Warren & Anor v Tweed Shire Council & Anor

GUTTERIDGE HASKINS & DAVEY PTY LIMITED (ABN 39 008 488 373) (Second Defendant) JUDGMENT OF : Levine J

COUNSEL : J S Wheelhouse (First Defendant)

R McHugh (Second Defendant) Somerville Laundry Lomax (Plaintiffs)

SOLICITORS : Stacks The Law Firm (First Defendant)

Corrs Chambers Westgarth (Second Defendant) CATCHWORDS : Defamation - identification - imputations - form and capacity - aggravation of damages - corporate plaintiff AIFME v Norley & Anor [1999] NSWCA 259 CASES CITED : RSPCA (NSW) v 2KY Broadcasters Pty Limited (Hunt J, unreported, 9 December 1998) South Sydney District Rugby League Football Club Limited v Amalgamated Television Services Pty Ltd (Hunt J, unreported, 10 August 1995) The Mekong Club Limited v 2KY Broadcasters Pty Limited & Anor (unreported, 30 April 1996) DECISION : See paragraph 31

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION D efamation list

JAMES WARREN & ASSOCIATES PTY LIMITED (ACN 066 448 879) ( Second Plaintiff )

GUTTERIDGE HASKINS & DAVEY PTY LIMITED (ABN 39 008 488 373) (Second Defendant)

JUDGMENT (Defamation - identification - imputations - form and capacity - aggravation of damages - corporate plaintiff) 1 The plaintiffs sue the defendants in respect of the publication, on or about 4 April 2001 of material described as having been included in a "Local Environment Study (LES)" in respect to a proposed development in Tweed Shire known as Kings Forest. The LES, as I understand it, is constituted by a commentary, as-it-were, on a draft Species Impact Statement (SIS). In general terms the LES was prepared by the second defendant for the first defendant as a commentary upon the SIS with which the plaintiffs were concerned. 2 The text of the matter complained of is appended to these reasons. 3 Each defendant has separately moved the Court for orders in relation to identification, the particularisation of the claim for aggravated damages, matters of form and capacity in relation to the imputations pleaded. As to the last mentioned, pursuant to Pt 31 r 2 a separate trial was conducted.

Identification 4 It is to be noted that the first plaintiff is a natural person and the second plaintiff a corporation. In the strict sense, neither is named in the matter complained of. The matter complained of refers to "James Warren & Associates" which as far as a lawyer is concerned would be understood as a "firm". 5 The Statement of Claim contains no particulars of identification, that is, no extrinsic facts have been set out by the proof of which it could be said that the publications were of and concerning each plaintiff. 6 I am satisfied that on the application of general principles the Statement of Claim is defective in relation to each plaintiff. The considerations in relation to a corporate plaintiff as discussed in AIFME v Norley & Anor [1999] NSWCA 259 cannot here apply as there is no reference to any corporation by name or number in the matter complained of. As to the first plaintiff it cannot, in my view, be said to be clear, or absolutely clear, to any person reading it, that it was published of and concerning the nominated plaintiff James Victor Warren. 7 In short, the matter complained of on its face cannot be understood as being published of the corporate second plaintiff nor can it be understood as being published of the sole natural person the first plaintiff. If each plaintiff has a case that the publication was of and concerning him/it, the particulars of the extrinsic facts must be in accordance with the usual practice and principle. 8 I was referred by counsel for the plaintiffs to my decision in The Mekong Club Limited v 2KY Broadcasters Pty Limited & Anor (unreported, 30 April 1996; BC9606919) and the antecedent decision of Hunt J (as he then was) in South Sydney District Rugby League Football Club Limited v Amalgamated Television Services Pty Ltd (unreported, 10 August 1995). Neither, in my view, assists the plaintiffs not for the least reason that in each case the corporate plaintiff was the only plaintiff. As was submitted for the second defendant, if the first plaintiff wishes to have what is described as the very considerable advantages of limited liability which flow from incorporation then he must accept the other consequences which flow from that separation of legal personality. 9 The next matter of complaint by the second defendant is that no particulars are given of the allegation of publication made against both defendants. 10 In paragraph 5 of the Statement of Claim it is pleaded in the alternative that the second defendant published the matter complained of in March 2001 in "circumstances" in which it intended the matter to re-published or -re-publication was the natural and probable consequence of the first publication by the second defendant. The plaintiffs go on to plead that the matter was re-published on 4 April and that the second defendant is liable for such re-publication, scil., by the first defendant. 11 The plaintiffs purport further to particularise the allegations in support of the second defendant's liability for re-publication by the first defendant. The only allegation of fact which is capable of being understood as alleging direct conduct on the part of the second defendant, is that it "published … to the (first defendant) on or about March 2001 for the use of the (first defendant)". 12 None for the material in the Statement of Claim in paragraph 5 or the purported particulars of re-publication can support the allegation directed to responsibility in the second defendant for re-publication by the first (as pleaded in paragraph 5). The matter complained of itself, it is submitted and I accept this submission, gives every indication that the LES was for the internal use of the Council and that the purpose of the LES was to suggest improvements to be made the draft SIS "prior to the draft SIS's exhibition". 13 I am satisfied that it is far from the natural and probably consequences of publication by the second defendant to the first defendant that the first defendant would publish the LES in the form set out in Schedule A to the Statement of Claim. 14 Accordingly, I will strike out paragraph 5 of the Statement of Claim. 15 Paragraph 3 which merely alleges publication by the defendants of the matter complained of will, subject to amendment, have to be understood presently as pleading no more than that the second defendant published the matter complained of to the first defendant.

