Supreme Court New South Wales Medium Neutral Citation: Bailey v WIN Television NSW Pty Ltd [2020] NSWSC 232 Hearing dates: 2-12 December 2019; 13 March 2020 Date of orders: 24 March 2020 Decision date: 24 March 2020 Jurisdiction: Common Law Before: Fagan J Decision: Judgment for the first and second defendants. Catchwords: DEFAMATION – defamatory matter – pleaded imputations not conveyed – plaintiff not defamed DEFAMATION – defences – statutory defence of qualified privilege – facts determined on contingent and hypothetical basis – whether matter of public interest – whether media organisation's conduct in publishing was reasonable – defence of contextual truth – whether plaintiff's imputations would cause further harm notwithstanding the truth of contextual imputations – defence of honest opinion Legislation Cited: Defamation Act 2005 (NSW) Local Government Act 1993 (NSW) Cases Cited: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Barbaro v Amalgamated Television Services Pty Ltd (1989) 20 NSWLR 493 Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091 Collier v Country Women's Association of NSW [2017] NSWSC 153 Cummings v Fairfax Digital Australia & New Zealand Pty Ltd [2018] NSWCA 325 Dansar Pty Ltd v Byron Shire Council [2013] NSWSC 17 Feldman v Polaris Media Pty Ltd (No 2) [2018] NSWSC 1035 Fraser v Holmes [2009] NSWCA 36 John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541 John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 Harbour Radio Pty Ltd v Ahmed [2011] NSWCA 290 Holmes v Fraser [2008] NSWSC 570 Kelman v Mutton [2007] NSWSC 13 Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 Mirror Newspaper Limited v Harrison (1982) 149 CLR 293 Morgan v John Fairfax & Sons Ltd (1991) 23 NSWLR 374 Nationwide News Pty Ltd v Heggie [2001] NSWCA 257 O'Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 O'Brien v Australian Broadcasting Corporation (2017) 97 NSWLR 1; [2017] NSW CA 338 Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1980] 2 NSWLR 845 Trkulja v Google LLC [2018] HCA 25 Zaia v Eshow [2017] NSWSC 1540 Category: Principal judgment Parties: Roger Bailey (plaintiff) WIN Television NSW Pty Ltd (first defendant) Win Corporation Pty Ltd (second defendant) Maree Statham (third defendant) Representation: Counsel: L Barnett with AR Spies (plaintiff) S Chrysanthou (first and second defendants) M Richardson (third defendant) Solicitors: Mills Oakley (plaintiff) Banki Haddock Fiora Lawyers (first and second defendants) Colin Biggers & Paisley (third defendant) File Number(s): 2017/315166 Publication restriction: No Judgment 1. By statement of claim filed on 18 October 2017 the plaintiff commenced an action for damages in defamation against the three defendants. The action was tried without a jury over 9 days commencing on 2 December 2019 and a further part day on 13 March 2020. On the fifth hearing day settlement was reached between the plaintiff and the third defendant, Ms Maree Statham. The proceeding continued thereafter against only the first and second defendants (hereafter referred to as "the defendants"). The first defendant operates a television station that broadcasts to the Lithgow area. The second defendant administers a Facebook page on which some of the first defendant's television content is replicated. 2. The plaintiff was until 19 October 2016 the General Manager of the Lithgow City Council pursuant to a contract of five years duration that was to expire on 21 September 2017. He alleges that he was defamed by a television news item concerning the early termination of his employment. The item was broadcast on the evening of 20 October 2016 and was thereafter available on the second defendant's Facebook page until 20 February 2017. The nine-member Council of the City of Lithgow met on 19 October 2016 and resolved by majority of 6 votes to 3 to terminate the plaintiff's employment with immediate effect. Ms Statham was one of the councillors who voted with the majority. Mr James Wilson was a television journalist on the staff of the first defendant, based at Orange. Early on the morning of 20 October 2016 his chief of staff, Ms Fotheringham, became aware of the Council's decision of the previous evening. She directed Mr Wilson to travel to Lithgow to gather information for a television news item on the subject. 3. Mr Wilson contacted Ms Statham, from whom he had on previous occasions obtained information concerning Council affairs, and he arranged to interview her at her daughter's house in Bathurst on his way to Lithgow. After video recording an interview with Ms Statham between about 9:30 am and 10:00 am, Mr Wilson continued on to the Council chambers in Lithgow where he had arranged to meet with the Mayor, Mr Stephen Lesslie. Mr Wilson video recorded responses from Mr Lesslie on the subject of the termination of the plaintiff's employment. 4. Before leaving the Council chambers Mr Wilson asked the Mayor's personal assistant for a phone number on which the plaintiff could be contacted and said that he wanted to get the plaintiff's side of the story. The personal assistant, Ms Trinity Newton, said she was not able to give out the plaintiff's phone number but undertook to pass on the message that Mr Wilson wanted to speak to him. Mr Wilson requested that Ms Newton get back to him with a number on which he could call the plaintiff, urgently. At 11:40 am Ms Newton duly sent an email to the plaintiff containing the following message: Subject: NBN would like to call you for your side of things. Hi Roger I didn't think you would want to talk to them but I said I would ask if you would talk to NBN and ask if I could give them the mobile number. 1. In her evidence Ms Newton explained that she referred to the first defendant as "NBN" because it broadcast on television Channel 9 and she was used to that channel operating under the name NBN in her home city, Newcastle. The plaintiff replied to Ms Newton at 11:47 am with the message "Try Andrew", a reference to Mr Andrew Muir, the senior manager whom Council had determined should act as General Manager until a replacement for the plaintiff could be engaged. Ms Newton phoned Mr Wilson shortly after receiving the plaintiff's reply and told him that the plaintiff did not wish to speak with him. Mr Wilson had been waiting in the Council car park for a response from Ms Newton or the plaintiff and he was still there when this call came through. 2. Mr Wilson then returned to Orange and rang one other source in order to complete his coverage of the story, namely Mr Paul Toole, Member of the New South Wales Legislative Assembly for the seat of Bathurst. Mr Toole was at that time the Minister for Local Government. A telephone interview with Mr Toole was recorded. Mr Wilson returned to Orange and typed up a script of the story he proposed to submit for inclusion in the first defendant's news broadcast at 6:00 pm on 20 October 2016. The script was sub-edited by Ms Fotheringham. She approved it and Mr Wilson then cut and put together the various segments of video recording, audio recording and his own "voice over" content. 3. The result was a television news item, the Third Matter complained of, in which the following words were spoken: 1. Reporter: Discontent and lack of morale amongst staff have been blamed for the sacking of Lithgow's General Manager Roger Bailey. His fate was sealed last night during an extraordinary meeting with opinions dividing the room. 2. Lesslie: I was very disappointed with the decision, I felt it was an excessive overreaction to reasonably minor internal Council problems. 3. Statham: After speaking to many, many people that the workers have been very unhappy, not every worker, but certainly the majority of workers and I think that was proven through the Council survey recently with the staff. 4. Reporter: According to Council there have been a number of allegations of bullying and intimidation from Mr Bailey which contributed to the group's decision. 5. Mayor Leslie and Councillors Thompson and McAndrews were the only three who voted against the termination of the General Manager. 6. Minister for Local Government Paul Toole has encouraged Council to be transparent with the decision. 7. Minister: What I do encourage is the councillors to explain to the community why they've actually made the decision and then encourage them to get on with the job. 8. Statham: Look I think it was ah, something that was probably going to be inevitable unless things changed I think it's been a very tough decision, one which I've certainly not taken lightly. 9. Reporter: The sacking won't come cheaply. The payout for Mr Bailey's departure is estimated to cost around two hundred thousand dollars of rate payer's money. Some say this is a small figure to pay for a change in the work environment. Others disagree. 10. Lesslie: I believe that two hundred thousand dollars could well have been spent elsewhere ah. . .but that's not for me to decide. 12. Reporter: Senior staff member Andrew Muir will be the acting General Manager in the interim as Lithgow Council looks to rebuild into the future 13 WIN reached out to Mr Bailey for a comment but he was unavailable. 14. James Wilson, WIN News. 1. The Fourth Matter complained of is a video clip of the news item, with identical content, that was posted on the second defendant's Facebook page. From the Facebook page the video clip was available for download by any member of the public until it was taken down on 20 February 2017. An electronic copy of it has been tendered and replayed to the Court. There is consequently no issue that the words spoken were as set out above. The Third and Fourth Matters are identical in content and I will refer to them as "the Matter". The First and Second Matters were the basis of the claim against Ms Statham and they are no longer relevant. 2. The plaintiff's action was tried on the basis of his further amended statement of claim filed 13 September 2018, to which I will refer to as "the statement of claim". In par 11 the following imputations are alleged to have been conveyed by the Matter in its natural and ordinary meaning: (a) The plaintiff, as General Manager of Lithgow City Council, was so incompetent in that role that he caused the majority of staff to be unhappy. (b) The plaintiff, as General Manager of Lithgow City Council, performed so poorly in that role that his termination was inevitable. (c) The plaintiff, as General Manager of Lithgow City Council, bullied and intimidated Council staff. (d) The plaintiff had so conducted himself as General Manager of the Council as to warrant being dismissed by Council. Issues 1. The defendants firstly dispute that any of the imputations was or were conveyed by the Matter. As will be seen, this issue of meaning is in my view decisive of the case. I do not consider that the ordinary reasonable viewer of this television news item, listening to the words spoken in their ordinary and natural meaning, would have understood them to convey any of the defamatory imputations pleaded. 2. Secondly, in reliance on s 26 of the Defamation Act 2005 (NSW) the defendants allege that the Matter complained of conveyed contextual imputations that were substantially true, so that if the imputations alleged by the plaintiff were carried and were defamatory they did not further harm the plaintiff's reputation. They allege that the following contextual imputations were carried (par 17 of the amended defence) and that they were true (par 18): a. The plaintiff was dismissed from his position as General Manager of the Council. b. The plaintiff was dismissed from his position as General Manager of the Council because of discontent amongst staff and allegations of bullying and harassment. 1. It is not contested that the defendants' imputation 17a was carried but imputation 17b is disputed. The plaintiff also denies that imputation 17b, if conveyed, was true A great deal of evidence was adduced on that issue. The defendants called five of the six councillors who voted in favour of terminating the plaintiff's employment. Each of them gave evidence as to his or her reasons for supporting the decision. If it should be found that the contextual imputations were conveyed and were substantially true then it will be necessary to decide whether "the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations": see s 26(b). 2. Thirdly, the defendants claim that the Matter was a "fair report of … proceedings of public concern", namely, proceedings in public of a local government body. The defendants invoke s 29(1) and s 29(4)(g) of the Defamation Act as providing a defence to the publication of the Matter. This defence cannot succeed because the councillors debated the motion to terminate the plaintiff's contract in a session closed to the public. Reasons for and against the motion, as given by the first defendant's reporter, the Mayor and Ms Statham in the news item, were not stated in proceedings of the Council conducted in public. Once the motion had been carried in closed session, Council resumed its proceedings in public and the passing of the resolution was confirmed without reiteration in public of the reasons for and against termination. The news item went beyond a report of the public proceedings. 3. Fourthly, the defendants invoke the statutory defence of qualified privilege under s 30 of the Defamation Act. For ease of reference s 30 is reproduced, as follows: 30 Defence of qualified privilege for provision of certain information (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that— (a) the recipient has an interest or apparent interest in having information on some subject, and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances. (2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest. (3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account— (a) the extent to which the matter published is of public interest, and (b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and (c) the seriousness of any defamatory imputation carried by the matter published, and (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and (e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and (f) the nature of the business environment in which the defendant operates, and (g) the sources of the information in the matter published and the integrity of those sources, and (h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and (i) any other steps taken to verify the information in the matter published, and (j) any other circumstances that the court considers relevant. (4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice. (5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward. 1. It is common ground that pars (a) and (b) of s 30(1) are satisfied. The plaintiff does not allege malice under subs (4). The only question in issue on this defence arises under s 30(1)(c), namely, whether the first defendant conducted itself reasonably in publishing the Matter. The plaintiff contends that the first defendant has not proved that Mr Wilson or anyone else on its behalf believed in the truth of the imputations allegedly conveyed and that this is fatal to the defence. He also contends that the first defendant's conduct was unreasonable in failing to inform him what allegations concerning his conduct would be aired and in not affording him a reasonable opportunity to respond to those allegations. 