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General information, not legal advice.
Supreme Court of Victoria
2018-08-16
JOHN DIXON J
Original judgment source is linked above.
DEFAMATION - Publication - Defendant falsely denied publication.
DEFAMATION - Defences - Justification - Particulars of justification incapable of meeting sting of imputations - Particulars not established on evidence - Defamation Act 2005 (Vic), s 25.
DEFAMATION - Defences - Qualified privilege - Where publication denied - Where publication anonymous - Common law qualified privilege - No duty or reciprocity of interest - Statutory qualified privilege - Publication not reasonable - Defendant actuated by malice - Defamation Act 2005 (Vic), s 30.
DEFAMATION - Damages - Defendant aggravated plaintiffs' damage in circumstances of publication and since publication - Defamation Act 2005 (Vic), s 34.
DEFAMATION - Other remedies - Injunction - Special circumstances warranting imposition of injunction.
Mr G Mukherji (27-28 February, 1, 2, 5, 6 & 20 March 2018)
Davies Elliot (27-28 February, 1, 2, 5, 6 & 20 March 2018)
1 The plaintiffs claim damages against the defendant in relation to the alleged publication of eight emails and one related conversation.
2 For the reasons which follow, I am satisfied that certain publications were defamatory of each of the plaintiffs, and none of the defences relied upon by the defendant have been made out.
3 I have assessed the damages to which each plaintiff is entitled as follows -
(a) Denis Moroney - $75,000;
(b) Gregory Moon - $75,000;
(c) David Schereck - $75,000;
(d) Ross Farmer - $75,000;
(e) Lance Eastwood - $80,000;
(f) Andrew Hepner - $90,000;
(g) Luke Silverback - $90,000;
(h) Geoffrey Kuyken - $75,000;
(i) Jack Wegman - $175,000.
4 Between 7 August 2014 and 15 January 2018 ('the publication period'), each of the first to eighth plaintiffs were directors of the Sporting Shooters Association of Australia (Victoria) ('the SSAAV'), and the tenth plaintiff, Mr Jack Wegman, was its CEO.[1]
5 The defendant is a member of the SSAAV, and at various times has been the VicePresident and President of the SSAAV.
6 The SSAAV is the state branch of a national organisation with approximately 100,000 members. The Victorian branch has approximately 38,000 members. In addition to state branches, there are intra-state sub-clubs and branches which have no legal status. The branches and sub-clubs are mostly located in regional areas and draw membership from surrounding areas.
7 The Board consists of 11 directors. With rotating elections, each year either 4 or 3 positions on the Board will be vacated. Voting is by postal ballot. Voters have approximately 6 weeks in which to return their ballots. The results of the vote are declared at the AGM, when the organisation's accounts are presented, auditors confirmed, and any motions are considered. Business is also taken from the floor.
8 During the publication period, the plaintiffs alleged nine separate publications, all but one of which was by email ('the defamatory emails'). The other publication was by a conversation with at least one undisclosed person ('the oral statement publication'). Broadly speaking, the disputed publications occurred in the context of Board elections, an AGM and a state conference. Six defamatory emails were sent from an email address - info@victorianshooters.com - to an undisclosed and unidentified number of recipients during an election period. One email was sent from an address - info@straightshootersau.com - on 20 September 2014. The final email, on 15 January 2018, was sent from a different address - admin@victorianshooters.com. This final email substantially recounted the content of the oral statement publication.
9 Each of these email addresses did not identify the sender.
10 The person or persons behind the email addresses and associated websites were anonymous. Three websites were of particular relevance, shootersvictoria.com, victorianshooters.com and straightshootersau.com. I will come to the circumstances and content of these publications shortly.
11 Until 20 March 2018 throughout the entirety of the proceeding, the defendant denied that he published or was in any way involved in each of the publications.
12 In relation to the oral statement publication, the defendant admitted that he had spoken about this proceeding to members of the SSAAV during the course of it, nominating more than 20 members some of whom gave evidence. He admitted that in these discussions he used words to the effect of:
(i) Jack Wegman lied to members of the SSAAV by saying that Karel Zegers was not subject to a membership suspension when in fact he was;
(ii) all matters the subject of the proceedings would be brought out into the open during the trial; and
(iii) the proceeding may be something that the media would take an interest in;
(iv) that the behaviour of some of the plaintiffs during the proceeding has been immoral, possibly illegal and in breach of the SSAAV constitution,
Nonetheless, he denied publishing or being anyway involved in the alleged oral statement publication. In written final submissions, the plaintiffs did not press the oral statement publication and were content to rest their claims on the eight emails.
13 The primary, and critical, proof for the plaintiffs was establishing that the defendant wrote and published the defamatory emails.
14 In 2012 the defendant was the Senior Vice-President of the SSAAV. When the then President resigned the position, he stepped into the role of President. Later in 2012, he stood for reelection to the Board. At the time there were disputes with other Board members. What is relevant for present purposes is that in around July 2012 the defendant set up a website with the address www.shootersvictoria.com ('the ShootersVic website'). The defendant uploaded considerable material to this website, consisting of lengthy statements about the administration and management of the SSAAV, particularly at Board level, much of which was concerned with disputes between factions on the Board. He was not re-elected to the Board in the 2012 election.
15 SSAAV maintained a strictly regulated membership email list for communication with its membership that contained up to 18,000 email addresses. The membership email list was maintained by an independent organisation, Internode, and kept by them on their server. On 12 August 2012, the defendant used the membership email list to send an email to the entire SSAAV membership. Whether he was properly entitled to access the membership email list to send that email was controversial at trial. I will come to the evidence about the access to and use of this membership email list in due course.
16 This email notified members of the existence of the defendant's ShootersVic website and stated that views about the conduct of Board members would be posted to this website. The defendant asserted that the members had not been told the truth and were not prepared to seek out the truth and 'We will attempt to bring SSAAV news and the truth to as many members as possible. Tell your fellow members and urge them to send their email address so we can keep you informed. Meeting minutes are being altered and challenged, as some Board members do not want you to know the truth about their behaviour'.
17 The defendant asserted in an email that, by December 2012, the ShootersVic website had a database of 3,500 members.
18 In May 2013, a member, one Dean Mighell, complained that when sending the 18 August 2012 email the defendant had improperly used the SSAAV membership email database and that he had published defamatory material on the ShootersVic website. The detailed particulars of the complaint and the procedure for its resolution are no longer relevant, save to note that the defendant failed to accept an invitation to respond to the complaint.
19 On 13 December 2013 the then CEO of SSAAV, Mr Holdsworth informed the defendant that the Board had concluded that he had contravened s 70 of the SSAAV Constitution in that he acted in a manner that in the opinion of the SSAAV Board was prejudicial to the interests of the company. Mr Holdsworth wrote, somewhat ambiguously:
the Board decision pursuant to s 70 of the Constitution is to suspend your membership of the SSAA for a period of 3 years, commencing as at today's date.
However, subject to you returning all SSAAV property, removing from the ShootersVictoria website any reference to current Board members and undertaking not to bring the SSAA into disrepute, the Board is prepared to waive the suspension. If you require any explanation in regard to this letter the president and secretary are prepared to meet with you.
20 The defendant instructed solicitors to respond on his behalf and on 20 December 2013 his solicitors advised Mr Holdsworth that the defendant reserved all of his rights arising from his membership and would respond to all matters raised in the letter. This response was consistent with the defendant's continuing membership of SSAAV either on the basis of disputing the legality of the Board's actions or an interpretation of the letter that no actual suspension had yet been effected. At trial, the defendant asserted that he had been suspended.
21 Pending the solicitor's response, Mr Wegman reported to the Board on 23 January 2014 about whether to proceed with the defendant's membership suspension. A google search suggested the ShootersVic website may have been taken down. The Board deferred this agenda item to its meeting on 20 February 2014, when it resolved to hold the matter in abeyance.
22 I find that the Board's position was that the defendant remained a member entitled to exercise all rights of membership and that no suspension was activated. It would be some months before the defendant's solicitors responded. When they did they contested the Board's conduct of the inquiry into the defendant's conduct. I do not accept the defendant's evidence, either that his membership was suspended, or that he believed that it was suspended.
23 The SSAAV held its state conference on 23 February 2014 and what was said to the members at the state conference concerning the possible suspension of the defendant's membership was an issue in controversy at the trial, to which I will later return.
24 The defendant stood for election to the Board later in 2014. In his candidacy material, the defendant referred to a different, but similarly named, website victorianshooters.com (the Vicshooters website). Election materials were distributed to eligible voters in the period between 4 - 7 August 2014.
25 The plaintiffs believed that the defendant published the anonymous emails and, initially, the plaintiffs sought to prove that fact by inference. They argued that inferences could and should be drawn from self-evident and distinct similarities in content, subject matter and style between the defamatory emails and other material that the plaintiffs had proved was written and published by the defendant. The plaintiffs contended that admissible tendency evidence showed that the defendant had a tendency to write in a certain manner that included unusual grammatical devices, unusual grammatical errors, distinct spelling errors and that he demonstrated a certain style of writing that was evidently his. The plaintiff contended that these unusual features of the defendant's writing style were substantially repeated in the defamatory emails.
26 Secondly, the plaintiffs contended that the coincidence of the similarities in the writing style, the use of grammar, the spelling errors and the content of the publications and the defendant's other writings rendered it improbable that the defendant did not write the defamatory emails.
27 Although the defendant disputed these contentions, which were developed in some detail by the plaintiffs in their written final submission, it is no longer necessary to set out and analyse those submissions. I will explain why that is so.
28 The investigations made by the plaintiffs about the Vicshooters website led them to Peter Erkens-Goss who apparently operated a business called Goss PC Repairs. The plaintiffs identified Mr Erkens-Goss as the person who set up the Vicshooters and straightshooters websites. The plaintiffs subpoenaed Mr Erkens-Goss to give evidence at trial. However, the plaintiffs excused him from answering the subpoena and by agreement of the defendant tendered a document attributed to him.
Reply to Subpoena received by Goss PC Repairs.
The following information is all that Goss PC Repairs has on the owner of the websites: http://ww.victorianshooters.com and http://www.straightshooters.com.
Name: Steven
Email address: stevek64@gmx.com
This is not a paying customer as they won their hosting as part of a competition run by Goss PC Repairs when the ability to host websites was released as a promotion
The competition involved the completion of a web form that asked various questions about the "lizzyhost" organisation which information could be found on the old website. The first 5 people to complete the web form correct gained free hosting for life with up to 2 domain names. Once they won the free access an email was sent to the address they advised as part of the form.
In the case of the above websites the email address was stevenk76@gmc.com
The email included a link to the webhosting back end to sign up for a webhosting account, the information required for this site was an email address, a password and the described domain name. Everything was automated in the background and I have had no interaction with the person running the website. The account appears to have been created under the same email address as above.
Goss PC Repairs has since shut down and emails have been sent some weeks ago to all who had the free hosting advising the server will be taken down shortly (in 1 month or sooner) and that they need to arrange alternative hosting and details for the domains to be transferred.
The owner of above sites is yet to reply to do any action on these emails and will most likely lose all data on the sites as the servers will be taken back over and wiped clean, the domains are also no longer set to auto renew. As I have not heard anything back I will delete it so I can stop paying for the server and domains.
Upon looking into these websites they seem to be a basic newsletter website but no obvious information advising who runs them.
I have not received any requests about this websites besides the current subpoena and am unaware of any activity that would deem taking down the websites necessary. I have not received any take down notices so had no reason to suspect the website was possibly used for anything illegal.
The last few days I sent a repeat email advising that the server will be closed down tomorrow.
There has been no reply forthcoming so I will shut down the websites and servers on Friday the 12th of January 2018.
11-1-2018
Name: Peter Erkens-Goss
...
30 On 1 March 2018 (day 3 of the trial), I enquired of counsel why no interlocutory step had been taken to forensically examine the defendant's computer. The defendant revealed that he still had the computer although he stated that a new hard drive was installed in 2016 or thereabouts. When proceedings commenced the following day, a Friday, I discussed with counsel that the defendant produce his computer to the court on Monday and that the plaintiff make available an appropriately qualified independent expert to be appointed by, and report to, the court any relevant findings made on a forensic analysis of the computer. The parties agreed to this procedure.
31 When the hearing resumed after lunch, the defendant's counsel explained that he had been 'feeling faint' and was absent from court seeking medical attention. The trial continued without objection. Later that afternoon, the plaintiffs closed their case subject to any further evidence from the court appointed expert. Pursuant to s 65M of the Civil Procedure Act 2010, I appointed Ms Leanne Balit, a digital forensic analyst with Klein & Co, to forensically examine the defendant's computer, and ordered that the defendant produce his computer to the court on 5 March 2018. I invited the parties to submit a short list of issues or questions to be referred to Ms Balit to define the scope of her retainer and instructions.
32 On 5 March 2018, the defendant produced his computer to the court as directed, and Ms Balit took possession of it to take a forensic copy or image of the hard drives for examination.
33 Ms Balit was instructed to, if possible, answer the following agreed questions, for the period 1 July 2014 to 20 January 2018.
34 The trial continued while Ms Balit undertook this analysis, which would take several days. The next witness was the defendant who gave the following evidence about his role in publication.
35 The first defamatory email was sent on 6 August 2014 at 6.34pm to gangelo@bigpond.net.au. When taken to it in evidence in chief, the defendant thought he may have received it and stated that it was through the receipt of emails that he came to know about the Vicshooters website. The defendant stated, in evidenceinchief, that he thought he received that email but was not sure whether this was the first occasion when he was aware of the Vicshooters website. The evidence did not permit a finding about when the Vicshooters website was first established, save that I am satisfied that it was operational by mid-2014 when the defendant stood for election to the Board.
36 When asked about the earlier reference to that website in his candidate profile, the defendant prevaricated. He was then asked,
Did you have any, or do you have any involvement with victorianshooters.com?---No, I don't.
Do you know about a website called straightshootersau.com?
---Not, actually. No, I don't.
Do you have any involvement with that website?---No.
When asked why he included a reference to the Vicshooters website in his candidate profile for the 2014 Board election, the defendant dissembled with nonsensical evidence.
37 The defendant gave no evidence in chief about the other defamatory emails sent from info@victorianshooters.com. He stated that he did not have any involvement with a website called straightshootersau.com and did not know about it. He also denied providing information that appears in the final email from admin@victorianshooters.com which was sent on 15 January 2018 at 6.42pm, notwithstanding the admission in the defence noted above.
38 When cross-examined about the use of the Vicshooters website in his candidacy profile at that election, he falsely denied being involved in the creation of the website.
COUNSEL: I'm going to suggest to you that you knew because you were involved in the creation of the website? --- No, that's not true.
39 Turning to the first of the defamatory emails, the cross-examiner put certain propositions about similarities in writing style between that email and other material in support of the tendency and coincidence inference submission. The defendant responded:
COUNSEL: Twice? --- I don't know. I didn't write it.
I suggest to you that you did write this email? --- No, I didn't write it sir, absolutely not.
40 The cross-examiner took him to each remaining defamatory email putting like propositions and repeatedly receiving a clear denial from the defendant that he wrote or published the email. For example,
COUNSEL: I suggest to you that you wrote all of the emails that the plaintiffs sue on, in this case. What do you say to that?---No, I didn't.
