Court finds Councillor liabile in defamation

In a recent decision of the District Court of South Australia, a former Elected Member of a Council has been held liable in defamation for a statement made in the course of a Council Meeting. 

Background

In Duffy & Ors v Trenowden [2010] SADC 152, the Defendant, who in 2003 was a newly elected member of Council, made a statement during a Council Meeting alleging that the Plaintiffs, as members of the previous Council, were corrupt. 

Under the law of defamation, a statement will be taken to be defamatory when in exposes the plaintiff to hatred, ridicule or contempt in the mind of a ‘reasonable person’.

It was accepted by the Defendant that the statement he made was unfounded.  At the very next council meeting after making the defamatory statement, the Defendant retracted the allegation, and provided apologies to the Plaintiffs.  He also published an apology in a local newspaper.

Despite this, and after unsuccessful negotiations, six members of the former Council commenced an action in the District Court in July 2005 against the Defendant, alleging his statements were defamatory. 

The Court’s Findings

Under the law of defamation, certain ‘privileges’ exist that protect various communications against claims of defamation.  Relevantly for this case and for all Elected Members, a privilege extends to statements made on an occasion where one person has a duty or interest in making the statement and the recipient of the statement has a corresponding duty or interest to receive it.

In his judgment, His Honour Judge David Smith noted that meetings of Councils are privileged occasions because Elected Members must be able to speak freely about matters they believe affect the interests and welfare of their community. However, the ‘privilege’ is not absolute, and an Elected Member cannot use the normally privileged occasion to make a statement for that is inconsistent, in purpose or motive, to the duty of honesty – it is the duty of honesty that protects the Elected Member from a legal action for what would otherwise be a defamatory statement. 

Elected Members should be aware that a statement made for an improper purpose or motive will not be protected by privilege.  Privilege will not apply if a Defendant did not believe in a statement’s truth, or was reckless as to it’s truth.  Further, any ill will, knowledge of a statement’s falsity, or bias, will exclude the privilege.

In this instance, His Honour decided that the Defendant knew his statement was false.  Thus, his statement was motivated by malice, and the defence of ‘traditional qualified privilege’ could not apply.

The Defendant was found liable in defamation for the comment and ordered to make damages payments totalling $13,000 (plus interest of 4% per annum applicable from the date of the commencement of the defamation proceedings in 2005).

In addition, His Honour found that the immunity from civil liability for Elected Members offered by Section 39 of the Local Government Act 1999 (SA) (the Act) was not applicable in this case.  His Honour found this immunity could only apply to an honest act or omission by the Elected Member.

His Honour also held that Section 39 did not apply to the Elected Member’s conduct, in this case because it was not related to either his, or the Council’s, statutory powers, functions or duties.

Interestingly, in coming to that conclusion, His Honour held there was no provision of the Act that specifically grants statutory power for a Councillor to make a statement at a Council Meeting.  It is unclear whether His Honour had regard to the Local Government (Procedures at Meetings) Regulations 1999 when reaching this conclusion.

Implication of Decision

In light of these findings, Elected Members and Council Officers should be extremely vigilant in ensuring any comments made during meetings are limited to those required by their position.  Comments made that are defamatory could expose Elected Members or members of Council staff to claims for defamation.

For further information on any of the material contained in this Briefly, please contact George Karzis on 8120 1217 or gkarzis@normans.com.au.

If you find the information in this article useful, please feel free to forward it to someone at your council.

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