SHALOUB v BUCHANAN

Supreme Court of NSW|2002-11-07|Before: Levine J, Simpson J

CITATION : SHALOUB v BUCHANAN [2003] NSWSC 681 HEARING DATE(S) : 7 November 2002 JUDGMENT DATE : 30 July 2003

JUDGMENT OF : Levine J DECISION : I decline to order a separate trial pursuant to SCR Pt 31 r 2. ; The defendant's notice of motion is dismissed with costs. I place the matter in the Registrar's Defamation Directions List on 22 August 2003

CATCHWORDS : Defamation - slander - refusal of SCR Pr 31 r 2 application in respect of "immmunity" defence under s583 Local Government Act 1919 LEGISLATION CITED : s583 Local Government Act 1919 Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105 Hudson v Vanderheld (1968) 118 CLR 171 CASES CITED : Little v The Commonwealth (1947) 75 CLR 94 Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112 McCarron v Boree Shire Council [1971] 1 NSWLR 638 NEVILLE JOHN SHALOUB (Plaintiff)

JOHN BUCHANAN (Defendant) FILE NUMBER(S) : SC 19213 OF 1993 T Hale SC / E White (Plaintiff) COUNSEL : JS Wheelhouse (Defendant) Ormsby Flower (Plaintiff) SOLICITORS : Harrington Maguire & O'Brien (Defendant)

[2003] NSWSC 681 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

JUDGMENT (Defamation - slander - refusal of SCR Pr 31 r 2 application in respect of "immmunity" defence under s583 Local Government Act 1919) 1 The present structure of this extraordinarily old piece of litigation, in terms of the plaintiff's claim, is constituted by a third further amended statement of claim filed on 29 July 2002 pursuant to leave granted by Simpson J on 8 July 2002. 2 The "assumed" factual background appears, from the pleading, to be that the defendant was at all material times an Alderman of Randwick City Council and, from September 1991 to September 1992, Mayor. This the defendant admits. 3 The plaintiff in January 1990 sought approval from the Council for the construction of a residential building of six floors on certain land owned by him within the City of Randwick. The Council treated the plaintiff's letter making that application as an application for rezoning. The plaintiff paid the prescribed fee in respect of a rezoning application. On 20 February 1990 at a meeting of the Council, the Council resolved to adopt the recommendations of the relevant Planning Committee that a local environmental plan in accordance with the relevant legislation be prepared in respect of the plaintiff's land subject to a six-level height restriction. 4 Within that assumed context the plaintiff (in paragraph 7 of the third further amended statement of claim) contends that on 20 February 1990 at the Council premises at Francis Street, Randwick, at a meting of the Council and during discussion and consideration of the rezoning application, the defendant, to "Alderman, Officers of the Council and diverse members of the public" (sic) said: "Mr Shaloub has not paid the money for the application and his hospital has been illegally built. Mr Shaloub is a powerful man in the Liberal party and has tried to use his influence to build his high rise. He will get over $1 million for this. I wouldn't be able to put an application for a high rise building".

5 The plaintiff contends that the oral publication carried the following imputations defamatory of him: 9(a) that the plaintiff was the proprietor of a hospital which he knew had been illegally built. (c) that the plaintiff had behaved improperly in that he had sought to obtain a substantial personal profit by exerting his political power. 6 By his defence filed on 9 October 2002, inter alia, the defendant denies publication (paragraph 7) and relevantly raises in paragraph 12 the following: 12 Further, in answer to the whole of the allegations made in the Third Further Amended Statement of Claim, the Defendant says that, if it is found that the Defendant published the matter complained of (which is denied) the publication was a matter or thing done by the Defendant in good faith, in his capacity as a councillor of Randwick City Council for the purpose of executing his duties under the Local Government Act 1919, for Randwick City Council, and, accordingly, by reason of s583 of the Local Government Act 1919, the Defendant is not liable to any action, liability, claim or demand because of the said publication. 7 The application presently under consideration is that made by way of notice of motion filed on 25 October 2002. The defendant seeks an order pursuant to SCR Pt 31 r 2 that there be a separate trial of the question of whether or not, by reason of the defence pleaded in paragraph 12 set out above, the defendant is entitled to judgment in these proceedings. 8 It is useful at this point to set out the terms of s583 of the Local Government Act 1919: s583 Any matter or thing done and any contract entered into by the council and any matter or thing done by any member or servant of the council or by any person acting under the direction of the council shall not if the matter or thing was done or the contract was entered into bona fide in pursuance of and for the purpose of executing this Act and for and on behalf of the council subject them or any of them personally to any action liability claim or demand.