And the probability of those commonalties that I've taken to you, of there being two separate authors, are virtually almost nil. What do you say to that?---Well, I didn't write the emails that appeared on victorianshooters.com.
And you wrote - I'm sorry, what was your answer then?---I said, I did not write any of the emails that were appeared on victorianshooters.com.
41 Further, the transcript revealed many instances of prevarication and of dissembling responses from the defendant when questioned on this and other issues. I need not set them all out in this judgment, having regard to later events. The plaintiff's demeanour when giving his evidence persuaded me that he was not credible and that impression was firmly supported on careful consideration of the substance of his evidence in support of his primary defence that he had nothing to do with the preparation and publication of the emails. While watching the defendant giving his evidence and again when reflecting on its content, I considered that he was not a truthful witness.
42 These conclusions were to be strongly reinforced later in the trial.
43 Towards the conclusion of the defendant's crossexamination, the following exchange occurred:
HIS HONOUR: ...I wonder if we might just interrupt for a moment, because I see that Ms Balit has come back into court.
COUNSEL: Yes.
HIS HONOUR: (to Ms Balit) I take it you've come back into court because you've completed the task of taking the image of the disc, or have you run into problems?
MS BALIT: I have completed the first part. I've done an initial review and there appears to be a hard drive missing inside the computer.
HIS HONOUR: Missing what?
MS BALIT: A hard drive missing from inside the computer, which may contain data on it that may be necessary.
HIS HONOUR: Well, it is what it is.
MS BALIT: Yes.
HIS HONOUR: If your report says that you cannot answer questions because there's a hard drive missing, then I think that's what we have to say. (To the witness) Did you want to say something about that?
MR ZEGERS: Yes, Your Honour. I used to have - a few years ago I used to have what's called a D drive. Is that correct? Yeah. And - - -
A what?---A D drive. A second drive. A D drive, it's called.
A D drive, yes?---And it started to play up and the data I needed I put on my C drive, or I did. It was put on my C drive, and it's as a D, which apparently means it's very, very quick, and all that. And that's all that's to it.
So, there was a drive there, but you've removed it?---Yeah. And that would be, I don't know, it could be a year and a half, two years ago.
Yes, and this is the drive that you said is no longer available?---Yes, that's correct.
HIS HONOUR: (to Ms Balit) Well, you've heard that piece of evidence, to the extent that it assists you. I think we can't solve that problem.
MS BALIT: Your Honour, it was there last week. There was a D drive present last week?
MR ZEGERS: No.
44 At the conclusion of cross-examination, the defendant again rejected the crossexaminer's suggestion that he had lied in answers to interrogatories when he stated that he did not write or was not in any way involved in the publication of the emails. He again denied that he lied repeatedly in court when stating that he did not write the emails or was not in any way involved in the emails from Vicshooters. These were deliberate false denials.
45 When the proceeding resumed the following day, I directed counsel's attention to the possibility that, having regard to the exchange set out above, Ms Balit's evidence, once received and depending on its content, may create a need, having regard to s 254 of the Crimes Act 1958 to warn the witness about his right not to incriminate himself and a possible need for a certificate under s 128 of the Evidence Act 2008. I invited counsel to be in a position to address such issues should they arise.
46 On 13 March 2018, Ms Balit filed her report with the Court and provided copies to the parties. In final submissions, the plaintiffs drew attention to the following aspects of Ms Balit's evidence:
Upon inspection of the defendant's computer, Ms Balit reported many matters that appeared on the computer in March 2018 that incriminated the defendant, including the following:
(a) she found one email dated 7 August 2014 from kzegers@bendigo.net.au advising the recipients that the Victorian Shooters website was up and running and for them to email any issues to info@victorianshooters.com;
(b) she found an email deleted from the mailbox of kzegers@bendigo.net.au from the defendant to Peter, asking how to access the incoming emails for the account info@victorianshooters.com. Material supplied by GoDaddy indicated that Peter Erkens-Goss created the victorianshooters.com website on 16 June 2013;
(c) she found a document that identified the original author as Peter Erkens-Goss and the last author as the defendant on 11 August 2014 which contained instructions on how to check and send emails from info@victorianshooters.com. Again noting that Peter Erkens-Goss' details are recorded as the person who created victorianshooters.com;
(d) between 7 August 2014 and 15 January 2018, the defendant received 25 campaign started and 22 campaign finished emails from info@victorianshooters.com;
(e) the defendant's computer had accessed the website webmail.victorianshooters.com;
(f) on 3 August 2014, the defendant sent an email to Mr Erkens-Goss regarding the setup of the website www.victorianshooters.com, the email address info@victorianshooters.com and the sending of anonymous emails;
(g) on 3 August 2014, the defendant replied to an email from Mr Erkens-Goss asking for details about an email list and the file format required;
(h) the website www.victorianshooters.com was created with an online application known as WordPress, which was accessed 39 times to access, edit or update the content of victorianshooters.com between April 2016 and January 2018. She noted there may have been other accesses, but the records had been deleted;
(i) she found 21 documents that appear to have been saved using Microsoft Word that may have been uploaded to www.victorianshooters.co or sent via email.
These documents:
(i) appear to substantially replicate the First Email on 6 August 2014;
(ii) appear to replicate the Second Email on 7 August 2014;
(iii) appear to replicate a further email from the courtbook dated 10 August 2014;
(iv) appear to substantially replicate the Fourth Email dated 11 August 2014;
(v) appear to replicate a further email from the courtbook dated 11 August 2014; and
(vi) appear to replicate the Seventh Email dated 12 August 2014;
(j) within Appendix D there are specific instructions for starting an email campaign for the victorianshooters.com website using an application called php List and a screenshot showing names of 18 SSAA lists to select from as targets of the email campaign64. The plaintiffs note that at the bottom each of the Emails, there is reference to those emails being "powered by phpList";
(k) she found "bookmarks" to:
(i) straightshootersSubscribersList phpList Dashboard;
(ii) Victorian Shooters Import emails;
(iii) phpList Victorian Shooters list of campaigns;
(iv) Victorian Shooters Subscriber lists;
which were consistent with the defendant's computer being used for the maintenance and use of the SSAAV email list database;
(l) on 15 January 2018, the date of the last of the Emails, the defendant sent an email to Mr Tresize in regards to issues experienced with sending out an email campaign;
(m) she identified an email list on the computer which may be relevant, but its date was 2013 which was before the relevant period, which commenced on 1 July 2014;
(n) she located 320 emails that had been previously deleted from the mailbox kzegers@bendigo.net.au as between the defendant and Mr Peter Erkens-Goss, which related to the following contents:
(i) the creation, administration and maintenance of the domain and email accounts for www.victorianshooters.com;
(ii) the creation, administration and maintenance of the domain and email accounts for www.victorianshooters2.com;
(iii) the creation and administration of the domain and email accounts for www.straightshootersau.com;
(iv) instructions from the defendant to Mr Erkens-Goss on responding to a subpoena in relation to this matter; and
(v) discussion between the defendant and Mr Erkens-Goss regarding this matter;
(o) she found a series of emails between the defendant and Mr Erkens-Goss where it appeared that the pair worked together to create a document that was ultimately produced by Erkens-Goss to the court pursuant to a subpoena he received in this proceeding. They attempted to represent that they did not know each other. This material included the following statements:
(i) on 30 November 2017, an email from the defendant to Mr Erkens-Goss where the defendant stated:
"Yeez this is not good. Can you hold them off? Can you deny you got anything to do with it? Can they proof that you or I are involved?";
(ii) on 13 December 2017, an email from the defendant to Mr Erkens-Goss which read:
"I just wonder how they got your name. Is that going to be problematic? Can they physically find you and prove you set-up the site? Can you handle/ ignore it? As you told me before, my name does not appear anywhere. When asked shall we say we don't know each other?"
(iii) on 15 December 2017, an email from the defendant to Mr Erkens-Goss which read:
"Let me look at the subpoena. What do you think you can do to hold them off? Or deny you got nothing to do with it, for instance, someone used/ stole your identity";
(iv) on 18 December 2017, an email from Mr Erkens-Goss to the defendant which stated:
"You want me to lie?"
(v) a reply from the defendant which stated:
"They have been lying all the time, so even though it may seem reprehensible, we may have to a bit of that as well... I have an appointment with a lawyer this Thursday afternoon...What I want to know from him is what we can get away with regarding the subpoena....
We/ you may have to deny some things.
For arguments sake, we don't know each other.
How would they prove we do? I told no-one, ever!
We will beat the bastards, that's what they are."
(vi) on 20 December 2017, an email from Mr Erkens-Goss to the defendant which stated:
"I was going to go with this story.
The hosting and domain registration was given out as a free competition when I launched website hosting......"
(vii) on 25 December 2017, the defendant wrote to Mr Erkens-Goss and stated:
"Pete,
No, you don't have to do an affidavit.
However, if you are going to make a statement that is either the truth or cannot be disputed to be the truth, it would be better to make an affidavit. Simply because then there is no question like, is that really true?
But you want to make sure it is actually true, or cannot be proven not to be the truth. What do you think? Whatever you do, send me the text first so I can have it checked out.
Karel.";
(viii) on 4 January 2018, the defendant wrote to Mr Erkens-Goss and the email stated (Amended Reply to Subpoena):
"Hi Pete,
Please find below the amended reply to the Subpoena.
If you decide to change it, please advise so I can have the lawyer look at it again.
***************************
Reply to Subpoena received by Goss PC Repairs.
The following information is all that Goss PC Repairs had on the owner of the websites: http://www.victorianshooters.com and http://www.straightshooters.com
Name: Steven
Email address: stevenk76@gmc.com
This is not a paying customer as they won their hostings as part of a competition run by Goss PC Repairs when the ability to host websites was released as a promotion.
The competition involved the completion of a web form that asked various questions about the organisation which all could be found on the old website. The first five people to complete the web form correct gain free hosting for life with up to two domain names. Once they won the free access and email was sent to the address they advised as part of the form in the case of the above websites, the email address was stevenk76@gmc.com
The email included a link to the web hosting back end to sign up for a web hosting account, the information required for this site was an email address, the password and the described domain name.
Everything was automated in the background and I have had no interaction with the person running the website. The account appears to have been created under the same email address as above.
Goss PC Repairs has since shut down and emails have been sent to all who had the free hosting advising the server will be taken down shortly (in one month or sooner) and that they need to arrange alternate hosting and details for the domains to be transferred.
The owner of above sites is yet to reply to do any action on these emails and will most likely lose all data on the sites as the servers will be taken back over and wiped clean. The domains are also no longer set to auto renew. As I have not heard anything back I will just delete it so I can stop paying for the server and domains.
Upon looking into these websites they seem to be a basis newsletter website but no obvious information advising who runs them. I have not received any requests about these websites because besides the current subpoena and are unaware of any activity that would deem taking down the websites necessary. I have not received any take down notices so had no reason to suspect the website was possibly used for anything illegal.
**********
Please let me know ASAP?
Regards, Karel"
...
(p) there existed some evidence that the defendant's computer was used to draft or prepare the email dated 15 January 2018 at CB 580, including that the Victorian Shooters webmail was accessed to commence an email campaign.
47 Ms Balit recovered a deleted email dated 15 January 2018 at 8:35 am sent by the defendant that included the statement:
I am a bit nervous about all this, the websites need to be off line really soon. In fact, right now. Can you ask your guys in Hungary if we can have the websites off line but the phplist still working? Then we can try and work it out in a more relaxed way.
48 The defendant's position radically changed following his receipt of Ms Balit's report. At the next hearing day, 20 March 2018, the defendant's solicitors sought leave to cease to act, but before I ruled on that application, Ms Balit was called and her evidence in chief was taken by counsel for the plaintiffs, her report was tendered in evidence, and cross-examination was stood over while I ruled on the application. I granted leave to the defendant's solicitor to cease to act and he and counsel withdrew from the proceeding.
49 When I asked the defendant what he now proposed to do, he wanted to make a statement and he returned to the witness box and was affirmed. This is what then occurred:
MR ZEGERS: Your Honour, I apologise. I want to admit that when I gave evidence, I made false statements to the court about my involvement with the website victorianshooter.com and emails sent from that site.
HIS HONOUR: Just a minute. Before you say anything further - - -?---I'm aware of the ramifications, Your Honour.
You have received advice?---Yes, I have.
Yes. Well, perhaps I should just make it clear that there is a prospect that in making the statement that you are about to make, you may incriminate yourself into the possible commission of an offence, and that you have a right to not to incriminate yourself, and you don't have to make a statement if you don't want to. Do you understand that you have that right?---I have, Your Honour, and - - -
And you have taken advice from a lawyer, have you, about doing this?---Yes, yes, I have. Yes, I have, but I've come to the conclusion that I should come clean, and stop lying.
Yes, very well?---The website was setup by me, and I sent the emails. The reason that I went anonymous was that I was bullied and threatened when I had an earlier website. I'm sorry about telling the court lies. I made no profit financially, publicity-wise or any other personal advantage. I just wanted the membership of the SSAAV to be properly informed and have the right to query - have them have the right to query the Board when needed.
No-one else knew that I ran the website or wrote the emails.
MR ZEGERS: I believe I wrote the truth as it was available to me, and had no intention to defame or insult anyone. All I wanted was the members to know what was going on. The members were told in truth, they were not told about some Board members acting against the SSAAV constitution rules. They were not told about the secretiveness of the Board. They were not told about the attitude and action of some Board members who of members that asked questions calling them "disruptive minority". I believe that I acted as a whistle-blower. I was legally advised that I should hide behind the phrase, "I don't want to incriminate myself". I choose not to do that. It would perpetuate the lying. I'm sorry about lying to the court, but I saw no other option at the time. And I am really sorry, Your Honour.
HIS HONOUR: Yes, thank you. Is that what you wanted to say?---Excuse me?
Is that what you wanted to say?---Yes, sir.
Yes, thank you. You can stand down from the witness box at the moment.
50 The plaintiffs' counsel wanted to re-open his cross-examination of the defendant in respect of Ms Balit's evidence and his statement to the court. The trial was stood over to 9 April 2018 to enable the defendant to speak with the court's self-represented litigants coordinator and a solicitor of his choosing, and to consider whether to examine Ms Balit. On 4 April 2018 the defendant advised the Court that he would not cross-examine Ms Balit.
51 On 9 April 2018, counsel appeared for the defendant and sought a further adjournment of the trial for fourteen days. The reasons advanced for this further adjournment were unsatisfactory. An affidavit sworn by Mr Robert Timms did not adequately explain the defendant's efforts between 20 March and 9 April to be ready to complete the trial. Apparently another member of counsel had accepted the brief but was not available on that day to explain why he needed further time. The plaintiffs wanted to complete the trial and were in a position to make their final submission, having filed a written outline. The plaintiffs were of course entitled to have the trial heard, completed and determined. The defendant's new legal representatives had been provided with the exhibits, the transcript of evidence and the plaintiffs' extensive outline of their final submissions.
52 I granted a further one week adjournment to 16 April indicating that the parties would be expected to complete final submissions on that day. I reserved to the plaintiffs the opportunity to further cross-examine the defendant in relation to the statement that he made to the court.
