Goyan v Motyka [2008] NSWCA 28 | Case summary

Goyan v Motyka [2008] NSWCA 28 | Case summary | Zoe

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Wednesday 12 March 2007 GOYAN & ANOR V MOTYKA & ANOR Judgment 1 GILES JA: I agree with Tobias JA. 2 TOBIAS JA: On 1 May 2000 the respondents, Dr Wolodymyr Motyka (Dr Motyka) and his mother-in-law Mrs Edvokia Ostrowskyj (Mrs Ostrowskyj), together "the respondents", commenced proceedings against the appellants, Maria Goyan (Mrs Goyan) and Michael Goyan (Mr Goyan), together "the Goyans", alleging that they had published certain defamatory matters relating to the appellants in 1999 and 2000. At a hearing in 2002 pursuant to s 7A of the Defamation Act 1974 (the Act), a jury determined that a number of letters had been published by one or other and, in one case, both of the Goyans, which conveyed imputations defamatory of each of Dr Motyka and Mrs Ostrowskyj. 3 Pursuant to s 7A(4) of the Act, the primary judge, James J, determined whether any of a number of defences pleaded by the Goyans were established and the amount of damages, if any, which should be awarded to each of Dr Motyka and Mrs Ostrowskyj. Relevantly, the only defence that was seriously pressed at the hearing before the primary judge was that of common law qualified privilege and, with somewhat less enthusiasm, unlikelihood of harm (s 13 of the Act). Those defences were rejected. His Honour also found that Mrs Goyan's publication of the material complained of was actuated by malice. 4 Having rejected the Goyans' common law qualified privilege defence and having found that Mrs Goyan's publications were in any event actuated by malice, the primary judge assessed damages in favour of Dr Motyka against each of the Goyans in the sum of $60,000 together, in favour of Mrs Ostrowskyj against Mrs Goyan in the sum of $45,000 and against Mr Goyan in the sum of $15,000, in each case together with interest. 5 The Goyans appeal to this Court to review his Honour's findings with respect to the defence of common law qualified privilege, including his finding of malice against Mrs Goyan. They also assert that the quantum of damages awarded to each of the respondents was excessive.

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The factual background of the dispute 6 In about 1971 Dr Motyka, who lived in Adelaide at the time, helped found an organisation called the Ukrainian Studies Foundation of Australia (the USFA), a company limited by guarantee. Its charter was to promote Ukrainian studies as an academic discipline at a tertiary level. It was, therefore neither a social, community nor cultural organisation. Dr Motyka was one of the original directors of the USFA and served as its chairman from 1990 to 2002. He and his wife moved to Newcastle in about 1979 when he took up an academic position in Accounting at the University of Newcastle. He holds the degree of Doctor of Philosophy in Commerce. Mrs Motyka is a registered medical practitioner. 7 The Goyans also lived in Adelaide. Mr Goyan was a member of the USFA from 1971 and served on its Board in 1987-1988 and 1991. 8 Between about 1976 and 1985 Mrs Ostrowskyj was the head of an organisation known as the Ukrainian Women's Association of South Australia (the UWA). In about 1985 she moved to Newcastle and in 1987 helped found the Ukrainian Women's Association, Newcastle and Hunter Region, which she has headed since its inception. Between 1998 and 2001 she was the head of the National Executive of the UWA in Australia. 9 A Mrs Valentina Nakazny (Mrs Nakazny) had served as the Treasurer of the UWA, Newcastle and Hunter Region. However, she was removed from that office and expelled from the UWA some six or seven years before the publication of the matters complained of in this case. Mrs Nakazny was originally named as a defendant in the statement of claim but the proceedings against her were abandoned after she died. 10 It appears that the present litigation emanates from a dispute between the parties over the organisation of the USFA. Mr Goyan and other USFA members in Adelaide believed they had formed the South Australian "branch" of that organisation. They organised themselves accordingly, conducted annual general meetings of the "branch" and elected representatives to act as their chairman, treasurer and so forth. At the times relevant to the litigation, Mr Goyan was serving as the elected chairman of the "branch". 11 South Australian members of the USFA, led by Mr Goyan, sought control over the funds which those members had raised and which were held in an account in the name of the USFA with the Hoverla Ukrainian Credit Co-operative in South Australia (the Credit Co-operative). 12 In late 1998 an officer of the Credit Co-operative forwarded to the USFA in Sydney a copy of a document which it had received, purporting to record that Mr Goyan and a Mrs Berketa had been authorised to operate on USFA's account with the Credit Co-operative. 13 However, Dr Motyka and the Board of the USFA did not consider there to be "branches" of the organisation: merely that there were some members of the USFA in Adelaide. They considered that the Board should keep control of all of the funds raised in the name of the USFA by its members, wherever they resided. According to the constitution of the USFA, so they claimed, representatives of the organisation could only be appointed by the Board or at the annual general meeting. The Board therefore asserted that so-called elections held with respect to the South Australian "branch" were invalid. The Board further deemed that the South Australian representatives had no power to access the USFA's account with the Credit Co-operative except with Board approval, which had not been given. 14 Dr Motyka's evidence on this issue as summarised by the primary judge at [83] was as follows: "Dr Motyka gave evidence that there was only one account with the Hoverla Credit Co-operative, an account held by the legal entity being the company even if it contained two 'components', an investment account and an operating account, and that the only persons authorised to operate on any component of the account were persons authorised by the Board of the USFA. Dr Motyka denied that there was a local account capable of being operated by members of the USFA in South Australia." 15 There was disagreement as to Mr Motyka's characterisation of the account of the USFA with the Credit Co-operative as being only one account with two components. Mr Goyan believed there to be two accounts, and claimed he was seeking access to only one of them. 16 During the USFA's Annual General Meeting in Sydney on 30 January 1999 (the January AGM), Dr Motyka made reference to there having been an unauthorised attempt to change the signatories to the organisation's account. Mr Goyan was at that meeting and took this reference to relate to him although he was not referred to by name. He also complained at the meeting of difficulties with, and inadequate accounting by, the Board. On 25 February 1999 Mr Goyan wrote a letter in English to the Board of the USFA (the 25 February letter) in which he purported to set the record straight regarding the accounts and in which he repeatedly referred to Dr Motyka as a liar. 17 The USFA responded in a letter dated 30 March 1999 written by Dr Motyka in Ukrainian (the 30 March letter). The letter informed Mr Goyan that he had breached the constitution of the USFA in a number of respects, including illegitimately representing himself to be the head of the USFA's South Australian "branch" and illegally attempting to change the signatories to the USFA's account with the Credit Co-operative. The letter further alleged that Mr Goyan had been distributing letters, some on USFA letterhead, which made untrue allegations against the Board and its members and which injured the good name and reputation of the USFA. Finally, the letter requested that Mr Goyan appear before the Board in Sydney at its next meeting on 17 April 1999 and contained an offer to pay for his return journey from Adelaide so that he could do so. 18 Mr Goyan responded by letter dated 12 April 1999 in English (the 12 April letter) indicating that he would not be attending the Sydney meeting. In that letter he accused Dr Motyka of being high handed and intimidating and implied that he was attempting to alienate all the members of the USFA in order that he might have access to the organisation's funds for himself. 19 Mr Goyan did not attend the meeting on 17 April 1999 and was informed in a letter dated 30 May 1999 that the Board had resolved that he be expelled as a member of the USFA.

