Plaintiff v Defendant

3 Mr Williams decided to contest the Robinvale Ward in July 2012. For some time he had been concerned about many aspects of Mr Katis' election campaign and use of Council resources. In particular, he had been troubled by Mr Katis' use of Council-produced business cards as, in Mr Williams' view, an election tool.

4 On 12 October 2012, Mr Williams went to the Robinvale hairdressing salon (the salon) of Ms Maeghan Bussell, Mr Katis' granddaughter. Mr Katis subsequently alleged, both in an application and summons for an intervention order (Intervention Order application)[1] and on a local television broadcast that Mr Williams intimidated his granddaughter by taking photographs of the interior of the salon and those inside it. Mr Williams, on the other hand, says that his purpose was innocent: he was attempting to photograph a collection of Mr Katis' business cards displayed on a counter in the salon, which he contends breached the Swan Hill Rural City Council Councillor Code of Conduct 2009 (the Code of Conduct).[2]

5 Mr Katis reported Mr Williams' behaviour at the salon to an officer at the Robinvale police station. Notwithstanding Mr Williams being warned by both his wife and the police officer to avoid Mr Katis, Mr Williams confronted Mr Katis at the Robinvale post office within three hours of the reporting of the salon incident. On Mr Williams' diarised contemporaneous account and his statement to police on that day, a verbal confrontation ensued in which he used particularly offensive language towards Mr Katis.

6 This is the background to the alleged defamatory statements made by Mr Katis concerning Mr Williams.

7 The first was at the Robinvale Magistrates' Court on 16 October 2012, when Mr Katis is said to have told a solicitor, Mr Brian O'Haire, that Mr Williams would have harmed Mr Katis during the post office confrontation if not for the presence of a bystander.

8 The second was a statement contained in Mr Katis' application for an intervention order against Mr Williams made on 16 October 2012 which set out the details of the incidents at the salon and at the post office (amongst other things). It was provided to Ms Emily White, a journalist for the local television station WIN Corporation Pty Ltd (WIN TV) on 17 October 2012.

9 The third occurred on 17 October 2012 when Ms White interviewed Mr Katis. In essence, Mr Katis' allegations concerning the events at the salon and post office were repeated. The comments were broadcast that evening as the lead item on the WIN TV 6.00pm news bulletin. That broadcast is the fourth publication attributed to Mr Katis.

10 It is accepted that a number of the imputations pleaded by Mr Williams in relation to the contents of Mr Katis' Intervention Order application, the interview with Ms White, and the WIN TV news broadcast were defamatory. The primary issue at trial was whether in substance Mr Katis' assertions were true.

11 My findings as to what occurred on 12 October 2012, both at the salon and later at the post office, are central to the disposition of the case as they underpin Mr Katis' primary defences of truth (at common law and under section 25 of the Defamation Act 2005 (Vic)) and fair comment (common law) or honest opinion (section 31 of the Defamation Act).

12 I have concluded that all of the imputations contained in each of the four publications (including the most significant of the publications - the WIN TV broadcast) were either true or an expression of fair comment or honest opinion held by Mr Katis. Mr Williams' claim for damages therefore fails.[3]

14 At the time of the Council election in October 2012, Mr Williams was 46 years old. He was 183cm tall, and weighed 98kg[4] (the relative size of both men being important in considering the gravity of the threats allegedly made by Mr Williams). He had lived in the Robinvale area all his life and for many years operated a business, Robinvale Waste Management Pty Ltd.[5] He was actively involved in local affairs[6] and, it can be accepted, was a person of good repute in the community.

15 In mid-2011, Mr Williams developed an interest in Council affairs and considered the possibility of running for the Robinvale Ward against the incumbent Mayor, Mr Katis.[7] Mr Williams began attending Council meetings held in Swan Hill (travelling over 100 kilometres for the meetings),[8] and in July 2012 decided to nominate for the position of Robinvale Ward councillor, then held by Mr Katis.[9]

16 Mr Katis was also a long term resident of Robinvale, with family scattered throughout the district. He was in his late 60s and about 160cm tall.[10] He, like Mr Williams, had run his own business for many years. He was elected as a councillor in 1997[11] and in late 2011 became the Mayor of Swan Hill.[12] His granddaughter, Ms Bussell, who managed the salon, assisted him in his campaign for the 2012 election.

17 Neither Mr Williams nor Mr Katis were impressive witnesses. Each appeared to gild the lily or reconstruct events so as to advance their respective cases.

18 In Court, Mr Williams appeared as mild mannered and reasonable. However, this presentation was difficult to align with his behaviour at the post office on 12 October. As I will explain later, Mr Williams behaved extraordinarily badly towards Mr Katis, which was completely at odds with his presentation in Court.

19 There was an element of obsession in Mr Williams' preparation for the Council election, which provided the groundswell for the altercation. The tenor of the evidence of his wife, Carmen, and his friend, Mr Bruce Ginn, portrayed Mr Williams as single-minded about the election and determined to pursue any potential misdemeanour on the part of his opponent. For instance, after the election result Mr Williams made a 'raft of complaints' to the electoral authority in Melbourne and to the Council.[13]

20 As I will explain in the course of these reasons, in a number of ways Mr Williams' evidence was unsatisfactory (and in parts untrue), particularly in relation to:

(b) his purportedly 'calm' behaviour during the post office incident.

His evidence in these respects was disputed by a number of other witnesses.[14]

21 Similarly, Mr Katis' evidence was unpersuasive in parts. In the course of this judgment, I refer to several matters which cast doubt over Mr Katis' reliability as a witness. A number of his denials and memory lapses were unconvincing. For example:

(a) His evidence concerning his knowledge of the process by which intervention orders could be obtained demonstrated a degree of obfuscation. He initially suggested that the first time he had considered seeking an order was after the events of 12 October, but it is clear he had considered making an application a week earlier. He was cross-examined extensively about his state of mind as to the contents of the Intervention Order application, and gave unsatisfactory answers.[15]

(b) His account of his discussion with Mr O'Haire, the local solicitor, was untrue.

(c) His explanation of his assertion in the Intervention Order application that Mr Williams was photographing his granddaughter, without referring to Mr Williams' professed intention to photograph his business cards, was unsatisfactory.

22 Nevertheless, I consider that Mr Katis' account of the incident at the post office and his concerns for his own safety is generally accurate. In substance, it is corroborated by Mrs Wright, and by contemporaneous statements made by Mr Williams. His account of his concerns for the safety of Ms Bussell, is in substance, corroborated by her evidence.

23 As will become clear, I have relied heavily on the evidence of two witnesses other than Mr Williams or Mr Katis, both of whom I regard as being credible and consistent: Ms Bussell as to the salon incident and Mrs Wright as to the post office incident.

24 The following are my findings of fact concerning the events leading up to the two substantive incidents on 12 October 2012.

25 Up until 2010 Mr Williams and Mr Katis had enjoyed a relatively cordial relationship,[16] although the relationship may have become strained by Mr Williams' company losing a Council waste management contract. Whatever the situation, things changed rapidly when the fight for Council office commenced.

26 In early July 2012, Mr Williams nominated for Council. On 17 July, he posed the following question in writing to the Council:[17]

Why are Robinvale/Swan Hill Rural City Council Depot staff maintaining the laneway directly behind me at John Katis' residence when as council policy not provide the upkeep of laneways in the Robinvale Residential Area? [sic]

27 The question was dealt with at the Council meeting on 17 July 2012. I need not set out the response, except to say that the question and answer provoked considerable local media attention in three local newspapers and on WIN TV.[18]

28 Things got worse. Mr Katis instructed solicitors to write a letter of demand to Mr Williams asserting that his allegations were false and that Mr Katis had been defamed. A flurry of correspondence ensued and, on 10 September 2012, the solicitors for Mr Katis enquired as to whether Mr O'Haire, Mr Williams' solicitor, had instructions to accept service of the proceedings.[19]

29 During the lead up to the election, Mr Williams vigorously pursued a variety of matters associated with Mr Katis' role on the Council.[20] The following is a list of complaints compiled by Mr Williams concerning Mr Katis' behaviour on the Council between 18 July 2012 and 12 October 2012: [21]

18/7/2012 C.C.O.C. Section 7.4 Mr Katis engages WIN TV Mildura to vilify and discredit T.W. over the "Laneway" question tabled at Council after T.W. announces tilt for Council.

26/7/2012 C.C.O.C. Section 7.4 Mr Katis engages the Robinvale Sentinel to vilify and discredit T.W. over the "Laneway" question tabled at Council in lead up to Council elections.

6/8/2012 C.C.O.C. Section 3.6 Mr Katis disrespects and vilifies T.W. at the August R.E.B.A. Meeting.

13/9/2012 C.C.O.C. Section 7.4 & 3.5 Mr Katis engages the Robinvale Sentinel for his own personal gain to discredit T.W. in the lead up to the election and makes misleading statements.

19/9/2012 Mr Katis meets with Geoff Finch on the verandah of Mr Katis [sic] home. Mr Finch is due to appear at a VCAT hearing on the 25/9/2012 where the Swan Hill Council is taking action to enforce conditions of Mr Finches [sic] planning permit in relation to activities on his Moore St property. Throughout the election campaign Mr Finch is a very vocal ally and endorser of Mr Katis and his campaign to be re-elected.

21/9/2012 C.C.O.C. Section 3.5 Mr Katis signs a false declaration with the V.E.C. relating to his candidate statement which contains untrue, false and misleading information.

24/9/2012 L.G.A. Section 55 Mr Katis distributes unauthorised electoral material throughout Robinvale in contravention of the L.G.A.

27/9/2012 C.C.O.C. Section 7.4 Mr Katis engages the Robinvale Sentinel for the purpose of his own personal gain during the Election period.

4/10/2012 C.C.O.C. Section 7.4 & 3.5 Mr Katis engages the Robinvale Sentinel for the purpose of his own personal gain and makes statements that are likely to mislead or deceive a person.

5/10/2012 C.C.O.C. Section 19 Mr Katis uses Council resources (Mayors [sic] business cards) inappropriately and in a way that may influence voting and give him an undue advantage as a candidate in an Election. (On public display at Robinvale resource centre).

11/10/2012 C.C.O.C. Section 19 Mr Katis [sic] Mayoral business cards are taped to T.W. vehicle while parked in Perrin Street outside the businesses of Mr Katis [sic] family by a staff member of the same.

12/10/2012 C.C.O.C. Section 19 Mr Katis uses Council resources (Mayors [sic] business cards) inappropriately and in a way that may influence voting and give him an undue advantage as a candidate in the election. (On public display in his campaign manager's shop.)

12/10/2012 C.C.O.C. Sections 3.1, 3.3, 3.5 & 3.10 Mr Katis makes false, untrue and misleading allegations to Victoria Police about T.W. in relation to the inappropriate use of Council property by Mr Katis at his campaign manager's hairdressing shop.

12/10/2012 C.C.O.C. Sections 3.1, 3.3, 3.5 & 3.10 Mr Katis makes false, untrue and misleading allegations to Victoria Police about T.W. in relation to a discussion between T.W. and J.K. outside the Robinvale Post Office.

12/10/2012 C.C.O.C. Sections 3.1, 3.3, 3.5 & 3.10 Mr Katis instigates and propagates a campaign of slander against T.W. in relation to the reports made by J.K. to Victoria Police earlier that day.

30 Many of these matters were the subject of complaints to the Chief Executive Officer of the Council, Mr Leahy, or the Returning Officer of the Victorian Electoral Commission (VEC), Ms Tamara Matthews.[22]

31 Of particular concern to Mr Williams was Mr Katis' use of business cards embossed with the Swan Hill mayoral emblem during the election campaign.

