Johnston v Aldridge - [2018] SADC 68

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
JOHNSTON v ALDRIDGE
[2018] SADC 68
Judgment of His Honour Judge Brebner
27 June 2018
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION
DEFAMATION - PUBLICATION - GENERALLY - AS CAUSE OF ACTION
DEFAMATION - OTHER DEFENCES
DEFAMATION - DAMAGES
Action in defamation
Plaintiff and defendant involved in planning dispute. Defendant published two Facebook posts concerning dispute and other subjects. First post attracted numerous comments.
Plaintiff pleads first post and comments carried imputations that plaintiff a selfish greedy man of contemptable character and second carried imputation that plaintiff made or was involved in threats to rape and kill. Defendant pleads first post not published in terms alleged, comments not published by him and relevant paragraph of second post not 'of or concerning' the plaintiff. Also pleads imputations not defamatory. Further pleads posts protected by defences of fair and accurate report of judicial proceedings and extended qualified privilege as identified in Lange v Australian Broadcasting Commission (1997) 189 CLR 520.
Plaintiff claims damages and aggravated damages.
Held:
1.Defendant's evidence on evidentiary issues in contention rejected.
2.Defendant published first post in terms alleged.
3.Defendant provided medium through which bi-lateral communication of comments occurred. Defendant therefore liable for comments as secondary publisher.
4.Relevant paragraphs of second post would be read by ordinary reasonable reader to be 'of and concerning the plaintiff.'
5.Relevant paragraphs of both posts and comments read as a whole would be taken by ordinary reasonable reader to carry imputations pleaded.
6.All imputations are defamatory in that they tend to hold the plaintiff up to contempt, scorn or ridicule.
7.Neither post a fair report of judicial proceedings. Both were comment not report properly so called.
8.Neither post protected in its entirely by extended qualified privilege. No temporal connection between relevant paragraphs of each post and balance of post. On proper characterization relevant paragraphs not concerning governmental or political matters properly so called and therefore not protected.
9.Award of aggravated damages warranted on basis that opinions expressed not honestly held and hurt exacerbated by unconscionable failure to make redress.
10. Damages assessed at $100,000 including aggravated damages.
Limitations of Actions Act 1936 s 37; Defamation Act (SA) 2005 ss 32-37; Criminal Law Consolidation Act 1935 s 19; Evidence Act 1929 (SA) s 67C, referred to.
Johnstone v Aldridge [2017] SADC 70; Fox v Percy (2003) 214 CLR 118; Duffy v Google (2015) 125 SASR 437; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59; Hines Exports Pty Ltd v Mediterranean Shipping Company SA (2001) 80 SASR 268; Grech v Deak-Fabrickant (No 2) [2015] VSC; Martine v Osborne (1936) 55 CLR 367; DF Lyons Pty Ltd & Ors v Commonwealth Bank of Australia 100 ALR 468; Driscoll v The Queen (1977) 137 CLR 517; Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; Poniatowska v Channel Seven Sydney Pty Ltd and Anor (No 4) [2016] SASC 137; Lee v Wilson & McKinnon (1934) 51 CLR 276; Murray v Wishard [2014] 3 NZLR 722; Oriental Press Group Limited v Fevaworks Solutions Ltd (2013) 16 HKCFAR 336; Lesses v Maras [2017] SASCFC 48; Sands v State of South Australia (2015) 122 SASR 195; Google Inc v Duffy (2017) 129 SASR 304; Sands v Channel Seven Adelaide Pty Ltd & Anor [2010] SASC 202; Sungravure Pty Ltd v Middle East Airlines Airliban S.A.L. (1975) 134 CLR 1; Bashford v Information Australia (Newsletters) Ltd (2004) 218 CLR 366; Chakravarti v Advertiser Newspapers Ltd (1988) 193 CLR 519; Rogers v Nationwide News Ltd (2003) 216 CLR 217; Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Cornwall v Rowan (2004) 90 SASR 269; Conservation Council of SA Inc v Chapman (2003) 87 SASR 62; Adam v Ward [1917] AC 309; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183; Carson v Johnson Fairfax and Sons Ltd (1993) 178 CLR 44; Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; Duffy v Google (No 2) [2015] SASC 206; Uren v John Fairfax and Sons Pty Ltc (1966) 117 CLR 118; Ali v Nationwide News Pty Ltd [2008] NSWCA 183, considered.

JOHNSTON v ALDRIDGE
[2018] SADC 68

This action in defamation originates in a development dispute. The plaintiff operated two fruit and vegetable shops. The defendant operated a pop-up farmers market. The defendant sought council approval to relocate his market. The plaintiff objected. The council approved the relocation. The plaintiff appealed. His appeal succeeded. The defendant published two Facebook posts about the dispute. He published the first shortly before the appeal was heard and the second soon after judgment was delivered. Numerous third parties added their comments to the first of these posts.
The plaintiff pleaded that the first post and the comments carried the imputations that he was a selfish greedy man of contemptable character and he pleads that the second post carried the further imputation that he had made, or was involved in, threats to rape or kill. He pleads that all three imputations are defamatory. In response the defendant pleaded that he did not publish the first post in the terms alleged, that he carried no responsibility for the comments and that the relevant passage of the second post was not of, or concerning, the plaintiff. He also raised the defences of fair and accurate report of judicial proceedings and extended qualified privilege in relation to each post. He does not plead response to attack.
The action succeeds. All three imputations are defamatory and all pleaded defences fail. I assess damages in the amount of $100,000. My reasons follow.
Proceedings
The plaintiff was represented by counsel. The defendant was represented by solicitors until shortly before the trial commenced. He then acted on his own behalf throughout the remaining pre-trial proceedings and the trial itself. The plaintiff gave evidence. He also called an intelligence technology consultant named Velanas and some formal witnesses. The defendant also gave evidence. He also called his wife, a Mr Cook and a Ms Evans to verify some aspects of his evidence. The defendant did not always express himself with precision and it will often be necessary to quote him to avoid misunderstandings. He did not always observe the distinction between evidence and submissions in that he sometimes sought to supplement his evidence with assertions of fact in his oral and written submissions. Whenever his supplementary narratives could be treated as submissions I have regarded them as such. I have otherwise observed the appropriate distinction. He published many posts and emails concerning the dispute over and above the allegedly defamatory posts. It will be necessary to quote many of them for their potential to provide insight into his attitude and his intentions and beliefs.
Reasons
Whenever I speak of proof of a matter in issue I will always be meaning proof on the balance of probabilities. All emphases by way of underlining is mine.
I have not mentioned each and every discrete item of evidence and nor have I mentioned every submission the parties put. I have done this in the interests of economy otherwise these reasons would have been far too long. I have in fact considered the evidence in its entirety and considered each submission which was put to me. The evidence I have not mentioned lacks the capacity to impact on any of the findings of fact I have made. The submissions of the defendant I have not mentioned are either subsumed in other submissions he made, or based on misapprehensions of the principles engaged and thus lacking the capacity to effect any of my findings or conclusions.
Pleadings
The defendant’s then solicitor filed the defence some 12 months before the trial commenced. Shortly before trial the defendant sought leave from another judge of the court to amend his defence. His application was rejected: See Johnstone v Aldridge [2017] SADC 70. At the close of the plaintiff’s case he made a further application to amend his defence which I rejected and then during the course of his closing address he made an application to re-open his case which I allowed. Some months after I reserved judgment, he made a further application to re-open which I rejected. I will give my reasons for determining these applications in the way that I did during the course of these reasons.
Defamation
Defamation is the publication of material carrying imputations injurious to the reputation of another. Publication occurs if a person participates in the communication of the relevant material either as a primary or secondary participant. The tests of whether the published material carries the imputation alleged and whether it is defamatory are objective. There are a number of recognised defences.
Facebook
It will be convenient to commence with the operation of Facebook. The relevant evidence came primarily from Mr Velanos. The defendant did not challenge his qualifications and it is sufficient to say that he was adequately qualified by study and experience to express his opinions on the topic.
Facebook is an internet social network platform. Registered users are issued with a homepage, and they choose their own individual login and password. A homepage is referred to as a profile or a page. Users can publish messages or announcements on their profiles. Such messages are referred to as posts. Posts can only be created, published, edited or deleted by the user or some other person armed with the login and the password. Posts can nonetheless be read on the internet and readers can publish their comments about a particular post in a word box which appears on the face of the post for that purpose. A person offended by posts or comments can notify Facebook through the links provided on the face of the profile.
Users can become Facebook ‘friends’ and posts can be ‘liked’ or ‘shared’ by activating the appropriate commands. If a post is ‘liked’ the person who made the post will be notified that the post has been liked, and by whom. If a post is ‘shared’ that post will appear on the person’s profile who did the sharing and their ‘friend’ will be able to see the material.
The date and time a post or a comment is published is automatically stamped at the head of the particular publication. Facebook maintains an electronic record of every activity which occurs on a particular profile or post including a record of every post and the date and time it is published and the number of times it is ‘liked’ or ‘shared.’
Posts can be edited. The edited version will then appear on the face of the profile and the original will be retained in the activity log and can subsequently be retrieved if one knows the correct steps to follow.
Only a user or someone armed with the login and the password can create and publish posts on a particular profile. Similarly, only the user or someone with the necessary codes can edit or delete posts published on that profile. If a post is deleted any editing which has occurred and any comments which have been posted are deleted along with it. If an unedited post is deleted no record is maintained. However, if a post is edited a record is kept of both the original and the edited versions. Images of documents displayed on a computer screen can be photographed, retained and printed. Such photographs are called ‘screenshots.’ The date and time function of a computer ordinarily appears in a display along the lower margin of the screen called a taskbar. The taskbar is automatically included in any screenshots. The taskbar may or may not accurately reflect the time the document is created or called up on the screen. It is a simple matter to alter the date and time function of the computer before taking a shot thus creating a false impression about when document was created or downloaded onto the screen. The potential for mischief is obvious.
I will outline more about Facebook in the context of the issues in due course.
Facebook posts often carry photographs or identifying logos. Mr Velanas said that it would be a relatively quick and simple task to create a facsimile version of a person’s profile.
Narrative
The relevant sequence of events commenced in or about May 2015. The plaintiff was then the owner of two retail fruit and vegetable shops in the Salisbury area trading as George and Ben’s Fresh Food Market and Golden Fresh Fruiterers respectively. The defendant operated a pop-up farmers market trading as Farm Direct Community Markets at the Parafield Airport. His market offered primary producers a venue where they could sell direct thus eliminating retailers such as the plaintiff. There was no pre-existing animosity between them. They both operated Facebook profiles called ‘George and Bens Fresh Food Market’ and ‘Mark Aldridge Independent’ respectively. The defendant also operated a profile for the purposes of his market called ‘Farm Direct.’
