JOHNSTON v ALDRIDGE [2018] SADC 68 (27 June 2018)

Last Updated: 6 July 2018

DISTRICT COURT OF SOUTH AUSTRALIA



(Civil)

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

JOHNSTON v ALDRIDGE

[2018] SADC 68

Judgment of His Honour Judge Brebner

27 June 2018











DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION

DEFAMATION - PUBLICATION - GENERALLY - AS CAUSE OF ACTION

DEFAMATION - OTHER DEFENCES

DEFAMATION - DAMAGES

Action in defamation

Plaintiff and defendant involved in planning dispute. Defendant published two Facebook posts concerning dispute and other subjects. First post attracted numerous comments.

Plaintiff pleads first post and comments carried imputations that plaintiff a selfish greedy man of contemptable character and second carried imputation that plaintiff made or was involved in threats to rape and kill. Defendant pleads first post not published in terms alleged, comments not published by him and relevant paragraph of second post not 'of or concerning' the plaintiff. Also pleads imputations not defamatory. Further pleads posts protected by defences of fair and accurate report of judicial proceedings and extended qualified privilege as identified in Lange v Australian Broadcasting Commission [1997] HCA 25; (1997) 189 CLR 520.

Plaintiff claims damages and aggravated damages.

Held:

1.Defendant's evidence on evidentiary issues in contention rejected.

2.Defendant published first post in terms alleged.

3.Defendant provided medium through which bi-lateral communication of comments occurred. Defendant therefore liable for comments as secondary publisher.

4.Relevant paragraphs of second post would be read by ordinary reasonable reader to be 'of and concerning the plaintiff.'

5.Relevant paragraphs of both posts and comments read as a whole would be taken by ordinary reasonable reader to carry imputations pleaded.

6.All imputations are defamatory in that they tend to hold the plaintiff up to contempt, scorn or ridicule.

7.Neither post a fair report of judicial proceedings. Both were comment not report properly so called.

8.Neither post protected in its entirely by extended qualified privilege. No temporal connection between relevant paragraphs of each post and balance of post. On proper characterization relevant paragraphs not concerning governmental or political matters properly so called and therefore not protected.

9.Award of aggravated damages warranted on basis that opinions expressed not honestly held and hurt exacerbated by unconscionable failure to make redress.

10. Damages assessed at $100,000 including aggravated damages.

Limitations of Actions Act 1936 s 37; Defamation Act (SA) 2005 ss 32-37; Criminal Law Consolidation Act 1935 s 19; Evidence Act 1929 (SA) s 67C, referred to.

Johnstone v Aldridge [2017] SADC 70; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Duffy v Google [2015] SASC 170; (2015) 125 SASR 437; Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59; Hines Exports Pty Ltd v Mediterranean Shipping Company SA [2001] SASC 311; (2001) 80 SASR 268; Grech v Deak-Fabrickant (No 2) [2015] VSC; Martine v Osborne [1936] HCA 23; (1936) 55 CLR 367; DF Lyons Pty Ltd & Ors v Commonwealth Bank of Australia [1991] FCA 74; 100 ALR 468; Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517; Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; Poniatowska v Channel Seven Sydney Pty Ltd and Anor (No 4) [2016] SASC 137; Lee v Wilson & McKinnon [1934] HCA 60; (1934) 51 CLR 276; Murray v Wishard [2014] NZCA 461; [2014] 3 NZLR 722; Oriental Press Group Limited v Fevaworks Solutions Ltd [2013] HKCFA 35; (2013) 16 HKCFAR 336; Lesses v Maras [2017] SASCFC 48; Sands v State of South Australia (2015) 122 SASR 195; Google Inc v Duffy (2017) 129 SASR 304; Sands v Channel Seven Adelaide Pty Ltd & Anor [2010] SASC 202; Sungravure Pty Ltd v Middle East Airlines Airliban S.A.L. [1975] HCA 6; (1975) 134 CLR 1; Bashford v Information Australia (Newsletters) Ltd [2004] HCA 5; (2004) 218 CLR 366; Chakravarti v Advertiser Newspapers Ltd (1988) 193 CLR 519; Rogers v Nationwide News Ltd (2003) 216 CLR 217; Leslie v Mirror Newspapers Ltd [1971] HCA 66; (1971) 125 CLR 332; Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520; Cornwall v Rowan [2004] SASC 384; (2004) 90 SASR 269; Conservation Council of SA Inc v Chapman [2003] SASC 398; (2003) 87 SASR 62; Adam v Ward [1917] AC 309; Bellino v Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183; Carson v Johnson Fairfax and Sons Ltd [1993] HCA 31; (1993) 178 CLR 44; Readers Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500; Duffy v Google (No 2) [2015] SASC 206; Uren v John Fairfax and Sons Pty Ltc [1966] HCA 40; (1966) 117 CLR 118; Ali v Nationwide News Pty Ltd [2008] NSWCA 183, considered.

JOHNSTON v ALDRIDGE



[2018] SADC 68









This action in defamation originates in a development dispute. The plaintiff operated two fruit and vegetable shops. The defendant operated a pop-up farmers market. The defendant sought council approval to relocate his market. The plaintiff objected. The council approved the relocation. The plaintiff appealed. His appeal succeeded. The defendant published two Facebook posts about the dispute. He published the first shortly before the appeal was heard and the second soon after judgment was delivered. Numerous third parties added their comments to the first of these posts. The plaintiff pleaded that the first post and the comments carried the imputations that he was a selfish greedy man of contemptable character and he pleads that the second post carried the further imputation that he had made, or was involved in, threats to rape or kill. He pleads that all three imputations are defamatory. In response the defendant pleaded that he did not publish the first post in the terms alleged, that he carried no responsibility for the comments and that the relevant passage of the second post was not of, or concerning, the plaintiff. He also raised the defences of fair and accurate report of judicial proceedings and extended qualified privilege in relation to each post. He does not plead response to attack. The action succeeds. All three imputations are defamatory and all pleaded defences fail. I assess damages in the amount of $100,000. My reasons follow.

Proceedings

The plaintiff was represented by counsel. The defendant was represented by solicitors until shortly before the trial commenced. He then acted on his own behalf throughout the remaining pre-trial proceedings and the trial itself. The plaintiff gave evidence. He also called an intelligence technology consultant named Velanas and some formal witnesses. The defendant also gave evidence. He also called his wife, a Mr Cook and a Ms Evans to verify some aspects of his evidence. The defendant did not always express himself with precision and it will often be necessary to quote him to avoid misunderstandings. He did not always observe the distinction between evidence and submissions in that he sometimes sought to supplement his evidence with assertions of fact in his oral and written submissions. Whenever his supplementary narratives could be treated as submissions I have regarded them as such. I have otherwise observed the appropriate distinction. He published many posts and emails concerning the dispute over and above the allegedly defamatory posts. It will be necessary to quote many of them for their potential to provide insight into his attitude and his intentions and beliefs.

Reasons

Whenever I speak of proof of a matter in issue I will always be meaning proof on the balance of probabilities. All emphases by way of underlining is mine. I have not mentioned each and every discrete item of evidence and nor have I mentioned every submission the parties put. I have done this in the interests of economy otherwise these reasons would have been far too long. I have in fact considered the evidence in its entirety and considered each submission which was put to me. The evidence I have not mentioned lacks the capacity to impact on any of the findings of fact I have made. The submissions of the defendant I have not mentioned are either subsumed in other submissions he made, or based on misapprehensions of the principles engaged and thus lacking the capacity to effect any of my findings or conclusions.

Pleadings

The defendant’s then solicitor filed the defence some 12 months before the trial commenced. Shortly before trial the defendant sought leave from another judge of the court to amend his defence. His application was rejected: See Johnstone v Aldridge [2017] SADC 70. At the close of the plaintiff’s case he made a further application to amend his defence which I rejected and then during the course of his closing address he made an application to re-open his case which I allowed. Some months after I reserved judgment, he made a further application to re-open which I rejected. I will give my reasons for determining these applications in the way that I did during the course of these reasons.

Defamation

Defamation is the publication of material carrying imputations injurious to the reputation of another. Publication occurs if a person participates in the communication of the relevant material either as a primary or secondary participant. The tests of whether the published material carries the imputation alleged and whether it is defamatory are objective. There are a number of recognised defences.

