BONIFACE v SMEC HOLDINGS LIMITED and Others

Court of Appeal (NSW)|2006-07-24|Before: Beazley JA, Hodgson JA, Santow JA, Buddin J, Gleeson CJ

CITATION: BONIFACE v SMEC HOLDINGS LIMITED and Others [2006] NSWCA 351

JUDGMENT OF: Beazley JA at 1; Hodgson JA at 9; Santow JA at 16

DECISION: Appeal dismissed with costs except for ninth matter (see orders at [67]

LEGISLATION CITED: Evidence Act 1995 ss95, 98 and 100 Supreme Court Rules Pt 34 r8(2)

Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 Hocking v Bell (1945) 71 CLR 430 John Fairfax Publications Pty Limited v Rivkin (2003) 201 ALR 77 CASES CITED: Jones v Dunkel (1959) 101 CLR 298 Naxakis v Western General Hospital & Anor (1998) 197 CLR 269 Payne v Parker [1976] 1 NSWLR 191 Seymour v ABC (1977) 19 NSWLR 219 Swain v Waverley Municipal Council (2005) 220 CLR 517

Glen BONIFACE (Appellant) SMEC HOLDINGS LIMITED (First Respondent) PARTIES: Peter BUSBRIDGE (Second Respondent) Ross HITT (Third Respondent) Geoff PERCIVAL (Fourth Respondent)

COUNSEL: C A EVATT/ C J DIBB (Appellant) M J NEIL, QC/ D A CASPERSONN (Respondents)

SOLICITORS: S Moran & Co (Appellant) Baker & McKenzie (Respondents)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT DATE OF DECISION: 24 October 2005

LOWER COURT MEDIUM NEUTRAL CITATION: [2005] NSWSC 1099

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40256/05 SC 21012/01

BEAZLEY JA HODGSON JA SANTOW JA

8 DECEMBER 2006 Glen BONIFACE v SMEC HOLDINGS LIMITED and Others Judgment 1 BEAZLEY JA: I have had the advantage of reading in draft the reasons of Santow JA in this matter. I agree with his Honour's reasons and conclusions in respect of the emails dated 10 January 2001, 16 July 2001 and 20 and 25 July 2001, which have been identified in the proceedings as the fourth, fifth and sixth matters complained of. However, I do not agree with his Honour's conclusion in respect of the ninth matter complained of, being an undated letter written sometime in September 2001. 2 Santow JA has correctly identified the principle to be applied in determining whether a jury verdict may be challenged for appealable error. In short, the principle is that the jury's verdict constituted an answer "that no reasonable jury properly instructed could have given": John Fairfax Publications Pty Limited v Rivkin (2003) 201 ALR 77 per Gleeson CJ at [6]. 3 His Honour has analysed the similarities and differences between the publication constituted by the ninth matter and the earlier emails. I agree with his Honour's analysis. It reveals that the ninth matter was different in a number of respects from the earlier publications. The ninth matter was constituted by a letter, whereas the earlier matters involved publications by email. The letter was sent to Mr John Dawson of HSBC, whereas six of the emails, including those subject of the appeal, were sent to SMEC staff, at times via distribution lists and at times via individual email addresses. None of the emails had been addressed to Mr Dawson. 4 There was also an important similarity: the subject matter of the letter was essentially the same as the subject matter of the emails, namely, wrongful or illegal conduct by senior personnel within SMEC and SMEC's financial position. However, by the time that the letter was sent to Mr Dawson, there had been media coverage of the allegations, which had been broadcast on the ABC in July 2001. This allowed for the possibility that somebody other than the appellant would have been aware of the matters contained in the letter. 5 The question whether the appellant was the author of the ninth matter was a quintessential jury question. There were, as I have indicated, factors which pointed both ways. It was for the jury to decide whether, on the balance of probabilities, the appellant was the author of the letter. Given that there were factors that could have led to a conclusion either way, it was open to the jury to find either for or against the appellant on this issue. It found against the appellant. In my opinion, that finding was not so unreasonable that "no reasonable jury properly instructed could have given" that answer. It must be remembered that this was not a criminal trial, where the prosecution bears the onus of proving the guilt of the accused beyond a reasonable doubt. It was a civil trial. The plaintiff bears the onus in a civil trial, on the balance of probabilities, of ultimately proving the claim. However, evidentiary onuses may shift during the course of a civil trial: see Payne v Parker [1976] 1 NSWLR 191; Jones v Dunkel (1959) 101 CLR 298; see also Heydon, J D, 'Cross on Evidence' 7th ed, at [720]. 6 The evidence was such that it was available to the jury to draw an inference that the appellant was the author of the document. The appellant chose not to call any evidence, leaving it to the jury to draw such inferences as were available from the whole of the evidence in relation to the authorship of each matter, including the ninth matter. As I have said, I am of the opinion that it was open to the jury to draw the inference that the appellant was the author. 7 The effect of finding the jury decision on the ninth matter so unreasonable that no reasonable jury could have come to that determination would effectively require a jury to determine the matter as if on the basis of the criminal onus. Accordingly, I would dismiss the appeal with costs. 8 Since preparing these reasons, I also have had the advantage of reading the reasons for judgment of Hodgson JA, who agrees with Santow JA except in respect of costs. As the substantive orders in the matter will be those proposed by Santow JA, it is necessary to determine the costs order that should be made in the matter. In my opinion, the order proposed by Santow JA is the costs order that should be made on the appeal. 9 HODGSON JA: I agree with Santow JA that the appeal should be dismissed in relation to the first eight matters, and allowed in relation to the ninth matter, and I agree substantially with his reasons for this. I would add a few comments of my own. 10 Sections 95, 98 and 100 of the Evidence Act 1995 provide as follows: 95 Use of evidence for other purposes (1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose. (2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.

