Scali v Scali - [2015] SADC 172

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SCALI v SCALI
[2015] SADC 172
Judgment of Her Honour Judge McIntyre
21 December 2015
DEFAMATION - ACTIONS FOR DEFAMATION - COSTS - OTHER MATTERS
The plaintiff claims that his brother, the defendant, defamed him in 11 videos posted on You Tube. He seeks damages, permanent injunctions and an apology. The defendant filed a defence and counter-claim in which he admitted making and posting the video clips; but he says that the matters asserted in those videos are true. His counterclaim was for damages for a range of matters including defamation.
Held:
1. The counterclaim is dismissed.
2. The videos give rise to defamatory imputations against the plaintiff.
3. The defence of justification is not made out.
4. The plaintiff is entitled to damages in the sum of $20,000 inclusive of interest.
5. The plaintiff is entitled to injunction.
Defamation Act 2005 s11, 23, 24, 28, 29, 32, 35, referred to.
Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173; Waterhouse v Australian Broadcasting Corporation (1987) 87 FLR 369; Sands v Channel Seven Adelaide Pty Ltd (2010) SASC 202; Australian Defamation Law & Practice [10,001]; Farquhar v Bottom (1980) 2 NSWLR 380; Favell v Queensland Newspaper Pty Ltd (2005) 79 ALJR 1716; Chakravarti v Advertiser Newspaper Ltd (1998) 193 CLR 519; Jones v Skelton [1964] NSWR 485; Lewis v Daily Telegraph Limited op cit; Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; Cornes v Ten Group Pty Ltd & Ors (2011) 114 SASR 1 ; Mundey v Asksin [1982] 2 NSWLR 369; ; Bennette v Cohen (2005) 64 NSWLR 81; Sutherland v Stopes [1925] AC 47 ; Howden v Truth & Sportsman (1937) 58 CLR 416; Potts v Moran (1976) 16 SASR 284 at 306; Edwards v Bell [1824] 1 Bing 403 at 409; Rogers v Nationwide News (2003) 77 ALJR 1739 at 1752, considered.

SCALI v SCALI
[2015] SADC 172
Introduction

The plaintiff Vincent Scali claims that his brother John Scali defamed him in 11 videos posted on You Tube. He issued proceedings in the minor civil action jurisdiction of the Magistrates Court of South Australia on 12 February 2015 seeking damages and consequential orders. The defendant, John Scali, filed a defence and counter-claim on 13 March 2015 in which he admitted making and posting the video clips but he says that the matters asserted in those videos are true. The defendant’s counter-claim was for a range of matters and sought damages in the sum of $10.3 million. The proceedings were then transferred to the District Court.
For the reasons that I now publish I dismiss the counterclaim and I find that the plaintiff has been defamed by the defendant. I award the plaintiff damages in the sum of $20,000 and make a number of consequential orders.
Procedural Matters
The matter had a difficult progress through the Master’s list. Both of the parties are unrepresented. Neither had a proper appreciation of the legal complexity of the cases that they assert, the rules of court, or the necessity for proper pleadings. A number of hearings were conducted in an attempt to ensure compliance with the rules of court as to pleadings, discovery and preparation for trial. It is apparent from the court record that there were a number of hearings and a number of orders made. The orders were not, in the main, complied with.
In a hearing on 1 October 2015 Master Blumberg determined, properly in my view, that it was appropriate to list the matter for a judicial determination rather than persist with the attempt to require compliance with the rules of court. The trial was listed for five days commencing Monday 23 November 2015.
The trial
As with the interlocutory proceedings, the trial did not proceed in an orthodox manner.
The plaintiff sought at the outset to amend the quantum of his claim to $250,000. The proposed amendment had been raised during the interlocutory proceedings. There did not appear to be much science to the amount claimed but the basis of the amendment was the loss alleged to have been suffered by the plaintiff as a result of the delay in launching his new business venture Scholarship Saviour Pty Ltd;.
The plaintiff gave evidence and tendered a disc containing the You Tube videos of which he complained. Some of these were played in court. The content was highly repetitious, some of it was irrelevant to the plaintiff and some of it was disturbing. Accordingly the videos were not played in full during the hearing but a representative sample was played; sufficient to identify all of the imputations of which the plaintiff complains. During the course of the trial I viewed the videos in full in chambers. That, together with some additional documents, was the plaintiff’s case.
The defendant gave evidence and tendered a number of documents, not all of which have any apparent relevance to the matters in dispute. He also wished to tender a very large volume of material including audio and video recordings taken by himself. During the course of the interlocutory proceedings he filed three lists of documents. None of them identified in any proper manner the documents that he wished to rely upon. The second list of documents was accompanied by a two terabyte external hard drive; the list does not indicate what was on that hard drive. The letter accompanying the second list of documents suggests that in addition to what was on the hard drive the defendant has another 14,000 documents, videos and audio recordings together with a number of photographs that he has not been able to “contemplate”. The letter stated however that the defendant intended to bring only enough material to the trial to show a pattern of behaviour by the plaintiff.
