Liakos v Philippou - [2010] SADC 62

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
LIAKOS v PHILIPPOU
[2010] SADC 62
Judgment of His Honour Judge Clayton
19 May 2010
LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS
Slanders alleged to be published prior to Defamation Act 2006. Action not commenced within two years of cause of action. Application by Plaintiff pursuant to s 48 of the Limitation of Actions Act 1936 to extend time.
Court not satisfied that Plaintiff learnt material facts within twelve months of commencement of proceedings. Also discretion would be exercised against extension because action has no prospects of success.
Application dismissed.
Limitation of Actions Act 1936 s 37, s 48, s 48(3a), referred to.
Napolitano v Coyle (1977) 15 SASR 559, considered.

DEFAMATION - PUBLICATION
During 2002 the Plaintiff was the Science Coordinator of a High School where the Defendant was a Science Teacher. The Plaintiff alleged that the Defendant spoke six slanderous statements about the Plaintiff’s performance of her duties.
HELD: Evidence did not prove publication of any of the statements.
Jones v Dunkel (1959) 101 CLR 298, considered.

LIAKOS v PHILIPPOU
[2010] SADC 62

The plaintiff claims damages as a consequence of six alleged slanders.
The action was commenced out of time and the plaintiff requires extension pursuant to s 48 of the Limitation of Actions Act 1936. The defendant opposes the extension and argues that the action is statute barred.
The defendant denies making the statements upon which the plaintiff's claim relies. There are questions as to the extent of the publication of the alleged statements and what loss, if any, the alleged statements have caused the plaintiff to suffer.
The alleged statements relate either to the profession of the plaintiff or to illegal conduct and it is accepted by the defendant that, if they were made, the statements would be actionable without the requirement for special damage.
The alleged statements pre-date the introduction of the Defamation Act 2006 and the claim is governed by the law as it was prior to the introduction of that Act.
In the Further Amended Statement of Claim, which is the third edition of the Statement of Claim, the plaintiff claims damages for defamation and also damages for breach of an alleged duty. The plaintiff alleges that the defendant negligently made the statements and thereby caused the plaintiff to suffer an exacerbation of an anxiety disorder and associated depression.
In opening the case counsel advised that the plaintiff no longer pursues a personal injury claim except to the extent that damages for mental distress and injury to the plaintiff’s feelings are recoverable in defamation proceedings. The plaintiff has abandoned claims in the Amended Statement of Loss for loss of earning capacity, chronic back pain, psychiatric and/or psychological injury including anxiety and depression, sleep disturbance/nightmares and panic attacks.
The Background
From 1996 until 2003 the plaintiff, Despina Liakos, was a secondary science teacher at the Parafield Gardens High School. During the 2002 year she was the Science Coordinator.
The defendant, Despina Philippou, was also a secondary science teacher and joined the staff of the Parafield Gardens High School in 2002. The plaintiff was her line manager.
It is common ground that from their very first meeting the parties did not enjoy a friendly relationship.
The Further Amended Statement of Claim alleged seven separate statements about the plaintiff made by the defendant to other members of the staff of the Parafield Gardens High School. The claim in respect of the seventh alleged statement has now been abandoned. Each of the six remaining alleged slanders gives rise to a separate cause of action and must be considered by itself.
The plaintiff alleges that the six slanders were maliciously and intentionally made to lower the opinion of the average person as to the professional abilities, morals and ethics of the plaintiff. She claims that as a result of the slanders she has suffered damage to her reputation and suffered further damage in that a previously existing anxiety disorder and associated depression was exacerbated by becoming aware of the slanders.
In paras 14 to 16 inclusive of the Statement of Claim, under the heading "Intention To Cause Psychiatric Injury", the plaintiff alleged that all slanders were maliciously and intentionally made to lower the opinion of the average person as to the professional abilities, morals and ethics of the plaintiff. Additionally the plaintiff alleged that each of the slanders was wilfully made and calculated to cause physical and mental illness to the plaintiff.
At the time of the alleged slanders s 37 of the Limitation of Actions Act required that proceedings for slander should be commenced within two years. Although s 37 of the Limitation of Actions Act has been amended as from 1 January 2006 this action is governed by the legislation in force at the time the causes of action accrued. It is accepted that the alleged slanders fall within exceptions to the rule that a slander is not actionable without proof of special damage to complete cause of action. The causes of action were therefore complete at the time that the statements were made.
On the basis that there was a period of limitation of two years:
·       An action in respect of the first slander should have been commenced no later than April 2004,
·       An action in respect of the second and third slanders should have been commenced no later than two years from the end of the third school term in 2002, presumably about September 2004,
·       An action in respect of the fourth slander should have been commenced no later than April 2005,
·       An action in respect of the fifth slander should have been commenced no later than March 2006, and
·       An action in respect of the sixth slander should have been commenced no later than July 2007
The proceedings were not issued until 28 August 2008 and were therefore out of time. The plaintiff seeks an extension pursuant to s 48 of the Limitation of Actions Act.
