PAPACONSTUNTINOS v HOLMES À COURT

Aktas v Westpac Banking Corporation Limited [2009] NSWCA 9 Aspro Travel v Owners Abroad Group [1996] 1 WLR 132 Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366 Bennette v Cohen [2009] NSWCA 60 Goyan v Motyka [2008] NSWCA 28 Horrocks v Lowe [1975] AC 135 CASES CITED : King and Mergen Holdings v McKenzie (1991) 24 NSWLR 205 Lindholdt v Hyer [2008] NSWCA 264 McCormick v John Fairfax & Sons (1989) 16 NSWLR 485 Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 Palmer Bruyn & Parker v Parsons [2001] HCA 68; (2001) 208 CLR 388 Toogood v Spyring (1834) 1 Cr M & R 181; (1834) 149 ER 1044

TEXTS CITED : Gatley on Libel and Slander (11th ed)

PARTIES : Tony Papaconstuntinos (Plaintiff) Peter Holmes à Court (Defendant)

COUNSEL : Mr R K Weaver / Mr D J Hand (Plaintiff) Mr B R McClintock SC / Mr R W Potter (Defendant)

SOLICITORS : Slater & Gordon Lawyers (Plaintiff) Baker & McKenzie Solicitors (Defendant)

• 37 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20204/06 TONY PAPACONSTUNTINOS v PETER HOLMES À COURT

JUDGMENT 1 HER HONOUR: This is an action for defamation brought by Mr Tony Papaconstuntinos in respect of a letter sent by Mr Peter Holmes à Court to Mr Papaconstuntinos' employer, the Construction, Forestry, Mining and Energy Union. The letter was sent during Mr Holmes à Court's bid to acquire a controlling interest in South Sydney District Rugby League Football Club. 2 Souths is one of sixteen football clubs to field a team in the National Rugby League. In 2005, at a time when the club was struggling financially, Mr Holmes à Court and Mr Russell Crowe put forward a proposal to inject $3 million into the club in exchange for a controlling interest in its management. The proposal contemplated substantial changes to the corporate structure of the club, and its implementation required the approval of the members in general meeting. 3 Associated with the Football Club is the South Sydney Leagues Club, a licensed club that operates the club premises, poker machines, restaurants and other facilities. At the time Mr Holmes à Court and Mr Crowe put forward their proposal, Mr Papaconstuntinos was one of the directors of the Leagues Club. He had been invited to join the Board by Mr George Piggins, who was the Chairman of the Board at that time. Mr Piggins knew that Mr Papaconstuntinos was employed by the CFMEU and "a mad Souths supporter". He thought it would be good for the club "to have a union involved". 4 The proposal put forward by Mr Holmes à Court and Mr Crowe generated extreme controversy and saw members bitterly divided. Mr Holmes à Court embarked on a carefully planned campaign to promote the "yes" camp. Mr Papaconstuntinos stood firmly in the "no" camp. An Extraordinary General Meeting to consider the proposal was called for Sunday 19 March 2006. The venue of the meeting was Olympic Park, as many members were expected to attend. 5 Two days before the meeting, Mr Holmes à Court sent the letter complained of in these proceedings. It was addressed to Mr Andrew Ferguson, the State Secretary of the CFMEU.