53 Asked in re-examination why he lied to the court, the defendant said that he felt generally 'threatened' however he was not able to identify with any precision any specific occasion of feeling threatened. He referred to an incident when he was pushed after leaving a meeting, and to receiving anonymous phone-calls. He also said he felt threatened at times before he sent the emails. He gave no further explanation for why he lied to the court.
54 The High Court restated in Kuhl v Zurich Financial Services Australia Ltd,[2] that a litigant who enters the witness box is under a positive duty to tell the truth in answer to the questions asked. The majority observed of that duty:
The duty of a witness is to tell the truth, the whole truth, and nothing but the truth so far as the questions asked seek it. The duty of a witness to answer questions responsively involves not only a negative duty (not to volunteer material for which the question does not call), but also a positive duty (to proffer all material within the witness's knowledge for which the question does call). To conclude that a party-witness is reluctant to say what happened is to conclude that the party-witness is deliberately failing to comply with the duty to tell the whole truth.[3]
55 I find that the defendant lied to the court, and deliberately failed to comply with the duty to tell the whole truth. I reject the whole of his evidence. The defendant admitted to lying on his affirmation when giving evidence in court and to maintaining a false denial for the entirety of this proceeding, which commenced in 2015, until 20 March 2018. The defendant deliberately made false statements in his answers to interrogatories and in his evidence.
56 Three particular aspects of the defendant's conduct warrant further comment. Not only did the defendant give false evidence by lying in answer to questions asked of him in the witness box, some of which I have already set out, but in relation to the statement of Mr ErkensGoss he manufactured fake evidence and presented it to the court as the truth. He also destroyed or procured the destruction of evidence of his conduct that might have been revealed from his computer, particularly by the deletion of emails and files.
57 First, the defendant deliberately lied in breach of his positive duty to tell the truth about his involvement in setting up the websites and writing and sending the emails. But it was not simply by lying in court that the defendant actively covered up the true state of affairs. He destroyed evidence of the link between himself and Mr ErkensGoss by deleting files from his computer. Had it not been for the findings made by Ms Balit on forensic examination of his computer, I doubt the defendant would have admitted his lies. He only admitted he was the author of publications when that fact - and much more - was revealed by Ms Balit, and the lies could no longer be maintained.
58 The second aspect is that the defendant was willing to involve others in his deceit and he attempted to cover his duplicity by dissembling about the state of his computer and deleting incriminating files from it. It may be that he deleted files and removed the hard drive after being directed to produce the computer to the court on 2 March 2018. The circumstances of his absence from court in the afternoon of 2 March were curious. The defendant was to commence his evidence in the afternoon session that day, but I was informed by his counsel that he felt ill over lunch. He did not return to court that day. Ms Balit gave evidence that a large number of files, mainly emails (including between the defendant and Mr Erkens-Goss) were deleted from the defendant's computer on 2 March 2018. An inference could be drawn from this series of events, however as the plaintiff did not invite me to draw this inference, and as these matters were not explored by counsel in evidence I make no finding and will say no more.
59 The third aspect is that I am comfortably satisfied, having regard to the seriousness of these allegations, that the defendant persuaded Mr Erkens-Goss to present a false account about the defendant's involvement in the websites to the court. So much is plain from the correspondence between the defendant and Mr ErkensGoss. They agreed to make up a story that disguised the defendant's involvement with the websites. Cross-examined about his role, the defendant said 'yes I gave him some hints if you like, yes!'. Although Mr ErkensGoss seemed questioning of the defendant's request of him that he lie, the false explanation based on a competition appeared to be his idea. I accept the plaintiffs' submission that the amended reply to subpoena found by Ms Balit as a deleted document on the defendant's computer was either written or settled by the defendant and is substantially identical to the document produced by Mr Erkens-Goss in this proceeding in response to the subpoena. The plaintiffs, who had subpoenaed Mr ErkensGoss to give evidence, accepted his response to the subpoena, which was tendered by consent. That document was tendered to support the lies being deliberately told by the defendant and to avoid a risk of exposure of the lies if Mr Erkens-Goss gave evidence.
60 The defendant stated in an email to Mr Erkens-Goss on 11 January 2018:
I am very sorry, I really am, I would have liked to be able, but I can't..
All my assets and financials are in my wife's name and hands.
I am much deeper in it then you, believe me.
This is all due to how the bastards are suing me, we needed to protect ourselves.
No submissions were made about this email nor was it put to Mr Zegers for explanation so I will say no more about it.
61 The seriousness of the defendant's conduct (and that of Mr Erkens-Goss) in the obstruction of the administration of justice in this proceeding, extending well beyond a breach of s 17 or s 21 of the Civil Procedure Act 2010, lay in the fact that his conduct had the tendency and it was, at least on the balance of probabilities, intended by the defendant to pervert the course of justice. It is neither necessary, nor appropriate, that I make these findings. This interpretation of events and its consequences was neither put to, nor explained by, the defendant. It is appropriate that I refer the matter to the Director of Public Prosecutions and the defendant's counsel made no submission in opposition to that course when invited to do so.
62 I have made these observations for two reasons. First, to explain why I will refer the matter, and, secondly, to emphasise the destructive impact of the defendant's conduct on his credibility and reliability not just in respect of the issue of publication but more generally in respect of his evidence about those aspects of his defences to be affirmatively established in the proceeding.
63 I find that the defendant wrote and published each of the defamatory emails. That he was the publisher was no longer in dispute following his admission that he had lied to the court. I should state clearly that I am not merely rejecting the defendant's account of events. I am satisfied not just that the defendant falsely denied facts and provided a deliberately false account, he also concealed and destroyed evidence and counselled a witness to do likewise. There is a material difference.
64 These findings are relevant to a number of other issues in the proceeding, namely:
(a) the defendant's credibility generally;
(b) whether the defendant's conduct was reasonable;
(c) whether the defendant was actuated by malice;
(d) aggravation of the damage caused to the plaintiffs.
65 In Chong v CC Containers Pty Ltd,[4] the Court of Appeal considered the principles permitting adverse inferences to be drawn when a party gives a deliberately false account in evidence. First, where a party who is in a position to contradict another party's evidence or to rebut an adverse inference arising from that evidence gives a deliberately untruthful account, the adverse inference may be drawn with greater confidence.[5] Here, the issue of publication need not be resolved by drawing an inference. The defendant has made an admission adverse to his interests that swamps the need for an inference that might otherwise have confidently been drawn. Secondly, the inference may also be drawn that the defendant recognised that the truth would not assist him but would advance the plaintiffs' case.[6] I draw that inference in this case.
66 It is, I think, open to me to draw an inference that the defendant was conscious that his case was unfounded.[7] Certainly, that inference is drawn about the defendant's denial of being the publisher, while that denial was maintained. Such inference is relevant to the plaintiffs' claims to aggravated damages. But, more broadly, it may also be relevant to the defences of justification and qualified privilege to which I will come in due course.
the conclusion by the trial judge that the plaintiff - a party-witness - deliberately withheld evidence reflected a stronger reaction. It operated as a finding that there had been an admission. It could be inferred that the evidence was withheld, in breach of the witness's duty to tell the whole truth in answer to the question, because the plaintiff was conscious that success in the litigation would be rendered impossible or less likely if the material withheld were revealed. Depending on the circumstances, when a party lies, or destroys or conceals evidence, or attempts to destroy or conceal evidence, or suborns witnesses, or calls testimony known to be false, or fails to comply with court orders for the production of evidence (like subpoenas or orders to answer interrogatories), or misleads persons in authority about who the party is, or flees, the conduct can be variously described as an implied admission or circumstantial evidence permitting an adverse inference. The position must be the same where there is a failure of a party-witness to comply with the duty of a witness to tell the whole truth.[8]
In Marsden v Amalgamated Television Services, an allegation was made that the plaintiff had attempted to suborn witnesses, including by attempting to induce them to give false evidence. Levine J referred to the following statement in Wigmore on Evidence, vol 2, 3rd ed (1940), Boston, Little, Brown and Company, par 278:
It has always been understood - the inference, indeed, is one of the simplest in human experience - that a party's falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct, is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause's lack of truth and merit. The inference thus does not apply itself necessarily to any specific fact in the cause, but operates, indefinitely though strongly, against the whole mass of alleged facts constituting his cause.[11]
69 The plaintiffs invited inferences on this basis of a different kind to those that I am minded to draw. They contended that I could with greater confidence infer that the defendant had access to the entire membership email list comprising 18,000 email addresses, and that the defendant published the defamatory emails at least to those email addresses and also to recipients who were not members of the SSAAV. I will further discuss these inferences later in these reasons.
70 The plaintiffs claimed that each of the emails, in its ordinary and natural meaning was defamatory of the members of the Board in their capacities as directors of the SSAAV, being identified in that capacity. Each of the first to eighth plaintiffs was, at the relevant time, a member of the Board. The tenth defendant (Jack Wegman) was identified as the CEO and by name. At trial, the defendant did not dispute that the plaintiffs were identified by the publications in their capacities as directors of the SSAAV, and in respect of Mr Wegman, as CEO of the SSAAV. It was not disputed that a reference to 'the Board' was sufficient to identify the plaintiffs in this case.
71 I am satisfied that each of the first to eighth plaintiffs was identified by each publication in their capacity as Board members. The fourth publication contained a hyperlink to the SSAAV website where the details of Board-member plaintiffs were publically accessible. The hyperlink was provided to enable the recipients of the emails to communicate with the plaintiffs. This email followed the first three emails by a couple of days and was sent in the context of the Board election then underway. Between 4 - 7 August 2014, the SSAAV membership received the election materials for the upcoming State Executive elections that identified the first, third, fourth and seventh plaintiffs as current members of the Board standing for re-election. The plaintiffs submitted that many of the recipients of the emails would have reasonably understood the material to be referring to the plaintiffs. They would have known of the identities of Board members, whether from the SSAAV website, the election materials, or prior dealings with the SSAAV.
72 The Board members were individually identified after publication of the emails. I accept the evidence of all of them that they received comments about the content of the emails from recipients or others. Further, the statements in the emails were that the Board acted as a whole. Claims were made that the reader should complain to all of the Board members individually. The Board is small. I am satisfied that the emails conveyed that each member of the Board was guilty of the conduct alleged and were of and concerning each of the first to eighth plaintiffs individually.
73 Mr Wegman, who was not a Board member, was identified by name in the sixth, seventh and ninth publications. Mr Wegman received comments from people within the organisation, from people in the City of Boroondara and from his son, David, a commando in the Australian Army who told him that some of his friends had asked him about what they read about his father.
74 The principles to be applied in determining whether or not a matter complained of is capable of conveying the particular imputations alleged were not in dispute.
In deciding whether the matter complained of is capable of conveying to the ordinary reasonable reader the imputations relied upon by the plaintiff, I must be guided and directed by the test of reasonableness. I must reject any strained, or forced, or utterly unreasonable interpretation. I must proceed upon the basis that the ordinary reasonable reader is a person of fair, average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. This ordinary reasonable reader does not, we are told, live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs. It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer.[12]
76 Kaye J described the qualities of the hypothetical ordinary reader in Soultanov v The Age Co Ltd:
The issue which I must determine on the defendants' summons is a question of law, namely, whether the article was reasonably capable of conveying the imputation, pleaded by the plaintiff, to the ordinary reasonable reader. The hypothetical "ordinary reasonable" reader has been described as an ordinary person who does not live in an ivory tower, and who reads between the lines in the light of his or her general knowledge and experience of worldly affairs. Such a reader is described by the law as someone who is not "avid for scandal" and who is neither "unusually suspicious nor unusually naïve". He (or she) does engage in a degree of loose thinking, and is understood to read between the lines. In particular, it is important to take into account that the ordinary reasonable reader is a lay person, and not a lawyer, and that his or her capacity for implication is much greater than that of a lawyer. On the other hand, as observed by Mason J in Mirror Newspapers Limited v Harrison, it is necessary to draw a distinction between the reader's understanding of what the article is actually saying, and a judgment or conclusion which the reader may reach as a result of his or her own beliefs and prejudices after reading the particular matter in question.[13]
77 Due to their length, each of the publications are set out in full in a schedule to these reasons. My conclusions regarding each publication are as follows.
78 On 7 August 2014 at 11:51 am, the defendant sent an email using the email address info@victorianshooters.com. The plaintiffs alleged the imputations carried by this publication were:
(a) the Board had been dishonest in providing information to the membership of the SSAAV in the period leading to the 2014 State Executive Elections;
(b) the Board had committed an act of deception upon the membership of the SSAAV in failing to provide proper financial information to the membership in the period leading to the 2014 State Executive Elections; and
(c) the Board had been guilty of misfeasance in office in providing information to the membership of the SSAAV in the period leading to the 2014 State Executive Elections.
79 In relation to the first two imputations alleged, the plaintiff submitted, and I agree, that each of the imputations arose, when the email is read as a whole, particularly by the use of the following phrases:
(a) the statement that "the information [provided by the Board] was not always correct and in some cases plain propaganda";
(b) the use of the word "propaganda," something that is an alternative to the truth;
(c) the statement to the recipient that they "have not been kept properly informed about what is going on....";
(d) the statement that there are "Things which the Board kept from you"; and
(e) the statement: "And no amount of PROPAGANDA, FALSE INFORMATION and LIES is ever going to change the truth."
80 I am satisfied that the ordinary reasonable reader would conclude that the first email conveyed the first and second, but not the third, imputation. It is a strained or forced and ultimately unreasonable interpretation of the words used to draw an imputation that the Board was guilty of misfeasance in office. The plaintiff referred to the Oxford online dictionary definition of 'misfeasance' as 'a transgression, especially the wrongful exercise of lawful authority'. The ordinary reasonable reader is a layman, not a lawyer, and misfeasance is a technical term that is not commonly used in lay speech. That expression is unlikely to be within the reader's general knowledge or experience. In my view, the reader would only draw the first two inferences from the email. Further, the ordinary reasonable reader would reasonably understand that the email was conveying the imputations of dishonest conduct and acts of deception and that the reader would imply, perhaps with some loose thinking, that what constituted misfeasance in office was the dishonest conduct and acts of deception already identified as imputations.
81 On 7 August 2014 at 6:15 PM, the defendant sent an email using the email address info@victorianshooters.com. The plaintiff contended the publication carried the imputation that '[t]he Board was guilty of misfeasance in office by refusing to include the said Motions in the ballot papers, in the period leading to the 2014 State Executive Elections'.
82 That meaning was said to be conveyed by the second publication because it stated that 'the Board thinks it can do as it sees fit without any consequence', and it stated that the Board refused to present 9 motions submitted to them and then proposed that the reason for this was because the Board did not want to be questioned about the motions. It gives no other possibility for the Board to not include the motions.
83 I reject the plaintiffs' submissions. I am not persuaded that the second email carried the alleged, or any, imputation defamatory of the first to eighth plaintiffs.
84 On 8 August 2014 at 8:36am, the defendant sent an email using the email address info@victorianshooters.com. The plaintiff alleged the third publication carried imputations that:
(a) the Board had been dishonest towards the membership of the SSAAV in the period leading to the 2014 State Executive Elections; and
(b) the Board had attempted to improperly influence the election outcome of the 2014 State Executive Elections.
85 The plaintiffs argued these imputations were conveyed by the email as a whole, and in particular by the statements that 'the Board is trying to hide the truth', 'the Board is attempting to gag candidates', and 'the Board does not allow SSAAV members to have access to the truth'.
