Dossis v Andreadis (No 4) - [2012] SADC 114

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DOSSIS v ANDREADIS (No 4)
[2012] SADC 114
Judgment of His Honour Judge Slattery
12 September 2012
DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT
A number of scandalous and very embarrassing documents directed at the plaintiff were forwarded to the plaintiff and to the plaintiff's family, friends, work colleagues and to work colleagues of her husband.
Held: defendant responsible for the publication of each of the first, second and third publications - each of the three publications defamatory - the plaintiff entitled to damages.
Defamation Act 2005 ss 32; 35, referred to.
Dossis v Andreadis (No 1) [2012] SADC 104; Chakravarti v Advertiser Newspapers [1998] 193 CLR 519; Morgan v Odhams Press [1971] 1 WLR 1239; Cornes v The Ten Group Pty Ltd [2011] SASC 104; Reader's Digest Pty Ltd v Lamb (1982) 150 CLR 500; Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202; Chapman & Chapman v The Australian Broadcasting Corporation [2000] SASR 181; Tubemakers of Australia v Fernandez 101 ALR 303; Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; Paschalidis v Yellow Corporation & Anor [2005] SASC 151; Radio 2UE Sydney Pty Ltd v Chesterson [2009] HCA 16; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Coyne v Citizens Finance (1991) 172 CLR 211; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58; Australian Broadcasting Corporation v Comalco Limited (1986) 12 FCR 510; Humphries v TWT Limited (1993) 120 ALR 693; Associated Newspapers Limited v Dingle [1964] AC 371; Davis v Nationwide News Pty Ltd [2008] NSWSC 946, considered.

DEFAMATION - INJUNCTIONS
Plaintiff seeks an order for a permanent injunction to restrain the defendant from publishing any further defamatory material.
Held: plaintiff entitled to injunction.

DOSSIS v ANDREADIS (No 4)
[2012] SADC 114
Factual Background

The plaintiff and the defendant were married for 10 years between 1991-2002 and there were two children of the marriage: Evdokia Constantina (Eve) born in 1992 and Costantinos Alexandros (Costas) born in 1994 (the children). The plaintiff and defendant separated in February 2001 and the marriage was dissolved on 27 October 2002.
There were a number of hearings and applications in the Family Court to resolve matters relating to the breakdown of the relationship and the care and financial support of the children. The resulting orders are not before me in evidence, and are not relevant to the decision at hand.
Following the dissolution of the marriage, the relationship between the plaintiff and the defendant has been difficult. Despite those difficulties the arrangement between the plaintiff and the defendant about financial support and the living arrangements for the children were stabilised.
Since January 2005 the children have lived in Adelaide with their mother and they have regularly travelled to Melbourne to see their father and other relatives who lived in that city. The plaintiff married Mr Con Dossis in 2005.
Commencing in January 2010 a number of scandalous and very embarrassing documents directed at the plaintiff have been forwarded to the plaintiff’s family, friends, work colleagues and to work colleagues of her husband. I am satisfied that the defendant prepared and sent them. These publications suggest that the plaintiff is a neglectful and generally terrible mother and a person of morally and sexually reprehensible character. The documents published make a number of serious allegations and also threats toward her and her current husband, Mr Con Dossis.
Injunction
On 7 September 2010 his Honour Judge Tilmouth granted an interim injunction in favour of the plaintiff restraining the defendant from publishing any materials of any type to her friends, relatives or work associates, commenting adversely or designed to hurt, harm, injure, harass or embarrass the plaintiff. Presumably his Honour was satisfied on the evidence before him that the defendant published the material complained of by the plaintiff. The court record discloses that the plaintiff did not appear at the hearing before Judge Tilmouth in respect of the injunction. The matter was listed for a further hearing before Judge Tilmouth to determine whether the interim order should be continued on an interlocutory basis. The court record discloses that the defendant did not attend the further hearing and no further order was made by the court on that second occasion.
Prior trial listing
This matter has been listed for trial once before in this court. On 19 July 2011, his Honour Judge Beazley granted default judgment in favour of the plaintiff due to non-attendance by the defendant. That judgment was later set aside on 9 February 2012 upon a hearing before Master Blumberg of an application lodged by the defendant.[1] The defendant was then given leave to file and serve a Defence to be relied upon at trial.[2] Unfortunately, since July 2012 the defendant has refused to communicate with the court or the civil registry, and has refused to participate in the court process or attend hearings.
[1] FDN 42 ‘Interlocutory Application’, filed by the defendant on 7 February 2012.
[2] FDN 44 ‘Defence’, received 9 February 2012.
Non-attendance by the defendant
I am satisfied that every attempt has been made to contact the defendant and have him heard on the trial of this action; on many occasions connected with the trial of this action I have caused my staff to telephone the defendant’s mobile number to leave messages requiring an urgent return call, and to ask the defendant to otherwise contact my chambers as soon as practicable. I have caused emails to be sent by the court staff to the defendant, originally at both his home and work email address, and later, as per his request, only to his home address. I have also caused letters to be sent both from my chambers and from the civil registry to the defendant’s last known postal address, and have had all courts calls made from the court room on each occasion that the matter has been heard before me to which no response was made.
The correspondence received from the defendant in response to the court’s communications has been sporadic. A letter dated 13 August 2012 from the defendant was sent to my chambers outlining the defendant’s desire not to participate in the court process unless and until ‘all my incidentals are paid for in advance by the plaintiff and my cross action counterclaim is accepted’.[3] That letter included references to crimes against humanity, enslavement, security of costs and trial by jury. It also included an excerpt from the Magna Carta and the Australian Constitution. That letter did not address the reasons for decision that had previously been sent to the defendant or to advise of his intentions about this trial. The defendant also refused to answer questions about arranging a suitable means for him to attend at court i.e. by telephone link.
[3] The Defendant’s letter dated 13 August 2012.
I published an ex tempore judgment on 17 August 2012 which sets out details of my reasons for refusing leave to the defendant to file and rely upon his proposed amended defence and cross action counterclaim.[4] The defendant did not attend the court on that occasion to put submissions in support of his application.
[4] Dossis v Andreadis (No 1) [2012] SADC 104.
This was followed by an email received on 19 August 2012, which attached a second copy of the original letter from the defendant of 13 August 2012, and that stated that he does not wish to “contract with your Company/Corporation”, which presumably means that he does not wish to participate in the court process. That email also made clear that the defendant did not wish to be further contacted by the courts. I have nevertheless made every attempt to have the defendant’s case raised in his defence ventilated at the trial and I have endeavoured to keep the defendant informed of the progress of the matter.
By an email from the defendant to the court dated 20 August 2012 the defendant stated that ‘It is my wish not to contract with your company/corporation’.[5] Presumably, again, this means that the defendant is unwilling to participate in the court process. The defendant also asked that he not be contacted by the courts during work hours or at his work email address. He stated that he is only available to the courts after 6pm on weekdays, and between the hours of 9am and 5pm on weekends. This was and is unacceptable. The civil court system operates during work hours. The defendant has dealt with courts before and has at some stages in these proceedings been provided with legal advice. The courts generally do not and this court will not accede to the demands of litigants in this fashion.
[5] The Defendant’s email dated 20 August 2012.
Finally, another email was received by the court from the defendant on 25 August 2012 which stated ‘I will not contract with the court nor will I contract with any orders made by the court. I do not consent to any orders being made. Any attempt to force me to contract will be considered an act of slavery under Criminal Code Act 1995, Sect 268.10 – Crime against humanity – enslavement for both the court and the barristers/solicitors’.[6] Clearly, such a claim has no valid basis in law.
[6] The Defendant’s email dated 25 August 2012.
I take the correspondence outlined above into account in my conclusion that the defendant, whilst fully informed of the progress of the matter, does not wish to cooperate with the courts in any meaningful way. I am satisfied that the court has exhausted all avenues in attempting to assist the defendant to have his case heard and to allow him the opportunity to defend the action brought by the plaintiff. Even in his absence, I have ensured that I have read and had regard to all documents filed by him or on his behalf and have considered his interests fairly.
In that regard and by interlocutory application dated 30 August 2012 (FDN 58) supported by the affidavit of Ross Kirk Richards (FDN 59) (which the plaintiff asked to be marked specially returnable for hearing before me at 9.00am on 31 August 2012) the plaintiff sought leave to amend her Statement of Claim in a form of an annexure to the affidavit of Mr Richards.
I heard the plaintiff’s application at 9.00am on 31 August 2012 and in the exercise of my discretion I refused that application and I published reasons, ex tempore, on that day.[7] I reserved the question of costs (if any) to the trial. I ordered that communication be made with the defendant at his post box and email addresses informing him of my orders and reiterating that the trial of the matter would commence on Monday 3 September 2012 at 10.00am in this court.
[7] Dossis v Andreadis (No 3) 2012 SADC 111 (31 August 2012).
I am also now satisfied that every effort has been made by the court and by the plaintiff through her solicitors and advisers to ensure that the defendant has been kept informed of the matters that have occupied the court in any interlocutory process prior to the trial date. The defendant has been made aware of the orders that the court has made, he has received copies of the reasons published by the court and he has been informed that the action would proceed to trial on and from 3 September 2012 until completion.
I am satisfied that the defendant is and has been aware of everything that has been communicated to him by the court and that he has deliberately and consciously chosen not to participate in the trial of the action.
It follows that I am also satisfied that the defendant has deliberately chosen not to participate personally or through legal representatives during the course of the action.
At the commencement of the trial of the action, I asked for an all courts call to be made for Mr Dimos Andreadis. There was no response to that call. There has been no attendance by Mr Andreadis at the court on any day that the court has heard this action namely 3, 4, 5 and 6 September 2012.
