Brien v Mrad

District Court of NSW|2019-09-16|Before: Warby J

Solicitors: Plaintiff: HWL Ebsworth Lawyers Defendant: Rose Litigation Lawyers File Number(s): 2018/393848 Publication restriction: None

Introduction

These are proceedings for defamation brought for statements asserted to have been made by the defendant at the 2018 Annual General Meeting ("AGM") of the North Shore Karting Club (hereafter referred to as "North Shore Karting Club, "karting club" or "the club").
In Umeyor v Ibe [2016] EWHC 862 (QB), Warby J commenced his judgment with the following observations: "[1] This is the trial of a claim for slander. Slander claims are very unusual today. Many communications that would have been spoken in the past are now text-based, so that any defamation claim would be in libel. But slander claims have always been rare. There are probably many reasons for that, but among them are the difficulties sometimes encountered in proving the exact words spoken; the general principle that slander is not actionable without proof of special damage; and the fact that the range of exceptions to that rule is limited; and the fact that spoken words are, as a rule, less likely than written publications to cause serious harm to reputation. The last three of these factors are no doubt inter-related. All four factors are relevant in the present case, which illustrates several of the difficulties to which slander claims can give rise."

The words alleged to have been spoken by the defendant

The plaintiff is a member of the North Shore Karting Club, of which the defendant is the president. The words asserted to have been spoken by the defendant, as set out in paragraph 3 of the statement of claim, are: "3. On 19 September 2018, at the annual general meeting (AGM) of the NSKC held at the Bankstown Sports Club, the Defendant published of and concerning the Plaintiff, the following statement: Martin Brien bribed Endree Saade with a tyre discount in exchange for a signed proxy. (the "matter complained of") Particulars of publication (a) The matter complained of was made orally by the Defendant by addressing the group of approximately 55 persons at the AGM."
The imputations pleaded to arise (as set out at paragraph 4 of the statement of claim) are: 1. The plaintiff bribed Endree Saade to obtain his proxy vote. 2. The plaintiff is a corrupt person of low moral character. 3. The plaintiff engages in unscrupulous and dishonest business practices.
Rather surprisingly, no challenge to the form or capacity of the imputations has been made.

The issues for determination

The sole issue on liability is whether the defendant said those words, or words not substantially different.
The defendant says he did not say anything about the plaintiff at all (written submissions, paragraphs 6-9). His evidence is that he read out verbatim the text of a speech (Exhibit 3) that he had written beforehand. While the defendant makes alternative submissions of "fatal variance" (Gatley on Libel and Slander (12th ed.) ("Gatley") at [32.15]) or alternatively failure to discharge the onus of proof, the position of the defendant and of the witnesses he called is that nothing at all was said about the plaintiff.
In order to determine this issue, it is necessary to make findings of fact not only about whether the words were spoken but in relation to the encounter earlier in the evening when the defendant has challenged the validity of the plaintiff's proxies for Endree Saade and Joe Hamli (as pleaded in the Defence, or "Hamwi", as his name has been spelled on some occasions; similarly, Mr Saade's first name is spelled "Andre" in parts of the transcript; where these variances occur, they have been left in their original form).
The remaining issue is the assessment of damages.

The evidence of the parties

The plaintiff was not present in the meeting room when the words were spoken. He gave evidence of accounts to him of these words by persons who were present, but is unable to give direct evidence as to what was actually said. According, he called the following witnesses, who gave evidence of what they saw and heard: 1. Mr Mitch Lozina, a barrister practising in the area of building and construction law, who was the unsuccessful candidate, against the defendant, for the position of club president. He has been a member of four clubs since becoming interested in the sport in 2014. 2. Mr Richard Erdmann, an engineer and managing director of a manufacturing company. A former president of the Australian association, he has belonged to many clubs and karting organisations over his many decades of involvement in the sport. 3. Mr Chris Dell, the operator (since 2001) of a family karting accessories business set up by his father in 1962. He had been a club member for about 10 years. 4. Mr Niven Riches, a factory manager for a printing business. He has belonged to a series of clubs, including the North Shore club, at various times since 2003. 5. Mr Michael Vitlic, a veterinarian, who had been a member of the club for approximately 7 years. 6. Mr Michael Micallef, an automotive mobile paint repairer, who had been a member of the club for 12 years.
The defendant gave evidence and called the following witnesses: 1. Mr Darren Cohen, the owner of a security company, who joined two years beforehand and is a member of the club committee. 2. Mr Peter Pronseti, who had been a member of the club since 2015. 3. Mr Christopher Quinlan, who works in digital marketing and has been a club member for 18 years. 4. Mr David Haak, who builds go-kart engines and has been a club member for 6 years. 5. Mr Martin Heard, who works for an electrical company and has been a club member for 10 years.

The evidence called by the plaintiff

Each of the plaintiff's witnesses had a longstanding interest in go karting. The cross-examination was limited to their recollection of events, and did not include challenges to their honesty. Their accounts differ in ways that the defendant submits are significant, so it is necessary to set out their evidence in some detail.

Mr Mitch Lozina

Mr Lozina, a member of four go karting clubs since he became interested in this sport in about 2014, decided to stand for election for president of the North Short Karting Club at an election which was to be held at the AGM on Thursday 19 September 2018. He told the court that his reason for doing so was his differing view on the club's future from the current president (the defendant), in terms of his alliance with other go karting clubs around Australia.
Mr Lozina contacted the plaintiff to ask for his support (T 11). The plaintiff agreed and offered to obtain proxy votes from members who were not attending the AGM in person. Mr Lozina explained how the "form of appointment of proxy" (Exhibit C) was already filled out for himself as the president, for Greg Holden as vice-president, and Michael Shiller as a committee member (T 12): "Q. So this is the form that Mitch sent you and it's pre‑filled out with the nominations, and Mitch is there as president, someone called Greg Holden vice president, and Michael Shiller as a committee member. A. Mm-hmm. Q. Who is Greg Holden? A. Greg Holden is a guy I actually know, I basically know him through one of his employees, Todd Maden who works for him, in fact Todd Maden used to work with my - my wife/partner et cetera, and even Greg installed the gates at our factory unit et cetera. Q. And who is Michael Shiller? A. Michael Shiller, I just know him as a competitor, he raced in classes that I raced it, at the over 40s titles, and I beat him. And - sorry, I - just breaking, sorry, I'm just a bit nervous."
These were the forms that the plaintiff used to obtain proxies for Mr Saade and for Mr Hamli.
Mr Lozina gave evidence both as to the venue (T 57-58), the number of people (T 58) and process of voting (T 58). He handed in proxy votes in his possession and the voting commenced. His evidence was that the defendant made a speech (T 59) and then made a comment about Mr Erdmann, which was as follows: "Q. What did he say about Richard Erdmann? A. He was - he said that he was offered a position. He talked about a meeting that - that they had attended, and he talked about David Filipetto and Richard Erdmann attending that meeting, and that within that meeting, it was made clear to him that Richard Erdmann was offered a position within Karting New South Wales. And I know Richard refuted that. But I'm not sure with respect to the order of - of those events. I know that he spoke about Richard Erdmann and - and gave him quite a serve. Yeah." (T 59)
Mr Lozina described how Mr Erdmann then got to his feet: "Q. And when you say "Richard refuted that," do you mean Richard said something that‑‑ A. He did. Richard got up and - and - and basically countered what he said with respect to being offered a position within the Karting New South Wales board. And he made it known that he - he - he wasn't accepting any position, wasn't looking at any position, and that - that wasn't truthful." (T 60)
Mr Lozina next described the context in which the defendant spoke about the plaintiff: "Q. Now, you said you remembered something in particular that Sam said, and during that speech, about Martin. A. Yes. And at - and at the - the reason, it directly reflected on myself, because he - it had to do with how he obtained certain proxy votes, and‑‑ Q. Before you go on, can you tell the Court the words that you heard Sam‑‑ HER HONOUR: Perhaps what you could do is tell us a bit of a context to how it led into him saying his words. Just paint me a picture. I'm always telling witnesses to paint me a picture. SENIOR: Yes. Thank you, your Honour. Q. Did it come out of the blue? A. He was - he was telling us - he was telling us how well the committee were doing as a whole and how hard they were working, and there were these people that were, you know, seeking to undermine the club, obviously referring to myself and others. And then he start talking about how these proxy votes were obtained, and he mentioned that Martin was offering bribes and misleading people with respect to what these proxy votes were about. The bribe was that he was offering discounts on tyres, and‑‑" (T 60)
He specified the words spoken by the defendant as follows: "Q. Doing the best you can, what exactly did Sam say about Martin? A. He - well, he said he was - he wasn't tell the - the truth about the - the nature of the proxy form, and that in order to obtain these votes, he told them that Martin was offering discounts if they voted for myself. And he said that it wasn't about - the - the misleading part was that it wasn't about him voting for me, it was about whether the club would be staying with Karting Australia or Karting New South Wales. That's - that's what they were signing, according to - that - according to Sam." (T 60)
These references to "the misleading part" are of importance because they identify further material qualifying the matter complained of.
There is a second problem. Mr Lozina described the defendant as pointing to a person in the room and asking that person to verify what was said as being the truth: "Q. And when Sam made that allegation against Martin, did he do anything? A. He pointed - he - after he'd made that allegation, he - he - he asked a person in the room to - to verify what he was saying was the truth. Q. What did he say, what were the words he said? A. "And I've even got someone here who can - who can verify what - what I've just said", and someone stood up, he was standing in front of me, I - I think it was‑‑ Q. And you're moving your hand forward, for the transcript, he was gesturing forward at someone. A. Yeah. There was - there was a person - there was a person in - in front of him, so he pointed to him, and - and the guy stood up, and‑‑ Q. What did he do? A. And he said, "Yeah, I - I was - I was offered discounts to - to sign the form". Q. Who was that person? A. I - I don't know the person." (T 60-61)
Mr Lozina described himself as "quite shocked" (T 61) as he wondered whether it was the truth. He described the reason for his upset as follows: "Q. Why were you upset? A. Because I didn't want to be associated with - with people being bribed to vote for me. I didn't think it was necessary, I - I - I'd set out my agenda with respect to what I wished to do for the club, or what I wished to do for the sport in general, which - why I believe the sport should have gone with Karting New South Wales as opposed to Karting Australia, I didn't need people to lie and offer bribes on my behalf and in my name. And that - and I was quite - I was quite angry at the time. Q. So you thought it was true then, you thought Martin had bribed? A. Yeah, I did, yeah. Because you had Sam saying it, and then you had - then you had another bloke standing up and - and verifying it." (T 61)
Mr Lozina had the following conversation with the plaintiff: "Q. Why did you call him? A. Because I was quite angry with him. Q. You were angry with him? A. Yeah. And - and I basically told him what Sam had said. Q. Doing the best you can again, if you could tell the Court what you said and what Martin said. A. If I - excuse my crudeness, I said, "Well, what - what the fuck do you think you're doing offering people bribes to vote for me?" Q. And what did Martin say in reply? A. "I didn't do that, that's - that's absolute bullshit." And‑‑ Q. And did you say anything? A. I said, "That's what he said, and he had a guy stand up", so - and - and he just said, "Mate, it's not true. If that - if he said that, I'm - mate, I'm going to take this all the way. There is no way that he's going to do that to me."" (T 62)
This is consistent in content, although not in form, with the description of the plaintiff of this conversation (T 24), described in more detail below.
It was not put to Mr Lozina, in cross-examination, that the defendant never said these words. All that was challenged was his ability to hear the words because of the noise and his ability to remember generally: "Q. It was difficult to hear what people, what any individual person was saying? A. No, I don't agree with that at all. Q. You're not currently in a position to recall the exact words that any person used at that AGM, are you? A. With respect to particular things I am, with respect to other things in general I'm not. I can recall Steve Donnelly talking about J tyres and I remember Marty Hird responding back that people buy new tyres every race meet regardless of what they do, because there was discussions about the type of tyre we had. There were particular discussions that I do recall rather well, there's others that I probably don't. But I have a fairly good recollection of the night's events. Q. Well, I want to suggest to you that you don't have any specific recollection of words that Mr Mrad said about Mr Brien. A. I do, and I'll never forget those." (T 68)
A further matter is that, in his written submissions, Mr Olson submitted that Mr Lozina and the other witnesses called to support the plaintiff had "personal and political relationships" (written submissions, paragraph 26) with the plaintiff. In the case of Mr Lozina, he had been a customer of the plaintiff since 2015 as well as a friend, and the plaintiff was there to support his campaign for club presidency. The plaintiff renewed his financial membership of the club solely for the purpose of supporting Mr Lozina (T 12). However, this allegation was never put to Mr Lozina in terms.
The defendant's case is thus that either Mr Lozina could not hear or has forgotten, or is one of four witnesses (the others being Mr Erdmann, Mr Dell and Mr Riches) whose description of what was said differs so materially from each other and from the pleaded case that the slander claim cannot be established.

