(Civil)
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[2014] SADC 134
Judgment of Her Honour Judge Cole
7 August 2014
DEFAMATION - ACTIONS FOR DEFAMATION
The plaintiff brought an action in defamation in relation to an email disseminated on 18 July 2011.
The plaintiff and defendant were both employed by the Department for Correctional Services
("DCS") as correctional services officers and were working at the Adelaide Remand Centre at the time. The plaintiff alleges that the defendant published an email, from the plaintiff's work email account, that was distributed to all of the people with email addresses at DCS and other government bodies. The plaintiff asserts that the imputations arising from the email include that the plaintiff is homosexual, promiscuous and of loose moral character and is seeking to solicit sexual relationships or encounters with others. Also, that the plaintiff was a person who would use his employment to seek sexual relationships and would act in an unprofessional manner by using his work email to solicit sexual relationships. The defendant denies sending the subject email.
Held: The defendant sent the subject email. Imputation that the plaintiff was homosexual, though false, held not to be defamatory. All other imputations held to be defamatory. Plaintiff awarded damages for non economic loss at $75,000 and damages for economic loss at a sum yet to be determined.
Defamation Act 2005 (SA) s 31, s 32, s 33, s 35; Workers Rehabilitation and Compensation Act
1986 (SA) s 54, referred to.
Sim v Stretch [1936] 2 All ER 1237; Slayter v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR
1; Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; Radio 2UE Sydney Pty Ltd v
Chesterton [2009] HCA 16; John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; Cross v
Denley (1952) 52 SR (NSW) 112 ; Braddock v Bevins [1948] 1 KB 580; Brannigan v Seafarers’
International Union of Canada (1963) 42 DLR (2d) 249; R v Bishop [1975] QB 274; Cornes v
The Ten Group Pty Ltd & Ors [2012] SASCFC 99; 11. Bob Gilbert Motors Pty Ltd and Robert
John Gilbert v South Australian Telecasters Ltd [1999] SADC D38 ; Carson v John Fairfax &
Sons Ltd & Slee (1993) 178 CLR 44 ; Rogers v Nationwide News Pty Ltd [2003] HCA 52; Uren v
John Fairfax and Sons Pty Ltd (1966) 117 CLR 118 , considered.
Plaintiff: COSIMO TASSONE Counsel: MR A FILES - Solicitor: MOLONEY & PARTNERS
Defendant: STEPHEN KIRKHAM Counsel: MR K GILCHRIST - Solicitor: GILCHRIST CONNELL
Hearing Date/s: 03/02/2014, 04/02/2014, 05/02/2014, 06/02/2014, 12/03/2014, 07/04/2014
File No/s: DCCIV-12-892
B

1
TASSONE v KIRKHAM
[2014] SADC 134
Introduction
This matter is an action in defamation. It relates to an incident which occurred on 18 July 2011 at the Adelaide Remand Centre (“the ARC”), where both the plaintiff and the defendant were working as Correctional Officers.
An email was sent from the plaintiff’s work email account, over the plaintiff’s electronic signature, to a large number of public servants. The plaintiff alleges that the email was sent by the defendant, and that the content of the email was defamatory of the plaintiff. The defendant denies that he was the person who sent the email. The defendant pleads that the email was obviously communicated in jest, or that the recipients of the email promptly became aware that it was communicated in jest, and that consequently there has been no damage to the plaintiff’s character or reputation. The plaintiff alleges that he has suffered both economic and non economic loss as a result of the sending of the email, and the plaintiff claims damages.
2
At the trial of the matter, evidence was given in the plaintiff’s case by the plaintiff, Mr Nelson, an investigations officer, Mr Duldig, a security analyst,
Dr Gill, a psychiatrist, and Mr Murti, a Correctional Officer. Evidence was given in the defendant’s case by the defendant, the defendant’s wife,
Ms Sahra Kirkham, who is the Operational Supervisor for the Adelaide Women’s
Prison, and Mr Paine, the Security Co-ordinator for the Adelaide Women’s
Prison and the Adelaide Pre-release Centre.
3
The Facts
The Department for Correctional Services (“the Department”) conducts the
ARC.
4
On 18 July 2011, the plaintiff and the defendant were both working in
Unit 4 at the ARC, in a team with Correctional Officers Murti and Harmer.
5
It is of assistance in forming an understanding of the events of 18 July 2011 to know the physical layout of Unit 4. Unit 4 consists of 15 cells on each of the ground floor level and a mezzanine floor level.
1 The mezzanine floor also has an enclosed office and a waiting area outside the office, with at least five chairs arranged around a small coffee table at the top of the stairs. There is a window to the office which looks out into the Unit. Within the office, there is a desk which runs under the internal window and then returns along portion of the wall.
The sole computer in Unit 4 sits in the corner of the desk, partially in front of the internal window, and there is a chair at the desk for the computer user. On the desk along the wall which runs at right angles to the internal window, there is a telephone, which would be behind a person sitting in the chair and using the
1
Transcript p 18.

[2014] SADC 134
2 computer. To the rear of the office, there is a small refrigerator, a kettle and a toaster. There is also a window with a view to the outdoors.
2
6
By 18 July 2011, the Correctional Officers had, for a considerable time, been permitted to use the computer in Unit 4 to gain access to the
Justice Information System (“the JIS”), a computer program which includes a running account of matters involving prisoners which are relevant to the management of those prisoners by the staff of the ARC. Each Correctional
Officer had a personal (presumably unique) logon password for access to the JIS, which was referred to by some of the witnesses as their “COP”.
The Correctional Officers had been given access to email at the ARC about three months prior to July 2011. The Correctional Officers were given personal email accounts in the Department’s “Outlook” program. In order to use email, an Officer would need to turn on the computer (if it was off) and log on to
Windows (a program) with their Windows password, which would be different from their JIS password (or “COP”). Once logged on to Windows, an Officer would be able to open and use his or her email account without providing a further password. However, to use the JIS, the Officer would need to click on the JIS icon and enter his or her JIS password (or “COP”). If one Officer had logged on to Windows and not logged off, any Officer would then be able to get access to the email of the Officer who had logged on. If one Officer had logged on to Windows and had not logged off, any Officer would then be able to click on the JIS icon, but he or she would have to enter a JIS password (or “COP”) in order to gain access to the JIS program. Clicking out of the JIS would take the computer user back to the Windows screen of the Officer who had logged on for that session. Clicking out of Windows would end that session. If the JIS screen were minimised to the task bar, and a user subsequently clicked out of Windows, the JIS session would automatically be terminated.
3
7
The incident which has given rise to these proceedings occurred at 10.43am on Monday 18 July 2014. Computer records subsequently generated, which are not in dispute, 4 show that, at 9:59:27am on that day, the plaintiff logged on to
Windows on the Unit 4 computer. In evidence, the plaintiff said that he entered his password to log on to Windows. He reached a blue screen with icons.
He clicked on the JIS icon, presumably entered his COP, and looked at some prisoner records. He closed the JIS and looked at the Courts Administration
Authority website case lists. He closed that website and opened the email program (Outlook). He composed an email, to Shared Services SA
(a government agency which manages the payroll for some South Australian government entities), in relation to his change of home address. The plaintiff said that, before he sent his email to Shared Services SA, he called his supervisor, Mr Campbell, who was at that time present in Unit 4, into the office and had him check that he was sending the email to the correct person.
3
2
Exhibit D12.
Transcript p 15, 16, 243.
4
Exhibit P20 and P21.

3
[2014] SADC 134
Mr Campbell then left the office. The plaintiff sent the email at 10:14am.
The plaintiff was then alone in the office. A prisoner approached the office and asked for the plaintiff’s assistance. The plaintiff’s evidence was that he had just sent the email to Shared Services SA and had gone back to the blue screen with the icons when the prisoner approached. The plaintiff left the office to speak to the prisoner just outside the office, leaving the computer logged on to Windows.
Once he had dealt with the prisoner, the plaintiff said that he stayed outside the office for a while speaking with Mr Campbell and Mr Harmer. In the course of that conversation, the plaintiff was reminded that he needed to speak to the roster clerk. The plaintiff went back into the office and telephoned the roster clerk, who immediately told him that she had just received an inappropriate email from him, saying that he was homosexual. As soon as the plaintiff got off the phone from the roster clerk, he asked the officers around him if they had sent the email, and they said they had no knowledge of it. The plaintiff then received a series of telephone calls from his superiors in the Department.
5 The plaintiff was directed to go to the office of the acting security co-ordinator, Mr Paine, which he did.
Mr Paine showed him the email and showed him that it had been sent to many people; the plaintiff’s impression was that it had been sent to “hundreds if not thousands” of people.
6 The email said: hello people, just a note to say that i am a homosexual and i am looking for like minded people to share time with
8
The email had been sent from Mr Tassone’s email account, and was signed with his electronic signature.
7 Mr Tassone said, in evidence, that his email account had been set up so that the electronic signature automatically appeared on all emails sent from his account.
9
There is no doubt, and I find, that Mr Tassone did not compose or send the email.
10
The identity of the person who sent the email was investigated. Mr Nelson, the Investigations Officer for the Department, was the lead investigator, and he was assisted by Mr Muller, an officer of the Investigations Unit for the
Department. Mr Nelson and Mr Muller conducted interviews on the afternoon of
Monday 18 July 2014, including interviews of Mr Tassone, Mr Kirkham and
Mr Murti.
11
In the course of the interview on 18 July 2011 of Mr Kirkham by
Mr Nelson and Mr Muller, in the presence of Mr Knipe, a Public Service
Association representative, the following exchange took place (TN is Mr Nelson and SK is the defendant): 8
7
6
5
Transcript pp 23-30.
Transcript pp 30-31.
Exhibit P2.
8
Exhibit P14 pp 2-7.

