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

1. 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.

2. 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.

3. 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…