Mr Richard Erdmann

Mr Erdmann is an engineer and managing director of a manufacturing company, a small part the business of which involves manufacturing go kart components. His principal work, however, is architectural construction and other activities for the Department of Defence. He has been interested in go karting activities since approximately 1990 and is the former state president for the Australian Karting Association (now known as Karting NSW), as well as the national president of the Australian Karting Association between 2005 and 2008. He told the court he no longer had the time to take up official positions in the sport (T 88), but had been a member of the North Shore Karting Club since about 2012.
Mr Erdmann described the location and events of the AGM in similar terms to Mr Lozina. Mr Erdmann was seated about two-thirds of the way down in the meeting room on the left hand side.
Mr Erdmann was one of several witnesses who described the voting process and meeting as being disorganised and somewhat rowdy. He described people being lined up to vote (T 92), in circumstances that were "a bit of a mess" (T 91) and "very very confusing" (T 91). He particularly recalled problems with the proxy votes as follows: "A. There was a lot of chatter about, you know, the - the proxy votes, 'cause it was a - not a nice, sort of, meeting in that sense, there was a lot of debate about the proxy votes, that they should have been in 24 hours before, and some people were doing them on the night and, you know. As to whether that was fact or fiction, I - I have no idea." (T 92)
In particular, he overheard part of a conversation between the plaintiff and defendant which he described as follows: "A. Martin came in, sort of, at the beginning, so when we did our - checked off our names, so - so he came in. I was already back to almost where I was sitting, Martin was standing there, something was said between Martin and - and Sam. Q. So when did that happen? A. That was right at the beginning before the voting started, and all I heard from Martin was, "That's bullshit", or - or something to that effect. What was said, I don't know, but Martin wasn't very quiet about that. So a few other words were exchanged, then Martin went and sat down towards the back of the room, so he was to my right and behind me. So I - I have no idea what was - what was at that particular point in time. We went into the election process, as I say, people were lining up and queuing up and doing all those things." (T 92)
Mr Erdmann described the circumstances in which the results of the vote were announced and the defendant made a speech. He described this in some detail as follows: "Q. And what did Sam say? A. He started out by describing how he came into the role in the first place, where people had asked him to be the president, and how he felt about that, that he felt, you know, that he was wanted, want of another term, he - he used a different term for that, but that's basically what he was saying, and he - and he was happy that he did the job, and how he had, together with committee, he'd - they'd, sort of, turned the club around, they felt they'd turned the club around, and that they'd bucked the trend of what was happening in the sport, right. And, you know, he stated some numbers and things, and then spoke about a - a few other things, I think he congratulated his - his - some of the other committee members that had worked hard with him through the course of that year. And then out of left field, that it just, sort of, it came about the - the proxy votes, and he - he started to talk about the proxy votes and that there was a group of people trying to undermine the current committee. And then it came out with - with Martin Brien‑‑" (T 93)
Mr Erdmann described what was said about himself and Mr Filipetto: "A. So at the AGM. So at the AGM, what occurred there was that Sam said we had this meeting, that Dave Filipetto was - he didn't think he was a very good person, right, and had no experience with it, because of a statement that Mr Filipetto had said in the meeting. I stood up in the room at that point. Q. Did he say something about you at that point or was it just about‑‑ A. Right at that moment, no. I - I then stood up and defended Dave Filipetto, sat back down again. It went on. Then at some point, Sam turned - looked at me in the room. I was sitting down. And he said, "And what position have you been offered on the board of New South Wales?" Q. And what did you say to that? A. And so at that point I stood up in the room and I said, "I will explain to this room exactly what I said to the committee when I went into the meeting," and I repeated exactly what I said in that meeting. And I can repeat that here if you wish, but I don't think it's really relevant." (T 94)
Mr Erdmann was then asked what was said about the plaintiff: "Q. Can you tell the Court the words that Sam said about Martin. A. Okay. It was in this whole sort of thing about the proxy votes. Q. That was the context in which it was said? A. That was the context that was being said in. And I - I - I understood the tension between Mitch Lozina and - and Sam. And so I - I really wasn't paying a hundred per cent attention right at that moment till - till Martin Brien's name got mentioned. Right? Because I thought, "Where's this come out of?" Q. And what did Sam say? A. And he goes, "And Martin Brien has been offering bribes to people with cheap go‑kart parts." And he pointed to an individual in the room, said the person's name, who I have no idea who they were. And that was a person sitting to my right, right, a couple of rows forward, who nodded their head, and I'm assuming that that was person they were - he was speaking to. Q. What did he say to that person? A. He said - he just looked - he asked him for a confirmation that that had - that had occurred. Q. What did he say? What were the words said? A. That person didn't say anything. He just nodded his head. Q. What were the words that Sam used to that person? A. Sam just said that "Martin Brien has been offering discounts - discounted go‑kart parts to people, right, for their proxy votes. Isn't that right, whoever the person's name was who was over to my right." I then immediately turned to my right, further around, because I - the last time I saw Martin, he was on my right on the other side of the room. And I noticed he wasn't there. All right?" (T 94-95)
Mr Erdmann described the reaction in the room when these words were spoken: "Q. And what was the reaction in the room after Sam said that? A. It - it - it went a little bit hushed at that moment, all right, because it's not something we normally hear in those - those sorts of contexts. Like, go‑kart meetings can be fairly rowdy and - and things. But at that point, Sam was making some - some points, and he was the person speaking at the front of the room. And I - I've got to say to - to that, I mean, people were speaking. They were getting their opportunity to speak. So he was getting his opportunity to speak, and it was - it all led on from his acceptance speech." (T 95)
Mr Erdmann said he had not been paying "100% attention" (T 97) as to what the defendant said during his speech until the moment Martin Brien's name got mentioned. What is not clear from his account is which came first, the allegations about Mr Erdmann personally which led to his standing up or the allegations about the plaintiff. However, given the admission that Mr Erdmann was not paying much attention until the plaintiff's name was mentioned, the likelihood is that his evidence should be construed as reading that the allegation about the plaintiff described by Mr Erdmann was made first and the challenge to Mr Erdmann's own conduct was made subsequently. I note that his evidence of the defendant inviting one of the attendees at the AGM to confirm the allegations is consistent with the description of this event by Mr Riches, Mr Vitlic and Mr Micallef, as well as with Mr Lozina's evidence as set out earlier.
In cross-examination, Mr Erdmann was challenged about asserted differences in his accounts of the conversations as follows: "Q. You said that you weren't paying much attention until you heard Mr Brien's name mentioned. I'd suggest to you that you weren't closely paying attention of what was said. You accept that? A. At - in the beginning of the - the discussion - or, sorry, of his summation of - of the proxy votes, I absolutely was not paying 100% attention, that's true. Q. You hadn't followed the context of the speech up until that point? A. I had followed the context, but I had no interest in it. So I couldn't repeat to you verbatim what he was saying, because I - I just had no interest in what he was saying, till he starts mentioning people's names. Q. But equally, the words that you used in giving evidence in answer to Mr Senior's questions A. Yes. Q. and "Martin Brien has been offering bribes to people with cheap go kart parts" A. Mm hmm. Q. you can't be sure that those were actual words that Mr Mrad used during his speech, can you? A. As close as my recollection recalls, yes I can. Q. Well, I think you actually gave two versions, in answer to Mr Senior, because you gave that version and then you - a little bit later you suggested that he said, "Martin Brien has been offering discounted karting parts to people in exchange for their proxy votes." Do you recall giving that evidence? A. Yes. Q. So A. To me they're the same thing, "go kart parts", "karting parts". I'm in that industry, we make those references all the time. Q. I'd suggest to you that the fact that you've given multiple accounts of the words that were said during the speech reflects the fact that you are, as you sit here today, unable to recall any actual words that were used by Mr Mrad? (T 98)
There was an objection by Mr Senior at this point. Comparison between the transcript at T 95 line 1 to T 91 line 15 and T 98 line 5 shows that the words "go kart parts" appear in both answers in the evidence. It was counsel for the defendant who used the words "karting parts", not the witness.
The second asserted inconsistency is whether or not the word "bribe" was used. However, as Mr Senior points out in his written submissions (paragraph 37), this was not put to Mr Erdmann in terms. I asked Mr Erdmann, after this objection: "Q. Well, I think now that we know that there are those two differences, it's being put to you that because you've given two different versions you can't possibly remember what was said. So, do you agree or disagree? A. I can't recall verbatim what was said, I'll - I'll - I'll agree with that. But I absolutely recall the context of what was said. Q. And that context was? A. The context was that Martin Brien was offering discounted parts or bribing people for their proxy votes, might be in order to get discounted parts. So, however you want to word that around, chase it around, you know." (T 98 - 99)
As was the case with Mr Lozina, the challenge to Mr Erdmann's evidence were based on faulty recollection and noise. It was never put to him that the defendant never spoke these words.
Apart from the reference by Mr Lozina to the "misleading" representation about leaving the current club arrangements (as to which see the evidence of Mr Dell at T 103, discussed below), Mr Erdmann's evidence is consistent with that of Mr Lozina. He had a good recollection of the events on the night in question and answered questions in a careful and precise way, making concessions where appropriate, as his evidence at T 98 - 99 demonstrates.

Mr Chris Dell

Unlike the other witnesses called by the plaintiff, Mr Dell was not attending the meeting to support Mr Lozina. He abstained from the voting (T 102). He knew the plaintiff as a "business competitor" (T 100) whom he described as "one of our opposition" (T 101). Although he had not turned his mind to the events of that evening until he was served with a subpoena to give evidence (T 104), he said he had a particular recollection of the allegations made by the defendant against the plaintiff because he considered them "pretty shocking" (T 103) and "I kind of thought to myself, "Wow, Martin must be desperate for proxy votes" (T 103).
Mr Dell gave evidence more or less consistent with the other witnesses called by the plaintiff, in terms of the size of the room and the number of attendees at the AGM (T 101). He said that at times the AGM was rowdy and that people were speaking at the same time (T 105), but denied that it was difficult to hear the defendant's speech. He also denied the suggestion that he was unable to distinguish when particular statements (by inference such as the matter complained of) was made during the AGM (T 105).
Mr Dell described the process of voting in a similar fashion as Mr Erdmann, noting that there was "a little bit of confusion" (T 102) and "a bit of confusion" (T 102). The results were announced and the defendant made a speech after the voting, standing in the front of the room. Mr Dell was unable to remember the defendant mentioning Mr Lozina in his speech, although he recalled "some back and forth" between Mr Erdmann and the defendant (T 103). He described what the defendant said about the plaintiff as follows: "Q. Did he mention Martin Brien? A. He did, there - there was one point where I'd actually asked him, "Are we going to vote on whether the club would stay with Karting New South Wales or not", and he said, "No". And then somebody else, I think, asked him why, and he said that he didn't think there was enough information out there for the club members to vote. And then he said that he - that he'd been told that Martin Brien was selling tyres at a discount in exchange for proxy votes." (T 103)
I note the similarity in terms of a reference to staying or going from the club's affiliations which immediately precedes the reference to the plaintiff but, unlike Mr Lozina, Mr Dell did not identify the link between staying or going from the club's affiliations and the proxy vote.
As Mr Senior points out (written submissions, paragraph 70), Mr Dell was, like Mr Lozina and Mr Erdmann, not cross-examined on his evidence as to what the defendant said about the plaintiff during his speech. It was put to him, for example, that nothing at all was said, or that the words spoken about the plaintiff were different, or even that he was unable to recall the words. All that was put to him was that it was what was said at T 105 lines 24-28 as follows: "Q. Yes. So as you sit here now, you're not in a position to distinguish between things that Mr Mrad may have said during his speech or things that may have been said during open discussion at the AGM or things that may have been said waiting in the line to vote, are you? A. I don't know if that's correct."
Mr Dell recalled having a conversation with the plaintiff a few days after the AGM: "A. I think he probably rang me a couple of days later, he generally orders products off our company every day or two. Q. Did you talk about what had happened at the AGM? A. Briefly. Q. What did you say, or what did he say and what did you say? A. I believe he was complaining about what Sam had said, but I didn't pay too much attention to it at the time. Q. How did he seem, what was his demeanour? A. He wasn't happy." (T 104)
He was cross-examined about this at T 105-106: "Q. Now, you gave evidence, when Mr Senior was asking you questions, that you spoke to Mr Brien by phone couple of days after the AGM. I'd suggest to you that you actually didn't speak to him about what was said at the AGM until 1 April this year. Isn't that the case? A. I - I stand by what I said. He rang me a few days later when he was ordering some parts. Q. And I want to suggest to you that when you spoke to Mr Brien on the phone about the AGM, he asked you what was said about him at the AGM. Is that correct? Or do you remember what was said about him at the AGM? A. Sorry. Could you ask the question again. Q. When you spoke to Mr Brien on the phone about the AGM‑‑ A. So are you talking on 1 April or are you talking the few days afterwards? Q. Well, your evidence is it happened a few days afterwards. A. Yes. Q. I'm suggesting to you that he said, "Do you remember what was said about me at the AGM?" or, "Did you hear what was said about me at the AGM?" Do you agree with that? A. I believe he said that, yes. Q. And I suggest to you that your words were, "Yeah. Something about votes and tyres." Do you agree with that, or disagree? A. To be honest, I don't remember exactly."
This uncertainty about what he said to the plaintiff about what he heard does not detract from his certainty about what he says he heard on the night, the accuracy of which was not challenged on cross-examination. Apart from the lack of link between the club affiliation issue and the proxies, his evidence is consistent in general terms with the evidence of Mr Lozina. It is also consistent with Mr Erdmann.

Mr Niven Riches

Mr Riches described an involvement in go karting since 2003 which included being a member of the club and racing as a member (T 107). His daughter runs the safety track light system at Eastern Creek, which is the racing track used by the club (T 107).
Mr Riches was, like Mr Dell, undecided as to whom he should vote for at the meeting. He said that although he received a phone call from Mr Lozina asking for his vote, he had not decided who to vote for: "A. I had a phone call from a Mitch Lozina asking - he was trying to get onto the committee, and asking, you know, could I have his vote and all that. And I said, "No, look, got to go online. See what people are going to say." You know? I was - I was - I was - who was on the committee wasn't really a - an issue to me. It didn't - didn't - didn't worry me. So‑‑ Q. But you knew there was a vote for committee‑‑ A. Yeah, I knew there was a vote, and I - I knew there - there was a lot of people trying to get on the committee, because they're at the same meeting there was going to be an important decision to be made. And I think those people wanted to get into a position of importance at‑‑ Q. And is it fair to say that you were going there partly to support Mitch's‑‑ A. No, I wasn't go‑‑ Q. You weren't? A. No, I hadn't made my mind up. I wanted to hear what people had to say. So, you know, and - yeah." (T 108)
Mr Riches described the venue and number of persons for the AGM in similar terms to the plaintiff's other witnesses (T 109). He was, however, much more forthright in his description of the process of voting which he described as "the most shonkiest voting system I've ever seen in a - in a meeting" (T 109), "chaos" (T 109) and "pathetic" (T 109). He described the problem as being the following: "A. Well, it's just the - the - the manner in they are handing out the voting slips. And people were going, "Oh, I'll have one for my son as well, please," and all this sort of carry-on. And yeah, I think at one stage there was - there was - there was more votes, and I mean, people in the room, and that was‑‑" (T 110)
Mr Riches said that after the result of the voting was declared, the defendant made a speech (T 111). Mr Riches did not recall the defendant mentioning Mr Lozina in his speech, but said that he specifically recalled mentions of Mr Erdmann and the plaintiff: "Q. Well, can I just stop you there. So, Sam was making an acceptance‑‑ A. An - an acceptance speech, it's, like, thank people for, you know, like, and what he'd done for the club. Q. Where was he when he was doing his speech? A. He - he was sort of, like, standing, sort of, like, three‑quarters the way up the‑‑ Q. From the front? A. ‑‑up - up - up to the front. He wasn't dead at the front; he was sort of, like, three‑quarters of the way up the front. So‑‑ Q. And did he mention Mitch in his speech? A. I can't recall whether Mitch was mentioned, no. Q. Did he mention Richard Erdmann? A. I think he did, yes. I think he had - I think he did. Q. And he mentioned Martin? A. And he mentioned Martin, but he‑‑" (T 111)
He was asked to specify what was said about the plaintiff and he replied: "Q. Tell us, what were the words he said about Martin? A. I - I cannot tell you the exact words that were said. Q. Tell us, as best you can, what the words were. A. He basically - he asked where Martin was, and Martin had already left, apparently. And then he basically said that Martin - there was a couple of guys had turned up at his place and he gave then cheap tyres for their vote. And I felt it - it just felt a bit odd, like, why would you say something? The - you've won the election, why - why would you, like, like - I don't know whether there's anything to flinder to, but, you know, it was just such a funny thing to - to say, after you've won the election, and there's no need." (T 111)
Mr Riches said that at the time of making these statements, the defendant looked at someone after he had said those words and pointed at that person: "A. He - he looked for - he looked for him and, like, pointed at him, and that - that's basically it, the - you know, like, I - I was busy, you know, I'd - the - my focus was off it then. I was, like, and we were talking about this upcoming, and the attention in my group turned to the upcoming vote on it - on the split." (T 112)
Mr Riches said he had a particularly clear recollection of the words spoken by the defendant because of his own reaction, namely he thought "You're an idiot" concerning the plaintiff (T 112) and also because of the response of those around him, especially that of Mr Lozina: "Q. What was the reaction in the room when he said that? A. Yeah, there's just - you could see there was a few people that, like, "What - what the hell was that?" You know, that was just, like, and my good friend Chris was beside me, and I - Mitch Lozina was behind me. I turned around and Mitch was boiling, like, you know, he - and I've found - we - after the meeting we went for a dinner together, the - our block of friends. And, like, it was just, like, Mitch was beside himself that Martin would do something like that." (T 111)
Once again, the precise allegation was not put to Mr Riches that the words were not spoken. He was challenged as to his ability to remember matters, and to remember the specific language, and he was asked a similar question to that put to Mr Dell, namely that because the meeting was chaotic he was not in a position to recall a particular statement. He replied to this as follows: "Q. And I'd suggest to you that given how chaotic you remember the meeting being, you're not in a position to recall any particular thing that was said during Mr Mrad's speech. A. No, not - not actual pacifics(as said) on the - on - on - up until the - the point where he - well, he - he caught - 'cause I knew Martin, he caught my attention when he said Martin. I, sort of, looked around, and - 'cause I, sort of, I'd half seen him leave straight after the vote, so that, sort of, like, got my attention, he's asking for someone that had left and, you know. Q. Just to be clear, I'm suggesting that that's also a detail that you don't specifically recall. A. If that - that‑‑ Q. Anything that was said about Martin. A. I'd recall that - that - about the - the votes for tyres, sorry, votes for discounted tyre - for cash. Q. But you're not able to recall‑‑ A. Word to word, no." (T 114)
He also raised the matter with the plaintiff's brother: "Q. What did Mitch say to you? A. Well, I remember walking out and I was a couple behind Mitch, and he turned round, "Well, bloody thanks for that, Martin, you make us look really good." So, you know, it was - and, like, when we're - I - at our meal afterwards, I was sitting beside both Peter, who I know well, and I said, "What the hell is your brother doing?" Q. Martin's brother, Peter? A. Yeah, I said, "Well," - and he goes, "Well, Marty's Marty, you know." (T 111 - 112).
Mr Riches recalled not only his own initial reaction to the defendant's words but also what the defendant did next: "Q. What was your reaction when you heard Sam say that about Martin at the AGM? A. I thought, "You're an idiot," for Marty - I thought Martin was an idiot for doing it. Q. Yes? A. 'Cause, like, you know, like, it's a dumb thing to do. Q. Thank you. Did Sam look at anyone or do anything when he said that, about Martin? A. He was looking for the person - 'cause that's what caught my attention, and he was looking for the person that, sort of, had said that the vote, it got brought by tyres. Q. Right. What did he do? A. He - he looked for - he looked for him and, like, pointed at him, and that - that's basically it, the - you know, like, I - I was busy, you know, I'd - the - my focus was off it then. I was, like, and we were talking about this upcoming, and the attention in my group turned to the upcoming vote on it - on the split." T 112)
Mr Riches was sufficiently concerned about the allegation to confront the plaintiff at his place of work (which was near Mr Riches' factory) on a day following the AGM: "Q. Okay. Did you speak to Martin at any point after the AGM, about what happened? A. About - his factory is just around the corner from my one. Q. I see. A. So, about - but we're always too busy, like, I've only - I've been there - I've been there the best of four times and I've brought two things off him. He's a distributor, like, we don't, you know, it's not - so I - I turn up and said, "Mate, have - what the bloody hell are you doing?" You know. Q. What did he say? A. And he says, "I didn't do anything." Q [sic] I said, "Mate" - like, and he goes, "Well, these guys, I've always sold tyres to them." And he says, "Because I'm an on - online business, I give them discount for cash, cash in - or, but cash in the back pocket, and I've always done it." Q. Yes? A. And he says - and he, you know. Q. What was Martin's demeanour like? Was he A. I - it wasn't that time, it was the - the next time I saw him. Q. When was that? A. It would have been about another month after that, and I, sort of, dropped a joke at him about, you know, get my money - give - give me some discount here for some tyres, and he wasn't happy, at his Q. What did he say, or what did he do? A. He says, "Well, I'm taking this guy to the cleaners", he says, "I'm over this, he's - he's destroying me". So he - it-" (T 112-113)
In cross-examination, it was put to Mr Riches that the meeting was so rowdy that he could not be certain he heard these words at all. Mr Riches disagreed, saying that while the meeting was a case of "men behaving badly" (T 113), he was able to hear, and that while he was not paying much attention to the speech, his attention was immediately drawn when he heard the plaintiff's name (T 113): "Q. And I'd suggest to you that given how chaotic you remember the meeting being, you're not in a position to recall any particular thing that was said during Mr Mrad's speech. A. No, not - not actual pacifics(as said) on the - on - on - up until the - the point where he - well, he - he caught - 'cause I knew Martin, he caught my attention when he said Martin. I, sort of, looked around, and - 'cause I, sort of, I'd half seen him leave straight after the vote, so that, sort of, like, got my attention, he's asking for someone that had left and, you know. Q. Just to be clear, I'm suggesting that that's also a detail that you don't specifically recall. A. If that - that Q. Anything that was said about Martin. A. I'd recall that - that - about the - the votes for tyres, sorry, votes for discounted tyre - for cash. Q. But you're not able to recall A. Word to word, no."
Although Mr Riches was not able to recall "word to word", to use his phrase, he was able to recall the gist of what was said, and that content is consistent with the accounts of Mr Lozina, Mr Erdmann and Mr Dell.