In those circumstances, I proceeded to hear evidence in relation to questions of liability and in relation to questions of the quantum of damages. I was of the view that I was in a position to proceed to an assessment of the damages (if any) that may have been proved, if liability was proved.
Primary findings: The first, second and third publications
For the reasons which follow, I am satisfied that on or about 4 December 2009, or alternatively between 4 December 2009 and on or about 4 January 2010, the defendant prepared and published a 33 page document[8] and that this document was forwarded by Registered or Express Post to the following addressees, which addressees were related to and/or associated with the plaintiff:
[8] Exhibit P19, P19A.
·Peter and Georgina Dossis;[9]
·General (Gentile) and Effi Verrasso;[10]
·Arthur and Vicki Gerostathos;[11]
·George Mantzoros;[12]
·Con and Poppy Geros;[13]
·Helen, Dionysia and Stavros Digenakis;[14]
·George, Athina and Lorraine Geros;[15] and
·Frieda Passas;[16]
(the first publication).
[9] The plaintiff’s mother and father-in-law.
[10] The plaintiff’s sister and brother-in-law.
[11] The plaintiff’s parents.
[12] The plaintiff’s family solicitor and friend.
[13] The plaintiff’s uncle and aunty.
[14] The plaintiff’s aunty and her children.
[15] The plaintiff’s uncle and his two daughters, all of whom reside in Sydney.
[16] The plaintiff’s first cousin who resides in Sydney.
A copy of the first publication is annexure “A” to this judgment but a copy of the annexure has been omitted from this judgment due to its size.
The first publication was read by each of the recipients and the words contained within the first publication bore and were understood as bearing the following meanings and/or concepts namely:
·the plaintiff was a bad mother;
·the plaintiff abused her children by failing to properly attend to their clothing, dental, parental, personal and family needs;
·the plaintiff mistreated the children by failing to attend to their clothing, dental, parental, personal and family needs;
·the plaintiff was a person of low and unacceptable moral standards.
By reason of the first publication, the plaintiff has:
·suffered mental anguish,[17] hurt and embarrassment[18];
·been injured in her character, credit and reputation; and
·been brought into public scandal, odium and contempt.
[17] T 124 [37-38], T 125 [1-13].
[18] T 113 [18-20], T 124 [12] , T 139 [24], [32-33].
On or about 13 May 2010 and within a week or so of Mothers Day in May 2010 (being the second Sunday of May 2010) the defendant posted a document addressed to Mrs Georgina Dossis (also called Mrs Georgia Dossis) of 8 Crispian Street, Fulham in the State of South Australia, which purported to be a Mothers Day card from the plaintiff to the plaintiff’s mother-in-law (Mrs Georgina Dossis). The Mothers Day card contained two pictures of the plaintiff, was written in the Greek language, and was received by the plaintiff’s mother-in-law, Mrs Georgina Dossis, into her letterbox at 8 Crispian Street, Fulham SA on or about 14 May 2010.
The Mothers Day card (the second publication) contained words which bore and were understood as bearing one or more of the following meanings and/or concepts:
·the plaintiff was incapable of properly parenting a child;
·the plaintiff was a morally bankrupt person;
·the plaintiff was responsible for causing, encouraging or endeavouring to cause one of the children namely Eve to have sexual relations with other males;
·the plaintiff had exposed her children to harm through sexual relations;
·the plaintiff had robbed the children from their father and had thereby caused them harm;
·the plaintiff had mistreated the children and/or the plaintiff had abused the children.
A copy of the second publication is annexure “B” to this judgment but a copy of the annexure has been omitted from this judgment due to its size.
By reason of the publication of the second publication the plaintiff has suffered loss and damage in that she has and continues to suffer hurt, mental harm, anxiety, anguish and embarrassment and that she has been greatly injured in her character and reputation.
On or about 6 June 2010, the defendant published an email of that date to a number of email addresses (the third publication) and the addressees of the emails were related to and/or associated with the plaintiff directly personally or through her husband Mr Con Dossis.[19] [20] [21] [22] [23] [24] [25] [26] [27]
[19] The email address of Polyaire Australia Pty Ltd which was then the workplace of the plaintiff’s husband and which was the general workplace enquiry email which was automatically received by the company General Manager, National Sales Manager and the Directors (who were Malaysian nationals).
[20] The email address of Ian Burnett, the Managing Director of Ancom Beton Pty Ltd which was then the plaintiff’s current employer and to whom the plaintiff reported in her duties as Personal Assistant to Mr Burnett.
[21] The Ancom Beton Pty Ltd work email address of the plaintiff.
[22] The email address of the Customer Services Manager of Ancom Beton Pty Ltd, Mr Nathan Burnett, with whom the plaintiff communicates by email on a daily basis as part of her employment duties.
[23] The email address of a close friend of the plaintiff, Anne Ferraro.
[24] The email address of a close friend of the plaintiff, Athena Lis.
[25] The private email address of the plaintiff’s husband, Mr Con Dossis.
[26] The email address of the plaintiff’s then family lawyer and friend, Mr George Mantzoros.
[27] The private email address of the plaintiff.
The words in the third publication bore and were understood as bearing the following meaning and/or concepts:
·the plaintiff was a whore who regularly engaged in anal intercourse;
·the plaintiff was a prostitute;
·the plaintiff was a lascivious person of unacceptable moral character;
·the plaintiff was a person who was morally bankrupt;
·the plaintiff was an evil mother;
·the plaintiff abused and mistreated her children.
In my view, the third publication also bore and would be understood as bearing the meaning and/or concepts that:
·the plaintiff permitted her husband, Con Dossis, to return the children, Eve and Costas, to their natural father so that the plaintiff and Con Dossis could travel the world;
·that she would permit Con Dossis to send the children, Eve and Costas, back to the defendant if something was to happen to the plaintiff and she could no longer look after the children;
·that the plaintiff agreed with the suggestion by Con Dossis that he, the defendant, should try to find a boyfriend for their daughter, Eve.
By reason of the third publication, the plaintiff has suffered damage because:
·the plaintiff has been greatly injured in her credit and reputation;
·the plaintiff has been brought into scandal, odium and contempt; and
·the plaintiff has suffered hurt and embarrassment.
A copy of the third publication is annexure “C” to this judgment but a copy of the annexure has been omitted from the judgment due to its size.
The first, second and third publications: the defendant’s defence
On 9 February 2012, the defendant filed a Defence.[28] The defendant sought leave to file a further Defence, but leave was refused.[29] As a result of the refusal of the Court to allow the defendant to file an Amended Defence, the Defence that the defendant filed on 9 February 2012 stands as his Defence. In that Defence, the defendant did not challenge the content of the documents, being the first, second and third publications and did not challenge the persons who received them.
[28] FDN 44
[29] Dossis v Andreadis (No 1) [2012] SADC 104.

I am satisfied that each of the persons alleged to have received the documents in the Statement of Claim, did receive the first, second or third publications accordingly.[30] I also accept the evidence of Mr Con Dossis, the husband of the plaintiff, that he received the first publication and the third publication. The second publication was only received by Mrs Georgina Dossis, the mother of Mr Con Dossis, and the plaintiff’s mother-in-law. It was received into the home letterbox of the parents of Mr Con Dossis on or about 16 May 2010. I accept that evidence of the publication of the second publication to her given by Mrs Georgina Dossis.
[30] Evidence from recipients of publications:
In the Defence[31] the defendant denies that he published or caused to be published the first, second or third publications and pleads positively that those publications were published by the plaintiff. He then provides particulars, none of which have been proved by evidence. Notwithstanding the absence of evidence of the defendant in respect of the positive pleas concerning his assertions[32] (that the plaintiff created or caused to be created and published the first, second and third publications), I reject the version of events pleaded by the defendant.
[31] FDN 44 [2.3].
[32] Paragraph 4 of the Defence.
There is no evidence that the plaintiff did ever forge or had previously forged the defendant’s signature. I also reject as irrelevant the fact that the plaintiff may have known of some of the facts that formed a small part of the contents of some of the first, second and third publications. In my view, almost all of the content of the first, second and third publications were untrue.
I also reject the assertion of the defendant in respect of the third publication that because the plaintiff had some access to the defendant’s email account, she could then take some access to material stored on a USB flash memory drive of the defendant and that somehow she could manufacture the third publication and publish it.
Finally, I also reject the assertion that the defendant was not aware of all of the identities or contact details of the persons to whom he published the third publication. In my opinion, there is an inference available on the evidence that the defendant was able to identify the contact details, including email addresses from websites or from other computer sources that were available to him. The evidence discloses that the defendant is a computer analyst. One of his email addresses was in respect of his workplace at Hewlett Packard.
I am also satisfied that the plaintiff is entitled to an award of damages. I will deal with quantum later.
Relevant applicable principles
The plaintiff does not have to prove the defamatory statements made about her to be untrue. No evidence was led from the defendant and therefore the question of whether the statements are true or not has not been canvassed in evidence. The plaintiff has specifically denied the truth of the statements made in each of the three publications. I will deal with those matters later.
That position is not affected by the fact that some portion(s) of the document that comprises the defamatory publication are true/accurate. On this case there are some small portions of writing amongst the many pages of material that are true or that accurately portray a particular factual position. It is clear that I am not required to enter into a process of reduction or subtraction merely because of that accuracy or inaccuracy. The position is as described by Kirby J as follows:
Nevertheless, thinking in terms of “subtraction”, or “reduction” may lead to errors of calculations of general damages which would inappropriately diminish the Plaintiff’s just entitlements. The decision maker should never lose site of the objective of the award of damages, once entitlement is established. It is to vindicate the reputation of the party wronged, to compensate that person for the hurt caused by the wrong proved and, at least in some cases, to resolve such matters before the public which may have its own interest to know the outcome. The damages must be such as to sustain the laws assumption that, once they are awarded, there will be no future loss. Irrelevant considerations such as the existence of other discreditable matter which might have been published of the Plaintiff, but was not, or the existence of some accurate allegations in the midst of unsustainable ones must simply be put out of mind. The Plaintiff is only entitled to recover damages for the actual wrongs proved. But for them, the Plaintiff is entitled to full recovery without subtractions and without reductions….[33]
[33] Chakravarti v Advertiser Newspapers [1998] 193 CLR 519 at [183].
