Supreme Court (General Civil Procedure) Rules 2025, rr 64.05(1)(a), 64.13(2), 64.36(3); Civil Procedure Act 2010, ss 7, 8(1), 9(1).

Commonwealth Bank of Australia v Quade (1991) 178 CLR 134; Clark v Stingel [2007] VSCA 292; Roberts-Smith v Fairfax Publications Pty Limited (Reopening Application) [2025] FCAFC 66; (2025) 310 FCR 141.

1. In 2016, Kirsty and Tim Metcalf purchased a property on Coombes Road, Freshwater Creek, where they planned to build a house and a large shed with a concrete apron in front of it. The Metcalfs did not require a planning permit to build a house on their property, and did not obtain one in respect of the other structures. Construction was completed in mid-2017 and the Metcalf family moved to the property soon afterwards.
2. Mr Metcalf has a private and commercial helicopter pilot's licence, owns a helicopter, and wished to use his helicopter from the property. In October 2017, the Metcalfs applied to the Surf Coast Shire Council for a permit to use the concrete apron as a helicopter landing site. They proposed to store up to three helicopters in the shed they had built on the property.
3. The Council received a large number of objections to the Metcalfs' permit application. The Council's consideration of the application was fraught, with robust debate and strong feelings on either side. In particular, there were conflicting opinions about the meaning of cl 52.15-1 of the Surf Coast Planning Scheme, which prescribes when a permit is required to use or develop land for a helicopter landing site. One of the councillors, Heather Wellington, queried whether the Metcalfs also required a retrospective permit to develop their property as a helicopter landing site.
4. In July 2018, the Council approved the permit with conditions, and resolved to apply to the Victorian Civil and Administrative Tribunal ('VCAT') for declarations about the scope of the exemptions in cl 52.15-1 for emergency services and agriculture. Ms Wellington did not participate in the decision, because by then she had made her own permit application to test the meaning of cl 52.15-1 of the Planning Scheme, and felt this made her a 'player in the proceedings'.
5. By that time, Mr Metcalf had already applied to VCAT for determination of the permit application. On 26 November 2018, VCAT granted a permit to use the Metcalfs' property for a helicopter landing site for four movements per day during specified daylight hours. VCAT rejected most of the conditions sought by the Council, and did not express any view as to whether a retrospective permit was required for the development of a helicopter landing site.[1]
6. While the matter could have ended there, it did not.
7. Ms Wellington had made a freedom of information ('FOI') application to the Council under the Freedom of Information Act 1982, seeking release of three documents that became known as the 'secret documents'. The documents were an email and submission sent by the Metcalfs to another councillor shortly before the Council meeting on 24 April 2018 (the 'Metcalf email' and the 'Metcalf submission') and a pre-application advice email dated 30 May 2016 from Roger Curnow, of the Council's planning department, to Sharon Berridge of Taylor Garwood Designs (the 'advice email').[2] Ms Wellington felt strongly that the documents should be made public; the Council and the Metcalfs opposed their release. During 2019, Ms Wellington took her FOI application to the Office of Victorian Information Commissioner ('OVIC') and VCAT, and ultimately succeeded in having all three documents released.[3]
8. There was a Council election in October 2020, in which both Ms Wellington and Ms Metcalf stood as candidates. Ms Wellington was re-elected, and Ms Metcalf was unsuccessful.
9. On 15 October 2020, in the context of the election, Ms Wellington uploaded the Metcalf submission to her Facebook page, which prompted a strong response from Ms Metcalf. Between 18 October 2020 and 17 November 2020, Ms Metcalf published a number of posts on her own Facebook page that referred to Ms Wellington. Ms Wellington sued Ms Metcalf for defamation in the County Court in respect of those publications.
10. The trial of the defamation proceeding took place over 10 days in August 2022. On 21 November 2022, Judge Clayton gave judgment for Ms Wellington and ordered Ms Metcalf to pay Ms Wellington damages in the amount of $100,000. In comprehensive reasons for judgment, the judge found that Ms Metcalf had defamed Ms Wellington in seven publications and that no defence had been made out. The damages awarded included a component for aggravated damages.
11. The parties' combined legal costs in the County Court were more than $1 million. On 15 December 2022, the judge ordered Ms Metcalf to pay Ms Wellington's costs of the proceeding on an indemnity basis. In April 2024, the Costs Court estimated those costs would likely tax at the sum of $547,280.
12. The matter could have ended there, but again it did not.
13. Ms Metcalf was dissatisfied with the production of documents in the proceeding by Ms Wellington, on discovery, and by the Council, in answer to a subpoena. Initially, Ms Metcalf complained to the Local Government Inspectorate and then the Independent Broad-based Anti-corruption Commission ('IBAC'), which investigated her complaint but decided not to take further action. Between June and September 2023, Ms Metcalf made a series of FOI requests to the Council. The Council produced documents in answer to these requests between October and December 2023. Ms Metcalf's review of those documents confirmed her view that Ms Wellington had not made proper discovery of documents in the proceeding.
14. On 14 May 2024, Ms Metcalf filed an application for leave to appeal from the orders of the County Court made on 21 November 2022 and 15 December 2022, on a single proposed ground of appeal that:

The interests of justice favour the appeal being allowed and the judgment and orders below (including the Costs Order) being set aside, with a new trial ordered, following further discovery and interlocutory steps.

1. At the same time, Ms Metcalf applied for an extension of time for filing the application for leave to appeal, and leave to rely upon fresh evidence comprising 59 additional documents released by the Council in response to Ms Metcalf's FOI request. Ms Metcalf also applied for a stay of the costs order, which was dismissed in June 2024.[4]
2. For the reasons that follow, the applications for an extension of time and for leave to rely upon fresh evidence will be refused.

1. Ms Wellington sued in respect of seven posts published by Ms Metcalf on her Facebook page between 18 October 2020 and 17 November 2020. The judge found that the first to sixth publications named Ms Wellington as the subject of the post.[5] While the seventh publication did not name Ms Wellington, the judge accepted evidence from witnesses that they understood the reference to 'a councilor (sic)' was a reference to Ms Wellington.[6] Accordingly, the judge found that Ms Metcalf published each of the posts sued on and that each of the publications was of and concerning Ms Wellington.[7]

1. The judge found that the publications conveyed the imputations that Ms Wellington:

(a) told lies in relation to Ms Metcalf's application for a planning permit;[8]

(b) used ratepayers' money to challenge the Planning Scheme in VCAT;[9]

(c) attempted to hinder the operation of fire emergency services in the Surf Coast Shire by using an application to VCAT for the purpose of ensuring that a permit is required in order for someone to land a helicopter in a fire emergency;[10]

(d) incited a group that engages in hatred towards others to harass Ms Metcalf, by fuelling them with false information about her planning application;[11]

(e) put the lives and safety of Ms Metcalf and her family at risk by ignoring Ms Metcalf's pleas for help to address an unrelated planning issue;[12]

(f) incited groups that engage in hatred towards others to allege Ms Metcalf's home was illegal and to allege Ms Metcalf and her husband had abused the planning provisions;[13]

(g) fabricated information and told lies in relation to Ms Metcalf's planning application;[14]

(h) is so delusional she believes the lies she tells and the stories she makes up in her head about Ms Metcalf's planning application;[15]

(i) fraudulently claimed reimbursement for fuel expenses from the Council;[16]

(j) created a fictitious scandal concerning Ms Metcalf's planning application;[17]

(k) invented allegations there was a secret involving Ms Metcalf's planning application and that council officers, Ms Metcalf, and her husband, had abused the Planning Scheme;[18]

(l) created and disseminated a story about Ms Metcalf's planning application that was based on lies told by Ms Wellington;[19] and

(m) engaged in corruption in relation to the Council.[20]

1. Ms Metcalf conceded that all of these meanings were defamatory of Ms Wellington.[21] The judge found them to be 'self-evidently' defamatory.[22]

1. In her defence, Ms Metcalf pleaded that many of the imputations were true, or substantially true.
2. As to the imputation that Ms Wellington told lies in relation to Ms Metcalf's application for a planning permit, Ms Metcalf impugned the truth of five specific statements:

(a) First, during the Council meeting on 24 April 2018, Ms Wellington said: 'I don't think the application in front of us is for a business use and a business use requires its own permit.'[23]

(b) Second, during the same meeting, Ms Wellington said: '... it didn't get a planning permit in the first instance because it was for farm use and then and all of a sudden it becomes helicopter use, how does that work... .'[24]

(c) Third, at the same meeting, Ms Wellington said: '... Can I build a massive shed on my farm property without a planning permit and a helicopter landing site just a slab of concrete without a planning permit and say I'm going to use it for farm business and then it turns into a heliport'.[25]

(d) Fourth, Ms Wellington stated publicly and in numerous newspaper articles that there existed two secret documents used by the Council to make a planning decision.[26]

(e) Fifth, Ms Wellington was quoted in an article published in the local newspaper in July 2019 as follows: 'Victorian Civil and Administrative Tribunal (VCAT) approved a commuter permit for the use of the helicopter but the shire had not yet "further considered" the hangar issue, Cr Wellington said'.[27]

1. The judge observed that the defence required evidence not just that the relevant statements were wrong but also that Ms Wellington misled or deceived.[28] The judge found that Ms Metcalf had not established the truth of the imputation that Ms Wellington told lies in relation to the permit application.[29] In relation to the five statements said by Ms Metcalf to be lies, the judge found:

(a) At the time of the April 2018 meeting, the Metcalfs had amended their use permit application to remove commercial uses, and there was no application for business or commercial use before the Council. Ms Wellington had stated the correct position, that councillors could only consider the application before them. A business use confined to agricultural or emergency services may not require a permit, but other business uses such as aerial landscape surveying may. The first statement was not a lie.[30]

(b) The second statement was not a lie, but a legitimate question. The allegation that the statement represented that the Metcalfs had hidden from the Council their intention to use a helicopter at the property so as to avoid the proper planning processes was, 'at best, a stretch'. Ms Wellington's concern was not with the Metcalfs, but with the planning department's process of approval.[31]

(c) The third statement in relation to a 'heliport' was not a lie. The judge was not persuaded that Ms Wellington understood the distinction between a helicopter landing site, a helipad, and a heliport, or that she deliberately used the term 'heliport' to mislead and deceive. A misstatement or slip of the tongue is not the same as a lie.[32]

(d) The fourth statement concerned two documents - the Metcalf submission and the advice email.[33] The documents were 'secret' because they were not publicly disclosed until after Ms Wellington's successful FOI application.[34] Both documents were available to councillors before the April 2018 meeting, but there was no evidence about what use councillors other than Ms Wellington made of them. The documents informed Ms Wellington's position in relation to the permit application. Her concession that the advice email was 'probably' not used by the other councillors was not an admission that she had lied.[35] The fourth statement was not a lie.

