Mal Hemmerling: LGA to cover legal costs for Playford Council deputy mayor Marilyn Baker
Ratepayers will pay to defend Playford Council deputy mayor Marilyn Baker against a defamation action by former CEO Mal Hemmerling — with his solicitor warning the decision could create a “lawyers’ picnic”.
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The state’s peak local government body will create a “lawyers’ picnic” by covering legal costs for a councillor accused of defaming former Playford Council chief executive Mal Hemmerling, his lawyer has warned.
Adelaide solicitor Greg Griffin said the decision by the Local Government Association to approve a request from the council to use its insurance scheme to defend Deputy Mayor Marilyn Baker could prove costly for ratepayers.
Mr Griffin said he had written to the council’s chief executive, Sam Green, at Mr Hemmerling’s request asking for Mrs Baker to pay her own legal costs over a comment she posted on Facebook about staff reports involving the redevelopment of the Elizabeth CBD.
One of the reports recommended the construction of a $8.5 million carpark which has largely remained empty since opening two years ago, earning council less than $2000 in revenue.
Elected members voted behind closed doors to seek coverage from the LGA’s mutual liability insurance scheme over the comment made by Mrs Baker about the accuracy of the reports.
Mr Griffin said the decision had set a “dangerous precedent” because other councillors would be entitled to seek coverage if they made potentially defamatory remarks on social media.
“The position taken by the LGA now arguably protects all elected members across South Australia from legal costs and damages in the event that they post comments on social media sites which are later the subject of defamation proceedings,” he said.
“The decision has created a lawyers’ picnic in terms of defamation matters going forward.”
Mr Griffin said he had written to Mr Green and LGA chief executive Matt Pinnegar arguing Mrs Baker was not covered by insurance because she had made her comment as a private individual, not an elected member.
“I put forward the position of Mal Hemmerling that the posting of the comments made by Mrs Baker on the Facebook page could not on any proper interpretation of the Local Government Act be covered by the indemnity provisions for councillors,” he said.
“It was Mr Hemmerling’s view that the ratepayers of the City of Playford should not be required to fund, through increased insurance premiums, Mrs Baker’s defence of those proceedings.
“Council instead resolved to make a claim to its insurer, the Local Government Mutual Liability Scheme.”
Mr Griffin said councillors were legally covered by the scheme from civil liability if “statutory criteria are met”.
“It was put to each of Mr Green and Mr Pinnegar that comments made on a social media that are not authorised to be made by council cannot possibly invoke the protection of section 39(1) of the Local Government Act,” he said.
Mr Griffin said people who believed they had been defamed by councillors were often deterred from taking legal action because defamation proceedings “are inevitably inordinately expensive”.
“Now that people offended by the comments on social media by councillors have the confidence going forward that their costs and damages will be met by an insurer, this will be a significant factor in deciding whether to issue proceedings or not,” he said.
“The risk that the successful party may not be able to recover legal fees or damages awarded due to the financial position of the sued councillor is often an issue.
“With that risk now seemingly removed one can expect many more defamation proceedings against councillors to follow.”
Mr Griffin said people taking defamation action over comments made by councillors on social media would now have to sue the elected members and their councils.
Councillors who had spent their own money defending themselves against defamation claims could also seek reimbursement from the LGA because of its decision, he said.
A spokeswoman said its insurance scheme “considered the circumstances of each claim on a case-by-case basis as part of its standard claims management practice”.
“This includes consideration of whether the personal immunity provided by section 39 of the Local Government Act applies in each circumstance,” she said.