Tropeano v Karidis - [2012] SADC 29

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
TROPEANO v KARIDIS
[2012] SADC 29
Judgment of His Honour Judge Muecke
19 March 2012
DEFAMATION
At a Media Conference on the footpath of Hindley Street at which the plaintiff was informing the press of a new identity system which he hoped would improve safety, the plaintiff alleged that he was defamed by the defendant when she said: Tony Tropeano is responsible for all of the violence on Hindley Street.
Held: The defendant did not say the words alleged. Rather, she said: Safety is not serving alcohol 24/7. That's what contributes to violence Tony. Those words not defammatory of the plaintiff.
Claim dismissed.

TROPEANO v KARIDIS
[2012] SADC 29
Introduction

On Thursday 15 April 2010 there was a Media Conference on the southern footpath of Hindley Street, Adelaide. It was outside the Red Square nightclub (“Red Square”). Although estimates varied, there were likely between 10 and 20 people there.
The purpose of the Media Conference was for those associated with Red Square to demonstrate a new identity system that was to commence operating at Red Square that weekend. The system – known as idEYE – used “facial recognition technology” and it was said that it would provide “an additional layer of security for the club”, that it would “allow quicker access for regulars at Red Square but also identify those who may threaten the safety of patrons”. The words in quotation marks are taken from a media release dated 14 April 2010 issued by Red Square (Exhibit P2). The media release indicated that: “Tony Tropeano, spokesperson for Red Square, will be available for interviews”. The Media Conference was due to commence at 11.00am on Thursday 15 April 2010.
Tony Tropeano is Antonio Tropeano, the plaintiff in this action.
At the Media Conference the plaintiff addressed those who were present. Those people were mainly associated with the media. They were either reporters or cameramen. Also there were a number of people associated with Red Square. There were some others. There was a demonstration of the new identity system, known as idEYE. There were then questions that were addressed to the plaintiff.
It is alleged by the plaintiff that Mary Karidis (“the defendant”) was standing nearby immediately outside business premises called Hellenic Travel. Those premises were immediately next door to Red Square. It is alleged that at the Media Conference the defendant said these words:
Tony Tropeano is responsible for all of the violence on Hindley Street.
The plaintiff alleges that those words were defamatory of him in that their natural and ordinary meaning meant, and were understood to mean, that he “is involved in unlawful acts of violence in Hindley Street” and that he “promotes, encourages or supports acts of public violence in Hindley Street”.
The plaintiff claims damages for being injured in his personal and professional reputation by reason of the publication. He also claims that the damage he suffered has been aggravated by the conduct of the defendant. He seeks an order restraining the defendant from publishing further allegations concerning him giving rise to the imputations pleaded by him in this action.
A significant issue in the action is whether the defendant said what it is alleged she said at the Media Conference.
The pleadings
The plaintiff pleaded that he is a person commonly known as Antonio Tropeano. He says that he is admitted to practise as a legal practitioner in South Australia. He says that he is the sole director of a company which is the registered proprietor of the premises from which Red Square trades and that he is the sole shareholder of a company which carries on the Red Square business. He further says that he is, and was at all material times, the “spokesman for and public face of Red Square” and the “spokesman for the West End Traders Group”.
The West End Traders Group was formerly known as The Late-Night Traders. It is said to comprise a group of businesses that trade in the western part of Adelaide’s central business district. The plaintiff says that that group was formed in or around mid-2008 and since then has sought to promote and increase the level of safety and reduce the level of public violence in the Hindley Street precinct.
The plaintiff alleged that he has been a vocal advocate, on behalf of the Western Traders Group, in this regard and has sought and continues to seek to increase the level of public awareness of issues being faced by businesses that trade in the Hindley Street precinct, particularly in relation to public violence, and of issues that need to be addressed in order to promote and increase the level of safety and reduce the level of public violence in the Hindley Street precinct. To that end he has participated in meetings and engaged in consultation with a range of people and organisations. He has been involved in the preparation and publication of media releases and other material in this regard. He has provided commentary to the media on issues that need to be addressed in order to promote and increase the level of safety and reduce the level of public violence in the Hindley Street precinct.
In para 5 of his Statement of Claim (which was filed on 21 February 2011) the plaintiff says that a Media Conference was convened at or around the Red Square premises on 15 April 2010. It was convened by him and was convened to highlight and explain a new identification scanning system that Red Square had recently installed in order to further promote and protect the safety of its patrons and reduce the risk of violent incidents occurring at Red Square. Further, in that paragraph, he says that the Media Conference was attended by various persons, including representatives of media organisations that operate in South Australia, including television reporters and camera crew, and that it was attended (at least in part) by the defendant.
The plaintiff alleged that the defendant published the words to which I have already referred, or words to that effect, concerning the plaintiff to those present at the Media Conference.
The defendant filed a Defence (on 23 March 2011) which is dated 14 March 2011. It was composed and prepared by the defendant. As to a number of matters pleaded by the plaintiff the defendant said that they were within the knowledge of the plaintiff and not within her knowledge.
As to the plaintiff’s allegation that the Media Conference was attended (at least in part) by her, the defendant said: “that I did not at all or in part attend the media conference as alleged generally in paragraph 5”.
The defendant denied that she published the words concerning the plaintiff to those present at the Media Conference that the plaintiff alleged she did. She denied the allegations of defamation made by the plaintiff. She agreed that she had failed to apologise to the plaintiff as requested by the plaintiff’s solicitors in a number of letters between 15 April 2010 and 27 August 2010. She “agreed” that she had not responded to those letters. She denied that the plaintiff had been injured, and she denied his right to the remedies sought by him. She said that there was no need for a restraining order.