During the course of the trial I gave the defendant a number of opportunities to produce and tender the documents that he wished to rely upon. I ruled a number of documents and recordings inadmissible. In particular he had a USB drive which contained three audio recordings. The first is a recording of a telephone call between the plaintiff and the Enfield Council. It appeared to me that this was likely recorded in breach of the Telecommunications Act and that the court ought not to receive such material. Further the content, as described by the defendant, appeared to have no relevance to the proceedings before the court. The other two recordings were described as recordings of people who told the defendant things about the plaintiff’s conduct towards their mother. Neither the circumstances in which those recordings were obtained, nor the relevance of them was clear. I ruled the material to be inadmissible. I informed the defendant that if he wished to produce evidence of such matters he ought to call the people the subject of those recordings to give evidence and be cross-examined in the usual way. He did not do so.
The defendant also sought to call two witnesses that had expressed some reluctance to attend court. One was his sister. The other was the plaintiff’s former brother-in-law. The plaintiff did not object to this; indeed he suggested that this evidence would be supportive of his position. Accordingly, I granted an abridgement of time for the service of subpoenas on those two witnesses. The plaintiff’s former brother-in-law Alexander Szabo attended in response to the subpoena and gave evidence. The sister did not attend. She was not personally served. The plaintiff further informed me that their sister was unwell and had been in hospital undergoing some form of surgery. I was not asked to take any steps in relation to the subpoena nor did the defendant request an adjournment. In any event the sister’s evidence was not likely to be germane to the matters to be determined in these proceedings and at best related to collateral issues.
The plaintiff gave his evidence in a coherent and cogent manner. The same cannot be said for the defendant whose evidence was confused, discursive and often irrelevant to the issues in dispute, despite attempts to direct him to those issues. It is clear that there is considerable ill feeling between the brothers. This coloured the evidence of both. Where there was a dispute between the two I prefer that of the plaintiff as providing a more cogent narrative.
Mr Szabo was understandably uncomfortable at being drawn into this matter and asked to recall matters that had taken place many years ago. Notwithstanding this discomfort I found him to be a careful witness who did his best to assist the court. I accept the evidence that he gave.
The background
The plaintiff and the defendant are brothers. The plaintiff is 68 and the defendant is 67. They have one sister. They grew up in Adelaide living on O.G. Road until 1963 when the family moved to Third Avenue Klemzig. Their father died many years ago. Their mother is in her 90’s and now in a nursing home.
The plaintiff started work as a cadet car salesman. At 21 he endeavoured to start his own business, Vincent Scali Motors on Payneham Road. This business failed. He was bankrupted in consequence. He then worked in a number of different organisations selling cars. At the same time he studied at night school for three years in order to become a land agent. He still holds a registered land agents licence and is an auctioneer. He continues working consulting to banks on repossessions and does occasional auctions.
Over the years the plaintiff has set up a number of businesses mostly related to real estate. He has subdivided properties and built homes in Alice Springs, Tennant Creek and Murray Bridge. He undertook a large commercial project called Homemaker City at Greenfields in 1987.
The plaintiff stood for Federal Parliament in the last election in the seat of Adelaide for the Palmer United Party, and he stood for Council in the last Adelaide City Council elections. He was not successful in either election.
The plaintiff was formerly married and has children. He maintains an amicable relationship with his former wife and is close to his children.
The defendant John Scali has also worked in a variety of occupations but principally in building with a specialisation in restoration projects. He also set up a business called “Quick Lube” which did not prosper. It appears that he is not currently working. He was married for many years and has four children who are now adults. It appears from his evidence and from the You Tube videos that the breakup with his wife was acrimonious. He has had no contact with his former wife or his children for some four or five years, possibly longer.
The defamation claim
Where was the material complained of published?
The defendant admits that he made and posted the videos that the plaintiff complains of on You Tube which is an internet based platform that can be accessed world-wide. It is not possible on the state of the evidence before me to ascertain where the videos were viewed. Section 11 of the Defamation Act 2005 (SA) provides as follows:
11—Choice of law for defamation proceedings
(1)     If a matter is published wholly within a particular Australian   jurisdictional area, the substantive law that is applicable in that area must          be applied in this jurisdiction to determine any cause of action for   defamation based on the publication.
(2)     If there is a multiple publication of matter in more than one Australian          jurisdictional area, the substantive law applicable in the Australian                    jurisdictional area with which the harm occasioned by the publication as               a whole has its closest connection must be applied in this jurisdiction to         determine each cause of action for defamation based on the publication.
(3)     In determining the Australian jurisdictional area with which the harm            occasioned by a publication of matter has its closest connection, a court           may take into account—
(a)     the place at the time of publication where the plaintiff was   ordinarily resident or, in the case of a corporation that may assert a                  cause of action for defamation, the place where the corporation had   its principal place of business at that time;      and
(b)     the extent of publication in each relevant Australian jurisdictional   area; and
(c)     the extent of harm sustained by the plaintiff in each relevant   Australian         jurisdictional area; and
(d)     any other matter that the court considers relevant.
(4)     For the purposes of this section, the substantive law applicable in an           Australian    jurisdictional area does not include any law prescribing rules             for choice of law that differ from the rules prescribed by this section.