Mr Michael Vitlic

Mr Vitlic, a member of the club for about seven years, knew the plaintiff from racing at Wollongong and from the fact that the plaintiff runs an online karting shop (T 70-71). He described the venue for the AGM in similar terms to the other witnesses called by the plaintiff, although he thought there were only approximately 60 to 80 persons in the room (T 71).
Mr Vitlic described the process of voting, including the taking of proxy votes (T 72). The defendant was then elected president and gave a speech (T 73).
Mr Vitlic did not recall the defendant saying anything about Mr Lozina during this speech (T 74), but he did recall the plaintiff speaking about Mr Erdmann and Mr Erdmann standing up as a result (T 73).
Mr Vitlic's description of the defendant's statement about the plaintiff was as follows: "Q. And did Sam mention Martin in part of his speech? A. The only thing I can remember of that was that Sam mentioned Martin's name. Someone stood up, didn't know who it was, on the right side of the room. I don't remember what was discussed. I found out later. Q. Well, I'll ask you about that. A. Yeah. Q. But just in terms of what happened in the meeting. So you heard Martin's name. Someone stood up. A. Yep. Q. What happened then? A. I - I mean, look, if - if - if I knew specific - exactly what was said, I'd tell you, but I - I don't, so I - I don't want to kind of make - make something up. You know? Yep. Q. And no‑one is asking you to make things up, certainly. A. Yep. Q. But just going back to what you said. You do remember Martin's name being mentioned, and you do remember someone standing up‑‑ A. Yes, that's - yeah. Q. ‑‑in response to something Sam had said. Is that right? A. I think so. Yep." (T 74)
Mr Vitlic described going to have dinner with a group of other members, including Mr Erdmann and Mr Riches (T 75), and that they were talking about what had been said at the AGM (T 75): "Q. So what did they say? A. They were just saying that there's - there had been mention of inducements to garner votes for a specific side at the meeting, or specifically for Mitch Lozina. Q. And when you say "there had been mention," do you mean the people you were with having a drink were talking about that being mentioned in the AGM? A. Yes. Yep."
He described the plaintiff's name occurring in the following context: "Q. ‑‑what was said about Martin in terms of, did his name come up? That's what we want to know. A. Yep. Yeah, his name did come up. Yep. Q. And what was said about him? A. It was - it - like, in relation to he'd asked some gentleman to stand up, who was obviously that gentleman that I did see stand up. But like I said, I didn't hear it myself. But it was that he'd come to his shop and - to Martin's shop - and there had been - been an inducement for votes, because he had - inducement for votes for Mitch Lozina in - in order to buy tyres. That's - that's what everyone, I guess, knows. That's what I've kind of gathered after the meeting, that occurred. So - but like I said, I didn't hear that specifically." (T 77)
Mr Vitlic spoke to the plaintiff after the AGM and told him what had been said: "A. So, it was just, like, in relation to what happened at the meeting, you know? I - I - I relayed pretty much what I told you to him. Q. What did you say to him? A. That - basically I told him that I didn't necessarily hear. I saw the gentleman stand up, and I saw Sam was at the front. I - I don't recall exactly what was said. I - I didn't hear it. But I - I learned of everything later, and that's - that's pretty much what I told you. From other people." (T 78)
Mr Vitlic was not cross-examined.
Mr Vitlic's recollection of there being an "inducement for votes for Mitch Lozina" in order "to buy tyres" is based upon what he heard after the meeting, rather than what he heard specifically. His evidence on this issue thus does not assist the plaintiff. However, his evidence is corroborative of two important issues, namely that the plaintiff was named during the speech, and the terms that others were using after the meeting to describe what was said. These contemporaneous repetitions of what was said by third parties is a factor to take into account when determining whether the defendant's evidence that nothing at all was said should be accepted.

Mr Michael Micallef

Mr Micallef is an automotive mobile paint repairer who has been involved in the sport of go karting for about 12 years. He joined the club when Mr Lozina contacted him and asked if he would vote for him at the AGM: "A. No - yeah, at Eastern Creek, yes. North Shore. Then was asked by Mitch Lozina, who was canvassing for - going for the club president. And he asked if I would support him in a vote, which I said I would. But in order to do that I had to join the club." (T 80-81)
He described the room in similar terms to the other witnesses called by the plaintiff, although he thought there were approximately 65 to 70 persons in the room. He said that the defendant made a speech in the course of which he mentioned Mr Lozina (T 83). He described the circumstances in which the defendant mentioned Mr Erdmann and Mr Erdmann stood up in response to this as follows: "Q. What about Richard Erdman? Did Sam say something about Richard? A. Yeah, there was a bit of a - there was a bit of a spike going on. Richard stood up and there was sort of a - it seemed like a very - a - a bit of a personal attack towards Richard. Q. Right. Do you remember what they - sorry‑‑ A. But - look, it's - to me, from what I can remember it was - Sam was implying that Richard was something to do with Karting New South Wales, and - and that's not what - the position that they wanted to be in. And‑‑ Q. What did Richard say? A. Richard - Richard fired back and Richard, without going - getting too boisterous, he just basically put his point back across, that no, he has no involvement." (T 83)
He then described how the defendant referred to the plaintiff as follows: "Q. Right, okay. And did Sam say anything about Martin? A. Look, I was up the back of the room when I heard Martin's name being mentioned. Q. So you heard his name. Yes? A. I was down the back with probably four other guys, who were having coffee and a biscuit. I heard Martin Brien being mentioned. Q. His full name, Martin Brien? A. Yeah. And one of the other guys, who was down the back with me, mentioned that Martin had left. And then, when I was talking to them, I looked over the - the guy who was facing me - I was looking over him, facing towards Sam, and then there was an - Sam mentioned another guy's name and - and he stood up, up the front of the room." (T 83-84)
Mr Micallef was unable to say exactly what the defendant had said about the plaintiff: "Q. Right. And what did they say? A. I don't, like, I - I don't recall the content, because we were too busy down the back, having our own conversation. Q. What was the context in which Martin's name was mentioned? What was Sam saying? A. Well, I don't - I don't recall that, what Sam said." (T 84)
Mr Micallef went to dinner afterwards with Mr Lozina and others (T 84) and he recalled someone in the group asked about "Why was Martin - what happened with Martin?" (T 85). Mr Micallef recalls the reply as follows: "Q. And what was the reply? A. And the - the reply was that Martin was in - the implication was that Martin offering bribes, for - for kart parts, for votes."
He said that the implication was that the plaintiff was giving cheap car parts to secure votes: "Q. Martin was offering bribes of kart parts for votes. Is that it? A. Yes, the - the implication was that Martin was giving cheap kart parts, to - to secure votes."
He clarified this by saying: "Q. Do you understand that? We want to know - it's that you said before in your evidence‑in‑chief that Martin was giving kart parts to secure votes? A. Yes, that was what was said. Q. Did anybody use the word "implication"? A. No, not - not - that was - from what - from the conversation, the implication was, in my opinion, that Martin had been giving out cheap parts. Does that answer your - is that what you're after?" (T 87)
Mr Micallef also spoke to the plaintiff: "Q. Since the AGM have you spoken to Martin about what was said at the AGM? A. I spoke to Martin probably three weeks after the AGM. I was at‑‑ Q. What did - sorry. A. ‑‑I was at a - at a car show at Eastern Creek, and happened to bump into him. Q. What did you say, he say? A. It - it wasn't a planned thing. Martin walked up to me and sort of - we were just having a bit of talk, and he said - I said, "Oh, yeah, I heard your name mentioned." And he - and he goes, "What'd you hear?" And I said, "Look, I don't know the conversation, but I - I definitely heard your name." And then he - he informed me of what was said.' (T 85)
Mr Micallef's evidence is of the same limited amount of assistance as that of Mr Vitlic. Both are certain that the plaintiff was named although they did not hear what was said, and both heard others describe what was said immediately afterwards.