6 The letter was in the following terms: "Dear Andrew, Pursuant to our conversations recently, I would like to formally complain about the behaviour of an official of the CFMEU, Mr Tony Papa. I have spoken to you previously about my concerns about Mr Papa's use of the South Sydney District Rugby League Football Club for his own advancement and I am afraid I am under the impression that it has continued. As recently as last weekend, half an hour before the kick off of the Rabbitohs-Roosters match, Mr Papa called at least one voting SSDRLFC Member to repeat misleading information about the proposal which is being put to Members. I am, frankly, at a loss to understand why Mr Papa has worked so hard to spread misinformation about the proposal. I am also aware that another CFMEU member, Mr Tony Bleasdale has joined the board of the South Sydney Leagues Club. I have been informed by a senior member of those opposing our bid that Mr Bleasdale bought $20,000 of funding to pay for activities of the "No Camp". I am concerned that CFMEU funds may have been commingled with Mr Bleasdale's funds in supporting the No Camp. Perhaps most seriously, I am concerned that Mr Papa has personally benefited from funds meant for the Football Club through the employment of his son Jamie in an assistant coaching staff position. Jamie Papa was employed by the club by Mr George Piggins in an assistant coaching position and his employment was terminated by Shane Richardson when Mr Richardson became aware of the overpayments. Having reviewed the accounts of the club, reconciled Mr Papa's CV and job description with other coaching staff, and having personally interviewed senior members of the management of the Club, there is no doubt in my mind that Mr Jamie Papa was paid a salary many times the going salary for a person of his experience and for the position that he was performing. Specifically, Mr Jamie Papa was paid a salary of approximately $60,000 when the going rate for the role he was performing was closer to $4,000. I do not know whether these funds that were paid to Mr Papa at a premium were a reward for other activities, or a method of channelling funds to the CFMEU, or indeed to Mr Tony Papa. I am concerned that this chapter of Souths history is going to continue, partially as a result of Mr Tony Papa's efforts and well funded campaign to spread misinformation. I am seeking your assistance in checking the facts that I have presented, which are based on our very extensive due diligence of the Football Club's records collaborated with statements and telephone records of voting members (which I can supply at the appropriate time). Finally, I would reiterate the request I made last week that the CFMEU remove the Green Ban on the redevelopment of Redfern Oval. The Football Club has written to you to ask that the CFMEU now support the redevelopment plans as they provide the Football Club with badly needed professional training facilities (see attached) and drop the green ban. If the CFMEU lifts the ban now, these facilities will be ready in time for the 2008 season. I couldn't think of a more fitting gesture than to see the Rabbitohs return to Redfern in 2008, the centenary of Rugby League in Australia. I would respectfully request that I hear from you today. Yours sincerely, Peter Holmes à Court Cc: Nicholas Pappas Attached: Richardson letter to Ferguson re Redfern Oval redevelopment" Publication of the letter 7 Mr Holmes à Court admits that he published the letter. The only publication complained of in the pleadings is that the letter was sent to Mr Ferguson and copied to Mr Nicholas Pappas, a solicitor and former Chairman of the football club. Mr Holmes à Court does not dispute that the letter was sent to Mr Ferguson. Mr Ferguson gave evidence that he received the letter by facsimile. 8 As to publication to Mr Pappas, Mr Papaconstuntinos relies on the fact that the letter was marked "Cc: Nicholas Pappas". Mr Pappas was not called as a witness in the proceedings, but Mr McClintock SC, who appeared with Mr Potter for Mr Holmes à Court, acknowledged that it would be open to the Court to infer, from Mr Holmes à Court's silence on the issue, that he did not deny copying the letter to Mr Pappas. I am satisfied that the letter was published to Mr Ferguson and Mr Pappas. 9 It is clear that the letter also came to the attention of Mr Brian Parker, Mr Papaconstuntinos' immediate supervisor at the CFMEU, since it was he who first brought it to the notice of Mr Papaconstuntinos. I am satisfied that that was a direct consequence of Mr Holmes à Court's faxing the letter to Mr Ferguson. There was also evidence that the letter was collected from the fax machine by Mr Ferguson's personal assistant, Jennifer Glass, and that she "briefly read the letter". 10 There is no evidence that the letter was published to any other specific person, except that it may have been shown to some of the other directors of the Leagues Club by Mr Papaconstuntinos himself. No case was pleaded that Mr Holmes à Court was liable for republication of the letter on that basis. Mr Holmes à Court gave evidence that he may have told some people that he sent the letter but there was no evidence that he communicated its contents and no case was put on that basis by Mr Papaconstuntinos. 11 Beyond publication to Mr Pappas and the three people at the CFMEU, Mr Papaconstuntinos relies on what is known as the "grapevine effect". As noted by Gummow J in Palmer Bruyn & Parker v Parsons [2001] HCA 68; (2001) 208 CLR 388 at [88] that expression has been used as a metaphor which helps to explain the basis on which general damages may be recovered in defamation actions. His Honour stated at [89]: "The 'grapevine effect' may provide the means by which a Court may conclude that a given result was 'natural and probable'. However, this will depend upon a variety of factors, such as the nature of the false statement and the circumstances in which it was published. The 'grapevine effect' does not operate in all cases so as to establish that any republication is the 'natural and probable' result of the original publication. This was what was meant by Heydon JA, when his Honour referred to the appellant's submissions being put 'as though the grapevine effect was some doctrine of the law, or phenomenon of life, operating independently of evidence'. As Heydon JA correctly identified, the appellant can point to no evidence that the 'grapevine effect' operated in this case." 12 In the present case, there was a deal of evidence apparently directed to establishing that the defamatory sting of the letter had been heard by a number of people "on the grapevine" by the time the Extraordinary General Meeting was held at Olympic Park. A number of witnesses gave evidence to the effect that, when Mr Papaconstuntinos rose to speak at the meeting, he was jeered and booed. Mr Papaconstuntinos said that he heard people shouting comments such as "slippery fingers Papa" and that he was "a f'ing crook". The evidence of other witnesses called by Mr Papaconstuntinos was to similar effect. Mr Piggins stated that he heard it said at the meeting that Mr Papaconstuntinos "had his fingers in the till" and that he was a thief. Mrs Noelene Piggins said that people were accusing him of "ripping the club off" and "having his fingers in the till". 13 I am not satisfied, however, that those remarks are attributable to any republication of the letter, or to its so-called "grapevine effect". The use of that metaphor must not be permitted to distract the Court from the task of determining what is established by the evidence in the particular case. The evidence before me established that the campaigns for and against Mr Holmes à Court's proposal were attended by an extraordinary level of vitriol, particularly in blogs on the internet. 14 Mr Weaver, who appeared with Mr Hand for Mr Papaconstuntinos, tendered a collection of emails and print-outs of blogs relating to those campaigns. The purpose of the tender was to establish malice on the part of Mr Holmes à Court, an issue considered below. For present purposes, however, that material establishes that the kind of slurs called out at Mr Papaconstuntinos at the meeting were in circulation amongst participants in the campaign well before Mr Holmes à Court sent the letter now sued upon. In particular, a string of blogs was posted on a website, rabbitohs.com, between 2 and 8 March 2006 which referred to Mr Papaconstuntinos as "Tony fingers in the till Papa". It seems likely that such blogs were the source of the remarks called out to Mr Papaconstuntinos when he spoke at the meeting, rather than Mr Holmes à Court's letter. The letter was sent only two days before the meeting and, so far as the evidence establishes, had been circulated only to Mr Pappas, three people within the CFMEU and, possibly, some of Mr Papaconstuntinos' fellow directors on the Board of the Leagues Club by the time of the meeting. Indeed, Mr Ferguson gave evidence that he did not think he had even faxed the letter to Mr Papaconstuntinos, as he was concerned that it was defamatory and did not want anyone else to read it. 15 I accept that Mr Papaconstuntinos was hurt by the insults to which he was subjected at the meeting, which must have been extremely unpleasant. I am not satisfied, however, that there is any basis for concluding that Mr Holmes à Court is liable for damages in respect of those events as a result of his publication of the letter. Was the letter defamatory? 16 Mr Papaconstuntinos has identified six defamatory meanings alleged to have been conveyed by Mr Holmes à Court's letter. The first is: "That the plaintiff, a board member of the South Sydney Leagues Club, repeated information he knew to be misleading about the defendant's proposal to take a controlling interest in the South Sydney Rugby League Football Club". 17 Mr McClintock conceded that he could understand how it could be thought that the letter conveyed that meaning. The third paragraph of the letter nominates a specific occasion on which Mr Papaconstuntinos called a member "to repeat misleading information about the proposal". Further, the assertion in the fourth paragraph that Mr Papaconstuntinos has worked "so hard" to spread misinformation about the proposal clearly suggests that he knew the information to be misleading. The second paragraph, which introduces the topic, suggests that it is not an isolated event but part of a pattern of conduct. 18 I am satisfied that the letter conveyed that meaning and that it was defamatory of Mr Papaconstuntinos. 19 Imputations (b) and (c) are relied on in the alternative to each other. They are: "(b) the plaintiff, a board member of the South Sydney Leagues Club corruptly arranged for funds meant for the South Sydney Rugby League Football Club to be channelled to himself; in the alternative (c) the plaintiff, a board member of the South Sydney Leagues Club, was reasonably suspected by the defendant of corruptly arranging for funds meant for the South Sydney Rugby League Football Club to be channelled to himself."

20 Mr McClintock submitted that the letter does not impute actual guilt of the conduct in question, that is, it does not convey the meaning that Mr Papaconstuntinos actually arranged for funds to be channelled to himself through the device of his son's employment. Mr McClintock placed emphasis on Mr Holmes à Court's use of the phrase "I am concerned that", which he said did not convey the meaning that the conduct about which concern was expressed had in fact taken place. Mr McClintock also relied on the fact that the allegations about the employment of Mr Jamie Papaconstuntinos concluded with the statement "I do not know whether these funds that were paid to Mr [Jamie] Papa at a premium were a reward for other activities, or a method of channelling funds to the CFMEU, or indeed to Mr Tony Papa". 21 I accept Mr McClintock's submissions on that issue. I do not think the words of the letter are apt to convey to the ordinary reasonable reader that Mr Papaconstuntinos in fact corruptly channelled funds to himself. Rather, the letter identifies the material on the strength of which Mr Holmes à Court held a concern, and hence posed the question. Accordingly I am not satisfied that the matter complained of conveyed imputation (b). 22 As to imputation (c), Mr McClintock noted that the form of the imputation derives from the decision of the High Court in Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293. In that case, the High Court held that a report which does no more than to state that a person has been arrested and charged with a criminal offence is not capable of conveying the imputation that the person committed the offence, because the ordinary reasonable reader is taken to know that it remains for the person to be tried and convicted before that conclusion could be reached. Until such time, a person is presumed to be innocent, even after he has been arrested. 23 The main judgment in Harrison was given by Mason J, who expressed the view that such a report is capable, however, of bearing the imputation that the police suspected the person of having committed the offence and that they had reasonable cause for doing so (at 301.7). Wilson J adopted the reasons given by Mason J (at 303.9). Gibbs CJ noted that it was not necessary in that case to decide whether that lesser imputation was capable of being conveyed and left that question open (at 295.5). Brennan J joined with the Chief Justice in reserving that question for future consideration (at 303.9). The fifth member of the Court that heard the appeal, Aickin J, died before judgment was delivered. 24 There was accordingly no majority support for Mason J's view. Nonetheless, the imputation of suspicion on reasonable grounds postulated by his Honour has become a popular formulation in respect of reports about people charged by police with criminal offences.

