aren't Council meetings illegal if not advertised? Precisely. We suggest Lloyd didn't want too many to know about it at all. At the meeting commencement, Cr Marshall asked Lloyd to clarify where it was advertised. Lloyd advised in Saturday's Herald dated 6/2/99. Marshall stated that he had examined every page, every line, and no ad!!! Lloyd said the Council's agent had stuffed up. Bull! Lloyd simply lied, he had not advertised the meeting. … The guts of the meeting? Lloyd was attempting to ramrod through changes to the LEP and floor space ratios in the Five Dock and Drummoyne shopping centres, to specifically allow subsequent approval of a 7-storey building on the Sutton Place site, at Drummoyne. Lloyd knew Cr Tsirekas, Marshall and Wroblewski would vote contrary to what he and Megna wanted. That dreaded Urban Design Study recommended 7 storey buildings in Drummoyne. So Lloyd was on safe ground in chasing that. Forget what local residents want! Any work here would cause Franklins to loose trade and walk out. Such was Lloyd's agenda that he didn't provide the above 3 objecting Councillors with the same papers about this proposed project. Each has missing sheets, each had different papers to the other. In other words, they couldn't collaborate on aspects of the proposal, each of the 3 Councillors could not appraise the project properly. We noted Councillors voting for Lloyd's recommendations all received the full complement of project papers. But still, Lloyd was attempting to gain approval for the floor space ratio changes and, therefore, the Sutton Place project. He was dudding his own Councillors here. And they are the Council 'Board.' We reckon that amounts to deception, or is it now called 'attempted fraud'? The dog!! … 18(b) That as GM of DC Mr Lloyd manipulated the vote at a Council meeting to achieve a result he desired by saying falsely that a Councillor who opposed the proposal was ineligible to vote because he had a pecuniary interest LIES AND MORE LIES, KEEP 'EM COMING: 18(c) That as GM of DC Mr Lloyd lied to Council about Council's solicitor's advice You'd think Megna would quietly shrink away into oblivion. Doesn't he get the message? …

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OMNIBUS (FOR ALL), BUT IT WAS EMPTY: Such a good story, but more Council waste was the result. District News dated 29/3/99 advertised Drummoyne Council was to run their community bus between Rodd Point and the Five Dock Shopping Centre on Saturday 3/4/99 (once only, thank goodness) from 10.00am to 2pm. Mayor Megna's name appeared in the ad. Hang on, Sydney Buses already run 4 bus routes through Rodd Point, so why on earth are ratepayers forking out the cost for this additional one day service? We decided to check it out. But, we found one Councillor was already doing the same. So, there we were, the bus, followed by the Councillor, followed by this Association, up and around the streets of Rodd Point. A gravy train? And up and around we all went until 10.32 am when finally one (only one) passenger arrived, and 1 hour later that passenger was returned to Rodd Point in Noble Street. One! And that was the total usage all day! Let's check the costs. Petrol, these things run on petrol you know, Depot Staff please take note! The driver had to pay $15 from his own pocket ('cause the Council forgot to fill the bus with fuel), cost of driver's wages (time and half for first 2 hours @ $25.50 p.h. and double time for second 2 hours @ $35 p.h.) total of $115.00, cost of newspaper ad (say $150), plus bus wear and tear. All for one passenger! All this, not at Christmas, but on an Easter Holiday Saturday when so many people are away. We know it's not a lot of money, but it is just another example of Council wastage. Another Megna fool of a decision. Why? A question was asked of Megna by Cnr Tsirekas at the monthly Council Meeting on 20/4/99, optimistically seeking the success of this bus service. Well, Lloyd (gen. mgr.) perched in his usual protective position next to Megna, suffered the usual heart attack for such a difficult question. 'Don't answer that' he was heard to squirm at Megna, sweat again forming. Megna responded 'I don't know' with a shrug of the shoulders, 'I'll refer it to Mr. … for reply to the question'. (That's so none of us will actually hear what answer is given). Lloyd resumed his stupid and nervous guilty grin. So that idiot Megna didn't even bother to find out how his bright idea turned out. When a reply is forthcoming we'll let you know what Council claims! 10 May 1999 …