The imputations 16 The imputations said to arise by way of natural and ordinary meaning and to be defamatory of the first plaintiff are as follows: "(a) that the first plaintiff was incompetent as an environmental consultant. (b) that the first plaintiff negligently prepared a Species Impact Statement for the use of Tweed Shire Council which failed to identify and consider a significant koala population. (c) that the first plaintiff, as a professional environmental consultant, prepared a Species Impact Statement for the use of Tweed Shire Council which was unprofessional in that it was seriously deficient". 17 The imputations said to arise by way of natural and ordinary meaning and to be defamatory of the second plaintiff are: "(a) that the second plaintiff was incompetent in its business as an environmental consultant. (b) that the second plaintiff negligently prepared a Species Impact Statement for the use of Tweed Shire Council which failed to identify and consider a significant koala population. (c) that the second plaintiff prepared a Species Impact Statement for the use of Tweed Shire Council which was unprofessional in that it was seriously deficient ". 18 The submissions for each defendant in relation to the imputations are substantially the same. They are directed as to form and capacity. These submissions are, of course, in addition to the threshold questions of whether a case has been made on the pleadings as to publication of and concerning each plaintiff. The capacity issues was argued as a separate question of law pursuant to SCR Pt 31 r 2. 19 As to imputation 4(a) it is bad in form. It fails to specify the act or condition, that is, what constituted the incompetence. The matter complained of is very specific in its criticism of the draft SIS. The imputation does not specify the manner in which it is said the first plaintiff (assuming the matter to have been published of him) is alleged to have been incompetent. For that reason it will be struck out. 20 I would add that I would otherwise not be persuaded of the capacity of the matter complained of to carry this imputation. The matter is directed to the draft SIS and not its author. The author of the draft SIS is not described in any way in the matter complained of, let alone as "an environment consultant". The generality of such an imputation is incapable of being carried further in circumstances where the matter complained of refers only to one specific item of work. 21 As to imputation 4(b); this gives rise to a question of capacity. The essence of the argument for the defendants, as I have adverted to in relation to imputation 4(a), is that the matter complained of (leaving again aside the identification issue) is directed to the document rather than its author. 22 I hold that imputation 4(b) is incapable of being carried by the matter complained of. 23 As to imputation 4(c); there is advanced for both defendants an objection as to form and an argument as to capacity. It is the first that will succeed. This imputation fails to specify the relevant act or condition. It is complicated by the identification issue but leaving that to one side, the question can be asked, and asked reasonably: is the allegation that the first plaintiff was himself unprofessional? The imputation should say so with precision. To say that a document was unprofessional in that it was seriously deficient adds nothing let alone anything that would enhance clarity and precision. 24 Imputation 4(c) will be struck out as bad in form. 25 It is also affected in terms of capacity by reason of the absence of reference to the first plaintiff as a professional environmental consultant. 26 The imputations in relation to the second plaintiff suffer the same defects as those in relation to first and for the same reasons. It is to be noted that imputation 4(c) omits a description of the second plaintiff " as a professional environment consultant". 27 Imputations 4(a) and (c) will be stuck out. Imputation 4(b) I would otherwise hold not to be capable of being carried. 28 The final matter of complaint made on behalf of both defendants and acceded to by the plaintiff is that the second corporate plaintiff would not be entitled to aggravated damages in the sense of increased "hurt to feelings" (RSPCA (NSW) v 2KY Broadcasters Pty Limited (Hunt J, unreported, 9 December 1998). Particulars (ii) - (v) will be struck out. 29 The flaws in the current pleading have been exposed, I trust, in these reasons. 30 It seems to me appropriate that the plaintiffs be granted liberty to amend in relation to the substance of their cases as to publication, identification, re-publication, aggravated damages, and the causes of action. 31 The formal orders are:

Paragraph 5 of the Statement of Claim is struck out.