25 Mr McClintock submitted that the reasoning in Harrison does not translate to a situation outside the context of police arresting people suspected of having committed criminal offences. I understand that the two situations are relevantly different, but I do not think it follows as a matter of logic that the letter written by Mr Holmes à Court could not, independently, convey the meaning that Mr Holmes à Court reasonably suspected Mr Papaconstuntinos of the conduct identified in the letter. 26 The letter displays careful composition. It begins by announcing itself as a formal complaint about the behaviour of the plaintiff in his capacity as an official of the CFMEU. The passage that deals with the question of the employment of Mr Jamie Papaconstuntinos begins "Perhaps most seriously" and then introduces Mr Holmes à Court's concerns. The facts that form the foundation for those concerns are set out in measured language and it is indicated that Mr Holmes à Court has himself reviewed the relevant accounts, "reconciled" Mr Jamie Papconstuntinos' qualifications and job description against those of other coaching staff and "personally interviewed" senior members of management. The letter asserts, on the strength of those facts, that Mr Holmes à Court had no doubt in his mind that the salary paid to Mr Jamie Papaconstuntinos was many times the going salary for a person of his experience in the position he was performing. In my view, the letter clearly conveys not only that Mr Holmes à Court holds the concerns or suspicions expressed but that they are the result of his own careful investigation and are accordingly reasonably based. 27 Separately, Mr McClintock submitted that even if the letter conveyed the meaning that the plaintiff was reasonably suspected by Mr Holmes à Court of behaving in one of several discreditable ways, it cannot convey the meaning that he is reasonably suspected of any specific behaviour because the letter postulates several alternatives. He relied on the decision of Hunt J (as his Honour then was) in McCormick v John Fairfax & Sons (1989) 16 NSWLR 485 at 489-490. 28 That decision was concerned with the situation where defamatory matter asserts that only one member of a class is guilty of discreditable conduct but does not identify which member of the class. Hunt J held that, in that circumstance, the matter is incapable of conveying the imputation that each was guilty of the conduct (at 491C), but may convey some lesser defamatory sting such as that each member of the class was possibly guilty of that conduct or that each was an associate of a criminal or a person who had not made sufficient inquiry as to the character of their business associates (at 491E-492C). 29 There is no analogy with that principle in the present case for the simple reason that the matter complained of does not convey the meaning that the plaintiff could only have engaged in one of the several kinds of discreditable conduct identified. In my view, there is nothing illogical in the plaintiff's contention that the letter asserts that the plaintiff was reasonably suspected of engaging in each of the kinds of discreditable conduct referred to in the letter. 30 For those reasons, I am satisfied that the letter conveys imputation (c).

31 Imputations (d) and (e) raise precisely the same issues. The imputations are: "(d) That the plaintiff, a board member of the South Sydney Leagues Club and an official of the CFMEU, was guilty of corruptly channelling overpayments by the South Sydney Rugby League Football Club to the CFMEU;

in the alternative (e) the plaintiff, a board member of the South Sydney Leagues Club and an official of the CFMEU, was reasonably suspected by the defendant of corruptly channelling overpayments by the South Sydney Rugby League Football Club to the CFMEU." 32 For the reasons set out above in respect of imputations (b) and (c), I do not think imputation (d) is conveyed but I am satisfied that the matter complained of conveys imputation (e). 33 Mr McClintock observed that each imputation is alleged to be conveyed of the plaintiff as a board member of the South Sydney Leagues Club, whereas the matter complained of does not in terms identify the plaintiff in that role. He acknowledged, however, that Mr Ferguson at least is likely to have known that the plaintiff was a member of the Board, with the result that the imputations were conveyed to him. 34 I think it is likely that the other members of the small group of people to whom the matter complained of was published also had that knowledge. In any event, the matter complained of probably does disclose the plaintiff's role as a member of the Board, since it refers in the fifth paragraph to the fact that "another CFMEU member" has joined the Board. On that basis, I am satisfied that each of imputations (a), (c) and (e) was conveyed to each of the four people who saw the letter, either in the ordinary meaning of the words or as a result of their knowledge of the additional fact that the plaintiff was a member of the Board.

35 As to whether imputations (c) and (e) are defamatory, Mr McClintock submitted that it is not defamatory to say of a person "I suspect [discreditable conduct] on reasonable grounds". He submitted that the fact that a person is reasonably suspected by an ordinary member of the public of having engaged in misconduct of some kind is not the same as saying that the person is reasonably suspected by the police of such conduct.

36 I do not accept that submission. So long as the concern or suspicion is identified as being based on reasonable grounds, as I consider it is in the present case, I do not think the imputation is less likely to cause ordinary decent folk to think the less of the plaintiff simply because the suspicion is identified as being held by Mr Holmes à Court as opposed to being held by a policeman. I am satisfied that imputations (c) and (e) are defamatory of Mr Papaconstuntinos. 37 The last imputation relied on by Mr Papaconstuntinos is imputation (g), which is: "That the plaintiff, an official of the CFMEU, and a board member of the South Sydney Leagues Club, so misled members of the South Sydney Football Club in relation to a proposal being put to them as to warrant the defendant making a formal complaint about the plaintiff to the NSW secretary of the CFMEU". 38 Mr Weaver conceded that the difference between that imputation and imputation (a) is one of degree. On that basis, he pressed imputation (g) only as an alternative to (a) and accordingly it is not necessary to consider it further. Was the defamatory publication defensible? 39 Mr Holmes à Court relies on two defences. First, he says that the matter complained of was published under qualified privilege at common law. Secondly, he says that it was published in circumstances where the plaintiff was unlikely to suffer harm.