Before the court can exercise the powers conferred by s 48 of the Limitation of Actions Act in this case it must first be satisfied that facts material to the plaintiff's case were not ascertained by the plaintiff until after the expiration of the period of limitation, that the action was instituted within 12 months after the ascertainment of those facts and that in all the circumstances of the case it is just to grant the extension of time.
The plaintiff claims that she commenced proceedings within 12 months after the ascertainment of material facts.
Originally the summons only alleged the first four slanders. The statement of claim was first amended on 20 September 2007 when what was then called the fifth slander, an alleged statement to Mr Ioannides, was added. A new paragraph 6A alleged that the defendant said to Vasilli Ioannides that the plaintiff had to leave the school because she had done something[1] and had not done any curriculum work for the science course.[2] That allegation was not supported by Mr Ioannides and has been deleted from the Further Amended Statement of Claim.
[1] para 6A.1.
[2] para 6A.2.
The Further Amended Statement of Claim was substituted on 28 April 2009 to include what are now defined as the fifth, sixth and seventh slanders.
In para 18A of the original Statement of Claim it was alleged that in late October-early November 2006 Patricia McKay informed the plaintiff of the first and second slanders, in paragraph 18B it was alleged that on 27 March 2007 Natasha Meissner informed the plaintiff of the third slander and in paragraph 18C it was alleged that in about March 2007 Irena Sander informed the plaintiff of the fourth slander.
The plaintiff claims that she learned of the fifth and sixth slanders at the time that she learned of the fourth slander.
Further amendments to the statement of claim were made and at trial the case proceeded on the basis of the Further Amended Statement of Claim in which the plaintiff alleged, in paras 22 and 23, that she was unaware of the slanders until at the earliest October 2006 and has commenced the action within 12 months of becoming aware of material facts pursuant to s 48 of the Limitation of Actions Act.
The parties both agree that the time issues are to be determined by legislation as it was at the time each cause of action arose.
I am satisfied that the facts which are relied upon by the plaintiff would be an essential element of her causes of action and are therefore material to her case as required by s 48(3a) of the Limitations of Actions Act. There is an issue as to when the relevant facts were in fact ascertained by the plaintiff.
The proceedings were issued on 28 August 2007 which the plaintiff claims was within one year of the plaintiff becoming aware of the material facts. As I have mentioned each slander is a separate cause of action and must be considered separately.
The plaintiff claims that she did not know that the slanders had been made until October 2006 onwards. If that is correct then proceedings issued on 28 August 2007 would have been issued within 12 months of the ascertainment of material facts relating to be first, second, third and fourth alleged slanders and the discretion of the court to grant an extension of time with respect to those causes of action would have been enlivened.
The amendment which introduced the claims in respect of the fifth and sixth alleged slanders would appear not to have been issued within 12 months of the discovery of material facts.
The defendant has put the plaintiff to proof with respect to whether the plaintiff learned relevant material facts within 12 months of proceedings being commenced.
The Publication of the Alleged Slanders
The First Alleged Slander
The first alleged slander is that in about April 2002 the defendant said in the presence of Patricia McKay, a mathematics coordinator at the school, when referring to the plaintiff's management of the science faculty of the school that the plaintiff "was inept and is not running the faculty properly".
The only person who gave evidence of the first alleged slander was Ms McKay. Her evidence was that in the first term of 2002, in the staff room, the defendant said, of the plaintiff, prior to a staff meeting when people were gathering and the topic of SACSAF frameworks was on everyone's lips that nothing had happened in the science area, and she alluded to the ineptness of the plaintiff. When asked to quote what Ms Philippou said Ms McKay gave evidence:
She said that Despina was very disorganised, that she would do things differently if she was running the faculty. She made comments to the fact that no work had been done, that is the best as I can - [3]
[3] T 170-171.
She believes that Ms Philippou used the word "inept".
Ms McKay said it was prior to a general staff meeting and people were arriving constantly. Ms McKay said that others present at the time the words were spoken were Maurice Phillips and Elizabeth Jones from the English faculty, Anthony Smith, Chris Bourne from the language faculty and John Lewis.
The defendant denied that she had made the alleged statement.
Mr Smith gave evidence that he had no recollection of any rumour coming to his attention in relation to Ms Liakos on any topic.[4] He had no recollection of a conversation in about April 2002 involving Ms McKay and Ms Philippou in which Ms Philippou said that the plaintiff was inept and not running the faculty properly.[5]
[4] T 435.
[5] T 436.
