Plaintiff v Defendant

Supreme Court of Victoria|2014-08-29|Before: J FORREST J

DEFAMATION - Action for defamation by one candidate against opponent in municipal election - Four separate publications - News broadcast - News interview - Court document - Provision of court document to journalist - Statement to lawyer - Meaning of defamatory imputations - Defences to defamation - Justification - Fair comment - Honest opinion - Malice - Defamation Act (Vic) 2005, ss 25, 30, 31.

1 Between September and October 2012, Mr Timothy Williams and Mr John Katis (the parties to these proceedings) were candidates in the October 2012 municipal elections for the Robinvale Ward of the Swan Hill Rural City Council (the Council). Mr Katis, the incumbent Mayor (and defendant in this case), faced a serious challenge from Mr Williams (the plaintiff), a local businessman in the waste management industry.

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.

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.

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.
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:

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;
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;

(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]

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