The common law defence of qualified privilege 40 The principles to be applied in determining whether a defamatory statement was published on an occasion of qualified privilege are well settled and may be stated in relatively simple terms. The complexity lies in their application. The proper approach to the Court's task was considered by McHugh J in Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366. His Honour stated at [53]: "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 or social connection, and the recipient of the statement has a corresponding duty to receive or interest in receiving it" (citations omitted). 41 His Honour emphasised that the task is not to consider whether the communication is for the common convenience and welfare of society, but rather to "consider all the circumstances and ask whether this publisher had a duty to publish or an interest in publishing this defamatory communication to this recipient" (emphasis in original) (at [63]). 42 The notion of the "common convenience and welfare of society" is accordingly to be understood as the result of conferring the protection of the defence but not the determinant of whether the occasion is privileged. 43 The Court is required to examine all of the circumstances of the case, including "the nature of the defamatory communication, the status or the position of the publisher, the number of recipients and the nature of any interest they had in receiving it, and the time, place and manner of, and reason for, the publication: Bashford at [54]; cited in Bennette v Cohen [2009] NSWCA 60 at [9] per Ipp JA, Campbell JA agreeing at [206]. 44 The judgment of Ipp JA in Bennette provides a useful summary of the principles that must be applied by the Court when it approaches that task (at [11] to [25]). One of the principles there referred to is the relevance of the fact that the defamatory statement was volunteered by the defendant. On that subject, McHugh J said in Bashford at [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." 45 His Honour discussed the distinction with cases where the defendant is responding to a request and continued, at [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." 46 The issue for determination in Bashford was whether an occasion of qualified privilege arises when matter is voluntarily published by the publisher of a subscription magazine to its subscribers concerning a subject of public interest where the subscribers have a business or professional responsibility for that subject. Although McHugh J dissented in the result, I do not think that his dissent turned on a different view of the principle that the fact that the defamatory statement has been volunteered is a relevant factor. His Honour's statement of those principles has subsequently been cited with approval by the Court of Appeal on a number of occasions: see Goyan v Motyka [2008] NSWCA 28 at [86] per Tobias JA (with whom Giles JA and Handley AJA generally agreed); Lindholdt v Hyer [2008] NSWCA 264 at [92] per McColl JA (the issue of voluntariness was not expressly referred to by either Giles JA or Basten JA in that case); Bennette per Ipp JA at [21] (Campbell JA agreeing with the reasons of Ipp JA as to qualified privilege at [206]) and per Tobias JA at [145].

47 Mr McClintock identified three grounds for the contention that Mr Holmes à Court had an interest in conveying the information set out in the letter. They were: "1. Mr Holmes à Court's participation in the proposal to be voted on on 19 March 2006 and the campaign surrounding that proposal, including the fact that Mr Papaconstuntinos was a prominent and passionate opponent of the yes campaign. 2. The fact that Mr Holmes à Court obtained information as a result of the due diligence which, on its face, was highly suspicious and demanded to be checked. 3. The fact that Mr Holmes à Court had information that Mr Papaconstuntinos had engaged in misleading prospective voters." 48 As to the interest of the recipient, Mr Ferguson as General Secretary of the CFMEU, in having the information the subject of the letter, Mr McClintock identified the following matters: "1. The CFMEU were in effect stakeholders in Souths and the campaign because of their long association with that club. 2. Mr Ferguson had undertaken to Mr Holmes à Court not to take a position in the vote and invited Mr Holmes à Court to come back to him if he learned anything to the contrary. 3. The information in so far as it involved Mr Papaconstuntinos' son's employment may have involved Mr Papaconstuntinos' conduct as a CFMEU organiser. 4. Mr Ferguson was in a position to exert influence over Mr Papaconstuntinos' conduct in relation to the vote and the campaign. 5. Mr Ferguson was Mr Papaconstuntinos' employer and had therefore an interest in knowing the information in question. 6. He invited Mr Holmes à Court to contact him." Did Mr Holmes à Court volunteer the information? 49 The contention in items 2 and 6 identified by Mr McClintock (set out above), that Mr Ferguson invited Mr Holmes à Court to come back to him if he identified that the CFMEU was not taking a neutral stand in the campaign, is relevant to the principles set out above in respect of the different considerations that apply when defamatory information is volunteered. As such, it is necessary to determine what was said by Mr Ferguson. His evidence was that a meeting took place between himself and Mr Holmes à Court in early 2006. Mr Ferguson stated (at T163): A. [Mr Holmes à Court] said he was concerned about the involvement of the union in the campaign against his proposal. He made reference to both Mr Brian Parker and Tony Papa. In particular he was concerned about Tony Papa's involvement and said that any officials should not be involved. Q. How did you respond? A. I made it clear that the union had no formal involvement, that they, as individuals, had a right to be involved in the campaign. As we had members in both sides of the debate, we intended to be neutral. 50 Mr Ferguson made no reference in his evidence to having invited Mr Holmes à Court to contact him further after that conversation and it was not put to him in cross-examination that he had made any such statement. Mr Holmes à Court's evidence as to the conversation was as follows (at T206): "Q. What did you say to Mr Ferguson about the CFMEU role in the vote and what did he say to you about it? A. I said that you have given me the impression that the CFMEU is not going to go (sic) involved in this but I perceived the CFMEU tends to be involved through the action of a number of their members, narrowing the newspaper (sic) at CFMEU House and according to -- from the CFMEU, and it looks to me like you guys are still involved. Q. Did you nominate any particular union members in those conversations with Mr Ferguson? A. Yes, I did. Q. Who did you nominate? A. I nominated Brian Parker and Tony Pappas (sic). Q. What did Mr Ferguson say in response to what you just said you said to him? A. Mr Ferguson's response with regard to the red and green ban was that it was something they would go through due process, ground communications, the football was only one, and he would not give me a ruling on that. With regard to individuals and the CFMEU being involved in the vote or the CFMEU, being involved in the vote he stated the CFMEU was involved in the vote, this is the personal behaviour, this is activity of the individuals as individuals but if he was to find out anything which suggested otherwise then I should come back to him." 51 The last statement "but if he was to find out anything that suggested otherwise then I should come back to him" should, I think, read "but if I was to find out anything which suggested otherwise then I should come back to him." I note that, at the time that conversation is said to have occurred, Mr Holmes à Court already knew the information about the employment of Mr Jamie Papaconstuntinos which he later set out in his letter. 52 If Mr Ferguson made a statement to the effect attributed to him in the last part of Mr Holmes à Court's evidence set out above, I am not satisfied that it was to be construed as anything more than a polite conclusion to their conversation. The matter complained of does not, in terms, purport to be a response to any such request. 53 The contention that Mr Ferguson invited Mr Holmes à Court to contact him if he obtained any further information did not feature prominently in the conduct of the defendant's case. As I have already noted, it was not even put to Mr Ferguson that he extended any such invitation. To the extent that it was a premise of the defendant's case that the defamatory statements in the matter complained of were not volunteered, I reject it.