98 The coincidence rule (1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if: (a) they are substantially and relevantly similar, and (b) the circumstances in which they occurred are substantially similar. (3) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party.

100 Court may dispense with notice requirements (1) The court may, on the application of a party, direct that the tendency rule is not to apply to particular tendency evidence despite the party's failure to give notice under section 97. (2) The court may, on the application of a party, direct that the coincidence rule is not to apply to particular coincidence evidence despite the party's failure to give notice under section 98. (3) The application may be made either before or after the time by which the party would, apart from this section, be required to give, or to have given, the notice. (4) In a civil proceeding, the party's application may be made without notice of it having been given to one or more of the other parties. (5) The direction: (a) is subject to such conditions (if any) as the court thinks fit, and (b) may be given either at or before the hearing. (6) Without limiting the court's power to impose conditions under this section, those conditions may include one or more of the following: (a) a condition that the party give notice of its intention to adduce the evidence to a specified party, or to each other party other than a specified party, (b) a condition that the party give such notice only in respect of specified tendency evidence, or all tendency evidence that the party intends to adduce other than specified tendency evidence, (c) a condition that the party give such notice only in respect of specified coincidence evidence, or all coincidence evidence that the party intends to adduce other than specified coincidence evidence. 11 In my opinion, the case against the appellant in relation to the contested publications was based on the improbability that related events occurred coincidentally, the relevant "related events" being the publications otherwise proved or admitted to have been made by the appellant, on the one hand, and the remaining publications, on the other hand. The relevant similarities are those discussed by Santow JA. 12 The requirement in s.98 for a notice was not relied on below or on appeal, and can be disregarded. Had the point been taken, the primary judge may well have dispensed with notice under s.100. The requirement that the evidence have "significant probative value" probably does not change the general law, which requires in any event that conclusions of fact based on similarities of events be reached by way of reasonable inference and not mere speculation. 13 The line between reasonable inference and speculation is sometimes difficult to draw, and is so in this case. With some hesitation, I would draw it in the same place as Santow JA. There was no evidence supporting a conclusion that were no others apart from the appellant agitating against SMEC and its executives, so that the conclusion that he published the disputed publications rested squarely on the probative value of identifiable similarities of the publications themselves. In relation to all but the ninth matter, I think the similarities were such as to support a reasonable inference. 14 In relation to the ninth matter, in the absence of a rational basis for concluding that the appellant was the only person agitating against SMEC and its executives, I think any similarities in the publications themselves did not take the matter beyond speculation. In my opinion, the ninth matter should not have been left to the jury. 15 On the question of costs, in my view the exclusion of the ninth matter is a significant result for the appellant that could substantially reduce damages. The appellant had to appeal to achieve this result; and a general principle for the award of costs is that a litigant who has to come to court to achieve a substantial result is entitled to the costs of the proceedings, although this litigant may have to pay costs to the extent that they have been increased by the inclusion of severable issues on which the litigant failed. In this case, the appellant failed in respect of most of the matters, but these matters were not entirely severable and their inclusion did not result in a proportionate increase in costs. The hearing concluded in one day. We have not been told of any offer of compromise or Calderbank letter. I would order that the respondent pay one-quarter of the appellant's