[2014] SADC 134
4
TN: Ok. Now as we discussed a minute ago off tape I’m making some enquiries about an email…
SK: Mm.
TN: That was sent in the name of Cosimo Tassone…
SK: Mm.
TN: This morning at about, about 10.43am and I’ve got a copy of that email here. Just looking at that email what could you tell me about it?
SK: Well, I, I, I’ll just, I’ll take full responsibility for that email, ok.
TN: Ok, are you telling me that you sent, made, made and sent that email?
SK: I take full responsibility for the email.
…
TN: So were you, did you see Mr Tassone in the, in the office that morning…
SK: Oh yeah.
TN: Around that time?
SK: I was, many, in and out of yeah.
TN: I understand that around about this time or slightly before he left the office and went out and spoke to a prisoner?
SK: That’s possible yeah, yeah I can’t, I can’t say that didn’t happen but I don’t, I don’t, if he said that he did that then that’s fine yeah.
TN: Ok. So when you were at the computer who else was in?
SK: Mr Murti.
TN: Mr Murchie?
SK: Murti, M-U-R-T-I I think.
TN: Ok.
SK: M-U-R-T…
TN: I think that’s his first name isn’t it?
SK: No Sukendra.
TN: Oh Sukendra is, Mr Murti.
SK: He was in the office on the phone.
TN: On the phone. And how did you go about doing this email?

5
[2014] SADC 134
SK: Well I was looking at the JIS and I shut the JIS down and I was on the JIS on my cop, cop as we, on my own cop so I, I can’t remember if I opened up the email or the email was already open but sent an, that email to an individual not global but apparently it’s gone global but if that did, if that was the case it was a pure mistake on my part.
TN: Ok. Do you remember who the individual was you sent it to?
SK: Oh no, you open up the address book…
TN: Mm hm.
SK: And you’re flicking through your names, I couldn’t find the person that, so I don’t know what happened there it must, I must….to put it very bluntly I must have fucked it up and I sent it globally.
TN: Ok.
SK: But I don’t know how that happened.
TN: You don’t recall hitting a global address?
SK: No, no.
TN: Or a number of global addresses?
SK: I didn’t even know you could do that, cos I’ve, I have been, see what happens is,
I’m not telling like I’m not giving any names here but…
TN: Mm.
SK: It does happen a lot in the ARC, that you’ve, you inadvertently leave your log on, people do jump in unfortunately and send unfortunate emails to people but, and that was my intention to do exactly that.
TN: Ok.
SK: But the fact that it’s actually reached out as far as it has was a complete not good why would I, it was just a fuck up I’m sorry that happened, I accept full responsibility and whatever happens from now on that’s, that’s fine.
TN: Ok so am I right in saying that you, you…
SK: I was messing around with it.
TN: You, yeah you were messing around, you typed up the lines…and then you tried to send it to a person?
SK: Yep and I couldn’t find the person that I wanted to send it to.
TN: Ok.
SK: And, but I started flicking on names and flicking off names and was looking and I thought should I send it to him, should I send it to him, I won’t send it to him, I might send it to him and I was doing all of that and then, I know it sounds really

[2014] SADC 134
6 stupid but it just got sent. But I never, I never sat down and thought I’m going to send this out globally so that the Minister and everybody else gets one.
TN: Mm.
SK: For there would be no mileage in that for me but that has happened and so I have to accept the consequences of it.
TN: So what was the purpose of this?
SK: It would be generally well just an amusement thing, generally, cos I’ve had them sent to me, I got an email last week off a supervisor which I’m not going to name but, that he sent to all the other supervisors but I was a big fat useless git and the supervisor’s emailed me back and said well what’s new. But that’s just…
TN: Mm.
SK: I know it’s the culture that’s what happens.
TN: Mm.
SK: Unfortunately.
TN: Yeah so it was…
SK: Just amusement just a, that’s what the intention was but unfortunately…
TN: So it was a bit of a joke that’s gone wrong?
SK: Yes it has gone wrong…
TN: Yeah.
SK: Unfortunately and a fact that I did, I messed up.
TN: Do you want to name the person you were going to send it to?
SK: I don’t think there’d be any mileage in that.
TN: Ok that’s your decision. Is the person that you were going to send it to a, someone who’s like a friend of yours…
SK: Yeah.
TN: And Cosimo Tassone?
SK: All of us, all of us yeah.
TN: So it would have been a joke…
SK: Yes, yeah.
TN: On Mr Tassone?

7
[2014] SADC 134
SK: Yes it would have been laughed upon immediately and just taken as a…it, yes and we wouldn’t be standing here right now.
TN: Ok. And are you aware that emails sent must comply with the Act?
SK: Yes absolutely.
TN: Ok. The general public sector aims and standards and the ethical control, ah sorry ethical conduct guideline, the DCS code of conduct and the principles of equal opportunity legislation and must not expose users, recipients of DCS to legal liability.
SK: Well I don’t know it line for line but yeah I do know the nuts and bolts of it yeah.
TN: Ok. And it says, says in the policy that you do not send, send, store or display any email which contains any material which may be perceived as being defamatory, harassing, intimidating or offensive to others?
SK: Yep. Correct.
TN: Harassment including sexual harassment, involves a range of uninvited or unwelcome behaviours and includes racially or sexually based jokes or innuendos displaying sexually graphic material, using offensive language and making belittling statements about others. So you’re, you’re fully aware of that?
SK: I’m fully aware that that is, that’s…
TN: Ok.
SK: Yeah, yep.
TN: Ok. Alright does any, did any, was anyone else aware that you were doing this at the time?
SK: Not that I know of no.
TN: Was it something you did of your own, off your own back?
SK: Yeah absolutely…
TN: Right.
SK: Not involved anybody else no.
TN: Ok.
SK: No.
TN: Alright is there anything else that you wanted to say about the matter?
SK: All I can say is that I didn’t intentionally set out to cause this global thing, it was only supposed to be a joke, bad joke alright fair enough, bad joke. But I’ve had it done to me so that’s, I’m not saying I did it just because they’ve done it to me. I mean it’s just a culture in the Department, in this particular Institution that if you

[2014] SADC 134
8 do leave your JIS on your log on people do jump on and they might change your desktop picture to something unsavoury or, or do this.
12
In evidence, Mr Kirkham said that he went home that evening and told his wife that there had been an incident at work that day, and that he had “taken the rap” for it, even though he had not done it. He told her that he believed that the consequences would be minor. She disagreed, and advised him to retract his admissions.
9
13
The next day, 19 July 2011, Mr Kirkham sought a further interview with
Mr Nelson, which took place at 11:45am in the presence, again, of Mr Muller and Mr Knipe. The following is an extract from that interview: 10
TN: Stephen yesterday we had a conversation…
SK: Yes.
TN: In regards to an email and I believe that you wanted to say something to me about that conversation that we had. Perhaps you could do so in your own words?
SK: Yeah the conversation I had with you yesterday, ah today um, for the following reasons I want to fully retract that conversation that we had yesterday on the 18 th
.
I felt that I was coerced it, I felt that I was in a rock in a hard place anyway and I am a little bit hot blooded I mean I am a little bit so that’s why I said what I said…but........
TN: Ok now as I said to you yesterday…
SK: Yes.
TN: And I, I just need to advise you of your rights.
SK: Yes.
TN: That I’m going to ask you some questions and provide you with the opportunity to respond to allegations of misconduct.
SK: Right.
TN: You do not have to answer the questions, I advise however that should you choose not to answer my questions the Chief Executive or a delegate may act on the basis of evidence available and form a view that you are liable to disciplinary action pursuant to the Public Sector Act 2009 . Do you understand that?
SK: I do understand that yeah.
TN: Ok so firstly you’re, what you’re telling me is that you made a statement to me yesterday that was false?
SK: Correct.
9
Transcript pp 383-384.
10
Exhibit P15 pp 1-6.