(5)     In this section—
Australian jurisdictional area means—
(a)     the geographical area of Australia that lies within the territorial                    limits of a particular State (including its coastal waters), but not   including any territory,      place or other area referred to in   paragraph (c); or
(b)     the geographical area of Australia that lies within the territorial                    limits of a particular Territory (including its coastal waters), but not   including any territory, place or other area referred to in   paragraph (c); or
(c)     any territory, place or other geographical area of Australia over                  which the Commonwealth has legislative competence but over   which no State or Territory has legislative competence;
external Territory means a Territory, not being an internal Territory, for the government of which as a Territory provision is made by a Commonwealth Act;
geographical area of Australia includes—
(a)     the territorial sea of Australia; and
(b)     the external Territories of the Commonwealth;
multiple publication means publication by a particular person of the same, or       substantially the same, matter in substantially the same form to 2 or more    persons.
Having considered the evidence in this matter it is clear that the plaintiff’s place of residence at the time of publication was in South Australia and that any harm suffered by him has principally taken place within South Australia. It is my view that the appropriate law to be applied is that of South Australia and specifically the Defamation Act (2005) (SA). Although the defamatory material may have been published and viewed in other States and Territories in Australia or indeed overseas, the plaintiff is entitled to recover damages in this action for any injury to his reputation and hurt to his feelings for the entire publication of the material including those publications outside the jurisdiction and outside South Australia.[1]
[1] Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173; Waterhouse v Australian Broadcasting Corporation (1987) 87 FLR 369
The matters complained of
The plaintiff did not plead his claim properly, despite attempts by the Master to encourage proper pleadings. Accordingly whilst it is clear from his pleadings that he complains of 11 video clips prepared by the defendant and posted on You Tube he does not plead the imputations of which he complains nor any of the other matters usually pleaded in defamation proceedings.
The video clips were posted from late 2013 but the plaintiff says that he did not become aware of them until late 2014. At that time the plaintiff was setting up a business called Scholarship Saviour Pty Ltd. A friend told him to Google that company name. When he did so his website for Scholarship Saviour Pty Ltd came up but in addition there were two You Tube video clips. When he viewed those video clips the plaintiff noted that there were other video clips relating to him, all of which were posted by his brother.
The plaintiff tendered a disc which was prepared in November 2014 containing a download of 11 clips of varying length appearing in the defendant’s You Tube account, together with a number of screen shots of the defendant’s You Tube postings as at 28 November 2014.[2] The screen shots demonstrate the number of occasions on which the videos had been viewed as at that date. The parties agreed that the number of views shown was accurate. The plaintiff attempted to have the video clips removed from You Tube. Ultimately this occurred in June 2015. The parties agreed that it was likely that there would have been more views of the videos in that additional 6 months time frame. Of course this says nothing of the people who viewed the videos or of the location of the people who viewed them. Plainly however at least one person acquainted with the plaintiff saw at least one of the videos in order to alert him to their presence.
[2] Exhibit P1
The videos, and the number of views as at 28 November 2014, are as follows:
“Evil sicko clan no. 1” – published on 15 December 2013 – 78 views
“Evil sicko clan no. 2” – published on 15 December 2013 – 57 views
“Evil sicko clan no. 3” – published on 15 December 2013 – 54 views
“Evil sicko clan no. 4 - Psych meeting” – published on 15 December 2013 -    53 views.
“Evil sicko clan no. 5 – Demands apology when its Devil’s fault”     published on 23 December 2013 – 60 views.
“Evil sicko clan no. 6 – Living with a Psychopath” – published on 23       December 2013 – 94 views
“Palmer United Psychopath Candidate 3” – published on 7 September 2013     – 24 views
“Palmer United Psychopath Candidate 4” – published on 7 September 2013     – 30 views
“Palmer United Psychopath Candidate 5 – Why” - published on 8    September 2013 – 43 views
“Scholarship Saviour number 2” – published on 25 November 2014 – 8 views
“Scholarship Saviour Adelaide City Council Psychopath Candidate” – published on 5 November 2014 –23 views
The video clips range in length from approximately 10 minutes up to half an hour. The video clips contain what I can only describe as a repetitive diatribe against a number of people against whom the defendant appears to hold some form of grudge; including his ex-wife, his former mother in law and his brother the plaintiff. The video clips contain not only the defendant’s voice but also a number of captions, photographs, documents and cartoons. Some of the material was distressing such as the use of photographs of battered women and injured children; some of the material was vulgar including various expletives, photographs of naked women and cartoons in dubious taste. As I have indicated the disc was not played in its entirety in the court room. I have however subsequently viewed the entirety of the videos in chambers to confirm the plaintiff’s evidence that the remaining video footage was of a similar nature to that viewed in court.
The titles of the various videos are instructive. The series of six videos with the title “Evil Sicko Clan” is, I infer, a reference to the defendant’s former wife and her family. The plaintiff is mentioned in all of those videos variously as “Vince Scali”, the defendant’s brother “Vince” or as “HOS” which the defendant explains is a reference to Vincent Scali and short for “Heap of Shit”. The three videos entitled “Palmer United Psychopath Candidate” are, I find, a clear reference to the plaintiff and his candidacy in the Federal seat of Adelaide. The plaintiff is clearly identified as the candidate in question in the content of the video. The two videos entitled “Scholarship Saviour” and “Scholarship Saviour, Adelaide City Council Psychopath Candidate” are, I find, a clear reference to both the plaintiff and to his business “Scholarship Saviour Pty Ltd”. The plaintiff and his company are clearly identified in the videos.

