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[2003] NSWSC 1060
plaintiff. Judgment for all eleven plaintiffs for a total of $685,000, comprising individual awards from $50,000 to $80,000, and an order that the defendants pay the plaintiffs’ costs of action ([56]-[58]).
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The jury had already found that a newspaper article accused each of eleven Club directors of lying to members about a higher offer for Club property. When the matter came before the Court for damages, the defendants did not appear and provided no evidence for their pleaded defences. The judge rejected those defences, considered each plaintiff’s evidence of personal and reputational harm, and awarded individual damages totalling $685,000, plus costs.
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In Nikolopoulos & Ors v Greek Herald Pty Ltd & Anor [2003] NSWSC 1060, eleven directors of the Canterbury Marrickville Olympic Soccer Football Club sought damages over an article published in the Greek Herald on 20 January 1999. The article was in Greek, and the Court had an English translation before it. The plaintiffs were not named in the publication, but the jury had previously determined that it conveyed an imputation about each of them: that he lied to Club members. The jury also found the imputation defamatory of each plaintiff ([1]).
The article concerned a proposed sale of Club property for $2.2 million and an asserted higher offer of $2.4 million, said to have been made by the second defendant, Theodore Skalkos, and a businessman. It accused the Club’s directors of concealing that alleged offer from members. The judge described the sting as readily discernible in the translation ([9]). The article also suggested that the directors had personal interests, and raised questions about possible benefits to a real estate agency or people connected with it ([9]).
The damages hearing was listed for 27 October 2003. Neither defendant appeared. Their Further Amended Defence had pleaded qualified privilege, justification, contextual truth, comment, and mitigation of damages ([3]-[4]). The judge held that the evidential onus for those defences rested on the defendants. Because they did not appear and no evidence supported the defences, each failed ([5]).
The hearing therefore focused on damages. The plaintiffs relied on written statements, with oral evidence limited to the Club’s membership numbers at the relevant time: 390 ([7]). An interrogatory answer gave the Greek Herald’s approximate circulation as 24,000 in New South Wales, 600 in Victoria, 100 in Queensland, 20 in Western Australia, and 900 in South Australia. Although the answer asserted that neither defendant was a publisher, the judge found that they were relevantly the publishers, noting that publication had not been put in issue in the defence and that the defendants’ own pleaded particulars described them as publishers ([8]).
The Court awarded the plaintiffs between $50,000 and $80,000 each, for a total of $685,000, and ordered the defendants to pay the plaintiffs’ costs ([56]-[58]).
The judgment separates the established liability basis from the task of assessing damages. The jury’s determination under s 7A of the Defamation Act 1974 was already in place. At the damages hearing, the Court did not revisit whether the imputation was defamatory. It assessed the harm to each plaintiff, while noting that the evidence showed the imputation was false ([1], [10]).
The defendants’ non-appearance mattered to the pleaded defences. The judge expressly identified the evidential onus as resting on them and found no evidence supporting any defence. That was the stated reason for rejecting qualified privilege, justification, contextual truth, comment, and mitigation ([4]-[5]). The judgment does not give a separate substantive analysis of each defence, so it should not be read as a detailed ruling on the requirements of those defences beyond the evidentiary point made.
For damages, the judge relied on three overlapping purposes: consolation for personal hurt, reparation for harm to reputation, and vindication of reputation ([11]). The Court also recognised that aggravated compensatory damages may be available if the circumstances of publication or the defendant’s conduct at the time or later made the injury worse ([11]). The judgment states that damages were limited to relevant harm under s 46 of the Act, with statutory guidance in s 46A ([10]).
The evidence was largely unchallenged. The judge said that, in general, he accepted the plaintiffs’ statements and accepted their descriptions of personal hurt ([12]-[13]). The assessment nevertheless remained individual rather than collective. The judge considered each plaintiff’s role, the way the article affected his personal and professional life, and the particular reputational consequences described in his evidence ([16]-[55]).
The Court also considered the newspaper’s substantial circulation within the Greek-reading community, the falsity of the imputation, and the failure to apologise. The judge stated that falsity and failure to apologise would be taken into account in assessing aggravated damages ([14]-[15]). These factors were considered alongside the plaintiffs’ personal accounts, not as a fixed formula for calculating awards.