9
[2014] SADC 134
TN: And you mentioned to me that you were coerced into making this statement?
SK: I felt I was yeah.
TN: By who?
SK: The other officer’s that felt aggrieved that they were under the spotlight.
TN: And who were those other officers?
SK: Oh mainly Mr Murti, I wasn’t coerced by anybody else it…
TN: Ok.
SK: Allright.
TN: And can you tell me what Mr Murti said or did or his actions were?
SK: Alright he said I shouldn’t be here, this is, cos I, this is nothing to do with the situation but I think he’s got aspirations of supervisory positions which is fine and no problem there, but said I shouldn’t be here and if you don’t put your hand up to it then I’ll just tell them that I saw you doing it anyway cos I was on the phone behind you. And I thought well that’s impossible but if I never did it he couldn’t have seen me doing it if I never did it. But then, obviously as you think on,
Mr Tassone’s email page was open, he left it open. So I thought to myself oh fucking hell, it doesn’t leave much to the imagination does it.
TN: Right so what you’re telling me is the whole story that you made up yesterday was a fabrication?
SK: Only the part of where I send the email, everybody, every, everything else was the same.
TN: So you told, you told me how you sent it, how you looked for a person on there?
SK: Oh look, yeah I didn’t do it, I didn’t, to be honest with you I’m not, alright I’ll be honest with you, he left the page open and it did cross my mind for a few seconds, that’s what everybody else does. They love other people leaving their emails open so they can send a joke here but I never proceeded with that.
TN: Ok so what, this email was allegedly sent at 10.43am…
SK: Oh yeah well.
TN: What, do you remember what time you would have gone in there prior to that?
SK: I don’t, I don’t know exactly.
TN: You told me that you made an entry on the JIS or accessed the JIS?
SK: Yeah I did, yeah well I logged on to my cop.
TN: Ok and what did you actually do then, who did you look at on the JIS.
SK: M (prisoner’s name).

[2014] SADC 134
10
TN: M (prisoner’s name). Now I’ve got a printout of the JIS.
SK: Oh that’s fine yep.
TN: Yeah and it tells me that at 10.29am.
SK: Mm hm.
TN: That you accessed list case notes for M (prisoner’s name)?
SK: Yeah I did I, Miss Whiteley asked me to have a look so I did.
TN: Ok. What did you do after that on the JIS?
SK: I shut it all down, the whole system down, I never left it open I wouldn’t leave, he left it open by, I could have put it back to the original whatever it was…
TN: Yep.
SK: But I just shut it down to the blank screen.
TN: You shut down the JIS?
SK: No I shut down the whole lot down to nothing.
TN: Ok.
SK: I exited…
TN: Ok.
SK: All screens.
TN: Ok at 10.29 and 52am it says that you accessed a F (prisoner’s name), list case notes.
SK: F (prisoner’s name), he’ll be in our unit.
TN: Did you, do you recall accessing…
SK: Yeah probably, if he’s in the unit I might have had it up. Is he in unit 4?
He should be.
TN: No I don’t know what units he’s in.
SK: No, yeah.
TN: So you didn’t actually close it down after you…
SK: No, but I mean I closed it down after I logged off the JIS.
TN: Alright.
SK: Not just, yeah.

11
[2014] SADC 134
TN: How long after accessing M (prisoner’s name) do you think you closed the system down?
SK: Oh I don’t know, a minute or so, couple of minutes perhaps, not exactly…
TN: Ok it says…
SK: Well not long I wasn’t there for ages.
TN: Right it says here at 10:30am and 14 you had, sorry, 10.30 and 02 that you, there was an offender list…
SK: Mm.
TN: That you looked at and then at 10.30 and 14 there was a list of case notes for a prisoner by the name of B (prisoner’s name). Do you recall doing that?
SK: Probably is he’s in the unit yeah, yes. Don’t remember looking up B
(prisoner’s name) thought but it would be quite possible that I did because he was in, he’s in my, he’s in my unit yeah.
TN: Alright at 10.31 and 48…
SK: Yep.
TN: You looked at list case notes for, sorry I’ll go back, 10.30 and 27 you looked through case notes for D (prisoner’s name).
SK: Mm.
TN: Do you recall doing that?
SK: Possibly, yeah, yeah to look at his remarks, his recent remarks.
TN: Right. At 10.32 ah 31 and 48 you looked at case notes for JD (prisoner’s name).
SK: Yep.
TN: And at 10.32 and 51 there was an enquiry case notes on JB (prisoner’s name).
SK: Oh yeah cos that was the incident with M (prisoner’s name).
TN: Ok. So when, would have been when you shut down the JIS?
SK: If that’s the last entry then yeah.
TN: Yeah.
SK: Because I don’t leave my entries up, I don’t leave my screen up.
TN: Ok so what did you do after you accessed the JIS?
SK: And after I shut it down?
TN: Yep.

[2014] SADC 134
SK: I left the u…..,I left the office.
12
TN: Ok.
SK: I sat back down again.
TN: How long after you, how long do you think it took you to shut down and get out of the office?
SK: Oh thirty se, I don’t know to be honest just…
TN: Were you there for like a minute or two minutes or?
SK: Maybe.
TN: Less?
SK: To shut down and to leave the office yeah.
TN: Ok.
SK: I didn’t sit there I, I didn’t shut down and sit there because actually I re, I re, I came up because Murti was on the phone, I think it was a personal, like an outside call so
I left yeah.
TN: So, so at the time that you were in there working on the JIS Mr Murti was in…
SK: Yes he was.
TN: In the office?
SK: Yes he was yeah.
TN: Were there any other staff present in the office?
SK: No there wasn’t no, no other staff present.
TN: When you left the office where did you go?
SK: I sat down outside on the mezzanine or I may have leaned over the mezzanine. I don’t know if I sat down or I just leaned on the handrail.
TN: And how, how long did you stay there for?
SK: Probably till lock down, oh no and then a phone call came through and I had to phone the kitchen about, and I couldn’t get onto the phone because Mr Tassone was in there and he was using the phone, like he was getting phone calls all the time so.
TN Alright so you, you shut down the JIS…
SK: Yes.
TN: You went out for a while…

13
[2014] SADC 134
SK: Yes I did.
TN: And then Mr Tassone must have come back into the…
SK: Yeah I don’t know where he was while I was on the….
TN: Yeah.
SK: I didn’t know it, I’m assuming he was outside in the area somewhere and then phone calls started to come in, I think one came from Rachel Whiteley I believe, I think. And then there was some major problem or what may have happened, you could detect there was a problem and I just said to him I’m not even going to take the phone call but I want to phone of the kitchen and then he was sent out of the unit to see Stephen Raggatt.
TN: Who was?
SK: Ah Tassone.
TN: Tassone.
SK: He was advised to go up and see him.
TN: Mm hm.
SK: Which I believe he did. Then I never used any of the systems or phone thereafter until, until the lockdown.
TN: So…
SK: Oh I did phone the kitchen sorry, I phoned the kitchen.
TN: Yeah sorry so Tassone was in their using…
SK: Yeah
TN: On the phone?
SK: I think he was fielding phone calls.
TN: Yeah ok. And he then left to see Mr Raggatt? How long, how long do you think, think that was?
SK: Twenty minutes or so.
TN: Right. So in that 20 minutes would be the time that the email was sent?
SK: I don’t, well yeah, that’s fine. Oh yeah I’m not disputing any of the timings…
TN: Mm.
SK: Or any of what you’ve just said…
TN: Mm.

[2014] SADC 134
14
SK: I’m not disputing any of that but all’s I’m saying is that everything that you just said I did but I didn’t send that email
TN: Mm.
SK: I’m sorry but I didn’t send…
TN: So dur, af, from the time that you sent the email, sorry, I’ll just retract that, from the time that you operated the JIS…
SK: Yes.
TN: To the time that Mr Tassone left the office…
SK: Mm.
TN: Was about 20 minutes, approximately.
SK: Well yeah, oh yeah but don’t, don’t nail me to the wall I…
TN: Yeah.
SK: I think there was a lot of coming and going and coming and going and there’s phone calls coming in and out, like, like now I could say now that obviously some shit hit some fan somewhere.
TN: Mm.
SK: And then somebody, Greg Paine I believe rang up he said you’ve got to go and see
Steve Raggatt and you’ve got to go and see him right now. That kind of, and then off he went.
TN: So would we say that that was about the email, that he went to see Mr Raggatt?
SK: Well now, yeah now I can yeah.
TN: Yeah, yeah. How many officer’s were in the unit at, after, at the time and just immediately after you accessed the JIS?
SK: Probably, well, probably three and a supervisor.
TN: Ok.
SK: Possibly, I don’t if Graham was, Graham comes in and out, alright if it wasn’t
Graham in there it would only be four of us.
TN: Ok can you name all the officers?
SK: Yes I can, I can name Glen Harmer, Sukendra Murti, Tassone that’s before he left and me.
TN: Alright. And the supervisor was?
SK: Oh and Rachel Whiteley sorry was in there but she’s a CMC.

