Egan v Santamaria

The procedural chronology

1. This court is entitled to proceed in the absence of a party, conformably with Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 29.7: Satz v CAN 069 808 957 Pty Ltd [2010] NSWAC 365; Kostov v Amelie Housing [2018] NSWSC 1800 at [19].
2. The procedural history is set out in affidavits of service and other court documents as follows: 1. Affidavit of Lindsey Roberts sworn to February 2021; 2. Affidavit of Melissa Anne McGrath sworn 29 April 2021; 3. Affidavit of Lindsey Roberts sworn 26 May 2021; 4. Court orders sent by the principal registrar to the defendant by registered post on 17 June 2021; 5. Affidavit of Lindsey Roberts sworn 23 June 2021.
3. I also note the following documents filed in relation to the defendant: 1. Notice of appearance filed on 25 May 2021 by MPM Legal; 2. Consent Order filed in court on 27 May 2021, signed by Mr Marando on behalf of the defendant on 26 May 2021; 3. Notice of Ceasing to Act filed by MPM Legal on 16 June 2021.
4. These proceedings were commenced on 3 July 2020. An order for substituted service was made by the court on 15 September 2020. Orders were made for the filing of a defence on 15 October 2020, 3 December 2020, 4 February 2021, 25 March 2021 29 April 2021, 27 May 2021 (by consent, in circumstances set out below) and 17 June 2021.
5. The defendant failed to comply with any of these orders, including the self-executing order to file a defence by 23 June 2021 made on 17 June 2021. There can be no doubt however that he was aware of these proceedings. On 25 May 2021 the defendant entered an appearance by solicitors MPM Legal, identifying his solicitor as Mark Paul Marando. The orders made by the court on 27 May 2021 were made with the defendant's consent.
6. On 16 June 2021, MPM Legal filed a Notice of Ceasing to Act. There was no appearance for the defendant on 17 June 2021 and I made the following orders: "Defendant called outside of courtroom three times at 9:20am - no appearance. (1) The defendant is to file his defence no later than 4 pm on 23 June 2021, such orders to be self-executing in nature. (2) The plaintiff is to notify the defendant of these Orders by 5 pm today and to warn the defendant that if no defence is filed by 4pm 23 June 2021, an application for summary judgment will be made on 24 June 2021, as previous foreshadowed in my orders on 3 December 2020, 25 March 2021 and 29 April 2021. (3) Costs reserved. (4) Matter stood over to Defamation List Thursday 24 June 2021 for further directions at 9:00am, noting that summary judgment will be entered if no defence has been filed."
7. On 24 June 2021 there was again no appearance for the defendant and I made the following orders: "Defendant called 3 times outside of Court Room 13D at 9.10am - No appearance 1. Enter judgment summarily by reason of the failure to file his defence in accordance with the self-executing orders made on 17 June2021. 2. Assessment hearing listed on 19 August 2021, to be conducted on the papers. 3. Plaintiff is to provide witness statements and written submissions to the defendant and the Court by Monday 9 August 2021. 4. The plaintiff is to notify the defendant of these orders by email by 5pm today."
8. I am satisfied that the defendant is aware of these proceedings and has elected to remain away from the court.

The evidence before the court

1. The plaintiff relies upon the following evidence, all of which has been served on the defendant: 1. Witness statement of the plaintiff dated 9 August 2021. 2. Witness statement of Amanjot Singh dated 9 August 2021. 3. Witness statement of Bob Aitken AM dated 9 August 2021. 4. Witness statement of Dr Galina Kaseko dated 8 August 2021. 5. Copies of correspondence sent by the defendant to Channel Seven, Victoria Police, the Premier of Victoria, NSW Police and a large number of solicitors (including solicitors consulted by the defendant's sister Natasha).