The Trial
The trial came on before me on 22 September 2011. The plaintiff was represented by counsel. The defendant was unrepresented and appeared in person.
Before I asked Mr Doyle, of counsel for the plaintiff, to open the plaintiff’s case I spoke with the defendant. The purpose of doing that was to ensure that she knew the procedure that was to be followed on a trial and that she was willing to represent herself and present her defence.
I said to the defendant: “I understand your defence to this is that you weren’t there and you didn’t say what is alleged that you did”. The defendant replied that she was there. She said: “I’m not denying I wasn’t there”. She said that what the plaintiff was accusing her of saying is not what she actually said. When I took her to para. 5 of her Defence where she said that she did not at all or in part attend the Media Conference she said: “What I was trying to say here is that I was part of it but I wasn’t part of the media conference. I was just a by-stander like standing around. I wasn’t part of the media conference, I wasn’t media … I was just listening, I was just an innocent by-stander”.
The defendant confirmed that there was no issue in the case as to whether she was present or not. She said that the issue was that, although she did say something, it was not: Tony Tropeano is responsible for all the violence in Hindley Street.
The plaintiff gave evidence. He is a legal practitioner and is the principal of a firm of solicitors. He has been practising as a legal practitioner since 1994 and has been a principal of that firm of solicitors since 1996.
The plaintiff confirmed that he occupied the various positions to which I have already referred as being alleged in his Statement of Claim. These related to Red Square and The Late-Night Traders. He said that as the spokesperson for both Red Square and The Late-Night Traders he played a significant part in promoting safety in the west end mainly focusing on making people aware of their personal responsibility and ensuring that “regular authorities were aware of what issues which affected the many visitors to the west end”. He referred to regular meetings he had with the police and the Office of the Gambling Commissioner. He said that he had raised issues about on-the-spot fines being introduced for persons to be penalized for an offence inside a licensed premises. He said that he had said publicly that while licensees had the responsibility of creating a safe environment there was also individual responsibility which “cannot be shifted, and if they are involved in an act of anti-social behaviour I think it should be his responsibility alone, and then of course, indirectly the licensee to ensure that that doesn’t occur”.
The plaintiff told me about his issuing media releases and speaking on radio and talk-back shows in the couple of years leading up to April 2010. At that point of the plaintiff’s examination-in-chief I informed the defendant that she had a right to object to any question that Mr Doyle asked. She responded by saying that nothing the plaintiff had said so far was “getting to the core of what we’re here for”. She said that everything the plaintiff was doing is fantastic, “it’s absolutely brilliant, I take my hat off to him”. She said she could go on and on about how well regarded she is but she said: “we’re not here for that; let’s just get to the nitty gritty and get it over and done with”. She said that she didn’t know what she could object to as to what the plaintiff had already said because she didn’t know whether it’s true or not.
There was then some discussion between Mr Doyle, the defendant and me about discovery of all the plaintiff’s media releases. I gathered from Mr Doyle that the defendant had been provided with some, but not all of these. When he produced one dated January 2010 the defendant objected to that being tendered. Mr Doyle submitted that it was relevant in two ways. First, it showed the type of work that the plaintiff was doing in the west end, and secondly, it was relevant as to the impact on the plaintiff’s reputation of what the defendant had allegedly said at the Media Conference. I overruled the defendant’s objection.
The media article became Exhibit P1. It reads in part: “Fed up with drunken violence of the west end, late-night traders have launched a new campaign to promote responsible drinking”. It refers to signs appearing along Hindley Street. The plaintiff is quoted as saying: “The aim is to make everyone aware that we are concerned about people abusing alcohol and not being responsible … people are not drinking to socialize any more, they’re drinking to get drunk … So what we’re saying is that if you want to get drunk, do it at home. But don’t go out because we don’t appreciate you acting like idiots.” The plaintiff is quoted as referring to the fact that licensees should not have to “cop all the blame for serving drunks because people usually ‘load up’ before heading into town”. The plaintiff said in evidence that the quotes attributed to him in the article were what he said.
The plaintiff told me about Red Square’s proposal to implement a new ID scanning system. It was an idEYE system. He said it would do two things. First, it would take a photograph of the person who is attempting to enter the premises, and secondly, it would record that photograph on a hard drive next to the scanning ID that was being provided, whether it was a driver’s license or a passport. He said that the idea was that people who were aware that their details had been collected by the door staff on entrance “will not be involved in anti-social behaviour inside the premises”. (The transcript actually reads: “they will be involved in any social behaviour inside the premises” but I think that what the plaintiff said was as I have indicated.)
The plaintiff said that the media release, which he authorized, was issued to all the television stations, to all the radio stations, and to all the print media. It indicated that idEYE would be demonstrated at Red Square at 11.00am on Thursday 15 April 2010 (Exhibit P2). Exhibit P3 was “For immediate release”, was dated April 15, 2010, was headed NEW IDENTITY SYSTEM FOR HINDLEY STREET CLUB, and was created and distributed by the plaintiff. Its purpose was to inform the media of what the system was capable of doing and when it was coming into operation at Red Square.