86 I reject the plaintiffs' submissions. I am not persuaded that the third email carried the alleged, or any, imputation defamatory of the first to eighth plaintiffs. The email is nothing more than robust comment in the context of Board elections.
87 On 11 August 2014 at 11:15am the defendant sent an email using the email address info@victorianshooters.com that the plaintiffs submitted carried the following imputations:
(a) the Board had been dishonest towards the membership of the SSAAV in the period leading to the 2014 State Executive Elections; and
(b) the Board had committed an act of deception upon the membership of the SSAAV in the period leading to the 2014 State Executive Elections, by hiding its failures or wrongdoings.
88 I agree with the plaintiffs that the imputations are carried when reading the email as a whole, and in particular as a result of the following phrases - 'they are bending the truth'; 'They are worried about members finding out what the Board has done, especially their financial disasters'; 'The un-believable $400,000 tax debt to the Australian Tax Office has not been properly explained to the members'; 'The suspicion is, of course, the Board has something to hide. What other reason could there possibly be? One can only wonder'; 'The last 2 years the Board has failed in its duties, hidden its failures, attempted to gag concerned members, denied any wrongdoing, accused members of bad behaviour and even theft. And spread incorrect propaganda on a number of issues'; 'What else have they done wrong? Whatever it is, it must be bad, considering their efforts to hide all information about their actions'; 'attend the AGM, demand answers, don't accept wrong or no replies to questions, don't believe their propaganda'.
89 I am satisfied that the ordinary reasonable reader would conclude that the email conveyed the alleged imputations.
90 On 20 September 2013 at 1:50am the defendant an email using the email address info@straightshootersau.com. The plaintiff alleged the publication carried the imputation that the Board had been dishonest towards the membership in the period leading to the 2014 State Executive Elections.
91 The plaintiff submitted the email as a whole carried this imputation, particularly by the statement that branches and members 'are being told fibs. (LIES!)'.
92 I am satisfied that an ordinary reasonable reader would conclude that the publisher was imputing dishonest conduct towards the membership by the Board during the relevant period by the suggestion that the Board members avoided direct answers to legitimate questions by lying to the members.
93 On 14 August 2014 at 12:47pm the defendant sent an email using the email address info@victorianshooters.com. The plaintiff submitted the imputations carried by this publication were:
(a) the Board and Mr Wegman had been dishonest towards the membership of the SSAAV; and
(b) the Board and Mr. Wegman had falsified the records of the SSAAV, being minutes of the February 2014 State Conference.
94 The plaintiff contended that these imputations arose from the email read as a whole and in particular from the following statements:
(a) the opening statement that "the truth must be known";
(b) the following paragraphs:
"The June Vic Shooter clearly shows that that CEO has chosen to discontinue the printed copies of the Vic Shooter. The Conference clearly voted to retain the printed copies for those that requested it - people without email. This is clearly at odds with the recollection of the CEO. Jack is venting his frustration on email and yet he is clearly demonstrating a will to disregard the members as expressed through the State Conference... Personally I expect the decision of management on the Vic Shooter to be reversed and the decision of the State Conference to be respected until alternative AGREED arrangements are made."
"One prominent SSAA (VIC) member summed up his feelings to Acting CEO Jack Wegman as follows: I feel I must clear something up from a personal perspective. The disillusionment I refer to, was not diminished by your half yearly statement... it was caused by it. The misrepresentations, distortions, falsehoods and innuendo you speak of, were all contained in it for everyone to see..... These are the inconsistencies that I am aware of. You say the Audit Committee approved your statement. Were they fully informed of the facts or are they not so independent? How do you and I go from here, when your credibility is under such serious doubt?...";
"The CEO and Board are happy to dump the Vic Shooter and disregard the wishes of those who attended the state conference. Note here the State Conference voted to keep the Vic Shooter until an alternative proposal was tabled (I bet the minutes do not show this)."
(d) The concluding statement of the defendant as the author of the email:
"SO, SAY NO MORE!! The members who wrote the above were all wrong? They are all 'out to get to the Board'? They are spouting lies and innuendos? The contrary is true. They had concern about a Board that seems to have lost the confidence of many eminent members, who asked legitimate questions about the actions of the Board which are perceived to be wrong and costly. AND THEY WERE AND ARE TOLD TO SHUT UP! All the while most members are not aware of the situation, are being fed propaganda making them think all is good."
95 The structure of this email is that the defendant has set out the comments of others followed by his concluding statement. It carries the first of the imputations alleged because the ordinary reasonable reader would infer that in that concluding statement the author implied that the Board members were dishonest towards the membership of the SSAAV because they denied the legitimate concerns of the members whose comments were set out, considered those members were 'out to get' Board members, considered those members were sprouting lies and innuendos, fed propaganda to members, had lost the confidence of members who asked legitimate questions and in response told them to shut up, and sought, contrary to the reality, to make the members think all was well.
96 It does not carry the second imputation. The ordinary reader could not perceive any connection between the subject matter of the comments, including the defendant's concluding critique and the falsification of the minutes of the February 2014 state conference. There is no mention, or implication, about those minutes.
97 On 12 August 2014 at 3:10pm the defendant sent an email using the email address info@victorianshooters.com. The plaintiff submitted that this publication conveyed the following imputations:
(a) the Board and Mr Wegman had been dishonest towards the membership of the SSAV in the provision of information;
(b) Mr Wegman had been guilty of negligence or misfeasance in office in carrying out his duties as Chief Executive Officer in the payment of capitation funds to branches of the SSAAV; and
(c) Mr Wegman had been guilty of misrepresentation as to employment at the time of his engagement as acting Chief Executive Officer.
98 The imputations were said to be carried by the email as a whole and in particular by the following statements:
(a) "Another bit of information was volunteered by some branches: many thousands of dollars of capitation funds have NOT been paid out to branches. Why, the CEO apparently used false excuses, ranging from late claims to incorrect paperwork delivered. One would think that after more than one year this would all be resolved. NOT SO!";
(b) "Now, the conclusion might be called 'innuendo' or even 'false', but due to lack of real truthful information coming from the Board and the CEO, all we can do is guess: the financial picture of the SSAA (Vic) is not as 'rosy' as they say it is.";
(c) "So much for consultation, openness and honesty. Let's wait for Mr Wegman's denials, explanations or other propaganda. It will come, no doubt!"; and
(d) "To explain. It is an old political trick, accuse your opponent of exactly what you do yourself. Mr Wegman is very good at that, but that is not surprising, he has been involved in local politics in the Geelong area for many years. We wonder, is it true when he took on the 'acting CEO' job, was he or was he not: Unemployed?".
99 I am satisfied that an ordinary reasonable reader would conclude that the publisher was imputing dishonest conduct towards the membership by the Board and Mr Wegman during the relevant period from the language of the email as a whole and particularly from use of the following phrases - 'the CEO apparently used false excuses', and 'due to lack of real truthful information coming from the Board and the CEO, all we can do is guess', and 'So much for consultation, openness and honesty. Let's wait for Mr Wegman's denials, explanations or other propaganda. It will come, no doubt!'.
100 I am satisfied that an ordinary reasonable reader would conclude that the publisher was imputing that Mr Wegman was guilty of improper conduct in carrying out his duties as Chief Executive Officer in the payment of capitation funds to branches of the SSAAV. The first two statements set out above (paragraph [98]) reasonably impute in the mind of the ordinary reasonable reader, who does engage in a degree of loose thinking, and is understood to read between the lines, in the light of his general knowledge and experience of worldly affairs that Mr Wegman's conduct was improper.
101 Although the imputation as I have stated it is not precisely how the plaintiffs pleaded it, Charles JA in David Syme & Co Ltd v Hore-Lacy, noted that a plaintiff could succeed on an unpleaded meaning, so long as it was 'not sufficiently different from and not more injurious than' the pleaded meaning.[14] In the context of the payment of capitation fees to branches, which was the subject of much evidence at trial, I am satisfied that 'guilty of improper conduct' is not sufficiently different from and not more injurious than 'guilty of negligence or misfeasance in office'.
102 I am not satisfied that an ordinary reasonable reader would conclude that the publisher was imputing that Mr Wegman misrepresented to the SSAAV his employment status when applying for the CEO position. In the context of the preceding two paragraphs of the email before the sentence 'We wonder, is it true when he took on the 'acting CEO' job, was he or was he not: Unemployed?', the publisher imputes that consultation, openness, and honesty failed in the discussion of the VicShooter magazine at the February 2014 state conference and that Mr Wegman will no doubt engage in denials, explanations, or other propaganda. That is relevant context. Further, the reader would think that the question of whether he was actually unemployed at the time he applied for the job of CEO hints at his capacity for dishonesty in the sense that is conveyed by the email about the magazine issue and did not raise some other distinct issue. This is the imputation against Mr Wegman that was first pleaded to be carried by the email. As I have stated above, I am satisfied that the imputation of dishonest conduct by Mr Wegman is carried by the email by reference to these words.
103 On 15 January 2018 the defendant sent an email using the email address admin@victorianshooters.com. The plaintiffs submitted that the email carried the imputation that the Board and Mr Wegman have been dishonest towards the membership of the SSAAV.
104 The plaintiffs submitted that this imputation was conveyed by the email as a whole, and in particular by the following statements:
(a) "The Vic Shooters Truth Group has obtained more information about how SSAA (Vic) member, Karl Zeger has been bullied by the SSAA CEO, Wegman, President Moroney and some other Board members";
(b) "there is hard evidence to hand that proves that Wegman was questioned during Board meetings and that Wegman actually lied to the Board about this and some other related issues";
(c) "At the trial all the lies and false information given to the Board and SSAA (VIC) members in general will be out in the open for all to see and their cover-up will end";
(d) "they will hear evidence of the lying and the trickery that has been going on by some of the 'leaders' of our Association";
(e) "The behaviour of these people is immoral, at times illegal and certainly in breach of the SSAA (VIC) Constitution"; and
(f) the statement that there will be "damming evidence".
105 The eight publication consisted of a conversation outlined earlier in this reasons, related to the ninth publication, which the plaintiffs no longer press.
106 I am satisfied that an ordinary reasonable reader would conclude that the publisher was imputing dishonest conduct towards the membership by the Board and Mr Wegman during the relevant period from the language of the email as a whole and particularly from use of the phrases identified by the plaintiffs in their submissions as noted in the preceding paragraph.
107 I have found that the defamatory emails carried the following five imputations in respect of the first to eighth plaintiffs:
(a) the Board had been dishonest in providing information to the membership of the SSAAV in the period leading to the 2014 State Executive Elections (Publications 1, 4, 5);
(b) the Board had committed an act of deception upon the membership of the SSAAV in failing to provide proper financial information to the membership in the period leading to the 2014 State Executive Elections (Publication 1);
(c) the Board had committed an act of deception upon the membership of the SSAAV in the period leading to the 2014 State Executive Elections, by hiding its failures or wrongdoings (Publication 4);
(d) the Board had been dishonest towards the membership of the SSAAV (Publications 6 and 9); and
(e) the Board had been dishonest towards the membership of the SSAV in the provision of information (Publication 7).
108 I have found that the defamatory emails carried the following three imputations in respect of the tenth plaintiff (Mr Wegman):
(a) Mr Wegman had been dishonest towards the membership of the SSAAV (Publications 6 and 9);
(b) Mr Wegman had been dishonest towards the membership of the SSAV in the provision of information (Publication 7); and
(c) Mr Wegman had been guilty of improper conduct in carrying out his duties as Chief Executive Officer in the payment of capitation funds to branches of the SSAAV (Publication 7).
109 In Trkulja v Google LLC, the High Court said:
The test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of. In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience. As Lord Reid observed in Lewis v Daily Telegraph Ltd, "[s]ome are unusually suspicious and some are unusually naive". So also are some unusually well educated and sophisticated while others are deprived of the benefits of those advantages. The exercise is, therefore, one of attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning that ordinary reasonable people at the midpoint could put on the impugned words or images considering the publication as a whole.
As the Court of Appeal of England and Wales observed in Berezovsky v Forbes Inc, that exercise is one in generosity not parsimony. The question is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person; and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking. He or she may be taken to "read between the lines in the light of his general knowledge and experience of worldly affairs", but such a person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions. Hence, as Kirby J observed in Chakravarti, "[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject".[15]
110 The defendant did not dispute that, if conveyed, the imputations were defamatory. I am not strictly bound by the manner in which the plaintiffs have put their case. I am satisfied, applying myself in the manner described by the High Court to the question of whether the imputations were in fact defamatory,[16] that each of the imputations I have found to be conveyed by the emails were defamatory, having a 'tendency to lower a person's estimation in the eyes of right-thinking members of the society generally'[17] and which were calculated by the defendant to injure the reputations of the plaintiffs by exposing them to 'hatred, contempt or ridicule'.[18] That is because ordinary reasonable people would think less of a dishonest person, or of a person who carried out an act of deception, or who engaged in improper conduct, particularly where that dishonesty, deception, or improper conduct was directed towards persons (the membership) by persons entrusted with administration of the affairs of an association on their behalf.
111 It follows that, subject to the defences raised by the defendant, the imputations are presumed to be false and the plaintiffs have suffered damage.
112 The defendant first argued that the imputations, if found to be carried, were substantially true at common law and under s 25 of the Defamation Act 2005.
113 Section 25 states:
Defence of justification
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
114 I have regard to the following well-established propositions summarised by Gillard AJA in Herald & Weekly Times Ltd v Popovic:
(i) The whole libel that is all the defamatory imputations must be proved as true; it is no defence to prove that part of the defamatory libel is true. The publisher must prove the truth of the defamatory sting. The general rule is that the publisher must prove every injurious imputation which the jury may find in the words complained of.
(ii) The defence is that the words complained of were true in substance and in fact. This means that the publisher must prove the sting or stings of the libel are true. The publisher need not prove an irrelevant comment or any slight inaccuracy in the article is true. Errors or mistakes of no real substance do not defeat the defence provided they make "no substantial difference to the quality of the alleged libel or in the justification pleaded for it"... Every fact stated must be proven as true, unless immaterial or trivial and which in no way alters the defamatory sting of the article.
(iii) A publisher may justify part only of the words complained of provided the part sought to be justified contains a distinct and separate imputation. What is important is that the particular defamatory imputation is severable from the other defamatory imputation and conveys a distinct and separate imputation. The plaintiff must not be left in any doubt as to what the defendant seeks to justify. But importantly this partial justification is not a defence to the cause of action, which is the publication of defamatory words. However, it is relevant to the question of damages, and if proven, results in a reduction in damages.[19]
115 The defendant relied on particulars of truth that were said to justify a number, but not all, of the plaintiffs' alleged imputations. The particulars can conveniently, in summary, be grouped as follows:
(a) the membership suspension claim;
(b) the 'act of deception claims' - the Stoops motion claim; the Eagle Park claim; and the capitation funds claim;
(c) the Bendigo payment claim;
(d) the legal costs and Mr Lemm claim; and
(e) the VicShooter magazine claim.
