IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Defamation List

Case No. CI-21-01768 

HEATHER WELLINGTON	Plaintiff	
		
v		
		
KIRSTY METCALF	Defendant	

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JUDGE:	HER HONOUR JUDGE CLAYTON	
WHERE HELD:	Melbourne	
DATE OF HEARING:	8, 9, 10, 11, 12, 16, 17, 18 and 24 August 2022	
DATE OF JUDGMENT:	21 November 2022	
CASE MAY BE CITED AS:	Wellington v Metcalf	
MEDIUM NEUTRAL CITATION:	[2022] VCC 1759 		

REASONS FOR JUDGMENT
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Subject:	DEFAMATION
Catchwords: 	Publications on Facebook – Defence of truth – Defence of statutory qualified privilege – Defence of Common law qualified privilege (Lange) – Defence of common law qualified privilege (reply to attack) – Malice – Aggravated damages.
Legislation Cited:	Local Government Act 1989; Freedom of Information Act 1982 Defamation Act 2005; Independent Broad-Based Anti-Corruption Commission Act 2011.
Cases Cited:	Williams v Manningham City Council [2015] VCAT 1367; Knupffer v London Express Newspapers Ltd [1944] AC 116, HL; Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; Jones v Skelton [1963] UKPC 29; Cornes v The Ten Group Pty Ltd & Ors [2012] SASCFC 99; Farquhar v Bottom [1980] 2 NSWLR 380; John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77; Slim v Daily Telegraph Ltd [1968] 2 QB 157; Amalgamated Television Services v Marsden (1998) 43 NSWLR 158; Lewis v Daily Telegraph Ltd [1964] AC 234; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; Gatto v Australian Broadcasting Corporation [2021] VSC 83; Hardie v Herald and Weekly Times Pty Ltd [2016] VSCA 103; Armstrong v McIntosh (No.4) [2020] WASC 31; Stocker v Stocker [2019] UKSC 17; Brose v Baluskas (No 6) [2020] QDC 015; Bazzi v Dutton (2022) 289 FCR 1; Rofe v Smiths Newspapers Ltd (1924) 25 SR(NSW) 4; Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; IW v City of Perth (1997) 191 CLR 1; Briginshaw v Briginshaw (1938) 60 CLR 336; Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30; Austin v Mirror Newspapers Ltd [1986] AC 299; John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227; Echo Publications Pty Ltd v Tucker; Fast Buck$ v Tucker (No 3) [2007] NSWCA 320; Chau v Fairfax Publications Pty Ltd [2019] FCA 185; Palmer v McGowan (No 5) [2022] FCA 893; Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; Defteros v Google LLC [2021] VSCA 167; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Farm Transparency International Ltd v NSW (2022) 403 ALR 1; Chetwynd v Armidale Dumaresq Council [2010] NSWSC 690; Marshall v Megna; Megna v Tory; Tory v Megna [2013] NSWCA 30; John Fairfax Publications Pty Ltd v O’Shane (2005) Aust Torts Reports 81-789; Poniatowska v Channel Seven Sydney Pty Ltd (2019) 136 SASR 1; Jensen v Nationwide News Pty Ltd (No 13) [2019] WASC 451; Australian Broadcasting Corp (ABC) v Obeid (2006) 66 NSWLR 605; Gould v Jordan (No 2) [2021] FCA 1289; Penton v Calwell (1945) 70 CLR 219; Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, Mowlds v Fergusson [1940] HCA 38; Kennett v Farmer [1988] VR 991; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; Wilson v Bauer Media Pty Ltd [2017] VSC 521; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; McDonalds v Dods [2017] VSCA 129; Ley v Hamilton (1935) 153 LT 384; Crampton v Nugawela (1996) 41 NSWLR 176; Cassell & Co Ltd v Broome [1972] AC 1027; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; Prendergast v Roberts [2012] QSC 144; Lower Murray Urban and Rural Water Corp v Di Masi; Lower Murray Urban and Rural Water Corp v Belbin; Lower Murray Urban and Rural Water Corp v Marciano (2014) 43 VR 348; Webster v Brewer [2020] FCA 1343; Dutton v Bazzi [2021] FCA 1474; Bazzi v Dutton [2022] 289 FCR 1; Kumar & Anor v Ragupathy [2021] VCC 532; Cables v Winchester [2018] VSC 392; Zuchowski v Howe; Howe v Cavendish Properties and Zuchowski [2022] VCC 1604; Peterson v Simopoulos [2021] VCC 1080; Hayson v Age Co Pty Ltd (No 2) [2020] FCA 361; Wagner v Nine Network Australia Pty Ltd [2019] QSC 284. 

Judgment:	Judgment for the plaintiff. 

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr D Gilbertson KC with 
Ms E Nikou Madalin 	Verduci Lawyers 	
			
For the Defendant	Mr J Castelan with
Ms H Jager 	HWL Ebsworth Lawyers 	

HER HONOUR:

Introduction
1	The plaintiff, Heather Wellington, is a local councillor on the Surf Coast Shire Council (‘SCSC’), representing the Winchelsea Ward.  She has held that position since 2012.  She successfully ran for re-election during the 2020 local government elections.  
2	The defendant, Kirsty Metcalf, is a ratepayer in the Surf Coast Shire and was an unsuccessful candidate for the Winchelsea Ward during the 2020 local government elections.
3	During the election campaign, the defendant established a Facebook page called ‘Kirsty Metcalf Winchelsea Ward Candidate’.  She subsequently changed the name of the Facebook page to ‘Kirsty Metcalf Surf Coast Bridge & Arrow’.
4	The defendant uploaded numerous posts on her Facebook page about the plaintiff, some of which incorporated articles and ‘memes’.  At issue in this case are seven separate posts to that Facebook page, which the plaintiff claims defame her. 
5	For the reasons set out below, I am satisfied the plaintiff has proved the defendant defamed her in seven publications and no defence has been made out.  I award the plaintiff damages in the amount of $100,000, which includes a component for aggravated damages. 
Background
Coombes Road, Freshwater Creek
6	In early 2016 the defendant, her husband, Tim Metcalf, and their two daughters, moved from their home in Kangaroo Ground to an apartment they owned in The Esplanade, Torquay, (‘The Esplanade apartment’) while they looked for a suitable property to purchase in the Surf Coast Shire.  
7	In 2016, the defendant and her husband purchased a property at Coombes Road, Freshwater Creek.  
8	In about March of 2016, the Metcalfs engaged a design consultancy firm, Taylor Garwood Designs (‘Taylor Garwood’), to start work on their plans for the land.  The Metcalfs wanted a home to live in and a structure big enough to house Mr Metcalf’s helicopter, as well as machinery and equipment they might use, such as horse floats.
9	Mr Metcalf owns and operates a crane company, Metcalf Crane Services Pty Ltd (‘Metcalf Crane Services’), which operates in the infrastructure industry ‘up and down’ the east coast. 
10	Mr Metcalf has a private and commercial pilot’s licence. Most of his helicopter use has been for private purposes.
11	At the time of engaging Taylor Garwood, Mr Metcalf intended to use his helicopter ‘to run around the state’ for his business.  He hoped to use it for other purposes in the future, in particular, to do sling work for emergency services and agriculture.  It was always the Metcalfs’ intention to fly the helicopter in and out of the property and they selected the property with these future purposes in mind.  
12	In May 2016, Sharon Berridge from Taylor Garwood met with Roger Curnow, an urban and regional planner at the SCSC, for a ‘pre-application meeting’.  This meeting will be dealt with in greater detail later in these reasons.  Taylor Garwood drew up designs for a large 21 metre x 21 metre structure that incorporated an aircraft hangar and dwelling.  In front of the hangar portion of the building was a large concrete slab which I will call the concrete apron. 

13	Pursuant to the Victoria Planning Provisions (‘the Planning Scheme’), a house built on 60 hectares of land does not require a planning permit.  The building plans for the construction of the structure, which incorporated the hangar and the dwelling, were approved on 8 November 2016 and work commenced shortly thereafter.  The works were completed in about mid-2017 and the Metcalfs moved into the property in about June 2017.
Relevant planning provisions
14	Clause 52.15 of the Planning Scheme says:
 “… a permit is required to use or develop any land for a heliport or a helicopter landing site even if it is ancillary to another use on the land, unless the table to this Clause specifically states that a permit is not required … ”
15	The clause then includes a ‘table of exemptions for use’ which relevantly provides as follows:
No permit is required to use land for a helicopter landing site if any of the following apply:	
Emergency Services	The helicopter landing site is used by a helicopter engaged in the provision of emergency service operations.	
Agriculture	The helicopter landing site is used by a helicopter engaged in agricultural activity in conjunction with the use of any land for agriculture.	
16	The plaintiff submits the effect of that clause is that:
(a)	A development permit is always required for works which, at the time of construction, are contemplated to include a heliport or helicopter landing site.  That requirement applies, whether or not it is anticipated the development will relate to a use for which a use permit is not required;
(b) 	There is no need to obtain a use permit in respect of uses which fall within the definitions of the exemptions in the table, properly construed; and
(c)	Notwithstanding the foregoing, a use permit is still required in respect of any use not contemplated by the table of exemptions, including private commuter use. 
17	Under the Planning Scheme, a helicopter does not require a use permit if the use of the helicopter is restricted to no more than eight movements within a thirty-day period and the helicopter departs and lands at least 500 metres from the nearest amenity.  An amenity is defined to include a place of accommodation. 
18	The Metcalfs’ nearest neighbour was about 331 metres from the concrete apron.    This meant that, in the absence of a permit, Mr Metcalf had to tow his helicopter into the paddock for departure and also land in the paddock and tow it back into the hangar.  He also had to limit his movements in and out of the property via helicopter to no more than eight per month.
The Metcalfs’ permit application
The first permit application
19	The Metcalfs engaged TGM Group Pty Ltd (‘TGM’) to make an permit application for use of a helicopter landing site at the property.
20	On 9 October 2017, TGM submitted the first application.  The proposal was:
“… to use the existing site at…Coombes Road, Freshwater Creek as a helicopter landing and departure site to accommodate a maximum of three helicopters.  The site is well located in a cleared area at the rear of the large shed/hangar where the helicopters are proposed to be stored.” 
21	The application was for nine helicopter movements between 7.00am and 8.00pm daily.  The application noted there were no buildings and works proposed, helicopters are able to operate from the existing site and the site had sufficient parking areas to facilitate the parking demands for the use of the helicopters.
22	In support of the application, TGM submitted the following:
 “The proposal is consistent with the purpose of the Farming Zone as the land will continue to be used for agricultural purposes and there will be no loss of arable farming land as a consequence of the proposed helicopter use. Helicopters are more frequently used in farm management due to their reliability and operational versatility and ease of access to difficult sites. 
  At this location the helicopters will be used for aerial spraying to provide improved pastoral solutions, including the distribution of granulated fertilisers and seed as well as weed suppression activities. Thus the proposed use will result in improved agricultural outcomes for this land and the broader farming district. 
 The site is also an important strategic location to provide helicopter support for wildfire and control burn monitoring, in addition to aerial fire suppression both for grassland and forest fires in the Surf Coast and the Otway’s. Thus the use will play a vital role in early detection and suppression of fires that may impact farming land. Therefore the proposed use will play a vital role in the improvement and sustainable use of farming land in the surrounding district.”
23	The proposed helicopter landing site was the concrete apron in front of the hangar which had been built at the same time as the dwelling and hangar.
24	The submission noted, ‘The application does not propose any buildings and works as the helicopters will be stored in the existing shed’. 
25	The submission noted that no permit was required to use the land for a helicopter landing site if the helicopter landing site is used by a helicopter engaged in the provision of emergency service operations or is used by a helicopter engaged in agricultural activity in conjunction with the use of any land for agriculture.  However, it also noted:
 “… as the proposed flight movements per day exceeds the number of as-of-right flight movements of 8 in the 30 day period as contained in the table for exemptions to this clause, a Planning Permit is required.”
26	Importantly, a permit was required to depart and land from the concrete apron, as this was within 500 metres of the nearest amenity.  Unsurprisingly Mr Metcalf wanted to land and depart from the concrete apron rather than having to tow his helicopter to and from the paddock.
27	On 24 October 2017, Bianca Wilkin, a senior statutory/strategic planner at the SCSC, wrote to TGM advising that a preliminary assessment indicated that the application might not have officer support as the number of movements per day was considered excessive ‘without supporting justification”.  The letter acknowledged a permit was not required for use associated with emergency services or agricultural purposes, but noted ‘it is difficult to ascertain that the use associated with these purposes amounts to the required nine movements per day as proposed’.  Ms Wilkin noted that, given the application ‘will proceed to notification, and is likely to attract attention’, TGM may wish to consider providing supporting information.
28	The SCSC required those within a one-kilometre radius of the property to be notified of the application.  
Amended permit application
29	On 3 November 2017 TGM wrote to the SCSC Statutory Planning Unit (‘the amended permit application’) and advised: 
 “We understand from your advice that the use of a helicopter for emergency and agricultural purposes does not require a Planning Permit.  As we factored these uses into our proposed movements, we agree to reduce the proposed helicopter movements from nine (9) to four (4) per day.  
 In regard to the proposed four (4) movements per day request, my client is a helicopter enthusiast who uses helicopters for recreational as well as business pursuits … The helicopter will provide fast and reliable transport to Melbourne in particular, as the road network becomes more and more gridlocked on a daily basis.  As advised, my client and his family also choose to use their helicopter for recreational purposes and thus it is important that they can operate from their own property …” 
30	TGM then raised a ‘query’ as to why ‘Council would choose to provide notice so far away from the proposal as my client specifically purchased this property and positioned their house away from sensitive uses’.  The letter goes on to say the noise levels are considered acceptable and:
“… we believe that Council has no basis to extend advertising this far and are concerned that Council will unduly promote resident concern and objection and thus prejudicing (sic) this application.  Therefore we respectfully request that Council follow accepted advertising protocols and advertise to those adjoining and adjacent areas within close proximity to the subject site.” 
31	TGM and the applicants were aware the application was likely to raise community concern. I shall refer to this as the Metcalfs’ permit application.
The Esplanade, Torquay
32	Meanwhile, the defendant was engaged with the SCSC in relation to The Esplanade apartment.
33	The Metcalfs had lived in this apartment while the Coombes Road property was being built.  There were a number of problems with the apartment which are not relevant to this proceeding, save to the extent they involved the plaintiff, and gave rise to one of the imputations said to be conveyed by the first publication.  
34	The apartment is one of a number of apartments built above shops and a restaurant.  Mr Metcalf gave evidence that living in the property was ‘never going to be long-term for us but it was completely unlivable (sic)’.  The main problems were noises and vibrations coming from the restaurant kitchen below and smells of oil and something ‘like sewerage’ coming into their kitchen area.  Mr Metcalf had ‘plenty’ of conversations with the builder trying to get him to fix the issues, but he was ‘not interested’.  
35	The plaintiff first became aware of the Metcalfs’ specific concerns on 16 August 2017 when she, along with other councillors, received an email from the defendant, which opened, ‘I am aware that councillor Carol McGregor has contacted you in regards to our home @ … The Esplanade’.  She went on:
 “… I expressed an invitation for you all to visit, this was declined in silence. I now make direct contact with you, as my families representatives you should all be aware our family has moved out of our home due to health issues, mostly caused by an illegal kitchen exhaust the restaurant installed.
…
 The inaction from this council to bring the restaurant into compliance so that we do not hear, see, smell or feel the restaurant and its kitchen exhaust is a breach of your own planning scheme, the 2008 Health Act, EPA Legislation, our owners corporation rights and the Australian Human Rights Act, of which your local Laws are bound by.
 I have expressed many times with your CEO, officers and Governance it is not and should not be at the expense of our family abandoning our home, the enjoyment and loss of our home, health, effort, energy and finances that we engage expert planning consultants, engineer consultants, environmental and acoustic consultants, lawyers and now the interest of State MP’s to fix this … .
 If this was your home and health or the home and health of your loved one you would want the developer/ restaurant owner to fix it. I seek your help and assistance in what has become an ongoing struggle with your council officers, who in their own words told me to, ‘put the fight down and move out.” 
36	On 17 August 2017, Keith Baillie, chief executive officer (‘CEO’) of the SCSC, emailed councillors, including the plaintiff and said he was writing ‘to recommend that Councillors be cautious in responding individually on this’.  He noted the issue was a long-running and complex matter, involving many parties and ‘[t]he relationships between parties, including between a number of residents are very difficult’.  He advised that the SCSC believed a legal proceeding was being prepared and because of this, any communication from the SCSC may be seen to  ‘represent Council’s considered position’ in any legal proceeding.   He noted, ‘Kirsty is experiencing great distress and is having difficulty with her emotions’ and ‘Councillors would likely experience this stress in communications with Kirsty’.  He noted a number of staff had had ‘difficult’ interactions with the defendant.  
37	Shortly after Mr Baillie sent his email, the-then Mayor of Council, Brian McKiterick, endorsed Mr Baillie’s suggested approach. 
38	That evening, the plaintiff responded to Mr Baillie and Mr McKiterick as follows:
 “I am deeply uncomfortable about a suggestion that we not engage with a resident who has a planning problem. Am I missing something here?
 I understand the CEO is not attempting to give us a directive, however I do feel we are being strongly steered towards not engaging.
 Clearly we need to be conscious of the limits of our authority (which as individuals is essentially zero) and our obligations of confidentiality, however it is a core aspect of our role as elected representatives to engage directly with residents and provide a conduit for them to Councillors and officers.
 We often do site visits before a hearing of submissions and/or decision of Council. I intend to visit, unless I am convinced that the democratic process will be upheld if Councillors do not respond to a reasonable request by a resident to view a planning problem prior to a permit application being decided.” 
39	The plaintiff contacted the defendant and said she had not been aware of the earlier correspondence requesting council officers visit and said, ‘I would certainly have responded to such a request, as I take the issues you raise seriously’.  
40	There ensued some back and forth between the plaintiff and defendant in relation to issue at The Esplanade apartment.  The defendant noted her family was: 
“… now in the situation of objecting to an amended permit for the illegal exhaust, even though the affects (sic) of it on our health and safety are known by council officers. This has added more stress as we feel it's not a valid permit and should have been issued with a building notice. Instead we have to defend ourselves and our home again, this time in a public forum.” 
41	The plaintiff visited the defendant at The Esplanade on about 21 August 2017.  In a follow-up email, she provided the defendant with some general information about an upcoming hearing relating to the exhaust at The Esplanade apartment.  She also said she would follow up council officers.
42	The plaintiff did follow up.  She wrote to both Mr Baillie and Mr McKiterick and said the defendant had told her she had felt:
“… compelled to move out from her home because of her experience. From my currently (limited) perspective, I certainly do not agree with any view (if there is one) that her reaction to the situation is disproportionate to the problem. Anyone who feels they need to leave their home because of intrusion by their neighbours will be upset. I am concerned that she may be being labelled ‘difficult’ or ‘anxious’ when in fact her reaction is perfectly understandable in response to her perception of a serious threat to her family's health and wellbeing.”
43	The plaintiff visited the defendant’s home on a further occasion and followed up on a number of occasions with council officers.  In particular, she sought clarification about documents the defendant had attempted to access and raised a concern that documents the plaintiff considered should be publicly available appeared to have been withheld from the defendant. 
44	The plaintiff gave evidence she could not recall exactly how the issue at The Esplanade apartment resolved, although she became aware the defendant was no longer living at the property and no longer sought further help from her.  
45	The following matters arising from the issue at The Esplanade apartment are relevant to my determination in this proceeding:
(a)	the plaintiff’s engagement with the defendant, against the advice of the SCSC CEO and Mayor;
(b)	the fact the issue related to a planning matter;
(c)	the focus by the plaintiff on the defendant’s access to documents in her correspondence with council officers;
(d)	the repeated reference by the defendant to The Esplanade apartment as her ‘home’.
46	This episode is an example of the plaintiff’s approach to issues raised by ratepayers.  She met with the ratepayer (the defendant), she wrote to council officers seeking clarification of matters, she gave advice about what documents should be available, and she advocated to the SCSC for release of those documents.    The plaintiff’s conduct in relation to The Esplanade apartment was diligent and consistent with her long-expressed concerns about representing the community, challenging council officers when she disagreed with their advice, and seeking transparency in access to documents.
The March 2018 submissions hearing
47	After filing the Metcalfs’ permit application and advertising as required by the SCSC within a one-kilometre radius from the proposed helicopter landing site, it proceeded to a ‘submissions’ hearing in March 2018.
48	Ahead of that submissions hearing, the SCSC received forty-nine community responses to the application, forty-eight of which were from people objecting to the application.
The objections
49	The objections canvassed a number of issues which can be summarised as follows:
(a)	noise;
(b)	loss of amenity and loss of privacy;
(c)	too close to township;
(d)	additional traffic;
(e)	impact on property value;
(f)	safety concerns in relation to power lines;
(g)	safety concerns in relation to motorists;
(h)	safety concerns related to storage of fuel;
(i)	urbanisation of rural area/not in keeping with rural character/unsuitable in farming zone;
(j)	impact on livestock/wildlife;
(k)	too close to aged care facility;
(l)	possible pollution;
(m)	contamination of nearby homes and water sources from pesticides used in aerial spraying;
(n)	sets a precedent for more helicopters in area.
50	In addition to specific concerns, a number of objectors expressed scepticism of the Metcalfs’ intention to engage in emergency service or agricultural work, and had a view the likely intention was to run a commercial enterprise, including a charter flight business. 
The submissions hearing
51	On 20 March 2018, the submissions hearing proceeded.  The plaintiff and defendant were both in attendance.  The defendant and her husband made a PowerPoint presentation, which showed pictures of helicopters engaging in sling work, and explained the way in which sling work was carried out.  Their representative from TGM also made a submission.  
52	Although the Metcalfs’ permit application by then was for four movements per day for commuter or other non-exempt purposes, the Metcalfs indicated their intention was also to engage in other helicopter-related work, including sling work for emergency services and agricultural work. 
53	The extent of exemptions under cl 52.15 of the Planning Scheme is not something I have to determine in this proceeding.  The stated exemptions include agricultural and emergency services work.  The plaintiff does not believe the exemptions are intended to extend to any activity that could be broadly associated with agricultural or emergency services work.  The defendant believes any use associated with those activities is exempt.  
54	The minutes from the meeting show the following concerns were raised:
(a)	helicopters could be used for commercial use;
(b)	number and frequency of movements of the helicopter;
(c)	noise ꟷ disturbance to residents;
(d)	loss of rural character;
(e)	breach of privacy;
(f)	safety issues;
(g)	disturbance to the environment (animals/farming production). 
55	The plaintiff did not ask any questions during the submission hearing.  It was put to her that the submissions hearing was the appropriate time to clarify any of the questions the plaintiff might have had.  The plaintiff said the submissions hearing was for her to hear the submissions from the applicants and any supporters, and the objections from those opposed to the Metcalfs’ permit application.  She said this was not the forum to ventilate her concerns.  
56	The defendant said:
“… We just simply said these are the activities that we would like to pursue but we didn’t say what that would look and feel and sound like.  And we didn’t at the time realise, I think, that that had a real impact on the community’s anxiety around what we were doing.  So it would have been really helpful if we could have alleviated those anxieties by saying, ‘Well, look, in the event that we are able to put our helicopter on the register, it’s more than likely it would not be at our property, it would strategically be placed somewhere else, so that sort of removes that …” 
57	When asked whether the plaintiff should have asked those questions so she could have given those answers, she said:
“Yes, I absolutely do feel that those questions should have been asked so that we could respond to that and the agricultural, so that they didn't feel that, you know, we were going to fly the helicopter in and out, in and out, in and out because that was never, ever going to happen and that's not what does happen.  But in their minds that's what potentially could happen.  So we, at that meeting it would have been really beneficial for that to have been teased out.”
58	In her defence, the defendant says the submission hearing ‘was the appropriate time for the plaintiff to express any concerns she had with the use permit application, and the plaintiff remained silent’. 
59	Chris Marshall, who attended the submission hearing on behalf of the Metcalfs, agreed the submissions hearing was not the time for councillors to debate the merits of the application.
60	It is not clear why the defendant considered it was the plaintiff’s, or any other councillor’s, duty to ask questions to ‘tease out’ community concerns, when the community concerns were already known to the Metcalfs, having been contained in the written objections.  This was the opportunity for the Metcalfs to address those community concerns, an opportunity they took by speaking to a PowerPoint presentation and having their representative from TGM present on their behalf.  It was entirely open to the Metcalfs to make clear what, and how, they intended to use the helicopter, and what the impacts of helicopter use would be.  The defendant says she and her husband had always been open and transparent about their intentions.  
61	I do not accept the plaintiff was derelict in her duty as a councillor in not asking questions at the submission hearing, or that her failure to ask questions was part of a larger strategy to somehow assist the objectors. For this assertion to be correct the plaintiff must have decided, as at March 2018, that not asking questions would somehow ‘assist’ the objectors which is implausible.
62	The resolution of the submissions hearing was to forward the Metcalfs’ permit application to the SCSC for consideration at the 24 April 2018 ordinary meeting.
Events leading up to the 24 April 2018 Council meeting
Coombes Road site visit
63	On 12 April 2018, the Metcalfs emailed councillors, inviting them to visit the property and observe a helicopter taking off and landing. 
64	A number of councillors attended, including Rose Hodge.  The site visit took place on 24 April 2018 prior to the council meeting.  The plaintiff did not attend.  She said she was likely working at the time, but also did not think seeing one helicopter fly in and out would help her reach a decision. 