(e) The fifth statement was not a lie. The hangar issue had not been further considered, by either the Council or VCAT. A difference of opinion about the need for further consideration of the hangar issue was not the same as a lie.[36]

1. The judge found that there was no truth to the imputation that Ms Wellington had used ratepayers' money to challenge the Planning Scheme in VCAT:

The declarations sought from VCAT were the plaintiff's idea. The motion was not ultimately voted on by the plaintiff, who recused herself. However, it was unanimously supported by all other members of the [Council]. I have set out above the fulsome support it received from other councillors. There is simply no substance to the argument that this vote by councillors resulted in the plaintiff 'spending' ratepayers' money at VCAT.

Further, the declarations sought were not to challenge the Planning Scheme, but to seek clarification of it. This was considered to be of benefit by all councillors.

The plaintiff did, technically, spend ratepayers' money when she made her own use permit application. She did this as a private citizen, and spent ratepayers' money in the same way the Metcalfs spent ratepayers' money in making their own application, and in the same way any person having any dealings with the [Council] 'spends' ratepayers' money. This does not amount to a 'challenge' to the Planning Scheme.

The plaintiff's use permit application did not go to VCAT. This cannot be relied upon by the defendant to prove the truth of her allegation that the plaintiff used ratepayers' money to challenge the [Council] Planning Scheme at VCAT.[37]

1. As to the imputation that Ms Wellington attempted to hinder the operation of fire emergency services in the Surf Coast Shire, the judge found that she had never advocated or desired that an emergency services provider be required to obtained a planning permit to use a helicopter in the middle of an emergency.[38] In any event, requiring a business that provides emergency services to have a use permit for movements to or from the land on which the business was located would not hinder the provision of emergency services. There was no truth to the imputation that Ms Wellington wanted to impose a permit requirement for the use of helicopters in an emergency.[39]
2. The judge rejected as implausible the submission that Ms Wellington had created a fictitious scandal concerning Ms Metcalf's planning application.[40] She also found that there was no truth to the imputation that Ms Wellington invented allegations that there was a secret involving the planning application and that council officers, Ms Metcalf and her husband had abused the Planning Scheme.[41] To the extent that there was a scandal around the 'secret' documents, both the Council and the Metcalfs had opposed public disclosure, and it could not be said that Ms Wellington created the scandal.[42] There was no evidence to suggest that Ms Wellington said, implied, or believed that council officers or the Metcalfs had abused the Planning Scheme. Rather:

She was clear in communications to the objectors, at council meetings, and in internal communications within the [Council], that she did not understand the reasoning behind council officers' recommendations and advice, but was careful to say the Metcalfs may have been given the wrong advice and did not attribute any blame to them.[43]

1. As to the allegation that Ms Wellington had engaged in corruption in relation to the Council, the judge observed that Ms Metcalf's submissions on this point amounted only to a submission that Ms Wellington had a fixed view about the Metcalfs' permit application and was not open to persuasion. Without more, that could not amount to dishonest conduct. Ms Metcalf's own summation of the matters relied on to show 'dishonest' conduct by Ms Wellington instead demonstrated that she had taken a principled stance and maintained her convictions. Disagreement about the interpretation of the Planning Scheme or the application of the law could not amount to dishonest conduct.[44] The judge rejected as implausible Ms Metcalf's submissions that Ms Wellington engaged in a 'personal crusade' for the motive of gaining an advantage by disadvantaging the Metcalfs.[45]
2. The judge also found that Ms Metcalf's reliance on the definition of 'corrupt conduct' in s 4(1) of the Independent Broad-based Anti-corruption Commission Act 2011 ('IBAC Act') was fundamentally flawed.[46] In conclusion on the truth of imputation of corruption, the judge said:

To establish the truth defence in relation to the allegation that the plaintiff engaged in corruption pursuant to the IBAC Act, the defendant would have to establish not just that the plaintiff was dishonest or otherwise engaged in one of the behaviours described by the IBAC Act, but that the behaviour constituted a 'relevant offence' as defined. The defence must be established to the Briginshaw v Briginshaw standard.

The defendant has not defined the relevant offence she alleges the plaintiff committed and it is not apparent any of the conduct relied on by the defendant could amount to any of the defined offences.

The defendant has not established that, separate from the provisions of the IBAC Act, the plaintiff could nevertheless be considered to have engaged in corruption.

The imputation is not true or substantially true.[47]

1. Thus, Ms Metcalf's defence of truth was not established.

1. Ms Metcalf relied on the defence of qualified privilege in relation to all seven publications, in four distinct forms:

(a) statutory qualified privilege, under s 30 of the Defamation Act 2005;

(b) common law qualified privilege, on the basis that the publications were in relation to government and political matters;

(c) common law qualified privilege, on the basis that the publications were in response to an attack by Ms Wellington; and

(d) 'ordinary' common law qualified privilege.

1. The judge found that the defence of statutory qualified privilege was not established, for two main reasons.
2. First, the publications were posted on Ms Metcalf's public Facebook page, and were available to anyone with access to Facebook. While the Facebook page might primarily be of interest to people living in the Surf Coast Shire, who may have an interest in issues relating to councillor conduct, the judge could not be satisfied that only people with that interest received the publications. The world at large could not be said to have a legitimate interest in receiving the information in the publications.[48]
3. Second, the information published went beyond what could be considered of interest to friends, family, supporters, and ratepayers. Those persons could not have an interest in receiving information Ms Metcalf knew to be false, or had no reasonable basis to believe was not false.[49] The judge found that Ms Metcalf's posts were underpinned by a 'distorted version of events which infects their reasonableness'.[50]
4. The judge set out her findings as to the reasonableness of publication, in relation to each of the imputations:

(a) The plaintiff told lies in relation to the defendant's application for a planning permit; fabricated information and told lies in relation to the defendant's planning application; is so delusional that she believes the lies that she tells and the stories that she makes up in her head about the defendant's planning application; created and disseminated a story about the defendant's planning application that was based on lies told by the plaintiff

The plaintiff and the defendant have a different view about the requirements of the Planning Scheme and its intended operation. There is a world of difference between having opposing views about the operation of legislative provisions and telling lies. The 'lies' the plaintiff is alleged to have told are in fact views that differ from the defendant's own. The defendant ought reasonably to understand this distinction but did not make it when she called the plaintiff a liar. This was not reasonable.

(b) The plaintiff used ratepayers' money to challenge the Planning Scheme in VCAT

The impression anyone reading such an allegation would have is the plaintiff used ratepayers' money to fund personal proceedings at VCAT. This was untrue and was known by the defendant to be untrue. The defendant also knew the sense in which she says she intended the allegation to be understood - that the plaintiff was using ratepayers' money by persuading the [Council] to seek declarations - could not be reasonably maintained. The decision to seek declarations had been unanimously voted on. No reasonable person could consider this amounted to the plaintiff using ratepayers' money. At trial the defendant submitted she had been also referring in this post to the plaintiff's personal use application which used ratepayers' money. This appears to be a post hoc rationalisation. Her post specifically refers to VCAT. The use application never went to the VCAT.

(c) The plaintiff attempted to hinder the operation of fire emergency services in the Surf Coast Shire by using an application to VCAT for the purpose of ensuring that a permit is required in order for someone to land a helicopter in a fire emergency

The clear intention of this imputation was for readers to believe the plaintiff wanted to impose a [permit] requirement for helicopters to land in an emergency. So much is apparent by the comment, 'In other words according to Wellingtons determination, to land a helicopter in a fire emergency a permit should be required. (Reflect on that and its implications)'.

There is no reasonable basis the defendant could have for believing this was the plaintiff's intention. This was never the plaintiff's view. The defendant relied on an impermissible distortion of the plaintiff's actual statements and a tortured line of reasoning to justify why this was a sustainable belief.

(d) The plaintiff incited a group that engages in hatred towards others to harass the defendant by fuelling them with false information about the defendant's planning application

There is no evidence the plaintiff incited anyone, nor that she provided false information. The defendant could not reasonably have held this view. She knew the objectors existed prior to the plaintiff making any statement. The evidence shows the plaintiff attempted to be a moderating influence on the objectors, declining to endorse the more sensational views held by some (for example, Mr Adams' view that there had been abuse of the Planning Scheme), and seeking to clarify rumours in order to ensure the true facts were known (for example, whether the dwelling was a commercial building, whether there was a depot planned, et cetera). There is no evidence any of the harassment the defendant alleges she was subjected to was incited by the plaintiff and the defendant has pointed to no evidence upon which she could have reasonably held that belief.

(e) The plaintiff put the lives and safety of the defendant and her family at risk by ignoring the defendant's pleas for help to address an unrelated planning issue

The defendant cannot have reasonably held a belief her allegations in relation to The Esplanade apartment were true. The plaintiff took steps above and beyond what might be expected of a councillor in relation to a complaint of this kind, particularly on behalf of a ratepayer from a different ward. The plaintiff's endeavours on behalf of the defendant were entirely in keeping with the plaintiff's conduct as a councillor - seeking to provide ratepayers with appropriate access to documents, ensuring transparency in planning decisions and challenging council officers' decisions in relation to planning matters. The defendant cannot reasonably have believed the plaintiff 'abandoned' her, 'walked away' or 'ignored the life safety risks [they] were left in without any challenge to the status quo'.

...

(f) The plaintiff incited groups that engage in hatred towards others to allege that the defendant's home was illegal and to allege that the defendant and her husband had abused the planning provisions

I do not accept the defendant held a genuine belief her house would be torn down. I do not accept, by the time she wrote the publications, she was motivated by her own belief her home was under threat.

She gave evidence that she believed, 'even now', anyone could take her to VCAT and have her house torn down. However, given her apparent comprehensive understanding of the Planning Scheme and her unshakeable view that it is simple and clear in its application to her development, at most she could be concerned that she would have an unnecessary legal proceeding to deal with.

Further, despite apparent community concern, there is no evidence anyone has tried to have her house 'torn down', nor sought to take the [Council] to VCAT to require a retrospective permit for the development. The [Council] has been consistent in its view no such permit is required. As submitted by her counsel, in any event, any retrospective permit would be for the helicopter landing site, being the concrete apron, not for the dwelling.

The defendant made no attempt to distinguish between facts, suspicions and allegations. Immediately after the April council meeting it is clear the defendant believed the plaintiff had sided with the objectors. She gave no consideration, it appears, to the plaintiff's own statements that her questions were motivated by long-held concerns about process and transparency. She appears to have completely disregarded the plaintiff's statement she was not saying the applicants had done anything wrong, nor was she saying that it was never appropriate for a helicopter to be operated in a rural zone. The plaintiff's concern was with council officers and their decisions.

Nothing in the plaintiff's public statements could be construed as alleging the Metcalfs had abused the Planning Scheme. Her concern was that, in spite of the statements made by the Metcalfs in their planning application, in their permit application and in the Metcalf submission, council officers maintained the view that the concrete apron was not a helicopter landing site and the hangar was not helicopter infrastructure.