The plaintiff gave evidence of what occurred at the Media Conference. He said it was held at the entrance of the Red Square nightclub in Hindley Street. All the television stations attended, together with quite a few radio stations and the print media. He recognized one person by name as he had been interviewed by him the past. He was not sure which television station that person represented. He said that there would have been around 12 to 15 people out the front. He added, when asked, that “of course once it started more people stopped to see what was going on”. He said that there was staff of Red Square there also.
The plaintiff said that when the Media Conference commenced he provided an introduction to the system, including what its benefits were. When he did that he was standing at the entrance of Red Square facing north on the southern Hindley Street footpath. The media and their cameras were probably about three metres away from him facing south towards him. They had their backs to Hindley Street. He said that he thought the introduction took about 5 to 10 minutes. He said that there was then between 5 and 10 minutes of questions. He then added that a member of his staff gave a demonstration of the system between his introduction and questions.
The plaintiff said that the press conference “just was coming to a conclusion when I heard the voices on which after I recognized as being that of Mary Karidis standing at the front”. He had said that the Hellenic travel business was immediately to the west of Red Square, and the entrance to those premises was about two meters from where he was standing. The plaintiff was asked what occurred when he heard the voices. He answered: “Just I turned around to see who it was and also the journalists turned at the same time as well because I was looking at the journalists”. The plaintiff said he only heard one voice. He said: “The comments were ‘Tony Tropeano is responsible for the violence on Hindley Street’”. He said that the person who said that was Mary Karidis who was right at the doorway of Hellenic Travel, on the step of the doorway. He said he was not aware of her presence prior to that comment being made. He said that he did not hear her say anything other than those words. He said that she said those words in a loud voice. He said that her voice “was quite loud and clear, as far as what she was saying”. He said that he made a comment that “you should get your facts correctly – as they’re not”. He said that he then just continued with the media release.
The plaintiff said that what immediately went through his head when he heard what was said that was that “this whole media release was being railroaded”. The focus of the journalists would now be on what doubts they would have by the comments that he had just heard. He felt most uncomfortable about her making those comments. The comments “put a shadow” on his attempt to promote responsibility. He said that he had always held himself out as a responsible member of the community and that the defendant’s comments “really didn’t go towards the truth of what I believed in or what my conduct showed over the many, many years in the area. He said that the fact that he has not received any apology from the defendant for her remarks on that day made him feel that “she believed in those comments, that what she made were truthful or she still does, is concern to me today”.
The plaintiff said that “one of the press representatives with a camera went inside the travel agent afterwards”.
When cross-examined by the defendant the plaintiff said that he knew her as “Mary Karidis” and that he had her name in his mobile phone before April 2010. He said that he had known her for at least two years. He agreed with the defendant that he had never had any “issues” or “run-ins” with her prior to April 2010.
The defendant asked the plaintiff whether his premises Red Square ever had a “24-hour alcohol access serving alcohol”. The plaintiff said that it did. He said that it was first granted in 1987 and that it has had a license to serve alcohol 24 hours a day ever since.
The defendant directed the plaintiff’s attention to the media release that referred to visitors coming into the west end already intoxicated. She asked why he thought people came into the west end. The plaintiff answered that he did not know the reasons of them all, but said it could be for social interaction, a meeting place, to meet friends and to socialize, and it could be to drink alcohol. The defendant then asked the plaintiff: “Do you think having access to alcohol 24/7 might contribute to that?”. That question was objected to by Mr Doyle and in the discussion that ensued the defendant referred to her question having something to do with what she “blurted out at the actual Media Conference”.
The defendant then put to the plaintiff that she did not say what was alleged against her but rather she said: Safety is not serving alcohol 24/7, that contributes to violence. The defendant put to the plaintiff that that was what she said and that, further, she never mentioned his name. She agreed that the media might have heard her “mumble in the background and they (might have) thought “Hang on, maybe she’s got something to say, maybe this is a scoop kind of report”. She said that the media did not speak to her afterwards. She said that she had been standing there listening to the plaintiff talk about safety, which she said was great, but she then expressed her opinion about safety when she put to the plaintiff that she said: Safety is not serving alcohol 24/7, that contributes to violence. She said that that was her opinion, it had always been her opinion, it will always be her opinion, everyone is entitled to their opinion and nobody can take that away from her. The plaintiff said that they were “not the words that I heard”.
The defendant asked the plaintiff whether he had ever been verbally or physically abused whilst he had been standing out the front of Red Square on Friday or Saturday nights. He said that he has been.

Finally, the defendant asked the plaintiff whether, during the Media Conference, there was quite a bit of noise in the background. The plaintiff answered: “No, no noise at all”. The defendant asked: “No noise at all?”, and the plaintiff answered: “No”. The defendant asked: “No cars going past, no people, no voices, no nothing, it was just total silence was it?”. The plaintiff answered: “No, not total silence”, and he then said that when he was giving his introduction it was in the morning, there was not a great deal of traffic, he was not using a raised voice and there was no PA system. The plaintiff said that he actually heard the defendant say his name. The defendant suggested to the plaintiff that she only knew him as “Tony”, and that she did not know his surname “until all this came out”, referring to these proceedings.
Daryl Warren is the plaintiff’s public relations consultant. His role has been and is to assist the plaintiff in the promotion of Hindley Street and to assist him in “defending” the image of Hindley Street. He had been in that role for “probably more than 12 months” prior to April 2010. He said that part of his role was to help the plaintiff in events that occur on Hindley Street and to respond to some of the “negativity” in the media when reports were made about what was happening in Hindley Street. He said that they also produced a newsletter for the Hindley Street traders “which really positioned Hindley Street as not quite the threatening environment that the media generally speaking had portrayed it”.