The defendant describes himself as a political activist and he has contested several Federal and State elections as an independent candidate. He attempted to link his actions to his political activities whenever he could throughout his evidence. He said his market was ‘of a political nature’ and that his personal his personal profile was ‘very political’.
In early 2015 the defendant decided to relocate his market. He announced this in a post of 13^th May.
The defendant required council approval to relocate. He was granted temporary approval to trade at the new location pending determination of his application. On 10^th June the plaintiff lodged an objection to the proposed relocation on the grounds that the defendant’s market was not a farmer’s market properly so called and because his turnover had suffered a downturn since the defendant commenced operations at the new location. His objection is confined in its terms to the defendant’s market.
The defendant said that some of his stall holders and their customers were upset by the plaintiff’s objection. He said the council had advised him to attempt to negotiate with any objectors and so on 12^th June he emailed the plaintiff in conciliatory terms. The plaintiff said he did not respond because he simply did not get around to it. The defendant said he then made a number of unsuccessful attempts to contact the plaintiff.
It is plaintiff’s case that from then on the defendant used Facebook as a weapon to pressure him into withdrawing his objection and then to abandon the appeal he ultimately launched. The defendant denied any such suggestion.
On 12^th June, the defendant sent a second email to the plaintiff in these terms:
Subject: Please can we have a chat?
I have phoned your mobile several times, your shop number and visited your shop, and still no contact, if you are not interested in working together, I will have to let my supporters, customers and followers know this fact and that you want us closed regardless of any offer we make to work with and support you.
Please do not hold me to account for their actions.
Mark
The plaintiff did not respond to this email because he found it concerning. Indeed it is easy to see why he might have regarded it as a veiled threat. He said he did not respond to the defendant’s later attempts to contact him for the same reason. The defendant said that the email was a warning not a threat in ‘respect to the online comments and offline comments about the anger of those many thousands of people who used my market’ and that by this time there was a degree of public unrest and ‘backlash’ over the plaintiff’s objection. He also said there had been online discussions about organising protests and that he had become concerned about what his ‘political supporters may do’ in the sense that he was concerned that some of his supporters might engage in inappropriate actions and that he ‘was trying to keep the lid on things’ at around this time.
On 15^th June the defendant published a post which he described as an overview of the issues he was facing in his endeavours to relocate. He said it was for the information of his ‘supporters’ and he hoped the plaintiff would read it. It reads as follows:
Farm Directs Future includes some immediate issues, here is an overview.
We have all but completed with all Development planning issues, and were about to receive final approvals and make any changes necessary, in the most are Internal traffic flow and parking, which are all ready to be sorted, until then traffic flow signs and our new parking area are stuck on hold.
…
There are 3 applications that have put stop to final approvals, even though they do not have the ability to stop us in the long term, they do hold up the approval process, and even see me have to lodge applications with the courts, an un-necessary waste of time and resources.
One is a simple parking issue relating to a street a km or two away, the other two are other local fruit and veg shops, well one local and one a long way away.
One is a local show that thought we were the non compliant site and it appears has been misled on purpose, the other simply refuses to answer the phone or enter into discussions, his application is nasty and unfounded, accusing us of selling animal quality food and that our stall holders sell rubbish and are non-compliant, it feels at this stage that his application is simply to shut us down.
His shop is called “George & Ben’s Fresh Food Market” and is in Pooraka, (1181 Main north road) I dropped in today, left my details and have tried emails and calls for days, his application does not want competition and wants all our markets to shut down other than Gepps cross and the Adelaide produce market.
His information was part reason we endured the made media.
His application is available to the public, council can provide a copy, his contact details are also allowed to be published if anyone can get through to him, I am still more than happy to try and work with him.
What this situation causes is for our application to be frozen and go before a development board, which won’t sit until late July, and then we have to wait a few weeks after that, his application will have no other affect than tying up our markets approvals and final infrastructure works.
It is sad that development applications can be played with like a game, and that self-interest of one person can affect the lives of so many, we have co-existed for years without a single issue, and just because he can’t deal with the true pop up market, destroying ours will do.
If he will not retract his application, we will trade on 27^th, be served a notice which I will be forced to lodge a stay in the courts and then drag him into the development court. In the mean time I will lodge a civil action against him on several grounds including the defaming of our stall holders.
This should keep us trading until the courts can dismiss his application. Development courts do not stop development applications based on issue of competition, not sure the councils should be forced or are forced to allow this to happen either.
…
I will do anything in my powers to stand behind our farmers and producers, as every knows, so will head to the courts later this week.
Mark
It is plain from the terms of the post that the defendant regarded the plaintiff as at least in part responsible for the delays and that he is claiming that the plaintiff’s objection is couched in objectionable and inaccurate terms and that it seeks closure of the markets.

The post attracted a number of comments. Indeed the defendant added a comment of his own in apparent response to one of them stating that the plaintiff was a ‘moron’ and that the dispute was based on pure greed and he hoped that the plaintiff had ‘deep pockets.’ He also said he was hoping that the plaintiff would desist from defaming him online ‘without the need for any further interactions.’ He agreed that the accusation in his post that the plaintiff was selling animal quality food was incorrect and that this was a mistake on his part. He denied that the post was an attempt to put pressure on the plaintiff and he said that he had become confused by the plaintiff’s motives. On their face these statements do not sit comfortably with the terms of the plaintiff’s objection.
By this time there was a degree of public interest in the dispute. Posts were being published about the matter and articles were also appearing in the mainstream media. The defendant said some of these posts and articles were critical of him and that the plaintiff was also making statements critical of him. He said he was concerned his political standing might suffer. The following media articles provide examples and the defendant said that some of his beliefs which underpinned what he ultimately published were based in part on what he read in the media.
On 14^thJune, the following article appeared on the website of the Adelaide Advertiser.
June 14, 2015 11.08am
A FRUIT and vegetable war is brewing as greengrocers campaign against the expansion of side-of-the road produce markets claiming they are slashing trade and killing retail stores.
In a battle which has similarities to the pop-up bar controversy that dogged city pubs, greengrocers want a halt to the growth of temporary markets popping up across Adelaide and are calling on authorities to toughen regulations of the industry.
…
Some greengrocers have seen their trade fall by up to a third on days the markets are open.
…
Ben Johnston, who runs George and Ben’s Fresh Food Market at Pooraka, says his turnover has fallen $1000 on Saturday since the new Farm Direct Community Market started trading at the Old Spot Hotel, Salisbury Heights a month ago.
‘I don’t have an issue with competition … but we spent over $100,000 doing up our shop five years ago and you can sell your produce from the back of a carpark’ he said. ‘It’s not a level playing field.’
Mr Johnston, along with Salisbury City Fruit Bowl owner, Nghia Lam, have lodged opposition with Salisbury Council to the Farm Direct market which is seeking development approval for a permanent base at the hotel.
The markets, founded by Mark Aldridge, also operate at Northgate and Gawler and plan to open at Marden, Munno Para and Blakeview.
...
On 17^th June, an article appeared in the Northern Messenger weekly newspaper. The article was in similar terms to the Advertiser article of 14^th June. It does not attribute any particular motives or intentions to the plaintiff.
The defendant said that what he described as a hate page about him appeared on Facebook in about June or July. He said this caused him some concerns and the media sought his response which in turn led to ‘quite a few publications coming out.’ He thought the administrator of the plaintiff’s Facebook account was responsible. The relevance of this will become apparent in due course.
On 21^st July, the council approved the relocation. On 5^th August, the plaintiff lodged an appeal. The defendant eventually read the notice of appeal. He said he was upset about its implications. He thought its object was to prevent him trading at the new location and he wanted it to go away and he thought he would be able to continue at the new location if the plaintiff discontinued. The appeal was heard on 8^th December 2015, or about two weeks after the first of the allegedly defamatory posts was eventually published.
The post attracted a number of comments including some in the name of one Angel Barton. They label the defendant a liar and a fraud and a comment in the name of George and Bens mentions what was ultimately referred to as ‘the pumpkin scam.’ The plaintiff agreed that he was the author of this comment and he said it was a reference to a deception practised on the public by Farm Direct. The defendant submitted, as I understand him, that this reflected on the plaintiff’s attitude and character and it seems implicit in his submissions that this assertion (and others) provided him with some sort of justification. In any event he did not plead response to attack and any criticism or comment made about his alleged participation in any illegalities or sharp practices are not relevant to any pleaded defence. The rights or wrongs of the pumpkin scam thus do not arise for determination and the matter is simply irrelevant.
In any event the defendant said the institution of the appeal re-ignited public debate and media interest, including ‘heavy political debate’ and comment from Mr Parnell MLC. In this context the defendant said the market was ‘his baby’ and that the appeal might have political ramifications for him and he wanted to maintain his standing.
On 12^th August, he published another post which in effect stated that the plaintiff and others had hired a legal team to close down community markets to protect their trade, that other markets would be forced to close if they succeeded, that those involved were ‘greedy and short sighted’ and that as they are rather wealthy ‘it is about greed.’
The defendant denied publishing this post in an attempt to pressure the plaintiff into abandoning the appeal and he said he wanted people to think that he was doing all he could to support the continuation of the market at the new location. He nonetheless conceded that he was ‘hoping there would be pressure on (him, meaning the plaintiff) to reconsider his position’ and he said he regarded the institution of the appeal as financially motivated and morally wrong. The plaintiff nonetheless maintained his appeal. The defendant said he was not annoyed by the plaintiff’s persistence.
This post also attracted comments. Some were critical of the plaintiff and couched in derogatory terms. The defendant posted some responsive comments including two which described a person who must have been the plaintiff as ‘a moron.’
On Wednesday, 2^nd September, the defendant published a post concluding with the word ‘you have until Friday to back away from stopping supply to our wholesalers and stop court actions, or it is game on’ He said that this did not relate to the plaintiff however, he did not say to whom it did. It is nonetheless instructive about the terms he was prepared to use in reference to those who had apparently raised his ire.
On 8^th September, the defendant published a post calling on those ‘that support my endeavours with the markets’ to provide him with a photograph of the plaintiff and to assist him to ascertain the details of the plaintiff’s other interests in the industry. He also asserts in the post that the plaintiff was spending lots of money to shut ‘my markets’ and that this ‘means he is trying to destroy over 70 small farms and producers, people that rely on myself and my markets to survive.’