The matters complained of

1. There are eight matters complained of. The first and second of these are emails addressed to the plaintiff's solicitors, Coleman Greig Lawyers. The remaining six publications have been forwarded to Coleman Greig Lawyers by the recipients. These five publications contain a long string of emails sent by the defendant to various third parties which have been cut and pasted by him into a continuous narrative.
2. The publications in question and the imputations pleaded are as follows: 1. First Matter Complained of 9 July 2019 - (Annexure 'A') Email to Coleman Greig Lawyers 1. The plaintiff is corrupt because he knowingly associates with corrupt police; 2. The plaintiff knowingly associates with corrupt police; 3. The plaintiff has instructed his lawyer, Ms Kirstie Barfoot, to deliberately cause trauma to the plaintiff's ex-wife, Natasha, by having his lawyer send to Natasha an article about the death of Natasha's father. 1. Second Matter Complained of 13 July 2019 - (Annexure 'B') Email to Coleman Greig Lawyers 1. The plaintiff uses every form of corrupt conduct to advance his case in the Family Court; 2. The plaintiff demands favours from corrupt police in return for his assistance in the investigation of the death of the defendant's father; 3. The plaintiff corruptly ensures that his ex-wife, Natasha, stays legally unrepresented; 4. The plaintiff is a racist; 5. The plaintiff was arrested by police for his conduct whilst distributing hate filled and racist pamphlets against the Australian Labour Party. 1. Third Matter Complained of 14 July 2019 - (Annexure 'C') to Polytechnic Institute Australia 1. The plaintiff is corrupt; 2. The plaintiff's conduct towards his wife is evil and malevolent; 3. The plaintiff uses every form of corrupt conduct to advance his case in the Family Court; 4. The plaintiff demands favours from corrupt police in return for his assistance in the investigation of the death of the Mr Santamaria's father; 5. The plaintiff corruptly ensures that his ex-wife, Natasha, stays legally unrepresented; 6. The plaintiff is a racist; 7. The plaintiff was arrested by police for his conduct whilst distributing hate filled and racist pamphlets against the Australian Labour Party; 1. Fourth Matter Complained of 14 July 2019 - (Annexure 'D') to Anthrocell Pty Ltd 1. The plaintiff is corrupt; 2. The plaintiff is deliberately preventing his ex-wife from being represented by lawyers in their family law dispute; 3. The plaintiff is corrupt because he knowingly associates with corrupt police; 4. The plaintiff knowingly associates with corrupt police; 5. The plaintiff has instructed his lawyer, Ms Kirstie Barfoot, to deliberately cause trauma to the plaintiff's ex-wife, Natasha, by having his lawyer send to Natasha an article about the death of Natasha's father; 6. The plaintiff is reasonably suspected of being complicit in the criminal actions of his lawyer; 1. Fifth Matter Complained of 16 July 2019 - (Annexure 'E') to Seven News enclosing correspondence with Victoria Police and others 1. The plaintiff is corrupt; 2. The plaintiff is deliberately preventing his ex-wife from being represented by lawyers in their family law dispute; 3. The plaintiff assaulted his two and half year old son in January 2019 with a rope leaving a bright red rope mark around the boy's neck; 4. The plaintiff used his corrupt association with corrupt police to avoid prosecution for his assault upon his son; 5. The plaintiff cares nothing for his children and seeks to take them away from his ex-wife only so that he does not have to pay to her child support and spousal maintenance; 6. The plaintiff is using his corrupt association with corrupt Victorian Police to damage the prospects his ex-wife's family law proceedings; 7. The plaintiff condoned the physical abuse of his son by the plaintiff's father; 8. The plaintiff used his corrupt association with corrupt police to prevent any investigation into the physical abuse of his son at the hands of the plaintiff's father. 