Mr Lewis gave evidence that he did not recall Ms Philippou in 2002 say in relation to Ms Liakos that she was inept and not running the faculty properly and he never heard Ms Philippou say that Ms Liakos did not do any work at all.[6] However he acknowledged in cross-examination that he could not now remember everything that was said at meetings in 2003 and 2004. I assume he would have given the same evidence so far as 2002 is concerned.
[6] T 404.
Counsel for the defendant pointed out that the Statement of Claim makes no reference to other persons being present.
Counsel for the defendant submitted that a Jones v Dunkel[7] inference, that is an inference that the evidence of those others said to have been present who were not called to give evidence would not have assisted the plaintiff’s case, should be drawn because their absence is unexplained.
[7] (1959) 101 CLR 298.
Proof of the first alleged slander depends upon acceptance of the evidence of Ms McKay.
The defence challenges the reliability and truthfulness of the evidence of Ms McKay. Counsel argued that the statement which is pleaded is highly improbable because it would have been unusual and unwise for a new science teacher to be publicly slandering her line manager in the general staff room within the first eight weeks of starting at the school.
Counsel for the defendant argued that Ms McKay had conceded in cross-examination that all that the defendant may have said was that she would be more structured. If so that may not be actionable. On this topic I accept the plaintiff’s submission that all that must be proved is the substance of the slander which has been pleaded.[8]
[8] Gatley on Libel and Slander, ninth edition para 32.13.
The real dispute is whether the alleged words, or substantially similar words, were spoken at all.
The Second Alleged Slander
The allegation in para 4 of the Further Amended Statement of Claim is that in about the third school term of 2002 the defendant said in the presence of Patricia McKay and Mary Lutley that the plaintiff had taken leave following allegations of inappropriate behaviour.
The evidence of Ms McKay was that the conversation took place in the staff room during a home group period, that there were very few people present or around, that she had gone to the staff room to get a cup of tea and overheard the defendant talking with a relief teacher who enquired why Ms Liakos was absent.[9] Ms McKay said:
…I heard Des Philippou state that she (the plaintiff) was away because she had been asked to take leave because she was being investigated for inappropriate behaviour with a student.
[9] T 172.
Ms McKay identified the person who asked the question as Mary Lutley.
Ms McKay said that she stepped in and said that it wasn't true and that she knew for a fact that Ms Liakos was on leave in order to settle her daughter into school. Ms McKay said that Ms Philippou responded that she was aware of information that Ms McKay was not privy to. Ms McKay gave evidence that she cautioned Ms Philippou saying "I wouldn't repeat stories like that, that I don't believe it to be true" and that killed the conversation.
Ms McKay did not make any enquiries as to what the inappropriate behaviour was or who the student was because from the outset she thought it was absolute rubbish.[10]
[10] T 208.
The defendant denies that she ever made the statement.
The plaintiff did not call Ms Lutley to give evidence.
On 30 April 2010 the plaintiff's solicitor discovered a signed statement of Ms Lutley which had been obtained by the Crown solicitor in connection with workers compensation proceedings by Ms Liakos. The statement does not support the plaintiff's claim. Counsel for the plaintiff advised the court that the statement had not been disclosed in accordance with the Rules of Court because it had "fallen through the cracks". The statement is an important document.
An affidavit established that Ms Lutley was overseas at the time of the trial and her statement was admitted into evidence pursuant to the Evidence Act against the opposition of the plaintiff.
In his final address counsel for the plaintiff argued that the statement of Ms Lutley was equivocal because all that Ms Lutley said in the statement was that she did not recall the event. However in para 16 of the statement Ms Lutley said "I had not heard rumours concerning Despina's sexuality. I did not hear any rumour or gossip from any member of staff relating to Despina being a paedophile at either Parafield Gardens High School or Marden High School".
I do not accept the plaintiff’s argument that the fact that the statement was prepared for the WorkCover claim rather than this defamation claim devalues its significance.
So far as the second alleged slander is concerned it is therefore necessary to weigh the testimony of Ms McKay on the one hand against the evidence of Ms Philippou and the statement of Ms Lutley.
Defence counsel argued that Ms McKay's evidence is improbable because if her evidence as to what the defendant said to her is correct she should, as the occupational health representative for the school, have reported the matter to the principal. It was argued that the fact that Ms McKay did nothing indicates that the defendant had not made the alleged statement to her.
The Third Alleged Slander
The third alleged slander is that in the third term of 2002 the defendant said to Natasha Meissner, an art teacher, that the plaintiff was forced to take leave due to improper conduct of a sexual nature with a student.
Ms Meissner gave evidence that early one morning in term 3 of 2002 she was in the science office area and enquired of Ms Philippou as to the whereabouts of Ms Liakos. Ms Meissner’s evidence was:
…And she said to me that she had been forced to take leave because of sexual harassment which had occurred during the school holiday period.[11]
[11] T 298.
Ms Meissner gave evidence that the defendant said the sexual harassment was "towards another student".
