MacDougall v Pringle and 4 Ors [1999] NSWSC 879 (3 September 1999)

Last Updated: 6 September 1999

NEW SOUTH WALES SUPREME COURT

CITATION: MacDougall v Pringle & 4 Ors [1999] NSWSC 879

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20087 of 1999

HEARING DATE{S): 13 August 1999

JUDGMENT DATE: 03/09/1999

PARTIES:

IAN DIXON MACDOUGALL

(Plaintiff)

v

STEVEN PRINGLE

(First Defendant)

MARGARET McMURRAY

(Second Defendant)

YAO CHEE LIU

(Third Defendant)

HORNSBY SHIRE COUNCIL

(Fourth Defendant)

KELVIN REGINALD LOW

(Fifth Defendant)

JUDGMENT OF: Levine J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

J Garnsey Q.C.

B Connell

F Clarke

(Plaintiff)

K Smark

(First, Second & Fourth Defendants)

P Gray

(Third & Fifth Defendants)

SOLICITORS:

Woolf Associates

(Plaintiff)

Phillips Fox

(First, Second & Fourth Defendants)

O'Hara & Company

(Third & Fifth Defendants)

CATCHWORDS:

Imputations - form - capacity - special damages - aggravated damages

ACTS CITED:

DECISION:

See paragraph 87

JUDGMENT:

DLJ: 1

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

DEFAMATION LIST

No. 20087 of 1999

JUSTICE DAVID LEVINE

FRIDAY 3 SEPTEMBER 1999

IAN DIXON MACDOUGALL

(Plaintiff)

v

STEVEN PRINGLE

(First Defendant)

MARGARET McMURRAY

(Second Defendant)

YAO CHEE LIU

(Third Defendant)

HORNSBY SHIRE COUNCIL

(Fourth Defendant)

KELVIN REGINALD LOW

(Fifth Defendant)

JUDGMENT (Imputations - form - capacity - special damages - aggravated damages)

1 It appears from the Statement of Claim (41 pages in length including 18 pages of annexures) filed on 9 March 1999 that the action for defamation instituted thereby arises from the following circumstances.

2 The plaintiff was the executor of his late father's estate which included as an asset certain property at 7 Copeland Road, Beecroft. There resided on that property the plaintiff's intellectually impaired sister, Diedre. In his capacity as executor of his father's estate the plaintiff lodged a Development Application with Hornsby Shire Council with a view to obtaining permission for the subdivision of the land. The plan of subdivision, as it is to be understood from the pleaded material, made allowance for the continued residence of the plaintiff's sister.

3 On 17 December 1997 a Planning Meeting at Hornsby Shire Council took place and at approximately 1.30am on Thursday 18 December 1997 reached the item on the agenda which concerned the Development Application. A transcript of the sound recording of the relevant part of the meeting dealing with that item is appended to the Statement of Claim. In some important respects it is incomplete. In addition to the councillors, there were present the plaintiff, his sister and a neighbour Dr Liu. The Development Application was the subject of discussion presumably in accordance with the rules of procedure of the Planning Meeting.

4 On 18 February 1998 there took place another Planning Meeting of the Council. A transcript of the proceedings of that meeting, prepared, as was the first transcript, by the plaintiff, indicates that in addition to councillors present there was another neighbour present a Mr Kelvin Low, as were the plaintiff, and a Mr Kevin Walsh, the estate's solicitor.

5 The Development Application was considered and the Council resolved to refuse the application.

6 The plaintiff brings the proceedings in his capacity as executor of his father's estate and personally against five defendants arising from words said at the two meetings.

7 The first defendant Mr Stephen Pringle is a counsellor and he is sued in respect of statements attributed to him at the first meeting on 17 December 1997.

8 The second defendant Ms Margaret McMurray is a counsellor and she is sued in respect of words attributed to her during that meeting.

9 The third defendant, Dr Yao Chee Liu was present at the meeting as a neighbour of the plaintiff's sister. He is sued in respect of statements made by him at that first meeting.

10 The fourth defendant, Hornsby Shire Council, is sued in respect of all that was published and attributed to the other defendants, as I understand it, at the first meeting. The Council is also sued in respect of the material published and attributed to Mr Kelvin Low the fifth defendant at the meeting on 18 February 1998.

11 Mr Low (a neighbour), is sued in respect of what he said at the second meeting.

12 As I have said each defendant is sued by the plaintiff in his personal capacity and in his capacity as executor of his father's estate. That second capacity constitutes the first of many "complications" to which the pleading points.

13 The imputations pleaded against each defendant are pleaded as arising from their natural and ordinary meaning and as true innuendos (SCR Pt 67 r 12(c)). That is the second complication.

14 The third complication arises from allegations of re-publication or partial re-publication by each defendant constituted, as best as I can understand it at this stage, by the recording of the respective proceedings on tape, the deposit of that tape for access to interested parties and the "grapevine effect".

15 The next "complication" is constituted by a claim for special damage by the plaintiff in his "personal capacity and as executor of his late father's estate" (paragraph 27). This claim seems to relate to damages said to flow from the failure by the Council to approve the Development Application and the loss of the opportunity to sell the lots in the subdivision until after a fall in the Sydney real estate market, subsequent delay and the incurring of additional professional legal and other costs. A second component of this claim appears to be that by reason of the refusal of the Development Application, the plaintiff in order to carry out his duty as executor and as the person responsible for the application, was obliged to neglect his own business as a cattle raiser and to place that business under contract management with resulting costs and expenses being incurred.

16 The last "complication" (as presently perceived) is an extraordinary claim for aggravated damages the numeration of which follows sequentially the 3 paragraphs under the heading "Special Damage". By "extraordinary" I mean that there are included among the 9 "particulars" matters that appear to have no relevance to this head of claim.

17 In the Defamation List on 13 August 1999 Mr Connell of counsel announced his appearance with Ms Clarke as juniors to Mr Garnsey Q.C. for the plaintiff; Mr Smark announced his appearance for the first, second and fourth defendants (the two councillors and the Council), and Mr Gray for the third and fifth defendants (the two neighbours).

18 In answer to an inquiry on my part Mr Connell informed me that Mr McDougall, the plaintiff and his wife were present in Court. In answer to further inquiry as to the foundation for the institution of these proceedings Mr Connell with due candour for his client announced that his client had been subjected to the defamatory imputations and humiliation at the two public meetings of the Hornsby Council.

19 It has to be observed at this stage that the structure of this litigation as it presently exists, and indeed, its very nature, points to massive and crippling legal costs potentially being incurred by both personal litigants and the institutional litigant. Such costs are likely to be incurred by the pursuit of technical interlocutory procedures of the kind that beset the Defamation List. It is as desirable as it is essential in a case of this kind to seek to avoid the incurring of such costs and to seek to keep to a minimum interlocutory arguments. Presently, in the absence of a formalised Case Management scheme affecting defamation actions, the Court can have recourse to s 76A of the Supreme Court Act, SCR Pt 26 r 1 and SCR Pt 31 r 2 to have separately determined questions of fact and law. At this stage it seems to me that as soon as possible directions should be given under those provisions for the determination of the issues of publication and meaning including the jury determination of whether in fact defamatory imputations are carried. That course will be aided at an appropriate time by the giving of directions as to interrogatories, any notices to admit or informal admissions on those subject matters. They will certainly be the subject of consideration when the matter is next listed in the Defamation List. The parties are invited forthwith to give consideration to the employment of these mechanisms for the speedy disposition of these issues.

20 Appended to these reasons is a transcript of the tape of each of the meetings.

First Defendant (Councillor Pringle) - Imputations

21 The imputations pleaded against this defendant and the transcript references are as follows:

"4.1 That Mr Macdougall has ignored the concerns of his mentally disabled sister and was feuding with her to disadvantage her by pursuing a subdivision proposal for the property in which she was living over her objections.

(page 4 lines 4-7, 9-12, page 5 lines 21-24 & 26-30: in the context of page 1 lines 1-2; page 3 lines 29-54 and page 4 line 1)

4.2 That Mr Macdougall, by pursuing a subdivision proposal for the property in which she was living over her objections, was neglecting his mentally disabled sister's legitimate concerns and deliberately refraining from doing anything to meet them for his own advantage.

(page 4 line s4-7, 9-12; page 5 lines 21-24 & 26-30; in the context of page 3 lines 29-54 and page 4 line 1)

4.3 That Mr Macdougall had so conducted himself as to create and maintain a bad relationship with his sister and did not care for her concerns or well-being.

(page 4 lines 4-7, 9-12, page 5 lines 21-24 & 26-30)

4.4 That Mr Macdougall was a hypocrite.

(page 12 lines 17, 21 & 23)

4.5 That Mr Macdougall was a hypocrite because he was not a practising Christian and had protested against the relevance of that matter to the consideration of his subdivision proposal before the Planning Committee of Hornsby Shire Council.

(page 12 lines 5-6, 14, 21, 23; in the context of page 12 lines 7-8, 10, 18-19, 22)

4.6 That Mr Macdougall was a hypocrite because he was not a practising Christian and had said he was endeavouring to act in his sister's interests in pursuing his subdivision proposal for the property in which she was living when in fact he was not endeavouring to act in her interests.