Facebook

It will be convenient to commence with the operation of Facebook. The relevant evidence came primarily from Mr Velanos. The defendant did not challenge his qualifications and it is sufficient to say that he was adequately qualified by study and experience to express his opinions on the topic. Facebook is an internet social network platform. Registered users are issued with a homepage, and they choose their own individual login and password. A homepage is referred to as a profile or a page. Users can publish messages or announcements on their profiles. Such messages are referred to as posts. Posts can only be created, published, edited or deleted by the user or some other person armed with the login and the password. Posts can nonetheless be read on the internet and readers can publish their comments about a particular post in a word box which appears on the face of the post for that purpose. A person offended by posts or comments can notify Facebook through the links provided on the face of the profile. Users can become Facebook ‘friends’ and posts can be ‘liked’ or ‘shared’ by activating the appropriate commands. If a post is ‘liked’ the person who made the post will be notified that the post has been liked, and by whom. If a post is ‘shared’ that post will appear on the person’s profile who did the sharing and their ‘friend’ will be able to see the material. The date and time a post or a comment is published is automatically stamped at the head of the particular publication. Facebook maintains an electronic record of every activity which occurs on a particular profile or post including a record of every post and the date and time it is published and the number of times it is ‘liked’ or ‘shared.’ Posts can be edited. The edited version will then appear on the face of the profile and the original will be retained in the activity log and can subsequently be retrieved if one knows the correct steps to follow. Only a user or someone armed with the login and the password can create and publish posts on a particular profile. Similarly, only the user or someone with the necessary codes can edit or delete posts published on that profile. If a post is deleted any editing which has occurred and any comments which have been posted are deleted along with it. If an unedited post is deleted no record is maintained. However, if a post is edited a record is kept of both the original and the edited versions. Images of documents displayed on a computer screen can be photographed, retained and printed. Such photographs are called ‘screenshots.’ The date and time function of a computer ordinarily appears in a display along the lower margin of the screen called a taskbar. The taskbar is automatically included in any screenshots. The taskbar may or may not accurately reflect the time the document is created or called up on the screen. It is a simple matter to alter the date and time function of the computer before taking a shot thus creating a false impression about when document was created or downloaded onto the screen. The potential for mischief is obvious. I will outline more about Facebook in the context of the issues in due course. Facebook posts often carry photographs or identifying logos. Mr Velanas said that it would be a relatively quick and simple task to create a facsimile version of a person’s profile.







Narrative

The relevant sequence of events commenced in or about May 2015. The plaintiff was then the owner of two retail fruit and vegetable shops in the Salisbury area trading as George and Ben’s Fresh Food Market and Golden Fresh Fruiterers respectively. The defendant operated a pop-up farmers market trading as Farm Direct Community Markets at the Parafield Airport. His market offered primary producers a venue where they could sell direct thus eliminating retailers such as the plaintiff. There was no pre-existing animosity between them. They both operated Facebook profiles called ‘George and Bens Fresh Food Market’ and ‘Mark Aldridge Independent’ respectively. The defendant also operated a profile for the purposes of his market called ‘Farm Direct.’ The defendant describes himself as a political activist and he has contested several Federal and State elections as an independent candidate. He attempted to link his actions to his political activities whenever he could throughout his evidence. He said his market was ‘of a political nature’ and that his personal his personal profile was ‘very political’. In early 2015 the defendant decided to relocate his market. He announced this in a post of 13th May. The defendant required council approval to relocate. He was granted temporary approval to trade at the new location pending determination of his application. On 10th June the plaintiff lodged an objection to the proposed relocation on the grounds that the defendant’s market was not a farmer’s market properly so called and because his turnover had suffered a downturn since the defendant commenced operations at the new location. His objection is confined in its terms to the defendant’s market. The defendant said that some of his stall holders and their customers were upset by the plaintiff’s objection. He said the council had advised him to attempt to negotiate with any objectors and so on 12th June he emailed the plaintiff in conciliatory terms. The plaintiff said he did not respond because he simply did not get around to it. The defendant said he then made a number of unsuccessful attempts to contact the plaintiff. It is plaintiff’s case that from then on the defendant used Facebook as a weapon to pressure him into withdrawing his objection and then to abandon the appeal he ultimately launched. The defendant denied any such suggestion. On 12th June, the defendant sent a second email to the plaintiff in these terms:

Subject: Please can we have a chat?







I have phoned your mobile several times, your shop number and visited your shop, and still no contact, if you are not interested in working together, I will have to let my supporters, customers and followers know this fact and that you want us closed regardless of any offer we make to work with and support you.



Please do not hold me to account for their actions .



Mark

The plaintiff did not respond to this email because he found it concerning. Indeed it is easy to see why he might have regarded it as a veiled threat. He said he did not respond to the defendant’s later attempts to contact him for the same reason. The defendant said that the email was a warning not a threat in ‘respect to the online comments and offline comments about the anger of those many thousands of people who used my market’ and that by this time there was a degree of public unrest and ‘backlash’ over the plaintiff’s objection. He also said there had been online discussions about organising protests and that he had become concerned about what his ‘political supporters may do’ in the sense that he was concerned that some of his supporters might engage in inappropriate actions and that he ‘was trying to keep the lid on things’ at around this time. On 15th June the defendant published a post which he described as an overview of the issues he was facing in his endeavours to relocate. He said it was for the information of his ‘supporters’ and he hoped the plaintiff would read it. It reads as follows: Farm Directs Future includes some immediate issues, here is an overview.

We have all but completed with all Development planning issues, and were about to receive final approvals and make any changes necessary, in the most are Internal traffic flow and parking, which are all ready to be sorted, until then traffic flow signs and our new parking area are stuck on hold.



...



There are 3 applications that have put stop to final approvals, even though they do not have the ability to stop us in the long term, they do hold up the approval process, and even see me have to lodge applications with the courts, an un-necessary waste of time and resources.



One is a simple parking issue relating to a street a km or two away, the other two are other local fruit and veg shops, well one local and one a long way away.



One is a local show that thought we were the non compliant site and it appears has been misled on purpose, the other simply refuses to answer the phone or enter into discussions, his application is nasty and unfounded, accusing us of selling animal quality food and that our stall holders sell rubbish and are non-compliant, it feels at this stage that his application is simply to shut us down.



His shop is called “George & Ben’s Fresh Food Market” and is in Pooraka, (1181 Main north road) I dropped in today, left my details and have tried emails and calls for days, his application does not want competition and wants all our markets to shut down other than Gepps cross and the Adelaide produce market.



His information was part reason we endured the made media.



His application is available to the public, council can provide a copy, his contact details are also allowed to be published if anyone can get through to him, I am still more than happy to try and work with him.



What this situation causes is for our application to be frozen and go before a development board, which won’t sit until late July, and then we have to wait a few weeks after that, his application will have no other affect than tying up our markets approvals and final infrastructure works.



It is sad that development applications can be played with like a game, and that self-interest of one person can affect the lives of so many, we have co-existed for years without a single issue, and just because he can’t deal with the true pop up market, destroying ours will do.



If he will not retract his application, we will trade on 27th, be served a notice which I will be forced to lodge a stay in the courts and then drag him into the development court. In the mean time I will lodge a civil action against him on several grounds including the defaming of our stall holders.



This should keep us trading until the courts can dismiss his application. Development courts do not stop development applications based on issue of competition, not sure the councils should be forced or are forced to allow this to happen either.



...



I will do anything in my powers to stand behind our farmers and producers, as every knows, so will head to the courts later this week.



Mark

It is plain from the terms of the post that the defendant regarded the plaintiff as at least in part responsible for the delays and that he is claiming that the plaintiff’s objection is couched in objectionable and inaccurate terms and that it seeks closure of the markets. The post attracted a number of comments. Indeed the defendant added a comment of his own in apparent response to one of them stating that the plaintiff was a ‘moron’ and that the dispute was based on pure greed and he hoped that the plaintiff had ‘deep pockets.’ He also said he was hoping that the plaintiff would desist from defaming him online ‘without the need for any further interactions.’ He agreed that the accusation in his post that the plaintiff was selling animal quality food was incorrect and that this was a mistake on his part. He denied that the post was an attempt to put pressure on the plaintiff and he said that he had become confused by the plaintiff’s motives. On their face these statements do not sit comfortably with the terms of the plaintiff’s objection. By this time there was a degree of public interest in the dispute. Posts were being published about the matter and articles were also appearing in the mainstream media. The defendant said some of these posts and articles were critical of him and that the plaintiff was also making statements critical of him. He said he was concerned his political standing might suffer. The following media articles provide examples and the defendant said that some of his beliefs which underpinned what he ultimately published were based in part on what he read in the media. On 14th June, the following article appeared on the website of the Adelaide Advertiser.

June 14, 2015 11.08am



A FRUIT and vegetable war is brewing as greengrocers campaign against the expansion of side-of-the road produce markets claiming they are slashing trade and killing retail stores.



In a battle which has similarities to the pop-up bar controversy that dogged city pubs, greengrocers want a halt to the growth of temporary markets popping up across Adelaide and are calling on authorities to toughen regulations of the industry.



...



Some greengrocers have seen their trade fall by up to a third on days the markets are open.



...



Ben Johnston, who runs George and Ben’s Fresh Food Market at Pooraka, says his turnover has fallen $1000 on Saturday since the new Farm Direct Community Market started trading at the Old Spot Hotel, Salisbury Heights a month ago.



‘I don’t have an issue with competition ... but we spent over $100,000 doing up our shop five years ago and you can sell your produce from the back of a carpark’ he said. ‘It’s not a level playing field.’



Mr Johnston, along with Salisbury City Fruit Bowl owner, Nghia Lam, have lodged opposition with Salisbury Council to the Farm Direct market which is seeking development approval for a permanent base at the hotel.



The markets, founded by Mark Aldridge, also operate at Northgate and Gawler and plan to open at Marden, Munno Para and Blakeview.



...