It also not necessary for a plaintiff to prove to the court that the persons to whom the defamatory material was published believe it or not; there is no correlation between the tort of defamation and the “belief group” to whom the defamatory statement is published.[34] Any statement of disbelief will not affect the hurt and anxiety caused to a person who has been defamed.
[34] In Morgan v Odhams Press Lord Morris stated: “…here I must refer to a contention which was raised in argument. It was submitted that if defamatory words concerning A are published to B who refuses to believe that the words are true then A would have no cause of action. I consider that such a contention is completely fallacious. Apart from any question affecting the measure of damages A’s rights will be unaffected by the circumstances that B in fact disbelieved the words. I agree with what Justice Goddard said in Hough v London Express Newspapers Ltd: if words which impute discreditable conduct to my friend are used, he has been defamed to me, although I do not believe the imputation, and may even know it is untrue”. [1971] 1 WLR 1239 at 1252.
I accept that it is also usually impossible to ever completely comprehend what people might know and think, consciously or subconsciously about the defamatory material they have received. Evidence was led by the plaintiff in relation to the reaction of the solicitor and friend, Mr George Mantzoros, and I accept his evidence that having received the third publication he really didn’t know ‘what to think’ about the plaintiff and this affected his relationship with the plaintiff, her husband, and as between his child Harrison and the son of the plaintiff, Costas.
I also accept that it will never be possible to know the place or places to which the statement may have spread after it has initially been published. The third publication was sent by email. Courts are conscious of the ease with which electronic communications may be disseminated.
Another matter of relevance is that the plaintiff informed me in evidence, and I accept, that she is the first born generation in Australia of Greek parentage. All of the issues raised in the three publications are matters that are very important to people of Greek parentage (as well as to any other member of society). It is acutely felt by those in the plaintiff’s position.[35] Lord Reid said in Morgan v Odhams Press:
One of the witnesses thought that the article referred to the plaintiff but completely disbelieved it: he thought it was rubbish. It was argued that he must be left out of account because no tort is no committed by making a defamatory statement about X to a person who utterly disbelieves it. That is plainly wrong. It is true that X’s reputation has not diminished but the person defamed suffers annoyance or worse when he learns that a defamatory statement has been published about him.[36]
[35] T 114 [15-38].
[36] [1971] 1 WLR 1239 at 1246.
The third publication which generally summarises and then embellishes in a caustic and accusatory manner the material in the first and second publication was published to a broad range of people, especially those who were involved in the then employment of the plaintiff and the plaintiff’s husband at Polyaire Pty Ltd.[37] It is a document that would have caused the most acute embarrassment, shame and discomfort to the plaintiff and her husband. It was prepared and delivered by email circulation in such a way as to be calculated to cause maximum harm to the plaintiff, her spouse and her family.
[37] Proof of service is evidenced in: Affidavit of Nathan James Burnett sworn 15 August 2011 (Exhibit P 7); Affidavit of Adam Charles Cottam sworn 18 August 2011 (Exhibit P 10); Affidavit of Ian Douglas Burnett sworn 18 August 2011 (Exhibit P 29); Affidavit of Anne Ferraro sworn 23 August 2011 (Exhibit P 13); Affidavit of Athena Lis sworn 17 August 2011 (Exhibit P 32); and Affidavit of George Mantzoros sworn 17 August 2011 (Exhibit P 31).
The determination of a defamatory effect
As is now clear from the judgments of the Supreme Court in Cornes v The Ten Group Pty Ltd[38] the determination of the defamatory effect (or not) of the words complained of is a two stage process. The relevant questions in the two stage process are: “Are the words capable of conveying the meaning complained of?” on the one hand and “Do the words actually convey the meaning complained of?” on the other. Historically, the first question generally was a matter of law for the judge and ordinarily, it was only if it was answered in the affirmative that the second question, which was ordinarily a question of fact to be answered by the jury would arise.
[38] [2011] SASC 104 (Cornes) and [2012] SASCFC 99 (Cornes Appeal).
I have already set out above my findings about the pleadings of the plaintiff in the Third Amended Statement of Claim and the possible defamatory meanings complained of by her. I have indicated that I accept the contentions of the plaintiff that those defamatory meanings have been proved. This is because, although I am not required to assess what I think personally are the meaning of the words complained of, I am able to accept what meaning would be conveyed to the “ordinary reasonable person” to whom the matter is published.
In the decision of Justice Peek at first instance in Cornes at [22] his Honour adopted a useful summary of attributes of the ordinary reasonable person gathered from a text as follows:[39]
The meaning of the words to be determined by the sense in which fair minded ordinary reasonable persons in the general community would understand the published words.
The meaning of the words cannot be determined by evidence from the plaintiff or the defendant, but only by the interpretation reached through the ordinary reasonable person’s understanding of the words. In determining this issue, it is vital that the tribunal of fact focuses only on the publication complained of and puts out of its mind the evidence relating to other issues at the trial.
The ordinary reasonable person is taken to be a person of average intelligence who approaches the interpretation of the publication in a fair and objective manner. The person is neither perverse nor suspicious nor ‘avid for scandal’. There is a limit of reasonableness, so that the ordinary reasonable person does not interpret the publication in a strained or forced or utterly unreasonable way.
The ordinary reasonable person does not live in an ivory tower, but approaches the interpretation of the publication in the light of the person’s general knowledge and experience of world affairs.
The ordinary reasonable person does not interpret the publication in a precise manner and does not formulate reasons for the meaning which is understood, but rather forms a general impression of the meaning from the words used. As a result, the ordinary reasonable person may imply meanings quite freely and will be primed to do so when the publication is derogatory. The interpretation is not approached in the same way that a lawyer might interpret the words, which would be in a logical, precise or analytical manner, or only draw implications if they are both necessary and reasonable.
[39] Patrick George: Defamation Law in Australia (LexisNexis Butterworths, 2006) 131.
It is my task, through the medium of the ordinary reasonable viewer, to discern the meaning of the words of which complaint is made.
That task was addressed by Justice Brennan (as his Honour then was) in Reader’s Digest Pty Ltd v Lamb[40] where his Honour stated:
The issue of libel or no libel can be determined by asking whether hypothetical referees: Lord Selborne’s reasonable men (Capital and Counties Bank v Henty (1882) LR 7 App Cas 741 at p.745) or Lord Atkin’s right thinking members of society generally (Sim v Stretch (1936) 52 TLR 669 at p.671) or Lord Reid’s ordinary men not avid for scandal (Lewis v Daily Telegraph Limited (1964) AC at p.260) – would understand the published words in a defamatory sense. That simple question embraces two elements of the cause of action: the meaning of the words used (the invitation) and the defamatory character of the imputation. Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation (Byrne v Deane (1937) 1 KB 818 at p.833) being a standard common to society generally (Miller v David (1874) LR 9 CP 118; Mycroft v Sleight (1921) 90 LJKB 833; Tolley v JS Fry & Sons Limited [1931] UKHL 1.
[40] (1982) 150 CLR 500 (Gibbs CJ, Stephen and Wilson JJ concurred in the decision of Justice Brennan).
In Sands v Channel Seven Adelaide Pty Ltd[41] the Full Court of the Supreme Court of South Australia held, in relation to the distinction between the test at the capacity and fact finding stages as follows:
The issue for the trier of fact at trial is the actual meaning of the words, not the question of what those words are capable of meaning. The meaning of the words is not determined by reference to the most damaging meaning that a reasonable ordinary listener might ascribe to the words.
Detailed findings
[41] [2010] SASC 202 [99]-[106].
The first publication
On or about 4 December 2009 it is alleged that the defendant published a 33 page document which was sent via post in a pre paid ‘Express Post’ envelope to a number of recipients including:[42]
·the plaintiff’s mother and father-in-law;
·the plaintiff’s sister and brother-in-law;
·the plaintiff’s parents;
·the plaintiff’s family’s solicitor and friend;
·the plaintiff’s uncle and his wife;
·the plaintiff’s aunty and her children;
·the plaintiff’s uncle and his children;
·the plaintiff’s cousin.
[42] FDN 3B.
I am satisfied that the defendant purchased many of the ‘Express Post’ envelopes in which this document was sent on 4 December 2009 from a post office situate near to the home of his partner and the date of purchase is date stamped upon them. I am also satisfied on all of the evidence that a month passed between the purchase of the envelopes and the physical sending of the envelopes in the mail. That period of delay included the Christmas/New Year period of 2009/2010.
I have read that document and find the contents to be defamatory toward the plaintiff, according to the understanding of the ordinary reasonable reader. The document goes into great detail in describing the breakdown of the family relationship between the plaintiff and the defendant and makes a number of serious allegations against the plaintiff and her new husband and family. It suggests that the plaintiff has neglected both of her children, has a number of character flaws, has lied to the courts, and that she has deliberately tried to sever the relationship between the children and the defendant, despite court orders regulating visitation. Above all the document alleges that the plaintiff is ‘evil’ and it uses highly emotive and very offensive language to damage her reputation and allege numerous wrongdoings by her against the defendant and their children, Eve and Costas.
In my view no useful purpose is served in acting out in specific detail the content of the first publication, Exhibit P 19/P 19A. It is deliberately and substantially offensive to the plaintiff, its content is specious and its primary aim is to belittle and offend the plaintiff.