He said he published this post to inform ‘those who were interested in the controversy’ and that he was attempting to find out as much as he could about the plaintiff in order to discover ‘who was driving the push behind closing my markets.’
The post attracted numerous comments and the defendant again added some responsive comments of his own. The post and the defendant’s comments were headed by a personal icon and the date and time. Some of the third party comments were similarly headed. One person provided the plaintiff’s business name and ABN number in reply, another provided an ABN number and a third referred to the plaintiff as ‘a scumbag.’
The responsive comments
The number of responsive comments the defendant was said to have made on the post became contentious and ultimately relevant to his credit. It will be convenient to deal with this issue before proceeding with the narrative.
This dispute originated in the opening address of counsel for the plaintiff, Mr B. Doyle. In opening on 1^st May 2017, Mr Doyle alleged that some of these comments provided evidence of malice. A copy of the post and the comments which had been downloaded and printed about a week before the trial commenced was then provided to the defendant. Mr Doyle tendered the download the following day. The defendant said he read the download overnight and he had thought that the disputed comments were out of character. He did not dispute publishing the post and a number of innocuous responsive comments but he nonetheless denied publishing the comments Mr Doyle identified (the disputed comments). In the meantime a second copy of the post and the comments was downloaded on the morning of 2^nd May. Mr Doyle also tendered this second download. The disputed comments appear in the first download but not the second. The conclusion that someone deleted the disputed comments before the second download was printed is inescapable. Collectively the disputed comments are self-evidently hostile towards the plaintiff and critical of him. It is also self-evident that the plaintiff’s case on malice would be eroded, albeit to no great extent, if he was unable to rely on the disputed comments.
The defendant denies deleting them in an attempt to sabotage the plaintiff’s case. His friend Mr Cook said that he read the disputed comments at a time which I take to be soon after they were originally published and he conceded that he had no reason to doubt that they were in fact the defendant’s work. He then qualified this by saying he cannot be certain and that fraudulent posts and comments created by others have appeared in the defendant’s name on a regular basis.
If the defendant neither published nor deleted the disputed comments he has been the victim of an unfortunate and remarkable coincidence. He says none of the disputed comments came to his attention before he was provided with the copy on the first day of the trial. Given that he must have read at least some of the third party comments before publishing his responses, it is surprising that he did not notice at least some of them. Moreover, if the disputed comments are the work of a forger then he or she would have had to uplift the defendant’s icon and photograph from one of his posts in order to use them to make facsimiles of his post in order to attribute the comments to him. I should point out however that Mr Velanas says that this is technically possible. The forger, or some other third party, would then have had to have gone to the further trouble of deleting the disputed comments and it is hard to see why the forger, or anyone else would want to remove their own handiwork or how they would know it was a strategic time to do so. Moreover the defendant’s evidence on this issue was unsatisfactory and dotted about with prevarication. In assessing his evidence on this discrete issue I have also taken into account findings adverse to his credibility which I have made in other contexts and which I will come to in due course. Notwithstanding Mr Cook’s evidence, the inherent probabilities of the circumstances are that the defendant published and ultimately deleted the disputed comments. Indeed, if anyone had a motive to delete them, it is he.
Narrative continued
To return to the narrative: One of the disputed comments reads as follows:
He is never at George and Bens, and is at their other fruit and veg store at Golden Grove, so need someone to stake out George and bens photo whoever enters through the back I suppose and follow them if needed. I will track him down and find all his businesses and return the favour of doing all in my power to close him down, old fashioned, an eye for an eye.
The inference that the defendant is losing patience with the plaintiff and is contemplating drastic measures to achieve his own ends is probable.
The plaintiff also published a post of his own on the George and Ben’s profile on 8^th September. Whether he published it before or after the defendant published his post of the same day is unclear. In essence he said that he will not be engaging in any ‘personal slinging matches via Facebook,’ that all he wants is a level playing field, that he will not be intimidated into backing down and that all he asks is to be allowed to exercise his ‘democratic right’ to pursue his appeal on behalf of other greengrocers ‘facing hardship over this battle’.
The plaintiff said that by the middle of November he was finding some of the posts and comments which were appearing on the defendant’s profile to be ‘concerning and hurtful’ and he began taking steps for his own safety as a result. In the light of the defendant’s email of 12^th June and his publication of some of the plaintiff’s personal details and his apparent attitude towards him, this is understandable.
The defendant said that he and his wife received a number of threatening telephone calls over a period of about two months in or about August and September. His wife confirmed this. He said that there were two callers and one of them revealed who he was and he did not connect the threats to the plaintiff.
In any event the media interest continued and on 14^th October, an article headed ‘Farmers’ markets face legal challenge in Adelaide Development court’ appeared on The ABC News website. The article stated that the plaintiff’s appeal might affect the future of farmers markets and it quotes the defendant as saying the plaintiff’s argument could have far-reaching consequences for the continuation of other markets if it were to succeed.
This article appears to have then been updated and on 17^th October, the topic was again raised on the ABC website. This article speculated that ‘a legal fight’ (plainly a reference to the appeal) might affect the future of popular farmers markets and quoted the defendant as saying that if the appeal were to succeed a ‘precedent affecting other farmer’s markets might be set’ which could in turn have ‘far-reaching effect on these markets continuing’.
The defendant sought to demonstrate that the plaintiff’s attitude towards him was hostile with a screenshot of what he claims is a post published on the George and Ben’s profile on 18^th October. The screenshot reads:
There has been an increasing amount of false information, allegations and even threats on Facebook in the last few weeks from my action to close his markets.
Aldridge’s markets don’t pay taxes, they are not Farmers, and they buy produce from wholesale markets. Since Aldridge opened his new market in Salisbury, my shop has been losing $1000 every Saturday.
Mark Aldridge’s greed knows no bounds; he is all about money, not support of local farmers.
My action to close his market is backed by many local growers, most are unwilling to speak up due to backlash and threats from Aldridge and his supporters.
The screenshot is headed with an icon reading ‘George & Bens Fresh Food Market’ followed by the word’s ‘work and money.’ The defendant said he read this post at the time and that someone forwarded him a screenshot of it some months later.
The plaintiff said he did not write the words appearing in the shot and in any event he says it does not appear to have been ‘put up’ on his profile. It is nonetheless to be observed that the terms of the post confine his intentions to closing the defendant’s market and do not suggest that he had it in mind to close markets on a broader scale to achieve his ends. Even if the plaintiff or someone connected with him published this post, it is irrelevant for the same reasons as the post about the pumpkin scam.
On 21^st October, an article headed ‘Fruit and veg fight’ appeared in the Northern Messenger. The article mentioned the appeal and quoted the defendant as saying ‘the case stemmed from competitive tension’. The article does not suggest that there would be ramifications for any other markets if the appeal were to succeed.
The defendant’s beliefs
I have summarised and quoted some of the media articles because the defendant said they contributed to his beliefs about the plaintiff’s motives and intentions and the potential ramifications of the appeal. His beliefs are relevant to a number of his contentions including, the issue of whether he honestly believed that which he published was true. It will be convenient now to deal with some of his evidence in those regards as a prelude to the evidence about the allegedly defamatory posts before returning to the topic in greater detail during my final analysis.
At some stage the defendant had urged his supporters to boycott the plaintiff’s shops because as the plaintiff was intent on closing him down, therefore, it was only ‘fair’ for him to ask his ‘supporters to do the same’ even though there were potential financial ramifications for the plaintiff. By what must have been about mid-October he still wanted the boycott to continue. He said that by then he regarded the plaintiff as ‘greedy’ because ‘he wanted to shut other businesses for self-interested profit’, however, he denied that he was intent on painting the plaintiff in a bad light by asserting that he (the plaintiff) was intent on closing down all farmers markets. It is to be observed that his stated belief is contrary to the intentions attributed to the plaintiff in the post of 18^th October.
In this regard he said he also came to believe that success of the appeal would spell the end of all farmers markets including his own and that he read a number of posts suggesting that his view was shared by others. To confirm this he tendered a screen shot of a media article claiming that the plaintiff was ‘pushing’ to close farmers markets in South Australia because his profits were falling. The article is short and speculative and quotes no sources. The shot is dated 4^th May 2016 but the actual date of publication is unknown.
The defendant said that he had discussed the appeal with Mr Parnell and a Ms Schute. Mr Parnell is a former solicitor experienced in development law who is now a Member of the Legislative Council and Ms Schute is the solicitor who was acting for the council in relation to the appeal. The defendant said they told him there ‘could’ or ‘would’ be nationwide ramifications for markets if the appeal were to succeed. He said that by this stage he still believed that the council’s decision would stand and he would be free to continue trading at the new location if the plaintiff abandoned the appeal. It will be seen that some of his evidence about his beliefs was not entirely consistent.
The first post
It is against this background that the first of the allegedly defamatory posts is said to have been published. It can be seen from the foregoing that the plaintiff was showing no inclination to discontinue and, if the defendant’s posts and comments are anything to go by, his attitude towards the plaintiff was overbearing, dismissive and contemptuous.
The plaintiff alleges on the pleadings that the defendant published the first of the allegedly defamatory posts on his personal profile on 25^th November, 2015 at 1.05 pm (the relevant time). He alleges that the defendant published the post in the following terms:
UPDATE ON BENJAMIN JOHNSTONS LEGAL ACTION TO CLOSE FARMERS MARKETS IN AUSTRALIA.
Ben Johnston owner of George and Bens at Pooraka and golden Fresh fruit and veg in the Golden Grove shopping centre is intent on closing Farmers markets in Australia through an action I am fighting in the ERD Court (Environment and Development court)
All avenues to work with Ben since day one have failed due to his refusal to even talk, so it is all about closing markets to improve his sales, rather than improve his business model.
If this greedy man wins, the precedent will affect all Farmers Markets, road side vendors, general markets, even community events and fetes.
Farmers markets were around long before Supermarkets and Grocery stores, and even how (sic) they add hundreds of millions of dollars to the economy and help keep our smaller farmers and producers on the land.
I will be taking a few days of (sic) to ensure I can put the best argument forward in early December and the council’s Legal team will do the same.
The argument currently being debates, (sic) is based around the term “Shop” and “Premises” V’s Markets and Stalls, with the intent every stall becomes a shop and every premises becomes capable of becoming a shopping centre, and there for (sic) are illegal under development law.
