Plaintiff v Defendant

1 Both Mr Peter Yunghanns ('PY')[1] and Mr Nicholas Colquhoun-Denvers ('NC-D') have been enthusiastic participants in the sport of polo for many years. Both occupied senior positions in the Federation of International Polo ('FIP'), the international federation that represents the sport of polo. In 2012, PY was a member of the Executive Committee ('EC') of FIP. NC-D was also then a member of the EC, and became the president-elect of FIP. In 2014, he became president of FIP and retains that position.

2 Over time, acrimony developed between PY and certain members of FIP - most notably, Dr Richard Caleel ('RC'), NC-D's immediate predecessor as FIP president. The disagreement initially concerned differing views as to the proper administrative processes for FIP's affairs. PY became frustrated at what he perceived to be a lack of leadership and corporate governance at FIP. The use of deprecatory language, very often overlaid with sarcasm or frank abuse, characterised his correspondence.

3 Towards the end of 2012, through 2013 and 2014, and into 2015, this correspondence continued. It was largely one-sided. PY had been a significant benefactor to the sport of polo. He had been much respected for his business acumen and generosity towards the sport; nevertheless, he became a highly critical foe of RC and the FIP administration. In December 2014, NC-D inherited the FIP presidency from RC.

4 On 3 November 2015 and 30 December 2015, NC-D made statements in emails that PY claimed were defamatory of him. Broadly, PY claimed NC-D, as president of FIP, made statements which imputed that PY made false allegations, acted to undermine FIP sponsorships, was dishonest and irresponsible, and was guilty of sufficient misconduct to warrant him being declared persona non grata.

5 NC-D admitted that these emails contain defamatory imputations and raised the following defences:

(a) statutory defence of justification under s 25 of the Defamation Act 2005 (Vic) ('the Act') and the common law defence of truth;

(b) statutory defence of qualified privilege under s 30 of the Act and the common law defence of qualified privilege; and

(c) statutory defence of triviality.[2]

6 In a counterclaim, NC-D alleged he was defamed by PY in three emails published on 6 November 2015, 22 December 2015 and 30 May 2016. NC-D claimed that various statements made in the first two emails carried the broad meanings that he failed to account for US$600,000 that was provided to FIP, engaged in gross financial mismanagement, may have made improper use of the US$600,000, and engaged in fiduciary mismanagement, including perhaps applying funds held by FIP to an improper purpose. The final email is said to repeat these broad allegations and to further allege that NC-D approved reports knowing them to be false, and engaged in duplicitous and misleading behaviour.

7 PY denied that any of the impugned statements carry defamatory imputations and raised the following defences:

(a) statutory defence of justification[3] and the common law defence of truth;

(b) statutory defence of qualified privilege[4] and the common law defence of qualified privilege; and

(c) honest opinion.[5]

PY further submitted that the counterclaim is without merit and no more than a strategic legal contrivance.

8 Thus, five emails generated between 3 November 2015 and 30 May 2016 are alleged to be defamatory. I shall reproduce these emails in chronological order below.[6]

9 On 3 November 2015, NC-D composed the following email:

Dear FIP Members and friends,

For some time now, as many of you will be aware, a former member of FIP's Executive Committee, Mr. Peter Yunghanns, has been making spurious accusations directed against the administration of FIP and its officers. We deeply regret Mr. Yunghanns's behaviour in light of his past contributions to FIP and for that reason we have, up until now, tried our best to preserve the confidentiality of the sanctions passed against Mr. Yunghanns on grounds of misconduct by FIP's Council of Administration ion in 2013 and 2014.

Unfortunately, despite our best intentions, it is no longer possible to maintain silence about this matter as Mr. Yunghanns has now extended his attacks upon FIP to individuals outside of the Federation including our major Chinese sponsor. As such, Mr. Yunghanns's behaviour is threatening to disrupt the good work done by FIP, its administration and officers and risks alienating our major sponsors.

Accordingly, we feel obliged to inform you of the following facts.

1. FIP's Council of Administration during its annual meeting in December 2013, in the presence of and with the approval of Past Presidents Marcos Uranga, Glen Holden and Eduardo Huergo - unanimously passed the following resolution:

"Vote of Confidence to Support President Caleel.

It is hereby stated that multiple accusations have been brought against the administration and our president by Mr. Peter Yunghanns and that those accusations have been brought before the Executive Committee and have been reviewed and fully investigated and have been found without merit. The council of administration hereby moves that Dr. Caleel and the administration have acted properly and has the unanimous support of the Council of Administration.

The Council of Administration moves that if Mr. Peter Yunghanns continues to make unfounded accusations or if perceived (by FIP) slanderous remarks of the Leadership of FIP that a request be forwarded to the Australian Federation that he be removed as their delegate."