[76]

I do not deny that a number of South Australian donors, including myself are, and will continue to distribute letters In the absence of any Media Coverage (Mr Czudakewycz told us himself that no Ukrainian Newspaper will publish our grievances). This is the most effective and democratically sound way of informing Donors of your actions and behaviour . We believe all Ukrainians have the right to have access to the facts in order that they might make informed opinions about this subject matter. It is not us who are damaging the reputation and development of the USFA In addition to the stress and worry that you have caused to so many well meaning donors, you now have the audacity to refer to paragraph 14 of the Articles of Association and summons me to Sydney! Please read the rea-sons in my letter written in Ukrainian as to why I am not in a position to attend But understand that in principle I do not intend to be part of this farcical attempt of officiousness on your part You may try to couch your position in an officious, high handed tone - it is all part of your intimidating approach which we believe is designed to prevent a proper investigation into your dealings. I have already been to Sydney this year on 30 January 1999, in an attempt to reach some form of mutual understanding of our respective positions - I might add all at my own expense. It is on record that I was denied any real opportunity to make any representations - Moreover, ! was subjected to a monstrous accusation that I was attempting to get my hands on $80,000! As a result of your disgraceful conduct I was then prevented from defending myself, and worse, Mr Czudakewycz made reference to the fact that the matter was in the hands of the Police, no doubt in an attempt to discredit and embarrass me in front of the Ukrainian Community in Sydney. Then you Mr Motyka topped this accusation with more of your lies) I was speechless and very hurt. You tried to provoke me, but sooner or later the truth will be known.

[82]

The findings of the primary judge with respect to the oral evidence 31 After setting out the above publications, the primary judge (at [52] to [139]) turned to the oral evidence of the witnesses including Dr Motyka, Mrs Motyka, Mrs Sonia Mycak (a friend of the Motykas and a member of the UWA), Mrs Lydia Beasley and Mrs Olga Bazalej. He noted that the Goyans neither gave evidence nor called any witnesses. His Honour accepted (at [53]) that in general all of the witnesses who gave evidence were honest and reliable. There was no challenge to his summary of their evidence. 32 In summarising Dr Motyka's evidence, his Honour noted that he had received the letters from Mr and Mrs Goyan both through the Board of the USFA and at home. He and his wife had also been passed copies of many letters by other members of the Ukrainian community, including persons who were not members of either the USFA or the UWA but were simply members of the same church parish in Newcastle as the Motykas or who lived in Sydney and Adelaide. Dr Motyka also testified that he had been passed a copy of the book by a member of the Ukrainian community and by Father Kolomyjec, a Ukrainian catholic priest in Sydney. He also gave evidence of the distress that the publications caused both himself and his family, and that he noticed that many community members withdrew from them socially and that his credibility had declined. Those effects, he said, were ongoing. In this respect, Dr Motyka's evidence accepted by his Honour at [75] was as follows: "The effects have been ongoing. There has been far less contact from circles and networks that I had a close working relationship with. There has been even a far less working contact where I could write to, for example, the Ukrainian Studies Foundation and they wouldn't respond or, if they did, it would be a year later and would be a perfunctory response if I asked for information. The same with the Ukrainian credit union that's in Sydney, the kind of responses are not what I used to be able to get. And when we attend functions of one kind or another there is not the circle of people that there was before with whom we used to involve ourselves and they with us." 33 Dr Motyka's evidence was that all of the imputations found by the jury in the various letters relied upon were untrue and that the effect upon him of the letters as well as the two reproduced in the book had been devastating and had caused him great distress and depression. He was cross examined at length about his memory of the January AGM but maintained that Mr Goyan had not been mentioned by name. 34 Mrs Ostrowskyj gave evidence of the effects of the letters upon her. She testified that after receiving the 28 August letter she "mostly stayed behind the door in my house" and that, although she was a member of the USFA, she had never been an office holder and had nothing to do with the dispute between the Board and Mr Goyan. She also testified that, although she knew of Mr Goyan, she had never been introduced to him and had never accused him of causing disruption or trouble for her family. 35 Mrs Ostrowskyj's evidence was that the imputations found by the jury with respect to her in the letters were false and that the letters caused her great pain, distress and shock. She was cross-examined at length about her dispute with Mrs Nakazny. Her evidence was that the dispute concerned a bus fare issue and inadequate bookkeeping by Mrs Nakazny in her capacity as Treasurer of the UWA. 36 Mrs Motyka gave evidence of both her husband and mother's adverse and emotional reactions to the letters. She also testified that she had been shown or given copies of the book by a number of people from Sydney and Adelaide. She also gave evidence in cross-examination about Mrs Nakazny. 37 Sonia Mycak and Lydia Beasley were both directors of the USFA at the relevant time and had received copies of the letters. They had seen copies of the book in various places, including at the Ukrainian National Hall in Lidcombe during a community event attended by seventy to eighty Ukrainians. Sonia Mycak gave evidence that other Board members had begun to mistrust Dr Motyka and had become suspicious of him after the letters began to circulate. 38 Olga Bazalej was a member of the UWA but had never been a member of the USFA. She had received the 21 November and 28 January letters and had read the book in October 2000. She saw a copy of the book near the Ukrainian Catholic Church in Newcastle. She had noticed that the respondents had become very withdrawn. Mrs Bazalej had been Treasurer of the UWA after Mrs Nakazny (there had been another Treasurer between them). She also gave evidence about Mrs Nakazny, including the incident with the bus fares, which she thought had been about 10 years previously. She testified that Mrs Nakazny had not kept any books of account despite having been Treasurer of the UWA for many years.

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The primary judge's findings with respect to the defence of common law qualified privilege 39 At [148] the primary judge set out the particulars of the defence of common law qualified privilege as ultimately furnished. They were as follows: "The recipients of the letters and the readers of the book had a common interest with the Defendants in the matters raised therein which said matters related to the affairs and conduct of the Ukrainian Studies Foundation of Australia and the Ukrainian Womens Association, the conduct and affairs of members of the Ukrainian communities, the conduct and affairs of the Plaintiffs in respect of the Ukrainian Studies Foundation of Australia and the Ukrainian Womens Association and Ukrainian communities, the conduct and affairs of the Orthodox and Catholic Religions being the religion of members of the Ukrainian communities or a substantial portion of them, the conduct of the Plaintiffs in respect of their status and position as members of the Ukrainian communities and other matters relating thereto including reply to demand or show cause, reply to attack and redress of grievances and response by the first Defendant (Mrs Goyan) to attacks on her husband (the third Defendant). The Defendants had a moral or social obligation, duty or right to inform the recipients of the letters and readers of the book and likewise the recipients of the letters and readers of the book had a duty, interest or right to be so informed." 40 At [149] to [155] his Honour set out the principles applicable to the defence of common law qualified privilege. He commenced his discussion by citing the following passage from the speech of Lord Atkinson in Adam v Ward (1917) AC 309 at 334 where his Lordship said: "It was not disputed, in this case on either side, that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential." 41 To the foregoing his Honour added the following statement of Parke B in Toogood v Spyring (1834) 1 Cr M & R 181 at 193; 149 ER 1044 at 1049-1050, where his Lordship observed: "In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits." 42 Reference was then made to passages in the judgments of the High Court in Bashford v Information Australia (Newsletters) Pty Ltd (2004) HCA 5; (2004) 218 CLR 366 at 373 [10] by Gleeson CJ, Hayne and Heydon JJ and by McHugh J at 385 [53] where the latter observed: "At common law, a defamatory statement receives qualified protection when it is made in discharge of a duty or the furtherance or protection of an interest of the maker of the statement or some person with whom the publisher has a direct business, professional or social connection, and the recipient of the statement has a corresponding duty to receive or interest in receiving it." 43 Finally, the primary judge set out a summary of the relevant principles articulated by McColl JA, with whom Beazley JA and Campbell AJA agreed, in Moit v Bristow [2005] NSWCA 322 where her Honour said: "73 The defence of qualified privilege protects the publication of a statement notwithstanding that it is false in fact, and injures the reputation of another, provided the statement is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. If the statement is fairly warranted by any reasonable occasion or exigency, and the statement is honestly made, it is protected for the common convenience and welfare of society: Toogood v Spyring (1834) 1 Cr M & R 181 at 193; [149 ER 1044 at 1049-1050], applied by Gleeson CJ, Hayne and Heydon JJ in Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 78 ALJR 346 at [9]; see also McHugh J at [53]; Gummow J at [136]; Kirby J at [187]; Callinan J at [231].