On 17th June, an article appeared in the Northern Messenger weekly newspaper. The article was in similar terms to the Advertiser article of 14th June. It does not attribute any particular motives or intentions to the plaintiff. The defendant said that what he described as a hate page about him appeared on Facebook in about June or July. He said this caused him some concerns and the media sought his response which in turn led to ‘quite a few publications coming out.’ He thought the administrator of the plaintiff’s Facebook account was responsible. The relevance of this will become apparent in due course. On 21st July, the council approved the relocation. On 5th August, the plaintiff lodged an appeal. The defendant eventually read the notice of appeal. He said he was upset about its implications. He thought its object was to prevent him trading at the new location and he wanted it to go away and he thought he would be able to continue at the new location if the plaintiff discontinued. The appeal was heard on 8th December 2015, or about two weeks after the first of the allegedly defamatory posts was eventually published. The post attracted a number of comments including some in the name of one Angel Barton. They label the defendant a liar and a fraud and a comment in the name of George and Bens mentions what was ultimately referred to as ‘the pumpkin scam.’ The plaintiff agreed that he was the author of this comment and he said it was a reference to a deception practised on the public by Farm Direct. The defendant submitted, as I understand him, that this reflected on the plaintiff’s attitude and character and it seems implicit in his submissions that this assertion (and others) provided him with some sort of justification. In any event he did not plead response to attack and any criticism or comment made about his alleged participation in any illegalities or sharp practices are not relevant to any pleaded defence. The rights or wrongs of the pumpkin scam thus do not arise for determination and the matter is simply irrelevant. In any event the defendant said the institution of the appeal re-ignited public debate and media interest, including ‘heavy political debate’ and comment from Mr Parnell MLC. In this context the defendant said the market was ‘his baby’ and that the appeal might have political ramifications for him and he wanted to maintain his standing. On 12th August, he published another post which in effect stated that the plaintiff and others had hired a legal team to close down community markets to protect their trade, that other markets would be forced to close if they succeeded, that those involved were ‘greedy and short sighted’ and that as they are rather wealthy ‘it is about greed.’ The defendant denied publishing this post in an attempt to pressure the plaintiff into abandoning the appeal and he said he wanted people to think that he was doing all he could to support the continuation of the market at the new location. He nonetheless conceded that he was ‘hoping there would be pressure on (him, meaning the plaintiff) to reconsider his position’ and he said he regarded the institution of the appeal as financially motivated and morally wrong. The plaintiff nonetheless maintained his appeal. The defendant said he was not annoyed by the plaintiff’s persistence. This post also attracted comments. Some were critical of the plaintiff and couched in derogatory terms. The defendant posted some responsive comments including two which described a person who must have been the plaintiff as ‘a moron.’ On Wednesday, 2nd September, the defendant published a post concluding with the word ‘you have until Friday to back away from stopping supply to our wholesalers and stop court actions, or it is game on ’ He said that this did not relate to the plaintiff however, he did not say to whom it did. It is nonetheless instructive about the terms he was prepared to use in reference to those who had apparently raised his ire. On 8th September, the defendant published a post calling on those ‘that support my endeavours with the markets’ to provide him with a photograph of the plaintiff and to assist him to ascertain the details of the plaintiff’s other interests in the industry. He also asserts in the post that the plaintiff was spending lots of money to shut ‘my markets’ and that this ‘means he is trying to destroy over 70 small farms and producers, people that rely on myself and my markets to survive.’ He said he published this post to inform ‘those who were interested in the controversy’ and that he was attempting to find out as much as he could about the plaintiff in order to discover ‘who was driving the push behind closing my markets.’ The post attracted numerous comments and the defendant again added some responsive comments of his own. The post and the defendant’s comments were headed by a personal icon and the date and time. Some of the third party comments were similarly headed. One person provided the plaintiff’s business name and ABN number in reply, another provided an ABN number and a third referred to the plaintiff as ‘a scumbag.’

The responsive comments

The number of responsive comments the defendant was said to have made on the post became contentious and ultimately relevant to his credit. It will be convenient to deal with this issue before proceeding with the narrative. This dispute originated in the opening address of counsel for the plaintiff, Mr B. Doyle. In opening on 1st May 2017, Mr Doyle alleged that some of these comments provided evidence of malice. A copy of the post and the comments which had been downloaded and printed about a week before the trial commenced was then provided to the defendant. Mr Doyle tendered the download the following day. The defendant said he read the download overnight and he had thought that the disputed comments were out of character. He did not dispute publishing the post and a number of innocuous responsive comments but he nonetheless denied publishing the comments Mr Doyle identified (the disputed comments). In the meantime a second copy of the post and the comments was downloaded on the morning of 2nd May. Mr Doyle also tendered this second download. The disputed comments appear in the first download but not the second. The conclusion that someone deleted the disputed comments before the second download was printed is inescapable. Collectively the disputed comments are self-evidently hostile towards the plaintiff and critical of him. It is also self-evident that the plaintiff’s case on malice would be eroded, albeit to no great extent, if he was unable to rely on the disputed comments. The defendant denies deleting them in an attempt to sabotage the plaintiff’s case. His friend Mr Cook said that he read the disputed comments at a time which I take to be soon after they were originally published and he conceded that he had no reason to doubt that they were in fact the defendant’s work. He then qualified this by saying he cannot be certain and that fraudulent posts and comments created by others have appeared in the defendant’s name on a regular basis. If the defendant neither published nor deleted the disputed comments he has been the victim of an unfortunate and remarkable coincidence. He says none of the disputed comments came to his attention before he was provided with the copy on the first day of the trial. Given that he must have read at least some of the third party comments before publishing his responses, it is surprising that he did not notice at least some of them. Moreover, if the disputed comments are the work of a forger then he or she would have had to uplift the defendant’s icon and photograph from one of his posts in order to use them to make facsimiles of his post in order to attribute the comments to him. I should point out however that Mr Velanas says that this is technically possible. The forger, or some other third party, would then have had to have gone to the further trouble of deleting the disputed comments and it is hard to see why the forger, or anyone else would want to remove their own handiwork or how they would know it was a strategic time to do so. Moreover the defendant’s evidence on this issue was unsatisfactory and dotted about with prevarication. In assessing his evidence on this discrete issue I have also taken into account findings adverse to his credibility which I have made in other contexts and which I will come to in due course. Notwithstanding Mr Cook’s evidence, the inherent probabilities of the circumstances are that the defendant published and ultimately deleted the disputed comments. Indeed, if anyone had a motive to delete them, it is he.

Narrative continued

To return to the narrative: One of the disputed comments reads as follows:

He is never at George and Bens, and is at their other fruit and veg store at Golden Grove, so need someone to stake out George and bens photo whoever enters through the back I suppose and follow them if needed. I will track him down and find all his businesses and return the favour of doing all in my power to close him down, old fashioned, an eye for an eye .

The inference that the defendant is losing patience with the plaintiff and is contemplating drastic measures to achieve his own ends is probable. The plaintiff also published a post of his own on the George and Ben’s profile on 8th September. Whether he published it before or after the defendant published his post of the same day is unclear. In essence he said that he will not be engaging in any ‘personal slinging matches via Facebook,’ that all he wants is a level playing field, that he will not be intimidated into backing down and that all he asks is to be allowed to exercise his ‘democratic right’ to pursue his appeal on behalf of other greengrocers ‘facing hardship over this battle’. The plaintiff said that by the middle of November he was finding some of the posts and comments which were appearing on the defendant’s profile to be ‘concerning and hurtful’ and he began taking steps for his own safety as a result. In the light of the defendant’s email of 12th June and his publication of some of the plaintiff’s personal details and his apparent attitude towards him, this is understandable. The defendant said that he and his wife received a number of threatening telephone calls over a period of about two months in or about August and September. His wife confirmed this. He said that there were two callers and one of them revealed who he was and he did not connect the threats to the plaintiff. In any event the media interest continued and on 14th October, an article headed ‘Farmers’ markets face legal challenge in Adelaide Development court’ appeared on The ABC News website. The article stated that the plaintiff’s appeal might affect the future of farmers markets and it quotes the defendant as saying the plaintiff’s argument could have far-reaching consequences for the continuation of other markets if it were to succeed. This article appears to have then been updated and on 17th October, the topic was again raised on the ABC website. This article speculated that ‘a legal fight’ (plainly a reference to the appeal) might affect the future of popular farmers markets and quoted the defendant as saying that if the appeal were to succeed a ‘precedent affecting other farmer’s markets might be set’ which could in turn have ‘far-reaching effect on these markets continuing’. The defendant sought to demonstrate that the plaintiff’s attitude towards him was hostile with a screenshot of what he claims is a post published on the George and Ben’s profile on 18th October. The screenshot reads:

There has been an increasing amount of false information, allegations and even threats on Facebook in the last few weeks from my action to close his markets.



Aldridge’s markets don’t pay taxes, they are not Farmers, and they buy produce from wholesale markets. Since Aldridge opened his new market in Salisbury, my shop has been losing $1000 every Saturday.



Mark Aldridge’s greed knows no bounds; he is all about money, not support of local farmers.



My action to close his market is backed by many local growers, most are unwilling to speak up due to backlash and threats from Aldridge and his supporters.

The screenshot is headed with an icon reading ‘George & Bens Fresh Food Market’ followed by the word’s ‘work and money.’ The defendant said he read this post at the time and that someone forwarded him a screenshot of it some months later. The plaintiff said he did not write the words appearing in the shot and in any event he says it does not appear to have been ‘put up’ on his profile. It is nonetheless to be observed that the terms of the post confine his intentions to closing the defendant’s market and do not suggest that he had it in mind to close markets on a broader scale to achieve his ends. Even if the plaintiff or someone connected with him published this post, it is irrelevant for the same reasons as the post about the pumpkin scam. On 21st October, an article headed ‘Fruit and veg fight’ appeared in the Northern Messenger. The article mentioned the appeal and quoted the defendant as saying ‘the case stemmed from competitive tension’. The article does not suggest that there would be ramifications for any other markets if the appeal were to succeed.