In his evidence, but not his pleadings, the plaintiff says that there are a number of imputations contained in the videos that can be summarised as follows:
·That the plaintiff is a failed businessman and has been bankrupt 11 times;
·That the plaintiff conned people out of property and is a liar, conman and fraudster and has stolen or embezzled money from others;
·That the plaintiff sent money to the Philippines for prostitutes;
·That the plaintiff had Botox treatment;
·That the plaintiff is a psychopath;
·That the plaintiff is responsible for the suicide of a contractor who worked for him;
·That the plaintiff ill treats his mother;
·That the plaintiff’s business venture Scholarship Saviour Pty Ltd is a scam
The plaintiff says that each of these imputations is defamatory of him.
The legal principles to be applied
In order to establish a claim in defamation the plaintiff must meet four threshold conditions:
1The first is that each of the matters complained of is capable of being defamatory of the plaintiff.
2The second is that the defamatory meaning is in fact conveyed by the video clips in question.
3The third is that the matters complained of were published by the defendant; and
4The fourth is that the matters complained of were published of and concerning the plaintiff.[3]
[3] Australian Defamation Law & Practice [10,001]
In determining those matters I will apply the following principles:
·The onus of proof rests on the plaintiff to establish on the balance of probabilities that the meanings complained of were in fact conveyed by the video clips.[4]
[4] Sands v Channel Seven Adelaide Pty Ltd (2010) SASC 202
·The natural and ordinary meaning of the video clips must be determined objectively by reference to the perception of the ordinary reasonable reader of average intelligence.[5]
[5] Farquhar v Bottom (1980) 2 NSW LR 380 & Favell v Queensland Newspaper Pty Ltd (2005) 79 ALJR 1716
·In determining the natural and ordinary meaning conveyed to the ordinary reasonable viewer of the video clips the court must approach the matter on the basis that this hypothetical person is neither perverse, naive, suspicious nor avid for scandal. The ordinary, reasonable reader does not live in an ivory tower but rather approaches the interpretation of the publication in the light of their general knowledge and experience of worldly affairs.[6]
·While the ordinary reasonable reader is capable of a certain level of loose thinking there is nevertheless a requirement of reasonableness, with the consequence that a publisher will not be responsible for every conclusion reached by the viewer. I must reject any meanings which are strained or forced, or those which are reached through guess work or suspicion, or those which are reached by taking into account the individual beliefs of the viewer excited by what was said or shown.[7]
·A reasonable viewer considers the publication as a whole and attempts to strike a balance between the most extreme meaning that the words could have and the most innocent meaning.[8]
·Having decided what the words do in fact mean, I must then determine whether the meaning is defamatory.[9]
·It is the disparagement of reputation that is the essence of an action for defamation. In other words: does the imputation lower the standing of the plaintiff within the community or the estimation within which he is held; or is it likely to cause people to think less of the plaintiff.[10]
·A defamatory statement need not be proven to be untrue by the plaintiff. If the defendant wishes to assert that it is true it is up to the defendant to prove that the statement is true.[11]
The defendant’s assertions concerning the plaintiff are unambiguous and conveyed by both what he says in the video clips and by what is shown. By way of example, the video “Scholarship Saviour number 2” starts with a voiceover by the defendant and graphic stating that the video is a “scam alert”. The voiceover asserts that Scholarship Saviour is “nothing but a big con”. The video shows the plaintiff’s Scholarship Saviour business card with a voice over stating that he, the plaintiff, is “a con artist trying to con you out of your money so that he can lead his parasitic lifestyle”. The video then shows photographs of the plaintiff and several of his business cards over what appears to be an extended period of time. One of these is a business card for “Vincent Scali and Co”, a real estate business, with a photograph of the plaintiff as a much younger man than he now appears. Written on the card by the defendant are the words “Open approx. 1 year then bankrupt”. Later in the same video the defendant asserts that the plaintiff has “record bankruptcies” and “over 11 bankruptcies”. Also in this video is a screen shot of the plaintiff’s biography taken from the Scholarship Saviour website and annotated by the defendant to include the words:
‘B’ = bankrupt and big bullshit artist
‘B’ = Homemaker City 1 suicide
[6] Chakravarti v Advertiser Newspaper Ltd (1998) 193 CLR 519
[7] Jones v Skelton [1964] NSWR 485, Favell v Queensland Newspaper Ltd as above; & Channel Seven Adelaide Pty Ltd v SPJ (2006) 94 SASR 296
[8] Jones v. Skelton op cit; Favell v. Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716
[9] Lewis v Daily Telegraph Limited op cit; Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506
[10] Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460
[11] Cornes v Ten Group Pty Ltd & Ors (2011) 114 SASR 1 at para 9
Commitment to help himself to your $
The same video refers to the plaintiff as a psychopath, narcissist and “pathalogical” (sic) liar. It concludes with a recording of the defendant apparently arguing with the plaintiff in the presence of their mother who appears distressed. The purpose of this is stated to be to demonstrate that the plaintiff does not deny the allegations which, the defendant asserts in the video, demonstrates the truth of his allegations. I do not consider that this follows as a matter of logic. In any event, whilst the defendant is clearly heard repeating the assertions contained in the earlier part of the video, it is difficult to hear the plaintiff’s response owing to the poor quality of the recording. The recording is accompanied by graphics dealing with topics such as psychopaths, conmen and the like. The other videos contain similar assertions in a similar format.