Mr Warren said that the plaintiff was always keen to protect the image of Hindley Street and that that was part of what they were trying to do. That was “to not let people continue to portray Hindley Street as this nasty den of iniquity so we were putting out positive messages in response to those negatives where we could”. When asked whether the topic of safety and violence ever featured in those responses he replied that they did.
Mr Warren gave evidence about the Media Conference. He said that from his point of view the conference was a success. They had a good turnout of media. He suggested there were maybe 10 to 12 members of the media there. He said that with other people who might stop and join the crowd they probably had as many as 16 to 18 people gathered around. The people were gathered in “kind of a semi-circle around Tony. Tony was in the centre by the doorway and … the television media were actually quite close to him, with the cameras quite close to him and the reporters quite close to him and I guess we would have taken up about half … the depth of the footpath”. He said that he was standing to the plaintiff’s left, that is to the west. He was “sort of on the outside of the ring if you like”. He was probably three or four metres west of the plaintiff and he was probably a couple of metres to the east of the doorway to Hellenic Travel.
Mr Warren said that as the news conference progressed he was aware that there were two women to his left who seemed to be agitated. They were talking “among themselves a bit”. They started “to talk a bit loudly”. He said they then left the scene and later came back. He said that at that time “Tony was talking about – was addressing an issue from the media about violence in the street and one of the women then called out, quite loudly to Tony ‘you’re responsible for violence in the street Tony Tropeano’”. He then said that those were the woman’s words to the best of his memory. He added: “It might have been ‘Tony Tropeano you are …’ but he was responsible for the violence in the street was the claim”. He said that he saw the two women go back into the travel agency afterwards. He was not aware of who they were or where they had come from until then. When asked how it was that he knew they went “back into the travel agency afterwards”, he said that he had seen them go into the travel agency before and then he was aware that they had come out and were standing back from him again.
Mr Warren said that he thought that “Tony then addressed the person and said I think something about ‘get your facts right’, I can’t remember his exact words and that was it really, and then they left the scene”.
Mr Warren said that he thought from memory people had turned and looked when the comment was made. He said that Tony addressed the person and then the news conference continued.
When cross-examined by the defendant Mr Warren said that it was not his memory that she had actually said that safety is not having alcohol 24/7, that that contributes to violence. He said that it was not, in his view, possible that she did not mention a name at any stage. Mr Warren said that he thought the defendant’s interjection was loud and clear.
When asked by the defendant whether he knew if the media had actual footage of what she said, Mr Warren answered that he did not know whether they did or did not. He then said that what she had said was too quick for the media to capture on video. When asked whether that was the case with sound as well as vision, Mr Warren said that it was probably not the case that sound could have been picked up because “the microphones were pointed at Tony at the time”. He said that his opinion was that the microphones would not have picked up what was said “because the microphones are quite directional”.
Antony Tropeano is the plaintiff’s son. He is an admitted practitioner. He is the managing director of the company which carries on the Red Square business. He has held that position for about 4½ years.
Mr Antony Tropeano said that he was as the Media Conference on the footpath of Hindley Street on 15 April 2010. He said that it was around lunch time. When asked who else was present he replied that there were multiple media representatives, including journalists and camera crew, and journalists from papers and radio stations. He said that he was expecting probably about 15 persons from the media to be in attendance. He said that there was also Tony Tropeano, Daryl Warren, a couple of the employees of the Palace Gallery Pty Ltd and a couple of ladies from Hellenic Travel.
Mr Antony Tropeano said that he knew one of those ladies as the defendant Miss Karidis. He said that he knew her then as Miss Karidis.
Mr Antony Tropeano said that the plaintiff commenced the conference by addressing the media and giving a brief description of the ID scanning system. He said that during the conference the plaintiff was standing probably two or three metres from the entrance to Hellenic Travel. He said that at some point after that there were some questions from the media, and then at some point during that was when the defendant made certain remarks. He then added that there was a demonstration by Kelly Waterman towards the end of the press conference. He said that he was standing “towards the back, or at the back of the media representatives, towards the western side of the group”.
When asked what he heard the defendant say, Mr Antony Tropeano answered:
AThe first comment, which is the most clear of the comments, related – or specifically stated ‘Tony Tropeano’, something to do with violence and I recall that it was to some extent of ‘Tony Tropeano causes all the violence on Hindley Street’.
QAnd where was Ms Karidis when she said those words.
ASomewhere in the middle of the media representatives.
QAnd how far from you was she when she said those words.
AProbably about a metre away.
QHow would you describe the volume of what she said.
AIt was definitely in a raised voice, so that she could ensure, I suppose, that everybody heard it. It wasn’t yelling or screaming but it definitely wasn’t talking at a normal volume like I am now.
QAnd what was your reaction to what was said.
AA little bit of shock, I guess.
QAnd did you do anything.
ANo.
QDid you observe any or hear any reaction on the part of your father, Tony.
AI know that he responded but I can’t recall what the response was.
QDid you observe any reaction on the part of the media representatives present.
AEverybody in the group looked around to face Miss Karidis.
QAnd what, if anything, did Ms Karidis do.
ATo my knowledge, I believe she said something further and then turned around and walked back into Hellenic Travel.
QWhat was the something further, do you recall what was said then.
AAgain, something about trouble being caused by Tony, something to that extent.
Mr Antony Tropeano said that all these statements by the defendant were “within a minute”, although he said there was a gap between the defendant’s first comment and her second comment, in which the plaintiff had responded to the first comment.