32 On 5 October, Mr Williams went to the Robinvale Resource Centre in Hobart Street where he observed a collection of the business cards.[23] He rang Mr Leahy, who assured him that he would look into it.[24]

33 One week later, on 11 October, one of Mr Katis' business cards was mysteriously attached to the rear windscreen of Mr Williams' work vehicle (registration 'RWASTE') when it was parked in George Street, Robinvale.[25]

34 In addition to his threat to issue defamation proceedings, Mr Katis was active in making complaints about Mr Williams' conduct during this period. On 5 October 2012, Mr Katis wrote to Ms Matthews of the VEC, stating:[26]

He is continually making complaints and allegations to Senior Officers in Swan Hill, all of which have been found to be untrue.

Mr Williams alleged that I directed the Outdoor staff to clean the laneway at the rear of my property; this allegation was proven to be totally false after the matter was investigated by senior staff at Swan Hill City Council.

...

I have looked into obtaining an intervention order against Mr Williams, however I am loathe to do so.

...

I believe Mr Williams is questioning my integrity and my honesty and this goes against the spirit of local government council elections.

35 There is one other matter that I should mention here. Ms Bussell opened the salon on 1 October 2012. It was undisputed that Mr Williams would park his vehicle in the vicinity of the salon when he came into the Robinvale centre for either morning tea or lunch. He would usually take his lunch or coffee on the opposite side of the road at a local café. Ms Bussell said that Mr Williams' vehicle was parked on a daily basis directly outside her salon, and Mr Williams accepted that he parked in close vicinity (though not directly outside the salon).[27] There was no explanation as to why he did not park directly outside the respective cafes - it was not suggested that there was inadequate parking on that side of the road.

36 Mr Williams knew that Ms Bussell was directly involved in Mr Katis' election campaign - she had, with her younger cousin, previously put up campaign posters about which Mr Williams had complained.[28] Mr Williams also knew that Ms Bussell was 19 years of age (Ms Bussell having been at school with his daughter).

37 The events of 12 October are central to this case, and in essence provided the impetus for this claim.

38 I set out below at [39]-[46] my findings of fact as to those matters I regard as either undisputed or so clear as to be beyond argument.

39 At about 9.30am in the morning, Mr Williams parked his vehicle outside the salon on Perrin Street.

40 Shortly afterwards, Mr Williams approached the doors of the salon and endeavoured to take photographs of its interior. He did not enter the salon, and did not ask Ms Bussell's permission to take the photographs. It is worth noting here that advertising material and an opening hours sign covered most of the top part of the double doors to the salon. Only the two long glass windows on either side of the doors were unobscured.

41 At the time Mr Williams was outside the salon, Ms Bussell and a customer, Ms Makereta Daulako, were in the salon and observed his activities.[29] Ms Daulako was seated on a couch for waiting customers, situated adjacent to the left window.[30] Ms Bussell was standing at the rear of the salon, attending to a customer.

42 Shortly after Mr Williams left the salon, Mr Katis arrived at the salon and Ms Bussell told him of Mr Williams' behaviour.[31]

43 At about 9.35am, Mr Williams rang Mr Leahy at the Council offices and told him that he had seen mayoral business cards on the counter and that they should not be in the salon. He made it clear to Mr Leahy that he believed this to be a breach of the Code of Conduct.[32] Mr Leahy could not recall the details of the conversation.

44 At about 10.30am, Mr Katis faxed a letter to the Returning Officer for the election, Ms Matthews, alleging that Mr Williams had 'harassed, intimated [sic] and upset my family members and I am concerned for their safety'. He went on to say:[33]

An example happened this morning when Mr Williams went to the front of my granddaughter, Maeghan Bussell's new hairdressing salon. He then placed a camera on the window and took photographs, supposedly to show my business cards on the reception counter (the cards had been removed). This is a clear invasion of privacy and may cause damage to the business, as who would want to have hairdressing and beauty procedures done where men are taking photos without permission.

He continues to park his vehicles for extended hours in front of her shop, even though it's a 2 hour car park and has been seen staring at the shop to intimate [sic] Maeghan and her clients.

I believe Maeghan has been targeted as she has authorised my campaign material. From my prior correspondence, you can see this issue is only getting worse further police advice.

45 After sending the fax, Mr Katis went to the Robinvale police station and spoke to Acting Sergeant Middleton. He repeated the complaint about Mr Williams' actions, alleging that Mr Williams 'took photos through the window of business cards then decamped'.[34] After discussion with her colleagues, Sergeant Middleton advised Mr Katis that no offence had been committed but that she would call Mr Williams and speak to Ms Bussell.

46 At midday, Sergeant Middleton spoke to Mr Williams. The account given by both is generally similar. Mr Williams told Sergeant Middleton that he had taken no photos and that the displaying of the cards was in breach of the electoral law. Sergeant Middleton gave sage advice:[35]

...not to go tit for tat and everyone to act as if mature adults and leave people out of it that don't need to be involved in the hairdresser's.

She told Mr Williams to stay away from Mr Katis.[36]

47 I now turn to the conflicting aspects of the story, commencing with Mr Williams' account of the events of 12 October.

48 At around 9.30am Mr Williams, as was his habit, parked his vehicle in the vicinity of the salon.[37] He suspected that Mr Katis' business cards may have been on display. After parking, he walked from his vehicle to the front doors and saw a collection of cards on display on the front counter.[38] Intending to report the matter to the Council, he took out his mobile phone, held it up to the salon window, and focused the camera on the business cards through the glass.[39] He determined the focus of the lens would not be sufficient to take an adequate photograph, and moved off down the street.

49 Mr Williams was adamant that he stood directly outside the doors and not the adjacent left window where the activities in the salon could be observed.[40] He was equally adamant that he was outside the doors for only a brief period of time. He said he 'realised quite quickly that [the camera] probably wasn't going to take a good photo, so I immediately turned around and walked away'.[41]

50 Mr Williams estimated he was outside the building for only 20-30 seconds,[42] and did not see anyone sitting in the front section of the salon (near the windows). In cross-examination, he accepted that he saw someone move inside the salon, but he did not see anyone in particular.[43]

51 Ms Bussell's account of Mr Williams' behaviour differs in a number of aspects.

52 According to Ms Bussell, at the time of the incident on 12 October (she could not precisely recall the time of day), Ms Daulako was seated on a couch near the front windows of the salon, awaiting her hairdressing appointment. Ms Bussell heard Ms Daulako exclaim, 'Oh my god, someone is taking my photo, what is that man doing?'[44] She told Ms Daulako to remain calm, and continued assisting her customers.

53 While attending to her customers Ms Bussell observed Mr Williams taking photographs with what she believed to be an iPhone,[45] through the salon window - not the doors. She estimated that Mr Williams was outside the salon for about five minutes. She was also adamant he had parked his vehicle directly outside the salon, as he had in the past.[46]

54 Ms Bussell said that at the time of Mr Williams' visit she 'wouldn't have a clue what he was taking a photograph of'.[47] Later that morning a Council officer telephoned to ask her to remove the cards because (in the words of the Council officer) 'he has got a photo of these business cards'.[48] Ms Bussell said she had no inkling as to what Mr Williams was attempting to photograph at the time he was outside the salon.[49]

55 Ms Bussell stated repeatedly that she felt intimidated by Mr Williams' behaviour.[50] She felt 'very intimidated' by Mr Williams parking outside her salon every day, but did not make a complaint because she felt she 'couldn't really...you can park wherever you like'.[51] When asked why she didn't ask Mr Williams to leave when he was outside the salon, she stated:[52]

I'm five foot tall and look at him. No way would I go out there. I know what he [Mr Williams] was doing to my grandfather for the whole year, no way would I go near him.

...

He [Mr Williams] would intimidate him [Mr Katis] any chance he got, park out the front of his house.

56 Ms Daulako's account was for the most part consistent with that of Ms Bussell. Although her timing of the incident (which she put at around midday) was at odds with the other evidence, I am satisfied that she witnessed the incident and that in general terms her account should be accepted. It was not suggested that she was in any way biased or anything but independent of the two parties.

57 Ms Daulako confirmed that at the time of Mr Williams' visit she was seated on the couch at the front of the salon (to the side of the counter and adjacent to the window), awaiting her appointment with Ms Bussell. While looking out the window, she recognised a man she knew as the garbage man (meaning Mr Williams) taking multiple photographs from just a couple of metres away.[53] She agreed that he appeared to be taking photos in the general direction of the front counter, and that some of Mr Katis' business cards were on the counter that day.[54] However, she was not certain what Mr Williams was photographing. She stated:[55]

...he might have been taking photos of the front desk or he might have been taking photos of - behind where Meaghan was, or taking photos of me just sitting there, I don't know.

58 Ms Daulako estimated Mr Williams remained outside the salon for approximately ten minutes.[56] Once he left, Ms Daulako had her hair appointment with Ms Bussell and the two women discussed the incident. Ms Daulako said that Mr Katis arrived shortly afterwards and talked to his granddaughter about the event, and left after about five minutes.[57]

59 While he was at the salon and shortly after Mr Williams' departure, Ms Bussell told her grandfather of the incident and assured him she was fine, even though she felt she was 'shaking in her boots...[and] having a heart attack' during the incident.[58]

60 A critical aspect of Mr Katis' defence of justification is:

(a) Whether Mr Williams intended to intimidate or unnerve Ms Bussell by his activities, or whether it was a simple, thirty second 'evidence gathering' activity as he represented; and

(b) Whether Mr Williams photographed only the business cards on the counter as he represented, or whether it included the persons inside the salon.

61 For the reasons that follow I accept the evidence of Ms Bussell over that of Mr Williams on both issues. I am satisfied that Mr Williams intended to unnerve and intimidate Ms Bussell and took photographs of the interior of the salon, where Ms Bussell and Ms Daulako were located.

62 First, I was impressed with Ms Bussell as a witness. She gave evidence in a forthright and credible way. Notwithstanding her close relationship to her grandfather I detected no bias in her testimony. She was not moved in cross-examination about the essential aspects of her evidence.

63 Second, as mentioned earlier Mr Williams did not dispute that he parked daily in close proximity to the salon and on 12 October parked directly outside it. While the parking space was across the road from the café, I am satisfied that in the context of Mr Williams' ongoing quest to scrutinise all of Mr Katis' campaign activities, choosing the same car park on a daily basis was not mere coincidence or habit. Mr Williams was well aware of Ms Bussell's involvement in her grandfather's election campaign.[59] I accept Ms Bussell's evidence and I am satisfied Mr Williams parked there deliberately to upset or unnerve her. The logical extension of this exercise, particularly in light of the attachment of the business card to his vehicle, was to make a more deliberate and recognisable statement outside the salon in the presence of Ms Bussell.

64 Third, I do not accept Mr Williams' evidence that he took up a position outside the doors in which to photograph the business cards on the counter. Both Ms Bussell and Ms Daulako said, and were unshaken in cross-examination, that he took up a position outside the window.[60] Both women were in a perfect position to see what Mr Williams was doing - Ms Daulako was close to the window and Ms Bussell only a few metres away at a basin. Each were in no doubt as to Mr Williams' position and I accept their evidence on this point.

65 The evidence of the two women as to the direction in which Mr Williams was photographing was slightly at odds. Ms Daulako said that she thought that he was endeavouring to take photos of the counter[61] but then qualified this as I set out at [57]. Ms Bussell, on the other hand, was adamant that the photographs taken straight through the window into the s[62]on itself.62

66 In cross-examination, Ms Bussell stated (and I accept) that it was virtually impossible to take a photograph of the business cards from the door because of the obstructions caused by marketing material on the doors.[63] She remained steadfast in her view, which I accept, that Mr Williams appeared to be photographing the interior of the salon in which both women were present. She gave the following answer in cross-examination:[64]

And that you did not see him take a photo of any person but his camera was focused on the business cards?---Well how was I to know that? All I can see is this man taking a photograph. I wouldn't have a clue what he's taking a photo of. Until the council officer told me it was of the business cards and she said 'he has got a photo of these business cards' was I - did I know that it was of the business cards.