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20(a) That as Mayor of DC Mr Megna will behave dishonestly in negotiating terms for the leave of the Five Dock Leisure Centre 20(c) That as GM of DC Mr Lloyd will behave dishonestly in negotiating terms for the leave of the Five Dock Leisure Centre 22(a) That as Mayor of DC Mr Megna colluded with the GM to deprive the public of the opportunity to oppose the amalgamation of their council with another 22(c) That as Mayor of DC Mr Megna intends by secret action to extend his term of office so that he can continue his abuses in his office for his own gain 22(e) That as GM of DC Mr Lloyd colluded with the Mayor to deprive the public of the opportunity to oppose the amalgamation of their council with another URGENT ANNOUCENMENT 22(c) That as Mayor of DC Mr Megna intends by secret action to extend his term of office so that he can continue his abuses in his office for his own gain COUNCIL AMALGAMATION Megna (Mayor) and Lloyd (General Manager) have been give the opportunity to secretly amalgamate Drummoyne Council with at least one other Council (Concord) without public approval or knowledge. 22(b) That as Mayor of DC Mr Megna has engaged in abuses of his office MEDIA RELEASE 22(c) That as Mayor of DC Mr Megna intends by secret action to extend his term of office so that he can continue his abuses in his office for his own gain The Minister for Local Government, Harry Woods, has written to Mayor Megna saying if you want to amalgamate with another Council, we will help you. 22(f) That as GM of DC Mr Lloyd has engaged in abuses in his office There will be no: NO DRUMMOYNE COUNCIL LOCAL GOVERNMENT ELECTION IN SEPTEMBER, 1999. It will be cancelled by LEGISLATION, with Drummoyne Council carrying a simple Resolution of 'an intention' to amalgamate. There doesn't actually have to be any final amalgamation. THERE NEED BE NO PUBLIC CONSULTATION BEFORE THIS RESOLUTION IS CARRIED BY COUNCIL MEGNA (who was not going to contest the Election) AND LLOYD CAN CONTINUE THEIR RANGE OF LOCAL ABUSES UNTIL THERE IS AN ELECTION. 22(c) That as Mayor of DC Mr Megna intends by secret action to extend his term of office so that he can continue his abuses in his office for his own gain 11 June 1999 MEGNA, LESSLIE & CO. will be allowed to stay on as Your Councillors, by this Government measure, even though the Residents of this Municipality say they have reached their 'use by' date. DO YOU WANT TO KEEP THESE DISCREDITED COUNCILLORS FOR ANOTHER 12 MONTHS? That's the suggested period before an Election, and that may not be for Drummoyne Municipality but the 'DRUMCORD'. The DEADLINE for notification of any 'AMALGAMATION INTENTION' is 30 JUNE, 1999. Drummoyne Council has existed for more than 125 years. And this means an ad-hoc decision will be made by political hacks for their own gains in less than 3 weeks, and with no notice to YOU. Do you want to inherit Concord Council's massive problems, and maybe some of its Councillors? Do you want to lose control of your own district's affairs? Do you know anything about this proposal at all? You have the opportunity on 11th SEPTEMBER 1999 at the forthcoming Local Government Elections to kick out our Council dregs and install quality people. Our best chance ever! Council has one full Council Meeting on 15th June at 6.30 pm. It will be discussed then, or at an Extra-Ordinary meeting before 30th June, 1999. There may be an advertisement but even that could appear in the Sydney Morning Herald and not be seen by anyone. MEGNA & LLOYD DON'T WANT YOU TO BE THERE FOR THE TRUTH TO BE DISCLOSED 22(c) That as Mayor of DC Mr Megna intends by secret action to extend his term of office so that he can continue his abuses in his office for his own gain 22(d) That as Mayor of DC Mr Megna wishes to keep the truth about the proposed amalgamation of the Council with another Council from residents 22(g) That as GM of DC Mr Lloyd wishes to keep the truth about the proposed amalgamation of the Council with another Council from residents 24(a) That as Mayor of DC Mr Megna is a continuous public liar 24(e) That as GM of DC Mr Lloyd is a proven continuous public liar

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24(a) That as Mayor of DC he is a continuous public liar COUNCIL AMALGAMATION: Welcome to the ratepayers of Concord Municipality. For the first time, you receive a copy of this Circular as a result of Concord … and Drummoyne … Councils' decision, without any discussion or public input whatsoever, to proceed 'to pursue discussion on amalgamation.' The process is nothing but fraud, but is given legitimacy by Harry Woods, State Minister for Local Government. Guess what? Our month-long initial investigation into 'Concord', its Mayor and Councillors, throws up just as much of the same muck as that in 'Drummoyne'. We look forward to publishing most of it in the forthcoming months prior to the next election, to show you just what incompetents decide Local Government policy in both areas and what they do with your money. 'Drummoyne' had Mayor Megna, (until Sept.8th), a proven and continuous public liar, Lloyd (general manager) the same, and a group of ineffective and politically controlled Liberal and Labor Councillors … 24(a) That as Mayor of DC he is a continuous public liar … For good riddance, these Councillors voted on your behalf, without consultation, to cancel the Council elections in Sept., the only time in 4 years in which you are able to deal with inept Councillors. You also had your Constitutional Referendum decision of 1998, to vote for a new Mayor scrubbed. They call that democracy? And who paid for that Drummoyne Referendum back in Nov. '98? Of Course, YOU DID! The mug resident! More Council waste. Imagine the residents of Hunters Hill Council (one of the State's smallest) allowing an amalgamation or cancellation of their election … Shonks like Megna and Lloyd never get a look in on that Council. … Under amalgamation, it will produce the same revenue as that produced at present by both Councils, but there's still the amount of work in the combined areas to spend it on, all of which needs the same number of staff. In fact, both Councils' staffs have already been told that there will be no staff redundancies. Based upon Megna's feeble record, how could we believe anything he says about anything? …