The CFMEU's stake in Souths 54 As to the first matter relied upon in respect of the interest of the recipient (set out above), I do not accept that the CFMEU was a "stakeholder" in Souths and the campaign. Mr Ferguson's evidence was to the contrary. He stated that members of the CFMEU who took an interest in the Leagues Club did so in their personal capacity, not as spokespersons for the union. He also stated that the union has significant involvement with clubs other than Souths. Mr Ferguson himself follows soccer. 55 As to the contention that Mr Ferguson had "undertaken" to Mr Holmes à Court not to take a position in the vote, I think that overstates the effect of the conversation between the two men, on either version of it. I do not think the CFMEU had any special interest in receiving information about the campaign on account of a long association with the club, or as a result of anything said at the meeting between Mr Ferguson and Mr Holmes à Court. The circumstances of this case 56 As already noted, the task as described by McHugh J in Bashford at [54] is to examine all of the circumstances of the case, including "the nature of the defamatory communication, the status or the position of the publisher, the number of recipients and the nature of any interest they had in receiving it, and the time, place and manner of, and reason for, the publication. After considering these matters, the Court makes a judgment as to whether the publisher had a duty or interest that justified making the publication and whether the recipients, or some of them, had a duty to receive or interest in receiving it." 57 The principal subject of the letter was the conduct of Mr Papaconstuntinos, as to which the letter was pitched as a formal complaint. The gist of the complaint was that Mr Papaconstuntinos was spreading misinformation about Mr Holmes à Court's bid for a controlling interest in the Football Club. In apparent support of the complaint, or to explain the conduct complained of, Mr Holmes à Court provided the information about the former employment of Mr Papaconstuntinos' son, and ventured to speculate some past misuse of funds on the part of Mr Papaconstuntinos. 58 As I have already indicated, in my view the letter displays careful composition. The publisher, Mr Holmes à Court, is a well-known Sydney businessman. I have regard to the fact that the letter was written on the letterhead of Whitebull Holdings Pty Ltd, noting Mr Holmes à Court's contention that the statement was made in furtherance or protection of his interest in the South's proposal (and, by implication, the interest of that company in the proposal). 59 I accept that the letter was published only to a small number of recipients, three of whom were officers or employees of the CFMEU. All of those are factors consistent with the occasion being one to attract the cloak of qualified privilege.

Was the letter published under qualified privilege? 60 The critical task, however, is to make a judgment, after considering all the circumstances, as to whether Mr Holmes à Court had an interest that justified making the defamatory publication and whether the recipients had an interest in receiving it. Mr McClintock's primary position was that the occasion extended to all of the material in the letter. Alternatively, he submitted that the occasion was to pass on information about the fact that Mr Papaconstuntinos had been repeating misleading information that concerned Mr Holmes à Court's proposal and "the Rabbitohs". Mr McClintock submitted that, if I was satisfied only on that narrower basis, the rest of the material was nonetheless relevant to the occasion because it was the reason for Mr Holmes à Court's concern. 61 Mr McClintock noted that the law is now settled that it is not necessary to establish that each defamatory imputation was published under qualified privilege. The defence looks to the occasion on which the matter complained of, which gave rise to the imputations, was published: Aktas v Westpac Banking Corporation Limited [2009] NSWCA 9 at [79] to [85]. 62 Mr Weaver accepted that Mr Holmes à Court had an interest in conveying the information set out in the matter complained of as a result of his participation in the proposal to be voted on on 19 March 2006 and the campaign surrounding that proposal, including Mr Papaconstuntinos' opposition to it. He submitted, however, that Mr Ferguson had no correlative interest in having information on that subject. I have reached the opposite conclusion on each of those issues. 63 As already indicated, I do not accept that Mr Ferguson requested information on the subject of the conduct of the campaign. Further, I do not think the CFMEU had any special interest in receiving information about the campaign on account of a long association with the club. Accordingly, there was no occasion for Mr Ferguson to receive information about the alleged misinformation that Mr Holmes à Court believed was being spread by Mr Papaconstuntinos in relation to the proposal. 64 However, I do not have any difficulty accepting that at least two of the people who received the letter, Mr Ferguson and Mr Parker, had an interest in receiving the information so far as it concerned Mr Papaconstuntinos' conduct as a CFMEU officer. I also accept that they had an interest in receiving the information as Mr Papaconstuntinos' employer. 65 Mr Weaver submitted that the information held by Mr Holmes à Court did not "hit the mark" of being worth communicating to Mr Ferguson. I do not agree. It is important to note that it is no part of these proceedings to determine whether Mr Tony Papaconstuntinos did in fact behave improperly in any way. He gave evidence in the trial that he had been unaware that his son's employment with Souths involved individual sponsorship (at T28). Mr Holmes à Court initially sought to rely on a defence of truth, but that defence was abandoned before the commencement of the hearing. Nonetheless, at the time the information became available to Mr Holmes à Court, it was, in my view, such as to arouse suspicion in a reasonable mind. 66 Mr Papaconstuntinos was an official of the CFMEU. As its name suggests, that is the union for workers in the construction industry. The information uncovered by Mr Holmes à Court was that Mr Jamie Papaconstuntinos was being paid a salary well in excess of the usual salary for coaches in the lower divisions at the South Sydney Football Club. Further, Mr Shane Richardson, Chief Executive Officer of the Football Club, had told Mr Holmes à Court that, when he first learned about the salary being paid, and questioned it, he was told not to worry because the salary was to be met by sponsors of the club. The sponsors were construction companies, who may be assumed to have a motive for keeping the construction workers' union happy. In my view, those facts were inherently suspicious. 67 The test is whether the recipients of the letter had an interest in receiving that information on the assumption that it was true. Plainly, if true, the misuse of funds suspected by Mr Holmes à Court on account of those events warranted consideration by the secretary of the CFMEU. 68 What I find more difficult to accept is that Mr Holmes à Court had an interest that justified his publishing information on that subject to Mr Ferguson at the time that he did. I accept, as submitted by Mr McClintock, that it is not necessary for the defendant to establish that the publisher and the recipient had a common interest arising out of the same set of circumstances. The interests of the parties can be quite different in kind, but the occasion may still be privileged: Aspro Travel v Owners Abroad Group [1996] 1 WLR 132 at 143; cited in Gatley on Libel and Slander (11th ed) at 14.42.

69 The difficulty I have is that I do not think there was a pressing need for Mr Holmes à Court to protect his interests (or those of Mr Crowe or Whitebull Holdings Pty Ltd) by volunteering the defamatory information about the events surrounding the employment of Mr Jamie Papaconstuntinos several years earlier (or expressing his "concerns" in relation to that information).