15
[2014] SADC 134
TN: Ok well where was she at the time?
SK; Oh she was in and out the office and I don’t believe when, like probably another word, the shit hit the fan, she was, I don’t think she was, and I think she was in her office ringing him.
TN: Right. And what about Mr, the, the supervisor?
SK: Yep. It’s better, you’d have to rewind the tapes or something, I, I can’t he just comes and goes and I don’t think he was in but he might have been, you’d have to ask him obviously yourself but I can’t remember seeing him but he could have been there.
TN: Ok.
SK: But he certainly wasn’t in the office, he, if he was there he would have been sat outside.
TN: Mm.
SK: Cos there’s only two people in that office and that was me and Murti, he was on the phone and I was on the JIS.
TN: Do you have any suspicion about who it was that sent the email?
SK: Yes I do but my suspicion doesn’t carry any weight in this investigation.
TN: Why do you suspect a particular person?
SK: But that’s just my opinion isn’t it, I prefer not to, because I don’t know, because that’s on tape as well so I shouldn’t really, I can’t, it’s not really fair for me to voice my opinion. And they’ve got opinions about me some people might say oh, as soon as this came about I was outside and at least ten officers said oh we know you did it, like straightaway you know because I do, I have done daft things in the past. Not of this nature but I am known as a person who does like practical jokes and stuff like that so. And he, certain other officers they have their own sort of, sort of reputations.
TN: So you don’t want to name this person?
SK: I can’t because I’d only be naming it on just my pure, pure, my pure opinion, the big, there’s nothing to back it up. If I, if I said oh I think it was, I don’t want to say it, because if I said I think it was Mr Tassone that did it, I never saw him do it. I could say it was anybody couldn’t I, the guilty person might lay it on anybody.
But I haven’t just opened it and like you’ve just said if this does get fully investigated it does go down, all these times are all set up and everything and hopefully you will get to the end result. That’s why you want right…
TN: Yeah.
SK: That’s what the Department wants?
TN: Are you suggesting that there’s a possibility Mr Tassone might have sent it himself?

[2014] SADC 134
16
SK: Look I’ll put it this way yeah, a certain officer came in straight away I think Mr, somebody relieved Tassone when he went to go and see Mr Raggatt and said somebody and I don’t know what he meant by this you’ll have to, somebody had just handed him the golden ticket.
TN: An officer said that?
SK: No actually higher than an officer just said that.
…
14
In evidence, in Court, Mr Kirkham said that prior to his first interview with
Mr Nelson, on 18 July 2011, he and Mr Murti and Mr Harmer had been instructed to wait together in a room. Various people, including Mr Knipe, appeared from time to time to advise them and discuss the matter. The defendant estimated that he was in the room with Mr Murti and Mr Harmer for between
90 minutes and two hours. He said that it was a tense situation. Mr Murti was pacing. Mr Kirkham gave the following evidence: 11
Q All right, so just going back to Mr Murti when he approached you in the way you have described to her Honour, did he say something to you then.
A He sat next to me with the 40cm away [sic], but as he spoke to me, see, the gap narrowed slightly and he said to me, his words were “You better go in there and own up. Otherwise, I am just going to tell them I seen you doing it anyway.”
Q What was the tone of his voice.
A
I would have to say that it was cold and calm. It wasn’t –
Q
It wasn’t a raised voice.
A
No, it wasn’t even an angry voice. I can’t really describe it. It wasn’t angry and it wasn’t raised. It was just clinical, perhaps.
15
It was this exchange which Mr Kirkham characterised as coercion to make a false confession, both in his interview with Mr Nelson on 19 July 2011 and in evidence.
16
In evidence, Mr Kirkham gave yet another version of his activities on the computer on the morning of 18 July 2011. In evidence, Mr Kirkham said that when he entered the office after Mr Tassone left, Mr Murti was standing in the office and may have been eating. He said that the computer was logged on, with the email page displayed. Mr Kirkham said that he clicked on the JIS and logged on to it, over the top of the email. The JIS screen is black with mostly green writing. The telephone rang, Mr Kirkham answered it and it was for Mr Murti, so he handed it to him. Mr Kirkham continued looking at the JIS, but formed the view that it would be best to give Mr Murti privacy for his telephone call, so he
11
Transcript pp 376-377.

17
[2014] SADC 134 terminated the JIS, left the office and performed a “Unit walkaround”.
12
Mr Kirkham said that he felt Mr Murti needed privacy even though he was speaking on the telephone in “Indian” and not English.
13 Later in examination in chief, extracts of his second interview with Mr Nelson with respect to his activities on the computer were put to Mr Kirkham and the following exchange took place: 14
Q You will see there’s a question and answer where in the course of your answer, you talk about whether you had thought about it in the context of whether you may have been inclined to send the email.
A Yeah, I read that, that’s correct, yeah.
Q You can see that written there.
A Yeah, I can.
Q You accept that that was said by you as it appears in the transcript.
A Yeah, I do, that’s correct, yeah.
Q Can you now remember saying that. Can I just put that another way, perhaps.
Do you accept that that is an accurate transcript.
A I do accept that that’s correct, yeah.
Q Was it the case that you thought about it or is that not–
A That is not the case. I never thought about doing anything like that, no, I didn’t.
Q So are you able to assist her Honour as to why you might have said something along those lines in the second interview.
A I felt that this particular interview didn’t start off– started off quite aggressively towards me. I felt he didn’t engage with me, he didn’t– he dismissed what I was saying.
Q When you say “aggressive”, what, is it something that he said that causes you to say that.
A He said something like “So you [sic] previous statement was a complete load of lies?” or something and I thought he wasn’t going to be conducive to what I was going to say, so he felt quite angry that I was even there doing what I was doing.
The reason why I said what I said there, I can’t explain why that was said.
That certainly wasn’t the case and I obviously said it because it’s written there.
Why I said that, I don’t react brilliantly under stress. I must have– I can’t explain it, why I said that.
12
Transcript pp 356-361.
13
Transcript p 397.
14
Transcript pp 386-388.

[2014] SADC 134
18
Q If you go down to the bottom, there is a topic which starts off about when you finished on the computer, you have previously given some evidence to her Honour that you terminated the JIS–
A Correct.
Q – and returned it to the task bar. Now, there is recorded in the transcript reference to you telling Mr Nelson that you didn’t merely terminate the JIS but you shut it all down.
A Correct.
Q Now, again, your evidence has been to her Honour that you didn’t shut it all down.
A Correct.
Q You just returned it to JIS, so again, I would ask you to explain to her Honour why you would have said that when that wasn’t the case, on your evidence today.
A At the time, I felt that Mr Nelson obviously was dismissive and aggressive towards me. I felt that he was trying to trap me into an admission of leaving a security breach, because I left– I did leave the computer the way I found it, so I thought – why I said that, that’s not a correct statement. I did not shut it down. I just incorrectly felt that Mr Nelson was trying to trap me into a security breach.
Q His failure to shut it down, why you say to her Honour that that is a security breach.
A Because I had left the computer the way I found it and the computer was left in a compromised state and I basically felt that I could be held accountable because I had left it that way.
HER HONOUR
Q What was on the computer screen once you logged off JIS.
A It was the email page of email Outlook, and it was the page that was on when
I entered the office. The JIS, the bottom icon, I clicked on it and just the page shot up. I minimised it back down, I left it exactly how I found it.
Q Yes, which email page, though.
A I couldn’t –
Q Because the Outlook has got a number of pages, hasn’t it.
A Yeah. I think it was the page where it has the column down the side with “inbox”,
“outbox”, “emails sent”, “emails received”. On the top, it was just the tools and stuff.
Q What was on the right- hand side of the page.
A I couldn’t recall sorry
XN

19
[2014] SADC 134
Q Sorry, just to clarify her Honour’s question, when you first came into the unit that morning when Mr Tassone left and you accessed JIS, her Honour has just asked you to describe how the screen looked when you terminated the JIS. Could you compare how it looked then with how it looked when you first –
A After Mr Tassone had vacated the computer that morning.
Q
Yeah, that’s correct.
…
17
The recording of the second interview of Mr Kirkham by Mr Nelson was replayed in Court. At no time in the course of that interview was Mr Nelson aggressive or unpleasant in any way.
18
In his interview with Mr Nelson on 18 July 2011, Mr Murti said that, at about 10.43am that day, he had been on the phone in the office in Unit 4 when the plaintiff left the office to speak to a prisoner. He said that “Officers walk in and out”, but that he could not recall seeing anyone use the computer. He said that he did not use the computer.
15
19
After the defendant retracted his confession, Mr Murti was interviewed again by Mr Nelson, on 20 July 2011. The following exchanges took place: 16
TN: What he [the defendant] said to us, he said he believes that he was coerced into saying that he did it in the first instance and what he said involves yourself, so I wanted to ask you a couple of questions about that.
SM: Mmm.
TN: He said that, as I said, he was coerced and I said and who were the Officers that did that and he said mainly Mr Murtie, I wasn’t conversed [sic] by anybody else.
SM: MMM [sic].
TN: Would you like to make a comment about that?
SM: I did not coerced [sic] him, we were sitting out here that day and definitely I said to him, I didn’t do it, because I didn’t touch his email or anything like that so whoever has done it, come out honestly and go and tell them that whoever has done it, instead of dragging us with it.
…
TN: Okay. Now what he said to us is that you said that you shouldn’t be here, being at the meeting that was held about this incident with the email, and you said if you don’t put your hand up, and these are his words, then I will tell them that I saw you doing it anyway because I was on the phone behind you. Do you remember making that comment?
15
Exhibit P24.
16
Exhibit P24.

