Jarrad v Santamaria - [2007] SADC 26

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
JARRAD v SANTAMARIA
[2007] SADC 26
Judgment of His Honour Judge Nicholson
15 March 2007
DEFAMATION
Plaintiff sued on basis of graffiti alleging that he was a child molester - conceded by defendant that the graffiti was defamatory of the plaintiff - plaintiff unable to prove that the defendant was author - claim dismissed.
Defendant counterclaimed on basis of, inter alia, oral statements by the plaintiff to the effect that the defendant sold illegal drugs from his Pizza Bar - counterclaim allowed in part.

EVIDENCE
Comparison of handwriting.
Evidence Act 1929 s30, s45C; Cross on Evidence 6th Aust ed at [39105]; R v Mazzone (1985) 43 SASR 330; Adami v R (1959) 108 CLR 605, referred to.
Grayden v R (1989) WAR 208, considered.

JARRAD v SANTAMARIA
[2007] SADC 26
Introduction

During the period from December 2002 until June 2005 the plaintiff (Andre Jarrad) lived with his then partner Catherine Hall (now Winters) at 8 Cook Street Tanunda. Their immediate neighbour, at 6 Cook Street, was the defendant and cross-claimant (Antonio Santamaria) and his family. During this period significant animosity developed between the plaintiff and the defendant culminating in these proceedings in which each has sued the other for defamation.
It is unnecessary to recount in detail all of the difficulties each had with the other. However, in order to see the parties’ dispute in these proceedings in its proper context some aspects of their relationship need to be summarised.
Mr Jarrad repeatedly complained about the frequency and level of noise coming from Mr Santamaria’s property when his son, Jack, was playing his drum kit. Mr Jarrad also asserted that the drums were played too late at night. Mr Santamaria denied that the level of noise, its frequency or time of occurrence was inappropriate. They shared a common driveway; Mr Santamaria complained that Mr Jarrad’s use of the driveway at times was unreasonable and impinged unfairly on his use and enjoyment of the driveway. Mr Santamaria complained about Mr Jarrad parking motor vehicles on the street in a way that impeded Mr Santamaria’s access to the driveway. Mr Santamaria complained about excessive noise coming from Mr Jarrad’s spa bath pump. Mr Jarrad asserted that Mr Santamaria deliberately directed storm water onto his property. He complained about a rooster that, for a brief period of time, was kept by the Santamarias. Mr Santamaria complained to the authorities that Mr Jarrad was using his property to conduct a paint-stripping and furniture restoration business. This complaint was investigated by the Barossa Council but no evidence in support of the complaint was identified.[1] There were allegations of physical and verbal abuse; it appears that Mr Jarrad was twice charged with breaching a restraining order obtained, ex parte, by Mr Santamaria and/or assaulting Mr Santamaria, but these charges were either withdrawn or dismissed. Mr Santamaria gave evidence that on one occasion he saw Mr Jarrad leaning over the fence with a camera and filming one of his sons on a trampoline. Mr Jarrad denied filming the son. The list of complaints goes on. From time to time the police became involved.
[1] Exhibit P7.
I have provided only a brief summary of the quite detailed interactions between the plaintiff and the defendant over a longish period of time simply to demonstrate that they became bitter enemies. A substantial amount of evidence was given by both in a fairly imprecise and disordered way as to the nature of their “relationship”. It was relevant to the pleaded issues as going to background, the existence of a motive to do harm to each other and the existence of malice towards each other. Counsel for both the plaintiff and the defendant agreed that it was unnecessary for me to make specific findings as to where fault might lie with respect to this litany of complaints each made about the other.[2]
[2] Transcript at T241.
During 2003 and 2004 a number of items of graffiti, defamatory of the plaintiff, appeared in various locations around the township of Tanunda.[3] Slightly different formulations of words (and misspellings) were used but each item recorded the words (or words to the effect of) “Andre Jarrad is a child molester.” The plaintiff asserts that the defendant is the author of this graffiti and has sued him for defamation. The plaintiff also alleges that during a telephone conversation with the plaintiff’s employer the defendant slandered him by accusing him of stealing from the employer.
[3] The Defamation Act 2005 which commenced on 1 January 2006 does not apply save, possibly, to the extent that some items of graffiti remained in existence (continued to be published) after that date. However, given my ultimate findings I do not need to give any consideration to this possibility.
During the same period two items of graffiti referring to the defendant cross-claimant also appeared. One asserted “The owner of Mia Pizza is a drug dealer”[4] and the other asserted “Antonio Santamaria is a poof”. The defendant alleges in his counterclaim that the plaintiff is the author of the latter item only and that it is defamatory of him. Its characterisation as defamatory or not defamatory is briefly discussed later in these reasons. The defendant also alleges that the plaintiff slandered him to a number of persons by making oral statements to the effect that the defendant sold illegal drugs from his pizza bar.
[4] The defendant is the proprietor of the Mia Pizza Bar located in the main street (Murray Street) of Tanunda.
The plaintiff’s claim – issues at trial
The graffiti of which the plaintiff complains was conceded by counsel for the defendant to be defamatory; the concession was properly made. No defence of justification was pleaded and therefore, and as the trial was conducted, the falsity of these allegations was and is assumed. As such, the following issues arise for determination:
(i)whether or not the defendant was the author of any of the graffiti directed at the plaintiff;
(ii)whether or not the defendant made the oral statements to the plaintiff’s employer about stealing as alleged against him;
(iii)if yes to either (i) or (ii), whether or not, as the plaintiff alleges, the defendant, in defaming him, was actuated by malice;
(iv)in the event that the plaintiff were to succeed on liability, an assessment of his damages.
The defendant’s cross-claim – issues at trial[5]
[5] A pleaded allegation that the plaintiff had slandered the defendant in a conversation allegedly had with a Michael Ayris was abandoned by counsel for the defendant at the commencement of the trial.
The following issues arise for determination:
(i)whether or not a conversation between the plaintiff and Roxanne Smith occurred in the terms alleged;
(ii) if so, whether or not it was defamatory of the defendant;
(iii)whether or not a conversation between the plaintiff and David Goddard occurred in the terms alleged;
(iv)if so, whether or not it was defamatory of the defendant;
(v)whether or not a conversation between the plaintiff and Phillip Consalvo occurred in the terms alleged;
(vi)if so, whether or not it was defamatory of the defendant;
(vii)whether or not the plaintiff was the author of the graffiti “Antonio Santamaria is a poof”;
(viii)if so, whether or not, in all the circumstances, it was defamatory of the defendant;
(ix)whether or not if, as the defendant alleges, the plaintiff defamed him, he was actuated by malice;
(x)in the event that the defendant were to succeed on liability, an assessment of his damages.
The plaintiff’s claim
The plaintiff, in paragraph 7 of his Statement of Claim, alleges that on or about 26 August 2003 the defendant, in a telephone conversation with a representative of the plaintiff’s employer, said words to the effect that the plaintiff had been stealing from his employer during night shift. I assume for present purposes that in the absence of a plea of and evidence supporting justification, words to this effect are defamatory in that they ordinarily would be understood to mean, at the least, that the plaintiff is a dishonest person. I also assume that at common law they are actionable per se, that is, without proof of special damage, notwithstanding that it is slander,[6] because they impute the commission of a crime[7] and, possibly, an unfitness in the plaintiff for his trade or profession.[8]
[6] The common law distinction between slander and libel has been abolished by s7 of the Defamation Act.
[7] See, Fleming “The Law of Torts” 9^th ed at 605.
[8] See the discussion in Fleming "The Law of Torts" 9th ed at 606 and cf; Taylor v Hamilton [1927] SASR 314.
However, the only evidence led on behalf of the plaintiff in support of this aspect of his claim was an assertion of a hearsay nature by the plaintiff himself (not objected to) that he had been told by representatives of his employer of such a phone conversation. He was not told who made the allegation; in fact he was told that the phone call had been made anonymously. Even if a finding were to be made that such a conversation took place (the available evidence does not permit such a finding) there is nothing in the evidence to identify the defendant as the anonymous caller. I would not be prepared to infer this simply from the fact of the undoubted animosity that existed between the parties. This aspect of the plaintiff’s claim must fail.
The graffiti scattered about Tanunda which referred to the plaintiff gives rise to more troublesome issues.
Evidence as to the location of this graffiti and the number of times it appeared or re-appeared was given on behalf of the plaintiff by the plaintiff himself, Mr Paul Mack and Mr Craig Rogasch. The evidence of these three witnesses on this topic was unchallenged. I make the following findings and observations based on that evidence and the photographic record in exhibits P3, P8[9] and D9.