Ms Meissner’s evidence was "I said that that just didn't sound right to me, and I thought it was a misunderstanding and I didn't believe it".[12] She did not discuss the comment about the sexual harassment with anyone else but dismissed it.
[12] T 298.
Ms Meissner said that about two weeks after the conversation with Ms Philippou another teacher, Garth Cox, raised it with her in passing while they were on yard duty together.[13] Mr Cox asked whether she had heard the rumour that Ms Liakos had been forced to take leave because of improper conduct. Ms Meissner told Mr Cox that she had heard it and that the defendant had actually mentioned it to her. She said that she and Mr Cox both decided that it was hearsay and it was malicious and that they should dismiss it.
[13] T 298.
Mr Cox did not reveal who told him of the rumour. There is no basis for attributing the rumour that Mr Cox had heard to the plaintiff. Mr Cox has since passed away.
In examination in chief Ms Meissner had said that in 2002 she did not inform the plaintiff of the defendant's comments regarding the inappropriate behaviour. She said "It wasn't until we were - I was giving a statement to her lawyer that she found out the extent of those comments".
Ms Meissner said she gave a statement to Ms Liakos’ lawyer because Ms Liakos had phoned her towards the end of 2006 or the beginning of 2007 and asked if she had heard rumours and Ms Meissner told Ms Liakos that she had.[14] Ms Meissner attended at the plaintiff’s lawyer’s office in March 2007. The plaintiff was in the room with her when Ms Meissner gave the statement to her lawyer. After she had provided the statement the two of them went to lunch.
[14] T 300.
When asked to state what she told the plaintiff's lawyer at the meeting in the office Ms Meissner said "I explained when I had been working at the school how I knew Despina and also that I had been told by Des Philippou that Despina had been forced to take leave for improper conduct".[15] There is a difference between that alleged statement by Ms Philippou and the one referred to by Ms Meissner in earlier evidence in which she referred to sexual harassment.
[15] T 300.

In cross-examination Ms Meissner said that after enquiring as to the plaintiff's whereabouts Ms Philippou said that "Despina had been forced to take leave because of improper conduct or sexual harassment towards a student". When the cross examiner asked whether she had taken leave due to improper conduct or sexual harassment Ms Meissner said "sexual harassment" and she said that the phrase "improper conduct" was not used.
Ms Meissner said that Ms Philippou told her that the plaintiff had been asked to take leave by the Principal.[16] She acknowledged that prior to giving evidence she had not mentioned to any one else that it was the Principal who had forced her to take leave. Ms Philippou did not say what the sexual harassment was but did say "It was during the school holidays when Despina had taken - had some students come in for extra tuition". The cross examination continued:
QI just want to be clear about what she said to you.
AOkay. That it was students that Despina had had come in for extra tuition during the school holiday break.[17]
[16] T 306.
[17] T 306.
When counsel pressed as to whether it was more than one student Ms Meissner said "I believe it was one only one student". When it was pointed out that she had previously referred to "students" Ms Meissner said "No; that she had some students come in but that the sexual harassment was towards one student".
Ms Meissner replied in cross-examination that she told Ms Philippou that she did not believe the rumour, that there must be some misunderstanding and that it couldn't possibly be true. Ms Meissner then said she did not do anything herself about the matter because she dismissed it. She said she just kept it to herself and did nothing.[18]
[18] T 308.
Later in cross-examination Ms Meissner departed from her evidence in chief. She conceded that she did attempt to contact Ms Liakos but was unable to do so. She wanted to clarify why Ms Liakos was away from school but did not want to tell her about the rumour.[19] She said she was unable to contact Ms Liakos and assumed that she had gone to the Riverland to visit her parents. She tried to contact her on two occasions and got an answering machine.
[19] T 389.
When pressed further in cross-examination Ms Meissner acknowledged that she actually had a conversation with Ms Liakos. She said she just asked Ms Liakos why she had been away from school and Ms Liakos told Ms Meissner that she had taken long service leave because her daughter was starting school the following year and she wanted to check out some primary schools in her area and get ready for this process. Ms Meissner said that she made no reference at all to the rumour. She said "I certainly did not tell her what rumours I had heard, only that someone had said she had been forced to take leave".[20]
[20] T 312.
In para 22 of a signed statement which was prepared for the purpose of the workers compensation proceedings Ms Meissner referred to the nature of her relationship with the plaintiff saying "Despina and I would always seek each other out to talk in confidence and debrief some of our difficult experiences at the school".
Ms Meissner confirmed the nature of their relationship in her evidence saying that in 2002 she and Ms Liakos were friends, they went for walks together to "vent their frustrations" and confided in each other. Ms Meissner said that during some of their discussions Ms Liakos had complained to her about Ms Philippou.