116 I will first explain how the defendant put each claim. He expressed the membership suspension claim as follows:
During the SSAAV State Conference on 23 February 2014 the tenth plaintiff and CEO of the SSAAV Board, Jack Wegman (Wegman) stated to Graham Blair and Alan Stoops, who were members of the SSAAV at all relevant times, that no members of the SSAAV were subject to a membership suspension at the time, even though the defendant's membership had been suspended on 13 December 2013. Furthermore, the comment was made by Wegman in circumstances in which he was aware as at 23 February 2014 that a meaning of the letter dated 13 December 2013 sent to the defendant was that the defendant's membership had been suspended effective the date of the letter, that the defendant believed his membership was suspended and Wegman wanted the defendant to believe he was suspended and therefore did not clarify his answer to the membership or communicate to the defendant that his membership was not suspended until at least March 2014.
117 The particulars of the act of deception claims were as follows:
(a) in March 2014 Alan Stoops submitted to the fourthnamed plaintiff, the company secretary for the SSAAV at the relevant time, and Frank Pireira, the returning officer for the SSAAV at the relevant time, a number of motions to be put to members seeking financial disclosure by the Board regarding the operation of the SSAAV to be provided to the members via the election papers. The election papers did not include copies of these motions or answers to the questions posed. In failing to pose the questions prior to annual general meeting of the SSAAV, or answer the questions posed in the motions submitted by Alan Stoops, the Board failed to provide proper financial information to the membership in the period leading up to the 2014 State Executive Elections ('the Stoops motion claim');
(b) the Board deceived the membership of the SSAAV about a conflict of interest by failing to inform the membership that Lance Eastwood, a member of the Board at the relevant time, was engaged to carry out work at the Eagle Park shot gun club without the Board having obtained two competing quotes for the work which was in breach of the SSAAV's policy ('the Eagle Park claim'); and
(c) the 29 July 2014 CEO's report to the membership contained a statement to the effect that branches of the SSAAV had received all capitation funds due to them when this was not the case and in circumstances where Wegman had been personally made aware as late as 24 July 2014 that capitation fees were still owing to the Bendigo branch ('the capitation funds claim').
118 The Bendigo payment claim is a sub-particular of the capitation funds claim, and was that 'Wegman, as CEO of the SSAAV, had failed to pay capitation funds to the Bendigo Branch of the SSAAV of approximately $6,000 for the financial years ending June 2013 and June 2014.'
119 The legal costs and Mr Lemm claims related to the conduct of these proceedings, and were particularised as follows:
(a) at a number of meetings of the SSAA Board during 2017 Phillip Brown asked members of the Board and Jack Wegman about the status of these legal proceedings against the defendant and whether any costs orders had been made against the plaintiffs. Jack Wegman said words to the effect that costs ordered against the plaintiffs were insubstantial, the costs of the litigation were within the original allocation of funds, and costs were only $400. These statements were untrue;
(b) in an email dated 1 December 2015 Jack Wegman said to Robert Lemm that he had been removed as a plaintiff from these proceedings. Mr Wegman also stated in this email that he wished to reassure Mr Lemm that Denis Moroney also confirmed that Robert Lemm was not a plaintiff in the proceedings. Robert Lemm remained a party to these proceedings until on or about 9 September 2016; and
(c) in an email dated 11 December 2015 Jack Wegman said to Robert Lemm that he (being Robert Lemm) was no longer a party to the action (being these proceedings). Robert Lemm remained a party to these proceedings until on or about 9 September 2016.
120 The defendant applied the particulars of truth to justify the imputations as I have found them to have been conveyed by the defamatory emails in the following way and for this purpose the imputations against the Board members and the CEO can be grouped together as 7 imputations.
The Board had been dishonest in providing information to the membership of the SSAV in the period leading to the 2014 State Executive elections
The Board had committed an act of deception upon the membership of the SSAV in failing to provide proper financial information to the membership in the period leading to the 2014 State Executive Elections.
The Board had committed an act of deception upon the membership of the SSAAV in the period leading to the 2014 State Executive Elections, by hiding its failures or wrongdoing.
The Board and Mr Wegman had been dishonest towards the membership of the SSAAV.
The Board and Mr Wegman had been dishonest towards the membership of the SSAAV in the provision of information.
Mr Wegman had been guilty of improper conduct in office in carrying out his duties as Chief Executive Officer in the payment of capitation funds to branches of the SSAAV.
The Board and Mr Wegman had been dishonest towards the membership of the SSAAV.
The membership suspension claim, the act of deception claims, and the legal costs and Mr Lemm claims
121 The justification defence was self-evidently (on examination of the particulars of it) untenable. I raised my concerns with the defendant on the first day of trial, and on subsequent occasions. Nonetheless the defendant persisted with the defence. This will become relevant later in this reasons. Assuming each of the particulars alleged by the defendant to have been established on the evidence, the fundamental problem remained that none of the particulars of truth met the sting or gist of the imputations they are said to justify.
122 The sting of the first, fourth, fifth, and seventh imputations is that the Board members or Mr Wegman acted dishonestly in providing information to the membership. To substantially justify the imputation, the defendant needed to prove that the Board intended to be deceitful or fraudulent that is, that they were not honest and intended to deliberately mislead the membership. Nothing in the membership suspension claim could sustain a finding that Mr Wegman or the Board or any member of it had been dishonest, or that they were aware of, and intended to, mislead the membership when providing information about the Board's dealing with the complaint against the defendant. This set of circumstances cannot meet the sting or gist of the imputation.
123 The sting of the second and third imputations is the act of deception. To substantially justify the imputation, the defendant needed to prove that the Board acted deceitfully, that is acted to conceal or pervert the truth for the purpose of misleading, or fraud, or cheating. The Stoops motion claim makes no allegation of deception at all. The defendant did not identify an obligation that could have been contravened by the alleged failure to provide proper financial information to the membership. He did not prove a purpose or an intention. These particulars of justification do not meet the sting or gist of the imputation. The Eagle Park claim also does not prove an act of deception. At its highest, assuming it be proved, the circumstances amount to a failure to disclose a conflict of interest. Again, the defendant did not identify either the Board's purpose or intention or any duty or obligation to inform the membership of any such conflict of interest that this alleged failure could have contravened or be meant or intended to have contravened.
124 The sting of the sixth imputation is that, in relation to the capitation funds, Mr Wegman acted improperly. I have found that this imputation is not sufficiently different from and not more injurious than 'guilty of negligence or misfeasance in office' that the defendant sought to justify. The defendant did not identify Mr Wegman's duties or obligations that his conduct in respect of the capitation funds could have contravened or be meant or intended to have contravened. Neither his misfeasance nor his negligence was identified or proved. Thus, the impropriety of his conduct was neither identified nor proved in order to justify it as substantially true. All that was alleged was that Mr Wegman, as CEO, failed to pay capitation funds of approximately $6,000 to the Bendigo branch for the 2013 and 2014 financial years and he was personally aware as late as 24 July 2014 that capitation fees were still owing. As I will later explain, there was no impropriety in Mr Wegman's conduct in relation to capitation fees.
125 I am not satisfied that the defendant could, on his particulars, if assumed to be established, prove the truth of the imputations of dishonesty, deception and impropriety of conduct that are the gist of the imputations. Turning to the evidence, this conclusion is reinforced by the absence of proof of the truth of the particulars of justification relied on by the defendant.
126 The defendant's argument regarding this claim turns on the interpretation of the Holdsworth letter of 13 December 2013. The relevant paragraphs were:
The Board decision pursuant to s.70 of the Constitution is to suspend your membership of the SSAA for a period of three years, commencing as at today's date.
However, subject to your returning all SSAA (Vic) property, removing from the Shootervictoria website any reference to current Board members and undertaking not to bring the SSAA into disrepute, the Board is prepared to waive the suspension.
127 There is an inconsistency between the message conveyed by these two paragraphs that created ambiguity. That was unfortunate, but that ambiguity cannot make out the justification defence. It is necessary to look at the wider circumstances. I am persuaded that the Board intended to give the defendant an opportunity to avoid being suspended. Ultimately, it took no action to actively suspend the defendant's membership. It was not acting dishonestly or deceptively in its dealings with the membership at the state conference in respect of this issue.
128 In January 2014, Mr Wegman informed the Board that an online search for the shootersvic website hadn't yielded any results. On the basis that the website was not apparent and may have been taken down, the Board decided to hold the issue over to its next meeting. The defendant's counsel put to Mr Wegman that his report, on which the Board based its decision, was fabricated. Mr Wegman vehemently denied that allegation. I accept his denial. The defendant did not establish any basis for the accusation.
129 At the Board meeting on 20 February 2014, the Board considered that the defendant had in part complied with its requests, and resolved to hold the decision to suspend in abeyance. The Board minutes reflected this. Mr Wegman rightly understood that at all times the defendant had been a member of the SSAAV with all consequent rights and privileges, and he had not been suspended. He considered the Board's position was consistent with the letter of 13 December 2013. The interpretation of the letter matters little, since Mr Wegman honestly believed that the defendant had not been suspended.
130 There was conflict in the evidence as to precisely what occurred at the SSAAV state conference on 23 February 2014. When he was asked if any member had been suspended, Mr Wegman responded that no one had been suspended. The defendant submitted this response was misleading. The proper interpretation of the 13 December 2013 letter was that he had been immediately suspended, on conditions that might have resulted his suspension being lifted had he complied with them. That contention drew on the ambiguous wording of the letter and ignored the broader circumstances. That limited analysis at best demonstrated the possibility of different interpretations of the 13 December 2013 letter. The relevant conduct the subject of the imputation of dishonesty, was at the state conference.
131 By that time, Mr Wegman's belief was conditioned by the other events that I have noted, including the response of the defendant's solicitor, the disappearance of the website and the subsequent Board decision. Mr Wegman told the truth at the conference. He did not lie or cheat. He could be trusted in what he said. These circumstances wholly fail to establish that the imputations of dishonesty in providing information to the membership of the SSAV were substantially true.
132 More importantly, it was never put to any of the plaintiffs in cross-examination that they acted dishonestly in the conduct alleged as the membership suspension claim. The evidence of the plaintiffs was not disputed. The defendant has failed to prove the truth of this imputation.
133 The Stoops motions claim concerned proposed motions submitted by a member, Mr Alan Stoops, to Mr Ross Farmer who was a Board member and the company secretary at the time, to be put at the 2014 AGM. Mr Farmer invited Mr Wegman to consider the motions. Mr Wegman's evidence was that his view was that the motions were not valid motions and were a 'fishing expedition'. They were also out of time as the Company's constitution specified a 180 day time limit for the submission of motions to be put to an AGM.
134 Mr Farmer stated that the motions were properly excluded from consideration at the AGM for three reasons. He took the view that s 249N of the Corporations Act 2001 (Cth) applied, such that a threshold of either 5% of the membership, or 100 members, was required for the motions to be put. Neither threshold was met. Mr Farmer also noted that the motions were submitted outside the 180 day time limit. Mr Farmer considered that, having regard to the role of a member in the company, the motions were not appropriate questions to be put to an AGM. Anticipating opposition to a decision to exclude the motions, Mr Farmer obtained independent corporate governance advice on these issues that supported his conclusions.
135 Mr Wegman discussed the motions with Mr Greg Moon. They determined they could provide the information sought by the motions at the AGM by responses to questions without notice. There was, they agreed, no point in 'egging people on' by not providing the information they sought. Mr Moon addressed these issues at the AGM. Mr Wegman stated that because he did so, an expected half-hour meeting went for approximately 3 hours.
136 The defendant did not dispute this evidence. The defendant could not craft an allegation of any act of deception from the circumstances of the Stoops motion claim. Further no allegation of deception based in the circumstances of the Stoops motion claim was put to the plaintiffs by their cross-examiner. The defendant failed, by reference to these circumstances to prove the substantial truth of the second and third imputations.
137 Mr Lance Eastwood, the fifth plaintiff, is a licenced electrical contractor whose business is called Proalarms Security. Some electrical work was needed at the Eagle Park shot gun club. Competing quotes for the disputed work were obtained from:
(a) RANS Electrical dated 7 July 2014;
(b) Lifestyle Electrical on 22 July 2014; and
(c) Black Electrics on 5 August 2014.
138 Mr Wegman produced to the court a summary of the quotes that he had prepared. It was, he said, used by him in determining to award the work to Proalarms Security. It was put to him that he had fabricated this summary. I accepted his denial of that accusation. Arranging this work was an operational matter for Mr Wegman as CEO and it did not require, and did not receive, the imprimatur of the Board.
139 The defendant led no evidence about the Eagle Park claims. After the, admittedly late, discovery of the additional quotes, it is not apparent that there was any basis for this claim as a particular of justification. Nonetheless the defendant persisted with it, including by putting to Mr Wegman that his summary was fabricated.
140 The defendant failed to prove the truth of this claim.
141 During the course of the proceeding, Mr Wegman, on information he received from the SSAAV's solicitor, informed the Board that there were three sums in costs that the plaintiffs were required to pay. He raised this issue with the Board in response to the allegations contained in the ninth publication (the final email). The first two payments were application fees of about $300 - $400. The third payment was an amount of approximately $16,000 that was disputed by the SSAAV and that, in any event, would be held over until the proceeding was finalised.
142 The Board was concerned about information leaking from its meetings to the defendant or those supporting him, and formed a sub-committee comprising Mr Wegman, the President and Senior Vice-President to deal with sensitive information about this proceeding, including legal costs. Mr Wegman apprised the sub-committee of the legal costs being incurred by the SSAAV in conducting the proceeding.
143 Mr Lemm, a Board member, was named as a plaintiff when this proceeding was initiated. In early 2015, he told the President, Denis Moroney, that he did not wish to be a plaintiff. Mr Wegman instructed the solicitors to remove Mr Lemm as a plaintiff and the plaintiffs' solicitors assured him this would done. Mr Wegman said he was told that he could assure Mr Lemm that although there was 'a process' to be completed, he was no longer a plaintiff. Mr Wegman assured Mr Lemm accordingly, telling him he was no longer a plaintiff, and any documentation he had been receiving was out of date for that reason.
144 As matters transpired, the plaintiffs' solicitors found that removing Mr Lemm as a plaintiff was not as simple as expected and there was a delay. Mr Wegman acknowledged that at the time he gave his assurance to Mr Lemm, he had not in fact been removed as a plaintiff. Mr Wegman's evidence, which I accept, was that his advice to Mr Lemm was based upon his sincere belief at the time, based upon the legal advice he had received. Mr Cooper, the plaintiffs' solicitor, supported this evidence.
145 There was no meaningful evidence to the contrary from Mr Philip Brown, on whose evidence the defendant relied. The defendant failed to prove the truth of this claim.
146 Capitation funds payments are a rebate to branches paid out of membership fees. A branch is paid $10 for each adult member of the branch who either joined as a new member or renewed their membership. In the first instance, membership fees are paid to SSAA, the national body, which calculates the rebate to be sent back to the State branches. The SSAAV would receive approximately 50% of the membership fees paid by Victorian members, out of which the capitation fees would be paid to branches.
147 Historically, the SSAAV had experienced some difficulty with the timely submission by branches of annual financial reports that limited the state branch in preparing a consolidated financial report. The practice developed that capitation fund payments would not be paid until the branch had submitted their financial reports.