2. Fifthly, the defendants contend that if imputations (a), (b) and (d) as pleaded by the plaintiff were conveyed, the Matter was an expression of the opinion of the first defendant or of Mr Wilson in the sense of those imputations and the opinion related to a matter of public interest and was based on "proper material". On that basis the defendants assert that the defence of honest opinion provided for in s 31(1) of the Defamation Act is established. 3. As I have concluded that the imputations are not carried by the Matter, the defendants' affirmative defences could only be determined on the hypothetical basis of a contrary conclusion. I will endeavour to make factual findings with respect to those affirmative defences to the extent that this is possible and useful, bearing in mind the potential limitations on the utility of such an exercise: see Kelman v Mutton [2007] NSWSC 13 at [66]; Dansar Pty Ltd v Byron Shire Council [2013] NSWSC 17 at [98]; Collier v Country Women's Association of NSW [2017] NSWSC 153 at [347]-[350]. It will not be practical or useful to assess damages on a hypothetical basis. Any assessment would be highly dependent upon precisely what imputations might be found to have been conveyed. If on appeal my dismissal of all of the imputations should be found to be in error and if my findings on the defence under s 30 should also be reversed, there would have to follow an assessment of what damage may be attributed to such imputations as may be upheld. Issue 1: meaning Principles 1. The plaintiff bears the onus of proving that the broadcast of the Matter as a news item on 20 October 2016 and/or its dissemination by way of downloading from the second defendant's Facebook page would have conveyed to the ordinary reasonable viewer and listener one or more of the pleaded imputations. In Trkulja v Google LLC [2018] HCA 25 the High Court explained the courts' approach to determining the capacity of published matter to convey a particular meaning. Much of what their Honours said on that subject is equally applicable to the final determination of whether matter in fact carries alleged imputations. The following paragraph of the judgment is relevant (citations omitted, emphasis added): [31] The test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of. In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience. As Lord Reid observed in Lewis v Daily Telegraph Ltd [1964] AC 234 at 259, "[s]ome are unusually suspicious and some are unusually naive". So also are some unusually well educated and sophisticated while others are deprived of the benefits of those advantages. The exercise is, therefore, one of attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning that ordinary reasonable people at the midpoint could put on the impugned words or images considering the publication as a whole. If one removes the words "most damaging" and substitutes "would" for "could", the passage so modified explains the "ordinary and reasonable person" test for determining whether a particular meaning is in fact conveyed. 1. The assumed characteristics of the ordinary reasonable listener are as described by Hunt CJ at CL in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, another decision on the capacity of published matter to convey alleged imputations. The authorities have identified numerous considerations that may have a bearing upon how the ordinary reasonable reader or listener may understand a publication. The relevant factors vary according to the medium and the subject matter. The authorities are collected in Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [68]-[91]. I accept that the principles are as extracted by Wigney J in that case and I have applied them in the following examination of the imputations pleaded in the present action. Imputation (a) 1. The ordinary and reasonable reader would not understand the Matter to convey an imputation that: (a) The plaintiff, as General Manager of Lithgow City Council, was so incompetent in that role that he caused the majority of staff to be unhappy. 1. The Matter makes no explicit reference to the plaintiff's competence or otherwise. A reasonable reader would not draw from the words used an implication that he is or was incompetent. The Matter conveys that the majority of councillors decided that the plaintiff should no longer hold his position because of unhappiness amongst Council staff. It does not present as fact that the plaintiff was the cause of staff unhappiness. Still less does the matter impute or imply that such unhappiness was caused by or was a manifestation of incompetence on the part of the plaintiff. 2. Far from being the natural and ordinary meaning of the Matter that would be taken from it by the ordinary reasonable listener, imputation (a) is a fanciful distortion of what is conveyed. To support it the plaintiff relies, first, upon Ms Statham's words at par 3 that the unhappiness of a majority of workers "was proven through the Council survey recently with the staff". This only reports Ms Statham's opinion of the survey and does not convey as a fact, even according to Ms Statham, that staff unhappiness has been "proven" to have been caused by the plaintiff's incompetence as general manager. For a listener to take imputation (a) as conveyed by the Matter would go well beyond mere "loose thinking". 3. Secondly the plaintiff argues that blameworthy incompetence is imputed by the reference to a $200,000 payout. He submits that this would signify to the listener that it must have been his incompetence that caused staff unhappiness, otherwise Council would not incur such a cost to the ratepayers to be rid of him. I do not accept that the ordinary reasonable listener would draw such a long bow. To such a listener the substantial termination payment would be at least equally consistent with Council not having found substantiation of any blameworthy conduct, such as would warrant peremptory termination without compensation. Overall, to the ordinary reasonable listener the payment is equivocal and inconclusive information. 4. In Amalgamated Television Services Pty Ltd v Marsden at 166A Hunt CJ at CL said (citations omitted): Whereas the reader of the written document has the opportunity to consider or to re-read the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed, the ordinary reasonable listener or viewer has no such opportunity. Although such a listener or viewer (like the reader of the written article) must be assumed to have heard and/or seen the whole of the relevant program, he or she may not have devoted the same degree of concentration (particularly, I would say, where it is the radio) to each part of the program as would otherwise have been given to the written article and may have missed the significance of the existence, earlier in the program, of a qualification of a statement made later in the published material. 1. The plaintiff's submissions concerning imputation (a) turn the above consideration on its head. The plaintiff attributes to the ordinary reasonable listener a capacity to pick up isolated words, phrases and/or fragments of content and an ability and inclination to draw tenuous implications. This is the antithesis of the manner in which the ordinary reasonable listener could be expected to take meaning from the news item. The plaintiff's arguments impute that the listener would draw implications by a strained and illogical process from particles of the published matter. Imputation (b) 1. The ordinary and reasonable reader would not understand the Matter to convey an imputation that: (b) The plaintiff, as General Manager of Lithgow City Council, performed so poorly in that role that his termination was inevitable. 1. As with the term "incompetent" in imputation (a), the Matter makes no mention of poor performance of the plaintiff in his role as general manager. There is no basis upon which a reasonable listener could infer or imply an imputation that the plaintiff had performed poorly in the role. The subject of the plaintiff's performance is not touched upon directly or implicitly. The quotation of Ms Statham's comments at par 8 and the fact that the majority resolved to terminate the plaintiff's employment may imply that some councillors held the view that unhappiness amongst the staff was the plaintiff's fault. But no ordinary reasonable listener would understand the Matter as conveying such fault as fact. 2. Again the plaintiff invokes the payout of $200,000 as a basis upon which the reasonable listener would infer this imputation. For the same reasons as given at [23] in relation to imputation (a), this is not an implication that the reasonable listener would make. The proposition that the plaintiff must have performed poorly would be pure speculation from the published content, including from the fact of the payout. A moment's consideration by any reasonable listener would identify the possibility that Council may have acted precipitately and unwisely. The Matter does not purport to present concrete information to show that discontent of Council staff was well-founded and was the fault of the plaintiff. The Matter leaves open the possibility that the plaintiff may have been sacrificed by a Council trying to appease its workforce, perhaps in relation to unjustified or remediable grievances. The content of the news item may indicate nothing more than that Council had wasted public funds on compensation for terminating the plaintiff's employment without cause. 3. For the ordinary reasonable listener, infallible wisdom of a majority of councillors on a local government body is not a given. The alternative hypothesis, that the elected representatives may have been at fault in their decision rather than that the plaintiff performed poorly, was at least equally open to speculation from the published content. I am not satisfied that the ordinary reasonable listener would speculatively ascribe to the Matter a meaning damaging to the plaintiff that does not flow as a dominant or compelling inference, or even a logical one. Imputation (c) 1. Imputation (c) is couched as an affirmative matter of fact: (c) The plaintiff as General Manager of Lithgow City Council bullied and intimidated Council staff. This appears to rely heavily upon par 4 of the Matter, which reads as follows: 4. Reporter: According to Council there have been a number of allegations of bullying and intimidation from Mr Bailey which contributed to the group's decision. 1. Where a third party has made allegations that convey a defamatory imputation, a media organisation that publishes a report of the allegations may thereby become liable for conveying the imputation, irrespective of whether the published report would or would not have been understood by the ordinary and reasonable reader/listener as expressing the media organisation's adoption or endorsement of the allegations. This was considered by Hodgson JA in Nationwide News Pty Ltd v Heggie [2001] NSWCA 257 in the following passage: [15] Where the publication is of an assertion that certain words were spoken by another person, the general rule is as stated by Lord Devlin in Lewis v Daily Telegraph Limited [1964] AC 234 at 284: For the purpose of the law of libel, a hearsay statement is the same as a direct statement, and that is all there is to it. See also Wake v John Fairfax & Sons Limited [1973] 1 NSWLR 43 at 49 and Australian Broadcasting Commission v Comalco Limited (1986) 68 ALR 259. It is generally irrelevant whether the publisher would be understood as itself intending to make the imputation or endorsing it in any way. As a general rule, the imputation is made by being published, even if it is published as an imputation made by someone else. [16] Although this is the general rule, it is not entirely without exceptions. [17] A report that a person has been charged with an offence does not generally carry the imputation that the person is guilty of the offence, but merely the lesser imputation that the police reasonably suspect the person of having committed the offence: Mirror Newspaper Limited v Harrison (1982) 149 CLR 293. [18] It also seems clear that, if a publication is of an imputation and also its refutation, then it may be that the whole publication does not make the imputation: see Bik v Mirror Newspapers Limited [1979] 2 NSWLR 679n. [...] [20] [A] report that an opposition politician A accused a government politician B of deceiving the public, in relation to a particular action of the government, would not necessarily be understood as making the imputation that B acted dishonestly and deceitfully, or the imputation that B is a dishonest and deceitful person. Furthermore, if B sued A and the publisher in respect of the publication of that accusation, a finding that A made the imputation would not, as a matter of absolute necessity, require a finding that the publisher also made that imputation. In a case such as that, in my opinion it might be relevant to consider whether the claimed imputation was an allegation made by a person who had an interest in making such allegations and who regularly made them, whether the other side of the picture was published, whether there was any endorsement of the allegation by the publisher or any other suggestion that it was true, and whether there was any intention manifested by the publisher itself to make the allegation. However, all those considerations would only be as matters relevant to the question, does the published material, considered fairly and as a whole, make the claimed imputation. [21] However, in my opinion, it would be quite wrong to suggest that published material, setting out an imputation made by another person, does not itself make the imputation if it merely publishes an allegation, or if both sides of the picture are published, or if there is no endorsement of the imputation by the publisher, or if no intention of the publisher to make the imputation is manifested. Certainly it would be an error to suggest that, because all that is published is an allegation, the publication does not make an imputation. There is in fact no sharp distinction between an allegation and an imputation: an imputation simply is an assertion concerning a person, or a charge or accusation: see Petritsis v Hellenic Herald Pty Limited (1978) 2 NSWLR 174 at 183, 189 and 197; Monte v Mirror Newspapers Limited [1979] 2 NSWLR 663 at 677-8. 1. A report of allegations in the pleadings of a civil action will, like the report of a criminal charge, often not convey an imputation that the plaintiff is guilty of the matter alleged: Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1980] 2 NSWLR 845. There, Hunt J said: [W]here the context of the report of an allegation in a pleading is that the allegation is denied and that its truth has yet to be determined by a trial, the report as a whole is, in my view, incapable of conveying the imputation that the plaintiff is guilty of the allegation reported. Each case will, of course, depend upon the context in which that allegation is reported. 