The defendant’s beliefs

I have summarised and quoted some of the media articles because the defendant said they contributed to his beliefs about the plaintiff’s motives and intentions and the potential ramifications of the appeal. His beliefs are relevant to a number of his contentions including, the issue of whether he honestly believed that which he published was true. It will be convenient now to deal with some of his evidence in those regards as a prelude to the evidence about the allegedly defamatory posts before returning to the topic in greater detail during my final analysis. At some stage the defendant had urged his supporters to boycott the plaintiff’s shops because as the plaintiff was intent on closing him down, therefore, it was only ‘fair’ for him to ask his ‘supporters to do the same’ even though there were potential financial ramifications for the plaintiff. By what must have been about mid-October he still wanted the boycott to continue. He said that by then he regarded the plaintiff as ‘greedy’ because ‘he wanted to shut other businesses for self-interested profit’, however, he denied that he was intent on painting the plaintiff in a bad light by asserting that he (the plaintiff) was intent on closing down all farmers markets. It is to be observed that his stated belief is contrary to the intentions attributed to the plaintiff in the post of 18th October. In this regard he said he also came to believe that success of the appeal would spell the end of all farmers markets including his own and that he read a number of posts suggesting that his view was shared by others. To confirm this he tendered a screen shot of a media article claiming that the plaintiff was ‘pushing’ to close farmers markets in South Australia because his profits were falling. The article is short and speculative and quotes no sources. The shot is dated 4th May 2016 but the actual date of publication is unknown. The defendant said that he had discussed the appeal with Mr Parnell and a Ms Schute. Mr Parnell is a former solicitor experienced in development law who is now a Member of the Legislative Council and Ms Schute is the solicitor who was acting for the council in relation to the appeal. The defendant said they told him there ‘could’ or ‘would’ be nationwide ramifications for markets if the appeal were to succeed. He said that by this stage he still believed that the council’s decision would stand and he would be free to continue trading at the new location if the plaintiff abandoned the appeal. It will be seen that some of his evidence about his beliefs was not entirely consistent.

The first post

It is against this background that the first of the allegedly defamatory posts is said to have been published. It can be seen from the foregoing that the plaintiff was showing no inclination to discontinue and, if the defendant’s posts and comments are anything to go by, his attitude towards the plaintiff was overbearing, dismissive and contemptuous. The plaintiff alleges on the pleadings that the defendant published the first of the allegedly defamatory posts on his personal profile on 25th November, 2015 at 1.05 pm (the relevant time). He alleges that the defendant published the post in the following terms:

UPDATE ON BENJAMIN JOHNSTONS LEGAL ACTION TO CLOSE FARMERS MARKETS IN AUSTRALIA.



Ben Johnston owner of George and Bens at Pooraka and golden Fresh fruit and veg in the Golden Grove shopping centre is intent on closing Farmers markets in Australia through an action I am fighting in the ERD Court (Environment and Development court)



All avenues to work with Ben since day one have failed due to his refusal to even talk, so it is all about closing markets to improve his sales, rather than improve his business model .



If this greedy man wins, the precedent will affect all Farmers Markets, road side vendors, general markets, even community events and fetes .



Farmers markets were around long before Supermarkets and Grocery stores, and even how (sic) they add hundreds of millions of dollars to the economy and help keep our smaller farmers and producers on the land.



I will be taking a few days of (sic) to ensure I can put the best argument forward in early December and the council’s Legal team will do the same.



The argument currently being debates, (sic) is based around the term “Shop” and “Premises” V’s Markets and Stalls, with the intent every stall becomes a shop and every premises becomes capable of becoming a shopping centre, and there for (sic) are illegal under development law.



With that, stall holders insurances may become invalid, fundraising events, special events and the general use of open land is being debated in such a way as to affect many.



After visiting his FB page for George and Bens, and going by media reports to me, the support for his position is backed by other players in the grocery industry; including the wholesale trade, rather than name people, go look at who likes his posts that relate to asking for support for his legal action.



I believe once you know who is behind the action, you will better understand why, some big players names are supporting this man.



Farm Direct operates a few markets and has more to open, subject to the outcome of this action, but there are hundreds of successful markets all over Australia that may be affected by this action, meaning thousands of jobs, farms and small businesses lively hoods (sic) are at stake.



I am now in possession of the outline of argument if any legal minds would like to offer their support and or go over my research, because this is not just about me, it is not just about my stall holders, it is about the future of Markets and community events of every kind in Australia.



I would like to note a few serious concerns, one is the media, who all know about this, and consider it of no community concern, the attorney general Rau, who is in charge of development legislation, has refused to respond and the lack of support from the other Australian markets that might be concerned.



If I lose the case it will not affect me financially at all, in fact I will be better off, but thousands of good hard working Australians will lose, they will lose jobs, farms and businesses , and that is the very last thing we need in Australia right now.



Political mediocrity is already killing our manufacturing and our ability to even feed ourselves as a nation, so when we step up as a community to protect the little guy, through avenues like markets, it is left to us to fight battles like this, so consider spreading this post, and include your own words of support, contacting John Rau, and even letting Ben Johnston and his supporters know how you feel, by phone, email or boycotting their businesses.



Mark Aldridge



Founder of Farm Direct community markets

I will refer to this as a ‘the original version’ or a ‘post in the terms alleged.’ I will refer to the words emphasised as ‘the relevant words.’ The defendant admits on the pleadings that he published a post ‘of and concerning the plaintiff’ at the relevant time. The plaintiff pleaded that this post included the relevant words. The defendant denied on the pleadings that the post included the relevant words save and except he admits it included the final words emphasised ‘if I lose the case ... thousands of good hardworking Australians will lose, they will lose, jobs, farms businesses.’ Irrespective of the terms in which the defendant published his post, I will refer to it as the ‘first post.’ In light of the way the evidence unfolded, all this terminology is unavoidable. In relation to the first post the claim turns on whether the plaintiff has proved that the post the defendant published at the relevant time, included the relevant words. The plaintiff also pleaded that the relevant words carry the imputations that the plaintiff ‘in attempting to close all farmer’s markets is a selfish greedy man’ (the first imputation) and that the plaintiff ‘is a person of contemptible character’ (the second imputation). The proof offered by the plaintiff that the defendant published the first post in the terms alleged was somewhat complicated and it will be necessary to go over it in some detail. The plaintiff said he visited the defendant’s personal profile on the 25th November, 2015 and read a post which mentioned the Environment Court, called him greedy and asserted that he was intent on closing all farmers markets in Australia. He was not asked to identify a copy of the post while he was in the witness box however; the terms of the posts he describes are, as far as they go, not inconsistent with the original version set out above. Importantly Mr Velanas’ says posts are automatically stamped with the date and time of their publication. If a post is subsequently edited then the original will be removed from the face of the profile and retained out of sight on the activity log. The edited version will then be displayed on the profile in its place. The edited version will nonetheless retain the same date and time stamp as the original. In other words the edited version will give the impression that it was published at the time the original was in fact published whereas the reality is otherwise. If one follows the correct steps the original can nonetheless be recovered from the depths of the activity log and read in its original form. Mr Velanas analysed the defendant’s personal profile and its activity log. His methodology was not challenged. He expressed a number of opinions about the history of the first post which can best be dealt with in stages. These opinions are also unchallenged. He said he discovered that a post was published on 25th November 2015 at 1.05pm and subsequently edited on 2nd December at 3.21pm (the editing). Consistently with the ordinary operations of Facebook, the edited version was visible on the face of the post stamped with the date and time the original was published while the original lay out of sight in the audit history. Mr Velanas copied a portion of the original post. He also copied the edited version. He included the copies in his report. The copy of the original is incomplete. As far as it goes, the copy is in the same terms as the first post set out above. It is also of the same general appearance and runs to about three quarters of the original version and includes all but the final sentence of the relevant words. He repeated the exercise with identical results the day before he gave evidence. The plaintiff published a response to the defendant’s post of 25th November later that day. He published it on the George and Ben’s profile page and it reads as follows:

Firstly, Thank you to the people who have commented and have taken the time to educate themselves with the facts, not hearsay.



For those of you who don’t quite understand why we stand opposed, to the Farm Direct Market’s, this article sums it up perfectly:....



what is a farmer’s market – Best practice famers’ markets are food markets where the stallholders are the farmers, their families or farm staff.



...



The list of South Australian GENUINE Farmer’s Market’s are listed in the pic accompanying this thread. Please note, Farm Direct are not considered to be a Farmer to customer direct. ... in a Farmer’s Market capacity if they choose to, and your right to shop there weekly. You should meet the wonderful grower’s who are proud of their product.



In the case of Farm Direct Old Spot Market, they are not genuine Farmer’s (sic) Market’s. The fruit and vegetable sellers are onseller’s, who buy from the same place as I do. No farmer’s (sic) in sight??? You are being cleverly misled with a play on words.



Our court action is not intended to put a stop to local kind’s hosting fetes and other community events utilising stalls and tressle (sic) tables. THIS WILL NOT HAPPEN!



That argument is being used unfairly to create hysteria and uproar.