[9] The photograph at P8, whilst probably taken at a different time, is a photograph of the same graffiti as is depicted in P3 at photograph 8.
The Rotary clothing bin
Graffiti stating “ANDRe JARRAD iS A ChiLd MoLester” (sic) appeared on a Rotary clothes bin adjacent to the “Hub” in Murray Street Tanunda.
Graffiti, to this effect, appeared at this location on a number of occasions notwithstanding its “removal” either by being covered over with cardboard or painted over.
The plaintiff covered it over with cardboard “at least half a dozen times”. Mr Rogasch (who was a member and president (until June 2003) of the Rotary Club) first saw this graffiti towards the end of his presidency in June 2003. He personally painted over it on two occasions, observed that it had been painted over by someone else on one other occasion and said that sometime in 2004 the Rotary bin was completely repainted after which the graffiti did not recur.
He agreed that the writing, as he recalled it each time he painted over it, was in the form of that in photograph 8 of exhibit P3.
Nevertheless, the plaintiff agreed that at some point (which “may have been [after] about six months”) the style of the writing changed to that depicted in exhibit D9 and that this style of writing had also appeared on the ETSA utility box behind the Tanunda Hotel and on one behind the shops in Julius Street.
Mr Rogasch recognised exhibit D9 as being a photograph of the Rotary clothing bin but could not recall seeing that style of writing.
The ETSA Corporation box – Homburg Real Estate Agency
Graffiti stating “ANdre Jarrad born 30.5.73 is a ChiLd MoLeStor” (sic) appeared on ETSA Corporation transformer boxes next to Homburg’s Real Estate Agency on Murray Street (once on each of two boxes).[10]
[10] Photographs 3 and 4 of exhibit P3 and T38-39.
ETSA Corporation box – Edwards Street
Graffiti stating “ANdre Jarrad DOB 30.5.73 is A ChiLd MoLeStor” (sic) appeared on an ETSA Corporation transformer box on Edwards Street at the rear of the Tanunda Hotel.[11]
[11] T37-38 and photographs 9 and 10 of P3. That these photographs depict the Edwards Street location and the graffiti observed there is to be inferred from the legend tendered (without objection) as part of P3.
This graffiti re-appeared on the ETSA box on perhaps four to six occasions, after the plaintiff had rung ETSA and arranged for it to be painted over or after he had painted over it himself.
Mr Mack (the manager of the Tanunda Hotel from 2003 to November 2005) saw it written on this ETSA box in black texta sometime in 2003.
The Tanunda Hotel Toilet
Mr Mack also saw words to the same effect written in the male toilet at the front bar of the hotel, but could not recall if the style of writing was the same as that on the ETSA box in Edwards Street. He observed graffiti in the toilet on two occasions, each time in “the same form”, and on each occasion it was removed within twenty four hours. The plaintiff did not himself observe this graffiti but was informed of it by a bar attendant.
Other locations
The plaintiff also observed “defamatory graffiti” at two other locations; on ETSA boxes in front of the CWA Building in Murray Street and on an ETSA box in the car park area behind a group of shops in Julius Street.[12]
[12] The defendant’s pizza bar is one of the shops in this group. The car park area can be accessed from the pizza bar.
As at the date of trial two items of graffiti remained at the Julius Street car park site; according to the plaintiff: one “quite visible” and one that “had been painted over but it still shows through”. The two items are in “different sorts of handwriting” but both contained words to the effect “Andre Jarrad is a child molester”.
The actual words used at the CWA Building site were not given in evidence. It was described only as “defamatory graffiti”. However, given the whole context of the plaintiff’s examination-in-chief on this topic, I infer that the words written were the same or to the same effect as those written at the other locations identified.
There is no photographic record of the graffiti at either the CWA Building or the Julius Street locations. However, in the plaintiff’s opinion, the handwriting of the painted over example at Julius Street looks like the handwriting of particular entries in the diary of the defendant’s wife which were admitted as exhibit P4.
The Essence of the Plaintiff’s Case on Liability
There is no doubt that the plaintiff has been seriously defamed. A false assertion that a person is a child molester, particularly in today’s climate of heightened sensitivity about and awareness of such matters within the community, is highly likely to significantly lower that person in the estimation of others.
However, the plaintiff bears the onus of proving on the balance of probabilities, inter alia, that the defendant was the author of each item of graffiti complained about. There is no direct evidence of this; the plaintiff relies on circumstantial evidence only. The defendant vehemently denied being the author of any of the graffiti.
In essence, the plaintiff’s case on this aspect is as follows:
(i)The defendant has admitted, in earlier proceedings between the parties in the Tanunda Magistrates Court, that certain entries in his wife’s diary for 2003 had been written by him. They are the entries in exhibit P4:
(a)     for 27 March 2003 commencing “ANDRe SAiD to trevor …”;
(b)     for 5 August 2003 commencing “WeNt to poLice to veNt …”;
(c)     for 7 October 2003 commencing “5:40pm Saw ANDrea’s car …”;
(d)for 9 October 2003 commencing “4:20pm Left home for WorK ANDre worKiNG …”;
(e)for (what appears to be)[13] 10 November 2003 commencing “WeNt to hoteL at 10.30pm …”.
(ii)There are similarities between the writing style of the P4 entries and the writing style of some of the graffiti as depicted in a number of the photographs in exhibit P3.
(iii)The evidence of Mr Don Gangell[14] and Mr Glyn Smith[15], both having significant expertise in and experience with forensic document examination, including comparison of handwriting, supports a finding that the person who wrote the P4 diary entries also wrote the graffiti depicted in the P3 photographs.
(iv)The defendant had a “motive” to engage in a campaign of defaming the plaintiff so as to cause him harm.
(v)The defendant had ample opportunity to author the graffiti in question because he often walked home from his pizza bar after close of business at night and his route home passed by or within close proximity to all of the graffiti sites.
[13] P4 comprises five photocopied pages from the diary of the defendant’s wife, Mrs Santamaria. As a result of the copying process a few of the words in the original have not been completely copied. The original diary was not available at trial and P4 was tendered by counsel for the plaintiff during his opening without objection.
[14] Exhibit P5.
[15] Exhibit P6.
Essential to the plaintiff’s case on liability is the allegation that the defendant was the author of the P4 diary entries. Without a finding to this effect the plaintiff’s claim must fail. I turn then to consider this fundamental element of the plaintiff’s case.
The Defendant’s Admissions in the Magistrates Court
The evidence given before me by the defendant supports a finding, and I so find, that the defendant told the Magistrates Court whilst under cross-examination during earlier proceedings between the parties that at least the first four of the diary entries in exhibit P4 were written by him. As to the 10 November entry, he did not deny that he had made such an admission in the Magistrates Court; that question was not put to him with respect to this entry. In any event, counsel for the defendant conceded that the defendant had given evidence in the Magistrates Court to the effect that the relevant diary entries in P4 were his.[16]
[16] In opening at T74 and in final address at T240. And see also the plaintiff’s evidence at T45-48.
During the trial counsel for the plaintiff sought to tender five pages said to be that part of the transcript of the defendant’s evidence in the Magistrates Court which purported to record his admissions with respect to each of the five diary entries in P4. The tender was opposed by counsel for the defendant and after hearing short argument I admitted the document de bene esse as P11. Having given the matter further consideration I now refuse the tender. I provide short reasons for this in Appendix 1 to this judgment.
The defendant’s evidence given in the present proceedings was contrary to that given in the Magistrates Court proceedings; he was adamant that the P4 diary entries in question were not recorded by him, were not in his writing and that he did not tell the truth in this respect in the earlier proceedings.
The defendant has failed, when under oath, to tell the truth in this respect on one of these occasions.
Without more, this might lead me to conclude that I cannot safely accept his evidence given before me to the effect that the P4 diary entries were not written by him. That does not mean that the converse necessarily follows. In other words, before I could make a finding that the diary entries in P4 are in his writing I would need to identify evidence adduced in this trial sufficient to enable such a finding on the balance of probabilities.
Leaving aside for the present any evidence of motive and opportunity, the only evidence potentially implicating the defendant is his proved admission[17] (given in the Magistrates Court), that the P4 diary entries were written by him albeit to be viewed in the context of his retraction of the admission before me. If I were to disbelieve him as to this retraction a finding that the P4 diary entries are in his writing would necessarily follow.
[17] In the case of a party to proceedings a proved prior inconsistent statement, even if later denied, can be received as an admission rather than merely a fact going to credit, see generally Cross on Evidence 6^th Aust ed at [17390].