Given such a relationship between the two women it is difficult to accept that during the telephone conversation which Ms Meissner ultimately conceded had taken place Ms Liakos did not request and Ms Meissner did not disclose, full details of what Ms Meissner had heard and its source.
In para 17 of the statement prepared for the purpose of the workers compensation proceedings Ms Meissner had acknowledged that she spoke to Ms Liakos. The written statement says "Eventually I contacted Despina Liakos at home and she told me that wasn't true that she had just taken leave".[21]
[21] T 319.
In the written statement Ms Meissner had said that Ms Philippou had told her "It was due to improper conduct with students" (that is more than one). Ms Meissner said the reference to the plural in the written statement was a typographical error. She attempted to explain the discrepancy on the basis of the short turnaround time for signing the document.
In her written statement Ms Meissner said[22] that Ms Philippou told her that Ms Liakos had been "suspended". In cross-examination she said that Ms Philippou did not actually say that. When asked to explain why she had signed an inaccurate document she responded "because being forced to take leave and being suspended in my mind is the same thing".[23]
[22] para 14.
[23] T 323-324.
In para 32 of the written statement Ms Meissner said she had been advised by Ms Liakos "That she was going to resign from her coordinators position because of the malicious rumours and constant harassment from Despina Philippou". That must have been during late 2002.
Given the close relationship between the two women it is difficult to imagine why the revelation by Ms Liakos to Ms Meissner of difficulties with Ms Philippou would not have inevitably lead to full disclosure by Ms Meissner of the rumour and its source. It would have been natural during the first telephone conversation for the plaintiff to want to know what the rumour was, what was being said about her and why it was said that she had been forced to take leave. Then the statement by the plaintiff later in the year that she was going to resign from the coordinators position because of harassment from Ms Philippou was a further invitation for the rumour to be discussed.
Ms Meissner was not a good witness. There were variations in her evidence as to the substance of the third allegedly defamatory statement itself. Her cross-examination and the production of her written statement elicited that her evidence in chief that she kept information to herself and did nothing was incorrect. Initially Ms Meissner had denied contacting Ms Liakos but during cross-examination conceded first that she had attempted to contact Ms Liakos and later that she had actually spoken with her, although she said that she had not disclosed the full extent of the rumour or its source.
Her written statement contradicted Ms Meissner's evidence in chief.
Ms Meissner’s initial evidence that she never contacted Ms Liakos must have been incorrect deliberately. It is consistent with a desire to give incorrect evidence for the purpose of assisting Ms Liakos.
It is hard to believe that Ms Meissner in 2002 would not have disclosed to Ms Liakos the full extent of the rumour and the identity of the person spreading it. Given the relationship between the two women I find the evidence of Ms Meissner improbable.
Additionally the plaintiff herself denied in evidence that she had been contacted by Ms Meissner about the matter. Ms Meissner's concession that she did contact the plaintiff demonstrates the unreliability of the plaintiff's evidence.
The Fourth Alleged Slander
It is alleged that in or about April 2003 at a Science Department Meeting the defendant said in the presence of Irena Sander and the science faculty including Michael Gallagher, John Lewis, Purinea Peculius Garth Cox and Dianne Tripodi that the plaintiff "Did not do any work on the SACSAF curriculum" and "Did not do any work".
The defendant denies making the alleged statement.
John Lewis could not recall the alleged statement.
Ms Peculius was not at the school in 2003.
Mr Gallagher was not called as a witness. There is no explanation as to why he was not called.
The only witnesses who supported the alleged statement were Ms Sander and Ms Tripodi who has since married and is now known as Mrs Forte.
The Fifth Alleged Slander
The fifth alleged slander is that in about March 2004 at a Science Department Meeting the defendant said in the presence of Irena Sander, Michael Gallagher, John Lewis, Purinea Peculius, Garth Cox and Diane Tripodi that the plaintiff "Did not do any work the SACSAF curriculum" and "Did not do any work".
The defendant denies making the alleged statements.
Mr Lewis and Ms Peculius gave evidence and could not recall the statements having been made.
Mr Gallagher was not called and there is no explanation for his absence. The defendant says that the proper inference is that his evidence would not have assisted the plaintiff's case.[24]
[24] Jones v Dunkel.
In cross-examination Ms Tripodi (Mrs Forte) agreed that she did not attend science faculty meetings in March 2004.[25]
[25] T 237.
The only evidence of the publication of this slander is the evidence of Ms Sander.
The incorrect allegation in the Statement of Claim that Ms Tripodi was present in March 2004 must have emanated from Ms Sander and is an indication of the unreliability of Ms Sander.
The Sixth Alleged Slander
The sixth alleged slander is that in about July 2005, at a Science Department Meeting, the defendant said in the presence of persons including Irena Sander, and the science faculty including Michael Gallagher, John Lewis, Purinea Peculius, Garth Cox, Diane Tripodi, Ron Sholtan and Rachel Boise that the plaintiff "Did not do any work on the SACSAF curriculum" and "Did not do any work".