1. Neither Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 nor Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd dictates that the report of "allegations of bullying and intimidation" in par 4 of the Matter is incapable of conveying an imputation that the plaintiff is guilty of such conduct. The allegations are not reported as having been made in either criminal or civil proceedings. However, accepting that those authorities do not deny the capacity of the Matter to convey imputation (c), the question remains whether, taken as a whole, the Matter does in fact convey that the plaintiff bullied and intimidated staff. 2. In Cummings v Fairfax Digital Australia & New Zealand Pty Ltd [2018] NSWCA 325 the Court of Appeal were unanimous that certain articles published digitally, reporting allegations in civil proceedings of cruelty by the plaintiff towards horses that he was responsible for training, did not carry imputations that the matters pleaded in those proceedings were true. It was held that the articles made clear that the truth or otherwise of the allegations and of the plaintiff's denials was yet to be determined by a trial and that the ordinary reasonable reader would not read the matters complained of as conveying guilt imputations. The majority (Simpson AJA, Beazley P agreeing) also held that no guilt imputations were conveyed by a very simple poster containing the words "[Plaintiff] fighting cruelty claims" with no reference to the civil proceedings. 3. In relation to the poster Simpson AJA said at [270]-[272]: [270] I doubt that the Poster was capable of conveying the imputations pleaded. [271] It would be apparent to readers of the Poster that allegations of cruelty had been made against Mr Cummings. It would be equally apparent that Mr Cummings contested the allegations. The emphasis in the Poster is on Mr Cummings' denial of the allegations. In my opinion no ordinary reasonable reader could or would conclude that the allegations were true. [272] It is immaterial, in my opinion, that the Poster did not identify the arena in which the claims were to be fought as a court. The clear implication is that the claims are for determination in some adjudicative forum. 1. In the present case the published matter did not specify any complainant who had alleged that the plaintiff had, on any nominated occasion, bullied or intimidated one or more members of the Council staff. The report was second-hand hearsay from the Council of an assertion that non-specific allegations had been made to it. Paragraph 4 conveyed that the mere fact of these allegations having been received by Council, alone, had "contributed" to the decision of the majority to terminate the plaintiff's employment. 2. There is no suggestion in the published Matter that any of such allegations had been substantiated to anyone's satisfaction. The contrary was suggested by the words spoken by Mayor Lesslie at par 2, that the sacking "was an excessive overreaction to reasonably minor internal Council problems" and Ms Statham's view that terminating the plaintiff's contract had "been a very tough decision". To the ordinary reasonable listener, the expression of these sentiments would signal that "allegations of bullying and intimidation" had not been proved. The essence of the published Matter is that the decision of the majority of Council was a response to the workforce being "unhappy", without any basis for their unhappiness having been specifically identified let alone proved. Imputation (c) is framed as conveying the truth of the proposition that the plaintiff had "bullied and intimidated Council staff". In my view such a meaning would not be taken from this news item by the ordinary and reasonable listener. 3. In reaching this conclusion I find the following observations of McHugh J in John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 particularly relevant (citations omitted): [26] However, although a reasonable reader may engage in some loose thinking, he or she is not a person "avid for scandal". A reasonable reader considers the publication as a whole. Such a reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning. The reasonable reader considers the context as well as the words alleged to be defamatory. If "[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together". But this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account. Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article. [27] The rule that the publication must be read as a whole is particularly important where the publication reports a defamatory statement by a third party. The general rule is that a person who publishes the defamatory statement of a third party adopts the statement and has the same liability as if the statement originated from the publisher. Accordingly, it is not the law that a person reporting the defamatory statement of another is only liable if he or she adopts the statement or reaffirms it. But, as Griffith CJ pointed out in Ronald v Harper (1910) 11 CLR 63; [1910] HCA 43 at 77, although as a general rule a person who repeats a defamation adopts it as his or her own statement, it is not "a rule of invariable application". […] 1. Here, while the Matter does not contain an explicit "antidote" in the sense of a refutation or disavowal of the "allegations of bullying and intimidation", the content of the Matter as a whole conveys that these allegations have not been particularised let alone substantiated, that they had "contributed" to the majority decision merely as allegations and that there was a strongly held view of the Mayor that the allegations were not significant. There is nothing in the structure or composition of the news item to convey a differential or selective emphasis, such as might give the ordinary and reasonable listener an impression that the plaintiff had in fact "bullied and intimidated Council staff", as pleaded in imputation (c). The gravamen, emphasis and impression of the Matter taken as a whole is that Council had acted, controversially and with dissent from one third of its members, on the basis of, amongst other things, non-specific allegations of misconduct by the plaintiff. The general tenor of the Matter is entirely against elevation of those "allegations" to a proposition of fact in the terms of imputation (c). 2. The plaintiff submits that the commencement of par 4 with the words "According to Council" would convey to the reasonable listener that these must be more than "mere allegations" because they came from the elected body that had, by majority, acted upon them. For the reasons given at [28] above I reject the proposition that Council's majority vote would convey to the ordinary reasonable listener that the allegations must have substance. There is no justification for assuming that the ordinary reasonable listener would be oblivious to the possibility of unfair and unjustified dismissal. Nor should he or she be taken to have such respect for the majority decision of a political forum such as the Council that a majority vote of its members would be treated as establishing the fact of misconduct by the plaintiff. 3. The plaintiff further submits that Ms Statham's quoted words that her vote in favour of dismissal was "not taken lightly" would indicate to the ordinary reasonable viewer "that the allegations were overwhelming". Nothing of the kind would follow for an ordinary reasonable listener. Such a person would recognise the total absence of particulars of any allegations and would see that, if Council was aware of any substance to them, terminating the plaintiff's employment would not be "a tough decision" at all. It makes no sense to speak of "allegations [that are] overwhelming", as advanced in the submission. It is only the evidence in support of allegations that might or might not be overwhelming. The published Matter does not venture to suggest that there is any evidence, overwhelming or otherwise. It does no more than report that Council said such allegations had been made. 4. In submissions the plaintiff sought to support imputation (c) by reference to five further matters: Ms Statham's expression of opinion about what the survey showed; the reported fact that Council saw fit to incur a $200,000 payout in order to terminate the plaintiff's employment; the reported fact that only three councillors opposed to the resolution; the assertion in par 11 of the Matter that Council was looking "to rebuild into the future" and that an image appeared in the news item of councillors raising their hands in the chamber when the reporter spoke the words appearing at par 4. None of these points adds any weight to the contention that imputation (c) is conveyed. Imputation (d) 1. There is absent from the published Matter any express statement, or any basis for implication, to the effect of imputation (d), namely: (d) The plaintiff had so conducted himself as General Manager of the Council as to warrant being dismissed by Council. 1. Far from conveying a judgment that the plaintiff's dismissal was warranted, by his conduct or otherwise, the Matter as a whole leaves this question unresolved for the ordinary reasonable listener. It quotes reasons against the dismissal, spoken by the Mayor, and reasons in favour of it spoken by one of the majority. Again the plaintiff contends that the reasonable listener would infer this imputation because he or she would think the plaintiff's employment would not be terminated, incurring a $200,000 payout, unless termination was justified. As with the other imputations, this line of reasoning unjustifiably ascribes to the listener an assumption that Council would act fairly and wisely and only on established facts. I do not accept that the ordinary reasonable listener would be so deferential to a Council decision, particularly where the vote was split and the Mayor was quoted as saying, in very direct terms, that the dismissal was not warranted. Issue 2: contextual imputations Contextual imputations 17a and 17b were conveyed 1. The contextual imputations relied upon by the defendants are set out at [11] above. The dispute about whether imputation 17b was conveyed turns upon the word "harassment" in the description of the causes of the plaintiff's dismissal: "discontent amongst staff and allegations of bullying and harassment". The plaintiff contends that "harassment" is not used in the Matter and that the nearest phrase is "allegations of bullying and intimidation", which the plaintiff says is a more serious formulation of a ground of dismissal. 2. In the Cambridge Dictionary "bully" is defined as: someone who hurts or frightens someone else, often over a period of time, and often forcing them to do something that they do not want to do. In the Oxford Dictionary the meanings given for the noun and the verb include: n. a person who uses his strength or power to hurt or frighten others. v. to behave as a bully towards, to intimidate. In the Macquarie Dictionary the noun "bully" is defined as follows: 1. a blustering, quarrelsome, overbearing person who browbeats smaller or weaker people. 2. someone who intimidates or demeans another, especially as by repeated threats to their person, career, or social standing, or by harassment in person, on social networks, etc 1. Consistently with common usage of the terms "bully", these dictionary definitions show that when the word "bullying" is used as a noun, as in the published Matter, it includes intimidation and harassment. The reference in the Matter to "allegations of bullying" necessarily carries, in accordance with ordinary usage and understanding, the notion of intimidatory and harassing behaviour. The expressions "bullying and intimidation" as used in the Matter and "bullying and harassment" as used in the defendants' contextual imputation 17b are not different in substance from each other, or from the word "bullying" in isolation. I am satisfied that the ordinary sensible listener hearing the words of the published Matter would take it as conveying imputation 17b. Staff dissatisfaction with the plaintiff prior to April 2016 1. In order to establish the truth of imputation 17b, that the plaintiff was dismissed "because of discontent amongst staff and allegations of bullying and harassment", the defendant led from five councillors direct evidence of why they voted for the resolution on 19 October 2016. The defendants sought to demonstrate the reasons of the sixth councillor, Ms Statham, through cross examination of the plaintiff and of Councillor Thompson regarding interaction between the plaintiff and Ms Statham during 2016. 2. An understanding of the reasons the majority for dismissing the plaintiff can only be reached through consideration of the history of staff dissatisfaction over the 15 months prior to the vote. In about mid 2015 the plaintiff and senior managers, in particular Mr McGrath, the human resources manager, agreed to engage Mr Rum Charles to provide a program of training with respect to staff relations. The program was conducted over 12 days in July and August 2015 and was attended by 236 staff members, participating in groups over various sessions. Mr Charles issued a report dated 15 September 2015 in which he described the training given and the responses he had received from Council employees. 3. The report included the following observations: It was observed throughout the entire program in each individual session that staff members have a real and undeniable feeling that workplace bullying and harassment is an issue within the organisation, particularly from senior staff members. As this observation was made consistently with regular behaviours being mentioned I would have to concur that this is indeed an issue, rather than the expected "management-worker" traditional whinge or moan. Morale amongst the organisation staff members is at a fairly low ebb due to a few factors including overall management style, community anxiety in relation to where the municipality is headed into the future, a jaded outlook in relation to significant change from this program or the Council in general. In short, there is a belief that things simply will not or cannot change […] [It] appears that structural reform is required to raise staff morale and confidence. 1. Mr Charles' recommended that there should be conducted "some targeted small group or individual management training and consultation sessions to make the senior managers aware of the impact of their current management styles". He also recommended that the Council "develop a full diversity and well being strategic plan". 