[2014] SADC 134
20
SM: Mm, I was on the phone behind him; I said I will let them know what I have to do.
So I said someone puts their hand up whoever has done it.
TN: Ok. He said that you were quite upset with the fact that you were under the limelight, in other words that you were part of the investigation.
SM: I think we all were upset Terry. That day was a stressful situation because one of our colleagues email went out to everybody and I think, who wouldn’t be upset about that?
TN: He said that you were pacing up and down in the back room. Does that means [sic] this conference room?
SM: Yeh, it was in here.
KN: Yes.
TN: Yep, yep. Do you believe that you were pacing up and down?
SM: Not really, no.
TN: He said that certain people said, look for Christ’s sake, if anyone has done it, just walk in there and tell them that you did it.
SM: I think that was the goal for the day. I think everyone, we had the story, everyone said who ever has done it put their hand up now, otherwise it will be too late, so.
TN: He then goes on to say that you said, if you don’t go and tell them that you did it,
I will say that I saw you doing it myself.
SM: No, I didn’t say that. I said whoever has done it, go and tell them know, otherwise what I will have to do, I will do. And that’s all I said.
TN: Okay, did you see him on the computer?
SM: Yes I did.
TN: Did you see him preparing an email?
SM: Not really. I was on the phone call. I came back from training, which was hospital watch training. I came back. Mr Tassone was on the computer with his email.
He asked, he made a cup of tea. He asked me for, he was emailing Shared
Services. He asked me the spelling for Shares Services. I told him the spelling, and went out, sat out there and within that period, I don’t know what really went on, I had an outside phone call and Mr Kirkham was sitting on the computer on the desk and he called me and said Sukendra you have got an outside phone call. I got up, I was on the phone, he was on the computer at that particular moment.
TN: What, did you notice what program he had open at the time?
SM: He had, certainly he didn’t have the JIS on, he had the Windows open.
TN: What, was the email screen open?
SM: Ahhh.

21
[2014] SADC 134
TN: Are you familiar with the Windows screen?
SM: Yes I am, I am not really sure but there was a screen open on the screen, I didn’t really concentrate what was going on.
TN: It wasn’t the JIS?
SM: It wasn’t the JIS.
TN: Because the JIS is black.
SM: Yes.
TN: The email is white.
SM: Yes.
TN: Can you remember, well generally.
SM: Well I cant really recall but he was on the screen, doing something on the computer.
TN: Okay. And it wasn’t the JIS?
SM: It was not the JIS.
TN: Did you make the comment that you, to anyone in here when you were here and there was Mr Harmer and Mr Kirkham, yourself, I think Mr Knipe might have been here, I am not sure if he was here or not, but did you make the comment that you saw Kirkham writing an email?
SM: No I didn’t.
TN: But what are you telling me is that you are not sure what he was writing?
SM: I am not sure what he was writing.
TN: What.
SM: Because I was concentrating on my phone call.
TN: Yep, when he had that screen open, not the JIS, was he typing?
SM: Yes. He was on the computer.
TN: Okay and he was typing on the keyboard?
SM: Yes.
20
In evidence, Mr Murti recalled being in the office on the telephone whilst the defendant was using the computer, but, curiously, he recalled seeing the JIS screen rather than the email screen.
17 Mr Murti said, in evidence, that he recalled
17
Transcript p 313.

[2014] SADC 134
22 that he had used the computer after Mr Kirkham, and that he had had to log on to
Windows to begin, because the computer was completely logged off.
18 Mr Murti did not recall that he had been interviewed twice by Mr Nelson.
19
21
In his examination in chief, Mr Murti was asked questions about the
“blue code”, which he indicated was a code among Corrections Officers that they do not dob each other in, and that they support each other in a crisis. He said that he was not following the blue code. He also indicated that it was not as strong as it had been formerly among Corrections Officers.
20
22
Mr Duldig is a security analyst. He has a degree in computer science and mathematics, together with six years experience in information technology.
I accept that Mr Duldig is an expert in information technology. Various records showing the use of the computer in Unit 4 on 18 July 2011 were tendered through Mr Duldig.
21 These were summarised in a chronology of the use of that computer on that day, which was agreed between the parties.
22
303738- Kirkham v DCS
Chronology of activity on computer in Unit 4 Office at Adelaide Remand Centre (IP
ADDRESS:10.107.37.103) on Monday 18 July 2011
Item Time
1. 9:59:27am
Activity
Tassone logs into windows
Supporting Document
“COPCOT usage summary”
(DSC DOC #34)
Email from Tassone to
“SharedServicesSA:Payroll09”
2. 10:14am Email from Tassone’s
Outlook account is received by recipient
“SharedServicesSA:Pay roll09”
3. 10:28:02am Connection to JIS is established
4 10:28:37 Kirkham accesses
“Offendor List” on JIS
“Extract from usage of computer”
(DCS DOC #30)
“JIS Audit Log Report”
(DCS DOC #31)
“JIS Audit Log Report”
5 10:32:51am
Kirkham’s last activity on JIS (“Enquire Case
Note” for John Albert
18
Transcript p 289.
19
Transcript p 317.
20
Transcript pp 303-304.
21
Exhibits P17-P20.
22
Exhibit P21.

23
[2014] SADC 134
Item
6
Time
10:42:47am
Activity
Ballard)
Email is sent from
Tassone’s Outlook account
7 10:42:50am Email from Tassone’s
Outlook account is received by DCS Mail
Server
8. 10:43am
Email from Tassone’s
Outlook account is received by all recipients
Supporting Document
(DCS DOC #31)
Extract of “mail headers” for email from C Tassone
(DOC “PD3” FROM
STATEMENT OF P DULDIG)
Statement of P Duldig
(PARA 11.1)
9.
10.
11.
10:43:13am
10:43:16am
10:44:06
Tassone is logged out of
Windows
JIS Connection is terminated
Murti logs into
Windows
Printout of Email from C
Tassone
(DCS DOC #8)
“COPCOT usage summary”
(DSC DOC #34)
“Extract from usage of computer”
(DCS DOC #30)
“COPMSU usage summary”
(DSC SOC #36)
23
The gross inconsistencies between the various statements, and the evidence, of Mr Kirkham, and Mr Murti, reflects very poorly on the integrity of both of them. It seems to me that, despite his protestations, Mr Murti was attempting, in some way, at least on 18 July 2011, to adhere to the idea – perhaps the
“blue code” – that he should not “dob in” a fellow officer. He was also, as he admitted, influenced in his behaviour by his desire to keep a clear employment record to preserve his chances of promotion. It was for that reason that he lied to
Mr Nelson in the first interview about not having seen anyone on the computer whilst he was in the office on the telephone on the morning of 18 July 2011.
It was also for that reason that he denied that he had used the computer that morning, whereas the computer records show that he logged onto the system about one minute after Mr Tassone was logged off. There was no suggestion that
Mr Murti sent the offending email. The language in the email does not sound like him. I doubt, also, that it would have occurred to him to send the email, log off the system entirely and then log on again in his own name.

24
[2014] SADC 134
24
Mr Kirkham’s evidence was wholly unreliable. He was evasive and prone, in examination in chief, to attempting to avoid answering the question asked by discoursing on a different topic. He asserted that he had never sent an email from his account, though he had forwarded some.
23 A record of his email activity was tendered, which showed that he had, in fact, constructed and sent emails prior to 18 July 2011.
24 In addition, he clearly had, by May of 2011, a home email account. The explanation he gave to Mr Nelson in the afternoon of
18 July 2011 as to the way in which the email the subject of this matter came to be sent to a great many people by means of distribution lists, by use of the
Outlook address book, showed a reasonable level of familiarity with that process.
He attempted, during his second interview with Mr Nelson, to suggest that
Mr Tassone may have sent the email himself.
25 This is contradicted by the computer record, which shows that Mr Kirkham made a connection to the JIS before the email was sent and during the session in which Mr Tassone was logged on, and does Mr Kirkham no credit. I do not believe Mr Kirkham’s account of his conversation with his wife in the evening of 18 July 2011, and, it follows, I do not believe Mrs Kirkham’s account of their conversation either.
25
I find that Mr Kirkham was in the office of Unit 4 on the computer from about 10:28am until 10:43:13am on 18 July 2011. I find, on the balance of probabilities, that Mr Kirkham sent the offending email from Mr Tassone’s email account over Mr Tassone’s electronic signature. This is consistent with
Mr Kirkham’s statements in his first interview with Mr Nelson. It is also partly consistent with some of Mr Kirkham’s statements in the second interview, in that
Mr Kirkham said then that it was him who logged out of the computer completely.
26 It seems to me that, as Mr Kirkham became aware of more of the evidence in relation to the matter, particularly the evidence in relation to what could be discerned about the activity on the computer at the relevant time, he tailored his story to try to exculpate himself. Taking into account all of the evidence, though, it is clear that the defendant composed and sent the email.
26
Defamation
The email was published to all of the people on several distribution lists of the Department for Correctional Services and at least one distribution list of the
Department of Further Education, Employment, Science and Technology.
The single spaced list of the recipients of the email provided by Mr Duldig runs to 35 pages and lists approximately 2,300 recipients.
27 I find that Mr Kirkham must have clicked the word “Send” on the email, and that, by the time he did so, the distribution lists must have appeared in the “To” or address bar. Mr Kirkham published the email, and intended to publish the email.
23
Transcript p 416.
24
Exhibit D30.
25
Exhibit P15 p 10.
26
Exhibit P15 p 3.
27
Exhibit P16.