Instead of considering the plaintiff may have genuine questions about council officers' recommendations and the scope of cl 52.15 exemptions, the defendant appears to have decided the plaintiff was motivated by malice and desired to instigate a witch hunt.

...

(g) The plaintiff fraudulently claimed reimbursement for fuel expenses from the [Council]

The defendant gave evidence that she did not believe the plaintiff would be transparent about her conduct. However, this is irrelevant given that the imputation is conveyed. Together with the other imputations and other publications, which paint the plaintiff as a person who tells lies, uses ratepayers' money, and engages in corruption, it is difficult not to conclude that this was included in the defendant's post at least recklessly, if not maliciously. The defendant took no reasonable steps to ascertain the truth or otherwise of this allegation. It would have been a simple matter to do so. The fact she did not correct it immediately because she thought, 'Why bother?' is evidence she did not care about the truth or the harm her allegations could cause.

(h) The plaintiff created a fictitious scandal concerning the defendant's planning application; invented allegations that there was a secret involving the defendant's planning application and that council officers, the defendant and her husband had abused the Planning Scheme

The defendant relies on a distorted version of the events surrounding the Metcalfs' permit application and cannot rely on her own distortion to demonstrate her conduct was reasonable. To the extent there was a 'scandal', it was not fictitious and was not created by the plaintiff.

There was a great deal of interest and concern about the Planning Application. This existed independently of any action by the plaintiff. The plaintiff did not allege and does not maintain the Metcalfs or council officers 'abused' the Planning Scheme.

It is not difficult to see why the plaintiff had questions. She may be wrong as a matter of planning law. I make no finding about that. However, her questions and ultimately her position were not difficult to understand. The Metcalfs themselves understood they needed a permit to use the concrete apron as a helicopter landing site at the time they originally approached the [Council] in 2016. The oft-repeated assertions by the defendant about all the other uses that have been made of the concrete apron (roller skating, washing cars, having picnics), does not alter the fact it was also intended to be a helicopter landing site.

Council officers may well be correct that the concrete apron and hangar were, at the time of the Metcalf's permit application, existing infrastructure for the purposes of the Planning Scheme. That is beyond the scope of this case. However, it cannot be said there is simply no basis for anyone in the community, including the plaintiff, to question the process council officers undertook in reaching that decision. To the extent this caused questions and concerns within the community and in the plaintiff's own mind, it is not 'fictitious'.

There is nothing in the plaintiff's conduct that could give rise in the defendant's mind to a reasonable belief the plaintiff 'invented allegations' that anyone had 'abused the planning scheme'. That is not supported by any of the evidence.

(i) The plaintiff engaged in corruption in relation to the [Council]

The defendant did not reasonably hold this belief. She had been told by the Inspectorate and IBAC the plaintiff had not committed any offence, nor was there any evidence of a conflict of interest. Again, her distortion of the facts cannot provide the foundation for the reasonableness of her view. Having been told there was no 'corruption' following her complaints and in the absence of any other evidence that the plaintiff had engaged in corruption, it was not reasonable for the defendant to make this allegation.[51]

1. The defence of common law qualified privilege in relation to discussion of government and political matters failed. The judge accepted that each of the publications related to a government matter, because they concerned Ms Wellington's conduct as a councillor. However, for the reasons just set out, the judge held that Ms Metcalf's conduct in publishing the posts was not reasonable, and so the defence was not made out.
2. The judge held that the defence of common law qualified privilege for publications in response to an attack was not established, because the conduct complained of did not amount to an attack that would require Ms Metcalf to respond by publishing the posts.[52] Ms Wellington's conduct in asking questions about the council process and querying whether a development permit was required from the helicopter infrastructure, did not constitute an attack on Ms Metcalf.[53] In relation to the alleged social media attack, it was plain from the sequence of events that it was, in fact, Ms Metcalf who launched the attack, apparently in response to a comment by a third party that was not attributable to Ms Wellington.[54] The judge found that there was no foundation for the argument that Ms Metcalf was responding to an attack made against her on social media,[55] concluding:

An analysis of the posts respectively published by the plaintiff and defendant demonstrate who is the attacker and who is the responder. The plaintiff confined all her responses to debunking allegations made by the defendant. She called out the 'rubbish information' and certainly criticised the content, reasoning and views of the defendant. None of these comments could be said to be inappropriate or unreasonable, or amount to an attack that would require a response. The defence is unsustainable.[56]

1. The final defence of 'ordinary' common law qualified privilege also failed, because the communications had been published to the world at large and Ms Metcalf had not shown that everyone to whom they were published had the requisite interest in receiving them.[57]
2. Because none of the defences had been found to apply, the question of malice did not arise. However, in case of error in relation to any of the qualified privilege defences, the judge expressed her satisfaction that Ms Metcalf was motivated by malice. For the reasons set out above, the judge found that Ms Metcalf's conduct was so reckless and so unreasonable as to amount to malice.[58]
3. The judge's findings in relation to Ms Metcalf's pleaded defences, and the finding that she was motivated by malice, were underpinned by detailed factual findings set out in the first part of her Honour's reasons.[59] They were also informed by the judge's assessment of the parties' credit as witnesses. The judge found Ms Wellington to be an 'impressive witness', who made appropriate concessions and was careful not to overstate her recollection of events, and whose evidence was supported by her conduct in office.[60] Ms Metcalf, on the other hand, did not make appropriate concessions, was prone to exaggerating, maintained fixed opinions and engaged in a degree of tortured reasoning.[61] The judge concluded that Ms Metcalf was not a reliable witness, and treated her evidence with caution. Where there was a direct dispute, the judge preferred Ms Wellington's evidence.[62]

1. Having determined that none of the pleaded defences were made out, the judge turned to the assessment of damages.
2. As to the extent of publication, the judge found that the audience for the posts extended beyond the two or three people who gave evidence of having read them. Ms Metcalf's Facebook page was liked or followed by 95 to 100 people, but was publicly accessible. The judge was satisfied that there would be a significant grapevine effect at play within the small community of Surf Coast Shire, in the context of a Council election.[63]
3. The judge accepted 'compelling evidence' given by Ms Wellington that the effect of the publications on her was significant and continuing. Her thoughts were consumed with Ms Metcalf's attacks on her, her sleep was disturbed, and she worried the publications would damage her professional reputation. Ms Wellington's hurt and upset had been observed by friends and relatives, one of whom described her as 'consumed with distress'. The judge noted that Ms Wellington's hurt and distress were apparent when she gave her evidence.[64]
4. There was some evidence that the publications had an impact on Ms Wellington's reputation. The judge accepted Ms Metcalf's submission that any public figure would be aware that a degree of criticism, fair or unfair, comes with the job.[65] However, the judge found that the posts went 'well beyond' the sort of unfair criticism one might expect as a local councillor, making allegations of corruption, obsession, lying, and fraud.[66] The judge continued:

It is apparent from the evidence before the Court that the plaintiff enjoys an excellent reputation. The fact she has been elected to local office since 2012 demonstrates she is held in high regard by her community. The defendant points to her resounding re-election in the 2020 election as evidence the posts did not harm the plaintiff's reputation. However, most of these posts were published after the election, and therefore the plaintiff cannot be comforted in the knowledge that they have not damaged her standing in the community. I accept the unknown impact of the posts, at least until the next election, will cause her a degree of distress and hurt which should sound in damages.

However, I am not persuaded that these posts caused any widespread or significant actual harm to the plaintiff's otherwise excellent reputation.

Fortunately for the plaintiff, the posts are written in a way that would cause most reasonable and fair-minded readers to approach the allegations with a significant degree of scepticism. A fair-minded, reasonable reader would not assess them to be a balanced and fair account, but would rather see them as self‑serving and histrionic.[67]

1. In conclusion on the question of damages, the judge said:

Although the publications were posted on a public Facebook page and remain available today, there is no evidence that publication has been of broad scope or the posts have been widely read. The nature of the posts would tend to render them of interest primarily to persons within the local community and Surf Coast Shire. The name of the Facebook page, initially referencing Winchelsea Ward and subsequently referencing Surf Coast, would also serve to confine the people likely to click onto the page to those within the local community.

The nature of the posts would also reduce what might otherwise be a more significant grapevine effect. Within the local community, they generated some interest, particularly in the context of the election. However, the posts are not likely to generate interest among a broader audience.

People who did not know the plaintiff would, when reading the publications, be likely to form a view that they were published by the defendant in pursuit of a self-serving campaign and would likely approach the allegations made with a degree of scepticism. A reader would likely appreciate that the version of events posted is only one side of the story.

Nevertheless some people would consider they were true and some people would consider they may be true or may contain elements of truth.

The existence of the posts, particularly the cumulative nature of them, was likely to cause significant stress and hurt to the plaintiff and give rise to a reasonable fear that they would continue and escalate in content.

The defendant, by her conduct, has aggravated the hurt and embarrassment felt by the plaintiff and has aggravated the harm done by the original posts. She has maintained a defence of truth, maintained the posts on her Facebook page and ventilated allegations about the plaintiff's motives. An award of aggravated damages is appropriate.[68]

1. After referring to the legal principles that guide the assessment of damages for defamation,[69] the judge rejected the submission that the hurt to Ms Wellington's feelings and the harm to her reputation should be assessed as part of 'the rough and tumble of politics'.[70] The judge noted that an award of damages should vindicate Ms Wellington's reputation and demonstrate the baselessness of Ms Metcalf's allegations, 'while ensuring there remains a rational relationship' between the harm sustained and the damages awarded.[71] Having regard to all the evidence and weighing up the relevant factors, the judge determined that $100,000 was an appropriate award of damages, including aggravated damages.[72]

1. In her application for leave to appeal, Ms Metcalf made no complaint about the judge's findings or any aspect of her Honour's reasoning. Ms Metcalf's central contention was that Ms Wellington had engaged in litigation misconduct by failing to discover numerous relevant documents, and so it would be in the interests of justice to set aside the judgment and orders below and order a new trial.
2. Ms Metcalf sought leave to rely on fresh evidence to demonstrate that Ms Wellington had failed to comply with her discovery obligations in a material way.[73] The fresh evidence comprised 59 documents provided to Ms Metcalf in response to her FOI requests to the Council.
3. Ordinarily, evidence that was not before the court below will be received on appeal only if it is reasonably clear that, if the evidence had been available at trial and had been adduced, an opposite result would have been produced.[74] However, that general rule does not apply in a case of 'surprise, malpractice or fraud', which may include a case where the 'the fresh evidence was unknown to the unsuccessful party by reason of misconduct on the part of the successful party, such as an admitted failure to comply with the requirements of the trial court's order for discovery of documents'.[75]
4. In such a case of 'litigation misconduct' by the successful party, different considerations inform whether it is in the interests of justice to receive the fresh evidence and order a new trial. The assessment needs to take account of:

(a) the degree of culpability of the successful party;

(b) any lack of diligence on the part of the unsuccessful party;

(c) the extent of any likelihood that the result would have been different if the order for discovery had been complied with and the non-disclosed material had been made available; and

(d) general considerations relating to the administration of justice, including the public interest in the finality of litigation, and the overarching purpose and objects of the Civil Procedure Act 2010.[76]

1. The question whether the interests of justice require a new trial 'will almost inevitably be answered in the negative if it does not appear that there is at least a real possibility' that an opposite result would have been produced if the order had been complied with.[77]
2. Ms Wellington accepted that many of the additional documents that Ms Metcalf sought to rely on were relevant to collateral issues in the proceeding, had been in her possession, and were discoverable. While she denied having engaged in litigation misconduct, she accepted that Ms Metcalf's applications to rely on fresh evidence and for leave to appeal should be determined in accordance with the principles just outlined.
3. Ms Metcalf also requires an extension of time, having filed her application for leave to appeal some 15 months out of time. The discretion to extend time is to be exercised in the interests of justice, having regard to the length of the delay, the reasons for the delay, any prejudice that might be suffered by the respondent, and whether the proposed appeal has a real prospect of success.[78] There is a significant overlap between these considerations and those set out above. We will return to the question of whether time should be extended after considering the fresh evidence application.