Ms Philippou gave evidence that she did not make the alleged statement.
Ms Tripodi gave evidence that if she was at the school in April 2005 she would not have attended science faculty meetings. At that time she had recently given birth to a child and was only relief teaching.[26]
[26] T 237.
As I have already commented the incorrect reference in the statement of claim to Ms Tripodi being present must have emanated from Ms Sander and it demonstrates the unreliability of her evidence.
Mr Gallagher, Mr Sholtan and Ms Boise did not give evidence. There is no explanation for their absence and the defendant has submitted that a Jones v Dunkel inference should be drawn.
Again the only evidence in support of the alleged libel was the evidence of Ms Sander.
In the case of the sixth slander the statement was alleged to have been made two and a half years after the plaintiff had left the Parafield Gardens High School.
Discussion
The material substance of the fourth, fifth and sixth slanders is the same. The plaintiff alleges that the plain and ordinary meaning of the fourth, fifth and sixth slanders was that the plaintiff had not fulfilled her duties as a science coordinator and was lazy. She alleges that by way of innuendo those slanders meant and were understood to mean that the plaintiff did not undertake her duties diligently and was lazy.
I find that each of Ms McKay, Ms Sander or Ms Meissner were not satisfactory witnesses. Each of them provided reasons to doubt their testimony.
At the time each of the alleged slanders was made the statements were no more than passing comments. Ms McKay, Ms Sander and Ms Meissner did not attribute great significance to the statements at the time they were allegedly made and they did not repeat the statements to any other person.
In the case of the fourth, fifth and sixth alleged slanders there is no surrounding evidence which puts any of the statements attributed to the defendant into context. The statements seem to have been made out of the blue. Why the defendant would have raised the topic of the plaintiff's work in July 2005 when the plaintiff had left the school at the end of 2002 is unexplained.
Contrary to the submission of plaintiff’s counsel, the evidence and demeanour of Ms McKay, Ms Sander and Ms Meissner establishes that each of them was a friend of the plaintiff. Ms McKay and Ms Sander have assisted the plaintiff in the collation of evidence to support her case.
Counsel for the plaintiff submitted that Mr Ioannides was lying because he is scared of the defendant. There is no evidentiary basis for that submission. Mr Ioannides presented as an open and accurate witness. He was not shaken. His evidence demonstrates that Ms Sander was not a reliable witness.
In each case, having regard to the nature of the relationship of Ms McKay, Ms Sander and Ms Meissner with the plaintiff in 2002, I find it difficult to accept that if the alleged slanders had been spoken by the defendant they would not have mentioned the statements to the plaintiff. The fact that none of them did so gives rise to an inference that the alleged statements were never spoken.
Counsel for the defendant suggested there was a serious risk of cross contamination of their evidence because statements were provided to a solicitor in the presence of the plaintiff, the witnesses had discussions amongst themselves and in some cases had access to each other's witness statements prior to giving evidence. There is some substance in that criticism.
With the exception of Ms McKay, Ms Meissner and Ms Sander none of the other persons alleged to have been present at the time of the publication of the alleged slanders has provided support for the plaintiff's claim. Some were not called and the evidence of those persons who were called was inconsistent with the plaintiff's claim.
I find that it is appropriate to draw a Jones v Dunkel inference in those cases where the defence has submitted that such an inference should be drawn. In the case of the fourth, fifth and sixth alleged slanders a number of people are alleged to have been present but were not called. Ultimately proof of the fourth, fifth and sixth causes of action depends upon Ms Sander whom I thought was not a good witness.
The witnesses called by the defendant did not support the plaintiff's case.
I reject the submission by counsel for the plaintiff that the evidence of Mr Lewis, Mr Smith and Ms Peculius is likely to have been affected by the fact that Ms Philippou is now the assistant principal of the school where those three persons teach. Each of those persons impressed me as strong personalities and sound and reliable witnesses. There was no hint that their evidence may have been tainted by their relationship with Ms Philippou.
In the case of each of the alleged slanders the plaintiff has the onus of proving on the balance of probabilities that the alleged words were spoken. She must satisfy the court that it is more probable than not that each of the alleged statements was spoken by the defendant.
Whilst acknowledging the defendant's self-interest in the outcome I find that there is no reason to prefer the evidence of Ms McKay to the evidence of Ms Philippou. There are reasons for not accepting the evidence of Ms McKay. I cannot find that the evidence of Ms McKay was more probable than the evidence of Ms Philippou.
I find that the plaintiff has not proved on the balance of probability that the defendant spoke the words alleged to give rise to the first slander.
So far as the second slander is concerned I make the same observations about Ms McKay. The statement of Ms Lutley is contrary to the plaintiff's case.