(page 12 lines 5-6, 17, 21, 23; page 4 lines 9-12; page 5 lines 26-27, 28-29; in the context of page 4 lines 13-21; page 6 lines 30-34, 36-42, page 9 lines 33-36, page 10 line 18)

4.7 That Mr Macdougall was not a good man because he was not a practising Christian.

(page 12 lines 5-6, 17, 21 & 23)

4.8 That notwithstanding Mr Macdougall was executor of his father's estate and trustee of his father's will for the benefit of his sister, he was misconducting himself and failing to carry out his duties as executor and trustee in putting forward and seeking to have approved the sub-division proposal before the Planning Committee of Hornsby Shire Council".

(page 4 lines 4-7, 9-12, page 5 lines 21-24 & 26-30: page 12 lines 5-6, 17, 21, & 23; in the context of page 1 lines 1-2; page 3 lines 29-54 and page 4 line 1)

22 Imputation 4.5 has been abandoned.

23 It is to be observed that there is a certain "sameness" about imputations 4.1. 4.2 and 4.3.

24 Particular objection is taken to 4.1 by reason of the use of the word "disadvantage" insofar as it is asserted that it is ambiguous: does it mean the effect of what he did or that was the purpose of what he was seeking to achieve?

25 As to imputation 4.2 it is said that this is a rolled up imputation the last clause commencing "and deliberately ..." being a separate charge.

26 As to imputation 4.3, as I understand the objection, it discloses nothing as to the "conduct" that created the bad relationship and it contains (the arguably) rolled up component of lack of care.

27 The charge of hypocrisy in imputation 4.4 is filled out in imputation 4.6 in which is incorporated what is suggested in imputation 4.7.

28 Imputation 4.8 is really incomprehensible though it appears to be pointing towards a charge against the plaintiff in his capacity as executor and trustee.

29 It is not for me to draft the plaintiff's imputations but the following may go some way (and of course I do not warrant them) to seek to capture the different concepts as I understand the plaintiff to be striving for:

"(a) that Mr MacDougall by pursuing over her objections a subdivision proposal for the property in which she was living ignored the concerns of his mentally disabled sister.

(b) Mr MacDougall in pursuing over her objections a subdivision proposal for the property in which she was living was deliberately refrain for his own advantage from meeting his sisters concerns.

(c) Mr MacDougall by pursuing over her objections a subdivision proposal for the property in which she was living had created a relationship with his sister characterised by a lack of care on his part for her well being.

(d) Mr MacDougall was a hypocrite".

30 Mr Pringle says the last in clear term. It is an imputation which arguably can stand by itself. It might be desirable however to plead an additional or alternative imputation to the following effect:

"(e) that Mr MacDougall was a hypocrite in that he said he was endeavouring to act in his sister's interests in pursuing his subdivisions proposal for the property in which she was living but was not in fact doing so/or was acting for his own advantage".

31 A further variation might be to the effect that:

"(f) Mr MacDougall although not professing to be a practising Christian was still not a good man because of his pursuit, to her detriment, over her objection of a subdivision proposal for the property in which his mentally disabled sister was living.

(g) As executor of his father's estate and trustee of his father's will for the benefit of his sister Mr MacDougall failed to carry out his duties as such in pursuing approval of the subdivision proposal contrary to the interests and benefit of his sister".

32 Somewhere within the range of these ideas, to which I understand the imputations to be leading, can be formulated a set which would be unobjectionable.

33 Nonetheless of those pleaded the following orders will have to be made:

34 Imputation 4.1 is struck out as bad in form: in my view, it is rolled up - "ignored" - "feuding" - though I reject the submission as to the word "disadvantage".

35 Imputation 4.2 is struck out as bad in form as it is clearly rolled up.

36 Imputation 4.3 is struck out in failing to disclose the "conduct" which is clearly available to be done.

37 Imputation 4.4 is not struck out. It is good in form.

38 Imputation 4.6 I will not presently strike out provided it is the words "he was not a practising a Christian and had ..." are omitted.

39 Imputation 4.7 I will not strike out.

40 Imputation 4.8 I will strike out as bad in form. It can easily be re-worded.

41 Those imputations I have not struck out are capable of arising in my view, and are capable of being defamatory.

42 Leave to amend generally however I do grant.

Second Defendant (Counsellor Margaret McMurray) - Imputations

43 The imputations pleaded against this defendant are as follows (together with the references to the passages in the transcript relied upon):

"8.1 That Mr Macdougall was a person without compassion for his mentally disabled sister.

(page 9 lines 33-36, 38-40; page 10 lines 1-2, 6-15, 25-26; page 11 lines 7-8; page 12 line 14)

8.2 That Mr Macdougall who was prepared to risk his mentally disabled sister's mental health in pursuing a subdivision proposal contrary to her wishes.

(page 9 lines 33-36, 38-40; page 10 lines 1-2, 6-7, 22-23, 25-26; see further the particulars given as to 4.1 and 4.2 as to context)

8.3 That notwithstanding that Mr MacDougall was executor of his father's estate and trustee of his father's will, he was feuding with his mentally disabled sister over the benefits of their late father's estate for his own advantage;

(page 9 lines 33-36, 38-40; page 10 lines 1-2, 6-15, 22-23, 25-26; see further the particulars given as to 4.1 and 4.2 as to context)

8.4 That Mr MacDougall, in pursuing a subdivision proposal for the property in which his mentally disabled sister was living and over her objections was a person who had no concern for the happiness of his mentally disabled sister;

(page 9 lines 33-36, 38-40; page 10 lines 1-2, 6-7, 22-23, 25-26; see further the particulars given as to 4.1, 4.2 and 4.3 as to context)

8.5 That Mr Macdougall not a good man because he was not a practising Christian.

(page 12 line 14; as to context see the particulars given as to 8.4 including by way of cross-reference)

8.6 That Mr MacDougall's conduct concerning his mentally disabled sister in pursuing a subdivision proposal for the property in which she was living over her objections was so serious, as it was not the conduct of a good man or of a practising Christian, that it was relevant to and should be taken into account by the Planning Committee of Hornsby Shire Council in approving the subdivision proposal.

(page 12 line 14; as to context see the particulars given as to 8.4 including by way of cross-reference)

8.7 That Mr Macdougall had shown such lack of compassion and preparedness to take advantage of his mentally disabled sister that he should be questioned as to whether or not he was a practicing Christian and a good man.

(page 12 line 14; as to context see the particulars given as to 8.4 including by way of cross-reference)

8.8 That Mr MacDougall in rejecting an alternative subdivision plan suggested by Councillors deliberately tried to mislead Councillors in regard to the topography of the site".

(page 9 lines 19-28)

44 Imputation 8.6 has been abandoned.

45 As to imputation 8.1 it is argued on behalf of that defendant that it is simply "not there". When one considers the words attributed to this councillor, for example at line 7 on page 10 of the transcript of the first meeting, it is clearly arguable. I find imputation 8.1 capable of arising and capable of being defamatory.

46 As to imputation 8.2 I am of a similar view.

47 As to imputation 8.3 it will be struck out (see imputation 4.3).

48 As to imputation 8.4 this, in my view, captures the substance of imputations 8.1 and 8.2 and I strike it out as contravening SCR Pt 67 r 11(3).

49 As to imputation 8.5 this councillor joined in the proposition implicit in the question asked by Councillor Pringle. She should be "pinned" to the same imputation. It will go to the jury.

50 As to imputation 8.7 this captures the substance, in my view, of 8.1 and 8.2 and 8.5. I strike it out accordingly.

51 Imputation 8.8 is founded on a part of what is alleged to have been said but not recorded on the tape or in the transcript namely, lines 27 and 28 on page 9. On the assumption that the plaintiff in the end can prove publication of these words I am of the view that the imputation is capable of arising and that the sting of "misleading" is available from the words "I can read a map too, you know". Imputation 8.8 will go to the jury.

Third Defendant (Dr Liu) - Imputations

52 The imputations pleaded against this defendant are as follows:

"12.1 That Mr Macdougall, notwithstanding that his sister was mentally disabled and he was executor of his late father's estate was deliberately acting to disadvantage his mentally disabled sister in pursuing the subdivision proposal against her wishes.

12.2 That Mr Macdougall, notwithstanding that his sister was mentally disabled and he was executor of his late father's estate, by pursuing a subdivision proposal for the property in which she was living over her objections, was acting so unreasonably and improperly to disadvantage his sister as to require her to be protected against him.

12.3 That Mr Macdougall, notwithstanding that his sister was mentally disabled and he was executor of his late father's estate, was deliberately pursuing a proposal for subdivision over her objections and acting so as to have a devastating effect on her mental health and to be likely to cause her to have a mental breakdown.

12.4 That Mr Macdougall, notwithstanding that his sister was mentally disabled and he was executor of his late father's estate, was failing to carry out his proper duties as executor and was acting to disadvantage his sister who was one of the beneficiaries of the estate".

53 The plaintiff relies upon the words attributed to this defendant on pages 3 to 4 and 8 to 9 of the transcript of the first meeting.