I turn then to consider other evidence in this trial that bears on the issue of whether or not the defendant, in denying before me that he wrote the P4 diary entries, was telling the truth.
Evidence of the defendant’s son – Jack Santamaria
As at the commencement of the trial the defendant’s Defence to the plaintiff’s claim comprised a bare denial. Paragraph 1 of the Defence stated:
The defendant denies the allegations contained in paragraphs 1, 2, 3, 4, 5 and 7 of the Particulars of Claim in that the Defendant denies writing the words alleged in paragraphs 1-5 inclusive and denies making the oral statements as alleged at paragraph 7.
When the trial commenced counsel for the defendant made an oral application to amend his Defence which was not opposed. Leave was granted to amend paragraph 1 by adding the words “but says that his son Jack Santamaria wrote the words alleged in paragraphs 1 to 4 inclusive”. Paragraph 5 of the Statement of Claim which fell outside this amendment to the Defence comprises the plaintiff’s allegation to do with the toilet in the Tanunda Hotel.
Prior to calling Jack Santamaria, counsel for the defendant made an application pursuant to s13(2)(b) of the Evidence Act 1929 for a one-way screen to be located so as to enable Jack Santamaria to give his evidence without having to see the plaintiff.
I granted the application and my reasons for so doing are set out in Appendix 2 to this judgment. Not being a jury trial, the requirements of subsection 13(7) do not apply. Nevertheless, it is desirable that I assure the parties that I have drawn no inference adverse to the plaintiff from the existence of this arrangement or the request that led to it, nor have I allowed either to influence the weight I have given to Jack Santamaria’s evidence.
Jack Santamaria’s evidence (in chief and following cross-examination) was to the following effect.
(i)He was sixteen at the time of giving evidence and thirteen in 2003.
(ii)He wrote the P4 diary entries of 27 March 2003, 5 August 2003, 7 October 2003, 9 October 2003 and 10 November 2003. His evidence on this topic was unshaken during cross-examination.
(iii)He wrote the words “ANdre Jarrad is a ChiLd MoLeStor” (sic) on the ETSA boxes outside the Homburg Offices as shown in photographs 1 to 5 of exhibit P3.
(iv)However, he denied writing the phrase “born 30.5.73”[18] and said that he did not know the plaintiff’s date of birth.
(v)He wrote the words on the Rotary clothing bin as depicted in photograph 8 of exhibit P3.
(vi)He wrote the words on the ETSA box in Edwards Street behind the Tanunda Hotel as depicted in photograph 10 of exhibit P3 but, again, denied writing the phrase “DOB 30.5.73”.
(vii)He did not write any graffiti in the Tanunda Hotel toilet.
(viii)He did not write graffiti on the Rotary clothing bin after the initial graffiti had been painted over. He only wrote once at that location and he did not remove any cardboard or tape put over the graffiti at that location.
(ix)He only wrote once at the Homburg location.
(x)He denied writing the words in photographs 1, 2 and 5 of exhibit P3. However, each of these photographs depicts the remains of graffiti directed at the plaintiff which has been partially rubbed out or obscured by over-writing. The precise nature of his denials in this respect is not made clear by the evidence and as such I have not found his evidence on this topic[19] of much assistance.
(xi)In cross-examination he gave as his reason for writing the graffiti that:
I really didn’t like Andre. He stopped me playing the drums and ruined my band. I saw him filming me once and I heard that he was taking photos of my little brother, so … [answer incomplete].
(xii) During cross-examination he prepared and provided a sample of his handwriting[20] and three greeting cards were produced by the defendant’s counsel, apparently for the first time, which contained what Jack Santamaria identified as his handwriting.[21] During re-examination, he prepared and provided a second sample of his handwriting.[22] I will say something more about each of these examples of Jack Santamaria’s writing later in these reasons.
[18] The plaintiff confirmed that this was his correct date of birth.
[19] T207.26-208.8.
[20] Exhibit D23.
[21] Exhibits D24, D25 and D26.
[22] Exhibit P27.
Jack Santamaria was also examined as to the content of the diary entries.
(i)His parents had told him to write down anything that involved the neighbour dispute. This was also the effect of the defendant’s evidence.[23]
(ii)He wrote the 27 March 2003 entry after he had heard the plaintiff say these words through the window of his (Jack’s) bedroom which abutted the common driveway.
(iii)He wrote the 5 August and 7 October 2003 entries on instructions received on the telephone from his father; the defendant told him what to write and the entries refer to the defendant’s observations and actions.
(iv)He wrote the 9 October 2003 entry after hearing the plaintiff say these words to him as he was going from the front yard into the driveway on his way to work at his father’s pizza bar. Jack Santamaria could not recall how soon after hearing these words he wrote in the diary.
(v)He wrote the 10 November 2003 entry after witnessing the events recorded therein.
[23] T94, T198.
Both the defendant and Jack Santamaria gave broadly consistent evidence to the effect that sometime in late 2003 or early 2004 the defendant took his son past one of the items of graffiti in the township and asked him whether he had written it. At that time Jack Santamaria denied any responsibility. However, shortly before the trial was due to commence he admitted to his father that he had in fact written a number of the items of graffiti in question. It was this that prompted the late amendment to the Defence.
Difficulties with Jack Santamaria’s evidence
Jack Santamaria’s evidence that he only wrote graffiti once at the Rotary clothing bin location and did not remove any cardboard or tape put over the graffiti at that location does not explain the fact that graffiti appeared there on a number of occasions and that it had been painted over on at least three occasions.
Jack Santamaria’s evidence does not explain the fact that the style of writing at the Rotary clothing bin location changed at some stage to that depicted in D9 and that this style of writing also appeared behind the Tanunda Hotel and behind the shops in Julius Street. The form of writing in D9 is quite different from that in P3, P4, D23 and P27, although D9 was not put to Jack Santamaria in either his evidence-in-chief or cross-examination.
Jack Santamaria’s evidence does not explain the inclusion of the words “Born 30.5.73” and “DOB 30.5.73” at the Homburg and Edwards Street locations respectively. On the basis of his evidence someone, with knowledge of the plaintiff’s birthday, has added these words.
Jack Santamaria’s evidence does not explain the presence of graffiti in the Tanunda Hotel toilet. He was not asked about the graffiti behind the shops in Julius Street or in front of the CWA Building in Murray Street.
These inconsistencies or deficiencies in the evidence suggest three possibilities.
(i)Jack Santamaria is not telling the truth, had nothing to do with the presence of any of the graffiti in the township and was not the author of the P4 diary entries.
(ii)Jack Santamaria is telling the truth insofar as he now presently recalls it but his recollection is now incomplete, perhaps due to the passage of time and the fact that the details of his graffiti writing exploits in 2003 ceased to be of particular significance to him until asked about them shortly prior to the commencement of this trial.[24].
(iii)Jack Santamaria is telling the truth, he did write the graffiti examples that he has admitted to and perhaps some others of which he now has no recollection, but he was not the sole perpetrator of the graffiti directed at the plaintiff that has been identified in evidence.
[24] No evidence was adduced from Jack Santamaria as to whether he was a regular or habitual graffiti writer during 2003 and 2004 and perhaps before and after then or whether his only involvement in such activities was the few occasions identified in his evidence with respect to the graffiti directed at the plaintiff.
In cross-examination Jack Santamaria appeared defensive and unhelpful when pressed for details of his graffiti exploits. He admitted writing the graffiti, could not remember the day and the time (not surprisingly), could not remember whether it was a weekday or a weekend, could not recall whether it was during the day or at night but recalled being by himself when he wrote the graffiti. My impression of him during this passage of evidence[25] was that he was making little effort to attempt to recall any of these matters. However, he was not pressed and in particular he was not taken to the individual locations in any attempt to jog his memory on these matters.
[25] T205-206.
The Defendant’s Explanation for having misled the Magistrates Court
The defendant gave an explanation for having misled the Magistrates Court. It was a somewhat confused explanation. In examination-in-chief he said this[26]:
QWhy did you say to Mr Portway that that was your handwriting.
AAt the time I had – if I could just remember there was probably a couple of reasons. One of the reasons was that I had suspected that Jack had written on the board and I knew I didn’t want Mr Jarrad to get hold of any of my kids, because I thought he would retaliate. And I was very confused, it was my first time in the witness box, I was very confused and also I was under the influence of Valium.
QHow many Valium did you have on that day that Mr Portway was cross-examining you.
AI think I took a couple in the morning and I think I took another one at recess and a couple more for lunch and maybe some more, trying to steady my nerves.
QSo what you said to Mr Portway is not true: that that was your handwriting.
AThat is correct.
[26] T93.
In cross-examination[27] the defendant said that at the time of giving his evidence he was affected by a combination of Valium and nerves and that he was “not coherent”. He acknowledged that he “did have a presumption (sic) it wasn’t my handwriting” and a little later stated “I did know that it wasn’t my handwriting, yes”. Almost immediately he appeared to withdraw from that position and said “I wasn’t 100% sure because of the effect of the Valium and I was so nervous”. However, under further cross-examination he continued “Yes, I knew back then that that looked like his [Jack’s] handwriting – that was his handwriting, not mine” and “Well, I knew back then it was probably Jack’s handwriting”.
[27] See generally T129-135 and 150-152.
The defendant rejected the proposition put to him in cross-examination that it would have been a simple matter for him to have denied that it was his writing and gave as his reason: “Because I had an inclination that it was Jack’s writing, but my first priority was to look after Jack, he came paramount to anything”.
The defendant’s evidence as to the amount of Valium taken, the time it was taken (relative to the time he gave his evidence on this topic) and its effect on the defendant was very unsatisfactory. The general effect of Valium on people who take it was not the subject of any expert evidence. I am not able to make any findings as to the amount of Valium, if any, taken or the effect, if any, it may have had on the defendant’s capacity to give his evidence truthfully, accurately and coherently.
The explanation for misleading the Magistrates Court with respect to the P4 diary entries initially given by the defendant in examination-in-chief appeared to me to be internally inconsistent. However, having regard to the whole of his evidence on this topic I find that the effect of his evidence before me was that at the time of giving his evidence in the Magistrates Court:
(i)He either knew or held a strong suspicion that the P4 diary entries had been recorded by his son;
(ii)He knew that he had not written the entries in the diary;
(iii)He was anxious to protect or shield his son;
(iv)In these circumstances, he was confused not as to what the true position was but as to how to deal with the questioning on this topic in the Magistrates Court proceedings.
The context in which the defendant gave his evidence about the diary entries in the Magistrates Court, is, in my opinion, of significance. He gave this evidence for the purpose of obtaining leave to refresh his memory, by reference to their content, about events said to have taken place involving the plaintiff.[28]
[28] T44.30, 45.20-45.27, 93.6.
The authorship of the diary entries does not appear to have been a fact in issue in the Magistrates Court. As such, and notwithstanding that the defendant was aware at the time that the plaintiff had commenced this action against him for defamation[29] I have serious reservations as to whether the defendant realised, at the time, the full implications of the evidence he gave about the diary entries, that is, as to the use to which his answers subsequently might be put.
[29] T181.
Other Considerations
In deciding whether or not to accept the defendant’s denial that he was the author of the P4 diary entries I have had regard to Jack Santamaria’s evidence (including the difficulties it poses) and the defendant’s account of why he misled the Magistrates Court, discussed above, together with the following matters.
Only very limited examples of both the defendant’s and Jack Santamaria’s writing styles were put in evidence. It is surprising that more examples of writing brought into existence during the two to three years before trial were not proffered.
The defendant’s explanation for this, given in re-examination, was that he rarely hand wrote anything because of his limited formal education (completion of grade 7 at school) and his dyslexia.
The defendant’s evidence was to the effect that it was his practice to have documents “done on the computer” or to arrange for his wife to do any handwriting that needed to be done. A number of the court documents in these proceedings filed on his behalf were written by Mrs Santamaria.[30] None are in the defendant’s hand (other than his signature). The proposition put to the defendant in cross-examination that he avoided writing any of the court documentation as a deliberate strategy to avoid examples of his handwriting coming to the plaintiff’s attention, was denied. The same proposition was put by the plaintiff’s counsel in submissions. I reject the submission and accept the defendant’s evidence that he found it difficult to write and left such matters to his wife.
[30] Exhibits P13, P14, P15, P16 and P17.
The evidence given in relation to the paucity of evidence concerning Jack Santamaria’s handwriting was also unsatisfactory. One explanation might have been that the defendant and his legal advisers became aware of the central importance of Jack Santamaria’s evidence only days before the trial was due to commence. However, the only evidence adduced as to the availability or non-availability of examples of his handwriting was that given by him in cross-examination. He maintained that he had not undertaken “numerous written exercises at school” because he was doing “an access program … and it is all on computers really”. He acknowledged that he would have done some writing by way of assessments but said he did not have any examples of his school handwriting for the years prior to year 10 and that “after year 10 I just spent the year on computers really”.
As earlier indicated, I make no findings as to the circumstances and merits of the particular incidents between the parties canvassed in the evidence generally including those purportedly recorded in the diary entries in P4. However, I do find that the defendant, at the time of the Magistrates Court hearing, did have a serious and genuine concern for the well-being of his children, and in particular Jack, as a result of his perceptions of the plaintiff and the plaintiff’s conduct towards the defendant’s family (irrespective of whether or not such a concern was justifiable).
It also seems to me that it would be quite unusual behaviour for a middle-aged family man and owner of a business in the main street of Tanunda, to walk the streets repeatedly writing (presumably with stealth) graffiti of the type under consideration, and notwithstanding the significant level of animosity between the defendant and the plaintiff.
However and by way of contrast, the answer given by Jack Santamaria set out at paragraph 43(xi) above impressed me as having the ring of truth about it. I find it quite conceivable that a gormless youth (as Jack Santamaria appeared to me to be), thirteen years old at the time, would respond to the situation he and his family were experiencing by writing graffiti of the crude and unsophisticated type as that under consideration.
I have also taken into account the fact that, on the plaintiff’s case, I would have to find that both the defendant and Jack Santamaria have lied and at the last minute, in effect, conspired to mislead the court in this respect. Furthermore, if Jack Santamaria did come to court to lie on behalf of his father, it is difficult to understand why he did not own up to all of the graffiti rather than just some.
Jack Santamaria gave his evidence directly and without embellishment. Both he and the defendant were aware of the serious nature of the evidence he was giving and possible consequences it might have for him. It was apparent to me that, whilst they no doubt had their differences as any middle-aged father and teenage son will, the defendant was caring and protective of his son during the events of 2003 to 2005. In the circumstances I find it difficult to accept that Jack Santamaria came to court to lie on his father’s behalf and that the defendant would stand by and allow his sixteen year old son to do so and to make potentially serious admissions against his own interest[31] in circumstances where the defendant knew that he himself was the author of the P4 diary entries and the graffiti (if that in fact had been the case).
[31] Notwithstanding the provisions of s33 of the Evidence Act and on the assumption that the protection afforded thereby extends to evidence given in court rather than being confined to the interlocutory processes of discovery and interrogatories – a question I do not need to determine.
Finally, the defendant did appear to me, by his manner and expression, to be telling the truth when he repeatedly denied any involvement with the graffiti. I make the same observations about Jack Santamaria with respect to his evidence concerning P3 and P4. I do not place significant weight on those observations taken in isolation. I am conscious that “demeanour” can be misleading and that the defendant has demonstrated a preparedness to mislead the court. I am also conscious that there are a number of unreliable or unsatisfactory aspects of both the defendant’s and his son’s evidence overall (the more significant of which I have mentioned above) which must be taken into account.
The other Handwriting Samples
I have had some regard to the examples of Jack Santamaria’s handwriting that went into evidence. I find exhibits D23, D24, D25, D26 and P27 to be genuine examples of Jack Santamaria’s handwriting for all purposes including that of s30 of the Evidence Act.
None of these exhibits was considered by either Mr Gangell or Mr Smith. I am conscious of dicta to the effect that where the disputed writing (in this case the P4 diary entries) is a photocopy, expert evidence about the comparison should be adduced; Grayden v R (1989) WAR 208 is often cited. In that case the only “evidence” of the disputed writing was a photocopy. Malcolm CJ, (after reviewing various authorities) held that this did not qualify as “a disputed writing” for the purposes of the Western Australian equivalent of s30 of the South Australian Evidence Act[32].
[32] That is, s31 of the Evidence Act 1906 (WA).

