Cosenza v Festival City Broadcasters Pty Limited No. DCCIV-99-277

Cosenza v Festival City Broadcasters Pty Ltd
[2002] SADC 176
Judge Lee
Civil

On 8 March 2001, following a judgment in this Court dismissing a claim for damages for defamation, the Full Supreme Court allowed the plaintiff’s appeal, substituted a judgment in favour of the plaintiff, and remitted the action for damages to be assessed. The decision of the Full Court is reported in (2001) 79 SASR 19.
The plaintiff was and is the proprietor of a business known as Flash Gelateria in Hindley Street, Adelaide. The defendant was and is the owner and operator of a radio station known as 5AA.
The words which constituted the defamation were broadcast by 5AA at about 7:20am on 25 November 1998 in the context of a segment known as “Keefy’s Weather”. “Keefy” was a fictitious character played by Jon Blake. Blake’s real name was Odlum. A transcript of the segment, with the defamatory words underlined, reads as follows:
“Announcer  Now, it’s time for the weather in a word, by George, here’s Keefy.
Presenter – Barry Ion          Yes. Now for the official weather, the one you really wait for, good morning, Keefy.
KeefyHello there. Well, today, mostly sunny and a top of 29 degrees. Yours was longer (laugh).
IonThat’s enough.
KeefyThat’s about 84 degrees Fahrenheit for our international visitors. Now the rainfall mostly in Queensland over the last 24 hours, around 20 millimetres; that’s just under an inch for our international visitors. Now, the surface chart showing a lot of arrows going in a clockwise direction, which is why people think water goes down the plug hole the same way and they then use that as a ploy to get children to wash their hands after going to the toilet, which is why we grew up thinking water goes down the plug hole in a clockwise or is it anti-clockwise.
IonAnti-clockwise.
KeefyAnyway, toilet, for our international visitors, the can, the john, the crapper, or the convenience.
Co-presenter - Peter Plus    And the…the bathroom.
KeefyNow, yesterday, I went down to Hindley Street to conduct a survey to find out how many people have, indeed, completed their Christmas shopping:
Just wondering if you’ve done any Christmas shopping?
Unnamed Man No 1            No. I almost scored yesterday…
KeefyNo, no. I mean your Chris…, oh, it doesn’t matter. If you’ve done any Christmas shopping as yet?
Unnamed Man No 2            Mate, just over in the lane and ask for the flash man and he’ll fix you right up.
Unnamed Man No 3            Nah, mate, I don’t do Christmas shoppin’. Nice microphone. Hi, mum.
KeefyDon’t touch that, a very expensive piece of equipment, you shouldn’t…
Unnamed Man No 3            Really? Hey, I’ll have that…
KeefyWait a minute, give that back. Stop thief, stop thief. Somebody stop that man, he’s got my microphone.
KeefySo there we are. Christmas shopping not high on the priority list in Hindley Street yesterday, and if anyone tries to sell you a Neumann (ph sp) MD/42AX microphone, please contact your nearest police station.
So there it is, George, mostly sunny today, 29 degrees the expected high. And now it’s back to the desk, or for our international visitors, so long, take a hike, goodbye, screw you and the horse you rode in on.
Ion (laugh)Yes, it’s not quite self-explanatory, is it?”
Olsson J wrote the principal judgment of the Court. I quote relevant paragraphs from his reasons (at pages 29 and 30):
“There can be no doubt that the general presentation was intended to be (and manifestly constituted) a comic, nonsensical spoof, given that the weather information was supplied as being genuine and clearly intended to be accepted as such.
I entertain no doubt that the mythical ordinary listener would have accepted that presentation with that general realisation.
However, in my view, there is also not the slightest doubt that that listener, possessing the background information to be attributed to such person, would have construed the references to “scored” and “fix you up” as being referable to the illicit drug trade. Indeed, it was the specific intention of Odlum that they should do so.