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79 In order to establish a publication was made on an occasion of qualified privilege, the publisher must call evidence which establishes "that both the givers and the receivers of the defamatory information had a special and reciprocal interest in its subject matter, of such a kind that it was desirable as a matter of public policy, in the general interests of the whole community of New South Wales, that it should be made with impunity, notwithstanding that it was defamatory of a third party": Andreyevich v Kosovich and Publicity Press (1947) 47 SR (NSW) 357 at 363 per Jordan CJ; applied in Bashford by McHugh J at [55]; by Gummow J at [140]." 44 The primary judge noted at [160] that the Goyans accepted that it was necessary in respect of each publication for them to establish reciprocity of duty or interest between the publisher and the recipients of the publication. His Honour noted the submission that the recipients of each publication were limited to those persons who, on the evidence, had been proved to have received it. It was submitted that in accordance with the particulars of common law qualified privilege which had been furnished, the occasion for which the privilege was claimed for each publication was not limited to replying or responding to an attack made on Mr Goyan by Dr Motyka at the January AGM. 45 It was contended that those attacks were only part of the circumstances giving rise to an occasion of qualified privilege for each publication. It was ultimately submitted by the Goyans that there was reciprocity of interest between the Goyans as persons who were members of the Ukrainian community and the recipients of each publication who were also members of that community and which comprised information about two persons (the respondents) who were leading members of that community in which the recipient members of the community had an interest beyond that of mere curiosity. 46 It was emphasised that the first paragraph of the respondent's Statement of Claim contained an assertion that they were particularly active in the Ukrainian community within New South Wales and Australia and that each had admitted that they had played a long and prominent role in Ukrainian affairs and organizations. 47 The primary judge observed that in accordance with the authorities to which he had referred, it was necessary to determine in relation to each of the five publications, being four separate letters and two letters in the book (the latter of which were to be read together), whether the matters complained of were each published on an occasion of qualified privilege because of a reciprocal duty or interest between the publisher and the recipients. Although the recipients included specific persons who were proved to have received one or more of the letters, his Honour (at [167]) found that the evidence permitted the inference to be drawn, especially in the absence of any contrary evidence called on behalf of the Goyans, that there were many recipients of some of the letters and in particular the book, other than those persons who had been specifically identified in the evidence. 48 After setting out some general observations at [169] to [181] in respect of which there had been no challenge, his Honour then proceeded to deal with the publications individually. His findings can be summarised as follows:

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(a) The 17 November letter incorporating the 15 November letter His Honour found (at [184]) this letter was not published on an occasion of qualified privilege as there was no reciprocal duty or interest in Mrs Goyan publishing to its recipients information about events which had occurred several years previously in the affairs of the UWA, Newcastle and Hunter Region. (b) The 21 November letter His Honour found (at [187]) this letter to convey very little factual information and was almost entirely devoted to accusing Dr Motyka of: "conducting a campaign to create dissension, of egotism, villainy, brutality, evil and sadism and of being a monster and of having forfeited the right to identify himself as a Ukrainian. There is a suggestion that Dr Motyka may have misappropriated funds of the USFA. Some of the same accusations are made against Mrs Ostrowskyj." His Honour also found that that letter was published to at least one person (Mrs Basalej) who was not a member of the USFA and that the publication was not incidental or unavoidable and on that ground alone it was to that extent not privileged. His Honour concluded that this letter was not published on an occasion of qualified privilege. (c) The 28 January letter His Honour found (at [192]) that as was the case with the 21 November letter, the 28 January letter gave very little factual information and was: "almost entirely devoted to accusing Dr Motyka of being a dishonest, shameful person, of being a devil, of poking his nose into everything, of denigrating everyone, treating everyone as idiots and breaking up organisations, doing the devil's work, being a pillager-savage, terrorising persons, telling lies, perpetrating evil and injustice and persecuting others. Some of the same accusations are made against Mrs Ostroyskyj." Again, his Honour found that this letter was published to some persons who were not members of the USFA and that publication was not incidental or unavoidable. Accordingly, the letter was not published on an occasion of qualified privilege.