67 I accept Ms Bussell and Ms Daulako's evidence as to Mr Williams' position outside the salon.

68 It follows that Mr Williams' evidence as to his position outside the salon was false. I deduce that he gave such evidence to avoid the inference that he was in a position to take photographs of the general interior of the salon.

69 Fourth, Ms Bussell and Ms Daulako both stated that Mr Williams was present outside the salon window for a period well in excess of 30 seconds (5-10 minutes). It could be inferred from Mr Williams' evidence (and it makes common sense) that taking one photograph of the business cards would only take a relatively short period of time - say a minute or so at most; indeed, Mr Williams thought around 30-40 seconds. Although Ms Bussell and Ms Daulako's estimates of times varied considerably, the constant theme was that this exercise took far longer than just an attempt to take one photograph. Both observed him outside the window for a period of time and both thought he was taking photographs. I repeat that Ms Bussell, whose evidence I accept, was convincing in relation to the direction in which he was facing and that he was taking photographs. Taking up a position outside the salon for this period of time was consistent with him taking photographs of the interior of the salon and the persons within it.

70 Fifth, Mr Williams' evidence about his failure to take a photographs is, I conclude, false. During the trial Mr Williams insisted that he only attempted to take a photograph, and did not linger outside the salon. However, this version of events is inconsistent, both in terms of his statements to other witnesses and in his behaviour outside on other occasions.

71 Sergeant Middleton's notes (confirmed in her evidence) record that at 12.01pm Mr Williams 'stated no photos taken'.[65] At 2.13pm, her notes record: 'stated took photos with phone not camera where earlier stated took no photos'.[66]

72 On the afternoon of 12 October, Mr Ginn was told by his friend Mr Williams that he had taken photographs. Mr Ginn stated:[67]

... [Mr Williams] said that he had looked through the window of the hairdresser's shop there and spotted business cards that were the same on her counter. So he took a photo of them to send off to the council to complain to council that that wasn't what he believed was normal campaigning in an election campaign.

... [He] was later accused of stalking because he had taken a photo through the window and he was a little bit upset about that.

73 This account is consistent with the phone call from a Council officer to Ms Bussell shortly after the incident, in which Ms Bussell was asked to remove the business cards and was told that Mr Williams had photographed them. Mr Williams agreed that he rang the Council directly after the 'attempt' to photograph the cards.

74 Moreover, Mr Williams had taken other photographs to support his concerns about Mr Katis' electoral campaign, and included those photographs with his letters to Ms Matthews.[68] Given this history and his fixation on the use of the cards, it would be uncharacteristic for Mr Williams to depart the salon without taking a photograph (or at least make a serious attempt to do so).

75 Sixth, in the face of a clear attack as to whether he had or had not taken a photograph of the salon (as opposed to the business cards), Mr Williams did not produce any evidence relating to his use of the camera on that day. Although the matter was not explored greatly in cross-examination (Mr Williams said he did not have his phone with him in Court[69]) it is self-evident that production of the digital images recorded on his phone (or perhaps transferred to a computer), would have resolved this issue. Examination of the sequence of photographs would have enabled a determination as to whether photographs had or had not been taken and if, contrary to his account they had been taken, the exact nature of what Mr Williams had photographed. No explanation was proffered for the failure to produce evidence relevant to the existence or otherwise of photographs taken at or around the relevant time.

76 It was within Mr Williams' power to produce the camera's records. The question of what he claimed he had been photographing was central to his allegations that he had been defamed, which were made not long after the broadcast went to air. Consistent with the remarks of Gleeson CJ in Swain v Waverley Municipal Council[70] one may well think it was up to Mr Williams to explain what had happened to the digital images.

77 Moreover, Mr Williams did not explain why he altered his account to Sergeant Middleton in relation to the taking of photographs. Mr Williams denied that he told the Sergeant he had taken photographs. However, there was no challenge mounted as to the accuracy of Sergeant Middleton's evidence on this score. I reject Mr Williams' denial. There is no reason to doubt the contemporaneous written record or the sworn evidence of Sergeant Middleton.

78 Finally, there is Mr Williams' overall credibility as to the events of that day. As I will explain in a moment, I reject Mr Williams' account of what transpired outside the Robinvale post office. Simply put, Mr Williams' account of his behaviour on that day is not credible.

79 In the result, I am persuaded that Mr Williams took at least one if not more photographs over (at least) a period of five minutes. I accept that part of Mr Williams' purpose that morning was to take photographs of the business cards. However, for the reasons I have already set out I am comfortably satisfied that he went further and proceeded to take photographs of the interior of the salon and the persons within it.

80 The word 'intimidate', as defined in the Oxford English Dictionary, means to 'terrify, overawe, cow'.[71] I think a reasonable member of the community would conclude, without reference to a dictionary, that Mr Williams' actions constituted an attempt by him to overawe Ms Bussell, whom he no doubt regarded as part of the Katis team.

81 I am satisfied that Mr Williams while perhaps seeking to photograph the business cards also intended to intimidate Ms Bussell as part of his election tactics. There is no other explanation for his behaviour outside the salon and the length of time he spent there. This was not a genuine evidence gathering exercise: instead, by photographing the inside of the salon, he intimidated Ms Bussell.

82 Neither Ms Bussell nor Ms Daulako had any warning or notice of Mr Williams' purpose. Critically, Mr Williams elected not to tell the women what he was endeavouring to do. He did not enter the salon and ask permission to take a photograph. A middle-aged man standing outside a ladies hair salon for a period of around five minutes, using a phone in an attempt to photograph the interior, would almost certainly cause concern to those inside. Any reasonable person in Mr Williams' position would have appreciated that his actions could well have been regarded as an attempt to intimidate Ms Bussell.

83 I have concluded that Ms Bussell was upset and concerned by Mr Williams' actions outside the salon. I am satisfied that she was intimidated.

(a) Mr Williams parked his recognisable vehicle regularly directly outside the salon in the couple of weeks prior to the incident.

(b) Mr Williams, for a period of approximately five minutes, endeavoured to and took a photograph or photographs of the interior or the salon. He gave no warning or advice to those inside as to his intentions.

(c) Mr Williams took photographs from a position directly outside the left salon window. He photographed the interior of the salon, including Ms Busell and Ms Daulako, as well as the business cards.

(d) Whilst a purpose of the exercise was to obtain evidence to support his allegation that Mr Katis' business cards were being used as an election tool, this was not the only purpose. His actions were also intended to unnerve and upset Ms Bussell, and amounted to deliberate intimidation.

(e) Mr Williams knew or ought to have known that those inside (which had to include Ms Bussell) would have been intimidated or felt threatened by his behaviour.

(f) Ms Bussell felt intimidated by his actions and she was rightly entitled to feel so. She told her grandfather what had happened. Relying on her account (which was accurate) it was not unreasonable for Mr Katis to conclude that Mr Williams had attempted to intimidate his granddaughter.

85 The following at [86]-[88] is undisputed or beyond argument.

86 At about 12.40pm, Mr Williams and Mr Katis' crossed paths outside the Robinvale post office - notwithstanding Sergeant Middleton's cautionary words. Mr Williams did not dispute that he approached Mr Katis to remonstrate with him about the complaint Mr Katis had made to the police that morning.

87 Mr Williams used abusive and offensive language towards Mr Katis in the course of this confrontation, which is described in Mr Williams' diary. Mr Williams wrote:[72]

Confronted Katis at P.O [and] said

...

Your [sic] a pathetic piece of shit

Your time is up

88 Mr Katis did nothing to provoke the verbal tirade and said nothing during the incident. The confrontation was witnessed by Mrs Wright and Mr 'Rocky' Ladlow, local residents who knew both men.[73]

89 I now set out what the two men claim took place and my findings as to the true state of affairs.

90 According to Mr Williams, he did not deliberately seek Mr Katis out; rather, he was driving past the post office and - by coincidence - saw Mr Katis on the street.[74] He claimed to have 'calmly' approached Mr Katis front on, and said:[75]

91 Mr Katis said nothing and kept his eyes down low. As they were passing, Mr Williams said:[76]

Mr Katis continued to walk away from Mr Williams, and as he did so, Mr Williams followed him and called him 'a pathetic piece of shit'.[77] At that point, Mr Williams claimed Mr Katis spat on the ground and continued walking. Mr Williams then said:[78]

92 Mr Ladlow was in the vicinity of the post boxes, possibly ten metres away,[79] and did not call out.[80]

93 On Mr Williams' account, this was the end of the altercation. He described the entire exchange as 'calm' and not aggressive, despite the strong language used.[81]

94 Mr Katis' version of events is significantly different. He states that as he was walking alongside the post office, he heard Mr Ladlow say:[82]

95 Mr Katis continued on his way but stopped when Mr Williams came up abruptly alongside him. According to Mr Katis, Mr Williams' face was a mere six inches from his own. He stated:[84]

I could feel the heat from his mouth and his spittle hitting me on my cheek there...he said to me, 'I'm going to put you down you little shit for dobbing me in to the cops.'

96 Although he described the volume of Mr Williams' voice as normal, he said the manner and tone of Mr Williams' statement was 'very angry'.[85] The level of tension was such that Mr Katis said:[86]

The size of me and the size of Mr Williams' aggression he showed coming to me, I thought I'm going to cop one here...I was going to get a punch in the head or the back...

97 After Mr Williams spoke to him, Mr Katis said he turned around and kept walking; he did not spit on the ground. During the trial Mr Katis reiterated his view that 'if Mr Ladlow was not there, I would have copped it, there's no doubt about that'.[87]

98 At the time of the confrontation Mrs Wright was attending the post office to check her mail. When she arrived Mr Katis was talking to an older man who she did not recognise (presumably Mr Ladlow).[88] After checking her post office box, Mrs Wright observed Mr Williams 'marching over to John' and that his voice was raised and aggressive.[89] She heard some swearing, but did not recall the precise words used because she was trying 'not to be too nosy'.[90]

99 Mrs Wright did not believe that Mr Katis could see Mr Williams as he approached.[91] It was not a chance encounter; Mr Williams went out of his way to seek out Mr Katis. He followed Mr Katis, 'yelling out things'.[92]

100 Mrs Wright did not hear Mr Katis say anything,[93] but that:[94]

[It] appeared to me that he [Mr Katis] was trying to keep moving trying to avoid the situation...

John was sort of just shaking his head and it came across to me that John was trying to just ignore Tim and I actually was about to come over and intervene because I have seen John many times over the years and he looked rattled, he looked - his face was really drawn and he looked really uncomfortable so I was actually about to go over and see if he was okay and that's when John continued walking and walked off and Tim turned around and left.

101 Mrs Wright also referred to an important foundation of Mr Katis' fears: the relative size (and age) of the men. She stated (and I accept) that:[96]

Tim was red in the face and it did look very confrontational to me because from my memory Tim was actually looking down on John because he is bigger than John and he was looking down at John and was very close to his face.

102 I should mention here the evidence of Mrs Carmel Keating. She was also outside the post office at or around the time of the confrontation. However, as opposed to Mrs Wright, the evidence of Mrs Keating was discursive and essentially irrelevant to the central issue: namely, the nature of the confrontation between the two men. I put Mrs Keating's evidence to one side.