Mr Antony Tropeano said that after her first comment the defendant may have turned around to walk off, and “she may have shuffled back to the back of the group and then made the second comment and then moved into Hellenic Travel”. He said that when she made her first comment she was “in the middle of the media representatives”.
Under cross-examination Mr Antony Tropeano said that he knew, “without a doubt”, that the words “Tony Tropeano” were used by the defendant and that “without a doubt she made reference to ‘Tony Tropeano, violence’. He said that he knew that those two things were definitely stated. He said that the defendant may have made some other reference to alcohol, but “that’s not my recollection of what she said”, referring to serving alcohol 24/7 contributing to violence.
Kelly Waterman was the final witness in the plaintiff’s case. She is a marketing and promotions manager at Red Square. She has been in that role for seven years.
Ms Waterman said that she was present at the Media Conference in April 2010. She said that from Red Square, there was Tony Tropeano, Antony Tropeano, Darren Holmes, Tony’s publicist and herself. She said: “and there was some media from different stations, about 15 – 20 people with the media”. She then said that there were 15 to 20 media, “plus the Red Square”.
Ms Waterman said that during the press conference “The lady from the travel agent came out”. She did not know her name. She said that she (Ms Waterman) was standing about where the Hellenic Travel and Red Square premises meet. She said she was half a metre from the building alignment, although she added that she was not very good at distances.
Ms Waterman said that the lady from the travel agent “came out of the travel agent and walked into the area where everyone was standing, closer to the front of Red Square, in front of myself and made the statement”. She said that she heard the lady “say that Tony Tropeano was the cause of the violence on Hindley Street”. She said that the lady spoke “a little big louder than normal speaking tone”. She said that the plaintiff responded, but that she (Ms Waterman) “was turned and facing towards Antony Tropeano and Daryl at that time”. They were slightly behind her to her left. She said that she believes that when the lady made the statement “people turned to listen to her and then turned back to listen to Tony”. She said she did not hear the lady say anything subsequent to the statement that she just related. She said that the lady went back in the travel agent straight after she made the statement.
Under cross-examination Ms Waterman said that she did not think that the defendant could have mumbled something like “safety is not serving alcohol 24/7” and then “that contributes to violence”. She said she heard the defendant say “Tony Tropeano”.
The defendant gave evidence.
The defendant said that she has been working in Hindley Street for many years and that the plaintiff has “never heard boo out of me before all of this”. She said that all she wanted to say was that she did say something, she was not denying that. She said, and mumbled under her voice, “serving alcohol” – “Safety is not serving alcohol 24/7. That contributes to violence”. She said that “if the media heard it and with their cameras and they turned around surely they would have put something up on camera?”. The defendant said that she was not in court to say “that I didn’t say anything”. She said that she did say something, and that what she told me was what she said.
The defendant said that she did not know the plaintiff “on a personal basis”. She just knew of him as “Tony who owns the Red Square”. When asked whether she liked or disliked the plaintiff, the defendant answered:
ANo, he means nothing to me. A totally insignificant figure in my life. I’ve got so much happening in my life, that people like that are not significant, are not relevant to me. I wouldn’t say anything intentionally to hurt him, because there is nothing there. What for? I don’t even know you.
When asked whether there were other premises on Hindley Street that operated with 24/7 licenses, the defendant answered:
A24 hour licenses, I’m not sure if there were other premises down there. All I knew was the one next-door, because every morning when we rock up to work, like you can tell, people are still drinking there. We’ll get riffraffs walking in and out of the office, chewing gum on our doors, you know, like, so that’s the only reason that, you know, I hadn’t – I knew, because there were people always drinking right next to us, walking in, stumbling into our doors, you know hence the only reason I knew it was 24 hours. We don’t even – sometimes we had to like clean up vomit from the door and stuff like that, but hey, if that’s the way they want to go and do things.
QIs there anything else that you want to tell me at this point, before I ask Mr Doyle.
ANo, nothing.
Under cross-examination by Mr Doyle the defendant said that “Of course” she knew it was not true to say that Tony Tropeano was responsible for or the cause of all violence on Hindley Street. She said that her view was that “the serving of alcohol 24 hours contributes to violence”. She said that that was her view “whether it’s down Hindley Street, Rodeo Drive … or Fifth Avenue, New York”. When asked whether she accepted that it was not true to say that Tony Tropeano was responsible for or the cause of violence in Hindley Street, the defendant answered: “No, it’s not true, I’m not talking about him specifically”. She said that whilst she had no personal basis for believing he had any role to play in the violence on Hindley Street, she was “talking about the concept (that) 24 hours serving alcohol contributes”. She said that she didn’t care where it was that that happened.
The defendant was cross-examined about what was suggested to be a denial by her that she was at the Media Conference. When questioned about her Defence she explained that that was not what she was trying to say. She was trying to say that she was not present as media at the Media Conference, she was just there. She said that she did not attend “as a Media Conference person”. She asked: “How can I say I wasn’t present when I was there?”.
The defendant accepted under cross-examination that maybe the second part of what she said was more than a mumble, and was at least in her ordinary speaking voice. She said she may have mumbled something under her voice as that was just a question that she asked Kelly, whom I infer was a woman with whom she was standing. She seemed to accept that some words may have not come out in a mumbling way, and that they may have been: Safety is not serving alcohol 24/7. That’s what contributes to violence. She said that that’s what she said, and how she said it.