148 Mr Wegman and Ms Ferreira explained that a further difficulty affecting the calculation of capitation funds was the way in which a previous CEO had drawn the boundaries of the branches. Some regional postcodes had been excluded from the boundaries of a branch, and, as a result, members in those postcodes were considered part of the metropolitan branch which distorted the proper distribution of capitation funds. Mr Wegman, Ms Ferreira and SSAAV staff conducted an extensive exercise to make the branch boundaries contiguous, and to adjust and/or reallocate capitation fees over the 2012-2013, and 2013-2014, financial years. This exercise also required rectifying discrepancies between state and national allocation of postcodes. The defendant did not dispute this evidence that was the context in which the capitation funds claim of the Bendigo branch had developed.
149 In his half-yearly report, Mr Wegman had stated:
13. Funding allocation to clubs and sub clubs
.... In reviewing internal administration, issues have been identified in branch receipt of annual capitation rebates. Some issues concern the matching of National and State databases. Notwithstanding, the payment process has been addressed and all payments owing for 2013/14 having been made, subject to finalisation with National and branches.
150 The defendant contended that the payment process had not been addressed and all payments owing for 2013/14 had not been made. Mr Wegman explained that it was always contemplated that there would need to be adjustments and fine tuning to ensure appropriate fees had been paid, reconciled and finalised with the national organisation and individual branches. He believed that the Bendigo branch was the only branch with outstanding capitation issues to be resolved, however, this was clearly covered by the qualification included in his report.
151 The defendant relied on emails from Vic Alexander, of the Bendigo branch, regarding the payment of capitation fees. Nothing in those emails detracted from or cast doubt on Mr Wegman's evidence. Mr Alexander was not called to give evidence, and the defendant did not provide any evidence that $6,000 in capitation funds was owed to the Bendigo branch.
152 The evidence revealed no basis for the allegation that the capitation funds claim substantially justified any imputation that I have found was carried by the defamatory emails.
153 The VicShooter magazine claim was that '[t]he minutes of the February 2014 State Conference for the SSAAV do not record the fact that the members voted to keep the Victorian Shooters magazine until an alternative proposal was tabled'. This particular of justification only applied to the imputation alleged by the plaintiff that 'the Board and Mr. Wegman had falsified the records of the SSAAV, being minutes of the February 2014 State Conference'.
154 Given my finding that this imputation was not carried by the publication it is not necessary for me to consider it, but I do so for completeness. There was a degree of confusion in the evidence as to what occurred in discussions regarding the Victorian Shooters magazine at the SSAAV state conference, including as to whether there was a formal or informal vote regarding the future delivery of the magazine. The evidence did not support the suggestion that there was a formal vote, but I am satisfied that the mood of the meeting was assessed informally and correctly. The meeting favoured the retention of the publication, and the debate centred on whether the magazine should be printed or published online. The costs of printing and publishing were substantial and although there was support for continuing to print and post the magazine, that was not the view of the majority. I am satisfied that the record, a minute that stated:
Vic Shooter magazine/costs in excess of $50K to produce and post/are there ways of minimising costs? E-magazine? Many present at conference in favour of continuing to post magazine
was a reasonably accurate description of the outcome of the discussion at the state conference.
155 The defendant never put to any of the plaintiffs that the minutes of this conference were falsified.
156 The defendant has failed to establish any particular of his justification defence.
157 There are differences in the formulation of the defence of qualified privilege dependent on whether its source is common law or s 30 of the Defamation Act 2005.
158 The statutory defence may be established if the defendant proves that:
(a) the recipient has an interest or apparent interest in having information on some subject;
(b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and
(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.
The section further elucidates the concept of an apparent interest and the factors that may be taken into account in assessing reasonableness.[20]
159 At common law, a publisher can claim qualified privilege as a defence on an occasion where the person who makes the communication has an interest or duty, legal, social or moral, to make it, and the person to whom it is so made has a corresponding interest or duty to receive it, such reciprocity being essential. The onus of proof of each element of the defence is on the defendant.
Reciprocity of duty and interest, as giving rise to a privileged occasion, is not a feature of the statutory defence, but it is the hallmark of the common law defence of a qualified privilege. As Parke B explained in Toogood v Spyring, the law regards the publication of a false statement which is injurious to the reputation of a person as malicious:
"unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice."
The defence of qualified privilege is based upon notions of public policy, that freedom of communication may in some circumstances assume more importance than an individual's right to the protection of his or her reputation. The question of whether the person making a defamatory statement was subject to some duty or was acting in the protection of some interest, in making the statement, is to be understood in this light.[21]
161 The parties agreed that this defence would be resolved by answering the following four questions:
(a) Did the defendant publish the defamatory emails in performance of a duty or interest to communicate on the subject matter of the imputation?
(b) Did the persons who received the emails have a corresponding duty or interest to receive information on the subject matter of the imputation?
(c) Was the information conveyed in the course of giving to the recipient information on that subject?
(d) Did the defendant act reasonably on each occasion of publication?
162 The reason why the statutory defence must fail is readily identified by considering the last of these issues. The defendant's insurmountable hurdles with this defence were that he denied that he was the publisher, and that publication was anonymous. The defendant did not show that he acted reasonably in the circumstances described above of each anonymous publication, responsibility for which he denied.
163 Equally, the notion of publishing in performance of a duty or interest to communicate on a particular subject matter to a recipient with the reciprocal interest or duty to receive the communication cannot sit with the denial of responsibility for an anonymous publication.[22] Denying that he was the publisher, the defendant could not, and did not, identify or prove a duty to publish the emails.
164 The particulars of his qualified privilege defences amounted to an assertion of the recipient's interest in the subject of the SSAAV elections. The defendant contended:
(a) the subject matter of the publications was clearly directed at and addressed to members of the SSAAV and people interested in the administration of sports shooting in Australia;
(b) the subject matter of the publications, and identification of the plaintiffs was nonsensical to any member of the public who was not aware of who comprised the Board of the SSAAV or the position held by Mr Wegman, or was not aware of the administration of the SSAAV;
(c) the defendant, while denying any involvement with publication, firmly believed the matters pleaded as justification defences to be true and had reasonable grounds to hold those beliefs; and
(d) the defendant was not actuated by malice.
165 As McHugh J stated in Bashford v Information Australia, the defence is one of 'confession and avoidance'.[23] The defence -
accepts that the communication is defamatory, that the defamatory matter may be false and that its publication has caused or may cause harm to the plaintiff. It confesses the publication of the defamatory matter, but contends that the publication is immune from liability because the public interest requires the duty and interest of the publisher and recipient should be preferred to the protection of the plaintiff's reputation. The court cannot determine these issues of duty and interest without characterising the subject matter of the defamation. It cannot judge whether the particular duty and interest are so necessary for the proper functioning of society that the occasion should be privileged - despite the harm that the communication may cause - unless it knows what is the nature of the defamatory communication that allegedly gives rise to the duty and interest.
A defendant who claims that the occasion was privileged must show that "both the givers and the receivers of the defamatory information had a special and reciprocal interest in its subject matter" such that public policy requires that the defendant be immune from liability for the publication.[24]
166 In the present circumstances, there was no duty or interest of the defendant in publishing anonymous emails. It cannot, and was not, said that the reciprocity of duty and interest between publisher and recipient was so necessary for the proper functioning of society that the occasion was privileged, despite the harm that the communication caused to the reputations of the plaintiffs. There can be no doubt that anonymous comment in the context of elections, whether in politics or private affairs, is inimical to good public policy.
167 For reasons discussed elsewhere in this judgment, I reject the assertion that the defendant believed the matters pleaded as justification defence to be true on reasonable grounds.
168 After he admitted to publication, the defendant maintained this defence in his written closing submission, which appeared to have been prepared by him personally without legal assistance.[25] He claimed that he 'was never driven by malice' and 'always acted out of concern for the memberships best interests, as he always has'. He submitted that he was motived 'to right the wrongs done by the Plaintiffs' and '[w]here malice has occurred, it has been exhibited by the Plaintiffs'.
169 This last stated claim was unsubstantiated at trial. The defendant asserted that the plaintiff's malice was demonstrated by 'a series of tactics, discovered by the court, designed to hide evidence, increase his costs and delay the outcome of the trial'. This assertion is entirely without basis and had I been invited to make such findings, I would have rejected the invitation. The defendant's assertion that he intended to 'right the wrongs' of the plaintiffs cannot in these circumstances give rise to an occasion of qualified privilege.
170 The High Court observed in Papaconstuntinos v Holmes a Court:
The modern emphasis in the formulation of the defence of qualified privilege is upon duties and interests rather than the state of mind of the defendant, the latter of which would include the defendant's motive. If the defendant has a legitimate interest which the defendant seeks to protect in making the defamatory statement, the occasion for the privilege arises. There is no case which holds that self-interest operates as a disqualification or requires something more, such as some compelling need or urgency, to justify a statement.[26]
171 There would be a further answer to this defence if the occasion had been, as the defendant contended, one of qualified privilege. I am satisfied that the defendant was actuated by malice, a finding that precludes a defence of qualified privilege. To prove malice, a plaintiff must satisfy a court that the dominant motive of the defendant was an improper motive, which was ulterior to any duty or interest of the defendant in publishing it.
172 I will, for convenience, adopt the summary of the principles relating to malice set out by Kaye J (as his Honour then was) in Szanto v Melville:
In order to overcome a defence of qualified privilege, the plaintiff must establish that the defendant was actuated by malice in publishing the defamatory matter complained of. In order to establish the existence of malice, the plaintiff must prove that, in publishing the material complained of, the defendant was actuated by a motive which was foreign, or ulterior, to the privileged occasion. It is not sufficient that the plaintiff demonstrate the existence of a potential motive on behalf of the defendant. Rather, the plaintiff must establish that the ulterior motive was the dominant purpose of the publication of the matter by the defendant. Knowledge by the defendant, that the defamatory statement is untrue, may be "almost conclusive evidence" of malice, because it is strong evidence indicating the existence of an improper motive. However, knowledge of the falsity of the defamatory material is not, of itself, equivalent to the existence of the requisite improper motive.[27]
173 The defendant's dominant purpose in publishing these emails was not that stated by him after he admitted to his lying ([168] above). I have only accepted the defendant's evidence in so far as he has admitted to lying to the court for the reasons I have already explained. More compelling evidence that his motive was foreign, or ulterior to the privileged occasion as he would assert it, was the evidence of Ms Balit of his deleted communications with Mr Erkens-Goss ([46] above). Further, I am prepared to more readily find that the defendant's motive was malicious from his flagrant breach of his duty to tell the truth in the witness box and his inability to explain his lies. I reject his explanation in re-examination (see [53] above).
174 I accept the plaintiffs' contention that the defendant's dominant and improper purpose was to denigrate and injure the plaintiffs in an anonymous manner in order to avoid exposure to the consequences of his actions. This purpose was ulterior or foreign to engaging in an acknowledged way in legitimate comment about the performance of the Board of the SSAAV or of members of it standing for re-election.
175 The defendant having failed to establish the defences on which he relied, I turn to the issue of damages.
176 I will repeat what I have said on other occasions by way of summary of the principles governing assessment of general damages.[28]
177 The purposes of an award of damages are to provide consolation for hurt to feelings, compensation for damage to reputation, and vindication of the plaintiff's reputation.[29] The assessment of general damages is necessarily imprecise and, accordingly, damages are 'at large' in the sense that they cannot be arrived at through calculation or the application of a formula.[30]
178 The sum awarded must demonstrate vindication of the plaintiff's reputation. The level of damages ought to reflect 'the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment'.[31]
179 The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff.[32] The award must be sufficient to convince a bystander of the baselessness of the charge.[33]At common law, it was legitimate to take into account not only what the plaintiff should receive but also what the defendant ought to pay. That is no longer the case. Section 34 of the Defamation Act 2005 requires that the court in determining the amount of damages to be awarded in any defamation proceedings ensure there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
180 The extent of publication and the seriousness of the defamatory sting are pertinent considerations.
181 In determining the damage done to a plaintiff's reputation, the court should also take into account the 'grapevine' effect arising from the publication of the defamatory material.[34] This phenomenon is no more than the realistic recognition by the law that, by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published.[35] It is precisely because the 'real' damage cannot be ascertained and established that damages are at large. It is often impossible to track the scandal and to know what quarters the poison may reach.[36] The award of damages must be sufficient to ensure that, the damage having spread along the 'grapevine', and being apt to emerge 'from its lurking place at some future date', a bystander will be convinced 'of the baselessness of the charge'.[37]
182 It is well accepted that injury to feelings may constitute a significant part of the harm sustained by a plaintiff, and for which a plaintiff is to be compensated by damages.[38] Injured feelings include the hurt, anxiety, loss of self-esteem, sense of indignity and the sense of outrage felt by the plaintiff.[39]
183 Aggravated damages are a form of compensatory damages and, where appropriate, form part of the general damages awarded to a successful plaintiff for non-economic loss, designed to reflect aggravation caused to a plaintiff's hurt or injury by reason of some conduct of the defendant.[40] An award of aggravated damages may be made if a defendant has acted in a manner which demonstrates a lack of bona fides or engaged in conduct which is otherwise improper or unjustifiable.[41] Conduct with those characteristics will be such as to increase the harm which the defamation has caused or may be supposed to have caused to the plaintiff.[42] A damages award is not usually broken down into components for pure compensatory damages and aggravated compensatory damages.[43]
184 At common law, in awarding aggravated damages, the court compensated the plaintiff for the loss actually suffered as a result of the defamation. In doing so, the court could adopt the highest level of damages open as compensatory damages.[44] Sections 34 and 35 of the Defamation Act 2005 now define the level of damages that may be awarded.
185 I will shortly set out the evidence touching on the social standing of the plaintiffs, their personal reactions and responses to being defamed, including injury to feelings, on which the assessment is to be made. Before doing so, I make findings about the extent of publication and the seriousness of the defamatory stings.
186 The SSAAV had a membership email system (referred to as the email alert system) managed by Internode. Members signing up or renewing their membership could, at their option, provide an email address to be included in the system. An email sent from the system would identify, as the sender, the individual administrator by whom the email was sent. However, access to the Internode system was restricted to three employees of SSAAV who shared a single password. By way of example, if the CEO wished to send an email to the membership, he would provide the email to an employee with administrator access, who would then use a program on an SSAAV computer to access the Internode email database.
187 Mr David Croft is an employee of the SSAAV. During his time as President of the SSAAV, the defendant asked Mr Croft for administrator access to the email alert system. While he initially baulked at the idea, after discussing the request with the acting CEO and another employee and concluding that the constitution gave the President such authority as the senior executive officer of the company, Mr Croft gave the defendant the password for administrator access to the email alert list. He believed this occurred in about May or June 2012.
188 The defendant said he had been notified of a security breach in the email alert list on or around 22 June 2012, which is why he sought access. Mr Croft did not recall any breach in security of the email alert system, and observed that if one had occurred, to his knowledge it would have been the only breach ever to have happened. I reject the defendant's assertion that he sought access to the email alert system to seek to protect the SSAAV from a possible security breach. There was no documentary evidence supporting this contention and it was not accepted by the plaintiffs' witnesses.
189 The only evidence of the use of the email alert system by the defendant was that he sent an email to the membership on 18 August 2012. There was a debate about whether at that time the defendant had ceased to be President and to have the right to use the email alert system. I need not resolve that debate. It hardly matters. The plaintiffs' point was that the defendant had access to a database of those member's email addresses that he had compiled through abuse of this right of access. I am satisfied that the defendant sought access for personal purposes and exercised that access to send that email to all members following the declaration of the result of the election in which he was not returned to the Board.