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(e) The 28 August letter At [203] his Honour made the following findings: "As in the case of the letters of 21 November 1999 and 28 January 2000, the [28 August] letter conveys very little factual information. In the letter Dr Motyka is accused of frightening persons by bringing legal proceedings, of being mad, a liar, a swindler and a cheat and of throwing out hardworking members. It is stated that Dr Motyka should resign as being an unfit person to head the USFA and that Dr Motyka is planning to use funds of the USFA to finance the court proceedings he has brought against the defendants. The letter refers to the court proceedings the plaintiffs have brought against the defendants. Mrs Ostrowskyj is accused of seeking to terrorise the Ukrainian community in Newcastle." His Honour also found that this letter was published to some persons who were not members of the USFA and that the publication to those persons was not incidental or unavoidable. For this and the reasons set out in the preceding paragraph, the letter was not published on an occasion of qualified privilege. 49 Accordingly, at [206] his Honour held that none of the publications were published on an occasion of common law qualified privilege. 50 The primary judge then turned to an alternative submission made on behalf of the respondents: that if any of the publications were found to have been published on an occasion of qualified privilege, nevertheless that privilege had been lost because the publication contained matter which was not relevant to the privileged occasion or because the Goyans had abused the occasion of qualified privilege or had been actuated by malice in making the publication. In this context the respondents relied upon the following passages from the judgment of Mason P in Skalkos v Assaf [2002] NSWCA 14; (2002) Aust Torts Reports 81-644 where the learned President said: "28. It is well established that an occasion of privilege can be abused by the publication of additional matter that is 'extraneous' ( Adam v Ward at 318 per Lord Finlay LC) or 'beyond what was germane and reasonably appropriate to the occasion' (ibid at 321 per Earl Loreburn). The defendants' bona fide belief as to relevance will not be sufficient (ibid at 334 per Lord Atkinson). In Bellino v Australian Broadcasting Corporation [(1996) 185 CLR 183] Dawson, McHugh and Gummow JJ said at 288: 'It is true that, at common law, privilege only attaches to those defamatory imputations that are relevant to the privileged occasion. Where a potentially privileged communication consists partly of matters relevant to the privilege and partly of matters that are not relevant, qualified privilege only attaches to that part which is relevant to the occasion. Moreover, the inclusion of the irrelevant part in the communication affords evidence of malice and can destroy the privilege attaching to the relevant part. See also per Brennan CJ at 201-204.' 29. The passage quoted from Bellino demonstrates that there is overlap between matters going to the question of malice and matters going to the question whether the publication complained of was within the protection of a claimed occasion of privilege." 51 Applying those principles, the primary judge found (at [209]) that even if each of the four separate letters had been published on an occasion of qualified privilege and even allowing for some licence in a person attacked in replying to that attack, parts of what was published in each letter went beyond what was relevant or germane and reasonably appropriate to the occasion. 52 As to the question of malice, reference was made to those parts of the letters, amongst others, that I have emphasised (see [21] above) as constituting excessive language as well as to a number of other particulars, some of which his Honour rejected as being capable of constituting malice. 53 The primary judge accepted that the relevant principles with respect to a finding of malice were those articulated by the High Court in Roberts v Bass (2002) 212 CLR 1, especially at 30 [75] where Gaudron, McHugh and Gummow JJ in their joint judgment said: "Proof of express malice destroys qualified privilege. Accordingly, for the purpose of that privilege, express malice (malice) is any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame a plaintiff." 54 His Honour also referred to [78] and [79] of the joint judgment which emphasised that, with respect to the defence of qualified privilege, the law has always regarded malice as the publishing of defamatory matter with an improper motive. Their Honours said (at 32 [79]): "As we have said, malice means a motive for, or a purpose of, defaming the plaintiff that is inconsistent with the duty or interest that protects the occasion of the publication. It is the motive or purpose for which the occasion is used that is ultimately decisive, not the defendant's belief in the truth of the matter." 55 Applying those principles and accepting the need for caution in inferring malice from the language of the defamatory publication, his Honour found (at [217]) that: "the language used in each of the four letters, as particularised in the plaintiffs' [the respondents'] particulars of malice, was so excessive and so disproportionate that it should be inferred that Mrs Goyan was actuated, not by a dominant proper purpose of conveying matter which she had a duty or interest to convey and the recipients had a duty or interest in receiving, but by a dominant improper purpose of injuring the [respondents] and/or venting her personal spite against the [respondents]. Hence, I would find that, if the letters were published on occasions of qualified privilege, the qualified privilege was destroyed by Mrs Goyan's malice." 56 On the other hand, his Honour found (at [219]) that he would not infer from the language used in the letters of 25 February and 12 April or on any other basis including the fact that the letters had been republished in the book, that those publications by Mr Goyan were actuated by malice. 57 His Honour then turned to the assessment of damages. After referring (at [221] to [222]) to ss 46 and 46A of the Act and (at [223]) to the well known passage in the joint judgment of Mason CJ, Deane, Dawson and Gaudron JJ in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60-61, his Honour noted (at [224]) that it was common ground that a single amount of damages should be awarded to each of Dr Motyka and Mrs Ostrowskyj against both Goyans without making any attempt to differentiate between them. His Honour accepted the submission on behalf of the Goyans that as regards damage to reputation, only a very limited publication of each of the matters complained of had been proved and that no witness had given evidence that because of any of the defamatory imputations he or she had thought any the less of either Dr Motyka or Mrs Ostrowskyj. Further, he found that the only persons who had given evidence were their friends or relatives who did not believe that the imputations were true so that the reputations of the respondents had not been lowered in their eyes. 58 Nevertheless his Honour noted that from parts of the evidence he should infer that the book had had a wider circulation than simply to the persons expressly identified in the evidence as having received it. 59 As to damaged feelings, his Honour (at [229]) accepted that both Dr Motyka and Mrs Ostrowskyj had been deeply distressed by the imputations, Dr Motyka's distress being increased by his awareness of his mother-in-law's distress. However, his Honour took into account in favour of the Goyans that the hurt and distress experienced by each of Dr Motyka and Mrs Ostrowskyj was partly caused otherwise than by the imputations found by the jury. 60 His Honour (at [230]) further took into account the need for the amount of damages assessed to signal the vindication of the reputation of the respondents. Although it was true that their reputations had not been lowered in the eyes of the persons who gave evidence, nevertheless he inferred from some evidence given by Miss Mycak that Dr Motyka suffered some loss of reputation in the eyes of some members of the Ukrainian community. 61 Finally, his Honour found (at [232]) that the harm suffered by Dr Motyka was substantially greater than that suffered by Mrs Ostrowskyj and consequently the damages awarded to him should be higher. After noting (at [233]) that the award of damages in defamation cases is "at large" and that the determination of the amount was "essentially a matter of impression and not addition" (Broome v Cassell & Co Ltd [1972] AC 1027 at 1072 per Lord Hailsham LC), the primary judge decided that he should award Dr Motyka damages of $120,000 and Mrs Ostrowskyj damages of $60,000 against both the Goyans.

[98]

(f) The primary judge had failed to consider and, therefore, had made no finding as to whether membership of the Ukrainian community would of itself be sufficient to establish the necessary reciprocity of interest in the conduct of the respondents which was the subject of the publications. On the contrary, he had merely determined either that the letters contained very little factual information or substance or that they had been published in a manner which was neither incidental nor unavoidable to persons who were not members of the USFA or the UWA, as the case may be, and by virtue of that fact alone had not been published on an occasion of qualified privilege. 63 An additional submission was advanced with respect to the 17 November letter, incorporating that of 15 November, which the primary judge found had not been published in the book on an occasion of qualified privilege as there was no reciprocal interest in the Goyans publishing to the recipients of the book information about events which had occurred several years previously with respect to the affairs of the UWA, Newcastle and Hunter Region. It was submitted, first, that it did not follow that, because the events in question had occurred several years prior to publication, delay of itself negatived any reciprocal interest either in the making of the publication or in its receipt and, second, that in any event his Honour's reasons ignored the link between the contemporary conduct of the respondents as head of their respective organisations and their previous conduct in the same capacity which was the subject matter of those letters. 64 In essence, therefore, the Goyans' case on appeal was that they had an interest to expose the perceived conduct of the respondents as prominent members of the Ukrainian community and there was an interest in the recipients, all of whom were members of that community, to receive information relating to that conduct whether or not they were members of the USFA or the UWA. As the letters concerned the affairs and conduct of two leaders of the Ukrainian community in Australia, that constituted a sufficient relationship to give rise to the necessary element of reciprocity of interest. 65 The Goyans placed reliance on the decision of this Court in Skalkos (referred to at [50] above) to support the proposition that the privilege was capable of applying to the dissemination by a member of an ethnic community (in that case the Serbian community) to members of that community generally. Accordingly, so it was submitted, the privilege was not lost because the letters and the relevant part of the book were published to members of the Ukrainian community who were not members of the USFA or the UWA. 66 Allied with this submission was the contention of the Goyans that the primary judge had misapplied Skalkos in finding (at [209]) that parts of what was published in each letter had gone beyond what was relevant or what was germane and reasonably appropriate to the occasion (see [51] above). It was submitted that his Honour had failed to identify those parts of the letters which would be so categorised and thus failed to give proper reasons for his finding. 67 The respondents countered this submission by contending that the submission of the Goyans that the letters all had the same theme and that no part could be described as irrelevant to the occasion was indicative of the ill-defined nature of the privileged occasion for which the Goyans contended. If the terms of the letter as a whole are a guide to the nature of the occasion, then that occasion was nothing more than a personal and vitriolic attack upon two community leaders. Accordingly, if there was an occasion of privilege the primary judge was correct to find that any privilege had been lost by reason of the overwhelming presence of material on its face irrelevant to the occasion. 68 In Skalkos the appellants signed a letter addressed to the Prime Minister in which they criticised the role of agents responsible for mediating between government authorities and the various ethnic newspapers used to publish advertising material. The letter was published in a newspaper that enjoyed a wide readership amongst the Serbian-Australian community. The trial judge, Carruthers AJ, rejected a defence of common law qualified privilege. It was submitted on appeal that his Honour had conflated the issues of malice (for the jury) and excess or abuse of the occasion of privilege (for the judge). Mason P, with whom Fitzgerald AJA agreed, cited (at [25]) the following passages, amongst others, from the judgment of Carruthers AJ (omitting citations): "183 Despite the argument of the defendants to the contrary, I consider it relevant to take into consideration the serious nature of the attack which is made by the defendants in the publications upon the honesty of the plaintiffs' business methods in a field of activity in which they were both interested and potential competitors. 184 As the defendants have correctly pointed out, the law of qualified privilege is concerned with defamatory and untrue imputations. In this case defamatory and untrue imputations published without malice. This raises the question as to the degree of misstatement of fact which the law can tolerate. Of course this is wrapped up in the criteria which have been identified in the judgments to which I have just referred. However, if I may respectfully say so, it was extremely well expressed by Lord Hobhouse in Reynolds v Times Newspapers Ltd when his Lordship said that 'Some degree of tolerance for factual inaccuracy has to be accepted; hence the need for a law of privilege.' " 69 As regards the publication of the letter in the Serbian newspaper in Skalkos, Mason P referred (at [26]) to the nub of the trial judge's reasoning as being contained in the following passage from his judgment: "199. It would seem to me that the average reader who would necessarily be conversant with the Serbian language of Novosti [the relevant newspaper] would have an interest in the efficient and cost effective communication of government advertising and information to the ethnic community of whom, no doubt, the vast majority could be said to belong. They would also be concerned with whether there had been any abuses by persons or organisations or government instrumentalities involved in that area of activity which resulted in the exacerbation of cost to them of receiving such information." 70 The President then set out a lengthy passage cited by Carruthers AJ from the judgment of McHugh J in Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 264-266 of which the following is presently relevant (omitting citations): "Accordingly, it is now appropriate for the common law to declare that it is for "the common convenience and welfare" of Australian society that the existing categories of qualified privilege be extended to protect communications made to the general public by persons with special knowledge concerning the exercise of public functions or powers or the performance of their duties by public representatives or officials invested with those functions and powers. The scientist who discovers that lack of governmental action is threatening the environment, the "whistleblower" who observes the bureaucratic or ministerial "cover up", and the investigative journalist who finds that grants of public money have been distributed contrary to the public interest are examples of persons who have special knowledge of matters affecting the exercise of public functions or powers or the performance of duties by public representatives or officials. If such persons, acting honestly, inform the general public of what they know about such matters, their publications will be made on an occasion of qualified privilege. The defence of qualified privilege will be available even if the information is subsequently proved to be incorrect. Thus, the occasion will still be privileged even if the 'whistleblower' mistakenly but honestly publishes information which defames another person or the scientist or journalist honestly overlooks some fact which undermines the thesis of his or her claim. The publication of erroneous information may be evidence of malice in some cases. But by itself an error in the published information will not destroy the occasion of privilege.