70 As already indicated, I accept, as submitted by Mr McClintock, that the information obtained as a result of the due diligence conducted by Mr Holmes à Court and his team was, on its face, highly suspicious. However, those were events which had emerged, and been dealt with by the club, some time earlier. The premise of Mr Holmes à Court's communication of those events to Mr Ferguson was that, in his mind, they afforded the explanation for Mr Papaconstuntinos' vigorous opposition to the proposal and the misinformation that Mr Papaconstuntinos had been spreading about it (according to Mr Holmes à Court). That, in my view, was a tenuous connection that afforded no basis for volunteering information on the subject to Mr Ferguson. I do not accept that Mr Papaconstuntinos' campaign against the bid, even if he was spreading what was perceived by Mr Holmes à Court as misleading information, was "inexplicable" unless one considered the circumstances surrounding the employment of Mr Jamie Papaconstuntinos. An objective bystander, with no personal investment in the bid, would readily have accepted that the two camps simply had vastly different perspectives as to the merits of the bid and the best interests of the Rabbitohs. 71 Further, I do not accept that the publication of those defamatory statements was warranted in furtherance or protection of Mr Holmes à Court's interest. The letter sought Mr Ferguson's "assistance in checking the facts" presented, but there was no practicable opportunity for that to occur between receipt of the letter on the Friday before the vote and the Sunday when the vote occurred. 72 Accordingly, adopting the words of Parke B in Toogood v Spyring cited in Bashford at [54], I do not think the publication of the defamatory statements as to Mr Holmes à Court's concerns about misuse of funds was fairly warranted by any reasonable occasion or exigency. For those reasons, I am not satisfied that the letter was published on an occasion of qualified privilege. Improper motive 73 The defence of qualified privilege is defeated if the publication of the matter complained of was actuated by an improper motive (sometimes referred to as malice). In case my assessment as to whether the letter was published on an occasion of qualified privilege is wrong, it is appropriate to record my findings of fact relevant to that issue.

74 Mr Papaconstuntinos' contention that the publication was actuated by an improper motive was based on the following allegations as to Mr Holmes à Court's state of mind:

(a) that Mr Holmes à Court was actuated by a desire to discredit Mr Papaconstuntinos, either personally or as an opponent to the Souths proposal (I note that two of the sub-particulars of that allegation in the fourth amended reply allege recklessness on the part of Mr Holmes à Court but that allegation was not maintained at the hearing);

(b) that Mr Holmes à Court did not hold an honest belief in the truth of the matters alleged against Mr Papaconstuntinos in the matter complained of. 75 It was also alleged in the reply that Mr Holmes à Court was motivated by ill will towards Mr Papaconstuntinos, but that allegation did not appear to be maintained in the way in which the case was conducted. Mr Papaconstuntinos does not allege that Mr Holmes à Court believed that what he published was false. All that was alleged was that there was an absence of honest belief in the truth of what was published and a desire to discredit Mr Papaconstuntinos. Did Mr Holmes à Court honestly believe what he published? 76 Mr Holmes à Court gave evidence in chief that he believed the statements he made in the letter (at T210). Mr Weaver submitted, however, that I should not accept Mr Holmes à Court as a frank witness. He submitted that Mr Holmes à Court had a tendency to prevaricate and obfuscate when cross-examined in areas as to which "it must be assumed he felt his answers could have done harm". I do not accept that Mr Holmes à Court was anything less than frank in the evidence he gave to the Court. I certainly accept that he was astute to the areas in which his evidence could do harm to his case, but I do not accept that he responded to that risk with any lack of candour. 77 On the contrary, in my assessment, Mr Holmes à Court took care, particularly in the areas in which he perceived some exposure, to answer the question accurately. The result was that his answers were at times pedantic but pedantry is not to be equated with prevarication. I formed the view that Mr Holmes à Court took care to ensure that he understood the precise question that was being asked and, equally, that he took care to answer that question and only that question. I am satisfied that his answers were honest. 78 Mr Weaver further submitted that Mr Holmes à Court's answers when he was cross-examined as to whether he held an honest belief in what he published were "so difficult to extract" that I should draw the inference that he did not hold such a belief. I do not accept that submission. It is necessary to consider the answers in the context of the questions to which they responded. The following exchange illustrates the point: "Q. I put it to you squarely it was the case, wasn't it, that in writing the letter you were embarking on a matter of tit for tat, weren't you? A. No, absolutely not. Q. Are you saying that you only sent the letter to Mr Ferguson because of the misinformation you believed Mr Papa was spreading? A. Absolutely. That's what we were trying to do. We were trying to stop him spreading information which was incorrect and misleading, leading up to the vote. Q. And that was the sole basis for you sending this letter, wasn't it? A. I think so. I don't think there is anything else that it was about. Q. And it had absolutely nothing to do with the belief on your part that Mr Papa had benefited personally from funds that were meant to go to the football club, did it?"

After an objection, the cross-examination continued: "Q. It is the case, isn't it, Mr Holmes à Court, that it was never a reason for you sending a letter to Mr Ferguson that you had any belief that Mr Papa had personally benefited from funds meant for the football club? A. On - on the contrary. It's - that is why we thought he was going to the extraordinary lengths that he was going to, to prevent two people putting money into the football club. We couldn't understand how - what was going on and why he was working so hard to prevent money going in. We thought it must have been, as I believe I have said before, to prevent us getting control, for getting us - to prevent us getting to have a deeper look inside the - inside the organisation and the way it had run and the way money had moved around the club. Q. Your sole purpose in sending the matter complained of was to damage Mr Papa personally to assist your yes campaign, wasn't it? A. No. It was to stop him making telephone calls. It couldn't have done any damage on a Friday to Mr Papa that would have helped our campaign. We were only trying to stop the misinformation being spread. Q. And that purpose had nothing to do with any belief on your part that he had personally benefited from funds meant for the football club? A. Sorry if I wasn't clear before when I answered that question but we believed that the reason that he was making these telephone calls was because he had personally benefited from football club funds or sponsor funds and he did not want us to get in control of the football club and either change the way it operates or investigate what had happened in the past." In my view, far from being "difficult to extract", Mr Holmes à Court's responses to the questions he was asked during that exchange were direct and forthright. 79 Finally, it was contended in the reply that an absence of honest belief could be inferred from Mr Holmes à Court's failure to make inquiries before he sent the letter. However, Mr Holmes à Court gave evidence of detailed information uncovered during the due diligence inquiry he undertook before making his bid for Souths. The material obtained during those investigations was such as to found an honest belief in the suspicions expressed by Mr Holmes à Court in the letter. 80 I am satisfied that Mr Holmes à Court held an honest belief in the truth of what he published. Desire to discredit Mr Papaconstuntinos 81 The second factual issue raised by the reply is whether it was any part of Mr Holmes à Court's motive in publishing the letter to discredit Mr Papaconstuntinos and, if so, whether that was Mr Holmes à Court's dominant motive.