54 It is to be borne in mind that the plaintiff is suing the defendant in respect of the words uttered by him at the meeting and relies upon the imputations arising from the natural and ordinary meanings in the first instance. The primary submission for this defendant is nothing in what Dr Liu says is capable of referring to the plaintiff as executor and trustee of his father's will. There is reference to the deceased estate; there is reference to the father. There is reference to Diedre being a beneficiary. I agree with this proposition. I do not however agree with the proposition that there is nothing in what Dr Liu is alleged to have said that give rises to imputation 12.1 omitting the reference to the executor. One wonders why there is a reference by the use of the word "notwithstanding ... he was executor" at all. Be that as it may, Dr Liu does refer to Diedre never having been consulted. It is implicit in my view, that that which is being proposed is contrary to her wishes. Imputation 12.1 is incapable of arising. The plaintiff has liberty to replead.

55 In relation to imputation 12.2 the elimination of the reference to the plaintiff being the executor would cure this defect and an imputation in appropriate form will be allowed as arising and as capable of being defamatory. Formally, imputation 12.2 is found as not capable of being conveyed.

56 Imputation 12.3 again omitting the reference to the executor is capable of arising by reference to the passage not recorded but attributed to Dr Liu in relation to the danger to the mental health of the plaintiff's sister. I find however that in its present form imputation 12.3 is incapable of being conveyed.

57 As to imputation 12.4 I strike this imputation out as bad in form as not disclosing that which constitutes the alleged failure to carry out the proper duties as executor. In any event, by reason of my holding that there is no reference to the plaintiff as executor (in fact there is no reference to the plaintiff by name at all), an imputation along these lines is simply incapable of being conveyed.

58 The plaintiff has leave to replead the imputations against this defendant.

Fourth Defendant (Hornsby Shire Council) - Imputations

59 The imputations pleaded against the Council are as follows:

"16.1 That Mr Macdougall had ignored the concerns of his mentally disabled sister and was feuding with her to disadvantage her by pursuing a subdivision proposal for the property in which she was living over her objections.

16.2 That Mr Macdougall, by pursuing a subdivision for the property in which she was living over her objections, was neglecting his mentally disabled sister's legitimate concerns and deliberately refraining from doing anything to meet them for his own advantage.

16.3 That Mr Macdougall had so conducted himself as to create and maintain a bad relationship with his sister and did not care for her concerns or well-being.

16.4 That Mr Macdougall was a hypocrite.

16.5 That Mr Macdougall was a hypocrite because he was not a practising Christian and had protested against the relevance of that matter to the consideration of his subdivision proposal before the Planning Committee of Hornsby Shire Council.

16.6 That Mr Macdougall was a hypocrite because he was not a practising Christian and had said he was endeavouring to act in his sister's interests in pursuing his subdivision proposal for the property in which she was living when in fact he was not endeavouring to act in her interests.

16.7 That Mr Macdougall was not a good man because he was not a practising Christian.

16.8 That notwithstanding Mr Macdougall was executor of his father's estate and trustee of his father's will for the benefit of his sister, he was misconducting himself and failing to carry out his duties as executor and trustee in putting forward and seeking to have approved the sub-division proposal before the Planning Committee of Hornsby Shire Council.

16.9 That Mr Macdougall was a person without compassion for his mentally disabled sister.

16.10 That Mr Macdougall was prepared to risk his mentally disabled sister's mental health in pursuing a subdivision proposal contrary to her wishes.

16.11 That notwithstanding that Mr MacDougall was executors of his father's estate and trustee of his father's will, he was feuding with his mentally disabled sister over the benefits in their late father's estate for his own advantage.

16.12 That Mr MacDougall, in pursuing a subdivision proposal for the property in which his mentally disabled sister was living and over her objections, was a person who had no concern for the happiness of his mentally disabled sister.

16.13 That Mr MacDougall's conduct concerning his mentally disabled sister in pursuing a subdivision proposal for the property in which she was living over her objections was so serious, as it was not the conduct of a good man or of a practising Christian, that it was relevant to and should be taken into account by the Planning Committee of Hornsby Shire Council in considering the subdivision proposal.

16.14 That Mr Macdougall had shown such lack of compassion and preparedness to take advantage of his mentally disabled sister that he should be questioned as to whether or not he was a practicing Christian and a good man.

16.15 That Mr MacDougall, in rejecting an alternative subdivision plan suggested by Councillors, deliberately tried to mislead Councillors in regard to the topography of the site.

16.16 That Mr Macdougall, notwithstanding that his sister was mentally disabled and he was executor of his late father's estate was deliberately acting to disadvantage his mentally disabled sister in pursuing the subdivision proposal against her wishes.

16.17 That Mr Macdougall, notwithstanding that his sister was mentally disabled and he was executor of his late father's estate, by pursuing a subdivision proposal for the property in which she was living over her objections, was acting so unreasonably and improperly to disadvantage his sister as to require her to be protected against him.

16.18 That Mr Macdougall, notwithstanding that his sister was mentally disabled and he was executor of his late father's estate, was deliberately pursuing a proposal for subdivision over her objections and acting so as to have a devastating effect on her mental health and to be likely to cause her to have a mental breakdown.

16.19 That Mr Macdougall, notwithstanding that his sister was mentally disabled and he was executor of his late father's estate, was failing to carry out his proper duties as executor and was acting to disadvantage his sister who was one of the beneficiaries of the estate".

60 It will be seen that in paragraph 16 of the Statement of Claim the plaintiff has brought together the imputations arising from the separate publications attributable to the 3 preceding defendants.

61 The observations I have made seriatim in relation to the separately pleaded imputations must apply to these imputations and the plaintiff will be granted leave to re-plead conformably with the leave granted consequent upon orders made with the preceding defendants (see below in formal orders).

62 The fourth defendant is also alleged to have conveyed the imputations arising from the words attributed to the fifth defendant Mr MacDougall of the second meeting of the Council which took place on 18 February 1998.

Fifth Defendant (Mr Kelvin Low) - Imputations

63 The imputations pleaded against this defendant are as follows:

"24.1 That Mr McDougall was ignoring his intellectually impaired sister's best interests and mental welfare in seeking approval of a subdivision proposal over her objections.

24.2 That Mr McDougall in seeking approval of a subdivision proposal over his intellectually impaired sister's objections which ignored her best interests was motivated only by a concern for financial gain as a developer.

24.3 That Mr MacDougall had caused his intellectually impaired sister's financial manager appointed by the Guardianship Board to resign by placing pressure on that person to deprive his sister of necessary representation of her interests.

24.4 That Mr MacDougall was seeking to take advantage of the lack of a financial guardian to pursue a subdivision proposal over his sister's objections to his own advantage when his sister had no appointed financial manager to represent her.

24.5 That Mr MacDougall as a person who was only interested in money and his own financial gain had no concern for and was prepared to ignore his intellectually impaired sister's best interests.

24.6 That notwithstanding Mr MacDougall was executor of his father's estate and trustee of his father's will for the benefit of his sister, he was misconducting himself and failing to carry out his duties as executor and trustee in putting forward and seeking to have approved the subdivision proposal before the Planning Committee of Hornsby Shire Council".

64 With respect to these imputations I find as follows:

65 As to imputation 24.1 this is capable of arising, it is capable of being defamatory.

66 Imputation 24.2 is capable of arising and capable of being defamatory.

67 Imputation 24.3, having read the transcript and listened to the tape, I can only conclude that it would be a morbid or suspicious mind that would conclude that what Mr Low is here saying is that the plaintiff applied pressure to the financial guardian to resign. There is no reasonable basis for that proposition. Imputation 24.3 I find to be incapable of being carried by the matter complained of.

68 As to imputation 24.4. this was in the course of argument was amended to read "that Mr MacDougall was seeking to take advantage of a lack of a financial guardian". The matter complained of, in my view, generally and particularly at lines 14 to 26 on page 2 of the tape are capable of giving rise to an imputation in that form. It will go to the jury as amended.

69 As to imputation 24.5 it is unarguable, in my view, that this imputation does not differ in substance from the two imputations that I have otherwise allowed namely imputation 24.1 and 24.2.

70 Accordingly, imputation 24.5 is struck out.

71 As to imputation 24.6 Mr Low makes no reference to the plaintiff by name nor to his position as executor. The disparaging stings are capable as being understood to be referring to Mr MacDougall personally. Imputation 24.6 I find incapable of arising.

Fourth Defendant (Hornsby Shire Council) - Imputations

72 The imputations pleaded against Mr Low are repleaded against the Council in paragraph 20 of the Statement of Claim. They are:

"20.1 That Mr MacDougall was ignoring his intellectually impaired sister's best interest and mental welfare in seeking approval of a subdivision proposal over her objections.

20.2 That Mr MacDougall in seeking approval of a subdivision proposal over his intellectually impaired sister's objections which ignored her best interests was motivated only by a concern for financial gain as a developer.

20.3 That Mr MacDougall had caused his intellectually impaired sister's financial manager appointed by the Guardianship Board to resign by placing pressure on that person to deprive his sister of necessary representation of her interests.