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12 LIAR, LIAR, LIAR LIES AGAIN: Back to Megna … 24(d) That as Mayor of DC Mr Megna practices deceit at every Council meeting Well, like the liar he is, 2 weeks later, Megna issued his own personal letter, signed by him, advising: 'I strenuously deny all of the accusations made against myself by the above Senior Citizens Club and the above Ratepayers' Association … the claims made by both these organisations are highly defamatory, devoid of any truth and totally lacking in evidence.' Megna even denied the matter to his own Rotary Colleagues, and to his own Liberal Party members, But the Police were called whilst Megna was being detained by the 4 apprehenders (recorded fact), and the report clearly confirms results of the Police investigation. Not bad for one who is a Mayor. As we have been saying for 18 months, Megna is a liar, and you should visit Council meetings if only to witness the mouthful of deceit spewed out each time. We are sure he doesn't even know when he is and isn't lying. At the time of writing, Drummoyne and Five Dock shopping centres have been the subject locations for many stickers in prominent positions. They say: 'Mayor of Drummoyne Megna is a liar'. It would appear, others, apart from our Association members, are upset with him. This Association is not responsible for these stickers. One apprehending Councillor and Cr Tserakis (Labor) have continually asked for debate on the Mayor's apprehension. Megna and Lloyd block any debate, advising 'it is a private matter'. It may well be. But hang on, if so, why are Council employees (CanBay) and not Megna himself being used to remove the stickers which are replaced a couple of days later. What is the cost to ratepayers? We have the feeling the stickers matter will become a lot more stickier yet! 24(a) That as Mayor of DC he is a continuous public liar SUTTON PLACE, DRUMMOYNE: At 'Drummoyne' monthly meeting on 17th August, 1999, Item 7, Councillors were confronted with results from the public exhibition of its draft/proposed Development Control Plans, i.e., in part, what can and can't be built in the Drummoyne CBD. Ratepayers were vitally interested. Only nine submissions (from 33,000 residents) were received by the Council. So, due to your laziness and failure to respond (did anyone know it was on exhibition?) you are about to cop this new DCP which allows for 7 floors in parts of Sutton Place (up from 4 floors contained in the draft) because a developer said in his response that he could make more money from 7 floors than he could from 4 floors. And, yes, Crs. Megna, Lesslie, York, McIntyre, Hird, Fasanella and Tsirekas voted for the 7 floors. We can advise you that last year Megna was up to his neck in discussions about redevelopment at Sutton Place and up to 7 storeys. He publicly denied it when asked as a Council meeting. More lies! So worried were other Councillors by adverse public reaction, that earlier this year, they voted to drop the seven intended storeys back to four storeys …