However, the court in Grayden did not refer to any section or rule analogous to s45C of the Evidence Act (which modifies the best evidence rule)[33].
[33] It would seem that the Western Australian equivalent, s73A, was enacted only in 2000.
Section 45C(1) provides:
A document that accurately reproduces the contents of another document is admissible in evidence before a court in the same circumstances, and for the same purposes as that other document (whether or not that other document still exists) [my emphasis].
Exhibit P4 was tendered by counsel for the plaintiff as a photocopy of the relevant pages of the original diary and admitted for this purpose without objection by the defendant. Both parties, tacitly if not expressly, conceded that P4 was, for all relevant purposes, an accurate reproduction of the original diary pages.[34] I have had regard to the permissions and constraints provided for by s45C and find that P4, insofar as is necessary or relevant, does accurately reproduce the relevant entries in the original diary.
[34] Save for the matter identified above at footnote 13.
In addition, Malcolm CJ’s view does not appear to have been embraced by the majority (Wallace and Smith JJ). In Grayden the photocopy of the disputed writing had been admitted as secondary evidence without objection. In these circumstances, their Honours’ only concern was that, in being asked to compare an original (undisputed) document with a photocopy of a disputed document, the jury should have been warned that it would be dangerous to come to a firm conclusion as to the authorship of the photocopied document in the absence of any expert evidence.[35] In this respect, I am mindful that the task before a criminal jury is to be satisfied beyond reasonable doubt whereas my task is to make findings of fact on the balance of probabilities.
[35] At 217-218.
Furthermore, and without staying to develop these issues, there are conflicting authorities dealing with the above matters[36] and s30 of the Evidence Act, whilst permissive, is not a code on handwriting evidence.[37]
[36] See Cross 6^th Australian ed at [39105] and, in particular, the article by Leslie Katz “Expert and Photographic Evidence of Authorship and Unavailable Disputed Writings” (1990) 7 Aust Bar Review 153.
[37] R v Mazzone (1985) 43 SASR 330.
Finally, I do have the benefit of expert evidence in a limited respect. Whilst none of it touches directly on exhibits D23, D24, D25, D26 and P27 it does deal in detail with the photocopied diary entries in P4.
Exhibits D23 and P27 are examples of Jack Santamaria’s handwriting generated at the age of sixteen, on demand and perhaps under pressure, whereas the diary entries in P4, if recorded by him, were done so when he was thirteen and in his own time. It is also possible that his writing will have changed or matured in some respects in the intervening three years or so. Nevertheless, to my untrained eye[38] there are similarities between some aspects of the words depicted in exhibits D23 and P27 on the one hand and P4 on the other.
[38] See Adami v R (1959) 108 CLR 605; R v Mazzone (1985) 43 SASR 330 and generally Cross on Evidence, 6^th Aust ed, at [39105].
The similarities are not so apparent as would permit me, a non-expert, to hazard an opinion, based on the evidence of exhibits D23 and P27 alone, that Jack Santamaria also authored P4. However, the peculiar nature of the lower case letter “d” in those exhibits is striking. In Mr Gangell’s reports[39] he specifically drew attention to this style of writing the lower case letter “d” as used in P4 and in the graffiti examples in P3. He described it in his report of 8 December 2003 as “quite individual and characteristic” and in his report of 6 January 2004 as “a personal characteristic”. Mr Smith also acknowledged in his evidence[40] that whilst “not that uncommon” it was “not normal”.
[39] Exhibit P5; Mr Gangell did not give evidence at trial. His reports were admitted without objection. The fact that he was not made available for cross-examination is a matter I have had regard to in assessing the weight to be given to his written reports.
[40] T65.
There are at least two other striking features of D23. First, the use of the combination of an upper case “L” with a lower case “d” in the words “CHILd” and “BoLd” which combination, where it occurred both in P3 and P4, was described by Mr Smith as “a significant point of similarity between the two writings”[41]. Second, the aberrant combination of upper and lower case letters within a single word as in “CHILd”, “BoLd” and “WaYan” in D23, was also remarked upon by both Mr Gangell and Mr Smith as being unusual and significant to their conclusions concerning P3 and P4.[42]
[41] T66.
[42] Exhibit P27 does not contain this latter feature. However, as far as the second entry on that exhibit is concerned (but not the first) Jack Santamaria was specifically asked to write “Andre Jarrad” in capitals, T215.
Exhibits D24, D25 and D26 provide less reliable assistance if only because they contain very small samples of writing. However, each was brought into existence two to three years before the trial[43] and therefore broadly contemporaneously with the generation of the writings in P3 and P4. I reject the submission, faintly put by counsel for the plaintiff, that these examples of Jack Santamaria’s writing might have been written recently. In any event, that they provide further examples of his handwriting was not challenged.
[43] T203-4.
Exhibits D25 and D26 both contain the unusual formation for the lower case letter “d”. In submissions, counsel for the plaintiff disputed this and drew my attention to the “extra small loop” or “curlicue” at the top of the upstroke. I find this to be an overly subtle analysis.
In addition the word “biRtHdaY” in D25 contains the unusual combination of lower and upper case letters which is a feature of P3, P4 and D23.
I also refer at this stage to exhibits D19, a birthday card, and D20, a christening card, both of which, according to the defendant, contain examples of his writing. Short evidence was led in chief from the defendant to the effect that he has been diagnosed as suffering from dyslexia. No medical evidence by way of corroboration was led nor was any expert evidence adduced as to how dyslexia might be expected to manifest itself by way of a sufferer’s capacity to spell and write.
It would not be appropriate for me to rely on any non-expert understanding of dyslexia as I may have. I have not done so. Nevertheless, ignoring the assertion that the defendant suffers from dyslexia, there are obvious and marked dissimilarities and virtually no unusual similarities between the, albeit quite limited, writing samples in D19 and D20 on the one hand and P3 and P4 on the other.
The evidence as to when D19 and D20 were brought into existence is unsatisfactory. Precisely when probably does not matter because, given the defendant’s age, the likelihood is that his writing style would have been settled as at 2003. However, I reject as improbable in all of the circumstances, the submission put on behalf of the plaintiff that the writing in those cards was “manufactured” for the purposes of the trial. I find that D19 and D20 are genuine examples of the defendant’s handwriting for all purposes including that of s30 of the Evidence Act.
Conclusion as to the authorship of the graffiti directed at the plaintiff
I return now to the question of whether or not the handwriting in P4 is that of the defendant. The plaintiff bears the onus of establishing that it is. On the basis of the matters canvassed above, but primarily at paragraphs 56 to 58, and 64-69, I am not persuaded of this. Rather, I accept Jack Santamaria’s evidence that he wrote the P4 diary entries and the defendant’s evidence given before me that he did not.
I accept the defendant’s explanation for misleading the Magistrates Court and find that he did so in order that he could use his wife’s diary to refresh his memory about the events recorded in the P4 extracts and at the same time protect his son from being implicated in having observed or recorded these events.
I am fortified in these conclusions by my own comparison of P4 with the later tendered examples of Jack Santamaria’s and the defendant’s handwriting being D23, D24, D25, D26, P27 and D19, D20 respectively. However, if I am wrong to have undertaken this comparison exercise I would reach the same conclusion independently of it for the reasons already given.
It follows that the plaintiff has failed to satisfy me that the defendant wrote any of the subject graffiti.
It is unnecessary for me to make a finding as to who did. However, Jack Santamaria has admitted to writing some of it. This means that either Jack Santamaria is confused or mistaken as to the full extent of his “contribution” or some other person also wrote some of the graffiti or both these explanations apply. I make no findings in this respect other than that, for the reasons I have given, there is insufficient evidence[44] to support a finding that the defendant was any such other person.
[44] By which I refer to the evidence (which I accept) of animosity/motive and of opportunity in the defendant to have written the graffiti.
The plaintiff’s claim, insofar as it concerns publication of the graffiti particularised at paragraphs 1 to 5 of the Statement of Claim is dismissed.
The Defendant’s Counterclaim
The Roxanne Smith allegation
Roxanne Smith worked at Pinky’s Pizza Bar in Nuriootpa during 2003. She gave evidence that in April 2003 she received a telephone call at the pizza bar from a man “who identified himself as a neighbour of Antonio” and as “Andre”. She said that he ordered a pizza to be delivered to an address that on delivery was found to be the defendant’s. She discovered this when the defendant called Pinky’s on the telephone to say that he was not going to pay for the pizza. Ms Smith took that phone call and told the defendant of the conversation she had had earlier with “Andre” including the words that he had used in that conversation.
Reverting back to the conversation with “Andre”, Ms Smith’s evidence was that,
He asked, do you sell drugs at Pinky’s Pizzas?, and then he went to (sic) tell me that Antonio sells drugs at Mia Pizzas.
The caller also called Antonio a “wanker”.
In cross-examination Ms Smith agreed that two pizzas were ordered and reiterated her evidence that the caller called himself “Andre” and described himself as the defendant’s neighbour. She acknowledged that she did not know the plaintiff and would not be in a position to recognise his voice on the telephone. Her evidence was not otherwise challenged.
The plaintiff admitted ordering pizzas from Pinky’s Pizza Bar but having done so on only one occasion. He said that he ordered two pizzas which he thinks initially had been taken to the wrong house. He denied telling Ms Smith that the defendant was a “wanker” or that Mr Santamaria sold drugs from his pizza bar. He denied making any comments about the defendant.
Ms Smith gave her evidence in a no-nonsense straightforward manner. She appeared to have no difficulty in recalling the occasion in question. In cross-examination Ms Smith willingly acknowledged that she had no means of knowing whether or not the telephone caller was, in fact, named “Andre” and was, in fact, the neighbour of the defendant; in other words, as the cross-examiner put it and Ms Smith agreed, “It could have been anyone else saying they were Andre”.
It was not put to Ms Smith that a conversation in the terms she had asserted did not take place. Nothing in the evidence suggests that her evidence was the product of re-construction, faulty or otherwise. I accept Ms Smith’s evidence and find that she did have a conversation with someone in the terms she has recounted.
However, her evidence insofar as it might be relied upon as evidence that the caller was, in fact, called “Andre” and was, in fact, a neighbour of the defendant is hearsay and likely to have been inadmissible for this purpose.[45] It was not objected to. Nevertheless, (at least in a civil case) having gone in unobjected to, it may be used “as proof to the extent of whatever rational persuasive power it may have”.[46]
[45] In my view the circumstances in cases such as Walton v R (1989) 166 CLR 283, Pollitt v R (1992) 174 CLR 558, R v Benz (1989) 168 CLR 110 are distinguishable.
[46] Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 219; Technilock (Aust) Pty Ltd v Mondoquip Pty Ltd (SC(SA)) Full Court, 6 August 1999, BC 9904456.
There is no direct evidence that the one phone call made by the plaintiff to order two pizzas occurred on the same day that Ms Smith received the phone call about which she gave evidence.
It is possible that someone rang her, on a day different from that when the plaintiff rang, and impersonated the plaintiff. Whilst an odd thing to do, it is conceivable that someone wished to harm the defendant and saw this as a safe way to do it. There are no doubt other possibilities.
However, the plaintiff agreed that on the one occasion he ordered two pizzas from Pinkys they were first delivered to an incorrect address and Ms Smith’s recollection is that the two pizzas she sold to “Andre” were incorrectly delivered to the defendant’s address. This is consistent with the plaintiff being the phone caller and providing the wrong address (either deliberately or accidentally) or Ms Smith incorrectly hearing or recording the address as given.
I would find it to have been a remarkable coincidence for Ms Smith to have had had a conversation with a man describing himself as “Andre” and to incorrectly deliver pizzas intended for “Andre” to the defendant’s address, on the one hand, and for the plaintiff to have independently ordered pizzas on only one occasion (be it that same day or another) which also went to an incorrect address in close proximity to his house, on the other.
In the discussion which follows I conclude that I prefer and accept David Goddard’s and Phillip Consalvo’s evidence over that of the plaintiff with respect to similar allegations made against the plaintiff. The plaintiff had no recollection of the Goddard incident and denied any conversation at all with Mr Consalvo. It follows that the plaintiff has either failed to be full and frank with the court or has no reliable recollection of these events. This causes me to doubt the accuracy of and to reject the plaintiff’s evidence in connection with the Smith incident.[47] I find that the plaintiff was the person who rang and had a conversation with Ms Smith in the terms she has given evidence of.
[47] By this I do not mean to adopt any form of propensity reasoning, cf; Sheldon v Sun Alliance Aust Ltd (1989) 53 SASR 97, Grivas v Brooks (1997) 69 SASR 532; for me the issue here is one of credibility.
The David Goddard allegation
Mr Goddard gave evidence on behalf of the defendant. He told the court that in July or August of 2003 he was walking in Murray Street with a friend, Dale Morris, when a man approached to speak with Mr Morris.
During the conversation that took place Mr Goddard mentioned something to the effect that he was going across the road to get a pizza from the defendant’s shop, at which time the man said to him, “that place over there, the owner of that place sells drugs out of the shop.” On being queried about this, the man went on, “yeah, he sells speed.”
Mr Goddard identified the man who had approached him and made these comments as the plaintiff sitting in court.
Mr Goddard was concerned about this because his teenage son was much the same age as Mr Santamaria’s children and they crossed paths both at school and at Tae Kwon Do lessons where the defendant was an instructor. Mr Goddard reflected on the conversation and discussed it with his wife that evening. He later went around to the defendant’s house and confronted him with the allegations. After talking to him for about an hour he was persuaded that it was just a rumour and that there was no truth to the allegations.
In cross-examination Mr Goddard’s independence or objectivity was challenged. He denied a close association with the defendant but acknowledged that their respective children had “an association”. He did not socialise with the defendant. Initially, Mr Goddard was not cross-examined on the fact of or the terms of the conversation. Following re-examination of Mr Goddard, counsel for the plaintiff was given leave to further cross-examine. The only additional matter put to Mr Goddard was the proposition that the plaintiff had never said anything about the defendant being a drug dealer. This was denied by Mr Goddard. Mr Goddard was not challenged about the fact that a conversation between him, Mr Morris and the plaintiff took place in the street.
However, when the plaintiff gave evidence on this topic, he said that he did not recall meeting Dale Morris and David Goddard in the street. Notwithstanding this lack of recollection, he denied saying to them that drugs and in particular speed could be bought at the Mia Pizza Bar. In examination-in-chief he acknowledged that the expression someone is “on drugs” can be used to indicate that they are acting irrationally or a bit weird. However, he could not recall using that expression in that way about the defendant.
Mr Goddard gave his evidence confidently and with assurance. The facts that the matter caused him concern because of his son having an association with the defendant’s children and that he took the trouble to go around and confront the defendant with the allegation, lead me to accept that he had an accurate recollection, if not of the exact words, certainly of the tenor of the conversation. However, the plaintiff on the one hand denied that he said the words attributed to him but, on the other, maintained that he had no recollection of the meeting.
It was not put to me by either side that my reasoning process should be influenced in favour of one side or the other in accordance with the principle explained in Jones v Dunkel[48] as a result of Dale Morris not being called to give evidence. In any event, there is insufficient evidence for me to be able to place Mr Morris in either “camp”.
[48] (1959) 101 CLR 298.
I accept the evidence of Mr Goddard and find that on the occasion in question the plaintiff did say to him[49] words to the effect that the defendant sold illegal drugs and in particular speed at the Mia Pizza Bar.
[49] The evidence is insufficient, particularly given that I have not heard evidence from Dale Morris, to permit a finding that Mr Morris also heard these defamatory comments.
The Phillip Consalvo allegation
Phillip Consalvo was also called on behalf of the defendant. His evidence was to the effect that he became interested in purchasing the defendant’s business in or about December 2003 and that he came from Adelaide to Tanunda to discuss the matter with the defendant. He went to the defendant’s house but no one was there. When he was walking up the driveway he saw some people standing under the verandah of the next door premises being a woman and a man whom he identified as the plaintiff sitting in court.
He gave the following evidence:[50]
[50] At T221-222.
QWhat did the plaintiff and this lady say to you.
AI approached them and I said to them if Antonio was around or if they knew Antonio, they said, no, they don’t know him. I said “I am here to inquire about buying his business”.
QWhat did they say next.
AThe lady said to me “You don’t want to buy that business, all they do is sell drugs there”.
QDid the plaintiff say anything.
AYes, he said “All they sell is little bags out of there and stuff like that”.
QWhat did you think he meant by “selling bags”.
ABags of dope or bags of coke, something like that.
QDid the woman say anything else.
AShe said that she knows for sure because I did say, I said “Are you sure about that”, she said “Yes”. She was a teacher I found out later. She said “He sells it to the students at her school” and she was a teacher.