The defendant maintained during cross-examination that she only knew of the plaintiff as Tony. She denied knowing that his surname was Tropeano. She denied that she might possibly have heard the plaintiff’s surname during the course of the press conference. She said that she wasn’t there for very long. She said that he was just talking about safety. She was just listening to what he was saying about safety.
The defendant said that there were not 15 people present, when it was put to her that there were roughly 15 or so people there. She said that there were about 10 or 12 people there. When it was suggested to her that the number was more like 15, the defendant said that she didn’t count them.
The defendant said that she “blurted out” her opinion after the plaintiff had finished but when the media representatives were still there. She said that all she did was to voice her opinion and that she “wasn’t trying to steal his thunder or anything like that”. She said that she just wanted to put her point of view across on the safety issue. She said that it had nothing to do with the plaintiff personally.
The defendant denied that she may have started her comment off with the word “Tony” before she said whatever she said. She said that she did not mention his name at any stage.
Findings and Conclusions
What did the defendant say during the Media Conference outside Red Square on Thursday 15 April 2010?
Seventeen months passed before the witnesses who were present gave evidence as to what was said. Ten months passed before the plaintiff filed and served proceedings against the defendant.
As far as I know no-one made a note of what was said by the defendant at the Media Conference, or by anyone. No video or audio of the Media Conference was put before me. Presumably there was some, whether or not what the defendant said was recorded on video and/or audio. No person from the media who was there was called to give evidence as to whether they heard anything, and if so, what they recalled hearing. On all accounts representatives from the media comprised the bulk of the people at the Media Conference and they had been called there by the plaintiff to hear and see what was to be said and shown. They were all independent of the plaintiff and the defendant. I was not told of what, if any, attempts had been made to obtain any recordings made at the Media Conference, or what, if any, attempts had been made to identify, speak to, and possibly call any media representatives who were at the Media Conference. The plaintiff said that he knew at least one by name. I assume that either the plaintiff, his public relations consultant Darryl Warren, or his marketing and promotions manager Kelly Waterman would have known which television, radio stations and print media were represented at the Media Conference.
I was also not told whether, or in what form, the Media Conference that demonstrated the idEYE system was publicly reported after the Media Conference. I am prepared to assume that there was some reporting of it subsequent to it, as I was told that there was “a good turn-out of media at the conference”. I think it likely that if there was any report in any form relating to what the defendant said during the Media Conference I would have heard about it at the trial. I acknowledge that if the media heard the defendant say Tony Tropeano was responsible for all the violence on Hindley Street, they would likely not have published those words verbatim, as that might have prompted defamation proceedings being instituted against the media. I would have expected, however, that the media might have published something reflecting what they heard the defendant say which they might have ensured was not defamatory of the plaintiff.
As it transpired I heard five witnesses who were present at the Media Conference and who said they could speak of what it was the defendant said during it. As I would expect after seventeen months their recollections varied, not only as to what the defendant said, but how many times she said something, where she was when she said things, where she was in relation to others at the Media Conference at various times, the volume and tone of her voice, and whether the plaintiff said anything in response, and if so, what.
All witnesses called on behalf of the plaintiff to speak of what the defendant said at the Media Conference were associated with the plaintiff and Red Square. Accordingly, none were independent of the plaintiff and Red Square.

The plaintiff said that just when the conference was coming to a conclusion he heard voices. He turned around to see who it was. He heard only one voice. The comment was: “Tony Tropeano is responsible for the violence on Hindley Street”. He said that the defendant said that. He said that he did not hear her say anything else. He had then commented: “You should get your facts correctly – as they’re not”, and he continued with the conference.
Darryl Warren said that the plaintiff was addressing an issue from the media about violence in the street when one of the women from Hellenic Travel called out to him: “You’re responsible for violence in the street Tony Tropeano”, or it might have been: “Tony Tropeano you are” (responsible for violence in the street). He thought that the plaintiff then said something about “get your facts right”, and then the two women from the travel agent left and the news conference continued.
Antony Tropeano said that the defendant’s first comment stated specifically “Tony Tropeano”, something to do with violence. It was to the effect of: “Tony Tropeano causes all the violence on Hindley Street”. He said that his father responded but he could not recall what his response was. He said that the defendant then said something further before turning around and walking back into Hellenic Travel. He said that something further was: “something about trouble being caused by Tony, something to that extent”.
Kelly Waterman said that she heard the lady from the travel agent “say that Tony Tropeano was the cause of the violence on Hindley Street”. She said that the plaintiff responded. I infer that she did not hear his response. She said that she did not hear the lady say anything else. She said the lady went back into the travel agent straight after she made the statement.
The evidence of the witnesses to whom I have just referred all said that the defendant’s comment related to the topic of violence in or on Hindley Street and that Tony Tropeano either caused that or was responsible for it. All four witnesses said that the defendant definitely used the words “Tony Tropeano”.
Their evidence as to where the defendant was when she said whatever she did differed significantly among these four witnesses.
The plaintiff said that he was standing at the entrance of Red Square and the defendant was standing on the step of the door-way to Hellenic Travel which was about two metres from where he was standing. He said the media and their cameras were probably about three metres from him.
Mr Warren said that the plaintiff was in the centre by the door-way of Red Square with people gathered in a semi-circle around him. He said that he was probably three or four metres west of the plaintiff and a couple of metres to the east of the door-way to Helenic Travel. He said that after one of the women said what she did, both women went into the travel agency. If the defendant was at the entrance to the travel agency when she said what she did, that means, on Mr Warren’s evidence, that she was between five and six metres from the plaintiff at the time she spoke.