9 That section has been repealed. S731 of the Local Government Act 1993 states: s731 A matter or thing done by the Minister, the Director-General, a council, a councillor, a member of a committee of the council or an employee of the council or any person acting under the direction of the Minister, the Director-General, the council or a committee of the council does not, if the matter or thing was done in good faith for the purpose of executing this or any other Act, and for and on behalf of the Minister, the Director-General, the council or a committee of the council, subject a councillor, a member, an employee or a person so acting personally to any action, liability, claim or demand. 10 Assuming, for the moment, the availability of SCR Pr 31 r 2, the defendant's position is that s583 is remedial legislation enacted to provide protection for persons in public office when acting in discharge of that office. Support for the proposition that such a section should be read "liberally" is said to be found in the judgment of Dixon J in Little v The Commonwealth (1947) 75 CLR 94 at 108. A statement by an Alderman during a debate upon an application under consideration by the Council falls within the section and as such has the protection against liability as provided by s583. In other words, the tort of defamation constituted by slander of an applicant committed by a councillor during a debate on the application is not actionable at the hands of the victim, is the nub of the defendant's position. 11 Whether the words spoken by the defendant can amount to a matter or thing done by him for the purposes of executing the Act falls to be considered against the principles that have been established in many cases. In Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105, for example, it is of importance to note the statement of Kitto J at 116 in the context of "liberal" interpretation, "[the] presumption therefore arises that the legislature, in enacting it, has chosen its words with complete precision, not intending that such immunity, granted in the general interest but at the cost if individuals, should be carried further than a jealous interpretation will allow".

The principles have further been collected and applied in McCarron v Boree Shire Council [1971] 1 NSWLR 638 and Hudson v Vanderheld (1968) 118 CLR 171. 12 In general terms, s583 and its successor section confer immunity in respect of acts done pursuant to an authority which the relevant legislation itself confers. The act done (here, the commission of the tort of slander) must be the very thing, or an integral part or step in the very thing, which the provisions of the statute - obviously other than the immunity section - gave power in the circumstances to do: see McCarron at 642E. 13 That general outline of the area of principle points to the extraordinary difficulties lying in the path of the defendant in his present motion. It is not known, for example, whether in fact there is an express power given to councillors to speak in a debate over and above the availability of any express power merely to vote on the motion that is before the Council. If the defendant has any power to speak or authority so to do, does it arise from some general power or as a matter of general law? These questions are in contradiction to the implication of a power to that which was done in purported performance of the duty being something which the person performing the act, apart from the statute, was otherwise lawfully entitled to do. All of this points to both a legal and factual ambience that has yet to be established. 14 The defendant, as remarked above, has denied the conduct alleged against him constituting the tort of defamation by way of slander. The circumstances attending the establishment by evidence of those alleged acts will only take place at trial (and this will be an all-issues jury trial). 15 Taking into account that the matters of legal principle are of critical importance, it would be the more perilous to seek to determine them now in what is a factual vacuum. I do not know what material will be forthcoming at trial on any issue. What is clear from the pleadings is that there is an issue as to the defendant's conduct itself and as to the manner and occasion of publication and indeed the preliminary matters relating to the development application that the plaintiff has set out in his third further amended statement of claim. I am not and cannot presently see myself being in the position of a trial judge for the purposes of determining the preliminary question of law in those circumstances referred to by Hunt J in Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112 at 124A-B. 16 I decline to order a separate trial pursuant to SCR Pt 31 r 2. The defendant's notice of motion is dismissed with costs. I place the matter in the Registrar's Defamation Directions List on 22 August 2003.

Last Modified: 08/28/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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