With that, stall holders insurances may become invalid, fundraising events, special events and the general use of open land is being debated in such a way as to affect many.
After visiting his FB page for George and Bens, and going by media reports to me, the support for his position is backed by other players in the grocery industry; including the wholesale trade, rather than name people, go look at who likes his posts that relate to asking for support for his legal action.
I believe once you know who is behind the action, you will better understand why, some big players names are supporting this man.
Farm Direct operates a few markets and has more to open, subject to the outcome of this action, but there are hundreds of successful markets all over Australia that may be affected by this action, meaning thousands of jobs, farms and small businesses lively hoods (sic) are at stake.
I am now in possession of the outline of argument if any legal minds would like to offer their support and or go over my research, because this is not just about me, it is not just about my stall holders, it is about the future of Markets and community events of every kind in Australia.
I would like to note a few serious concerns, one is the media, who all know about this, and consider it of no community concern, the attorney general Rau, who is in charge of development legislation, has refused to respond and the lack of support from the other Australian markets that might be concerned.
If I lose the case it will not affect me financially at all, in fact I will be better off, but thousands of good hard working Australians will lose, they will lose jobs, farms and businesses, and that is the very last thing we need in Australia right now.
Political mediocrity is already killing our manufacturing and our ability to even feed ourselves as a nation, so when we step up as a community to protect the little guy, through avenues like markets, it is left to us to fight battles like this, so consider spreading this post, and include your own words of support, contacting John Rau, and even letting Ben Johnston and his supporters know how you feel, by phone, email or boycotting their businesses.
Mark Aldridge
Founder of Farm Direct community markets

I will refer to this as a ‘the original version’ or a ‘post in the terms alleged.’ I will refer to the words emphasised as ‘the relevant words.’ The defendant admits on the pleadings that he published a post ‘of and concerning the plaintiff’ at the relevant time. The plaintiff pleaded that this post included the relevant words. The defendant denied on the pleadings that the post included the relevant words save and except he admits it included the final words emphasised ‘if I lose the case … thousands of good hardworking Australians will lose, they will lose, jobs, farms businesses.’ Irrespective of the terms in which the defendant published his post, I will refer to it as the ‘first post.’ In light of the way the evidence unfolded, all this terminology is unavoidable. In relation to the first post the claim turns on whether the plaintiff has proved that the post the defendant published at the relevant time, included the relevant words.
The plaintiff also pleaded that the relevant words carry the imputations that the plaintiff ‘in attempting to close all farmer’s markets is a selfish greedy man’ (the first imputation) and that the plaintiff ‘is a person of contemptible character’ (the second imputation).
The proof offered by the plaintiff that the defendant published the first post in the terms alleged was somewhat complicated and it will be necessary to go over it in some detail.
The plaintiff said he visited the defendant’s personal profile on the 25^th November, 2015 and read a post which mentioned the Environment Court, called him greedy and asserted that he was intent on closing all farmers markets in Australia. He was not asked to identify a copy of the post while he was in the witness box however; the terms of the posts he describes are, as far as they go, not inconsistent with the original version set out above.
Importantly Mr Velanas’ says posts are automatically stamped with the date and time of their publication. If a post is subsequently edited then the original will be removed from the face of the profile and retained out of sight on the activity log. The edited version will then be displayed on the profile in its place. The edited version will nonetheless retain the same date and time stamp as the original. In other words the edited version will give the impression that it was published at the time the original was in fact published whereas the reality is otherwise. If one follows the correct steps the original can nonetheless be recovered from the depths of the activity log and read in its original form.
Mr Velanas analysed the defendant’s personal profile and its activity log. His methodology was not challenged. He expressed a number of opinions about the history of the first post which can best be dealt with in stages. These opinions are also unchallenged. He said he discovered that a post was published on 25^th November 2015 at 1.05pm and subsequently edited on 2^nd December at 3.21pm (the editing). Consistently with the ordinary operations of Facebook, the edited version was visible on the face of the post stamped with the date and time the original was published while the original lay out of sight in the audit history.
Mr Velanas copied a portion of the original post. He also copied the edited version. He included the copies in his report. The copy of the original is incomplete. As far as it goes, the copy is in the same terms as the first post set out above. It is also of the same general appearance and runs to about three quarters of the original version and includes all but the final sentence of the relevant words. He repeated the exercise with identical results the day before he gave evidence.
The plaintiff published a response to the defendant’s post of 25^th November later that day. He published it on the George and Ben’s profile page and it reads as follows:
Firstly, Thank you to the people who have commented and have taken the time to educate themselves with the facts, not hearsay.
For those of you who don’t quite understand why we stand opposed, to the Farm Direct Market’s, this article sums it up perfectly:….
what is a farmer’s market – Best practice famers’ markets are food markets where the stallholders are the farmers, their families or farm staff.
…
The list of South Australian GENUINE Farmer’s Market’s are listed in the pic accompanying this thread. Please note, Farm Direct are not considered to be a Farmer to customer direct. … in a Farmer’s Market capacity if they choose to, and your right to shop there weekly. You should meet the wonderful grower’s who are proud of their product.
In the case of Farm Direct Old Spot Market, they are not genuine Farmer’s (sic) Market’s. The fruit and vegetable sellers are onseller’s, who buy from the same place as I do. No farmer’s (sic) in sight??? You are being cleverly misled with a play on words.
Our court action is not intended to put a stop to local kind’s hosting fetes and other community events utilising stalls and tressle (sic) tables. THIS WILL NOT HAPPEN!
That argument is being used unfairly to create hysteria and uproar.
In 2013 when Mark’s Enfield location was forced to cease trading, no fetes or community events were affected then. They won’t be in this instance.
…
Again, this is not about hurting the Farmer’s (sic), I am passionate about our industry and the wonderful produce we are blessed with in this country.
I want the same rules that apply to me, to apply to the wholesaler’s (sic) who set up shop at the Old Spot Market’s.
Respectfully,
Ben Johnson
George & Bens
The defendant said he regarded this post as offensive and defamatory.
Irrespective of the precise terms in which it appeared, the defendant’s post of 25^th November soon attracted numerous comments. They too are said to be defamatory.
The defendant travelled to Bali on 28^th November, in order to prepare for the appeal. He was heavily involved in bushfire relief activities in his local area from about mid-afternoon on 25^th November until his departure and he had little time for Facebook during this period. He delegated the management of his personal profile to his wife and Ms Evans so they could monitor his page during this period and the period of his absence and delete any comments which were contrary to his ‘policy directives’, or otherwise inappropriate or abusive.
The defendant consulted his solicitor. Further to the proof of the precise terms in which the defendant published his post of 25^th November, and on 27^th November, a solicitor navigated his way to the defendant’s profile where he located a post apparently published by the defendant at the relevant time. He then saved the post to his own profile, took a screenshot and printed it. The reproduction is not perfect in that the last line of one page of the printout straddles the first line of the second however, if the two lines are read together the shot can be seen to be in the same terms as the corresponding line in the original version and that the shot includes all of the relevant words.
The plaintiff’s solicitor then emailed the defendant a letter of concerns attaching a copy of the post. The letter is dated 1^st December 2015. The copy of the post is time stamped 25^th November at 13.05. This date and time appears at the head of the post itself and not on the taskbar. Save for a few words which are indiscernible on the copy, it is the terms alleged and includes all of the relevant words.
The defendant said he received the email and the letter at about noon on 2^nd December while he was still in Bali. The letter complained that the defendant published a ‘wall post’ on his personal profile at 1.05pm on 25^th November 2015 which was defamatory of the plaintiff. The letter then informs him that the allegation was that the post carried the imputations that the plaintiff was intent on closing all farmer markets in Australia and that he was greedy. The letter further informs him that the imputations arose from the whole of the post and from certain words in particular. The relevant words are then quoted save and except the final sentence of the words emphasised.
Finally, the letter warns the defendant that proceedings would be commenced unless he removed the offending materials within 12 hours and otherwise made amends.
The letter also alleges that on or about 29^th November 2015 the defendant published another defamatory Facebook ‘group’ which I will refer to as the ‘Boycott Bens’ post. This allegation did not procced and it is common ground that the defendant did not publish this particular post. The defendant nonetheless submits that it is relevant to demonstrate good faith on his part in that he says he contacted the publisher and arranged for the post to be removed and, as I understand him, has bearing on the probabilities of whether he would deliberately malign the plaintiff.
The terms of the letter are clear and unambiguous. The defendant cannot have been in any doubt about precisely what he was said to have published, when he was said to have done so and how his publication was said to be defamatory. Indeed he does not say otherwise.
The defendant said he remembered receiving the email and reflecting on it a few hours later. He said when he read the post he ‘thought that there were a couple of comments or words in there that I didn’t think I would have used in a public post.’
It has been seen that Mr Velanas says the post he located on the defendant’s profile was edited at 3.21pm on 2^nd December. This was a matter of a few hours after the defendant said he received the email, the letter of concerns and the copy of the post. The implications of the timing are self-evident. After editing, the post appeared on the face of the defendant’s profile in these terms (the edited version):
UPDATE ON BENJAMIN JOHNSTONS LEGAL ACTION TO CLOSE FARMERS MARKETS IN AUSTRALIA.
Ben Johnston owner of George and Bens at Pooraka and Golden Fresh fruit and veg in the Golden Grove shopping centre has taken an action which if successful could close many Famers markets in Australia through an action I am fighting in the ERD Court (Environment and Development court)
All avenues to work with Ben since day one have failed due to his refusal to even talk, so it is all about closing our market to improve his sales, rather than improve his business model.
If this man wins, the precedent could affect all Farmers Markets, road side vendors, general markets, even community events and fetes.
Farmers markets were around long before Supermarkets and Grocery stores, and even how (sic) they add hundreds of millions of dollars to the economy and help keep our smaller farmers and producers on the land.
I will be taking a few days of (sic) to ensure I can put the best argument forward in early December and the council’s Legal team will do the same.
The argument currently being debates (sic), is based around the term “Shop” and “Premises” V’s Markets and Stalls, with the intent every stall becomes a shop and every premises becomes capable of becoming a shopping centre, and there for (sic) are illegal under development law.
With that, stall holders insurances may become invalid, fundraising events, special events and the general use of open land is being debated in such a way as to affect many.
After visiting his FB page for George and Bens, and going by media reports to me, the support for his position is backed by other players in the grocery industry; including the wholesale trade, rather than name people, go look at who likes his posts that relate to asking for support for his legal action.