82 The issue as to whether that was the dominant motive arises from a submission made by Mr McClintock in reliance on the judgment of Lord Diplock in Horrocks v Lowe [1975] AC 135. Mr McClintock submitted that, if the publisher believes in the truth of what he says, it will be a rare case where it would be found that the desire to serve the privileged occasion played no part in his purpose. 83 In each of the separate speeches of Viscount Dilhorne and Lord Diplock in Horrocks v Lowe, it is recognised that a man who honestly believes what he says on a privileged occasion may nonetheless be actuated by malice: at 146G per Viscount Dilhorne; at 150E per Lord Diplock. Where the Court is satisfied that a defamatory statement has been made on a privileged occasion, the critical task is to identify the motive with which it was made. Lord Diplock in Horrocks v Lowe noted that the existence of a positive belief in the truth of what is published on a privileged occasion may not be enough to negative express malice "if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law". 84 His Lordship observed that the most common case is where, although believing in the truth of what was published, the defendant's dominant motive is a desire to give vent to personal spite or ill will towards the person defamed, but added: "There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant's dominant motive may have been to obtain some private advantage unconnected with the duty or the interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true." 85 In the present case, Mr Holmes à Court gave the following evidence in chief (at T210) as to why he wrote the letter: "The letter of 17 March was written right before the vote and I was trying to get Mr Ferguson to investigate this to hopefully stop these calls that were taking place that were spreading, in our opinion, false information to the detriment of members." 86 In cross-examination, it was put to Mr Holmes à Court that his purpose was to discredit Mr Papaconstuntinos: "Q. You sent the letter to Andrew Ferguson using the information you had or say you had on 20 December 2005 for the purpose of discrediting Tony Papa; isn't that correct? A. Okay, I'll see if I understand the question. I sent the letter on 17 March 2006 for the purpose of discrediting Tony Papa? Is that the question? Q. It was, yes? A. No, I sent the letter to Andrew Ferguson to try and get Andrew Ferguson to understand that he should do something about investigating these telephone calls that were taking place and hopefully bringing them to an end." 87 The plaintiff placed considerable reliance in respect of this issue on Mr Holmes à Court's "participation" in a series of emails and internet blogs, and the fact that he had dinner with some of the authors of that material. It was submitted that Mr Holmes à Court's association with persons bearing open hostility and ill will towards members of the "no" camp (including Mr Papaconstuntinos) demonstrated the impropriety of his motive for publishing the letter. 88 The blogs are certainly no advertisement for the grace of humanity. However, the evidence did not establish any participation in those exchanges on the part of Mr Holmes à Court personally. I do not think it is possible to draw any inference whatsoever about Mr Holmes à Court's motives from the contents of that material. The email exchanges, in my view, demonstrate that Mr Holmes à Court was deeply passionate in his commitment to the bid and had embarked on an unrelenting campaign to invoke the support of anyone who would engage with him. They do not establish that he condoned any personal hostility towards Mr Papaconstuntinos, nor do they establish his motive in sending the matter complained of. 89 Separately, Mr Weaver relied on the evidence of a witness, Mr Graham Tunks. Mr Tunks is the half owner of the domain name, rabbitohs.com, on which there was a forum known as "the Hutch". In late 2005, Mr Holmes à Court contacted him by private message on that website, apparently to garner his support for the campaign. They subsequently spoke by telephone in December 2005. Mr Tunks gave evidence that, during that conversation, Mr Holmes à Court said to him "How could we use this information about Jamie Papa?" His evidence did not disclose how that topic first arose. Mr Tunks responded "We should hold on to that information, it's a bullet we need to fire closer to the EGM year". 90 Mr Tunks said that there was a further telephone conversation in late February or early March 2006 when Mr Holmes à Court again asked about the information he held regarding Mr Jamie Papaconstuntinos and how best to use it. Mr Tunks again responded that "It should be used closer to the vote and that perhaps it should be directed at someone close to Tony Papa for best effect." 91 Finally, about a week before the Extraordinary General Meeting, Mr Holmes à Court and Mr Tunks had a conversation in Canberra after an information night at the Kaleen Sports Club when Mr Tunks said to Mr Holmes à Court "This is the home stretch, we need to be on our game. There's some bullets being fired on the Hutch, we need to unload what we've got. Now's the time". 92 Mr Tunks stated that Mr Holmes à Court responded that "There's going to be some people upset at the end of this week, what goes around comes around." It is impossible to draw any inference from that remark as to Mr Holmes à Court's motive in sending the letter. It seems most likely to have been a reference to the anticipated outcome of the Extraordinary General Meeting. 93 As to much of the conversation deposed to by Mr Tunks, Mr Holmes à Court's evidence, in summary, was to the effect that he could not recall conversations in the terms alleged. He specifically denied some parts of the conversations. I do not think the evidence of Mr Tunks took the issue of malice any further one way or the other. Mr Weaver placed reliance on the fact that Mr Tunks advised Mr Holmes à Court to hold the material back until it could have more impact, but I doubt whether Mr Holmes à Court's motive in sending the letter was informed in any way by the views of Mr Tunks. 94 Reliance was also placed on the fact that, after the "yes" proposal had been accepted by the members, Mr Holmes à Court gave Mr Tunks a gift of golf balls shaped as footballs bearing the Rabbitohs logo, accompanied by a note which read "It took balls". Whatever inference is to be drawn from that fact, I do not think it has any bearing on the present issue. Separately, Mr Weaver relied on the fact that Mr Holmes à Court engaged private inquiry agents from the United States to conduct surveillance on opponents of his proposal. Again, I do not see any relevance in those events to the question of Mr Holmes à Court's motive for sending the letter. 95 Mr Weaver relied on the following additional matters in support of the inference that Mr Holmes à Court was actuated by a desire to discredit Mr Papaconstuntinos when he sent the letter: (a) the fact that the letter was deliberately timed to do the most harm to Mr Papaconstuntinos; (b) the fact that the primary charge in the letter of misuse of funds was based on no more than a rumour Mr Holmes à Court had known about for months; (c) the evidence of Mr Holmes à Court (at T208) where he acknowledged that he "could not put his finger on" the reason for Mr Papaconstuntinos' objection to the proposal. Mr Weaver submitted that that was a concession which disclosed that Mr Holmes à Court did not genuinely believe the truth of what he published but that it was mere conjecture; (d) the fact that Mr Holmes à Court did not follow up the investigation of the matters outlined in the letter after the Extraordinary General Meeting (at which his proposal was approved by the members).

96 Mr McClintock submitted that I should not infer that Mr Holmes à Court deliberately timed the letter for maximum harmful effect, for the simple reason that that proposition was not put to Mr Holmes à Court. Equally, as to the suggestion that the letter was based on rumour, Mr McClintock noted that it was never put to Mr Holmes à Court that there was an insufficient basis for the views he expressed and, further, that it is established by the documents tendered by the plaintiff that the facts recited by Mr Holmes à Court were right. Mr McClintock further submitted that it would not be enough if I were satisfied that it was a part of Mr Holmes à Court's motive to discredit Mr Papaconstuntinos. He submitted (relying on Horrocks v Lowe) that, for the defence to succeed, I would have to find that was the dominant motive, which he said cannot be established on the evidence.

