Defamation denial ‘rewrites history’: Cr Day

By Tim Howard

Clarence Valley Council is trying to “rewrite history” with its denial it took legal action against a community group says a veteran councillor.

Cr Bill Day, said the council was in denial after Mayor Peter Johnstone ruled an attempt at acknowledging legal action by council against YambaCAN out of order during the recent council meeting.

During debate on a Notice of Motion from Cr Karen Toms, asking for a report on the costs of YambaCAN’s interactions with the council, Cr Ian Tiley foreshadowed a motion

“That:

1. Council formally resolve to withdraw threatened legal action against YambaCAN and 2. the council ascertain legal costs incurred by YambaCAN and then consider contributing to those costs.”

The mayor, after consulting with general manager Laura Black, ruled the attempted motion out of order.

“Cr Tiley, there is no legal action involving council and so I’m going to rule that motion out of order I’m afraid,” the mayor said.

But Cr Day said he that had seen enough evidence to convince him the council had begun legal action against YambaCAN and also nothing that convinced him the council had done anything to halt it or that the general manager had taken carriage of the matter.

Last week Cr Johnstone revealed the letter he had written to Julien Castaldi, the Sparke Helmore Lawyers solicitor with the carriage of this matter.

He sent a copy of that letter, along with copies of a letter he had sent to YambaCAN telling them there was no legal action from the council and the matter it referred to was a personal matter involving them and Ms Black.

He also revealed the contents of a letter from the deputy secretary of the Office of Local Government, Brett Whitworth, which insisted the matter was private between Ms Black and YambaCAN officers, Lynne Cairns and Col Shephard.

The mayor’s letter to Mr Castaldi of last week read:

“I refer to your letter dated 18 July 2023 addressed to Col

Shephard and Lynne Cairns.

“A copy of the first page of this letter has been posted on social media and it states that the client in this matter is Clarence Valley Council. The first line reads that ‘We act for Clarence Valley Council (council).’

“This is at odds with council’s public statements that this is a private matter between Laura Black and Lynne Cairns. It has also prompted a councillor to move a motion in the February council meeting that proposed:

“That council:

“1. formally resolve to withdraw threatened legal action against Yamba CAN

“2. ascertain legal costs incurred by Yamba CAN and then consider contributing to those costs

“Please will you confirm by public statement that:

“a) The client in this matter is Laura Black

“b) That Sparke Helmore will not accept instructions in this matter from Clarence Valley Council.”

But Cr Day said all of this was window dressing, because YambaCAN was in possession of legal letters with the Clarence Valley Council as the client and YambaCAN as the respondent in a concerns notice, which was the necessary precursor to a defamation action.

“This is evidence,” Cr Day said. “Peter (Mayor Johnstone) is trying to rewrite history with this. You can’t do that.”

In the letter which he asked Cr Johnstone to send to Mr Castaldi, he said.

“I do have a copy of the email Mr Castaldi sent to our general manager (GM) Laura Black on 29 August 2023, as do all councillors, and I believe Mr Castaldi’s email confirms the following:

• that the Concerns Notice was issued to YambaCAN Inc

• that Clarence Valley Council was the client

• that Sparke Helmore prepared and sent this Concerns Notice to YambaCAN as a result of instructions from GM Black using her delegated authority to do so

• that CVC councillors are entitled to receive all information and advice from SHL (Quote: ‘….the privilege in advice by Sparke Helmore belongs to you as well as council’).”

Ms Cairns said YambaCAN had received no notification that Ms Black had taken carriage of the matter or taken any action personally against YambaCAN or her and Mr Shephard.

“We have two letters, a concerns notice and a letter requesting further particulars from Sparke Helmore to YambaCAN with Clarence Valley Council mentioned as the client,” she said.

Ms Cairns provided a letter from the group’s legal advisor, who replied to the November letter from Mr Whitworth.

In it he said:

“I am instructed by Yamba CAN Inc to respond to your letter of 21 November 2023.

“In that letter you offered the opinion that the concerns notice served on the community group was done so on the General Manager’s behalf and the matter is a private one.

“Please be advised that the concerns notice was issued by Sparke Helmore Lawyers acting on behalf of Clarence Valley Council. In part the letter states:

“‘We act for Clarence Valley Council (Council), and further

“‘We are instructed by Council to provide representation to Ms Black in relation to the Matter

Complained Of’.

“On behalf of Yamba CAN I sought further particulars from Council. In reply Sparke Helmore Lawyers again state clearly that their client is Clarence Valley Council.”

The mayor was asked about this matter during a radio interview on Loving Life 103.1FM after the council meeting. He insisted the council had not taken legal action and the continued next page appearance of Clarence Valley Council on the letters to YambaCAN might be “a typo”.

He said YambaCAN should attempt to clear this matter up with Sparke Helmore, drawing an analogy with a problem on a bill or a rates notice that could be cleared up with by contacting the sender.

“Lynne and Yamba CAN have had a letter that has come from a lawyer and they are unsure about the wording of that letter,” he said.

“They should contact the lawyers and say, hang on, you’ve got this wrong. That’s what should be happening.

And that’s what should have been happening from the very beginning.

“And this has just been going on and on and I can’t do any more. I’ve had legal advice.

“We’ve sent letters saying that we are not taking, council are not taking legal action. What more can we do?”

Cr Day said this explanation ignored clear evidence that the council had been involved in taking legal action against a community group, an action he described as “disgraceful”.

He said the mayor’s letter to Mr Castaldi did nothing to clear this issue up and was an attempt to further his narrative that the council had not been involved in legal action. His letter asked key questions of the solicitors, which have acted for council over a period of time.

• did council request and endorse the transfer of the client position in this matter from council to GM Black.....or was it done via Delegated Authority?

• can SHL provide all details on how this transfer was negotiated and endorsed?

• could this action be seen as a conflict-ofinterest for GM Black?

• can GM Black ‘take over’ a legal matter commenced by council or will completely new actions be necessary?

• has Sparke Helmore advised YambaCAN that council is no longer the client in the Concerns Notice they have received?

“I want to know if Peter has sent my letter in full to Mr Castaldi and if not, why not?” Cr Day said.

The mayor said he has not complied with this request and had doubts he would get an answer from Sparke Helmore.

“I’ve explained to Bill that I am hopeful that I will get a reply to my letter, but that as CVC are neither the client nor the respondent there is no guarantee of this,” the mayor said.

“It would require Laura to both give her permission for Sparke Helmore to reply and presumably agree to pay for the letter.”

He doubted he would get a reply to Cr Day’s questions.

“I would be surprised if they replied to the questions Bill is asking and I don’t want to jeopardise my chances of a reply by including Bill’s questions,” he said.

“I will only consider Bill’s request once I either have a reply or the passage of time would make it clear that I will not get a reply.”

Cr Johnstone said these matters began during a time before he was mayor and suggested asking former Mayor Cr Tiley about them.

Cr Tiley said when he became aware of the letters to YambaCAN he sent an email to Ms Black telling her to stop legal action.

In the email of August 2, 2023, he said:

“Would you please provide an update to councillors hereon and in the interim take no further action on the matter until council considers,” Cr Tiley said.

He said nothing ever came to the council for consideration and the mayoral election that installed Cr Johnstone in the role occurred about six weeks later.

Cr Day said he only wanted a response to the matter involving the council.

“Please note that my questions relate to Clarence Valley Council’s involvement in this matter,” he said.

“Any actions Laura Black may take via Sparke Helmore Lawyers, independent from council, are of no interest to me.”