costs, and that the respondent have a certificate under the Suitors' Fund Act. 16 SANTOW JA: INTRODUCTION The four respondents were the plaintiffs in a s7A trial before the primary judge, Justice Buddin, and a jury which commenced on 21 February 2005 and continued until the jury delivered its verdict on 9 March 2005. The first respondent is SMEC Holdings Limited ("SMEC"). The remaining three respondents were executive directors of SMEC at the relevant time. 17 The respondents at trial alleged that the appellant, Glen Boniface, had published certain anonymous emails (the first to eighth matters complained of) together with an anonymous undated typewritten letter to the HSBC (the ninth matter complained of). The first matter in fact comprised two emails sent to a Mr Bill Bultitude. Both concerned management at SMEC. Both claimed to quote from an email mistakenly received by the author. The sixth matter also comprises two emails dated 20 and 25 July 2001. 18 For convenience I have appended all these in the form received, as an appendix to this judgment marked Schedule A to Schedule I. They span a period from 24 November 2000 (the initial pair of emails) to September 2001 (the anonymous letter). The letter attached an actual SMEC notice to staff from the company secretary dated 29 August 2001. I shall refer to it, for convenience, as the ninth matter. 19 The primary judge, by a judgment dated 24 October 2005, recorded his reasons for earlier declining the application of the appellant pursuant to Pt 34 r8(2) Supreme Court Rules for judgment on the basis that "on the evidence given, judgment for the [plaintiffs] could not be supported". The judgment sought was on the basis that the respondents could not establish that the appellant published the various communications, these being refined eventually to the fourth, fifth, sixth and ninth matters complained of. 20 The jury thereafter found that the appellant had published the nine matters being the eight emails and the letter. They further found that the nine matters complained of conveyed defamatory imputations of and concerning the respondents. 21 This appeal concerns the identity of the publisher, the appellant contending that the jury's verdict constituted an answer "that no reasonable jury properly instructed could have given"; John Fairfax Publications Pty Limited v Rivkin (2003) 201 ALR 77 per Gleeson CJ at [6]. I shall use the shorthand expression "perverse" to describe such a verdict, intending it to connote that more detailed elaboration. 22 The draft Notice of Appeal had originally sought orders that the verdicts of the jury that the appellant published the matters consisting of the third, fourth, fifth and sixth emails and the ninth matter be set aside. Subsequently, the appellant altered the grounds of the appeal to remove the third email so that only four of the nine matters are pressed, namely four, five, six and nine. The appellant contends that there was no evidence fit to go to the jury that the appellant published these matters and that the verdict of the jury in finding that the appellant published these matters was "perverse" in the above sense. 23 The appellant, who was the defendant in the original proceedings, is a former employee of SMEC whose employment was terminated on 17 January 2001. 24 Indeed so far as the first and seventh matters were concerned, these are now admitted as having been sent by the appellant. As I explain, this necessarily leads to the probable conclusion that the appellant sent the second and eighth matters also; at the very least it means that the jury's verdict could not be shown to be perverse in so concluding. Insofar as matter three is concerned, it contains a misspelling "Percivil" for "Percival", a misspelling which is common to the second matter (as well as matter eight). Matters two and three also cover similar subject matter. The result is that matters one, two, three, seven and eight must be taken in all probability to have emanated from the appellant. The question then is whether the jury's verdict attributing the appellant's authorship to the remaining four matters challenged (four, five, six and nine) can be set aside as perverse. 25 Counsel for the appellant indicated a fall-back position. It was submitted that the ninth matter, being uniquely a letter rather than an email and having other differences relied upon by the appellant, was not the subject of sufficient evidence to go to a jury so that the appeal should succeed in relation to the ninth matter at least.