The Metcalf Email and Submission
65	After the site visit, Mr Metcalf and the defendant sent an email (‘the Metcalf email’),  and attachment (‘the Metcalf submission’) to Cr McGregor.   This is an important document in the case and was ultimately the subject of Freedom of Information (‘FOI’) proceedings in the Victorian Civil and Administrative Tribunal (‘VACT’).
66	Cr McGregor circulated this email and attachment to all councillors, including the plaintiff.  The attachment is headed ‘Councillors Meeting Notes’.  It addresses various matters, including a question raised by Rose Hodge at the Submissions Meeting about alternative storage locations for the helicopter.  Under a heading ‘History of Coombes Rd’, the Metcalfs write:
•	“engaged Taylor Garwood in March 2016 with intention of concept design for a hanger shed and dealing with council. At this point we thought we required a council planning permit so our intention was to get the helicopter permit wrapped up within this process. Sharon met with Roger Curnow and outlined our intentions of a hanger shed and future intentions, all of which are a current work in progress. It was determined at this meeting that the Anglesea Rd is considered a tourist corridor and that our application would be looked on unfavourably by the planning committee.
•	Roger did not respond to Taylor Garwood’s multiple emails and telephone follow up’s after the meeting. 
•	The process became displaced for two reasons. It was decided we would push on with the build, as you are all aware our current living situation at that time was intolerable so we progressed with the build and addressed the permit after we were settled.
•	Fast forward to this day, building process is over and we have had the planning permit application in since late last Year and here we are.”
67	The document then states:
•	 “Our intention was always to utilise this site to park helicopters specifically purchased for utility work – utility work is as we explained at the hearing of submissions lifting, agricultural, fire, sling work. This is all classed as commercial work under air law.
•	(Refer 2) officer report states NO commercial charter including joy flights. If it was a joy flight op it would be 6 flights/hour @ 8/10-hour days on weekends and holidays. That’s not what we are doing here. We are pursuing utility work as it is in line with the work I have specialised in for the 35 years of my working life, 22 of which of which I have run my own business. Lifting is my speciality and my passion.
•	(Refer 1) Councils report states it is noted… this is incorrect. We have purchased a utility machine and it will be here at the end of this work ... Yes, there will be some business use for travel to far Victoria. SA, NSW to save on my time, however the machine has predominately been purchased for utility work and not for the pleasure of social outings and simply my commuter needs. We will be working to get a contract for seasonal fire work which is 4-months of the year.
•	The other 8-months the machine needs to be operating and we require the ability to get it out of the hanger. Whilst there is no financial implications to council, there is definitely financial implications to the special conditions of 6 movements to us.
•	(Refer 3) whilst we are seeking 7 days we acknowledge that the machine would never reach the 1446 movements per year, we are simply seeking permission to be able to access the machine without any enforcement action and anxiety.
•	(Refer 4) Planning 6 movements & your health department 10 movements, on what grounds is 6 and we would have thought health superseded the planning committees arrival at 6. Bearing in mind what I have requested is the potential to access a very expensive piece of equipment that needs to be able to leave our premises, hence 14 movements.
•	We are sensitive to the surrounding homes and have designated a no-fly zone. We have a Marshall Day report validates there is no amenity loss, backed by the EPA. The other bodies for instance CASA and Air Services Australia have no objections to our permit. The new machine is quieter and according to Marshall Day report and EPA we can operate at 55 DB all day. We are asking for a movement a day, total time in and out of 6 minutes.
•	(Refer 5) officer portrays the quiet ambience of a rural setting must be taken into consideration. Incorrect. Both Coombes and Anglesea are major roads with high volumes of traffic. You can experience this when we observe the take-off and landing.
•	We are operating within the acceptable planning scheme of our machine being within the required 250 metres of the nearest amenity, the closest is 335 metres.
•	We have been committed to improvements, ie, bitumen no dust and huge planting schemes and screens for privacy and protection for the benefit of ourselves and our neighbours.”
68	The plaintiff gave evidence she saw the Metcalf submission a couple of hours prior to the meeting.  She considered it demonstrated the Metcalfs had always intended to build a helicopter landing site and run a helicopter business.  She said: 
“… I'd had this question of the development and whether a development permit was required and I'd raised it with officers and they said, ‘No, it was built as a farm shed and it didn't need a development permit’.  And then when I got that letter, the applicant, to me, was saying in that letter, ‘We always wanted to bring a helicopter to Torquay.  We'd planned our’ - you know, ‘We looked for a suitable site.  We planned our construction.  We had a problem with council about something so we proceeded and now here we are’.  And it seemed to me to say very clearly, ‘We built our hangar and we built our landing site’ and I looked at it and thought why are the officers - prior to that I'd only seen, heard it referred to as a hangar and I hadn't really thought that was, you know, very significant but when I saw a letter from the applicant that said ‘We built it for this purpose’ and the officers had said to me if they built it for that purpose, it would need a permit, but they didn't build it for that purpose …”
69	She said she could not understand why the council officers had been saying this was a farm shed, when it was clear to her the intention was always to build a hangar and a helicopter landing site.
70	The Metcalfs had made no secret of the fact they were building a hangar to house a helicopter and had intentions to use the helicopter on the property.  The building permit and other documents were labelled ‘hangar’.  The fact a dwelling was attached to the hangar, does not transform the hangar into something else.  
71	It is understandable the plaintiff had a concern the concrete apron was always intended to be a helicopter landing site.  It is a conclusion difficult to avoid, given Mr Metcalf’s intention to expand his helicopter use and engage in business activities using his helicopter.  It would be extraordinary, to the point of being unbelievable if the Metcalfs engaged a design firm, told them of their intentions, had them draw up plans for a dwelling, and hangar with a concrete apron, entirely suitable to use as a helicopter landing site, but always intended to land the helicopter a couple of hundred metres away in a paddock, and tow the helicopter into the hangar.  
72	The more likely scenario is the Metcalfs commissioned a design fit-for-purpose – a hangar and helicopter landing site attached.   Because of a perception that things were getting ‘bogged down’ in the SCSC, and a desire to progress quickly so they could leave their unsatisfactory accommodation at The Esplanade apartment, they did not seek a use permit at the time of the build.  Because they did not have a use permit and were therefore not going to be landing and taking off from the concrete apron immediately, they did not seek a development permit which would have been required for a helicopter landing site.   Consequently, all they required was a building permit for the dwelling and hangar, which they duly obtained.
73	In making this finding, I ascribe no nefarious motives to the Metcalfs.  Mr Metcalf was generally a candid witness, who struck me as a pragmatic person.  If he needed a permit, he would get a permit, as he had previously obtained in Kangaroo Ground.  He was advised he needed no development permit for the dwelling and hangar, as it was on 60 hectares of land.  He knew he needed a use permit for the helicopter if he wanted to land on the concrete apron or fly in and out more than eight times a month.  He decided to defer that application to enable the build to proceed.  This was an understandable decision.
74	It  was inevitable though that, having built a hangar and a concrete apron entirely suitable for use as a helicopter landing site, community concern and suspicion would be aroused when, just a few months later, a permit was sought to use the concrete apron as a helicopter landing site.
The pre-application ‘advice email’  
75	Because the Metcalf submission referred to a lack of response from Mr Curnow,  Bill Cathcart, the manager of planning and development at the SCSC, felt the need to correct the record for councillors.  At 3.46pm on 24 April 2022 Mr Cathcart forwarded an email dated 30 May 2016 from Mr Curnow to planning coordinator Phil Rosevear, to councillors.  This email detailed Mr Curnow’s advice to Ms Berridge from Taylor Garwood, whom the Metcalfs had engaged at the design stage of their property development.  
76	Again, this email (‘the advice email’) has become an important document in the events that subsequently transpired, so I reproduce it here in full. 
“Dear Sharon 
 “The proposal was discussed at the Planning Group meeting last Tuesday 24 May particularly in relation to future commercial use and operation of the land in association with the proposed large dwelling/hangar/farm building structure central to the site 500 m north of Coombes Road.
 “It is appreciated that the land has recently changed ownership and unfortunately the Group did not have the benefit of a current title however it is understood your client owns 60 ha being the minimum area required for a dwelling not to require planning approval in the Farming zone providing all the setback requirements of the zone are compliant – appears to be the case.
 “It is understood that a replacement dwelling, demolition of existing structures and associated private horse riding facilities, including a ménage are planned but it is the future commercial operation that raised some concern from a policy perspective in relation to existing planning strategies and being unrelated to agricultural activity on the land. 
 “The proposed operation of commercial charter flights and associated noise from expected frequent flights into this area is likely to raise a high number of objections being on the edge of the greater Torquay township just beyond the settlement boundary and proximate to existing and future residential development along the western end of Grossmans road.
 “A helicopter landing site to be used by your clients for aerial commuting to their property, while unusual is understood given your client is a helicopter pilot, however their future intention appears to be both at a private and commercial scale. It is considered that your clients should be transparent and upfront about their intentions as incremental development is discouraged by VCAT.
 “In the circumstances in this location a commercial proposal is considered unlikely to receive officer support
 “In terms of the private helicopter landing site under the provisions of Clause 52.15 of the Scheme it appears that a planning permit is required for the proposed helicopter landing site in this location because the landing point is unable to meet the general exemptions of the Clause.
 “Any application for a landing site is required to address the application requirements. It is noted that as part of these requirements flight movements and hours of operation times have been provided
•	limit his flights to 8 in a 30 day period and 4 in a 24hr period. 
•	These flights would be between 7am and sunset on weekdays and 8am and sunset on weekends or holidays
 “The Proximity to high tension power lines traversing the land is also likely to be an issue for CASA and SP Ausnet.”
77	The plaintiff received this email shortly before the April council meeting.  Prior to that time, neither she, nor the other councillors, were aware of it.  It exacerbated her concerns, because it talked about the future commercial operation. The plaintiff said:  
 “… the issue of the house was never a problem. Of course, it was always reasonable to build a house on the site and you didn't need a permit for that, that wasn't the issue. The issue was the commercial - and then the operation of commercial charter flights. That - I'd heard - a lot of the residents had said that in their objections but I hadn't - I thought it was unusual that so many of them were saying it because usually you'll get one or two people in a big - you know, usually it's not such a consistent theme from objectors when there's no obvious, obvious evidence but - but that seemed to confirm that they were right which suggested that they had heard something authoritatively from somewhere. That concerned me. And then they talked about just beyond the settlement boundary and proximate to Grossmans Road, there was an aged care facility there and I thought this - if this is going - you know, council officers were obviously worried about it and yet the - and yet what we had got for the April meeting was, ‘This is a farm shed, you don't need to worry about the development. This is for commuter permits. There's an exemption for agricultural and emergency flights and you don't need to worry about them’ and I felt they just did not reconcile. I was really quite shocked when I read this, in conjunction with the other letter from the applicant - or the other - the meeting notes which, because this was obviously written in 2016 which was a couple of years before and people do sometimes change their minds, obviously. But in conjunction with the notes of the meeting which said, ‘We always wanted to run a helicopter business’ and that was written on the day, on 2018, so it seemed to me that the intention hadn't changed and I just couldn't - I could not reconcile the officer's report with these documents.”
78	Mr Curnow’s email also points out a planning permit would be required for the helicopter landing site ‘in this location’ because the landing point is unable to meet the general exemptions of cl 52.15.  That is, it was not at least 500 metres from the nearest amenity.  If the ‘helicopter landing site’ proposed was the paddock where Mr Metcalf was landing prior to obtaining the use permit, it would have met the general exemption requirements of cl 52.15 and, therefore, would not have required a permit.  Mr Curnow can only be  referring to what became the concrete apron and eventual helicopter landing site.
The Metcalf recap letter
79	There is one other document that is relevant to the intentions of the Metcalfs and the responses of the objectors, and is therefore relevant to the issues in dispute in this case.  This is not a document the plaintiff was aware of at the time of the April 2018 meeting as she only became aware of its existence through discovery in this proceeding.
80	This is a document emailed to the defendant by Mr Metcalf, forwarding an email from Ms Berridge of Taylor Garwood. It is a recap written by Ms Berridge of that meeting (‘recap letter’).  It reads: 
“The following is a recap of the points discussed between Roger Curnow and Sharon Berridge on 20.05.2016. 
 “Initially it was thought that the property was approximately 178ha but it is actually only 60ha. It is in a Farming Zone. It is in Freshwater Creek abutting the Bellbrae boundary. It is on the corner of Anglesea and Coombes Roads. Anglesea Road is considered a Tourist corridor.
 “Sharon informed Roger of the client’s intention to: 
 “Initially:
Build a large shed like structure to incorporate a hanger and a residence 
Create a helicopter landing site as an extension of this building 
Use the residence and helicopter for personal use
 “Sharon has since found out that the helicopter would be taking off and landing once a day. 
 “Roger’s response:
The staffroom and foyer etc need to be renamed as residential rooms, or not included in the initial application 
A Planning Permit to build a residence isn’t required because the land meets the 60ha minimum requirement of land 
The residence only needs a Building Permit but must meet all of the appropriate regulations
The helicopter landing site needs a permit as it isn’t 500meters from the nearest residence (refer to Clause 52.15 for further information) 
An application for a new crossover is required (Contact James Priest)
“In the future:
Apply to carry out a Helicopter Charter business from the site 
Change the ‘residence’ to a commercial building 
Remove the existing sheds and outbuildings 
Build a new residence 
Build new stables and a ménage
 “Roger’s response to additional structures on the property:
Initially it was discussed that the client could keep the kitchen, as it was thought the property was 178ha but, now we know that it is only 60ha the kitchen would need to be removed and the building changed to a habitable outbuilding which would allow for the proposed new residence to be built in the future
So long as the stables and ménage are used privately by the owner they don’t require permits as they are related to farming and/or agriculture
 “Roger felt that the application might not be considered favourably. He didn’t state directly what would trigger a negative response, but he said that the planning committee would take into account:
The Torquay, Jan Juc and Bellbrae planning strategies etc 
That the proposed use isn’t related to faming and/or agriculture, it would be considered Leisure and Recreation 
That the property is at the edge of the township, near a proposed densely populated area 
The frequency of flights 
The noise created
 “Overall, the meeting was very informative and I feel most issues and/or options were discussed. At the end of the meeting, Roger asked that Sharon do a recap and forward it to him, along with any relevant documentation by Monday so that he could add this project to the Agenda for, and discussed at, the next committee meeting on Tuesday. The accompanying documents are not final but give a very good indication of the proposal. They include:
Google site plan
Proposed site plan 
Proposed Floor plan
Proposed elevations”’
81	The recap letter demonstrates that in 2016, Ms Berridge understood her brief from the Metcalfs was to build a dwelling and a hangar with ‘a helicopter landing site as an extension of [the] building’.  She noted the helicopter landing site required a permit because it was not 500 metres from the nearest residence.  She had informed Mr Curnow that the Metcalf’s future intentions included a helicopter charter business from the site, changing the dwelling to a commercial building, and building a new residence.
82	Mr Metcalf said he never had any intention of doing charter work.  
83	However, Ms Berridge said what she told Mr Curnow at the pre-application meeting was what Mr Metcalf had told her.  She said, ‘we got the information from the client as to the types of things that they wanted to look at as options’.  
84	In relation to the ‘future intention’ to change the residence to a commercial business, she explained ‘[t]hat was if they decided that they wanted to move forward with possibly a charter’.  She said, after receiving the feedback from Mr Curnow that the future commercial operation raised some concern from a policy perspective, ‘that’s when [the Metcalfs] decided to just go ahead with the residence’. 
85	Ms Berridge’s evidence was unequivocal.  She had no interest in the proceeding.  Her evidence provides an explanation as to why rumours had circulated within the community about the possibility of a charter business.  By the time the Metcalfs made their permit application in November 2017, they appear to have decided against pursuing a charter business, but I accept Ms Berridge’s evidence that, at the time of her pre-application meeting with Mr Curnow, a possible future charter business was one option the Metcalfs were exploring, and had raised with her.
Council officers’ recommendation
86	Ahead of the 24 April 2018 council meeting, Ransce Salan, general manager of the planning and development department at the SCSC, provided a recommendation on the Metcalfs’ permit application.  In his report he notes ‘There are no buildings and works proposed as the helicopters are able to depart and land from the existing concrete pad adjacent to the existing shed/hangar’.  The report says the proposed use achieves an acceptable planning outcome, subject to a reduction in the movements proposed and the hours of operation.  He recommended the application be approved subject to conditions.
87	This recommendation raised a question in the plaintiff’s mind as to whether the concrete apron and hangar could avoid the need for a development permit by being de-coupled from the Metcalfs’ permit application and identified as being for agricultural or farming purposes, when they would have required a development permit had they been identified as helicopter infrastructure at the time the building permit was obtained.  
The April council meeting
88	The April meeting occurred at about 6.00pm.  This was the meeting at which councillors would debate, consider and vote on the Metcalfs’ permit application.
89	The plaintiff said it was unusual to get this number of objections other than for ‘things on The Esplanade in Torquay or at Lorne’.
90	At the SCSC meeting, the plaintiff questioned whether there was a requirement for a permit for both a development and a use in this circumstance.  
91	The reason the use permit was not sought at the time of the development was explained by Mr Metcalf.  He wanted to press forward with the development of the land, and was prepared to accept the ‘as of right’ flights of eight per month, and the inconvenience of towing the helicopter to and from the paddock in order to move on with things.  He said: 
“The process seemed to be getting bogged down and I was keen to move out of our current dwelling that we were in on The Esplanade and I wanted a home to move into. 
92	He wrote to Ms Berridge on 23 May 2016, after receiving the Metcalf recap letter and said:
“Do we need to just agree to the 8 movements a month for the helicopter? Only to remain within their planning regs and to keep things moving forward. The reality is for private use it may only be a couple of times a week.”
93	In response, Ms Berridge had noted she would ‘email Roger the revised flight movements’.  Presumably, these were the flight movements in keeping with the ‘as of right’ flight movements allowed under cl 52.15 of the Planning Scheme. 
94	As is clear from the contemporaneous documents, it was always Mr Metcalf’s intention to use the hangar for his helicopter or helicopters, and it was always his intention to expand his helicopter use beyond commuter flights.  Indeed, in the Metcalf Submission, the Metcalfs say Mr Metcalf would pursue utility work, which is Mr Metcalf’s ‘speciality and passion’, and would work to get a seasonal contract for fire work.  The Metcalfs noted the seasonal fire contract would only be for four months of the year, and for the other eight months, the helicopter would need to be operating for financial reasons.  
95	The Metcalfs sought the permit for four flights a day seven days a week, though the defendant says they never intended to use all those flights.  They wanted the ability to access the helicopter without ‘any enforcement action and anxiety’.  They noted the helicopter had been primarily purchased for utility work and ‘not for the pleasure of social outings and simply [Mr Metcalf’s] commuter needs’. 
96	There was no suggestion in any of the documents, nor in Mr Metcalf’s evidence, he had ever given up his intention to use the helicopter for more than eight movements a month.  It was simply deferred to a later application in order to move things along.
97	The issue raised by the plaintiff was whether council officers were correct in determining that no development permit had been required at the time of the building permit, and no retrospective development permit was required now that a use permit was sought. 
98	At the meeting, the plaintiff raised this issue squarely.  She said:
“… I think it’s a very critical question because we shouldn’t be considering a use if there is a requirement for a development permit and there’s not a development permit in place or being considered as part of the use …” 
99	In response to her question, Mr Cathcart said the developments on the site had been allowed under the farming zone as sheds and a dwelling within a shed.  The development had occurred:
“… prior to this application coming in, and they all have building permits in place so we regard them as legal sites.  The fact that they are there and they now want to be used for this use doesn’t mean they need a development permit because the consent wasn’t required at the time that they were built, so they are lawfully on site.” 
100	The plaintiff pointed out Practice Note 75 under the Planning Scheme says any development, buildings and works related to the use of land for a helicopter landing site or a heliport requires a planning permit, irrespective of whether the use is exempt.  She said this ensures the impacts of the development can be adequately assessed, and she asked how confident the council officers were that no development permit was required.  Mr Cathcart responded that the development was already on the site and:
“… if someone wants to come along later and use the slab out the front to put a helicopter on it, if someone wants to put a helicopter inside the shed then they can do so …” 
101	This answer did not satisfy the plaintiff.  She had faced a similar situation in a development at McAdam Park.  In that case, VCAT had taken a different view from the SCSC about what permit was required.
102	Some councillors spoke in favour of the Metcalfs’ permit application.  Cr McGregor, who supported the application, proposed an alternate motion which imposed some conditions on the use permit.  Cr Goldsworthy noted he had gone out to the site and walked away feeling satisfied, and was happy to support the motion.  Cr Duke had also attended the site to hear a helicopter take off and land and said, ‘I could hear the sounds quite clearly but it wasn’t a sound that was a real worry to me or it was deafening loud’ and so he was supporting it.
103	The plaintiff then spoke again.  She said:
“… if you can build a massive shed that will hold three helicopters and you can build a landing pad and then you can say that is for farm use and five minutes later you say it’s for helicopter use and because it didn’t get a planning permit in the first instance because it was for farm use and then all of a sudden it becomes helicopter use, how does that work can I do that on my land I’ve got 100 acres.  Can I build a massive shed and put three helicopters in it?  No, I wouldn’t have thought so.  
 Can I start a helicopter business? No, surely not. That makes a nonsense of the planning provisions.” 
104	She then went on to say she would not be supporting the Metcalfs’ permit application and would strongly suggest to councillors the application not be approved.  She said:
“I’m not necessarily saying it is the problem of the applicants that there is no permit for the development, I believe they may well have been told they didn’t need a permit and I think that is wrong so I think we should just take a big breath and look at it again …”
105	The motion was defeated by a five-to-four vote.  This prompted the defendant to say ‘[s]ee you in VCAT’.
106	Cr Smith then proposed an alternate motion, which was to seek further information from the applicants.  Cr Smith and Cr Coker both spoke to the new motion, both expressing concern there remained confusion and a lack of clarity around the purpose of the helicopter flights.
107	The plaintiff spoke to support the new motion:
“… You know, I am just about orderly planning and that’s - I'm not saying, I'm certainly not suggesting it's never appropriate to have a helicopter on a rural property certainly for people commuting to work there is precedent in VCAT and people want to fly from their home and go to Melbourne or the Mornington Peninsula or wherever they might want to go for work … 
 “…. It is potentially quite appropriate for people to be commuting to Melbourne from a rural property. It's potentially also appropriate to run a helicopter business from a rural property of course but, and it is also potentially appropriate to develop helicopter infrastructure on a rural property, but orderly planning requires that the development and the nature of the business and the type of the use are looked at collectively really so I don't accept that this infrastructure was there. My understanding of it is it was built a year or so ago, and it was discussed with council and my understanding is it was always thought and known to be a helicopter proposal, I don't know if that is correct or not and that is the assumption I’ve made. And so, you know I think we just have to sort of look at this collectively and say what is the purpose of that development, did it need a planning permit? Can I build a massive shed on my farm property without a planning permit and a helicopter landing site just a slab of concrete without a planning permit and say I'm going to use it for farm business and then it turns into a heliport. That doesn't sound right to me so I just think we need to get that sorted out and I like the idea that we seek further information and perhaps we seek some advice about our interpretation of the planning scheme.”
108	The only options available to the SCSC were to reject, accept or defer the motion.  Ultimately, the SCSC determined to defer its decision on the Metcalfs’ permit application to the next meeting to obtain further information.  
109	Because the SCSC had not made a determination within the statutory time period allowed, the applicants were able to seek a determination of the application from VCAT.  
110	In her evidence, the defendant said the plaintiff ‘was questioning whether [her] home had the appropriate development permit or buildings and works permit’.  She said, ‘It was implied that we did not have a permit for the buildings and works which meant that our home was illegal’.  She said she believed the defendant was ‘going to rewind the clock and have [her] home taken down’. 
111	At that meeting, the plaintiff had said, ‘I'm certainly not suggesting it's never appropriate to have a helicopter on a rural property’.  
112	The defendant said, ‘I thought that she was misleading the people in the room’.  She went on to describe her state of mind at the time:
“We don't need a permit to house our helicopters.  We don't - we can garage our helicopter in the shed.  We did the same thing at Kangaroo Ground and we didn't need a permit to do it there so I was already aware that there was no planning provisions to garage your helicopter, that is just a given and it's accepted by - in planning law.”
113	She said the plaintiff was ‘just complicating everything.  It was – it was a really simple use permit for the helicopter where it lands and takes off and that’s what she needed to focus on’. 
114	She said when the plaintiff said the development had not got a planning permit in the first place because it was for farm use, she:
“… was really shocked … because … we didn’t need a permit, it was our home.  We don’t need a permit to garage our helicopter, the permit is for the use.  So the – the distortions were really upsetting to me and I was getting really, really upset that the meeting wasn’t being focussed on the planning application in front of the councillors and that was for the use permit, not for our home, not for the garage, simply just please focus on the use of where it takes off and lands and make conditions around that, how many times a week they thought was acceptable and – well that’s about all that they could really put conditions on actually, or just refuse it – accept or refuse it but please don’t bring our home into this debate because its unnecessary and there’s no planning law to do that …”
115	There was never a question the Metcalfs required any permit, other than a building permit, to build a house.  The issue for the plaintiff was whether a development permit was required for the helicopter landing site and associated helicopter infrastructure, and whether the use permit sought for the helicopter landing site – four flights a day for commuter purposes – would, or could, result in unregulated flights, pursuant to a helicopter business that was said to be exempt from regulation under the Planning Scheme.
116	The only person at that meeting who considered the comments by the plaintiff revolved around the Metcalfs’ house was, apparently, the defendant.