Equally, it seems to me to be beyond question that the whole skit depended, for its efficacy, not only on the conveyance of such an understanding, but also an acceptance, by the listener, of the underlying assumptions contended for by Mr Kourakis QC. Thus, the real sting in the skit was that the listener was invited to accept and (unless, like the appellant’s brother-in-law, he or she knew him well) would accept that the fundamental premise of the presentation was that, in an area notorious for drug pushing, the appellant was probably a person engaged in that type of activity, from whom one could “score”. This is particularly so having regard to the reference to the lane and the very pointed use of the quite unique identifier “flash man”.
….
It was the submission of Mr Harris, of senior counsel for the respondent, that this was a classic situation of the type referred to in Berkoff v Burchill [1996] 4 All ER 1008 at 1018 and the learned trial judge rightly so concluded:
“Many a true word is spoken in jest. Many a false one too. But chaff and banter are not defamatory, and even serious imputations are not actionable if no one would take them to be meant seriously.”
True it was that the learned trial judge did express that view. However, I am driven to the opinion that, in so doing, he adopted a somewhat simplistic approach and overlooked consideration of the impact of the factual assumptions that necessarily underpinned the comical elements of the skit. He thereby fell into error. The broadcast was, indeed, defamatory of the appellant.”
Duggan J agreed with Olsson J, and added comments of his own, including the following (at page 31):
“The difficulty for the respondent in the present case is that Mr Odlum’s segment was built on a substratum of fact. The interview which included the reference to drugs was set in Hindley Street because, as Mr Odlum volunteered in evidence, “Hindley Street, whether you like it or not, has a reputation for that”. And whether or not Mr Odlum had any knowledge of the plaintiff, he referred to “the flashman”, one of the names by which the appellant is known. The interview itself was clearly a parody, but it is my view that the parody conveyed a serious imputation. It incorporated factual material. The line between the factual material and that which was fanciful may have been clear in Mr Odlum’s mind. However, considered as a whole, the segment was such that the ordinary reasonable listener would have understood it to convey the imputation that the appellant, known as “the flashman” or “Mr Flash”, was a dealer in drugs.”
Williams J agreed with Olsson J.
The business known as Flash Gelateria started in Hindley Street in 1956, and over the years became well known for the quality of its coffee and gelati. The business was purchased by the plaintiff’s brother-in-law and two brothers in about 1991. The plaintiff bought into the business in about 1992, and soon after became the sole proprietor. In 1996, he moved the business across the street to larger premises. The business became less profitable after “We started getting a lot of bad publicity in the street from different media sources etc etc”. He worked seven days and seven nights a week, and put his “heart and soul” into the business. He had two girls working during the day, and was assisted intermittently by members of his family. The business had lots of regulars, and lots of people got to know him as “Don, how are you going Flash, here comes the Flash Man”. He promoted himself as “Mr Flash”. Other shopkeepers in the street greeted him in those terms.
The plaintiff heard about the broadcast the same morning when a person rang him soon after he arrived at work. The first thing that went through his mind is that they are now telling the public he is involved in drugs, because “a hell of a lot of people” associated him with “Flash Man” and “Flash”. He said:
“I thought shit, I’m fucked. If they’re saying this on the radio, and I’m going to get some sort of reputation that I’m involved in some sort of drug dealing, I thought that’s all I need now. All the hard work that my family put in this business, then all of a sudden these idiots come up with something like that; I didn’t know what to think.”
In the days following, several people mentioned the broadcast to him. He said:
“We were slowly declining, there’s no question about that. The thing that went through my mind is that’s all I need, instead of us trying – I put a lot of hard work and hours into my business, and I thought well, the council had been trying to do a lot of things to try and improve the status of the street to get it back up to normal again, and I thought something like this, all out dreams and hopes have just gone down the drain, any hope we might reverse whatever has happened, and something like this has only become more detrimental to us, it’s going to ruin us even more. I mean there’s been something like 182 shops that have vacated in the street in the last three or four years, whatever. There’s not very many businesses left in Hindley Street because of bad media publicity over a period of time, you know.”