I believe once you know who is behind the action, you will better understand why, some big players names are supporting this man.
Farm Direct operates a few markets and has more to open, subject to the outcome of this action, but there are hundreds of successful markets all over Australia that may be affected by this action, meaning thousands of jobs, farms and small businesses likes (sic) are at stake.
I am now in possession of the outline of argument if any legal minds would like to offer their support and or go over my research, because this is not just about me, it is not just about my stall holders, it is about the future of Markets and community events of every kind in Australia.
I would like to note a few serious concerns, one is the media, who all know about this, and consider it of no community concern, the attorney general Rau, who is in charge of development legislation, has refused to respond, and the lack of support from the other Australian markets that ought to be concerned.
If I lose the case, it will not affect me financially at all, in fact I will be better off, but thousands of good hard working Australians will lose, they will lose jobs, farms, and businesses, and that is the very last thing we need in Australia right now.
Political mediocrity is already killing our manufacturing and our ability to even feed ourselves as a nation, so when we step up as a community to protect the little guy, through avenues like markets, it is left to us to fight battles like this, so consider spreading this post, and include your own words of support, contacting John Rau, and even letting Ben Johnson and his supporters know how you feel by phone, email or boycotting their businesses.
Mark Aldridge
Founder of Farm Direct community markets.
The edited version is displayed the relevant time at its head. It can be seen that it closely resembles the terms of the original retrieved by Mr Velanas. The only differences are that the words ‘intent on closing all farmers markets in Australia’ which appear in the first paragraph of the original appear to have been replaced by ‘has taken an action which could close many Farmers markets’ in the edited version and that the word ‘greedy’ which appears before the word ‘man’ in the third paragraph of the original no longer appears. Given that edited posts carry the date and time the original was published, it is obvious that it would have been a simple matter for anyone so minded to remove the allegedly defamatory sting from the post while retaining the date and time of its initial publication and the balance of the text. It is equally obvious that a person armed with the letter of concerns and a screenshot of the original would know which words to remove and add, in order to achieve this end.
It can also be seen that the practical effect of the editing would have been to pass the edited version off as the original whereas the reality was that the original had been published at the relevant time with the relevant words include, and now lay out of sight in the audit history.
The differences between the two versions are reflected in the pleadings: the defence admits publication of a post at the relevant time but denies it included the relevant words and claims that it included the words appearing in the edited version and the reply alleges the defendant amended the original. It was part of the plaintiff’s case that the defendant had attempted to evade liability by conducting the editing so as to remove the allegedly defamatory sting.
The defendant said he did not realise at the time that posts which had been edited remain there forever! For obvious reasons the plaintiff submitted that this led to the defendants undoing in that he did not realise that he had left his tracks behind him. Neither his wife nor Ms Evans claim to have carried out the editing. I will return to these issues.
On 5^th December, and after he had returned from Bali, the defendant sent an email to the plaintiff’s solicitor which relevantly reads:
[My apologies for the late reply, I have been overseas and although I had intermittent internet access, I did not enjoy being able to send emails.
I will first assure you I am not involved with the FB page in question, and have had no input what so ever, hence the fact it has very little support. I am happy to try and contact the owner an(d) ask that it be taken down, as a show of faith.
The imputations you have raised are not an accurate reflection of the words I wrote and posted.
There are times when I am away that others control my page, but when I received your email, I immediately checked the post to ensure it was not worded in a way of which could have the effect of defaming your client.
I will note that I have copies of some rather nasty defaming posts by your client in his words, where he makes assumptions I am responsible for the words of others.
In any event the post will be removed at a later date, but as it stands I can see nothing but truthful words that in no way defame your client, the attachment is the post as checked upon receipt of your email.
I am unaware of who wrote or modified the copy’s you sent me.
On 6^th December, he sent a further email to the plaintiff’s solicitors in these terms:
Subject: Re: Concerns Notice
Categories: IDM
It appears that the Face Book page you mentioned are the ones that have taken some liberty with the wording of my original post, I have written to them by Private message asking for the page to be taken down.
I do not know who has set up the page, but hope they can at least amend it.
I have refrained from liking or mentioning the page, in fear that will increase its discovery, to ensure your client is not defamed, even though I am neither the author nor responsible in any way.
Mark Aldridge
It is plain from these emails that the defendant understood the thrust of the letter of concerns. He said that he ‘explained the difference in the words that were presently on the post’ in the first email and that he would have been ‘happy to consider looking at it’ if there were any issues. He said he was trying to convey to the plaintiff’s solicitor that someone ‘had taken liberty with the wording’ however, there is some confusion on the face of the emails about whether he was referring to the post of 25^th November or to the Boycott Ben’s post. Similarly, there is some apparent confusion about whether references in the first email to imputations not accurately reflecting the words he wrote and his statement that a post which mimicked the words he used were reference to the first post. In any event neither email amounts to an admission that he published his post of 25^th November in the terms alleged.
On 23^rd December, the plaintiff’s solicitor sent a further letter of concerns enquiring whether the defendant’s email of 5^th December, is to be taken as a denial of authorship of the first post. It also informs him that the final words emphasised are now also regarded as defamatory.
The defendant read the letter. He said he attempted to remove the first post at about Christmas 2015, however, the system prevented him from doing so. He waited until interest in the post had died down before doing so because experience had taught him that deleting posts can be counterproductive in the sense that dissatisfaction and ‘backlash’ can occur. His wife and Ms Evans confirm this.
In any event the original version of the post, the edited version and the comments which it attracted were still accessible on the defendant’s profile as of the day the trial commenced.
The Comments
This brings me the comments. For the moment it is sufficient to say that they were numerous, that many were critical of the plaintiff and some referred to him in contemptuous terms such as ‘cretin’, ‘selfish greedy arsehole’, pig of a man’, ‘this excuse for a man is a piece of shit’, ‘greedy fuck head’ and ‘scum’ bag’.
The plaintiff viewed a selection. The defendant said he scrolled through some of them some days after the first post was published and he agreed that there was nothing physically preventing him from reading them while he was in Bali.
The plaintiff pleaded that the comments carried the same imputations as the first post itself. The defendant pleaded that he bears no liability for their publication.
Narrative continued
The plaintiff’s appeal to the Environment Court was heard on 8^th December, 2015 and judgment upholding the plaintiff’s objection and remitting the defendant’s application back to the council was delivered on 21^st January, 2016.

The defendant said his attitude toward the plaintiff was then one of indifference. He said the outcome of the appeal reignited ‘major public debate’ and commentary and that there was a public call for an appeal from interested parties throughout the country.
The second post
The defendant then published the second of the allegedly defamatory posts on 25^th February 2016. He admits on the pleadings that he was the author and publisher and that it appeared in the following terms:
Mark Aldridge
25 February
Ben Johnston is still trying as hard as he can to shut Farm Direct on what seems like a weekly basis.
If that means undermining every market, event, stall and fete so be it.
Legal letters continue to arrive at the courts, my in box, Salisbury council, the Old Spot hotel, the Plush group and I assume others.
The latest applications are to have us shut immediately as we are affecting Johnston’s profits (yet we hear he has sold his shop?
In any event Johnston, is or was in Pooraka, we operated from Parafield for many years, we moved further away to Salisbury heights, and another unregistered market opened on our old site, so it was a business related matter (which has nothing to do with development matters) then why not go after the new market?
Since this started, threats to my family, stall holders and others have continued and still are a regular occurrence, no one wants to pick up the phone mist (sic) nights to threats of rape of his wife or death threats.
This brings up several issues, why the Parafield site can ignore the law, why can applications be made against competition (considering we are a free market) and why is Johnston apparently working with Parafield, it is closer to him.
Facts: Farm Direct has operated for over 3 years, we applied and were approved by Salisbury council development department and the DAP, under the strictest terms, and started operating at our new site.
Most if not all Markets are approved in the same way, in some cases without the need to jump through much red tape.
Why are the councils sitting back doing nothing, when applications for community events in their area are being stalled.
Why does a not for profit community event have to fight for the right to exist and the rights of other community events on community donations.
From here: Farm Direct were fully complied as a merit application (merit means the community support such events) now we have to comply as a Non Complying development (the community does not want events like ours) when the public love our market and support local community events, fetes and Markets.
The council should be fighting for the community they purport to represent, so should the state government, but neither are supporting the legal action.
The courts ordered all stall are now shops, and a group of stalls is now a shopping center, which affects every public event.
The courts ordered that the council make us re-apply for approvals as a shopping centre (non complying development).
We prepared the application, but since we have lodged an appeal on the courts finding stalls are shops, until that appeal is heard, we are complying.
If we fail in the courts then we can re-apply for development approvals. Johnston and his well paid legal team want us shut based not on development or safety issues, but purely on market based trade.
This clearly shows how development law is being abused, development law is about land use, not issues of competitive nature, so where is the state government on this matter.
Does this mean if you open a new business in this state, and start to do well, your competition can shut you using loop holes in the law, law that does not even relate to matters of a competitive nature?
If a company closes down there is media coverage, loss of jobs, in fact if there is a hundred jobs at risk, in step parliament to help, yet a community market is under pressure to shut, that is doing well, has massive support and represents 100’s of jobs, small farms and small businesses, no media, no support, no state government support and no council support. (thousands of jobs, farms and small businesses are now at risk)
The state government and the councils are to blame, they want the power over how we use our private land, they say they are here for the community, to ensure development of any kind is in line with community expectations. They write all these pretty agendas, like healthy eating, access to affordable fresh produce, getting the community out and about. Farm Direct does that, complies with the law, then this happens and the officials you elect, pay and support to look after you are no where to be seen.
Rant over, wish me luck in the courts. If I lose, so do hundreds of jobs, small farms, so does the community and the door opens for other scum bags to close other community events.
Mark Aldridge
I shall refer to the words emphasised as ‘the alleged threats.’ The plaintiff pleaded they carried the imputation that he ‘has made or encouraged, or is likely to make or encourage, threats to rape and kill’ (the third imputation). The defendant pleaded that the words were not ‘of or concerning the plaintiff’ and that in any event they do not carry the imputation pleaded.
The defendant said he published the post in an attempt to ‘give a broad overview of the issues of the controversy including issues with State Parliament and the council’. He conceded it was ‘a rant’. He denied that his reference to ‘other scumbags’ included the plaintiff and he said it was merely a reference to anybody who might want to close a community event.