20.4 That Mr MacDougall was seeking to take advantage of [the lack of a financial guardian] to pursue a subdivision proposal over his sister's objections to his own advantage when his sister had no appointed financial manager to represent her.

20.5 That Mr MacDougall as a person who was only interested in money and his own financial gain had no concern for and was prepared to ignore his intellectually impaired sister's best interests.

20.6 That notwithstanding Mr MacDougall was executor of his father's estate and trustee of his father's will for the benefit of his sister, he was misconducting himself and failing to carry out his duties as executor and trustee in putting forward and seeking to have approved the subdivision proposal before the Planning Committee of Hornsby Shire Council".

73 Thus, the same observations that I made in respect to the imputations pleaded against the fifth defendant Mr Low are applicable to the imputations pleaded against the fourth defendant in respect to the second publication (see below in formal orders).

True Innuendos

74 The plaintiff, as against each defendant, has pleaded the imputations as "true innuendos" specifying in accordance with SCR Pt 67 r 12(c) the "extrinsic facts".

75 The structure of the Statement of Claim is that each of the personal defendants is sued in respect of the words attributed to him or her. Those words are of course part of the taped record of the whole of the meeting. The fourth defendant (the Council) is sued in respect of the publication of the several individual parts. There is no action based upon the whole of the transcript of the meeting as-it-were, thus technically it does appear to me to be open to the plaintiff to plead as extrinsic facts the other parts of the record of the meeting relating to what was said by other defendants and, in addition, the whole of the record of the meeting itself which is, for example, specified as an extrinsic fact in paragraph 6(f).

76 Arguably insofar as Mr MacDougall seeks to plead an imputation defamatory of him in his capacity as executor of his father's estate by reason of the breach by him of some duty or obligation of that office, it would be open to the plaintiff to plead an extrinsic fact of the kind, for example, set out in paragraph 6(c).

77 Whilst the structure in my view of the whole of the Statement of Claim is essentially artificial and on a common sense basis does not accord with the reality of events of the two meetings, technically I am not presently persuaded that the pleading in the alternative of true innuendos is embarrassing to the defendants.

Plaintiff Suing in the Capacity as Executor

78 It seems to me curious that the plaintiff has chosen to plead that he is suing in his capacity as executor. Assuming the plaintiff to have been defamed by the publication of imputations defamatory of him personally (for example, vis-a-vis his relationship with his sister), or personally in the sense that as executor of his father's estate he had misconducted himself, any damages would be damages "personal" to the plaintiff. The estate has not been and cannot be "defamed". It may well be that some action was available to the estate as against the Council consequent upon the Council's refusal of the Development Application which, I gather, was subsequently approved in the Land & Environment Court. That any special damages are recoverable by Mr MacDougall must be personal to him and must be connected with the damage done to his reputation in a personal sense.

79 I am not in a position conclusively to rule on this aspect at this stage. Indeed, it might well be a matter for the trial. No doubt further and better particulars will be provided of the claim made in paragraph 27 of the Statement of Claim that "as executor of his late father's estate" damage was suffered and particulars of special damage are thereupon supplied, for example, relating to what appears to be a claimed diminution in the sale value of the subdivided lots consequent upon delay in the approval of the subdivision. That delay, at first blush, would seem to be not so much the result of the plaintiff being defamed but as a result of the refusal by the Council of the Development Application. It happened that during the meetings of the Council concerned with that Development Application that the plaintiff arguably was defamed. But whether it necessarily follows in a logical or requisitely causative sense that such diminution in value is payable by the defendants as a component of special damages for having defamed the plaintiff is an interesting question of principle let alone of proof.

80 Similar considerations apply to the second component of the claim for special damages which I understand to be particular costs incurred by the plaintiff in the running of his business as a cattle breeder. It is, I gather, contended that he was obliged to place his business under contract management in order to pursue the subdivision application. This will no doubt be the subject of further and better particulars and certainly should be.

81 This aspect was not argued in any great length in the Defamation List on 13 August. It may well be that, subject to clarification of the plaintiff's claim in this regard to which the defendants are clearly entitled, a more formal and considered application can be made in regard to this component of Mr MacDougall's action.

Particulars of Aggravated Damages

82 As I have already remarked these particulars are extraordinary not the least in their numeration. They are as follows:

"(4) The plaintiff is and was at all material times the executor of the estate of his late father, Robin Ramsay Macdougall.

(5) The plaintiff is and was at all material times endeavouring to carry out the terms of the will and to administer the trusts under the will of his late father Robin Ramsay Macdougall.

(6) The plaintiff is and was at all material times endeavouring to safeguard protect and advance the interests of his sister Ms Deirdre Macdougall.

(7) Each of the defamatory imputations pleaded above is and was false and untrue;

(8) Each of the defamatory imputations pleaded above is and was known to the defendant making that imputation to be false and untrue, or alternatively was made by the defendant recklessly, not caring whether the imputation was true or false;

(9) Each of the imputations pleaded over seriously reflected on the character of the plaintiff as a brother, and upon the propriety of the plaintiff's actions as executor of the will of his late father;

(10) The plaintiff's sister is and was at all material times subject to the protection of the Protective Commissioner and suffered from mental and intellectual disability.

(11) The plaintiff was and continues to be a fond, loving and affectionate brother seeking to protect, safeguard and advance his late sister's interests and as executor of the will of his late father, and was endeavouring to carry out the terms of the will and the trusts under the will.

(12) The plaintiff has been compelled in order to carry out his duty as executor and as the person responsible for the subdivision application to place his business of an active cattle raiser at Gulargambone, NSW under contract management in order to deal with, manage and pursue the subdivision application, and has incurred costs and expenses accordingly".

83 Strangely enough at page 23 of the Statement of Claim there is a heading "Particulars of Aggravated Damages - Supreme Court Rules Part 67 r 12 ... Particulars will be provided". What this means I do not know.

84 I propose to strike out particulars (4), (5), (6), (9), (10), (11) and (12). These on their face embarrassing: they presently particularise no matter that is capable of being characterised as improper, lacking in bona fides or unjustifiable in terms of conduct by the defendants. The plaintiff will have to redraft the Statement of Claim in this regard and attend carefully to the proper particularisation of any such matters upon which he proposes to rely in aggravation of damages so that each of the defendants will know with clarity what case he, she or it has to meet.

85 As I indicated earlier in these reasons, this is a case where it is clearly desirable that the issue of publication and meaning be litigated first and at an early date. It is desirable therefore that in regard to those subjects the plaintiff's pleading be put in order without delay. Matters going to damages of course can be dealt with later.

86 Having reviewed the balance of outcomes of the hearing on 13 August I am of the view that each party should bear its own costs.

87 The formal orders are:

1. (a) Imputations 4.4 and 4.7 will go to the jury.

(b) Imputations 4.1, 4.2, 4.3 and 4.8 are struck out.

2. (a) Imputations 8.1, 8.2, 8.5 and 8.8 will go to the jury.

(b) Imputations 8.3, 8.4 and 8.7 are struck out.

3. (a) Imputations 12.1, 12.2 and 12.3 will not go to the jury.

(b) Imputation 12.4 is struck out.

4. (a) Imputations 16.4, 16.6, 16.7, 16.9, 16.10 and 16.15 will go to the jury.

(b) Imputations 16.16, 16.17 and 16.18 will not go to the jury.

(c) Imputations 16.1, 16.2, 16.3, 16.8, 16.11, 16.12, 16.14 and 16.19 are struck out.

5. (a) Imputations 20.1, 20.2 and 20.4 (as amended) will go to the jury.

(b) Imputation s20.3 and 20.6 will not go to the jury.

(c) Imputation 20.5 is struck out.

6. (a) Imputations 24.1, 24.2 and 24.4 (as amended) will go to the jury.

(b) Imputations 24.3 and 24.6 will not go to the jury.

(c) Imputation 24.5 is struck out.

7. Particulars of Aggravated Damages (4), (5), (6), (9), (10), (11) and (12) are struck out.

8. The plaintiff has leave to file an Amended Statement of Claim in accordance with these reason within 21 days.

9. Listed for further Directions on 22 October 1999.

10. Each party is to pay his, her and its own costs of the hearing on 13 August 1999.

Annexure A

HORNSBY SHIRE COUNCIL

PLANNING MEETING 17.12.97

TRANSCRIPT OF TAPE RECORD (AS SUPPLIED) OF SEGMENT OF MEETING DEALING WITH ITEM 35: DEVELOPMENT APPLICATION FOR SUBDIVISION OF 198 COPELAND ROAD BEECROFT. Heard at approx 1:30 am Thurs 18.12.97.

TAPE: AS SUPPLIED BY HORNSBY SHIRE COUNCIL. RECEIVED AT FARRER ACT WED 7.1.98 IN MAIL.

Transcript prepared by Ian MacDougall

COUNCIL CONSIDERATION OF ITEM 35 BEGINS

(Page 1)

1 Cllr Muirhead: Item number 35 is Copeland Road Beecroft.

2 Subdivision of one allotment into six in two stages. We

3 have members of the public regarding this item?