The judgment records the legal framework it applied in 2003 rather than providing a comprehensive account of the law before and after the decision. It refers to the Defamation Act 1974, including ss 46, 46A, and 47, and notes that s 22 of the Act had been pleaded in connection with qualified privilege ([4], [10]). It also refers to common law principles and authorities on damages.
The Court’s explanation of the purposes of damages came from Carson v John Fairfax & Sons (1993) 178 CLR 44: consolation, reparation, and vindication ([11]). For aggravated compensatory damages, the judgment cited Waterhouse v Station 2GB (1985) 1 NSWLR 58, describing the relevant concern as whether publication circumstances or defendant conduct worsened the injury ([11]). In discussing the effect of being shunned, the judge cited Garbett v Hazell, Watson & Viney Limited (1943) All ER 359 ([17]).
The judgment also referred to the recent High Court discussion in Rogers v Nationwide News Limited (2003) 77 ALJR 1739. It drew from that discussion the propositions that reputational harm has no market value, each award must be unique, and comparisons between awards are particularly difficult ([14]). The judgment therefore presents individualised assessment as central to the task, rather than calculation by reference to a market price or simple comparison with other awards.
Nothing in the judgment itself establishes how later courts treated this decision, or describes a subsequent change in the statutory framework. It is consequently not possible, from this source alone, to state a reliable post-2003 account of the law or the decision’s later precedential treatment.
At [5], the judge said: “there was, of course, no evidence to support any of these defences and I therefore find that each of them fails.” In plain English, the defendants had pleaded several defences, but their absence meant there was no evidence at the hearing to support them. The judge’s stated basis for rejecting them was that evidentiary failure.
At [11], the Court described the purposes of damages as “consolation for the personal hurt”, “reparation for harm done to reputation” and “vindication of that reputation”. Put simply, damages were treated as serving overlapping purposes: recognising the plaintiff’s distress, responding to reputational injury, and publicly affirming the plaintiff’s reputation.
Also at [11], the judgment says aggravated compensatory damages may be available where the circumstances of publication or the defendant’s conduct “makes the injury to the plaintiff worse”. The point is not that every false publication automatically attracts aggravated damages. The stated focus is whether circumstances or conduct increased the injury. At [15], the judge specifically said falsity and failure to apologise would be taken into account in assessing aggravated damages.
At [14], the judge stated that reputational harm “is not a commodity having a market value” and that each award “must be unique”. In practical terms, the Court did not treat the awards as prices that could be mechanically calculated or directly compared. It assessed the evidence for each plaintiff.
At [22], the judge distinguished a claimed event from harm sufficiently connected to the publication: he was not satisfied that interference with Alex Pettas’s wife’s car brakes had any connection with the defendants’ tort. That passage illustrates that the judge considered causation when evaluating particular claimed harm, even while generally accepting the plaintiffs’ unchallenged statements.
The individual awards also reflect differences in the evidence. George Nikolopoulos received $80,000, with the judge noting his position as Club president, his standing in the Greek community, the experience of being shunned, and a separate allegation in the defendants’ pleading that remained on the record for a period ([16]-[18]). Chris Giorgakopoulos and Bill Venetoulis each received $70,000, with the judgment describing substantial harassment and social consequences in their cases ([43]-[48], [52]-[55]). Jim Panagakis and John Gournaropoulos each received $50,000 ([40]-[42], [49]-[51]). The judgment does not set out a formula mapping particular facts to a specific dollar amount.
The decision is most directly relevant to a damages assessment after a liability issue has already been determined, where the Court has evidence about the effects of a defamatory publication on several plaintiffs. Here, a jury had found that the article conveyed a defamatory imputation about each plaintiff, even though none was named in it ([1]). The directors’ connection to the Club and the article’s subject matter supplied the context for the imputation.
The case also addresses a damages hearing where defendants have pleaded multiple defences but then do not appear or provide evidence. The judge treated the evidential onus as lying with the defendants and rejected the defences because the evidentiary support was absent ([4]-[5]). That aspect should be understood in the procedural circumstances recorded in this judgment, rather than as a general statement about every possible procedural setting.