I accept the defendant’s submission that if the alleged statement had been made to Ms McKay, that as the occupational health representative, she should have taken the matter further. The fact that Ms McKay did nothing is inconsistent with the alleged statement having been made by the defendant.
There are inconsistencies between Ms McKay's evidence to the court and her written statement made on 1 November 2006[27] in which she said she could not recall exactly when the alleged conversation occurred.
[27] Exhibit D15.
Ms Teasdale-Smith, Mr Lewis, Mr Smith and Ms Abbott gave evidence which was inconsistent with the existence of a rumour.
Again there is no reason, apart from her self-interest, not to believe the evidence of the defendant. She presented in the witness box as a reliable and truthful witness.
I find that the evidence does not establish that the defendant spoke the words alleged to give rise to the second slander.
For reasons which I have already expressed I have reservations about the evidence of Ms Meissner. Her testimony is not sufficient to establish that it was more probable than not that the defendant spoke the words said to give rise to the third slander.
The fourth, fifth and sixth slanders can be considered together. They all depend upon the evidence of Ms Sander. The alleged slanders are inconsistent with the evidence of other witnesses whose evidence I accept.
Ms Sander’s evidence that she had kept a mental note in 2003 of nine separate occasions on which Ms Philippou had allegedly uttered defamatory words was quite bizarre. She made a vague reference to a diary but no such document was produced.
Ms Sander demonstrated her personal commitment to the plaintiff's cause by identifying witnesses and her attempt to recruit Mr Ioannidis as a witness for the plaintiff. Her attempts to tape-record conversations also demonstrate commitment to obtaining evidence which might support the plaintiff.[28] She was not an independent and impartial witness. The fact that she incorrectly asserted that Ms Tripodi was present at the publication of the fourth and fifth slanders demonstrates the unreliability of her testimony. She did not present in the witness box as a believable witness.
[28] T 289.
So far as Ms Tripodi is concerned I think she was trying to do her best but had difficulty in recalling events eight or so years ago. She could only have been present at the time of the fourth alleged slander.
The evidence of Ms Tripodi was so general in nature that it does not establish that the defendant made the alleged statement at a science department meeting in April 2003.
Initially Ms Tripodi said the only statement by Ms Philippou which she could recall was "The previous science coordinator did not do any work in those folders, there was nothing in them".[29] She said such a statement was made probably at three science faculty meetings but the meetings were not identified.
[29] T 226.
Later in her evidence Ms Tripodi remembered the defendant saying to an American teacher "Don't worry about these folders there is nothing in them, no work was done". And Ms Tripodi remembered the defendant saying to new teachers "Sorry, these folders are useless".[30] They are not statements which the plaintiff relies upon.
[30] T 227.
Counsel for the defendant argued that Ms Tripodi's recollections are likely to have been contaminated by Ms Sander. It is unnecessary for me to make any finding as to that submission. While the evidence of Ms Tripodi does establish that Ms Philippou did make statements critical of Ms Liakos, her evidence does not identify the occasion of any particular statement or the substance of any particular statement by Ms Philippou which supports the publication of the fourth slander.
The only evidence of the fourth slander is the evidence of Ms Sander as to which I have serious reservations.
On the other hand there is the evidence of Ms Philippou and the evidence of the other persons who attended the meetings and said that the alleged statements were not made.
I am not persuaded on the balance of probability that the defendant spoke the fourth alleged slander.
The fifth and sixth alleged slanders are a repetition of the words said to constitute the fourth slander at later meetings in March 2004 and July 2005. Some of the persons said to have been at those meetings could not recall the alleged statements.
I find it is appropriate to draw a Jones v Dunkel inference with respect to the persons said to be present at the time of the fourth, fifth and sixth slanders who were not called to give evidence.
I accept the defendant’s submission that the fact that Ms Tripodi was not present at the school when two of the alleged slanders were said to have been spoken in her presence demonstrates the unreliability of the dates alleged and the evidence of Ms Sander generally.
I am not satisfied on the balance of probability that the defendant spoke the words relied upon at science department meetings in April 2003, March 2004 and July 2005. That is the plaintiff has not proved the fourth, fifth and sixth alleged slanders.

The plaintiff has failed to prove the publication of any of the six alleged slanders.
Extension of Time
While my finding that the plaintiff has not proved publication of the alleged statements makes the need for an extension of time otiose I dismiss the application for an extension.
One of the matters to be taken into account in the exercise of my discretion to extend time would be the likelihood of success. Having regard to my finding that the plaintiff has not proved her case it follows that the discretion would be exercised against the grant of an extension.
Also the evidence does not satisfy me that the plaintiff first learnt of material facts at the time when she said that she did.