4 Cllr Pringle: Deirdre, calm down. This is your finest

5 hour. This is it.

6 Cllr Muirhead: I just want to clarify some issues here.

7 (Identifies speakers.) Councillors, we might just get if

8 we might and this we'll have Deirdre speak first and we

9 might be able to vet some of those issues very quickly if

10 we might. OK with council?

11 Cllr Pringle: Move that way.

12 Cllr Muirhead: Deirdre, would you like to start?

13 Deirdre Macdougall: Yes. Yes thank you.

14 Cllr Muirhead: We've just got about... we've got about a

15 minute if we could and we can...

16 Deirdre Macdougall: What?

17 Cllr Muirhead: About a minute or so if we could

18 and let's go through those issues thanks...

19 Deirdre Macdougall: The Hornsby Shire Council. Dear Mayor

20 and Council. I do not like his... I do not like my

21 brother's plan, and I do not want it to go ahead at the

22 side of my house on the west side. You are not doing...

23 You are not doing what my father said and I hope... and I

24 hope you will get the sack... and... from the

25 Guardianship Board. The police and the councillors said

26 no and the road is to go... to go on the east side where

27 the caravan was in the middle. You are not going to touch

28 the terrace please three feet away from it now. Thank

29 you. You have to change your plan. He is not going on my land 30 any more please. PS: Please keep off my garden now.

31 Cllr Muirhead: Thank you Deirdre. We'll take.. we'll take

32 that into account when we look at the matter when we go

33 through the rest of it. Thank you very much Deirdre. Sir.

(Page 2)

1 Ian MacDougall: Mr Mayor, councillors. I'm Ian

2 MacDougall. I'm the brother of Deirdre and the executor

3 of the estate of my late father Robin Ramsay Macdougall.

4 Present also is Mr Richard Smith the Project Manager and

5 Mr Tony Gilbert the consulting surveyor.

6 Under the terms of my late father's will I'm to subdivide

7 the acre and a half of land in his estate and to cut off

8 the existing house for its present occupant, that is my

9 sister Deirdre who is the major beneficiary. I'm pleased

10 the plan has been passed by the Planning Division. I have

11 read the written objections from Copeland Road residents

12 and I see that these are all from those on the western

13 side of the existing block and there are none from the

14 eastern side. Neighbours to the west have stated that

15 they are not opposed to the subdivision of the land into

16 six medium sized building blocks. The main concern of the

17 closest neighbours is the position of the access way on

18 the western as opposed to the eastern side. I did write

19 to all the neighbours who had lodged written objections

20 and offered to discuss the matter on site and two

21 households responded.

22 Now this eastern way. Why did we reject it?

23 This is the... the way on the eastern side. You've got

24 the plans...

25 There are several very very difficult problems with this.

26 It's the steepest slope on the block and a lot of cutting

27 and filling would be required to get it down to the 25%

28 maximum permitted. An attractive screen of trees on the

29 eastern boundary would have to go. Access to lot 3 would

30 be very difficult. Lot 4 would be cut in two by the

31 access way and lot 1 would be reduced to 780 square

32 metres and to 680 square metres with a sixteen metre

33 frontage onto the Copeland Road if we retained the

34 outdoor living areas as common sense would dictate... the

35 terrace that Deirdre mentioned. This did not make sense

36 from the point of view of the estate even if the planning

37 division would accept it. A middle route would have worse

38 problems and I could discuss this further if you wish.

39 The western route uses an historically under-utilised

40 strip of land about seven and a half metres wide. It

41 passes by the garage and bathroom of number 198 and faces

42 an almost solid brick wall on number 196. A 2 metre wide

43 buffer zone presently planted with tall shrubs will run

44 between the access way and the boundary and that will be

45 retained as requested by Dr Liu:. It will minimise tree

46 loss and go down the slope in the gentlest possible way.

47 I have been advised today that an objection lodged on

48 behalf of my sister and understandably supported by

49 neighbours has been withdrawn by her financial manager

50 Mrs Julie Merton after negotiations between her legal

51 firm of Hunt and Hunt and the estate solicitor.

(Page 3)

1 In conclusion, the plan is seen by us as the most

2 sensitive one to the heritage values of the area and best

3 protects the interests of my sister. She is the major

4 beneficiary of the estate and will receive the house in

5 her own right plus 40% of the proceeds of the land sales,

6 the rest being distributed between three other

7 beneficiaries.

8 Cllr Muirhead: Thank you sir. Sir.

9 Dr Liu: Right. My name is Chee Liu. I'm a general

10 practitioner in Dundas for the last thirty odd years. I

11 living in Beecroft the last fifteen years. I bought the

12 land sixteen years back, and I come to know Mr Robin

13 Macdougall... He is owner is a deceased estate now. And

14 he at the time that I know him he give me the

15 understanding without written of course that he bought

16 the land he built the house on the western side because

17 he don't want any road when he did divide the land he

18 don't want any road on east side. On the other side. So

19 we, when we design the house passed with the council

20 here, is built the house close to his house as close as

21 we can. Therefore, get away from our own common drive.

22 And now. Da da. We got two common drive on both side. We

23 have a big window facing this proposed driveway. And

24 this... behind this window is my study. This is where I

25 read book and things like that. There will be four block

26 of land behind it passing through the driveway. It will

27 be a lot of noise. I feel it will be intruding on my

28 enjoyment of my land and my peace and quiet.

29 Up to this point, I want to speak on behalf of myself and

30 my neighbours about Deirdre's. Now we... know Deirdre

31 over the last 15 years. I understood she has lived there

32 since she was five years old, and she's been there for

33 fifty years. She know this place inside out and she... I

34 also understood... she is a member of the... beneficiary

35 of the estate. And she never been consulted about how

36 this land going to be divided although she live on it

37 and... for Deirdre's activity in... on her property which

38 I happen to be a neighbour is mainly on this western side

39 where the driveway going to go through. This is where she

40 hang her laundry out. This is where she go for a walk.

41 She mow her little lawn there. If she not go out in

42 street inside house this is where she is. How could I...

43 ... where amateur grow orchids. I got a little shed house

44 there. And whenever go to my orchid house, I always see

45 Deirdre's there. It's always wave to one another. See

46 this is where her live. And she got very strong

47 conviction...she want that driveway away from there. This

48 her belief in her simple way. Now Deirdre... and being a

49 medical practitioner I can say she is a bit on the

50 borderline mentally retard person. All right. This is her

51 belief and you can't change her that. And I feel it is

52 extremely ridiculous for the neighbour and people like me

53 to try to protect her against one her own people. It's to

54 me... it's crazy. But on the other hand you might say I

(Page 4)

1 might using Deirdre for my own advantage. It's not

2 because I can always move.

3 Cllr Muirhead: OK. Thank you sir. Councillors, questions.

4 Cllr Pringle: Yes. Question to Mr MacDougall. Noting of

5 course this puts Council in a very... I find it extremely

6 sad actually. This is to me the most difficult item we've

7 actually got on the business papers tonight... We have...

8 Cllr Cardamatis: I would say all year.

9 Cllr Pringle: Yes this year. To see a family feuding such

10 as this really causes me extreme distress. Mr MacDougall,

11 what can you do so that your sister is not so extremely

12 disadvantaged?

13 Ian MacDougall: Well, in working up this proposal, as the

14 executor of the estate I've had to balance three

15 conditions: first of all, to carry out the terms of the

16 will in which my father directed me to subdivide the land

17 to maximise the return of the land and Deirdre has 40%

18 stake in that and her future income will depend on the

19 investment of the proceeds by the Protective

20 Commissioner. I have also got to keep an eye on Deirdre's

21 house and its amenity...

22 Deirdre Macdougall: No you do not...

23 Ian MacDougall: ...and thirdly I have also got to keep an

24 eye on council guidelines. So steering between these

25 three with also a very difficult site to develop.

26 Now it's all very well... My father did once tell me that

27 he had taken advice and somebody said it would be a good

28 idea to put it down the western side...

29 Deirdre Macdougall: No...

30 Ian MacDougall: He always thought more in terms of the

31 eastern side for an access way when he came to subdivide

32 the land. He never ever did it. He died at the age of

33 ninety and he never ever did it for the simple reason it

34 was all too hard... He never took professional advice, he

35 never got engineers, never got surveyors, and when I came

36 to address this problem which he had left to me I found

37 that really we only have these two options: We go down

38 the west or we go down the east. Now...

39 Cllr McMurray: How come...

40 Deirdre Macdougall: Go down the east, thank you.

41 Ian MacDougall: This eastern route is frought with

42 difficulties. This section here... Here's Copeland Road

43 here.. This section here is the steepest part on the

44 whole block. We would have to cut and fill extensively to

45 get the road down there at the maximum 25% slope

(Page 5)

1 permitted by council. We've got to access lot 3 here from

2 below, from down the hill, very limited access there. The

3 access way would cut lot 4 in half, and lot 1 would be

4 reduced to 780 square metres... that's here... and if we

5 are to retain the patio area of the house...