I have considered whether this material is “mere vulgar abuse” given its content. A considerable portion of the material complained of, both spoken and visual, is vulgar abuse but the case law makes it plain that there is not a dichotomy between vulgar abuse and defamation and that it does not follow that because something is vulgar abuse it is not therefore defamatory. The issue is whether the material complained of is likely to affect the reputation of the plaintiff.[12]
I have also considered whether the assertions are so outlandish both in form and content that no reasonable person would believe them. Having considered the matter carefully I have come to the conclusion that the imputations are so serious, repeated and unambiguous that it is likely that they would lower the standing of the plaintiff within the community and would likely cause people to think less of him. To paraphrase the colloquial term, if enough mud is thrown some of it will inevitably stick. I therefore find that the imputations complained of are capable of being defamatory of the plaintiff and that these defamatory meanings are in fact conveyed by the words used and the matters depicted on the videos.
[12] Mundey v Asksin [1982] 2 NSWLR 369; Bennette v Cohen (2005) 64 NSWLR 81
The defendant admits making the videos and publishing the videos on You Tube. He further admits that the matters complained of were published about the plaintiff. Indeed he reiterated many of the matters in his evidence and plainly continues to hold the same views as those expressed in the various videos. As discussed above, I consider that the ordinary reader would readily understand that each of the various imputations identified relate to the plaintiff.
Accordingly I find that the plaintiff has met the four threshold conditions for a defamation claim. The question is now whether the defendant has made out a specific defence to that claim.
Justification/Substantial Truth
The defendant’s defence is stated as follows:
I have only spoken the truth and under the truth is not slander or defamation.
I note that the distinction between slander and libel has been abolished and the publication of defamatory material is actionable without proof of special damage. The defendant agreed that the basis of his defence was that his videos, insofar as they related to the plaintiff, were substantially true or justified.
It is a defence to a claim in defamation to establish that an imputation is true in substance and in fact. The Defamation Act 2005 provides as follows:
23—Defence of justification
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
24—Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
It is stating the obvious to say that the onus of proof rests with the defendant. He indicated that he had evidence to establish that the assertions in his videos were true.
The position is similar at common law where the defendant is required to prove on the balance of probabilities that the words published in the imputation were substantially true.[13] The notion of substantial truth is meant to convey that:
….slight inaccuracies of detail which do not affect the substance of the charge will not prevent the success of the plea.[14]
[13] Sutherland v Stopes [1925] AC 47 & Howden v Truth & Sportsman (1937) 58 CLR 416
[14] Potts v Moran (1976) 16 SASR 284 at 306; Sutherland v Stopes (above)
It is not necessary to prove the truth of every detail of the words used. What the defendant must do is prove the “sting” of the assertions.
“As much must be justified as meets the sting of the charge, and if anything be contained in the charge, which does not add to the sting of it, that need not be justified.[15]
[15] Edwards v Bell [1824] 1 Bing 403 at 409.
I will deal with each of the imputations in turn.
The plaintiff’s business acumen
A number of the imputations complained of relate to the plaintiff’s business acumen. The videos repeatedly indicate that the plaintiff has failed in business on a number of occasions and that he has been bankrupt on eleven occasions. The sting of the imputations is that the plaintiff, as a failed businessman, is ill-equipped to assist others with financial matters.
The plaintiff admitted in evidence that he had one failed business, that of Vincent Scali Motors and that he had been bankrupt in his early twenties as a result of the failure of that business. He described himself as an entrepreneur who was always on the lookout for opportunities. The plaintiff conceded that he could have done better but that he also says he could have done worse. He has had both successes and failures.
The defendant sought to prove that the matters he stated on the videos were true by tendering searches from the Australian Securities and Investments Commission.[16] He contended that this showed that he had understated the number of the plaintiff’s bankruptcies and business failures in the videos and that in fact there had been 26. This document does not demonstrate that Mr Vincent Scali has been made bankrupt on 26 occasions nor does it show that companies or business names associated with him have failed. It is simply a record of businesses and business names with which the plaintiff has been involved, some of which have ceased to operate. None appear to have been placed into liquidation; none appear to have had receivers or liquidators appointed. This document falls far short of establishing the substantial truth of the assertions made by the defendant in the videos. I find that the defendant has failed to discharge his onus of proof in respect of the defence of justification in respect of these imputations.
Scholarship Saviour Pty Ltd.
[16] Exhibit D1
The defendant asserts in unambiguous terms that the Scholarship Saviour business is a scam and that the plaintiff is a con man who has set this business up in order to con people out of their “hard earned money”.
The plaintiff gave evidence about the Scholarship Saviour business, his intentions in relation to it and the steps he took to set it up. He indicated that he had sought legal advice in relation to setting up the business. He provided evidence of that and some of the costs associated with that advice.[17] He indicated he had also sought financial and tax advice. He had responded to queries raised by the Australian Securities and Investments Commission. He had commissioned a web site and had sought further legal advice about his ultimate intention to franchise the business. The defendant on the other hand produced no evidence to justify his assertion that this business is a scam. It appears that he bases this opinion upon his view of the plaintiff’s past business history. There is no foundation in the evidence for his view and accordingly I reject the defence of justification.
Did the plaintiff con people out of properties?
[17] Exhibits P2 and P3.
The basis for the assertion that the plaintiff conned people out of a property or properties was not entirely clear. The defendant produced absolutely no proof in respect of this assertion and I reject his defence of justification.