117	In response to direct questioning as to how she had made the association between the potential rejection of the Metcalfs’ permit application and the removal of her house, the defendant said:
“… what was being alleged was that we had built the infrastructure to garage our helicopter in and that is true, we did build it to put all our things in - and there's many things in the shed other than a helicopter.  And what was - around the buildings and works, with the buildings and works, if they are denied or refused then those buildings and works need to be taken off the land, that's just how planning - planning laws are.  So the buildings and works are for the infrastructure here and if you get - go for a retrospective permit but it's denied, then you need to remove it.”
118	Mr Metcalf, in his evidence, said the council meeting ‘descended’.  He said all the objectors were ‘pretty noisy in the gallery … A lot of the objectors were yelling at the councillors to refuse it.  This is prior to the vote’.  He was asked whether there was any suggestion about the legality of his house and he said ‘when the councillors couldn’t agree, the planning manager said, “You’re out of time, you either need to refuse it or accept it.  The legality of their home is lawful”.’  
119	Mr Cathcart’s actual words were:
“There has been some developments on that site, all of which have been developed as allowed under the farming zone so they are sheds, a dwelling within a shed all of which meet the setback requirements under the zone and they all occurred prior to this application coming in, and they all have building permits in place so we regard them as legal sites. ... they are lawfully on site.”’
120	The plaintiff did not raise the dwelling at this meeting.
121	Mr Metcalf said he sought clarification after the meeting from a council officer, Gerald Leddin, about whether there was any issue with his house and was told, ‘[y]our home is lawful’.   
122	I am not persuaded that the defendant believed her home was under threat at that meeting.  Her protestations that the Metcalfs’ permit application before the SCSC was a simple matter is also disingenuous.  The Metcalfs knew they would have required a development permit for the helicopter landing site in its present location if they had pursued a use permit at that time.  They had been told this by Ms Berridge, following her discussion with Mr Curnow.  They also knew they would require a use permit for the number of flights they wanted, which were in excess of the exemptions under cl 52.15.  They had decided to defer the application for a use permit to enable their development to proceed as they felt it was getting ‘bogged down’.  The fact the helicopter landing site and use permit were now the subject of some controversy could hardly have come as a surprise.  The fact questions were being raised by the plaintiff and others about the order in which things had been done was entirely predictable.  
123	There was nothing in the plaintiff’s words or actions during that meeting that could lead a fair-minded person to conclude she had any particular attitude to the existence of a helicopter landing site, or a helicopter business, on the property.  Her concern was clearly, as she stated, about ensuring a proper and orderly planning process was followed.
Events leading up to the July council meeting
124	After the April council meeting, the defendant emailed councillors to ‘shed light’ on the Metcalfs’ permit application .  She said a brother of a councillor had trespassed onto her property to take photographs.  She said:  
“All of the questions raised by Councillor Wellington at Council reflected his (sic) unsolicited visit to our home. Bill Cathcart explained our home is ‘legal’, however this did not stop the attack of our home in a public setting. Some who witnessed this have reached out to say how disgusted and dismayed they were by some Councillors review of our application. Whilst I am all for a rich debate, the spectacle that was made of the professionals and the process we went through to build our shed was malicious, defamatory and offensive.”
125	It was clear at this point the defendant was already characterising the debate at the council meeting as an ‘attack of our home’.  She said neither she nor her husband were surprised by the decision as she was ‘prepared for the attack we received on the legitimacy to live in our home in advance’.  
126	She said
“By all means debate the application, but restrain yourself from making it personal and misrepresenting truth, integrity and good governance. Your failure to debate within the prescribed conduct expected of councillors was a reflection on you as our Council representatives. Your failure to decide has given us the clear road to lodge at VCAT at council cost.”
127	While the apparently rowdy behaviour of the ‘gallery’ is not recorded in the transcript of the meeting, there is no evidence of remarks made by the plaintiff, or any other councillor, that ‘made it personal’ or demonstrate a failure to debate within ‘the prescribed conduct expected of councillors’.  The plaintiff was raising legitimate concerns in relation to the process and the operation of the planning scheme.  The fact the defendant did not like the questions the plaintiff was asking does not make the plaintiff’s remarks or concerns unreasonable.
128	The plaintiff said as much in her response to the defendant:
 “My questions relate to compliance with the planning scheme in relation to heliports, helicopter landing sites and use of helicopters.  They are legitimate questions by a councillor acting in a planning decision-making role in relation to helicopters.” 
129	This resulted in a further email from the defendant:
“Perhaps reflect on the facts and stay on point, rather than be distracted by attempts to determine whether OUR HOME is lawful. Again, listen to the audio as that is exactly the spin you were taking and that we should ‘turn back the clock and make them get a permit for the development’. This is our home. I would never trespass on yours, frighten your children and then question the validity of your home based on a lack of planning understanding, speculation, gossip and malice.
 Again, what is lost on us is the trespassing, breach of our privacy and the way our application was managed at the Council meeting.” 
130	The plaintiff reiterated she knew nothing about the alleged trespass and did not intend to engage in any further email debate. 
131	The following morning, 8 May 2018, the defendant emailed the plaintiff again, copying in all other councillors. She wrote:
“Good Morning Heather, 
 You and others can google – a link to the shed company central steel produced as their advertising. They can call our shed whatever they like, not our business.
 What is our business is what you have begun with the on-line and public hate groups threatening to ‘tear our shed down’ on public forums and to us directly.
 We attended your rally last night. It was cancelled. We attended with 30 others, all there to listen to the truth and support the helicopter, what will be their community asset. 
 Your details are all over the ‘No Heli-Port’ publicity for the ‘objectors’.
 Again, this is our home and the personal commentary you and others have incited into the legality of our home/shed has begun a malicious witch hunt that has disgusted normal sound minded mothers and fathers within our community, the non-haters. And there are far more of those.
 We have been told your objections meeting, the one you are assisting to organise, is on another night.
 Whilst I too am happy that you do not continue to email, I do need to inform you of the destructive movement you have incited and ask again that you please consider the application in front of you and get your facts correct.
132	The defendant says this was a “‘line in the sand’ moment, when the plaintiff could have sought to placate a volatile situation, by opting out of the entire process of the Metcalfs’ permit application.  The defendant submits that a councillor acting impartially would have sought to calm down those people who wanted to tear the defendant’s house down.  Instead, in the defendant’s submission, the plaintiff ‘took sides’ and inflamed an already volatile situation.  
133	It is clear in this email communication that, far from the plaintiff ‘making it personal’, it was the defendant who personalised and inflamed the situation by accusing the plaintiff of ‘malice’, beginning online and public ‘hate groups’, and inciting a ‘destructive movement’.  This is extreme language.  
134	In her communications with community members, the plaintiff was at pains to be fair to the Metcalfs, noting they may have been given incorrect advice from the SCSC and making it clear she had not reached a concluded view on the application.  In fact, the plaintiff’s conduct demonstrates she was doing exactly what the defendant says she should have done ꟷ attempting to clarify the claims the objectors were making by asking the SCSC for answers.
135	The assertion by the defendant that the plaintiff’s actions had ‘begun a malicious witch hunt that has disgusted normal sound-minding mothers and fathers within our community’, is objectively untrue. Community members had lodged objections well before the plaintiff said anything about the Metcalfs’ permit application.
The objectors’ meeting
136	After the April council meeting, the plaintiff was contacted by some of the objectors, including Tarney Spencer and Norm Adams.  The defendant relies on the  plaintiff’s contact with some of the objectors to demonstrate that the plaintiff took sides with the objectors and was partisan, fixed in her view and unable to bring an impartial mind to the Metcalfs’ permit application.  Somewhat paradoxically, it is also relied on as evidence the plaintiff was the person who created the ‘witchhunt’ by feeding misinformation to objectors.  
137	In an email to Dr Spencer on 28 April 2018, the plaintiff wrote:
“I am happy to help the community as needed. I have not formed a final view as to what sort of activity is appropriate on the site, or the appropriate frequency (if any) of helicopter movements. My objective is to ensure appropriate processes are in place so both Council and the community understand the nature of the application and all parties have a fair chance to contribute their views.” 
138	She went on:
“I agree it would be useful for the community to form an incorporated association to give it a focus and a cohesive voice in relation to its current planning concerns (and potentially other matters of community interest) … .”
139	The plaintiff was also contacted by Mr Adams, one of the Metcalfs’ neighbours, and an objector.  In his email of 25 April, Mr Adams referred to ‘positive and friendly eye contact’ between the Metcalfs and the planning officer and said, ‘[w]e believe that there has been an abuse of process’.  In her response, the plaintiff was careful to point out her concern was ‘proper process in the assessment of planning applications’.  She noted her opposition to ‘piecemeal’ development and pointed out:
“ … It is not necessarily the applicant’s fault if this is occurring – he may have been given incorrect guidance by our planning department.  
 To be fair to the applicant, it was not he who called for the resolution to be changed, it was the planning officer who rightly pointed out that we needed to either defer, reject or approve the application … .” 
140	The assertion by the defendant that the plaintiff caused others to believe there had been an abuse of process is demonstrably incorrect.  Others in the community had already formed this view and it was the plaintiff who was attempting to ensure the Metcalfs were not inappropriately blamed for the advice given by council officers.  In this email, Mr Adams appears to have a view there was an inappropriate friendliness between the Metcalfs and the SCSC and an abuse of process.  The plaintiff provided no support for this view and it cannot be reasonably maintained the plaintiff caused Mr Adams or anyone else in the community to form this view.
141	The plaintiff informed Mr Adams she had been contacted by another community member, asked whether they had formed a group, and said she would be happy to meet with them to ensure they had a clear view about the process.
142	She provided links to the Consumer Affairs Victoria website for step-by-step instructions on setting up an incorporated association and attached a sample ‘statement of purposes’.  It was put to her that it was not a councillor’s role to help objectors set up an incorporated association.  The plaintiff disagreed and said she had done it with numerous community groups because most of them ‘don’t know how to do it … We’re elected as representatives of the community, we’re there to help them’. 
143	It was put to her ‘it doesn’t look independent or impartial’.  She said:
“… I certainly didn’t want to be contacted independently by 48 different people and have 48 different meetings about the same thing.  So it’s in my interest for them to set up an association.  It’s in their interest to set it up because they can then deal with their own issues and get a sort of … focus for what they’re doing and it’s in council’s interests and it’s in VCAT’s interests, so I think it’s a (sic) reasonable for a community – a councillor to do.” 
144	The plaintiff gave evidence she had formed an incorporated association with her local community members when they opposed the development at McAdam Park.  In that case, the community had gone to the VCAT in relation to the proposed expanded development of a local motorcycle racetrack.  The plaintiff’s community group had ultimately been victorious but the litigation took considerable time and money. The plaintiff gave evidence her involvement with McAdam Park triggered her interest in planning issues and the role of local government in such issues.  She said she could see there was a need for local government to do things better.  
145	I accept the plaintiff’s rationale for the assistance she provided to objectors in forming an incorporated association which was limited to providing links and templates.  I am not persuaded it demonstrates the plaintiff was not impartial or independent, or brought a fixed mind to the Metcalfs’ permit application.
146	A meeting was arranged to take place at the Freshwater Creek CFA hall.  The defendant gave evidence that ahead of the meeting, she had attended the CFA hall and told the person there ‘[w]ell, we’re going to come back with some of our people and my husband so that we can dispel … this nonsense … about the heliport and all of the fears’. After this conversation, the CFA withdrew permission to have the objectors’ meeting on their premises.  
147	Although the meeting had been cancelled, on 7 May 2018, the Metcalfs attended the CFA hall with some friends and supporters.  Six of the objectors were also there.  The defendant said she asked why the objectors wanted a retrospective permit for their home and was told by Helen Adams ‘they wanted the right to object to our home’.   The defendant told the objectors they did not have the right to object to their home and ‘this went round and round and back and forth and then Anne Bullen then just said, “We want the right to object to your home so we can tear it down”.’   The defendant says she told Ms Bullen, ‘[y]ou’re a very nasty lady’ and Ms Bullen then left. 
148	Following this cancelled meeting, the plaintiff approached Mr Baillie to see whether the SCSC could assist the objectors with a suitable venue for a meeting.  On 7 May 2018, she emailed Mr Baillie:
“ I feel it would be quite undemocratic for an objecting group to be dissuaded from meeting because of concern about the conduct of other parties (regardless of whether those concerns are objectively justified). I have therefore committed to arranging an independent venue for the objectors to meet later this week. I will be present to assist with information, and also to assist them to maintain order at the meeting.
 I have advised them that I have not yet formed an opinion on the application, and am simply supporting their democratic right to meet as a group to discuss their concerns and (if they wish) to formulate a plan of action.
 I have also advised them that if the applicant requests a meeting with me, I will be pleased to attend.” 
149	The objectors’ meeting ultimately went ahead on 9 May 2018.  The plaintiff and another councillor, Cr Duke, attended.  By email on 10 May 2018 the plaintiff relayed what had occurred at the meeting to other councillors and council officers.    
150	In that email the plaintiff writes that she:
“ … explained my view that there has been development of specific helicopter infrastructure on the site, including a landing pad and hangar (and possibly pilots’ accommodation and fuel tanks, although I have no personal knowledge of that), that I believe a development permit may be required but I am taking advice on that issue. … .”
151	The defendant relies on this, among other things, as evidence the plaintiff took sides with the objectors, her views about the Metcalfs’ permit application were fixed, and she was not open to persuasion.  
152	It is not clear to me why the plaintiff should not have shared her views about the questions she had, questions which are clearly raised by the sequence of events and the timing of the Metcalfs’ permit application.  I do not consider her questions about this demonstrate a fixed mind, nor a mind not open to persuasion.  She was seeking answers to questions.  The nature of the answers, which she considered unsatisfactory, is what resulted in her forming her opinion.
153	The plaintiff subsequently had extensive communication with council officers, asking questions, and trying to clarify the issues that were concerning her and community members.
154	Some of the questions she asked appear to have arisen as a result of community speculation and rumour.  For example, she writes she had been told by numerous community members that the dwelling was set up for group accommodation, with two kitchens and multiple private rooms.  She says, ‘I have no idea if this is correct, but wondered if we could have copies of building plans’.  
155	Seeking the building plans from the SCSC is consistent with the plaintiff’s stated position that openness and transparency are usually the best way to allay community concerns.  It is also consistent with her representations to the SCSC, on the defendant’s behalf, in relation to The Esplanade apartment.  Certainly, the perception the process had not been fully transparent fuelled concern within the community.  It was reasonable to think providing the building plans would be the swiftest way to dispel rumours that a commercial building existed.
156	The idea a commercial building was planned or existed may have arisen within the community because of discussions at the pre-application meeting in 2016.  Ms Berridge noted in the recap letter that the kitchen proposed for an outbuilding would have to be removed and ‘the staffroom and foyer etc need to be renamed as residential rooms, or not included in the initial application’.  In a small community, it is possible this information leaked.  The plaintiff could not have disclosed this information to community members, as she only became aware of it through discovery in this proceeding.    
157	Getting answers to the questions raised by the community and providing those answers back to the community could not reasonably be seen as ‘taking sides’.
The defendant’s complaints about the plaintiff and other councillors
158	After the April council meeting, the defendant emailed Anne Howard, general manager governance and infrastructure at the SCSC to complain about alleged trespass by Martin Coker in December 2017.  Mr Coker is apparently the brother of an SCSC councillor. The defendant alleged Mr Coker had been trespassing to ‘obtain intel’ and Cr Coker had not accepted the Metcalf invitation to attend their property to see a helicopter in action because she ‘did not need to, she had already sent her brother and formed her opinions, possibly pimping them on to other councillors’. 
159	She then says councillors had made certain the fire services work the Metcalfs were committed to providing as ‘a service to the community’ would not happen.  She says, ‘I hope your councillors will not have to explain the loss and unnecessary trauma called by a lack of adequate response in the event of a fire’.  There has never been, as far as I am aware, any explanation by the defendant as to why the fire service work she had been so committed to providing as a community service would no longer proceed.  On her interpretation of the planning scheme, any helicopter use associated with fire services is exempt from permit requirements and could have launched from the paddock prior to the Metcalfs’ permit application and afterwards, from the concrete apron.  
160	Further emails continued in a similar vein, casting accusations of ‘gross misconduct’, ‘[im]morality’ and ‘legal misconduct’ by Cr Coker.  She complains:
 “[w]hat an unnecessary waste of our time, money and once again anxiety caused by a dysfunctional council over a slab of concrete that we:
 -wash our vehicles down at;
 -park on;
 -skate on;
 -play cricket on and for the benefit of Councillor Coker, Wellington and other ‘concerned Councillors’ I have even placed a picnic table there on Mother’s Day.
 Simply staggering.” 
161	On 2 May, the defendant wrote to Ms Howard to claim Mr Coker’s breach of her privacy had been used to ‘make unsubstantiated and defamatory claims on our home/shed and the people involved in our project’.  She said she would await a formal response from the Mayor to:
“consider the relevance he places on conflicts of interest, possible corruption (trespassing and illegal procuring of photos hardly in the spirit of councillor code of conduct and absolutely relevant) and take action from there.” 
162	After numerous emails from the defendant to the SCSC, the then-Mayor notified the defendant he would not be taking action on her complaints.  In response, the defendant launched a personal attack on the Mayor.  She wrote:
 I wonder, what are your motivations? I have to consider this because the lady with the clip board at the objectors rally was full of the same fabricated lies you allowed Wellington to incite and project into a public space to be parroted by objectors … 
163	On 16 May 2018, the defendant complained to the Independent Broad-based Anti-corruption Commission (‘IBAC’) about the plaintiff, Cr Bell, Cr Coker and ‘possibly’ Cr Smith.
164	Between 6 and 8 June 2018, she sent at least six emails to IBAC complaining about the plaintiff.  The substance of the defendant’s complaints about the plaintiff are that she:
(a)	helped objectors and attended an objectors’ meeting;
(b)	has not listened objectively to information presented to her;
(c)	blocked the defendant’s emails;
(d)	did not respond to an invitation to attend a site visit at the defendant’s house;
(e)	alleged the building and works are unlawful;
(f)	incited hate groups.
165	On 11 July 2018, IBAC informed the defendant it had decided not to investigate or refer her complaint to another agency for investigation. 
166	While the next series of complaints occurred after the July 2018 meeting, it is convenient to deal with the various complaints made by the defendant against the plaintiff together. 
167	On 21 June 2019, the defendant made a complaint about the plaintiff to the Local Government Inspectorate (‘the Inspectorate’).  She enclosed, in that complaint, her various complaint emails to the SCSC.  The defendant’s case is the plaintiff is in breach of the Local Government Act 1989 (‘LGA’), which provides:
 (1)	A person who is, or has been, a Councillor or member of a special committee must not misuse his or her position— 
(a)	to gain or attempt to gain, directly or indirectly, an advantage for themselves or for any other person; or 
… 
(2)	For the purposes of this section, circumstances involving the misuse of a position by a person who is, or has been, a Councillor or member of a special committee include— 
(a) 	making improper use of information acquired as a result of the position he or she held or holds; or 
(b)	disclosing information that is confidential information within the meaning of section 77(2) … 
168	Section 77(2) of the LGA defines information as ‘confidential information’ if:
(a)	the information was provided to the Council or a special committee in relation to a matter considered by the Council or special committee at a meeting closed to members of the public and the Council or special committee has not passed a resolution that the information is not confidential; or
(b)	the information has been designated as confidential information by a resolution of the Council or a special committee which specifies the relevant ground or grounds applying under s 89(2) and the Council or special committee has not passed a resolution that the information is not confidential; or 
(c)	the information has been designated in writing as confidential information by the Chief Executive Officer specifying the relevant ground or grounds applying under s 89(2) and the Council has not passed a resolution that the information is not confidential.
169	The defendant alleged, in her complaint, that the plaintiff had attempted to ‘procure our PRIVATE and CONFIDENTIAL information for the purpose of offering this to the objecting parties’.  The defendant alleged the plaintiff:
“ … has made a private document sent to Councillors very public, disclosing the information contained in this document in a public forum (Council meeting April 2018) in her bid to twist and discredit our planning permit.  
170	She accused the plaintiff of bullying, having an “‘obsession’ and a ‘personal vendetta’ which has ‘fuelled other Councillors to vote against us, fuelled nonsense and mistruths to the objectors, local papers and the community’. 
171	The defendant also alleged the plaintiff had a conflict of interest and had made an FOI request improperly, using information available to her as a councillor.
172	On 3 July 2019, the Inspectorate dismissed the complaint after speaking with the defendant on 26 June 2019.  The Inspectorate noted none of the information used by the plaintiff was designated confidential information in accordance with the LGA and the plaintiff had not committed an offence under the LGA.  Further, the Inspectorate noted the plaintiff was entitled, as both a member of the public and as a councillor, to make an application pursuant to the Freedom of Information Act 1982.  Finally, the Inspectorate noted there was no evidence of any conflict of interest and ‘[w]hilst Cr Wellington appears to have a particular view on the [the Metcalfs’ permit application], this is not an offence under the Act’.  The Inspectorate declined to take any further action.
173	On 29 July 2019, the defendant emailed Beverley McArthur, the State Member for Western Victoria, to once again ventilate her complaints about the plaintiff and what the defendant termed the plaintiff’s ‘obsessive crusade’.  The defendant alleges the plaintiff has:
“ … peddled into the community, mistruths that have inspired rallies and hate on social media, placing my home and family in a fragile light for those who wish to believe in the interpretation of Wellington’s ‘understanding’ or lack of, the SCS planning scheme.” 
174	On 6 December 2019, the defendant again emailed Ms McArthur about the plaintiff.  She alleges the plaintiff ‘is only interested in her own self-serving agenda to embarrass the SCS and ourselves as she has now made this very personal’.  
175	She accuses the plaintiff of preparing to launch ‘malicious damage’ in the media and of having a ‘not so commendable agenda’ of twisting the Metcalfs’ true intention. She writes: 
 “The ‘development’ she is referring to is our home. The home my husband and I chose to build as parents to ground our daughters. Yes we are very wealthy. We chose to sell our very GRAND home with a very large SHED and build a lifestyle so that our children will not grow up in an atmosphere of wealth and prestige. We designed our home to model old fashioned values and create a sense of being connected to the earth and impart this to our daughters …” 
176	There is no evidence that Ms McArthur took any action in relation to the complaints.
The plaintiff’s permit application
177	On 22 July 2018, the plaintiff lodged an application with the SCSC for a use permit for a helicopter landing site.  The defendant calls this a ‘fake’ application and relies on it to support her truth defence in relation to a number of the alleged imputations.
178	Some background to this application is necessary.
179	The plaintiff had requested information and responses from council officers in relation to their interpretation of the planning scheme.  On 20 July 2018, council planning officers circulated their report on the application to councillors.  That report contained the following:
“ Any development on the land which is ancillary for the use of the land for a helicopter landing site requires a Planning Permit. .... it is noted that during the processing of the application the Permit applicant advised in writing that the development which had been undertaken on the land was not specifically related to a Helicopter Landing Site.  However, following on from the Council meeting the owner has disclosed that the works were intended to support a Helicopter Landing Site. On this basis, a retrospective permit would be required.’”
180	In email correspondence with council officers, the plaintiff noted council officers appeared to now agree with her view that a planning permit was required for the development.  In response, Ms Howard replied: 
“ The statement below was wrong and carried from an earlier version. It did not reflect the current view and it was good that when you picked it up earlier we could rectify this. You will see that the final public agenda doesn’t include this statement.
 I understand that this error will cause you significant frustration and I apologise on behalf of the team for the confusion it has created.
 I can reassure you that before we finalise the agenda there was extensive discussion and review by the planners and there is agreement that the current use and development is consistent with the planning scheme.” 
181	The report was subsequently amended to reflect council planning officers’ view that a retrospective permit was not required.
182	Of particular concern to the plaintiff were the following issues:
(a)	whether the hangar and concrete apron were helicopter infrastructure and a helicopter landing site and, thus, required a (retrospective) permit; and
(b)	whether the exemption for agricultural and emergency services from use permit requirements meant any business related in any way to agricultural and emergency services was exempt and beyond the scope of the Planning Scheme.
183	In particular, the plaintiff was concerned an unlimited number of flights of an unlimited number of helicopters could take place every day without any planning controls.  The plaintiff did not accept this was the intention of the exemptions in the Planning Scheme and made her view clear that if this was the correct interpretation, the Scheme was deficient.
184	The plaintiff was also concerned council officers’ implementation of the Planning Scheme to date had resulted in helicopter infrastructure and a helicopter landing site being built without any development permit.  Had a development permit been obtained at the time of the construction, it was the plaintiff’s view the permit could have put conditions on the use of the helicopter infrastructure.  In this way, the SCSC would retain some control over what would otherwise appear to be unfettered helicopter use. 
185	The plaintiff made numerous attempts to obtain explanations from council officers as to why the SCSC maintained its position that a permit was not required when it appeared the concrete apron had always been intended to be used as a helicopter landing site.  
186	The defendant says there would never be numerous flights in and out of the property per day.  She said:
“ … strategically the helicopter more than likely would be placed somewhere else in Victoria so that would rule out that it would be coming and going many times from our property.  The agricultural work, it was just something that we potentially might have done and, again, if we had done it, the helicopter would more than likely go somewhere in Victoria, rural Victoria, they would do their spraying for a couple of days and it would come back.  So there was not ever going to be 20 flights coming and going constantly from our property because the works don't demand that.” 
187	However, the plaintiff’s concern was that according to the council officer’s interpretation of the Planning Scheme, there was no restriction on helicopter movements for emergency or agricultural services.  Her concern was not whether there would be twenty or more flights per day, but whether there could be twenty or more flights per day.  The plaintiff’s concern was not, nor ever expressed to be, that the Metcalfs had done anything wrong.