The plaintiff called witnesses who heard or heard of the broadcast and associated it with the plaintiff.
Milan Dimovic spoke to the plaintiff soon after the broadcast. The plaintiff was shocked and upset.
Rita Comitale was employed at the Flash Gelateria at the time. A regular customer, Alex Johnson, told her what had been broadcast. Comitale related the conversation to the plaintiff. The plaintiff was shocked at first and then got pretty angry. After that day, the plaintiff was edgy, stressed, and really worried about everything that was going on.
Alex Johnson was at a petrol station when he heard the broadcast on his car radio. As was his custom after buying petrol, he went to the Flash Gelateria for coffee. He reported what he had heard to the two girls who were working there. In the days and weeks that followed, several customers mentioned the broadcast, some at his table and some at other tables.
Francesco Verdicchio was the one witness who did not take the imputation seriously. He was the plaintiff’s brother-in-law and knew that the plaintiff was not involved in anything. He spoke to the plaintiff a couple of days later. The plaintiff was “mighty upset about it”.
Emilio Valenti was a regular customer of the Flash Gelateria. Fellow customers spoke to the plaintiff about the broadcast. The plaintiff “was most annoyed”.
It is common ground that approximately 40,000 people listened to “Keefy’s Weather” daily. Given the conclusions of the Full Court, the plaintiff’s damages fall to be assessed upon the footing that a proportion of listeners to the broadcast would have construed the words “scored” and “fix you up” to refer to the illicit drug trade, a proportion of those listeners would have understood the words “the flash man” to refer to the plaintiff, and a proportion of those listeners would have treated seriously the imputation that the plaintiff was a drug dealer.
Not surprisingly, the evidence does not show whether the proportion of listeners remaining in the last category was one half or some other proportion of the total listening audience. Nevertheless, given the notoriety of Hindley Street and the prominence of the plaintiff’s business in that street, I am satisfied that the proportion was significant.
On the day following the Full Court’s decision, State and metropolitan editions of The Advertiser published a report on the decision and a photograph of the plaintiff and Mr Blake, both under the headline “Mr Flash wins his defamation appeal”. This evidence was put before me with the consent of the parties to show that there was some vindication of the plaintiff’s reputation at that time.
There is no claim for economic loss, nor for exemplary or aggravated damages. In Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60 and 61, the High Court said:
“Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that “the amount of a verdict is the product of a mixture of inextricable considerations”. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant’s personal and (if relevant) business reputation and vindication of the appellant’s reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant’s reputation. “The gravity of the libel, the social standing of the parties and the availability of alternative remedies” are all relevant to assessing the quantum of damages necessary to vindicate the appellant.” (Footnotes omitted).
So the plaintiff’s damages must provide consolation for personal distress and hurt, reparation for the harm done to his personal and business reputation, and vindication of his reputation.
The evidence which I have summarised shows that the plaintiff’s distress and hurt were considerable. As for the impact of the defamation upon his reputation, that is largely a matter of inference from the nature, content and extent of the publication. I take into account the ephemeral nature of the publication, in that the words were spoken rather than printed. I take into account the gravity of the imputation. I take into account the context of the imputation, in that the segment did not purport to be a serious examination of the drug problem in Hindley Street. I take into account the extent of the publication. As for the matter of vindication of the plaintiff’s reputation, I proceed upon the footing that the greatest damage occurred from the publication to the Full Court judgment, a period of a little over two years and three months.
In Chakravati v Advertiser Newspapers Ltd (No 2) (1998) 72 SASR 361 at 378, Doyle CJ, speaking for the Full Court, concluded that it would be appropriate to increase the level of damages awarded in this State for defamation. Counsel on both sides invited me to consider awards in defamation cases made in the Supreme and District Courts since Chakravati, and I have done so.
I award and enter judgment for the plaintiff in the sum of $50,000. I will hear counsel with respect to interest and costs.

[2002] SADC 176

20 December 2002