In 2013 when Mark’s Enfield location was forced to cease trading, no fetes or community events were affected then. They won’t be in this instance.



...



Again, this is not about hurting the Farmer’s (sic), I am passionate about our industry and the wonderful produce we are blessed with in this country.



I want the same rules that apply to me, to apply to the wholesaler’s (sic) who set up shop at the Old Spot Market’s.



Respectfully,



Ben Johnson



George & Bens

The defendant said he regarded this post as offensive and defamatory. Irrespective of the precise terms in which it appeared, the defendant’s post of 25th November soon attracted numerous comments. They too are said to be defamatory. The defendant travelled to Bali on 28th November, in order to prepare for the appeal. He was heavily involved in bushfire relief activities in his local area from about mid-afternoon on 25th November until his departure and he had little time for Facebook during this period. He delegated the management of his personal profile to his wife and Ms Evans so they could monitor his page during this period and the period of his absence and delete any comments which were contrary to his ‘policy directives’, or otherwise inappropriate or abusive. The defendant consulted his solicitor. Further to the proof of the precise terms in which the defendant published his post of 25th November, and on 27th November, a solicitor navigated his way to the defendant’s profile where he located a post apparently published by the defendant at the relevant time. He then saved the post to his own profile, took a screenshot and printed it. The reproduction is not perfect in that the last line of one page of the printout straddles the first line of the second however, if the two lines are read together the shot can be seen to be in the same terms as the corresponding line in the original version and that the shot includes all of the relevant words. The plaintiff’s solicitor then emailed the defendant a letter of concerns attaching a copy of the post. The letter is dated 1st December 2015. The copy of the post is time stamped 25th November at 13.05. This date and time appears at the head of the post itself and not on the taskbar. Save for a few words which are indiscernible on the copy, it is the terms alleged and includes all of the relevant words. The defendant said he received the email and the letter at about noon on 2nd December while he was still in Bali. The letter complained that the defendant published a ‘wall post’ on his personal profile at 1.05pm on 25th November 2015 which was defamatory of the plaintiff. The letter then informs him that the allegation was that the post carried the imputations that the plaintiff was intent on closing all farmer markets in Australia and that he was greedy. The letter further informs him that the imputations arose from the whole of the post and from certain words in particular. The relevant words are then quoted save and except the final sentence of the words emphasised. Finally, the letter warns the defendant that proceedings would be commenced unless he removed the offending materials within 12 hours and otherwise made amends. The letter also alleges that on or about 29th November 2015 the defendant published another defamatory Facebook ‘group’ which I will refer to as the ‘Boycott Bens’ post. This allegation did not procced and it is common ground that the defendant did not publish this particular post. The defendant nonetheless submits that it is relevant to demonstrate good faith on his part in that he says he contacted the publisher and arranged for the post to be removed and, as I understand him, has bearing on the probabilities of whether he would deliberately malign the plaintiff. The terms of the letter are clear and unambiguous. The defendant cannot have been in any doubt about precisely what he was said to have published, when he was said to have done so and how his publication was said to be defamatory. Indeed he does not say otherwise. The defendant said he remembered receiving the email and reflecting on it a few hours later. He said when he read the post he ‘thought that there were a couple of comments or words in there that I didn’t think I would have used in a public post.’ It has been seen that Mr Velanas says the post he located on the defendant’s profile was edited at 3.21pm on 2nd December. This was a matter of a few hours after the defendant said he received the email, the letter of concerns and the copy of the post. The implications of the timing are self-evident. After editing, the post appeared on the face of the defendant’s profile in these terms (the edited version):

UPDATE ON BENJAMIN JOHNSTONS LEGAL ACTION TO CLOSE FARMERS MARKETS IN AUSTRALIA.



Ben Johnston owner of George and Bens at Pooraka and Golden Fresh fruit and veg in the Golden Grove shopping centre has taken an action which if successful could close many Famers markets in Australia through an action I am fighting in the ERD Court (Environment and Development court)



All avenues to work with Ben since day one have failed due to his refusal to even talk, so it is all about closing our market to improve his sales, rather than improve his business model.



If this man wins, the precedent could affect all Farmers Markets, road side vendors, general markets, even community events and fetes.



Farmers markets were around long before Supermarkets and Grocery stores, and even how (sic) they add hundreds of millions of dollars to the economy and help keep our smaller farmers and producers on the land.



I will be taking a few days of (sic) to ensure I can put the best argument forward in early December and the council’s Legal team will do the same.



The argument currently being debates (sic), is based around the term “Shop” and “Premises” V’s Markets and Stalls, with the intent every stall becomes a shop and every premises becomes capable of becoming a shopping centre, and there for (sic) are illegal under development law.



With that, stall holders insurances may become invalid, fundraising events, special events and the general use of open land is being debated in such a way as to affect many.



After visiting his FB page for George and Bens, and going by media reports to me, the support for his position is backed by other players in the grocery industry; including the wholesale trade, rather than name people, go look at who likes his posts that relate to asking for support for his legal action.



I believe once you know who is behind the action, you will better understand why, some big players names are supporting this man.



Farm Direct operates a few markets and has more to open, subject to the outcome of this action, but there are hundreds of successful markets all over Australia that may be affected by this action, meaning thousands of jobs, farms and small businesses likes (sic) are at stake.



I am now in possession of the outline of argument if any legal minds would like to offer their support and or go over my research, because this is not just about me, it is not just about my stall holders, it is about the future of Markets and community events of every kind in Australia.



I would like to note a few serious concerns, one is the media, who all know about this, and consider it of no community concern, the attorney general Rau, who is in charge of development legislation, has refused to respond, and the lack of support from the other Australian markets that ought to be concerned.



If I lose the case, it will not affect me financially at all, in fact I will be better off, but thousands of good hard working Australians will lose, they will lose jobs, farms, and businesses, and that is the very last thing we need in Australia right now.



Political mediocrity is already killing our manufacturing and our ability to even feed ourselves as a nation, so when we step up as a community to protect the little guy, through avenues like markets, it is left to us to fight battles like this, so consider spreading this post, and include your own words of support, contacting John Rau, and even letting Ben Johnson and his supporters know how you feel by phone, email or boycotting their businesses.



Mark Aldridge



Founder of Farm Direct community markets.

The edited version is displayed the relevant time at its head. It can be seen that it closely resembles the terms of the original retrieved by Mr Velanas. The only differences are that the words ‘ intent on closing all farmers markets in Australia ’ which appear in the first paragraph of the original appear to have been replaced by ‘ has taken an action which could close many Farmers markets ’ in the edited version and that the word ‘ greedy ’ which appears before the word ‘ man ’ in the third paragraph of the original no longer appears. Given that edited posts carry the date and time the original was published, it is obvious that it would have been a simple matter for anyone so minded to remove the allegedly defamatory sting from the post while retaining the date and time of its initial publication and the balance of the text. It is equally obvious that a person armed with the letter of concerns and a screenshot of the original would know which words to remove and add, in order to achieve this end. It can also be seen that the practical effect of the editing would have been to pass the edited version off as the original whereas the reality was that the original had been published at the relevant time with the relevant words include, and now lay out of sight in the audit history. The differences between the two versions are reflected in the pleadings: the defence admits publication of a post at the relevant time but denies it included the relevant words and claims that it included the words appearing in the edited version and the reply alleges the defendant amended the original. It was part of the plaintiff’s case that the defendant had attempted to evade liability by conducting the editing so as to remove the allegedly defamatory sting. The defendant said he did not realise at the time that posts which had been edited remain there forever! For obvious reasons the plaintiff submitted that this led to the defendants undoing in that he did not realise that he had left his tracks behind him. Neither his wife nor Ms Evans claim to have carried out the editing. I will return to these issues. On 5th December, and after he had returned from Bali, the defendant sent an email to the plaintiff’s solicitor which relevantly reads:

[My apologies for the late reply, I have been overseas and although I had intermittent internet access, I did not enjoy being able to send emails.



I will first assure you I am not involved with the FB page in question , and have had no input what so ever, hence the fact it has very little support. I am happy to try and contact the owner an(d) ask that it be taken down, as a show of faith.



The imputations you have raised are not an accurate reflection of the words I wrote and posted.



There are times when I am away that others control my page, but when I received your email, I immediately checked the post to ensure it was not worded in a way of which could have the effect of defaming your client.



I will note that I have copies of some rather nasty defaming posts by your client in his words, where he makes assumptions I am responsible for the words of others.



In any event the post will be removed at a later date, but as it stands I can see nothing but truthful words that in no way defame your client, the attachment is the post as checked upon receipt of your email.



I am unaware of who wrote or modified the copy’s you sent me.

On 6th December, he sent a further email to the plaintiff’s solicitors in these terms:

Subject: Re: Concerns Notice



Categories: IDM



It appears that the Face Book page you mentioned are the ones that have taken some liberty with the wording of my original post , I have written to them by Private message asking for the page to be taken down.



I do not know who has set up the page, but hope they can at least amend it.



I have refrained from liking or mentioning the page, in fear that will increase its discovery, to ensure your client is not defamed, even though I am neither the author nor responsible in any way.