1. Sixth Matter Complained of 17 July 2019 - (Annexure 'F') to Polytechnic Institute of Australia 1. The plaintiff is corrupt; 2. The plaintiff is complicit in the corrupt conduct of his solicitors; 3. The plaintiff, through his solicitors, is deliberately undermining his ex-wife's family law proceedings by warning off all solicitors who agree to act for her. 1. Seventh Matter Complained of 18 July 2019 - (Annexure 'G') to Anthrocell.com enclosing copies of emails to VIC & NSW Police and others 1. The plaintiff is corrupt; 2. The plaintiff is complicit in the corrupt conduct of his solicitors; 3. The plaintiff, through his solicitors, is deliberately undermining his ex-wife's family law proceedings by warning off all solicitors who agree to act for her; 4. The plaintiff has corrupt influence over the NSW Police at Parramatta; 5. The plaintiff is a child abuser; 6. The plaintiff has used his corrupt influence over NSW Police at Parramatta to prevent an investigation into his abuse of children; 1. Eighth Matter Complained of 24 August 2019 - (Annexure 'H') to Mr Bob Aitken 1. The plaintiff is corrupt; 2. The plaintiff is complicit in the corrupt conduct of his solicitors; 3. The plaintiff is a child abuser; 4. The plaintiff is a vile person in that he is morally bad and wicked; 5. The plaintiff has corrupt influencer over the Family Court appointed independent children's lawyer; 6. The plaintiff condoned the physical abuse of his son by the plaintiff's father; 7. The plaintiff used his corrupt association with corrupt police to prevent any investigation into the physical abuse of his son at the hands of the plaintiff's father; 8. The plaintiff assaulted his two and half year old son in January 2019 with a rope leaving a bright red rope mark around the boy's neck; 9. The plaintiff used his corrupt association with corrupt police to avoid prosecution for his assault upon his son; 10. The plaintiff is a racist; 11. The plaintiff physically and sexually abuses other people's children; 12. The plaintiff is corruptly receiving payment of his family law legal fees from the Victorian Police; 13. The plaintiff, through his solicitors, is deliberately undermining his ex-wife's family law proceedings by warning off all solicitors who agree to act for her;
3. While it is clear that the defendant was responsible for many defamatory publications over this period, this judgment deals with the eight publications the subject of this claim.
4. In relation to each publication, the imputations are well-drafted and clearly capable of arising. It is unnecessary, in an assessment of damages such as the present, to make formal rulings as to the form and capacity of the imputations, just as it would be unnecessary for the trial judge to do so in proceedings where neither party had brought any such application. In terms of fairness, such rulings, even if they had been sought, are best raised before the proceedings are set down for trial, to prevent unfairness and adjournments: Anderson v Mirror Newspapers Ltd No 2 (1986) 5 NSWLR 735. If there are problems with the plaintiff's pleadings sufficient to warrant case management intervention, that step should be taken at an early stage, and with notification to the defendant of the relevant issue.