The evidence of the plaintiff

Although the plaintiff was not in the meeting room at the time the defendant is alleged to have spoken the words, his evidence as to his earlier conversation with the defendant is central to the issue of what was said later.
The plaintiff runs an online karting business and he is a keen racer. He was a member of the North Shore club in the 1990s but had allowed his membership to lapse. It was one of many clubs of which he was a member as this was necessary in order to compete in races (T 9). Because he swaps and changes clubs for this reason, he had not been a member of the North Shore club for "a few years" (T 10) and he renewed his membership effectively after hearing from Mr Lozina, a customer with whom he had some common interests who had become a friend (T 11). He described the conversation as follows: "Q. Doing the best you can, what did he say and what did you say as part of that conversation? A. Well, the phone conversation happened around about lunch time because he‑‑ Q. What did Mitch say? A. ‑‑he left me no time to get things done. Basically it was along the lines of, "Hey Martin, I'm gonna go for the presidency of North Shore Kart Club, can you support me?" I went, "Yeah, sure, like, no problems, I'll - I'll support you, I'll try to get you a couple of proxy votes as well. How many proxy votes are you allowed to have?" And he said, "You're allowed up to five." All right, okay, so I‑‑ Q. And did he say anything else about those proxy votes? A. Yes, he said that they have to be in by 7 o'clock that night, and I went, "Thanks, mate", 'cause he left me no time to get - get it done. And then I said something, I said, "I'm currently not financial, I'll have to", that's why I said, "When do they come", I know that it was just after lunch. Q. So what did Mitch do after that conversation? A. Mitch emailed me a copy of the proxy form. Now, the proxy form was pre‑filled out, just leaving the space for the person's name, address and their signature." (T 11-12)
The plaintiff described the other persons on the nomination form as follows: "Q. So this is the form that Mitch sent you and it's pre‑filled out with the nominations, and Mitch is there as president, someone called Greg Holden vice president, and Michael Shiller as a committee member. A. Mm-hmm. Q. Who is Greg Holden? A. Greg Holden is a guy I actually know, I basically know him through one of his employees, Todd Maden who works for him, in fact Todd Maden used to work with my - my wife/partner et cetera, and even Greg installed the gates at our factory unit et cetera. Q. And who is Michael Shiller? A. Michael Shiller, I just know him as a competitor, he raced in classes that I raced it, at the over 40s titles, and I beat him. And - sorry, I - just breaking, sorry, I'm just a bit nervous. Q. That's okay, that's all right. A. And‑‑ Q. So you've got this form, what did you do next once you got the form? A. Well - well, prior to - to Mitch - in the phone call, I forgot - one thing I - I missed out, I want to add to it, I - I - I confer with Mitch who he'd already got, because we have a lot of the common friends, but he knows that I have lots of customers in all - but through Sydney, that things - so I just rattled off names, said, "Yeah, I've got him, got him, got him", and I went, "Okay, right". So then I had a - a list to start ringing people to see if they were currently paid up members of North Shore Kart Club. Q. Who did you speak to? A. Well, I rang Josh Pontello and he told me that he was a member of Combined Districts so he wasn't eligible. Q. That's a different club, is it? A. Pardon? Q. A different club? A. Different club, different club couldn't vote in another club's election. Some people, like myself, were multiple - over the years were multiple members of multiple clubs. Q. Who else did you‑‑ A. Michael Pesh, he was from - he - he races Canberra, so even though he lives in Sydney just near me, he - he lives - he was a member of Canberra. But then I started finding people, there was Greg Campbell, who - who I know, Daniel Orsini‑‑ Q. How do you know Greg? A. Sorry? Q. How do you know Greg? A. Greg Campbell is just a customer, he buys lots of stuff off us now and again, and - and I remember he was racing at the Creek a lot, so I said, "Hey, you're a member, aren't you, can you give us a proxy?" "Yeah, sure, fine." Daniel Orsini I've known for 25 years, or something, I went to his 21st and he's 45 years old, so I've known him for a long time, and he worked for me for a number of years back in the 90s, so I've him for a long time. And another gentleman called Rod Star, Rod Star is - is a car fabricator and I - we have a really good rapport over the phone, and I know his son raced at Eastern Creek, so I got Rod. So though - I got those guys pretty quickly. Q. What did they do? A. Sorry? Q. What did those guys do after you‑‑ A. What happened with Greg Campbell, I've spoken with, and he said, "Just email me over the proxy form", so I emailed him over the proxy form. Daniel and Greg, I emailed them the proxy form as well. Greg sent the proxy form directly back himself, Daniel and Rod both took a - a - they printed out - printed out the proxy form, signed it, took an SMS photo, SMS'd it back to my phone, which I then printed out at my office, then from that SMS being I then - I personally sent it back to the - the - the secretary, 'cause the - all proxys had to be in by 7 o'clock that night, I had very little time to - to get it - proxy." (T 12-13)
The plaintiff gave the following explanation about obtaining a proxy from Mr Saade: "Q. Did you see Andre Saad on that day on 18 September? A. Yes, I did. Q. How was it that you came to see Mr Saad? A. Andre had bought stuff from me in the past. Andre had called me in the morning and asked - asked if I had a certain type of tyre in stock, which is a YLR tyre, which is the tyre for his - his kid's racing, that's the class, because different class had different tyres and - and different brands. And he rang me up, I said - if I had stock, I said, "Yep, you do - yes, I do". And in fact I was downstairs at the time in my dispatch bench, and I got the tyres, I picked them up and I put them right up next to the front door. Q. What happened, did Andre come to your warehouse? A. Andre - Andre - because Andre works very close to me, he - as the crow flies, only probably about a - a - a kilometre and a half from me, but because of the way it is - is in the Parramatta side of the river and - he has to drive a little bit further. He comes around, either Andre comes around or - or he sends one of his workers. Today - that particular day, on 18 September 2018, he attended my premises. Q. Did you have a conversation with him? A. I - yes, when he - when he turned up‑‑ Q. What did he say? A. ‑‑he turned up by himself. I said, "There's your tyres", all right, and just pointed at them. And then he took the tyres and put them in the back of his car. Andre was a little bit out of sorts at the time and I didn't - 'cause I'd spoken to him a few times et cetera, so it - this wasn't the first time he's ever come round, you know, we had a rapport, and I have a custom car that I'm doing up right at the front door, in - in a different - separate to the - the thing. And we're all in motorsport, so we started speaking about the car and what I'm doing to it, et cetera et cetera. And I said to him words to the effect, "Hey, Andre, are you in North Shore Kart Club", and he goes‑‑ Q. And what did he say? A. ‑‑"Yeah, I am, I'm - I'm with North Shore". I went, "Oh, great, okay. So you know all this" - words to the effect - and I apologise, I said, "You know all this bullshit going on between Karting Australia? A friend of mine, Mitch, is gonna go for the presidency of North Shore Kart Club, and Mitch is pro‑staying with Karting New South Wales and not doing any changes. Can I get your proxy vote off you?" He goes, "Yeah, sure, fine". I printed out the - we went - went over from the front door‑‑ Q. All right, what happened then? A. Okay - okay. We went from the front door where we're talking about the car, across to my dispatch bench, which also has a printer, and I printed out a copy of the proxy vote. Q. That's the document, you saw it in front of you, it's marked MFI 1. A. Yes. It's the same - same - same copy of that same document. Q. Printed out a copy of that document? A. And he - he filled it out with his - his details and - and signed it." (T 14-15)
The plaintiff also explained the circumstances in which he came to have a proxy for Mr Hamli: "Q. And did you say anything else to Andre after he gave you the forms? A. Yeah, I said, "Do you know anyone else", right, 'cause I only had a few hours to go and I'm - I was busy and I'd - and I was - and he was the fourth, I just needed a fifth, he goes, "I have a friend, Joe", said, "I'll give him a call". I say, "Hey, Joe, there's a proxy vote". He then used my computer, my dispatch computer that had a copy of the document, and emailed it to Joe. I'd - I don't even know how to - I've never met Joe, and his last name is spelling is H‑A‑M‑W‑I. I don't even know how to pronounce it. Q. Then what happened later that day? A. I received a return email from Joe saying, "All done", and I was CC'd, like, the similar to what Greg Campbell's one had done. Q. Who was it sent to? A. The - he CC'd me, but it was sent to the secretary of the North Shore Kart Club." (T 15)
The parties agree that the plaintiff went to the meeting with five proxies, as this was the maximum number he was entitled to have (T 201), which means that he had 3 proxies for persons whose names are unknown to the court. This may be relevant to the issue of identification of the unknown person who stood up, according to the plaintiff's witnesses, when the defendant made the claims about the plaintiff.
There can be no doubt that this was a tense meeting. The plaintiff described the circumstances in which he had difficulty entering the meeting room on the basis that his membership was challenged: "Q. What happened when you got there? A. When I got there, there was a - a - a gentleman by the name of David Hark at the front with a list of members, a members list, basically checking people off, and he was instructed that if you're not on the list you - you're not - you can't come in. Q. Did you have a conversation with Mr Hark? A. Yes, I did. The‑‑ Q. Can you tell the Court what he said and what you said? A. ‑‑okay, I‑‑ Q. Did he say something to you first? A. Well, David knows me, so he knows my name anyway. And he started looking through the list, and said, "Uh, you're not on the list." And I said, "I'm a member, I've been a member for a - for longer than you have been in karting." I said - he said, "If you're not on the list then you can't come." I said, "Dave, get real, I'm a member," words to that effect. And he says, "Nuh, you can't come in." And he was being very assertive, the way he put himself forward. Q. What did you say? What happened then? A. I said, "Get Pam," right. In other words‑‑" (T 16)
When the person referred to as "Pam" came, she confirmed his membership and he was allowed into the room. The plaintiff gave the same description of the room as was given by other witnesses, but described it as having approximately 50 plus persons at the time of the events he was describing. As the plaintiff was already running late, he looked around the room and saw a number of persons including his own brother, as well as following: "A. There was Mitch Lesina [sic]; Greg Holden; Michael Shiller, as - as per thing. There was - Rodney Labour was there. There was Chris - did I say Chris Nobbs? - or Chris Nobbs. There was Chris Dell, right, Chris Dell was there; Richard Erdmann." (T 18)
He described the room as "fairly noisy" (T 18). He described the defendant giving an opening presentation about the club and the circumstances in which the persons present "went into the voting process" (T 18). The voting was carried out in reverse, with the lowest positions being filled first, and Michael Shiller was automatically elected as an ordinary committee member as there was no opposition. The next position was that of vice president and it was at this stage that the plaintiff intended to use his five proxies. He described there being a queue to hand these proxies in: "A. Correct. So there was a - there was a - because everyone was - was voting, and then there - a - a queue had formed. You know, there's 50 people in the room. Some of them had multiple votes as well."
The club secretary, Richard Hazzard, was operating the computer and checking names off. The defendant was at the front of the queue accepting votes and checking them. When the plaintiff got to the front of the queue the following occurred: "A. Yep. As people approached the front, you say your name, you say your name, and then he looks it up on the list. When I said my name, "Martin Brien," Sam‑‑ Q. You said, "Martin Brien"? A. Yep. Sam spun around and - and - and approached me. Q. What happened then? A. Right. It's just‑‑ Q. Take your time. What did he say? A. Firstly, the three votes that were accepted, they got - think said, "Those ones. They've already been counted." He said, "Joe," right, because Joe, his last name is H‑A - H‑A‑M‑W‑I. I don't even know how to pronounce it. … WITNESS: Hamwi [sic - Hamli]. Okay. He said, "He's here," pointing towards the middle of the room, like, just pointing. And I went - I'd never met the guy so I didn't know - I didn't know him. SENIOR Q. So he said, "Joe's here," pointed over. A. Yeah, pointed here, "And he's going to do his vote himself." I went, "Okay. Fine. If he's here himself, he can, he can" - and then he said, "I have an email from Andre, and he said he only - he only did the proxy vote for a discount on tyres." Now, my reaction, and can I - can - I'm going to swear here. … SENIOR Q. What did you say to him? What was your reaction when he said that to you? A. I said, "That's fucking bullshit. That's a lie." Right? And - and I said‑‑ Q. And what did he say? Sorry. A. And he's basically, "I have an email." And I said, "I want to see a copy of that email." And I said it in a raised voice. This wasn't a - this wasn't a - you know, I said it in the most sternest possible fashion that - saying, "That's a fucking bullshit. That's a lie. I want to see that email." Right? Q. What did he say? A. And I said, "I'll show you after. We've got to do this." I said, "No. I want to see that email." And he said, "We have to do this," pointing towards the back behind me. And I turned around, and the queue was quite long. And I said - I walked away saying, "I want to see that email." And I walked away, right, walking down. Q. This might be a stupid question, but how did you feel after that conversation? A. I've just been accused of bribing someone. Right? Now, when I race, I race clean and fair, and I play fair in business. I don't - I know that many people in - in the sport. I don't need to bribe anyone. I could have run 20 other people for - I don't need to do it. Q. Now, what happened next? So you leave the queue. Did you‑‑ A. I left the queue, and I went and spoke to George Shalala. Q. Was that vote announced or was this not yet? A. No, no, no, no, I walked - I walked straight from where I've just been told this. Now, the - the - the - the queue was still going. Right? There was still either going to be another five, ten minutes of - of - of - of tallying the - the - so I went over to George and said, "Mate, I've just been accused of bribing Andrew for - for - with tyres to get his proxy vote." And George said words to the effect of, "Well, he didn't know he was voting against Sam." Right? That's - Andre didn't know he was voting against Sam. Right? Because I - my understanding is that Sam and Andre know each other very well. Q. What happened after that? A. I - it was either that time I spoke to Mitch Lesina at the meeting or it was after the - the next round. But I went and spoke to them, or I probably would have went sit down. And I had pretty much steam coming out my ears. But this - this point, it was only confined between what Sam and I had said." (T 21-22)
The next round of votes was the position of president and once again the plaintiff joined the queue: "Q. So there's was a queue. Sam was at the front again? A. The queue again. Sam was at the front. And this time I said, "I think that's a lie. I want to see that email." And he said, "After. After." Right? Was indicating. So I told him twice. Q. Did you say anything else? Or that was it? A. No, I was just - I wasn't going to have another conversation with him, with - with - I - yeah. Q. And while you were having that conversation or while you're at the front of the queue, were you handing over the votes in the same way? A. Yeah, yeah, but less. The only three this time. Think it was - yep. That the - I - I - I wasn't worried about the extra two votes. I've just been accused of something quite - you know what I mean?" (T 23)
At the time that the outcome of the election for president was announced, the plaintiff's telephone rang, and he went outside because it was the middle of an AGM meeting. Mr Shiller, who was upset about having been voted onto what he saw as a hostile committee, also got up and left. They had a conversation outside. The plaintiff thought to himself that he had "done my thing" (T 34) so he left the meeting and went home.
Later that evening, the plaintiff had a telephone conversation with Mr Lozina as follows: "A. Okay. It - it was that Sam had got up and stated that I had bribed Andre. That - that the proxy votes for Martin Brien were disallowed because I had bribed by offering tyre discounts. Okay. And I said - I went: "You are kidding." And he says: "No, mate, I'm not." And I said: "Mate, I told him twice that that was bullshit. That's a" - and I said: "Mate, I am sick of this shit." Right? And basically talking about referring to karting politics. I said: "Mate, I was there for you." Right? Q. Just take your time. A. And - and basically the phone call just ended fairly quickly after that. It was just - it was like - I was just gob smacked at that point, right?" (T 26)
The following day, the plaintiff spoke to Mr Erdmann as follows: "Q. And what did you say to him? A. I would have said: "Ah, Richard, I was on the phone with Mitch last night" - you know - "Did you hear what was said about me?" And he then confirmed that yes, Sam had got up‑‑ Q. What did he say? A. Okay. He said: "Yes, and he had a go at me as well", right? He had a go at me as well. He mentioned that he a - that Sam had a go at Richard, all right? Words to the effect about he - Richard had been on the side of Karting New South Wales. He said: "Yeah, Sam had a go at me. Stating that I had an ulterior motive of getting a job with - inside Karting New South Wales as a competition director" - or something along those lines? I - I can't remember exactly there. Q. What did Richard tell you‑‑ A. Richard told me that‑‑ Q. ‑‑that Sam said about you? A. Okay, he said that that - I - I've just remembered another thing from the - Andre - from the - from the - from the conversation I had with Mitch 'cause he - 'cause Richard brought it up as well. So this is from Richard and they both said that Sam had even pointed out someone in the room. That put their hand up and confirmed that this had happened. All right. Q. So what did Richard tell you‑‑ A. Richard‑‑ Q. ‑‑during the conversation with Richard that Sam had said about you during the AGM? A. He said almost exactly the same as - as Mitch, that he said that - that "I obtained a - a - a proxy vote by discounting and - and - and basically bribing someone with a set of tyres with a discount on tyres to obtain a proxy vote" and that's why my proxy votes was disallowed. Q. And what did you say to Richard? A. And I said, that was fucking bullshit, right? And I said: "I don't know" - and I said "I basically - I don't know why Andre's done this to me." You know? "Why would he have done it?" Right? I've got - and I had no idea." (T 27-28)
On Tuesday 25 September 2018, the plaintiff had a conversation with Mr Saade as follows: "Q. Was it the 19th or was it the day after? A. Sorry, the day after. Sorry. Yes, I - I spoke to Mitch on the 19th and then - that was the Friday. Right? That was the Friday I spoke to Richard. Okay, then the weekend happened - Monday - and then the following Tuesday which was the 25th. So Tuesday the 25th. Now, I have a VOIP phone system and I went back and looked this up. I had a phone call at a few minutes past 8 in the morning and the phone call went - I said: "Oh, hi" - I always answer the phone "Hi, this is Martin." I always sound as - try to sound as bubbly and - and - and as approachable and as uplifting as possible because I'm a sales guy, right? I said: "Hi, this is Andre" and I went: "Andre who?" I could not believe that Andre would dare call me. I said: "Mate, I think it's just better that we just" - you know - "Go our separate ways, mate." He goes, "No, no, no, no". He then - Andre used the words, "No, no, no, no, it's not what you think." And I said, "What do you mean?" Said - said, "I didn't say that in my email." So he said words to effect, he said, "I hear you believe that" - I can't - got to get this right, because this conversation went on for approximately one hour, so this was a long conversation, right, and Andre explained a lot of things to me over the phone. So I've got to try and get this - what - what had happened at this point. Q. What did Andre say to you? A. Basically, when I said, "I think we should just part ways, mate", and he said, "No, no, no, it's not what you think, right, I didn't say - I didn't say that", like, like, meaning he didn't send that in the email, "I didn't say that in the email", right. Q. What did you say? A. And I said, "Well, that's not what the - you know, that's not what everyone thinks." Q. He said, "Mate, all I ever put in that email was that I didn't realise I was voting against Sam, and I wished to, like, pull my proxy vote", because Andre knew Sam, they - I believe they'd raced together, I'm not sure, but we can ask him those questions. And that he didn't want to get in the middle and - and - between Sam. So obviously for Andre to have his vote pulled, or he - he - he'd found out later. Q. What else did you say and Andre say? A. We'll say - Andre then read me a copy of the email over the phone, or words to the effect, basically say, you know, "I, Andre hereby rescind my proxy vote due to" - what was it, I've got to get this right, okay, - "I - I rescind my proxy vote due to a misunderstanding", or something along the - words to that - along those lines, over the conversation. And then I went, "Oh mate, this has caused me a - a real headache, right, this has hurt my reputation, mate, this is just - I'm - again, I'm sick of this politics and all that sort of stuff, et cetera." Andre then went on to explain - 'cause I'd - I'd known - I - Andre had been at my place a few times, and when Andre had turned up originally to pick up his tyres, he was a little bit of - out of sorts, and in the conversation‑‑ Q. What did Andre say? A. Andre said that he wasn't thinking straight because he had just come from the morgue and had to identify his cousin, right. And so - and - and he told me, that was very person information, and that's what he - he told me. And I said, "Oh, man, that must be, you know", and I - things - and I then start calming down, realising that Andre hadn't done - thrown me under the bus, 'cause I'd spent the whole weekend going, "Why would this person do that", and now he was explaining himself, "So, I wasn't thinking straight, I should have asked you more questions", things like that, okay. So then I started talking to him about his son's karting and - and things like that, and in fact, Andre then went on to order more tyres off me and some spark plugs and a sprocket. Q. How did you feel after Andre had told you that he had heard about what had happened in the AGM, or what Sam had said about you in the AGM? A. Sorry, can you repeat the question? Q. How did you feel when Andre told you what he had heard Sam had said at the AGM about you? A. Uplifted, right, uplifted, because I'd now realised that somebody who I thought was a good customer, that I'd helped out a few time, hadn't thrown me under the bus, right, so I felt - going okay, so now I was looking for - how did this happen, so that's - that's - so, I - I felt it right. I then went on to knowing that the only - my - I wanted an apology, I wanted to go down the path - well‑‑" (T 28-30)
The plaintiff described other telephone conversations he had, including a conversation with Mr Vitlic, whom he had never met before (T 31). He spoke to others including Mr Micallef, Mr Dell, Mr Riches, Mr Steve Donnelly and Mr Shiller.
Some of the people when the plaintiff spoke to, such as Mr Donnelly, said he "didn't hear it" (T 31). Others such as Rodney Labour said "I'm not gonna comment, I'm not gonna get involved" (T 32). Mr Vitlic said he heard what was said and "I was disgusted" at the way the defendant conducted himself (T 32).
Others had expressed themselves as having a general recollection. A Mr Chris Nobbs, another race competitor, said "Yeah, I remember something about $20.00 and some tyres" (T 33) and a Mr Greg Holden confirmed that he heard it but said "We're - we're going to still race there. I don't want any come back on this mate. I do not want to get involved" (T 34). Another person in the audience, Mr Miccallef said "Mate, we looked around to see if we could see you" (T 35). Mr Dell and Mr Riches both confirmed what was said. Mr Riches came to the plaintiff's office and said "A little birdie tells me that you're suing Sam" (T 36) and said that he had been there and had heard "something along the lines of tyres and boats [sic - votes]", but that this was seven months after the event. Nevertheless, although it was seven months later, Mr Riches "remembers it clearly" (T 36).
None of the above evidence, and in particular the evidence concerning the conversation with Mr Saade, was the subject of challenge in cross-examination (nor, for that matter, were Mr Vitlic and Mr Micallef cross-examined about their subsequent conversations with the plaintiff, which are in very different terms to the evidence they gave, although the plaintiff had given evidence before they did).
The plaintiff was challenged as to his conversation with the defendant about the proxies. It was put to him that the defendant said to him: "Q. All right. Well, at that point Mr Mrad said to you, "Andre has withdrawn his proxy vote. He told me he thought the vote was to leave Karting Australia and not to vote for committee members. You can't vote on their behalf." Do you agree with that or disagree? A. That's incorrect." (T 40)
The plaintiff denied saying this. He said he told the defendant that this was "bullshit" and that the defendant said "I have printed the email from Andre" and the defendant had said he would show this email to him afterwards (T 41). He asked for the email a second time in relation to the second vote (T 41).
It was put to him that the defendant never said these words to him: "Q. Well, I suggest to you that Mr Mrad didn't at any time say to you these words, "Andre only signed the proxies because you would give him a discount on tyres." Never said that, did he? A. Yes, he did. Q. Because I suggest to you Mr Mrad never said it, you had no occasion to tell him that that statement was a lie, did you? A. The statement that I made - can you rephrase that so I know very clearly how I can answer this, all right? Q. Sorry, I'm suggesting to you that Mr Mrad never said this to you; "Andre only signed the proxies because you would give him a discount on tyres." A. He did say that statement. Q. I'm also suggesting to you that you never told him that that statement was a lie? A. Yes I did, and I said it in the strongest words possible." (T 41)
As to what the "strongest words" were, the plaintiff was not cross-examined about telling the defendant that what the defendant was saying was "bullshit" (T 21, 22, 40, 41). This is important evidence, because Mr Erdmann (T 92) said he heard the plaintiff say this, while the defendant (T 133, 134) twice denied it in his evidence. One of the conflicting pieces of evidence in these proceedings is that, inconsistently with the defendant's denial in his evidence, the defence filed in these proceedings states that the plaintiff used the word "bullshit".
It was put to the plaintiff that this version of the conversation was inconsistent with a summary of the conversation set out in a letter from his solicitors dated 5 October 2018 (T 42-43). It was also put to him that it was different from the version given in answers to interrogatories (T 44-46). I regard these differences as being due to the fact that these documents are effectively legal in nature and consist of summaries by others, whereas the plaintiff's evidence in the witness box is his own unvarnished description of what he recalls actually saying.
Although part of the cross-examination was to be put on the basis that the witness' recollection (including that of the plaintiff) of what the defendant said at the meeting was "coloured by their animosity towards [the defendant]" (T 52) and that there was "an association between the plaintiff and the witnesses he proposes to call" (T 53), this line of questioning was not explored further in cross-examination or indeed in submissions. I note, however, the plaintiff's answer at T 53, which effectively answers this question in any event: "Q. When you agreed to gather property forms for Mr Lozina prior to the AGM, you understood what his agenda for the club was, to use your expression, didn't you? A. I support Mitch Lozina. I'm not really associated - I haven't raced at the club for four or five years. Mitch came to me and wanted my support to back him at the thing, and he's a friend and I know he's of good character. This is the third time I've ever met Sam in my life. So I didn't even know Sam's name." (T 53)
The evidence of the plaintiff and all the witnesses he called paints a picture of a busy and at times noisy and angry meeting, where the lines of dispute were well drawn. What, then, do the defendant and his witnesses say happen?