Prostitutes and Botox
The defendant says that the plaintiff sent money to the Philippines for prostitutes. The video where this is asserted also shows a receipt for a transfer of money to the Philippines. It purports to show that money was sent by the plaintiff to the Philippines. There is no evidence as to the circumstances of that transfer and indeed whether the transfer was in fact made by the plaintiff. There is no evidence to support an assertion that it was sent there for prostitutes.
The assertion that the plaintiff had botox treatment is based upon an appointment card for a doctor in Melbourne Street located by the defendant.[18] The doctor’s practice is entitled “Melbourne Street Medical and Cosmetic”. The card does not bear the plaintiff’s name; simply an appointment time. The defendant formed the view based on his brother’s appearance and this appointment card that he must have attended the appointment for the purpose of botox treatment. This falls far short of proving the positive assertion. The plaintiff denies ever having had botox treatment but says that he consulted the doctor in question as a general practitioner when he lived nearby. I reject the defence of justification in relation to that imputation.
Liar, Conman and Fraudster
[18] Exhibit D10.
The videos assert on a number of occasions that the plaintiff is a liar, conman and fraudster who has stolen or embezzled money from others. The defendant called Mr Szabo to give evidence in support of this proposition. Mr Szabo’s sister was the plaintiff’s wife. He has known the plaintiff since the early 1970’s. Mr Szabo gave evidence about a transaction involving a ute that he lent to the plaintiff in the early 1970s. The vehicle was owned by the business operated by Mr Szabo and his father. Mr Szabo said that he loaned the ute to the plaintiff to take to the Northern Territory. He says that the ute was not returned and that the plaintiff sold it. Mr Szabo said that when he spoke to his father his father took a forgiving attitude towards the matter and told him not to “rock the boat” because the plaintiff was family.
The plaintiff gave evidence that he has no recollection of borrowing a ute. He suggested to Mr Szabo that he was mistaken. Mr Szabo said that he was not. I accept Mr Szabo’s recollection. It is however hard to know what to make of the incident given it occurred many years ago and other parties were involved principally the plaintiff’s former wife and her father. It is at least possible that there was more to the incident than Mr Szabo is aware of. I consider that this evidence of itself or in combination with the other matters relied upon by the defendant falls far short of establishing a justification for the sting of the imputations made by the defendant.
The other matters about which Mr Szabo gave evidence relate to investments made by his sister following her separation and divorce from the plaintiff. These investments appear to have been unsuccessful. Mr Szabo thought that the plaintiff may have encouraged her to enter into at least one of these investments. Mr Szabo said however that he was not fully aware of the circumstances surrounding these transactions and he noted that other knowledgeable people had invested in at least one of those projects thinking that it would be a successful venture. As far as he was aware, the plaintiff was not involved in those investments. Mr Szabo was not prepared to blame the plaintiff for his sister’s losses nor did he suggest that the plaintiff gained anything out of them. Mr Szabo further acknowledged that the plaintiff has a good relationship with his former wife and his children. This seems inconsistent with the proposition that the plaintiff has conned his former wife in the manner suggested by the defendant.
The other evidence produced by the defendant to support his assertions that the plaintiff was someone who has stolen or embezzled money relates to the sale of the former family property on O.G. Road. He tendered a Memorandum of Transfer apparently signed by the plaintiff, the defendant and their sister on 22 April 1980.[19] The defendant says that he knew nothing of the sale of the property and that the plaintiff forged his signature on that document. The plaintiff denies this. The plaintiff produced the settlement statement for that property[20] prepared by licensed conveyancers which shows net proceeds of $30,000 distributed equally between the three siblings. The defendant gave evidence that he did receive a cheque for $10,000 at or about that time but did not know what it was for until he spoke to his mother shortly after its receipt. It appears he took no action at that time. I reject the defendant’s evidence that the plaintiff forged his signature on the memorandum of transfer.
I reject the defence of justification in relation to the assertion that the plaintiff is a liar, conman and fraudster, and the assertion that he has stolen or embezzled money from others.
That the plaintiff is a psychopath
[19] Exhibit D3
[20] Exhibit P5
The defendant says that he worked at the Royal Adelaide Hospital and was advised by a nurse that he should investigate the question of psychopaths because of things he had said about his ex-wife. He read a number of books including one entitled “The Psychopath; The mask of Insanity”, which he read from in his closing address, he consulted Wikipedia and viewed episodes of “Dr Phil”. From this material he diagnosed the plaintiff as a psychopath and, as is apparent from the videos, a number of other people including his former wife. This is not a sufficient basis to diagnose the plaintiff or indeed any person as a psychopath and I reject the defence of justification.
Contractor Suicide

The defendant asserted in a number of videos that the plaintiff was responsible for the suicide of a contractor because he failed to pay him. It is suggested that this had something to do with the plaintiffs Homemaker City development. It became apparent in the course of the defendant’s evidence that he had no firsthand knowledge of this. It was just something he had heard and was prepared to repeat. The plaintiff denies this absolutely and says that this is the assertion that has hurt him the most. He says that in any event the Homemaker City development was extremely successful and that all contractor payments were handled by his bank. He is not aware of any contractor remaining unpaid and has no knowledge of any person associated with that development committing suicide. I reject the imputation as entirely without foundation.