Mark Aldridge

It is plain from these emails that the defendant understood the thrust of the letter of concerns. He said that he ‘explained the difference in the words that were presently on the post’ in the first email and that he would have been ‘happy to consider looking at it’ if there were any issues. He said he was trying to convey to the plaintiff’s solicitor that someone ‘had taken liberty with the wording’ however, there is some confusion on the face of the emails about whether he was referring to the post of 25th November or to the Boycott Ben’s post. Similarly, there is some apparent confusion about whether references in the first email to imputations not accurately reflecting the words he wrote and his statement that a post which mimicked the words he used were reference to the first post. In any event neither email amounts to an admission that he published his post of 25th November in the terms alleged. On 23rd December, the plaintiff’s solicitor sent a further letter of concerns enquiring whether the defendant’s email of 5th December, is to be taken as a denial of authorship of the first post. It also informs him that the final words emphasised are now also regarded as defamatory. The defendant read the letter. He said he attempted to remove the first post at about Christmas 2015, however, the system prevented him from doing so. He waited until interest in the post had died down before doing so because experience had taught him that deleting posts can be counterproductive in the sense that dissatisfaction and ‘backlash’ can occur. His wife and Ms Evans confirm this. In any event the original version of the post, the edited version and the comments which it attracted were still accessible on the defendant’s profile as of the day the trial commenced.

The Comments

This brings me the comments. For the moment it is sufficient to say that they were numerous, that many were critical of the plaintiff and some referred to him in contemptuous terms such as ‘cretin’, ‘selfish greedy arsehole’, pig of a man’, ‘this excuse for a man is a piece of shit’, ‘greedy fuck head’ and ‘scum’ bag’. The plaintiff viewed a selection. The defendant said he scrolled through some of them some days after the first post was published and he agreed that there was nothing physically preventing him from reading them while he was in Bali. The plaintiff pleaded that the comments carried the same imputations as the first post itself. The defendant pleaded that he bears no liability for their publication.

Narrative continued

The plaintiff’s appeal to the Environment Court was heard on 8th December, 2015 and judgment upholding the plaintiff’s objection and remitting the defendant’s application back to the council was delivered on 21st January, 2016. The defendant said his attitude toward the plaintiff was then one of indifference. He said the outcome of the appeal reignited ‘major public debate’ and commentary and that there was a public call for an appeal from interested parties throughout the country.

The second post

The defendant then published the second of the allegedly defamatory posts on 25th February 2016. He admits on the pleadings that he was the author and publisher and that it appeared in the following terms:

Mark Aldridge



25 February



Ben Johnston is still trying as hard as he can to shut Farm Direct on what seems like a weekly basis.



If that means undermining every market, event, stall and fete so be it.



Legal letters continue to arrive at the courts, my in box, Salisbury council, the Old Spot hotel, the Plush group and I assume others.



The latest applications are to have us shut immediately as we are affecting Johnston’s profits (yet we hear he has sold his shop?



In any event Johnston, is or was in Pooraka, we operated from Parafield for many years, we moved further away to Salisbury heights, and another unregistered market opened on our old site, so it was a business related matter (which has nothing to do with development matters) then why not go after the new market?



Since this started, threats to my family, stall holders and others have continued and still are a regular occurrence, no one wants to pick up the phone mist (sic) nights to threats of rape of his wife or death threats.



This brings up several issues, why the Parafield site can ignore the law, why can applications be made against competition (considering we are a free market) and why is Johnston apparently working with Parafield, it is closer to him.



Facts: Farm Direct has operated for over 3 years, we applied and were approved by Salisbury council development department and the DAP, under the strictest terms, and started operating at our new site.



Most if not all Markets are approved in the same way, in some cases without the need to jump through much red tape.



Why are the councils sitting back doing nothing, when applications for community events in their area are being stalled.



Why does a not for profit community event have to fight for the right to exist and the rights of other community events on community donations.



From here: Farm Direct were fully complied as a merit application (merit means the community support such events) now we have to comply as a Non Complying development (the community does not want events like ours) when the public love our market and support local community events, fetes and Markets.



The council should be fighting for the community they purport to represent, so should the state government, but neither are supporting the legal action.



The courts ordered all stall are now shops, and a group of stalls is now a shopping center, which affects every public event.



The courts ordered that the council make us re-apply for approvals as a shopping centre (non complying development).



We prepared the application, but since we have lodged an appeal on the courts finding stalls are shops, until that appeal is heard, we are complying.



If we fail in the courts then we can re-apply for development approvals. Johnston and his well paid legal team want us shut based not on development or safety issues, but purely on market based trade.



This clearly shows how development law is being abused, development law is about land use, not issues of competitive nature, so where is the state government on this matter.



Does this mean if you open a new business in this state, and start to do well, your competition can shut you using loop holes in the law, law that does not even relate to matters of a competitive nature?



If a company closes down there is media coverage, loss of jobs, in fact if there is a hundred jobs at risk, in step parliament to help, yet a community market is under pressure to shut, that is doing well, has massive support and represents 100’s of jobs, small farms and small businesses, no media, no support, no state government support and no council support. (thousands of jobs, farms and small businesses are now at risk)



The state government and the councils are to blame, they want the power over how we use our private land, they say they are here for the community, to ensure development of any kind is in line with community expectations. They write all these pretty agendas, like healthy eating, access to affordable fresh produce, getting the community out and about. Farm Direct does that, complies with the law, then this happens and the officials you elect, pay and support to look after you are no where to be seen.



Rant over, wish me luck in the courts. If I lose, so do hundreds of jobs, small farms, so does the community and the door opens for other scum bags to close other community events.



Mark Aldridge

I shall refer to the words emphasised as ‘the alleged threats.’ The plaintiff pleaded they carried the imputation that he ‘has made or encouraged, or is likely to make or encourage, threats to rape and kill’ (the third imputation). The defendant pleaded that the words were not ‘of or concerning the plaintiff’ and that in any event they do not carry the imputation pleaded. The defendant said he published the post in an attempt to ‘give a broad overview of the issues of the controversy including issues with State Parliament and the council’. He conceded it was ‘a rant’. He denied that his reference to ‘other scumbags’ included the plaintiff and he said it was merely a reference to anybody who might want to close a community event. On 1st March 2016, the plaintiff’s solicitors sent the defendant a further letter of concerns complaining that the comments also carried the first and second imputations and that the second post carried the third imputation. The letter also informed him that proceedings would be commenced within 28 days unless the posts and the comments were removed. On 20th April the plaintiff commenced the action and the proceedings were served on 23rd April.

Narrative concluded

By mid-November, 2015 the plaintiff was considering selling George and Ben’s because of the online attacks, a downturn in business and a fear that continuation of the attacks would be bad for business. He eventually signed a contract for sale and sold shortly before the appeal was heard. however, he continued with the appeal because the agreement was subject to finance. He had also decided to close Golden Fresh for much the same reasons and he ultimately did so on 8th December 2015. The defendant said that the circumstances which led up to both of the posts might have had an effect on the words that he used in each. He said that the plaintiff’s posts carried animosity towards him which descended into personal attacks. He also said that members of Parliament other than Mr Parnell had ‘entered the debate’ however, he does not specify when this occurred and he says that he lobbied ‘a few friends in Parliament,’ but again he does not provide any particulars. The defendant appealed the decision of the Environment Court to the Full Court. The appeal was heard on 8th August, 2016, and dismissed on 8th September, 2016. The plaintiff played no part in these proceedings.

Credibility

There are credibility issues. In particular the defendant’s credit is under serious challenge. It is well settled that caution must be exercised before making credibility findings based on demeanour alone and, as far as it is possible to do so, the court should reason to its credibility conclusions on the basis of ‘contemporary materials, objectively established facts and the apparent logic of events’: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [30]- [31] per Gleeson CJ, Gummow and Kirby JJ. I have proceeded accordingly.

The plaintiff

There was nothing in the plaintiff’s presentation which aroused my suspicions. He was calm and careful and he answered directly and without any apparent embellishment, evasion or prevarication.

Mr Velanas

I have already dealt with Mr Velanas’ qualifications and experience. There is no apparent reason to doubt his neutrality. His evidence was at variance with a number of discrete assertions put by the defendant. Whenever this occurred his evidence is to be preferred on the basis of his qualifications, and the defendant’s disclaimer of any relevant expertise, and his reliance on a printout of dubious and untested accuracy.

The defendant

The defendant was particularly unimpressive and unconvincing. He is plainly resourceful, confident and reasonably intelligent. He demonstrated the capacity adequately to conduct his own case and he was not overawed by the situation in which he found himself. For a layman he displayed a reasonable grasp of some aspects of procedure, planning and development law, and defamation law. In evidence-in-chief he exhibited an occasional tendency to indulge in discursive and self-serving answers. Under cross-examination he was often unresponsive. This cannot all be attributed to mistakes or misunderstandings, he is far too intelligent and self-assured for that and on important issues he often gave the impression that he was running from the point of the question. There are also other features of his evidence which call his credibility into question which I will mention when it is convenient to do so. In all the circumstances I am not prepared to accept him on important issues unless there is some form of support for his evidence.

Ms Aldridge, Mr Cook and Ms Evans

The evidence of Ms Aldridge, Mr Cook and Ms Evans is not in dispute and, in any event, there is no apparent reason to doubt anything they said. I should say that I prepared these credibility findings very soon after I reserved judgment for the first time and while my impressions of the witnesses were still fresh in my mind.

