Dooley vs Cleine defamation case: Mayor's claims untrue - lawyer

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Frank Dooley giving evidence in the Westport District Court.

Claims by Buller Mayor Jamie Cleine that Westport accountant Frank Dooley assaulted former deputy mayor Sharon Roche are untrue and defamatory.

This from Dooley's lawyer Robert Stewart KC in his closing submission to the six-day defamation trial in the Westport District Court yesterday.

Judge Kevin Kelly reserved his decision, saying he would try to release it by Christmas.

The case centred on an incident at a Te Tai o Poutini Plan (TTPP) public meeting in Westport in February 2022.

Stewart said Dooley had accepted his conduct at the meeting was inappropriate and had apologised. However, Cleine's statements the next day to the Westport News and in a letter to Coast council and TTPP bosses, went too far, Stewart said.

"Mr Dooley's case is that both Mr Cleine's statements and the letter defamed him. He says he did not assault Ms Roche, he was not involved in a physical altercation, and he was not physically threatening to either Ms Roche, WCRC staff (the planners) or members of the public."

Stewart said no witnesses, including Cleine and Roche, had claimed physical contact had occurred.

Cleine had told the court neither he nor The News' article had named Dooley.

However, seven people had testified they knew the unnamed person was Dooley, Stewart said. A former Buller District Council chief executive Sharon Mason had also testified that the incident and those involved were widely known.

The mayor had argued The News' article and the letter were true, or not substantially different from the truth. The letter said Dooley had physically threatened Roche, West Coast Regional Council (WCRC) planners and members of the public.

Stewart said Mr Dooley had made no physical threat to Roche or given her reasonable grounds to believe there was a threat.

He said there were stark differences in evidence from defence witnesses.

Buller District councillor Jo Howard had suggested Dooley "took a swing" at Roche probably with a closed fist. No other witnesses had supported this.

Company director Di Rossiter had demonstrated Dooley waving and shaking raised fists above his head while pointing and moving towards Roche. No other witnesses had supported this.

Her husband, company director Phil Rossiter, saw gesticulating and pointing, Dooley's fists clenched at his side and a waving motion.

Cleine and project manager Larry Eade had demonstrated a righthand fist raised above the right shoulder, while leaning forward. Eade thought Dooley's left hand was pointed and his right hand fisted above shoulder height.

Roche had demonstrated a fist raised to about shoulder height and said Dooley's pointing finger became a fist while he was swearing at her.

Stewart said someone pointing usually closed three other fingers on the same hand "which may give the appearance of a fist".

West Coast Regional Council planner Lois Easton's demonstration was more similar to Roche's than Cleine's, Stewart said. Easton had said she "didn't think he [Dooley] was going to physically do anything".

A former Buller District councillor Robyn Nahr had demonstrated a tight raised fist and stated Dooley was "going to punch" Roche.

All the defence witnesses had agreed Mr Dooley's reaction was directed solely at Roche.

Stewart said there were also differences among defence witnesses over whether Dooley or Roche had moved during the altercation.

In contrast, Dooley's five independent eye-witnesses had backed Dooley's account. They had testified that Dooley had interrupted the planners' presentation and Roche had asked him to keep his questions until the end. They had agreed Dooley stood up, did not move forward, and directed an expletive-laden outburst to Roche.

Roche told him not to talk like that, Dooley replied "piss off", and Dooley waved her away with his open hand, "no one saw a raised fist", Stewart said.

The exchange took 10-20 seconds.

"During the incident there was no physical contact between Mr Dooley and Ms Roche."

Stewart said defence witnesses had varied on whether Dooley stepped towards Roche, or simply turned to her, and on when Dooley had sat down.

"Given the clear conflicts on the evidence … the evidence does not establish … that Ms Roche was assaulted by Mr Dooley or that Mr Dooley was involved in a physical altercation," Stewart said.

Whatever gesture Dooley made, Roche - who knew Mr Dooley and his tendency to use expletives well - had no reasonable grounds to believe Dooley would apply force to her, Stewart said.

If the court found Dooley's actions met the legal definition of an assault, it did not mean Cleine's reference to a physical altercation was also substantially true, he said.

And the fact Dooley's outburst was unexpected did not mean his actions were threatening to Roche or to anyone else.

Cleine had claimed qualified privilege for his letter. He said he had a health and safety duty to inform council and TTPP bosses of Dooley's behaviour.

Stewart said that defence failed because Cleine had been mainly motivated by ill will and had shown "reckless indifference" to the truth.

The notes Cleine had typed up the morning after the TTPP meeting did not say Dooley had been physically threatening to WCRC staff or members of the public, Stewart said.

Cleine had asserted Dooley had been physically threatening to planners and staff without consulting them or other meeting attendees.

"He did not have any grounds to honestly believe the truth of those statements."

Stewart said Cleine's ill will to Dooley had been motivated by their public disagreements and Cleine's knowledge Dooley planned to stand in the next local body elections.

The ill will had been revealed in a voicemail, a subsequent phone call and text messages and a letter from Cleine to the O'Conor Home Management Committee - which Dooley chaired - criticising Dooley's behaviour at an O'Conor Home Trust meeting. Cleine (a trustee) wrote that he would not attend further meetings.

"Mr Dooley was defamed by Mr Cleine's false statements in both the [Westport News] article and in the letter. Those false statements have caused harm to Mr Dooley…," Stewart told the court.

"The defamatory sting associated with an allegation of physical assault is substantially different to (and materially worse than) a technical assault based on words and gestures."

Dooley was seeking a declaration that Cleine had defamed him, and costs, Stewart said.

"A declaration will provide Mr Dooley, who is not a violent person but has been portrayed as one, the vindication he is seeking."