2. The plaintiff discussed this report with Mr Charles by phone on 3 January 2016. Mr Charles said that the staff had a perception of an unacceptable culture within upper management levels, not limited to the plaintiff but "driven top down". The staff felt compromised. He said that the plaintiff's manner was perceived as "autocratic and unabridged" and that allegations of bullying had emerged less than five times during the training, including from two female staff members. On 1 and 3 March 2016 the plaintiff met with Mr Charles, who informed him that some staff complained that he was monitoring them with CCTV. Mr Charles said that morale in the Council workforce was at a low ebb. 3. On 9 February 2016 Mayor Statham and Councillors Thompson, Inzitari, McAndrew and Pilbeam met with the plaintiff over three hours during which they informed him that complaints were being received from staff and others concerning his "management style", including allegations of "bullying and harassment". Mr McAndrew read from Mr Charles' report, of which he had a copy but which was not circulated to councillors prior to or during the meeting. Mr McAndrew gave the names of several staff members who had complained about the plaintiff's conduct towards them and he specified their complaints. These were then discussed. The plaintiff's response, by letter of 8 March 2016, was to warn the councillors of "the inappropriateness of such contact" with staff members or with persons purporting to speak on their behalf. He said: Whether it is initiated by the staff or by the councillors themselves it is still a breach of the Code of Conduct. The plaintiff's letter 8 March 2016 also included his answer to some of the staff complaints that had been discussed at the meeting. 1. Section 440(1) of the Local Government Act 1993 (NSW) provides that regulations made under the Act may prescribe a model code of conduct applicable to councillors and to staff of councils. Subsection (3) of s 440 requires that councils must adopt the model code, either with or without supplemental provisions. Subsection (5) requires that councillors and staff members must comply with the code. In November 2015 an amended model code came into effect and it was binding upon Lithgow City Council in 2016. 2. In 2016 cll 6.2, 6.7, 7.2 and 7.7 of the model code were as follows (extracted so far as relevant): 6.2 Councillors … must not: a) direct council staff other than by giving appropriate direction to the general manager in the performance of council's functions by way of a council or committee resolution, or by the Mayor … exercising their power under s 226 of the Act … c) contact a member of the staff of the council on council related business unless in accordance with the policy and procedures governing the interaction of councillors and council staff that have been authorised by the council and the general manager. 6.7 You must not engage in any of the following inappropriate interactions: a) Councillors … approaching staff and staff organisations to discuss individual or operational staff matters other than broader workforce policy issues. b) Council staff approaching councillors … to discuss individual or operational staff matters other than broader workforce policy issues. 7.2 The general manager … [must] provide councillors … with information sufficient to enable them to carry out their civic office functions. 7.7 Where the general manager … determines to refuse access to a document sought by a councillor … they must act reasonably. In reaching this decision they must take into account whether or not the document sought is required for the councillor … to perform their civic duty (see clause 7.2). The general manager … must state the reasons for the decision if access is refused. 1. Section 226 of the Act, referred to in cl 6.2(a) of the model code specifies the powers of the Mayor, in a series of paragraphs. So far as relevant for present purposes the section includes the following: 226 Role of mayor The role of the mayor is as follows - (n) in consultation with the councillors, to lead performance appraisals of the general manager 1. On 17 March 2016 Mayor Statham and Councillor Thompson met with the plaintiff. The Mayor raised further concerns with the plaintiff about how he was treating staff. The April 2016 survey of Council staff 1. Five of the six councillors who voted on 19 October 2016 to terminate the plaintiff's employment, being the five whom the defendants called to give evidence of their reasons, had each considered the report of a survey of Council staff that had been carried out in March and April 2016. In March 2016 Mr Greg Ptok was contracted by the Council's senior management to conduct the survey. He used a questionnaire designed by Voice Project Pty Ltd in conjunction with Macquarie University. The same questionnaire had been used by the workforces of a number of Local Government authorities in New South Wales. It appears to have had endorsement from, or at least recognition by, the Department of Local Government. The survey was carried out between 21 March 2016 and 15 April 2016. It was responded to by 164 of the Council's more than 200 employees. 2. The first section of the survey contained 113 questions to which each respondent was required to give a score of either zero for "Not applicable/don't know" or a number between 1 and 4 for responses ranging from "Strongly disagree" to "Strongly agree". Respondents were required to nominate their gender, age group, area of work and length of service. The survey report presented the results for the first 113 questions by showing the "% favourable", that is, the combined total score for "4 – Tend to agree" and "5 – Strongly agree", expressed as a percentage of all responses. The "% favourable" was compared to a benchmark which was said by the designers of the survey to be "the industry average". The survey results showed the degree of variance from the benchmark. The first 113 questions were grouped by topics and the survey report provided the average "% favourable" response across the three or four questions within each group and also the degree of departure of this result from the benchmark for responses to the relevant group of questions. 3. There were also four open questions at the end of the survey, inviting expressions of opinion on strengths of the organisation and ways it could be improved. The survey report set out in full each respondent's answers to these open questions. All responses were anonymous. 4. Scores for some of the first 113 questions reflected adversely upon Council's senior management. Senior management included the plaintiff as general manager and the group managers who reported directly to him: Mr Andrew Muir, Group Manager of Planning and Environment; Mr Ian Stewart, Group Manager of Operations; Ms Juli-Ann Brozek, Group Manager of Corporate and Community and Mr Michael McGrath, Group Manager Organisation and Development (human resources). In accordance with the usual structure of Local Government in New South Wales, the only employee selected by the Council itself was the General Manager, the plaintiff. He decided upon the employment or cessation of employment of all subordinate staff including the Group Managers. 5. Questions 1-3 were grouped under the heading Organisation Direction. The "% favourable" results for these questions, with the departure from benchmark shown in parentheses, were as follows: 1 I am aware of the vision senior management has for the future of this organisation: 25% (-25%). 2 I am aware of the values of this organisation: 43% (-29%). 3 I am aware of the overall strategy senior management has for this organisation: 26% (-19%). The overall result for this category of questions was 31% favourable (-24%). 1. Questions 36-39 were grouped under the heading Leadership and the % favourable results were as follows: 36 I have confidence in the ability of senior management: 31% (-22%). 37 Senior management are good role models for staff: 27% (-23%). 38 Senior management keep people informed about what is going on: 28% (-15%). 39 Senior management listen to other staff: 23% (-20%). The overall result for this category was 27% (-20%). 1. Question 115 asked respondents to list three ways in which the organisation could be improved. The survey report included the responses of 98 individuals to this open question. At least 16 responses identified a perceived failure of senior management to communicate with and listen to employees. A further 10 responses complained of "micro-management" or similar. Another 9 responses were negative towards senior management without specifying any particular matter of complaint. 2. Approximately a further 10 responses asserted "bullying" or similar objectionable behaviour by senior management towards workers, the following being examples (with numbers assigned for the sequence of the response in the part of the report dealing with question 115): 32 Management are bullies and they get away with treating their staff poorly. 46 stop bullying staff - senior management treat staff equally […] - senior management are bullys [sic] and [HR] manager looks the other way when GM bullys [sic] staff. 47 Management need to take on board their own advice regarding harassment and bullying. 51 Management at all levels could treat people with respect and as adults instead of using isolating tactics and demeaning language to bully staff. […] Rather than supporting staff when problems arise staff are bullied, in some cases to the extent that they have felt they have no option but to leave the organisation. This behaviour is evident from the most senior management down to middle management, in some cases. 81 Replace the General Manager. Eliminate harassment by the General Manager of staff. 84 Change the culture of the organisation (where bullying is tolerated and delivered via senior management and others across the organisation). 1. Approximately 10 of the responses were specifically critical of the plaintiff. In addition to the responses quoted and referred to above concerning "senior management", which necessarily included the General Manager, there were the following explicit calls for his removal: 11 Remove the GM. 54 Get ride [sic] of the General Manager. 60 New general manager. 73 New manager. 81 Replace the General Manager. 1. Most of the responses referred to generalised dissatisfaction amongst the workforce, thereby asserting complaints that had a basis wider than merely the grievance of the individual respondent. Some examples are as follows: 57 Address long-standing issues with segments of staff who are deeply unhappy. 58 Improve all over morale. 66 learning how to treat people like humans. 78 improve worker morale. 87 try and rid the negativity of the organisation and building [morale]. 1. The elected councillors at the time when the survey was conducted were as follows. Those whose names are marked with an asterisk were subsequently returned to office at the Council election conducted on 10 September 2016: *Ms Maree Statham (Mayor) *Mr W McAndrew *Mr R Thompson *Mr M Ticehurst Mr C Hunter Mr F Inzitari Mr J McGinnes Mr P Pilbeam Mr R Higlett 1. The elected councillors had a significant interest in being made aware of the contents of the survey report. It concerned the morale and cohesion of the workforce, which in turn was relevant to assessing the performance and effectiveness of senior management, including the plaintiff. Information such as that provided by the staff survey would be important to enable the councillors to discharge their responsibility to ratepayers of monitoring the plaintiff's fulfilment of his contract. As noted earlier, that contract, dated 22 September 2012, was due to expire on 21 September 2017. Under cl 5, if the plaintiff desired reappointment he was required to apply at least nine months before the termination date. The Council was required to respond, either by renewal or by declining the plaintiff's application, at least six months before that date. The plaintiff applied under this clause for renewal by letter dated 10 June 2016. The content of the survey report would be material to Council's decision on this application. 2. On 4 June 2016 Councillor Inzitari sent an email to the plaintiff recording his understanding that a consultant had been engaged "to conduct a staff satisfaction survey a few months ago" and requesting a copy of the results. By this date the plaintiff had had the results for over a month. On 5 June 2016 Councillor McAndrew emailed the plaintiff requesting that all councillors be provided with a copy. On Monday, 6 June 2016 the plaintiff replied: Yes (for all councillors), but I will need to come back to you later about this. No explanation was given in this response as to why copies of the report could not have been circulated to all members of Council forthwith. No satisfactory explanation of this was given in the plaintiff's evidence at trial. 1. By Wednesday, 8 June 2016 the report had not been distributed and on that date Councillor McAndrew followed up with this message: Any further on this? It is good governance to assess and get feedback on these issues. The plaintiff responded the same day as follows: Awaiting advice from the provider. Once we are in a position the information will be provided. No explanation was given in this email as to what "advice from the provider" was awaited. Nor has there emerged from the evidence in the case any such "advice" that the plaintiff could properly have waited for prior to distributing copies of the report as requested. 1. On 15 June 2016, when the report had still not been provided to members of the Council, Councillor Ticehurst sent to Ms Newton, as personal assistant to the plaintiff, a Notice of Motion for an ordinary general meeting of the Council on Monday, 27 June 2016. This was probably intended as a reference to 27 July 2016. A meeting of Council took place on that date. Councillor Ticehurst's email included a proposed motion in the following terms: That the General Manager and/or Senior Council Officers provide a report to this Ordinary Meeting of Council on the Lithgow City Council recently conducted Staff Satisfaction Survey and Customer Satisfaction Survey. 1. On 20 June 2016 the plaintiff sent an email to Councillor Ticehurst in the following terms: In reference to your Notice of Motion on the Staff Satisfaction Survey and Customer Satisfaction Survey I advise that the Staff Survey is an operational matter and therefore the dealing with such business at Council would be unlawful. Here I would refer you to Clause 240(2) of the Regulation which provides: 240 Agenda and business papers for Council meetings (2) The General manager must not include in the agenda for a meeting of the council any business of which due notice has been given if, in the opinion of the general manager, the business is (or the implementation of the business would be) unlawful. The general manager must report (without giving details of the item of business) any such exclusion to the next meeting of the council. I would be happy to accept the NOM in relation to the Customer Satisfaction Survey. Please advise on how you wish to proceed with this. 1. As at 20 June 2016 the plaintiff had evaded and fobbed off the requests of the elected councillors for copies of the survey report for two weeks. I do not accept that he genuinely considered that he had any justification for withholding the document. I am satisfied that he withheld it because he thought, understandably, that the report would be read as reflecting adversely on his performance as general manager. He wished to defer for as long as possible Council's consideration of the report. It tended to confirm the allegations that had been raised with the plaintiff by the group of councillors who met with him on 9 February 2016. 