Rather than paraphrase the contents of the 33 page document[43] it would be simpler to describe those parts of the document that are true. The truthful aspects of the document are: the descriptions on page 2 of the family relationships within the Dossis and Andreadis families (3^rd para); the age and activities of the children Eve and Costas[44] and that the children, Eve and Costas, are allowed to socialise with friends, have sleepovers at friends houses, drive, be independent and work part-time;[45] the version of events given by Mr Con Dossis in relation to Eve’s school shoes/work shoes;[46] that the plaintiff wore braces when she was 20 years of age to correct an overbite;[47] that Eve and Costas were not aware that their mother and Con Dossis had left for a short 3 day delayed honeymoon in Hong Kong;[48] that the plaintiff expressed a view that Eve, her daughter, may wish to continue her (tertiary or further) studies after Year 12 in Melbourne and so also may Costas;[49] Eve visited her maternal grandparents and other relations on her visits to Melbourne;[50] that on one occasion the plaintiff gave an incorrect flight itinerary to the defendant in respect of the collection of the children at an airport in Melbourne;[51] the assignment at pages 22-23 of the document was prepared by Costas; on page 25 is an extract of the letter which the plaintiff left for the defendant on 3 February 2001 at the time that she left the former matrimonial home; the content of the 1998 and 1999 Valentines Day cards on pages 28 and 29 of the document as well as the content of the 10^th wedding anniversary card on page 30 of the document.
[43] Exhibit P19, P19A.
[44] [6] and [7].
[45] Page 1 [8].
[46] Page 21 [4], [5] and [6].
[47] Page 7 [9] and [10].
[48] Page 8 [7].
[49] Page 16 [2].
[50] Page 17 [4].
[51] Page 8 [3].
The document[52] ends with what may properly be understood to be a series of threats from the defendant to the plaintiff on page 33 thereof. For present purposes it is necessary to identify some portions from that page.
[52] Exhibit P19, P19A.
The second paragraph relevantly reads:
As much as it pains a father to make public his children’s mother’s evilness after nine years of being mocked and having his children ripped away from him, the father was left with no other choice. Hopefully this letter will shame all involved in the mistreatment of the children Eve and Costas and see an end to Mrs Athina and Mr Con Dossis’s constant bickering and marginalisation of contact between the children and their father and see Mrs Athina and Mr Con Dossis place the children’s needs above their own needs.
The third paragraph relevantly reads as follows:
If anyone wishes to take this matter further, the children’s father is waiting for the opportunity to humiliate and shame all those involved in the mistreatment of his children in the presence of their entire families.
The fourth paragraph then goes on to read:
Let it be made clear that, the children’s father will accept zero tolerance of the children Eve and Costa are used as pawns and are punished in any way so Mrs Athina and Mr Con Dossis can revenge this letter. The consequences of such actions will be disastrous as the children’s father places all on notice that the next letter and its contents will not be as diplomatic and will be dealt with face to face.
The fifth paragraph on the page then goes on to indicate that there will be other ramifications and perhaps further documentation which will be more broadly circulated. It relevantly reads as follows:
The children’s father will ensure that Mrs Athina and Mr Con Dossis are brought back into line by forwarding his disproval(sic) to Mr Peter and Mrs Georgia Dossis by mail before any face to face meeting is conducted. If the children’s father cannot knock sense into them[53] maybe others can. No more hiding behind rocks.
[53] Presumably Mr Peter & Mrs Georgina Dossis.

The letter ends with the following paragraph:
Finally, Mr Con Dossis advised the children’s father that his parents are aware of Mrs Athina Dossis’s present and past. If this is the case, this letter shouldn’t be news to them and they can continue to be proud of their new daughter-in-law.
The defendant as author and publisher of the first publication
I am satisfied that the defendant prepared, as author, and published this document.[54] Exhibit P25 is a series of emails between the plaintiff and the defendant. The last page of the series of emails discloses an information box in the top right hand corner showing the details of the sender and receiver of the document. It discloses an email exchange in or about November 2009 between the defendant and the plaintiff. It is to be recalled that the first publication[55] was sent on or about 4 or 5 January 2010.
[54] Exhibit P19, P19A.
[55] Exhibit P19.
The third last page of Exhibit 25 reads as follows:
Now you and your husband wish to go to war with me by desperately trying to minimise minutes of extra time the kids have with their father. You want to dictate when a 17 ½ year old sees her father and when a 15 year old boy sees his father. Your pathetic attempt will not stand up in court… The kids are not infants… You and your husband still wish to wave court order in front of my face. You want a war… You’ve got it… Time has come for every Dossis, that means EVERY Dossis in Adelaide, EVERY Gerostathos, Verasso, Passas, Grivas, Lagos, Lentzos and Mantzoros to learn and see the truth. The time has come for you to come out of that rock that you’re hiding under.
The second last page of the document contained photographs of the plaintiff which were only stored in the plaintiff’s and defendant’s home computer at Begonia Court, Blackburn North in Melbourne. There is an obvious correlation between the content of Exhibit P 25 that was circulated in November 2009 and the content and addresses of document P 19/P 19A received on 6 January 2010.
The document P 19 was sent in the post by Express and Registered Post envelopes purchased on 4 December 2009 (shortly after the exchanges constituted by Exhibit P 25) from Niddrie North LPO (licensed post office) which is approximately 150 metres from the defendant’s partner’s address at 22 Roberts Road, Airport West Victoria 3042.[56] The plaintiff was able to give evidence that the current partner of the defendant is Ms Maria Gauci, also known as Maria Kaloudis.
[56] See Exhibit P 12.
The plaintiff was able to positively identify the handwriting on the Express Post envelopes, being Exhibits P 21, P 22, and P 33, as being that belonging to the defendant. This is direct evidence of the plaintiff forwarding, and therefore publishing the documents.
Other ancillary and corroborative evidence exists which satisfies me that the plaintiff published the first publication. The Valentines Day card pictures contained in the second publication, the pictures of Eve’s shoes, and Costas’ school reports, are also contained within Exhibit P 28 (the third publication) at pages 6 to 10. Exhibit P 28 was prepared and sent by the defendant in June 2010. Portions of P 28 are the same as Exhibits P 19/P 19A. The reasonable inference available on the whole of the evidence is that the defendant prepared all three publications and, it must follow, the first publication.
There are similarities in email addresses between each of Exhibits P 25 and P 28. Exhibit P 12 informs the identity of the postal markings on Exhibit P 23, which is the Registered Post envelope forwarded to Mantzoros and Partners, and which is dated 8 January 2010. The plaintiff tendered an Australia Post post office and street posting locator internet search and a satellite map[57] of the physical proximity of the relevant post office and 22 Roberts Road, Airport West, Victoria, 3042. These materials indicate a post office known as Niddrie North LPO, which is situate at 53 McNamara Avenue, Airport West, Victoria, 3042. The post office franking stamp imprints includes the words “Niddrie North” “VIC 3042”. The postcode 3042 is the same postcode as for 22 Roberts Road, Airport West, Victoria. The two addresses are about 150 metres apart.
[57] Exhibit P 12.
In my view, the plaintiff is clearly identified by name and picture in the first publication. I have already identified that the publications of P 19/P 19A has been established.[58] I also accept the oral evidence of Athina and Con Dossis that they received the envelope and Exhibit P 19 in their letterbox and that they did not keep the envelope.
[58] Exhibit P 8, Affidavit of Kon Gerastathos (the plaintiff’s uncle) of the envelope and the document; Exhibit P 9, Affidavit of Frieda Passas sworn 25 August 2011, envelope and document; P 14, Affidavit of Vassiliki Gerastathos sworn 26 August 2011, envelope plus Exhibit P 19; Exhibit P 15, Affidavit of Arthur Gerastathos, sworn 26 August 2011; Exhibit P 30, Affidavit Georgina Dossis sworn 17 August 2011, envelope plus Exhibit P19 and Exhibit P 31, Affidavit of George Mantzoros sworn 17 August 2011, document and envelope.
The natural and ordinary meaning of the words contained in the first publication are defamatory of the plaintiff. It is not necessary for imputations to be pleaded, because the words, in their natural and ordinary meaning are defamatory of the plaintiff.[59]
[59] Chapman & Chapman v The Australian Broadcasting Corporation [2000] SASR 181 at 188-189 at [55]; see also Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519 at 530 per Brennan CJ and McHugh J.
The first publication, P 19, is largely directed to assertions made by the defendant that the plaintiff has engaged in abuse, neglect, and lack of proper care for the clothing, dental, parental, personal, medical, family, spiritual, emotional, mental, financial and other needs of her two children, Eve and Costas. I find that it also contains imputations of criminality on the part of the plaintiff, including on account of child abuse and child neglect.
I accept the evidence of the plaintiff that the imputations and effect of the first publication is false. It contains false assertions, gross and unfair exaggerations and untruths about the plaintiff. These especially include the assertions by the defendant that the plaintiff dumped her children and failed to try to make contact with them for eight months, in order to pursue sexual relations with another person. These assertions are false and, in my view, their falsity would have been known by the defendant.[60] I accept the plaintiff’s evidence in relation to the attempts that she made concerning obtaining access to the children, the orders in relation to their care and control and custody made in the Family Court, the attempts that she made via telephone and other means to make contact with the children whilst she was away from them for about seven days after the initial separation, which I accept commenced on the Monday following the Sunday on which the separation took place. I accept the evidence of the plaintiff that soon after she returned to Melbourne from the Mornington Peninsula, she obtained a three bedroom apartment at Box Hill, a suburb of Melbourne, for the purposes of having access and custody of the children.[61]
[60] Exhibit P 18 is a bundle of correspondence from the plaintiff’s lawyers to the defendant and the defendant’s lawyers. It includes a letter of 20 February 2001 from Taylor Splatt & Partners, Lawyers acting for Dimos Andreadis in relation to his matrimonial matters and notes: “Our client has handed to us your letter addressed to him dated 12 February 2001” at paragraph 2. This indicates that correspondence between firms of solicitors acting for the plaintiff and the defendant concerning the marital breakdown occurred soon after separation.