[99]

No doubt in some exceptional cases the information published may be so unrelated to the kind of powers or functions invested in the person defamed that a defence of qualified privilege could not be upheld. But, speaking generally, the occasion will be privileged whenever a person with the requisite special knowledge honestly publishes information about the functions or powers or the performance of duties by public representatives or officials for the purpose of informing the public about such matters. The officiousness of the person publishing the information can never be decisive against the existence of an occasion of qualified privilege, although it may be relevant in determining whether there was a duty to publish to the world at large." 71 Carruthers AJ then continued in the following passages from his judgment cited by Mason P (at [26]): "201 In a real sense Mr Skalkos could be categorised as a person with special knowledge of matters affecting the exercise of the communication of government advertising and information to the ethnic community. I would consider therefore that the communication of appropriate information to the readers of Novosti would fall within the category of qualified privilege identified by McHugh J. 202 However, McHugh J is insistent that the publisher in such circumstances must publish the relevant information honestly . Further, the occasion of privilege is not disturbed if the publisher overlooks some fact which undermines the thesis of his or her claim. Thus, by itself, an error in the published information will not destroy the occasion of privilege. However, accepting that there was this occasion of privilege available to the defendants, they have, in my assessment, abused the occasion by the publication of the first and third imputations for the very reasons which I have expressed in relation to the publication to the Prime Minister and Telecom and its specified officers. 203 The publications of those imputations could not be categorised as an honest mistake or an honest overlooking of some fact which undermines the thesis of the defendants' claim. 204 In consideration of qualified privilege I allow, of course, for the fact that the plaintiffs failed to prove malice in respect of the publications. 205 I would therefore reject the defence of common law privilege in relation to the publication of the letter to the Prime Minister, Telecom and the specified officers as well as the publication in Novosti . I am so firmly of the view that the subject imputations abused the occasion of privilege posited by the defendants, that no further consideration of the competing arguments is, in my view, necessary." (Emphasis provided in the original) 72 The President then concluded in the following terms (at [27]): "In my view, these passages show Carruthers AJ treating fairness, appropriateness, rationality and accuracy as relevant, but not determinative factors; and as recognising that the jury's decision on absence of malice did not remove the need for the Judge to determine whether the defamatory imputations were published within the occasion of privilege. In proceeding this way his Honour did not err." 73 In the President's observations in [28] and [29] of his judgment which I have recorded in [50] above, he noted that the passage that he had quoted from Bellino (in [28]), demonstrated that there was an overlap between matters going to the question of malice and matters going to the question of the whether the publication complained of was within the protection of a claimed occasion of privilege. In particular, the President held (at [31]) that there was no error in Carruthers AJ having regarded the vituperative tone of the relevant letter as relevant to the issue which he had to decide. Although the President (at [33]) accepted the proposition that a lack of reasonableness or logicality did not in itself give rise to loss of the privilege, the authorities for that proposition did not establish the converse proposition that a finding of irrationality was irrelevant to the judicial function of determining whether the occasion of privilege had been abused. 74 Although the President accepted (at [38]) that the publications in question were archetypal cases attracting qualified privilege, that merely provided the backdrop to the issue as to whether the offending imputations amounted to an abuse of the occasion of privilege and to the various ways in which such abuse is formulated in the case law. He rejected (at [39]) the proposition that in emphasising the inaccuracy of the imputations, the trial judge had overlooked the fact that privilege might be attracted even though a publication contained untrue defamatory statements. 75 Thus the President observed (at [42]) (omitting citations): "The grossness of the falsity of the publication is pertinent to this issue of relevance. The defendants' particulars asserted that 'members of the public had an interest in knowing the facts and matters stated' in the letter. This alone makes the factual accuracy of the matters stated relevant to the issue of abuse of the occasion of privilege. And clearly established dishonesty is in turn capable of casting light on this inquiry. To describe an allegation as a 'splenetic and false attack' is really just a colourful way of emphasising the extraneity of the particular defamatory imputations to the professed context of the letter. The jury's rejection of malice did not pre-empt the judge from concluding, in the particular case, that the privileged occasion was abused." (Emphasis provided in the original). 76 In his judgment in Skalkos Giles JA, after citing passages from Bellino and Stephens, added the following to the discussion of the principles by the President (at [130]): "The inquiry [into relevance of the defamatory imputation to the occasion] is not a mechanical application of a form of words. Something may be privileged although untrue, irrational, or intemperately expressed. But that it is untrue, irrational or intemperately expressed may warrant the conclusion, or contribute to the conclusion, that the protection of the privilege should not be afforded. Absence of malice does not mean that all that is published is within the occasion of privilege."