27
25
[2014] SADC 134
The email is obviously, from its face, sent from the plaintiff’s work email account, and that would have been obvious to all of the recipients.
The plaintiff’s electronic signature appears after the message on the email.
28
There was no suggestion that, prior to 18 July 2011, there was any stain on the reputation of the plaintiff. I assume that the plaintiff enjoyed a good reputation prior to 18 July 2011.
29
It is necessary to consider, as a matter of law, whether the published words, in their natural and ordinary meaning, were defamatory of the plaintiff.
28
30
It was pleaded by the plaintiff, in his second statement of claim, 29 that the meaning to be attributed to the email was as follows:
4. In their natural and ordinary meaning, the words in the Email meant and were understood to mean that:
4.1 the Plaintiff was a homosexual;
4.2 the Plaintiff was promiscuous;
4.3 the Plaintiff was of loose moral character;
4.4 the Plaintiff was seeking to solicit sexual relationships with persons he did not otherwise know;
4.5 the Plaintiff was a person who used his employment to solicit such sexual relationships;
4.6 the Plaintiff was a person who acted in an unprofessional manner in the course of his employment by using his employment email address to solicit such sexual relationships
5. Further or in the alternative, the words in the Email meant and were understood by the recipients of the Email to mean the meanings pleaded in paragraphs 4.2, 4.3 and 4.4 and 4.5 above by reason that the recipients knew of the extent of the publication of the Email.
6. By sending and publishing the Email, the Defendant thereby published words defamatory of the Plaintiff.
31
The email said: hello people, just a note to say that i am homosexual and i am looking for like minded people to share time with.
32
The natural and ordinary meaning of the email, as it was published, was undoubtedly that the plaintiff was professing to be homosexual and was seeking other homosexual people to “share time with”, which plainly indicates an interest
28
see Ling v Roberts [2012] SADC 136 at [90] and the authorities there cited.
29
FDN 8.

[2014] SADC 134
26 in forming relationships with any respondent to the email. All of the meanings attributed to the email in paragraph 4 of the second statement of claim are present in the email.
33
The next question to be determined is whether the natural and ordinary meaning of the email is defamatory. The following is a useful summary of the approach to determining that question: 30
The issue of whether a statement is defamatory is determined objectively in the context of current community standards. In some cases, reference is made to “right-thinking” members of the community.
31
This is not intended to suggest some moral majority, but rather a person of “fair average intelligence” community standards” not “sectional attitudes”
32 and is used in the sense of “general
33 and refers to ordinary decent persons.
34
34
In John Fairfax Publications Pty Ltd v Rivkin 35 Kirby J said:
In most circumstances, it ought not to be the case in Australia that to publish a statement that one adult was involved in consenting, private homosexual activity with another adult involves a defamatory imputation. But whether it does or does not harm a person’s reputation to publish such an imputation is related to time, personality and circumstance.
Once, it was highly defamatory in many countries to allege, or suggest, that a person was a communist.
36 Now, in most circumstances, it would be a matter of complete indifference. The day may come when, to accuse an adult of consenting homosexual activity is likewise generally a matter of indifference. However, it would ignore the reality of contemporary Australian society to say that that day has arrived for all purposes and all people.
37 At least for people who treat their sexuality as private or secret, or people who have presented themselves as having a different sexual orientation, such an imputation could, depending on the circumstances, still sometimes be defamatory.
35
The email clearly conveys that the plaintiff was homosexual. I do not consider, in the context of this case, that that aspect of the meaning of the email is, by itself, defamatory in the general community of contemporary South
Australia, or among the recipients of the email. The email also conveys the meaning that the plaintiff is promiscuous, is of loose moral character and is seeking to solicit sexual relationships with people he does not otherwise know.
I consider that those meanings are defamatory both within the community generally and amongst the recipients of the email. I also determine that the further meanings conveyed by the email; that the plaintiff was a person who was using his employment to solicit sexual relationships and was thereby acting in an inappropriate manner in the course of his employment, are also defamatory.
30
Patrick George, Defamation Law in Australia (2 nd
ed, 2012) 201.
31
Sim v Stretch [1936] 2 All ER 1237 at 1240 (Lord Atkin).
32
33
Slayter v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7.
Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 505-6 (Brennan J); Radio 2UE
35
Sydney Pty Ltd v Chesterton [2009] HCA 16 at [6]-[7].
34
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [40].
[2003] HCA 50 at [140].
36
cf Cross v Denley (1952) 52 SR (NSW) 112 at 114-115; Braddock v Bevins [1948] 1 KB 580.
Brannigan v Seafarers’ International Union of Canada (1963) 42 DLR (2d) 249.
37
cf R v Bishop [1975] QB 274 at 281.

36
27
[2014] SADC 134
The next step is to find, as a matter of fact, whether the ordinary, reasonable member of the class of recipients of the email (generally, public servants and other officers of DCS and DFEEST) 38 would have imputed the defamatory meaning to the words in the email. It was pleaded, on the defendant’s behalf, that it would have been obvious to the recipients that the email was communicated in jest or, alternatively, that the recipients promptly became aware that it was communicated in jest.
37
In Cornes v The Ten Group Pty Ltd & Ors 39 , a decision of the Full Supreme
Court, Kourakis CJ said: 40
51. The following is a useful summary of the attributes of the ordinary reasonable person: 41
The meaning of the words is to be determined by the sense in which fair-minded ordinary reasonable persons in the general community would understand the published words.
The meaning of the words cannot be determined by evidence from the plaintiff or the defendant, but only by the interpretation reached through the ordinary reasonable person’s understanding of the words. In determining this issue, it is vital that the tribunal of fact focuses only on the publication complained of and puts out of its mind the evidence relating to other issues at the trial.
The ordinary reasonable person is taken to be a person of average intelligence who approaches the interpretation of the publication in a fair and objective manner. The person is neither perverse nor suspicious nor ‘avid for scandal’. There is a limit of reasonableness, so that the ordinary reasonable person does not interpret the publications in a strained for forced or utterly unreasonable way.
The ordinary reasonable person does not live in an ivory tower, but approaches the interpretation of the publication in the light of the person’s general knowledge and experience of worldly affairs.
The ordinary reasonable person does not interpret the publication in a precise manner and does not formulate reasons for the meaning which is understood, but rather forms a general impression of the meaning from the words used. As a result, the ordinary reasonable person may imply meanings quite freely and will be prone to do so when the publication is derogatory. The interpretation is not approached in the same way that a lawyer might interpret the words, which would be in a logical, precise or analytical manner, or only draw implications if they are both necessary and reasonable.
52. In my view, the general knowledge referred to in that passage is a general knowledge of the ways of people and the world against which the words must be construed. It does not include esoteric information about previous episodes of
Before the Game or the comedic reputation of the comedians who appeared in the
28 June 2008 episode. To include information of that nature would be to allow a
38
Cornes v The Ten Group Pty Ltd & Ors [2012] SASCFC 99 per Blue J at [148]-[152].
39
[2012] SASCFC 99.
40
At [51]-[52].
41
P George, Defamation Law in Australia (Butterworths, 2006) 131.

[2014] SADC 134
28 defence which, in a sense, is the converse of the true innuendo that a plaintiff may rely on. But there is no real equivalence between the two. The gist of the plaintiff’s action is damage to reputation even if that damage be confined to a small section of the public with that esoteric knowledge. However, the question of how the persons with that constructive knowledge would understand the words remains an objective one.
38
In Cornes 42 Blue J summarised the authorities regarding statements published in jest, and concluded:
Whatever may be the position in equivocal statements generally, these authorities suggest that, if a person utters words which could and would be equally understood literally or in jest by reasonable viewers, and so understood are defamatory, the person will be liable in defamation.
39
The subjective intention of Mr Kirkham, as he composed and sent the email, was probably to make a joke. However, to know that, it would be necessary for the recipient of the email to assume that the plaintiff had neither composed nor sent the email, and also that the person who had composed and sent the email was doing so to make a joke at the plaintiff’s expense, rather than revealing a hidden truth about the plaintiff. This is in the context of the use of the government email, concerning which, it would be knowledge common to most recipients of the email, there are rules designed to circumvent precisely this type of use.
43 It seems to me that it is unlikely that the ordinary, reasonable recipient of the email would spontaneously have made the assumptions necessary to render the email harmless. The ordinary, reasonable recipient of the email would have imputed the meanings to the email pleaded by the plaintiff, all but the first of which, I have determined, are defamatory.
40
In the closing submissions in the defendant’s case, for the first time, the defence of triviality, with reference to the Defamation Act 2005 (SA), s 31, was raised. An application to amend the defence was made, and submissions were put that the defamation was trivial. I reject the application to amend. It was clearly made at much too late a stage. There was no evidentiary basis for it. If I am wrong about that, I reject the submission that the defamation was trivial.
There is simply no rational basis for that submission on the facts.
41
The defendant has never retracted nor apologised for the composing and the sending of the email. The Executive Director, Human Resources, Department for Correctional Services, sent the following email at 11.09 on 18 July 2011: 44
Earlier this morning an inappropriate email has been forwarded to a large number of receivers.
The matter is clearly in breach of the Department’s Code of Conduct and as such is currently the subject of an investigation.
42
Ibid at [198]-[203].
43
Exhibit P4 p 6.
44
Exhibit P3.