1. On 23 June 2021, the judge made an order for discovery in the following terms:

By 4.00pm on 14 September 2021, each party make discovery of all of the following documents:

a) documents referred to in the party's pleadings or the particulars of the pleadings;

b) documents on which the party relies;

c) documents that adversely affect the party's own case;

d) documents that adversely affect another party's case;

e) documents that support another party's case; and

f) documents which the person considers, or ought reasonably consider, are critical to the resolution of the dispute.

1. Ms Wellington made an affidavit of documents on 11 September 2021, listing 66 documents in her possession, custody or power which were required to be discovered. She made a supplementary affidavit of documents on 9 November 2021, listing a further six documents.
2. The cases put by each party were defined by their pleadings, which at that time were Ms Wellington's statement of claim dated 23 December 2020, Ms Metcalf's amended defence dated 28 June 2021, and Ms Wellington's reply dated 27 July 2021.
3. By her amended defence, Ms Metcalf abandoned the defence of honest opinion, and pleaded a new defence of common law qualified privilege for publications in response to an attack. Detailed particulars of the alleged 'campaign of attack' were provided in a schedule to the amended defence. Truth was pleaded as a defence to the first and sixth publications only.
4. Ms Wellington's reply denied the truth of the imputations conveyed by the first and sixth publications, denied having engaged in a campaign of attack against the Metcalfs, and pleaded that Ms Metcalf was actuated by malice in making the publications.
5. On 17 November 2021, Ms Metcalf's solicitors wrote to Ms Wellington's solicitors, referring to Ms Wellington's affidavits of documents dated 14 September 2021 and 9 November 2021. The letter requested that Ms Wellington:
   1. make further discovery of documents in relation to your client's fuel expenses, including documents that your client would have submitted to the Surf Coast Shire to seek reimbursement of her fuel expenses. We note that such documents have not been discovered;
   2. provide a copy of the emails dated 20 July 2018 (contained in document numbered 23 in the First Affidavit) with their attachments. The attachments have not been discovered;
   3. confirm that your client has discovered all relevant emails regardless of whether they were sent to or from her Council or personal email address.
6. Ms Wellington's solicitors responded by letter dated 13 December 2021, as follows:

Using the same numbering in your letter of 17 November 2021, we respond as follows:

1. Your broad request for discovery of documents 'in relation to' our client's fuel expenses is improper and constitutes a fishing expedition. Documents regarding fuel expenses are not relevant and discoverable for the same reason that that your client's interrogatory on the subject was objectionable: your client does not plead truth in defence to the fifth publication, therefore the case proceeds with your client having accepted the presumption that the relevant imputation is false.

Under cover of that objection, and in the interests of transparency, our client will consider any request for specific discovery if you can properly articulate a refined category of documents to which your client seeks access.

1. We apologise for the oversight in inadvertently omitting the attachment to document number 23. A copy of the attachment - entitled 'hlw notes 20 July 2018' - is enclosed herewith.
2. We are instructed that our client has discovered all emails that she believes are relevant to this proceeding, including following a search of her personal emails. If your client seeks further specific discovery, we invite you to articulate that request.

1. Despite this invitation, Ms Metcalf's solicitors did not make any further request for specific discovery during the proceeding.
2. On 21 March 2022, Ms Wellington made a further supplementary affidavit of documents, listing a further 18 documents identified by her in her continuing search for relevant documents.
3. Ms Metcalf amended her defence for a second time on 22 March 2022, adding a defence of common law qualified privilege for publications in relation to government and political matters, and pleading the defence of truth in respect of the third and seventh publications. The further amended defence also provided particulars of the defence of truth to the meanings conveyed by the first publication.[79] Ms Wellington filed a reply on 28 March 2022.
4. These pleading amendments did not prompt further discovery from Ms Wellington, or a request by Ms Metcalf for further specific discovery.
5. On 21 June 2022, shortly before trial, Ms Metcalf filed a second further amended defence. The amendments appear to have been in aid of her defence of common law qualified privilege for publications in relation to government and political matters. Again, these amendments did not result in any further discovery or any request for further specific discovery.
6. At trial, counsel for Ms Metcalf cross-examined Ms Wellington about several documents produced by the Council on subpoena, which had not been discovered by Ms Wellington. Her answers were consistently that she had not intentionally withheld the documents. In re-examination, she gave the following explanation of her approach to discovery:

In relation to the discovery in this proceeding, how did you go about doing that?---Well, I searched through - I've got, you know, eight or 10 years of council emails. I searched through as best I could on (indistinct) that I could think of. I can't - I certainly searched on Metcalf and, you know, I searched as best I could. I thought back to the times when they were there and I tried to go through the periods when this was all very active, to find relevant emails. I did my best, but I've just got thousands and thousands and thousands of emails and I've got no mechanism to archive my own emails. So I just did what I could to find the ones that were relevant.

1. In opposition to the application to rely on fresh evidence, Ms Wellington made an affidavit explaining her efforts to make discovery of documents during the County Court proceeding. She said that, between commencing the proceeding and discovery being due, she became extremely ill with an autoimmune condition, and remained so for most of 2021. In that context, she did not start searching for discoverable documents until September 2021. Ms Wellington deposed that she was aware that she needed to identify all documents that could support or hinder her own case, or support or hinder Ms Metcalf's. She took personal responsibility for discovery, and could not envisage how else it would have been done.
2. Ms Wellington did not document the methodology she used to search for documents, but provided the following explanation of her recollection:

I knew all correspondence about this matter would be held in emails and attachments, which are stored sequentially in the Council's email system, rather than in any organised filing system. Councillors receive many emails daily - often 20-30 emails each day. There is one administrative assistant for eight councillors. She does not support individual councillors by managing filing systems.

The system has a data cap, and I am regularly prompted to delete emails to maintain space capacity. I may have deleted some relevant emails before I initiated this case, as part of my 'cleaning up' of the system.

I did not intentionally delete any emails about this matter after the proceedings were contemplated or initiated.

Apart from the need to maintain access to correspondence to enable me to properly present my case, I understood that I had an obligation to the Court from the time the proceedings were initiated to retain all relevant correspondence about the matter. I did that.

In accordance with my understanding of what was required, I searched for documents in my possession relevant to the issues raised in the case, either supporting or detrimental to my case, or supporting or detrimental to the Applicant's case.

1. As to the scope of discovery, Ms Wellington said that she assessed relevance in relation to the alleged imputations, Ms Metcalf's defences, and general damages. She understood that the question of whether permits were required was a relevant issue in the case, but did not believe that it was an issue whether use or development permits were required. She did not think she was required to discover all documents about that issue.
2. According to Ms Wellington, she believed that working with residents was a legitimate part of her role as a councillor, and the fact that she did was irrelevant to the case. She did not think she was required to discover any documents about that issue.
3. Ms Wellington understood she was required, considering the matters contained in the pleadings, to identify and produce any documents that could be interpreted as supporting allegations that she had (or had not) made things up, made false statements, provided false information to anyone, misled the Council, falsely represented or lied about anything related to the Metcalfs' planning application, attacked the Metcalfs personally, used ratepayers money for an improper purpose, sought to hinder the operation of fire emergency services, incited anyone to harass Ms Metcalf, engaged political supporters who were prepared to engage in violence, ignored Ms Metcalf's pleas for help about a related planning matter, cheated on her fuel claims, or engaged in corruption in relation to the Council.
4. Ms Wellington deposed that she was confident that she had searched via as many relevant terms as she could identify, although she did not keep a record and could not remember the specific search terms she used. She considered that the searches she conducted were reasonable, having regard to the nature and complexity of the proceeding, the number of documents involved, the ease and cost of retrieving a document, and the significance of any document to be found.
5. It does not appear from this account that Ms Wellington sought or obtained any advice from her lawyers about the scope of discovery, or the issues in the case. Nor does she appear to have consulted her lawyers about documents of doubtful relevance. Rather, she formed her own view about the issues and the documents relevant to those issues. In circumstances where Ms Wellington was firmly of the view that no documents existed that would tend to support the imputations on which she sued, she was not well-placed to make objective judgments about discoverability. She should have sought advice, and not relied only on her own assessments.
6. That said, the issues in the case were limited to those raised in the pleadings. Neither Ms Wellington nor her lawyers could reasonably be expected to have known the way in which Ms Metcalf intended to run her case, or to have anticipated the many collateral issues that emerged at trial. In her submissions in support of her fresh evidence application, Ms Metcalf identified a number of issues that emerged from the judge's reasons for decision, using labels such as 'Bias/taking sides/obsession', 'Assistance to Objectors', 'Pursuit of FOI/Objectors' FOI requests', 'Transparency', 'Home not under threat', and 'Conduct and motivations as a councillor'. No attempt was made to relate these labels to the parties' pleaded cases, or to explain how they should have been apparent from the pleadings.
7. An issue that assumed significance in this Court was a contention that Ms Wellington may have engaged in corruption in relation to the Council by providing confidential documents to objectors in contravention of s 77 of the Local Government Act 1989. The argument involved a high degree of speculation and, when queried, counsel for Ms Metcalf accepted there was not a proper basis to make the allegation on the material then available.[80] No version of Ms Metcalf's defence made the contention; the particulars provided of the alleged corruption said nothing about misuse of confidential information. Nor was the issue raised at trial, or even in Ms Metcalf's written submissions filed in support of her application for leave to appeal. Ms Wellington was not obliged to make discovery of documents in relation to a case that was not pleaded, but was made for the first time in oral argument before this Court.
8. Ms Wellington now accepts, through senior counsel, that she did not discover some documents that were relevant to collateral issues in the case. The relevance of these documents and their significance to the issues is discussed later in this judgment.
9. We are not satisfied that the failure to discover these documents was wilful or deliberate misconduct on Ms Wellington's part. To the contrary, the evidence is that she searched diligently for documents relevant to the issues in the case as she understood them, and discovered the documents she identified as relevant.
10. As already stated, Ms Wellington should have sought advice from her lawyers about the scope of discovery, and the collateral issues that were relevant to Ms Metcalf's pleaded case. It is regrettable that she did not. However, neither Ms Wellington nor her lawyers could have known how Ms Metcalf intended to run her case, or the collateral issues that would emerge at trial. The single request made on Ms Metcalf's behalf for further discovery received a timely and appropriate response.
11. In short, we are not persuaded that Ms Wellington deliberately omitted to discover relevant documents, although she did take an unduly narrow view of relevance. Her degree of culpability was low.