For damages, the decision is relevant where evidence describes personal hurt, being shunned, abusive communications, workplace consequences, reduced social participation, or other effects on reputation and wellbeing. The plaintiffs’ experiences varied: some described abuse at football games or in the community; some described effects on family or work; one described medical attention for distress; and another’s claimed connection between a specific event and the publication was not accepted ([19]-[22], [29]-[33], [40]-[54]).
The decision also identifies publication reach and the failure to apologise as matters considered in the assessment ([8], [14]-[15]). It does not, however, establish that those considerations necessarily produce a particular award in another case. The judgment emphasises that awards are unique and comparisons are difficult ([14]).
The provided judgment contains no account of later courts citing, applying, distinguishing, or otherwise treating Nikolopoulos. It would therefore be unsafe to make claims here about its later treatment or current precedential weight.
Within this judgment, the authorities expressly referred to are Carson, Waterhouse, Rogers, and Garbett. The Court cited Carson for the purposes of damages, Waterhouse for the availability of aggravated compensatory damages, and Garbett in connection with the significance of being shunned. It considered Rogers as recent guidance on the individualised nature of reputational damages and the difficulty of comparing awards ([11], [14], [17]).
The source does not say that Nikolopoulos was appealed, affirmed, reversed, or followed in a later case. Those matters require sources beyond this judgment.
The judgment gives no detailed analysis of the elements of the five pleaded defences. It records that they failed because no evidence supported them at the hearing ([4]-[5]). Questions about how those defences would have been assessed if evidence had been called are not answered in this decision.
The damages reasons provide examples of evidence and individual awards, but no arithmetic method for translating particular forms of harm into a dollar amount. The judge cautions that each award is unique and comparisons are difficult ([14]). The decision therefore does not resolve how a later court should quantify comparable harm in a different case.
The judgment also does not detail the evidence behind every assertion in the article or explain the full basis on which the jury reached its determination. Its focus is the damages hearing after that determination. Similarly, it records circulation figures and the relevant community context but does not set out a general threshold for when publication reach will produce a particular level of reputational harm ([8], [14]).
Finally, the document does not provide later appellate or legislative developments. Its discussion is tied to the Defamation Act 1974 and the authorities available to the Court in 2003. This is general legal information, not legal advice; Zoe can make mistakes, and before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
CITATION : Nikolopoulos & Ors v Greek Herald Pty Ltd & Anor [2003] NSWSC 1060 HEARING DATE(S) : 27 October 2003 JUDGMENT DATE : 18 November 2003 JURISDICTION: Common Law JUDGMENT OF : Michael Grove J at 1 DECISION : JUDGMENT FOR PLAINTIFFS
CATCHWORDS : DEFAMATION - DAMAGES ASSESSED LEGISLATION CITED : Defamation Act 1974 Carson v John Fairfax & Sons 1993 178 CLR 44 CASES CITED : Garbett v Hazell, Watson & Viney Ltd 1943 All ER 359 Rogers v Nationwide News Ltd 2003 77 ALJR 1739 Waterhouse v Station 2GB 1985 1 NSWLR 58 PARTIES : George Nikolopoulos, John Georgopoulos, Alex Pettas, Tom Haralambidis, Peter Mitrothanasis, Bill Kategiannis, George Tsokos, Jim Panagakis, Chris Giorgakopoulos, John Gournaropoulos and Bill Venetoulis v Greek Herald Pty Limited and Theodore Skalkos FILE NUMBER(S) : SC 20071/99 COUNSEL : C. Evatt with J. Henness (Plaintiffs) No appearance (Defendants) SOLICITORS : Brock Partners (Plaintiffs)
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
Tuesday 18 November 2003 20071/99 - GEORGE NIKOLOPOULOS, JOHN GEORGOPOULOS, ALEX PETTAS, TOM HARALAMBIDIS, PETER MITROTHANASIS, BILL KATEGIANNIS, GEORGE TSOKOS, JIM PANAGAKIS, CHRIS GIORGAKOPOULOS, JOHN GOURNAROPOULOS and BILL VENETOULIS v GREEK HERALD PTY LIMITED and THEODORE SKALKOS