6 Deirdre Macdougall: No you're not...

7 Ian MacDougall: ... and a substantial living area, we

8 would be reduced to 680 square metres with a 16 metre

9 frontage to Copleland Road. Now all of that means really

10 that this being the only conceivable alternative to this

11 proposed submitted plan, it's not really an option,

12 either under the terms of the guidelines of the council,

13 or under the terms of my father's will, or under the

14 terms of maintaining the living areas of the house,

15 the terrace, the outdoor living area and maximising the

16 return from the land as I am directed in the will to do,

17 and thereby maximising Deirdre's income for the rest of

18 her life.

19 A Councillor: Irrelevant.

20 Cllr Muirhead: Question...

21 Cllr Pringle: I'd like to follow that up actually,

22 because I don't think that you've really answered my

23 question. I mean, this is your sister you're talking

24 about here. I mean...

25 Deirdre Macdougall: I don't like his plan.

26 Cllr Pringle: ... what are you going to do to try and

27 ameliorate your sister's concerns?

(The following section is missing from the tape as received from council, and is reproduced here from memory.)

28 Cllr Pringle: She's your sister. You didn't even ask

29 her. Ian, why is your relationship with your sister

30 so bad?

(Tape as received resumes.)

31 Ian MacDougall: Well...

32 Cllr Vandertouw: What does it say in the will about it?

33 Ian MacDougall: How much... How much time do we have to

34 devote to this?

35 Cllr Cardamatis: I think we can devote a fair bit because

36 this is something that I think everyone...

37 Cllr McMurray: Can I get some clarification...

(Page 6)

1 Cllr Muirhead: No sorry, Can we just... I just want to

2 deal with questions to these people first. We could deal

3 with the questions. No. I want to deal with questions to

4 this matter...

5 Ian MacDougall: Well... Well I will answer the question

6 as best I can.

7 Cllr Muirhead: Yes...

8 Ian MacDougall: My fa... My mother died about ten years

9 ago, in 1989. There were no internal problems in the

10 family until that point in time. After that, my father

11 became increasingly... disoriented in his thinking...

12 paranoid if you like, about me.

13 A councillor: Yeah.

14 Ian MacDougall: Particularly grievous to him was the fact

15 that I got married to a religious woman...

16 Deirdre Macdougall: Pain in the arse...

17 Ian MacDougall: And he... and the result was that he saw

18 less and less of us... and where our relationship while

19 my mother was alive was perfectly OK, it deteriorated

20 from that point on. My wife was accused of having designs

21 on all of his estate, et cetera, et cetera.

22 A councillor: Ah.

23 Ian MacDougall: So by the time he died I was really on

24 the outer and excluded. Unfortunately I feel that he has

25 conveyed this attitude of his to my sister...

26 Deirdre Macdougall: Not my bloody sister...

27 Ian MacDougall: And she became increasingly hostile to

28 me. I hope this situation reverses in future.

29 Deirdre Macdougall: No it won't.

30 Ian MacDougall: But in the mean time, in the mean time I

31 think that in subdividing this land I have provided

32 adequately for my sister's... the amenity of her house,

33 giving her a manageable area and also provided her

34 obeying the terms of the will.

35 Cllr Muirhead: Can we...

36 Ian MacDougall: Can I just finish on this? I was up there

37 last week and Deirdre said to me "It's all too much for

38 me. It's too much to manage." And we were trying to fire

39 proof the place... It was like a fire bomb with all this

40 dry tinder all around and I'm trying to help her in those

41 ways as best I can, but I'm coming from a very very

42 difficult basis.

(Page 7)

1 Cllr Muirhead: Yes. Just if I could... Sorry

2 councillors... Just on the driveway issue...

3 Ian MacDougall: Yes.

4 Cllr Muirhead: Why can't the driveway go down on the...

5 Cllr Pringle: The middle, close enough, in other words...

6 Cllr Muirhead: The middle, but not a straight line, being

7 a curved line down the middle, coming slightly in, more

8 of the centre from Copeland Road, curving around, missing

9 the paving area and basically back joining in where

10 you've written five passing bay whatever on that...

11 joining into there... which doesn't affect you lot number

12 3, 4 but et cettera et cetera. Doesn't go down... The

13 inconvenience would be a driveway next to the saleable

14 value of lot 1 admittedly, would not affect the neighbour

15 in 196, Deirdre would be happy with that wouldn't you

16 Deirdre? A driveway on the other side?

17 Deirdre Macdougall: On the east side, yes...

18 Cllr Muirhead: On the east side, yes...

19 Deirdre Macdougall: But three feet away from my terrace,

20 I've had enough of him...

21 Cllr Muirhead: Ok Deirdre it's all right. And do it that

22 way. What's... What would be the problem with that?

23 Ian MacDougall: Well... I'm sure that Tony Gilbert will

24 back me up on this, but there is a... at the terrace...

25 where the height of the terrace is where you can see...

26 there is a ... one of your elite trees there, an

27 angophora. We have to miss that otherwise we come

28 straight through the terrace... If we go...

29 Deirdre Macdougall: No you're not.

30 Ian MacDougall: If we go straight through the terrace we

31 preserve a substantial lot 1, and the sale of lot 1 will

32 have to finance the rest of the subdivision because my

33 father also left me no money to do this with. The second

34 thing is that we're coming from the level of the terrace

35 down a height of about two metres down to the ground

36 below, and we would again run into problems of steepness

37 of the slope. We'd have to do an awful lot of filling, of

38 making a rampart down there, a sort of a causeway to,

39 to... , and cutting as well so you'd... you'd run down

40 this causeway and then go into a cutting to get down the

41 slope. Whereas if you notice the 116 metre contour Mr

42 Mayor, you'll see that you cross that on the western...

43 on the western route very close... comparatively close to

44 Copeland Road. On the... on the centre or the eastern

45 route you cross that at the back boundary of that block,

46 so we're making use of a gently sloping section of the

47 block to put this access way down and we're keeping it

(Page 8)

1 away from the living areas both of 198 and we're faced

2 with a solid brick wall with a small window in it and a

3 camellia screen in between on 196.

4 Cllr Nanelli: Leading on from what the mayor... the mayor

5 said and you've said about the difficulties of the site

6 and the steepness of it, have you considered reducing the

7 number of lots say to five for example. Then you'd have

8 larger lots and presumably would get a larger sale price

9 for the larger sized lots and that may overcome the

10 problems of cut and fill and all the other problems that

11 you've mentioned. Keeping it in the middle... keeping the

12 driveway in the middle or to the eastern side, and then

13 reducing the number of lots say by one, you'd have larger

14 lots... I would then anticipate you'd get a larger price

15 for each of the lots and perhaps overcome some of those

16 problems of cut and fill that you're talking about.

17 Ian MacDougall: Would you like to deal with that?

18 Richard Smith: Its... its the front lots that are

19 critical.

20 Cllr Nanelli: What, number 1?

21 Richard Smith: Yeah... Well, 1 and 2. The lot 4 as... as

22 Ian has pointed out if the driveway comes down the

23 eastern side and I think the distinction should be

24 clearly in Deirdre's mind as to what... I don't think she

25 wants the central route, she wants the the eastern route

26 depicted on the sketch 3 that councillors and the mayor

27 have been given.

28 Ian MacDougall: This one here...

29 Richard Smith: There's no need to reduce the number

30 of lots... The question will be up the front, and unless you

31 cut out one of the lots completely... and make... a huge

32 lot up top...

33 Cllr Cardamatis: Before you go on, is anyone of the

34 belief that this can be resolved tonight? I don't think

35 so.

36 Cllr Vandertouw: I don't want to decide on Deirdre's life

37 at one o'clock in the morning.

38 Cllr Cardamatis: I don't think so either. I think

39 something that has to be taken on board here goes well

40 beyond the realms of what we normally do.

41 Dr Liu: ...out of order but I wish... Please let me say

42 something.

43 Cllr Muirhead: Very, very quickly.

44 Dr Liu: As a doctor for forty years I say if the decision

45 is not move that driveway somewhere else the result of

(Page 9)

1 Deirdre will be devastating and in fact will all give me

2 ... I'm not trying to threaten you.................

3 Cllr Cardamatis: No. I concur with you so totally...

4 Dr Liu: Before I stick my neck out... otherwise...

5 (At this point Dr Liu: [inaudible on tape] ventured

6 the opinion that Deirdre could have a nervous

7 breakdown if the driveway went in the proposed

8 location.)

9 Cllr Cardamatis: I totally agree with you and I think it

10 would be over my dead body and most other councillors

11 that it happened there.

12 Cllr McMurray: Mr Mayor.

13 Cllr Cardamatis: I just want to say something.

14 Cllr Muirhead: Sorry. Can we deal with questions till we

15 can to these people first...

16 Cllr Cardamatis: OK.

17 Cllr Muirhead: Are there any further questions to these

18 people? Councillor McMurray.

19 Cllr McMurray: To the executor of this estate. I'm just

20 looking at this plan of... council plans. I am suggesting

21 to you that this access way to this subdivision is

22 between... between lot 1 and lot 2. I question why you

23 say there is a drop of 2 metres when in fact the RL

24 levels tell me that there's... it's 116 on the Copeland

25 Road frontage and also down where the passing bay is its

26 116 also...