Any lack of diligence on the part of Ms Metcalf

1. As discussed, the adequacy of Ms Wellington's discovery was raised only once in correspondence between the parties' solicitors.[81] Ms Metcalf's solicitors did not respond to the invitation made in December 2021 to articulate a request for further specific discovery.
2. Ms Metcalf deposed that, by that time, she had already formed the view that Ms Wellington was unlikely to make proper discovery herself. Ms Metcalf did not explain the basis for that view, or give any reason why she did not instruct her solicitors to articulate requests for further specific discovery by Ms Wellington.
3. Instead, Ms Metcalf instructed her solicitors to subpoena a broad range of documents from the Council, including all documents, notes, emails and memoranda since 2016 associated with or in relation to any application for a permit or building approval for the Metcalfs' Freshwater Creek property. The Council produced documents in answer to this subpoena in three tranches in February and March 2022. There was some correspondence between Ms Metcalf's solicitors and the Council about whether the Council had complied with the subpoena.
4. Ms Metcalf observed that the documents produced by the Council included numerous documents that she considered Ms Wellington should have discovered. Aside from the questions put to Ms Wellington in cross-examination, no complaints were made during the proceeding about the adequacy of Ms Wellington's discovery. Ms Metcalf's solicitors did not convey any request for further specific discovery before the trial commenced in August 2022.
5. As mentioned, Ms Wellington was cross-examined about six or seven documents that were produced by the Council but not discovered by Ms Wellington.[82] However, nothing was made of her answers in closing submissions. In particular, no general submission was made that Ms Wellington was not a witness of credit because she had failed to discover relevant documents, or for any other reason.
6. After the trial, Ms Metcalf pursued her dissatisfaction with the Council's response to her subpoena with the Council, the Local Government Inspectorate, and IBAC. She made three FOI requests to the Council in June and July 2023. The third of those requests was for 'ALL Documents, materials, memorandum, councillor briefing notes that were not supplied by the Surf Coast Shire in response to the subpoenas'. Unsurprisingly, the Council responded that the documents sought did not exist, and that it had supplied all documents requested in the subpoena to the County Court in December 2021. Ms Metcalf complained to OVIC about this response, which resulted in the sensible suggestion that 'the most reasonable way to proceed would be for you to make a new freedom of information request to the Agency specifying the exact documents you believe were not located rather than to proceed with your complaint to OVIC'.
7. On 31 August 2023, Ms Metcalf made a further FOI request to Council for four categories of documents. She reformulated that request on 20 September 2023, with the assistance of her new solicitors, requesting the release of 19 categories of documents ('final FOI request'). The final FOI request was a lengthy document, which described each of the 19 categories of documents requested in detail and with precision.
8. By 15 December 2023, Ms Metcalf had received three tranches of documents released by the Council in response to her final FOI request. The documents included the 59 documents that Ms Metcalf now seeks to rely on as fresh evidence in support of her application for leave to appeal filed on 14 May 2024.
9. Ms Metcalf's final FOI request was a great deal more specific than the order for discovery made in the proceeding. It is not surprising that it resulted in the production of some additional documents. Ms Metcalf offered no explanation as to why she did not seek specific discovery from Ms Wellington of any of the categories of documents listed in her final FOI request to the Council.
10. Ms Metcalf's diligence in pursuing her dissatisfaction with the Council's production of documents in answer to her subpoena was not matched by her efforts to press Ms Wellington for discovery of documents that Ms Metcalf considered to be relevant to the proceeding. Those efforts were desultory - a single solicitor's letter, with no follow-up to the entirely appropriate response.[83] Only Ms Metcalf and her lawyers knew how they wanted to run her case at trial, and what collateral issues they intended to pursue in relation to Ms Wellington's credit, reputation, and other personal qualities. Yet they did not articulate during the proceeding further specific categories of documents that might have supported that case. Their unexplained failure to do so was less than diligent.

1. Ms Metcalf submitted that Ms Wellington's failure to make proper discovery amounted to litigation misconduct so egregious that Ms Wellington bore the onus of establishing that there was no realistic possibility of a different result. In addition, Ms Metcalf argued, Ms Wellington had not remedied her default to make available all of the documents that should have been discovered, in particular emails from her personal email account. As a result, like the liquidators in Clifton v Kerry J Investment Pty Ltd[84] ('Clifton'), Ms Wellington should have to satisfy the Court that there was 'no realistic possibility of there being documents which might be deployed by [Ms Metcalf] to meet [Ms Wellington's] claims'.[85] Ms Metcalf urged the Court not to take the chance that there were no further relevant documents for Ms Wellington to discover, tempting as that might be.
2. At the same time, Ms Metcalf did not contend that Clifton modified the principles in Commonwealth Bank of Australia v Quade[86] in any way. She accepted that those principles are to be applied to the particular circumstances of each case, including in assessing the possibility of a different result.
3. As the Full Court of the Federal Court recently observed in Roberts-Smith v Fairfax Publications Pty Limited (Reopening Application):[87]

The approach settled upon in Clifton was thus a solution to a very specific problem: there was a fundamental failure to comply with discovery obligations; the default had not been remedied (and its significance to the result thus could not be assessed); and it was the defaulting party that had brought the appeal. The Full Court in Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. [2021] FCAFC 77; 389 ALR 612; 159 IPR 58 at [385] (Katzmann, Beach and Markovic JJ) observed that what had been said in Clifton at [203] was 'not an exposition of general principle, but an application of existing principle'. In short, Clifton was not a case where the innocent party was seeking a new trial; rather, the defaulting party was seeking to overturn a result that had been reached despite its default and without having remedied that default.[88]

1. The default in this case is very different from that in Clifton. Ms Wellington has not fundamentally failed to comply with her discovery obligations. She made diligent searches, including of her personal emails, and discovered documents she considered to be relevant, albeit she took an unduly narrow view of relevance. As discussed, the issues that Ms Metcalf now considers to be critical were not readily identifiable from the pleadings, and Ms Metcalf did not press for broader or further specific discovery during the proceeding. While the latter fact does not gainsay the continuing obligation of disclosure that rested on Ms Wellington, and her breach of that obligation, the fact that the matter was not pressed by Ms Metcalf at trial is relevant to assessing the consequences of the default.
2. In addition, Ms Wellington filed two affidavits in response to the fresh evidence application, explaining the process by which she made discovery and her understanding of relevance, identifying which of the additional documents were in her possession, and providing unredacted copies of some of the additional documents. After the hearing of Ms Metcalf's applications, Ms Wellington filed a further affidavit exhibiting three emails to or from her personal email account, to clarify that the two documents she provided to objectors in August 2018 were not confidential documents.[89]
3. In those circumstances, it cannot be said that Ms Wellington mocked the discovery order of the County Court.[90] The correct approach is therefore to consider whether there is a realistic possibility that, had Ms Wellington taken a broader view of relevance and discovered the additional documents now relied on by Ms Metcalf, and perhaps other documents in relation to her communications with objectors, the result in the County Court proceeding would have been different.[91]
4. Before considering the additional documents, it is necessary to identify the issues to which they might have been relevant.
5. Ms Metcalf admitted publishing the Facebook posts that were the subject of the proceeding. The additional documents could have had no bearing on the question of whether the publications referred to Ms Wellington, or on the imputations conveyed by the publications, which were admitted to be defamatory.
6. The additional documents might have been relevant to the defence of truth.
7. However, they could have made no difference to the rejection of the various defences of qualified privilege. Those defences failed because:

(a) Ms Metcalf could not establish that the publications were made only to recipients with the necessary interest in receiving the information in them;[92]

(b) Ms Metcalf's conduct in publishing the Facebook posts was not reasonable;[93]

(c) the defence was 'unsustainable' in respect of the defence of qualified privilege for a publication in response to an attack, because:[94]

(i) Ms Wellington's questions about the Council process did not amount to an attack on Ms Metcalf;[95]

(ii) it was plain from the sequence of events that Ms Metcalf launched the social media attack, and was not responding to an attack made against her on social media;[96] and

(iii) there was no foundation for believing that Ms Wellington was the cause of the actions of community members by whom Ms Metcalf felt attacked;[97] and

(d) in respect of all of the qualified privileged defences, the judge found that Ms Metcalf was motivated by malice.[98]

1. For completeness, we do not accept the submission that, had additional documents been discovered, Ms Metcalf may have pleaded and established a defence of honest opinion. The submission was at odds with the sequence of events in the litigation. The defence of honest opinion was abandoned in June 2021, when Ms Metcalf filed her amended defence. Ms Wellington did not file her first affidavit of documents until September 2021. Whatever Ms Metcalf's reasons were for not pursuing the defence of honest opinion, they were unrelated to Ms Wellington's discovery of documents.
2. Finally, the additional documents might have been relevant to the assessment of damages.
3. Ms Metcalf sought to rely on 59 additional documents as fresh evidence, and Ms Wellington provided three further documents with her post-hearing affidavit. Ms Metcalf made detailed submissions as to the significance of six specific additional documents, together with the three further documents produced by Ms Wellington.

Email from Ms Wellington to Council officers dated 21 July 2018

1. The first was an email from Ms Wellington to two Council officers, Keith Baillie and Anne Howard, dated 21 July 2018, with the subject 'Impact of officer interpretation'. The email read:

Keith, you appeared surprised yesterday when I said that if the officers' interpretation is correct, a helicopter business (focusing on agriculture and emergency work, as many of them do and as is proposed here) could operate from any vacant site in the shire, regardless of land zone, type of helicopters, hours of operation, number of helicopters, frequency of movements, proximity to neighbours) without any planning controls at all.

I believe this conclusion is correct, and it deserves serious questioning.