103 After the confrontation, Mr Katis continued walking westward to the Resource Centre (where his car was parked) and then drove to the Robinvale Police Station to report what had happened.

104 At 12.45pm, Mr Katis again spoke to Sergeant Middleton at the police station. He told her of the confrontation with Mr Williams and that Mr Williams had used words such as 'you're going down you little shit, you dobed [sic] me into the cops'.[97] He told her that he was worried Mr Williams was going to assault him.[98]

105 On her own interpretation of the events reported to her, Sergeant Middleton said Mr Williams' actions may have constituted an unlawful assault.[99]

106 At 1.35pm, Sergeant Middleton spoke to Ms Bussell. Ms Bussell confirmed that Mr Williams had been outside her salon earlier, and that she believed he had taken photographs.[100]

107 At 2.12pm, Sergeant Middleton rang Mr Williams, who was outside the police station, and he attended almost immediately. She spoke to him again about the events of the day. According to Sergeant Middleton's notes, Mr Williams told her that he approached Mr Katis at the post office and said 'You useless piece of shit, you dobbed me into the cops, face me like a man'. Sergeant Middleton advised Mr Williams to consider endeavouring to resolve his dispute with Mr Katis through the counselling program known as Support Link.[101]

108 Mr Williams disputed that he used words such as 'dobbed me into cops' in his account to Sergeant Middleton.[102] I reject this. There is no reason whatsoever to second guess Sergeant Middleton's notes. Moreover, I am satisfied that it was precisely that 'dobbing in' that drove Mr Williams to act in the way he did.

109 For the following reasons I reject Mr Williams' account where it conflicts with that of Mr Katis.

110 First, I consider Mrs Wright's account to be particularly persuasive. Mrs Wright was, as counsel for Mr Katis submitted, the classic independent witness. In substance, she corroborated Mr Katis' version of events. She knew both men and watched events unfold from a relatively short distance, although she could not hear exactly what was said. Her credibility was not challenged and I accept her evidence unreservedly. As she said during the trial, part of her everyday employment involves reporting to various authorities on issues of child protection, including on behaviour she witnesses in a domestic violence context.[103] The fact that this incident was one that 'got [her] attention straight away'[104] and made her feel 'uncomfortable'[105] is telling.

111 Second, the language used by Mr Williams is totally inconsistent with a sober, mature discussion between two rival politicians - as he would have it. It was disgraceful language, particularly in the context of an upcoming election in a local town. It is inconceivable that such language was used in the 'calm' way Mr Williams described. His words were both threatening and provocative.[106]

112 Third, although Mrs Wright did not hear Mr Ladlow call out I am satisfied that he did so and, contrary to Mr Williams' version, in the words attributed to him by Mr Katis. Given that Mr Williams had sought out Mr Katis and walked towards him in an aggressive and confrontational fashion (to use Mrs Wright's words, he was 'very, very angry'), it makes eminent good sense that Mr Ladlow tried to warn Mr Katis of what he perceived to be an impending threat. Mr Ladlow was in the vicinity of the incident and had the capacity to witness what was going on.

113 Fourth, I am satisfied that Mr Williams, once concerned about an issue, has a tendency to become obsessive. There are a number of instances of this,[107] not least of all his concern about Mr Katis' use of the business cards. Indeed, it was the business cards and the subsequent reporting of his conduct outside the salon that caused him to become enraged with Mr Katis. He was livid at having been 'dobbed in' by Mr Katis for his actions outside the salon. This was not an innocent crossing of paths; Mr Williams made it his business to confront Mr Katis.

114 In summary, I am satisfied of the following matters:

(a) Mr Williams was incensed by Mr Katis' conduct in reporting the salon incident to the police.

(b) Mr Williams deliberately sought out Mr Katis outside the post office. He marched up to him in a threatening and aggressive manner.

(c) Mr Ladlow endeavoured to warn Mr Katis of Mr Williams' approach and used words such as 'look out' and 'leave him alone'.

(d) Mr Williams yelled loudly at Mr Katis using abusive and offensive language. He used the words, 'Your [sic] a pathetic piece of shit', 'your time is up'[108] and 'you're going down you little shit you dobbed me into the cops.'

(e) These words were uttered in a particularly angry and forceful tone with Mr Williams only inches, or millimetres, away from Mr Katis' face. To use Mrs Wright's expression, he was 'right in John's [Mr Katis'] face'.[109]

115 I am also satisfied, given the relative difference in age and size between the two men and the aggression (both in demeanour and language) displayed by Mr Williams, that Mr Katis was justified in feeling that his personal safety was threatened - especially in the context of Mr Ladlow's warning. This confrontation occurred 'out of the blue' and whilst Mr Katis was going about his own business. He did nothing to provoke the aggressive verbal attack and in the heat of the moment he was entitled to feel that his personal safety was threatened. Whilst I accept that Mr Williams did not threaten to harm Mr Katis physically, nor overtly take any action consistent with a physical attack, I consider the confrontation to be of sufficient seriousness to warrant Mr Katis' belief that it could have been worse but for the presence of a bystander. I am satisfied that Mr Katis' perception that he may have been physically injured but for Mr Ladlow's presence was justified.

116 I set out below the facts as to what occurred after 12 October 2012 that I regard as either undisputed or so clear as being beyond argument.

117 On Monday 15 October, Mr Katis went to the Swan Hill Court House for the purpose of obtaining an intervention order against Mr Williams.[110] He was given an application form which he took home and filled out by hand.[111]

118 The next day, Tuesday 16 October, Mr Katis took his handwritten application for an interim intervention order to the Robinvale Magistrates' Court.[112] He gave it to the Clerk of the Court who typed it out and told Mr Katis that he would provide the typed-up version[113] to the Magistrate.

119 Mr Katis waited for 'a good hour or more' until the hearing of the application before the Magistrate.[114] It is during this time that Mr Katis had a discussion with Mr O'Haire, a local solicitor. Mr O'Haire had, in the past, acted for both Mr Williams and Mr Katis. It is said by Mr Williams that during this conversation Mr Katis made the first defamatory publication about Mr Williams. The substance of that conversation is disputed; I will return to it when considering the first alleged defamatory imputation.

120 Mr Katis' Intervention Order application eventually came before the Magistrate. Mr Katis gave evidence on oath in support of the application,[115] which was granted.[116] An Interim Intervention Order was made in the following terms:

The Court orders that the respondent [Mr Williams] must not:

1. Stalk the protected person(s)

NOTE - A person stalks another person if he/she engages in a course of conduct with the intention of causing physical or mental harm to that person including self-harm, or arouses apprehension or fear in that person for his or her own safety or that of any other person.

2. Commit prohibited behaviour towards the protected person(s)

NOTE - Prohibited Behaviour is assault, sexual assault, harassment, property damage or interference, or making a serious threat.

1. Attempt to locate, follow the protected person(s) or keeping him/her/them under surveillance.

4. Contact or communicate with a protected person by any means.

1. Approach or remain within 5 metres of a protected person other than for the purpose of lawfully attending any public meeting of the Swan Hill Rural City Council.
2. Go or remain within 50 metres of [sic] or any other place where a protected person lives.

This INTERIM intervention order [sic] will last until final order, unless varied or revoked; or if the application is withdrawn.[117]

121 The summons was returnable on 13 November 2012.

122 Later that day, Ms White telephoned Mr Katis in relation to the confrontation between himself and Mr Williams.[118]

123 The next morning, 17 October, Mr Williams attended the Robinvale police station. He had a 'feeling' that something had 'happened at court' or 'with the police'.[119] The Interim Intervention Order was then served on Mr Williams that morning at the police station.

124 On 17 October Ms White travelled from Mildura to Robinvale to interview both Mr Katis and Mr Williams about the Interim Intervention Order. Mr Katis gave her a copy of the Intervention Order application.[120] During the course of the day, WIN TV ran two promotional items for an upcoming item in the news relating to Mr Katis obtaining the Intervention Order.

125 In the six o'clock local news bulletin on WIN TV, both Mr Katis and Mr Williams made statements concerning the circumstances surrounding the obtaining of the Intervention Order. The voiceover was provided by Ms White.

126 The final determination of the Intervention Order on 13 November at the Robinvale Magistrates' Court did not proceed. After much discussion, Mr Williams agreed to sign an undertaking ('without admissions') agreeing to stay away from Mr Katis and his family for a period of six months.[121] The undertaking stated as follows: [122]

Mr John Katis (applicant) and Mr Timothy Williams (Respondent) at Robinvale Magistrates Court on 13 November 2012.

WITHOUT ADMISSIONS

Mr John Katis agrees to withdraw his application upon the acceptance of an undertaking by Mr Timothy Williams in the following terms:

1. Mr Williams will not attend at Mr Katis' home or any place of business owned or run by Mr Katis or his children or grandchildren, except as may be necessary in the course of conducting the regular business of Robinvale Waste Management;
2. Mr Williams will not communicate with Mr Katis in person, by telephone or text message except at Swan Hill Council meetings and community forums,

127 Mr Katis was not consistent in his evidence regarding the Intervention Order application. Despite having previously attended the Magistrates' Court on 5 October to 'ask for an intervention order' against Mr Williams, he insisted that he did not know what one was until after he obtained the interim order on 16 October.[123] Counsel for Mr Williams suggested that this denial was to give the impression that it was the police that put the idea in Mr Katis' mind to get an intervention order, when as a matter of fact he had been considering applying for one all along.[124]

128 Notwithstanding this inconsistency, I do not accept the suggestion that Mr Katis was plotting to obtain an intervention order against Mr Williams before the events of 12 October. Regardless of whether he feigned ignorance as to the effect and operation of intervention orders during his cross-examination, I accept that as at 16 October there was a proper basis for Mr Katis to make an application for an intervention order which was accepted by the Magistrate. I see no reason to doubt his Honour's finding. Moreover, notwithstanding the words 'without admissions', the Court record is that on 13 November Mr Williams accepted, by his undertaking, that he would keep away from the Katis family for a period of six months.

129 The third and fourth publications (the interview given by Mr Katis to Ms White on 16 October, and the news bulletin subsequently aired on WIN TV containing that interview) can be dealt with jointly: the alleged defamatory imputations contained in the interview were repeated in the broadcast. Given that the interview and broadcast are the most significant publications in this case (due to the audience of the broadcast), I will deal with these first before returning to the first and second publications. The first and second publications, in terms of the extent of publication, are of minimal significance.

The third and fourth publications: Mr Katis' interview with Ms White and the broadcast on WIN TV

130 The third publication on 17 October 2012 was Ms White's interview of Mr Katis (part of which was ultimately broadcast on WIN TV that evening). During the interview, Mr Katis said:[125]

[H]e attacked me verbally, luckily there was a bystander standing by because I believe he would have harmed me during the altercation.

...

[T]his sort of thing only happens, you know, if you are running for President in the United States for god's sake, not in Robinvale.

131 It was not suggested that any person other than Ms White was a recipient of this information. Of course, the interview was then subsequently included in the broadcast.

132 The fourth publication was the WIN TV news bulletin at 6.00pm on the evening of 17 October 2012. The broadcast contained the following (repeating those parts of the interview reproduced above):[126]

OPENING: Tonight a Swan Hill Council candidate told to stay away from the Mayor...

BRUCE ROBERTS: The Mayor of Swan Hill has taken out an interim intervention order against a candidate in this month's council elections.

John Katis claims he's been threatened by candidate Tim Williams, who has also photographed his granddaughter through her shop window.

EMILY WHITE: Under an interim intervention order granted yesterday, Tim Williams is not allowed within fifty metres of Swan Hill's mayor.

Councillor Katis is upset his granddaughter and her clients where (sic) photographed through a shop window, by his fellow election candidate.