The evidence of the defendant and his witnesses

The defendant and his witnesses all state that neither the plaintiff nor Endree Saade were mentioned by name at the meeting and that no allegations of any kind in relation to the giving of proxies in exchange for anything were made. However, as is the case with the witnesses for the plaintiff, that evidence needs to be seen in context of what they said did occur.

The defendant

The defendant described the circumstances in which he had nominated for re-election for his position as president of the North Shore Karting Club (T 116-117). He described a conversation he had with Mr Saade the day before the AGM as follows: "Q. Just thinking about the period in the couple of weeks before that AGM, did you have any conversations with Andre Saad prior to the AGM? A. Yes, I did. Q. What was your reason for speaking with Mr Saad? A. So, he had a death in his family, and I knew Andre pretty well because our sons raced together at the club, and when I learnt of the death of his relative, I - I called to give my condolences. It - I believe the conversation was the day before the AGM, from memory, some - sometime around then. I asked him if he was attending the AGM. Naturally, I was, you know, asking anyone from the club that I sort of spoke to leading up to the AGM if they were attending because there was a lot of interest around the AGM. There was - yeah - an indication that we were going to get a lot of people attending, and he said that he wasn't but he - that he filled out a proxy for the club to break away from Karting Australia, and I said, "What do you mean, what kind of proxy is that?" And he said, "Well, you know, someone got me to fill out a proxy telling me that they are voting for whether the club stays with Karting New South Wales and breaks away from Karting Australia, or stays with Karting Australia", so‑‑ Q. Can I just stop you there; you said that somebody got him to fill out the proxy form. Did he tell you who? A. Yes, Martin Brien. HER HONOUR Q. I'm sorry, say that again. That name, I didn't catch that name. A. Martin Brien. OLSON Q. At that point in time, did you know who Mr Brien was? A. I'd never heard of him. Q. Mr Saad told you that he filled out a proxy form which had been given to him by Mr Brien. What did you say then? A. I said, "I don't believe you have the right information on what that proxy vote was for because I don't believe the members are voting on such matter", and that the vote was for the new committee for the - for the next term of office. Q. Did Mr Saad then say something to you? A. Yeah. He then said, "Well, I had - I didn't know that and I want to withdraw my proxies", and I said, "Well, if that's what you want to do, then you would have to email the club committee, either myself or the secretary and - and advise us that you want to withdraw your proxy and the reasons why." Q. Did he email you? A. Correct. DOCUMENT SHOWN TO WITNESS Q. Is that the email that Mr Saad sent you? A. Yes, it is." (T 117-118)
The defendant said that he had never heard of "Martin Brien" until this name was mentioned by Mr Saade and that it was in this context that he told Mr Saade, "I don't believe you have the right information on what that proxy vote was for because I don't believe the members are voting on such matter" (T 117). This is surprising evidence, because the defendant was aware of proxy votes being sent for the meeting and, if he had seen the plaintiff's proxy for Mr Saade, he must have seen who was providing it to the club.
What did Mr Saade's email say? The text is as follows: "Proxy Vote Yesterday I filled in a proxy vote under the impression that this proxy vote was for voting between Karting NSW and Karting Australia. I was not told that the vote was for the NSKC election. Due to a family death I was not in the right state of mind to fully read the form and signed based on trusting what was told to me. Call it a misunderstanding but I would like effective immediately to withdraw my proxy vote. I know the current president Sam Mrad and I am happy with his position. Kind regards Endree Saade" (Exhibit 2)
The defendant acknowledged he had a dispute with the plaintiff about Mr Saade, on two occasions, but said that it was only to this limited extent. As is noted above, he denied that the plaintiff replied by saying "bullshit".
The defendant's account of what he said at the meeting was a surprise, as his version of what occurred was not put to any of the plaintiff's witnesses. The plaintiff told the court that he had carefully prepared a script which he read out more or less "word for word" (T 141) at the AGM, so much so that he did not make much eye contact with the audience during this speech because he was reading from "the paper" (T 121-122): "I wasn't making much eye to eye contact with the - with the attendees. I was sort of just reading straight off the paper."
His evidence, a point emphasised in the defendant's written submissions, was that this made it impossible for him to have named the plaintiff or to have said anything about it at all (written submissions, paragraph 7).
The text of this "paper" is as follows: "Good evening everyone, welcome to the 2018 North Shore Kart Club AGM. I would like to start by thanking all of our club members for their continued support throughout the years attending all the race meets and providing us with thrilling racing every time, without you all there would be no club. I would like to thank each and every one of our dedicated committee members that have been active within the club this year and in previous years for all the hard work you have all put in to provide this great kart club for our members. For those of you who don't know, the committee is comprised of people who have full time jobs (outside of karting of course) and have families and children who need to be looked after. Regardless of this, they all continue to take time out of their daily life to show up and take part at committee meetings, organise the clubs affairs and organise & run every race meet at eastern creek so that you all can enjoy a good days racing. We all work in harmony and with the best intentions at heart. We do this for nothing more than the love and passion of the sport that is Kart Racing. I have been president of the club for just under 9 months now. I have been a member of the club for a few years, I used to race very regularly and now I look after my son who is also a member and races at Eastern Creek. Last year I was approached by the club committee and several other people who requested that I put myself up for nomination as club president. At the time there was little to no interest from anyone wanting to run the club. My response was that I struggle to find enough time in the day to run my business, let alone run a kart club. Eventually I was asked to take the job on that many times that I felt honoured to have been viewed by my fellow club members as someone who they would like to see run the club as president. So I decided to take on the role, Within [sic] this short period of time I have gained a great deal of experience in running the club and have formed a great relationship with my fellow committee members. As you all know, we have recently been receiving correspondence from both KNSW and KA and unfortunately the average club Karter has been involved in the politics of the sport and they have been quite ugly to say the least. What matters to us as a club first and foremost is that everyone enjoys the sport. Secondly that we don't loose [sic] competitors and the numbers keep increasing. I have a table of entries from the rounds of 2017 compared to the rounds of 2018. We have been requested to submit a vote regarding KNSW disaffiliating from KA. We as a club have the responsibility to make an informed decision and the right decision. Last week I received a phone call from Mr Lazino stating that he will be nominated for president of the club and that the first thing he would do is disaffiliate from KA and break away with KNSW. My response to him was that me as the current president wouldn't make any decision without first consulting the clubs members and getting their feedback on the situation. I find it quite alarming that mr lazino wants to become club president and force his own agenda without the consideration of everyone else who is a part of this decision. Last night myself and a quorum of committee members met with the chairman of knsw, Mr David Filipeto and his assistant Mr Richard Erdman who is to become the competition director of the sport should it break away from KA, to discuss their plan moving forward. While I am certain they have the best of intentions for our sport, I can safely say there was no concrete plan. David Filipeto introduced himself by saying that he does not have a karting background, he also said ive been in the sport for 5 minutes. His background of work is an employee of Qantas for 26 odd years and cityrail for 5 or 6 years and then he did a directorship course 3 years ago. This came across as a big surprise to me that the person leading this move to set up a whole new organisation in this sport actually knows nothing about it. There wasn't a single question that we asked where we got a straight answer for. When I asked financial questions like how much is this going to cost or where are you going to get the money from, the response from david was, I didn't bring my accountant with me. I asked if the levy that we pay per race entry which is currently $27 would be reduced? he responded by saying we will TRY. He could not give me a figure. Or couldn't even guarantee that it was going to be cheaper so that we can pass on these savings to the karters. The end of the financial discussions were met with a statement from Mr filipeto that I have written down right here in my notebook, "Financially we're not flush, but we know we can do it" The timing system will be mylaps - david said "we don't think we'll need to get rid of mylaps" my question now is what will the software be? The cms system is an unknown The rule book has to be re written Restrictors Rule 1936 In reference to old engines, the people who own them and used to race them are a generation that has moved on. Times are changing and so has the sport. My view is that the sport needs to be marketed by KA and all the state associations to not only the inner karting circle, but to the general public who know nothing about the sport. To motorsport fans through targeted marketing and other avenues that work in this day and age. When I asked what their marketing plan was to bring more people to the sport, they had none. After pressing the question I got the response that andy tyshurst would be appointed as marketing director. I asked what qualifications and experience he had, I was told he was "good at marketing". As stated earlier, the people running KNSW have the best of intentions for the sport, but we have yet to be convinced of their capabilities of carrying out such a monumental task, which can only ever be bad for the sport, as there has never been a fracture in any sport that has ended well. My intention at this stage is to bring both Karting Australia and KNSW to the table and try to mediate and come up with a solution to these problems. We are a strong club, rather than just go one way or another, I believe I can achieve a great outcome for the sport across the board, including change. I know the organisers of this sport well and we have a good relationship and understanding, which is why I believe I can be of influence. I am not one sided. I believe in a fair and democratic sport. In the recent weeks I have dealt with threats and all sorts of ridiculous tactics to try and force our club to break away and go with KNSW. We won't fall for any tactics or threats, we will stand for the best interests of our club and sport. Regardless of which way the votes go on Friday, a club still has the power to affiliate with the break away assosciation [sic] or stay under the KA banner at any time. Thank You" (Exhibit 3) [Original spelling retained]
The defendant insisted that at no time during the AGM did he mention the plaintiff's name: "Q. In response to any question that was asked, do you recall mentioning Martin Brien for any reason? A. At no time did I mention Martin Brien's name." (T 123)
Mr Olson points out that the defendant was not cross-examined about his claim to have read out aloud from his written speech (written submissions, paragraph 9). While that is a compelling submission, none of the plaintiff's witnesses, or even the defendant's witnesses, were asked by Mr Olson about whether they observed the defendant reading a speech. Nor did Mr Olson put extracts from that speech in order to contradict the plaintiff's evidence about what the defendant said (for example, Mr Lozina claimed the defendant never mentioned him at all, which could easily have been challenged by putting the relevant extract from Exhibit 3 to him). In Browne v Dunn terms (Browne v Dunn (1893) 6 R 67), the plaintiff and defendants were two ships passing in the night and the difficulties of reconciling their testimony is one of the reasons why it has been necessary to set out the evidence of the witnesses at such great length.
The defendant was not an impressive witness. As is set out in more detail below, the defendant's witnesses, who all state that the defendant had not said anything at all about the plaintiff, were not much more impressive. They acknowledged they did not know the plaintiff - most said that they had never heard of him before the meeting - but they were all certain that he had not been named.
They were not as certain, however, about other events which occurred during the evening, such as whether other persons such as Mr Erdmann were named. This may be because some of those witnesses appear to have come into the matter as witnesses relatively recently; for example, Mr Quinlan said that he had not heard the name "Martin Brien" "until this week" (T 167). Mr Heard said that he had first heard the name "a couple of weeks ago" (T 179). These witnesses' certainty that the plaintiff was never named needs to be viewed in the context of their evidence about other events on the night in question.

The defendant's witnesses

The evidence of the defendant's witnesses concerning the speech he gave is the central part of the evidence. As the summaries of evidence set out below show, none of the defendant's witnesses refer to his having read aloud from a written speech, although one was sitting as close as a metre and a half away. Several of the witnesses did not describe him as giving a speech at all (one of them described the defendant as acting like a mediator between the warring groups) and their account of what was said varies significantly, as did their ability to recall what occurred.

Mr Darren Cohen

Mr Cohen told the court that he was a part of the committee (T 149) but prior to that had not known the defendant. He did not know the plaintiff.
Mr Cohen's evidence, from the beginning of his examination in chief, was couched in terms such as "I guess" (see T 150 lines 18 and 29; T 152 line 15, T 153 line 6) and "probably" (T 151 line 47, T 153 line 10, T 154 line 48, T 155 line 7). He appeared, from his demeanour in the witness box, to be having difficulty remembering what occurred.
When Mr Cohen was able to recall what occurred, his description of what the defendant said was very general. When asked about what the defendant said after the election (in other words, about the speech the defendant said he gave) Mr Cohen replied that "[h]e just wanted to congratulate everybody. It was really a congratulation and the results" (T 151).
Mr Cohen acknowledged that the meeting was "pretty rowdy" (T 151) but in cross-examination conceded that this was only a "bit of noise" (T 152). He did not suggest that he or others he knew of were having difficulty hearing.
Despite this, Mr Cohen was certain that there had been no mention of either the plaintiff or Mr Saade during the speech (T 151).
The likelihood of accuracy of this recollection may be tested by his answers to questions about whether Mr Lozina was mentioned: "Q. You mentioned that Sam gave a speech at the end after the voting. A. Mm-hmm. Q. You said that the topics were congratulation and the results. A. (No verbal reply) Q. During that speech that Sam made, he mentioned Mitch Lozina. Didn't he? A. (No verbal reply) Q. Did he mention Mitch Lozina? A. (No verbal reply) HER HONOUR Q. That's a question that you have to answer. A. More than likely cause he was voting him, so I guess the answer's yes. Q. Sir, when you say more than likely, do you have an actual recollection of his mentioning Mitch Lozina? Yes or no. A. Yes, for the reason that he was probably - he was voting against him, so the answer's yes. Q. We want to know if you have an actual recollection, not what you think might have happened. A. Okay, yes. Q. You have an actual recollection of his mentioning his name. A. His name would have been mentioned. SENIOR Q. Do you have an actual recollection of his name being mentioned, or are you saying it would have been or you think it might have been? Or you just can't remember either way bearing in mind it's in‑‑ A. I'm pretty sure he probably would of said, yes." (T 152-153)
This is important because whether Mr Lozina was mentioned, and what was said about him, would indicate whether or not the defendant was reading from his speech. According to the text of the speech (Exhibit 3), the defendant had some hard things to say about Mr Lozina. According to Mr Cohen, all that the defendant did was to congratulate Mr Lozina for standing.
Mr Cohen was similarly vague about Mr Erdmann: "Q. What about Richard Erdmann? Did he mention Richard Erdmann as well? A. (No verbal reply) Q. If you can't remember, that's okay. Just tell the Court what you‑‑ A. When did - well, we - I remember Richard Erdmann gave a speech, so if he said, "Here's the mic" to Richard Erdmann, then he would of spoken to him. Q. Did Sam say anything‑‑ A. Whether he said it in the speech, I'm not sure. I can't remember, sorry." (T 153)
It was following this, when asked if the defendant had mentioned the plaintiff's name, he said "I don't believe so" (T 153). However, the one aspect of the evidence upon which most witnesses were consistent was that Mr Erdmann had not only been mentioned but had stood up to object to what was said.
His answers about Mr Filipetto were similarly vague: "Q. Did Sam say anything about David Filipetto? A. Through the speech, I presume‑‑ Q. Yes. A. -probably more than likely, the fact that we had a - a meeting the night before with the guy. I presume, and he was‑‑ Q. Did he or didn't he? More than likely, did he say something? A. Yes. HER HONOUR Q. What did he say? A. Probably mention - not probably, I'll rephrase that. Well, he's part of the other crew that were‑‑ Q. Sir, we want to know what he said about Mr Filipetto. Now, you said that Mr Filipetto's name was mentioned, what did he say about Mr Filipetto? Do you remember or don't you? A. Well, okay. I just need a second to think about it then. Well, okay. So, we - we met him the night before and Sam would of mentioned‑‑ Q. Sir, what we want to know is what Mr Mrad said. Please answer the question. If you can't remember, just say so. A. Okay, I'll just say I don't remember cause I can't remember exactly‑‑ SENIOR Q. You can't remember‑‑ A. I can't remember the exact‑‑ Q. That's your answer, you can't remember. A. Okay, so I can't rush it out right now. Q. Beg your pardon. A. I can't remember what he said. Q. Because this all happened a year ago, quite a long time ago. A. Okay. Q. You can't give a verbatim account of what people said. That's fair, isn't it? A. (No verbal reply) HER HONOUR Q. You have to answer. A. I thought he was telling me. Q. No, he's asking you. A. Okay. Q. You can't give a verbatim account of what was said, can you? A. I don't remember what he said about Filipetto, no." (T 154-155)
Eventually, Mr Cohen admitted he could not remember what was said about Mr Filipetto.
Mr Cohen's evidence was of no weight whatsoever. He clearly has no recollection of the events in question and what recollection he does have is inconsistent with the description of other persons present. His evidence should be rejected.