The evidence

1. The plaintiff, who was born in 1970, is the managing director of a public relations company. His clients include large corporations, government departments and local council. He is also a professional non-executive board member of the Polytechnic Institute of Australia, a private tertiary education provider. He had an excellent reputation in the Blue Mountains and the business community in which she works for his honesty, integrity and ethical behaviour.
2. The plaintiff has known the defendant as a result of his relationship with Natasha, the defendant's sister, to whom the plaintiff was married on 29 June 2013. The defendant's first name is Giuseppe but he is generally known as Joseph or Joe. The defendant's birth name is Giuseppe Rotiroti but he carries on business and is commonly known as Joe or Joseph Santamaria.
3. In August 2016, prior to separation, the plaintiff and Natasha were visited by two police officers from Victoria. They asked to speak to Natasha, but she refused. Several days later, the plaintiff was visited at his work place by a person who provided him with a business card and said that he wanted to speak to Natasha. The defendants telephoned him and said "if you are approached by the police, tell them to contact my lawyer". The plaintiff later learned, in part because there was a reward offered which was the subject of media attention, that Natasha's father had been murdered in 1988. Prior to August 2016, he had no knowledge that Natasha's father's death was in any way suspicious, as she had told him her father had died of heart attack.
4. After the plaintiff and his wife Natasha separated on 22 February 2018, she lived for a time in an apartment with the defendant. Following separation, Natasha alleged he had contacted the police about her family. His relationship with both Natasha and the defendant deteriorated.
5. On 9 July 2019, a solicitor at Coleman Greig lawyers, the firm acting for him in relation to his parenting and financial issues arising from the separation, showed the plaintiff the first matter complained of. The plaintiff was very distressed by this document. On 13 July 2019, the solicitor told the plaintiff that she had received a further email from the defendant, namely the second matter complained of. The plaintiff was distressed and fearful that it was an attempt by the defendant to put pressure onto his lawyers to stop acting for him.
6. On 15 July 2019, the plaintiff received a telephone call from Mr Singh, of the Polytechnic Institute of Australia, who told him that correspondence had been received from the defendant making allegations about him of a personal nature. Mr Singh then sent the third matter complained of to the plaintiff. The plaintiff was horrified by its contents, which were false and defamatory, and by the fact that it had been sent to a number of recipients at the Polytechnic Institute of Australia. The plaintiff was very worried that this would affect his position as a member of the board of this organisation. A further publication (Exhibit F) was sent to the Polytechnic Institute of Australia on 17 July 2019. The plaintiff was deeply concerned and wondered how many other potential and existing clients had received emails from the defendant.
7. On 14 July 2019 the fourth matter complained of was sent by the defendants to Anthrocell Pty Ltd. He received a telephone call from his accountant on 16 July 2019 advising that the defendant had sent an email to her accusing the plaintiff of corruption.
8. In late July 2019 the plaintiff received a telephone call from the principal of Barclays Law Group, the corporate lessee of premises from which the plaintiff ran his public relations business. He advised that a series of emails had been sent to him. These are the fourth, fifth and seventh matters complained of. Dr Kaseko, the chief executive officer of Anthrocell Pty Ltd, told the plaintiff that she had also received these emails and send him copies.
9. The plaintiff was deeply concerned by the false and defamatory content of these emails and considered the defendant was undertaking a deliberate and coordinated campaign to harm the plaintiff's business standing and cause him financial loss. The plaintiff was particularly concerned that some of the emails received by Anthrocell were addressed to other recipients which included media outlets such as Channel 7 news.
10. Dr Kaseko told the plaintiff that junior staff who had seen the emails had been shocked and that the directors of the company were worried about the effect such allegations might have on the company's reputation.
11. In late August 2019, the plaintiff received an email from Mr Bob Aitken. The text contained allegations about the plaintiff and his father, including that they had abused children. This is the eighth matter complained of.