JOHN KATIS: And because I have reported it to police, he has attacked me verbally. Lucky that there was a bystander nearby because I believe he would've harmed me during that altercation.

EMILY WHITE: Mr Williams says he was unaware of the intervention order application, in which the Mayor stated he was threatened by Mr Williams. John Katis, a councillor for more than fifteen years, has also written two letters to the Municipal Association of Victoria's Inspectorate.

JOHN KATIS: These sorts of things only happen if you're running for President of the United States, for God's sake, not in Robinvale.

EMILY WHITE: Tim Williams today read a brief statement in response to the allegations made by John Katis.

TIM WILLIAMS: I completely reject any allegations made by Mr Katis and the reasons for an AVO (sic) being taken out against me, they are ridiculous and completely without merit.

EMILY WHITE: He strenuously denies doing any wrong.

TIM WILLIAMS: For the whole of my election campaign, I have conducted myself within the rules and guidelines of the Victorian Electoral Commission, offering myself as a worthy candidate for the Robinvale Ward voters.

EMILY WHITE: Mr Williams says he's seeking legal advice, with both parties scheduled to meet in court on November 13.

133 There was no dispute as to what was said by Mr Katis to Ms White in the interview or what was said during the broadcast.

134 The broadcast had been preceded on WIN TV by several promotional items in the afternoon concerning the taking out of the intervention order. The broadcast was the lead item and, it can be readily assumed, was watched by thousands of persons in the Mildura/Swan Hill community. It was clear that this broadcast caused Mr Williams considerable hurt. It was a subject of community discussion and patently the most significant of the publications that affected Mr Williams' reputation.

135 Mr Williams asserts and I accept that the broadcast was the natural and probable result of the provision of the Intervention Order application (the second publication) and the interview with Ms White (the third publication), and was both intended and authorised by Mr Katis. Given that Mr Katis gave the application to Ms White and participated voluntarily in the interview, it was not surprising that no serious argument was mounted against this proposition.

(b) Was the interview and/or the broadcast defamatory of Mr Williams?

136 The first question to be determined is that of the defamatory meaning or meanings conveyed by the publications. This is not to be resolved by what the subject of the publication, or the author or publisher, thinks it means. Rather, it is the meaning which would be conveyed to fair minded, ordinary, reasonable people in the community.[127]

137 Recently, in Cripps v Vakras,[128] Kyrou J helpfully summarised the principles in relation to determining the meaning of defamatory imputations, stating:[129]

The meaning of the words in the Impugned Articles is to be determined objectively, by what the ordinary reasonable reader would regard the words to mean. In Farquhar v Bottom, Hunt J summarised the principles for determining whether a matter complained of is capable of conveying a particular imputation. His Honour said:

In deciding whether the matter complained of is capable of conveying to the ordinary reasonable reader the imputations relied upon by the plaintiff, I must be guided and directed by the test of reasonableness. I must reject any strained, or forced, or utterly unreasonable interpretation. I must proceed upon the basis that the ordinary reasonable reader is a person of fair, average intelligence; who is neither perverse; nor morbid or suspicious of mind; nor avid for scandal.

This ordinary reasonable reader does not, we are told, live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs. It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer.

The ordinary reasonable reader is neither unusually suspicious nor unusually naïve and engages in a degree of loose thinking.

138 Once the imputation has been identified, the next step is determining whether the meaning is defamatory.

139 The decision of the High Court in Radio 2UE Sydney Pty Ltd v Chesterton[130] makes it clear that the essence of an action for defamation is disparagement of reputation and that it may occur in different respects - personal, business or professional reputation.[131] Any diminution of reputation may be considered defamatory.[132] The general test for defamation applies to an imputation concerning any aspect of a person's reputation, and that concept comprehends all aspects of a person's standing in the community.[133]

140 In his statement of claim Mr Williams pleads that the contents of the interview (the third publication), were meant and were understood to mean that:[134]

(b) During their altercation, Mr Katis would have been harmed by Mr Williams, if not for the presence of a bystander;

(c) Mr Williams was attempting to win the Council election by the use of intimidation; and

(d) Mr Williams was treating the Council election in an unnecessary, ruthless manner, commensurate with an election for the Presidency of the United States of America.

141 In his defence, Mr Katis admits imputation (a), but denies imputations (b) - (d). He contends that there is a different but significant alteration to imputation (b), namely that the natural and ordinary meaning of the words is that Mr Katis believed that he would have been harmed by Mr Williams had it not been for the presence of a bystander.[135]

142 I agree with Mr Katis' alternative formulation of the alleged imputation (b). The words 'I believe' used in the interview make it clear that it was an expression of Mr Katis' belief as to what would have transpired but for the presence of a bystander.

143 In relation to alleged imputation (c), I do not accept that the broadcast gives rise to the imputation that Mr Williams was attempting to win the Council election by the use of intimidation. Although the interview refers to Mr Williams confronting Mr Katis in an inappropriate way and to the photographing of Ms Bussell, it does not convey a suggestion that Mr Williams was attempting to win the election by intimidation. Rather, it sets out instances of improper conduct on the part of Mr Williams. The word 'intimidation' is not used in the broadcast, nor is there reference to this conduct being part of a campaign tactic. This meaning is not conveyed.

144 As to the alleged imputation (d), I do not accept that the reference to the United States elections means that Mr Williams was treating the Council election in an 'unnecessary, ruthless manner commensurate with an election for the presidency of the United States of America'. I do, however, consider that it carries another meaning which I shall address in a moment.

In David Syme & Co Ltd v Hore-Lacy, the Court of Appeal discussed the principles in Polly Peck dealing with the circumstances in which a defendant is entitled to plead, for the purposes of justification and other defences, that the words complained of by the plaintiff bear a meaning other than the meaning pleaded by the plaintiff...

In Hore-Lacy, the majority (Ormiston and Charles JJA) held that a plaintiff in a defamation action can succeed at trial only on a pleaded meaning or some other meaning provided that the other meaning is not substantially different from and is not more injurious than the meaning pleaded, and that the defendant is not in all the circumstances unfairly prejudiced by the reliance on the other meaning. Charles JA stated that the question of whether the meaning is 'substantially different' would 'presumably be tested by asking whether the defendant would have been entitled to plead a different issue, adduce different evidence or conduct the case on a different basis ... or possibly whether the justification would be substantially different.

146 The ability of a court, within reasonable bounds, to find an alternative meaning to that pleaded has been described as a 'permissible variant'.[137]

147 However, it is ultimately a question for the trier of fact (be it judge or jury) to determine the true meaning of the words. The Full Court in National Mutual Life Association v GTV Corporation Pty Ltd[138] said, in the context of the pleading of defamatory imputations:[139]

But again, in our opinion, that practice did not and could not alter the position at law that the judge was to decide what meanings were fairly open and was to leave to the jury all such meanings, and only such meanings, of the words as were fairly open. In our opinion, neither the judge nor the jury were thereby confined to the meanings asserted by the parties.

148 The reference to United States presidential elections is, of itself, confusing and I am not able to conclude affirmatively what one person or group of persons may make of such elections. Some may think that a presidential election is the foremost example of democracy in action; others may think that it is a no holds barred contest in which anything legal or illegal, is permissible.

149 I think, taken in context, these words conveyed to a reasonable person the imputation that such behaviour was out of place and inappropriate in a Victorian regional municipal election. The meaning attributed by Mr Williams is, I think, one that would only be discerned by an avid viewer of multiple reruns of 'The West Wing', not the reasonable Swan Hill or Mildura resident. My conclusion as to the true meaning is, I think, a permissible variant of the pleaded imputation and therefore open to the trier of fact.[140]

150 In summary, I am satisfied that the following imputations flow from the interview:

(b) Mr Katis believed that he would have been harmed by Mr Williams had it not been for the presence of a bystander;[141] and

(c) Mr Williams was acting in an inappropriate manner for a candidate for public office in rural Victoria.

151 I am also satisfied that the sting of each of the imputations I have identified damaged Mr Williams' reputation (particularly in the context of a local election) and the imputations, therefore, are defamatory.

152 Turning now to the broadcast (the fourth publication). In his statement of claim, Mr Williams pleads that the broadcast meant and was understood to mean that: [142]

(b) Mr Williams inappropriately photographed Mr Katis' granddaughter and her clients through her shop window;

(c) Mr Williams' conduct towards Mr Katis and his granddaughter had justified an interim intervention order being made against him;

(e) During their altercation, Mr Katis would have been harmed by Mr Williams, if not for the presence of a bystander;

(f) Mr Williams was attempting to win the Council election by the use of intimidation; and

(g) Mr Williams was treating the Council election in an unnecessarily ruthless manner commensurate with an election for the Presidency of the United States of America.

153 Mr Katis' admits imputations (a)-(d), but denies imputations (e)-(g).

154 In relation to alleged imputation (e), Mr Katis says that the natural and ordinary meaning of the broadcast was that Mr Katis believed that he would have been harmed by Mr Williams had it not been for the presence of a bystander.[143] For the reasons set out above in relation to the interview, I agree with Mr Katis' formulation.

155 As is the case with the interview, I do not accept that the broadcast gives rise to the imputation that Mr Williams was attempting to win the Council election by the use of intimidation as alleged in imputation (f). I accept that the broadcast goes further into the detail of the dispute between the two men than the interview. It describes the two men as opponents in the Council election and refers to the photographing outside the salon as well as the confrontation. However, I do not accept that after watching the broadcast the reasonable viewer would have thought that Mr Williams was attempting to win the election by use of intimidation. Rather, I think the true sting of the broadcast was that there was a high degree of personal animosity between the two candidates resulting in several incidents, which in turn led to the taking out of the intervention order. Imputation (f) is not made out.

156 Finally, in relation to imputation (g), for the reasons referred to in respect of the interview, I do not accept that the broadcast gives rise to the imputation that Mr Williams was treating the Council election in an 'unnecessarily ruthless manner commensurate with an election for the presidency of the United States of America.' Rather, the true meaning is that Mr Williams was acting in an inappropriate manner for a municipal election in this state, which I regard as a 'permissible variant' of the pleaded allegation.

157 So, I am satisfied that the following imputations can be made out from the broadcast:

(b) Mr Williams inappropriately photographed Mr Katis' granddaughter and her clients through her shop window;

(c) Mr Williams' conduct towards Mr Katis and his granddaughter had justified an interim intervention order being made against him;

(e) During their altercation, Mr Katis believed he would have been harmed by Mr Williams, if not for the presence of a bystander; and

(f) Mr Williams acted in a manner which was inappropriate for a candidate for public office in rural Victoria.

158 Each imputation was defamatory in the sense that it disparaged Mr Williams' reputation, particularly in the context of a local election. I should add that I do not think that the statement read out by Mr Williams in the course of the broadcast detracts from the defamatory nature of the broadcast when it is considered as a whole.[144]

(c) Were the defamatory meanings substantially true or an expression of opinion/fair comment based on proper material?

159 As a number of defamatory imputations have been made out, it is now necessary to examine the primary defence of Mr Katis: that the defamatory meanings were substantially true. Alternatively, he claims that the imputations were conveyed as a 'fair comment' or an expression of opinion based on proper material.

160 First, Mr Katis relies upon both the common law defence of justification (i.e. truth) and the statutory defence under section 25 of the Defamation Act. Section 25 states:

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.

161 Put simply, Mr Katis is required to prove on the balance of probabilities that it was objectively established the defamatory imputations of which Mr Williams complains are 'substantially true'.[145] This requires Mr Katis to prove the truth of the 'sting' of the meaning conveyed, rather than every detail of the publication.

