Nikolopoulos & Ors v Greek Herald Pty Ltd & Anor

Nikolopoulos & Ors v Greek Herald Pty Ltd & Anor - [2003] NSWSC 1060 - NSWSC 2003 case summary — Zoe

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(i) Qualified privilege (at common law and pursuant to s22 of the Act); (ii) Justification; (iii) Contextual truth; (iv) Comment (fair comment where relevant); and (v) Mitigation of damages. 5 Requisite particulars were supplied. The evidential onus of proof in respect of all of these defences rests upon the defendants. In the circumstances of their unexplained absence from the hearing, there was, of course, no evidence to support any of these defences and I therefore find that each of them fails. 6 Essentially the remaining issue concerns the damages of the individual plaintiffs. 7 All plaintiffs availed themselves of the leave granted by Nicholas J and their statements are comprised in Exhibits B1 to B11, supplemented by Exhibit C. Oral evidence was confined to testimony that at the relevant time the Club consisted of three hundred and ninety members. 8 An answer to an interrogatory verified by the second defendant was tendered to establish circulation figures of the Greek Herald as approximately 24,000 in New South Wales, 600 in Victoria, 100 in Queensland, 20 in West Australia and 900 in South Australia. I mention that in unresponsive part answer to the particular interrogatory there was an assertion that neither of the defendants was a publisher of the Greek Herald at the relevant time. Publication by the defendants was not put in issue in the Further Amended Defence and I also observe that in particulars of qualified privilege at common law supplied in that defence, an introduction "The defendants as publishers of the Greek Herald" appears three times. (See par 3(b)(i), (ii) and (iii)). I find that the defendants were relevantly the publishers. 9 The matter complained of refers to a proposed sale of the Club property for $2.2 million and an asserted offer by the second defendant and a named businessman of $2.4 million. The plaintiffs, directors of the Club, are said to have deceived the members about the existence of this alleged offer. The sting in the imputation is readily discernible in the translation hereunder set out. The paragraphing is that of the translator and the first paragraph is a pointer, obviously appearing on a different page from the text of the principal article: "1. Our Editor TH. SKALKOS reveals Why did they hide from the members of Marrickville Olympic a bigger offer for the purchase of their land? SEE ARTICLE ON PAGE 54

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Why did they hide from the members of Marrickville Olympic a better offer for their land? 4. The properties of our clubs are considered properties of our community, for which the members and the directors of our community organisations decide, however, these do not cease to be in essence properties of us all. 5. Having this in mind, one is enraged even more when one realizes that the property of a community organisation, such as the Canterbury Marrickville Olympic is sold at a price which is by $200,000 lowever (sic) than that at which it could have been sold. Simply in order that certain people could earn money, openly but also secretly. 6. Without going around and without saying too much, following what I have been informed and confirmed on my return from a trip to Greece, the Canterbury Marrickville Olympic Committee, after two general meetings and unsuccessful attempts, convened a third general meeting and managed to convince the members to approve the sale of their land to the neighbouring Masonic Club, at the sale price of $2,200,000. The members' approval was given following general meetings upon general meetings for the same issue and after the directors assured the members that THERE WAS NO OTHER offer for the land of their club. 7. This is exactly where the lie is, that is the concealment of the truth and the obvious existence of personal interests, which would be served with the sale of the land to the Masonic Hall and above all with the purchase of a particular other land. Which, in turn may blow up and lead to bankruptcy our only financially robust, at this point, soccer club, but in the meantime, those who are to benefit will benefit! 8. The truth, which the members were not told about and which the directors and the president of Canterbury Marrickville Olympic knew personally, was that there was another offer for the club land, bigger by $200,000 than the offer of the Masonic Club or any other offer. 9. The said offer was made by me personally an by the well-known businessman of our community Mr Vengelis Danias but for reasons which the directors of Canterbury Marrickville Olympic will need to explain to us, the members were not advised of its existence.