12. The plaintiff was shocked and really upset, particularly when he found out that this latest email had been widely circulated in the local community. Not only did the email contain photographs of himself and his father, it also set out their mobile numbers and home addresses, and the address of his business. The plaintiff had concerns about the safety of himself and his family and was worried about the impact of these allegations on the health of both of his parents, who were in their 70s.
13. The plaintiff suffered a great deal of stress and anxiety because he had no idea how many other such publications had been sent. Some of the emails appear to have been blind copied. Mr Egan was concerned that members of the local council were aware of the allegations, as a member of Council told him in early 2020 that Council had received correspondence from the defendant about the plaintiff.
14. The plaintiff's concerns increased when Natasha filed an affidavit in the Family Court proceedings containing 500 pages of emails she and the defendant had sent to various government officials, law enforcement agencies and politicians about these matters.
15. The plaintiff's concerns are well based. The statements from Mr Aitken AM and from Dr Kaseko confirm the degree of harm and damage allegations of this kind result in. In particular, Dr Kaseko states: "The chairman of Anthrocell, whom I had to inform about the work arrangements for [the plaintiff] since the emails, was not convinced that Anthrocell should retain [the plaintiff] at all. The other members of the board also expressed their reservations. As a result, since the emails, Anthrocell's engagement of [the plaintiff] has decreased. On a personal level I did not doubt that the emails were a smear campaign by Mr Santamaria against [the plaintiff], however, Anthrocell as a company could not risk a situation whereby a person in government office might doubt the integrity of its employees and/or management due to the allegations contained in the emails."
16. The plaintiff initially took an approach of caution. On 11 July 2019, his solicitors wrote to Natasha about the first and second matters complained of, asking her to ask the defendant to refrain from contacting the plaintiff's solicitors on the basis that he was not a party to proceedings and it would be inappropriate to liaise with him in those circumstances. In addition, the matters he raised were not relevant to either property or parenting issues. It is a very gentle and courteous letter for the plaintiff's solicitors to have sent in the circumstances. The defendant, in reply, extended his allegations of corruption to the solicitor who wrote this letter, adding that "in due course, be assured, you will certainly be called to account for your criminal actions and all persons complicit with you".
17. When it became apparent to the plaintiff that the correspondence would continue unless there were court proceedings commenced, he instructed his solicitors to send a concerns notice. A second concerns notice was then sent. The plaintiff then commenced proceedings for defamation. An apprehended violence order against the defendant was sought and obtained in March 2021, but that is of no relevance to these proceedings.
18. The impact on the plaintiff of this vendetta has been profound. Dr Kaseko notes in her statement that the heartache of the plaintiff's family by breakdown was exacerbated by these allegations and that they took their toll on the plaintiff's mental health. Similar observations are made by Mr Aitken, who observed how stressed and concerned the plaintiff had become.
19. The emails follow a common pattern. There is extensive use of capital letters, underlining, bold and exclamation marks. There are constant references to corruption, but there is no narrative to explain what the corruption is. Some are simply unreadable in terms of being little more than incomprehensible insult. For example, the email to the Premier of Victoria on 14 July 2019 is all in capital letters and contains more than 20 exclamation marks, and the correspondence to the solicitors who had been consulted by Natasha is simply grossly insulting. Nevertheless, the potential for these emails to cause distress to the plaintiff and damage to his reputation is self-evident.
20. The plaintiff is concerned about the impact of these publications on how clients perceive him and his company. He estimates that there has been a 40% reduction in earnings to his public relations company following the publishing of these emails. He also notes that, contrary to his hopes and plans, he has not received any further appointments to company boards.