27 (Omitted from tape record): I can read a map too you

28 know).

29 I... I think you stated that your sister is a beneficiary

30 of this estate to the tune of 40%...

31 Ian MacDougall: Forty percent of the land sales. Plus the

32 house and curtilage.

33 Cllr McMurray: OK. Might I suggest to you that... you

34 stated that you have your sister's best interests at

35 heart, that you think about her mental health... and you

36 also...

37 Deirdre Macdougall: I don't talk to him...

38 Cllr McMurray: And you also think of what would actually

39 make her happy for the rest of her life...

40 Deirdre Macdougall: Not him.

(Page 10)

1 Cllr McMurray: I know that dollars can talk many

2 languages but I think your sister might be even be

3 willing to forego part of her share if indeed she got

4 really what she wanted out of this...

5 Deirdre Macdougall: That's true.

6 Cllr McMurray: And what I'm asking for is a little bit of

7 compassion, and I hate to see families sitting here

8 brawling over... over estates. Many families have broken

9 up because the beneficiaries are all sitting there

10 squabbling about aunty's this and aunty's that. Now I

11 think human relations are more important than the mighty

12 dollar and might I suggest to you... I would like to

13 suggest that we could move an amendment that you could

14 come back to us with amended plans with the access way to

15 go between lots 1 and 2.

16 Cllr Pringle: I'll second that.

17 Cllr Muirhead: Can we just...

18 Ian MacDougall: Can I point out something there?

19 Cllr Muirhead: No. We're going to deal very quickly now

20 councillors. Any more questions to the applicant...

21 sorry, any of the people.

22 Cllr McMurray: I'm asking... I'm asking the executor of

23 this estate

24 Cllr Muirhead: OK. Yes.

25 Cllr McMurray: Whether he would he like to consider his

26 sister's mental health...

27 Cllr Muirhead: Sir. Would you like to answer that?

28 Ian MacDougall: Yes. Well I'm... I mean I'm... I...

29 I suppose I feel that I'm being accused of having no

30 compassion in this situation...

31 Cllr McMurray: No I'm not accusing of you of any. We've

32 got a problem here... You, I you...recognise it, you

33 recognise it...

34 Ian MacDougall: Yeah. OK. If we were to put this access

35 way down the middle here...

36 Deirdre Macdougall: No you won't.

37 Cllr Cardamatis: Look, I don't think we need to discuss

38 the access way any more.

39 Ian MacDougall: No. Just a minute...

40 Cllr Cardamatis: No. No. This matter needs to be

41 deferred. We can't decide on any access way tonight. I

(Page 11)

1 just want to make a brief point and then move this motion

2 for deferral...

3 Cllr Muirhead: Well I want to just get... Do you want to

4 get...

5 Ian MacDougall: Can I say I am...

6 Cllr Muirhead: Sir, I will have... Councillors.

7 Cllr McMurray: I asked a question. I'm asking for an

8 answer.

9 Ian MacDougall: Yes. I'm trying to answer the question.

10 Cllr Muirhead: You have five seconds.

11 Ian MacDougall: I'm being asked to come back with an

12 alternative plan with the access way down the middle. I

13 don't think Deirdre would accept that either.

14 Deirdre Macdougall: No I do not!

15 Cllr Muirhead: Deirdre, we're talking about having a

16 driveway not on the eastern side. Away from your house.

17 Deirdre Macdougall: Yeah. I want it on the east side.

18 Cllr Muirhead: That's what... that's what we're talking

19 about.

20 Cllr McMurray: That's where it is.

21 Cllr Muirhead: That's what we're talking about. OK.

22 Deirdre Macdougall: Oh. Sorry.

23 Cllr Muirhead: That's what we're talking about.

24 Cllr Cardamatis: I want to move a motion that's...

25 Cllr Muirhead: Again no. I just want to deal with it. Any

26 further questions to the people here?

27 Cllr Cardamatis: Yeah. I really need to just say

28 something. I've been trying to say it, and I just have to

29 get it off my chest I'm sorry.

30 Cllr Muirhead: Yes.

31 Cllr Cardamatis: Deirdre has spent one year speaking to

32 us. We can not put this aside tonight. We know this

33 woman. She is here every Wednesday. She is as part of

34 this council as all of us. I don't know if you've known

35 that but we see her every week without fail and we have

36 her interests very at heart that go well beyond any other

37 DA that I've seen come before this council. So this

38 matter I want to move and I know...

(Page 12)

1 Cllr Muirhead: I know. We'll just get these questions

2 over. Any further questions?

3 Cllr Pringle: Yes just this.

4 Cllr Muirhead: Very quickly.

5 Cllr Pringle: Yes one last one. Ian, are you a practising

6 Christian?

7 Ian MacDougall: Me? No. No I'm not. But that doesn't

8 mean...

9 Cllr Pringle: But your wife is?

10 Ian MacDougall: ... that I'm not a good man. My wife is.

11 Cllr Nanelli: I don't think that's relevant.

12 Cllr Muirhead: I don't think that's really a relevant

13 question.

14 Cllr McMurray: Not relevant! It decidedly is!

15 Cllr Muirhead: Councillor Vandertouw have you got a

16 question? Sorry. Excuse me. Councillor Vandertouw...

17 Cllr Pringle: That's hypocrisy.

18 Ian MacDougall: (agreeing with comment from the hall) I

19 think that is right. I think it is bloody outrageous.

20 Cllr Cardamatis: Not at all.

21 Cllr Pringle: Not at all!

22 Ian MacDougall: Why not at all?

23 Cllr Pringle: You're a hypocrite. Aren't you?

24 Cllr Muirhead: Excuse me.

25 Ian MacDougall: Am I a practising Christian? What on

26 Earth has that got to do...

27 Cllr Muirhead: Excuse me. Excuse me sir. Councillor

28 Vandertouw, you had a question?

29 Cllr Vandertouw: Yeah just... Sorry but in the... will,

30 were you instructed to not, were you instructed to...

31 look after the amenity of Deirdre's life? Are you

32 instructed to be careful of anything you did in the way

33 of development that didn't disrupt her life?

34 Cllr Muirhead: Ah.. Sorry, I'll have to rule that

35 question out of order. Under the Act we are assessing a

36 development application under the Planning and Assessment

(Page 13)

1 Act. The issues of why the development is taking place

2 and the details of the estate are not part of the

3 assessment procedure. I'm sorry. I'll have to rule on

4 that.

5 Ian MacDougall: Mr Mayor...

6 Cllr Muirhead: No. Excuse me. Further questions

7 councillors to the people here... Who are going to try

8 very hard at Christmas to be... yeah. OK. If you'd all

9 take your seats. Move back to your seats. Thanks very

10 much. Councillor Cardiamtis. You had something.

11 Cllr Cardamatis: That this matter be deferred to allow a

12 further report as to the location of the driveway to be

13 decided on.

14 Cllr Muirhead: OK. It has been moved...

15 Cllr Pringle: And seconded.

16 Cllr Muirhead: It has been moved by Councillor

17 Cardamatis, seconded by Councillor Pringle that the

18 matter be deferred but...

19 Cllr McMurray: I just want to have some... clarification

20 in regard to Councillor Cardimatis'...

21 Cllr Muirhead: Councillor McMurray.

22 Cllr McMurray: Who is going to assess what?

23 Cllr Pringle or Cllr Cardamatis: Good point.

24 Cllr McMurray: That motion does not scrub up too well.

25 Cllr Muirhead: OK. Well...

26 Cllr Cardamatis: It's late.

27 Cllr Pringle: The location of the driveway which

28 satisfies environmental considerations and the personal

29 interests of Ms Macdougall...

30 Cllr McMurray: I'm sorry, I... don't believe we can move

31 a motion along those lines.

32 Cllr Muirhead: No.

33 Cllr Cardamatis: All right. Well it has to definitely

34 come back before the council.

35 Cllr McMurray: I would request that we ask the

36 application... applicant to provide amended plans for an

37 access way between lots 1 and 2.

38 Cllr Muirhead: OK.

(Page 14)

1 Cllr Pringle: Which protect the amenity of...

2 Cllr McMurray: The dwelling in lot...

3 Cllr Pringle: Number one hundred and ninety eight.

4 Cllr Muirhead: OK. We've got that.

5 Cllr Cardamatis: Fully scrubbed up?

6 Cllr Muirhead: Fully scrubbed up. Been moved by

7 Councillor Cardamatis seconded by Councillor Pringle.

8 Debate.

9 Cllr Horne: Is that the only alternative?

10 Cllr Muirhead: Debate.

11 Cllr Cardamatis: Can you think of another one?

12 Cllr Horne: No...

13 Cllr Muirhead: Councillors. Right of reply. Councillor

14 Cardimatis?

15 Cllr Cardamatis: No thank you.

16 Cllr Muirhead: Right. Councillors we have the one motion

17 in front of us is a deferral to allow amended plans to

18 come back, protecting the amenity et cetera... in the

19 middle. OK.

20 Those in favour?

21 Councillors: Aye.

22 Cllr Muirhead: Those against? Declare that carried. Thank

23 you.