On 1^st March 2016, the plaintiff’s solicitors sent the defendant a further letter of concerns complaining that the comments also carried the first and second imputations and that the second post carried the third imputation. The letter also informed him that proceedings would be commenced within 28 days unless the posts and the comments were removed. On 20^th April the plaintiff commenced the action and the proceedings were served on 23^rd April.
Narrative concluded
By mid-November, 2015 the plaintiff was considering selling George and Ben’s because of the online attacks, a downturn in business and a fear that continuation of the attacks would be bad for business. He eventually signed a contract for sale and sold shortly before the appeal was heard. however, he continued with the appeal because the agreement was subject to finance. He had also decided to close Golden Fresh for much the same reasons and he ultimately did so on 8^th December 2015.
The defendant said that the circumstances which led up to both of the posts might have had an effect on the words that he used in each. He said that the plaintiff’s posts carried animosity towards him which descended into personal attacks. He also said that members of Parliament other than Mr Parnell had ‘entered the debate’ however, he does not specify when this occurred and he says that he lobbied ‘a few friends in Parliament,’ but again he does not provide any particulars.
The defendant appealed the decision of the Environment Court to the Full Court. The appeal was heard on 8^thAugust, 2016, and dismissed on 8^th September, 2016. The plaintiff played no part in these proceedings.
Credibility
There are credibility issues. In particular the defendant’s credit is under serious challenge.
It is well settled that caution must be exercised before making credibility findings based on demeanour alone and, as far as it is possible to do so, the court should reason to its credibility conclusions on the basis of ‘contemporary materials, objectively established facts and the apparent logic of events’: Fox v Percy (2003) 214 CLR 118 at [30]-[31] per Gleeson CJ, Gummow and Kirby JJ. I have proceeded accordingly.
The plaintiff
There was nothing in the plaintiff’s presentation which aroused my suspicions. He was calm and careful and he answered directly and without any apparent embellishment, evasion or prevarication.
Mr Velanas
I have already dealt with Mr Velanas’ qualifications and experience. There is no apparent reason to doubt his neutrality. His evidence was at variance with a number of discrete assertions put by the defendant. Whenever this occurred his evidence is to be preferred on the basis of his qualifications, and the defendant’s disclaimer of any relevant expertise, and his reliance on a printout of dubious and untested accuracy.
The defendant
The defendant was particularly unimpressive and unconvincing.
He is plainly resourceful, confident and reasonably intelligent. He demonstrated the capacity adequately to conduct his own case and he was not overawed by the situation in which he found himself. For a layman he displayed a reasonable grasp of some aspects of procedure, planning and development law, and defamation law.
In evidence-in-chief he exhibited an occasional tendency to indulge in discursive and self-serving answers. Under cross-examination he was often unresponsive. This cannot all be attributed to mistakes or misunderstandings, he is far too intelligent and self-assured for that and on important issues he often gave the impression that he was running from the point of the question. There are also other features of his evidence which call his credibility into question which I will mention when it is convenient to do so. In all the circumstances I am not prepared to accept him on important issues unless there is some form of support for his evidence.
Ms Aldridge, Mr Cook and Ms Evans
The evidence of Ms Aldridge, Mr Cook and Ms Evans is not in dispute and, in any event, there is no apparent reason to doubt anything they said.
I should say that I prepared these credibility findings very soon after I reserved judgment for the first time and while my impressions of the witnesses were still fresh in my mind.
Defamation revisited
To go back to the elements of the action: Defamation is the publication by the defendant of material injurious of the reputation of the plaintiff. The elements were conveniently identified by Blue J in Duffy v Google (2015) 125 SASR 437 at [158]:
1That the defendant published the relevant material.
2That the material was of or concerning the plaintiff.
3That the material carried the imputations pleaded.
4That the material was defamatory of the plaintiff in that it was injurious of his reputation.
The primary issue in relation to the post of 25^th November 2015 is whether the defendant knowingly published it in the terms alleged. In relation to the comments it is whether the defendant is liable for their publication. In relation to the second post it is whether the relevant passages of the post are of or concerning the plaintiff.
Publication: General principles
Publication is a bilateral act. The publisher must make the relevant material available to be read by others and it must in fact be read and comprehend by some other person otherwise no harm is done. Participation in the process of publication satisfies the physical element. Participation may be primary or secondary. A primary publisher is liable irrespective of whether they knew, or ought to have known, that the allegedly defamatory matter was included within that which they published. A secondary participant is liable only if they knew that the material was within that which they published, or if he or she could, with the exercise of reasonable diligence, have known of its inclusion: Duffy supra at [166]-[169].
The first post: Introduction
The defendant’s various applications to amend the defence and re-open his case must be determined before the issue of whether he published the first post in the terms alleged can be addressed.
The first post: Application to amend
The defendant applied to amend the defence at the close of the plaintiff’s case. He sought to do so by withdrawing his admission that he published a post of and concerning the plaintiff at 1.05pm on 25^th November and substituting a pleading that he published a post concerning him at noon on that day. He said this post was in the terms of a copy of screenshot he submitted for the purposes of the application. The copy appears incomplete but as far as it goes it is in the terms of the edited version. He said that this was the only post concerning the plaintiff he published on the 25^th and that he published it at noon. He said he took the screenshot after he received the first letter of concerns but before the time the editing is said to have taken place. The post depicted in the shot bears the relevant time however; the task bar of the computer on which it was apparently taken shows 1.19pm on 23^rd December 2015, which is well after the editing is said to have taken place, and as edited posts carry the time and date the original was published, the mere fact that the post bears the relevant time cannot of itself prove that it was published at that time and in the terms depicted in the shot.
The defendant does not claim that he published more than one post concerning the plaintiff on 25^th November. In the light of Mr Velanas’ evidence, this screenshot cannot have been taken until after the editing was conducted, and I reject the possibility that it was.
The screenshot thus has no capacity to provide any independent proof that the defendant did not publish the first post in the terms alleged.
The defendant said he did not make this application before the trial commenced because he believed the defence contained a denial that he published the relevant words and, as I understood him, that he eventually came to the conclusion he needed to amend to ‘ensure’ he could ‘run a defence’ that he thought had been available to him from the outset.
The applicable principles were identified by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 and conveniently summarised in Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59 by Bleby J, White J concurring at [46]. They are as follows:
1.   Whether there has been undue delay in making the application;
2.   The extent to which public resources will be wasted if the application is granted;
3.   Whether there will be inefficiency occasioned by the need to revisit interlocutory processes;
4.   Whether a trial date would need to be vacated or a trial adjourned;
5.   Whether there is any satisfactory reason for the delay in applying;
6.   Whether the point to be raised by the amendment would be raised during the trial in any event;
7.   The likelihood of strain and uncertainty being imposed on the litigants;
8.   Whether any further delay would undermine confidence in the administration of civil justice;
9.   Whether any other prejudice is likely to be suffered by the other party; and
10. The extent of any additional costs likely to be incurred.
Balancing the relevant considerations, I rejected the application. In particular, I took the view that the terms of the defence as it stood did not preclude the defendant from challenging the pleaded allegations that he published a post at the relevant time which included the relevant words. This transpired to be so and the matter proceeded accordingly until the defendant sought leave to re-open his case in circumstances I will come to.
The first post: The defendant’s evidence
The defendant said he published a post at around lunchtime on 25^th November however, he accepts that publication may have occurred at 1.05pm as alleged. Much of his evidence about its terms and whether he subsequently edited it was repetitive, inconsistent and unconvincing. With apparent reference to his reply to the first letter of concerns, he said:
Apparently at that same time, and – this is a really hard one under oath to discuss – the post was edited on 2 December to lighten the impact, I assume on the plaintiff. I do say on oath that that wasn’t done from my point of view to – because the post was defaming more so as – it’s hard to say – as a show of good faith. It wasn’t until some time later that I came to realise that if you edit a post on social network you can no longer remove it at all from social network. It remains there for forever and cannot be taken down.
In cross-examination he said that he ‘must have’ conducted the editing of 2^nd December, even though he had no recollection of doing so. He said he had suffered a breakdown as a result of his experiences during the bushfire relief effort and that he was unwell at the time. In this regard his wife said he had become emotional and forgetful as a result of his experiences, and I see no reason to doubt that this is so.
He had filed a draft of his opening. He conceded that it made no mention of the editing. He said this was because he had no recollection of conducting any editing however, he said that evidence had led him to believe that he had done so and that it was obvious he was responsible.
He then said that after he returned from Bali he thought he might have carried out some edits. He said someone showed him a screenshot dated 27^th December 2015 depicting a post in the terms of the edited version and that this caused him to become confused and concerned that someone had ‘tampered with the original post.’ He thought a man named Peter had sent him this shot. The taskbar of the computer on which the shot was taken displays 9.12pm on 27^th November however, as Mr Velanas’ says the editing took place on 2^nd December and as the shot taken by the solicitor on 27^th November depicts a post including the relevant words, any screenshot depicting a post in the edited version cannot have been taken on the date and time displayed on the taskbar.
The defendant said that ‘what brought (his) attention’ to the post of 25^th November ‘not being in my words’ when he looked at it ‘was the terminology used in the first paragraph’ and that ‘as much as that’s how I felt at the time and that the post reflects what I believed at the time, I didn’t think I’d used those words in the post, I thought I’d tried to tame it down because it was a public post’. He eventually conceded that he had published a post on 25^th November which included the relevant words and that he must have edited it on 2^nd December. He then said that when he read the post on 2^nd December (presumably the copy attached to the first letter of concerns), he thought that it included words he had not used and that when he wrote the post his ‘mental health was fine’ but he subsequently suffered a breakdown and his lack of recollection of the editing led him to conclude that ‘someone else must have tampered with it.’ He also said that that he does not generally use the word ‘greed’ in his posts. He said that when he opened the first letter of concerns he thought ‘well okay, I’ll alter the post to remove those words obviously so as not to offend, not to change the context of it’ and he assumes that he did so although has no recollection. He then specifically denied editing the post on 2^nd December in order to remove any defamatory sting.
Finally, he admitted that on 25^th November 2015 he put up a post which was in the terms alleged and he further admitted that he must have edited it on 2^nd December 2015.
The first post: Angel Barton
It can be seen that the defendant suggests in his evidence and in his emails of 5th and 6th December that some third person might have tampered with his profile and he ultimately said the post had been changed in two places. This eventually led to a proposition that some malevolent person, in all probability Angel Barton, had tampered with his profile and published the relevant words.
There is no direct evidence that this occurred and the proposition relies in part on evidence that Angel Barton had harboured animosity towards the defendant for a number of years and that third parties had from time to time published posts which they falsely attributed to him.