188	The plaintiff decided to lodge her own application for a helicopter use permit.  She did not intend to operate a helicopter, but was trying to:
“ … require Council to formally state that it believes that a person can operate unlimited agricultural (and possibly emergency services) flights, through a helicopter contracting business, from any part of this site, at any time, without any planning control whatsoever.  That is what I understand officers’ current position to be.”  
189	She said if that was the SCSC’s position, they should ‘at least be seeking a VCAT declaration that that is a correct interpretation of the law’. 
190	Ultimately, the plaintiff’s application did not yield the hoped-for results.  She was duly granted a Certificate of Compliance, which allowed her to operate a helicopter landing site in accordance with the exemptions under Clause 52.15.  The scope of operations within the exemptions was not set out.  The plaintiff pursued it no further. 
191	While this application proved futile, it demonstrates nothing more than that the plaintiff really wanted to get answers from the SCSC as to the scope of exemptions under the Scheme.  
The plaintiff’s submission to councillors
192	On 22 July 2018, the plaintiff prepared her own analysis of the use permit application, which she distributed to councillors. 
193	In her submission, she pointed out the Metcalfs had built a shed they described as a hangar and a concrete apron which ‘has the distinctive appearance of a helicopter landing pad’.  She noted the contents of the Metcalfs’ submission, in which they explained their intention was always to utilise the site to park helicopters specifically purchased for utility work, and their history of the development, including their decision to push on with the build and address the permit ‘after [they] were settled’.
194	She noted the council officer’s report on 24 July 2018 which says TGM has confirmed the ‘existing development which has been undertaken on the site was not specifically related to the helicopter landing site’, and quoted from TGM that the concrete slab was built to provide ‘a formal surface for a range of uses including parking and access of farming machinery, and for general vehicle access’.
195	The plaintiff commented that both applicants and objectors should expect to receive consistent, logical advice from the SCSC and it is often difficult for objectors to understand their rights under the Planning Scheme and the legal position relating to a complex application.  She set out her analysis of the use permit and the consequence if no permit is required.  She said:
 “If officers’ stated position on helicopter use is correct, any vacant land in any zone anywhere in the Shire where a helicopter can be safely landed could be used for a helicopter business that specialises in contracted agricultural and/or emergency work as proposed by the applicant, without any planning controls at all (including controls to address number of helicopters, types of helicopters, separation distances from sensitive uses, hours of operation, frequency of operation), regardless of impact on neighbours.  This would include land zoned residential, rural residential or rural.” 
196	She then set out her recommendations which were that:
(a)	the SCSC does not support the commuter flights (use permit application) until it has a clear understanding of the potential volume and amenity impact of flights that may be conducted without any regulatory control, in order to understand the cumulative impact of both unregulated and regulated uses;
(b)	the SCSC seek declarations from VCAT that a development permit is required for the helicopter landing site;
(c)	the SCSC seek declarations from VCAT that a permit is required for a contractor’s depot in order to operate a contracting business in emergency or agricultural services;
(d)	the SCSC seek declarations from VCAT that the scope of the exemption in cl 52.15 of the Planning Scheme does not extend to use of land for a helicopter landing site at which helicopters are routinely parked and kept.
197	The defendant says this was an extraordinary submission and demonstrates the plaintiff was obsessed and was devoting an inordinate amount of time to opposing the Metcalfs’ permit application.
198	This document is a summary of the information the plaintiff had obtained to date, together with an explanation of her concerns, questions and recommendations. 
199	There were differing views within the SCSC about the Metcalfs’ permit application of the Planning Scheme and the operation of the exemptions.  Council officers were satisfied the Planning Scheme provided no scope for the SCSC to regulate any helicopter usage in relation to agriculture or emergency services.  Council officers were also satisfied the concrete apron and hangar had not been built as a helicopter landing site and helicopter infrastructure, and no retrospective development permit was necessary.
200	I do not accept that the plaintiff acted inappropriately in providing her submission to councillors or that this demonstrated an obsession or a closed mind.  
201	Her actions were consistent with her stated interest in ensuring an orderly planning process by setting out the perceived contradictions in council officers’ decisions and the implications of those decisions.  
The July 2018 meeting
202	On 24 July 2018, the SCSC met to consider the deferred Metcalf permit application.  In response to a question from Mr Adams,Mr Salan responded:
“ … if all other things being equal anyone can develop a farm shed and a concrete apron on their farm.  At the time of construction, it was identified that this development was undertaken for the purpose of accommodating was (sorry) at the time of this development was undertaken for the purpose of accommodating helicopters, then it would require a planning development application to be submitted, but it wasn’t.  In relation to your second question, this question is premised on the scenario where it was not originally identified that the development was for the purpose of accommodating helicopters, but subsequently this has been identified.  This is the scenario being considered by Council this evening, and Council is being asked to determine a position on this matter …” 
203	The plaintiff then said she had decided not to participate in the decision because by making her own application, she had taken a step ‘beyond representing residents and responding to them’ and a:
 … step beyond having a very, very robust debate and a very firm view and it takes me to a point where I become a player in the proceedings so I have decided to take myself out of the decision making … 
204	The plaintiff maintained she did not have a conflict of interest but could see her application could give rise to a perception she had a conflict of interest.  
205	A number of other councillors also spoke in relation to the application and the motion that the SCSC seek declarations from VCAT.
206	The concerns of all the councillors who spoke were similar and reflected the plaintiff’s concerns that the scope of the exemptions was unknown and could have a significant impact on amenity if interpreted in the broad way contended for by the defendant.
207	Ultimately, the decision of the SCSC was unanimous. All councillors voted in favour of the Metcalfs’ permit application with certain conditions and all councillors voted in favour of the motion to seek declarations from VCAT.  
The VCAT applications
The SCSC application
208	The SCSC issued proceedings in VCAT seeking declarations on the following questions: 
(a)	What is the intended scope of the exemptions contained in cl 52.15-1 of the Surf Coast Planning Scheme for the use of land for a helicopter landing site by a helicopter engaged in the provision of emergency service operations and/or agricultural activities?
(b)	Is a planning permit required for the use of the land known as Coombes Road, Freshwater Creek for a contractor’s depot (helicopters) in order to operate a contracting business offering helicopter-based agricultural services and emergency service operations of the type described within the permit application No. 17/0376 and by the landowner?
209	The proceeding was struck out as misconceived on 19 September 2018.  
210	The SCSC’s hope had been for wide-ranging declarations to provide clarification on the scope of exemptions.  Section 124 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) gives VCAT power to make a declaration concerning any matter in a proceeding, instead of any orders it could make, or in addition to any orders it makes in the proceeding.
211	The VCAT member found there was no need for the SCSC to bring its application.  To the extent any aspects of cl 52.15-1 were relevant to the determination of the Metcalf permit application before VCAT or the need to characterise the use in that proceeding, any declarations could be made in that proceeding.  Ultimately the VCAT member did not consider the scope of any exemptions in the Metcalf permit application as the only application before VCAT was a use permit seeking four movements per day from the concrete apron.
212	The defendant submits the plaintiff persuaded the SCSC to make this application and that the declarations were the plaintiff’s idea and she advocated for that motion to councillors and council officers. 
213	However, all the councillors voted in favour of the motion and, as can be seen from the transcript of the meeting, the issue of the scope of exemptions was a significant concern for a number of councillors.   
214	The submission that all the councillors on the SCSC would blindly follow a motion advocated for by the plaintiff, without making their own assessment of its merits, has no foundation.  The decision to seek declarations from the VCAT was a decision of the SCSC, not the plaintiff.
The Metcalf VCAT permit application
215	As a result of the SCSC vote to defer a decision on the Metcalfs’ permit application at the April 2018 meeting, the Metcalfs were entitled to, and did, make an application to VCAT for determination of their use permit.
216	The proceeding was heard over 24 to 26 September 2018.  On 26 November 2018, the VCAT granted the Metcalfs’ use permit application and rejected most of the conditions sought to be imposed by the SCSC.
217	The defendant submits that should have been the end of the plaintiff advocating ‘that the Metcalf’s home was illegal’.  The defendant submits the Court can infer that if VCAT took the view the construction was not legally constructed in the first place, it would not have made orders regarding helicopter use.  
218	I do not accept such an inference can be drawn.  The decision of the members makes it clear what was being considered was only an application for four movements per day from the concrete apron.  There was no application for any commercial operation and no consideration of how, if, and when, the site could be used for emergency services, land management and/or agriculture.
219	The tribunal members had regard to whether the proposal achieved a suitable separation distance from nearby sensitive use, and the effect of the proposal on nearby sensitive uses in terms of the proposed frequency of flight movements and hours of operation.
220	The members dealt at some length with noise and safety concerns, particularly in relation to transmission power lines.  
221	The members noted the other residents’ concern the land used to store the helicopter could be characterised as a contractor’s depot, meaning that the helicopter would be  stored and its use contracted out for agricultural and emergency services.   In response, the members noted the Metcalfs’ permit application submits:
“… the helicopter is intended to be only used for commuting by a resident of the subject land.  It will be garaged on the site within the existing building along with other vehicles, plant and equipment associated with the dwelling and the agricultural uses of the land.  The helicopter is not intended to be used in a commercial contracting operation.  
 There is nothing within the application that leads to the conclusion that the land is to be used to store the helicopter as part of a contractor’s depot.  Locating the helicopter within the existing building on the subject land is not different to parking any other vehicle used by the residents such use is ancillary to the use of the dwelling and there is no separate requirement for a permit for a store.”
222	There is no indication in the reasons that the members considered the issue of whether a retrospective permit was required for the helicopter landing site (or ‘helipad’, as the members refer to it in the reasons).  
The plaintiff’s FOI application
223	Mr Adams, one of the original objectors and a neighbour of the Metcalfs, informed the plaintiff he had made an FOI request to the SCSC to produce documents relating to the use permit application and the amended use permit application, and the construction and use of the helicopter landing site.  Mr Adams showed the plaintiff the documents produced in response to his request. The plaintiff noted the SCSC had omitted three documents which she considered central to her understanding of the issues arising from the amended use permit application – the Metcalf email, the Metcalf submission, and the advice email. 
224	The plaintiff made her own FOI application to the SCSC.  She did so in her personal capacity as a private citizen, and did not discuss it with the objectors.  She explained she knew documents existed which were not in the public domain, and felt a member of the community was being denied access to documents which were necessary for him to exercise his right to participate in a democratic process.
225	She felt the SCSC was improperly using the FOI process to withhold documents from the public which they should have had.  She wanted confirmation the documents she had were documents the public was entitled to.  She noted:
‘… it’s really important from my perspective that planning is transparent, it has to be.  It’s a fundamental part of the Planning Act and the Planning Scheme.’
226	This conduct by the plaintiff, while strongly criticised by the defendant as demonstrating the plaintiff had taken sides and was ‘obsessed’, is consistent with her stated views about the importance of transparency in good governance.  She gave evidence she has made a number of FOI applications in relation to council matters and presently has at least one FOI application on foot in relation to council documents.  It is also consistent with her position in relation to the defendant’s access to planning documents in her own dispute with the SCSC over The Esplanade apartment.  Her view has always been that planning documents should be available to the public so all parties are fully informed and have the information they need to make appropriate submissions in the planning process.
227	The SCSC rejected the application and the plaintiff took the matter further, firstly to the Office of Victorian Information Commissioner (‘OVIC’) which granted her application in part, resulting in the release of the Metcalf email and the advice email, and subsequently to VCAT.
228	Mr Metcalf was joined as an interested party to the VCAT proceeding, and opposed the release of documents, as did the SCSC.  The plaintiff was successful in her application and, on 20 November 2019, VCAT ordered the release of the Metcalf submissions.
229	During and after the VCAT FOI proceedings, a number of articles appeared in local newspapers reporting on the matter.  Some of those articles were also uploaded by the plaintiff to her Facebook page.  
230	On 5 June 2019, an article titled ‘McArthur backs Wellington on FOI request’ stated:
‘Earlier this year, Cr Wellington made Freedom of Information (FOI) request for what she described as ‘two secret documents used by the shire to make a planning decision’, which was rejected by the shire.’  
231	On 5 July 2019, an article titled ‘Doc reveals issue at chopper hangar’ (‘Chopper Hangar article’) included the following:
‘… (VCAT) approved a commuter permit for the use of the helicopter but the shire had not yet ‘further considered’ the hangar issue, Cr Wellington said.’ 
232	The documents sought under the FOI request were documents that were available to council officers and councillors prior to the 24 April council meeting. 
The 2020 election campaign
233	The plaintiff and defendant both stood as candidates for Winchelsea Ward in the SCSC during the 2020 local government elections.
234	During the campaign, the defendant set up the Facebook page. 
235	Voting closed on 23 October 2020.  On 5 November 2020, the results were announced.  The plaintiff was returned as councillor.  The defendant’s campaign was not successful and she was not elected.
236	Between 18 October 2020 and 17 November 2020, the defendant wrote and posted on her Facebook page each of the publications the subject of this proceeding.
The plaintiff’s credibility
237	The plaintiff was an impressive witness.    She made appropriate concessions, and was careful to ensure she did not overstate her recollection of events.  She was cross-examined extensively about her conduct and motivations, and significant aspersions were cast upon her character, including that she was obsessive, a bully, condescending, egotistical and manipulative.
238	She said ‘I pride myself on telling the truth’.  She is clearly a person who has high professional standards and strong principles.  She said:
‘The only reason I don’t respond to people is because I make an error … I miss something.  I respond to everybody and I do my best for everybody and that’s my purpose in being a councillor … .’
239	Because the defendant’s case depends in large part upon establishing the plaintiff’s conduct was unreasonable and amounted to a campaign of attack against the defendant, and because the defendant relies on a defence of truth in relation to a number of the imputations, it is necessary to examine in some detail the plaintiff’s evidence about her conduct and motivations as a councillor.
240	She saw her job as a councillor was to ‘make sure that everybody had a fair go’.  She has an ‘absolute commitment to fairness and to making sure that everybody gets a fair go, that all the information is on the table, that everyone is heard’. 
241	She said:
‘I’m trained in medicine and law and it’s been drummed into me from being a teenager, really, that, you know, integrity and honesty and openness is core and it’s really important to me to feel I act that way.’ 
242	Her adherence to those principles was demonstrated by her conduct in relation to the events that form the background to this case.  
243	She said her motivation as a councillor was to ensure transparency, openness, and proper governance: 
‘… My motive as a – like, I – I mean, I could be running my professional practice and just – honestly, it would be a lot easier than being a council – a councillor, you know.  It's not easy being a councillor but to suggest that you've got anything other than a motive of trying to help the community, that's my motive, and that includes everybody in the community, not special groups.  I've helped developers, I've helped teachers, I've helped people who have got trouble with their roads, I've helped people who think their privacy's been breached, I've done all sorts of things, and I do it without fear or favour, I do it for everybody, and, you know, that I've got some sort of improper motive ‑ I can't ‑ I don't know what that motive is and I can assure you there is no improper motive.  My motive is about – is about community support. … .’ 
244	The evidence demonstrates she can be tenacious, even dogged, in pursuit of an objective.  She is not a person who will take the easy road or backdown when she believes a principle is at stake.  However, she is a reasonable and rational person.  Her professional life has been spent in medicine and medical management, including governance and the intersection between medicine and law.  She is interested in process, in learning why things go wrong and ensuring mistakes are addressed and resolved. 
245	She became involved in the SCSC because she felt there were opportunities to do things better:
‘… there’s clear opportunities, in our view there were opportunities for the council to do things better in circumstances like that, like to actually engage with the community, to be more open, not to resist giving information which they had done, and generally just to be more open to ratepayers. … .’ 
246	Sometimes this means going against the SCSC’s advice and recommendations.  She has been critical of the SCSC’s conduct and decisions.  
247	The plaintiff gave evidence about a dealing with council officers on planning matters.  She re-called an incident where residents complained about trucks and activities occurring on the land opposite them, and trying to sort through a difficult problem.  She said:
‘… My experience of the planning scheme is that generally it's a good and fair document and it doesn't usually allow things to happen that really damage other people's amenity, you know, it's usually, it's usually pretty  sound in balancing the rights of objectors and developers … .’ 
248	On this occasion, she disagreed with the SCSC’s interpretation of the Planning Scheme, and was refused access to the planning permit.  The matter ended up at VCAT and the SCSC’s original decision that the use of the land was within the Planning Scheme was found to be incorrect.  The plaintiff gave evidence about her engagement with the SCSC CEO after this experience:
‘I said to the CEO it would be – in health what we would routinely do with that would be to look back and see how did that happen so that you learn from it. … there are lots of mistakes in health care and we would always look back with a major - what I would call a major adverse event, which I would say that was, for people to be, you know, feeling they're putting up with something unreasonable for 10 years was, in my view, something we should have been worried about … ‘ 
249	The plaintiff has consistently demonstrated her concerns around openness and, in particular, access to documents.  This was apparent in her representations to the SCSC on behalf of the defendant in relation to The Esplanade apartment, as well as through her FOI request for the Metcalf documents and the other FOI requests she has made.
250	She says there is very little that occurs in a council that is actually confidential and the system is set up to be open to the public.   She says:
‘… my view is that it is way better to be open and let people see what the process is and what their rights are and, you now, often people have only got part of a picture … openness is a very good tool for confidence in decision-making and in health we have a national open disclosure policy … .’ 
251	She says the culture she has been ‘brought up in’ in health is that:
‘… when you have an adverse event in a health care system you must tell people, you disclose it and then you look at what went wrong and you fix it and you don’t try to hide things.’ 
252	No doubt the plaintiff’s views about her role as a councillor results in some tension in her relationship with other councillors and council officers.  She does not always accept the advice of council officers.  She does not always accept the decisions made by council officers.  She challenges those decisions, sometimes in the VCAT.  She has felt bullied on occasion.  She has not always attended council briefings, as those briefings take place during the office hours when she is working.  Despite requests, those briefings have not been moved as they suit other councillors. 
253	The plaintiff was a credible witness.  Her evidence as to her motivations as a councillor is supported by her conduct in office.  I had no reason to doubt the veracity or reliability of any of her evidence.  
The defendant’s credibility 
254	The defendant was not to be deterred from reiterating her own version of events, rather than responding to the question asked.  
255	She gave her evidence with fixed certainty and was unable or unwilling to consider other possible interpretations of events, or the possibility her recollection might be faulty.  This extended to her providing apparently direct quotes from conversations, that were not always plausible.  She insisted that at her first meeting with the plaintiff at The Esplanade apartment, the plaintiff told her she had spent $350,000 taking the McAdam Park matter to the VCAT, and that the plaintiff was perceived as a bully by council officers.  The plaintiff denied both those things.  It is highly unlikely, upon first meeting a ratepayer, that the plaintiff would say she was considered a ‘bully’ by the SCSC.  I do not accept the defendant’s evidence about this. 
256	The defendant did not make appropriate concessions.  For example, she insisted her complaints to IBAC and the Inspectorate were simply for the purposes of having a ‘review’, and not with the intention that these bodies would take action against the plaintiff.  This was inexplicable, as she believed, and continues to believe, the plaintiff has behaved inappropriately, dishonestly and corruptly, as is apparent by her defence of truth.  Anyone holding such beliefs would surely wish action to be taken against an inappropriate, dishonest and corrupt councillor.  
257	It would appear she did not want to be viewed as someone with any personal animus toward the plaintiff.  However, the contents of her publications and other posts make it clear the defendant’s ire was directed at the plaintiff immediately after the April 2018 council meeting, and her evidence was unconvincing on this point.
258	She gave evidence she had not necessarily thought deeply about the content of her various documents.  She said she ‘didn’t think much’ about her complaint to the Inspectorate after it was made.  She said the graphic (also known as a ‘meme’) attached to the seventh publication was just ‘a general comment about leaders’, and she had ‘just found it and popped it up’ without thinking.  This is implausible.  The graphic says nothing about leaders, nor could be reasonably construed to be a ‘general comment about leaders’.  It says, ‘Look, the narcissist is turning into the victim again!’  It is far more likely the defendant considered this graphic had something to say about the plaintiff, specifically, the plaintiff was a narcissist.
259	The defendant was prone to exaggerating, particularly when faced with perceived obstacles.  For example:
(a)	without minimising the unpleasantness of living above a restaurant that produces excessive noise, unpleasant smells, and annoying vibrations, her concerns about The Esplanade apartment were escalated in her mind to ‘daily threats’ to her and her family’s ‘health and safety’;
(b)	she ascribed nefarious motives to all those who opposed her permit application, including accusing the Mayor of turning a blind eye to corruption;
(c)	she accused Cr Coker of ‘pimping’ her ‘already formed’ opinions onto others;
(d)	she accused the plaintiff of instigating a ‘witch hunt’.   
260	These exaggerations cause me to treat with caution her evidence about what happened at the objectors meeting and what has been said to her by community members over the period since.  It is more likely that community members have expressed views to the Metcalfs consistent with the evidence Mr Metcalf gave, which is that members of the community perceived the Metcalfs ‘got around’ the planning scheme.
261	The defendant maintained fixed opinions.  For example, she maintained that VCAT had made a ‘determination’ about the development permit issue, even though the development permit issue was not before VCAT and no determination was made.  She became increasingly adamant about this as she gave evidence.  She said the determination of the issue was recorded in transcript.  The fact the issue may have been considered is not the same as a tribunal making a determination about it.  The defendant is not a lawyer, however, she has been extensively involved in this planning decision and appears very familiar with the principles and case law.  I expect she appreciates the distinction between something being raised before a tribunal, comments made by a tribunal member, and the determination made by the tribunal.  
262	She also engaged in a degree of tortured reasoning.  She says the plaintiff was motivated by a desire to gain personal advantage.  She explained the advantage the plaintiff obtained was:
‘… that our activities … that we couldn’t do them, then that would be an advantage for the objectors who were objecting to us doing these activities and Heather was advocating with those objectors that she didn’t want those activities … Heather was trying to gain an advantage over the garaging of our helicopter until such times as we got secondary permits.’ 
263	When pressed about what advantage this afforded the plaintiff, the defendant finally explained the advantage the plaintiff obtained was ‘because they [the actions] disadvantaged us’.
264	I do not accept that causing the Metcalfs a disadvantage gives the plaintiff an advantage.  
265	These matters have caused me to consider the defendant is not a reliable witness.  I have treated her evidence with caution.  Where there is a direct dispute I prefer the plaintiff’s evidence.  
The publications
266	The defendant published numerous posts about the plaintiff on her Facebook page.  The plaintiff sues in relation to seven of those posts.  The plaintiff bears the onus of proving each publication was ‘of and concerning’ her.   
267	In the first to sixth publications, the defendant names the plaintiff as the subject of those posts:  first publication, beginning, ‘The missing untold pieces in Councillor Wellington’s Porky Pies’); (second publication, referring to ‘the grandstanding performance by Councillor Wellington’ in the second sentence of the opening paragraph); (third publication, beginning, ‘The pantomime continued as Wellington went on’); (fourth publication, beginning, ‘An interesting article written by Wellington’); (fifth publication, naming the plaintiff in the third sentence); (sixth publication, naming the plaintiff in the first sentence of the opening paragraph and in the second sentence of the attached letter: ‘I am writing to share my experience of Councillor Wellington’).
268	The seventh publication does not name the plaintiff.  In that post, the defendant says:
‘… I can see many have engaged in my posts, and I thank you for allowing me to shine a light on the strategies and workings of a councilor (sic), ‘community groups’ and media who circulate stories and give legs to phantom ‘secrets’. … .’
269	The plaintiff called evidence from witnesses that all the posts, including the seventh publication, had been read by them and understood to be about the plaintiff and the reference in the seventh publication to ‘a councilor (sic)’ was a reference to the plaintiff.
270	I accept that evidence and, accordingly, the plaintiff has established the defendant published each of the posts sued on and each of the publications was of and concerning the plaintiff.
Principles
271	The plaintiff must establish the imputations alleged were conveyed.  The relevant principles are well known and are not in dispute in this case:
(a)	The question is whether ordinary reasonable readers would have understood the matters complained of in the defamatory senses pleaded; 
(b)	The ‘natural and ordinary’ or ‘ordinary and reasonable’ meaning of a publication can be its literal meaning, its implied meaning, or what is to be inferred; 
(c)	Ordinary reasonable readers are persons of ordinary intelligence, experience and education, who are neither perverse nor morbid nor suspicious of mind nor avid for scandal; 
“This ordinary reasonable reader does not, we are told, live in an ivory tower. He [or she] can, and does, read between the lines, in the light of his [or her] general knowledge and experience of worldly affairs. It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his [or her] capacity for implication is much greater than that of a lawyer.” 
(d)	The ordinary reasonable reader does not look at the matter in isolation, but rather in the whole context in which it is published, including the surrounding circumstances.   If one part of the publication damages the plaintiff 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.”
(e)	The meaning which the defendant intended to convey by the words she published is irrelevant to determining their natural and ordinary meaning;
(f)	The manner in which the publication was actually understood is also irrelevant in determining the natural and ordinary meaning;
(g)	A publication may convey multiple imputations, but the adjudicator at trial will arrive at a single ‘right’ meaning as to the ‘natural and ordinary meaning’ of the words complained of;  
(h)	The more sensational an article in a newspaper, the less likely it is that the ordinary reasonable reader will read it with the degree of analytical care which may otherwise be expected, and the less the reader will expect a degree of accuracy.  Conversely, the ordinary reasonable reader of a serious publication may be taken to read it more cautiously and critically, especially having regard to the opportunity to reflect on its contents;
(i)	Generally, courts will not take a narrow view of the meaning conveyed by words which are imprecise, ambiguous, loose, fanciful or unusual;
(j)	The assessment of meaning is ultimately a matter of impression, rather than of close scrutiny and analysis of the publication; 
(k)	The hypothetical reader is not taken to formulate reasons, which are very often an afterthought.  Nor is he or she taken to consider the meaning of what is published by reference to various meanings which might be found in dictionaries; 
272	The forum of publications is a relevant factor in determining meaning. 
273	Publications on social media platforms, such as Facebook or Twitter, may be read in a ‘fleeting’ manner and should not be subjected to an elaborate analysis or parsing of content.  The medium has ‘the nature of a conversation in which participants ordinarily correspond without using carefully chosen expressions’. 