Catherine Hall (now Winters) was the plaintiff’s de facto partner at the time of these events. Both she and the plaintiff denied not only that these words were said to Mr Consalvo by each of them but that the incident occurred at all. In other words, both denied ever meeting or conversing with Mr Consalvo or any person at the front of the plaintiff’s premises about the defendant’s business being for sale.
There was no evidence of the extent to which the plaintiff and Ms Winters were still friendly with each other, if at all. Mr Consalvo admitted that he knew the defendant during 2003 as a result of the fact that his mother was going out with the defendant’s father. However, he maintained during cross-examination that he had only seen the defendant about four times in his life.[51]
[51] This was also the effect of the defendant’s evidence, see T107.3 and T227.2.
I am not able to draw any inference that Mr Consalvo was prepared to lie on behalf of the defendant simply by virtue of their relationship or that Ms Winters was prepared to lie on behalf of the plaintiff simply by virtue of their past relationship and perhaps continuing friendship.
However, Mr Consalvo’s story is, in my view, an unusual one to have been fabricated. He described walking up an “adjacent driveway” at which time he saw the people standing under the verandah of the property next door. He identified the plaintiff in court as being the man to whom he had spoken. He recalled under cross-examination that the plaintiff looked a little scruffier then in his clothes and wore a beard. The plaintiff admitted wearing a beard in 2003. The words that were attributed to Ms Winters are consistent with the fact that she is a school teacher. He described the woman, albeit in very general terms, but in a way that was not challenged by counsel for the plaintiff and in a way that was broadly consistent with Ms Winters as she appeared to me. This may have been a lucky guess but somewhat risky unless Mr Consalvo otherwise knew Ms Winters. However, Mr Jarrad said that he had never seen Mr Consalvo before and no evidence was adduced from Ms Winters to the effect that she had ever met or knew of Mr Consalvo.
The plaintiff denied that such a conversation took place. It was put to Mr Consalvo in cross-examination that it was made up so as to assist the defendant because of their family association; in other words recent invention was asserted. However, Mr Consalvo gave evidence[52] that later that same month (December 2003) the defendant contacted him and Mr Consalvo explained that he had lost interest in purchasing the business as a result of this conversation with the neighbours. The defendant gave a broadly similar account of this conversation between him and Mr Consalvo.[53]
[52] At T222.
[53] At T106.
It is of course possible that neither Ms Winters nor the plaintiff now recall the conversation with Mr Consalvo. At the time it was probably a relatively minor event in their day.
Similarly, it is possible that the plaintiff no longer recalls the conversation had with Mr Goddard and the detail of the conversation had with Ms Smith which also, no doubt, were minor and forgettable events at the time. The references in them to the defendant may well simply have been throw-away lines uttered in frustration or anger towards the defendant. However, the recipients – Ms Smith, Mr Goddard and Mr Consalvo – are likely in my opinion to be in a different position. It does not at all surprise me that they have recalled the conversations, given the context as each has described it.
I accept Mr Consalvo’s evidence on this topic and it follows that I reject the plaintiff’s and Ms Winters’ evidence to the effect that no conversation with Mr Consalvo ever occurred.
I find then that on two occasions the plaintiff expressly stated to another person that the defendant sold drugs from his pizza bar or words to that effect (with a reference on one such occasion to “speed”) and on one further occasion implied the same by making reference to selling “little bags” in the context of a broader conversation during which Ms Winters referred to the sale of drugs.[54]
[54] In final submissions at T249-250 counsel for the defendant withdrew the allegation in paragraph 21 of the Counterclaim that the plaintiff, by his words and being involved in the conversation, endorsed the words said to have been said by Ms Winters and confirmed that the defendant was only relying upon the imputation which arises from the plaintiff’s assertion that the defendant sold “bags” in the context of the conversation as a whole.
During the conversation with Ms Smith the plaintiff also referred to the defendant as a “wanker”. It is unclear from the counterclaim whether this also is alleged by the defendant to be defamatory[55]; no submission to this effect was put. In my view the use of this term of vulgar abuse, on its own, was not defamatory of the defendant. It would not have affected his reputation.[56] Today, the use of the term “wanker” (notwithstanding its literal slang meaning) is not in my view capable of bearing a defamatory imputation when used merely as an expression of abuse.[57] The context in which it is used may lead to a different result. However, its use by the plaintiff in the context of his conversation with Ms Smith added nothing to the clearly defamatory assertion that the defendant sold drugs from his pizza bar.
[55] See paragraphs 4 and 9 of the counterclaim.
[56] See the discussion in Bennett v Cohen [2005] NSWCA 341.
[57] Cf; Matthews v University of Queensland [2002] FCA 414 at [31].
Did the plaintiff author the graffiti “Antonio Santamaria is a poof”
By paragraph 1 of the counterclaim the defendant alleges that the plaintiff defamed him by writing the words “Tony Santamaria is a poof” on an ETSA box adjacent to the Mia Pizza Bar in Murray Street. Exhibit P10 is a photograph of the graffiti and the defendant gave evidence that he thought it was written on the big transformer box outside the pizza bar. The plaintiff recalled those words being written on an ETSA box outside Homburg’s Real Estate Agency. The precise location of the graffiti is not important; both plaintiff and defendant acknowledged its existence and that P10 was a photograph of it.
The only evidence adduced by the defendant in support of the allegation that the plaintiff was the author of this graffiti was the following passage from the defendant’s evidence-in-chief.[58]
QDid you see anyone do the writing.
AI had seen Mr Jarrad park his Pajero in Murray Street at that time. He had gone up to it. He was there for quite a while. Then he had taken off. He had driven away from the scene up that – [answer incomplete]
QDid you actually see him do the writing, write anything.
AHe definitely had something in his hand but I actually didn’t see him write it, but he was definitely there doing something.
QWhen do you think that was.
AI think that was sometime in 2003. I remember ringing Jack up if he could put an entry into his mother’s diary.
[58] At T104.
In cross-examination the defendant “conceded”[59] that there was no evidence of the plaintiff having written P10. However, I do not take this “concession” as a withdrawal or abandonment of the allegation. Ultimately, it is a matter for the court to determine whether there is evidence sufficient to support a finding that the author of P10 was the plaintiff.
[59] At T176.30.
The plaintiff in his evidence-in-chief denied being the author of P10. It was not put to the plaintiff in cross-examination that he was the author and, perhaps more importantly, the defendant’s evidence of observing him park his Pajero motor vehicle in Murray Street, approach the graffiti site and remain there for a while also was not put to him. The plaintiff was not given an opportunity either to deny that assertion or to give an explanation for his presence at the graffiti site that may have been consistent with the graffiti already being there and he not being its author.
In all the circumstances I am not persuaded that the plaintiff was the author of P10.
Furthermore, and whilst I make no finding in this respect, I have serious reservations whether, in this day and age, graffiti of the type recorded in P10 taken alone would be found to be defamatory.[60] There might occur a particular context or set of circumstances within which a statement to this effect would be found defamatory but, for reasons that I do not need to develop, I do not think that the present is such a case.
[60] It must be debatable today whether generally (that is, other than in particular situations) an allegation that someone is homosexual (cf R v Bishop [1975] QB 274 at 281; Liberace v Daily Mirror Newspapers Ltd, The Times, June 18, 1959) is necessarily defamatory and a fortiori where the slang insult “poof” is deployed, cf; Thaarup v Hulton Press (1943) 169 LT 309 (“pansy”).
The Defendant’s cross claim – conclusion as to liability
I find that on three occasions, that is during conversations with each of Roxanne Smith, David Goddard and Phillip Consalvo, the plaintiff defamed the defendant by expressly asserting and/or implying that the defendant was a drug dealer who sold illegal drugs from his pizza bar. As to the defamatory nature of the words spoken, whilst not admitted on the pleadings, no submission to the contrary was put on behalf of the plaintiff.
Whilst, in the Phillip Consalvo conversation, there was only a reference to “little bags”, in the context of the conversation as a whole this can only have been a reference to bags of illegal drugs. These words were capable of being and were understood (by Mr Consalvo) in a defamatory sense. However, given the concession by counsel for the defendant already referred to,[61] I do not need to consider whether the imputations for which the plaintiff is responsible extend to the assertion that drugs were sold to Ms Winters’ school students.
[61] See footnote 54.
Taken at face value the plaintiff’s statements were seriously defamatory. However, the publication of these defamatory comments needs to be placed in context. As far as Ms Smith is concerned, no evidence was adduced from her as to whether she passed this information on, that is, republished the defamation to anyone other than to the defendant himself.
As far as Mr Goddard is concerned, the only person he discussed the allegation with was his wife[62], prior to visiting the defendant to confront him with the allegations. After hearing from the defendant Mr Goddard was confident that there was no truth to the allegations.
[62] T186.
No evidence was adduced from Mr Consalvo as to whether or not he had spoken to anyone else, other than the defendant, about the conversation he had had with the plaintiff.
My impression of Ms Smith in the witness box was that she was not at all impressed with either the caller or the allegations he put to her about the defendant. As she put it, he “just rang up to bad-mouth”. Equally, Mr Goddard quickly came to the view that there was no truth in the allegations and did not pass them on other than to his wife. Mr Consalvo lived and worked in Adelaide at the time and would have had limited, if any, opportunity to mix with the populace of Tanunda or likely prospective customers of the defendant’s pizza bar.
In all of the circumstances I find it quite unlikely that there was significant, if any, dissemination of the slander amongst the defendant’s friends and acquaintances, throughout the township generally or to prospective customers of his pizza bar. The defendant adduced no evidence of any such further dissemination other than that discussed at paragraph 198 below.
Damages
Slander at common law is not actionable per se, that is without proof of special damage, unless it falls within one of four exceptional categories.[63] In this case the slander imputed to the defendant the commission of a crime and perhaps also an unfitness to conduct his trade or business as a pizza bar proprietor and is therefore actionable per se.
[63] See generally Fleming “The Law of Torts” 9^th ed at 604-607.
Ordinarily, a person defamed will be entitled to:
(i)compensatory damages comprising general damages for injury to reputation, feelings and health and sufficient to vindicate him or her in the eyes of the public;
(ii)special damages for any proved economic loss;
(iii)aggravated damages, in appropriate circumstances, which are also compensatory; and
(iv)exemplary damages, in appropriate circumstances, which are intended to punish and deter the tortfeasor.
The defendant relied on a number of matters said to support an award of special damages or enhanced general damages.
Loss of Tae Kwon Do Income
During 2003 a Mr Michael Ayris conducted a Tae Kwon Do School in Tanunda and the defendant was an assistant instructor. According to the defendant, Mr Ayris was a member of “World Tae Kwon Do” and was attempting to set up a branch of that school in Tanunda. The defendant was being trained to take over as head (and only) instructor of the Tanunda Branch.
The defendant was sufficiently qualified as a Tae Kwon Do exponent to become an instructor.[64]
[64] Exhibit D29 is a certificate recording the defendant’s promotion to 1^st Dan Black Belt on 17 August 2002 and he was being trained how to administer and run a branch of the Tae Kwon Do School in Tanunda.
It was the defendant’s case at trial that he had to give up his position as an instructor and was deprived of the opportunity to become head (and only) instructor with consequent loss of prospective income because of the defamatory comments made about him by the plaintiff. He gave the following evidence[65]:
QDid Mr Ayris tell you that Mr Jarrad had said things about him (sic).
AYes. Something about some bags off Antonio that Mr Jarrad had brought up about me one night.
QHow did you feel when Mr Ayris said that.
AI felt ashamed. Like it wasn’t true and I explained to Mr Ayris that there was no truth in the matter and after Mr Goddard had said something to me about Tae Kwon Do, I explained to Mr Ayris what had been happening with the neighbourhood dispute, and what Mr Goddard had said. I said because there was kids involved in the Tae Kwon Do, and I didn’t want to have the club’s reputation ruined, I said that I should finish up.
QAs what.
AAs an instructor.
[65] T99-100.
In cross-examination the defendant said that he reached the decision to resign “based on the good of the club” and expressed the opinion “if it would have got back to headquarters I probably would have been thrown out anyway”.
The effect of the defendant’s evidence[66] was that in his opinion his position was untenable.
QI put to you that there was nothing stopping you [denying the allegations and continuing to become an instructor].
AI disagree with you.
QOn what basis do you disagree.
AFor a start, to teach young children or any young adults, especially, they usually start off at a fairly young age and the parents like to know that you are of good character. If someone is saying there is an allegation of me being involved in drugs or whatever, in a small community, they would have pulled their kids out. If a complaint was made to the chief instructor of any of them allegations he would have thrown me out; he would have asked me to leave until it was all cleared up. I definitely would have been in trouble.
[66] See T165-166.
The defendant told the court that between 38 and 42 students were registered although some would leave and others would come from time to time and that each student paid $40 per month for lessons. Out of the tuition fees expenses would have to be met and these included hall hire of approximately $50 or $60 per month and perhaps a couple of hundred dollars per year in advertisement costs. After allowing for these expenses the defendant would be entitled to keep the balance of the $40 per month payable by each student once he became the head instructor. There was no insurance expense, because the defendant thought that a release was given by each student and cover was provided by a policy taken out by the head office, and no fee was payable to the head office out of the tuition fees. An additional fee would be paid by a student direct to the head office each time that student undertook a grading test.
As to the issues of the likelihood of the defendant becoming the head instructor and the anticipated fee income likely or available to be earned, the defendant provided no corroborative evidence either by way of calling Mr Ayris or providing any documentary support. The defendant’s evidence on the financial aspects was regularly punctuated with “I think” and on one occasion “I imagine”. My impression of the defendant when giving this evidence was that he engaged in speculation and guesswork both as to the dollar amounts suggested and as to prospective student numbers. Throughout all of his evidence the defendant had a tendency to generalise and exaggerate.
Furthermore, according to the defendant, Mr Ayris left the role of head instructor six to eight months after the defendant resigned and when he left “he gave someone else that role”. However, there is no evidence as to how the new Tanunda branch of the school fared (in terms of student numbers, income and the like) after the defendant resigned and, being a new venture in Tanunda, there was no track record. It would be inappropriate, in my view, to assume that the sort of student numbers referred to by the defendant would continue indefinitely. Tanunda is a relatively small community. After the first flush of enthusiasm, the number of people, primarily young people, interested in commencing and then continuing with Tae Kwon Do lessons may well tail off.
For all of these reasons, I found the defendant’s evidence on this topic to be of limited assistance.
If the defendant were to be entitled to claim this loss of opportunity to earn income, I first would need to be satisfied that such loss of opportunity was caused by the plaintiff’s conduct and was not too remote before attempting to assess the value of this loss.
The plaintiff submitted, in effect, that the defendant was the author of his own loss in that he volunteered to resign as a Tae Kwon Do instructor in circumstances where he need not have done so.
The defendant was prompted to resign after hearing from Mr Ayris, the head instructor, that the plaintiff had said to him “something about some bags off Antonio”[67] and after hearing also from Mr Goddard.
[67] T99.34.
The evidence of the defendant concerning Mr Ayris was direct evidence of what the defendant heard from Mr Ayris as to information Mr Ayris had about the defendant. It is admissible (and was admitted over objection) as evidence to explain the defendant’s subsequent conduct.
However, it is hearsay and not admissible insofar as it might be relied upon in support of the truth of Mr Ayris’ assertion that the plaintiff actually said these things to him. The defendant’s counsel, at the commencement of trial, abandoned a pleaded allegation that the plaintiff slandered the defendant in a conversation with Mr Ayris. I make no finding as to whether the plaintiff had a conversation with Mr Ayris or, if so, the content, in fact, of any such conversation.
Nevertheless, the position of the defendant was that, at the time he resigned, he had been made aware of the Smith slander, the Goddard slander and had been led to believe that something similar had been said to Mr Ayris, the head instructor of the Tae Kwon Do School and the person who would be highly instrumental in any future engagement of the defendant as head instructor.
In these circumstances, and for the reason given by the defendant in his evidence at paragraphs 144 to 146 above it was, in my view, an understandable, reasonable and foreseeable reaction for the defendant to offer to cease as an instructor at the school. Whilst it was not the subject of express evidence, I infer that Mr Ayris accepted the offer of resignation and did not attempt to dissuade the defendant from leaving.