29
[2014] SADC 134
On behalf of DCS, please accept my apologies.
42
On the evidence before me, nothing further was done to address the offending email with the recipients of the email. It is not for me to comment about whether the matter was handled appropriately by the Department for
Correctional Services in the wake of the sending of the email. In the context of the action in defamation with which I am here concerned, the only relevance of the events subsequent to the sending of the email relate to the extent of the harm done and the quantum and type of damages to be awarded. In that context,
I simply note that nothing which was done in the immediate aftermath of the sending of the email acted as an antidote to the harm done.
45
43
The Impact of the email
The effect of the publication of the email on the plaintiff was severe.
In evidence, the plaintiff repeatedly described himself as being “in shock” in the days following the publication of the email.
46 It was immediately made clear to the plaintiff by his superiors in the Department for Correctional Services that the matter was being taken very seriously.
47 An investigation was begun that very afternoon. The defendant told the plaintiff prior to the interviews that he intended to “take the rap” for the sending of the email.
48 The plaintiff obtained permission to leave work early on 18 July 2011 because he felt that he could not face his fellow Officers at the end of the shift.
49 On his way home, his brother telephoned him to tell him that his sister in law, who worked at DFEEST, had received the email, and asked for an explanation.
50 That evening, he received telephone calls from some co-workers expressing concern.
51 He spoke directly to his sister in law by telephone, and she described the bewilderment with which the email was received by the people around her in DFEEST.
52 There was no evidence that anyone at all treated the email as a joke.
44
The plaintiff felt unable to attend work on 19 July 2011, and it was agreed that he would take sick leave.
45
The plaintiff went to see his parents on 19 July 2011 to explain the situation to them. He became emotional when giving evidence and speaking of this conversation. He said, of his parents:
46
With being Catholic and Italian, they are very strong on pride.
53
45
See Cornes v The Ten Group Pty Ltd & Ors [2012] SASCFC 99 per Gray J at [111].
46
Transcript p 32, 39.
47
Transcript pp 33-38.
48
Transcript p 40.
49
Transcript p 44.
50
Transcript p 44.
51
Transcript p 45.
52
Transcript p 46.
53
Transcript p 47.

47
[2014] SADC 134
30
Mr Tassone learned in the evening of 19 July 2011 from Mr Nelson that
Mr Kirkham had retracted his confession. This made him feel worse.
54
Mr Tassone stayed away from work because he continued to feel that he “could not face” his colleagues.
48
On Friday 22 July 2011, Mr Tassone saw his general practitioner,
Dr Floreani, and was prescribed an anti depressant. Dr Floreani also certified him as unfit to work until 22 August 2011. The medical certificate says that he was suffering from “acute stress/anxiety”.
55
49
The plaintiff has been taking anti depressants ever since 22 July 2011.
Initially they were prescribed by his general practitioner. By September 2011 a psychiatrist, Dr Gill, had begun treating the plaintiff.
50
Dr Gill gave evidence, and a series of letters and reports of his were tendered.
56 Dr Gill diagnosed Mr Tassone with Adjustment Disorder with mixed anxiety and depressive reaction. Dr Gill indicated that the disorder was caused by the sending of the email.
57 He described the effect on Mr Tassone as
“severe and disabling”.
51
From 19 July 2011 to 15 October 2011, Mr Tassone was absent from work and received workers compensation payments equivalent to his full salary.
52
From 16 October 2011 to 14 January 2012, Mr Tassone was absent from work and received workers compensation payments equivalent to 90% of his full salary.
53
From 15 January 2012 to 19 April 2012, Mr Tassone was absent from work and received workers compensation payments equivalent to 80% of his full salary.
54
On 20 April 2012, Mr Tassone returned to work at Community Corrections, supervising community work by offenders, on a trial basis. He was told by
Mr Raggatt, the general manager of the ARC, that it would not be appropriate for him to return to the ARC on account of industrial issues which had arisen.
58
Mr Tassone said that he began the return to work two days per week and then three days per week over a three month period. At the end of that time, he felt unable to continue. Although the pay grade of the position was the same as he had at the ARC, he felt that the work was demeaning.
59 Mr Tassone believed that, through no fault of his own, he had lost status, and had lost a position in which he was happy and was exercising the skills he had fostered and which he
54
Transcript p 48.
55
Exhibit P4.
56
Exhibit P22.
57
Exhibit P22 Letter of Dr Gill to Ian Milsom, Maloney and Partners dated 17 September 2012, p 3.
58
Transcript p 58.
59
Transcript p 61.

31
[2014] SADC 134 preferred to exercise.
60 I accept the evidence of Dr Gill that Mr Tassone’s inability to continue in the Community Corrections role was part of his
Adjustment Disorder.
61
55
In September 2012, Mr Tassone again returned to work, this time as a
Corrections Officer at the Pre-Release Centre, which is located next to the
Womens’ Prison. Mrs Kirkham works at the Womens’ Prison. Mr Tassone began at the Pre-Release Centre working for two half days per week.
He progressed to two full days. He began taking night shifts, which involved him in considerable adjustment. He progressed to four days/nights per week.
He began to enjoy the work. In March 2013, he entered into a contract for full time employment at the pre-release Centre. Two days later, the contract was terminated as a result of allegations made against him by Mrs Kirkham. Apart from the allegation that he spoke to co-workers about this case, which
Mr Tassone admits (on the basis that they asked him), Mr Tassone denies the allegations against him by Mrs Kirkham. He has not worked since.
62 Workcover payments have been made ever since at 80% of Mr Tassone’s former wage.
56
In a letter to Mr Kane, Department for Correctional Services, Dr Gill said, of the situation regarding the Pre-Release Centre: 63
I was disappointed to see that Cos’ job at the Pre-Release Centre had become untenable.
Of course, my disappointment was relatively minor compared to Cos’ own distress and frustration. I am not sure why this decision has been taken, but this is mostly because
Cos himself hasn’t really been given a full explanation, and I rely on Cos for information.
I understand it has something to do with allegations made by the wife of the person who himself sent the email that caused Cos initial distress. Cos states that he has yet to be given formal written information about these allegations and has therefore not had an opportunity to counter them. It is therefore not surprising that Cos feels highly aggrieved by this process.
This situation provided a dilemma for the next Workcover certificate. I want to make it clear that the reason that Cos is not working at the Pre-Release Centre is not due to his mental health, but directly due to the decision of management to preclude him from his contracted work role.
57
In his evidence Dr Gill indicated that Mr Tassone is still suffering from an
Adjustment Disorder, and is likely to continue to do so at least until the legal proceedings relating to the events of 18 July 2011 are resolved. This is so notwithstanding that, at least between September 2012 and March 2013 the
Adjustment Disorder was not so severe that Mr Tassone was wholly unfit to work.
64
60
Transcript p 63.
61
Transcript p 265.
62
Transcript pp 68-76.
63
Exhibit P22.
64
Transcript pp 265-266.

58
[2014] SADC 134
Damages
32
The plaintiff has sought damages for the economic and non economic loss occasioned to him as a result of the defamation, including aggravated damages and exemplary damages. The second statement of claim is unsatisfactory, in that it fails to particularise the heads of damage claimed. However, it was established in the plaintiff’s case that he has suffered a psychiatric illness as a result of the defamation. Personal injury arising from a defamation is compensable.
65
The case was conducted on the basis that the plaintiff’s psychiatric condition was a relevant consideration, so I will infer that the plaintiff is seeking damages for his psychiatric condition as a component of the damages for non-economic loss.
59
Defamation Act 2005
Neither exemplary damages nor punitive damages may now be awarded for defamation, pursuant to the Defamation Act 2005 s 35.
60
The Defamation Act 2005 , in s 32 says:
In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
61
Non Economic Loss
Pursuant to s 33 of the Defamation Act 2005 , damages for non-economic loss are capped at a figure published by the Minister (presently the
Attorney General) in the Government Gazette, although that figure may be exceeded where aggravated damages are awarded. The figure is presently
$366,000.
66
62
In Carson v John Fairfax & Sons Ltd & Slee (1993) 178 CLR 44 at para 32 the High Court Mason CJ, Deane Dawson and Gaudron JJ said:
Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that “the amount of a verdict is the product of a mixture of inextricable considerations” (Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR per Windeyer J at p 150). The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant’s personal and (if relevant) business reputation and vindication of the appellant’s reputation (Carson (1991) 24 NSWLR, a pp 296-299). The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant (Uren v John Fairfax and Sons Pty Ltd (1996) 117 CLR at p 150; Coyne (1991)
172 CLR at …. Vindication looks to the attitude of others to the appellant; the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant’s reputation. “The gravity of the libel, the social standing of the parties and the availability of alternative remedies” are all relevant to assessing the quantum of
65
see Bob Gilbert Motors Pty Ltd & Anor v South Australian Telecasters Ltd [1999] SADC D38 at
[269]– [273].
66
South Australia, The South Australian Government Gazette , No 33, 15 May 2014, 1642.