The plaintiff denied that Ms Meissner had ever contacted her in 2002. That evidence has been shown to be incorrect by the cross-examination of Ms Meissner and the statement which was prepared for the workers compensation proceedings. The evidence of Ms Meissner establishes that she did speak to the plaintiff in 2002. Although the extent of the conversation is unclear, the evidence of Ms Meissner establishes that the plaintiff’s evidence was incorrect and cannot be relied upon.
There are other reasons to question the plaintiff's credibility. The evidence of other witnesses such as Ms Teasdale-Smith and Ms Abbott establishes that the plaintiff's evidence on factual matters, of which the plaintiff should have had an actual recollection, was incorrect. I am not prepared to rely upon the evidence of the plaintiff unless it is corroborated by objective facts or the evidence of other witnesses. In this context the evidence of Dr Ewer is important.
There is further evidence that shows that the plaintiff’s evidence was not correct. Ms Sander said that in July 2006 the plaintiff told Ms Sander that Ms McKay had told the plaintiff about the conversation that McKay had allegedly overheard between Ms Philippou and Ms Lutley in 2002. The plaintiff told Ms Sander that she heard from Ms McKay of a rumour about inappropriate sexual conduct with students.[31] That evidence of Ms Sander contradicts the plaintiff’s claim that she did not learn of the alleged slanders until October 2006 and it demonstrates the plaintiff to be an unreliable witness particularly as to when she learnt the material facts.
[31] T 281-282.
It is probable that the plaintiff received the information from Ms Sander as to the fourth, fifth and sixth alleged slanders in July 2006, which was outside the 12 month period.
In any event the claims in respect of the fifth and sixth slanders were not introduced into the proceedings until more than 12 months after the plaintiff had even on her own evidence learnt the material facts. As a consequence the plaintiff could not be entitled to an extension of time with respect to the fifth and sixth slanders in any event.
Another relevant consideration is the extent of the delay. I accept the plaintiff’s submission that if the plaintiff was unaware of the slanders that would be a good explanation for the delay. However if the plaintiff had received knowledge of the rumour from Ms Meissner in 2002, or knowledge about the fourth, fifth and sixth alleged libels in July 2006 from Ms Sander, the plaintiff would not be entitled to an extension under s 48.
I do accept the submission of Mr Keen that in a case such as this the plaintiff has no duty to use due diligence to discover the facts in question.[32] Bray CJ observed there is no requirement of due diligence and there should be no reference to what might have been discovered by taking appropriate action. His Honour said:
A plaintiff may still be entitled to ask the Court to extend the time under the section, notwithstanding that he has been supinely inactive and notwithstanding that the material facts might easily have been ascertained earlier and notwithstanding that their nature is not such as to be decisive of the success of the action or even such as to have in his mind weighed down the balance in favour of litigation.
[32] Napolitano v Coyle (1977) 15 SASR 559 per Bray CJ at 569.
That observation is not appropriate to the situation where the plaintiff does have actual knowledge of the material facts.
Damages
In conclusion I observe that the alleged publication of the slanders was very limited.
The first slander is alleged to have been published only to Ms McKay who disregarded the statement.
The second slander is alleged to have been published to Ms McKay and Ms Lutley. Ms Lutley does not acknowledge any publication to her. Ms McKay immediately disregarded the statement and the slander went no further.
The third slander was allegedly published to Ms Meissner and went no further.
The fourth, fifth and sixth alleged slanders could at most have been published to a limited group of six or seven teachers, although the evidence does not even establish that. The only evidence of publication is to Ms Sander and perhaps Ms Tripodi. There is no evidence of the alleged slanders spreading further than that group.
While special damage is presumed there is no evidence that any of the slanders have damaged the plaintiff's reputation.
There is no evidence to support the alleged "grapevine affect".
There is no evidence that the plaintiff suffered mental anguish or distress as a consequence of the alleged slanders. The evidence does not establish that they had spread beyond the persons to whom they were published and there is therefore no reason that any other person treated the plaintiff differently because of the alleged slanders.
If the plaintiff experienced difficulties at Parafield Gardens High School there are explanations for those difficulties which are unrelated to the alleged slanders. There is no evidence that difficulties which the plaintiff experienced when she moved to Marden Senior College can be attributed in any way to the alleged slanders. It is unnecessary to descend to detail but that evidence includes matters such as the medical condition diagnosed by Dr Ewer and the plaintiff’s relationship with another teacher.
On her evidence the plaintiff was unaware of any of the alleged slanders during the time that she was at Parafield Gardens High School and Marden Senior College. There is no evidence that others treated her differently because of the slanders.
The plaintiff has not established any actual damage as a consequence of the alleged slanders.
If I had granted an extension of time and found that the plaintiff had proved that the alleged slanders were published I would have assessed damages at the very lowest end of the scale.
For the reasons which I have mentioned the plaintiff's claim is dismissed. There will be judgment for the defendant.