2. The plaintiff's approach in his earlier letter of 8 March 2016 (see [53] above), namely, discouraging councillors from enquiring into his performance as general manager by asserting that such enquiries would be an improper breach of the code of conduct, was again manifest in the plaintiff's dogged attempts to withhold the staff survey in June and July 2016. It may be that if elected members of the Council had embarked upon any attempt directly to manage or address grievances expressed in the survey results they would have intruded into the operational sphere for which the plaintiff and senior managers under him had exclusive responsibility. However, it was preposterous for the plaintiff to suggest in his letter of 20 June 2016 that the Council would be so intruding merely by calling upon him to report upon the results of the survey, in circumstances where he had for over two weeks failed to comply with insistent demands in writing for production of the results. 3. There is nothing in the code of conduct that would make it "unlawful" for councillors to call for a report from the general manager upon the outcome of the staff survey, as proposed in Mr Ticehurst's notice of motion. The request for this information was directly relevant to the duty of the Mayor and of the councillors in consultation with her to undertake "performance appraisals" of the plaintiff: s 226(n) of the Local Government Act. In cross-examination of Mr Ticehurst the plaintiff's counsel suggested that Mr Ticehurst's notice of motion required the survey report to be produced to councillors in a meeting and that that was inappropriate, whereas production of the document privately to individual councillors might not be. I reject that distinction. There would not be any breach of the model code if the document was handed out to councillors at a meeting. In any event, if the distinction is valid, far from justifying the plaintiff's rejection of Mr Ticehurst's notice of motion it would raise the question why the plaintiff did not simply distribute the report, outside of any meeting, promptly when he was asked for it. 4. By 21 June 2016 the plaintiff still had not provided members of the Council with the survey report, nor had he given any further update or explanation regarding his delay. In those circumstances Mayor Statham justifiably made the following demand by email to the plaintiff: Can you please provide me with a copy of the staff survey on my desk prior to 3pm today. This deadline was not complied with. 1. On 1 July 2016 the plaintiff sent to each councillor, by ordinary post, a bland letter stating that an Employee Engagement Survey had been conducted and that an excellent response had been received. The letter stated the following: [Management] have been working through the results with the consultant in order to design a process that will utilise the insights gained from the survey to maximum effect. Our next step is to spend time setting up a consultation process involving the staff Consultation Committee, the Executive team and other staff from different parts of the organisation. This consultation process will provide an opportunity for testing of the survey results, review and discussion of organisational values and the development of an action plan for improvement. 1. The letter mentioned that one of four "most challenging areas for improvement highlighted in the report" was "Leadership/Communication". The letter still did not enclose the survey report, nearly one month after it had first been requested by Councillor Inzitari. The usual manner of distributing hard copy documents was for the plaintiff or his assistant to place a copy on the Mayor's desk and to put a copy in the assigned pigeonhole of each of the other councillors. In cross-examination the plaintiff could provide no satisfactory explanation for his having adopted the unusual course of sending out his uninformative letter of 1 July 2016 by ordinary post. I am satisfied that he did it in order to create a plausible impression of endeavouring to communicate with the councillors in response to their request, while actually continuing to evade that request. 2. Mayor Statham sent an email to the plaintiff on 12 July 2016 requesting advice as to "when the staff survey will be provided to the councillors". The plaintiff replied two days later in the following terms: I am puzzled by your email as I have discussed this with you previously. As you would be aware letter was sent to councillors about the survey two weeks ago. This email carried into effect what I infer to have been the plaintiff's purpose in sending by ordinary post his obfuscatory correspondence of 1 July 2016; that is, the letter provided plausible deniability with respect to his inaction on Council's request for the report. 1. At Council's meeting of 27 July 2016 a resolution was passed unanimously directing the plaintiff to provide all councillors with a copy of the staff survey report by 5:00 pm on Wednesday, 3 August 2016. This item of business was placed before the meeting by the Mayor pursuant to her power to raise any matter without prior notice. The plaintiff was thereby deprived of any opportunity to block the inclusion of such a motion on the notice paper. The direction to provide the document by 3 August 2016 was complied with. The report was thus produced under compulsion two months after it had first been requested. Each of the nine copies issued by the plaintiff was watermarked with the word "Confidential" and a unique number, from 1 to 9. Any copying would be traceable to a culprit. This was a blunt intimation of the plaintiff's mistrust of the councillors. His covering letter stated that advice had been sought "on the need for confidentiality given that key personnel in Senior Management of Council including the Mayor and General Manager have been identified". I do not read the survey report as recording any criticism of Mayor Statham. The plaintiff's covering letter was a disingenuous attempt to involve Ms Statham in his restriction on dissemination, the real purpose of which was to protect himself. 2. At an extraordinary meeting of Council on 26 August 2016 the staff survey report was considered in a session closed to the public. Council resolved to defer further consideration of the report until a new council had been elected at the ballot scheduled for 10 September 2016. Five new councillors were elected on that occasion. On 28 September 2016 the new Council chose Mr Stephen Lesslie as Mayor. The Council then comprised the following members, those whose names are marked with an asterisk being the ones re-elected from the previous term: *Ms Maree Statham *Mr M Ticehurst Ms CL Coleman Mr G Cox Mr S Ring Mr J Smith Mr S Lesslie (Mayor) *Mr W McAndrew *Mr R Thompson The Council meeting of 19 October 2016 1. On 11 October 2016 Messrs Cox, Ring and Smith lodged with the new Mayor a written request for an extraordinary meeting for purposes that included: 1. To review the recent staff survey to ensure that the Council is operating effectively. 3. The Council review the most effective process to review the performance of the General Manager. 1. Pursuant to this request a meeting was convened on 19 October 2016. The Council moved into closed session to consider the staff survey report and requested the plaintiff, as well as members of the public, to leave the meeting while this was dealt with. Mr Ticehurst moved that the plaintiff's contract be terminated immediately and that Mr Muir, Group Manager of Planning and Environment, be appointed temporarily to the position. Mr Ring seconded this. The Mayor moved that the motion was out of order on the basis that it was outside the scope of the notice of meeting. However, a motion of dissent was carried and the motion was reinstated. 2. Mr McAndrew moved an amendment to the effect that the plaintiff be advised he would not be reappointed after his contract expired on 21 September 2017 and that the Mayor, Deputy Mayor and general manager engage an external consultant to review the Council's management "behaviour" and practices and report back to Council. Standing orders were suspended and a full debate took place concerning Mr Ticehurst's motion for immediate termination and Mr McAndrew's amendment. At the conclusion of this the amendment was lost. Mr Ticehurst's motion was then carried by 6 votes to 3, those in favour being the first six the councillors listed at [82] above. 3. The resolution passed in closed Council was treated as a recommendation. Council then resumed its open session, the Mayor "announced the recommendations of the Closed Council" and Council adopted, with the same division of votes, the resolution that had been adopted in closed session. Subsequently the Mayor obtained legal advice confirming his view that the resolution for termination of the plaintiff's employment had been outside the scope of the notice of meeting and was not lawfully passed. This was rectified at a second meeting on 31 October 2016, when the resolution was passed again, with the same division of votes, this time upon proper notice. Evidence of Mr Ticehurst 1. Over the term of Council from 2012 to 2016, Mr Ticehurst had received numerous complaints and comments, made directly to him in informal circumstances, concerning the treatment of Council staff by managers, including the plaintiff. These complaints came from outdoor staff, including those who worked on the roads and in public gardens, and from their family members. Harassment in the performance of work was alleged, including by video recording of alleged idleness. 2. On 29 July 2016 Mr Ticehurst received an email from the wife of Mr Stewart, Group Manager of Operations. The email complained of alleged unreasonable treatment by the plaintiff in relation to the timing of Mr Stewart's annual leave. He had worked for the Council for 35 years. All councillors received a copy of this email. 3. Mr Ticehurst read the whole of the survey report upon receiving it on 3 August 2016. He gained the impression that it recorded multiple allegations of bullying and harassment of staff by the plaintiff. He considered that this revealed "a major problem within the council". He regarded it as tangible confirmation of the anecdotal information and complaints he had received over the preceding years. 4. During August Mr Ticehurst became aware of a code of conduct complaint made against the plaintiff by Ms Brozek, Group Manager of Corporate and Community. The substance of this complaint is in evidence in a chain of emails between Ms Brozek and Ms Statham in her then capacity as Mayor. On 30 June 2016 Ms Brozek wrote the following: […] I wish to follow-up my complaint regarding the repeated bullying activities which are occurring at Lithgow City Council. At our meeting I raised concerns regarding the conduct of the General Manager. I believe he is using bullying and intimidation behaviour with both myself and with many other staff here at Council. 1. Ms Statham responded on 1 August 2016 to the effect that she considered herself "unable to discuss operational issues with staff". She referred Ms Brozek to other avenues, including the staff union and the Office of Local Government. Ms Statham said: I have been personally "warned" by the General Manager that [if] I did speak with staff I would receive a code of conduct. 1. Ms Brozek replied by email of 4 August 2016, which included the following: My complaint has not been resolved and the bullying continues in this organisation putting many staff at risk, including myself. The next day Mr McGrath, Organisational Development Manager, wrote to Ms Statham advising that Ms Brozek had submitted a written complaint to SafeWork NSW alleging that the plaintiff "has engaged in bullying behaviours directed at her." Ms Statham circulated this advice to all councillors. 1. Mr Ticehurst took a week off work in the lead up to the election of 10 September 2016 and had extensive contact with ratepayers during that period. He said that he received numerous comments, including from people attending polling booths, in which complaints were made about poor management of the Council. The complaints he received were to an effect similar to the complaints he had read in the survey report, concerning senior management including the plaintiff. 2. On 10 October 2016 Mr Ticehurst attended a meeting of the newly elected Council at which 69 members of the public were present. Comments and questions from the public were invited. A Ms L Roebuck made a long statement to the meeting concerning what she alleged was a lowering of Council staff morale and motivation, said to be observable by the local business community. She said: Unhappy staff, lack of support for staff, micromanaging and general poor management are issues that much of the town is talking about. We all know people and people know people who know people. Word gets around in a small community. The Council and its staff appear to be in trouble. […] This issue has been festering for some time. The staff survey completed earlier this year has not been made public. There are, however, many anecdotal stories of poor morale, unhappy staff, lack of management support, bullying by some staff and management, and a generally poor working environment. 1. Ms Roebuck said that a large number of senior and experienced staff had left the Council within the past six months. Her allegations were summarised in a publication entitled "Lithgow Mercury" and were circulated by email to members of the Lithgow Ratepayer's Association on 17 and 18 October 2016. 2. Mr Ticehurst gave evidence that he supported the motion for immediate termination of the plaintiff's employment because of the allegations of bullying and harassment that had been levelled against the plaintiff, including those by Mr Stewart and Ms Brozek and more that were contained in the staff survey report. He voted as he did because he was concerned about the potential cost of litigation if the numerous people who had voiced complaints should pursue them for compensation. He gave this answer: [At] the end of the day, we felt that this [that is, retaining the plaintiff as general manager] was going to cost us a hell of a lot more. The legal actions […] – If this went into the public domain, which it would've, the reputation of the Council [and] the councillors […] would have been, why didn't you do it [that is, terminate the plaintiff's employment] earlier, why didn't you do something about it. Why did you let it fester? Why did you do nothing for workplace safety for the employees and so on. 1. I accept that the apparent discontent of staff and the allegations against the plaintiff of bullying, harassment, intimidation and the like were the dominant reason for Mr Ticehurst's vote. This is supported by his reaction upon first seeing the staff survey report. On 3 August he wrote to the Mayor and other councillors in these terms: I am writing in response to our belated final receipt today of the attached Lithgow City Council Staff Survey, previously strongly withheld for many weeks by the General Manager, Roger Bailey and subsequently us having to resolve and direct that the General manager provide the 258 page document to all councillors. After reading what can only be described as a most damning internal report, it appears that there is an amount of outstanding serious allegations of high-level systemic bullying and harassment occurring within the Lithgow City Council, ie … senior management are bullys [sic] and hR manager looks the other way when GM bullys [sic] staff. 