97 Plainly it was in Mr Holmes à Court's interest to discredit Mr Papaconstuntinos so as to undermine his opposition to the bid. However, I have reached the conclusion that I cannot be satisfied that that was Mr Holmes à Court's motive in publishing the letter, let alone his dominant motive. 98 As already noted, Mr Holmes à Court's stated reason for sending the letter was that he was trying to get Mr Ferguson "to investigate this to hopefully stop these calls". That evidence was not challenged in cross-examination. Indeed, Mr Weaver put, in effect, the same proposition. I confess that I have some difficulty understanding what basis Mr Holmes à Court had for expecting Mr Ferguson to intervene to "stop the calls" within the short time frame between the sending of the letter and the Extraordinary General Meeting.

99 Although he ostensibly sought Mr Ferguson's assistance in "checking the facts" that he had presented, Mr Holmes à Court did not provide any of the material he had uncovered to Mr Ferguson. He offered to provide copies of some documents "at the appropriate time", but requested a response "today". In those circumstances, there was little likelihood of Mr Ferguson's being able to provide the assistance sought. 100 The difficulty is, as noted by McClintock, that it was never put to Mr Holmes à Court that he deliberately timed the letter so as to discredit Mr Papaconstuntinos, nor that he must have appreciated that Mr Ferguson would be unable within that time frame to provide the assistance sought. It was never put that Mr Holmes à Court was being disingenuous, or untruthful, when he said that his motive was to get Mr Ferguson to intervene to stop the calls. In those circumstances, I do not think that it is appropriate for me to draw those inferences. Accordingly, although I accept that it was in Mr Holmes à Court's interests to discredit Mr Papaconstuntinos, and that he may even have welcomed the opportunity to do so, I am not satisfied that the publication of the letter was motivated by a desire to do so.

101 In light of my conclusion that the matter complained of was not published on an occasion of qualified privilege, it is neither necessary nor logical to consider the separate question whether Mr Holmes à Court's motive for sending the letter was extraneous to the occasion.

Unlikelihood of harm 102 The alternative defence relied upon by Mr Holmes à Court is the defence of triviality under s 33 of the Defamation Act 2005, which provides: "It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm". 103 The defence focuses on the circumstances of the publication. That must be the factor which renders it unlikely that the person defamed will suffer harm. The test is not whether the plaintiff did in fact suffer harm but the prospective likelihood of the publication causing harm in the circumstances in which it was published: Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 799E. 104 As noted by the Court in Morosi, the defence is directed to trivial actions for defamation, such as "where a slightly defamatory statement is made in jocular circumstances to a few people in a private home": Morosi at 800D. I do not think that the publication complained of in these proceedings could fairly be described as trivial or assessed as unlikely to cause harm in the circumstances in which it was published. It was a carefully drawn written complaint by a prominent businessman stating his concerns as to the conduct of the plaintiff. 105 It must be borne in mind that the defence requires the defendant to show not merely that there is unlikely to be great or substantial harm but that there is unlikely to be any harm at all: King and Mergen Holdings v McKenzie (1991) 24 NSWLR 205 at 309G per Mahoney JA. 106 I am not satisfied that the defence of triviality is made out in the present case. Damages 107 It remains to assess the damages to which Mr Papaconstuntinos is entitled. The scope of publication of the letter was limited to four people. I have already indicated that I am not satisfied that the comments called out to Mr Papaconstuntinos at the Extraordinary General Meeting held at Olympic Park on 19 March 2006 were due to any republication of the matter complained of for which Mr Holmes à Court is responsible. As I have indicated, the evidence suggests that those allegations were in circulation, particularly on websites associated with the club, several weeks before the publication of the matter complained of. 108 The imputations are relatively serious, touching Mr Papaconstuntinos in an aspect of his reputation which he holds dear, namely, his integrity as a long-standing union official. Mr Papaconstuntinos gave evidence of a lengthy involvement in unions and has been with the CFMEU for eleven years. 109 Mr Papaconstuntinos gave evidence that the publication made him angry and that it caused him to become withdrawn and depressed. His anger and hurt were exacerbated by his knowledge that the allegations were without substance (see T24.29). He was particularly upset by the need to have to explain himself to his employer, Mr Ferguson. That evidence was corroborated by Mr Papaconstuntinos' wife, Robyne Armstrong, who said that after publication of the letter, Mr Papaconstuntinos became depressed and estranged from her. Mr McClintock suggested in cross-examination that as a union man, Mr Papaconstuntinos must have needed to be thick-skinned. I accept, however, that Mr Papaconstuntinos was particularly hurt by the challenge to his honesty and dignity made in the matter complained of. 110 The defendant relies in mitigation of damages on an apology he published in the form of a letter addressed to Mr Papaconstuntinos on the website of the South Sydney District Rugby League Football Club for one month from about 7 December 2006. Mr Papaconstuntinos gave evidence that the apology also made him angry, but I think that was due to a misunderstanding or some confusion as to why the apology was published. It was in fact published in response to a request made by Mr Papaconstuntinos' solicitors, but at the time he gave evidence, Mr Papaconstuntinos did not appear to be aware of that fact. I do not accept that he should have been further angered by the publication of the apology. 111 The evidence of the apology is relevant to the mitigation of damages (see s 38 of the Defamation Act 2005). There is some force, however, in Mr Papaconstuntinos' complaint that the apology came too late and after the harm was done. On the other hand, it was probably published more widely than the matter complained of (there was no evidence before me as to how many times it has been downloaded from the club's website). 112 Neither party referred me to any comparable case on the question of damages. Mr McClintock submitted only that the amount awarded should be "very, very low", while Mr Weaver submitted that there should be "an appropriate sizable award". 113 I am required pursuant to s 34 of the Defamation Act 2005 to ensure that there is an appropriate and rational relationship between the harm sustained by Mr Papaconstuntinos and the amount of damages awarded. The maximum amount of damages that may be awarded is $294,500: s 35 of the Defamation Act 2005. 114 There is, perhaps, some analogy between the notion of the maximum damages amount under s 35 and the maximum penalty in a criminal case. In my view, the maximum damages amount is to be regarded as being reserved for the worst category of case, such as the publication of an imputation of paedophilia on the front page of a major newspaper or in the prime time broadcast of the television news. 115 The present case is, in my view, towards the other end of the scale. Although the imputations are serious, their circulation was very limited and that minimised the harm to reputation sustained by the plaintiff. I accept, as I have indicated, that the plaintiff was hurt and angered by the attack on his honesty and dignity made by the letter and it is appropriate to take the hurt to his feelings into account, but the principal consideration is the extent of harm to Mr Papaconstuntinos' reputation. 116 I have reached the view that the appropriate award is $25,000. I order that there be a verdict and judgment for the plaintiff in the sum of $25,000. I order the defendant to pay the plaintiff's costs of the proceedings.

29/04/2010 - additional words "as noted by" inserted into first line of paragraph 100. - Paragraph(s) 100

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.