Defamation revisited

To go back to the elements of the action: Defamation is the publication by the defendant of material injurious of the reputation of the plaintiff. The elements were conveniently identified by Blue J in Duffy v Google [2015] SASC 170; (2015) 125 SASR 437 at [158]: That the defendant published the relevant material. That the material was of or concerning the plaintiff. That the material carried the imputations pleaded. That the material was defamatory of the plaintiff in that it was injurious of his reputation. The primary issue in relation to the post of 25th November 2015 is whether the defendant knowingly published it in the terms alleged. In relation to the comments it is whether the defendant is liable for their publication. In relation to the second post it is whether the relevant passages of the post are of or concerning the plaintiff.

Publication: General principles

Publication is a bilateral act. The publisher must make the relevant material available to be read by others and it must in fact be read and comprehend by some other person otherwise no harm is done. Participation in the process of publication satisfies the physical element. Participation may be primary or secondary. A primary publisher is liable irrespective of whether they knew, or ought to have known, that the allegedly defamatory matter was included within that which they published. A secondary participant is liable only if they knew that the material was within that which they published, or if he or she could, with the exercise of reasonable diligence, have known of its inclusion: Duffy supra at [166]-[169].

The first post: Introduction

The defendant’s various applications to amend the defence and re-open his case must be determined before the issue of whether he published the first post in the terms alleged can be addressed.

The first post: Application to amend

The defendant applied to amend the defence at the close of the plaintiff’s case. He sought to do so by withdrawing his admission that he published a post of and concerning the plaintiff at 1.05pm on 25th November and substituting a pleading that he published a post concerning him at noon on that day. He said this post was in the terms of a copy of screenshot he submitted for the purposes of the application. The copy appears incomplete but as far as it goes it is in the terms of the edited version. He said that this was the only post concerning the plaintiff he published on the 25th and that he published it at noon. He said he took the screenshot after he received the first letter of concerns but before the time the editing is said to have taken place. The post depicted in the shot bears the relevant time however; the task bar of the computer on which it was apparently taken shows 1.19pm on 23rd December 2015, which is well after the editing is said to have taken place, and as edited posts carry the time and date the original was published, the mere fact that the post bears the relevant time cannot of itself prove that it was published at that time and in the terms depicted in the shot. The defendant does not claim that he published more than one post concerning the plaintiff on 25th November. In the light of Mr Velanas’ evidence, this screenshot cannot have been taken until after the editing was conducted, and I reject the possibility that it was. The screenshot thus has no capacity to provide any independent proof that the defendant did not publish the first post in the terms alleged. The defendant said he did not make this application before the trial commenced because he believed the defence contained a denial that he published the relevant words and, as I understood him, that he eventually came to the conclusion he needed to amend to ‘ensure’ he could ‘run a defence’ that he thought had been available to him from the outset. The applicable principles were identified by the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 and conveniently summarised in Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59 by Bleby J, White J concurring at [46]. They are as follows: Whether there has been undue delay in making the application; The extent to which public resources will be wasted if the application is granted; Whether there will be inefficiency occasioned by the need to revisit interlocutory processes; Whether a trial date would need to be vacated or a trial adjourned; Whether there is any satisfactory reason for the delay in applying; Whether the point to be raised by the amendment would be raised during the trial in any event; The likelihood of strain and uncertainty being imposed on the litigants; Whether any further delay would undermine confidence in the administration of civil justice; Whether any other prejudice is likely to be suffered by the other party; and The extent of any additional costs likely to be incurred.

Balancing the relevant considerations, I rejected the application. In particular, I took the view that the terms of the defence as it stood did not preclude the defendant from challenging the pleaded allegations that he published a post at the relevant time which included the relevant words. This transpired to be so and the matter proceeded accordingly until the defendant sought leave to re-open his case in circumstances I will come to.

The first post: The defendant’s evidence

The defendant said he published a post at around lunchtime on 25th November however, he accepts that publication may have occurred at 1.05pm as alleged. Much of his evidence about its terms and whether he subsequently edited it was repetitive, inconsistent and unconvincing. With apparent reference to his reply to the first letter of concerns, he said:

Apparently at that same time, and – this is a really hard one under oath to discuss – the post was edited on 2 December to lighten the impact, I assume on the plaintiff. I do say on oath that that wasn’t done from my point of view to – because the post was defaming more so as – it’s hard to say – as a show of good faith. It wasn’t until some time later that I came to realise that if you edit a post on social network you can no longer remove it at all from social network. It remains there for forever and cannot be taken down.

In cross-examination he said that he ‘must have’ conducted the editing of 2nd December, even though he had no recollection of doing so. He said he had suffered a breakdown as a result of his experiences during the bushfire relief effort and that he was unwell at the time. In this regard his wife said he had become emotional and forgetful as a result of his experiences, and I see no reason to doubt that this is so. He had filed a draft of his opening. He conceded that it made no mention of the editing. He said this was because he had no recollection of conducting any editing however, he said that evidence had led him to believe that he had done so and that it was obvious he was responsible. He then said that after he returned from Bali he thought he might have carried out some edits. He said someone showed him a screenshot dated 27th December 2015 depicting a post in the terms of the edited version and that this caused him to become confused and concerned that someone had ‘ tampered with the original post .’ He thought a man named Peter had sent him this shot. The taskbar of the computer on which the shot was taken displays 9.12pm on 27th November however, as Mr Velanas’ says the editing took place on 2nd December and as the shot taken by the solicitor on 27th November depicts a post including the relevant words, any screenshot depicting a post in the edited version cannot have been taken on the date and time displayed on the taskbar. The defendant said that ‘what brought (his) attention’ to the post of 25th November ‘ not being in my words ’ when he looked at it ‘was the terminology used in the first paragraph’ and that ‘as much as that’s how I felt at the time and that the post reflects what I believed at the time, I didn’t think I’d used those words in the post, I thought I’d tried to tame it down because it was a public post’ . He eventually conceded that he had published a post on 25th November which included the relevant words and that he must have edited it on 2nd December. He then said that when he read the post on 2nd December (presumably the copy attached to the first letter of concerns), he thought that it included words he had not used and that when he wrote the post his ‘mental health was fine’ but he subsequently suffered a breakdown and his lack of recollection of the editing led him to conclude that ‘ someone else must have tampered with it .’ He also said that that he does not generally use the word ‘greed’ in his posts. He said that when he opened the first letter of concerns he thought ‘well okay, I’ll alter the post to remove those words obviously so as not to offend, not to change the context of it’ and he assumes that he did so although has no recollection. He then specifically denied editing the post on 2nd December in order to remove any defamatory sting. Finally, he admitted that on 25th November 2015 he put up a post which was in the terms alleged and he further admitted that he must have edited it on 2nd December 2015.

The first post: Angel Barton

It can be seen that the defendant suggests in his evidence and in his emails of 5th and 6th December that some third person might have tampered with his profile and he ultimately said the post had been changed in two places. This eventually led to a proposition that some malevolent person, in all probability Angel Barton, had tampered with his profile and published the relevant words. There is no direct evidence that this occurred and the proposition relies in part on evidence that Angel Barton had harboured animosity towards the defendant for a number of years and that third parties had from time to time published posts which they falsely attributed to him. In this regard the defendant said that a hate page entitled ‘Mark backfired Aldridge’ was published in or about June or July 2015. As I understand it, a hate page is a profile dedicated to posting disparaging material about its subject. It is plain the defendant believes that one Angela Cooke was somehow involved with the hate page and he believes she was also known as Angel Barton. The plaintiff denied publishing the hate page and he does not know if Angela Cooke and Angel Barton were one and the same. The defendant said Angel Barton had been ‘causing him angst’ and that a group of people were publishing posts attacking his credibility. He said Angel Barton had been attacking him, his family and his friends for some four years by attempting to hack into his accounts and by making false profiles which they attributed to him. Mr Cook confirmed that Angel Barton had published hate pages about the defendant for some years and that she was consistently making comments against his ‘stature’. He also said that one Angela Hay was also publishing comments critical of the defendant and it is plain that he believed that Angel Barton, Angela Cooke and Angela Hay were the same person. Ms Evans said that she too had seen hate pages about the defendant. There is however, no doubt that a number of posts and comments were published in the name of Angel Barton in the period leading up to the publication of the first post. The defendant tendered some of them as demonstrative of her attitude towards him. They are in critical or dismissive terms and it is plain that whoever published them held the defendant in low esteem. Indeed in about June both Mr Cook and Ms Evans saw two posts published in the name of Angela Cooke which referred to him as ‘idiot’ and ‘wanker’. Moreover, Mr Cook, Ms Evans and Ms Aldridge each said that posts fraudulently purporting to be the defendant’s work were published on a regular basis. Mr Cook said comments which were out of character for the defendant were included in these posts. He has also encountered instances where posts published by the defendant have been somehow uplifted, edited and copied onto hate pages thus attributing statements to him which he had not in fact made. He said that false ‘timelines’ had also appeared in the name of the defendant’s wife. Ms Evans said she had seen false profiles purporting to be the defendant’s in 2014, May 2015 and November 2015. She explained how false profiles such as these can be created and it appears to be a relatively simple task. None of this evidence about Angel Barton, hate pages or the creation of fraudulent posts was challenged.