Ill treatment of their mother
The defendant made a number of assertions during the course of his evidence about the plaintiff’s ill treatment of their mother which the plaintiff denied. I prefer the evidence of the plaintiff and I reject the defence of justification for the assertion that the plaintiff has ill treated their mother.
Alternative defences
Accordingly in respect of each imputations complained of by the plaintiff I reject the defendant’s defence of justification. Whilst not raised in the pleadings I have considered whether other defences might be available to the defendant. The only two that appear viable on the evidence before me are the defences of honest opinion[21] and qualified privilege.[22]
[21] Section 29 Defamation Act 2005
[22] Section 28 Defamation Act 2005
I have no doubt that the defendant holds the views that he has expressed in the video, indeed he continued to maintain them in court. The views were not expressed as his opinion. Most were stated as fact. Further the statutory defence requires that the opinion is based on proper material. Plainly it was not in view of the findings I have made in respect of the defence of justification.
The defence of qualified privilege is established if the defendant proves that the recipient has an interest or apparent interest in having information on some subjects, and the matter is published in the course of giving the recipient information on that subject. This is all subject to the overriding requirement that the conduct of the defendant in publishing that matter is reasonable in the circumstances. The Scholarship Saviour videos were published by the defendant in the apparent belief that he was imparting information to people who might become victims of a scam. Potentially that could attract qualified privilege. In the circumstances however, I do not consider that the defendant’s conduct was reasonable and in all of the circumstances I reject that possible defence.
Repetition of defamation
On the final day of the trial the plaintiff produced some screen shots of an internet based platform called “Daily Motion.com”.[23] This platform is similar to You Tube. It shows a video was apparently posted by the defendant on that website on 15 July 2015. The video was 22.32 minutes long and been viewed 24 times. It was entitled “Scholarship Saviour, ASIC records Vincent Scali 26 bankruptcies (sic), not 11”.
[23] Exhibit P6
The plaintiff said that the video and accompanying text are still on the internet. He had printed off the screenshots before coming to court. The defendant agreed that he posted it. The defendant said the video was the same as the You Tube video except that he was apologising for saying there were only 11 bankruptcies when in fact there were 26.
Counter-claim
The defendant has not properly pleaded his counter-claim. The particulars are set out as follows:
From January 1970 until 17 November 2014 counter-claim arose. See separate 10 page document attached and dated 15 February 2015.
Unfortunately the attached 10 page document is not at all clear. Despite an invitation to do so the defendant was unable to provide me with a succinct summary of his counter-claim. I therefore put a number of propositions to him about my understanding of his counter claim.
The first related to the financial and physical abuse of his mother by the plaintiff. The defendant agreed that this was his mother’s claim and he did not have authority to make those claims. I said that I would therefore strike that aspect of his counter-claim out.
The defendant agreed that remaining aspects of his counter-claim are as follows:
·    The plaintiff owes the defendant for money for various transactions.
·    The defendant seeks compensation for being identified as the plaintiff’s brother.
·    The defendant seeks damages from the plaintiff because the defendant remained with his wife.
·    Damages for defamation as the defendant asserts that the plaintiff lied to their cousins, saying that the defendant was crazy and had been detained under Mental Health laws.
·    Compensation for damage to the defendant’s relationship with his mother.
Financial Claims
The defendant was not able to be specific as to the dates on which many of these claims arose. It appears clear that the financial claims relate back many years. The first was in the 1970’s. When asked why he did not pursue these claims at the time, and on what basis he sought an extension of time to bring these proceedings ,the defendant said that his brother never had any money and so he did not sue him. This is not a proper basis upon which to grant an extension of time. Even were I to grant an extension of time the defendant’s evidence was so lacking in cogency that I am uncertain whether there are any amounts owed by the plaintiff to the defendant, let alone the quantum of such amounts. I dismiss that aspect of the counter claim.
Identification as plaintiff’s brother
The defendant claims to have experienced unfair treatment, distress and shame throughout his life because people ask him if he is related to the plaintiff. This is not a proper cause of action. I dismiss that aspect of the counter-claim.
Remaining in his marriage
The gravamen of this claim appears to be the assertion by the defendant that he did not leave his wife some three days after their wedding when he discovered “the truth” about her mother. He did not feel it was fair to judge her because he had the experience of being identified as the plaintiff’s brother and unfairly judged by reason of that relationship. Accordingly he remained married for some 32 years and claims to have suffered loss and damage as a result. This is not a proper cause of action. I dismiss that aspect of the counter-claim.
Defamation
The defendant asserts that the plaintiff lied to their cousins saying that he was crazy and had been detained under Mental Health laws. The defendant was unable to say when or how this information was conveyed. He did not identify the cousins nor did he call them to give evidence. The plaintiff denies making statements of that type to any of his cousins. I prefer the evidence of the plaintiff on that topic. Further, I note that the defendant says that he was in fact detained under Mental Health laws for a short period of time in August 2007 albeit he says this was due to lies told by his ex-wife. I dismiss this aspect of the counter claim.
Relationship with the parties’ mother
The defendant’s evidence on this topic was also lacking in detail. He did not tell me how the plaintiff has damaged his relationship with their mother. Indeed he maintained that the plaintiff ill-treated their mother in a number of ways and that he, the defendant, would look after her which tends to prove the contrary proposition. I dismiss that aspect of the counter claim.