1 HIS HONOUR: Eleven plaintiffs seek damages alleging that they have been libelled in an article published in the Greek Herald on 20 January 1999. The matter complained of was published in the Greek language and the evidence includes a relevant English translation. The litigation has a considerable history, both at first instance and appellate levels. It is unnecessary to trace this in detail now. A hearing on 5 February 2001 pursuant to s7A of the Defamation Act 1974 (the Act) resulted in determination by a jury that the matter complained of made an imputation in respect of each plaintiff that he lied to members of the Canterbury Marrickville Olympic Soccer Football Club Limited (the Club) and that such imputation was defamatory of each of them. The plaintiffs were directors of the Club. None of them was mentioned by name in the publication. 2 On 9 May 2003 a hearing date of 27 October 2003 was fixed. On 15 July 2003 a notice of ceasing to act as solicitor was filed by Mr Tony Lazoropoulos who was to that time the solicitor on record acting for the defendants. Nevertheless, Mr Lazoropoulos appeared for the defendants on 15 September 2003 when a notice of motion filed by the plaintiffs, seeking inter alia, orders that the defence be struck out was, by consent, dismissed. On that occasion the presiding judge (Nicholas J) gave certain directions and also gave leave to each of the plaintiffs, "should he be so advised, to file written statements in lieu of or in addition to, each giving evidence at the forthcoming trial." 3 Upon the action being listed for hearing as scheduled on 27 October there was no appearance on behalf of either defendant. The relevant pleadings, following the trial pursuant to s7A abovementioned, are identified as the Second Further Amended Statement of Claim following that hearing and pursuant to order of 5 February 2001 and the Further Amended Defence filed on 29 January 2003. 4 The pleadings by the defendants raised these specific defences:
(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
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.
GEORGE NIKOLOPOULOS 16 At relevant times, Mr Nikolopoulos was President of the club as well as being a director. He is a businessman who had admiration and respect, particularly within the Greek community. 17 As with many others, he has experienced being shunned by a number of people. This is of significance in assessing the measure of damage done: Garbett v Hazell, Watson & Viney Limited 1943 All ER 359. There is a matter which affects only this particular plaintiff, and that is that the defendants by their pleading made an allegation of bad reputation in terms that he "was accused of electoral fraud in relation to the elections of (the Club) in 1994". This pleading was filed on 1 February 2001 and was not withdrawn until 29 January 2003, and its existence during that span should be taken into account, as I do, as a matter of impact upon the plaintiff in assessing his damages. 18 I assess his damages at $80,000.
JOHN GEORGOPOULOS 19 Mr Georgopoulos has been a member of the club for twenty years and a director for ten years. He has experienced shunning and accusation. His family and social life have been affected and he and his wife have ceased attending some functions. 20 I assess his damages at $60,000.
ALEX PETTAS 21 Alex Pettas joined the club in 1974. He was elected to executive office as Treasurer in 1995. His position as such was well known in the Greek community. He received offensive calls and suggestions that he should resign. 22 I interpolate that, although I have said that I generally accept the material in the statements including this plaintiff's statement, I should specifically record that I am not satisfied that any interference with the brakes of his wife's car had any connection with the defendant's tort. The context of the imputation was, of course, related to money in the sense of circumstances surrounding the intended sale of the club's asset. The position of Mr Pettas as the Treasurer assumes particular significance. 23 I assess his damages at $65,000.
TOM HARALAMBIDIS 24 Tom Haralambidis has been a member of the club since 1981 and served two terms of office as a director for a total of ten years. 25 He is a real estate agent and in fact the club property had been listed through his employer. He knew that no offer by the defendant Skalkos or any associate of his had been made, at least through the agency. 26 The plaintiff has experienced insults and shunning. His statement refers to the loss of a client but the terms of it do not elaborate any claim for actual economic loss. 27 I assess his damages at $60,000.
PETER MITROTHANASIS 28 Peter Mitrothanasis has been a member of the club for thirty six years and a director for twelve years. 29 He and his wife have been excluded from a group with whom he had previously enjoyed warm social relations. He has received insults and on one occasion was spat upon. 30 I assess his damages at $60,000.