162 Second, Mr Katis contends that several of the imputations - if not statements of fact that have been justified - were expressions of opinion relating to a matter of public interest (being the election) and based on proper material. This is a defence founded in the common law as 'fair comment' and in section 31 of the Defamation Act as 'honest opinion'. Where necessary, I deal with both defences jointly.

163 Section 31 states:

(1) It is a defence to the publication of defamatory matter if the defendant proves that -

(a) the matter was an expression of opinion of the defendant rather than a statement of fact; and

(b) the opinion related to a matter of public interest; and

(c) the opinion is based on proper material.

...

(4) A defence established under this section is defeated if, and only if, the plaintiff proves that -

(a) in the case of a defence under subsection (1) - the opinion was not honestly held by the defendant at the time the defamatory matter was published;

...

(5) For the purposes of this section, an opinion is based on proper material if it is based on material that -

(a) is substantially true; or

(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or

(c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.

(6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.

164 As to whether a defamatory publication is an expression of opinion rather than a statement of fact (s 31(1)(a)), the relevant test is not whether Mr Katis intended to convey his opinion, but whether the ordinary reasonable reader of the publication would understand it to be an expression of his opinion.[146]

165 Chief Justice Gleeson in Channel Seven Adelaide Pty Ltd v Manock,[147] said of the defence:[148]

The protection from actionability which the common law gives to fair and honest comment on matters of public interest is an important aspect of freedom of speech. In this context, 'fair' does not mean objectively reasonable. The defence protects obstinate, or foolish, or offensive statements of opinion, or inference, or judgment, provided certain conditions are satisfied. The word 'fair' refers to limits to what any honest person, however opinionated or prejudiced, would express upon the basis of the relevant facts.

166 Less authoritatively, in French v Triple M Melbourne Pty Ltd & Ors (Ruling No 5)[149] several years ago, I said the following in relation to the common law defence of fair comment:[150]

At the outset, it may be observed that the use of the plea in the context of qualified privilege differs from that associated with fair comment as the rationale of the defence of qualified privilege differs to that of fair comment. Underpinning the defence of qualified privilege is a recognition that the public interest requires that a recipient be able to receive frank and uninhibited communications of particular information from another source without being liable for any defamatory imputations that may arise from them. The qualification to the privilege is that it not be used for a motive foreign to the duty that protects the making of the statement.

The rationale behind the defence of fair comment is different. There is no subsisting relationship that gives rise to the privilege. The defence is open to all. It is underpinned by the concept of freedom of expression. As long as the comment concerns a matter of public interest, it permits the publisher to express opinions, crackpot, left field or otherwise, provided it is made clear that it is comment or opinion and is based on facts which are either expressly or implicitly set out. In doing so, it upholds the right of freedom of expression, which is a fundamental notion enshrined in the common law. In considering a defence of fair comment, the court determines objectively (by endeavouring to place itself in the position of the fair-minded listener), whether an honest person could have expressed that opinion, no matter how belligerently or offensively that opinion might be expressed.

167 More recently, the relevant principles of the common law defence of fair comment were set out by Kyrou J in Cripps as follows:[151]

(a) The imputation must be a comment as opposed to a statement of fact.

(b) The comment must relate to a matter of public interest.

(c) The comment must be based on fact, stated or referred to in the article, so that those considering the defamatory material can judge for themselves how far the opinion expressed in the comment is well founded.

(d) The facts on which the comment is based must be true.

(e) The comment must be one that an honest person, however so prejudiced, might reasonably form upon the facts.

(f) The defence can be defeated by malice, which in this context is better identified as the lack of any genuine belief in the opinion expressed.

168 In this case, a question arises as to whether some of the imputations attributed to the various publications or statements are of fact or opinion.

169 In Manock, Gummow, Hayne and Heydon JJ described the distinction between fact and comment in the following terms:[152]

In Brent Walker Group Plc v Time Out Ltd Bingham LJ said:

'The law is not primarily concerned to provide redress for those who are the subject of disparaging expressions of opinion, and freedom of opinion is (subject to necessary restrictions) a basic democratic right. It is, however, plain that certain statements which might on their face appear to be expressions of opinion (as where, for example, a person is described as untrustworthy, unprincipled, lascivious or cruel) contain within themselves defamatory suggestions of a factual nature. Thus the law has developed the rule ... that comment may only be defended as fair if it is comment on facts (meaning true facts) stated or sufficiently indicated.' (emphasis added)

In Goldsbrough v John Fairfax & Sons Ltd Jordan CJ said that for the defence of fair comment to succeed, 'it is essential that the whole of the words in respect of which it is relied on should be comment'. He continued:

'It must be indicated with reasonable clearness by the words themselves, taking them in the context and the circumstances in which they were published, that they purport to be comment and not statements of fact; because statements of fact, however fair, are not protected by this defence. In other words, it must appear that they are opinions stated by the writer or speaker about facts, which are at the same time presented to, or are in fact present to, the minds of the readers or listeners, as things distinct from the opinions, so that it can be seen whether the opinions are such that they can fairly be formed upon the facts.' (emphasis added)

A 'discussion or comment' is to be distinguished from 'the statement of a fact'. 'It is not the mere form of words used that determines whether it is comment or not; a most explicit allegation of fact may be treated as comment if it would be understood by the readers or hearers, not as an independent imputation, but as an inference from other facts stated.' As the passages quoted from Bingham LJ and Jordan CJ above illustrate, the distinction between fact and comment is commonly expressed as equivalent to that between fact and opinion. Cussen J described the primary meaning of 'comment' as 'something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, judgment, remark, observation, etc'. It follows that a comment can be made by stating a value judgment, and can also be made by stating a fact if it is a deduction from other facts. Thus, in the words of Field J:

'[C]omment may sometimes consist in the statement of a fact, and may be held to be comment if the fact so stated appears to be a deduction or conclusion come to by the speaker from other facts stated or referred to by him, or in the common knowledge of the person speaking and those to whom the words are addressed and from which his conclusion may be reasonably inferred. If a statement in words of a fact stands by itself naked, without reference, either expressed or understood, to other antecedent or surrounding circumstances notorious to the speaker and to those to whom the words are addressed, there would be little, if any, room for the inference that it was understood otherwise than as a bare statement of fact.' (emphasis added)

The question of construction or characterisation turns on whether the ordinary reasonable 'recipient of a communication would understand that a statement of fact was being made, or that an opinion was being offered - not 'an exceptionally subtle' recipient, or one bringing to the task of 'interpretation a subtlety and perspicacity well beyond that reasonably to be expected of the ordinary reader whom the defendant was obviously aiming at'.

170 Finally, both the common law and the statutory defence require the subject matter to be a matter of public interest. The categories of matters of public interest are not confined. In London Artists Ltd v Littler; Grade Organisation Ltd v Littler,[153] Lord Denning MR stated:[154]

Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment.

172 I have described my findings as to the verbal attack in detail at [114]. The imputation that 'Mr Williams attacked Mr Katis verbally' is substantially true.

Mr Katis believed that he would have been harmed by Mr Williams had it not been for the presence of a bystander

173 I consider that this part of the publication amounts to a statement of opinion and engages the fair comment/honest opinion defences.

174 I have set out the principles relating to fair comment and honest opinion. I should here refer to one further authority.

175 In The Herald and Weekly Times v Buckley,[155] the Court of Appeal endorsed the following proposition of Kaye J (the trial judge):[156]

A statement may be regarded as an expression of opinion, and not an allegation of fact, 'if it appears to be a deduction, inference, conclusion, criticism, judgment, remark or observation come to by the writer or speaker from facts stated or referred to by him, or in the common knowledge of the person writing or speaking and those to whom the words are addressed, and from which his conclusion may reasonably be inferred'.

176 As I concluded at [115], Mr Katis genuinely believed he would have been harmed by Mr Williams had it not been for the presence of a bystander. This belief was well-founded.

177 A reasonable viewer of the broadcast as a whole (and particularly in light of the words describing what provoked the incident) would have appreciated that Mr Katis was expressing his opinion rather than stating a fact.

178 Although, in some contexts the words 'I believe' or 'it is believed' can be used as 'weasel words' to disguise a statement of fact, in this case it is clear to the viewer that it is a deduction on the part of Mr Katis based on Mr Williams' behaviour. Mr Katis referred to the altercation (which is proved) and the intervention of Mr Ladlow (also proved). The facts giving rise to the opinion are established. Mr Katis' deduction as to the physical threat absent Mr Ladlow was both genuine and properly based.

179 The publication was clearly related to a matter of public interest, being the conduct of the candidates in the course of the election campaign.

180 The common law defence of fair comment and the statutory defence of honest opinion are made out.

181 As my conclusions at [114] indicate, Mr Williams' behaviour towards Mr Katis was highly threatening, both in the language used and in his actions when abusing Mr Katis. Accordingly, I find this imputation to be substantially true.

Mr Williams inappropriately photographed Mr Katis' granddaughter and her clients through her shop window

182 The sting of this imputation is that Mr Williams behaved inappropriately in taking photographs of the two women inside the salon, as opposed to merely taking photographs of the business cards.

183 I have discussed in detail at [84] my findings concerning Mr Williams' intentions and conduct in taking photographs outside the salon.

184 I have also concluded that Mr Williams took photographs of the interior of the salon, where Ms Bussell and Ms Daulako were present. It was inevitable that taking photographs of the interior would include images of the women inside. Such behaviour is patently inappropriate, even if not amounting to a breach of the law. The imputation is substantially true.

Mr Williams' conduct towards Mr Katis and his granddaughter justified an interim intervention order being made against him

185 On 16 October 2012, a Magistrate at the Robinvale Magistrates' Court granted an Interim Intervention Order against Mr Williams, on the basis of the material put before the court. Accordingly, it cannot be disputed that Mr Williams' conduct towards Mr Katis and Ms Bussell justified an interim intervention order being granted; a Magistrate made such a finding and I see no reason whatsoever to doubt his Honour's determination now. In any event, I have concluded that the factual matters in dispute in this trial and the subject of the Intervention Order application have been established by Mr Katis.

Mr Williams was acting in an inappropriate manner for a candidate for public office in rural Victoria

187 Mr Williams' conduct outside the salon and his unprovoked verbal attack of Mr Katis outside the post office was completely unacceptable. Behaviour of this nature is entirely inappropriate for a candidate for public office in this State.

189 One of the imputations (that Mr Katis believed he would be harmed, but for the presence of a bystander) raises the question of malice in the context of fair comment. At common law, such a defence can be defeated by malice.

190 In Triple M I described in some depth the concept of malice where a defence of fair comment is raised. Without descending into the detail, I concluded that the preferred test for malice in the context of a defence of fair comment is that of Lord Nicholls in Cheng & Anor v Tse Wai Chun,[157] as follows:[158]

To summarise, in my view a comment which falls within the objective limits of the defence of fair comment can lose its immunity only by proof that the defendant did not genuinely hold the view he expressed. Honesty of belief is the touchstone. Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive, does not of itself defeat the defence. However, proof of such motivation may be evidence, sometimes compelling evidence, from which lack of genuine belief in the view expressed may be inferred. Proof of motivation may also be relevant on other issues in the action, such as damages." (Emphasis added)

191 In Szanto v Melville,[159] Kaye J reiterated that the plaintiff must establish that the ulterior or malicious motive was the dominant purpose of the publication of the matter by the defendant.[160]

192 Contrary to Mr Williams' submissions, I do not accept that Mr Katis lacked an honest belief in what he told Ms White.[161] Whilst I have no doubt that the upcoming election was part of his motivation in speaking to Ms White, I accept that given what occurred at the post office and my findings at [114] and [115], Mr Katis genuinely feared for his safety and the allegation of malice must fail.