Mr Peter Pronseti

Mr Pronseti, a member of the club, gave evidence which was factually inconsistent with other persons present. For example, he considered that there were between 100 and 150 people present (T 157) and "everyone spoke before the voting" (T 158) which is contrary to the evidence given by all other witnesses.
Mr Pronseti, consistently with all other witnesses, made no mention of the defendant reading from a speech. To the contrary, he said that the defendant had "just said come up front and speak with the mic" (T 160).
Mr Pronseti offered the explanation that he would have remembered the name Martin Brien "you know, like I'm an active shooter, so that's what the name comes across to me, so I'd remember" (T 161), which I assume is some reference to the similarity between the plaintiff's name and the person convicted of mass shooting in Tasmania. He also said he thought he would have remembered hearing about an offer of discount on tyres in return for proxy votes because, if so, he would have bought some as he was "into saving money" (T 161).
However, Mr Pronseti's recollection of the rest of the contents of this speech are inconsistent with the other witnesses called by the defendant. While Mr Pronseti said that he did not think the defendant mentioned Mr Lozina in this speech (T 159), which is consistent with Mr Lozina and the plaintiff's witnesses, he also said that the defendant did not mention Mr Erdmann in his speech (T 150 and 156), although the other witnesses said that he was mentioned. He did, however, claim that "Richard got up and spoke" (T 160). It would have been hard for anyone to miss the statements made about Mr Erdmann which led to Mr Erdmann standing up and wanting to be heard in reply,
Mr Pronseti's positive assertion that the defendant never mentioned the plaintiff (T 161) sits poorly on a witness whose recollection of other events of the evening is vague and inconsistent. His description of these events, including the defendant's speech, as occurring before the voting is wholly inconsistent with what occurred. His evidence is unreliable and should not be accepted.

Mr Christopher Quinlan

Mr Quinlan had been a member of the club for 18 years at the time he attended the AGM, which he thought was in July or August of 2018. He did not know who Martin Brien was, but he was certain that nothing was said about either him or Mr Saade, whom he did know.
Mr Quinlan made no reference to the defendant reading out a prepared speech, or even giving a formal speech at all. Instead, he described the defendant as playing the role of "mediator" thanking everyone for their support (T 164). He said that the defendant mentioned Mr Lozina, but merely "congratulated him" (T 166), although adding that there was "a lot of back and forth before the meeting, in emails" about Mr Lozina (T 166), to which he was asked: "Q. No, so we want to know what he said in the speech. So you said that he congratulated Mr Lozina‑‑ A. Mm-hmm. Q. ‑‑and that Mr Lozina had been running for president. We want to know what else he said about Mr Lozina that you can recall. A. (No verbal reply) Q. You're shaking your head. A. Nothing." (T 166)
That is a very different description of what the defendant would have said about Mr Lozina if he was reading from a written speech.
Mr Quinlan was unable to recall anything being said about Mr Erdmann, whom he did not know. All he could recall about Mr Filipetto was that there was a claim that there had been a meeting. The dramatic circumstances of Mr Erdmann being referred to and then standing up wanting to reply also passed him by.
An additional problem for Mr Quinlan was that he had clearly only been asked to turn his mind to these issues recently, in that he had not heard the plaintiff's name "until this week" (T 167). As someone who did not know who the plaintiff was (T 165), he would have had no particular reason to remember, after such a long period of time, whether his name had been mentioned at all. Although he volunteered that he would have done so if that name was linked to Mr Saade (T 168), he eventually agreed that if the plaintiff's name had not been mentioned alongside Mr Saade, he would not probably have remembered it: "Q. No - I'm just trying to clarify your answer. So that was your answer. So I'm asking you if that name had been mentioned and Andre's name hadn't been mentioned, then you probably wouldn't have remembered. A. No. Q. After the AGM‑‑ A. Yes. Q. So since the AGM, have you spoken to anyone or has anyone spoken to you about an allegation being made in the AGM about someone offering discounts on tyres for votes? A. No - I hadn't heard that till this week. HIS HONOUR Q. You say till this week, what happened this week? A. Just when I was asked to be called as a witness." (T 168)
Given the very recent call on this witness' memory, his inconsistent and vague evidence is of no assistance.

Mr David Haak

Mr Haak, like the other witnesses, said he did not recall the defendant mentioning the plaintiff, Mr Saade, bribery or discounted car parts (T 172). He could not, however, recall the month in which the AGM was held (T 170 line 39 - August and not September). When asked what topics were discussed by the defendant during his speech, he had a struggle to reply: "WITNESS: I'm trying to remember. It was a long time ago. I can't remember all of it. But yeah, he did discuss the club's position on why it's - why it's not ready to move to New South Wales as a karting body and that's about it. That was pretty much the main thing that was said. There was a lot of - at that point, there was a lot of commotion in the room, so" (T 171-172)
In common with the other witnesses, Mr Haak did not describe the defendant reading aloud from a speech. In fact, he did not describe a speech so much as a scenario where a lot of people wanted to have their say and were "talking over Sam" (T 172). Some of what was said could not be heard by him as a result, as there was "a lot of yelling" (T 173).
Mr Haak did, however, have a recollection of important parts of what the defendant said, stating that he recalled the defendant saying, about Mr Filipetto, that he "doesn't really know much about karting" (T 173). He also said that the proceedings got "very, very rowdy" (T 173) when Mr Erdmann was mentioned by the defendant. He said that the "meeting got a bit out of control, and Richard - Richard just kept overtalking Sam. Sam tried to over talk back, and he just kept overtalking, and it just kept snowballing into getting nowhere." (T 173-174). He went on to say: "Q. There was a slaying [sic] match basically between the two of them. A. Pretty much. Not - yeah, was - wasn't - Sam tried to keep his cool, but Richard just keeps going but that's just Richard. I've known Richard a long time, and he - he's very relentless. He doesn't stop." (T 174)
He also recalled that the defendant mentioned Mr Lozina in his speech as "trying to take over the club" (T 173).
Mr Haak's recollection of the statements concerning Mr Erdmann (T 173) is consistent with the evidence of the plaintiff's witnesses, as well as with the allegations made in Exhibit 3. Mr Haak has a better recollection of the events in question than the other witnesses called by the defendant. However, Mr Haak's recollection is at best erratic. He admitted that, when asked about the topics discussed by the defendant during his speech that he did not have a particularly good recollection (see the portion of transcript at T 171-172 as set out above). When seen in context, Mr Haak's claim that he was certain the plaintiff's name was not mentioned at all should be viewed with suspicion. His evidence is of limited assistance in terms of determining what was said on the night in question.

Mr Martin Heard

Mr Heard did not have a good recollection of the AGM, which he thought had occurred "earlier in the year", namely 2019 (T 175). In fact it occurred in September 2018. His description of what occurred was totally at variance with the other witnesses. For example, he said that most positions were unopposed and voting took place by raising hands or responding in the affirmative (T 176); no other witness gave such evidence. He did not refer to proxies although other witnesses said that the proxy voting delays were a major feature of the evening's confusion. He also described the defendant as looking at his phone and talking to people and said that the defendant did not give a speech at all: "he didn't actually address the assembly as such, no" (T 177).
Although Mr Heard denied having any position in the dispute, saying that this was just the club where his children raced, there would not be much doubt as to with whom Mr Heard's loyalties lay, given his response to this question as to who was standing for election: "Q. Who did you understand was running for office in that election? A Sam was running for re election and a new contender had come out of nowhere, a gentleman called Mitch Lozina. They basically wanted to take over the club. There's no two ways of saying it." (T 176)
His answers concerning whether the plaintiff's name had been mentioned were similarly combative: "Q. Well, how do you know he didn't mention Martin's name? A. Because I was very passionate about that meeting. I put my heart and soul into that club, and we were looking for the victory that we got, and I was listening to every word he said. Q. Right. A. I was sitting near him, my hearing is perfect, I have tests to prove it; wasn't said. Q. What wasn't said? A. The names that you're asking me about. They were not said." (T 178)
This certainty existed even though he had only been asked about the events of that night very recently, and had had no discussions during the intervening period: "Q. After the AGM itself, did you have any conversations with any members about any allegations that had been about Martin at the AGM? A. At the AGM? Q. Yes. A. No. Q. So no words? A. The first I heard of this was a couple of weeks ago." (T 179)
He did, however, acknowledge that the defendant had a "couple of cheeky digs at a few people that tried to unseat him" (T 176). This was "because of the way they ran their campaign". When asked who the few people were, he quickly drew back: "Q. You mentioned that Sam had a couple of cheeky digs at people. Who were the people that he took cheeky digs at? A. Just Mitch, because of the way they ran their campaign and obviously we're all hoping that - there's two rival factions, we were hoping that our faction would win, which it did. So nothing untoward, just a bit of a cheeky dig, it was humorous to most people." (T 177)
When pressed to identify who else, he thought that Mr Filipetto's name may have been mentioned "later on" (T 177) but did not name Mr Erdmann, although stating that he had a conversation with Mr Erdmann "about karting in general" (T 179) at the end of the meeting on the night in question.
Mr Heard's inaccurate description of the meeting and voting process (which also leaves out the proxy voting), his obvious partiality and the recent nature of the call on his recollection mean that little or no weight can be placed on his recollection.

Credit issues

Although statements are now more commonly used in defamation actions, defamation claims, like personal injury claims, have a long history of being conducted on the basis of a viva voce examination in chief. Whether for this reason or because of the nature of defamation generally, there is a potentially greater possibility for, if not trial by ambush, surprise in the twists and turns of the trial. This has an impact on how the court deals with two areas of evidence, namely findings as to credit and the rule in Browne v Dunn.
There is a degree of acceptance of this feature of oral evidence (as opposed to cross-examination on a previously served statement) in both personal injury and defamation actions. In McGlen-McLeod v Galloway [2012] NSWCA 368, a personal injury claim, Tobias A-JA cited with approval the observations of Tugendhat J in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at [73]-[74] concerning the role of credit in the determination of factual issues: ""[73] There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed "The Judge as Juror: The Judicial Determination of Factual Issues" … Lord Bingham cited Sir Richard Eggleston QC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not: (1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred; (2) the internal consistency of the witness's evidence; (3) consistency with what the witness has said or deposed on other occasions; (4) the credit of the witness in relation to matters not germane to the litigation; (5) the demeanour of the witness. [74] Lord Bingham then added these observations: "In choosing between witnesses on the basis of probability, a judge must of course bear in mind that the improbable account may nonetheless be the true one. The improbable is, by definition, as I think Lord Devlin once observed, that which may happen, and obvious injustice could result if a story told in evidence were too readily rejected simply because it was bizarre, surprising or unprecedented … so long as there is any realistic chance of a witness being honestly mistaken rather than deliberately dishonest a judge will no doubt hold him to be so, not so much out of charity as out of a cautious reluctance to brand anyone a liar (and perjurer) unless he is plainly shown to be such.""
Where the credibility of a witness' evidence is challenged, the question of whether the evidence relied upon by the opposing party has been put to the witness (the ruling in Browne v Dunn) is an essential factor: Beattie v Ball (1999) 3 VR 1. As Hunt J notes in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 18, the rule in Browne v Dunn concerns not only fairness but also the weight or cogency of evidence. Where there has been a failure to put to the opposing party in cross-examination what that party's case may be, the issue is not one of credibility but of whether the evidence should be accepted at all. The potential steps to take where the opponent's case has not been put are discussed in detail in Cross on Evidence (11th ed., LexisNexis) at [17,460]. However, failure to put the opponent's case in cross-examination (which Mr Senior submits has occurred in the present case in relation to all of the plaintiff's witnesses) is a matter which may be relevant as to credibility: Beattie v Ball at [7]- [12].

Evidentiary issues

The obligation to put the opposing party's case to a witness is a rule of fairness. For the defendant's counsel to challenge the ability of the witnesses present to recall or to hear what was said does not amount to a putting of the defendant's case. This is particularly the case in relation to the defendant's claim that he read aloud from a speech verbatim.
In those circumstances, the uncontested evidence of the witnesses called by the plaintiff that they heard the defendant say the words they attributed to him is compelling.
It is permissible, and often a strong basis, for a court to accept a witness' evidence on a particular matter where there is no cross-examination challenging the veracity or accuracy of the evidence given: Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 at 426. However, a court is not bound to accept such evidence: Precision Plastics Pty Ltd v Demir [1975] HCA 27; 132 CLR 362.
The first issue to determine is whether the evidence of the defendant and his witnesses that he said nothing at all about the plaintiff should be accepted.

The defendant's credit

The defendant's evidence is relevant not only to whether the matter complained of was published but to three other areas of evidence, namely: 1. His knowledge of the proxy vote before the meeting; 2. The conversations he had with the plaintiff when the plaintiff went to lodge his proxy votes; and 3. Whether the defendant read Exhibit 3 verbatim.