BILL KATEGIANNIS 31 Bill Kategiannis has been a member and director of the club since 1996. 32 He has been the subject of insults and abuse. He was particularly exposed to such as he was the ticket collector at football games. He has candidly observed that since the jury verdict this abuse has subsided but "every now and then he is called a liar and a thief". 33 There has been an effect upon the comfort of himself and his wife when they attend social functions within the Greek community. 34 I assess his damages at $60,000.
GEORGE TSOKOS 35 George Tsokos has been a member of the club since 1997. 36 He received anonymous calls asserting that he had robbed the club. He treated enquiries as implying doubt about his integrity and was particularly hurt when even his children enquired as to what was going on. 37 He had a takeaway food shop business, which he subsequently sold. He had noted some drop in business at the shop. He didn't work for two years and commenced operating a contract cleaning business. 38 Invitations to functions have noticeably lessened and he has ceased some social activity. 39 I assess his damages at $60,000.
JIM PANAGAKIS 40 Jim Panagakis saw the matter complained of on the day of publication and was especially upset to return home to query from his own family as to what he had been doing. I do not have precise details of the length of his club membership or service as a director. 41 He received calls particularly in the week following publication in which he was called a liar and thief. He has been queried in person when attending such places as a garage, shop and soccer games. He has reduced his previously enjoyed frequent attendance at soccer games because of this. 42 I assess his damages at $50,000.
CHRIS GIORGAKOPOULOS 43 Chris Giorgakopoulos has been a member of the club for ten years and a director since 1997. 44 He saw the article on the date of publication. He worked at the time with ten people of Greek extraction. They read the article and he was ridiculed and called a liar. It was expressly suggested that he had joined the board of the club to steal its money. The taunts continued and some eighteen months later he sought and obtained other employment. 45 On his return home on the day of publication he was particularly upset to be asked by his wife (who had separately purchased the paper and read the article) for an explanation. She suggested his resignation because she was worried about "what people would say". 46 Apart from harassment at work he received abusive phone calls. He was subjected to public abuse. On one occasion a member of a crowd at the Olympic games in Stadium Australia yelled out "you are a thief" as he went to his seat. 47 He has experienced shunning to a marked degree. 48 I assess his damages at $70,000.
JOHN GOURNAROPOULOS 49 John Gournaropoulos read the article on the day of publication. Thereafter he noticed that family and friends "acted differently towards me". I do not have detail of the length of his club membership or service as a director. 50 He has been particularly distressed by a feeling that even his family are questioning of him. He sought medical attention for "aggravation to my nerves". 51 I assess his damages at $50,000.
BILL VENETOULIS 52 Bill Venetoulis has been a member and director of the club for six years. He is the "convenor" of juniors for the club. As such he dealt with over one hundred children and their parents. After the publication he was subjected to abuse and insults from parents and children alike. 53 He received anonymous phone calls after the publication including some which he took to be death threats. He has had a long association with soccer organizations wider than his activity within the club but the result has been that he has been exposed to even more questioning and insults from these wider sources 54 He has suffered socially and noted a significant decline in invitations received. He is being treated for stress and ulcers, conditions from which he did not suffer prior to the publication. 55 I assess his damages at $70,000.
SUMMARY 56 The total damages payable by the defendants is $685,000. 57 I direct entry of judgment for the respective plaintiffs as follows: (i) Judgment for George Nikolopoulos $80,000 (ii) Judgment for John Georgopoulos $60,000 (iii) Judgment for Alex Pettas $65,000 (iv) Judgment for Tom Haralambidis $60,000 (v) Judgment for Peter Mitrothanasis $60,000 (vi) Judgment for Bill Kategiannis $60,000 (vii) Judgment for George Tsokos $60,000 (viii) Judgment for Jim Panagakis $50,000 (ix) Judgment for Chris Giorgakopoulos $70,000 (x) Judgment for John Gournaropoulos $50,000 (xi) Judgment for Bill Venetoulis $70,000
58 The defendants are ordered to pay the plaintiffs' costs of action. **********
Last Modified: 11/19/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Nikolopoulos & Ors
Greek Herald Pty Ltd & Anor
Judgment for all eleven plaintiffs for a total of $685,000, comprising individual awards from $50,000 to $80,000, and an order that the defendants pay the plaintiffs’ costs of action ([56]-[58]).