First publication
274	On 18 October 2020, the defendant posted the first publication on her Facebook page.  
275	The plaintiff pleads the first publication conveyed five imputations about her.  These are that she: 
(a)	told lies in relation to for a planning permit;
(b)	used ratepayers’ money to challenge the Planning Scheme in VCAT;
(c)	attempted to hinder the operation of fire emergency services in the Surf Coast Shire by using an application to VCAT for the purpose of ensuring that a permit is required in order for someone to land a helicopter in a fire emergency;
(d)	incited a group that engages in hatred towards others to harass the defendant, by fuelling them with false information about the defendant’s planning application;
(e)	put the lives and safety of the defendant and her family at risk by ignoring the defendant’s pleas for help to address an unrelated planning issue.
276	The defendant admits imputations (a) and (b) are conveyed.  She denies imputation is conveyed.  She submits there is no mention of hindering fire emergency services and the ordinary reasonable reader of a Facebook post would not parse through the post for a theoretical or logically-deducible meaning, but would scroll through it quickly.
277	The relevant parts of the first publication state: 
“-To be clear, fire and emergency and agriculture work are both exempt under the planning scheme. In lay terms, a permit is not required to engage in this work. (We will never pursue fire emergency work now, I will explain in a later point.)
 - Wellington used rate payers $$$ to challenge the planning scheme at VCAT. These planning provisions are for safety and for the management of our crops. Wellington could not accept this as best planning practice.
 - In other words according to Wellingtons determination, to land a helicopter in a fire emergency a permit should be required. (Reflect on that and its implications).”
278	An ordinary reasonable reader would understand from those words that fire and emergency work does not require a permit under the Planning Scheme, and the plaintiff has challenged the Planning Scheme at VCAT to try to require a permit for a helicopter to land in a fire emergency.  
279	Although the word ‘hinder’ is not used, the words ‘reflect on that and its implications’ make it clear what is being said is that if the plaintiff’s actions succeeded, this would have significant negative implications in a fire emergency.  A reasonable reader would understand that requiring a permit to land a helicopter in a fire emergency would inevitably hinder the operation of fire emergency services.  The reader is invited to ‘reflect on that’ and imagine an emergency situation in which a helicopter cannot land because of the lack of a required permit, or where a helicopter cannot be deployed for use in a fire emergency because of a lack of permit.  There is no doubt such a scenario would ‘hinder the operation of emergency service’.  Accordingly, the imputation is conveyed.
280	The defendant admits imputation (d) is conveyed.
281	The defendant denies imputation (e) is conveyed.
282	The relevant extract of the first publication states this:
“I approached Wellington regarding a live situation that affected the DAILY health, safety and well-being of my family and others. We met twice. Wellington was aware the situation determined my family safety and well-being was deteriorating and at risk. … .
“I was given no help to seek the documents my family needed to fight this very real, live, daily battle. My pleas, distress and cry for help were ignored by Wellington. We were abandoned and left to fight alone. Wellington did not tackle the council for the documents we needed. Wellington incited no public hysteria or outrage around our families dire situation. Wellington put up no political stand off with Council officers and CEO. Wellington walked away and ignored the life safety risks we were left in without any challenge to the status quo.”
283	The defendant submits the ordinary reasonable Facebook reader would not have understood, from the post, that the plaintiff did anything to put the defendant and her family at risk, and such meaning can only arise from an over-elaborate analysis of the text, which is not appropriate.
284	I am satisfied an ordinary reasonable reader, knowing nothing about the background facts involved in The Esplanade apartment situation, would understand from these words that the plaintiff knew of a ‘real, live, daily battle’, knew of a ‘live situation that affected the DAILY health, safety and well-being’ of the defendant and her family, and ‘walked away and ignored the life safety risks’.  The ordinary reasonable reader, not knowing anything about the risks mentioned, would understand from these words that there was something that posed a very significant and daily risk to the defendant’s health and safety and this was ignored by the plaintiff, who abandoned the defendant, ignored those risks and walked away.  
285	The fleeting manner in which a reader is said to peruse a Facebook post provides no assistance to the defendant in refuting that the meaning is conveyed.  The repetitive use of the words ‘safety’, ‘life safety’, ‘health’, ‘safety and wellbeing’, ‘at risk’, ‘deteriorating’, ‘battle’ and ‘fight’, all convey a meaning that the lives and safety of the defendant and her family were at risk.  The use of the words ‘given no help’, ‘pleas, distress and cry for help were ignored’, ‘abandoned’, ‘walked away and ignored’, in relation to the plaintiff, clearly convey the meaning that it was the plaintiff who put the lives and safety of the defendant and her family at risk.
286	The meaning is conveyed.
Second publication
287	On 25 October 2020, the defendant posted the second publication on her Facebook page.
288	The plaintiff pleads the second publication conveys the imputation the plaintiff incited groups that engage in hatred towards others to allege the defendant’s home was illegal and to allege the defendant and her husband had abused the planning provisions.
289	The defendant admits this imputation is conveyed.
Third publication
290	On 26 October 2020, the defendant posted the third publication on her Facebook page.
291	The plaintiff pleads the third publication conveys the following imputations:
(a)	in relation to the defendant’s planning application, the plaintiff fabricated information and told lies;
(b)	the plaintiff is so delusional that she believes the lies that she tells and the stories that she makes up in her head about the defendant’s planning application.
292	The defendant denies imputation(a) is conveyed.
293	The third publication opens with the words ‘[t]he pantomime continued’ and makes reference to ‘this circus show’.  It goes on:
‘Below I have copied an excerpt from our planning application which was submitted in 2017, and not in 2018 as Wellington states. This is a minor effort in Wellington’s ‘facts’ when assessing the much larger fabrication of the mind bending confusion and porkies she has fed the community and activists.’
294	The defendant submits there is otherwise nothing referring to ‘fabrication’ by the plaintiff, and the extract would only be read in a fleeting manner, such that an ordinary reasonable reader would not draw that meaning from the words.
295	A fleeting reader of the post would understand the words to convey the meaning the plaintiff has fed the community lies and confusion as part of a ‘much larger’ fabrication about the defendant’s planning application.  The words ‘fabricated information’ are not used, but reading the entire post demonstrates the meaning conveyed is that the plaintiff has made up or fabricated information which she has dispersed into the community.  ‘Porkies’ is a clear reference to lies, and these lies are attributed to the plaintiff.  The meaning is conveyed. 
296	The defendant denies imputation (b) is conveyed.
297	At the end of the third publication, there is a graphic which states ‘[s]ad how some people believe their own lies and the stories they make up in their heads’.
298	The defendant submits this sort of graphic, common in social media platforms, would not be read by a Facebook audience as conveying a meaning that the plaintiff ‘is so delusional’ she believes the lies she tells about the defendant’s planning application.  
299	There is no mention of the plaintiff being delusional.  The graphic is intended to refer to the plaintiff and an ordinary reasonable reader would understand the graphic refers to the plaintiff and means she believes her own lies and the ‘stories’ she ‘make(s) up in her head’.
300	Believing your own lies and the stories you make up has a different meaning than simply being a liar or making up stories.  The graphic says it is ‘[s]ad’ that some people believe their lies and stories they make up ‘in their heads’.  The notion that one might believe one’s own lies and stories conveys an idea that such a person is more than a liar and has moved into a belief which is not grounded in truth or reality.  
301	The ordinary reasonable reader would understand that having a belief in your own lies or in stories ‘made up in your head’, conveys a meaning that such a person is delusional.  The imputation is conveyed.
Fourth Publication
302	On 9 November 2020, the defendant posted the fourth publication on her Facebook page.
303	The plaintiff pleads the fourth publication conveys imputations she:
(a)	engaged political supporters who are prepared to engage in violence in order to smear and bully the defendant and block her election to the SCSC;
(b)	engaged political supporters who are prepared to engage in violence in order to relentlessly spread false information about the defendant;
(c)	acted unethically by engaging political supporters who are prepared to engage in violence in order to smear and bully the defendant and block her election to the SCSC, and in order to relentlessly spread false information about the defendant.
304	The fourth publication opens: 
‘An interesting article written by Wellington. I do wonder how the new Councillors will respond to this overt boasting of quota. Given the manner in which the election was managed by henchmen and activists who smeared, bullied, blocked and campaigned tirelessly to letter drop misinformation I hardly call this of a high ethical standard. Nor do I commend martyring oneself under the petticoats of transparency to haul families into VCAT is in keeping with flying the flag to raise community spirits either. (Wellington recently put forward a motion for VCAT to determine cattle yards, gravel driveway and herd of cattle in the farming zone, the motion was supported by only one other councillor).’
305	Each of the imputations pleaded refers to ‘political supports who are prepared to engage in violence’.  The plaintiff said this imputation is conveyed by use of the word ‘henchmen’, together with references to ‘smeared’, ‘bullied’ and ‘blocked’.
306	The plaintiff submits ‘henchmen’ is commonly understood to mean a political supporter or follower who is so faithful as to be prepared to engage in violence or crime by way of service, and it conjures up an image of mobsters, cronies and heavies.  
307	The defendant says there is no mention the plaintiff, herself, engaged henchmen, nor that any of the people were prepared to engage in violence.  The defendant submits the reliance on a strict definition of the word ‘henchmen’ is an overreach.
308	I agree with that submission.  The ordinary reasonable reader would understand a henchman to be someone who does the bidding of another, perhaps even in a shady or underhand manner.  It certainly conveys something more than an activist, or a supporter.  However, read in the context of the whole post, it does not go so far as to convey a meaning that the plaintiff engaged people who were prepared to engage in violence, or a permissible variant of such a meaning.   Imputation (a) is not carried. 
309	For the same reasons the imputations (b) and (c) are also not conveyed. 
Fifth publication
310	On 11 November 2020 the defendant posted to her Facebook page the fifth publication.  The plaintiff pleads it conveys the imputation the plaintiff fraudulently claimed reimbursement for fuel expenses from the SCSC.
311	The defendant admits this meaning is conveyed.
Sixth publication
312	On 13 November 2020 the defendant posted the sixth publication on her Facebook page, which is a copy of a letter she sent to councillors at the SCSC.
313	The plaintiff pleads the letter contains the following imputations:
(a)	the plaintiff created a fictitious scandal concerning the defendant’s planning application;
(b)	the plaintiff invented allegations that there was a secret involving the defendant’s Planning Application and council officers, the defendant, and her husband, had abused the Planning Scheme;
(c)	the plaintiff created and disseminated a story about the defendant’s planning application that was based on lies. 
314	The defendant admits the pleaded imputations are conveyed.
Seventh Publication
315	On or about 17 November 2020 the defendant posted on her Facebook page the seventh publication.  The plaintiff pleads the seventh publication conveyed the imputation the plaintiff engaged in corruption in relation to the SCSC.
316	The seventh publication relevantly states:
‘This second Act is coming to an end. As the family who was targeted by a councilor [sic] and activist groups who march to a destructive tune of hate it has been cathartic calling out rampant toxic, underhanded, nasty and corrupt behaviours. I can see many have engaged in my posts, and I thank you for allowing me to shine a light on the strategies and workings of a councilor [sic], ‘community groups’ and media who circulate stories and give legs to phantom ‘secrets’. This is dangerous, it is not transparent and nor is it constructive.’
317	At the end of the post, a graphic is attached which refers to narcissists.
318	The defendant submits the ordinary reasonable reader would have read this post in a fleeting manner and would more likely have been left with the impression the plaintiff was a narcissist.  The minor reference to ‘corrupt behaviours’ would have been lost on the reader and the plaintiff is not mentioned by name, nor are the corrupt behaviours the defendant is ‘calling out’ attributed to her.
319	I am satisfied the reference to ‘a councillor’ is a reference to the plaintiff.  Witnesses also gave evidence they understood the reference to be to the plaintiff.  The imputation may include the ‘activist groups’ in the corrupt behaviours, but certainly does not exclude the plaintiff from that charge.  The question is whether an ordinary reasonable reader would consider a reference to corrupt behaviours to convey a meaning the plaintiff engaged in corruption in relation to the SCSC.
320	An ordinary reasonable reader would not make a distinction between ‘corruption’ and ‘corrupt behaviours’.  While the reader might also be left with the impression the plaintiff is a narcissist, this does not negate the meaning conveyed by the pleaded imputation, which is the plaintiff engaged in corruption.  The meaning is conveyed.
Are the imputations defamatory of the plaintiff?
321	The defendant conceded all the meanings, if conveyed, are defamatory of the plaintiff.  This requires little exploration.  The meanings found to be conveyed are the plaintiff:
(a)	told lies in relation to the defendant’s application for a planning permit;
(b)	used ratepayers’ money to challenge the Planning Scheme in VCAT;
(c)	attempted to hinder the operation of fire emergency services in the Surf Coast Shire by using an application to VCAT for the purpose of ensuring that a permit is required in order for someone to land a helicopter in a fire emergency;
(d)	incited a group that engages in hatred towards others to harass the defendant, by fuelling them with false information about the defendant’s planning application;
(e)	put the lives and safety of the defendant and her family at risk by ignoring the defendant’s pleas for help to address an unrelated planning issue;
(f)	incited groups that engage in hatred towards others to allege the defendant’s home was illegal and to allege the defendant and her husband had abused the planning provisions;
(g)	fabricated information and told lies in relation to the defendant’s planning application;
(h)	is so delusional she believes the lies she tells and the stories she makes up in her head about the defendant’s planning application;
(i)	fraudulently claimed reimbursement for fuel expenses from the SCSC;
(j)	created a fictitious scandal concerning the defendant’s planning application;
(k)	invented allegations there was a secret involving the defendant’s planning application and that council officers, the defendant, and her husband, had abused the Planning Scheme;
(l)	created and disseminated a story about the defendant’s planning application that was based on lies told by the plaintiff; and
(m)	engaged in corruption in relation to the SCSC.
322	All are self-evidently defamatory.
Defences
Truth
323	The defendant pleads that some of the imputations are true, or substantially true.
324	Where truth is told, reputations either cannot be damaged, or are only brought down to their proper level. 
325	For each imputation I have found conveyed, the defendant bears the onus of proving it is true. 
326	The defences are pleaded pursuant to s25 of the Defamation Act 2005 (Vic) (‘the Defamation Act’) and at common law, but the question I must determine is the same ꟷ has the defendant established the imputation was substantially true in every material respect?  ‘Substantially true’ is defined in the Defamation Act to mean ‘true in substance or not materially different from the truth’.  
The Plaintiff told lies and fabricated information in relation to the defendant’s application for a planning permit (imputation 8(a) and 16(a)) 
Defendant’s submissions 
327	The defendant pleads the imputations, ‘the plaintiff told lies in relation to the defendant’s application for a planning permit’ and, ‘in relation to the defendant’s planning application, the plaintiff fabricated information and told lies’ are true, as the plaintiff told the following lies in relation to the defendant’s application for a planning permit.
328	Firstly, during the council meeting on 24 April 2018, the plaintiff stated:
‘I don’t think the application in front of us is for a business use and a business use requires its own permit.’
329	The defendant says this was a lie because the Metcalfs’ permit application referred to all uses that were proposed by the Metcalfs, which included business uses.  The plaintiff was aware of the contents of the TGM submission and also attended the submissions hearing meeting on 20 March 2018.  If she was unclear about this issue, then she could have sought clarification at the submissions hearing meeting, or at any of the council briefings where the Metcalf’s permit application was discussed.  Instead, the plaintiff made this allegation for the first time at the 24 April council meeting.
330	Secondly, during the 24 April council meeting, the plaintiff further stated:
‘… it didn’t get a planning permit in the first instance because it was for farm use and then and all of a sudden it becomes helicopter use, how does that work… .’
331	This was a lie because: 
(a)	It was untrue to state it did not get a planning permit in the first instance because it was for farm use.  The truth was the Metcalfs constructed a dwelling on their property in the farm zone and no planning permit is required for a dwelling on a 60-hectare property;
(b)	Further, the statement represented that the Metcalfs hid from the SCSC that they intended helicopter use at their property, so as to avoid the proper planning processes.  In fact, the Metcalfs notified the SCSC in 2016 of intended helicopter use, and the plaintiff was aware of that.
332	Thirdly, at the 24 April council meeting the plaintiff said:
‘… Can I build a massive shed on my farm property without a planning permit and a helicopter landing site just a slab of concrete without a planning permit and say I’m going to use it for farm business and then it turns into a heliport.’
333	This was a lie, because it represented that the Metcalfs misled the SCSC and also intended to turn their dwelling into a heliport.  According to the Victorian Planning Provisions (‘VPP’):
‘A heliport is not separately defined in Clause 74 but is included within the definition of transport terminal. A transport terminal is defined as land used to assemble and distribute goods or passengers. It includes facilities to park and manoeuvre vehicles.’ 
334	The defendant submits there was never any suggestion in the Metcalf’s permit application, or in any representation made by the Metcalfs that anything close to a heliport or transport terminal was proposed, therefore the suggestion they intended to construct a heliport was an ‘absurd’ lie by the plaintiff.
335	Fourthly, the plaintiff stated publicly, and in numerous newspaper articles, there existed ‘two secret documents used by the SCSC to make a planning decision’.
336	The defendant says the plaintiff conceded the Advice Email was not used by the SCSC in making a decision. 
337	Further, the defendant says the Metcalf Submission was not used by the SCSC to make any decision, as it was VCAT who made the decision.
338	The only ‘decision’ made by the SCSC on 24 July 2018 was to seek a number of conditions be placed on the Metcalfs’ Use Permit Application and this, in the defendant’s submission, could not be the decision the plaintiff was referring to when referring to ‘two secret documents used by the SCSC to make a planning decision’.  The defendant submits this was said by the plaintiff to create a misleading impression there was a nefarious secret agreement between the SCSC and the Metcalfs, which was a lie.
339	Fifthly, the plaintiff lied in her statement in July 2019 in the Chopper Hangar article.  She is quoted in that article:
‘Victorian Civil and Administrative Tribunal (VCAT) approved a commuter permit for the use of the helicopter but the shire had not yet ‘further considered’ the hangar issue, Cr Wellington said.’
340	This is a lie because, according to the defendant, the SCSC had considered the ‘hangar issue’ at every step since 2018 and determined it – the Metcalfs did not need to apply for a permit to build their dwelling. 
341	The defendant submits the SCSC’s view that the Metcalfs did not need to apply for a planning permit to build their dwelling has never changed.  For the plaintiff to state, in mid-2019, that the SCSC have not ‘‘further considered’ the hangar issue’ is a lie.  There was nothing left for the SCSC to consider.  
342	The defendant relies on the fact the Metcalfs’ counsel raised the case of Williams v Manningham City Council during the hearing to support the proposition that VCAT had considered this issue.   At the VCAT hearing counsel for the applicants had submitted:
‘… all existing buildings and works on the subject land are lawful and when I take you to the Williams v Manningham City Council decision you will see that the tribunal in that case was very comfortable with the notion that if there’s something already on the land that can be utilised for the landing of a helicopter, that’s fine and that’s understood and that’s accepted.  
 It doesn’t in any way, shape or form, as the objectors are seemingly seeking to do mean that you – you’re effectively you have foregone – foregone or are now required to go back and retrospectively get a planning permit.  If it’s lawfully constructed, as is absolutely the case here, and you want to utilise an area of a lawfully constructed work, that can be done and it just simply doesn’t raise the spectre that somehow you now need a permit for that development.’ 
343	The defendant submits, if there was a chance the infrastructure was ‘illegal’, the VCAT would not have ‘gone the next step to grant a use permit’. 
344	For the plaintiff to suggest, thereafter, that further consideration was required for the ‘hangar issue’ was misconceived and inflammatory.  It was a lie.
Findings
345	The imputation the plaintiff told a lie requires not just evidence the statement was wrong but that the plaintiff misled or deceived.
346	Firstly, I have dealt with the circumstances of the April 2018 meeting in detail above.  The plaintiff’s remarks that the application was not for business use was in response to Cr McGregor’s comments:
‘… in my mind this proposed activity is one that would be as use of a business for the applicant that is their choice if they want to put forward a business proposal and work that through but from a use perspective everything to me fits within the viability of the zone.  They already have two pilots I believe with the appropriate aviation operator certificate who can fly the helicopters on behalf of the developer.  They would be involved in things like surveying landscapes, being able to provide emergency service responses from the site and I think that although it’s an activity we are not familiar with as councillors, it doesn’t necessarily mean we should knock this one back because it’s not something we understand very well … .’
347	The plaintiff then said: 
‘… I’m a bit puzzled I’m hearing people saying they’re supporting - I don’t know if I have heard this correctly but they’re supporting a business use of - from land surveying and agricultural use from that site.  I don’t think the application in front of us is for a business use and a business use requires its own permit ... my reading of the application in front of us was that what, that what, was that it was for ancillary use to a dwelling that was commuting … .’
348	At the time of the April 2018 meeting, the Metcalfs had amended their use permit application to remove commercial uses.  The plaintiff was stating the correct position, which was councillors could only consider the Application before them, not other matters.  Indeed, there was no application for business or commercial use before the councillors.
349	The defendant’s submission the Metcalfs’ application included all uses, including proposed business uses, is at odds with her pleaded Defence, in which she pleads the plaintiff lied when she posted on her Facebook page that Tim Metcalf made a submission in support of a permit to conduct a helicopter business, and the plaintiff ‘was aware that the Use Permit Application did not relate to a helicopter business … and was aware that this would propagate the controversy that she sought to establish’. 
350	A business use confined to agricultural or emergency services may not require a permit, but other business uses, such as aerial landscape surveying, as mentioned by Cr McGregor, may.  The plaintiff’s statement was not a lie.
351	Secondly, the plaintiff’s statement ‘it didn’t get a planning permit in the first instance because it was for farm use and then and all of a sudden it becomes helicopter use, how does that work’, is not a lie.  It is a legitimate question.  The allegation that this statement represented that the Metcalfs had hidden from the SCSC their intention to use a  helicopter at their property so as to avoid the proper planning processes is, at best, a stretch.  The plaintiff’s concern was not with the Metcalfs, nor is there any suggestion she considered they had hidden anything from the SCSC.  Her concern was with the planning department process of approval. 
352	Thirdly, the plaintiff’s statement in relation to a ‘heliport’ is not a lie.  To find it was a lie would require me to accept the plaintiff understood the distinction between a helicopter landing site, a helipad and a heliport, and deliberately used the term ‘heliport’ in order to mislead and deceive.  While most people would understand the difference between an ‘airport’ and a ‘landing strip’, I am not persuaded most people would understand a heliport consists of multiple helipads in a transport terminal.  I am not persuaded the plaintiff understood the distinction and deliberately used the term heliport.  A misstatement or slip of the tongue is not the same as a lie.
353	Fourthly, the quote attributed to the plaintiff is that the SCSC made a planning decision based on a secret document.  The document in question was the Metcalf Submission, which was ‘secret’ because both the SCSC and the Metcalfs had opposed its public disclosure.  It was not publicly disclosed until after the plaintiff’s successful FOI application.
354	The defendant submits the SCSC never made a planning decision based on the document.  Firstly, there is, a distinction between council officers, councillors, and the SCSC.  Secondly, there is a distinction between a decision made about the Use Permit Application and a planning decision more generally.
355	There is no evidence about what use councillors other than the plaintiff made of the Metcalf Submission.  The contents of that document caused her to vote to defer consideration of the Use Permit Application in April 2018.  Indeed, the evidence established the Metcalf Submission was drafted by the Metcalfs in response to questions raised in a report by council officers about the Amended Use Permit Application, and with the intention it would be considered before the vote at the April 2018 meeting..
356	This document informed the plaintiff’s position in relation to the planning decision before her – the Use Permit Application.  She could not disclose the contents of that document, because it was opposed by the SCSC and the Metcalfs.  She considered it was important the community understood the basis upon which the SCSC reached its decisions, including having available all the documents.
357	The plaintiff’s concession that the advice email from Mr Curnow ‘probably’ was not used by the SCSC to make a planning decision, is not the same as an admission she lied.  She went on to say: 
‘so they were part of the - the chain of emails that came to councillors on the afternoon of the decision.  Whether councillors used them to make a planning decision, I don't know.  I certainly looked at them and took them into account in my planning decision-making but whether other councillors did that, you know, I don't - I probably don't know … .’ 
358	She rejected the proposition the Metcalf submission had not been used to make any submission: 
‘Oh, well, I don't agree with you.  I think that the two - both the 2016 and the 2018 documents only came to the attention of councillors a couple of hours before the 2018 meeting.  Um, I - they certainly influenced my decision at that meeting to say we need more information about this and we need to defer it because they raised all those questions about what the purpose - about the purpose of use of the site but also about the development permit, so - the need for a development permit - so I think - they may have contributed.  It's probably too strong to say they were used by the - they were used by the shire to make a planning decision but they certainly would have contributed and did contribute to my thinking and probably given that you've suggested that I swayed the whole council with that - with my opinion, it probably contributed to the planning - so the decision at that point was to defer and then the council did make a decision in July that year. The fact council officers may not have used these documents as the basis of their decision in relation to the Use Permit Application, does not mean the contents of the 2016 document were not used in relation to a ‘planning decision’, for example, whether a development or use permit was required for the hangar and dwelling.  It does not mean councillors did not use either of those two documents to inform their decision in April or July 2018.  The only evidence is from the plaintiff, who says they did influence her decision, which was a ‘planning decision’.