[61] Refer Exhibit P 18, being letters between lawyers of 16 and 17 October 2001 regarding in principle arrangements.
The second publication: authorship and publication
The plaintiff alleges, that on or about 13 May 2010, by means of post, the defendant published defamatory material about her in the form of the second publication. The form of the second publication was a putative Mothers Day card allegedly sent by the plaintiff to her mother-in-law, Mrs Georgina Dossis, at her address at Crispian Street, Fulham in South Australia. I am satisfied that the plaintiff did not send the card, Exhibit P26, to the parents of her husband, Con Dossis and, in particular, Mrs Georgina Dossis.
I am also satisfied that the document, P 26, was forwarded to Mrs Georgina Dossis by the defendant. Particular reference has been made earlier in this judgment to the second last page of Exhibit P25, which comprises colour photographs of the plaintiff, forwarded to her by the defendant as attachments to the defendant’s email of 11 November 2009. Those photographs were contained within the family computer, which was left by the defendant at the former matrimonial home at Begonia Court, Blackburn North, Victoria.
Those same photographs are contained on the face of Exhibit P 26.
Further, Exhibit P 25, on the final two pages of attachments, includes the following:
PSS: Which photo do you believe your in-laws will prefer as a Christmas gift from me to them? You want to use the children as leverage against me? So you want to go to war poutanes? Lets go then….
The expression “poutanes” is a Greek word that is used to describe a woman in the most extraordinarily demeaning way. It was used regularly by the defendant in correspondence sent to the plaintiff.
I am also satisfied that the envelope containing the Mothers Day card contained a post stamp indicating that it was posted to the plaintiff’s parents-in-law from Victoria on or about 13 May 2010. The defendant resides in Victoria.
I also find that the contents of the document and the manner in which they are expressed was in many respects similar to the contents of Exhibit P25 and Exhibit P29.
A further matter is that within the document, the plaintiff is referred to by the name “Athinoula”. In the Greek tradition, this is either a form of expression used in derogation or in familiarity. But it is a variation of the name Athina and was a form of expression used from time to time, in an affectionate sense, by the defendant towards the plaintiff.
I reject the defendant’s defence denying the posting of the Mothers Day card. I am satisfied that there is sufficient extrinsic evidence to support an inference being drawn by the court that the defendant was the author of the document and that the document identified the plaintiff as the subject of the defamatory text therein.
Exhibit P 26, on the last page, contained a translation in the handwriting of the plaintiff of the text of the card, which is written in the Greek cyrillic text. It is extraordinarily demeaning, humiliating, offensive and insulting to the plaintiff. The English translation in the handwriting of the plaintiff that in turn forms a part of P 26 is annexed to this judgment and marked “B”. It also carries a further threat in the following terms:
I will also send you a video so that you can better enjoy me.
In the matter of G v H[62] at page 355, Brennan and McHugh JJ observe:
The drawing of an inference is part of the process of fact finding and it is an exercise of the ordinary powers of human reason in light of human experience.
[62] (1994) 124 ALR 353.
Their Honours went on later to hold:
An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. Legal principles may confine the basic facts in order to exclude irrelevancies and, where proof beyond reasonable doubt is required, the legal standard of proof precludes the drawing of an inference for the purpose of determining an issue in litigation, when the basic facts are consistent with an innocent inference.
In my view, part of the ordinary process of fact finding in this matter by inference clearly and uniformly points to the defendant as the author and publisher of the second publication. In my view, it is part of a “…course of reasoning which combines common sense with application of logic to the facts”.[63]
[63] Tubemakers of Australia v Fernandez Vol 101 ALR p303 per Mason J at p310-312; Cross on Evidence p.1056; see also the judgment of Rich ACJ in Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 at 563.
I am satisfied on the whole of the evidence and as a matter of ordinary inference arising from the evidence led by the plaintiff, that the defendant prepared and published the second publication.
The third publication
The third publication is in the form of an email dated 6 June 2010. It is sent from the email address of Dimos Andreadis.[64] It is sent to the plaintiff’s email address, as well as to a series of other addresses. These addresses and the recipients are identified earlier in this judgment.[65] I will not repeat them here. It is sufficient to say that the list of addresses on the email is broad. It includes the plaintiff’s husband’s employer (and the recipients there include company directors, national sales managers, state managers), the plaintiff’s employer, Mr Ian Burnett at Ancon Beton Pty Ltd, his son, Mr Nathan Burnett at the same company, who works and resides in Melbourne, but who deals constantly with the plaintiff, the plaintiff’s work email address at Ancon Beton, the plaintiff’s friends, Anne Ferraro and Athina Lis, the plaintiff’s husband, and a mutual friend, Mr George Mantzoros at his home email address. The document may properly be called a “senseless rant”. It is full of abuse, intemperate language, swear words, criticisms of the plaintiff, the plaintiff’s family, and persons associated with her.[66]
[64] The sender’s email address is [email protected].
[65] See FN 19, 20, 21, 22, 23, 24, 25, 26 and 27 above
[66] The plaintiff tendered evidence in the form of Exhibits P 7, 10, 13, 29, 31 and 32 to prove the service of the material upon the relevant recipients: Ian Burnett, Nathan Burnett, Adam Cottom, George Mantzoros, Anne Ferraro and Athina Lis.
There is no issue of identification of the plaintiff within the document because she is identified by name as being the subject of the email.
I reject the defence of the defendant that he was not the author of the third publication. In my view, the defence of the defendant that the plaintiff somehow obtained his password to his computer in order to be able to access his email address and forward the email both to herself and then to each of the recipients, is both untenable and bizarre. I reject his assertions that he did not know all of the email addressees. The evidence satisfies me that the relevant email addresses could have been obtained from websites or through the use of other computers.
The contents of the third publication indicate that the author of the document had an acute awareness of the plaintiff, the plaintiff’s family, as well as the matters which caused grievance to the defendant. The same matters were canvassed within Exhibit P 19 and P 25, which was a forerunner of P 19.
I accept the evidence of the plaintiff that a number of the attachments to Exhibit P 28, namely the photos that were found in P 26, Valentines Day card, a letter of indemnity with Tiger Airlines, and extract of school experiences prepared by Costas, and pictures of the plaintiff, were either left in the possession of the defendant at the time of the separation of the plaintiff and the defendant in 2001 or were given to the defendant after separation.
In my opinion, and for the same reasons that I have expressed in relation to the second publication, there is a clear inference which satisfies me on the balance of probabilities that the defendant was the publisher of, and was responsible for, the publication of the third publication.
Defamatory meaning
Having satisfied myself that the plaintiff was responsible for the publication of each of the first, second and third publications, I turn to the meaning of each of those publications.
A statement will be defamatory of a person in relation to whom it is published if it tends to lower that person in the estimation of members of society generally. Allegations of dishonourable conduct or imputations of a defect in the character of the defamed person are defamatory.[67] A publication will carry a defamatory meaning where it would be understood as defamatory by a reasonable person considering the circumstances of the publication.[68]
[67] Paschalidis v Yellow Corporation & Anor [2005] SASC 151 at [39] per Gray J.
[68] Reader’s Digest Services Pty Ltd v Lam (Supra).
I accept that the relevant test is in deciding whether the publication has a defamatory meaning is whether it is likely to cause ordinary reasonable persons to think less of the plaintiff in an objective way.[69]
[69] Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 [5].
The plaintiff submits, and I accept, that the words as contained in the first publication in their natural and ordinary meaning,[70] meant and were understood to mean:
·the plaintiff was a bad mother;
·the plaintiff abused her two children by failing to properly attend to their clothing, dental, parental, personal and family needs and in relation to the latter matter, by seeking to exclude or marginalise their paternal father from their lives;
·the plaintiff (knowingly) permitted her current husband (Mr Con Dossis) to mistreat her two children;
·the plaintiff was a person of low and unacceptable moral standard.
[70] Chapman & Chapman v Australian Broadcasting Corporation [2000] SASR 181 at [60].
I also accept the submission of the plaintiff that these meanings, as conveyed by the defendant in the first publication, are likely to lower the reputation of the plaintiff in the eyes of ordinary and reasonable persons and are consequently defamatory as a matter of law. No viable defence has been raised by the defendant and none was pursued at trial.
In relation to the second publication, I also accept the plaintiff’s contentions and submissions that the natural and ordinary meaning of the words contained within the second publication were understood as meaning:
·the plaintiff was incapable of parenting her children and was a bad mother, including because, as was alleged by the defendant, she “rejected my children on Mothers Day just as I did I threw them onto the streets like dogs to fuck their uncle” and cause them to become “orphaned to their father” and to “separate a daughter and son from their own father”;
·the plaintiff is responsible for causing, encouraging or endeavouring to cause or encourage her young daughter to have sexual relations with young males;
·the plaintiff exposed her children to harm through sexual relations;
·the plaintiff had robbed the children from their father and caused them to be harmed in so doing;
·the plaintiff was a morally bankrupt person.
Each of these meanings conveyed by the second publication are likely to lower the reputation of the plaintiff in the eyes of ordinary and reasonable persons. They are defamatory of the plaintiff as a matter of law.
I also accept the submission of the plaintiff that in relation to the second publication, the imputations of immorality and criminality conveyed by the second publication are of an even more serious and deprecatory nature than those contained in the first publication.