Note in the current report coming to Council, officers say:

Additionally, it has been submitted that the helicopter landing site will be used in association with providing agricultural services such as aerial spraying, fertiliser spreading and seeding. in accordance with the exemption, the agriculture use may be on any land, not necessarily the same land as the helicopter landing site. As exempt activities they are not included in the permit application. The planning scheme does not specify any control over the intensity of these uses. No planning permission is required for the use, regardless of how many helicopters or the scale of operations proposed. There is no limit on the number of landing sites that could be established or the number of helicopters involved.

I reiterate that there would be no limits to proximity to neighbours' houses, or time of day or night the helicopters were in use.

This interpretation is not limited to land zoned farming. It applies to land of any zoning, including rural residential and residential. The consequences, if it is correct, are alarming. Any of us could have a massive helicopter business providing agricultural services operating 24/7 on our fence-line.

Surely, as a 'responsible authority', we need to be questioning whether that makes sense.[99]

1. In Ms Metcalf's submission, this email demonstrated that Ms Wellington believed that the officers' interpretation of the Planning Scheme was correct, contrary to her evidence at trial and the judge's findings that Ms Wellington genuinely held a different view to the Council officers. Ms Metcalf referred to the judge's finding that there is 'a world of difference between having opposing views about the operation of legislative provisions and telling lies', and submitted that the document demonstrated the truth of the imputation that Ms Wellington told lies about the Metcalfs' planning application.
2. The document does no such thing. On any fair reading, it says the opposite of the meaning attributed to it by Ms Metcalf. It is abundantly clear from the email that Ms Wellington strongly disagreed with the officers' interpretation of cl 52.15-1 of the Planning Scheme. The 'conclusion' that she believed to be correct was her conclusion about the implications of the officers' interpretation, which she spelled out in the email, and thought deserved serious questioning.

Responsible & Planning Authority Briefing Minutes dated 24 July 2018

1. The second document to which Ms Metcalf drew attention was the minutes of a briefing meeting with councillors that took place on 24 July 2018, before the Council meeting later that afternoon. In relation to the Metcalfs' planning application, the minutes recorded.

Planning Application 17/0370 - Use of the land for a Helicopter landing site - 420 Coombes Road, Freshwater Creek

Agreements / Actions:

1. Agenda Item - Council Meeting - 24 July 2018.

2. Officers provided important context as per presentation.

3. CEO advised an addendum to the Council Report and amended recommendation has been issued - provided to Councillors via email and on the portal. Addendum will be tabled at Council meeting to be appended to the Council Meeting minutes for this item.

4. General discussion held.

5. Officer assistance requested with wording of alternate motion.

6. Cr Heather Wellington advised she intends to not [participate] in the debate or vote on this item when Council considers the item this evening and will seek to make a statement as to the reasons at the meeting.

1. Ms Metcalf submitted that this document showed that Ms Wellington had attended and participated in a secret private Council meeting, which discussed whether or not the Council should seek a declaration from VCAT concerning the Metcalfs' planning application, and where Ms Wellington positively advocated to seek such a declaration. The argument was that this demonstrated that Ms Wellington's voluntary withdrawal from debating and voting on the planning application at the public Council meeting was dishonest and disingenuous, and at odds with her public presentation as 'a paragon of open and transparent decision making'.
2. While Ms Wellington accepted that the document was relevant, she could not locate it in the search she undertook in 2024. Assuming in Ms Metcalf's favour that the document was in Ms Wellington's possession when she made discovery in 2021 and 2022, and hence was discoverable, there is no realistic possibility that it could have made any difference to the judge's findings.
3. The judge found that, on 22 July 2018, Ms Wellington prepared an analysis of the permit application, which she distributed to the other councillors. In the document, Ms Wellington recommended applying to VCAT for various declarations, including about the scope of the exemption in cl 52.15 of the Planning Scheme, and explained her concerns, questions, and recommendations.[100] Further, the judge found, the declarations sought from VCAT were Ms Wellington's idea.[101]
4. Ms Wellington said the meeting was not 'secret', but rather a routine assembly of councillors in which the administration provided information and answered questions about matters to be considered at the forthcoming Council meeting, and which did not include debate or decision-making. The minutes are consistent with that description, recording the provision of information but no debate or decisions in relation to the planning application.
5. However one characterises the councillors' briefing, there was no secret about Ms Wellington's support for seeking declarations from VCAT, because she wrote to the other councillors urging that course. Her analysis of 22 July 2018 was discovered, along with the covering email she sent to councillors and Council officers two days ahead of the Council meeting. The analysis is a detailed, closely argued document that sets out Ms Wellington's concerns about the Metcalfs' planning application, the reasons for those concerns, and her recommendations. Anyone who read it would have been in no doubt about Ms Wellington's views and may have been persuaded to share them. Ms Wellington outlined her views again at the public Council meeting on 24 July 2018, in the course of explaining why she was about to withdraw from the meeting.
6. The judge rejected the submission that all the councillors would 'blindly follow' a motion advocated for by Ms Wellington.[102] In oral argument, it was suggested that discovery of the briefing minutes could have made a difference to that finding, on the basis that some additional advocacy from Ms Wellington during the councillors' briefing was the 'missing link'.
7. This argument was fanciful and must be rejected. To begin with, no advocacy by Ms Wellington - or any debate at all - is recorded in the briefing minutes. More significantly, the argument assumes that the other councillors did not have minds of their own but were willing to be led blindly by Ms Wellington. That assumption was without foundation. As the judge found, a number of other councillors spoke on the motion that the Council seek declarations from VCAT, voicing concerns similar to those of Ms Wellington, and ultimately all councillors voted in favour of the motion.[103]

Email from Ms Wellington to Ann Bullen dated 2 August 2018 10:37 pm

1. The third document was an email sent by Ms Wellington to Ann Bullen, one of the objectors, on 2 August 2018. The email read:

Hi Ann, thanks for asking, I appreciate it. I am actually having a lovely week catching up on work, without the intrusion of constant telephone calls. Its warm and I am getting adequate sleep for a change, so I feel almost human already! I am very available to help your group if you need anything.

You are welcome to use or circulate the two documents in any way you like. Thanks for asking. David would have already received the 22/7 document, but I suspect will not have taken the time to read it.

I don't know what David's current view is, but if he felt that what had happened was an abuse of the planning scheme, he could have supported my position, which he did not in any way. Clive Goldsworthy was the one who came in to back me, and then the others fell in behind me at the very last minute to get the matter referred to VCAT for determination.

I am sorry you are having so much trouble getting the community to support you. It is difficult for people to manage such unexpected expenses. The worst case scenario is that you will have to argue your position yourselves. I think as a group you are well placed to do that, and it won't be a disaster. VCAT is very accommodating of lay witnesses and you have a great base of understanding now.

I would definitely lodge the s.149B application. If you would like me to assist with wording it, I am happy to. I presume you want a declaration that the development required a planning permit? I'll do some research on wording.

Let me know if that would help.

Best wishes, Heather

1. Ms Wellington accepted that the email was relevant. She located it in her further searches and provided an unredacted copy of the email.
2. Ms Metcalf made a number of submissions based on this document.
3. First, she submitted that the email showed that Ms Wellington was privately liaising with objectors regarding the Metcalfs' planning application, and that she was privately taking credit with objectors for persuading the Council to refer it to VCAT.
4. This submission went nowhere, because neither of these matters was in dispute. The judge found that Ms Wellington was in contact with and providing assistance to objectors from soon after the April 2018 Council meeting,[104] and that she told the July 2018 Council meeting that she would not participate in the decision because she had taken a step 'beyond representing residents and responding to them'.[105] In addition, as just discussed, the judge found that it was Ms Wellington's idea to seek declarations from VCAT, having recommended that course to the other councillors before she withdrew from decision-making on the application.[106]
5. In oral argument, Ms Metcalf submitted that the email raised the possibility that the two documents referred to were confidential information provided by Ms Wellington to objectors in breach of s 77 of the Local Government Act 1989. After considerable speculation about what documents were in fact provided, Ms Wellington sought and was granted leave to file an affidavit identifying and exhibiting them.
6. After the hearing, Ms Wellington filed an affidavit exhibiting the email to which she replied at 10:37 pm on 2 August 2018, and two emails dated 1 August 2018 from Ms Wellington to another objector, Norm Adams. The emails to Mr Adams attached two documents that Ms Wellington said he was welcome to use if they were helpful. Both were documents written by Ms Wellington: the first was an edited version of her 22 July 2018 analysis document; the second was a written statement setting out her reasons for not participating in the vote on the Metcalfs' planning application. Ms Wellington denied that either document contained confidential information.
7. The edited analysis document provided by Ms Wellington to Mr Adams on 1 August 2018 did not include the direct reference to, and quotes from, the Metcalf submission that were included in the original analysis document sent to councillors on 22 July 2018. However, it did include an indirect reference to the Metcalf submission in the second recommendation, which was:

That Council seeks a declaration from VCAT under s.149A of the Planning and Environment Act 1987 (Vic) that a development permit is required for the helicopter landing site, because:

1. there is clear evidence that the landowner's intention, pre-development, was always to build a 'hangar shed' and 'utilise this site to park helicopters specifically purchased for utility work'; and
2. the relevant building and works are clearly designed, constructed and operating to support that purpose.

1. Ms Metcalf submitted that the 'clear evidence' referred to in paragraph (a) of the recommendation was the Metcalf submission, and that the words in quotation marks are direct quotes from that document. According to Ms Metcalf, the Metcalf submission was 'confidential information' for the purposes of s 77 of the Local Government Act 1989, and Ms Wellington knew that to be the case on 1 August 2018. In Ms Metcalf's submission, if the documents exhibited to Ms Wellington's post-hearing affidavit had been discovered, there would have been a realistic possibility that Ms Metcalf could have justified the imputation of corruption, as defined in the IBAC Act, as well as undermining intermediate findings as to Ms Wellington's credit and reasonableness and the damages award.
2. This submission drew a very long bow indeed. It cannot be accepted, for several reasons.
3. First, as already discussed, disclosure of confidential information in breach of s 77 of the Local Government Act 1989 was not pleaded as a particular of the defence of truth to the imputation of corruption.
4. Second, Ms Metcalf alleged that Ms Wellington had engaged in 'corrupt conduct' as defined in s 4(1) of the IBAC Act. An essential component of that definition is that the conduct would constitute a relevant offence.[107] A 'relevant offence' is defined in s 3 of the IBAC Act as, relevantly, an indictable offence against an Act.[108] Section 77 of the Local Government Act 1989 did not create an indictable offence; the maximum penalty of 120 penalty units categorised it as a summary offence.[109]
5. Third, information was 'confidential information' for the purposes of s 77 of the Local Government Act 1989 if:

(a) the information was provided to the Council or a special committee in relation to a matter considered by the Council or special committee at a meeting closed to members of the public and the Council or special committee has not passed a resolution that the information is not confidential; or

(b) the information has been designated as confidential information by a resolution of the Council or a special committee which specifies the relevant ground or grounds applying under section 89(2) and the Council or special committee has not passed a resolution that the information is not confidential; or