SALIENT FACTS 26 These are essentially undisputed. 27 The defamation complaint concerned the nine anonymous communications (the emails and the last undated letter) earlier described, sent between 24 November 2000 and September 2001. The first four emails were sent while the appellant was employed by SMEC. The remaining four emails and the letter were sent after his employment was terminated on 17 January 2001. The ninth matter was a letter addressed to Mr John Dawson of HSBC, unsigned and undated. Annexed to the letter was a Notice to staff and shareholders of SMEC written by the company secretary dated 29 August 2001. 28 The dates on which each of the matters were published has some significance as will emerge, and were as follows: First matter: 24 and 30 November 2000 Second matter: 8 December 2000 Third matter: 19 December 2000 Fourth matter: 10 January 2001 29 The appellant's employment with SMEC was then terminated on 17 January 2001. Subsequently, five further matters were published, as set out below. An ABC radio broadcast on 15 July 2001 dealt with some of the allegations in the various emails and the letter. It took place the day before the fifth matter. The transcript of the broadcast was not in evidence. The remaining matters were as follows. Fifth matter: 16 July 2001 Sixth matter: 20 and 25 July 2001 Seventh matter: 3 August 2001 Eight matter: 15 February 2001 (Note that it is out of sequence, being the first to be published after 17 January 2001 when the appellant's employment terminated.) Ninth matter: The letter is undated but was accompanied by a Notice to Staff from the Company Secretary dated 29 August 2001. According to the primary judge it was agreed to have been written some time in September 2001; at [30]. 30 There is an issue about the reason why the appellant's services were terminated on 17 January 2001. It was the appellant's case at trial that the reason was that, in the course of an investigation launched in December 2001 into the source of the emails, pornographic material was located upon his computer and that his employment was terminated for that reason. The appellant contends otherwise, claiming his employment was terminated to deny his father the appellant's support as SMEC chairman, when his father's position was under attack. The appellant's father ceased as chairman on 25 October 2001, losing his position in acrimonious circumstances. 31 The second, third and fourth respondents held senior management positions at SMEC and were on its board. During the appellant's employment, the appellant worked in an office with a computer available for his use. 32 The investigation was commenced on behalf of SMEC shortly after the first two emails (matters 1 and 2) appeared, these being sent from the appellant's computer (Judgment, [17]), to ascertain who had sent them. The appellant's computer was examined on 11 December 2000. The appellant was interviewed on 15 December 2000. He therefore knew that he was under investigation by the time the third email was sent (19 December 2000). 33 The examination of the appellant's computer on 11 December 2000 identified a large number of files as having been copied from it to another computer. The appellant was an expert computer user. An expert in computer forensics gave evidence that the computer issued to the appellant had been subject to a process of defragmentation. The respondents acknowledge that they cannot identify the computer from which the email that is the subject of the third complaint was sent. Nevertheless, if the appellant had sent this email as well as the earlier ones, then it is understandable that he would not have wanted it to be traced to his computer, knowing then that he was under investigation. 34 As noted by the primary judge, the appellant admitted that the email the subject of the seventh matter of complaint was published by him. He had earlier denied publication in relation to all nine matters, both in answers to interrogatories and in his Statement of Defence. 35 The circumstances of the appellant admitting publication of the seventh matter was that on 1 August 2001 at 1.14pm the appellant was filmed by the investigator using a computer in a Gateway Computer Store to publish an email to SMEC offices in North Sydney. At the same time he also published an email in almost precisely the same terms to the then Chairman of SMEC, a Mr Scott. 36 However, Mr Scott had recently changed his email address and therefore the publication did not go through. In making these two publications the appellant used the "Advice Box" internet mailbox system. "Advice Box", according to the expert evidence, is similar to Hotmail (an internet mailbox system). 37 Mr Henley, an independent computer forensic expert from PriceWaterhouseCoopers, gave uncontroverted evidence that access was obtained to the actual computer used by the appellant at the Gateway Computer Store, soon after 1.14 pm on 1 August 2001. Within the hard disk on that actual computer used by the appellant to publish the admitted seventh letter, the independent expert found a text which contained the eighth matter. Thus it would clearly be open to the jury to take the eighth letter as emanating also from the appellant. That in turn, with the other unchallenged communications, has implications for the authorship of the others including the four the subject of challenge, as I explain. 38 Also about a week before 1 August 2001, namely on 24 July 2001, the appellant was filmed going into the same Gateway Store, approaching a computer, and beginning to use it. A Gateway staff-member approached and disturbed the appellant and he backed off from the computer and walked away. That date, 24 July 2001, was between the dates of publication of the sixth matter complained of, consisting of the two emails in very similar terms dated 20 July 2001 and 25 July 2001. 39 There was further photographic evidence showing the appellant using the Gateway computer on 3 August 2001 to send an email which was received by Mr Busbridge; Exhibit "M". That email was in almost identical form to the seventh matter, though not relied upon by the appellant in its Statement of Claim. 40 The email constituting the eighth matter was sent in February 2001. It was extracted from the same computer in the Gateway Store from which the seventh email was sent; Judgment, [16].