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Why? 11. Is it because the granting of the exclusivity of sale of the land to the real estate agency of Mr Ronis was about to expire and so it would not receive the commission for the sale, unless the buyer was the Masonic Club? Or are there any other benefits from the Masonic Club to anyone who would secure for it the land, which is situated exactly next door to it. 12. Finally, how much more can a real estate agency expect to benefit from a big and risky, for Canterbury Marrickville Olympic, purchase of a building, whose price could reach as we hear, the sum of $5,000,000 and which is, of course, beyond the capabilities of the soccer club? 13. All the above are thoughts based on indications and especially on the fact of hiding our offer from the members of Canterbury Marrickville Olympic, which the president and the directors did not have the right to do. Especially, when they were asked in the course of the last general meeting 'if there was any offer other than that of the Masonic Club'? 14. Perhaps the president and certain members of the Committee are our friends in other ways but this will not prevent us from denouncing the actions which may benefit certain pockets but undoubtedly harm the club, to the property of which we have ALL contributed through the years and for which we have all co-operated, some in small ways and others in bigger ways, in order to be maintained. 15. It should be noted that apart from the moral obligation, the president and the directors of Canterbury Marrickville Olympic may also have legal responsibilities for the fact that they hid from the members a more advantageous offer for the sale of the club's property, which was made very seriously and not by just anyone but by known businessmen with financial power more than enough for its purchase. 16. As an editor of newspapers which reflect the public opinion of our community and also as a businessman, personally and with Mr Danias, we will investigate the matter in depth and will inform on what we discover. Because, neither on our part nor on the part of the majority of the Canterbury Marrickville Olympic club is there any intention of covering up a scandal which decreases the property of our soccer club and exposes it to deadly dangers for the sake of the interests of a real estate agency and of the agent's circle of friends. 17. As for the resulting deficit(s) of $200,000 in the coffers of Canterbury, this should be made up by those who covered up the offer of $2,400,000 so that the land could be sold where they prefer at $2,200,000 less commission.

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THEODORE SKALKOS " 10 It will be necessary to consider damages payable to the individual plaintiffs but there are some general aspects of assessment which can be mentioned. Damages are limited to those relating to relevant harm as defined: see s46. There is a form of statutory guidance: s46A. The evidence shows that the imputation is false: see s47. 11 The purposes of an award of damages for defamation have been described as three, undoubtedly overlapping, purposes namely consolation for the personal hurt to the plaintiff, reparation for harm done to reputation and vindication of that reputation: Carson v John Fairfax & Sons 1993 178 CLR 44. Within the limitations imposed by s46, aggravated compensatory damages may be available to a plaintiff. They are awarded where either the circumstances of the publication of the matter complained of or the defendant's conduct then or subsequently makes the injury to the plaintiff worse: Waterhouse v Station 2GB 1985 1 NSWLR 58. 12 It will be observed as I deal with the individual assessments of damage that there is considerable similarity in a number of the claims and this is unsurprising in the circumstances of the commonality of their directorship of the club and their membership of the Greek community in Australia. To avoid repetition I record that in general I accept the unchallenged evidence in each of the plaintiffs' statements, (Exhibit B1 to Exhibit B11). 13 All of the plaintiffs gave descriptions in a variety of language of their feelings of personal hurt and I accept what they say. I further accept that there exists in each case relevant matters of aggravation. As I make the individual assessments it will be unnecessary to recite in detail the descriptions of personal hurt but it is clear that in every case there has been a significant and continuing personal harm. 14 Recent discussions concerning the damages for defamation in the High Court (Rogers v Nationwide News Limited 2003 77 ALJR 1739) can be drawn upon for guidance. As was there observed, damage to reputation is not a commodity having a market value and every such award must be unique. Comparison between awards is particularly difficult. In this case, what the defendants published is recorded in a newspaper of significant circulation in the Greek speaking, or more accurately Greek reading, community. As Callinan J remarked in Rogers (par 134) such may serve for some as "at least a rough draft of the truth for historical purposes". 15 In the case of each of the plaintiffs the falsity of the imputation and the failure to apologize will be taken into account in assessing aggravated damages.

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Judgment (23 paragraphs)

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