24 We have dealt with that...item number thirty seven...

END OF ITEM 35

Annexure B

TRANSCRIPT OF TAPE OF PLANNING MEETING OF HORNSBY COUNCIL AT COUNCIL CHAMBERS, HORNSBY, 18.02.98.

Transcript prepared by Ian MacDougall.

THE DEVELOPMENT APPLICATION LODGED BY A.C. GILBERT & CO, CONSULTING SURVEYORS, WAS ITEM 7 ON THE AGENDA.

********************************

The Mayor of Hornsby, Cllr John Muirhead, was in the chair.

(Page 1)

1 Cllr Muirhead: Item number 7. Copeland Road Beecroft. Do

2 we have any members of the public regarding this item?

3 Item number seven is Copeland Road Beecroft. Subdivision

4 of one allotment into six in two stages. Hello Mr

5 MacDougall. How are you? Um now, you're both speaking?

6 Right. Who's speaking on this side? One speaker.

7 Ian MacDougall: Two.

8 Cllr Muirhead: One.

9 Ian MacDougall: Can we split it between the two of us?

10 Cllr Muirhead: Well, one and a half minutes each if you

11 wish.

12 Ian MacDougall: Yes, that'll be all right.

13 Cllr Muirhead: Fine. If you'd like to start, doctor. Yes.

14 Kelvin Low: Yes. Look I live opposite Deirdre Macdougall.

15 We're really talking about Deirdre Macdougall today. This

16 is a very sad case involving not just a planned

17 subdivision, but a subdivision which affects Deirdre's

18 future. You know Deirdre. She's been here in the past.

19 She's intellectually impaired. She's down there. She's as

20 scared as hell as what you might do today. I'm scared as

21 hell as what you might do today. I think if it goes

22 through, you'll have a very sad case on your hands.

23 Today. There's no doubt about that. This is not a case

24 about money. This is a case about what is in the best

25 interests of Deirdre.

26 Now in terms of the social impact, that's one of the

27 matters I ask you as councillors to take into

28 consideration. You have a duty to look after her best

29 interests. I can't do it. I'm not her financial guardian.

30 The sad case is that a financial guardian was appointed,

31 but due to the pressures placed upon that financial

32 guardian, she no longer is the financial guardian, and at

33 the moment there's a situation where there's no financial

34 guardian. She can't come here because she can't be

35 represented, and I understand it will be at least three

36 weeks before a financial guardian is appointed, and the

(Page 2)

1 financial guardian will need more time to consider

2 this very very complex matter.

3 On the last occasion, whilst I was not here I understand

4 that Council did not pass the application. The

5 application before you is substantially the same as the

6 one which was before you on the last occasion. There are

7 some minor changes, but it's substantially the same. But

8 I understand that there is an option which has been

9 placed before you and which is in the papers which I've

10 seen, and can I indicate that Deirdre Macdougall would

11 accept Option B. That would impact on the terrace, but

12 she would be prepared to accept that option. That's a

13 matter that needs to be explored by the developer, the

14 developer who is the brother, and I'd ask you to reject

15 the application today, and if you at the back of your

16 mind think that this is a matter that must go through,

17 then please defer it at the very least to enable Deirdre

18 Macdougall to have her own representation on the next

19 occasion, who can probably put to you matters about how

20 she feels, and probably put to the developer about her

21 position in respect of that Option B, which is the middle

22 the one down the road. Because at the end of the day, as

23 I understand it, Option B makes little or no difference

24 to the estate in terms of the return. Option B would give

25 the estate a return which would be just as lucrative as

26 the plan down the side.

27 And it doesn't matter to the developer. He lives in the

28 country. He's not going to worry about it. It's money to

29 him. That's all he's worried about. The money aspect of

30 it all. But we have something higher than that. We've got

31 to look at her best interests. And I implore you to look

32 at that aspect of this case, a very sad case, and to

33 reject it.

34 Cllr Muirhead: Thank you. Sir.

35 Con Yallouris: I'm Deirdre's cousin Con Yallouris. I've

36 known Deirdre all my life, and her father's wishes before

37 he died was to have the road on the east side, and that's

38 her wishes too. That's all I'd like to say.

39 Cllr Muirhead: Thanks very much. You're speaking aren't

40 you? Yes. You're both speaking one and a half minutes.

41 Who'd like to start? You're going to start?

42 Kevin Walsh: OK. Just to... Thank you Mr Mayor and

43 councillors. To fill you in on the background of this,

44 that er... Robin Macdougall, who died on the 21st of

45 December 1986...

46 Cllr Pringle: You sir are? Sorry. Your name?

47 Kevin Walsh: Kevin Walsh. Solicitor for the estate. His

48 estate can be considered to be asset rich and income

49 poor. The moderate amount of cash that he left has been

50 used to pay debts including land tax; the land is subject

(Page 3)

1 to land tax, and his funeral and testamentary expenses.

2 The balance has been utilised to pay for the subdivision

3 costs to date and it is fast running out. The late Robin

4 Macdougall knew his land was extremely valuable and he

5 was at great pains and concern to provide for his

6 intellectually disabled daughter. She is mentioned by

7 name seven times in his will as compared to his son Ian,

8 who is mentioned by name four times. The direction to

9 subdivide and maximise the return is spelt out in the

10 will and also, I don't need to tell you Mr Mayor it is an

11 executor's statutory duty to maximise, not lessen, the

12 value of a potentially valuable subdivision. The

13 testator's first and main aim being to provide sufficient

14 capital for his daughter to maintain a home in Copeland

15 Road Beecroft and to generate a sufficient income for her

16 to enjoy a better than average lifestyle. The executor

17 must be able to present for sale a valuable block of land

18 in the estate adjoining the existing home, the proceeds

19 of which will be utilised to complete the necessary...

20 the axeway construction and subdivision.

21 Cllr Muirhead: Thank you for your time. Mr MacDougall.

22 Ina MacDougall: Thank you...

23 Cllr Muirhead: Stay seated. You're right.

24 Ian MacDougall: We basically have three options here Mr

25 Mayor. We can go with the existing DA, we can cut off the

26 house... on a second option we can cut off the house on

27 its own block of land and sell the balance in globo, and

28 that would not yield anything like a sufficient income

29 that my father had in mind for his daughter in this will

30 which I can quote and which incidentally was drafted

31 by Mr Low. The third option is to sell the entire asset and

32 relocate Deirdre to something less expensive, and that

33 has already been suggested to me.

34 Now I don't want to do that. But the estate at the

35 present time has got about five thousand dollars in the

36 bank and all the options except the existing DA before

37 you now really do not satisfy the terms of the will and

38 do not provide my sister with anything like what she is

39 used to. I ask Council here to just address the planning

40 issues and leave my sister's concerns to the Protective

41 Commissioner. On these matters I do not think that it is

42 appropriate for the Council, or for the Land and

43 Environment Court, or for the neighbours to decide. I

44 think the appropriate person now is the Protective

45 Commissioner.

46 Cllr Muirhead: Thank you. Councillors, questions.

47 Cllr Horne: Would you be prepared to wait for the

48 Protective Commissioner to voice his or her opinion in

49 two or three weeks whenever the time is... When he or she

50 has gone into the case?

(Page 4)

1 Ian MacDougall: Certainly. Certainly.

2 Kevin Walsh: We're prepared if the motion... if the

3 application is approved that it be made subject to the...

4 Cllr Horne: Would you be prepared...

5 Kevin Walsh: ...the approval of the and consent of the

6 Protective Commissioner.

7 Cllr Horne: Would you be prepared to have it deferred

8 until further advice?

9 Kevin Walsh: No. No.

10 Cllr Muirhead: Thank you. Further questions?

11 Cllr Blunt: Are you prepared to move the driveway to the

12 other side?

13 Ian MacDougall: To which side are you talking about?

14 Cllr Blunt: To the middle. To the middle.

15 Cllr Horne: Option B.

16 Ian MacDougall: To the middle. The, the... It is not a

17 financial option for the estate. It is not possible.

18 Cllr Muirhead: OK. Thank you. Further questions? Right,

19 if you'd like to take your seats. Thank you. Councillor

20 Pringle.

21 Cllr Pringle: Mr Mayor, in the light of the information

22 we've got tonight I'd move that the application be

23 refused on the following grounds: Adverse impact on the

24 streetscape. The unacceptable location of the driveway.

25 Over-development of the site. Loss of significant trees.

26 And that it's not in the public interest.

27 Cllr Muirhead: Moved by Councillor Pringle. Seconded...

28 Do we have a seconder? Seconded Councillor Vandertouw.

29 Councillor Pringle, would you add that in that with

30 the... in you motion the impact on the residential

31 amenity of the existing dwelling as to noise, headlights

32 and loss of private recreation space?

33 Cllr Pringle: Certainly. Happy with that.

34 Cllr Muirhead: Debate. Those in favour.

35 Councillor Pringle: Aye.

36 Cllr Muirhead: Those against. Declare that carried.

END OF ITEM 7

HSCTPE2R.DOC

***********

LAST UPDATED: 03/09/1999