In order for the defendant to recover, by way of special damage, for the loss of opportunity to earn Tae Kwon Do instructor income, it will suffice that this loss was the natural and probable result of the plaintiff’s words.[68] No other reason for the defendant’s resignation was suggested either in evidence or submissions. It was put that the defendant volunteered his resignation in circumstances where he had no need to do so. I do not accept the latter part of this submission. I find, notwithstanding that the defendant volunteered the resignation, that the resignation was caused by, in that it was the natural and probable result of, the plaintiff’s slander.
[68] Cf; Taylor v Hamilton [1927] SASR 314 at 317.
Furthermore, that such a result would follow (whether by way of resignation or dismissal) might fairly and reasonably have been anticipated; it was not too remote.
The loss of Tae Kwon Do income was relied on by the defendant’s counsel in final submissions as supporting an award of special damages. Given the unsatisfactory nature of the evidence in support of the quantum of this loss of opportunity, any assessment could only be of a very moderate amount. However, there is a more serious difficulty. As counsel conceded, unlike the loss of opportunity to sell the pizza business (see below) this head of special damage was not pleaded.
Ordinarily, special damage in proceedings for slander must be pleaded and sufficiently particularised. A respondent is entitled to proper notice in order to facilitate further discovery and other investigations, so as to be in a position, if warranted, to challenge the claim.
In Ilkiw v Samuels[69] Diplock LJ observed:
Special damage in the sense of monetary loss which the plaintiff has sustained up to the date of trial must be pleaded and particularised.
. . . .
In my view, it is plain law – so plain that there appears to be no direct authority, because everyone has accepted it as being the law for the last hundred years – that one can recover in an action only special damage which has been pleaded, and, of course, proved.[70]
[69] [1963] 2 All ER 879 at 890.
[70] See also Willmer LJ at 886-887, and Danckwerts at 888; Lewis v Daily Telegraph Ltd [1963] 1 QB 340 at 376 and Andrews v John Fairfax and Sons Ltd [1980] 2 NSWLR 225 at 235-238.
However, the evidence going to loss of opportunity to earn Tae Kwon Do teaching income was not objected to by the plaintiff[71] and was cross-examined on by the plaintiff.[72]
[71] Contra, the evidence of the conversation with Mr Ayris which was (unsuccessfully) objected to, see above.
[72] T163-164.
In my view this evidence was admissible, notwithstanding the failure to plead and particularise this component of alleged loss by way of special damage, as evidence relevant to general damages. In Andrews v John Fairfax and Sons Ltd[73] after referring to Ingram v Lawson[74] Hutley JA said:
The case is of the highest authority … It has never been reflected upon. None of the appellants suggested it was wrongly decided, nor could it, in my opinion, be over-ruled by any court other than the High Court or the Privy Council. It establishes that, even though only general damages are claimed, the plaintiff can give evidence of some particularity about the state and nature of his business, and changes which he alleges have been wrought in it by the defamation of which he complains, but only for the purpose of enabling the jury properly to evaluate the general damages which he has claimed. The borderline as to what is admissible in proof of general damages is, therefore, not a firm one. Material which would be admissible in proof of special damages and would tend to prove special damages may also be admitted in proof of general damages and, in the course of the trial, it may fall to the judge to see that this distinction between what is permissible as proof for one purpose and what for another is kept before the jury.
[73] [1980] 2 NSW 225 at 235 and see generally 235-238.
[74] (1840) 6 Bing (NC) 212; 133 ER 84.
In these circumstances, I am not prepared to find that the plaintiff’s failure to object to this evidence manifested a conscious acquiescence in a departure by the defendant from his pleaded cross claim. The plaintiff did not, to my mind, join in such a departure from the defendant’s pleaded case.[75]
[75] Cf; Kien Dan Luu Pty Ltd v AMP Society Ltd (1999) 75 SASR 345.
For all these reasons, I am not prepared to award even moderate special damages but will have regard to the evidence of the defendant’s loss of prospects with respect to the Tae Kwon Do teaching income, such as it is, in my assessment of general damages.
Loss of custom at the Pizza Bar
The defendant gave evidence to the effect that during the period after the comments were made by the plaintiff to Ms Smith and Mr Goddard his pizza business “dropped off”. The financial accounts for the years 2002 to 2005 inclusive were tendered in support.[76]
[76] Exhibit D12.
The following table comprises a summary of key financial indicators taken from the financial accounts in exhibit D12.

