COMMUNITY activists opposed to a proposed aged care lifestyle village had reason to celebrate after a Supreme Court judge dismissed the developer’s defamation claim against them.
Wattle Grove residents Clive Garnham, Robert Vletter and Jane Genovese successfully defended the action brought by Wattle Grove landowner Ross Leighton.
Mr Leighton took the trio to court over a 2011 community newspaper advertisement expressing disappointment in the local council and posts on www.ruralwattlegrove.com.
Mr Garnham and Mr Vletter said lawyers checked the content of the advertisement before publication.
Justice Rene Le Miere dismissed the action on Friday, April 29, and awarded costs to the defendants.
Mr Garnham said after four years of fighting the lawsuit, the result was a great relief.
“We’ve had the stress and worry of substantial sums of money hanging over our heads for four years,” he said.
Mr Leighton filed the writ in the Supreme Court in April 2012.
Mr Garnham said with the support of the community, they acted on concerns over the proposal for an ‘integrated aged persons’ community’ in a rural area of the Shire of Kalamunda.
“We’ve all knocked on doors gathering signatures or urging letter writing on probably four or five occasions now,” he said.
The Environment Defender’s Office (EDO) represented Ms Genovese in the defamation battle.
EDO principal solicitor Patrick Pearlman said the office previously provided legal advice and assistance to Ms Genovese and other residents about environmental and planning issues related to the development.
“We took on Ms Genovese’s defence based on that prior assistance and the public interest in defending community members’ right to free speech regarding environmental issues,” he said.
“Justice Rene Le Miere dismissed Mr Leighton’s action for want of prosecution.”
On July 28 last year, Justice Le Miere placed Mr Leighton’s case on the inactive case list because he had taken no steps to advance the case in the preceding 12 months.
At the July hearing, the Court advised Mr Leighton if he took no steps to re-activate the case, it would be dismissed after six months.
When Mr Leighton took no action, EDO and the other defendants’ lawyers applied to have the action thrown out in March this year.
Mr Leighton opposed the dismissal and two more hearings followed in April.
In arriving at his decision, Justice Le Miere likened the case to a so-called Strategic Litigation Against Public Participation (SLAPP) suit.
“Defamation actions may be used as a tactic in public debate mainly for the purpose of silencing the opposition,” he said.
Additionally, he said Mr Leighton’s delay over the proceedings was “inordinate” and he had “provided no satisfactory explanation for the delay”.
Mr Leighton said the EDO represented the defendants pro bono and he could not ascertain why they had qualified for public assistance.
His application for rezoning at 32 Gavour Road is with with the WA Planning Commission.
He said his ‘integrated aged care centre’ would provide a nursing home for about 140 residents and up to 180 independent units built over a five-year plan.
“The council (Shire of Kalamunda) has been amazingly supportive of the need for nursing homes,” he said.
Mr Leighton’s proposal, which includes a communal caravan park, recreational and sporting facilities, has come before the council four times: in 2004, 2007, 2009 and 2013.
The Shire of Kalamunda adopted an amendment in November 2010, which was subsequently rejected by the then minister for planning. The council initiated another amendment in August 2013, which was finally adopted at a special council meeting on April 20 last year.
A Shire of Kalamunda spokeswoman said the Shire “understood the amendment was currently with the Minister for Planning for determination”.