190 The precise size of the email alert list was not known and the plaintiffs' witnesses agreed that it contained 18 - 19,000 email addresses. While adding or copying email addresses in bulk to the database was a straight forward procedure, Mr Croft had never tried to extract addresses from the list, and could not say if it were possible to do so. However, he seemed to me to doubt that it was realistically achievable to copy the whole list out of the Internode database.
191 The plaintiff submitted that I should infer that:
(a) the defendant had access to the entire email alert list comprising 18,000 people; and
(b) the defendant published the defamatory emails at least to those people on the email alert list and also to others who were not members of the SSAAV.
192 I was not persuaded that the defendant was able to, or had, downloaded the email database from Internode. I was not able to conclude on the evidence that it was possible for an administrator to do so and there was no evidence of the use of that database in the distribution of the defamatory emails. The defendant's lies in the witness box will not permit an inference that lacks a foundation in the primary facts proved at trial.
193 The defendant's evidence differed materially. He, and a number of his witnesses, Messrs Stoops, Blair, and Brown, suggested that a significant list of member email addresses could be compiled utilising the practice of members copying-in other email addresses for group broadcast and using the 'reply-all' function when responding to emails. Such emails could have distribution lists of hundreds of email addresses which could be collected and collated into a database.
194 The defendant claimed to have complied his database in this fashion. In oral evidence he said he only had access to approximately 1,200 email addresses. In closing, counsel for the defendant conceded that 1,200 email addresses was a significant distribution list, but I reject the defendant's evidence in this respect. There was no reliable reason given for his assertion that contrary to other written statements, he only had access to a significantly smaller number of emails. In an email to Mr Erkens-Goss, the defendant suggested he had access to approximately 4,000 email addresses. In the context of that particular email to Mr Erkens-Goss there appeared no reason for the defendant to lie about the size of his distribution list.
195 I am satisfied that the defendant sent the defamatory emails to approximately 4,000 email addresses that were mostly email addresses of SSAAV members but also included others. Further there was evidence of a significant grapevine effect. Mr Wegman's wife, Judith Browning, stated that their son, a member of the Australian Army, told her that other soldiers, presumably SSAAV members, enquired of him about what they had been reading about his father and what had he been up to. Various plaintiffs recalled personal contact from friends and acquaintances not known to them as SSAAV members about the emails.
196 It is a serious matter to say a person was dishonest or deceptive or engaged in improper conduct. Speaking collectively and objectively, the imputations were serious slurs on the reputations of the plaintiffs because in a business and administrative context the anonymous and confusing emails challenged the honesty, integrity and character of the plaintiffs in their professional context. They are mostly persons whose work and life depends upon their honesty, integrity and judgment. The stings cannot be dismissed as inconsequential, a trifle or a joke. Rather the stings were a significant denigration that stigmatised the plaintiffs with a significant taint or smear. I am satisfied these imputations cause substantial and lasting damage to the reputations of the plaintiffs.
197 That said, the circumstances of the individual plaintiffs varied, as I will shortly note, and that is a matter taken into account in the assessments for each plaintiff of the objective seriousness of the stings.
198 Mr Wegman first became involved with SSAAV in 1987. His participation in the association was limited until 2012 when he was elected to the Board. Following the resignation of Mr Wayne Holdsworth, Mr Wegman was appointed acting-CEO of the SSAAV on 14 January 2013 for six months, and appointed as CEO on 11 September 2014. Prior to taking this position, Mr Wegman, amongst other positions, had been extensively involved local government with the Boroondara City Council including being elected mayor of Boroondara on five occasions. He is a captain in the Army Reserve. He has been a member of the Board of the Foundation of the Camberwell Grammar School for more than 20 years and a trustee on a government board, the Greater Metropolitan Cemeteries Trust, for over 3 years.
199 He distinguished himself from the other plaintiffs as his position in the SSAAV is not voluntary and is his career. It became extremely difficult for him as he continued in that role following the publications.
200 Mr Wegman's experience was that integrity, credibility and reputation are 'everything' to positions of leadership. He felt that the emails damaged his reputation in those respects with the imputations of dishonesty and deception. He was very concerned because once those attributes are called into question it can be the 'end of the road'.
201 On reading the first email Mr Wegman was upset, and thought its content wrong, disparaging of the Board, and without basis. In particular he was upset by the insinuation that the members had not been kept properly informed of the association's affairs. At this time Mr Wegman had been CEO for approximately 6 months, and he had to deal with accounting records that were 'a disaster' requiring much work to get them in order. It hurt to face accusations that he was being, as he put it, dodgy. He also failed to understand why he was the butt of the injustice.
202 Further emails made Mr Wegman extremely angry. As CEO, he was responsible for all operational matters, including the elections. He considered the emails were a complete distortion and misrepresentation of the facts. He became more and more exasperated. By the fifth email, Mr Wegman felt the publications were a slur on his integrity and reputation. Electors in Boroondara were receiving the emails and one person commented to him that he knew it was the organisation of which he was CEO being referred to in them. Mr Wegman felt his character was being assassinated.
203 He found the sixth publication 'really distressing'. In particular, it 'purported to show people quoting these things' and suggesting how unhappy they were with his management. He felt that the material was going beyond the SSAAV and into the public.
204 He contemplated resigning as CEO. In addition to having 'about had enough' himself, the emails were detrimentally affecting the welfare of the 40 or so staff for whom he was responsible. He experienced uncertainty, wondering what the Board thought of him, and felt under pressure to reassure the Board of the falsity of the allegations.
205 Mr Wegman considered the seventh email to be 'particularly distasteful'. He felt his job as the CEO was to be non-partisan and to work for the Board as a whole. He found it insulting and hurtful that the publication used phrases like 'buddies' and 'employed by buddies on the Board', suggesting he didn't get the position on his merits. He was the only one who had two interviews for the position of CEO, which had been advertised. He considered the insinuation that he was unemployed and got the job either 'out of charity' or as a result of his 'buddies' on the Board was 'about as insulting as you can get'. It was also wrong.
206 Mr Wegman was 'absolutely outraged' by the ninth publication. It was 'particularly odious and offensive' to be accused of bullying, a particular of how he was dishonest towards the membership. Having recently had to deal with a bullying issue, he was very conscious of such issues and the laws surrounding it. He described the allegation that he had 'gone off on a fancy' and spent the Board's money without Board authority as a 'straight out lie'.
207 The publications were a major distraction for Mr Wegman. They took up much time and mental energy, distracting him, and his staff, from his work for the SSAAV. He considered resigning on more than one occasion.
208 Mr Wegman began having trouble sleeping and staying asleep. His children began to notice changes in him, asking 'what's wrong with dad?'. It took some time for him to get back into a normal pattern of life.
209 Mr Wegman was contacted by many members by both phone and email about the publications. While most of the phone calls he received were supportive, many of the emails he received were not. Many members were confused and thought victorianshooter was the SSAAV.
210 Ms Judith Browning, Mr Wegman's wife, described the effect the publications had on him. She noticed he lost his sense of humour, was pre-occupied, and generally 'wasn't himself', becoming depressed, grumpy and disconnected from the family. He had trouble sleeping and experienced migraines. Both their children and their parents noticed the change in him.
211 Ms Browning described her husband's strong reputation in both the business and local community in which he is held in high-esteem. Friends of one of their sons, David, approached him asking 'What's this I've heard about your dad?'.
212 Mr Wegman gave evidence that the very fact the defendant had pleaded a truth defence made his 'blood boil'. He considered it a 'cynical ploy to add insult to injury'. He considered the defendant genuinely knew the matters he attempted to justify were not true. He also was injured by the defendant's refusal to acknowledge that he had published the emails when the plaintiffs had maintained from the outset that they knew he was responsible.
213 Mr Wegman felt outraged at an amendment made to the defence on the first day of trial, to include the following to particular 5A(a):
Furthermore, the comment was made by Wegman in circumstances in which he was aware as at 23 February 2014 that a meaning of the letter dated 13 December 2013 sent to the defendant was that the defendant's membership had been suspended effective the date of the letter, that the defendant believed his membership was suspended, and Wegman wanted the defendant to believe he was suspended and therefore did not clarify his answer to the membership or communicate to the defendant that his membership was not suspended until at least March 2014.
This proposition, although maintained, was not put to Mr Wegman and no basis for it was established.
214 Mr Moroney was the President of the SSAAV at the time of the publications. He felt they denigrated the Board members to such an extent, that if a member believed what was stated in them they would be looked upon as 'crooks'. However, the general impression he received from the membership base was that they did not believe the allegations. Similarly, he felt as Junior Vice-President of the national association, if the allegations had been believed he would have been asked to step down. He suspected that the national board did not believe the imputations to be true.
215 As to the ninth publication, Mr Moroney was asked on many occasions how the Board could have spent so much money on these proceedings. He felt he needed to respond and explain that the allegations were incorrect, but felt he couldn't do so to 38,000 people, only to those who approached him.
216 Mr Moroney's biggest concern regarding the publications was the effect they had on Mr Wegman, and consequently the office staff. This was exacerbated by the assumption from many members that as President he had the power to put a stop to the publications.
217 The publications had limited personal impact on Mr Farmer. However, his wife had just passed away at the time and he was distracted from the affairs of the SSAAV.
218 Mr Farmer's concern with the publications was primarily professional. He considered the publications 'disgraceful unnecessary conduct', made by people who don't understand corporate governance trying to make things difficult for others. Mr Farmer was concerned that, if he applied for different Boards, an internet search of his name would reveal these matters, and he might not have an opportunity to refute them. He instanced viewing a forum called the Australian Hunters Network, on which a person posting a comment had evidently formed a negative opinion of him after reading a statement sourced from the publications. This upset him. He felt it was 'toxic'.
219 Mr Eastwood felt his integrity was questioned by the publications. Running a security business, client confidence in his ability to maintain confidentiality, records, and generally have his business practices trusted was extremely important to him.
220 The emails also affected him personally. Old friends began asking him 'what are you doing to the association?' Many people spoke to him about the emails. For example, at the 2016 AGM Graham Blair said to him 'I don't' trust you bastards' and in evidence Mr Blair agreed that he said this. This made Mr Eastwood feel bad and depressed. He felt he was trying to do a good job for the association but was faced with constant harassment in the background. His well-being was affected, and he began to have on-and-off sleeping problems for 3 - 4 years.
221 Mr Hepner has been a member of the SSAAV since 1984. He is also the President of the Big Game Rifle Club. The publications made him very uncomfortable as he considered the allegations were 'premised on a lie'. He considered one of the most important things to the Board was corporate governance, and 'closing all the gaps that had allowed problems in the past'.
222 He received many comments about the emails, including some nasty comment. The impression he was given was that recipients thought the emails were coming from the SSAAV, and meant 'we must have been doing something wrong'. He began to be questioned by friends who wondered if 'we were doing the right thing by the SSAAV'. Some said 'there must be some truth to it as' as the emails were coming all the time.
223 He felt his name was being badly besmirched. His wife knew he was troubled. He began worrying about it at night. His work was affected. He found he was pre-occupied with the publications, rather than his own business.
224 Mr Schereck has been a member of the SSAAV for about 10 years. He spent 33 years in the military, the majority of which he spent training cadets.
225 Mr Schereck was offended by the emails as he felt they were 'mistruths', 'exaggerations', and 'just plain lies'. He felt his integrity and ability to perform on the Board was being questioned, and that he was being 'tainted by the accusations and slander'. Many SSAAV members asked him about the emails. He was frustrated because as the author was anonymous, it was difficult for the accusations to be publicly met. This was exacerbated by his goal to be on other boards and be involved in public service, which could be jeopardised by the suggestion that he was dishonest or deceptive.
226 He also noted the effect of the emails on Mr Wegman. He observed frustration and despair. He felt the issue was taking up time unnecessarily for individuals and at Board level. While Mr Wegman was determined to put it right, he has no doubt it wore him down. He explained 'you can't do this year after year and not be affected by getting that and having to devote the time and energy to put, on the record, a categorically correct and appropriate response'.
227 Mr Moon has been a member of the SSAAV since the 1980s. He resigned from the Board about 6 months before the trial commenced by force of a direction from Victoria Police.
228 He received the publications. He felt discussed, angry and frustrated by them. At the time his wife had a terminal illness, and he felt the accusations were 'just another issue I didn't need in my life'. In particular, he was upset by the insinuation in the publications that the Board members were in it for themselves or seeking their own benefit/glorification.
229 He received hundreds of phone calls, emails and comments about the emails. Some would joke about them, but others would ask 'what are you bastards up to?' While some people were open to his explanations of the allegations, others wouldn't be, and would take them at face value. Others simply said they didn't believe him.
230 As each publication came out he wondered 'what have I done to deserve this?' He was also concerned about the impact they may have on employees such as Mr Wegman, to whom they owed a duty of care. He spent time with Mr Wegman to reassure him.
231 Mr Silverback works in IT. As his role is in sales, he considers his reputation extremely important. He has been a member of the SSAAV since 2007 and has been on the Board from 2013-2017.
232 He was distressed by the emails. In particular he was upset as he had joined the Board for altruistic purposes, but the emails suggested he and the Board were unethical and trying to do things 'the wrong way'. Further, the emails were sent out to a large group to which it was difficult to respond.
233 He was very concerned about how the emails may affect his reputation. He explained that the SSAAV has nearly 40,000 members in all walks of life- he became concerned that some of his customers, who would not necessarily be identifiable, may have a pre-conceived negative opinion of him through association with the SSAAV.
234 The publications also affected his person life. Having a young family and stressful job, he felt it was 'another level of stress' he had to deal with. He became depressed and was very upset.
235 Mr Kuyken has been a builder for 49 years. His reputation is very important to him, and the emails angered him, in particular, the inference of dishonesty that came from them. He was concerned this may affect his reputation, and he received about half a dozen comments from various people regarding the publications.
236 Mr William Poynton, who has been a member of the SSAAV for 25-30 years, also received the publications. He understood the emails to relate to SSAAV Board members, and specifically identifying Mr Wegman and Mr Moroney.
237 The emails led him to worry about the conduct of the SSAAV, and to wonder about the conduct of particular Board members. He gave evidence that despite knowing the Board members and Mr Wegman and holding them in high esteem, 'you can't help but be concerned' when you see such documents.
238 Mr Neil Hibbel has been a member of the SSAAV since 1979. He held the plaintiffs in high regard. He said the allegations made against them in the publications were 'quite contrary' to their characters, and were 'rubbish'. However, he noticed the publications might lead someone who didn't know them to question what was going on with the Board, and whether the people serving as directors, or seeking election to office, were suitable.
239 Mr Hibbel noticed that Mr Wegman was 'flatter' after the emails. In his opinion, Mr Wegman worked hard, as did the directors, to make the association a better place, and their hard work was being chipped away by the emails. Mr Hibbel described Mr Wegman as 'having the wind knocked out of him'. The other directors were also pretty upset, in particular Mr Eastwood, Mr Schereck and Mr Hepner. Mr Hibbel said they were all 'somewhat crestfallen' that their integrity was being questioned.