1. While I accept that these were Mr Ticehurst's reasons for wishing to end the plaintiff's contract I make no finding as to whether this was a sound decision on his part. The defendant did not plead the truth of any of the alleged imputations. Consequently, no evidence was tendered by either party to establish or to disprove that any member of staff had a legitimate grievance concerning his or her treatment by the plaintiff, that could be substantiated by reliable, admissible evidence. That is a subject that has not been enquired into to any extent in these proceedings. Evidence of Ms Coleman 1. During her election campaign leading up to 10 September 2016 Ms Coleman had heard concerns expressed that the Council was a poor work environment. These complaints referred to management of the Council generally, without nominating the plaintiff in particular. Ms Coleman attended the Council meeting on 10 October 2016 and was "concerned and quite alarmed" by Ms Roebuck's allegations that the Council work environment had become "toxic". 2. Ms Coleman received a copy of the staff survey report on about 11 October 2019, when the meeting for 19 October was called. She described her reaction to it as follows: I was quite concerned about the welfare in regards to the staff and quite shocked at some of the comments made in that survey. 1. Ms Coleman said that at the meeting on 19 October 2016 the survey report was discussed. She supported Mr McAndrews' amendment as she thought this could potentially save the Council money but when the amendment was lost she voted for immediate termination of the plaintiff's employment. Ms Coleman said that she did so because of "the evidence of the survey". She regarded the survey as sufficient evidence. Having regard to the impression she had gained from reading the survey and her concern and alarm at Ms Roebuck's allegations, it is clear that discontent amongst staff and allegations against the plaintiff of bullying and harassment were the cause of her voting as she did. Evidence of Mr Cox 1. Mr Cox was also present at the 10 October 2016 meeting when Ms Roebuck aired her allegations. He received and read a copy of the staff survey report about a week before the meeting of 19 October. At the meeting he enquired when the survey report and been tabled and whether any changes had been made to address it. He understood that there had been no responsive changes. He voted in favour of immediate termination of the plaintiff's contract because he thought the survey report was "pretty damning" and that the Council was in "disarray". Mr Cox did not know whether the plaintiff "had done anything wrong himself" but assessed the survey report as being "pretty negative of management in general". Evidence of Mr Ring 1. From about June 2016 Mr Ring was considering standing for Council and commenced to attend its meetings in order to get a sense of how it operated. He was aware from that time of "rumours in the community about bullying, poor culture, workplace culture" within the council workforce. Following his election, in late September 2016 Mr Ring asked the plaintiff when Council would be dealing with the staff survey and he was told "we'd eventually get it". This prompted him to call a meeting to have it provided to the councillors and discussed. 2. Mr Ring attended the meeting on 10 October 2016 at which Ms Roebuck spoke. He received the staff survey report the next day and read it two or three times. With respect to the position of the General Manager, he considered that the report was "the only thing I could make a decision on". He thought that it "clearly demonstrated a culture of bullying and harassment. … [It] did refer to senior managers and a culture of bullying". 3. Mr Ring said that the discussion of the plaintiff's position in the closed Council on 19 October 2016 continued for about two hours. At the end of that he voted in favour of immediate termination for reasons that he expressed as follows: The council, as elected representatives, only employ one person, that is the general manager. Regardless of whether or not he was responsible for bullying and harassment, he was obviously aware of the issues. The only person that could be sanctioned was the general manager, so a decision was made to terminate. There are three clauses in the general manager's contract. The third clause allows for termination without reason. It was considered that was the most appropriate way to go, although, that does cost - I think there was a cost of around 300,000. The cost of not terminating out of lack of productivity and being able to move forward could easily have been far in excess of that. Evidence of Mr Smith 1. Mr Smith attended the Council meeting on 10 October 2016 and heard Ms Roebuck's address. When he received the staff survey report shortly afterwards he read about 80% of it. He concluded that the morale of the Council workforce was very poor. He had heard this from ratepayers during his campaign for election. On 19 October 2016 he voted for the immediate removal of the plaintiff for reasons that he explained in the following terms: I just thought that he's the man at the top […] the staff survey was terrible, very damaging as far as the morale. The morale I've never seen it in my life and I've worked in the mining industry in the power industry and the survey was just - I couldn't get over some of the comments … in regards to the morale. … I think we needed a new guide, a new leadership in that role and it wasn't just the general manager … the staff survey just said that senior management - a lot of people weren't happy with senior management overall. Ms Statham's reasons 1. Ms Statham did not give evidence. She was aware of the Rum Charles report and had attended the meetings with the plaintiff on 9 February and 17 March 2016 at which he had been confronted with information about staff complaints concerning his treatment of them. It is apparent from the documents that she had details of the complaints from Mr Stewart (29 July 2016) and Ms Brozek (4 August 2016) about their treatment by the plaintiff. Ms Statham attended a meeting with Mr McAndrew and the plaintiff on 22 September 2016 at which she put to the plaintiff that staff were leaving because of his manner of dealing with them and that there were further allegations of bullying. Ms Statham was well aware of Ms Roebuck's address to the Council meeting of 10 October 2016. She may well have been the source of Ms Roebuck's information, as Ms Roebuck had stood for election on 10 September 2016 in political association with Ms Statham. Ms Statham was, of course, also well aware by 19 October 2016 of the content of the staff survey. 2. Ms Statham's reasons for supporting termination of the plaintiff's employment are expressed at pars 4 and 8 of the published Matter. In substance she told the television reporter that her vote was based upon discontent of Council staff and allegations of mistreatment of them by the plaintiff and senior managers under him, such as the complaints expressed in the staff survey report. I find no reason in the evidence to doubt that this was the dominant, actuating reason for Ms Statham's vote. 3. The plaintiff gave evidence and adduced documents in an endeavour to show that Ms Statham was hostile to him and voted upon his dismissal for a different reason. It appears that the Progress Association of a very small community at Meadow Flat had on 27 July 1999 resolved to name a hall in that locality the "Mac Scott Memorial Hall". The late Mac Scott was Ms Statham's father and had been active in the Meadow Flat community. In March 2016 Council management invited members of the community to comment on a "proposal to rename" the hall as the Mac Scott Memorial Hall. More accurately, what was proposed was confirmation of the name that had been adopted by the Progress Association 17 years earlier. 4. A number of community members responded, addressing their replies either "To whom it may concern" or to the general manager or to Mr Muir or with no salutation at all. One of these responses was in favour of confirming the name "Mac Scott Memorial Hall", six others were against. None of these responses was marked "confidential" or in any other way indicated that the writer wished to conceal his or her identity. Nevertheless, when the responses were provided to councillors for their consideration prior to passing a resolution on the subject, Council staff took it upon themselves to redact the names and addresses of the individuals who had submitted the responses. 5. In my view there was no justification for this redaction. It was a very great presumption for Council staff to intrude upon communications from ratepayers to their elected Council representatives in this fashion. There could be many reasons why it might be important both for those making representations and for the councillors receiving them to know the identities of those who expressed competing views. For example, in such a small community it is possible that the view of a particular individual might carry special weight with councillors, particularly if it were someone with long family history in the area and/or someone who had made notable contributions to community life. On the other hand an individual writing in opposition to the proposal might be recognised as having a very personal and unrepresentative view on the matter, or as being a perennial objector to everything, with the result that that person's objection might be discounted. Given the personal and possibly emotional nature of the issue, councillors might wish to contact objectors to ascertain the strength of feeling on the matter or, after the vote, to seek to maintain community harmony by explaining the Council's reasons for its decision. 6. At the meeting on 21 March 2016 Council resolved to confirm the name "Mac Scott Memorial Hall". Ms Statham absented herself from the chamber during consideration of this proposal, in view of her interest arising from the late Mac Scott having been her father. Subsequently, on 16 May 2016, Ms Statham requested the plaintiff to provide unredacted copies of the submissions from community members and a copy of what she referred to as a "petition". The plaintiff refused and Ms Statham said that this created "suspicion in my mind of the validity of this correspondence". Further correspondence ensued between Ms Statham and the plaintiff but the unredacted documents were not provided. In cross-examination the plaintiff denied that he had made the redactions. Whether he did or not, the fact is that he provided the documents to the councillors only in their redacted form and insisted upon maintaining the redaction. 7. Both the plaintiff and Councillor Thompson gave evidence that as a result of this controversy relations between the plaintiff and Mayor Statham soured. It is apparent from the correspondence that Ms Statham was highly irritated by the plaintiff's stance over the matter. I do not accept that this translated into a resolve to bring about his dismissal irrespective of whether that course was justified in the interests of ratepayers and the community at large. The evidence recited above shows that from at latest 9 February 2016, well before the Meadow Flat issue arose in May of that year, Ms Statham had a genuine and ongoing concern about staff discontent, particularly complaints about the manner in which the plaintiff treated those working under him. Other evidence shows that Ms Statham continued to work in a professional manner with the plaintiff after May 2016 notwithstanding her frustration about the unredacted community submissions being withheld from her. 8. In my view the dispute over provision of the Meadow Flat documents assumed a much greater importance in the mind of the plaintiff than in Ms Statham's decision-making. This conclusion is supported by the fact that after the plaintiff's employment had been terminated he made a complaint against Ms Statham under the code of conduct concerning her demands for the Memorial Hall submissions. The code of conduct complaint was independently investigated and it was found that Ms Statham had been unjustified in pressing for the names of those who had made submissions or objections. She was required to apologise. The investigator's report concentrated on the perceived absence of any "genuine need or entitlement" with respect to this information. One of the objectors informed the investigator that she had considered her submission confidential, notwithstanding that none of the documents tendered was so marked. The investigator did not inquire into whether redaction of the submissions by Council officers had been justified in the first place and, as already stated, in my opinion it was not. In cross-examination the plaintiff could not justify it. 9. With due respect to the conclusions of the code of conduct investigator, this dispute was generated by the plaintiff's unwarranted interference in open communication between community members making representations and the elected councillors who were called upon to make a minor decision of a political nature. Evidence of minority Councillors Lesslie and Thompson 1. Mayor Lesslie gave evidence that he opposed the motion for termination of the plaintiff's contract and supported Mr McAndrew's amendment because (1) he thought the staff dissatisfaction as recorded in the survey report could be overcome; (2) he considered it unfair to the plaintiff to terminate his employment in the absence of particulars and substantiation of the non-specific allegations and complaints in the survey report; (3) five of the councillors, including himself, were new and ought not to vote for termination without having worked with the plaintiff for a sufficient period to enable them to form a view about his merits and (4) the proposer of the motion was Mr Ticehurst who was about to be disqualified from office by reason of repeated breaches of the code of conduct and was putting forward a significant resolution for which he would not be taking responsibility as an ongoing member of Council. Mr Lesslie thought that under Mr McAndrew's amendment the plaintiff could continue to serve out the final year of his contract and if during that period the new councillors formed a satisfactory view of him there might be a resolution to offer him renewal, after all. 2. Mr Lesslie had had considerable experience as a councillor and Mayor of Drummoyne. It might be thought that his view of the situation showed a great deal of wisdom. However the merits of Council's resolution of 19 October 2016 are not for the Court to rule upon. Mr Lesslie's evidence is only relevant for such light as it may shed upon the motivations of those who voted in favour of the resolution. In chief Mr Lesslie said that the staff survey was "never ever mentioned in the debate" during the closed session of the Council meeting. However, in cross-examination he agreed that Mr McAndrew told the meeting that, given the results of the survey, the investigation that was proposed by his amendment would be justified. In cross-examination Mr Lesslie qualified his earlier evidence to the extent of saying that the results of the survey were not discussed "in any substantive way at all". 