(c) the information has been designated in writing as confidential information by the Chief Executive Officer specifying the relevant ground or grounds applying under section 89(2) and the Council has not passed a resolution that the information is not confidential.[110]

1. The Metcalf submission was provided to councillors ahead of the Council meeting on 24 April 2018. The meeting was not closed to members of the public. To the contrary, the minutes of the meeting record that the information was not classified as confidential in accordance with s 77(2)(c) of the Local Government Act 1989. There was therefore no basis to submit that the Metcalf submission was 'confidential information' for the purposes of s 77 of the Local Government Act 1989.
2. Fourth, on 21 June 2019, Ms Metcalf complained to the Local Government Inspectorate that Ms Wellington had disclosed confidential information, being the Metcalf submission, to objectors at the April 2018 Council meeting, in breach of s 77 of the Local Government Act 1989. The Local Government Inspectorate dismissed the complaint on 3 July 2019, noting that none of the information used by Ms Wellington was designated confidential in accordance with the Local Government Act 1989.[111]
3. Fifth, although the Council and the Metcalfs resisted disclosure of the Metcalf submission in response to Ms Wellington's FOI request, VCAT determined that the document was not exempt from release. VCAT was not satisfied that the Metcalf submission was communicated to the Council in confidence, holding:

In relation to confidentiality, the conclusion which naturally arises from the evidence is that at the time the document was sent, Mr Metcalf's overriding concern was to convey the arguments it contained in support of his planning permit application, which was to be considered by the Council in two or three hours' time. It is understandable that after the event, he would not wish the document to be publicly available. But all the indications from the contents of the document, and from the circumstances in which it was sent (and utilised in the meeting - as noted, Ms Wellington asked a question arising from it) point towards Mr Metcalf's overriding concern being to obtain the grant of the permit. To the extent that this might entail that the matters in the Disputed Document were made public, the evidence indicates that was a secondary concern at the time.

In my view, the fact that this document was produced during the planning process, indeed, at what was then seen as a pivotal moment in the determination of a planning permit application, strongly militates against it having confidential status. The general principles which I referred to in the decision of Roy Costa Planning & Development v Mildura CC[112] are applicable here: The planning regime in Victoria is one which involves a very high degree of public involvement. This is because planning decisions affect the amenity of neighbouring land and the public realm, and the community as a whole has a significant direct interest in the detail, the process and the outcome. Planning decisions frequently confer very valuable property rights, and the mischief which could flow from a lack of accountability is obvious.[113]

1. In light of those matters, there is no prospect at all that discovery of the additional documents could have made any difference to the outcome. They do not support an imputation of corruption, and nor do they cast doubt on the judge's findings that Ms Wellington was an impressive witness who enjoyed a reputation as a person of integrity.

Email from Ms Wellington to Ann Bullen dated 2 August 2018 11:50 pm

1. The fourth document that Ms Metcalf drew particular attention to was a second email from Ms Wellington to Ann Bullen, sent at 11:50 pm on 2 August 2018. The email said:

Anne, below (under ORDER) is the wording of the order that we got on the McAdam Park matter, where some of the issues were similar. Please note that I am not a planning lawyer and I cannot give, and am not giving you, legal advice. I am simply supporting you as your councillor. However, on the basis of the McAdam Park order, if you decide to apply for a declaration, it might be reasonable to try something like:

I apply for a declaration pursuant to s.149B of the Planning and Environment Act 1987 that a planning permit was required at the time of construction for the buildings and works comprising the hangar and concrete apron marked as such on the accompanying map/photograph (you would need to clearly delineate the infrastructure in some way so it is clear to all parties what you are talking about). To the extent that no permit has been sought or obtained for those buildings and works, the buildings and works are unlawful under clause 52.15-1 of the Surf Coast Planning Scheme.

This is just a suggestion. I have no idea how you get this heard concurrently, but why not just ask VCAT? Perhaps a letter could convey that you are a private individual, you don't understand VCAT procedures, you think the development should have had a planning permit, you want to apply for a declaration as per the attached form, and is it possible for the matter to be heard concurrently with the already commenced proceedings?

I imagine that if VCAT finds that the development required a permit, it would also consider whether a retrospective permit should be issued and wrap the proceedings up in one go, rather than everyone needing to go back to argue the toss about that permit - but that is just a guess. VCAT did not do that with McAdam Park - the planning permit issue was decided through a separate proceeding - but it was a much more complex consideration as to whether permits should issue (in the end, permits were refused and that is why the track finally closed).

I think VCAT has some people who support unrepresented applicants - not sure, but it would be worthwhile asking.

Are you intending to run this past Shelley before you act? I think that would be appropriate - just a question to her as to what the risks are and how you should approach it.

...

Regards, Heather[114]

1. Ms Metcalf submitted that this email, in combination with the earlier email sent on 2 August 2018, contradicted Ms Wellington's evidence that she had 'no idea' who the objectors at VCAT were and had no involvement 'at all' in the VCAT proceeding. Rather, Ms Metcalf argued, these undiscovered documents showed that Ms Wellington actively assisted the objectors in a way beyond the role of councillor, by encouraging and assisting them to apply to VCAT, and continued to involve herself in the issue of whether documents ought to be released to the objectors under the Council's FOI processes.
2. This submission was not made in relation to any specific issue in the proceeding. The documents could only have reinforced the judge's findings that Ms Wellington was in contact with and providing assistance to objectors, and that she felt strongly that the Council was improperly withholding documents from the public and sought release of those documents under FOI. There was already ample evidence of those matters, which were not seriously in controversy.
3. We see no contradiction between the email and the answers given by Ms Wellington during the following part of her cross-examination:

You're aware that the VCAT hearing started in around September 2018?---I'm aware there was a VCAT hearing, I don't know the date.

And objectors appeared. They had representation at that hearing?---Ah, I don't know, to be - I don't know. I'd have to look at that again.

The objectors incorporated a group; you recall that?---I never knew whether they incorporated or not. I don't know - I mean, I've - if that's what it says then it would be correct but I don't know whether they did or not.

The Freshwater Creek and Bellbrae Community Group Incorporated?---Right.

Does that ring a bell?---No. No it doesn't. I don't know whether - I don't know whether that was formed for this purpose or - - -

Do you know who the objectors were?---Um, I know - I know - well, I would know looking back on their documents, there was 48 of them and some - I know some - - -

Do you know who the objectors were at the VCAT proceeding that actually made submissions?---Not without looking at the document, no, I don't.

You would have no idea who the objectors were - - -?---No.

- - - at that hearing?---I don't.

You're aware that judgment was given in that proceeding - - -?---Yes.

- - - on 26 November 2018?---I'm not sure of the date but I'm aware that judgment was given.

... did you speak to any of the objectors about how the VCAT proceeding was going?---How the VCAT proceeding was?

Was going?---Was going?

Yes?---No, I don't think so.

You don't think so it's possible you did?---No, I - well - not to my recollection, no. I don't recall having any involvement in the VCAT proceedings at all - or knowledge of them. I mean, I knew they were happening but they weren't - I don't recall discussing - - -

You knew they were happening?---Well - - -

Who told you that?---Um, because Mr Metcalf had already applied to VCAT for a review of the decision before the July council meeting, so that's how I knew they were happening and other than - - -

Are you saying that you took zero interest in that proceeding whatsoever?---Well, I wasn't going to go - go and sit in VCAT. It was - I wasn't making a decision about it. So I didn't follow it because at that point the decision of council had been made and I had no further role.

You're saying you didn't speak to any of the objectors about that proceeding?--- Well, not that I can recall but it's possible - - -

So you might have?---Well, I can't - I don't know. I - I don't know but as far as I know I didn't speak to anybody.

1. It was unclear how the email sent on 2 August 2018 was said to contradict these answers about a VCAT hearing that took place in September 2018, which Ms Wellington did not participate in or attend. Ms Wellington's answers were appropriately qualified, by reference to what she knew and what she remembered. There is no real possibility that discovery of the email might have provided Ms Metcalf with some basis to attack Ms Wellington's credit - bearing in mind that Ms Metcalf did not submit at trial that Ms Wellington was an unreliable or untruthful witness.

Email from Ms Wellington to councillors dated 24 April 2018

1. The fifth document highlighted by Ms Metcalf was an email sent by Ms Wellington at 1:42 pm on 24 April 2018 to (presumably) a Council officer, copied to the other councillors. The email read:

I am interested in the agriculture exemption.

I imagine there would be no prohibition on using a helicopter located on land to aerial spray crops on that land.

• would aerial spraying be permitted in an area in which there is such high density living?

• what are the planning controls around a spraying business that was located on the land and made itself available to other farmers for spraying their crops. Would a planning permit be required for that?

I am also interested in the planning conditions that apply to the house/shed that has been developed on the land. Was a permit issued? Was a permit required? Does the house have an occupancy permit?

Thanks. Heather

1. Ms Metcalf submitted that this undiscovered email was contrary to the judge's findings that 'there was never a question the Metcalfs required any permit, other than a building permit, to build a house' and Ms Metcalf was the only person who considered Ms Wellington's comments at the April 2018 Council meeting revolved around the Metcalfs' house.[115] According to Ms Metcalf, the email showed that this was on Ms Wellington's and the other councillors' minds.
2. Again, this submission was not made in relation to any specific issue in the proceeding, and it is unclear how it was said that the email might have changed the outcome.
3. The email adds nothing of substance to the judge's detailed findings about the events leading up to and at the April 2018 Council meeting.[116] The last paragraph of the email asked legitimate questions about the planning conditions for the 'house/shed' that had been developed on the Metcalfs' land, and whether the house had an occupancy permit. The answers to those questions were, as the judge found, that the Metcalfs' house was lawfully on the site. The relevant Council officer made this crystal clear at the meeting, and it was not queried by Ms Wellington.[117]
4. We cannot see any possibility that discovery of this document could have changed those findings. It certainly does not support a conclusion that the Metcalfs' home was under threat.

1. Ms Metcalf did not make detailed submissions about the significance of the other additional documents and how they might have affected the judge's determination of the issues in the proceeding. A number of the additional documents do not appear to be relevant to any issue, either directly or collaterally. The apparently irrelevant documents include emails between Council officers and Ms Wellington and other councillors about an FOI application lodged by an objector, another series of emails about legal advice sought by the Council on the permit application, emails about the wording of the resolution adopted at the July 2018 Council meeting, and an unrelated VCAT decision.
2. We have read all of the additional documents identified by Ms Metcalf, and have considered them separately and in combination. We are not remotely persuaded that there is a realistic possibility that the outcome of the proceeding would have been different if Ms Wellington had discovered them. Ms Metcalf was unable to establish the truth of the seriously defamatory imputations conveyed in the nine posts she published on her Facebook page. The additional documents do not support the defence of truth, and do not undermine Ms Wellington's reputation or the other matters that were relevant to the judge's assessment of damages.