The primary judgment 41 The appellant, at the conclusion of the respondent's evidence and having given none himself, moved the court pursuant to Supreme Court Rules Pt 34 r8(2) for judgment on the basis that "on the evidence given judgment for the [respondents] could not be supported". Without formally abandoning any part of the application, the primary judge understood that counsel for the appellant (Mr Evatt) then confined his application to the fourth, fifth, sixth and ninth matters complained of. 42 The primary judge noted that there was no formal admission regarding the first and second matters complained of. However, the primary judge at [17]-[18] referred to the following uncontradicted evidence that the first and second emails had been sent by the appellant with some effort at concealing the source of the second. Significantly, he had earlier denied sending any of the nine communications in both interrogatories and as pleaded in his Statement of Defence: "[17] It is now convenient to deal with the first matter complained of, which consists of two separate emails. It is common ground, as I understand it, that the same person sent each of those emails. Nor is it in dispute that the emails were sent from the computer which was in the office allocated to the defendant. There was also evidence available which was capable of establishing a more direct connection between the defendant and the use of that facility at the relevant time. It is unnecessary to record the fine detail of that material given the approach taken by the defendant on this application. [18] In respect of the second matter complained of, an email sent on 8 December 2000, it is again not in issue that that email was also sent from the office computer used by the defendant. The account used was in the name of a Ms Coningsby and was the first use of that account. The defendant had participated in a conversation with Ms Coningsby on 6 December whilst he and a Mr Dutt were installing a computer in her home. During that conversation both he and Mr Dutt became aware of her password and log-in details. Ms Coningsby and Mr Dutt each gave uncontradicted evidence that they had not sent the email in question. There was also other powerful circumstantial evidence which pointed to the defendant having sent this email." 43 After a comparison of the various matters of commonality between the matters complained of, the primary judge concluded that there was material available which was capable of acceptance by the jury to establish that the appellant was responsible for publishing all nine matters complained of. His Honour reasoned as follows: (a) The same themes are constantly emphasised: allegations about the illegal transfer and payment of money; bribery; corruption; various criminal activities and covering up those activities, all of which being said to warrant investigation by the World Bank, ASIC and the AFP. (b) There are constant references to the fact that three respondents should resign from their positions (Peter Busbridge, Ross Hitt and Geoff Percival (misspelt Percivil in the emails of matters 2, 3 and 8 but spelled correctly in 5)); Judgment, [31]. (c) The inference is available that the appellant had the opportunity to publish the various emails; Judgment, [32]. (d) The inference is available that the appellant would have been privy, perhaps through his father or someone else, to the matters raised in the communications which followed his termination; Judgment, [32]. (e) The inference is available that the appellant was motivated to send the first four emails by the apparent battle for positions on the board because: (i) there was evidence that at least some of SMEC's board members had become disenchanted with the management style of the appellant's father; (ii) the evidence suggested that there was a division in the upper echelons of the company about him; and (iii) SMEC's AGM was held over from November 2000 until 23 January 2001 and the first four emails were published during that period, with some of the respondents standing for re-election at that meeting and three of those four emails were sent to the shareholders of the company; Judgment, [33]. (f) The inference is available that the appellant was motivated to send the five emails that followed his dismissal because he wished to continue to support his father (who remained on the board until October 2001) and because of the personal animus he felt by reason of his dismissal; Judgment, [34]. (g) A jury would be entitled to conclude that the present case is of the character where the probative force of circumstantial evidence becomes greater as the individual items of evidence increase: Seymour v ABC (1977) 19 NSWLR 219 per Mahoney JA at 234; Judgment, [35-36]. 44 Those conclusions followed a detailed analysis of each of the matters complained of and their similarity to those effectively admitted. It is convenient to deal with that in more detail under "Disposition" below.