30/6/01

30/6/02

30/6/03

30/6/04

30/6/05

Trading Income (turnover) 74,294[77] 74,017 70,849 57,340 56,189

Cost of Sales

[including goods for own use]

39,033

[795]

37,601

[850]

26,645

[4,680]

22,833

[2,430]

19,109

[2,500]

Gross Profit from Trading 35,261 36,416 44,204 34,507 37,080

Total Expenses

[including wages]

35,384

[8,794]

33,296

[4,630]

42,094

[15,310]

26,850

[2,025]

30,423

[1,175]

Nett Profit from ordinary activities before tax (123) 3,120 2,110 7,657 6,677[78]

Nett Profit plus goods for own use plus wages 9,466 8,600 22,100 12,112 10,352
[77] All figures rounded.
[78] The discrepancy of approximately $20 by which the nett profit figure appears to be overstated is explained by $19.93 interest received being brought to account as additional income for this year but which has not been included in the table.

There was a drop in turnover for the financial years ending 30 June 2004 and 30 June 2005 compared with the previous three financial years. If the plaintiff’s defamatory remarks did have an effect on the defendant’s turnover it would first become apparent in the year ending 30 June 2004 given that the comments made to Ms Smith occurred in April 2003, those made to Mr Goddard occurred in July/August 2003 and those made to Mr Consalvo occurred in December 2003.
However, after allowing for a reduction in costs of goods sold (“costs of sales”) the gross profit from trading remained broadly consistent with that experienced in the 2001 and 2002 financial years, albeit lower than that experienced in the 2003 financial year. Furthermore, nett profit from ordinary activities (that is, after allowing for all expenses, fixed and variable) for each of 2004 and 2005 showed a significant improvement on each of the previous three financial years.
I have not been provided with any expert analysis of these accounts. However, I do observe a possibly significant increase in the 2003 financial year as compared with the 2001 and 2002 financial years when the totals of nett profit plus goods for own use plus wages are compared. However, whilst this total went down for the 2004 and 2005 financial years it was maintained at a level appreciably higher than that in 2001 and 2002.
On the information available I cannot explain the reason for the 2003 increase in this figure; it is unlikely to have been affected by the Smith incident and cannot have been affected by the Goddard and Consalvo incidents. I have no evidence as to whether or not the defendant or his family was the sole beneficiary of the goods for own use amounts and the wages amounts. It may have been that in the later years the defendant either worked the same or more hours for less wages or had to work additional time to replace employees to whom he was unable to pay wages because of the reduced turnover. However, wages in a pizza bar are likely to have a variable component to them. There is no evidence as to the extent to which the reduction in turnover for the 2004 and 2005 years also led to a reduction in labour costs, although I observe that the higher turnover in 2001 and 2002 was sustained by a wages bill significantly lower than that for 2003.
At the end of the day, I am not persuaded on the available evidence that the lower turnover in the 2004 and 2005 years gave rise to a loss of income or other benefits to the defendant of any real significance.
Further, I am not persuaded that if there were such a loss, the whole of that loss or even a significant component of it would have been caused by the defendant’s comments made to Smith, Goddard and Consalvo. To the extent that the defendant experienced a loss of custom (and whether or not it gave rise to a nett loss of income) during the 2004 and 2005 financial years, there were almost certainly other factors at work.
There was the written defamation “the owner of Mia Pizza is a drug dealer” evidenced by exhibit D21[79] and which was not attributed to the plaintiff by the defendant in his pleadings, evidence or submissions. This graffiti was written on an ETSA box in Murray Street; a prominent location. The plaintiff’s slander was more fleeting. The written defamation was, by its nature, likely to be far more effective in disseminating such an allegation about the plaintiff throughout the Tanunda community and prospective customers of the Mia Pizza Bar. Whilst a previous or concurrent libel is no ground for mitigation of loss or damage,[80] a person is only liable for the damage caused by his own publication.[81]
[79] See T175-6 and 180.
[80] Dingle v Associated Newspapers [1964] AC 371.
[81] Harrison v Pearce (1858) 1 F& F 567; 175 ER 855.
The defendant agreed that a competitor, the Avanti Pizza Bar, opened in the same street. The defendant did not have a clear recollection as to when the Avanti Pizza Bar opened. In examination-in-chief the defendant said “I can’t really recall; I think it was late 2004 or 2005.” In cross-examination the defendant acknowledged that it was almost directly across the road from his shop and appeared to accept that it might have opened in 2004. The defendant also acknowledged that “Coffee Lounges” had opened in Tanunda since the middle of 2003.
No doubt general economic and social factors within Tanunda will have a bearing from time to time on the turnover of a pizza bar; the hospitality industry is not predictable and restaurant/café returns are not uniform over time.
In any event and irrespective of the presence of D21, for the reasons already given it is unlikely, in my opinion, that there was any significant dissemination of the plaintiff’s comments by either Ms Smith, Mr Goddard (or his wife) and Mr Consalvo.
In my opinion the nett profit from ordinary activities before tax figure in the defendant’s accounts is the significant indicator. According to the accounts, the business was not particularly viable before or after the defamatory comments were made. Notwithstanding the relatively substantial drop in turnover, it has not been established that the defendant suffered a particular financial loss or that the plaintiff caused the defendant any such particular financial loss, that is, any special damage, in this respect.
Again, loss of the Pizza Bar trading income was not pleaded as special damage. In final submissions, counsel for the defendant acknowledged that the potential for this type of loss to the defendant should be dealt with in the context of general damages only.
Loss of Opportunity to sell the Pizza Bar Business to Mr Consalvo
In 2003 the defendant attempted to sell the pizza bar and listed it with Barossa Real Estate. Mr Consalvo became interested and made an arrangement with the defendant to come up from Adelaide to discuss with the defendant the possibility of purchasing the business. According to the defendant he was going to show Mr Consalvo the financial accounts and the plant and equipment. The defendant told Mr Consalvo that he wanted to get between $130,000 and $150,000 for the business.
Mr Consalvo came to Tanunda but did not meet with the defendant because he was dissuaded from continuing (or starting) negotiations for the purchase of the business by the conversation he had with the plaintiff and Ms Winters dealt with earlier in these reasons.
Mr Consalvo said that he was keen to purchase the business and that if he were to pay $120,000 or $130,000 for the business he would expect or want it to return a nett profit of about $80,000 a year. However, he said he still would be interested in the defendant’s pizza bar at that price even if the nett profit was less than $10,000 per annum. He then gave this evidence:
AIt was one of the only pizza bars in that type (sic) and I wanted to make a few changes there, I had a few ideas.
QIf it was two or three thousand dollars nett profit would you consider paying 120 or $130,000 for it.
AYes, I had my limit of how far I would go. The plant and equipment itself was worth $100,000.
QThat is what Mr Santamaria told you.
AOn the phone, I have also seen it.
QBut you hadn’t seen the financial accounts.
ANo.
QIf I said that the financial accounts indicated at 30 June 2003 a plant and equipment figure less depreciation of $5,000 would you still be interested in buying that business for that sum of money.
AYes.
QWith plant and equipment, only worth $5,000.
AWith depreciation, when I sold my business, my plant and equipment was worth 150,000 when I bought it, when I sold it it was worth about 1,000 but to replace an oven it is going to cost you 50,000.
QIf I said to you that the plant and equipment, at cost, was $11,773 that would that (sic) change your mind.
ANo.
QBut the value is not there in the plant and equipment.
ABut that is my decision to make. When I bought my restaurant it was loosing $7,000 a week, a month, I had it for 7 years and sold it for 160 more than I bought it for, so that if it was losing 7,000 a month and I bought it still for 100,000 – [answer unfinished].
QI put it to you that at the time of coming up or going up to Tanunda in December 2003, you hadn’t made a decision about whether or not you would purchase Mr Santamaria’s business.
AI was pretty confident that I was going to, I spoke about it with my wife, we would also go to Adelaide for a while.
The financial accounts for a business do not necessarily tell the full story as to its viability or value. Where the historical cost accounting method is employed, as in the present case, the depreciated value of plant and equipment, initially recorded at cost, may not be of significance to a prospective purchaser. I accept that a person such as Mr Consalvo, who was experienced in the restaurant business, would be more interested in the condition of and the replacement cost of the plant and equipment in the defendant’s pizza bar. Provided there was sufficient replacement cost value in the plant and equipment, he would be prepared to pay a substantial price for the business if he was confident that he had the ability to improve turnover and otherwise turn the financial fortunes of the business around.
However, the negotiations, such as they were, between the defendant and Mr Consalvo were in the extremely early stages. Furthermore, it is not possible on the evidence to ascertain, with any confidence at all, the terms and conditions, including the purchase price, that Mr Consalvo would have agreed to had he decided to go ahead with the purchase of the business.
In addition, I am not persuaded that the conversation Mr Consalvo had with the plaintiff and Ms Winters was the sole reason that he did not proceed with the purchase. It may well have been a factor. However, given the very early stage of the negotiations, the multitude of other factors which a prudent purchaser ordinarily would take into account before purchasing such a business and the fact that no attempt had been made to reach an agreement as to terms and price, at least in principle, I find that the percentage chance of the defendant selling his business to Mr Consalvo which was lost to the defendant to be low and of the order of 20%.
This is just the first step in the process of assessing damages for a loss of commercial opportunity. I have to be able to place a value on the opportunity to sell the business to Mr Consalvo which the defendant may have been deprived of. It is this value, once found, that would then need to be discounted by 80% to give rise to an assessment in monetary terms for the loss of the chance to have sold the business.
The principal difficulty with this analysis, for the defendant, is that following the ending of negotiations with Mr Consalvo, the defendant still had his business. Whilst he may have been deprived of a cash sum (the purchase price) in exchange for the business, he has not actually lost anything because he still has the business. There might be value in the lost opportunity if it could be shown that the defendant was deprived of an opportunity to sell the business to Mr Consalvo for an amount greater than its then value. However, the evidence does not remotely suggest this possibility, nor does the evidence support a finding that the value of the business has fallen to something less than the amount the defendant would have received had a sale to Mr Consalvo gone ahead. Indeed, on the evidence available, it is at least as likely that the value of the business has been increased.
It follows that the defendant has not proved that the opportunity to sell the business to Mr Consalvo had any value to the defendant over and above the value of the business as retained. Therefore, I do not find proved that the plaintiff caused the defendant a particular financial loss, that is, any special damage, in this respect.
Again, the defendant’s counsel conceded in final submissions that any loss of opportunity to sell the business to Mr Consalvo should be dealt with in the context of general damages (notwithstanding that this loss, unlike the others dealt with above, was specifically pleaded).
General damages
As I have indicated, general damages are compensatory. They are said to be “at large” in the sense that they are a matter of impression, given all of the circumstances, and not the addition of precise amounts fixed for each component.
Counsel for the defendant drew my attention to the general damages awards in four South Australian decisions which concerned defamation with limited publication.[82] I have had some regard to these.
[82] Pearce v Hailstone (1992) 58 SASR 240; Mewett v Shelmerdine (1992) 167 LSJS 124; Morgan v Mallard (1997) 190 LSJS 202; Allen v Johnstone [2004] SADC 56.
However, all but one, occurred between nine and fifteen years ago. Furthermore, each involved very different circumstances and, in my view, each concerned a more serious defamation, at least as to the nature and extent of the publication involved, when compared with the slanders in this case.
Counsel also, quite properly, drew my attention to the remarks of Hayne J in Rogers v Nationwide News Pty Ltd[83] as to the very limited use to be made, if any, of comparative verdicts in this area and to emphasise the point that an award should reflect the effect the defamation in issue has had on the individual claimant.
[83] (2003) 216 CLR 327 at 350.
I assess the defendant’s general damages in the sum of $6,000 for each of the Smith and Goddard slanders and $3,000 for the Consalvo slander giving a total of $15,000. In so doing, I have had regard to the findings above and, by way of summary, the following.
The defendant has suffered and is to be compensated for injury to reputation and feelings. That he has been so injured is assumed in the case of slander actionable per se and there is no requirement for the defendant to have adduced evidence in this respect.