359	Consequently, the plaintiff’s statement is not a lie.
360	Fifthly, the plaintiff’s statement that the hangar issue has not been further considered is not a lie.  
361	There was no application before VCAT that the concrete apron or hangar required a retrospective development permit.  VCAT cannot make a determination on an application that is not before it.  VCAT determined the application before it, which was an application for a use permit.  Nothing more can be inferred from the reasons.
362	The defendant relies on the VCAT decision as evidence her interpretation of the Planning Scheme is correct.  However, the VCAT decision did not address the two main concerns of the plaintiff, which were:
(a)	Whether a planning permit required for the concrete apron as a helicopter landing site and/or the hangar as helicopter infrastructure; and
(b)	the extent and scope of the exemptions under cl 52.15.
363	There was, and never has been, any suggestion anything other than a building permit was required for a house.  
364	The hangar issue has not been further considered.  It might never be further considered, but that does not change the fact that VCAT did not determine the issue, however strongly the defendant submits it did, and the SCSC has not further considered the issue, however fervently the plaintiff wishes it would.
365	A difference of opinion about the need for further consideration of the ‘hangar issue’ is not the same as a lie.
366	The defendant has not established the truth of the imputation ‘the plaintiff told lies in relation to the defendant’s application for a planning permit’.
The plaintiff used ratepayers’ money to challenge the Planning Scheme in VCAT
Defendant’s submissions
367	The defendant says the plaintiff used ratepayers’ money to challenge the planning scheme in two ways:
(a)	by persuading the SCSC to make the application to VCAT seeking declarations in July 2018; and 
(b)	by submitting her own application for a use permit for a helicopter at her own property.
368	The defendant says the plaintiff persuaded the SCSC by circulating a submission to all councillors on 22 July 2018.
369	On 24 July 2018, the SCSC then made the decision to seek the declarations from VCAT as to the scope of the exemptions in cl 52.15, largely in line with the plaintiff’s suggestions.
370	The defendant says the VCAT proceedings incurred legal costs and consequently ratepayers’ money was spent.  Those proceedings were intended to challenge cl 52.15 of the VPP.
371	Ratepayers’ money was also spent responding to the plaintiff’s application for a use permit.  She applied for the use permit to ‘challenge’ the officers’ interpretation of the Planning Scheme.  
Findings
372	The declarations sought from VCAT were the plaintiff’s idea.  The motion was not ultimately voted on by the plaintiff, who recused herself.  However, it was unanimously supported by all other members of the SCSC.  I have set out above the fulsome support it received from other councillors.  There is simply no substance to the argument that this vote by councillors resulted in the plaintiff ‘spending’ ratepayers’ money at VCAT.
373	Further, the declarations sought were not to challenge the Planning Scheme, but to seek clarification of it.  This was considered to be of benefit by all councillors.
374	The plaintiff did, technically, spend ratepayers’ money when she made her own use permit application.  She did this as a private citizen, and spent ratepayers’ money in the same way the Metcalfs spent ratepayers’ money in making their own application, and in the same way any person having any dealings with the SCSC ‘spends’ ratepayers’ money.  This does not amount to a ‘challenge’ to the Planning Scheme.  
375	The plaintiff’s use permit application did not go to VCAT.  This cannot be relied upon by the defendant to prove the truth of her allegation that the plaintiff used ratepayers’ money to challenge the SCSC Planning Scheme at VCAT.  
The Plaintiff attempted to hinder the operation of fire emergency services in the Surf Coast Shire by using an application to the VCAT for the purpose of ensuring that a permit is required in order for someone to land a helicopter in a fire emergency
Defendant’s submissions
376	Clause 52.15 of the VPP provides the following:  
‘No permit is required to use land for a helicopter landing site if any of the following apply.
Emergency services	The helicopter landing site is used by a helicopter engaged in the provision of emergency service operations.
Agriculture 	The helicopter landing site is used by a helicopter engaged in agricultural activity in conjunction with the use of any land for agriculture.
					The helicopter landing site where either:
General		The landing point is located more than 500 metres from a building used for a sensitive use … 
	The number of flight movements does not exceed eight in a 30 day period.’
377	The defendant submits the use of a helicopter for fire emergency services is exempt from the requirement of a planning permit.  That point was recognised by VCAT Tribunal Member Rickards during the VCAT proceedings, who stated to Ms Fanning, counsel for the objectors:
‘Well, you understand that even if there was no dialogue in the application about reference to emergency services or agricultural use, that this is an application about a helicopter landing site and if that’s approved, then the site could be used at any time for emergency services and agricultural use. It does not come under the planning scheme because it’s exempt. … .’
378	The defendant says the plaintiff has always held the view the provision of fire emergency services pursuant to a business ought to be regulated by the Planning Scheme and has advocated that a person who uses a helicopter to conduct fire emergency services, if done pursuant to a business, required a planning permit.
379	The plaintiff expressly advocated for the requirement of a planning permit to provide fire emergency services by persuading the SCSC to seek the declarations from VCAT and by making her own application for a use permit.
380	On 30 July 2018, in her ‘Letter to the Editor’ of the Winchelsea Star, the plaintiff stated:
‘Neighbours who have consulted me have two other continuing concerns.
 Council officers have advised that in addition to the commuter and ‘as of right’ movements described above, the applicants can operate a helicopter contracting business providing emergency and agricultural services from the property without any planning control at all.
 If officers’ interpretation if the Planning Scheme is correct, neighbours could be subject to the amenity impacts of unlimited flights, in addition to the commuter and ‘as of right’ flights described above, from any location on the property, day or night, utilising any number of helicopters, for agricultural or emergency service contracting purposes, without any planning controls at all. … .’
381	The defendant submits the plaintiff’s view is that if a person who provides fire emergency services as a business ought to have a planning permit, that would hinder the operation of fire emergency services, and that this is precisely what the plaintiff attempted to achieve through VCAT.
Findings
382	Requiring an emergency services provider to obtain a planning permit to use a helicopter in the middle of an emergency on the land on which the emergency was taking place would clearly hinder the operation of emergency services.  However, this was never what the plaintiff advocated or desired. 
383	On the other hand, requiring a business that provides emergency services to have a use permit for movements to or from the land upon which the business is located, would not hinder the provision of the emergency services, except to the extent regulation of any aspect of emergency services could pose a ‘hindrance’.  The post is clearly intended to convey the imputation the plaintiff wanted to impose  a permit requirement  for use of helicopters in an emergency, rather than in the provision of emergency services. These are two quite different things.  There is no truth to the imputation. 
The Plaintiff created a fictious scandal concerning the Defendant’s planning application. The Plaintiff invented allegations that there was a secret involving the Defendant’s planning application and that council officers, the Defendant and her husband had abused the Planning Scheme (Imputations 27(a) and 27(b))
Defendant’s submissions
384	On 15 October 2020, the plaintiff uploaded the Metcalf submission onto her own Facebook page following the VCAT FOI decision.  Beneath that post, the defendant left a comment. Below that comment, the plaintiff wrote:
‘Kirsty Schwarzenberg/Metcalf there are no secrets about this matter. Please ensure that you are accurate in your ‘disclosure’.’
385	The defendant submits in this comment the plaintiff is representing the defendant was secretive in relation to the Metcalf permit application and the plaintiff’s words carried a ‘latent’ meaning that there was a scandal about it.  By putting ‘disclosure’ in inverted commas, the plaintiff was representing the defendant had lied about her disclosures, and there was something nefarious or scandalous in what the defendant did.  
386	The defendant says this also underpins the plaintiff’s motives in bringing the FOI application, which was not brought for reasons of transparency, but rather to ‘undermine’ the Metcalfs.
387	In mid-2019, there were several articles in local newspapers about the FOI application.  The defendant submits these were instigated by the plaintiff and make reference to ‘two secret documents’. 
388	The defendant says these newspaper articles made it appear there was something nefarious disclosed in those documents about the dealings between the Metcalfs and the SCSC.
389	The defendant says neither of these documents were used to make a planning decision, and the articles ‘alluded to a scandal that simply did not exist’. 
390	The ‘Chopper Hangar’ article was uploaded by the plaintiff to her Facebook page.  The defendant says the article is ‘laced with insinuation that there was a scandal’ involving the Metcalfs’ permit application and shows how the plaintiff created a fictitious scandal because nothing in the actual documents created any controversy at all. 
391	The defendant says the plaintiff’s comments in the article confirmed the community belief that there was some scandal, and it impacted on the lives and reputations of the Metcalfs.
392	Therefore, the defendant submits, it is substantially true to state the plaintiff created a fictitious scandal involving the defendant’s planning application and that council officers, the defendant, and her husband, had abused the planning scheme.
Findings
393	The defendant’s submission the plaintiff created a fictious scandal is not plausible.
394	The plaintiff sought documents which related to the Metcalfs’ planning application.  The SCSC and the Metcalfs opposed their public release.   The plaintiff was not at liberty to disclose those documents without making an FOI application. To that extent, the documents were ‘secret’.  
395	To the extent there was a scandal around those documents, or otherwise around the planning application, it simply cannot be said the plaintiff created that scandal.  
396	To the extent the defendant relies on the timing of the release of the documents by the plaintiff as creating a scandal, I note the newspaper articles which are said to also be part of the creation of the fictious scandal were printed in mid-2019.
397	There is nothing in any of the evidence to suggest the plaintiff said, implied, or believed, that council officers, the defendant, or her husband, had abused the Planning Scheme.  She was clear in communications to the objectors, at council meetings, and in internal communications within the SCSC, that she did not understand the reasoning behind council officers’ recommendations and advice, but was careful to say the Metcalfs may have been given the wrong advice and did not attribute any blame to them.
398	There is no truth to the imputation.
The plaintiff engaged in corruption in relation to the SCSC
Defendant’s submission
399	Section 4(1) of the Independent Broad-Based Anti-Corruption Commission Act 2011 (Vic) (‘IBAC Act’) defines ‘corrupt conduct’ to include the following. 
‘(1)	For the purposes of this Act, corrupt conduct means conduct — 
(a) 	…
(b)	of a public officer or public body that constitutes or involves the dishonest performance of his or her or its functions as a public officer or public body; …’
400	The defendant submits the plaintiff performed her functions as a councillor in a dishonest manner and therefore engaged in corruption pursuant to the IBAC Act.
401	The defendant says a councillor must bring an open mind to planning matters.  A council exercises a ‘quasi-judicial’ function when making a decision in the exercise of a statutory discretionary power which may affect the rights and interests of an individual, including when deciding to approve or not to approve an application for planning or development approval.  Councillors must act in a ‘judge like’ manner when performing quasi-judicial functions.  They must show no bias.
402	The defendant says a decision can be infected by error where a councillor is biased.  A councillor is not disqualified from participating in a decision because they hold and express a view.  However, they must be open to persuasion.
403	The defendant submits the plaintiff was not open to persuasion and this amounted to dishonest conduct.
404	The defendant relies in her submission on the history of the application and the plaintiff’s conduct in relation to it.  The defendant says the plaintiff’s views demonstrates she was not open to persuasion because:
(a)	the SCSC had stated numerous times the construction was legal and did not need a development permit;
(b)	the plaintiff did not read the case of Foodbarn Pty Ltd v Solicitor-General, referred to in the planning officer’s report;
(c)	the plaintiff told objectors she was taking advice on the permit issue, but there was no evidence she did take any advice, despite evidence she often paid for barrister’s advice; 
(d)	VCAT granted the use permit and it can be inferred that if VCAT considered a development permit was required, it would not have granted a use permit;
(e)	there was no utility in considering the development issue anyway, because it would only relate to the concrete apron, which could not impact any neighbour amenity;
(f)	the scope of the exemptions under cl 52.15 is clear, and the plaintiff refused to accept them;
(g)	VCAT struck out the SCSC’s attempt to obtain declarations about their scope;
(h)	the VCAT member stated during the hearing that emergency services and agriculture did not come under the Planning Scheme because they were exempt;
(i)	the plaintiff ‘continued to advocate against the Metcalfs;
(j)	the plaintiff brought the FOI application when there was no utility to it and the only purpose was to provide documents to Mr Adams so he could seek to re-agitate the argument that the Metcalfs needed a development permit;
(k)	the plaintiff’s ‘constant use’ of the media to publicise her position was ‘dishonest’ because ‘she did not have an open mind to the Metcalf’s application’, and she knew the issues were ‘volatile and sensitive’ and, in those circumstances, she ‘should have stopped pressing the issues and certainly could have refrained from making public statements’;
(l)	the plaintiff was ‘on a personal crusade to assist the objectors and Norm Adams at any cost’.
Findings 
405	Even if I were to accept as fact all the submissions made by the defendant, at most, these could demonstrate the plaintiff had a fixed view about the Metcalf permit application and was not open to persuasion.  A fixed view might amount to a bias and might make a planning decision subject to error.  I do not accept, without more, that amounts to dishonest conduct.
406	Dishonest conduct must, by definition, require the plaintiff to act dishonestly.  The defendant’s own summation of the factors she relies on to establish the plaintiff’s ‘dishonest’ conduct, instead, demonstrates a person who has taken a principled stance and maintained her convictions.
407	Disagreement about the interpretation of the Planning Scheme, or the application of the law, cannot amount to dishonest conduct.
408	The purported motive for the plaintiff’s supposed ‘personal crusade’, ‘to gain an advantage by disadvantaging the Metcalfs’, propounded by the defendant is implausible.
409	However, to be clear, I do not accept the submissions made by the defendant for the following reasons: 
(a)	The plaintiff is entitled to not accept and to question advice given by council officers.  She has personal experience of council officers being wrong in their advice;
(b)	The plaintiff’s failure to read Foodbarn, far from being ‘significant’, is irrelevant to any question of whether the plaintiff engaged in corrupt behaviour;
(c)	It was not put to the plaintiff she had failed to take advice on the issue.  It is not clear whether the advice she intended to seek was legal advice or other advice.  She may have sought some advice, but even if she had not, that does not demonstrate dishonesty.  It may simply demonstrate she changed her mind about the need for advice;
(d)	I have already found the inference the defendant submits can be drawn from the VCAT decision is not available;
(e)	The submission there was no utility in pursuing the Development Permit because it could only relate to the concrete apron, which could not bear on any other person’s utility, would be an novel concept to planners and councils across the State.  It is through the planning process that impacts on amenity are assessed.  The lack of obvious impact is not the same as a conclusion there is no impact.  Further, the proposition there is no point in following a proper process because ‘it would make no difference’ is extraordinary.  Finally, whether or not there was any utility in pursuing the matter does not bear on the question of the plaintiff’s honesty or dishonesty in pursuing it;
(f)	The scope of the exemptions under cl 52.15 is not clear to the plaintiff, nor to the rest of the councillors, who expressed their views at the July 2018 council meeting and voted unanimously to seek declarations from VCAT;
(g)	VCAT’s decision to strike out those proceedings says something about whether the proceedings were misconceived.  It does not say anything about the plaintiff’s honesty;
(h)	Exemptions for agriculture and emergency services do not come under the Planning Scheme.  However, this does not mean the scope of the exemptions is clear;
(i)	There is no evidence the plaintiff advocated against the Metcalfs.  Her concern was with the council process;
(j)	The different views the plaintiff and defendant have about the FOI application is irrelevant to the question of whether the plaintiff acted honestly or not.  The plaintiff has used FOI applications on a number of occasions in line with her stated views about the importance of transparency and openness in governance.  Obtaining a favourable determination in an FOI application may have utility to the applicant beyond the scope of the documents obtained, such as establishing what documents are, or are not, appropriately able to be publicly accessed.  A successful FOI application may provide guidance and assistance to FOI officers at councils and elsewhere as to the scope of the legislation and the likely documents covered by it.  I do not accept there was no utility to the FOI application.  Nor does the FOI application demonstrate the plaintiff was dishonest;
(k)	I do not accept the evidence establishes the plaintiff made constant use of the media.  In fact, her evidence was she was one of the less frequently photographed councillors and used the media sparingly.  However, regardless of her media exposure, it is not clear how this amounts to dishonest conduct, or provides relevant context to enable a finding of dishonesty;
(l)	There is no evidence the plaintiff was on a personal crusade, or that her motive was to help Mr Adams.  The plaintiff had particular views which she maintained, and took steps in line with her views. 
410	I have set out findings in relation to the various allegations levelled against the plaintiff.
411	However, the defendant’s reliance on the provisions of the IBAC Act to establish a truth defence in relation to allegations of corruption is fundamentally flawed.
412	Under s4(1) of the IBAC Act, ‘corrupt conduct’ is relevantly defined as conduct:
(a)	of any person that adversely affects the honest performance by a public officer or public body of his or her or its functions as a public officer or public body;
(b)	of a public officer that constitutes or involves the dishonest performance of her functions as a public officer or public body;
(c)	of a public officer that constitutes or involves knowingly or recklessly breaching public trust;
(d)	of a public officer that involves the misuse of information or material acquired in the course of the performance of her functions as a public officer, whether or not for the benefit of the public officer or any other person;
(e)	that would constitute a conspiracy or an attempt to engage in any conduct referred to in paragraphs (a) to (d) above,
‘being conduct that would constitute a relevant offence’.
413	A ‘relevant offence’ is defined in s3 of the IBAC Act as: 
(a)	an indictable offence against an Act; or 
(b)	any of the following common law offences committed in Victoria:
(i)	attempt to pervert the course of justice; 
(ii)	bribery of a public official; 
(iii)	perverting the course of justice; or 
(iv)	misconduct in public office.
414	To establish the truth defence in relation to the allegation that the plaintiff engaged in corruption pursuant to the IBAC Act, the defendant would have to establish not just that the plaintiff was dishonest or otherwise engaged in one of the behaviours described by the IBAC Act, but that the behaviour constituted a ‘relevant offence’ as defined.  The defence must be established to the Briginshaw v Briginshaw standard. 
415	The defendant has not defined the relevant offence she alleges the plaintiff committed and it is not apparent any of the conduct relied on by the defendant could amount to any of the defined offences.
416	The defendant has not established that, separate from the provisions of the IBAC Act, the plaintiff could nevertheless be considered to have engaged in corruption.
417	The imputation is not true or substantially true.
Statutory qualified privilege
418	Section 30 of the Defamation Act states: 
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.’
419	Recipients have an apparent interest in having information only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has such an interest.
420	The relevant interest is an interest in knowing a particular fact as a matter of substance, apart from its quality as news or a matter of curiosity. 
421	Among other things, the Court may take into account:
(a)	the extent to which the matter published is of public interest; 
(b)	the extent to which the matter published relates the performance of the public functions or activities of the plaintiff; 
(c)	the seriousness of any defamatory imputation carried by the matter published;
(d)	the extent to which the matter published distinguishes between suspicions, allegations and proven facts; 
(e)	whether it was in the public interest in the circumstances for the matter published to be published expeditiously; 
(f)	the nature of the business environment in which the defendant operates; 
(g)	the sources of the information in the matter published and the integrity of those sources; 
(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 plaintiff; 
(i)	any other steps taken to verify the information in the matter published; and
(j)	any other circumstances the Court considers relevant.
422	The Court must consider the whole of the publication that includes the imputations of concern.  
423	The defendant must establish the conduct was reasonable in the circumstances.  In assessing reasonableness the Court must consider the facts of the particular case. 
424	In Palmer v McGowan (No 5), Lee J recently summarised the matters to consider in assessing reasonableness:
(a)	In most cases, the more serious the imputation that is conveyed, the greater the obligation upon the respondent to ensure its conduct in relation to the publication was reasonable;
(b)	A respondent who intended to convey an imputation that was in fact conveyed, must generally establish that they believed in the truth of that imputation, and that the imputation conveyed was relevant to the subject;
(c)	The fact that the respondent may not have intended to convey the imputation that was in fact conveyed, does not necessarily mean that their conduct in publishing was unreasonable.  In such a case, the respondent must generally establish that they believed in the truth of the imputation that they intended to convey, and that their conduct was nevertheless reasonable in relation to the imputation which they did not intend to convey, but which was in fact conveyed.  In this regard, it may be relevant to consider whether it was reasonably foreseeable that the publication might convey the unintended imputation and, if so, whether the respondent considered that possibility and took appropriate steps to prevent that imputation being conveyed;
(d)	The respondent must generally establish that reasonable steps were taken before publishing to ensure that the facts and conclusions stated in the publication were accurate.  That generally involves making proper or reasonable enquiries, checking the accuracy and reliability of sources of information, and ensuring that the conclusions follow logically, fairly and reasonably from the information.  Where serious allegations of fact have been published about a person, without the publisher having taken steps to check with the person concerned, it is the publisher (and not the person defamed) who takes the risk that the allegations cannot be justified;
(e)	A respondent must show that the manner and extent of the publication did not exceed what was reasonably required in the circumstances and each imputation intended to be conveyed was relevant to the subject about which information was published;
(f)	The respondent must also usually establish that the respondent gave the person defamed an opportunity to make a reasonable response to the defamatory imputation; and
(g)	The objective truth of the published statements is not relevant to the defence and does not bear upon the s30(3) factors.
Defendant’s submissions
425	The defendant submits all the publications included information about the conduct and performance of the plaintiff in her role as a councillor of the SCSC.  They were expressly published to address ‘misinformation that had circulated in the community’.
426	The defendant says the publications were published to persons who had an interest or apparent interest in having information about the plaintiff’s performance and conduct as a councillor and the Metcalf planning application, being people who were residents, constituents or ratepayers of the SCSC, or otherwise were people interested in the conduct of the plaintiff.  The defendant’s Facebook page was initially called ‘Kirsty Metcalf Winchelsea Ward Candidate’ and was followed by about ninety-five people, although none of those followers necessarily read anything that appeared on the Facebook page. 
427	The defendant further relies on all the circumstances summarised below.  I note not all are relied on for all publications, as some of these events occurred after the initial publications:
(a)	she published the posts in the course of providing information to interested persons;  
(b)	she truly believed everything she wrote and her belief had an arguable basis;
(c)	the plaintiff had a ‘right of reply’ in comments on the Facebook page, and the defendant did not delete, edit or block the plaintiff;
(d)	her language in relation to the first publication was restrained and included the details of the factual basis for the post;
(e)	she wanted to correct misinformation that was circulating in the community;
(f)	she had been the subject of attacks and allegations by members of the community;
(i)	Rob Bullen had told the defendant that she had ‘got around’ planning provisions; 
(ii)	Ms Bullen told the defendant she intended to tear the Metcalfs’ house down;
(iii)	Mr Adams said the Metcalfs abused the planning process; 
(iv)	the plaintiff had assisted the objectors in numerous ways;
(v)	the plaintiff sided with Ms Bullen in a separate and unrelated VCAT proceeding involving the SCSC;
(vi)	an anonymous pamphlet from ‘a concerned neighbour’ was distributed during the campaign which said, among other things:
‘… one of the candidates, Kirsty Metcalf, and her husband are the same people who have applied for a planning permit to operate a helicopter business from their property in Coombes Road.  It is unclear if Ms Metcalf is attempting to gain a position on council to further this agenda.  
 As Ms Metcalf has not been one hundred percent transparent in her campaign, I felt the need to share this information so that everyone in our community is aware of this.’ 
(vii)	Maurice Cole, another SCSC candidate standing in the Torquay Ward, made unpleasant comments about the defendant’s family members, and commented the defendant was ‘just whacky’ and needed professional help; 
(viii)	Mr Cole was aligned with Mr Bullen;
(ix)	A local advocacy group, The GT Alliance, published a list of preferred candidates, which included Mr Cole and the plaintiff;
(g)	it was legitimate for the defendant to query the plaintiff’s fuel expenses, because the fuel claim was higher than any other councillor and appeared to have been incurred while Victoria was in lockdown due to COVID;
(h)	she did not think the plaintiff had been, or would be, transparent about the fuel claim;
(i)	the plaintiff could have easily clarified her fuel claim by leaving a comment on the defendant’s Facebook page, and a response from the plaintiff would be expected because the plaintiff serves a public function as a councillor and was aware of the Facebook page, having previously left comments on it;
(j)	the plaintiff brought FOI proceedings, knowing the Metcalfs’ permit application had become ‘volatile’;
(k)	she brought the FOI proceedings to assist Mr Adams;
(l)	the plaintiff was quoted in local media and referred to ‘secret documents’;
(m)	the plaintiff had a conflict of interest during the July 2018 meeting and should not have made submissions to councillors during the July 2018 meeting, because she had her own application for a use permit on foot;
428	The defendant submits, having regard to all these factors, her conduct was reasonable in all the circumstances.
Plaintiff’s submissions
429	The defendant’s posts were published to the world at large.  The Facebook page was a public page, accessible by anyone.  The likes and comments demonstrate it extended beyond the followers of the page itself.
430	The posts were accessed by more than just the defendant’s friends, family and supporters.  They could, and still can be, accessed by anyone who comes across, or takes an interest in, the defendant, and looks her up on Google or Facebook.
431	The defendant has not attempted to establish that the audience of the publications was limited to those persons with an interest in receiving the information.
432	Further, even if the publications were accepted to be limited to ‘friends, family, supporters and ratepayers of the Shire’, those persons could have no relevant interest in the sixth publication which was a letter sent to the SCSC and subsequently published by the defendant on her Facebook page, for the purpose of ‘closure’ after her election campaign.  
433	The seventh publication did not name the plaintiff and purported to represent the defendant’s gratitude to her readers for allowing her to ‘shine a light’ on corrupt behaviour.  There was no information conveyed which recipients could have had an interest in receiving. These were just assertions and therefore any privileged occasion could not extend to the seventh publication.
434	The plaintiff submits that, if an occasion of privilege could be said to exist, the defendant cannot discharge her onus of establishing her publication of each post was reasonable.  