193 In addition to the statement being substantially true or an expression of opinion, Mr Katis asserted that the broadcast contained a fair and balanced report of the matters alleged by Mr Williams to be defamatory as Mr Williams himself was interviewed and commented on the matters concerning the intervention order - a defence founded in section 29 of the Defamation Act.[162]

194 Given my findings, I need not deal with this defence here, suffice to say that in the broadcast Mr Williams made his own statement - directly to the camera - emphatically denying each of Mr Katis' allegations and rigorously defending his candidacy in the upcoming election.

195 Each of the defamatory imputations in the interview and broadcast have been successfully met by the defence of justification/substantial truth, or the defence of fair comment/honest opinion.

196 Mr Williams fails on each of the allegations relating to the interview and the broadcast.

The first publication: comment made at the Robinvale Court House by Mr Katis to Mr O'Haire, the solicitor for Mr Williams

197 The first publication was oral and took place at the Robinvale Court House on 16 October 2012, where Mr Katis lodged his Intervention Order application.

198 The pleaded case is that Mr Katis said the following to Mr O'Haire:[163]

I was involved in an altercation with Tim Williams outside the Post Office in Robinvale, and it was lucky that a bystander was nearby because otherwise, it would have been worse.

199 Mr O'Haire's evidence largely confirmed the pleaded case. Mr O'Haire said that he saw Mr Katis outside the Robinvale Magistrates' Court, and that:[164]

He [Mr Katis] said to me that there had been some sort of altercation between him and Mr Williams at the Robinvale Post Office.

...[A]s best as I can recall, he [Mr Katis] said 'It would have been worse if Mr Ladlow hadn't been there.'

200 Mr O'Haire said that there was no one else within earshot and that he did not treat the remark seriously.[165] No evidence was led from him in relation to any effect that the statement may have on his opinion of Mr Williams' reputation, or that Mr Williams had suffered any hurt as a result of this publication.

201 Mr Katis accepted that he and Mr O'Haire had a discussion; however, it was in different terms to that set out by Mr O'Haire. Mr Katis said that Mr O'Haire had approached him outside the Magistrates' Court and said as follows:[166]

If you want my advice or any work from me I can't help you because I work for Mr Williams.

202 Mr O'Haire said that he could not recall saying those words to Mr Katis.[167] Mr Katis denied that there was any reference to the altercation or to the presence of Mr Ladlow at the altercation.[168]

203 I have set out my conclusions as to the creditability of both Mr Katis and Mr Williams at [17]-[23]. As stated earlier, I thought that Mr Katis gave a fair account of what transpired on 12 October. However, I think he is wrong about his conversation with Mr O'Haire.

204 It was not suggested that Mr O'Haire had any motivation to give incorrect - or to take it to the extreme, false - evidence. I considered him to be a careful witness who was concerned to ensure that he gave his evidence with accuracy - particularly given the passage of time.

205 Mr Katis was at the Magistrates' Court for the purpose of taking out an intervention order. He was, in my view, understandably concerned about Mr Williams' behaviour. I find it difficult to accept that he did not mention it to a solicitor whom he knew and had retained in the past. It may well be that there was some discussion about Mr O'Haire not being able to act for Mr Katis, although Mr O'Haire could not recall saying this (in the past he had corresponded on behalf of Mr Williams concerning the laneway complaints as well as acting on behalf of Mr Katis). However, I do not consider that to be the whole of the conversation.

206 Whatever the situation, I am satisfied that Mr O'Haire's evidence should be accepted as to Mr Katis' remarks outside the Robinvale Magistrates' Court on 16 October.

(b) Was the statement defamatory of Mr Williams?

207 In his statement of claim, Mr Williams asserted that Mr Katis' statement meant, and was understood to mean, that during 'their meeting' - which is a euphemistic reference to the altercation initiated by Mr Williams - Mr Williams would have harmed Mr Katis if not for the presence of a bystander.[169]

208 The imputed meaning put forth by Mr Katis is more moderate: that he was placed by the acts of Mr Williams in fear for his personal safety.[170]

209 I do not accept that the imputed meaning is made out by Mr Williams.

210 The words, 'it was lucky that a bystander was nearby because otherwise, it would have been worse', do not necessarily mean that the confrontation could have descended into physical violence. 'Worse' could equally mean the confrontation could have gone on longer, or alternatively, become more heated. Or, the bystander could have become involved. There is no direct suggestion of physical violence. The words used are vague and imprecise.

211 Nor do I consider that the meaning Mr Katis suggested is that conveyed to a reasonable recipient. Instead, I think that the sting of the imputation is that but for the presence of a bystander, Mr Katis believed the confrontation between the two men could have become worse, either in the duration or intensity of the verbal altercation, or descended into physical violence.

212 The statement is defamatory as it conveys the meaning that Mr Williams was engaged in behaviour that a reasonable person would regard as completely out of order - particularly for a candidate in a municipal election.

(c) Was the defamatory meaning substantially true or an expression of opinion/fair comment based on proper material?

213 I consider that the defence of fair comment/honest opinion is satisfied in relation to this imputation. Although the description of what happened to provoke the attack is not fulsome, the reasonable recipient would be in no doubt that this was Mr Katis' opinion, and was based upon his account to Mr O'Haire (which Mr O'Haire could not remember in detail) of the altercation.

214 I have set out at [175] the test for whether a statement is one of opinion or fact. Mr Katis' remarks were clearly a deduction based upon the events that occurred at the post office. I have previously concluded that his account of what occurred is accurate, and that he genuinely believed he might have been physically harmed if not for Mr Ladlow's presence. Mr Katis was entitled to think that without Mr Ladlow's presence, things could have got out of hand in the way I described at [210] and [211].

215 As with the other publications, the statement concerned a matter of public interest, being the election and the behaviour of candidates.

216 The defence of fair comment/honest opinion is made out.

217 In addition to the statement being substantially true or an expression of opinion based on proper material, Mr Katis contends that the allegedly defamatory comment was published on an occasion of absolute or qualified privilege (being published in the course of proceedings of Mr Katis' application and summons for an Intervention Order on 16 October).[171]

218 Given the defence of fair comment is made out, I merely note that there appears to be nothing of substance in these defences. There is no basis for a claim of absolute privilege, nor is any proper basis suggested for a claim of qualified privilege.

219 The defamatory imputation in Mr Katis' comment to Mr O'Haire is successfully met by the defence of fair comment/honest opinion.

220 Mr Williams fails on the allegation relating to Mr Katis' discussion with Mr O'Haire.

The second publication: the provision of the Intervention Order application to Ms White

221 As noted, the Intervention Order application sought by Mr Katis against Mr Williams was filed on 16 October 2012. The text of the application was as follows:[172]

I was sitting on my verandah talking to a rate payer. Tim was driving on the opposite side of the road, turned around and drove slowly, virtually stopped in my driveway. Because of the hedge it was hard to see my verandah. Council staff called me to say Tim had phoned them concerning my meeting with Mr Finch, who Council has a court case against. Since then Council Senior Officers have received calls about my whereabouts and use of mayoral vehicle. He has been visiting the lane behind my house and has asked questions in Council about why Council cleans the Mayor's Lane. My granddaughter has been intimidated by Mr Williams by parking in front of her business and by putting his camera against her salon's window and photographing her and her customers. I have reported this behaviour to police and because of this he attacked me in front of the post office verbally and if it wasn't for a bystander I would have found myself on the footpath his words were 'I will put you down you little shit.' I reported this to police and this is the reason for taking court action to safeguard my family. I believe this will continue because he is running against me in the council elections.

222 The parts I have emphasised are those that give rise to the pleaded imputations. In general terms I did not understand Mr Williams to disagree with the other parts of the application.[173]

223 This publication took place on 17 October 2012 when Mr Katis gave a copy of the Intervention Order application to Ms White, the journalist for WIN TV (it can be inferred, at her request).[174] It was not disputed that he did so nor that the excerpt set out above is an accurate account of the contents of the application.

224 The contents of the Intervention Order application were not published in the course of the broadcast - the only reference being to the fact that an Intervention Order had been taken out. There was no evidence that the Intervention Order application was disseminated to anyone other than Ms White. Ms White was not asked by Mr Williams' counsel as to whether the contents of the Intervention Order application affected her opinion of Mr Williams' character. There was no evidence that the publication to Ms White caused Mr Williams any hurt (contrary to that caused by the broadcast).

(b) Was the publication defamatory of Mr Williams?

225 In Mr Williams' statement of claim, it is said that the statements within the application were meant and were understood to mean that:[175]

(a) Mr Williams deliberately intimidated Mr Katis' granddaughter;

(b) Mr Williams deliberately intimidated Mr Katis' granddaughter by parking in front of her business;

(c) Mr Williams deliberately intimidated Mr Katis' granddaughter by putting his camera against her salon's window;

(d) Mr Williams deliberately intimidated Mr Katis' granddaughter by taking photographs of her and her clients from up and against her salon's window;

(e) Mr Williams was guilty of stalking Mr Katis' granddaughter;

(f) As a result of Mr Katis reporting Mr Williams' conduct to the police, Mr Williams attacked Mr Katis verbally outside the post office;

(g) During the altercation outside the post office, Mr Katis would have been felled by Mr Williams, if not for the presence of a bystander;

(h) Mr Williams posed a threat to the safety of Mr Katis and his family; and

(i) Mr Williams' conduct towards Mr Katis and Mr Katis' granddaughter was so serious that it justified an Intervention Order being made against Mr Williams.

226 Mr Katis admits each of these imputations.[176] In other words, he accepts that a reasonable reader would have attributed these meanings to the words used in the Intervention Order application.

227 Given the admissions made by Mr Katis in his defence, Mr Williams' pleaded imputations are to be accepted, although for my part I have doubts that all of the alleged defamatory imputations are as wide or as substantive as alleged. For example, an imputation such as 'Mr Williams was guilty of stalking' is difficult to distil from the contents of the publication. That being said, given the admission by Mr Katis, I feel compelled to treat each imputation as being made out.

228 I accept that each of the imputations was defamatory.

(c) Was the defamatory meaning substantially true or an expression of honest opinion/fair comment based on proper material?

Mr Williams' deliberate intimidation of Ms Bussell

230 The first four admitted imputations relate to the alleged deliberate intimidation of Ms Bussell, namely that:

(a) Mr Williams deliberately intimidated Ms Bussell;

(b) Mr Williams deliberately intimidated Ms Bussell by parking in front of her business;

(c) Mr Williams deliberately intimidated Ms Bussell by putting his camera against her salon's window; and

(d) Mr Williams deliberately intimidated Ms Bussell by taking photographs of her and her clients from up and against her salon's window.

231 These can be dealt with jointly as the allegations relate solely to the salon incident in which Mr Williams deliberately intimidated Ms Bussell by undertaking two activities: parking in front of her salon, and taking photographs of the interior of the salon and those within it.

232 For the reasons I have set out at paragraph [84] I am satisfied that the sting of each of these imputations has been justified by Mr Katis, in the sense that the actions complained of are substantially true.

Mr Williams was guilty of stalking Ms Bussell

233 This is the most difficult imputation to address. As I mentioned earlier, I have considerable disquiet as to whether this imputation can be extracted from the text: however, it is admitted by Mr Katis.

234 In closing submissions both parties referred to the definition of 'stalking' in the Personal Safety Intervention Orders Act 2010 (Vic), which requires there be a deliberate intention of causing physical or mental harm to the other person, or the arousing of apprehension or fear in the other person for his or her own safety.[177] With respect I think this analysis misses the point.