Nevertheless, only very limited evidence on these issues was, in fact, advanced.
There was minimal evidence of the defendant being shunned and avoided, much of which was speculation. The defendant gave this evidence in cross-examination:[84]
QYou say you suffered this alleged loss of income purely because of the comments allegedly made by Mr Jarrad to Ms Smith and to Mr Goddard.
ANo, I don’t. I presume he would have told a few other people, but a few people commented to me on the allegations that were made and being a small town (sic). If you could imagine a small town of about 4,000 people – I think it’s about 4,000 people – I mean, 80% of those people, it would be fair to say that they – I suppose the correct terminology would be God-fearing people wouldn’t they, is that correct.
QYou are telling the story, not me.
ASomething like that, in a small town. If I was in Adelaide I don’t think it would make any difference, but in a small town it does make a lot of difference. No one wants them sort of allegations about a business being made.
[84] T174-175.
The defendant felt “sick” and “horrible”. He thought that “around about that time [he] started to get sick again from depression”.[85]
[85] T98-99.
I accept that the defendant has suffered significant anxiety, distress and injury to his feelings. However, I must endeavour to ensure that the defendant is not over-compensated in this respect. The very nature of the parties’ relationship at all times has been distressing and anxiety-provoking to the defendant. The plaintiff is responsible only for that caused by or with respect to any exacerbation caused by, his proved wrongful conduct – the slanders.
That the defendant has suffered from a clinical depressive illness, as a result (or at all), was not pleaded, nor is it supported by the evidence. I make no finding on this issue.
Whilst the plaintiff’s slander of the defendant was serious, it was, by its nature, ephemeral and for the reasons explained above most likely had a very limited publication or dissemination throughout the defendant’s community. The more serious the defamation the greater the damages award.[86] However, the seriousness of harm caused is proportional to the number of people who became aware of the defamation.[87]
[86] Greville v Wiseman [1967] NZLR 795 at 800.
[87] Dingle v Associated Newspapers [1961] 2 QB 162 at 190.
I have not ignored the possibility that the plaintiff’s slanderous comments might have reached the ears of some people in the community who would think less highly of the defendant as a result, or, being potential customers of the defendant, might have been dissuaded from frequenting the pizza bar. As Bingham LJ observed in Slipper v British Broadcasting Corporation Pty Ltd[88]:
Defamatory statements are objectionable not least because of their propensity to percolate through underground channels and contaminate hidden springs.
[88] [1991] 1 QB 283 at 300.
However, no financial loss of any real significance to the defendant is likely to have resulted from the plaintiff’s conduct for reasons I have already canvassed.
In addition to this possible loss of custom, I have taken into account the possibility that the defendant may have been deprived of the opportunity to sell his business to Mr Consalvo, although again, I do not see this as a particularly significant factor.
Of more significance is the loss of opportunity to continue as a Tae Kwon Do instructor (which I expect would have been a source of great satisfaction to the defendant) and, in time, to have earned some remuneration as head instructor.
I also have taken into account the fact that the plaintiff has not acknowledged his wrongful conduct and apologised to the defendant for it and that an important purpose of this award of general damages is the vindication of the defendant in the eyes of the public.
Aggravated and exemplary damages
The defendant in his counterclaim also seeks aggravated damages and punitive damages. I take the use of the term, punitive damages, to be a reference to exemplary damages.
Aggravated damages are also compensatory. At common law I can take into account the motives and conduct of the plaintiff where they aggravate the injury done to the defendant. Exemplary damages, on the other hand, are awarded to punish and deter and are not compensatory.[89]
[89] Rookes v Barnard [1964] AC 1129 at 1221 per Lord Devlin; Uren v John Fairfax and Sons Ltd (1966) 117 CLR 118.
The plaintiff’s slanderous comments can only have been made either with the intention to harm the defendant or recklessly indifferent to the likelihood that harm might result. Having regard to the nature of the parties’ relationship, as summarised at the beginning of this judgment, I find that the plaintiff’s ill will towards the defendant actuated the slanders. I find that the plaintiff was motivated by malice or, at the least, that his conduct was unjustifiable, improper and lacking in bona fides.
It would appear then that a condition permitting an award of aggravated damages has been made out. However, the relevant conduct of the plaintiff was of a limited or confined nature and ephemeral. The parties’ relationship was poisonous on both sides. The plaintiff was also the subject of a very serious defamation which he attributed to (but wrongly, as I have found) the defendant. Whilst this latter factor in no way justifies or excuses the plaintiff’s behaviour it does provide some explanation for his anger or frustration and preparedness to make the three unguarded, hurtful and defamatory comments that I have found were made.
I am not in this matter judging or awarding damages based on all of the plaintiff’s alleged behaviour towards the defendant.
With these considerations in mind, I am not persuaded that the plaintiff’s motives and conduct (relevant to the three acts of slander) aggravated the injury done to the defendant such that he would not be fully compensated by the general damages award I have decided to make.
As to the issue of exemplary damages, in my view, this is not a case which justifies such an award. The plaintiff’s conduct has not been sufficiently wanton, oppressive or contumelious. Furthermore, the compensatory damages that have been awarded are sufficient in themselves, in the circumstances of this case, to act as punishment for the plaintiff’s conduct and to deter such conduct in the future.
Pursuant to s39(3) of the District Court Act 1991 I award a lump sum of $2,000 in lieu of interest.
Orders
1. The plaintiff’s claim is dismissed.
2.The defendant’s counterclaim is allowed in part and I award damages payable by the plaintiff to the defendant, in the amount of $17,000, inclusive of interest.
I will hear the parties as to costs.
Appendix 1
Given the findings I have made above, P11 is unnecessary to the plaintiff’s case. I nevertheless provide the following short reasons for refusing its tender.
Counsel for the plaintiff sought to support its tender by reference to s45A of the Evidence Act 1929.
In R v Errigo[90] White J expressed the preliminary view that it was “not appropriate to describe the District Court as a business or its records as business records” for the purposes of s45A. His Honour found it unnecessary to express a concluded view on the question.[91] I too find it unnecessary to form a concluded view as to whether or not the Magistrates Court ought to be characterised as a business for these purposes and a transcript of its proceedings characterised as business records. However, I adopt the reasoning of White J and, with respect, agree with it. My preliminary view is that, for analogous reasons, the Magistrates Court is also not a “business”.[92]
[90] (2005) 91 SASR 80 at [89].
[91] Besanko J at [19] and Debelle J at [1] would appear to have agreed with White J on this point.
[92] In this respect, reference is made to s43 of the Evidence Act as being cognate to s42 referred to by White J.
However and in any event, even if P11 was to be properly characterised as a business record I would decline to admit it under s45A pursuant to the discretion afforded me by ss(2)(c). Mr Santamaria was available to and did give evidence.
The appropriate way to adduce evidence of what he had said during the Magistrates Court cross-examination was to put the matters to him resorting, if necessary, to the procedure laid down by s28 of the Evidence Act. If Mr Santamaria admitted that he had made each of the earlier statements in the Magistrates Court (as in fact he did, but for one of the entries in P4) that would be the end of the matter and there would be no need to and it would be inappropriate, to tender an out-of-court statement to the same or similar effect.
If in fact Mr Santamaria had refused to admit that he had made the statements on an earlier occasion it would then be incumbent upon the plaintiff to prove the accuracy of the transcript in P11 as a purported record of Mr Santamaria’s earlier statements. In the event that Mr Santamaria were to have denied that the transcript in P11 was an accurate record of his evidence on the earlier occasion, it may have become necessary to require P11 to be strictly proved.
However, as I have indicated, there were no such denials from Mr Santamaria in which case the best evidence of what he said on this topic in the Magistrates Court was the evidence given by him in this trial.
During argument consideration was also given as to whether or not the transcript was admissible pursuant to s34C of the Evidence Act. However, the essential requirement as set out in ss(4) was not made out on the evidence before me. I also note, but without deciding, that it is likely that ss(3) also would preclude the application of s34C.
An additional argument for admissibility put by counsel for the plaintiff relied on what was said to be an exception to the hearsay rule dealing with testimony from previous occasions; my attention was drawn to Wright v Doe d Tatham[93] and the discussion of the topic of admissibility of testimony given on former occasions in an early edition of Cross on Evidence.[94] To the extent that such an exception at common law exists it is hedged about by various protections[95] including the circumstance that the witness who gave the evidence on the earlier occasion is incapable of now being called (eg through death or illness). The requirements for this supposed common law exception have not been made out on the evidence before me; P11 remains hearsay and as the authors of Cross point out, the common law exception identified has largely been taken over by statute.[96]
[93] (1834) 1 Ad & E 3 at 22; 110 ER 1108 at 1116 (Ex Ch).
[94] Now contained in the 6^th Australian edition at [33,795].
[95] See Cross at [33,795].
[96] For example, ss34C, 45A and 45B of the Evidence Act.
Appendix 2
Subsection 13(1) of the Evidence Act provides:
If it is practicable and desirable to make special arrangements for taking evidence from a witness in order to protect the witness from embarrassment or distress, to protect the witness from being intimidated by the atmosphere of the court room or for any other proper reason, the court should, subject to subsections (3) and (4) order that special arrangements be made for taking the evidence of that witness.
Subsection (2) provides, in part:
The Court may, for example, make orders of the following kinds:
(a) …
(b)an order that a screen, partition or one-way glass be placed to obscure the witness’ view of a party to whom the evidence relates or some other person;
(c)…
The power to make such orders applies to both criminal and civil proceedings although, it would seem that such orders are made far less frequently in civil proceedings.
In Question of Law Reserved (No 2 of 1997)[97] the Full Court of the South Australian Supreme Court (Doyle CJ, with whom Cox and Williams JJ agreed) said this:
In my opinion a court is empowered to decide an application under s13 on such material as the court sees fit. That material need not be evidence, nor need it be material that would be admissible as evidence in the proceedings. In the usual case the court can decide an application, and should be able to decide an application, on the basis of information provided orally by counsel. In an exceptional case, the court might require some material, such as a written report, to substantiate a need attributed to a witness. In some cases, the court may be assisted by asking the witness a few questions, not on oath, for which purpose the witness might be placed close to the bench, just as some judges question potential jurors seeking an exemption from jury service.
The court should not allow the consideration of an application under s13 to cause a significant interruption to the flow of the case in which the matter arises. Of course, the court must hear submissions from both parties. But the decision is not to be made after some kind of mini trial or enquiry in which each side advances material and tests it.
In my opinion, in the usual case, having heard both counsel briefly, the court should decide an application by acting upon a plausible and reasonable request. A court does not have to embark on an enquiry and come to a conclusion on the balance of probabilities. It is sufficient that the request is plausible and reasonable. In an exceptional case, opposition to the making of an order might persuade the court that some further information or explanation should be provided. Opposition to the making of an order might persuade the court that it is not desirable to make the order. Everything would depend upon the circumstances. But the section is to be applied expeditiously, and without significant interruption to the flow of a case. …
It follows that when commonsense suggest to the court that the application is plausibly made, while the court must hear any opposition, the order will usually be made without any further enquiry, unless the reasons for any opposition to the order cause the court to have some doubts.
[97] (1998) 196 LSJS 195 at 198 ff.
In this case I acceded to the defendant’s request for a one-way screen to be placed between the witness Jack Santamaria and the plaintiff whilst Jack Santamaria gave his evidence. The effect of the screen was to prevent Jack Santamaria having eye contact with or being able to see the plaintiff. It did not impede either counsel or myself at all and we were able to observe Jack Santamaria giving his evidence as in the normal way. The one-way screen in use did not provide a completely unimpeded view of the witness insofar as the plaintiff himself was concerned. However, I was satisfied that the plaintiff was sufficiently able to observe the witness give his evidence and was not, in my opinion, prejudiced in any way, particularly in his ability to hear and understand the witness’ evidence, to observe the witness giving that evidence and to instruct his counsel with respect to the witness’ evidence.
I granted the application essentially on the basis of submissions put to me by counsel for the defendant and on the basis of my own understanding of the relationship between the plaintiff and the defendant and the defendant’s family, having heard a significant amount of evidence on that topic from both the plaintiff and the defendant as at the time the application was made.
As I have indicated in my reasons for judgment in this matter I have not made any findings as to where fault might lie with respect to the various allegations put by each party against the other arising out of their “relationship” as immediately adjacent neighbours. However, it was clear to me that there was a history of significant antagonism between the plaintiff and the defendant and the defendant’s family. I had heard allegations of violent behaviour emanating from the plaintiff towards members of the defendant’s family. I also had regard to the entries recorded in P4 involving the plaintiff and the defendant’s family and that (according to the defendant’s evidence) some of these incidents involved Jack Santamaria.
I was prepared to assume that Jack Santamaria had a reasonable apprehension as to, or concern for, his wellbeing at the time the various events between the parties referred to in evidence occurred.
I was also aware that the evidence proposed to be led from Jack Santamaria (who was only sixteen at the time of trial) was to the effect that he was at least partly responsible for the defamatory graffiti directed at the plaintiff.
In these circumstances I formed the view that Jack Santamaria in giving his evidence, face-to-face and in close proximity to the plaintiff, may well suffer embarrassment or distress which might have an effect on his capacity to give his evidence clearly and fairly.
I heard submissions from counsel for the plaintiff who opposed the application, but I was not persuaded that the use of a one-way screen in the circumstances would cause any prejudice to the plaintiff; I was satisfied that the requirements of ss(3) and (4) were met.

30/6/01	30/6/02	30/6/03	30/6/04	30/6/05
Trading Income (turnover)	74,294[77]	74,017	70,849	57,340	56,189
Cost of Sales [including goods for own use]	39,033 [795]	37,601 [850]	26,645 [4,680]	22,833 [2,430]	19,109 [2,500]
Gross Profit from Trading	35,261	36,416	44,204	34,507	37,080
Total Expenses [including wages]	35,384 [8,794]	33,296 [4,630]	42,094 [15,310]	26,850 [2,025]	30,423 [1,175]
Nett Profit from ordinary activities before tax	(123)	3,120	2,110	7,657	6,677[78]
Nett Profit plus goods for own use plus wages	9,466	8,600	22,100	12,112	10,352