Imputations 4(a) and 4(c) of the first plaintiff are struck out.

Imputations 4(a) and 4(c) of the second plaintiff are struck out.

Imputation 4(b) in respect of each plaintiff as a matter of law is incapable of being carried by the matter complained of and I enter a verdict for the defendants on these causes of action.

Particulars of aggravated damages (ii) - (v) are struck out.

The plaintiffs have leave to file an Amended Statement of Claim within 14 days of today.

The plaintiffs are to pay the defendants' costs.

The action is listed for directions in the Registrar's Defamation Directions List on 19 April 2002.

The flora and fauna survey methods and structure of the draft SIS undertaken by James Warren and Associates is generally in accordance with the NSW National Parks and Wildlife Service Director General's requirements dated 9 February, 1998.

However, a number of limitations have been identified within the draft SIS. These include:

The draft SIS indicates on page 16 that a Section 5A assessment of the impacts of the proposed development on Threatened Species known to occur in the study area concluded that there was likely to be a significant effect on certain threatened species. In this regard, the draft SIS was triggered as a result of the potential impacts on the wallum froglet and koala. This assessment has not been provided within the draft SIS and is warranted to provide context to the draft SIS.

One of the most significant limitations with the draft SIS is the limited koala radio tracking undertaken within the north-eastern corner of the study area, despite spotlighting and scat searches undertaken in the area.

This deficiency has been highlighted by the extensive work undertaken by the Australian Koala Foundation (AKF) on behalf of TSC. In September 1996, the AKF prepared the Koala Habitat Atlas for the Tweed Coast. The atlas identifies large areas of prime koala habitat in and around the north-eastern corner of the study area. Radio tracking was also undertaken by the AKF on behalf of TSC as part of a two year monitoring program on the impacts of koalas associated with the Old Bogangar Road upgrade. The monitoring program has confirmed the continued presence of a local koala population adjacent to Old Bogangar Road in addition to those identified by Warren and has suggested a more recent return to utilisation levels within habitat near to the roadway, as were originally assessed shortly after the commencement of road works.

James Warren and Associates did not identify this koala population in the draft SIS prepared and hence the impact on these species has not been considered. This is considered a major deficiency in light of the proposed connection of the Kings Forest Parkway with Old Bogangar Road in this location. Without such information, it is difficult to confirm or deny that the construction of this connection point, which would involve a 90 metre, two lane roundabout, would have a significant impact on the local population, however it is considered that such an option may seriously reduce the survival prospects of this existing koala population for survival and could quite conceivably result in their demise over the short term. This connection is considered to be the cornerstone to the future development of the study area and without such a connection the ability of the study area to be accessed via Old Bogangar Road requires further consideration.

The feasibility of alternative access options in light of the local koala population has been discussed in detail in Section 5.15 of this LES.

While it is recognised that the requirements for the draft SIS were outlined in 1998, the new Environmental Protection and Biodiversity Conservation Act, 1999 (EP&BC Act, 1999) came into force prior to the draft SIS being completed and therefore this Act needs to be addressed. Of particular relevance is the impact the development of the study area will have on migratory birds.

The discussion provided in the draft SIS on fauna habitat analysis was considered to be limited and needs to be expanded for a number of species, not the least of which is the Wallum froglet and Wallum tree frog. These species, particularly the Wallum froglet, have been recorded across much of the study area within man-made drains. The draft SIS indicates that many of these drains will be lost and therefore the development of the study area will result in a significant loss in individuals of these species.

The study area has been identified as containing habitat for a number of threatened flora and fauna species, particularly for the koala and Wallum froglet. It is recognised that the most important habitats for these threatened species are generally confined to the Swamp Sclerophyll and Dry Sclerophyll Forests within the study area which generally coincide with the wetland areas and the Cudgen Nature Reserve within the study area. These areas contain the most biodiversity within the study area and therefore need to be protected from any future urban development.