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COUNCIL AMALGAMATION: … And how Megna, Woods and their tribes grabbed this opportunity to stay on Council. Why? You, the voter, would have kicked all 5 out of Drummoyne Council, had the September elections been allowed to proceed. The same would have happened in Concord. The deviates well knew that and, of course, voted to cancel each Council election, without your input, and, at the same time, stop you from voting for new Mayors. You, the local residents in Drummoyne, voted for that at the Constitutional Referendum of Nov, '98. A few weeks ago, the 5 then voted for Cr. Fassanella as the new Mayor in a pre-arranged 'deal'. We'll get to Mayor ('I just want to be your friend') Fassanella later. You can't get much more manipulation of each Municipality than this. These deviates had ample opportunity to appraise each of their own positions and to offer residents the decision making process, but didn't. All deserve shafting (at whenever the next election is held) in full retribution. They will all rely on apathy and forgetfulness of each electorate. THIS ASSOCIATION WON'T! You have been shonked to death with this farce. It is morally corrupt, and you being totally 'controlled' in what is supposed to be a local democracy. You can believe it or not, but we can tell you, to gain maximum benefit from an amalgamation, the Liberal and Labor political 'heavies' in the Drummoyne and Concord Council areas have already done the deals between themselves and have drawn up their respective target areas of favour, in which their candidates for the May 2000 elections will be pursuing. Wards are to be established. Can you believe it! The scum. … 26(d) That as Mayor of DC Mr Megna is devious vermin If these people are allowed to remain on Council, (can you imagine that level of devious vermin in an enlarged Council?) an individual local resident will have absolutely no redress to an enlarged Council injustice at all. And we've already highlighted some of Peter Woods' (Concord Mayor) 'characteristics' in last month's newsletter. So, what to do? It is the residents who should decide whether our Council amalgamates or not. Simple as that! But why, all of a sudden, after 125 years of Drummoyne Council, do we need to amalgamate? The 5 Councillors have no charter to decide such an important matter. If the residents say 'yes' to it, so be it. But there's no doubt, given a vote, we already know what you will decide, and so do the deficient Councillors. When Drummoyne's Megna, his lap dogs and Lloyd (Council Gen. Mgr.) and Co. announced a 'pursual' of this amalgamation, it took them just 2 weeks to decide. On what basis was their decision made? Why? They had no consultant's reports saying it was essential, Megna and Lloyd regularly 'boast' how well Drummoyne Council is performing and what a fantastic financial position it is in (really?). Residents, dopes that we all are, have never previously been advised of any reason that requires an amalgamation. Why not? The Councils don't belong to Lloyd, Megna or Woods and Co. It is owned by the residents. They are the ones who say what goes. If their representatives cave in to political grubbery and deviousness, they're out. 13 … His very letter is a bloody lie, in what is doesn't address. Why doesn't Megna, with an equal effort, push for a Constitutional Referendum by residents concerning the amalgamation? Simple! He knows that if the residents said 'no' under that situation it would be impossible to implement. The bludger!" 26(g) That as GM of DC Mr Lloyd colluded with the Mr Megna to amalgamate Drummoyne and Concord Councils against the best interests of the residents …

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28(d) That as Mayor of DC Mr Megna was a deviate COUNCIL AMALGAMATION RORT: In our July, September and November '99 circulars, we alerted you to Drummoyne and Concord Councils' 'pursual of amalgamation', beginning in June, how that was simply a fraudulent front to their already secretly planned arrangements, how they were 'preserving' their own interests and just how Megna and Woods (each of the Councils' then Mayors), backed by their own deviate Councillor supporters, were manipulating you, the ratepayers to the hilt. Now, let's add the salt to the juice, confirmation of the real situation. … So, why didn't Drummoyne Council tell us that in their Business Paper, dated 16/11/99 Council didn't need to check, because Lloyd (Gen. Mgr.) already knows it's a whole lot of 'wink, wink, nudge, nudge' stuff. Lloyd's Business Paper lied to the public … … Talk about a mates' deal. Isn't the whole thing racked with conspiracy and fraud? Back in June '99, Megna the liar was Mayor of Drummoyne. He was responsible for introduction of Drummoyne Council into this amalgamation situation. We believe, whilst he speaks for the Liberal cause, his actions reflect the Labor policy, i.e. he is even dishonest in his political allegiance and speaks with a forked tongue. If you doubt this, are you aware the Liberal Party will not endorse Megna as a Liberal candidate at the next Local Govt. election? They know he is a liar via his adverse Council manipulations over many years. He has discredited the local Liberal cause, substantially … So, for you, the ordinary ratepayer, what can you do? Just remember, it is your vote that will kick out these deviates in due course. Those Drummoyne Councillors complying with the decision to pursue amalgamation without truthful independent consultants' reports include Megna, Lesslie, York, McIntyre and, weakly, Hird. At the Council's June '99 monthly meeting, Labor's Council representatives, Tsirekas and Fasanella, rejected the amalgamation idea, i.e. until they were told to 'toe the Party line'. At the July monthly meeting, they just happened to change their minds, and voted to pursue amalgamation. Don't forget them for that. The two DMRA members, Marshall and Wroblewski voted against amalgamation, as proposed by the Council. In addition to all of the above, and, as previously advised to you, Drummoyne and Concord Council each appointed three Councillors from their respective Councils as 'task force' members, to appraise the amalgamation proposal. At the December monthly meeting, Megna stood to confirm an 'unbiased' selection to the Drummoyne Council group, i.e. himself (in favour), Fasanella (against) and Hird (undecided). That was supposed to be truthful. Liar Megna lied again, as you can see above. The Group already has a 2 to 1 vote for amalgamation. The same applies on Concord Council. So, you see, at each and every turn, these deviates have constructed the plan to amalgamate, without your input or truthful reporting … 14 AMALGAMATION POLL: On 6/11/99, an Australia-wide Constitutional Referendum was held. At the same time, and in the Drummoyne Municipality, ordinary residents held their own poll, asking 'Do you want Drummoyne Council to amalgamate with Concord Council?' Simple question, no politics involved, just 'Yes' or 'No'. NO OTHER AGENDA … Then we had Megna lying in The Glebe (24/12/99). We quote, 'I know of people who wanted to vote 'yes' (to amalgamation), but were discouraged or refused a vote by the DMRA workers at the booths. Also, which independent electoral authority counted the votes? None - the DMRA counted the votes themselves'. A blatant lie by Megna once again and newspapers printed it!! … 28(b) That as Mayor of DC Mr Megna was a liar