435	Each publication must be considered in the context of the publications that preceded it.  As the defendant’s attacks on the plaintiff mounted, the more unreasonable each publication became.
436	The publications went well beyond any discussion of the plaintiff’s performance and conduct in her role as a councillor.  They are replete with inflammatory and sensational language and include personal attacks, alleging the plaintiff has dishonest motives, is an ‘emotional vampire’ who ‘feed[s] off destroying and humiliating their target,’ and is a narcissist. 
437	The imputations are serious.
438	Her belief there was a ‘campaign of attack’ against her, which she submits informed the circumstances in which she made the publications, is ‘fictitious, self-serving nonsense’.  It would be a rare case where a publisher could distort the facts which were central to a publication and upon which the defamatory imputations were based, and then be found to be acting reasonably in making the publication. 
439	If the defendant did in fact believe the truth of what she wrote, which is doubtful, such a belief was not reasonable.
440	Her claims that her beliefs and conduct were motivated by fear her home would be torn down were similarly implausible and ought not to be believed.  She was certain she and her husband never required a development permit for the works on the land, and the commercial uses were exempt under cl 52.15.  When this point was put to her in cross-examination, it was apparent that her real fear was not that her home and ‘sacred space’ would be destroyed, but that she would be put to the expense and inconvenience of a legal proceeding.
441	The defendant does not operate in any special environment that would render her publications reasonable.  Although the first publication was published in the context of a council election, the rest were after the polls had closed.
442	There was no requirement for the posts to be published expeditiously.  They related to matters that had occurred between one and three years earlier.  
443	In relation to the first publication, she could have no reasonable basis for concluding that the plaintiff ignored the defendant’s requests for help regarding The Esplanade apartment, when one looks at the considerable steps taken by the plaintiff to assist the defendant.
444	As to the second publication, the defendant distorted the tone and substance of what the plaintiff said at the April 2018 meeting.  
445	As to the third publication, the defendant distorted the plaintiff’s position by confusing the issue of public access to the Metcalf submission, with the issue of whether the document evidenced ‘underhanded business dealings with a developer’.  The plaintiff has never had the view the document evidenced anything of the sort, nor has she ever said anything to give that indication.
446	As to the fifth publication, the imputation of fraud was particularly serious.  The defendant took no steps to clarify the truth of the allegation.  The defendant subsequently accepted her allegation had no basis but the correction was not made to the post and in fact the sixth publication included the statement, ‘There is one small error in my recent post regarding fuel consumption.  I have not corrected it as I feel why bother’.
447	As to the seventh publication, the defendant had no basis for believing the plaintiff engaged in corrupt behaviour, particularly in light of IBAC’s rejection of her complaint.  IBAC referred the defendant to further information on the definition of corrupt conduct, and it is implausible the defendant could maintain a genuine belief the plaintiff’s conduct would fall within such a definition.
Findings
448	The defendant called no evidence in relation to the recipients of the publications.  She gave evidence her Facebook page had between ninety and one hundred followers, however the Facebook page is a public page and was available to anyone who has access to Facebook, a very considerable population.
449	The plaintiff called evidence from people who had seen and read the publications.  These were not people who were friends, family or supporters of the defendant.  The defendant submits that, aside from her family, friends and supporters, ratepayers of the SCSC would be persons with an interest in receiving information related to councillor conduct.
450	While the Facebook page might primarily be of interest to people living in the Surf Coast Shire, and while I can infer such people may have an interest in issues relating to councillor conduct, I cannot be satisfied only people with such an interest received the publications.
451	As was held in Defteros v Google LLC:  
‘… those who publish materials to the world at large, and in particular to people whose motivation for receiving them is mere curiosity or idle interest, are not recognised as persons who have a legitimate duty or interest in publishing the material.’ 
452	The world at large cannot be said to have a legitimate interest in receiving the information in the publications.  The defendant says the plaintiff has not established the publications were read by more than a handful of people.  However, it is the defendant’s onus to establish publication only occurred to those people with the requisite interest.  The defendant has not established the recipients had the necessary interest in receiving the information published. 
453	Further, the information published went beyond what could be considered of interest to friends, family, supporters and ratepayers.  Such persons cannot have an interest in receiving information the defendant either knows to be false or has no reasonable basis to believe is not false.
454	Underpinning the defendant’s posts is a distorted version of events which infects their reasonableness.
455	Dealing with each of the imputations:
(a)	The plaintiff told lies in relation to the defendant’s application for a planning permit; fabricated information and told lies in relation to the defendant’s planning application; is so delusional that she believes the lies that she tells and the stories that she makes up in her head about the defendant’s planning application; created and disseminated a story about the defendant’s planning application that was based on lies told by the plaintiff 
456	The plaintiff and the defendant have a different view about the requirements of the Planning Scheme and its intended operation.  There is a world of difference between having opposing views about the operation of legislative provisions and telling lies.  The ‘lies’ the plaintiff is alleged to have told are in fact views that differ from the defendant’s own.  The defendant ought reasonably to understand this distinction but did not make it when she called the plaintiff a liar.  This was not reasonable.
(b)	The plaintiff used ratepayers’ money to challenge the Planning Scheme in VCAT
457	The impression anyone reading such an allegation would have is the plaintiff used ratepayers’ money to fund personal proceedings at VCAT.  This was untrue and was known by the defendant to be untrue.  The defendant also knew the sense in which she says she intended the allegation to be understood – that the plaintiff was using ratepayers’ money by persuading the SCSC to seek declarations  – could not be reasonably maintained.  The decision to seek declarations had been unanimously voted on.  No reasonable person could consider this amounted to the plaintiff using ratepayers’ money.  At trial the defendant submitted she had been also referring in this post to the plaintiff’s personal use application which used ratepayers money.  This appears to be a post hoc rationalisation.  Her post specifically refers to VCAT. The use application never went to the VCAT.     
(c)	The plaintiff attempted to hinder the operation of fire emergency services in the Surf Coast Shire by using an application to VCAT for the purpose of ensuring that a permit is required in order for someone to land a helicopter in a fire emergency
458	The clear intention of this imputation was for readers to believe the plaintiff wanted to impose a requirement for helicopters to land in an emergency.  So much is apparent by the comment, ‘In other words according to Wellingtons determination, to land a helicopter in a fire emergency a permit should be required. (Reflect on that and its implications)’. 
459	There is no reasonable basis the defendant could have for believing this was the plaintiff’s intention.  This was never the plaintiff’s view.  The defendant relied on an impermissible distortion of the plaintiff’s actual statements and a tortured line of reasoning to justify why this was a sustainable belief.  
(d)	The plaintiff incited a group that engages in hatred towards others to harass the defendant by fuelling them with false information about the defendant’s planning application
460	There is no evidence the plaintiff incited anyone, nor that she provided false information.  The defendant could not reasonably have held this view.  She knew the objectors existed prior to the plaintiff making any statement.  The evidence shows the plaintiff attempted to be a moderating influence on the objectors, declining to endorse the more sensational views held by some (for example, Mr Adams’ view that there had been abuse of the Planning Scheme), and seeking to clarify rumours in order to ensure the true facts were known (for example, whether the dwelling was a commercial building, whether there was a depot planned, et cetera).  There is no evidence any of the harassment the defendant alleges she was subjected to was incited by the plaintiff and the defendant has pointed to no evidence upon which she could have reasonably held that belief.
(e)	The plaintiff put the lives and safety of the defendant and her family at risk by ignoring the defendant’s pleas for help to address an unrelated planning issue
461	The defendant cannot have reasonably held a belief her allegations in relation to The Esplanade apartment were true.  The plaintiff took steps above and beyond what might be expected of a councillor in relation to a complaint of this kind, particularly on behalf of a ratepayer from a different ward.  The plaintiff’s endeavours on behalf of the defendant were entirely in keeping with the plaintiff’s conduct as a councillor ꟷ seeking to provide ratepayers with appropriate access to documents, ensuring transparency in planning decisions and challenging council officers’ decisions in relation to planning matters.  The defendant cannot reasonably have believed the plaintiff ‘abandoned’ her, ‘walked away’ or ‘ignored the life safety risks [they] were left in without any challenge to the status quo’.
462	The defendant’s account in her publication is, at best, disingenuous.  At the time the plaintiff met with the defendant at The Esplanade apartment, the Metcalfs were no longer living there, as they had moved to Coombes Road.  There was no impact on the ‘DAILY health, safety and well-being’ of the defendant’s family.  The defendant’s family’s ‘safety and well-being’ was not ‘deteriorating and at risk’.  There can be no explanation for this account, other than the defendant’s desire to sensationalise and paint the plaintiff in the worst light possible.  A reader of such an account, unaware of the true circumstances, is left to believe that the plaintiff acted in a completely egregious fashion.
463	In fact, the ‘risk’ the plaintiff was aware of was the complaints of smells, noise and vibrations.  This is unpleasant, but hardly life threatening.  Subsequently, and well after the defendant had moved out, the building was found to pose a fire hazard.  This was not something the plaintiff was aware of at the time the defendant was seeking her assistance and is not something the defendant raised with the plaintiff.  Nor, at the time of the plaintiff’s involvement in this matter, did the apparent fire hazard pose any actual risk to the defendant, who was no longer living at the premises.  At the time of writing the Facebook post, the defendant was aware of the actual circumstances in relation to The Esplanade apartment and where she was living at the time she met with the plaintiff.  Even if she did not know the extent of the plaintiff’s efforts on her behalf, she knew the truth about her own living arrangements and she knew she was not under any threat at the time the plaintiff was involved.
(f)	The plaintiff incited groups that engage in hatred towards others to allege that the defendant’s home was illegal and to allege that the defendant and her husband had abused the planning provisions
464	I do not accept the defendant held a genuine belief her house would be torn down.  I do not accept, by the time she wrote the publications, she was motivated by her own belief her home was under threat. 
465	She gave evidence that she believed, ‘even now’, anyone could take her to VCAT and have her house torn down.  However, given her apparent comprehensive understanding of the Planning Scheme and her unshakeable view that it is simple and clear in its application to her development, at most she could be concerned that she would have an unnecessary legal proceeding to deal with.
466	Further, despite apparent community concern, there is no evidence anyone has tried to have her house ‘torn down’, nor sought to take the SCSC to VCAT to require a retrospective permit for the development.  The SCSC has been consistent in its view no such permit is required.  As submitted by her counsel, in any event, any retrospective permit would be for the helicopter landing site, being the concrete apron, not for the dwelling.  
467	The defendant made no attempt to distinguish between facts, suspicions and allegations.  Immediately after the April council meeting it is clear the defendant believed the plaintiff had sided with the objectors.  She gave no consideration, it appears, to the plaintiff’s own statements that her questions were motivated by long-held concerns about process and transparency.  She appears to have completely disregarded the plaintiff’s statement she was not saying the applicants had done anything wrong, nor was she saying that it was never appropriate for a helicopter to be operated in a rural zone.  The plaintiff’s concern was with council officers and their decisions.
468	Nothing in the plaintiff’s public statements could be construed as alleging the Metcalfs had abused the Planning Scheme.  Her concern was that, in spite of the statements made by the Metcalfs in their planning application, in their permit application and in the Metcalf submission, council officers maintained the view that the concrete apron was not a helicopter landing site and the hangar was not helicopter infrastructure.  
469	Instead of considering the plaintiff may have genuine questions about council officers’ recommendations and the scope of cl 52.15 exemptions, the defendant appears to have decided the plaintiff was motivated by malice and desired to instigate a witch hunt.
470	The defendant formed this view about the plaintiff, despite the Metcalfs themselves being uncertain as to the scope of the cl 52.15 exemptions, as explained by Mr Metcalf. This was also clear from first permit application, which included an application for five flights a day for ‘exempt’ purposes in emergency services and agriculture.  This is also despite the Metcalfs knowing there were objections to their permit application from at least December 2017, well prior to the plaintiff’s involvement.
(g)	The plaintiff fraudulently claimed reimbursement for fuel expenses from the SCSC
471	The defendant gave evidence that she did not believe the plaintiff would be transparent about her conduct. However, this is irrelevant given that the imputation is conveyed.  Together with the other imputations and other publications, which paint the plaintiff as a person who tells lies, uses ratepayers’ money, and engages in corruption, it is difficult not to conclude that this was included in the defendant’s post at least recklessly, if not maliciously.  The defendant took no reasonable steps to ascertain the truth or otherwise of this allegation.  It would have been a simple matter to do so. The fact she did not correct it immediately because she thought, ‘Why bother?’ is evidence she did not care about the truth or the harm her allegations could cause.
(h)	The plaintiff created a fictitious scandal concerning the defendant’s planning application; invented allegations that there was a secret involving the defendant’s planning application and that council officers, the defendant and her husband had abused the Planning Scheme
472	The defendant relies on a distorted version of the events surrounding the Metcalfs’ permit application and cannot rely on her own distortion to demonstrate her conduct was reasonable.  To the extent there was a ‘scandal’, it was not fictitious and was not created by the plaintiff.  
473	There was a great deal of interest and concern about the Planning Application.  This existed independently of any action by the plaintiff.  The plaintiff did not allege and does not maintain the Metcalfs or council officers ‘abused’ the Planning Scheme.  
474	It is not difficult to see why the plaintiff had questions.  She may be wrong as a matter of planning law.  I make no finding about that.  However, her questions and ultimately her position were not difficult to understand.  The Metcalfs themselves understood they needed a permit to use the concrete apron as a helicopter landing site at the time they originally approached the SCSC in 2016.  The oft-repeated assertions by the defendant about all the other uses that have been made of the concrete apron (roller skating, washing cars, having picnics), does not alter the fact it was also intended to be a helicopter landing site.  
475	Council officers may well be correct that the concrete apron and hangar were, at the time of the Metcalf’s permit application, existing infrastructure for the purposes of the Planning Scheme.  That is beyond the scope of this case.  However, it cannot be said there is simply no basis for anyone in the community, including the plaintiff, to question the process council officers undertook in reaching that decision.  To the extent this caused questions and concerns within the community and in the plaintiff’s own mind, it is not ‘fictitious’.  
476	There is nothing in the plaintiff’s conduct that could give rise in the defendant’s mind to a reasonable belief the plaintiff ‘invented allegations’ that anyone had ‘abused the planning scheme’.  That is not supported by any of the evidence.
(i)	The plaintiff engaged in corruption in relation to the SCSC
477	The defendant did not reasonably hold this belief.  She had been told by the Inspectorate and IBAC the plaintiff had not committed any offence, nor was there any evidence of a conflict of interest.  Again, her distortion of the facts cannot provide the foundation for the reasonableness of her view.  Having been told there was no ‘corruption’ following her complaints and in the absence of any other evidence that the plaintiff had engaged in corruption, it was not reasonable for the defendant to make this allegation.
478	In summary, the defendant has not established the recipients of the publications had the requisite interest in receiving the information.  Even if all the recipients did have such an interest, the defendant has not established her conduct was reasonable.  Accordingly, the defendant has not made out her defence of statutory qualified privilege.
Common law qualified privilege ꟷ Lange
479	The defendant also relies on defences the publications were published on an occasion of qualified privilege at common law.  In particular, the defendant pleads two subspecies of common law qualified privilege. These are discussion of government and political matters (Lange defence) and  reply-to-attack.
Defendant’s submissions
480	The law of defamation recognises that:
‘Each member of the Australian community has an interest in receiving information, opinions and arguments concerning government and political matters, and each person has a correlative duty to disseminate such information, opinions and arguments.’ 
481	This is the most recent iteration of the so called Lange defence which recognises there is no requirement for a corresponding duty or interest between publisher and recipient. 
482	The bounds of the Lange defence have not yet been defined.  In Setka v Abbott MP, Beach J observed:
‘The precise width and ambit of what is a government or political matter encompassed by the Lange defence has been the subject of numerous authorities.  The boundaries of the defence are yet to be delineated.  In Theophanous v Herald & Weekly Times Ltd & Anor, Mason CJ, Toohey and Gaudron JJ said:
 ‘For present purposes, it is sufficient to say that ‘political discussion’ includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office. The concept also includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate, eg, trade union leaders, Aboriginal political leaders, political and economic commentators. Indeed, in our view, the concept is not exhausted by political publications and addresses which are calculated to influence choices. Barendt states that:
‘‘political speech’ refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about.’’’ 
483	As to the extent of publication permitted, in Marshall v Megna; Megna v Tory; Tory v Megna, Allsop P observed:
‘This was not a rule laid down only for mass media (however one defines such an innominate class), though there was a recognition of the need to protect communications of a political kind to a wide audience. It was a fashioned extension to the common law of qualified privilege based on a Constitutionally founded interest in all in the community to disseminate and receive information, opinions and argument concerning government and politics as long as the conduct is reasonable.’ 
484	The defendant submits the publications were in relation to government and political matters, as they concerned the performance of an elected representative and commentary about her conduct in office and the discharge of her role.
Plaintiff’s submissions
485	The plaintiff concedes the publications concerned government matters but for the reasons set out in her submissions in relation to the statutory qualified privileged defence, argues the defence must fail as the defendant’s conduct was not reasonable.
Findings
486	There are two matters which a publisher must prove to prima facie establish the defence:
(a)	that the publication related to ‘government and political matters’; and
(b)	that the defendant acted reasonably in making each publication. 
487	It is not possible to construct a formula to more narrowly define the limits of what is and is not ‘government or political matters’.  The concept is deliberately cast at an abstract level, as each case will turn on its own circumstances. 
488	In Lange, the Court said:
‘… the freedom of communication which the Constitution protects is not absolute … . It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution. … .’ 
489	I am satisfied in the circumstances of this case that each of the publications by the defendant related to a government matter as they concerned the plaintiff’s conduct as a councillor.  
490	However, the defendant bears the onus of establishing her conduct was reasonable in all the circumstances.  In Lange, the Court held: 
‘Whether the making of a publication was reasonable must depend upon all the circumstances of the case.  But, as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue.  Furthermore, the defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond … .’ 
491	The requirement for reasonableness requires the same principles to be applied as determining reasonableness pursuant to statute. 
492	For the reasons set out above, the defendant’s conduct in publishing the publications was not reasonable, and the defence is therefore not made out.
Common law qualified privilege ꟷ reply to attack
493	The law recognises a particular species of qualified privilege where a defendant publishes in response to an attack by the plaintiff or others. 
494	The publisher must establish the requisite interest in making and receiving the publication.  For the purposes of this defence, the publisher’s ‘interest’ in making the publication is understood as an interest or right in defending against the criticisms. 
495	The recipient’s interest is in hearing the response of the target of public criticism. 
496	The publisher must show sufficient connection between the subject matter of the attack and the defamatory response. 
497	Where the defamatory matter is published in self-defence, as vindication against an attack or to protect an interest, the ‘conception of a corresponding duty or interest in the recipient must be very widely interpreted’. 
Defendant’s submissions
498	The defendant says temporal proximity to the attack is not a strict requirement but in any event, the plaintiff attacked the defendant on social media in October 2020, in addition to a three-year campaign of attack preceding that post.
499	The defendant points to the following as evidence the plaintiff was ‘attacking’ the defendant’s home:
(a)	the plaintiff’s email to the SCSC on 20 July 2018, stating, ‘We certainly should not be giving an unqualified approval to a use which relies on an illegal development’;
(b)	the plaintiff’s submission to the Ombudsman on 19 January 2020 stating, ‘Consistent with its role as the planning authority, it is common for the Shire to require landowners to submit applications for development permits when illegal infrastructure is identified’;
(c)	the plaintiff’s submission stating ‘it is arguable that development should not have proceeded without a permit, and that a retrospective application for a permit is now required’;
(d)	the plaintiff’s submission to the VCAT for FOI hearing stating, ‘A large integrated dwelling/helicopter hangar/shed with an associated concrete apron (Works) were previously constructed at the Land without a development permit’;
(e)	plaintiff submission to the VCAT FOI stating:
‘This is not a theoretical issue. In the future, if it were determined that that the Works did require a planning permit, the Shire could then require the Applicant to submit an application for a retrospective planning permit for the Works and the public could engage in debate on the appropriateness of the Works and whether any restrictions should be imposed on their use.’
500	The defendant says this establishes the plaintiff thought the defendant’s home was illegal and the defendant was entitled to feel this as an attack.
501	The social media attack consisted of:
(a)	an insinuation by the plaintiff that the defendant was secretive and inaccurate in what she discloses, because the plaintiff put the word ‘disclosure’ in inverted commas in a comment on Facebook;
(b)	attacks by the plaintiff on the defendant in an exchange on the GT Alliance Facebook page with Adrian Schonfelder, another candidate;
(c)	a comment by Melinda Wellard on the GT Alliance Facebook page that including, ‘Benefit to more residents than just the one trying to buy the Council’;
(d)	the plaintiff’s comments in response to the defendant’s publications including, ‘Kirsty much of this is completely distorted and plainly wrong’; ‘your post is littered with rubbish information, but in its midst are some statements I suggest you remove or correct immediately’; ‘your suggestion that I misused ratepayers $$ to challenge the planning scheme at VCAT. That is a false accusation that you will be completely unable to substantiate if you are required to do so in future’; ‘the community will no doubt make up its own mind about the credibility of the rest of this nonsense’; and, ‘I am simply suggesting that it is in everyone’s interests that you don’t post mistruths about quite serious matters on facebook [sic]’.
502	The defendant submits the plaintiff ‘is happy to allege that the defendant make ridiculous points that are littered with rubbish information, has a startling misunderstanding of the processes of government, disregard of the law and makes stupid proposition [sic], talks nonsense and posts mistruths about serious matters’.  The defendant submits this is an attack by the plaintiff on the defendant.
503	Further, the defendant says the plaintiff engaged in a campaign of attack in:
(a)	the statements she made at the April 2018 council meeting;
(b)	statements she made to the media;
(c)	accepting an invitation to an objectors’ meeting and helping to facilitate an objectors’ meeting the Metcalfs were excluded from;
(d)	making her own application for a use permit;
(e)	making submissions to councillors in July 2018 when she had a conflict of interest;
(f)	bringing the FOI proceedings;
(g)	her ignorance of the decision in the VCAT proceedings;
(h)	uploading the ‘Chopper Hangar’ article to her Facebook page;
(i)	‘advocating’, in her submissions in her FOI proceedings, that the Metcalfs needed to apply for a retrospective permit for their home;
(j)	statements she made on her Facebook page in October 2020.
504	The defendant says the plaintiff used her influence to spread her message ‘far and wide’ and forcefully advocate her views.  The defendant’s Facebook page barely scratched the surface in response.
505	There was evidence of damage to the Metcalfs in the community which far outweighed any evidence of damage done to the plaintiff.
506	The publications were closely connected to the subject matter of the campaign of attack and were a reasonable response to that campaign.
Plaintiff’s submissions
507	The plaintiff submits there was no attack by the plaintiff on the defendant and therefore there was nothing to reply to.
508	Further, the publications were each a riposte to which the defence does not extend.
509	The plaintiff submits the defendant had been attacking the plaintiff from the moment she perceived the plaintiff’s concerns about the Metcalfs’ permit application in April 2018.
510	The plaintiff’s first post on her Facebook page was in response to the defendant’s comment that ‘[v]oting for a councillor who takes families to VCAT is NOT OK’. 
511	The sequence of events demonstrates why, as a matter of public policy, ripostes are not protected by the reply to attack defence.  As explained by Nathan J in Kennett v Farmer:
‘If a victim, in protecting his [or her] own interests and defending himself [or herself] opened up that defence to a further right of another defamatory attack upon him [or her], not only would he [or she] be apt not to exercise the right of self defence, but equity would demand that his [or her] rejoinder to the riposte would also be privileged.’
512	Further, as his Honour noted, extending the privilege to ripostes would permit the original defamer to benefit from her own tortious act by affording her a right of second reply:
‘A guileful defamer could entice a victim into replying knowing that his riposte would be qualifiedly privileged and thus the defamer would be certain of at least two strikes against the victim, the victim’s defence being overwhelmed by the riposte … .
 A victim exercising his right of self defence would be impliedly consenting to a further attack or riposte being made upon him [or her].’ 
513	The plaintiff further submits the publications bore no rational relationship to what the plaintiff actually said, did, published or commented on.
514	None of the publications were commensurate with the statement to which they are said to reply.
Findings
515	The defendant says the plaintiff waged an attack on her in the three years prior to the publications by, amongst other things, threatening her home by making statements which indicated the development, including the home, was illegal.
516	The structure is either legal or illegal and neither the plaintiff’s opinion, nor the defendant’s opinion, no matter how strongly held, is relevant to that question.
517	Whether the structure is legal or illegal is also not relevant to the issues in this case.  The only relevant issue is whether the plaintiff’s view that a development permit was required for the helicopter infrastructure could amount to an attack on the defendant. 
518	The SCSC has taken the position the hangar and concrete apron were not built as helicopter infrastructure, nor as a helicopter landing site and therefore no development permit was required.  Accordingly, it has not required the Metcalfs to make a retrospective application for such a permit.  This does not mean the plaintiff’s view is unreasonable or her questions invalid.
519	The plaintiff’s questions about the council process do not amount to an attack on the defendant.  Even if the plaintiff did consider the defendant’s home ‘illegal’ pursuant to that process, which I do not accept, this does not amount to an attack that would require the defendant to respond by publishing the posts.
520	In relation to the social media attack, the ‘A Concerned Neighbour’ leaflet, which appeared on social media on 12 October, made reference to ‘helicopter business’ and used the word ‘transparent’.  The defendant says that because these were expressions similar to things the plaintiff had been saying about the defendant since 2018, it was reasonable for her to conclude the leaflet had been produced as a consequence of the plaintiff’s attack.  The defendant does not submit the plaintiff had anything to do with the ‘A Concerned Neighbour’ leaflet and there is no evidence she did.  Nevertheless, the defendant relies on this as founding the origins of the social media attack.  This is farfetched.