1. There being no real possibility that discovery of the additional documents would have produced an opposite result, it is 'almost inevitable' that the question whether to set aside the judgment and order a new trial will be answered in the negative.[118]
2. This is not one of the rare cases where 'what has occurred is so antithetical to the proper administration of justice that the result cannot be allowed to stand', although there was no likely effect on the result.[119] Ms Wellington did not discover some documents that were relevant, because she took an unduly narrow view of relevance and did not seek advice about the scope of discovery. While it was Ms Wellington's obligation to make full discovery of documents within the scope of the discovery order, the pleadings were the only insight she had into how Ms Metcalf intended to run her case. She could not reasonably have anticipated the collateral issues Ms Metcalf was likely to raise at trial. Ms Metcalf did not articulate any request for further specific discovery during the proceeding, in contrast to her detailed and specific final FOI request made to the Council in September 2023.
3. It is clear from those considerations alone that it would not best serve the interests of justice to give leave to Ms Metcalf to rely on fresh evidence with a view to relitigating the proceeding. That conclusion is reinforced by the public interest in finality in litigation, and the Court's obligation to further the overarching purpose of the Civil Procedure Act, to facilitate the just, efficient, timely, and cost-effective resolution of the real issues in dispute in the proceeding.[120] Even aside from the objects of efficient use of judicial and administrative resources and the timely determination of the proceeding, reopening the proceeding, more than three years after judgment was given, would be out of all proportion to the importance of the issues and the amount in dispute.[121]

1. It remains to determine whether it is in the interests of justice to grant Ms Metcalf's application for an extension of time to file her application for leave to appeal. As mentioned, the relevant considerations include the length of the delay, the reasons for the delay, any prejudice that might be suffered by the respondent, and whether the proposed appeal has a real prospect of success.[122]
2. The length of the delay was about 15 months. Under r 64.05(1)(a) of the Supreme Court (General Civil Procedure) Rules 2015,[123] the application for leave to appeal had to be filed 42 days after the decision to which it related. The time for filing an application for leave to appeal from the judge's substantive orders ended on 17 January 2023 and from the costs orders on 9 February 2023. The application for leave to appeal was filed on 14 May 2024.
3. After judgment was delivered on 21 November 2022, Ms Metcalf pursued a complaint about Ms Wellington's conduct with the Local Government Inspectorate and IBAC. Ms Metcalf did not explain the relationship, if any, between this complaint and her concerns about production of documents during the proceeding. It was not until June 2023, when the Local Government Inspectorate advised it would take no further action in relation to the complaint, that Ms Metcalf made her first FOI request of the Council. Her initial requests were poorly formulated and unlikely to elicit the production of any documents relevant to the proceeding.
4. It was not until July 2023 that Ms Metcalf engaged her current solicitors to assist her to consider her available options arising from the proceeding and the judgment.
5. On 11 September 2023, OVIC sensibly suggested that Ms Metcalf make a new FOI request specifying the exact documents she believed had not been produced. The delay between September and December 2023 was explained by the time it took for Ms Metcalf to formulate her final FOI request to the Council, and for the Council to produce documents in response to that request.
6. The final tranche of documents was produced by the Council on 15 December 2023. The five-month period between that date and the filing of Ms Metcalf's application for leave to appeal was unexplained.
7. Ms Metcalf prefaced her explanation of the delay by saying that she was 'shattered' by the judgment and 'fell into a heap', and that this affected her capacity to take steps over the coming months. She did not provide any medical evidence that her stress and distress was different or more extreme than that experienced by many unsuccessful litigants, all of whom face the same appeal period. On Ms Metcalf's account, despite her distress, she was able to take a number of steps to pursue her grievance with the Council's response to her subpoena.
8. We do not consider that Ms Metcalf has satisfactorily explained the period of her delay in applying for leave to appeal. Her distress on receiving the judgment and the time taken to obtain and consider the additional documents explain no more than six months of the delay.
9. Ms Wellington would clearly be prejudiced if time were extended. Having successfully vindicated her reputation in the proceeding, and been awarded damages that include a component of aggravated damages for the way Ms Metcalf defended the proceeding, Ms Wellington would face the prospect of the judgment being set aside some years after the event and the proceeding being retried.
10. Most significantly, Ms Metcalf has not shown that her proposed appeal has a real prospect of success. For the reasons given, there is no realistic possibility that discovery of the additional documents would have changed the outcome of the proceeding.
11. Having regard to all of those matters, we do not consider it would be in the interests of justice to extend time for Ms Metcalf to file an application for leave to appeal.

1. Ms Metcalf's applications for an extension of time to file an application for leave to appeal and for leave to rely on fresh evidence will be dismissed.

[1] Metcalf v Surf Coast SC [2018] VCAT 1863; Wellington v Metcalf [2022] VCC 1759, [215]-[222] (Judge Clayton) ('Reasons').

[2] Taylor Garwood Designs was a design consultancy firm engaged by the Metcalfs in about March 2016 to start work on their plans for the Freshwater Creek property: Reasons, [8].

[3] Reasons, [224]-[228]; Wellington v Surf Coast Shire (Review and Regulation) [2019] VCAT 1811.

[4] Metcalf v Wellington [2024] VSCA 147. Subsequently, a subpoena and a notice to produce documents filed by Ms Metcalf were set aside: Metcalf v Wellington (No 2) [2024] VSCA 202.

[8] Reasons, [275]-[276], [321(a)].

[9] Reasons, [275]-[276], [321(b)].

[10] Reasons, [275]-[279], [321(c)].

[11] Reasons, [275], [280], [321(d)].

[12] Reasons, [275], [281]-[286], [321(e)].

[13] Reasons, [287]-[289], [321(f)].

[14] Reasons, [290]-[295], [321(g)].

[15] Reasons, [290], [296]-[301], [321(h)].

[16] Reasons, [310]-[311], [321(i)].

[17] Reasons, [313]-[314], [321(j)].

[18] Reasons, [313]-[314], [321(k)].

[19] Reasons, [313]-[314], [321(l)].

[20] Reasons, [315]-[320], [321(m)].

[33] See [7] above.

[34] Reasons, [353], see also [223]-[232].

[47] Reasons, [414]-[417] (footnotes omitted).

[51] Reasons, [456]-[461], [464]-[469], [471]-[477].

[61] Reasons, [256], [259], [261], [262].

[69] Reasons, [597], [600]-[601].

[71] Reasons, [607] (citations omitted).

[73] Pursuant to rr 64.13(2) and 64.36(3) of the Supreme Court (General Civil Procedure) Rules 2015 and, from 8 September 2025, the Supreme Court (General Civil Procedure) Rules 2025 ('Rules').

[74] Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, 139-40 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ); [1991] HCA 61 ('Quade'); Clark v Stingel [2007] VSCA 292, [25] (Warren CJ, Chernov and Kellam JJA); Roberts-Smith v Fairfax Publications Pty Limited (Reopening Application) [2025] FCAFC 66; (2025) 310 FCR 141, [34] (Perram, Katzmann and Kennett JJ); [2025] FCAFC 66 ('Roberts-Smith').

[75] Quade (1991) 178 CLR 134, 140-1 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ); [1991] HCA 61.

[76] Quade (1991) 178 CLR 134, 142-3 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ); [1991] HCA 61; Roberts-Smith [2025] FCAFC 66; (2025) 310 FCR 141, [44] (Perram, Katzmann and Kennett JJ); [2025] FCAFC 66; Civil Procedure Act 2010, ss 7, 8(1), 9(1).

[77] Quade (1991) 178 CLR 134, 142-3 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ); [1991] HCA 61.

[78] Jackamarra v Krakouer (1998) 195 CLR 516, 519-21 [3]-[7] (Brennan CJ and McHugh J); [1998] HCA 27; Muto v Secretary to the Department of Planning and Community Development [2013] VSCA 85; (2013) 38 VR 293, [13] (Nettle AP and Neave JA); [2013] VSCA 85; Song v Commissioner of the AFP [2019] VSCA 206, [20] (Kaye JA).

[79] The imputations at [18(a)], [18(b)] and [18(c)] above.

[80] Legal Profession Uniform Conduct (Barristers) Rules 2015, r 61(a).

[81] See [57]-[58] above.

[82] See [64] above.

[83] See [57]-[58] above.

[84] (2020) 379 ALR 593; [2020] FCAFC 5.

[85] Clifton [2020] FCAFC 5; (2020) 379 ALR 593, 648 [203] (Besanko, Markovic and Banks-Smith JJ); [2020] FCAFC 5.

[86] (1991) 178 CLR 134; [1991] HCA 61.

[87] (2025) 310 FCR 141; [2025] FCAFC 66.

[88] Roberts-Smith [2025] FCAFC 66; (2025) 310 FCR 141, [48] (Perram, Katzmann and Kennett JJ); [2025] FCAFC 66.

[89] The Court granted leave to file the further affidavit at the hearing on 11 November 2025.

[90] Cf Quade (1991) 178 CLR 134, 143 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ); [1991] HCA 61.

[91] Roberts-Smith [2025] FCAFC 66; (2025) 310 FCR 141, [49] (Perram, Katzmann and Kennett JJ); [2025] FCAFC 66.

[92] Reasons, [448]-[453] (statutory qualified privilege); [536]-[540] (ordinary common law qualified privilege).

[93] Reasons, [453]-[492] (statutory qualified privilege); [490]-[492] (common law qualified privilege - government and political matters); see [34] above.

[104] Reasons, [136]-[145], [148]-[157].

[106] See [109]-[111] above.

[109] Sentencing Act 1991, ss 109, 111, 112. An offence with a maximum fine of 120 penalty units is a Level 8 offence, and is, unless the contrary intention appears, a summary offence.

[110] Local Government Act 1989, Version No 147 as at 30 May 2018, s 77(2).

[112] [2014] VCAT 1360, [25]-[40], and especially [28] and [37].

[113] Wellington v Surf Coast Shire (Review and Regulation) [2019] VCAT 1811, [96]-[97] (Senior Member Smithers). The Council apparently did not contend that the document was exempt under s 38 of the Freedom of Information Act 1982, on the basis that disclosure of the document was prohibited by s 77 of the Local Government Act 1989.

[115] Referring to Reasons, [115]-[116].

[118] Quade (1991) 178 CLR 134, 143 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ); [1991] HCA 61.

[119] Roberts-Smith [2025] FCAFC 66; (2025) 310 FCR 141, [46] (Perram, Katzmann and Kennett JJ); [2025] FCAFC 66.

[120] Civil Procedure Act 2010, ss 7(1), 9(1).

[121] Civil Procedure Act 2010, s 9(1)(d), (f), (g).

[122] See [51] above.

[123] The Supreme Court (General Civil Procedure) Rules 2025 came into effect on 8 September 2025, after the application for leave to appeal in this proceeding was filed.