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ACCESS TO COUNCIL FILES: 28(d) That as Mayor of DC Mr Megna was a deviate … HE LIED, and you should have watched his body language which ensued. The debate degenerated into bedlam, with abuse the name of the game. Why is Lloyd and Megna's majority voting Councillors so protective? Suspicious? You bet! Well, this Association already knows of three development sites on which unit construction is either well underway or completed, and for which the ground floor slab levels do not comply with the DA approvals. And we know Lloyd and Co., are well aware of these. Why do we know that? Because those residents who are involved are telling this Association. Seems as though Wroblewski and Marshall may know similar information. Isn't it their duty as Councillors to investigate and report on residents' concerns? And, why would Council allow such non compliance on sites and give the developers such favourable treatment, such leniency? It's called 'money', and one can only presume who is getting it. If someone involved is not receiving payments or favours, then it has to be, simply, a matter of continuous gross incompetence …"

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COUNCIL AMALGAMATION: Our Circulars of the past few months have clearly demonstrated deception imposed upon this Municipality's ratepayers, the level of which is simply breathtaking in its magnitude. If you have missed our proven information, please write to our P.O. box for a copy. For the sake of newsletter space, we exclude previous specifics. However, if you are at all interested in seeing first hand the level of rorts involved, we urge your attendance at an 'Information Night', to be held at the Drummoyne Civic Hall, Marlborough St, Drummoyne, 7.30 p.m. on Wednesday 1/3/2000. 15 What you will see and hear is Drummoyne Councillors, the Mayor, Lloyd (Gen. Mgr.) and Management staff, the Council's fraudulent Consultant(s) and Co., extorting (sic) the virtues of an amalgamation of Drummoyne and Concord Councils in fabricated and abbreviated information. They will use a fraudulent consultant's report (the information for which was prepared by [the named], Mayor of Concord, and President of the Local Govt. Association) to coerce agreement from you via Council's recently delivered Merger Paper of 6 pages. All of the overall merger arrangements have never been the subject of you, the resident's input and vote via an independent referendum, it has been thrust upon you all by the Minister for Local Govt, via these Council complying deviates. It is already clear residents do not wish to amalgamate now. This amalgamation proposal has not been agreed to by residents, because they are to have no formal say via a 'constitutional referendum'. It is the only proper method of decision making for such an important and permanent arrangement. It is clearly evident Council and political interference is at its devious best here. A true independent audit and appraisal of any amalgamation proposal, including the mandatory inspection of Council's full array of records by properly qualified consultants with no political agenda WILL throw up substantial and voluminous irregularities in both Concord and Drummoyne.

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COUNCIL AMALGAMATION: … We can now clearly confirm the amalgamation process has been undertaken in a corrupt manner. The deviates from both Councils who instigated the corrupt dealings at the local level are Megna (ex Drummoyne Mayor) and Peter Woods (Concord Mayor) … Where was that essential and real action back in June '99 when we brought the amalgamation proposal to your attention?? As usual, public fragmentation and apathy were the culprits. The deviates rely on it. The fact is, corruption has won the day, both [the Mayor of Concord] and Megna have 'won' this confrontation, so get used to it. The dictionary describes corrupt as 'dishonest, illegalities for money or power, immoral'. Hence, with legal opinion now at hand and in our support, we will treat those involved as such from here on, corrupt. … The law has been contravened by Minister Harry Woods, Peter Woods and Megna. Read the Local Government Act. They are in this corrupt act together and deserve punishment for political based public manipulations and self-interest. It is clearly a forced amalgamation. If you, the residents are fair dinkum in your opposition, sue them. Take them on! Take out an Injunction. Stop the merger. Stop Council business until a compulsory referendum is agreed to by the Minister … 32(d) That as a Councillor on DC Mr Megna openly deceives ratepayers COUNCIL ELECTIONS, 2nd December, 2000: … 16 As well, Stephen Lesslie (Left Wing Labor Independent) voted continually throughout the merger process for amalgamation. If he did not want it and was looking after the residents' interests, he could have stopped the process very early on. But didn't. At the Council's final meeting to vote on the merger, Lesslie changed his vote to 'against amalgamation". Why? He knew that Megna already had the five votes required for the merger. He too, registered a new Political Party, 'No Amalgamation - Drummoyne & Concord". He wants to cash in on the very substantial objection vote about this merger at the forthcoming election. But just in case it did go through (and happened to be popular with residents, he also registered a second political party name - 'City of Canada Bay Residents' Association' So watch for these names on your Voting Papers - they are to be avoided like the plague. These are the types who openly deceive you. …