I am satisfied that the third publication conveyed a defamatory meaning. I accept the plaintiff’s contentions that the defendant’s words, in their natural and ordinary meaning, meant and were understood to mean that:
·the plaintiff is a person who had anal sexual intercourse with a countless number of people;
·the plaintiff was a person who would act like a “dirty prostitute” to manipulate court orders;
·the plaintiff is a “stinking fucking whore”, a “poutana” and a person of unacceptable moral character;
·the plaintiff is morally bankrupt;
·the plaintiff is an evil mother who had abused and mistreated her children.

In my view, the defamatory meanings conveyed by the third publication are the most serious of all of the meanings conveyed by any of the first, second or third publications. The words are stated in the most virulent form. They are calculated to humiliate and offend.
Damages
In my view, the plaintiff is entitled to an award of damages in respect of each of the three publications.
The High Court has established that[71] there are three purposes of an award of damages in defamation: the award is to provide for consolation, reparation and vindication of a successful plaintiff. Although it is not necessary for the plaintiff to prove loss or damage before being entitled to an award of damages[72] it is my view that on the evidence, the plaintiff has proved that she has been significantly lowered in the eyes of ordinary, reasonable people.
[71] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at [60]-[61].
[72] Coyne v Citizens Finance (1991) 172 CLR 211 at 216 and 222; Defamation Act 2005 (SA) s7(2).
The High Court has established[73] that there is a clear distinction to be drawn between compensatory damages and exemplary or punitive damages. Compensatory damages include injury to reputation, injury to feelings and health and special or actual damage. In this case, although evidence was led of the effects of the conduct of the defendant upon the health of the plaintiff and consequential consumption of prescribed medicines, there was no evidence led of any special or actual damage. Compensatory damages compensates a plaintiff for damage caused by the conduct of the defendant at the time of publication, the mode and extent of publication, the failure to apologise and retract and the conduct of the litigation by the defendant. In relation to the latter, the defendant did not attend the trial and took no active part in the matter since July 2012.
[73] Uren v John Fairfax & Sons Pty Ltd.
The third head of damages, exemplary or punitive damages, cannot be awarded under the Act.[74]
[74] Defamation Act 2005 s.35.
The High Court has identified that the heads of damage overlap considerably and that an award is a “mixture of inextricable considerations”.[75] It is also accepted that generally, compensatory damages are not awarded as a separate sum.[76]
[75] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at [60]-[61].
[76] See Hunt J in Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 74-75.
There is authority for the proposition that where a plaintiff has sued on the basis of material that is published in more than one State or Territory, there may also be a question as to whether any award of damages should be broken down into separate amounts for each of the relevant jurisdictions. In my view the position is unclear.[77] It is not my intention in the assessment of damages in this matter to break the matter down into separate amounts. The plaintiff has not submitted that I should do so and I would not do so in the circumstances.
[77] See Australian Broadcasting Corporation v Comalco Limited (1986) 12 FCR 510; Humphries v TWT Limited (1993) 120 ALR 693.
Turning then to the questions of quantum, I accept the submissions of the plaintiff that in assessing the appropriate quantum, consideration should be given to:
·the nature of the injury;
·the importance of the need for vindication;
·the need for consolation for personal distress and hurt;
·the nature and extent of the damages to the plaintiff’s reputation.[78]
[78] Chakravarti v Advertiser Newspapers Limited [1998] SASC 69901 [76]-[77].
Having heard the plaintiff give her evidence, I accept that as a result of the three publications, she has suffered deep distress, upset and injury to her feelings. I have already identified the list of recipients of each of the first and third publications. They were disseminated broadly by the defendant with the plain intention, that the plaintiff should be humiliated and embarrassed in the eyes of the recipients of those documents. The documents are a direct attack upon the whole of the plaintiff’s life, morals, status and being. The publications cannot be understood in any other way.
After the plaintiff read the first publication, she became aware that it had been published to a number of other people including close relatives. She was extremely upset that people associated with her and related to her either by blood or by marriage had received this document. Some of those same people questioned the plaintiff about the truth or otherwise of the contents of the first publication.[79] The plaintiff was sickened by the fact of the publication of the first publication and she informed the court as follows:
Q.Did your emotional responses to the Mother’s Day card manifest itself in any physical symptoms?
A:With the – with the first document and the second document, I actually let the – I don’t know how to describe it. It’s like my whole body – I don’t know if – it just shakes and it’s uncontrollable for a long period of time and I don’t know whether it’s the fear or the emotion or maybe all combined. It’s just actually an uncontrollable shake, where my head shakes at the same time and it takes me a lot of time to recover. And, yeah, I had sleeplessness, I had anxiety, absent mindedness and I really felt like I couldn’t even take care of my family.[80]
[79] T 112 [18-38].
[80] T 140 [11-24].
Having received the document, the plaintiff became extremely fearful about what people would think of her. She gave the following evidence:
Q: Did that impact on your relationship with others who had read the document.
A:Yes. All I could think about for quite some time was “Oh dear, I hope they don’t believe any of this. I hope they don’t believe any of this.” With Con’s parents (her husband Con Dossis) I was actually a little bit embarrassed and we only discussed it a couple of times and then I actually really didn’t want to talk about it.
Q: Did they ask you questions about the contents of the document.
A:About the children they did and about whether I was actually doing or stopping him to try and see the children.
Q:Him being your ex husband.
A:Yes, sorry, yes, because they had sort of – they have got a grandchild too and they know what Con feels like when he doesn’t – when he had some difficulties.[81]
[81] T 124 [1-26].
The plaintiff also gave evidence that her fears were heightened because through Exhibit 25 she had received a warning from the defendant that this was what he was likely to do. I am satisfied that the content of Exhibit P 25, inter alia, includes a threat from the defendant to the plaintiff that he would try to embarrass her as much as he possibly can.
The plaintiff also gave evidence of her physical reaction to the receipt of the second publication. She gave evidence as follows:
Q.Tell his Honour what your reaction was upon reading it.
A.I knew Con’s mum would have read it because it was in Greek and the style in which it was written, I was devastated. I was devastated because of the language and how it involved two innocent people and made them look bad. He can make me look as bad as he likes to me but not to other people.
Q.In the handwritten translation that you’ve made, if you turn to that there is a reference three lines from the bottom to Athinoulla.
A.Yes.
Q.Who did you understand that to refer to when you read the document.
A.It was a signoff as if I had signed this actual document and that I had written the document to my mother-in-law. It’s like a pet name or it’s used for a young girl, because my name in Greek is Athina, and Athinoulla is like a playful name, or it could be used sarcastically.
Q.When you first read the document were you alone or was someone with you.
A.Con was with me.
Q.Did you discuss the contents of the document with Con.
A.After I calmed down. Initially I was quite distraught, I was really, really, really upset because, again, not only did it make me look bad but it involved two innocent people and saying they were just as evil as I was, dumping my children again, and I was embarrassed because of the photographs that were on there and I knew – it took me a little while to calm down and then Con and I did read the card again and again and all I could think of was what would my in-laws be thinking of me, and to drag all of this into their lives as well.[82]
[82] T 134 [10] – T 135 [3].
The plaintiff also gave evidence about her reaction to the fact that her mother-in-law had received the second publication. It was a source of particular embarrassment to her. Her evidence was as follows:
Q.     I asked you a question with respect to how your emotional response in relation to the Mother’s Day card document developed over the following weeks.
A.     Yes.
Q.     Could you give the court some indication as to that topic.
A.     This card was specifically sent to my mother-in-law and – because I felt like she was – to me it felt like she was targeted and she was being accused of being as bad as I was in this particular card and – so I was actually embarrassed. I couldn’t – I couldn’t look at her. I couldn’t look at either of them in the eye especially when I knew that they had seen those photos.
Q.     ‘Either of them’ being.
A.     My mother-in-law and my father-in-law.
Q.     Did you have subsequent discussions about the Mother’s Day card with your mother-in-law and father-in-law.
A.     We did, we did. A few days later. We did speak about it.
Q.     Did you speak to them in person or by telephone.
A.     In person, which was very uncomfortable. I felt extremely embarrassed, I think obviously emotional.
HIS HONOUR
...
Q.     Tell me as you felt it and as you feel it now.
A.     I did feel completely humiliated. These people – like I mentioned before with the Greek way of growing up and how each family should behave, this document doesn’t just try and portray me in a bad way but also my mother-in-law because it says that she assisted in mistreatment of the children. So, all I kept saying to them was ‘I’m really really sorry, I’m really really sorry’ which they were night enough to say ‘It’s okay’. But I’m even embarrassed to this day to talk about it if it ever comes up in conversation.
XN
Q.     Does it still come up in conversation from time to time between yourself and your mother-in-law.
A.     Because of these matters, these proceedings, it has come up from time to time.
Q.     Did the receipt of the Mother’s Day card have any impact upon your relationship with your husband.
A.     Even with Con, I felt – again, I keep feeling guilty and I was embarrassed for Con, on behalf of me, because of this card. I started becoming very quiet. Con would try and talk to me about it and I really didn’t want to. I didn’t want to keep remembering because even with – Con hadn’t seen these photos before apart from the emails but to see them so graphically, I was actually even embarrassed in front of Con.[83]
[83] T 138 [15]-[37], T 139 [5]-[30].
The plaintiff was called home by her husband Con Dossis to read the second publication. By the time she reached home, her husband had already read the document as he had collected it from his parents’ home. The plaintiff gave evidence of her husband’s reaction and her reaction to the receipt of the document as follows:
Q.     On your observations what was his response to the document.
A.     He was extremely upset. He was also trying to comfort me, even though he was upset, but I actually felt so disgusted that I didn’t want him to comfort me. I was also embarrassed that all these people got this email.
Q.     This was on a Sunday, was it, that you first saw it.
A.     Yes.
Q.     What, if any, steps did you take after you read the document in relation to the other persons to whom it appeared to be addressed.