In this regard the defendant said that a hate page entitled ‘Mark backfired Aldridge’ was published in or about June or July 2015. As I understand it, a hate page is a profile dedicated to posting disparaging material about its subject. It is plain the defendant believes that one Angela Cooke was somehow involved with the hate page and he believes she was also known as Angel Barton. The plaintiff denied publishing the hate page and he does not know if Angela Cooke and Angel Barton were one and the same. The defendant said Angel Barton had been ‘causing him angst’ and that a group of people were publishing posts attacking his credibility. He said Angel Barton had been attacking him, his family and his friends for some four years by attempting to hack into his accounts and by making false profiles which they attributed to him. Mr Cook confirmed that Angel Barton had published hate pages about the defendant for some years and that she was consistently making comments against his ‘stature’. He also said that one Angela Hay was also publishing comments critical of the defendant and it is plain that he believed that Angel Barton, Angela Cooke and Angela Hay were the same person. Ms Evans said that she too had seen hate pages about the defendant.

The following statements of principle can be identified from Cornwall and other cases:
1.   The relevant communication must be characterised and the critical expression ‘concerns government and political matters’ is to be liberally construed: Lange at 570-572.
2.   The communication must be about government or political matters properly so called.
3.   The critical issue is the nature of the communication. That it concerns a matter of public interest, or was published in the context of a discussion about ‘government or political matters’, or might not have been made but for the presence of government or political issues, is not necessarily enough. These considerations are nonetheless relevant to characterisation but they are not necessarily determinative: Cornwall at 623, Peek v Channel Seven Adelaide Pty Ltd [2006] SASC 301 at [16]-[18] and cases there cited. In the same way, the office or function of the person making the communication is relevant but not determinative: Peek at [17].
4.   The defence filters down to local government level: Lange at [571]-[572].
5.   Characterisation involves a value judgment.
Thus the mere fact that a communication mentions some political or governmental issue, or names some politician, is not of itself enough: Peek at [19]. Moreover, the communication cannot properly be characterised as concerning government or political matters if the subject matter of the communication is not raised in the context of the conduct of government, or linked or intertwined with some governmental or political matter to the extent that it ought to be characterised as such: Conservation Council of SA Inc v Chapman (2003) 87 SASR 62 at [295] per Besanko J as cited in Peek at [77] by Besanko J, Duggan J conc.
Each post covers more than one topic. In the context of the defence of public interest it has been held that the protection afforded to those parts of a mixed the communication which are in the public interest does not necessarily extend to other parts of the same communication which are not: Adam v Ward [1917] AC 309, Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183, Brennan CJ at 201-204, 228 per Dawson, McHugh and Gummow JJ. Indeed, it was also held in Bellino that the inclusion of the irrelevant passages in the communication affords evidence of malice: Dawson, McHugh and Gummow, also at 228. The approach to mixed communications was also considered by Brennan CJ in Bellino where his Honour said at 204:
If the matter complained of has no material relationship to or nexus with the subject of public interest that appears from the other parts of the article or broadcast, it falls outside the scope of any privilege. Hence North J said in Truth (NZ) Ltd v Holloway in a passage cited by Windeyer J with approval in Uren’s case:
“There is no principle of law, and certainly no case that we know of which may be invoked in support of the contention that a newspaper can claim privilege if it publishes a defamatory statement of fact about an individual merely because the general topic developed in the article is a matter of public interest.”
Protection for such a statement, however, is not determined by negating Lord Dunedin’s test of “unconnected with and irrelevant to the main statement”. It is determined by the positive criterion of relationship to or nexus with the relevant subject of public interest. That criterion is not satisfied unless the publication of the defamatory matter makes a contribution to the discussion of the subject of public interest.
(citations omitted)
There is no reason in principle or policy why this reasoning should not apply to the Lange defence.
Finally, a communication protected by the defence must nonetheless be reasonably made.
The first post: Extended qualified privilege
The defendant submitted that the post can properly be characterised as concerning governmental or political matters and that he acted reasonably save and except that it was unnecessary for him to seek the plaintiff’s comments because it was open to the plaintiff to publish responses of his own. The plaintiff submits that the allegations the defendant made about his personal motivations and intentions were unconnected with any political or governmental matters which he might have raised in the post and that the relevant words were nothing more than a personal attack on him in his private capacity over a matter of limited public interest.
The defendant pointed to his political activism. On its own this is not enough. The structure of the post is plainly important. It can be seen that the defendant commenced with a series of assertions about the plaintiff’s motives, attitude and intentions and a short statement of what he anticipates the issues on appeal will be. He then turns to some assertions about the potential ramifications of the appeal and who was supporting the plaintiff. Finally, he criticises the media for lack of interest and the then Attorney-General for refusing to respond, presumably to some request for action over the matter, and he makes a generalised complaint about political mediocrity and its effect on activities such as markets and he urges readers of the post to contact the Attorney.
It has been seen from the narrative that the markets and the dispute were matters of some public interest. This is not on its own enough and nor is the mere mention of the Attorney. However, when the post, particularly the concluding paragraphs, is read as a whole, it can be seen that the defendant’s criticism of the Attorney is made in his capacity as Minister responsible for planning and development and in the wider context of what the defendant sees as the development issues involved in the appeal, and the potential impact of its outcome on markets and ‘good hard working Australians.’ The passages of the post dealing with these matters thus reflect on the Attorney’s performance in the context of a development issue which the defendant says could have significant legal and public ramifications depending on the result of the appeal. These passages of the post can properly be characterised as a communication concerning ‘government and political matters.’
However, this characterisation cannot extend to the entire post. The commencing paragraphs focus on the dispute itself and the plaintiff’s motivations and intentions and it is not until later that the defendant turns to government and political matters properly so-called. It is plain that he could have said what he wanted to say about these matters without mentioning the plaintiff by name or by impugning his character with the relevant words. These slurs are gratuitous and contribute nothing to the government and political matters the defendant subsequently raises in the later paragraphs of the post, and there is no apparent link or ‘material relationship’ between the two and the protection afforded by the Lange defence cannot and does not extend to the entire post or to the relevant words. The defence fails accordingly.
The defendant gave a considerable amount of evidence and made numerous submissions with a view to establishing that he acted reasonably in publishing the imputations. In view of my finding that the relevant passages of the first post are not protected by the Lange defence, this evidence and these submissions are rendered otiose accordingly.
The second post: Extended qualified privilege
The starting point is again the characterisation of the post.
The structure of the post is again important. For these purposes it can be split into sections. The first focuses on some further complaints about the plaintiff’s intentions, the second deals with the threats followed by the plaintiff’s alleged associations and the third turns to a number of issues relating to planning and development law, council approvals, related shortcomings of local and state governments, and issues involving the defendant’s market. The issues raised in the third section are plainly matters of public interest with government and political connotations. Without finally deciding the question, I am prepared to proceed on the basis that they are government and political matters.
This characterisation I am prepared to give to the third section of the post does not extend to the earlier passages dealing with the plaintiff’s intentions and with the threats themselves. As Mr Doyle put it in his outline, the third imputation was extraneous to any political or governmental matters in the sense that the imputation was incapable of providing information relevant to any comment or debate of a political or governmental nature made or raised in the post. There is plainly no ‘material relationship’ between the government and political matters raised in the third section and the plaintiff’s intentions and the threats raised in the first and second and the protection afforded by extended qualified privilege does not extend to the entire post nor to the threats. The defence fails. Again reasonableness does not arise.
Damages
The plaintiff claims damages for non-economic loss for injuries to his reputation and feelings, that is to say for ‘the complex of reactions (he) has experienced as a result of the publication and its external consequences’ including the ‘hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage’ he has suffered: Carson v Johnson Fairfax and Sons Ltd (1993) 178 CLR 44 per Brennan J at 71.
There are three primary purposes for damages in defamation. These are: to redress the hurt caused to the plaintiff’s feelings; redress the harm done to his reputation; and to vindicate his reputation. These considerations are subject to the limitations set out in ss 32-37 of the Defamation Act (SA) 2005.
In the light of the above, relevant considerations include the gravity of the imputations, the extent of publication (including re-publications for which the defendant is liable), the damage to the plaintiff’s reputation and the injury or hurt he has suffered.
There must be an appropriate and rational relationship between the damages awarded and the harm suffered: s 32 Defamation Act. The amount is capped at $381,000. The cap may nonetheless be exceeded if aggravated damages are warranted: s 33 Defamation Act. Whether the imputations have a particularly adverse impact on the plaintiff’s reputation in the eyes of some identifiable group or class in the community is relevant to their gravity: Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 507.
The plaintiff was 35 years of age at the time of trial. He does not claim damages for economic loss. He has worked in the fruit and vegetable industry for many years. He had operated businesses of his own before he opened George and Ben’s. He said some $100,000 was invested in renovating the premises and it employed about 10 people when he opened for business.
He said that he found the various posts and comments the defendant published in the lead up to the first post to be ‘very concerning and hurtful’. In addition, posts suggesting someone ‘should pay him a visit’ and the defendant’s publication of his details led him to become fearful of the defendant’s supporters and he began taking steps for his own self-protection. He was not asked about his reaction to the first post itself. I assume this was an oversight however, it can safely be inferred that he found it concerning and hurtful.
He read about 70 percent of the comments and he regarded some 90 percent of them to be derogatory. The pleaded comments set out above are a reasonable representation of some of the specific example he gave. It can be seen that some of these comments were of a threatening nature. He regarded the relevant comments as ‘very hurtful’ and he said it was ‘distressing to know that so many people can make a comment on a person without even meeting them or knowing them’.
He said he was disgusted and very hurt by the second post and that he found the threats particularly concerning.
He had decided to cease trading before the first post was published because of a downturn in trade which he attributed to the ‘online attacks’. He worked for someone else in the industry after he ceased trading at George and Bens and Garden Fresh however, he found this unfulfilling and he resigned shortly before the trial commenced. He has also made enquiries about purchasing other fruit and vegetable businesses, but as of the time of giving evidence he was apprehensive about going back into business on his own account because of the ‘online attacks’ from the defendant and others. His marriage suffered in that the depression caused by the sequence of events rendered him uncommunicative and causative of tension and arguments.