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RECENT COURT CASE --- MEGNA AND MARSHALL Why didn't the local papers print the truthful conclusion to this intriguing Court spat between the two profile Drummoyne Councillors? … The Court case indirectly involved this newsletter and its distribution. Our newsletter prints the truth and clearly events have been proven over the past 3 years. As an ex-mayor and leader of the majority voting Councillors on Drummoyne Council, Megna holds a deal of power re: local decision making. He is a proven and consistent public liar … We'll get on with it. Megna claimed that Marshall had maliciously damaged his vehicle windscreen. You see, Marshall assists delivery of these newsletters to you. Despite other accusations, he has no other role with this Association, and is not the writer of these articles. Marshall, however, does want you to know about the devious dealings by the deviates in and at Drummoyne Council, the wasted dollars, the horrific cost of ongoing consultants, wasted legal expenses and so on. Marshall has an encyclopedic knowledge re: the Local Government rule book and Council matters dating back more than 12 years. Megna will do anything to stop the issue of our newsletters. He wants to lie, cheat and coerce on Council without interference. Marshall, as a result, is at Megna's tail whenever the manipulation arises. … Another time in Nov. 99, Megna was again stalking Marshall and pursued him through several streets in Abbotsford. At the point when Marshall feared he was about to be run down by Megna he produced his walking stick to stop Megna driving his car at himself, and that resulted in the smashed windscreen. Marshall told the Court that he wasn't about to let Megna clout him again with his vehicle and held fear for his own safety. What has not been reported? Once a liar, always a liar. Yep! Even in the witness box, under oath, Megna produced the lies, they rolled out, and he forgot and changed his Police statement on occasions. Even the Police Prosecutor, in the middle of the Court proceedings, let slipwith 'made yourself a prime target for this maniac that's run over you before?' Marshall simply replied, 'your words, not mine' …

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32(e) That as a Councillor on DC Mr Megna is a proven and consistent public liar 34(a) That in his role as a member of DC over many years he has engaged in deception 34(b) That in Mr Megna's role as a member of DC over many years he has engaged in political corruptness 34(c) That in Mr Megna's role as a member of DC over many years he has engaged in manipulation 34(d) That in Mr Megna's role as a member of DC over many years he has told repeated lies Michael Megna -- You asked for it! 34(e) That in Mr Megna's role as a member of DC over many years he has acted vindictively In an article in the Glebe and Inner West Weekly Newspaper dated 11th June 2003,, the local Community and the authors of the "Community View" Newsletter have been issued an invitation by Michael Megna 'to put up or shut up' over allegations made by the newsletter issue dated May 2003. We apologise to our readers for the delay in a response, but, as one can see, the attached summary of deception, self interest, political corruptness, manipulation, lie after lie, payback, cheating and straight out public dishonesty is immense, and these are only some of the major matters held. This Newsletter has no agenda, political or otherwise. 34(f) That in Mr Megna's role as a member of DC over many years he has cheated Michael Megna is a member of the Liberal Party, has been a Mayor of Drummoyne Council for 8 terms and President of the Drummoyne branch of the Liberal Party for too long. He is a member of so many other committees that space prevents our listing. 34(g) That in Mr Megna's role as a member of DC over many years he has engaged in public dishonesty The response is issued to allow the local community to make an astute judgement as to whether Megna is a fit and proper person to vote for at the forthcoming Council election in March '04 as a Liberal Party candidate and representative of that Party if endorsed; as an Independent; or if he should vacate political life altogether. The response is also issued to clarify the truthful surroundings of Megna's public dealings and monotonous attempts at public profile statements in the Press. 17 Aug/Sept 2003 The Megna agenda has always been to lie and deny when confronted with the following information or toward anything which is critical of his public life motive, i.e. to get elected to local, State or Federal politics. 'I have done nothing wrong', Megna said (Glebe 11/6/03). Have a go at this heap of scabby much and make up your own mind. …