3. I am satisfied that the staff survey results were discussed and, at the least, were referred to by those who voted in the majority as justifying their support for Mr Ticehurst's motion. In Mr Lesslie's recollection of the debate he has, in my view, discounted the significance of the survey because of the lack of weight that he attached to it himself, rather than on the basis of a memory that it was not referred to or relied upon by others. Mr Lesslie had read the survey report soon after being elected mayor. He found it lacking in "specifics". He noted that there were no names or occasions given with respect to who had been bullied or harassed. He said that he found it impossible to discuss the survey with others prior to the meeting because of this lack of particularity. In his words, "you couldn't discuss anything in it because … there was nothing to discuss". Mr Lesslie's assessment accords with my own. The staff survey report contains no useful particulars or substantiation, which is no doubt a result of the responses having been anonymous and of there not having been any follow-up investigation or attempt to address grievances. 4. Mr Lesslie said he was not prepared to treat the survey report as important without the kind of substantiation to which he referred. However he accepted that other councillors regarded it as important notwithstanding the absence of specifics such as names of complainants. Mr Lesslie had not received complaints from members of the public about mistreatment of Council staff during his extensive doorknocking campaign prior to the election. Councillor Smith had reported to him that he had heard such complaints but when Mr Lesslie asked "Who are these people?" he did not get answers. 5. Mr Lesslie's evidence does not negate the evidence from those who voted in the majority, to the effect that they did so because of discontent amongst staff and allegations of bullying and harassment. 6. Mr Thompson gave evidence that he had reasons similar to those of Mr Lesslie for having opposed the motion for dismissal of the plaintiff. Unlike Mr Lesslie he recalled clearly that the councillors who supported the motion "expressed their concerns about the content of the survey", with the exception of Mr Cox whom Mr Thompson did not recall having entered the debate at all. Mr Thompson also recalled that Mr McAndrew referred at the meeting to the Rum Charles report and said that he had concerns about the content of that document as well, although he thought those concerns could be addressed by his amendment under which the plaintiff's contract would simply not be renewed as opposed to being terminated. Conclusion on truth of imputation 17b 1. I conclude, from the evidence of Ms Coleman, Messrs Ticehurst, Cox, Ring and Smith and from the evidence about Ms Statham's concerns, registered over 15 months, that all of these councillors voted on 19 October 2016 and again on 31 October 2016 for the immediate termination of the plaintiff's employment either because of discontent amongst staff, or because of allegations of bullying and harassment by the plaintiff, or both. As the decision on the motion was a collective one, taken by the six councillors together, the combination of their respective reasons must be taken as the cause of the plaintiff's dismissal. It follows that I am satisfied that imputation 17b is true: the plaintiff was dismissed "because of discontent amongst staff and allegations of bullying and harassment". Harm to reputation additional to the effect of contextual imputation 17b 1. If, contrary to my view, any of the four imputations pleaded by the plaintiff was conveyed by the Matter, I would not consider par (b) of s 26 of the Defamation Act satisfied. Putting that conclusion in affirmative terms, I consider that any of the plaintiff's imputations, if conveyed, would do further harm to the reputation of the plaintiff notwithstanding the truth of contextual imputations 17a and 17b and notwithstanding the facts, matters and circumstances that establish the truth of those two imputations: John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541 at [5] (Spigelman CJ); O'Brien v Australian Broadcasting Corporation (2017) 97 NSWLR 1; [2017] NSW CA 338 at [200]-[201] (McColl JA). 2. I do not consider that the contextual imputations or the facts, matters and circumstances that establish their truth do any significant harm to the reputation of the plaintiff. That the plaintiff was dismissed because staff working under him were discontented and because certain unidentified persons made allegations of unparticularised "bullying and harassment" does not reflect adversely upon him. It is neutral with respect to his reputation as a general manager. The circumstances establish no more than that the plaintiff's employer reacted to perceived discontent and expressions of grievance which it had not investigated, let alone found proved. The facts, matters and circumstances that establish the truth of the contextual imputations leave open that the plaintiff may have been blameless and that the councillors who voted for his dismissal were timorous, capricious or, unwise, or all of those things. If the plaintiff's imputations were conveyed they would have harmed the plaintiff's reputation beyond any effect of the contextual meanings. Issue 4: statutory qualified privilege under s 30 1. With respect to the issue under s 30(1)(c) of the Defamation Act, namely, whether the conduct of the defendants in publishing the Matter was reasonable in the circumstances, I can do no more than make findings of fact on each of the circumstances that the Court may take into account on this question, as provided for in subs (3). As the defendants are corporations they acted in the publication of the Matter through their agent Mr Wilson as the journalist who composed the news item. It is his conduct that the defendants would have to do show was reasonable in order to engage the defence: Morgan v John Fairfax & Sons Ltd (1991) 23 NSWLR 374 at 382E. 2. Paragraph (a) of s 30(3) refers to "the extent to which the matter published is of public interest". The evidence satisfies me that the activities of the Council of the City of Lithgow have a significant impact on the life of that community and that Council's decisions are followed closely. A local radio station frequently reports upon the actions of Council and the outcome of Council meetings. An association of ratepayers has a Facebook page and posts entries on that page, as well as distributing emails. These contain comments upon Council actions and decisions. The Council is one of the largest employers in the Local Government area. The general manager of the Council is, by virtue of his office, one of the more important persons in the community. The Council decision that was the subject of the impugned news item would have a substantial impact upon the funds available to be expended on projects of benefit to the community. On any view the Matter published was of significant public interest, particularly amongst the defendants' audience. 3. Paragraph (b) refers to the extent to which the matter published relates to the performance of the public functions or activities of the plaintiff. In this case the imputations, if conveyed, were concerned with the discharge by the plaintiff of his duties in a publicly funded capacity. This consideration is material in the present case and overlaps with par (a), in that the nature of the plaintiff's position as general manager attracted public interest. 4. Paragraph (c) of s 30(3) refers to "the seriousness of any defamatory imputation carried by the matter published". I cannot sensibly make any finding upon that consideration because I am not satisfied that any defamatory imputation was conveyed. 5. Paragraph (d) of s 30(3) is concerned with distinctions drawn in the published matter "between suspicions, allegations and proven facts". In the present case, for reasons already given in relation to whether any of the alleged imputations are conveyed, I find that the Matter distinctly stated that bullying and intimidation of staff by the plaintiff was a matter of allegation, not proven fact. The application of s 30 on a final basis would only arise if one or more of the plaintiff's imputations should be held on appeal to have been conveyed, contrary to my own conclusion. In that situation, my findings about the clear distinction between allegations and asserted facts would no doubt also have to be reconsidered. In the hypothetical circumstances in which I am recording findings of fact relevant to s 30, it is not practical or useful for me to say any more about subs (3)(d). 6. Paragraph (e) introduces the consideration of whether it was in the public interest for the Matter to be published expeditiously. It clearly was. The Matter provided information about the reasons of those councillors who voted for the immediate termination of the plaintiff's employment and the reasons of the minority who opposed this course. It was highly desirable that the ratepayers should have information as quickly as possible to explain why a decision of this importance was taken, together with the opposing point of view. Although the first defendant achieved expeditious reporting of the subject it did not in my view act with undue haste. Mr Wilson took sufficient time to obtain and report the points of view of both sides of the split vote concerning the plaintiff's departure. 7. Paragraph (f) of s 30(3) refers to "the nature of the business environment in which the defendant operates". In this case the first defendant was operating a commercial television station. Necessarily, to maintain relevance and a wide audience it would have been imperative for the first defendant to report a news item of significance to the Lithgow community such as this and to do so promptly. Upon the occurrence of an event as significant as this for local government in the Lithgow area, the first defendant could not expect to retain viewers and advertisers if it did not provide timely news coverage of what had occurred. 8. Paragraphs (g) and (i) of s 30(3) are concerned with "the sources of information in the matter published and the integrity of those sources" and with "any other steps taken to verify the information" in the Matter. One of Mr Wilson's sources was Ms Statham from whom he had frequently obtained information during the 10 months preceding October 2016. He had commenced working for the first defendant in this region in December 2015. Mr Wilson had found Ms Statham highly reliable with respect to the information she had provided on previous occasions and he considered her to be "extremely credible". Mr Wilson's second source was Mayor Lesslie, whom he also regarded as credible having regard to the office he held and his conduct in Mr Wilson's interactions with him. Nothing in his dealings with the Mayor or in the information that Mr Wilson gained from other sources gave him any reason to doubt the veracity of what the Mayor told him. 9. In addition to these sources Mr Wilson had gained an understanding that there was discontent and lack of morale amongst Council staff from discussions earlier in the year with Ms Statham, with other councillors and with Council employees. Ms Statham had informed him that there had been a staff survey and that it had revealed "discontent, lack of morale, allegations of … micromanaging". Prior to 19 October 2016 Mr Wilson had read Facebook pages and emails of the Lithgow Ratepayers Association and had read the Lithgow Mercury online, all of which had referred to the survey and to discontent and lack of morale that "was really impacting council staff". Some of these publications had referred to Ms Roebuck's allegations concerning the state of staff relations within Council, as submitted by her to Council at the meeting of 10 October 2016. 10. Mr Wilson was diligent in collecting information on the state of affairs within the council workforce over some months prior to 19 October 2016. During that period he actively sought, from a wide range of sources, confirmation of such allegations and rumours as came to his notice. He expressly and deliberately refrained from submitting to the first defendant any news item about discontent within the council workforce or allegations concerning the plaintiff until a reportable event had occurred. When Council resolved to terminate the plaintiff's employment Mr Wilson's prior diligence and alertness enabled him to assess the information given by Ms Statham and Mr Lesslie in their interviews and to form a judgment, upon a sound basis, that it was credible and could be safely broadcast. The narrative portions of the impugned Matter, spoken by Mr Wilson himself, were founded upon intelligence gathered by him over the preceding months from people who were in a position to know the state of affairs amongst Council staff. 11. All of these considerations arising under s 30(3)(g) and (i) strongly support the reasonableness of publication of the Matter. 12. Paragraph (h) is concerned with whether a reasonable attempt was made by the first defendant to obtain and publish a response from the plaintiff. The evidence referred to at [4] and [5] above satisfies me that a reasonable attempt was made. Against this the plaintiff's counsel cross-examined Mr Wilson to suggest that he should have tried harder to contact the plaintiff, for example through Facebook. There is no merit in that suggestion. Ms Newton's email message that a television reporter wished to obtain "your side of things" was received by the plaintiff at about 11:40 am on 20 October 2016. The plaintiff expressly rebuffed the approach in his reply to Ms Newton at 11:47 am and Ms Newton related this to Mr Wilson. Why should he have tried another medium of communication? If he had pursued the plaintiff, despite his offer of an interview having been clearly declined, the plaintiff would have been entitled to complain of being hounded. 