A.     In regards to my boss, I can’t clearly remember whether he contacted me after logging on to his computer or whether – I think he did get on, if I remember correctly, and he informed me that he let me know that he had received it.
Q.     So you said your boss. Is that Ian Burnett.
A.     Ian Burnett, and he briefly told me that he had read some of the contents and that he had received a call from his son, Nathan Burnett, saying that he had also received it in his emails and that he had also read some of the contents.
Q.     How did that make you feel at the time.
A.     I was so embarrassed and again it was the most humiliating thing. I didn’t even want to go to work. And then in regards to the email to George, I can’t really recall – I think George may have called Con. I didn’t initially speak to George about this email, I think.
Q.     But you subsequently became aware that George, being George Mantzoros, received a copy of this document.
A.     Yes.
Q.     And what was your response to that or reaction to that.
A.     It was the same as everybody else’s. I was so – I was just – it was embarrassing, it was humiliating, it was degrading, it was disgusting.[84]
[84] T 147 [10]–T 148 [7].
The receipt of the material in the third publication also affected the plaintiff’s work performance and her relationship with Mr Ian Burnett, her immediate superior at Ancon Beton Pty Ltd. Her evidence was as follows:
A.     For quite some time it was very uncomfortable, very uncomfortable, thinking what could be going through his mind after reading all of this.
Q.     I think you identified the first address, the Polyaire address, as being an address of an entity at which your husband was employed at the time.
A.     That’s right.
Q.     Had you met on social occasions fellow employees of your husband prior to seeing this email.
A.     Yes, we have been to a few Polyaire functions.
Q.     How did the email make you feel about those persons whom you had encountered socially that worked with your husband.
A. I really didn’t want to see anybody because it was mainly management that we went out with, and afterwards Con told me that that particular email address was one that management did have access to and did receive, so it made it very difficult on the next occasion when we did go out with them.[85]
[85] T 149 [1]–[19].
Other people made the same observation of the plaintiff. Ms Lis, a family friend of the plaintiff, gave evidence of her observations of the plaintiff’s physical reaction to the third publication as follows:
A.Because the email was just awful. I mean, I think as a – it’s what you do not only as a friend but as a decent human being. It didn’t matter who it was, if I received an email like that about anybody I would let them know.
Q.You telephoned her and you had a discussion with her about the email.
A.Yes.
Q.And did you talk about the contents of the email with her.
A.I briefly told her what was in there. I did not really want to go into too much detail because I thought that was like – for somebody to even know what somebody has written about them is awful. She logged on to her computer at the same time that I was on the phone.
Q.Is that what she said to you.
A.Yeah, she was saying to me that she was going to log on because she said to me ‘Who else did it go to?”, and I said there’s all these email addresses that I didn’t know. So she got her laptop and signed on in order to see if she had received a copy of that email, plus I did obviously forward her a copy of that email so she has it to read.
Q.During the course of that telephone discussion, did the plaintiff’s demeanour appear to change to you whilst she was logging on and discussing the email.
A.Of course. I mean, after so many years of being divorced and to have something like this happen, she was very upset. She was tearful. She didn’t know what to say. The minute she read the email and saw who it went to, because it went to Con’s work –
Q.Just tell me about what you observed as to her demeanour, please.
A.Yeah, just that she was very, very upset, distraught and very tearful. Not crying full on but you could hear the tears – you know, that crying in her voice.
Q.I think you said you didn’t stay on the phone terribly long. Did you, after that first telephone discussion, have subsequent discussions with the plaintiff about this document.
A.I went to work that day, that night though I went to see her because I was concerned about her wellbeing and how she was and I –
Q.How did she appear when you went to see her that day.
A.Somebody who’s very frail and fragile, you know, like emotionally distraught and drained, that’s how she appeared, very pale and just no, you know, emotion at all, just completely drained.[86]
[86] T 182 [5]–T 183 [14].
The plaintiff gave further evidence of the dramatic effect upon her life of the threats held out to her in the correspondence P 19, P 25 and P 28 as follows:
Q.Now, your earlier evidence with respect to your reaction on reading the document was about what was said about you and how others would read. It.
A.Yes.
Q.Can I ask whether those paragraphs that I’ve asked you to read invoked any different emotional reaction from you in addition.
A.It’s made me really really scared about how far my ex-husband will go.
Q.Can you expand on that, please. What do you mean by that.
A.The way it’s written, it’s like he will make it his mission forever to make my life a misery.
Q.The first paragraph I asked you to read there’s the word ‘Poutana’.
A.Yes.
Q.Is that a Greek word.
A.Yes, it is.
Q.What does that mean.
A.Words to the effect of a slut.
Q.Two paragraphs down ‘Because of your constant, deliberate, calculated and malice actions to sever your son’s relationship with his father’ appears the following phrase ‘I will make it my life long mission to make sure you end up where your father placed your mother’. When you read this document what did you understand that to mean.
A.That he would continue to torment me to drive me crazy.
Q.And why did you understand that from that phrase.
A.Because my mum was diagnosed with schizophrenia about 20 – actually nearly – just under 30 years ago and she’s actually on medication.
Q.Does she live with your father.
A.Yes, they do, they live together.
Q.The penultimate paragraph on p.6 ‘If I sound angry, you haven’t seen anything yet. You’re fucken finished’. What emotional reaction did that inspire in you when you read that sentence.
A.I was terrified.
Q.What did you think might happen, what were you terrified about.
A.That he would go to any extremes just to destroy me.
Q.Destroy you how.
A.Mentally, emotionally, make people hate me.
Q.By doing what.
A.By continuing sending out publications.
Q. I will jump ahead a little bit and come back. After receiving this email, you initiated these proceedings that are currently before the court.
A.Yes.
Q.And you sought an order to stop the defendant from publishing anything further.
A.Yes, that’s right.
Q.And you were given that order on an interim basis.
A.That’s right.
Q.Since the time that the order was made, have you received any further publications–
A.No, I haven’t.
Q.-concerning yourself from the defendant.
A. No, I haven’t.
Q.To your knowledge has anyone else received any further publications concerning yourself from the defendant.
A.Not to my knowledge.
Q.Do you have any concerns as to what may occur in the event that there is no order in place by a court prohibiting the defendant from further publications adverse to yourself.
A.He will continue to do it.
Q.Why is that.
A.I believe he will continue and the threats in here just are self-evident. He won’t stop, and that’s why I had to do this.[87]
[87] T 186 [17]-T 188 [12].

I accept without reservation the whole of the plaintiff’s evidence on those topics as well as the evidence called on her behalf through Ms Lis. I found Ms Lis and all of the witnesses called by the plaintiff to be witnesses of credit and that their evidence was unimpeachable.
I accept the evidence of the plaintiff that in relation to each publication, she was mentally and physically affected. I accept the evidence of the plaintiff and her husband Mr Con Dossis that the reaction of the plaintiff was so severe that she suffered physical shakes, mental blackouts, fits of crying, loss of appetite, a reversion to her addiction of smoking cigarettes and a loss of any sense of self worth, self confidence or any real place in society. I accept that the plaintiff and her husband have become reclusive, rarely socialising and that the relationship between the plaintiff and her husband has been significantly affected by the publications. The plaintiff still has not recovered from the publications and the plaintiff remains adversely affected by the threats contained within Exhibit P 25 and Exhibit P 28 as well as the publications. I am also satisfied that the plaintiff holds a genuine fear that unless restrained, the defendant will continue to attempt to humiliate and embarrass her. In my view, on all of the evidence, that fear is well founded.
Quantum of damages
In assessing the appropriate amount of damages the Court is to ensure an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.[88] The only relief sought by the plaintiff is for non-economic loss, and is therefore capped at a maximum amount of $339,000[89] in accordance with s 33(1) of the Defamation Act, subject to the operation of s 33(2) of the Act.
[88] Defamation Act 2005 (SA) s 32.
[89] SA Govt Gazette 15 June 2012.
Whilst I find that the experience of the three publications was hurtful and emotionally disturbing for the plaintiff, and whilst her reputation has suffered damage, I do not find the facts of the matter sufficient to justify an award of aggravated damages.[90]
[90] Ibid s 33(1) and (2).
The malice shown by the defendant at the time of publishing is relevant to the quantum of damages to be awarded.[91] The intent with which the documents were published is relevant only in so far as it affects the central consideration of the amount of harm suffered by the plaintiff. I have taken these matters into account in making my assessment of the plaintiff’s claim for damages. The Act prohibits the awarding of exemplary or punitive damages.[92]
[91] Ibid s 34.
[92] Ibid s 35.
The defendant has called no admissible evidence in mitigation of damages.
In Associated Newspapers Limited v Dingle[93] Lord Radcliffe said:
A libel action is fundamentally an action to vindicate a man’s reputation on some point as to which he has been falsely defamed, and the damages awarded have to be regarded as the demonstrative mark of that vindication.
[93] [1964] AC 371 at 396.
In Broome v Cassell & Co Limited Lord Hailsham held:[94]
Not merely can the [plaintiff] recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to appoint to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge.
[94] [1972] AC 1027 at 1071.
I am mindful of the evidence led by the plaintiff, particularly from Mr Mantzoros, the plaintiff’s mother-in-law Mrs Georgina Dossis and from the plaintiff herself in relation to the reaction of her close relations and family friends (eg. Mr Varrasso) of the doubts that have been expressed concerning the plaintiff’s position as a result of the receipt by others of the defamatory material. In my opinion, those doubts in relation to the position of the plaintiff must be removed.
In Cornes, Justice Peek in the specific context of that case expressed the matter thus:[95]
I accept this as a genuine cry for vindication. She is entitled to be vindicated. She is entitled to be awarded a monetary sum such that, if persons enquire as to what happened about the defamatory comment that they have heard about in whatever way, the result of this case will admit of no doubt that she was the winner, the publisher was the loser and that the court clearly recognised that she had been wrongly defamed.