Knowledge of the proxy vote before the meeting

The defendant denied that he knew before these conversations that Endree Saade had provided a proxy vote to the plaintiff: "Q. Yes. And you knew that that vote was for Mitch Lozina as president, didn't you? A. I didn't know who Martin Brien was, or who he was voting for. Q. No, but you knew - HER HONOUR: Sir, you have to answer the question. SENIOR Q. I'm asking you about the proxy vote; I'm asking you about Andre's vote. You knew that Andre's vote, the proxy vote that Martin had was for Mitch? A. No." (T132)
Firstly, the difficulty with Mr Saade's proxy (which he knew the plaintiff had sent in earlier that day) was that it was in favour of Mr Lozina, which Mr Saade said he now wished to change. This is why the email from Endree Saade (Exhibit 2) concludes: "I know the current president, Sam Mrad, and I'm happy with his position." (Exhibit 2)
When it was put to the defendant that he knew from reading the email that Mr Saade had originally been intending to vote for Mr Lozina but had decided to stay with the defendant, the defendant was unresponsive and evasive: "Q. Well, he's saying I'm happy with the current president, Sam. So he's saying there, I've changed my mind, effectively, I originally said Mitch, but I'm happy with Sam, so I'm staying with Sam. That's what he's saying, isn't it? A. From my understanding, when he found out from me that that's what the election was for the evening, is that that was his view on it. Up until that point, the only thing he knew about the proxy, or understood about it was that it was for a vote for Karting New South Wales and Karting Australia. So he did not tell me that he had signed the proxy to vote for Mitch Lozina, and I did not know Martin Brien before that date. Q. I'm not asking you about Martin-- HER HONOUR: Sir, look, sir, please, it's a very long answer, but it's not the answer to the question. WITNESS: My answer to the question is no. HER HONOUR: Please, to both of you. Look, the thing is this; when you're asked a question, you must answer it. Now, you have been asked a question about this last sentence, I know the current president, Sam Mrad, and I'm happy with his position. That's right, isn't it? SENIOR: Yes, your Honour. HER HONOUR: Ask the question again, Mr Senior. SENIOR Q. Now, my question is; you knew that the only person standing for president was Mr Lozina; was Mitch. That's right? A. Mm. Q. So when André's emailing you withdrawing his proxy vote, you understood that he had previously been voting for Mitch, and that he was now saying, I'm happy with Sam, I'm voting for Sam? A. No. Q. Well, what else is he saying? A. He's saying what he says-- Q. He's withdrawing a vote, and he's saying, I'm happy with the current president, Sam. So he was previously going to vote for Mitch, but now he's saying, actually I'm withdrawing that, I'm sticking with Sam. That's what he's saying, isn't it? A. He wasn't aware what he was voting for prior to that. He thought he was voting for Karting New South Wales." (T 138-139)
Finally, the defendant conceded that he knew that Mr Saade's vote had been for Mr Lozina: "Q. Now, what does that tell you about he's going to vote on the night? A. That he's going to vote for me. Q. Right. Instead of Mitch? A. Correct." (T 139)

The conversations between the plaintiff and the defendant about the proxy vote

The defendant's description of his conversations with the plaintiff about Mr Hamli's proxy (which are set out at some length in his defence) were similarly unsatisfactory. These conversations are of vital importance in terms of whether or not the slander was spoken, as this was the occasion when the defendant confronted the plaintiff with his allegations about not only Endree Saade's proxy but also the proxy for Mr Hamli. When asked about the circumstances in which he told the plaintiff that Mr Hamli's proxy had been withdrawn, he could not recall this at all: "Q. You said, Joe is here, he's over here; you pointed to Joe, and you said, "Joe's voting himself", didn't you? A. If Joe was one of Martin's proxy's-- HER HONOUR: Sir, you were asked if you said this; what's your answer. SENIOR Q. You just told Martin that Joe was here, so he's voting for himself. HER HONOUR Q. Did you say that, yes or no? A. I'm trying to remember if I did. I don't have a clear memory of that." (T 133)
One matter the defendant denied firmly was that the plaintiff used the words "That's fucking bullshit. That's a fucking lie" (T 133) during their first encounter in the voting line and "this is bullshit" (T 134.13). The defendant's denial was inconsistent with not only the plaintiff's evidence, but also with Mr Erdmann's recollection that he overheard the plaintiff telling the defendant "that's bullshit", as well as evidence from other witnesses suggesting that the plaintiff had a propensity to use that word when upset or angry.
In addition, this evidence about both Mr Hamli and the conversation with Mr Saade is also contrary to the defendant's summary set out at paragraphs 8-11 of the Defence: "8. As to paragraph 8(a) of the statement of claim, the defendant: (a) Admits the plaintiff attended the AGM; (b) Admits that the plaintiff had obtained a proxy to vote on behalf of at least 2 other people, namely Endree Saade (Saade Proxy) and Joe Hamli (Hamli Proxy); (c) Says however that: (i) The Saade Proxy was withdrawn by written notice to the defendant prior to the commencement of the AGM; (ii) Joe Hamli was in attendance at the AGM and was intent on exercising his own vote personally; (iii) In the premise of the matters pleaded in the immediately preceding subparagraph, the Hamli Proxy was withdrawn; (d) Otherwise does not admit the allegations on the Knowledge Ground and the Particulars Ground. 9. As to paragraph 8(b) of the statement of claim, the defendant: (a) Admits speaking to the plaintiff prior to the convening of the vote for the position of Club vice president; (b) Admits informing the plaintiff that the Hamli Proxy was withdrawn by reason of the matters pleaded at paragraph 8(c)(ii); (c) Denies, as untrue, the allegation that he stated words to the effect that "Endree emailed me and told me that he only signed the proxies because you would give him a discount on tyres"; (d) Says however he stated words to the effect that "Endree has withdrawn 3 proxy votes for him and his sons. He told me he thought the vote was to leave Karting Australia and not to vote for committee members. You cannot vote on their behalf"; (e) Says that the plaintiff replied, in words to the effect, that "I want proof that Endree withdrew the proxies: this is bullshit"; (f) Says that he replied to the plaintiff, in words to the effect, that: "I have printed the email from Endree and I will show it to you after everyone has voted"; (g) Says that the plaintiff then replied, in words to the effect, that "this is bullshit"; 10. As to paragraph 8(c) of the statement of claim, the defendant: (a) Denies, as untrue, the allegation at paragraph 8(c)(i) on the basis that defendant did not state to the plaintiff words to the effect that "Endree emailed me and told me that he only signed the proxies because you would give him a discount on tyres" and therefore the plaintiff had no reason to respond, and did not respond, to the effect that such a statement was a lie; (b) Admits the plaintiff requested a copy of Mr Saade's email; (c) Says that he responded to that request in the form pleaded at paragraph 9(f) herein; (d) Says further that the reason he did not provide Mr Saade's email to the plaintiff at that time was because of the long queue of people standing behind the plaintiff waiting to cast their votes. 11. As to paragraph 8(d) of the statement of claim, the defendant: (a) Admits speaking to the plaintiff prior after [sic] the vote for the position of Club vice president had been declared; (b) Admits the defendant was running for the position of Club president; (c) Admits that prior to casting his vote for the position of Club president, the plaintiff again requested a copy of Mr Saade's email; (d) Admits that in response to that request the defendant said to the plaintiff, words to the effect, that he would provide the email to him after the voting had concluded; (e) Says that the reason he did not provide Mr Saade's email to him at that time was because of the long queue of people standing behind the plaintiff waiting to cast their votes."
Mr Erdmann said that he had heard the plaintiff use the word "bullshit" and Mr Erdmann was not cross-examined on this. What should I make of the defendant's denial of the use of the word "bullshit"?
Mr Senior did not cross-examine the defendant about this admission that the plaintiff said "bullshit". Although the Defence clearly differs from the account given by the defendant in his oral evidence, I cannot have any regard to the contents of this apparent inconsistency in the Defence in determining whether the word "bullshit" was spoken or not, and I do not intend to do so.
Nevertheless, the plaintiff had accepted without question the statement that Mr Hamli was in the room and had withdrawn his proxy. Why then did he become upset and used the word "bullshit" when told that Mr Saade had withdrawn the Saade proxy and that there was an email to this effect which would be provide to him later?
It is clear from Mr Erdmann's evidence that there was an altercation between the two men. Taking into account Mr Erdmann's description of what was said, I am satisfied that it is more likely than not that the defendant did speak about the plaintiff in the terms described by Mr Erdmann, and that he was directly referring to this proxy when he did so.
In arriving at this conclusion, I take into account the plaintiff's evidence when asked why he did not provide the plaintiff with a copy of the email in question from Mr Saade: "Q. And it would've been easy to give Martin a copy of the email that evening because you printed a copy off; you gave that evidence a moment ago? A. I did, because I assume that when I advised whoever the person was, whoever Martin was, that his proxy's had withdrawn their votes, that he would want to see evidence as to-- HER HONOUR: No, you were asked this question; it would've been easy for you to give it to him. Q. Is the answer yes or no? A. No." (T 134)
However, the defendant conceded at T 135 line 26: "Q. And so it would've been easy to give Martin a copy of that email after the voting? A. After the voting, yes."
Nevertheless, the defendant never provided this email until discovery, which is conduct inconsistent with his claim that he never made any allegations about the plaintiff's obtaining of a proxy in the words described by Mr Erdmann in his speech.

Did the defendant read his speech verbatim?

The defendant repeated that he had read Exhibit 3 "word for word" (T 147 lines 25, 30 and 35): "Q. You didn't stand there and just read those headings off, did you? A. From the speech? Q. Yes. A. I read it word for word. Q. But I'm talking about the heading. "The CMS system is an unknown - restrictors - rule 1936." You didn't just stand there and say "rule 1936". That was a prompt for you to talk about that rule or something, isn't it? A. No, I read this word for word. Q. So you just read this for word for word - you stood there and you told the attendees, "The CMS system is an unknown. The rule book has to be written - restrictors - rule 1936." A. Yes. I read that word for word." (T 147)
This is despite the content of the speech suggesting that it was a summary prepared for the AGM.
Leaving aside the issue of its contents suggesting to the contrary, not one witness, including witnesses called for the defendant, gave evidence of the plaintiff reading from notes: 1. Mr Quinlan described the defendant as being a "mediator" between the two groups (T 164) in an "argumentative" "open discussion" (T 165), not as reading out from a document. Mr Quinlan was one of the few persons present who said that the defendant had mentioned Mr Lozina, in that he had "congratulated" (T 166) him for running for president, which is wholly inconsistent with the section on Mr Lozina in the draft speech the defendant said that he read out word for word. 2. Mr Haak said that the defendant gave an acceptance speech, but that members of the audience interrupted and talked over him (T 172) after each thing that was said (T 173). He recalled the defendant saying Mr Lozina was "there to take over" the club for the purpose of linking it to the New South Wales branch (T 173) and that there was "a slanging match" between Mr Erdmann and the defendant (T 174). 3. Mr Heard, who was only one and half metres away from the defendant, said he gave "a couple of cheeky digs" at those who had attempted to take over the club, followed by "general banter" (T 177). If anyone would have been well-positioned to see the defendant reading from a document, it would have been Mr Heard. He was sufficiently close to be able to describe the defendant as talking to individual people, sending text messages and looking at his phone, but not as reading out a speech which, judging by its length, would have taken sufficient time for it to be apparent to the listeners that there was a written text being read to them.
Nor was any such conduct put to any of the plaintiff's witnesses when they described what occurred.
There were other examples of the defendant giving answers which were self-serving and, I consider, untruthful. For example, he denied lobbying for votes, or telling members not to vote for Mr Lozina, and/or saying that Mr Lozina was only standing because he had a "splitting" agenda (T 126). When shown Exhibit A, the email he had addressed to "Dear All" and which contained statements to this effect, he attempted to distance himself from it, saying "This email was not sent from me" (T127 line 9). He then said he could not recollect who the email was sent to, despite it being pointed out that the email was addressed to "Dear all" (T127). Only after the defendant was taken through the contents of the email did he finally concede that he was the author and had made these statements: "Q. It's right, isn't it Mr Mrad, that you were telling members of the club beforehand that Mr Lozina was running for the position of president because he had an agenda, and that agenda was to split the club. That's right, isn't it? A. Correct." (T 128)
In addition, the defendant demonstrated reluctance to answer, and editorialised his answers rather than make admissions. For example, he answered a question about whether there was a split in the membership and answered that only a "very, very, very small minority of members" (T 125) held views different to his own, refusing on two occasions (T 125) to admit there was even a "split", being only willing to say that there were "different opinions and views" held largely by members who had very recently joined (T 125). Only after Mr Senior asked him, for the fourth time, whether there was a split, did he admit that there was (T 125 line 43).
Similarly, although he acknowledged he had been aware for some time (T 126) of Mr Lozina's intention to run as president (with an agenda to change the club affiliation), he portrayed himself in his speech as someone performing the thankless task of being president because no one else would take it on until Mr Lozina had suddenly rung him "the week before" the meeting to say that he was standing (Exhibit 3).
The defendant's evidence on these issues confirms that the defendant is a witness upon whom reliance cannot be placed.
I do not accept the defendant's evidence of his conversations with the plaintiff about the Endree Saade proxy, and in particular his denial that the plaintiff said "that's bullshit". All the defendant had to tell the plaintiff, as had been the case with Mr Hamli, was that the proxy had been withdrawn. He said more than this, in terms which provoked the plaintiff's "That's bullshit" response, and I am satisfied that what was said was what the plaintiff gave evidence of.
Nor do I accept the defendant's evidence that he did not name or refer to the plaintiff in his speech. This is based not only upon my adverse credit findings but also on the defendant's extraordinary failure to cross-examine any of the plaintiff's witnesses about their version of what was said.

Conclusions concerning the evidence of the witnesses

In the present case, the evidence of the plaintiff's witness, Mr Lozina, Mr Erdmann, Mr Dell and Mr Riches that they heard the words spoken should be accepted. Although Mr Vitlic and Mr Micallef were frank about not having heard the words spoken, their description of conversations immediately afterwards when they heard other persons discussing what was spoken was similarly not challenged in cross-examination and should be accepted as corroborative of the earlier statements being made.
For the reasons noted in relation to each witness's evidence as set out above, the evidence of the witnesses who were called by the defendant to say that the plaintiff's name was never mentioned should be rejected.
The principal question for determination is whether the actual words spoken can be identified with sufficient precision, or whether there has been "fatal variance" (Gatley at [32.15]) sufficient for the claim of publication to be defeated.

The relevant principles of law in relation to proof of slander

The parties have set out the relevant principles in their written submissions. In general terms, the words proved must not materially alter or qualify the sense of the words set out in the particulars of claim.
Gatley (at [32.15]) summarises the nature of "fatal variance" as follows: "Fatal variance. However if the words proved materially alter or qualify the sense of those set out in the particulars of claim, the variance will be fatal to the claimant, unless he can persuade the judge to grant him permission to amend the particulars of claim. If the amendment would require the defendant to plead and prove new grounds of defence, it is unlikely that leave would be granted except perhaps on terms as to the costs thrown away, as it would entail a lengthy adjournment of the trial. It might be fairer to dismiss the action, leaving the claimant the option to start a fresh action based on the words he can prove were published." (Footnotes omitted)
Fatal variance will occur if the defendant can argue that he or she would have conducted the case on a different basis if the alternative words had been pleaded.
Although there are a surprising number of slander cases, not only on appeal but at High Court level (Cush v Dillon; Boland v Dillon (2011) 234 CLR 298), appellate consideration of these principles is relatively limited. Only one superior court of record refers to Gatley's summary of the law and it does so in a footnote, in terms of noting the requirement for the words to be substantially similar (Armstrong v McIntosh (No 2) [2019] WASC 379 at [126]). The only decision of a superior court of record which specifically refers to "fatal variance" is Robinson v Australian Broadcasting Corporation [2004] QCA 319. As this was a case concerning the striking in of material relevant to the matter complained of, this decision is regrettably of no assistance.
Australian decisions in relation to slander in general have taken a relatively generous approach to the proof of what was said and have proceeded upon principles which could be generally described (to use a phrase generally applied to pleading imputations, but nevertheless apposite) as "practical justice rather than philology" (Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137). An early example is Feo v Pioneer Concrete (Vic) Pty Ltd [1999] VSCA 180, where the Court of Appeal summary headnote summarises "the gist of the slanders", noting that this "gist" was that the company's practices in allotting cartage work to its contractors "were riddled with corruption" and that the directors "had participated in the corrupt practices of the company and had received secret commissions for favours granted." Feo v Pioneer Concrete (Vic) Pty Ltd is directly on point in terms of variance, as the substance of two of the slanders was challenged on appeal as being different to that pleaded. In the course of dismissing this ground of appeal, the Court stated: "It is no longer the law that it is necessary, in order to prove an actionable slander, for the precise words alleged in the statement of claim to be proved with precision by a plaintiff, provided that the plaintiff has proved that a material and defamatory part of them has been published or that words to substantially the same effect were published. It is enough if the plaintiff proves that words were published which conveyed to the mind of a reasonable listener the meaning of the words pleaded (Tournier v. National Provincial & Union Bank of England [1924] 1 K.B. 461 at 478 per Scrutton, L.J.; 487-8 per Atkin, L.J.)."
More recently, in Coles Supermarkets Australia Ltd v Clarke [2013] NSWCA 272, Simpson J stated at [89]: "89. It is inevitable, in cases of asserted slander, that there may be some discrepancies between the words pleaded, and those established by the evidence. Ordinarily, any discrepancies would be expected to emerge from a comparison of the words alleged in the pleadings, and the evidence given by or on behalf of the plaintiff. In this case, the evidence given by the respondent conformed closely with the words pleaded in paragraph 3 of the FASoC. Such disconformity as there is lies in the evidence given on behalf of the applicant, in which nevertheless significant concessions were made. The question raised by the Court therefore concerned the degree of tolerance allowed where there is departure, in the words proved, from the words pleaded. In this case, however, that arises, not in relation to the respondent's evidence, but in relation to the extent (if any) to which Mr Tatosian's evidence synchronised with the pleading. If it were to be held that Mr Tatosian's evidence signified acceptance that he had spoken words "to the substance and effect" of those alleged in the FASoC, it would be unnecessary to deal with the criticisms made of the primary judge's approach to the fact finding issue."
Simpson J then set out the facts in Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 (at [90]): "90. A similar question arose as early as 1923 in Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 in the English Court of Appeal. There, the plaintiff sued the defendant bank, alleging that he had been defamed in a telephone communication by the bank branch manager (a man named Fennel). The plaintiff pleaded that Fennel had used particular words in the communication. The witnesses he called to prove the words gave evidence in slightly different terms to those pleaded. The defendant bank called Fennel, who gave a different account of the conversation, but one that was seen as capable of conveying a defamatory meaning. The trial judge left to the jury the question whether the words complained of in the statement of claim had been spoken by Fennel. He declined a request by counsel for the plaintiff to add "or words to the like effect". 91. In the judgment of Bankes LJ in that case, the following appears: "It is still necessary to plead the exact language complained of, but proof of language substantially the same as that pleaded is admissible and should be submitted to the jury ... For a long time it has been held to be enough to prove the substance of the words alleged in the declaration, but if there was difference between both the form and substance of the words alleged, and of the words proved, the defendant was entitled to succeed. In libel and slander the very words complained of are the facts on which the action is grounded. It is not the fact of the defendant having used defamatory expressions, but the fact of his having used those defamatory expressions alleged, which is the fact on which the case depends." [this was a quote from Harris v Warre 4 CPD 125 at 128] 92. Bankes LJ went on to say: "In my opinion there was such a substantial difference between the rival accounts of the conversation that Fennell's version ought not to have been submitted to the jury as proof of the plaintiff's pleaded case without an amendment." 93. Scrutton LJ said: "But I think modern practice is, as stated by Lord Coleridge in Harris v Warre, that it is enough to prove the substance of the words alleged, or I would add, of a material and defamatory part of them ... in my view the jury should be directed that if they think the defendant used, in substance, the words, or a material and defamatory part of the words complained of, they should say so, and [the defendant] is liable. I have no doubt that in this case part of the words alleged are materially different from the defendant's admission, but I think the jury should have been directed to consider whether or not part of the defendant's admission was a material and defamatory part of the words complained of ... It is also, I think, clear that the plaintiff was entitled to put before the jury his case that the words proved, though not the very words pleaded, were words substantially to the same effect. Whether this be done by amending the pleading, by framing the question to the jury so as to raise the point, or by directing the jury that the words pleaded would be proved by proof of words substantially to the same effect, seems to me immaterial. No slander of any complexity could ever be proved if the ipsissima verba of the pleading had to be established."
Material difference is important, because a different defence may be pleaded if the contents of the matter complained of are different: John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 at [188]; Lewis v Daily Telegraph Ltd [1964] AC 234 at 282. If the text of the matter complained of is different, that defence (for example, a defence of qualified privilege at common law) would not be available. In the present case, for example, to say that the publication is that the plaintiff stole from X when what the defendant said was that the plaintiff stole from Y would not be defensible in the same way.
Accordingly, the question for the court is identified by Simpson J as follows: "94. The question is then one of degree and judgment. Did the evidence of Mr Tatosian amount to evidence that he had used language "substantially the same as that pleaded"; or did the language he used amount to "a material and defamatory part of the words complained of"?
It is not a case of the plaintiff, having pleaded precise words in the pleading, failing because the words pleaded cannot be demonstrated as such. Although the rules of pleading require the plaintiff to set out the precise words in the statement of claim, that is not what the plaintiff has to demonstrate at trial, as Slattery J notes in Wilson v Basson [2019] NSWSC 1449: "[28] In an action for oral defamation the plaintiff must set out verbatim the words relied upon as conveying the defamatory meaning, but at trial it will suffice if the plaintiff proves that words substantially to the same effect as those pleaded were spoken by the defendant: Tournier v National Provincial and Union Bank of England [1923] All ER Rep 550; [1924] 1 KB 461 at 488, and Tobin and Sexton (at [25, 025]). [29] Unless the plaintiff was present when the alleged slander was spoken, and the plaintiff will often not be present, the plaintiff will have to rely upon reports of others as to what was said and using those reports reconstruct and plead what is alleged to have been said; but the plaintiff is not entitled simply to guess at the words or to commence proceedings as a fishing expedition to see if the plaintiff has a case: Collins, and Tobin and Sexton (at [25,025])." [Emphasis added]
Applying these principles to the question Simpson J indicated must be determined, what was said?