13. The plaintiff's counsel also cross-examined Mr Wilson to the effect that there was no urgency about publishing this news item and that it would have been reasonable to defer doing so while giving the plaintiff more time to come round to a willingness to be interviewed. That is similarly unmeritorious. For reasons given above it was in the public interest that the outcome of the Council meeting and the reasons for and against the vote should be made known to the public promptly. The first defendant had its own commercial pressures, dictating that news of interest of the community be broadcast expeditiously. I reject the plaintiff's proposition that reasonable conduct required a news organisation to defer publishing such a matter until the plaintiff should change mind about wishing to present his side of the story. 14. Section 22 of the Defamation Act 1974 (NSW) (repealed) was the predecessor of s 30 of the 2005 Act and was in very similar terms. A series of decisions on s 22 considered the extent to which the reasonableness of the publisher's conduct, for the purposes of the statutory defence of qualified privilege, may depend upon or be affected by the author's honest belief in the truth of the matter published. These decisions were collected and considered in Morgan v John Fairfax & Sons Ltd at 382E-392E (Hunt A-JA). It is not necessary for me to reach a concluded view about the extent to which the principles expressed in Morgan v John Fairfax & Sons Ltd apply to s 30(1)(c) of the 2005 Act. Assuming that those principles are applicable, I make the following findings and observations regarding the facts of the present case. 15. In Morgan v John Fairfax & Sons Ltd Hunt A-JA said that in determining whether the defendant's conduct was reasonable in the circumstances, the defendant must in most cases establish his honest belief in the truth of what he has written (at 385G). At 385B-E his Honour cited Barbaro v Amalgamated Television Services Pty Ltd (1989) 20 NSWLR 493 for the proposition that this may not be necessary "in the case of electronic publications, such as the telecast of a videotape or film". The reason for this exception is that such a publication "is its own source". The impugned Matter in the present case falls within the exception. It includes video-recorded statements from Mayor Lesslie and, more importantly, Ms Statham. Those extracts from the recorded interviews are self-proving as to the reasonableness of publication without additional express evidence from Mr Wilson as to his belief in the truth of this content. 16. In Morgan v John Fairfax & Sons Ltd at 387D-388C, Hunt A-JA set out a series of propositions that his Honour held were established by the cases reviewed. All of these are formulated by reference to the individual imputations conveyed, not by reference to the words spoken or written in the Matter. Application of these principles would require the Court to determine: 1. whether the defendant (in this case, Mr Wilson) intended to convey the imputations found to have been in fact conveyed; 2. if so, whether he believed in the truth of those imputations; 3. if the defendant/Mr Wilson did not intend to convey one or more of the imputations conveyed, whether he believed in the truth of each other imputation that he did intend to convey and whether his conduct was nevertheless reasonable in relation to such imputations as were inadvertently conveyed. 1. No evidence was adduced from Mr Wilson as to whether he intended to convey any of the imputations alleged by the plaintiff or as to whether he intended to convey some other imputations that he believed to be true. Notwithstanding the absence of direct evidence I would infer that Mr Wilson did not intend to convey any of the imputations pleaded by the plaintiff. I would draw that inference from the circumstances that I have canvassed in reaching my conclusion that the imputations were not in fact conveyed. In other words, I find the alleged imputations so far removed from any meaning that could reasonably be attributed to the news item that I can be comfortably satisfied that Mr Wilson would not have intended to communicate any such meaning. Mr Wilson impressed me as intelligent, astute, professional and articulate. I consider it inconceivable that a person of his qualities would have understood that the balanced, objective news item that he prepared would have conveyed to any ordinary reasonable listener the imputations pleaded by the plaintiff. 2. For the same reasons I also infer that Mr Wilson would only have intended to convey imputations broadly to the effect of contextual imputations 17a and 17b. Imputation 17a was obviously true. The effect of Mr Wilson's evidence is that he believed 17b also to be true, based upon information he had consistently received from councillors and Council staff over several months prior to 19 October 2016, in particular from Ms Statham with reference to the staff survey, and information received in his interviews on the morning of 20 October 2016. 3. Of course, these inferences concerning what Mr Wilson may have intended to convey and what he believed about the truth of such meanings are founded upon my conclusion that the published Matter clearly does not convey the meanings pleaded by the plaintiff. The application of s 30 would only have to be considered on a final basis if my view of the imputations conveyed should be found on appeal to be in error. Issue 5: honest opinion under s 31 1. The defendants invoke the defences of honest opinion in s 31 of the Defamation Act, as follows: 31 Defences of honest opinion (1) It is a defence to the publication of defamatory matter if the defendant proves that— (a) the matter was an expression of opinion of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. (2) It is a defence to the publication of defamatory matter if the defendant proves that— (a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. (3) It is a defence to the publication of defamatory matter if the defendant proves that— (a) the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. (4) A defence established under this section is defeated if, and only if, the plaintiff proves that— (a) in the case of a defence under subsection (1)—the opinion was not honestly held by the defendant at the time the defamatory matter was published, or (b) in the case of a defence under subsection (2)—the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published, or (c) in the case of a defence under subsection (3)—the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published. (5) For the purposes of this section, an opinion is based on proper material if it is based on material that— (a) is substantially true, or (b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or (c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29. (6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material. 1. The plaintiff does not contend that these defences, if otherwise established, are defeated by malice on the part of the defendants. In order to determine whether the defences are available, either under subs (1), (2) or (3), the first question to be answered is whether "the matter was an expression of opinion". When McCallum JA sat at first instance in this Division her Honour held on number of occasions that this test is to be applied to "the matter complained of in its defamatory sense" or, as otherwise expressed, to "the defamatory sense of the matter complained of": Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091 at [100]; Zaia v Eshow [2017] NSWSC 1540 at [73]; Feldman v Polaris Media Pty Ltd (No 2) [2018] NSWSC 1035 at [51]. The defamatory imputations that a plaintiff succeeds in establishing have a significant bearing upon, but are not decisive of, whether the published matter is an expression of opinion: Holmes v Fraser [2008] NSWSC 570 [58]-[59] (Simpson J, as her Honour then was) (approved in Fraser v Holmes [2009] NSWCA 36); Harbour Radio Pty Ltd v Ahmed [2011] NSWCA 290 at [40]; O'Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 at [45]-[47] (McCallum J). 2. It is not practical or useful to try to consider this defence on a hypothetical basis. Whether or not the Matter "in its defamatory sense" should properly be characterised as an expression of opinion is entirely dependent upon which of the plaintiff's imputations is proved. Each of imputations (a), (b) and (d), if conveyed, would properly be characterised as an expression of opinion. Such meanings, attributing to the plaintiff that he was "incompetent" and that he "performed … poorly" and "so conducted himself … as to warrant being dismissed" inherently and necessarily would involve evaluation and opinion. If those three imputations, and only those imputations, were conveyed then the matter "in its defamatory sense" would be an expression of opinion. On the other hand, if only one of those imputations was conveyed together with imputation (c), which is clearly an assertion of fact, then the matter "in its defamatory sense" might not be properly characterised as an expression of opinion. 3. It would be impractical to try to consider on a hypothetical basis, contingent upon a range of possible alternative findings regarding the imputations conveyed, other elements of the defence under s 31 – such as pars (b) and (c) of subs (1)-(3) and subss (5) and (6). It would be equally impractical to try to consider whether there is a factual basis for defeasance of the honest opinion defence, under subs (4), on such a hypothetical basis. Discovery, credit of the plaintiff, damages 1. The defendants attacked the credibility of the plaintiff on number of grounds, most significantly by reference to the course of his discovery of diary entries. The plaintiff made handwritten diary notes of his meetings with councillors, including the successive mayors, during 2016. Many of these notes recorded discussion of dissatisfaction with the plaintiff's management style and treatment of staff members. The dissatisfaction was either expressed by the councillors themselves or reported by them as having been expressed by others. These contemporaneous notes were relevant to, amongst other things, the disputed question of what had caused the majority of councillors to vote for immediate termination of the plaintiff's contract on 19 October 2016. 2. The plaintiff initially produced by way of discovery, on 3 May 2019, a typescript of some of the diary notes (Ex 7). On 14 November 2019 he produced a redacted copy of the original handwritten notes (Ex 9). On 25 November 2019 he produced the full unredacted collection of handwritten notes (Ex 8). The defendants identified in the full collection a number of entries recording councillors' expressions and/or reports of staff dissatisfaction that had not appeared in the typescript version originally provided or in the redacted set. 3. The defendants' counsel cross-examined the plaintiff to suggest that he had deliberately withheld and then redacted some entries in order to conceal contemporaneous evidence of councillors' and other persons' complaints about his handling of staff. The plaintiff denied this. His counsel pointed out in final argument that discovery had been by categories, rather than general, and that the issues in the case had changed over time, particularly when the defendants abandoned their defence of justification and instead pleaded contextual imputations. In light of these procedural circumstances it was submitted that the plaintiff should be taken to have mistaken his discovery obligations honestly and reasonably. In counsel's submission the Court should not conclude that he withheld entries because he perceived they would harm his case. It was argued that the plaintiff's credibility was not diminished by the deficiencies of his discovery. 4. I am able to decide the case on the basis of what meanings are and are not conveyed by the Matter. I have made contingent findings relevant to the statutory qualified privilege defence under s 30, in case that defence should arise on a different view being taken of the imputations. The outcome on the issues determined is not affected by the plaintiff's honesty as a witness in general terms and it has not been necessary for me to assess his credit. The only issue to which the credit attack based upon discovery would be important is the assessment of damages. 5. The plaintiff gave evidence that he felt an acute hurt to feelings and humiliation as a result of the broadcast of the Matter. He did not distinguish between the impact of, on the one hand, imputations (a), (b) and (d) (concerning lack of competence and warrant for his dismissal) and, on the other hand, imputation (c) (referring to mistreatment of staff). It is not possible for me to assess damages for hurt to feelings on a hypothetical basis. I am unable to accept that the plaintiff, whom I assess to be a mature, experienced and intelligent person, could have perceived that the defendants' balanced and sober report of the Council's decision conveyed the pleaded imputations of incompetence, poor performance, bullying and intimidation (as a fact) or conduct warranting dismissal. Viewed against the actual words of the Matter those imputations read as a defamation lawyer's construct rather than as anything the plaintiff would have thought was being said about him in the news item. 6. The defendants challenged the plaintiff's evidence about hurt to his feelings and submitted that any damage of that nature resulted from the fact that his employment in the prominent position of General Manager had been terminated peremptorily and publicly, not from the defendants' report upon the Council vote. 7. The plaintiff also contended that publication of the Matter caused such damage to his reputation that he was forced to move out of Lithgow and that he suffered delay and difficulty in securing a new position of comparable seniority. Again the plaintiff challenged this evidence and submitted that the move out of Lithgow and any difficulty regaining employment resulted from Council's action in terminating his contract, not from the broadcast of the Matter. 8. As I cannot sensibly assess damages on the hypothetical basis that one or more of the imputations was conveyed and that the defence under s 30 was not engaged, it would not be to the advantage of either party for me to make a finding on the issue of general credit that has arisen from the course of the plaintiff's discovery. Accordingly, I expressly refrain from making any such finding. Orders 1. My conclusion is that the television news item upon which the plaintiff has brought this action did not convey the imputations that he has alleged. The plaintiff has not been defamed. There will be judgment for the first and second defendants and, subject to any submissions that may be made after these reasons have been delivered, it will be ordered that the plaintiff pay the first and second defendants' costs of the proceedings. ********** 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. Decision last updated: 24 March 2020