The first post: Application to re-open the evidence

There the evidence stood until the defendant’s closing address. Early in his submissions he said he had become confused when he was giving evidence and he ‘felt that if I told the truth, ... that I didn’t believe those words were mine, but I’d be committing perjury.’ Then towards the end of his closing he applied to re-open his case. In support of his application he informed me that he had never believed he had published the first post in the terms alleged and he said he had become confused by some statements made about his defence (meaning the defence filed by his former solicitors which I will refer to as ‘his defence’ or ‘the defence’ from now on) and that he sought leave to re-open in order to explain why he had admitted publishing the first post in the terms alleged and conducting the editing. He also sought to tender certain identified paragraphs of an affidavit he had sworn in interlocutory proceedings which he contended would support his position. His reference to statements about his defence referred to a submission Mr Doyle made at the close of the plaintiff’s case to the effect that the defendant would need to amend his defence if he wanted to run a case asserting that some unknown third party had hacked into his profile, created a defamatory post and subsequently conducted the editing. It is well settled that the evidence may be re-opened if the court is satisfied it is required in the interests of justice: Hines Exports Pty Ltd v Mediterranean Shipping Company SA [2001] SASC 311; (2001) 80 SASR 268 at [39], per Bleby J. I ultimately granted the application out of an abundance of caution to guard against the possibility that the defendant might have been genuinely confused about the effect of his defence to his ultimate disadvantage. The defendant then gave further evidence. A copy of the post of 25th November in the terms alleged was with him in witness box while he did so. During this evidence he made a number of assertions to the effect that he had been told that his defence precluded him from denying that he had published his post of 25th November 2015 in the terms alleged and from denying that he conducted the editing. It is plain that in each instance he was referring to Mr Doyle’s submission about his defence. The defendant commenced by saying:

During testimony I was under the belief that a document filed by my previous solicitors made it evident that I had written the words in the posts in front of me and at no time up until I believed, I had to say, I had to agree to that, because I believed those words in this particular post I had written. The post has been changed apparently in two places compared to the document I believe I published .

It can be seen that running a case that someone else had published the relevant words was not necessarily inconsistent with the terms of his defence. The defendant then said that when he read the first letter of concerns the copy of the post attached ‘ didn’t appear to be my words, completely .’ In consequence he accessed his profile and went to a post timed and dated 25th November 2015, at 1.05pm which ‘contained the words I believed I had post (sic).’ He said he took a screenshot of this post and sent it to the plaintiff’s solicitors explaining that something had gone wrong. He said he checked his draft and found that it was in different terms to the original version set out above and that his activity log confirmed what he had written and ‘from that moment on, when discussing things with the plaintiff’s solicitors, I believe that the document forwarded to me (meaning the first letter of concerns and the copy of the post) is, the imputations that arose in those documents weren’t authored by me .’ In the relevant paragraphs of his affidavit he deposes to having received a copy of the post from the plaintiff’s solicitors which included ‘wording I do not use.’ He said he went over the post several times while he was in Bali and could ‘not find fault with the words I had used, even though they were politically based’ and ‘the wording and content’ were factually based and true to the best of his knowledge. He said he had asked the solicitors where they had obtained the copy of the post they had sent with the first letter of concerns, as it ‘ was not my words .’ Finally, he said he must have been hacked, and that if they had any issues with ‘the post I had written and uploaded’ he would consider removing or editing the post. In cross-examination he said he had read a copy of his defence before the trial commenced. He said he believed it admitted he had published a post at a certain time but denied that the post included certain words. He said he had been happy with this and it is in fact the effect of the defence. He said that on the second or third day of the trial he was told he could not rely on any other defence. He said he had made his concessions about publishing his post of 25th November in the terms alleged and conducting the editing because he believed he was bound by the terms of his defence to do so. He said that when the relevant passages of his defence were brought to his attention in the early stages of the trial he came to believe that he ‘ now had to run some sort of case to defend words of others .’ With reference to the first post he said he could ‘still remember quite clearly what I wrote on the day I posted’ and that he had become extremely confused about how he could ‘run a case and defend something’ which he knew from the outset he had not written. He said he had never doubted that he had not carried out the editing and he knew nothing about it. He then said that ‘ the only way it could have been done is if someone hacked into my account and deliberately changed [the] wording .’ He said he may have made his concession that he ‘must have’ conducted the editing because he was confused about ‘ how someone could get into my account and how it could be changed ’ and that his defence did not give him the opportunity to deny it. When asked why he had not provided this explanation earlier, he said, in effect, that he believed he would have been perjuring himself if he gave evidence contradicting the terms of his defence and he did not want to do this. He repeated his belief that his defence precluded him from denying that he published the post in the terms alleged and he said he was ‘trying to work his way around that.’ He then went on to deny responsibility for the publication of the relevant words and to say that he had a good argument that ‘I hadn’t written it’ and that Mr Doyle had made it clear that his defence ‘didn’t allow me to use that defence, so I had to run with whatever I could to protect myself.’ Finally, he said his position never changed until he was told in court that his defence obliged him to admit to writing ‘this document’ (being the copy of the post in the terms alleged which was in the witness box), that he did not want to tell lies and that he did not publish the relevant words. In submissions the defendant said that he might have been looking at a copy of the edited version when he made his concessions. He had not given any evidence to this effect and I see no reason to think that the wrong exhibit was placed in front of him. In any event, the differences between the two were very much in focus and it is hard to see how he could have become confused. In summary then, he admitted on the pleadings that he published a post at the relevant time but asserted it was in the terms of the edited version and denied that it included the relevant words. He then conceded under cross-examination that he must have published the first post in the terms alleged and conducted the editing. After re-opening his case he retracted his concessions and said he had made them in the belief that the terms of his defence obliged him to do so and he denied publishing the post in the terms alleged and postulated that a hacker was responsible for the relevant words.

The first post: Second application to re-open the evidence

Some six months after reserving judgment I called the matter on and advised the parties that I required some additional submissions. This led to the defendant applying to re-open his case yet again. The principles informing the exercise of the discretion to allow the evidence to be re-opened after reservation of judgment are a more stringent extension of those governing applications made before the evidence is closed. They are conveniently summarised in Grech v Deak-Fabrickant (No 2) [2015] VSC at 389 where Daly AJ said at [21]-[22]

Counsel for Paul Grech submitted that the authorities provide that a Court should only grant leave to re-open a proceeding where judgment has been reserved in exceptional cases. He referred to the decision of the Court of Appeal in Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232 where the Court observed:



There are good reasons why the circumstances must be exceptional before a court may allow a case, having been closed and judgment reserved, to be reopened. The need for finality in litigation is one. It is no answer to this point to say that the further evidence sought to be adduced by the respondent in this case is confined to the quantum of damages. Were applications to reopen to be allowed almost as of course, such applications would be regularly made. That would add enormously to inefficiencies in the administration of justice, even if the reopened hearing was strictly confined. The discipline which ought to attend the conduct of litigation by highly competent litigators would also inevitably decline.



The very strict rule that, subject to any applicable process of appeal or review, the presentation of their cases by parties to litigation must conclude with the end of the trial, has another important justification. It is that, very often, the boundaries of the reopened issues would be hard to define and as difficult to protect. The reopened hearing would then be bedevilled by arguments about whether one party or the other was seeking to take advantage of the reopening to police parts of its case which were more or less within the scope of the reopened proceeding but not clearly on one side or the other of the prescribed limits.



Further, the Court referred to Kenny J’s decision in Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] where her Honour stated that there were four recognised classes of case in which a court may grant leave to reopen, being: (i) where fresh evidence, unavailable or not reasonably discoverable before, becomes known and available; (ii) where there has been inadvertent error; (iii) where there has been a mistaken apprehension of the facts; and (iv) where there has been a mistaken apprehension of law.

Moreover, the public interest in the timely disposition of proceedings in defamation reflected in s 37 Limitation of Actions Act 1936 militates against fragmentation of the proceedings. The defendant ultimately limited his application to two discrete items of evidence. First, a series of screenshots which he submitted had the capacity to support his contention that a third party, most probably Angel Barton, tampered with his profile and published the relevant words. Secondly, a single screenshot which he says is a shot of an entry in his profile’s activity log which he believes to be ‘in the exact terms that I published it on a certain time and on a certain day.’ After hearing submissions I refused both limbs of the application. My reasons now follow. The materiality of the series of screenshots turns on whether they enjoy the capacity to make it more probable that the relevant words were the work of a hacker. The current evidence which is said to point towards a hacker is the evidence about the activities and apparent attitude of Angel Barton and others. This evidence lacks particularity and no basis was given for many of the assertions which were made about the identity of those who were said to have tampered with the defendant’s profile from time to time. In addition the current evidence seems to confine the activities of Angel Barton and others to creating posts and attributing statements to the defendant rather than altering posts he had published by adding complaints about other people. Finally, the generalised nature of much of this evidence suggests that there is at least an element of speculation involved. The current evidence, as far as it goes, is however, unchallenged. The only evidence that the defendant’s profile had been tampered with which was given with any particularity is his own evidence that he was not responsible for deleting the disputed comments from his post of 8th September, 2015. I have already determined this issue against him and his evidence in this regard therefore has no capacity to assist him in attempting to increase the probabilities that the relevant words were the work of a hacker. The majority of the posts depicted in the series of screenshots the defendant sought to introduce appear to have been published in the name of Angel Barton. The remainder appear to have been posted on the profile of an entity named Salisbury City Fruit Bowl and it appears from the face of some of them that someone using the name Angel Barton may have been responsible. In essence the posts appear to comment on some of the defendant’s activities in terms which suggest t