The first post: Extent of publication
Publication is not at large. That said, there can be no dispute that the first post was communicated to a significant audience. The defendant admitted on the pleadings that it was published to visitors to his profile and to his followers and that as of the time the statement of claim was filed he had some 5,974 followers. According to Mr Velanas, the post was ‘liked’ 9,088 times and ‘shared’ 12,959 times. It is likely there would have been further dissemination but the extent of it is speculative. In the light of all this it is probable that the post was communicated to several thousand people at the least.
The comments: Extent of publication
The defendant admitted on the pleadings that the post attracted about 4,500 comments. The vast majority were posted before the editing took place on 2^nd December. It is thus likely that the majority of those who read both the post and the comments would have done so before then. It is also plain that some of the comments were responsive. It is impossible to be precise, but it is nonetheless probable some thousands of people would have read both the post and at least some of the comments.
The first post and the comments: Republication
Failure to remove allegedly defamatory material after the giving of reasonable notice can amount to republication. The first and third letters informed the defendant that the first post and the comments were regarded as defamatory and called on him to remove them.
He attempted to remove the first post at around Christmas 2015. He waited until then because he feared there would be backlash if he removed them earlier. The sincerity of his attempt is diminished accordingly. He said that the Facebook system prevented him from deleting the post however, he does not suggest that he contacted Facebook to arrange for its removal. He has never attempted to delete the comments. It is plain that he must have foreseen the possibility that both might attract further attention however, it is doubtful that many people would have read either after the initial interest had faded away.
The second post: Extent of publication
The defendant admits on the pleadings that he published the second post to his 5,974 followers and that as of the time the statement of claim was filed it had received some 149 likes, 43 shares and 33 comments. It is again impossible to be precise, but it is probable that a significant proportion of his followers would have read the post and that there would have been some further dissemination through them and through the ‘likes’. It is thus probable that the number of readers ran into the thousands.
The first post and the comments: Gravity of imputations
It will be convenient to deal with the gravity of the first and second imputations in the context of the first post and the comments together.
The plaintiff concedes that the first and second imputations are not at the upper end of the scale of seriousness. They do not impute criminal conduct, but they nonetheless impute that he was prepared to pursue profit with indifference to the hardship he might cause and that he was of contemptible character. The imputations thus had some potential to cause people to be wary of him in the business context. Moreover it is also probable that a proportion of those who read the post and the comments would have known that the plaintiff was a local retailer and that the imputations could well have had a greater impact on them than on others in that they would have been more likely to take them seriously than readers who knew nothing about the plaintiff. The potential detriment to the plaintiff is obvious.
The second post: Gravity of imputation
The third imputation is plainly serious. It implies that the plaintiff persistently engaged in conduct which was calculated to instil fear of particularly serious and violent consequences. Right thinking people would regard the conduct imputed as deserving of condemnation and the making of unlawful threats can amount to a criminal offence punishable by imprisonment: s 19 Criminal Law Consolidation Act 1935.
Aggravated Damages
The plaintiff also claims aggravated damages in that he claims his hurt is exacerbated by:
·    The defendant’s knowledge that the imputations were untrue.
·    The defendant’s failure to retract, delete or apologise for their publication.
·    The defendant’s knowledge that the posts and the comments had been read by numerous people and further disseminated.
It is well settled that an award of damages may be made where the defendant’s conduct at or after the relevant publication is lacking in bona fides, improper or unjustified thus aggravating the harm done to the plaintiff: Carson v John Fairfax and Sons Ltd (1993) 178 CLR 44 at 50, Duffy v Google (No 2) [2015] SASC 206 at [80]-[83]. Aggravated damages are not punitive. The award is to compensate the plaintiff for the increased indignity attributable to the circumstance of aggravation and not to punish the defendant: Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118 at 151.
In considering whether such an award is warranted it must be borne in mind that s 36 Defamation Act provides that ‘ … the court is to disregard the malice or other state of mind of the defendant at the time of publication … or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff’.
Knowledge
I take the claim that the defendant published all three imputations in the knowledge that they were untrue as a claim that he thus acted improperly and without justification thus exacerbating the hurt.
The defendant said he published in the belief that the plaintiff intended to close down all farmers markets nationwide (his stated belief).
The only documents with the potential to prove any insight into the plaintiff’s intentions are the council development committee agenda, the defendant’s application to relocate, the plaintiff’s objection, the post of 18^th October 2015 and the plaintiff’s notice of appeal. Nothing in any of these suggests that the plaintiff was intent on closing down markets on a broad scale. In particular the notice of appeal and the post of 18^th October make it clear that the plaintiff sought only to prevent the defendant’s market from trading at the new location and neither suggest he was intent on closing any other markets, let alone to the extent the defendant said he believed.
The defendant says a number of considerations led to his stated beliefs. First, he said Mr Parnell and Ms Schute told him that if the appeal succeeded it ‘could create a precedent and would affect markets, community events all over Australia in an adverse way’. Next, he said his own research led him to believe that the plaintiff’s argument had a potentially immediate and wide-ranging effect on markets and he pointed to a number of media statements which, he said, were consistent with his beliefs. Finally he said he believed the plaintiff was intent on closing all markets nationwide because other grocers he was working with were faced with a choice of competing with the major retailers or eliminating competition by closing markets.
In particular, the defendant said Ms Schute informed him that if the appeal were to succeed ‘the precedent could or would affect all markets or community events of a similar nature Australia-wide’ however, he said that his beliefs changed after he published the post and he eventually came to believe that success of the appeal would not have this effect. His gradually alerting beliefs are obviously convenient for him. Neither Mr Parnell nor Ms Schute were called by either party.

The defendant was also inconsistent about his stated belief. He said he believed ‘it was the plaintiff’s intention to try and close each and every farmer’s market in Australia’. He then contradicted himself by saying ‘I don’t actually’. The inconsistency is material and he followed it up with a number of irrelevancies which created the impression he was avoiding the issues of the true state of his beliefs as at the time of publication of the first post.
It can be seen that the statements the defendant attributes to Mr Parnell and Ms Schute cannot of themselves lead to the conclusion that the plaintiff was intent on closing each and every farmers market in the country in that there is simply nothing which leads logically from their statements to his stated belief. Moreover, the defendant is intelligent enough to have realised that his own researches and media articles were uncertain foundations on which to base such a belief. Furthermore, his assertion that the plaintiff was faced with the alternative of closing markets or competing with the major players seems speculative at best. The conjunction of these considerations lead me to conclude it is probable that he did not hold his stated belief. My finding as to the defendant’s credibility does not help him on this issue either.
Insofar as the second post is concerned, the defendant says he did not believe that the plaintiff was responsible for the threats and he believed that some other person, who he eventually named, was behind them. He also says he had no intention of imputing responsibility to the plaintiff in the post. In all the circumstances it is nonetheless probable that he must have recognised that some readers of the post might come to the conclusion that he was alleging the plaintiff was somehow involved.
In addition, all three imputations were published against the background of the continuing stream of criticism and invective the defendant had levelled at the plaintiff. Moreover the defendant had the motivation to make false statements in the first post of overbearing the plaintiff into abandoning the appeal and the motivation to make false statements in the second of exacting retribution after its success. Finally, each imputation was extraneous to the context in which it was published. The conjunction of these considerations and his knowledge that the imputations were false make it probable that he published each imputation in an attempt to wound rather than to inform.
His conduct in publishing each imputation was thus both unjustifiable and attended by circumstances of impropriety.
The plaintiff did not say in as many words that he believed the defendant knew the imputations to be false or that this exacerbated the hurt however, these conclusions are nonetheless inferentially open. An award of aggravated damages is warranted on this ground.
Redress
The defendant has neither apologised nor taken steps to remove the first post and the comments from public view.
Failure to remove the offending material or apologise may amount to circumstances of aggravation, but only if the omissions are lacking in bona fides or are otherwise improper: Duffy at 83 and cases there cited. It follows that the failure must be attended by an element of unconscionability or impropriety before an aggravated award is warranted. If publication was malicious, a failure to apologise might amount to a continuation of the malice: Duffy at 85.
In this instance all three imputations were unjustifiable to the knowledge of the defendant, publication of the first post and the comments continued up to the date of trial, his attempt to delete the post was delayed by self-interest, he has not claimed to have made any further attempts to have it removed, he has not attempted to remove the comments and he had not apologised in any way whatsoever. He has thus not made any effective redress and again an aggravated award is warranted.
Readers
Finally, and particularly in the light of his wife informing him that the comments were ‘streaming’ in, it is inherently probable that the defendant would have realised that the first post and the comments had been read by a significant number of people. In his evidence he mentioned comments which the second post had attracted and he thus must have realised that some people at least must have read it. However, I am not satisfied that this further exacerbated the feelings of hurt suffered by the plaintiff and I do not think that the aggravated award can properly be increased on this account.
Analysis and assessment
It can be seen from the relevant principles that determining an amount to properly compensate the plaintiff involves a degree of instinctive synthesis.
The plaintiff is presumed to have a good reputation. It is plain he has suffered serious hurt. In defamation the harm often lies more in the plaintiff’s feelings and an award for injured feelings forms a large part of the compensatory damages: Ali v Nationwide News Pty Ltd [2008] NSWCA 183.
The first and second imputations are serious. The extent of publication is quite significant. In context they are objectively hurtful. The third imputation is particularly serious and hurtful. The plaintiff’s assertion that the first post and the comments left him disgusted and hurt can readily be accepted. The nature of the comments is such that they would have compounded the hurt caused by the first post.
In the plaintiff’s mind, and as he perceives it, the defendant’s conduct has affected his ability to follow his chosen vocation and the only thing he is trained to do.
In regard to damages the defendant says he has exhausted his finances and gone into debt in defending the claim and attempting to protect his reputation and that of his markets. He says the magnitude of the compensation sought by the plaintiff has occasioned him stress and during final submissions he made mention of an offer to settle without mentioning an amount however, s 67C Evidence Act 1929 (SA) declares settlement negotiations to be inadmissible.
The imputations were made during a sequence of events arising out of the dispute over the relocation of the market. The sequence of posts which form the background to the imputations involved sustained criticism and denigration of the plaintiff thus exacerbating their ultimate effect. Section 37 of the Defamation Act permits me to assess damages in a single sum on finding several causes of action proved. I fix a single amount of $100,000 inclusive of aggravated damages to cover all three causes of action.
Orders
There will be judgment for the plaintiff in the amount of $100,000 plus interest to be fixed by a Master of the court.
The defendant is ordered to remove or delete the first post, the comments to the first post and the second post within seven days.
The defendant is restrained from publishing any further imputations defamatory of the plaintiff.
I will hear the parties as to costs.