DISPOSITION 45 There is no dispute, as there was not at trial, on the applicable principles of law to be applied in determining whether the matter could be taken from the jury and as to the higher hurdle to satisfy the test for unreasonableness or perversity in relation to a jury verdict. On appeal, counsel for the appellant recognised that the respondents' case was to be taken at its highest and most favourable. Also that the probative force of circumstantial evidence necessarily must become greater as the individual items of evidence point plausibly towards the fact to be proved. Thus in Seymour v ABC (1977) 19 NSWLR 219 at 234 per Mahoney JA: "… the probative force of circumstantial evidence may become greater as the individual items of evidence, each pointing, as Wigmore says, plausibly or probably towards the fact probandum, increase in number". 46 It was common round that the relevant principles are as set out in Naxakis v Western General Hospital & Anor (1998) 197 CLR 269 in particular at 274 per Gaudron J. To similar effect, I respectfully adopt what was said by Kirby J in Swain v Waverley Municipal Council (2005) 220 CLR 517 at [205]: "Where a 'no evidence' argument is advanced, the issue is never whether the judge concerned would draw the inferences and make the findings involved. It is not whether that judge thinks that the case made for a party is probable or improbable. It is whether, accepting to the full the evidence (or parts of the evidence) most favourable to the party concerned, as a matter of law, the jury might reasonably return a verdict on that evidence in favour of that party." [footnotes omitted]

Again I shall use the shorthand "perverse" to describe a jury verdict that fails this test. 47 In Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 the Court (Mason CJ, Deane, Toohey and McHugh JJ) referred to the distinction made by Dixon J in Hocking v Bell (1945) 71 CLR 430 between cases which challenge a verdict based on some legal error and cases where there is conflicting evidence and the verdict is said to be against the weight of evidence. The present matters fall if at all into this second class of appeal. The Court in Calin said with respect to this type of case, "the verdict is not disturbed unless the jury, viewing the whole evidence reasonably, could not properly find it…The party seeking a new trial on this ground needs an exceptionally strong case because it must be shown that "the evidence so preponderates against the verdict as to show that it was unreasonable and unjust" [references omitted]. 48 A logical starting point is a comparison between some or all the matters complained of which were not the subject of challenge or were effectively admitted, and some or all of the matters the subject of appeal. 49 Though there was some reference in argument to those provisions of the Evidence Act dealing with tendency or more relevantly coincidence evidence in Pt 3.6 of the Evidence Act, it does not appear that argument at trial or on appeal was so based. I therefore do not need to consider those provisions having regard to the way the matter was argued. 50 It is undisputed that there was an ABC radio broadcast on 15 July 2001, that is to say just the day before the fifth matter complained of. However, the transcript of that radio broadcast was not put into evidence by any party. It appears that the radio broadcast dealt with allegations concerning SMEC and its executives, as indicated in the fifth and sixth matters. There were also, according to those matters, supposedly some investigations by the Asian Development Bank and the World Bank; Judgment at [29]. However, given that there is no precise evidence of what was said on the ABC programme, it is not possible to judge the materiality of that. That leads me to a closer comparison of the various matters admitted to the matters disputed. 51 A logical process, and one well open to a jury to have adopted, is to divide the email matters into two categories. In the first category are the matters the appellant had effectively conceded publishing, though after earlier denial. These were the first, second and seventh matters complained of. In the second category are the matters where authorship and publication was disputed and that dispute was maintained. These consisted initially of the third, fourth, fifth, sixth and eighth matters. 52 The matters within the first category can be likened to fixed points. They may properly be compared to those unadmitted matters in the second category, to see which items of that second category share sufficient characteristics in common with the first so as to permit a jury, without perversity, to reach a verdict that the two sets of items were published by the same person, being Mr Boniface. Once an item of the second category is thereby shown to have come into the first category that in turn permits fresh comparison between that item now in the first category, with those remaining items still in the disputed second category.