[100]

77 Giles JA then continued (at [131]): "In the present case there may have been an interest in the readers of Novosti in the efficient and cost effective communication of government advertising and information, which the defendants were entitled to satisfy. In satisfying the interest they could publish under the protection of privilege material defamatory of the plaintiffs, within limits marked by the relevance of any defamatory imputation to the occasion. But in determining whether they exceeded the limits it must be relevant to take into account the truth, rationality and manner of expression of what was published, because in the end a judgment must be made: was the publication in such circumstances that, according to the test of relevance to the occasion (or other expression) the imputation should bring liability for defamation?" 78 In the present case reliance was also placed by the respondents upon the foregoing passages cited from the judgments in Skalkos. It was submitted that the failure of the Goyans to establish the truth of their attack upon the respondents, the irrationality of that attack and the manner of its expression all contributed to the primary judge's finding that they had abused the occasion and had thereby lost the benefit of the privilege. It was submitted that the relevant publications were overwhelmingly devoted to derogatory tirades concerning the respondents, a description volunteered on behalf of the Goyans during the course of oral argument on the appeal - "it's a tirade or an attack from go to whoa." Although counsel sought to retreat from the description of the letters as "a tirade", they nevertheless accepted that a word similar or synonymous (but possibly less emotive) could be substituted as an accurate description of the matters complained of. For myself, I am happy to adopt the description "tirade". 79 Further, I would not shrink from describing the attacks on the respondents as being vituperative, irrational, intemperate and splenetic. As they submitted, the language of the matters complained of was properly described as grossly excessive. This was exacerbated by the fact that, except for the letters in the book, the other letters sued upon did not purport to be a reply by the Goyans to an attack, public or otherwise, upon them by the respondents. Although the primary judge held that the two letters published in the book, had they been separately sued upon, would have attracted the privilege, their publication in the book to the general Ukrainian community was not a privileged occasion due to the lapse of time between their original and subsequent publication. 80 It was further submitted by the respondents that neither held political positions or quasi-political positions in the Ukrainian community. The office bearers of the USFA were not elected by that community and the organisation did not represent the community generally. In this respect the primary judge found (at [169] and [170]) that, although the holder of other positions in Ukrainian organisations at the time of the publications, Dr Motyka's most prominent position was as Chairman of the USFA and that all his dealings with Mr Goyan were in that capacity. Further, the USFA was not a general organisation representing Ukrainians in Australia but was one having as its principal objective the promotion of Ukrainian studies at a tertiary level. It was not concerned with Ukrainian culture generally. 81 So far as Mrs Ostrowskyj was concerned, at the time of the relevant publications she was the head of the UWA both nationally and in Newcastle. However, the dispute between her and Mrs Nakazny, who had been Treasurer of the UWA, Newcastle and Hunter Region, related to the latter's removal from that office for alleged maladministration whereupon she had ceased to be a member of that organisation. Mrs Ostrowskyj's relationship with Mrs Nakazny went no further than the fact that she was a member of the controlling body of the UWA who effected Mrs Nakazny's removal from office. 82 Accordingly, it was submitted by the respondents that, in the circumstances, whatever might have been the interest of the members of the USFA in receiving information from the Goyans in relation to Dr Motyka, no such interest was vested, as it were, in members of the Ukrainian community in Australia generally.

[101]

Did the primary judge err in rejecting the defence of common law qualified privilege? 83 In my opinion, no error has been demonstrated in the primary judge's determination of this issue. As was submitted by the respondents, the Goyans' submission to the contrary ultimately rested on the proposition that the reciprocal interest arose out of the parties' common ethnicity and because the respondents were prominent and active members of the Ukrainian community. 84 It was therefore submitted that the Goyans' case required this Court to hold that, as a general proposition, defamatory attacks on a "prominent and active community member" by other members of that community and relating to the former's activities within the community deserved the protection of common law privilege. Such a finding, it was submitted, would be entirely without precedent. I agree. 85 The authorities outlined by McColl JA in Moit v Bristow and extracted at [43] above, establish that the relevant "interest" must transcend curiosity. 86 Thus in Bashford McHugh J (at 390 ff), although dissenting on the facts, stated the following principles which the parties accepted as an accurate statement of the law on this subject: "[65] In determining whether the communication was made to discharge a duty or to protect or further an interest, the common law has drawn a distinction between statements replying to a request for information or responding to an attack and statements that are volunteered by the publisher. Where the defamatory communication responds to an attack on its publisher or some person connected with him or her, the common law has adopted a liberal approach to the question of duty or interest. Not only has it usually held that the publisher had a duty to respond or an interest in responding but, as a consequence, it has taken a very liberal view of what constitutes an 'interest' in those who receive the response. … … [71] But not every relevant answer to a request for information concerning the character, reputation or credit-worthiness of another is published on an occasion of qualified privilege. The occasion will not be privileged unless the person making the inquiry has a legitimate interest in obtaining the information. Interest for this purpose - and the law of qualified privilege generally - means more than an interest in the information 'as a matter of gossip or curiosity'. The interest must be a social, moral or economic interest that is sufficiently tangible for the public interest to require its protection. The interest of the recipient, said Evatt J in Telegraph Newspaper Co Ltd v Bedford , must be 'a real and direct personal, trade, business or social concern'. The occasion will not be privileged simply because the defendant believes that the recipient had a relevant interest in receiving or duty to receive the communication. … [73] Different considerations apply when the defendant volunteers defamatory information. Ordinarily the occasion for making a volunteered statement will be privileged only where there is a pressing need to protect the interests of the defendant or a third party or where the defendant has a duty to make the statement to the recipient. The common law has generally perceived no advantage to society in giving qualified privilege to volunteered statements in the absence of a pre-existing reciprocity of interest between the defendant and the recipient. It has taken the view that the reputation of the defamed should be preferred over the freedom to publish volunteered but defamatory statements that may or may not be true. In most cases, a defendant who publishes a defamatory statement that neither protects his or her interests nor answers a request for information will have to rely on some other defence, such as truth or fair comment … … [77] But where neither life is in immediate danger nor harm to the person or injury to property imminent, the fact that the defendant has volunteered defamatory matter is likely to be decisive against a finding of qualified privilege. Thus, the customer of a shopkeeper in answer to a request by a potential customer is entitled to give his or her opinion as to the quality of the shopkeeper's goods, and when he or she does so, the reply will be published on an occasion of qualified privilege. But the case is different where the customer voluntarily defames the character or reputation of the shopkeeper to potential customers. The point is well illustrated by the famous case of Toogood v Spyring ." 87 It is also of assistance to cite the following further passage from the judgment of McHugh J in Bashford (at 386-387): "[55] It is of the first importance to understand that references to concepts such as 'the common convenience and welfare of society' and similar phrases record a result and explain why the communication and the relevant duty or interest gave rise to an occasion of qualified privilege. Such concepts are not the determinants of whether the occasion is privileged. They must be distinguished from the question whether society would recognise a duty or interest in the publisher making, and the recipient receiving, the communication in question. As Jordan CJ pointed out in Andreyevich v Kosovich , it is necessary to 'show by evidence that both the givers and the receivers of the defamatory information had a special and reciprocal interest in its subject matter, of such a kind that it was desirable as a matter of public policy, in the general interests of the whole community of New South Wales, that it should be made with impunity, notwithstanding that it was defamatory of a third party'. It is only when the defendant has a duty to publish or an interest in publishing the particular communication and the recipient has a corresponding duty or interest that the occasion is privileged. It is only when this reciprocity of duty and interest is present that the common law regards publication of the communication as being for the common convenience and welfare of society." 88 Three points need to be made. First, there was no suggestion that the Goyans, unlike the defendant in Skalkos, had some special knowledge with respect to the public conduct of the respondents in the sense referred to by McHugh J in Stephens in the passages recorded by me in [70] above. Second, the present case is one where the Goyans volunteered the defamatory information: the letters were not a response to a request for information or an attack on Mrs Goyan. Third, it is difficult, given the manner in which the matters complained of were expressed and the general tone of the publications, to appreciate how the communication thereof to members of the Ukrainian community could promote the welfare of the society in which they were published. 89 In my view the respondents' submission that the publication of the relevant letters to the general Ukrainian community defeated the privilege because the class of people with the interest (if any) reciprocal to that of the Goyans was not the Ukrainian speaking community in Australia should be upheld. The class was far too wide to satisfy the requirement of reciprocity in the present case. 90 Furthermore, the language of the matters complained of was so excessive, vituperative, irrational and spiteful as to warrant the primary judge's conclusion that the protection of the privilege should not be afforded to the subject publications. My description of the matters complained of mirror those of the primary judge in his description of the 21 November letter (at [187]), the 28 January letter (at [192]) and the 28 August letter (at [203]). 91 So far as the 25 February and 12 April letters published as part of the book are concerned, the primary judge was clearly correct in accepting that their publication in the book was not an occasion of qualified privilege even if their original publication was. The Ukrainian community clearly had no relevant interest in, or concern regarding, the content of personal communications relating to the expulsion of Mr Goyan from the USFA at the January AGM which, at its highest, involved a personal disagreement between he and Dr Motyka. 92 So far as the letters of 15 and 17 November are concerned which related in particular to allegations concerning Mrs Ostrowskyj, I do not accept the Goyans' submission that either Mrs Goyan had a relevant interest in publishing defamatory imputations (and, in particular, those in the letter of 15 November) or that the recipients had a relevant interest in receiving them given that they referred to events relating to a third party which had occurred some six or seven years prior to their publication. The information was stale and did not constitute a relevant matter of interest. Furthermore, in my view there was no relevant link between those events and the grievances which were the subject of the Goyan's other letters. 93 Finally, I would reject the Goyans' submission referred to in [66] above. In my opinion it is clear from the structure of his Honour's reasons that, at the very least, the parts of the letter to which he was referring in [209] were those parts relied upon by the respondents as particulars of malice (see [21] above). For myself I would be inclined to accept the respondents' submission that the irrelevant matter extended to the whole of the letters given their general theme and the excessive language in which they were expressed. Being in the same vein throughout, it would be a difficult, if not impossible, task to isolate exactly what parts were within and which were without the privilege. 94 Thus although I accept that matter's irrelevance to the occasion, if not extending to the whole of the matters complained of, only results in a loss of privilege with respect to that irrelevant matter, in the present case it was unnecessary for his Honour to fully identify with precision (if that were possible) those parts of the letter which he found to be irrelevant to the occasion or an abuse of the privilege given his finding (at [206]) with which I agree, that none of the publications were published on an occasion of common law qualified privilege. 95 For the foregoing reasons in my opinion the primary judge was correct to find (at [206]) that none of the publications were published on an occasion which attracted common law qualified privilege and (at [209]) that in any event the privilege (if any) had been lost as significant parts of the contents of the letters went well beyond, and were therefore irrelevant to, the occasion contended for.