Parties

Applicant/Plaintiff:

Megna

Respondent/Defendant:

Marshall

Cases Cited (33)

CITATION : Megna v Marshall [2010] NSWSC 686

Adam v Ward [1917] AC 309 Andreyevich v Kosovich (1947) 47 SR (NSW) 357 Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55 Baird v Wallace-James (1916) 85 LJPC 193 at 198; (1916) SC (HL) 158 Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470 Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366 Bass v TCN Channel Nine Pty Ltd [2003] NSWCA 118 Bellino v Australian Broadcasting Corporation [1996] HCA 47; 185 CLR 183 Bennette v Cohen [2009] NSWCA 60 Braddock v Bevins [1948] 1 KB 580 Carson v John Fairfax and Sons Ltd [1993] HCA 31; 178 CLR 44 Cassell & Co Ltd v Broome [1972] AC 1027 Dow Jones & Company Inc v Gutnick [2002] HCA 56; 210 CLR 575 Fraser v Holmes [2009] NSWCA 36 Goyan v Motyka [2008] NSWCA 28 Guise v Kouvelis [1947] HCA 13; 74 CLR 102 Horrocks v Lowe [1975] AC 135 Howe v Lees [1910] HCA 67; 11 CLR 361 Huntley v Ward (1859) 6 CB (NS) 514 John Fairfax & Sons Ltd v Vilo [2001] NSWCA 290; 52 NSWLR 373 Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 Laughton v Bishop of Sodor and Man (LR 4 PC 495) CASES CITED : Lindholt v Hyer [2008] NSWCA 264 London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 Megna v Marshall [2004] NSWSC 191 Megna v Marshall [2005] NSWSC 1302 Megna v Marshall [2005] NSWSC 1326 Megna v Marshall [2005] NSWSC 1347 Megna v Marshall [2006] NSWSC 70 Moit v Bristow [2005] NSWCA 322 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 Motyka v Gojan [2007] NSWSC 31 Mowlds v Fergusson (1939) 40 SR (NSW) 311 Mowlds v Fergusson [1940] HCA 38; 64 CLR 206 Nevill v Fine Arts and General Insurance Co [1895] 2 QB 156; [1897] AC 68 Reynolds v Times Newspapers Ltd [2001] 2 AC 127 Roberts v Bass [2002] HCA 57; 212 CLR 1 Skalkos v Assaf [2002] NSWCA 14 Spill v Maule (LR 4 Ex. 232) State of NSW v Riley [2003] NSWCA 208; 57 NSWLR 496 Stephens v West Australian Newspapers Ltd [1994] HCA 45; 182 CLR 211 Sutcliffe v Pressdram Ltd [1991] 1 QB 153 Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; 182 CLR 104 Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044 Tory v Megna [2007] NSWCA 13 Warren v Warren 1 CM&R 250