Orders sought by the plaintiff
The plaintiff seeks a number of orders as follows:-
1.     That the defendant be ordered not to use You Tube;
2.     That the headings be removed from You Tube;
3.     That videos and other material posted on Daily Motion be removed;
4.     That the defendant publish a public apology in the Advertiser; and
5.     Damages of $250,000.
You Tube
The plaintiff in effect is seeking an order for a permanent injunction to restrain the defendant from using You Tube; specifically an injunction restraining the defendant from publishing further defamatory material about him. Such injunctions may be ordered in certain circumstances but they are not to be made lightly. I respectfully adopt the comments of His Honour Judge Slattery in Dossis v Andreadis[24] where he said:
“it is generally the case that a court would not lightly make orders in the form of a permanent injunction restraining a person from communicating with others. There are three fundamental reasons. A court will generally not make an order with injunction that requires constant or reasonably constant supervision of the defendant about compliance withsuch an order. The second is that a prohibition against communication is too easily (inadvertently or otherwise) breached. This is especially the case when close family members are involved and communication can occur in a “defacto” way. The third is that the right of free expression and communication among the members of our society is a fundamental right of citizens; any restrictions upon it is an anathema to the basic freedoms of a citizen of this country.
Thus any exemption must be firmly and clearly based in principal and justified by the particular facts of the matter.[25]
[24] Dossis v Andreadis (No 4) (2012) SADC 114 [144]-[145]
[25] Paras 114-115
An award of damages is not sufficient to protect the interests of the plaintiff in this matter. The defendant deliberately published the defamatory material on a public platform in a manner designed to do the maximum damage to the plaintiff. He specifically targeted the plaintiff’s candidature for Federal Parliament, the Adelaide City Council, and the plaintiff’s new business venture Scholarship Saviour Pty Ltd. His intention is unclear and in many respects does not appear rational or logical, however, it does appear firmly based in hostility towards the plaintiff. The defendant’s views appear fixed and inflexible.
There is in this matter more than a fear of repetition. It seems highly probable that the defendant will repeat the defamation given the fact that, notwithstanding these proceedings being on foot, he has published further material on another web site, Daily Motion.com. In those circumstances I consider that there is justification for the granting for a permanent injunction.
That headings be removed from You Tube and videos be removed from Daily Motion.com.
Neither You Tube nor Daily Motion.com are parties to these proceedings. I am not prepared to injunct non-parties. The web sites are maintained by You Tube and Daily Motion.com rather than the defendant. I have no evidence as to whether it is possible for the defendant to remove the items from these websites. I will however order that he use his best endeavours to remove this material.
Public Apology in The Advertiser
I do not have the jurisdiction to order an apology. The principal remedy in defamation is in the orders of damages. I decline to make such an order.
Damages
The question of damages is difficult given the state of the evidence. In assessing the appropriate amount of damages the court is to ensure an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.[26] Non-economic loss is capped under s.33(1) of the Defamation Act. The plaintiff also seeks economic loss.
[26] Defamation Act 2005 s.32
The plaintiff referred to legal costs incurred in relation to the setting up of his Scholarship Saviour business and to loss of profits occasioned by the delay in that business. It seems likely however that the legal costs and other associated costs would have been incurred in any event to set up the business. These are not costs thrown away. The plaintiff still intends to pursue that business when he is able. The profits are speculative and I cannot conclude on the state of the evidence whether the delay in the plaintiff’s launch of the Scholarship Saviour business in fact was productive of any financial loss. I decline to award damages for economic loss.
I do not consider the facts of this matter sufficient to justify an award of aggravated damages. The Act prohibits the ordering of exemplary or punitive damages.[27]
[27] Section 35
The plaintiff has called no evidence about the effect of the defamation upon his reputation. As I have indicated, I am prepared to infer that the effect of the material was such that it would have lowered the standing and reputation of the plaintiff. No apology has been proffered by the defendant and indeed the defendant has reiterated the matters in subsequent postings on Daily Motion .com and by pursuing a defence of justification in this court.
I accept the plaintiff’s evidence about his injured feelings and particularly the distress he felt on being accused of causing the suicide of a contractor.
Notwithstanding that it appears a court is permitted to have some regard to the quantum of damages awarded in other cases, I have found little assistance from other awards, given the unusual circumstances of this matter.[28] Doing the best I can on the evidence before me, I assess compensatory damages in the sum of $20,000 inclusive of interest.
[28] Rogers v Nationwide News (2003) 77 ALJR 1739 at 1752
Orders
I dismiss the counter claim and I order that the defendant:
1.   Insofar as it is possible for him to do so, immediately remove from the web site the headings and text accompanying the video clips entitled “Evil Sicko Clan Nos. 1, 2 3, 4. 5 and 6”, “Palmer United Psychopath Candidate 3, 4 and 5”, “Scholarship Saviour 2” and “Scholarship Saviour Adelaide City Council Psychopath Candidate”
2.   Be restrained from further publishing the You Tube videos and text in any form.
3.   Insofar as it is possible for him to do so immediately remove the video clip and accompanying text relating to “Scholarship Saviour, ASIC Records, Vincent Scali Bankruptcy not 11 but 26” from
4.   Be restrained from further publishing the Daily Motion videos and text in any form.
5.   Pay the plaintiff the sum of $20,000 inclusive of interest.
I will hear the parties as to the question of costs.