235 The factual matters contained in the application that give rise to this imputation are:

(a) Mr Williams' intimidation of Ms Bussell by parking in front of her business and putting his camera against the salon window and photographing her; and

(b) the attack by Mr Williams upon Mr Katis outside the post office, which Mr Katis was entitled to believe would have resulted in him being harmed but for the presence of Mr Ladlow, the bystander.

236 Ultimately, it is for the trier of fact to determine the true nature of the meaning and that can only be determined in this case (as opposed to an 'inuendo' case) by reference to the context from which the imputation is derived.[178]

237 It follows that the imputation of Mr Williams being 'guilty of stalking' must be read in light of the words used in the Intervention Order application. A reasonable member of the Mildura community (Ms White included), would not be aware of the niceties of the criminal law and the provisions of the Personal Safety Intervention Orders Act. Instead, his or her understanding of the imputation would be informed by community standards and particularly the factual matters set out in the Intervention Order application. In other words, the stalking (and Mr Williams' guilt of it) was constituted by the acts described in the application which have been made out as substantially true.

238 Each of the matters giving rise to the imputation set out at [235] which constitute the imputation of stalking (and Mr Williams' 'guilt' in respect of such conduct), is substantially true. For the sake of clarity, and in light of the submissions made on behalf of Mr Williams, I am satisfied that, taking into account the provisions of section 140(1) of the Evidence Act 2008 (Vic), that Mr Katis has proved the factual matters I have referred to in [[](# > When I had interviewed him obviously I needed some, you know, documentation to show what had actually happened rather than taking someone's word for, you know, what had happened.

252 Ms White also said that during the interview she asked Mr Katis:[182]

'what does the Order involve?' and that 'that's when he showed me exactly what it [said].

253 Providing the form to her was a natural response to that question, and not motivated by malice or improper electioneering. It was not the dominant purpose as is necessary for malice to be made out. I am satisfied that Mr Katis had a genuine belief in the contents of the Intervention Order application and that he was not motivated by an improper purpose in providing the application to Ms White.

254 Given my conclusion as to the defences of truth/justification and fair comment/honest opinion, it is not necessary to deal with the defences of absolute and qualified privilege.

255 I am satisfied that each of the defamatory imputations arising from this publication has been met by the defences of truth/justification or fair comment/honest opinion.

256 Each of the defamatory imputations contained in the four publications (including the most significant of the publications - the WIN TV broadcast) were either true or an expression of honest opinion held by Mr Katis.

257 Mr Williams' claim for damages fails and there should be judgment for Mr Katis.

258 I should add the following. Mr Williams was solely responsible for both the salon and post office incidents. It is surprising, to put it mildly, that he maintained his claim to the bitter end, when but for his conduct, there was nothing to litigate.

259 Moreover, there were ample opportunities to resolve this dispute, not the least being a judicial mediation which occurred the day before the trial commenced.

[1] Application and Summons for an Intervention Order made by Mr Katis against Mr Williams dated 16 October 2012 (Exhibit P4).

[3] In Mr Williams' Statement of Claim filed 21 March 2013 a permanent injunction was sought against Mr Katis. This was not pressed at trial.

[4] Transcript of Proceedings, Williams v Katis (Supreme Court of Victoria, J Forrest J, 22, 23, 24, 31 July and 1 August 2014) 206 (Transcript).

[10] Transcript 206. This height is Mr Williams' estimation; Mr Katis did not give evidence as to his exact height during the trial.

[14] Ms Makereta Daulako, Ms Bussell, Sergeant Middleton and Mrs Elizabeth Wright.

[16] Transcript 67, 70 (Mr Katis did not want to describe the relationship as 'cordial', but accepted that they had had conversations in Mr Katis' house).

[17] Minutes for Ordinary Meeting of Council, Swan Hill Rural City Council, 17 July 2012 (Exhibit P11).

[18] See 'Anger over question' The Guardian 22 July 2012, 'Lane cleanup anger' Sunraysia Daily 23 July 2012, and 'Check your facts, says Mayor Katis' The Robinvale Sentinel 26 July 2012 (Exhibit P12).

[19] Letter from Dwyer, Mahon & Robertson (solicitors for Mr Katis) to Brian O'Haire dated 10 September 2012 (Exhibit P13).

[20] An illustrative example is that of Mr Katis' dealings with Mr Finch, a local ratepayer against whom the Council had brought proceedings in the Victiorian Civil and Administrative Tribunal (VCAT) for allegedly breaching local planning laws. A few days prior to the VCAT hearing, Mr Williams saw Mr Finch talking to Mr Katis on Mr Katis' front verandah. He drove by Mr Katis' house at 20-30kmp/h to ostensibly check that the men were in discussion. Mr Williams later reported his observations to the Council's Director of Planning, as he considered it inappropriate for the Mayor to be in discussions with a person against whom the Council was bringing legal action a few days later (Transcript 136-137, 162).

[21] Letter from Robinvale Waste Management (Tim Williams) to the Council dated 26 November 2012 containing complaints about Mr Katis' behaviour between 18 July and 29 October 2012 (Exhibit D6).

[22] Various letters from Mr Williams to Ms Tamara Matthews dated 22 October 2012 containing complaints about Mr Katis (Exhibit P16).

[25] Transcript 16; Mr Katis' mayoral business card with Swan Hill emblem (Exhibit P6).

[26] Letter from Mr Katis to Ms Tamara Matthews (undated) with fax header 5 October 2013 (Exhibit P23).

[29] Although Ms Daulako's timing of the incident is at odds with the other witnesses (and contemporaneous written evidence), I am satisfied that she witnessed the incident.

[30] If facing the window from Perrin Street.

[32] Transcript 88; Mr Leahy had no independent recollection of the call but the phone records confirm that he spoke to Mr Williams at or about this time (Transcript 243).

[33] Fax from Mr Katis to Ms Tamara Matthews dated 12 October 2012 (Exhibit P3).

[34] Handwritten notes of Sergeant Middleton dated 12 October 2012 (Exhibit P15).

[35] Handwritten notes of Sergeant Middleton dated 12 October 2012 (Exhibit P15); Transcript 116.

[36] Transcript 112 (per Mr Williams), 118 (per Sergeant Middleton).

[38] Transcript 87, 187; refer Exhibit D4(1) where Mr Williams marked where he stood outside the salon.

[45] Mr Williams' evidence was that he was carrying a Nokia, but I consider the make and model of phone to be inconsequential.

[65] Handwritten notes of Sergeant Middleton dated 12 October 2012 (Exhibit P15).

[66] Handwritten notes of Sergeant Middleton dated 12 October 2012 (Exhibit P15).

[68] Letter from Mr Williams to Ms Matthews dated 22 October 2012 concerning an election flyer posted on shop fronts (Exhibit P16).

[70] [2005] HCA 4; (2001) 220 CLR 517, 525 [17]; see also Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63, 65.

[71] Shorter Oxford English Dictionary, Oxford University Press, Volume 1 (2007) [Emphasis added].

[72] Excerpt from Mr Williams' diary dated 12 October 2012 (Exhibit D1).

[73] Mr Ladlow passed away prior to the trial.

[97] Handwritten notes of Sergeant Middleton dated 12 October 2012 (Exhibit P15); Transcript 117.

[99] Transcript 118; Handwritten notes of Sergeant Middleton dated 12 October 2012 (Exhibit P15).

[106] Findings as to the nature of the altercation are set out at [114].

[107] For example, his observations of Mr Finch on Mr Katis' porch (refer to footnote [20]). See also the letter from Robinvale Waste Management (Tim Williams) to the Council dated 26 November 2012 containing complaints about Mr Katis' behaviour between 18 July and 29 October 2012 (Exhibit D6).

[108] Excerpt from Mr Williams' diary dated 12 October 2012 (Exhibit D1).

[112] Transcript 371. Mr Katis said that it is common knowledge in Robinvale on what days the courthouse is sitting and staffed.

[113] Application and Summons for an Intervention Order made by Mr Katis against Mr Williams dated 16 October 2012 (Exhibit P4), described in detail at [221].

[117] Interim Intervention Order dated 16 October 2012 (Exhibit P5).

[120] Copy of Application and Summons for an Intervention Order made by Mr Katis against Mr Williams dated 16 October 2012, as provided to Ms White (Exhibit P21).

[121] Undertaking made between Mr Katis and Mr Williams dated 13 November 2012 (Exhibit P8).

[122] Undertaking made between Mr Katis and Mr Williams dated 13 November 2012 (Exhibit P8).

[125] Transcript of WIN TV news broadcast 17 October 2012 (Exhibit P20); Statement of Claim, [9].

[126] Transcript of WIN TV news bulletin 12 October 2012 (Exhibit P20).

[127] French v Herald and Weekly Times Pty Ltd (2010) 27 VR 171, 175 [13].

[128] [2014] VSC 279 (Cripps).

[129] [2014] VSC 279, [277]-[278] [Citations omitted].

[130] [2009] HCA 16; (2009) 238 CLR 460.

[131] Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460, 476 [36].

[132] Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460, 466 [3].

[133] Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460, 477 [36].

[135] Further Amended Defence filed 22 July 2014, [10B].

[136] [2014] VSC 279, [279]-[281] [Citations omitted].

[137] Hore-Lacy v Cleary [2007] VSCA 314; (2007) 18 VR 562, [27] (per Ashley JA, with whom Neave and Redlich JJA agreed); The Herald & Weekly Times Pty Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1.

[138] [1989] VicRp 66; (1989) VR 747.

[139] [1989] VicRp 66; (1989) VR 747, 768.

[140] The Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1.

[141] This is abundantly clear from Mr Katis' use of the words 'I believe'.

[143] Further Amended Defence, [14E].

[144] Cornes v The Ten Group Pty Ltd & Ors (2012) 114 SASR 1, [68]-[69].

[145] Section 4 of the Defamation Act defines 'substantially true' as 'true in substance or not materially different from the truth'.

[146] The Herald & Weekly Times Pty Ltd v Buckley [2009] VSCA 75; (2009) 21 VR 661, 666 [10] (Buckley).

[147] [2007] HCA 60; (2007) 232 CLR 245 (Manock).

[148] [2007] HCA 60; (2007) 232 CLR 245, 252 [3].

[149] [2008] VSC 553, [7]-[8] (French).

[150] [2008] VSC 553, [7]-[8].

[151] [2014] VSC 279.

[152] [2007] HCA 60; (2007) 232 CLR 245, 262-264 [35]-[36] [Citations omitted].

[153] [1968] EWCA Civ 3; [1969] 2 QB 375.

[154] [1968] EWCA Civ 3; [1969] 2 QB 375, 391.

[155] [2009] VSCA 75; (2009) 21 VR 661.

[156] [2009] VSCA 75; (2009) 21 VR 661, 665 [9].

[157] [2000] HKCFA 35; [2000] 3 HKLRD 418.

[158] [2000] HKCFA 35; [2000] 3 HKLRD 418, [74] [Emphasis added]. Cited in French v Triple M Melbourne Pty Ltd & Ors (Ruling No 5) [2008] VSC 553, [19].

[159] [2011] VSC 574.

[160] [2011] VSC 574, [96].

[162] Further Amended Defence, [13(c)].

[171] Further Amended Defence, [5(c)].

[172] Application and Summons for an Intervention Order made by Mr Katis against Mr Williams dated 16 October 2012 (Exhibit P4) [Emphasis added].

[176] Further Amended Defence, [7A]-[7I].

[177] Personal Safety Intervention Orders Act 2010 (Vic), s 10.

[178] See The Herald & Weekly Times v Popovic [2003] VSCA 161; (2003) 9 VR 1, 58 [284]; Barclay v Cox [1968] VicRp 87; [1968] VR 664. See also [145] above.

[179] Karakatsanis & Anor v Racing Victoria Ltd [2013] VSCA 305, [29]-[40]; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.