521	On the Freshwater Creek Community Facebook page, the defendant posted a picture of herself casting her vote.  In the comments section, Georgia Armstrong posted a comment ‘Vote#1 Heather Wellington’.  The defendant responded:
 ‘Voting for a Councillor who takes families to VCAT is NOT OK. Voting for a Councillor who distorts planning applications is NOT OK. Voting for a Councillor who fuels disinformation to the community is NOT OK. Voting for a Councillor who costs the Council $$$$$ of rates payers $$$$$ in legal fees is NOT OK. That’s not the Councillor for me.’ 
522	On her own Facebook page the plaintiff uploaded the following: 
‘I don’t intend to engage in nasty point scoring but I would like to correct some misinformation that is being distributed by some Winchelsea Ward candidates (not Cr McIntyre or Tony Phelps). I have been accused of taking ‘families to VCAT’ and costing the Council thousands of $$ in legal fees.
 The facts are as follows: Mr Tim Metcalf made a submission to Council in 2018 in support of a planning permit application to conduct a helicopter business from his property in Freshwater Creek. For some reason, Council officers decided that the submission should be kept secret.
…
The document ‘Councillor meeting notes’ is now accessible to the public and is attached.’
523	In response to the plaintiff’s post, the defendant commented on the plaintiff’s Facebook page:
 ‘I WILL RESPOND TO THESE ALLEGATIONS ON MY FB PAGE INCLUDING OUR HISTORY WHERE WELLINGTON WALKED AWAY GIVING OUR FAMILY NO ASSISTANCE IN LIFE SAFETY MATTER I WAS DEALING WITH. HER WORDS ‘YOU WILL NEED TO GO TO VCAT AND SPEND $$$$ LIKE I DID WHEN I SHUT DOWN MCADAMS PARK. INTEGRITY??? OFFICERS RESPONSE WAS BECAUSE OUR DISCLOSURE WAS FOR ‘DREAMS AND ASPIRATIONS’ WHICH ACCORDING TO YOUR DETERMINATION RESIDENTS ARE NOT ALLOWED TO HAVE. WE DO NOT HAVE A BUSINESS AT OUR HOME AND THEREFORE IT IS NOT RELEVANT..’
524	The plaintiff then responded:
‘Kirsty Schwarzenberg/Metcalf there are no secrets about this matter. Please ensure that you are accurate in your “disclosure”.’
525	The defendant then responded:
‘I[s] that another threat?’ 
526	While there is authority for the proposition the plaintiff does not necessarily have to be the person who launched the attack for the defence to apply, in the context of this case, there is no basis for the defence unless the defendant can establish the plaintiff was, at the very least, instrumental in the attack to which the defendant says she was subjected.  Attacks by other people, on social media or elsewhere, cannot be relied on by the defendant to found the basis for her response, which was targeted squarely at the plaintiff.
527	As is plain from the sequence of events set out above, the defendant launched the attack, apparently in response to a comment by a third party, Georgia Armstrong.  This comment by Ms Armstrong, cannot sensibly be construed as an ‘attack’.  It was an expression of political support for the plaintiff of the kind routinely seen during election campaigns. Nor can it be attributed to the plaintiff.  The plaintiff responded in measured terms and the defendant continued from there.  
528	There is no foundation whatsoever for the argument the defendant was responding to an attack made against her on social media.  None of the plaintiff’s subsequent posts in response to the defendant’s attacks could reasonably be considered attacks on the defendant.  The submission that putting ‘disclosure’ in quotes implies the defendant is ‘secretive and inaccurate in which she chooses to disclose’ is a strained reading of the words and not a reasonable conclusion.  It cannot found the basis of the defence and in any event, is a reply after two attacks by the defendant on the plaintiff on social media – her response to Ms Armstrong and her comment on the plaintiff’s Facebook page – both of which are objectively aggressive and unpleasant.
529	The submission that Ms Wellard’s comment that it will (‘[b]enefit to more residents than just one trying to buy the Council’ is emblematic of community views about the defendant and the Metcalfs’ permit application may be true.  However, there is no evidence the plaintiff ever thought, implied, said or caused anyone else to think the defendant had tried to ‘buy’ the SCSC.  If the community did hold the view that the defendant was trying to buy the SCSC, this cannot be a view that was caused by the plaintiff.
530	Similarly, there is no evidence the plaintiff engaged in a campaign of attack against the defendant separate to the supposed social media attack.  The defendant felt attacked by members of the community.  She gave evidence her neighbour, Mr Adams, sat on the boundary fence, observing her property through binoculars and taking photographs.  She said Ms Bullen told her she would ensure her house was torn down.  She and her husband both gave evidence community members would raise the permit issue with them, including making statements to the effect that the Metcalfs had ‘got around’ the Planning Scheme, or lived in an ‘illegal house’.  
531	Even if these allegations are true, what is missing is any reasonable foundation for believing the plaintiff was the cause of these attacks.  
532	The defendant does not rely on the actions of the community as the basis for her defence, nor could she do so.  Instead, she relies on the plaintiff’s own statements and conduct.  These do not amount to an ‘attack’ on the defendant.   
533	In fact, the evidence shows the defendant repeatedly and consistently attacked the plaintiff, complaining to the SCSC, the Inspectorate and IBAC, in florid terms.  She continued this attack on her Facebook page and on other social media sites, including the GT Alliance Facebook page, the Freshwater Creek Community Facebook page and the plaintiff’s own Facebook page.
534	An analysis of the posts respectively published by the plaintiff and defendant demonstrate who is the attacker and who is the responder.  The plaintiff confined all her responses to debunking allegations made by the defendant.  She called out the ‘rubbish information’ and certainly criticised the content, reasoning and views of the defendant.  None of these comments could be said to be inappropriate or unreasonable, or amount to an attack that would require a response.  The defence is unsustainable.
Ordinary common law qualified privilege 
535	For the sake of completeness, I will deal with the so-called ‘ordinary’ qualified privilege pleaded by the defendant as a defence, though it follows from my findings above that the defence must fail.
536	Common law qualified privilege requires the existence of a privileged occasion, where a person who makes a communication has an interest or duty to make the communication to a person who has a corresponding interest or duty to receive it.  The interest in receiving the communication must be a matter of substance, not mere curiosity, and not just an interest in the particular subject matter.
537	Communications that go beyond the limits of the duty or interest exceed the privileged occasion.  The privilege is thereby lost. 
538	The privilege is also lost if the defendant is motived by malice or improper motive.
539	As noted above in relation to statutory qualified privilege, the defendant has not led any evidence about who follows the Facebook page or who has accessed the page since the publications were uploaded.  There is no basis upon which I can conclude that everyone who has seen the publications is family, a friend, a supporter or a ratepayer of the SCSC.  The defendant published the publications to the world at large.  The onus is on the defendant to establish everyone to whom the publications were published had the requisite interest in receiving it.  She has not done so.
540	Accordingly, she has not established the privileged occasion and the defence fails.  
541	I have not found any of the defences apply.  The question of malice does not arise.  
Malice
542	If I am wrong in relation to the existence of any of the qualified privilege defences, I am satisfied the defendant was motivated by malice.  For the reasons set out above, her conduct was so reckless and so unreasonable as to amount to malice.    
Damages
543	There are three purposes for an award of damages where a plaintiff establishes the necessary elements of defamation:
(a)	consolation for personal distress and hurt caused by the publication(s); 
(b)	reparation for the harm done to the person’s reputation; and 
(c)	vindication of reputation.
544	The Defamation Act requires an award of damages to bear a ‘rational relationship’ to the harm sustained by the plaintiff.  The assessment is an intuitive, evaluative process conducted at large, subject to the provisions of the Defamation Act. 
545	The plaintiff has had a distinguished career in the health sector.  After graduating from Coburg High School in 1976, the plaintiff completed a Bachelor of Medicine and a Bachelor of Surgery at the University of Melbourne, and subsequently worked as an intern and junior doctor at St Vincent’s Hospital in Melbourne.  The plaintiff engaged in further study and finished a Bachelor of Medical Science at the University of Melbourne in 1985.  In 1986, the plaintiff transitioned from medical practice to medical administration and completed a degree in health administration at the University of New South Wales in 1990. 
546	The plaintiff has held multiple leadership positions throughout her career including and Fairfield Infectious Diseases Hospital. The plaintiff has been appointed to the board of directors of Southern Health Care Network, GMHBA Ltd, Bio21 Australia Ltd and Barwon Water, and became Chair of the board of directors at the Peter MacCallum Cancer Institute.  She has a Fellowship of the Australian Institute of Company Directors. 
547	In 2000, the plaintiff was appointed as an inaugural member of the Australian Council for Safety and Quality and Health Care (‘ACSQHC’).  She is the principal author of the Australian Standard for Credentialing and Defining Scope of Clinical Practice published by the ACSQHC, which the plaintiff described as ‘the standard for credentialing clinicians, both doctors and allied health and nurses’.
548	She has since been appointed to the Statutory Immunity Advisory Group, Victorian Infertility Treatment Authority, Child Risk Management Reference Group, Cosmetic Medical Practice Recognition Review Group, and an expert panel to review the Elective Surgery and Emergency Department Targets and Elective Surgery National Access Guarantee.  The plaintiff was also appointed by the Federal Minister for Health to a position on the World Health Organization Collaborating Centre for Reference and Research in Influenza. 
549	In addition to her career in health, the plaintiff was admitted to practice in law in 2006.  The plaintiff describes her work as focusing on the ‘intersection … between law and medicine’ and ‘based around safety and quality and around governance’.  She has worked at Corrs Chambers Westgarth, Phillips Fox (as it then was) and Clayton Utz as a consultant.  The plaintiff has her own private consultancy firm. 
550	At the time of the trial, the plaintiff was councillor of the Surf Coast Shire for the Winchelsea Ward, having been first elected in 2012 and then re-elected in 2016 and 2020.  Previously, the plaintiff served as councillor for the City of Greater Dandenong between 2001 and 2004.  She is currently Chair of the Barwon Health Human Research Ethics Committee and works as a consultant with advisory firm, Ngamuru, where she leads a team undertaking periodic review of the National Paediatric Heart Transplant Service located at the Royal Children’s Hospital.  She has also been appointed by the Victorian Minister for Health as a delegate to the Robinvale Hospital Board in north-eastern Victoria, where she advises on governance and decision making. 
551	It was clear from the plaintiff’s evidence she believed honesty and integrity to be essential to her professional work, and she felt the defamatory imputations would damage her reputation. She gave evidence:
 ‘… I’m trained in medicine and law and it’s been drummed into me from being a teenager, really, that, you know, integrity and honesty and openness is core and it’s really important to me to feel I act that way.
‘I was really worried about what it was going to do to my reputation in my – not just in my community as a councillor but as a professional’.
552	Ethics are important in her profession: 
‘… I just pride myself on my ethics and my honesty and … if I acted unethically, you know, that’s the context – I chair the Research and Ethics Committee at Barwon Health.  I’ve been selected for that because I’m viewed in my profession as a person who is ethical, and to have something like that on a public Facebook page was very, very upsetting for me’. 
Evidence from other witnesses about plaintiff
553	Debra Pierlot met the plaintiff when they were both students at Coburg High School and has known the plaintiff for approximately fifty years.  After Ms Pierlot’s retirement from nursing in 2020, Ms Pierlot said she sees the plaintiff ‘probably four times a week’ and maintains a close relationship with the her. 
554	Ms Pierlot described the plaintiff as being ‘the most honest person I know’ and said that ‘she’s held in very high regard by everyone’. 
555	Brian Edwards, a retired chief superintendent of police at Altona North and recipient of an OAM in 2001, met the plaintiff through his wife.  He said the plaintiff was someone ‘held in the very, very highest esteem’.  Mr Edwards described the plaintiff as having an ‘abundance of expertise in both medical matters, public administration and the law’.  Mr Edwards said that the plaintiff ‘just by her very nature she attracts the very, very best of friends’. 
556	He described her reputation as a councillor as ‘excellent’ and said the plaintiff ‘epitomises everything I would expect from a representative in local government’.  He said the plaintiff was ‘a person of the highest integrity’.
557	Hugh McKenzie, a retired lawyer, has known the plaintiff for thirty-five years.  Mr McKenzie said that the plaintiff had the reputation of being a ‘worthwhile citizen’, and ‘someone who helped everybody’, ‘whether they were neighbours or people who were ill or people who were associated or were ratepayers and had some involvement with Heather’.  He said, the plaintiff always worked for ratepayers ‘to save money and get justice for someone if there was a problem in the way a council was heading’.
558	He said he had never heard any suggestion of dishonesty or poor behaviour from the plaintiff. 
559	Mr McKenzie said his brother-in-law, who lives in Torquay, told him that the plaintiff was ‘doing a good job on the council against considerable odds’.  Other lawyers he knew thought the plaintiff was a person of integrity. 
Extent of publication 
560	The defendant concedes that publication of each matter has been made out, but submits the extent of publication is exceedingly limited.
561	Darren Noyes-Brown read each of the publications and discussed the posts prior to the election on 23 October 2020 with about ten to 12 people. 
562	Ms Armstrong also read each of the posts, on one occasion towards late November. 
563	Janine Fisher read the seventh publication.
564	The Facebook page was liked or followed by approximately ninety-five to one hundred people, but this does not mean that the posts were read by all the followers of the page.  The page was publicly accessible, so may have been read by persons who did not ‘follow’ or ‘like’ the page.
565	The plaintiff has not pleaded an inferential case for publication to any greater audience.  The mere availability of the material on the internet does not establish the breadth of its distribution.  There is no evidence as to the general availability of the material in response to, for example, Google searches of the plaintiff’s name, to support an inference of further publication. 
566	The defendant submits there is evidence of only two people reading each of the publications and a third reading one of them.
567	It is apparent from the comments on the posts, the crossover between the defendant’s Facebook page and other community pages, and the plaintiff’s own Facebook page, that the audience for the posts extended beyond two or three people.  There is evidence that Cr Schonfelder had read the posts, as he told the plaintiff they were all true.   
568	I am satisfied that in a small community such as Surf Coast Shire, and particularly in the context of a council election, there would be a significant grapevine effect at play. Mr Noyes-Brown discussed the posts with others and it is likely others also discussed the posts within the community.  However, I am not satisfied the grapevine effect extended beyond the Surf Coast Shire.
Effect of publication on the plaintiff
569	The plaintiff gave compelling evidence that the effect of the publications on her was significant and continues to this day.  She became preoccupied with the defendant’s attacks on her and felt they would not stop.  Even when experiencing a significant health condition in 2021, her thoughts were consumed with the defendant’s attacks against her.
570	The publications have caused her sleep disturbance. 
571	She has been hurt and upset and this has been observed by friends and relatives.  Ms Debra Pierlot, who speaks with the plaintiff every day, described her as ‘consumed with distress’.
572	The plaintiff was worried the publications would damage her professional reputation.  
573	She said:
‘I chair the Research and Ethics Committee at Barwon Health.  I’ve been selected for that because I’m viewed in my profession as a person who is ethical, and to have something like that on a public Facebook page was very, very upsetting for me.’
574	Her hurt and distress were apparent when she gave her evidence.  She felt that if she did not take action, the attacks would escalate.
Impact of publication on reputation
575	There is evidence that the publications had an impact on the plaintiff’s reputation.  Facebook user ‘Sharyn Faulkner’ commented on the first publication, ‘Good luck Kirsty, time to end this vindictive person’s reign of bullying’.  To that comment, the defendant responded, ‘thank you it’s time. I am feeling the wave of support and people standing with me’.
576	Cr Schonfelder ‘liked’ all the publications and told the plaintiff they were ‘all true’.  In an email he sent to the plaintiff on 16 November 2020, he wrote:
‘Kirsty’s posts are factual and I am unsure what malicious comments you are referring to.’  
577	It is no doubt deeply unpleasant for the plaintiff to have to work with a colleague who has made public his view of her, by reason of public ‘likes’, on defamatory posts.  Though Cr Schonfelder’s views about the plaintiff may not have been formed as a result of reading the defendant’s posts, the opportunity to publicly display his views about the plaintiff by liking the posts would not have existed had the posts not been uploaded.  This public demonstration would add to the general hurt and embarrassment the plaintiff feels.  Comments and ‘likes’ are a natural and probable consequence of publication on Facebook.  
578	The defendant submits the plaintiff is a public political figure who must expect a degree of public criticism, fair or unfair.  The defendant criticises the plaintiff for bringing a claim over posts that were seen by only a ‘handful’ of people.
579	Any public figure, even in local council, would be aware that a degree of criticism, fair or unfair, comes with the job.  The plaintiff is an experienced, sensible person who has been involved in public life for a decade, and in public administration and governance for most of her professional career.  No doubt she has experienced her share of criticism, fair and unfair, during that time.
580	These posts go well beyond the sort of ‘unfair’ criticism one might expect as a local councillor.  They make allegations of corruption, obsession, lying, and fraud. 
581	To understand the events that gave rise to the posts requires a careful examination of the evidence and a review of many documents.  Most people reading the defendant’s posts will not be in possession of all the facts necessary to reach a well-founded conclusion.  They will form a general impression.
582	It is apparent from the evidence before the Court that the plaintiff enjoys an excellent reputation.  The fact she has been elected to local office since 2012 demonstrates she is held in high regard by her community.  The defendant points to her resounding re-election in the 2020 election as evidence the posts did not harm the plaintiff’s reputation.  However, most of these posts were published after the election, and therefore the plaintiff cannot be comforted in the knowledge that they have not damaged her standing in the community.  I accept the unknown impact of the posts, at least until the next election, will cause her a degree of distress and hurt which should sound in damages.  
583	However, I am not persuaded that these posts caused any widespread or significant actual harm to the plaintiff’s otherwise excellent reputation.  
584	Fortunately for the plaintiff, the posts are written in a way that would cause most reasonable and fair-minded readers to approach the allegations with a significant degree of scepticism.  A fair-minded, reasonable reader would not assess them to be a balanced and fair account, but would rather see them as self-serving and histrionic.  
Aggravated damages
585	The plaintiff claims she is entitled to aggravated damages to compensate her for the increased hurt and humiliation she has experienced as a result of defendant’s conduct up to the date of judgment. 
586	The test is whether the defendant’s conduct was improper, unjustifiable or lacking in bona fides.  
587	The plaintiff submits that the defendant’s attack on her was motivated by malice.  The defendant was primarily concerned to avoid any scrutiny or debate of the Metcalfs’ permit application and did so by ‘blasting’ anyone who disagreed with her by labelling them as a bully spreading ‘misinformation’.  She dressed this up as a legitimate fear for her home, but this was not her real concern.  In fact, she wanted to avoid a legal challenge.  She had an improper purpose which drove all her actions.  She then engaged in a gratuitous and wrongful denigration and vilification of the plaintiff which is apparent from her conduct, which was ‘sensationalist, sardonic and nasty’.  She harbours ill-will and spite toward the plaintiff, who she sees as the genesis and driver of the negative community sentiment about her property.  She also wanted to extract some form of public revenge on the plaintiff.  She has never genuinely sought to ‘correct misinformation’ and tellingly targeted the plaintiff almost exclusively and did not target those she alleges were engaging in the harassment and bullying she says she was subjected to.
588	The plaintiff further submits the Court ought to place significant weight on the manner in which the defendant conducted her case.  She has relied on a defence of truth, she has maintained the posts on her Facebook page and, under cross-examination, alleged that the plaintiff acted with dishonest and improper motives and brought this proceeding, not to address the defamation she has endured, but as a reflection of her ‘win at all costs attitude’.
589	These sorts of allegations clearly impacted the plaintiff.  When asked in re-examination how they made her feel, she became emotional and said:
‘I feel sick and I feel outraged and I feel completely attacked, and unfairly attacked.
…
 I’m sorry, you shouldn’t ask me how I feel about it, it’s – sorry. I’m all right until I get asked how I feel.’
Findings
590	Although the publications were posted on a public Facebook page and remain available today, there is no evidence that publication has been of broad scope or the posts have been widely read.  The nature of the posts would tend to render them of interest primarily to persons within the local community and Surf Coast Shire.  The name of the Facebook page, initially referencing Winchelsea Ward and subsequently referencing Surf Coast, would also serve to confine the people likely to click onto the page to those within the local community.
591	The nature of the posts would also reduce what might otherwise be a more significant grapevine effect.  Within the local community, they generated some interest, particularly in the context of the election.  However, the posts are not likely to generate interest among a broader audience.
592	People who did not know the plaintiff would, when reading the publications, be likely to form a view that they were published by the defendant in pursuit of a self-serving campaign and would likely approach the allegations made with a degree of scepticism.  A reader would likely appreciate that the version of events posted is only one side of the story.
593	Nevertheless some people would consider they were true and some people would consider they may be true or may contain elements of truth.
594	The existence of the posts, particularly the cumulative nature of them, was likely to cause significant stress and hurt to the plaintiff and give rise to a reasonable fear that they would continue and escalate in content. 
595	The defendant, by her conduct, has aggravated the hurt and embarrassment felt by the plaintiff and has aggravated the harm done by the original posts. She has maintained a defence of truth, maintained the posts on her Facebook page and ventilated allegations about the plaintiff’s motives. An award of aggravated damages is appropriate.
Assessment
596	The defendant submitted the plaintiff has chosen to be part of the hurly-burly of council life, is no stranger to the media, and is often quoted in the media ‘furthering her agenda’.
597	Lee J stated, in Palmer: 
‘Political figures occupy a special place in our system of representative and responsible government. Insofar as a subset of political figures (serving members of Parliament) are concerned, this special place carries with it protection against civil or criminal liability for actions done or statements made in the course of their legislative duties. Political figures more generally have a position which allows them to further their agenda, and potentially influence the course of economic and social policy and current events. But balanced against these considerable privileges are the costs or downsides of a political profile, including the reality that such figures must expect a degree of public criticism, fair or unfair, not usually visited upon other members of the public.’
598	The defendant submits nominal damages in line with the award in Palmer are appropriate in this case.
599	The plaintiff submits an appropriate award is $150,000 to $200,000.
600	There are well-established principles for assessing damages in defamation, such principles helpfully summarised by John Dixon J in Wilson:
(a)	Damages should provide consolation for hurt feelings, damage to reputation and vindication of the plaintiff’s reputation; 
(b)	Damages ought to reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgement; 
(c)	The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff.  The award must be sufficient to convince a bystander of the baselessness of the charge;
(d)	There must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded;
(e)	The extent of publication and the seriousness of the defamatory sting are pertinent considerations;
(f)	In determining the damage done to a plaintiff’s reputation, the Court should also take into account the ‘grapevine’ effect arising from the publication;
(g)	It is well accepted that injury to feelings may constitute a significant part of the harm sustained by a plaintiff; and
(h)	Aggravated damages are a form of compensatory damages and, where appropriate, form part of the general damages awarded to a successful plaintiff for non-economic loss, designed to reflect aggravation caused to a plaintiff’s hurt or injury by reason of some conduct of the defendant.
601	Each case necessarily turns on its own facts.  Other cases can offer some guidance but recent decisions in relation to political figures demonstrate how variable the award of damages can be.  Awards of damages where there has been defamation within a small community have also varied widely, depending on the circumstances. 
602	In the particular circumstances of this case, it is not appropriate to assess either the hurt to the plaintiff’s feelings, or the harm to her reputation as part of ‘the rough and tumble of politics’.  A local councillor is of a different order than other elected representatives for whom the political role a full-time profession.   Local councillors do not have the many privileges afforded other politicians, including parliamentary privilege.
603	The plaintiff is in a position where her professional work, as well as her work as a councillor, depends upon her honesty and integrity.  To perform her function as a councillor, she requires the community to have confidence in her.  To obtain and perform her work in medical and legal governance, her clients must be confident she is a person of sound ethics and integrity.  Were there to be a significant challenge to her ethics and integrity, it would affect all aspects of her professional life.
604	However, it is significant that the publications were likely to be of limited public interest beyond the local community, and their publication was of limited scope, albeit made on a public Facebook page.  It is also significant that the barrage of posts, day after day, created the opposite impression to that which the defendant sought.  Instead of demonstrating she was the ‘bridge and arrow’, unleashing her ‘truth’ upon the community to set the record straight, the cumulative effect of the posts, and the sensationalist and ‘snarky’ tone used by the defendant, demonstrated it was she who had a vendetta against the plaintiff.  The allegations would have had far less impact than if they had been more circumspect in their tone, or than if they had been published by a respected journalist or a credible news organisation. 
605	It is also relevant to the consideration of damages that the plaintiff is a well-established person within the community and has been a councillor for ten years.  Many community members are likely to have formed views about her which are unlikely to be swayed by partisan posts.  The defendant, at least according to her own evidence, is somewhat reviled within the community.  
606	Some members of the community accepted the posts as true and other members may have considered them credible, particularly those who were unfamiliar with the details of the Metcalfs’ various applications or did not know the plaintiff. 
607	It is important, therefore, that the award of damage vindicates the plaintiff’s reputation and demonstrates the baselessness of the defendant’s allegations, while ensuring there remains a rational relationship between the harm the plaintiff has sustained and the damages awarded.  
608	I accept the plaintiff’s evidence, and the evidence from other witnesses called in support of her case, as to the impact the posts have had on her life.  I accept they weighed heavily on her, impacted her sleep, caused her and continue to cause her great stress, and that she worries that people might believe the allegations and question the very aspects of her personality and professionalism she most prides herself on – being an ethical and transparent person.
609	In this case, the hurt and embarrassment are a significant component of the damage the plaintiff has suffered.
610	Having regard to all the evidence and weighing up the various factors I must consider, I consider $100,000 is an appropriate award of damages, including aggravated damages. 
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