General similarities 53 I start with general similarities without at first separating the two categories. I do so putting to one side the ninth matter. (a) All of the email matters complained of (1, 2, 3, 4, 5, 6, 7 and 8) criticise Mr Peter Busbridge, at times in isolation and at times as one of a number of managerial staff responsible for illegal conduct and/or suspect or unprofessional dealings. (b) Six of the email matters, including the three email matters that are subject of appeal (1, 2, 3, 4, 5 and 6), were sent to SMEC staff, at times via distribution lists and at times via individual email addresses. (c) Six of the emails (1, 2, 3, 5, 6, 7, 8) mention and criticise Mr Ross Hitt by name. (d) Five of the matters (2, 3, 4, 5 and 6) were sent using email accounts that featured "smec" in the personalised portion of the address. (e) Five of the matters (1, 2, 3, 4 and 6) were sent using Hotmail email accounts. (f) Five of the matters (2, 3, 5, 6 and 8) made allegations regarding illegal payments, international bribes and/or a cover-up campaign by SMEC managers. (It should be noted however that two of these emails (5 and 6) were sent after similar allegations were apparently made in the ABC radio broadcast on 15 July 2001.)

The third and eighth matters complained of 54 The first, second and seventh matters were effectively admitted. 55 These three matters provide a strong basis for inferring that the third and eighth matters were also sent by the appellant. 56 The third matter was an email sent on 19 December 2000. The following characteristics link it with the admitted second matter. (a) The misspelling of Geoff Percivil (rather than Percival) features in both emails. (b) Both emails mention illegal outlays by SMEC managerial staff. The second matter mentions the "illegal transfer of project payments" and the third matter mentions "illegal dealings". In both cases this conduct is attributed to the same three individuals, namely Messers Ross Hitt, Geoff Percival and Peter Busbridge, and in both cases the desirability of an ASIC investigation is mentioned. (c) Both emails were sent to the same internal SMEC distribution lists known as corporate.finance@smec.com.au, everyaussite@smec.com.au and everyintproj@smec.com.au and no other addresses. These distribution lists were also used for the fifth matter and the first email of the two comprising the sixth matter. (d) Both emails were sent from Hotmail accounts that featured "smec" in the personalised portion of the address, specifically smecsmallshareholder@hotmail.com for the second matter and smec_shareholders@hotmail.com for the third matter. 57 These similarities provide a basis upon which the jury could conclude without perversity that the appellant published the third matter in addition to the effectively conceded first and second matters. 58 The eighth matter complained of was an email sent on or about 15 February 2001. The text of the eighth matter was located on the computer at the Gateway Computer Store from whence the seventh matter was also sent by the appellant. Thus the jury could conclude without perversity that the appellant had also sent the eighth matter.