[102]

Did the primary judge err in finding that Mrs Goyan was actuated by malice? 96 The primary judge found (at [217]) that the language used in each of the letters published by Mrs Goyan was so excessive and so disproportionate that it should be inferred that she was actuated, not by a dominant proper purpose of conveying matter which she had an interest to convey and the recipients had an interest to receive, but by the purpose of injuring the respondents and/or venting her personal spite against them. Accordingly, the primary judge found (at [217]) that if the letters were published on occasions of qualified privilege, that privilege was destroyed by Mrs Goyan's malice. 97 On the other hand, his Honour found that the language used in the 25 February and 12 April letters as published in the book by Mr Goyan was not actuated by malice. He made no finding with respect to the 28 August letter to which Mr Goyan was a co-signatory with his wife although he did find that Mrs Goyan was actuated by malice in the publication of that letter. There is therefore a lacuna, which if the issue of malice were to be determinative of the appeal, would need to be filled. Logically, it seems to me that his Honour has merely overlooked the fact that Mr Goyan also published the 28 August letter. If Mrs Goyan's publication of the letter was actuated by malice, so also in this instance was Mr Goyan's. 98 The relevant principles relating to the effect and nature of malice have been referred to in [53] and [54] above. I would supplement them with the following passage from the joint judgment of Gaudron, McHugh and Gummow JJ in Roberts v Bass (2002) 212 CLR 1 at 31 [76]: "[76] Improper motive in making the defamatory publication must not be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication." (Emphasis provided in the original). 99 In the present case, the Goyans submitted that although the language of the matters complained of may have been extravagant, those parts relied upon by the respondents as evidence of malice were not excessive. Reference was made to the statement of Lord Diplock in Horrocks v Lowe (1975) AC 135 at 150 that there was a presumption that the defamer had a positive belief in the truth of what was published, "unless the contrary is proved". To the same effect are the following passages in the joint judgment in Roberts v Bass: " [97] Because honesty is presumed, the plaintiff has the onus of negativing it. That is to say, the plaintiff must prove that the defendant acted dishonestly by not using the occasion for its proper purpose. Unless that is kept in mind, there is a danger that reference to the honesty of a defendant will reverse the onus of proof. If the tribunal of fact rejects the defendant's evidence that he or she positively believed in the truth of what he or she published, it does not logically follow that the plaintiff has proved that the defendant did not believe in the truth of the publication or had an improper motive. Rejection of the defendant's evidence, combined with other evidence, may lead to the conclusion that the defendant had no belief in the truth of the publication or knew that it was false. But mere rejection of the defendant's evidence does not logically and automatically lead to any conclusion as to what his or her state of mind was…

[103]

[98] When the plaintiff proves that the defendant knew the defamatory matter was false or was reckless to the point of wilful blindness, it will constitute almost conclusive proof that the publication was actuated by malice… When the plaintiff can only prove that the defendant lacked a belief in the truth of the defamatory material, however, it will be no more than evidence that may give rise with other evidence to an inference that the publication was actuated by malice." 100 In the present case it was submitted that Mrs Goyan's dominant motive in writing the relevant letters was to expose and criticise the respondents' treatment of her husband in expelling him from the USFA and in their treatment of Mrs Nakazny in expelling her from the UWA. 101 On the other hand, the respondents submitted that the vitriolic nature of the letters and the purpose for which they appear on their face to have been sent, namely to cause harm to the respondents, gave the lie to the Goyans' submission. It would be impossible, so it was contended, to conclude that the Goyans' purpose was to convey information relevant to the privileged occasion no matter how irrational. The letters were by their very terms not an attempt to discharge a duty or interest of conveying information relevant to an identifiable occasion. 102 The following passages from the classic speech of Lord Diplock in Horrocks v Lowe at 149-151 have been followed with approval in many cases and, in particular, by the High Court in Roberts v Bass at 11 [9] and [10] per Gleeson CJ; 30-31 [75] per Gaudron, McHugh and Gummow JJ, which examined 'express malice' in detail: "My Lords, as a general rule, English law gives effect to the ninth Commandment that a man shall not speak evil falsely of his neighbour. It supplies a temporal sanction: if he cannot prove that defamatory matter which he published was true, he is liable in damages to whomsoever he has defamed, except where the publication is oral only, causes no damage and falls outside the categories of slander actionable per se. The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny, has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters with respect to which the law recognises that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue. With some exceptions which are irrelevant to the instant appeal, the privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused. For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit - the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.