240 Mr Hibbel said the publications absolutely impacted their reputations. Members were wondering what was going on, and while many of those who knew the directors doubted the allegations were true, nonetheless 'questions were being asked'. He also saw the allegations being raised on the Australian Hunting forum.
241 In Wilson v Bauer Media,[45] I summarised the principles governing aggravated damages in these terms:
Where the conduct of the defendant has increased the injury suffered by the plaintiff, a court may award aggravated damages.
Circumstances of aggravation can be found in the defendant's conduct from the commission of the tort up until the day of judgment. The inquiry is whether the harm suffered by the plaintiff was aggravated by the manner in which the act was done or by the publisher's conduct thereafter. The focus of the inquiry is on the subjective experience of the plaintiff.
The defendant's aggravating conduct may be found in the circumstances of publication where, for example, the defendant increased the harm suffered by the plaintiff by intentionally or recklessly inflicted damage on the plaintiff's reputation, by repeating the offending allegations, or where the defendant failed to investigate the defamatory allegations before publishing them. Acts of publication in retaliation or reprisal against the plaintiff may aggravate the harm. Evidence which establishes malice will also generally support a claim for aggravated damages, but only to the extent that the malice affects the harm sustained by the plaintiff.
Aggravating conduct may occur after publication and prior to proceedings being commenced where, for example there was a failure to publish a retraction or an apology that amounts to a continuing assertion of the defamatory imputations.
Damages may also be aggravated after the proceeding is commenced where the defendant's conduct, either prior to or during the trial, has been calculated to deter the plaintiff from proceeding, or where a defence of justification has been pleaded with reckless indifference as to its relevance, provided in all cases that the defendant's conduct increased the harm suffered by the plaintiff. In the conduct of proceedings, the defendant's conduct must have been lacking in bona fides, unjustifiable or improper. Legitimate defence of a proceeding is not a circumstances of aggravation.
242 The plaintiffs claimed that each of the emails was published in circumstances entitling them to aggravated damages, being that the defendant at the time of publication increased the harm suffered by the plaintiff by:
(a) publishing the emails maliciously for the improper purpose of injuring the plaintiffs' reputations, as discussed above;
(b) publishing the emails anonymously; and
(c) publishing the eighth and ninth publications specifically about the conduct of the trial of this proceeding.
243 Considering firstly the claim in a collective sense, I am satisfied that the first two grounds for aggravation claimed did increase the harm suffered by the plaintiffs, but I do not accept that the third ground was made out. As to the first two grounds, the anonymity of the author of the emails denied the plaintiffs the fair opportunity to respond promptly and minimise reputational damage. The defendant intended to deter the plaintiffs from seeking any remedy against him and to set barriers in the way of their attempt to do so. That the defendant was acting with impunity because of his anonymity was established by the increase in the intensity of his attacks on the plaintiffs across the totality of the publications and from the deleted material recovered from his computer. The use of website names closely resembling the name of the SSAAV's magazine caused confusion that rendered more comprehensive both the reputational damage for all plaintiffs and the injury to feelings particularly felt by some plaintiffs. That said, the impact of the aggravation was not uniform and I have considered the individual circumstances of each plaintiff, discussed above, when assessing the extent to which aggravation in the circumstances of publication should affect the quantum of a damages award.
244 Although the circumstances of publication aggravated the damage of certain of the plaintiffs and accordingly the statutory cap on damages for non-economic loss imposed by s 35(1) of the Defamation Act 2005 is not applicable to an award of general damages,[46] all things considered, and particularly the scale of publication, this case does not warrant an assessment of the damages to be awarded to any plaintiff that would exceed the cap.
245 The conduct relied on by the plaintiff as aggravating conduct since the commencement of the proceeding was that the defendant:
(a) deceived the court and the plaintiffs by his false denial on oath that he was the publisher of the emails until after the close of the plaintiffs' case;
(b) proffered a statement to the plaintiffs for their consent (which was obtained) that it be tendered as the information that Mr Erkens-Goss could give in response to a subpoena when that statement was false and the product of agreement between the defendant and Mr Erkens-Goss knowing of its falsity;
(c) had no genuine belief in the truth of the imputations conveyed by the emails;
(d) had continued to press truth defences in circumstances where on the particulars pleaded the defences rationally had no prospect of meeting the sting of the defamatory publications;
(e) refused to apologise to the plaintiffs, in circumstances where, at the start of the trial, the plaintiffs openly offered to accept an apology and an undertaking not to repeat the defamatory conduct without the payment of any monies to resolve the proceeding. The defendant rejected that offer so that he could take up the court's time running hopeless truth defences.
246 The continued maintenance of the lie that the defendant was not the publisher and the façade that the imputations were substantially true not only maintained the opportunity for ongoing reputational damage but was clearly quite hurtful for individual plaintiffs.
247 It was clear during the trial the defendant's deception of the court and the plaintiffs was increasing the harm that the plaintiffs were suffering and was calculated by the defendant to have that effect. For example, on 18 December 2017 the defendant wrote to Mr Erkens-Goss - in response to his enquiry whether the defendant was asking him to lie - 'they have been lying all the time, so even though it may seem reprehensible, we may have to a bit of that as well... for arguments sake, we don't know each other. How would they prove we do? I told no one, ever! We will beat the bastards, that's what they are'. It cannot be, and was not, contended that the manner in which the defendant lied to and deceived the court was a legitimate form of defence of the proceeding. It was plainly malicious, unjustifiable conduct that must be viewed as significant aggravating conduct.
248 Likewise, the defendant's conduct, fully described earlier, in persuading the plaintiffs not to call evidence from Mr Erkens-Goss by calling on the subpoena was malicious, unjustifiable and improper conduct on his part that cannot be characterised as legitimate defence of the proceeding. I am satisfied that the defendant either intended to, or was recklessly indifferent to the way in which his conduct during the trial, increased the harm that was suffered by the plaintiffs.
249 The defendant displayed supreme, but entirely misplaced, confidence when he refused the plaintiffs' offer to accept an apology and an undertaking not to repeat the conduct to resolve the proceeding. The defendant's brazen gamble was breathtaking. The defendant made a conscious decision to maintain his lies before the court, presumably in the expectation expressed in his communications with Mr Erkens-Goss that he could get away with it. Again, I am satisfied that the defendant either intended, or was recklessly indifferent to the manner in which his pursuit of justification defences that had no prospect of success increased the harm suffered by the plaintiffs.
250 I expressed at the outset of the trial my preliminary view, noted above, that the plaintiffs' particulars, which would confine the admissibility of evidence, did not appear to meet the sting of the imputations alleged by the plaintiffs. Yet the defendant pressed on and subjected the plaintiffs to his false assertions that his view of events justified the conclusion that they were dishonest and deceptive. Ultimately, the events in court would reveal that it was the defendant who had been dishonest and deceptive and notwithstanding his protestations to the contrary, I do not accept that he had any genuine belief that the plaintiffs were dishonest, had engaged in acts of deception, or that Mr Wegman was guilty of improper conduct.
251 Rather, I am satisfied that the defendant was vindictive. The reasons for his vindictiveness were not entirely clear although there were some indicators in the evidence of the defendant's involvement in long standing disputes, particularly with other members of the board at earlier times such as his dispute with Dean Mighell and the latter's complaint to the Board that was the origin of the Holdsworth letter in 2013. It is unnecessary to comment any further on this aspect of relations between the defendant and the SSAAV.
252 As is the case with the circumstances of aggravation in publication, the impact of that aggravation was not uniform on each of the plaintiffs and I have considered the individual circumstances of each plaintiff in assessing damages.
253 The plaintiff referred to a number of recent assessments of damages for defamation in Victoria as a guide to the relevant range of damages in this proceeding.[47] As Hayne J observed in Rogers v Nationwide News Pty Ltd there is limited utility in having regard to comparable damages awards in other cases.[48] It is necessary that the amount awarded for defamation should reflect the effect which the particular defamation had on the individual plaintiff.
254 The damages awarded to each individual plaintiff needs to be in a sum that properly vindicates the plaintiff, adequately compensates him for the injury to his feelings and compensates him for the damage to his reputation. I have taken into account the circumstances of aggravation discussed above in making the following assessments.
255 Taking all relevant considerations into account, I assess the damages, including aggravated damages, the defendant must pay to Denis Moroney, Gregory Moon, David Schereck, Ross Farmer, and Geoffrey Kuyken in the sum of $75,000 each. I assess the damages the defendant must pay to Lance Eastwood in the sum of $80,000 and the damages to be paid to Andrew Hepner and Luke Silverback in the sum of $90,000 each.
256 I am satisfied that the defamation of his character and significant hurt suffered by Mr Wegman has seriously affected him. As the defendant concentrated his attack on the plaintiffs over the course of the publications, undoubtedly emboldened by the success of his anonymity, later emails specifically identified Mr Wegman and he bore the brunt of the defendant's attack. I assess that a significantly greater sum is needed to vindicate his reputation, and compensate him for the aggravated damage to his reputation and injury to his feelings. I assess his damages in the sum of $175,000.
257 The plaintiffs also seek to restrain the defendant from publishing further defamatory material of or concerning them. The traditional view of the common law was that damages were an adequate remedy. The cases show that an injunction in defamation proceedings may be appropriate in exceptional circumstances, such as where:
(a) a defendant's persistence in making repeated defamatory publications has 'the flavour of a vendetta' against the plaintiffs;[49]
(b) it is likely a defendant will in future publish similar allegations 'despite having been afforded an opportunity to defend those allegations and despite those allegations having been found by a court of competent jurisdiction to be unwarranted',[50] perhaps because of 'an irrational view of the truth of the allegations he makes';[51]
(c) a defendant has revealed 'a disinclination to conform to anticipated findings of the court which may verge on disrespect for legal process';[52] and/or
(d) the vehemence of the language used by a defendant indicates they will continue to defame the plaintiffs unless restrained from doing so.
258 As in Higgins v Sinclair,[53] in this case:
(a) the defendant persisted in publishing defamatory material despite the currency of these proceedings;[54]
(b) the defendant has published the defamatory material anonymously, giving rise to a fear that future publications by the defendant may also be surreptitious; and
(c) the defendant's conduct at trial evidenced a real prospect that he may communicate anonymously by email in the future concerning his opinions about the conduct of Board members. He may well be impecunious so that any damages award may not deter him.
259 Exceptional circumstances are present and I will order that the defendant be restrained, by himself, his servants or agents, from publishing or causing to be published by any means whatsoever any material of and concerning the plaintiffs or any of them conveying imputations substantially to the same effect as the defamatory emails that were the subject of this proceeding.
260 Should the defendant in future consider himself legitimately entitled to publish material that may breach such an order, he may seek permission from the Court to do so.
261 Subject to any further submission that the defendant may wish to put, I will further order that the defendant pay the plaintiffs' costs of the proceeding to be assessed on an indemnity basis. Such order would be made under s 40 of the Defamation Act 2005 having regard to the way in which the defendant conducted the case and, in particular, the defendant's unreasonable refusal to accept the plaintiffs' open offer to resolve the proceeding that I have already discussed.
262 Finally, I direct the Prothonotary to send to the Solicitor for Public Prosecutions a copy of the judgment in this proceeding, my reasons for judgment, the transcript of the trial and a copy of the exhibits in order that the Director might consider, and act on, whether the defendant and Mr Erkens-Goss have committed offences in the conduct of the proceeding.
[1] The ninth plaintiff, Mr Robert Lemm, also a director of the SSAAV at the relevant times was removed as a plaintiff at an early stage of the proceeding.
[2] [2011] HCA 11; (2011) 243 CLR 361 ('Khul').
[3] Ibid 384 [62] (Heydon, Crennan and Bell JJ).
[4] [2015] VSCA 137; (2015) 49 VR 402 ('Chong').
[7] Ibid 454 [181]; Li v Herald & Weekly Times [2007] VSC 109; (2007) Aust Torts Rep 81-887.
[8] [2011] HCA 11; (2011) 243 CLR 361, 385 [64].
[9] [2015] VSCA 137; (2015) 49 VR 402, 455-456 [184].
[11] Ibid 530 [21] (emphasis in original).
[12] [1980] 2 NSWLR 380, 385-386 [21]-[22] (citations omitted).
[13] [2009] VSC 145; (2009) 23 VR 182, 186-187 [11].
[15] (2018) 356 ALR 178, 185-186 [31]-[32].
[16] Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1, 58-59 [284] (Gillard AJA).
[17] Sim v Stretch (1936) 52 TLR 669.
[18] Parmiter v Coupland [1840] EngR 168; (1840) 6 M & W 105.
[19] [2003] VSCA 161; (2003) 9 VR 1, 63 [306] (citations omitted) (Winneke P and Warren AJA agreeing); followed in Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157, 169 [47].
[20] Defamation Act 2005, s 30(2) and (3).
[21] [2011] HCA 30; (2011) 243 CLR 298, 305 [11] - [12].
[22] Compare Shandil v Sharma [2010] NSWDC 273, [33]-[35]; Sharma v Shandil [2011] NSWCA 155.
[23] [2004] HCA 5; (2014) 218 CLR 366, 387-388 [58].
[25] He engaged counsel to make oral final submissions.
[26] [2012] HCA 53; (2012) 249 CLR 534, 551 [38] (citation omitted).
[27] [2011] VSC 574 [96] (citations omitted).
[28] Wilson v Bauer Media [2017] VSC 521 [59].
[32] Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, 61 (Mason CJ, Deane, Dawson and Gaudron JJ).
[33] Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176, 194 (Mahoney A-CJ).
[35] Belbin v Lower Murray Urban & Rural Water Corporation [2012] VSC 535, [217] (Kaye J).
[36] Ley v Hamilton (1935) 153 LT 384, 386 (Lord Atkin).
[37] Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176, 194-5 (Mahoney ACJ).
[38] Belbin v Lower Murray Urban & Rural Water Corporation [2012] VSC 535, [242] (Kaye J).
[39] Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, 71 (Brennan J).
[44] Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027, 1085 (Lord Reid).
[45] [2017] VSC 521 [84] - [88] (citations omitted). This summary of principle was not disturbed on appeal, see Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154 [69].
[46] Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154 [248].
[47] Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535; Jeffrey v Giles [2015] VSCA 70; Dods v McDonald [2017] VSCA 129. To those references might be added Sheales v The Age [2017] VSC 380.
[48] [2003] HCA 52; (2003) 216 CLR 327, 350 [69].
[49] RSPCA v Davies [2011] NSWSC 1445 [67]-[77]; Graham v Powell (No 4) [2014] NSWSC 1319 [45].
[51] Higgins v Sinclair [2011] NSWSC 163 [246].
Moroney
Zegers [2018] VSC 446
(2011) 243 CLR 361
(2015) 49 VR 402
(2012) 84 NSWLR 523
(2009) 23 VR 182
(2000) 1 VR 667
(2018) 356 ALR 178
(2003) 9 VR 1
(2011) 81 NSWLR 157
(2011) 243 CLR 298
(2014) 218 CLR 366
(2012) 249 CLR 534
(1993) 178 CLR 44
(1991) 172 CLR 211
(2003) 216 CLR 327
(2015) 237 FCR 33
(1996) 41 NSWLR 176
(2001) 208 CLR 388
(2014) 43 VR 392
(1951) 82 CLR 497
(2014) 43 VR 348