History of the proceedings 3 So far as I can ascertain the following represents the history of the proceedings to date. 4 In February 2004 Mr Megna sought and obtained an order of the kind outlined in Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55. The precise terms of the order are not available to me, but I understand that it permitted persons appointed by Mr Megna to enter premises owned or occupied by Mr Marshall and seize documents. The purpose of the order was to identify the source of the defamatory publications referred to above, and extensively hereafter. 5 The statement of claim was originally filed on 8 April 2004. By reason of the dates of the publications, the claims are governed by the Defamation Act 1974, as amended in 1995. Pursuant to s 7A of that Act, issues of publication, whether the imputations were conveyed, and if so, whether they were defamatory, were committed for jury determination; all other issues were reserved for judicial determination. 6 A trial of the s 7A issues commenced in August 2005 before Studdert J and a jury, and proceeded over about three weeks. The principal issue was whether the plaintiffs were in a position to prove that either or both of the defendants were responsible for the publication of a series of 28 circulars, published between March 1998 and September 2003. 7 The jury found that the plaintiffs had proved publication by the defendants, and found that, in 17 of the circulars, 89 defamatory imputations had been published - 54 of Mr Megna, 35 of Mr Lloyd. It is to be noted that the "publication" found by the jury involved the distribution of the circulars. It did not encompass a finding that either Mr Marshall or Mr Tory wrote or composed them. There was some evidence from which the jury may have inferred that Mr Marshall had a role in the printing of the circulars. Just what view of that evidence the jury took is not known. 8 Between 2004 and 2005 the parties were before the Court on a number of occasions in various proceedings commenced by one or other of them, some of them concerning the disposal of assets. See Megna v Marshall [2004] NSWSC 191, Megna v Marshall [2005] NSWSC 1302; Megna v Marshall [2005] NSWSC 1347; Megna v Marshall [2005] NSWSC 1326; Megna v Marshall [2006] NSWSC 70. 9 Mr Tory appealed against the jury verdict. The appeal was heard on 25 October 2006; judgment was delivered on 19 February 2007: Tory v Megna [2007] NSWCA 13. The appeal was dismissed. 10 Defences were filed by or on behalf of Mr Marshall and Mr Tory on 2 February 2006 and 13 February 2006. Mr Marshall's defence was evidently prepared by himself (or by somebody unschooled in pleading) and sought to raise defences of truth, contextual truth, comment, qualified privilege (pursuant to s 22 of the Defamation Act), and (pursuant to s 13), that the circumstances of publication were such that the plaintiffs were unlikely to suffer harm. It was amended from time to time. 11 The trial was fixed to commence in February 2008, with an estimated hearing time of three weeks. The plaintiffs were represented by senior and junior counsel; Mr Tory was represented by junior counsel; and Mr Marshall represented himself. In December 2007 Mr Marshall applied for adjournment, on the ground that he was suffering from back pain. That adjournment was refused. 12 Shortly before the trial commencement date, Mr Marshall again applied, to Hoeben J, for adjournment. As I understand it, he gave two reasons: his back condition, which had resulted in recent surgery; and the recent death of his wife. 13 Hoeben J again refused the adjournment application. There is no record of any reasons for the refusal. 14 Accordingly, the trial of the defences commenced before me on Monday, 18 February 2008. Representation was as set out above. Mr Marshall was unrepresented. Yet again, he applied for adjournment, citing the same two reasons: his back condition, and that he was still emotionally affected by the death of his wife. 15 Although the debate wandered off into areas not directly relevant (for example, the impact of proposed late amendments to the plaintiffs' Reply) the real issue remained whether, by reason of Mr Marshall's medical condition and/or his wife's death, he was physically and/or emotionally unable to defend himself. Somewhat reluctantly, I also refused the adjournment. In doing so, I was conscious of Mr Marshall's un-represented status, of his physical health, and of the compassionate circumstances that operated in favour of adjournment. I also bore in mind that the application had already been made to one judge, who had seen fit to refuse it, and that Mr Marshall had advanced nothing additional (indeed, he had produced evidence to Hoeben J which he did not produce to me) to support a departure from the ruling of Hoeben J. To those considerations had to be added the costs of vacating a three week, four party, three counsel trial. On balance, I concluded that the trial ought to proceed, and it did, with Mr Marshall representing himself. 16 Mr Megna gave evidence. Mr Marshall embarked upon his cross-examination. At that time, one of the defences upon which he relied was justification. 17 It soon became apparent, unsurprisingly, that Mr Marshall was out of his depth. 18 Nevertheless cross-examination continued over the next three hearing days. On Monday 25 February, Mr Marshall again sought adjournment, this time with a view to obtaining legal advice. I granted a short adjournment to the following day. On that day, counsel appeared for Mr Marshall, but was obviously not in a position to embark upon a hearing. On Friday 29 February, different counsel appeared. By this time it was quite apparent that the matter could not immediately proceed. 19 For various legitimate reasons, into which it is not now necessary to delve, the matter could not resume until almost two years later, November 2009. 20 Mr Marshall's defence was substantially amended; justification was no longer relied upon. 21 Except for one thing, each defendant now raises only a single defence to the publications: that of qualified privilege at common law. It is that defence, as expressed in Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044; Adam v Ward [1917] AC 309; Braddock v Bevins [1948] 1 KB 580 (and adopted by the High Court in, for example, Roberts v Bass [2002] HCA 57; 212 CLR 1), and applied in NSW by the Court of Appeal in Bennette v Cohen [2009] NSWCA 60, and Fraser v Holmes [2009] NSWCA 36), that is the principal issue. A related defence, concerning the publication of defamatory material on political issues (see Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520) has not been invoked and expressly disclaimed. The substantial difference between what are, in effect, two strands of the same defence, is that the defence as explained in Lange requires proof, by the defendant, of reasonableness of conduct. Given that the Lange defence is not invoked, it is not necessary, in this case, for either defendant to establish that his conduct was reasonable. 22 The exception concerns the defence to the publication of one circular, the first. To this publication the defendants plead a limitation defence. 23 In response, the plaintiffs allege that, in publishing the defamatory imputations, the defendants were actuated by malice.

[2004] HCA 5

[2002] HCA 57

(1997) 189 CLR 520

(1947) 74 CLR 102