The Court of Appeal has a look at Parramatta Council - and is not impressed

Calling someone a clown is an insult, a majority of the Court of Appeal says in a decision described by one judge as a “disheartening insight into the recent activities of the elected representatives of Parramatta City Council.”

Since late February fortnightly Parramatta council meetings have opened in the same manner.

Lord mayor Andrew Wilson has requested at each meeting an apology from the Liberal councillor Ben Barrak for, among other things, calling him a clown at the council’s February 20 meeting. Cr Barrak has always refused to apologise. He has then been expelled from the meeting.

Liberal councillor Ben Barrak (centre), with councillors Bill Tyrrell (left) and Steven Issa (right).

The routine has been repeated on 16 occasions.

As this dynamic has been playing out, Cr Barrak, a lawyer, has been pursuing his argument that he should not be required to apologise.

The NSW Court of Appeal had its say on Tuesday. In a decision that gave a little to each side, a majority of the court held that in calling Cr Wilson a clown, Cr Barrak committed an act of disorder and could lawfully be expelled from a council meeting.

But in their judgments, the Court of Appeal members also lamented the nature of the dispute.

After stating the case provided a disheartening insight into the council’s activities, Justice Anthony Payne noted “the intransigence of parties about matters of no demonstrated public interest will often provide a powerful reason to decline relief.”

Justice Richard White described the dispute as a “most unfortunate case.”

Although Cr Barrak argued the clown description was accurate and therefore could not be insulting, Justice White held that that did not follow: “clearly” to describe someone as a clown was to insult that person.

“Mr Barrak did use insulting words towards the lord mayor and they were not justified because he was provoked,” Justice White said.

“He was wrong in refusing to apologise. There was no question of high principle. Rather, there was a dispute between personalities that should never have led to litigation.”

Cr Barrak had some success. A majority of the court held that some of the bases on which Cr Barrak was required to apologise were not legitimate. It also ruled that the parties should bear their own costs, overturning an earlier decision that required Cr Barrak to pay council’s costs.

Mayor of Parramatta Andrew Wilson (far left, obscured) and Prime Minister Scott Morrison at the unveiling of a statue of Mahatma Ghandi at Jubilee Park in Parramatta in November 2018. Cr Barrak is in the foreground. Credit: Dominic Lorrimer

In dissent on the insult point, Justice Lucy McCallum said that in context she did not think "Mr Barrak’s words “lord mayor, you are a clown” would have been taken by an objective observer to amount to an insult calculated to bring disorder to an otherwise orderly meeting."

In a statement following the decision, Cr Barrak said he had conducted the litigation at his own cost. "I have fought for transparency as I want the residents to be aware, to the limits of the law, of precisely how their council is functioning and how their assets are being controlled," he said.

The background to the dispute was Cr Barrak’s championing of the council’s former chief executive, Mark Stapleton. Cr Barrak has also been asked to apologise for comments made to a solicitor at the earlier meeting, and for taking confidential papers.

The council next meets on Monday.