Mr Antony Tropeano said that the defendant was somewhere in the middle of the media representatives when she said what she did. He said that he was towards the back of the media representatives towards the western side of the group. That would put the defendant east of him and in the middle of the media. He said that the defendant made a second comment, similar to the first, after she may have “shuffled back to the back of the group”.
Ms Waterman said that the defendant came out of the travel agency and “walked into the area where everyone was standing, closer to the front of Red Square”, where she made the statement.
One of the witnesses therefore had the defendant between five and six metres west of the plaintiff adjacent to the building alignment on the southern side of Hindley Street. Two others had the defendant within the media group that was standing in front of the plaintiff some metres north of the building alignment facing the plaintiff. The plaintiff put the defendant on the door-step of Hellenic Travel which he said was about two metres from where he was standing at the entrance to Red Square. That is, both he and the defendant were immediately adjacent to the building alignment.
The defendant’s evidence was that she was there when the Media Conference occurred but she was not there as media. She said that she was not there for very long. She said that she listened to the plaintiff talking about safety. Before the conference her view was that serving alcohol 24 hours a day contributed to violence, whether it be in Hindley Street or in Fifth Avenue, New York. She said that she had such a belief as a result of long experience working at Hellenic Travel on Hindley Street when she would arrive at work with people still drinking and when sometimes they had to clean up vomit from the door of the agency.
The defendant’s evidence was that it was in that context that she mumbled under her voice: “Serving alcohol”. Her evidence was that she then said, and she accepted that the following words were not said by her in a “mumbling way” but that they were said in her more normal voice, Safety is not serving alcohol 24/7. That’s what contributes to violence.
The defendant did not say specifically where she was when she made those statements but I infer from what she did say that she was in or near the door-way of Hellenic Travel when she did so.
The defendant denied that she said either of the two words: “Tony Tropeano”.
I am satisfied that the plaintiff had, for some time prior to April 2010, been concerned about the negative reputation Hindley Street had as being a place where anti-social behaviour occurred. He thought that such behaviour included the consumption of alcohol, drunkenness and violence. I am satisfied that the plaintiff, and the traders represented by the Late-Night Traders, associated the abuse of alcohol by visitors to the Hindley Street precinct with the fact that people acted “like idiots” and that that resulted in and led to violence within the precinct. I am satisfied that the plaintiff saw it as his responsibility, as a nightclub trader and as a spokesperson for the Late-Night Traders, to try and do something about drunkenness in the precinct and the resulting violence. I am satisfied that the plaintiff honestly and diligently worked towards encouraging visitors to the precinct to drink responsibly, including before they visited, and to take individual responsibility for their conduct once they were within the Hindley Street precinct.
I am satisfied that what the plaintiff arranged by way of the Media Conference on 15 April 2010, and what he sought to do by introducing the idEYE system and demonstrating it to members of the press, was in furtherance of his attempts to encourage better behaviour within the precinct and thus to change the public’s perception that Hindley Street was a threatening environment for people to visit. I am satisfied that the plaintiff hoped that that message would result from the Media Conference.
I am satisfied that prior to the Media Conference, and after, the defendant did not know the plaintiff on a personal basis. It was not explained how her name came to be in his mobile phone before April 2010. I am satisfied that the plaintiff and the defendant had never had any “issues” between them, and there had never been any “run-ins” between them prior to April 2010. I am satisfied that they were familiar with each other by virtue of the fact that they had each worked for several years in business premises immediately next door to each other in Hindley Street. I am satisfied that otherwise they were not known to each other, they did not have a personal relationship with each other, and they each had no cause to have or harbour any animosity towards the other. I am satisfied that they were not friends, and that they did not even know each other well enough for one to bear the other any ill-will. I am satisfied that the plaintiff meant “nothing” to the defendant. I am satisfied that as far as the defendant was concerned the plaintiff was a “totally insignificant figure in (her) life”. I am satisfied that as far as the defendant was concerned she did not “even know” the plaintiff. I am satisfied and find that the defendant was truthful when she told me that she would not say anything intentionally to hurt the plaintiff.
I am satisfied that as at April 2010 the defendant believed that violence in Hindley Street and elsewhere was linked to serving alcohol 24 hours a day. I am satisfied that she had formed that belief over several years working in Hindley Street at Hellenic Travel. I am also satisfied that she believed that providing alcohol to people to purchase 24 hours a day was something that had an adverse effect on safety within Hindley Street and elsewhere. She believed that the availability of alcohol 24 hours a day would draw the “riff raff” to the Hindley Street precinct where they could continue drinking after licensed premises located elsewhere had closed. I am satisfied that she had these beliefs regardless of whether the precinct was Hindley Street or somewhere else.
I am satisfied that the defendant did not believe as at April 2010, and had no basis for believing as at that date, that the plaintiff personally had any role to play in the violence in the Hindley Street precinct. I am satisfied that she knew it would not be true to say that the plaintiff was responsible for, or was the cause of, all or any violence on Hindley Street. I am satisfied that she did not believe, on 15 April 2010, that Tony Tropeano was responsible for all of the violence on Hindley Street. I am satisfied that what she did believe as at that date was that serving alcohol for 24 hours a day adversely affected safety within the Hindley Street precinct and was a contributing factor to violent behaviour by those who came into the precinct early in the mornings to continue to drink, to get drunk, and to commit acts of violence.