[95] [124].
In this case, these comments are apposite.
I am satisfied that the three publications have had a deleterious and dramatic impact upon the plaintiff. In making an assessment of damages in relation to the impact upon the plaintiff, I have regard to the comments by Justice Brennan (as his Honour then was) in Carson v John Fairfax & Sons Limited[96] as follows:
The consequences of publication include not only the insult publicly inflicted on any plaintiff but also the effect of the defamation on those to whom it is published, any diminution in the regard in which the plaintiff is held by others, any isolation produced (causing the plaintiff to be shunned or avoided is the traditional formula) and any conduct adverse to the plaintiff engaged in by others because of the publication of the defamatory matter. Damages are awarded also for the plaintiff’s injured feelings, including the hurt, anxiety, loss of self esteem, the sense of indignity and the sense of outrage felt by the plaintiff. Indeed, all those objective consequences in those subjective reactions which flow naturally from the publication of the defamatory matter are relevant factors. Of course, the subjective reactions are often produced by the objective consequences of the publication. The two categories are not cumulative heads of damage but descriptions of kinds of intangible factors which must be taken into account in assessing damages.[97]
[96] (1993) 178 CLR 44.
[97] Ibid.
I have already canvassed the initial reaction of the plaintiff. That reaction is confirmed by the evidence of the plaintiff, her husband, her mother and father, her mother-in-law, her friends and her work colleagues. Some of the recipients of the information were led to wonder about the morals, standing, ability and reputation of the plaintiff. I accept that evidence; it was given genuinely, and would, in my opinion, naturally follow from a receipt of the material published by the defendant.
No apology has ever been proffered by the defendant in relation to the conduct.
I award the plaintiff the following damages:
·first publication:       $15,000;
·second publication:   $5,000;
·third publication:      $30,000.
The plaintiff’s application for a permanent injunction
In paragraph [6] of this judgment, I have made reference to the order with injunction made by Judge Tilmouth on 7 September 2010. The terms of that order were as follows:
1An interim injunction granted restraining the defendant from further publication of materials of any type to her friends, relatives or work associates, commenting adversely and/or in the alternative, designed to further hurt, harm, injure, harass or embarrass the plaintiff.
2I give liberty for the plaintiff to substitute the original statement of claim in this matter by substituting the amended statement of claim annexed to the affidavit of Abby Hamden, of 2 September 2010, being the annexure AH1.
3(Irrelevant)
4The matter adjourned to Thursday 23 September 2010 at 2.15pm for further hearing of the application.
5Liberty to apply on short notice to both parties.
6Question of costs reserved.
There was no appearance for the defendant at the application for the interim injunction.
At the hearing of the application for the interim injunction to become an interlocutory injunction, there was no appearance for the defendant and the matter was referred back into the Masters List. There was no variation to the terms of Judge Tilmouth’s orders.
The orders of Judge Tilmouth remain extant until this day. It was, until now, a matter for the defendant to seek any variation of those orders. No variation has been sought. However, although it is not clear from the court record, the usual position is that the interim injunction should operate as an interlocutory injunction until the final hearing or final determination of the matter. The usual position invariably is that:
…in the absence of a subsequent order to the contrary, it should continue up to but not beyond the final hearing of the proceeding…[98]
[98] Spry, Equitable Remedies 5th Ed, p 446, p 508.
The injunctive order of this court in place that directly affects the defendant and his behaviour towards the plaintiff in my view actually or implicitly ends on the date of this judgment. In my opinion there is utility in making a further order despite the fact that the defendant has complied with the requirements of the interim order. I set out my reasons for that view hereunder.
It is generally the case that a court would not lightly make orders in the form of a permanent injunction restraining a person from communicating with others. There are three fundamental reasons. A court will generally not make an order with injunction that requires constant or reasonably constant supervision of the defendant about compliance with such an order. The second is that a prohibition against communication is too easily (inadvertently or otherwise) breached. This is especially the case when close family members are involved and communication can occur in a “defacto” way. The third is that the right of free expression and communication among the members of our society is a fundamental right of citizens; any restriction upon it is anathema to the basic freedoms of a citizen of this country.
Thus, any exemption must be firmly and clearly based in principle and justified by the particular facts of the matter.
The plaintiff has brought these proceedings and has succeeded in obtaining an award of damages. In my view, that remedy is not sufficient to completely protect the interests of the plaintiff.
The plaintiff holds a genuine fear in relation to the activities of the defendant that unless restrained, the defendant will continue to publish defamatory material.
The evidence is that since the granting of the order of Judge Tilmouth, there has been no publication or republication of any of the defamatory material of the type of which the plaintiff complains in these proceedings. However the plaintiff has satisfied me that she holds a real and genuine concern that if the restraint upon the defendant does not continue, then there will be a recommencement of the activity complained of.
In the ordinary course a fear of repetition, without more, would not necessarily be sufficient grounds on which a court would base its decision to grant a permanent injunction. A court may well presume that after the effluxion of sufficient time, the prospect (as opposed to the fear) of repetition is only small and is not a sufficient basis for making further injunctive orders.
In this case, the defendant issued a warning in 2009 (P 25) of his intentions. He then carried out those intentions in the most hateful and humiliating way possible. Though premeditated to an extent the publications were also thereafter largely spontaneous.[99] I have described them as a “rant”. They are not lucid and appear to be the product of concentrated animus that, in turn, produces an uncontrolled angry reaction on the part of the defendant to some perceived slight or wrongdoing done to him.
[99] The first and third publications were published very late at night or in the early hours of the morning.
The defendant deliberately published them directly to a broad audience with the apparent intention of causing maximum damage to the plaintiff. The defendant had to conduct a number of enquiries in order to obtain all of the email addresses to which to send the third publication.
The defendant’s behaviour has satisfied me of a real risk that the defendant would again react spontaneously, if the right combination of circumstances were present. This elevates the possibility of a repetition of conduct by the defendant above that of a fear to that of a sufficient basis for making further injunctive orders.
Finally, I take into account the behaviour of the defendant towards this court which I have set out in detail earlier in these reasons. He has refused to be involved in the trial of the action, or in the process of the preparation of the action for trial and he has indicated that he does not recognise the jurisdiction of the court. The court therefore can have little, if any, confidence that, in the absence of the threat of an injunction and the sanction of contempt, the defendant will desist as any ordinary citizen would be expected to.
In those very particular factual circumstances and in the exercise of my discretion, I would have been prepared to make an injunction in a final form in the following terms:
Other than with the express prior written consent of the plaintiff, or failing such consent, then with the consent of the court, the defendant, whether by himself or by any person or agent appointed or authorised by him, is hereby permanently restrained from directly or indirectly publishing by any means whatsoever to any person or entity other than directly to the plaintiff herself any matter containing statements, assertions, pictures and/or other material adverse to or critical of the plaintiff and relating to:
·the plaintiff’s past, present or future care of her children Evdokia Constantina Andreadis and Constantinos Alexandros Andreadis (the children); or
·the plaintiff’s past, present or future relationship with the children; or
·the plaintiff’s past, present or future relationships with:
·       any natural or legal relatives of the plaintiff; or
·       Con Dossis; or
·       any natural or legal relatives of Con Dossis.
Interest
The plaintiff makes a claim for interest and, in submissions, an amount of 4% per annum was claimed. In my view, the plaintiff is entitled to an award of interest. Reference was made to the decision of McClellan CJ at Common Law in Davis v Nationwide News Pty Ltd[100] where his Honour compared the relevant approaches of the courts to the appropriate rate of interest for cases of non-economic loss. His Honour stated that the usual rate of interest was 4% per annum. It is the case generally that the amount of 4% per annum is seen as the maximum amount for the rate of interest for cases for non-economic loss and that the rate will vary according to the conduct of the defendant following publication and complaint by a plaintiff. [101]
[100] [2008] NSWSC 946.
[101] Ibid.
His Honour, McClellan J, also discussed the decision of McHugh JA in Amalgamated Television Services Pty Ltd v Marsden[102] where his Honour favoured an approach of allowing a rate of interest based on bank interest rates on the basis that loss is suffered from the date of publication and that as a result, a successful plaintiff has been deprived of their money which is the substitute for the hurt suffered. His Honour did not follow the approach of Justice McHugh in Marsden.
[102] [2002] NSWCA 419 at [1551].
I would adopt a rate of 3% and I allow the amount of $2,500 for interest.
I will hear the parties as to the terms of the final orders of the court and as to costs.

Affidavit of Kon Gerostathos sworn 26 August 2011 (Exhibit P 8) - first publication;
Affidavit of Frieda Passas sworn 25 August 2011 (Exhibit P 9) - first publication;
Affidavit of George Mantzoros sworn 17 August 2011 (Exhibit P31) - first and third publications;
Affidavit of Arthur Gerostathos sworn 26 August 2011 (Exhibit P 15) - first publication;
Affidavit of Vassiliki Gerostathos sworn 26 August 2011 (Exhibit P 13) - first publication;
Affidavit of Georgina Dossis sworn 17 August 2011 (Exhibit P 30) - first publication;
Affidavit of Adam Charles Cottam sworn 18 August 2011 (Exhibit P 10) - third publication;
Affidavit of Anne Ferraro sworn 23 August 2011 (Exhibit P 13) - third publication;
Affidavit of Ian Douglas Burnett sworn 18 August 2011 (Exhibit P 29) - third publication;
Affidavit of Athena Lis sworn 17 August 2011 (Exhibit P 32) - third publication;
Affidavit of Nathan James Burnett sworn 15 August 2011 (Exhibit P 7) - third publication.