The fourth, fifth and sixth matters complained of 59 The fourth matter was the email sent on 10 January 2001. There are a number of similarities linking this email to some or all of the first, second, third, seventh and eighth matters. (a) Like the second and third matters, the fourth matter was sent from a Hotmail account that featured "smec" in the personalised portion of the address. In this case the address was smec_fairy_godmother@hotmail.com. The addresses for the second and third matters were smecsmallshareholder@hotmail.com and smec_shareholders@hotmail.com respectively. (b) Like the second and third matters, the fourth matter was sent to SMEC staff. The fourth matter was sent to forty separate email address, most of which were individual SMEC employees, rather than to the email lists used in the second and third matters. (c) The email subject line for the fourth matter was "Small Shareholders - A Little Information for You". "Small Shareholder" was used as the nom de plume in the second matter. (d) Both the third and fourth matters were signed off with the word "love". This is an unusual appellation. 60 These similarities provide a sufficient basis for a jury without perversity to conclude that the appellant also published the fourth matter. 61 On 15 July 2001 there was a ABC radio broadcast dealing with some of the same allegations made in the emails comprising matters 1, 2, 3, 4 and 8. The transcript of this broadcast was not in evidence. But if it had been, thematic consistency between the later emails might have been capable of being explained by their derivation from the broadcast, rather than from having the same publisher. Even so, the fifth and sixth matters complained of exhibit common characteristics in relation to the method and form of communication, apart from any commonality of content. 62 The fifth matter complained of is an email sent on 16 July 2001. With respect to the fifth matter complained of (a) The fifth matter was sent to two of the three email distribution lists used in the second and third matters, namely everyaussite@smec.com.au and everyintproj@smec.com.au, and (b) The fifth matter was sent using the same internet service provider (namely pacific.net.au) as was used for the third matter. 63 The sixth matter complained of consists of two identical emails sent on 20 July 2001 and 25 July 2001. (a) The fourth matter and the second of the two identical emails comprising the sixth matter were sent from an internet café in Kings Cross. (b) The first email comprising the sixth matter was sent using the same internet service provider as was used for the third and fifth matters. (c) Like the second, third and fourth matters, both emails comprising the sixth matter were sent from a Hotmail account that featured "smec" in the personalised portion of the address; in this case the address was smec_phantom@hotmail.com. (d) The first email of the sixth matter was sent to the same two SMEC distribution lists that were used in the second, third and fifth matters, namely everyaussite@smec.com.au and everyintproj@smec.com.au. 64 Examination of the circumstances reveals a pattern of thematic consistency and a substantial body of other similarities. On the basis of this pattern of similarities, I consider that it has not been shown by the appellant that the jury verdict should be set aside as perverse in accordance with these principles.

The ninth matter 65 I turn to the ninth matter complained of, a letter sent to Mr John Dawson of HSBC rather than an email. It was accompanied by a genuine company notice titled 'Notice to all staff and shareholders of SMEC - Resignation of Chairman, Mr Peter Rehn' and dated 29 August 2001. This letter is unsigned and undated. It was agreed between the parties that this letter was published in or around September 2001. 66 The ninth matter reiterates the themes that are familiar from matters 1 - 8. It was, however, produced after similar allegations were widely broadcast on the ABC program of July 2001. Consequently, this substantive similarity is much less significant than for the email matters published prior to the ABC report. There was no counterpart in the way the letter was published to the common technical features attending the publication of the emails. The emails included, for example, the use, in certain instances, of the same email distribution lists or Internet Service Provider (ISP). Identifying such technical similarities in the case of the ninth matter complained of is simply not possible. The technical hallmarks of email communications cannot be usefully compared to a letter in hard copy. Further, none of the other matters complained of were sent to Mr Dawson. On this basis no reasonable view of the evidence can justify the conclusion that the appellant published the ninth matter. On that ninth matter, I consider the jury's verdict should be set aside.

OVERALL CONCLUSION AND ORDERS 67 I consider that this appeal should fail save for the appeal in relation to the ninth matter. I consider that costs should reflect the substantial success of the respondents on appeal and the fact that the ninth matter occupied relatively little time. I propose orders as follows: (1) Appeal dismissed in relation to the first to eighth matters inclusive. (2) Verdict in relation to the ninth matter to be set aside. (3) Appellant to pay 95% of the costs of the respondent in the appeal.

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

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Judgment (27 paragraphs)

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Cases Cited (8)

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