33
[2014] SADC 134 damages necessary to vindicate the appellant. (Fleming, The Law of Torts, 8 th
ed. (1992), p 595.).
63
In arriving at an award for damages for non-economic loss, I bear in mind that the email was published to about 2,300 people, which, although it seems like a great many people to the plaintiff, is a much smaller audience than the audience to a defamation published in a newspaper, or, potentially, online in a blog or other highly accessible form. I also bear in mind, though, that the specific audience to which the email was published included all of the employees of the
Department for Correctional Services, which was a very important part of the plaintiff’s life. It also included people with links to his family, so that the news of the incident spread rapidly throughout all areas of his life. The plaintiff enjoyed his status as a Corrections Officer. The effect of the defamation on his reputation has been severe.
67
64
I have found that the imputation that the plaintiff was homosexual, whilst false, was not defamatory. I have considered the effect of this on the quantum of damages for non-economic loss. It seems to me that the plaintiff’s personal distress relates to the entire email and has to do with having his sexual identity impugned, which arises from each of the imputations. The plaintiff is a family man, with a wife and children. The plaintiff’s distress also relates to the imputation that he would use his work email to solicit sexual relationships with people he did not otherwise know.
65
The effect of the defamation on the plaintiff’s work and life has been very severe. He has lost the job he enjoyed, and limitations have been imposed, industrially, upon his options for finding another. I bear in mind that the consequences of the defamation, and therefore Mr Tassone’s reaction to it, are complicated by factors such as the perceived attitude of the workforce at the ARC, the Pre Release Centre and Yatala Prison.
66
Mr Tassone’s mental state is affecting his home life.
68 No statement has been issued on behalf of the Department for Correctional Services to say that the plaintiff did not send the email, though I note that two articles in The Advertiser, published on 21 July 2011 and 4 August 2011, did make that clear. I also note the personal written apology provided to the plaintiff by Mr Severin, the CEO of the Department for Correctional Services on 11 August 2011.
69
67
The plaintiff has sought aggravated damages. Aggravated damages are distinct from exemplary or punitive damages, and are not proscribed by the
Defamation Act 2005 . Aggravated damages may be awarded as a component of non economic loss. Aggravated damages are given in respect of conduct of the defendant, either at the time of the publication of the defamation or subsequently,
67
See Rogers v Nationwide News Pty Ltd [2003] HCA per Hayne J at [69] “the amount awarded for defamation should reflect the effect which the particular defamation had on the particular plaintiff”.
68
Transcript p 99, 139.
69
Exhibit P6; Transcript p 202.

[2014] SADC 134
34 including at the trial, which has aggravated the effect of the defamation.
Here, Mr Kirkham has not only failed to apologise, he has, since the retraction of his initial confession, falsely maintained that he did not send the email.
Although he did not, when giving evidence, despite ample opportunity to do so, implicate Mr Murti in the sending of the email, his counsel, presumably on his instructions, sought to do so in his closing submissions. This constant changing of stories and denial of finality is having an ongoing detrimental effect on
Mr Tassone, on all of the evidence of Dr Gill and Mr Tassone. A component for aggravated damages will be included in the award for non economic loss.
68
Taking all of these matters into account, it seems to me that a considerable sum is appropriate on account of consolation, reparation, vindication and aggravation, together with ongoing psychiatric injury. I will award damages in respect of non economic loss, including the psychiatric injury and aggravated damages in the sum of $75,000.
69
I acknowledge that Mr Kirkham has been dismissed from his position with the Department for Correctional Services. The basis of this was not fully or consistently placed before me, and nor did it need to be. This is an action for damages on account of loss arising from the commission of a tort. There is no punitive element. Likewise, the resources of Mr Kirkham and the likely effect upon him of the payment of damages are not part of the consideration of the appropriate award of damages. Arriving at an award of damages is not like arriving at a fine in criminal proceedings.
70
Economic Loss
The plaintiff claimed past economic loss by way of lost wages of
$117,961.81 from 19 July 2011 to 6 March 2014.
70 No claim was made in respect of future economic loss.
The plaintiff also claimed $15,898.59 on account of medical expenses, pharmaceutical expenses, travel by Mr Tassone and gymnasium expenses to 21 January 2014.
71 It appears from the schedule prepared that the expenses have been paid for by the Department for Correctional
Services.
71
The defendant is liable for compensation for the plaintiff’s lost wages arising from the defamation. I find that the wages lost by the plaintiff from
19 July 2011 to 14 March 2013 were lost as a direct result of the defamation.
On the basis of the evidence of Dr Gill, I find that there was then an intervening event, namely the complaint of Mrs Kirkham and the response of the Department for Correctional Services in response to it, which caused the loss of wages subsequent to 17 March 2013. Mr Tassone was, at that point, fit to work, on the evidence of Dr Gill, but was prevented from doing so.
70
Exhibit P28.
71
Exhibit P29.

72
35
[2014] SADC 134
The plaintiff is entitled to an award for the wages he has lost as a result of the defamation, irrespective of the workers compensation payments made to him.
72 I will make an award of damages on account of economic loss for lost wages for the period from 19 July 2011 to 14 March 2013. I do not have sufficient information to arrive at a precise figure for those damages, so I will hear counsel further in that respect.
73
As to the expenses, I consider that the plaintiff is entitled to his medical expenses. I accept that, although the plaintiff was fit to work full time from
15 March 2012, he continued to suffer from the psychiatric injury occasioned by the defamation, and should be compensated for his medical expenses on that basis. A sufficient nexus has not been established between the gymnasium costs and the defamation on the evidence before me. The “travel expenses” have not been substantiated. Damages in respect of medical and pharmaceutical expenses will be awarded in the sum of $11,269.75.
74
Mr Kirkham received a letter from the Crown Solicitor’s Office dated
5 February 2014, which gave him notice, pursuant to s 54 of the
Workers Rehabilitation and Compensation Act 1986 (SA) , that the State of South
Australia would be seeking to recover the compensation paid by it to Mr Tassone from any award of damages made in this action. At the request of counsel for the defendant, I heard submissions from counsel on behalf of the State in relation to this issue. Counsel for the defendant argued that the matter should be approached on the basis that I should make a determination in this action as to whether the State will have an entitlement under s 54 of the
Workers Rehabilitation and Compensation Act 1986 once damages are awarded .
I reject that approach. The question of the entitlement of the State to recover under s 54 of the Workers Rehabilitation and Compensation Act 1986 does not arise in this action on the pleadings. This Court cannot make binding determinations in relation to that issue. It is not the task of this Court, in this action in defamation against the defendant, to deal with and finalise every aspect of this complex and unfortunate series of events. The task of this Court is only to hear and determine the action for defamation, as between the parties, both as to liability and quantum.
75
It was further submitted that the Workers Rehabilitation and Compensation
Act 1986 , in s 54(1), abolished claims for defamation in respect of a compensable injury under that Act. That section says:
54- Limitation of employer’s liability
(1) Subject to subsection (2), no liability attaches to an employer in respect of a compensable injury arising from employment by that employer except –
(a) a liability under this Act.
72
Francis Trindade, Peter Cane and Mark Lunney, The Law of Torts in Australia , (Oxford University
Press, 4th ed, 2007) 733-735 [15.3.12].

76
[2014] SADC 134
36
The purpose of this section is to limit an employer’s liability at common law in respect of a compensable injury. It says nothing about other tortfeasors.
77
Conclusion and Summary
The plaintiff was defamed by means of an email composed and published by the defendant from the plaintiff’s account within the Outlook program of their workplace, the Department for Correctional Services. The email was published to about 2,300 people, including the entire workforce of the Department for
Correctional Services.
78
The email conveyed the defamatory imputations that the plaintiff was promiscuous, was of loose moral character, was seeking to solicit sexual relationships with persons he did not otherwise know, was a person who used his employment to solicit such sexual relationships and was a person who acted in an unprofessional manner in the course of his employment by using his employment email address to solicit such sexual relationships. The email also conveyed the imputation that the plaintiff was homosexual but, whilst there is no evidentiary basis for that imputation with respect to Mr Tassone, the imputation is not defamatory in contemporary South Australia, the test being whether the imputation had an adverse effect on the plaintiff’s reputation, in the opinion of the hypothetical ordinary, reasonable recipient of the email.
79
The plaintiff has suffered severe personal hurt and distress, as well as significant damage to his reputation. He is entitled to an award for damages for non economic loss, including aggravated damages and damages for his psychiatric injury. Aggravated damages are appropriate on account of the conduct of the defendant in retracting his initial confession and in continuing to maintain, falsely, that he did not send the email. The defendant has never apologised to the plaintiff or retracted the content of the email.
80
The award for non economic loss will be $75,000. Interest is payable from
18 July 2011.
73
81
The plaintiff is also entitled to an award for economic loss, being compensation for lost wages from 19 July 2011 until 14 March 2013 and medical and pharmaceutical expenses.
82
The quantum of the award for economic loss will be determined after further submissions.
73
John Fairfax & Sons v Kelly (1987) 8 NSWLR 131; Stevens v Boyle [2012] SASC 232 at [63].