In this regard, it is recommended that the draft LEP include these areas within an environmental protection zone. In making this recommendation, GHD has considered the reservation status of the Tweed Shire Forest Ecosystems developed as part of the Comprehensive Regional Assessment (CRA) Process. The retention of the Swamp Sclerophyll and Dry Sclerophyll Forests within the study area will add greatly to the target figures to be achieved for Swamp Mahogany, Lowlands Scribbly Gum, Paperbark, Brushbox, and Blackbutt Forests under the CRA Process.

In addition to the environment protection zoning, it is recommended that a 10 metre buffer be added to this zone and be applied the environmental protection zoning in order to minimise the impacts of edge effects including litter generation, introduction of weeds and domestic animals and increased human access (sic). While this 10 metres is primarily to reduce bushfire risk it also assists in separating incompatible land uses. It is recognised that this buffer is significantly less than the NPWS recommended 50 metres, however, it provides some level of statutory protection without burdening parts of the study area which may not need such protection.

Further consideration should then be given to an additional buffer, where necessary, as part of the DCP to be prepared for the study area. In this regard, the DCP will need to address issues including the design and management of these buffers. This approach is considered to be a more flexible approach, which still satisfies NPWS requirements and the requirements of Clause 14 of the North Coast REP 1988.

Apart from the imposition of environmental protection zoning and buffers, it will be necessary for any future development of the study area to consider the ongoing management of threatened species and wildlife habitats that exist in the study area. In this regard, consideration will need to be given to the proposed urban design and management of the study area as part of the DCP.

In light of the deficiencies in the draft SIS in relation to koalas, it is recommended that the koalas and their home ranges identified by the AKF should be included and addressed by the draft SIS prior to any determination of a Development Application for the study area so that the impact of any urban development and logging on this species can be determined. Appropriate mitigation measures will also need to be developed and employed as part of the SIS to ensure the survival of this species. These mitigation measures should then be included in a Koala Plan of Management for the study area and should outline controls regarding urban design, traffic speed, dog control, exclusion fencing etc.

From the information presented in the draft SIS and other fauna studies undertaken within the study area, the koala's most suitable habitat is the Swamp Sclerophyll Forest contained within both the central wetland and the eastern and southern portions of the study area. These areas provide important wildlife corridors across the study area for the koala. While it is recognised that koalas are also using the Pine forests within the study area, these forests are not considered to be critical habitats for the koala. As previously indicated, the koala only uses these area for roosting and not for feeding and therefore from a land use planning perspective, the majority of the land covered by these forests is considered more suitable for urban development rather than nature conservation. There is however one exception to this rule and that is the area located within the north-eastern corner of the study area where the retention of pine forest and the regeneration of Swamp Sclerophyll Forest is considered critical to the maintenance of the wildlife corridor that exists along the entire eastern portion of the study area. In removing pine forest, special consideration will be required to ensure there are no direct impacts on the koala species.

The translocation of koalas is not considered to be an appropriate mitigation measure. The AKF and NPWS have indicated that such a proposal would be of great concern as further major disruptions to the remaining local population would be likely to significantly reduce their prospects for survival and could quite conceivably result in their demise over the short term.

In regard to above, it is recommended that the draft LEP include appropriate statutory controls which require a Koala Plan of Management to be prepared for the study area in consultation with the National Parks and Wildlife Service. The Koala Plan of Management will need to address the impacts of both urban development and logging on the koala.

The draft SIS will also need to address the provisions of the Environmental Protection and Biodiversity Conservation Act, 1999, prior to its exhibition and prior to any determination of a Development Application for the study area so that the impact of any urban development on listed species can be determined. Consideration should also be given to including the eight-part test that was undertaken.

In regard to Wallum froglet habitat, it is recommended that the draft SIS provide further detail on the location and spatial distribution of the drains within the study area, with a view to establishing corridors and more contiguous areas for the local population to encourage gene flow. This work should be undertaken prior to the draft SIS's exhibition and prior to any determination of a Development Application for the study area.

In regard to wildlife corridors, it is recommended that the corridors classified as Category 1 and 2 be zoned environmental protection in the draft LEP, while corridors classified as Category 3 should be further considered as part of the DCP to be prepared for the study area.

These recommendations are consistent with and satisfy TSC's statutory obligations under Clauses 14 and 29 of the North Coast REP 1988. These recommendations are also consistent with the requirements of the NSW Coastal Policy and address the issues raised by the NPWS.

Last Modified: 03/22/2002 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.