What was said?

The defendant submits that the words are not proved, in the sense that different witnesses give different accounts, and that none of those witnesses gives evidence in the same terms as what is pleaded. In particular, the defendant submits that the words of the witnesses did not include the specific mention of Endree Saade. Mr Olson summarises what is said as follows: 1. According to Mr Lozina, the defendant "told them that Martin was offering discounts if they voted for myself". I would add to this that this was said in the context of the "misleading" part being that the vote was really whether the club would be staying or leaving: "He - well, he said he was - he wasn't tell the - the truth about the - the nature of the proxy form, and that in order to obtain these votes, he told them that Martin was offering discounts if they voted for myself. And he said that it wasn't about - the - the misleading part was that it wasn't about him voting for me, it was about whether the club would be staying with Karting Australia or Karting New South Wales. That's - that's what they were signing, according to - that - according to Sam." (T 60) 1. According to Mr Erdmann, the defendant said either that "Martin Brien has been offering bribes to people" or "Martin Brien has been offering discounted go-kart parts to people". 2. According to Mr Dell, the defendant said "that he'd been told that Martin Brien was selling tyres at a discount in exchange for proxy votes". 3. According to Mr Riches, the defendant said "there was a couple of guys had turned up at [Mr Brien's] place and he gave them cheap tyres for their vote". 4. There is also the evidence of the person standing up in the audience when pointed to by the defendant and being potentially identified.
The defendant submits that these versions of the words could only carry a general imputation, such as "the plaintiff bribed people to obtain their proxy votes". In accordance with the principles discussed in the cases summarised above, this is substantially different to the pleaded version of the words, which carries a specific imputation about one named person.
The plaintiff accepts that none of the witnesses gave evidence that the defendant referred to "Endree Saade" when he spoke about the plaintiff, and that only two of the witnesses said that the defendant accused the plaintiff of having "bribed" anyone.
As to the first of these, namely the difference between the words pleaded in the Statement of Claim, Mr Senior submits that this occurred because, as is often the case (as Slattery J noted in Wilson v Basson at [29]), the plaintiff was not in the room when the words were spoken. However, he still has to prove his case.
Mr Lozina was aware of the plaintiff bringing some proxies, although it is unclear whether the other witnesses were, or if they knew who had given the proxies. The defendant, when he spoke those words, knew that the proxies in question were the Endree Saade proxy (T 132). There is no evidence that those listening at the meeting did, or knew how many proxies were involved.
Similar problems arose in Feo v Concrete (Victoria) Pty Ltd, in relation to a plaintiff who was not named, as opposed to being named, as the following recital demonstrates (at [30]). The submissions for the appellant were: "30. Because this memorandum did not specifically refer to the statement said to have been made by Feo that "Rowlands and Forbes are on the take", and did not even mention Forbes, it was not open to the judge to have found, as he did, that these words were spoken. Because the words, so it was submitted, were the only words alleged which could have been defamatory of Rowlands and Forbes, his Honour should have found that the words uttered on that occasion were not defamatory of the individual respondents. In similar fashion, it was submitted that the "most reliable" evidence which his Honour had before him in respect of the "Stagnitti slander" on 26 May 1994 was to be found in the notes of the recorded interview which Susan Stagnitti conducted with the solicitor on 31 May (Exhibit 4). It was submitted that, because there was no specific reference in these notes to the alleged defamatory statements as having been made on 26 May 1994 - as distinct from other occasions upon which it was recorded that such words had been uttered - it was not open to the judge to find that words defamatory of Rowlands and Forbes had been uttered on this occasion. Counsel laid particular emphasis on the evidence of Connell that he had listened to the conversation of 18 December with a view to being a witness, and on the evidence of Mrs. Stagnitti that she had been aware that her interview was being recorded for legal purposes.
In circumstances where the allegations were that "corruption was rife" and that the directors were "on the take", the Court was satisfied that it could look beyond the contemporaneous records and take a more holistic approach as to who was identified when the words were spoken.
However, that is not the case here. First, one named person is identified, whereas the evidence of the witnesses is that the allegations were made about more than one person and, in particular, that Endree Saade was not mentioned, both of which the plaintiff now concedes. Secondly, this is not a case where (to cite the observations set out in Watson v Foxman (1995) 49 NSWLR 315 at 319), human memory may be unreliable and recollections overlaid "by perceptions or self-interest as well as conscious considerations of what should have been said or could have been said", in circumstances where what was said could be read more generally. To the contrary, there is a degree of unanimity between the witnesses for the plaintiff, each of whom did his best to recall what was said.
The reference to Endree Saade could be inferred if these persons knew his was the proxy in question. However, the defendant refers me to Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at [19] and Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296 at [26], both these decisions deal with the inability of a plaintiff to rely upon a true innuendo case without pleading it. As decisions as to whether imputations differ in substance (such as John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 at [188]) note, imputations of general/specific wrongdoing, occurring in relation to more than one person, involving a named or unnamed person, are imputations which not only differ in substance but may require the pleading of different particulars (for example, in relation to justification).
There are two additional problems. First, according to Mr Lozina, the words spoken included the claim of misleading Mr Saade by not explaining that the vote was for the presidency and not just staying or leaving the current club arrangements, and the claim of offering discount tyres was in the context of this behaviour. Second, there is evidence from Mr Lozina (T 61), Mr Vitlic (T 77), Mr Riches (T 111-112), Mr Micallef (T 83-84) and Mr Erdmann (T 94-95), the witnesses with the best recollection of events, that the defendant called on some person to stand up and identify himself in relation to these allegations, which then occurred, and which would clearly be a part of the publication, but which has not been pleaded.
All of these factors point to a publication which is significantly at variance with what was said on the night in question.

Conclusions concerning the evidence

I am satisfied that the defendant identified the plaintiff but not Endree Saade, and further that he used the plural words described by Mr Lozina ("they"), Mr Erdmann ("people"), Mr Dell ("votes") and Mr Riches ("couple of guys"; "them"). Whether or not the word "bribed" was used is not fatal as this was clearly inferred from the exchange of the discount tyres. However, I am satisfied that the words spoken accused the plaintiff of offering discount tyres for proxy votes to more than one person, and not to Endree Saade, in the context of a person standing up and identifying himself as a person who could corroborate this as he had had such an offer.
Although these differences are sufficient to amount to "fatal variance", I consider it more likely than not that the defendant went on to say, as Mr Lozina described (T 61), about the plaintiff's "misleading" of persons from whom proxies were sought by not revealing that this was a vote for the office-bearers as opposed to club affiliations.
The plaintiff's claim accordingly fails and judgment will be entered for the defendant.
In the event that I have erred in my findings as to liability I set out brief observations as to damages.

Damages

The relevant statutory provisions are as follows: 1. Section 34 of the Defamation Act 2005 (NSW) requires the Court to ensure that there is "an appropriate and rational relationship between the harm sustained by the [applicant] and the amount of damages awarded". 2. Section 35(1) of the Defamation Act has the effect that the maximum amount of damages for non‑economic loss which may be awarded in the applicant's case is $407,500. 3. Section 35(2) provides for a circumstance in which that limit may be exceeded, but it was not suggested that that subsection should be invoked in the circumstances of the present case. 4. Section 36 provides that "the court is to disregard the malice or other state of mind of the [respondent] at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the [plaintiff]". It was not suggested that s 36 was engaged here.
As is noted in the parties' written submissions, each of the parties have provided me with a list of recent and comparable damages awards. Those decisions disclose a range of damages between $10,000 and $225,000, but with most of the awards being in the range of $75,000 - $90,000.
The plaintiff submits that an appropriate award of damages would be between $80,000 - $100,000 while the defendant puts the amount to be awarded at the bottom of the range.
The plaintiff gave evidence in some detail about his hurt to feelings in relation to the slander, including his distress when other persons raised it. I accept that he was upset and angry.
However, this was an angry and rowdy meeting, where the politics of both sides were a factor in what was being said. Allegation and counter-allegation seem to have been a feature of these events, as the evidence of Mr Erdmann demonstrates.

Aggravated damages

The plaintiff particularised a claim for aggravated damages as follows: "Particulars of aggravated damages 7. The Plaintiff's hurt and harm occasioned by reason of the publication of the matter complained of has been aggravated by the following matters: (a) the Plaintiff's knowledge of the falsity of the imputations (as pleaded below); (b) the Defendant's failure to apologise for the publication for the matter complained of despite the Plaintiff's request for him to do so in a letter from the Plaintiff's solicitors, sent from HWL Ebsworth Lawyers to the Defendant by email (Sam@centricprojects.com.au) at 2:47pm on 5 October 2018 and by express post; (c) the Plaintiff's knowledge that the publication by the Defendant was made: (i) maliciously, knowing it was false, or with reckless indifference to its truth or falsity; (ii) with the intent to injure the reputation of the Plaintiff; (d) the Defendant had no information to support the allegation made or alternatively insufficient information to justify the making of the allegation; (e) the Defendant had made the allegation previously to the Plaintiff, who had denied it."
In the first decade following the enactment of the uniform legislation, damages were awarded on the basis that the cap applied to general damages whether or not aggravated damages were awarded (Davis v Nationwide News Pty Ltd [2008] NSWSC 693 at [18]-[20]). The first judgment to note that an award of damages could, in appropriate circumstances, take a damages award over the cap was Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89 (at [41]-[42]). Dixon J, Wilson v Bauer Media Pty Ltd [2017] VSC 521, was the first judge to hold that an award of aggravated damages meant that the cap should be dispensed where aggravated damages were awarded. Although Dixon J did not refer to Cerutti v Crestside Pty Ltd, the Court of Appeal, which revised the damages, did so, but without disapproving the interpretation adopted by Dixon J.
While the majority of damages assessments in judgments endorse the position taken by Dixon J in Wilson v Bauer Media Pty Ltd, a significant number of damages assessments for defamation are made without referring at all to the impact of the award of aggravated damages on the cap, even though such an award is being made: Al Muderis v Duncan (No 3) [2017] NSWSC 726; Bowden v KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig & Chapman [2019] NSWDC 98 at [304] - [319].
Other judgments have noted the difficulty without expressing a view: Gayle v Fairfax Media Publications Pty Ltd (No 2); Gayle v The Age Company Pty Ltd (No 2); Gayle v The Federal Capital Press of Australia Pty Ltd (No 2) [2018] NSWSC 1838 at [42] (however, aggravated damages were not awarded).
The most recent judgment to award aggravated damages, Hanson‑Young v Leyonhjelm (No 4) [2019] FCA 1981, makes no mention of this controversy, or of Wilson v Bauer Media Pty Ltd (although it does refer to Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496) but revealingly displays a pro-Cerutti v Crestside Pty Ltd approach at [231], in referring to a submission that the cap had not been exceeded.
The absence of Australia-wide agreed principles in relation to essential elements such as the quantum of damages creates uncertainty that undermines uniformity in defamation law, particularly in relation to costs-related issues such as sections 18 and 40 of the uniform legislation.
This was a publication to a handful of persons who were on the same team, so to speak, as the plaintiff. Hardly anyone else at the meeting knew who he was. Awards for slander are generally significantly lower than for written publications. As a slander, its effect was very limited in time. The words were spoken in a highly charged atmosphere of generalised hostility.
Taking the holistic approach recommended by McCallum J in Gayle v Fairfax Media Publications Pty Ltd (No 2); Gayle v The Age Company Pty Ltd (No 2); Gayle v The Federal Capital Press of Australia Pty Ltd (No 2) (albeit in relation to multiple publications), I would have awarded $15,000 in general damages.

Should aggravated damages be awarded?

This was an angry and rowdy meeting, where the words in question were spoken in the course of some hostile exchanges between the defendant and the opposing (and unsuccessful) party. This followed two earlier confrontations between the plaintiff and defendant, when the plaintiff unsuccessfully sought to hand in the proxy votes. The defendant was a poor public speaker and out of his depth.
Failure to apologise in relation to slanders should, in my view, be viewed with caution. In trials, defendants often tell the court that, where proceedings have been commenced long after the slander was published, they have trouble remembering what was said, particularly where there was hostility on both sides, which makes apology for what was said a difficult issue.
However, such awards have been made. In Cush v Dillon; Boland v Dillon (2011) 234 CLR 298, the plaintiff had to seek an extension of time in order to commence proceedings and the matter complained of was three sentences forming part of a very lengthy conversation with one person, the relevant part of which the defendant no longer recalled. Although the first instance judge observed that "damages should be so minimal as to be negligible" (Cush v Dillon; Boland v Dillon [2009] NSWDC 21 at [87]), aggravating factors in the damages, arising from failure to apologise (at [82]), took the award up to $5,000 for each plaintiff.
In the present case, where angry words are spoken and hostility appear to have been shown on both sides, I would not have awarded aggravated damages, notwithstanding the failure to apologise and other factors particularised. If I had awarded such a sum, I would have limited that award to $5,000.

Orders 1. Judgment for the defendant. 2. Costs reserved, with liberty to apply. 3. Exhibits retained until further order.

Amendments 21 January 2020 - Typographical error in Representation field. 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. Decision last updated: 21 January 2020

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