It is in the context of all those findings that I am not satisfied that the defendant said, concerning the plaintiff to those present at the Media Conference on 15 April 2010, Tony Tropeano is responsible for all of the violence on Hindley Street.
I am satisfied and find that what the defendant did say towards the end of the Media Conference was: Safety is not serving alcohol 24/7. That’s what contributes to violence. Further, I am satisfied and find that the defendant probably added the word Tony to the end of those two assertions, such that my finding is that the defendant said: Safety is not serving alcohol 24/7. That’s what contributes to violence Tony. I am satisfied that the defendant used the word Tony because I am satisfied that the plaintiff and the plaintiff’s witnesses heard a name they associated with the plaintiff. I am also satisfied that as at the date of the Media Conference the defendant did not know the plaintiff’s full name, although she knew that the person she knew as Tony from Red Square was conducting the Media Conference on that day. I consider it is likely that she used the name Tony in association with the statements I find she made because she had been listening to the plaintiff speak about safety on Hindley Street and she knew that the person who was speaking about that was the person she knew as Tony from Red Square.
I was impressed by the defendant’s demeanour before me at the trial and I was impressed by the fact that she easily and freely conceded that she did not believe that the plaintiff was responsible for any of the violence on Hindley Street and that she admired what the plaintiff had done to address anti-social behaviour within the Hindley Street precinct. I believe and accept the defendant’s evidence that she had no personal animosity towards the plaintiff as well as her evidence that she believed that he was in no way responsible for the violence in Hindley Street.
I am satisfied and find that the defendant was truthful and reliable when she told me that she did not say that Tony Tropeano is responsible for all the violence on Hindley Street, but rather said that Safety is not serving alcohol 24/7. That’s what contributes to violence. I consider that she has forgotten that she added the word Tony at the end of those statements. I accept the defendant’s evidence that she “blurted out” her opinion, and that she was not trying to “steal (the plaintiff’s) thunder or anything like that” when she said what I find she said. I am satisfied that the defendant simply wanted to put her point of view across on a safety issue, and that what she said had nothing to do with the plaintiff personally.
I do not consider that the plaintiff or any of his witnesses have been untruthful in what they recounted as being what they said they heard the defendant say during the Media Conference. I accept that each of the four witnesses who gave evidence in the plaintiff’s case believes that each heard what they said they heard the defendant say. There is no doubt in my mind that their versions of what the defendant said and the defendant’s version of what she said included concepts of “responsibility” and “violence” on Hindley Street. There is also no doubt in my mind that what the defendant said was in the context of a Media Conference at which a topic was safety within the Hindley Street precinct. It was also against a backdrop of earlier media releases from the plaintiff about concern by him and the Late-Night Traders that people abused alcohol, were not being responsible within the Hindley Street precinct and were not taking personal responsibility for their conduct there.
The plaintiff and those witnesses associated with him and Red Square would have been well aware of the plaintiff’s work and views about the abuse of alcohol within the precinct, safety within it, and violence committed within it. I am satisfied that the plaintiff and each of the three witnesses called as part of the plaintiff’s case heard the name Tony, heard the defendant refer to violence, safety and alcohol, and inferred, rather than heard, what they thought that the defendant said relating to the plaintiff having some responsibility for that violence. I am satisfied and find that, whilst they believed that they heard what they said they heard during the trial, they did not in fact do so. I am satisfied and find that they did not hear the defendant say that the plaintiff was responsible for violence on Hindley Street or words to that effect. I am satisfied and find that what the defendant actually said was something quite different from what the plaintiff and the three witnesses called on his behalf thought they heard her say.
I find that the words that I have found that the defendant said are not defamatory of the plaintiff. I find that those words were not words concerning the plaintiff. Although I have found that the defendant used the word Tony, I find that she did so simply as a matter of addressing a comment to the plaintiff as the convener of the Media Conference and as the person who was there talking about safety within the Hindley Street precinct. I am satisfied and find that in their natural and ordinary meaning the words that I have found the defendant said did not attribute violence or the lack of safety to the plaintiff. Rather, I find they attributed that, not to the plaintiff, but to something other than the plaintiff. That was the serving of alcohol 24/7. If, contrary to my view, the defendant’s words as I have found them to be are said to be defamatory of the plaintiff, I would consider and find that they would be fair comment on a matter of public interest.
If I am wrong in my findings as to what the defendant said at the media conference, and if it is held to be the fact that the defendant did say what it is alleged she said, I would have found those words defamatory of the plaintiff and assessed damages in the sum of $7,500. In doing so I would have had particular regard to the very limited publication. I find that there were no more than 15 people at the Medial Conference and I find that it is likely that no more than six of those persons would have heard the defamatory statement by the defendant, if she had uttered the words that are pleaded. I am not satisfied, on the limited evidence which is before me (being the evidence of Mr Antony Tropeano from page 62, line 8 to page 63, line 16 of the transcript), that I can make any finding on the topic of any publication outside the Media Conference. As far as I can say on the probabilities, the publication was only heard by the plaintiff, those associated with him and Red Square, and one or two more. Presumably those associated with the plaintiff and Red Square did not believe the defendant’s statement, if it was as the plaintiff has pleaded.
In light of the above my assessment of the plaintiff’s damages would have been limited to the sum of $7,500, which does not include any sum for aggravated damages, a head of damage that I would have not allowed.
I would dismiss the plaintiff’s claim.
I shall hear the parties as to any other order or orders.