[108]

Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. The motives with which human beings act are mixed. They find it difficult to hate the sin but love the sinner. Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that 'express malice' can properly be found." (Emphasis added). 103 His Lordship's caveat that judges should be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity was clarified by the High Court in Roberts v Bass (at 35 [86]-[87]). The joint judgment made it clear that Lord Diplock was using the term "reckless" in the sense of "wilful blindness". Mere lack of belief in the truth of the communication is not to be treated as if it was equivalent to knowledge of the falsity and, therefore, as almost conclusive proof of malice. What is clear is that it is not necessary for the plaintiff to prove that the defendant positively believed that the defamatory statement was false. Recklessness as to the truth or falsity of a publication, short of wilful blindness, will not destroy an occasion of qualified privilege unless it appears that the recklessness is accompanied by some other state of mind. 104 However, as was pointed out in the joint judgment in Roberts v Bass (at 35 [87]), a person who is reckless as to whether the statement is true or false has no positive belief in its truth. Accordingly recklessness is evidence that the publication was actuated by an accompanying state of mind, be it anger, hatred, bias or unreasoning prejudice. 105 In the present case no attempt was made by the Goyans to establish that they believed that any of the statements particularised as evidencing malice was true. The tone and content of the relevant statements indicate, in my opinion, a high degree of recklessness on the part of Mrs Goyan and, in respect of the 28 August letter, Mr Goyan, in publishing the letters which was clearly actuated by hatred, bias or unreasoning prejudice towards the respondents. No other inference is in my opinion, possible, let alone probable. The statements relied upon as evidencing malice were, in my view, published without regard to whether they were true or false. It follows that they were published recklessly in the sense of "wilful blindness". The language employed was, as the respondents submitted, so violent, splenetic and excessive that it must be concluded that the respondents have affirmatively established that the Goyans could not have held a positive belief in the truth of what they had published. 106 In my opinion no error has been demonstrated with respect to the primary judge's finding (at [217]) that the language used in each of the four letters, as particularised in the respondents' particulars of malice, was so excessive and so disproportionate to the occasion of this publication that it should be inferred that Mrs Goyan was actuated, not by a dominant proper purpose of conveying matters in which she had a legitimate interest to convey or protect and the recipients had a legitimate interest to receive, but by the dominant improper purpose of injuring the respondents by venting her personal spite and ill-will towards them. The same finding should be made with respect to Mr Goyan's publication of the 28 August letter. The passage from Lord Diplock's speech in Horrocks v Lowe which I have emphasised in [102] above and where he refers to the "commonest case", in which the venting of spite and ill-will evidences malice, seems particularly apposite here. Accordingly, I would reject the Goyans' challenge to his Honour's finding of malice.

[109]

Were the damages awarded by the primary judge excessive? 107 The primary judge noted (at [224]) that it was common ground that a single amount of damages should be awarded to each of Dr Motyka and Mrs Ostrowskyj against the Goyans without his Honour having to attempt to differentiate between the Goyans, the publications or the imputations conveyed by the same publication. The Goyans then sought to depart from that common understanding on appeal, arguing that in failing to so differentiate in respect of each separate publication and dealing with the question of damages cumulatively, his Honour erred. However, as the common understanding was the basis on which the question of damages was conducted before the primary judge, I am reluctant to interfere with his assessment of damages on that basis. 108 Nevertheless, I note that reliance was placed by the Goyans on the provisions of ss 9(1), (2) and (5) of the Act in support of its submission that it was not open to his Honour to have approached the award of damages in the manner he did. In response, the respondents relied upon s 9(5A) of the Act that, it was submitted, expressly permitted the Court to award a single sum in respect of multiple publications. That provision is in the following terms: "Notwithstanding subsection (2), if the court or the jury (if any) finds for the plaintiff as to more than one cause of action in the same proceedings for defamation, the court may assess damages in a single sum." 109 Section 9(2) is in the following terms: "Where a person publishes any matter to any recipient and by means of that publication makes an imputation defamatory of another person, the person defamed has, in respect of that imputation, a cause of action against the publisher for the publication of that matter to that recipient: (a) in addition to any cause of action which the person defamed may have against the publisher for the publication of that matter to that recipient in respect of any other defamatory imputation made by means of that publication, and (b) in addition to any cause of action which the person defamed may have against that publisher for any publication of that matter to any other recipient." 110 As I understand the Goyans' submission, s 9(2) provides that each defamatory imputation in a publication constitutes a separate cause of action so that, although by virtue of s 9(5A) damages may be assessed as a single sum in respect of a number of defamatory imputations arising out of the one publication, that subsection does not permit the assessment of a single sum where there are multiple publications out of each of which arise one or more defamatory imputations. Accordingly, they submit, it was necessary for the primary judge to assess damages separately in relation to each publication although he was entitled to assess damages in a single sum in respect of the several defamatory imputations arising out of each such publication. 111 In my opinion, it is unnecessary to reach a final conclusion on this question of construction due to the fact that the assessment of a single sum in relation to all publications was said by his Honour to be common ground in terms of his approach to the assessment of damages, an assertion which as I have said (at [107]) was not previously challenged. Furthermore, as the respondents submitted, the assessment of damages by way of a single sum in respect of all publications, if anything, favoured the Goyans. 112 However, my tentative view would be that s 9(5A) does permit the Court to assess damages in a single sum notwithstanding that there is more than one cause of action arising out of each of several publications: this is because the subsection is expressed in general terms with respect to a finding of more than one cause of action "in the same proceedings for defamation" irrespective of whether any one or more of those causes of action arises out of different publications. The only caveat is that the cause of action be found for the plaintiff in the same proceedings for defamation. 113 Finally, the Goyans submitted that in any event the damages awarded were excessive particularly in view of the fact that there was no evidence that any recipient of the relevant letters or book believed in the truth of what was written or in the truth of the defamatory imputations. A similar submission was put to the primary judge (at [227] and [228]) which he accepted, namely, that no witness had given evidence that because of any of the imputations he or she had thought any the less of either respondent and the only persons who had given evidence were their friends or relatives who did not believe the imputations to be true and for whom the reputations of the respondents were not lowered thereby. 114 Nevertheless, at [230] his Honour inferred from the evidence of Dr Motyka and Ms Mycak, that the former had suffered some loss of reputation in the eyes of some members of the Ukrainian community, a finding which was not challenged on the appeal: see [32] above. 115 Furthermore, the Goyans conceded in their oral submissions in reply that the law presumes that if there is defamatory material published, the plaintiff suffers some injury to reputation. Furthermore, quite fairly, it was conceded that in submissions made to his Honour, it was accepted that he would have to find some loss of reputation. 116 Given the findings of his Honour in [229] and [230] of his judgment in relation to damaged feelings, distress and reputation and noting that there was no suggestion by the Goyans that, in assessing damages he had proceeded otherwise than in accordance with principle; and given also that the assessment is not one amenable to precise calculation, in my opinion no error on the part of the primary judge has been demonstrated to suggest that his award of damages in favour of each of Dr Motyka and Mrs Ostrowskyj was outside the range of damages which it was open to him to award in the circumstances of the case.

Goyan v Motyka

At a glance

Court

Decision date

Before

Source

Judgment (115 paragraphs)

Parties

Cases Cited (14)

Cited By (16)