Assessment of damages

1. The relevant principles are set out by McCallum J (as her Honour then was) in Gayle (Gayle v Fairfax Media Publications Pty Ltd (No 2) [2018] NSWSC 1838 at [22]). There must be an appropriate and rational relationship for the purposes of s 34, and the three purposes to be served by damages awarded for defamation taken into account.
2. Although damage to reputation is presumed, there is abundant evidence of damage to the plaintiff's good reputation in these proceedings.
3. No claim for special damages is made, but I note the observations of the New South Wales Court of Appeal, and in particular of Mahoney JA, in Nugawela v Crampton (1996) 41 NSWLR 176, as to the impact of allegations of honesty against professional persons.
4. A factor of particular relevance in the present proceedings is the grapevine effect. Where a campaign or vendetta of this kind is being mounted, it is impossible to track the ripples in the pool in order to find the lurking places in which the poison has been spread.
5. All of the above features call for a substantial award of damages.
6. Before determining the amount of damages, by reason of the lifting of the cap where aggravated damages are awarded, it is necessary to determine whether aggravated damages would be awarded.

Aggravated damages

1. The plaintiff seeks aggravated damages in relation to the following conduct: 1. The defendant's conduct in repeatedly publishing the comments and active encouragement of recipients of the emails to share those comments with a wider audience. 2. The inflammatory and offensive tone and nature of each of the matters complained of, including the allegation of a wide range of serious criminal offences. 3. The persisting, by the defendant, with knowingly false accusations about a corrupt relationship asserted to exist between the plaintiff and both NSW and Victoria Police. 4. The conduct of this litigation, including failure to comply with court orders.
2. Ultimately, however, it is the whole of the defendant's conduct which has exacerbated the hurt by its contumelious nature, and not merely the specific aspects of it as set out by Mr Rasmussen. There are cases where the whole conduct of the defendant is such as to warrant aggravated damages, as McCallum J noted in French v Fraser 2015 NSWSC 1807 at [89]: "It is permissible, however, to have regard to Mr Fraser's whole conduct to the extent that it has aggravated the hurt suffered by Dr French as a result of the publications, which undoubtedly it has. There can be no doubt that most if not all of Mr Fraser's conduct towards Dr French was improper and unjustifiable: cf Triggell v Pheeney (1951) 82 CLR 497."
3. This is a clear case for the awarding of aggravated compensatory damages. The defendant's vendetta against the plaintiff is very similar (although over a shorter period) to that conducted by Mr Fraser in French v Fraser.

Conclusions concerning damages

1. The cap on damages is currently $432,500 (Gazette No 247 of Friday 11 June 2021).
2. The amounts awarded in other defamation proceedings are referrable to the facts in each such case, rendering the results of limited value; however, such awards (and the reasons for making them) may provide assistance of significance in some cases, such as the present. The matters complained of, in their content, bear a curious resemblance to those set out in French v Fraser, where McCallum J commenced the judgment as follows: "This case provides a distressing illustration of the devastating harm that can be caused by the mischievous use of the internet as a medium for defamatory publications."
3. In French v Fraser, a vendetta of vituperative email correspondence was sent, as well as a series of online publications being made. This included emails to the plaintiff's work colleagues and friends, in a pattern similar to that of the defendant in these proceedings. The combination of public rants and a private vendetta resulted in an award of damages of $300,000.
4. However, some caution should be exercised in regarding this figure as comparable, not merely because of the public accessibility of some of the online publications, but because the decision was handed down before the re-evaluation of the role of the cap on damages by the Court of Appeal of the Supreme Court of Victoria in Bauer Media v Wilson [2018] VSCA 154; 56 VR 674; 361 ALR 642.
5. An award of aggravated damages is clearly appropriate in the present case, not only on the bases identified by Mr Rasmussen in his submissions but also, conformably with French v Fraser, arising from the whole of the defendant's conduct, which was contumelious and high-handed and which exacerbated the plaintiff's hurt.
6. Are there any mitigating issues in relation to damages? A factor sometimes referred to, in litigation involving vendettas of this kind, is that the language and vitriol is such that the reader would not take it seriously. In French v Fraser, McCallum J observed: "I have regard to the fact that, although many people plainly reacted seriously to what they read, the tone and content of the publications would have prompted some to dismiss Mr Fraser's missives as irrational rants. The imputations would not have had the impact of an imputation published in a major newspaper by a respected journalist. Still, the sheer brazenness of the allegations and Mr Fraser's cynical invocation of the noble status of consumer advocate and activist may have sounded compelling to some readers."
7. However, there is strong evidence in these proceedings that these publications have not only caused the plaintiff personal distress but also actual harm, in terms of the reaction of others to their contents. Accordingly, I do not propose to discount the seriousness of the allegations in any way, despite the bizarre form and content of the material they contain.
8. Taking all of the above into account, the plaintiff is entitled to an award of a substantial sum of damages, including aggravated damages, which I assess at $250,000.
9. The plaintiff is entitled to interest at 3.5% from 9 July 2019, which is a total of $18,506.85.
10. Costs should follow the event. I have deferred the issue of any application for indemnity costs in order to give the defendant an opportunity to be heard on this issue should he wish to make submissions.

Order: 1. No appearance for the defendant at the commencement of the Defamation List at 9am and at 10:05 am when these proceedings were called on for hearing. 2. Judgment for the plaintiff for $250,000 plus interest at 3.5% from 9 July 2019, making a total of $ 268,506.85. 3. Defendant to pay plaintiff's costs with liberty to apply in relation to indemnity costs and/or for a gross sum costs order. 4. Exhibits retained until further order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 August 2021