1. Despite this, Mr. Yunghanns continued making spurious accusations against FIP and its officers, as a result of which the Australian Polo Federation decided to change its representation in the FIP General Assembly from Mr. Yunghanns to an alternative representative.
2. In view of this and Mr. Yunghann's continued accusations, FIP's Council of Administration during its meeting in December 2014, unanimously passed the following resolutions, again, in the presence of and with the approval of the Past Presidents:

"Discipline Discussion - Mr. Peter Yunghanns. Allegations against FIP, Administration, lobbying against FIP officials, degrading letters to our major sponsors result in following motion: Motion to Declare PY "persona non grata" and to inform him that he is not welcome at FIP meetings or events.

Motion that any Ambassadorial position held by PY be revoked."

This year Mr. Yunghanns, despite no longer being a recognised member of either the Australian Polo Federation or the Federation of International Polo, has not only continued to make serious, unfounded accusations but has added accusations of financial mismanagement concerning a so-called "Polo Development Fund". Mr. Yunghanns alleged that there was an agreement to establish a US$600,000 "Polo Development Fund" and that the FIP has failed to properly account for the same. As with Mr. Yunghanns past allegations that the current administration have thoroughly investigated these claims against FIP and/or its Officers and found no merit in the accusations. Please see the attached letter from Eduardo Huergo.

It is therefore with regret that the gravity of Mr. Yunghanns's latest accusation forces us to make this public communication in order to preserve FIP's and its Officers' reputation and good name, as well as to protect FIP and its members against the negative effects that Mr. Yunghanns's false accusation may have on our organisation and sponsors.

We express our sincere hope that these unfounded accusations will stop, and that FIP and all those who work so hard to make it a success will be able to concentrate on the work at hand to the benefit of FIP's members and the polo playing community around the world.

Sincerely,

President

Nicholas Colquhuon-Denvers

Executive Committee

Albert Marina

John Wright

Richard Caleel

Piero Dillier

Francois Berger

10 On 6 November 2015, in response to the 3 November email, PY wrote:

Dear Nicholas

Thank you for at last, sending the members a specious and revealing letter detailing your feigned, tongue in cheek concern for confidentiality and using this as an excuse for not acting earlier. You should have placed these matters before the members as they occurred and not wait until your back is against the wall.

As you've said before, good and timely communications are important. I may counsel you to practice what you preach. Another important aspect of communications is factual accuracy.

Let me first deal with the Polo Development Fund. For the benefit of all members and for the enlightenment of Officials, I outline the facts regarding the dealing with the Metropolitan Polo Club and the Goldin Group and the sponsorship agreements, which over a 4 year period resulted in over USV$8,000,000 being paid into the polo community.

In mid-2011, Eduardo Huergo and I had a meeting in Tianjin with the Chairman and Executives of Goldin Properties, and discussed the possibility of FIP organising the proposed Snow Polo event to take place in January 2012. Thereafter negotiations were conducted by Asad Jumabhoy and myself on behalf of FIP and resulted in a one year contract being entered into in respect of the 2012 Snow Polo.

Of the sponsorship monies for this event, more than USD$2,000,000 was paid into the polo community, of which USD$500,000 plus expenses were paid to FIP.

This event was considered by the Sponsors to have been a great success and discussions then commenced regarding the possibility of a three year contract being entered into. These negotiations which took place over a period of time and were carried out by Asad and myself on behalf of FIP.

During the course of the negotiations, the Sponsors indicated that they considered the fee of USD$500,000 was somewhat excessive in respect of the work undertaken by FIP, particularly as all expenses incurred by FIP were paid in addition to the fee. In effect the fee was a clear profit.

This was not an unreasonable attitude, particularly if viewed on the principal of quantum meruit.

The Sponsors wished to continue with FIP and the development of polo in Zone D, therefore it was agreed with the Sponsors by Asad Jumabhoy and myself that they would still pay USD$500,000 of which USD$200,000 was to be applied to a Polo Development Fund and the balance of USD$300,000 for FIP's general purposes. One of the principal uses of the balance was to be to pay the salary of a Chief Executive. This verbal agreement was clearly understood by the Executive during negotiations and prior to entering into the 3 year agreement.

Eduardo's letter, upon which you rely on Nicholas, is written in his normal diplomatic manner and implies that there was no written agreement regarding the fund, although there is significant documentary evidence of the fund's existence which supports the verbal agreement.

Nicholas it may come as a surprise to you, to know that in law, a verbal agreement is equally binding on the parties as a written agreement. There are a few exceptions under English law, such as the purchase of land or long-term lease which must be reduced to writing.

Nicholas, there is also an English expression which hopefully you understand and abide by, namely that 'my word is my bond'. A handshake can be as effective as reams of written words. The effectiveness of the handshake depends on the integrity and trust of the individuals involved.

As far as I am concerned, Asad and I shook hands with the Sponsors on this deal after considerable negotiation and discussion, and advised the Executive accordingly. I consider that a USD$200,000 per annum Polo Development Fund was an extremely worthwhile benefit for FIP to have, to enable it to develop polo, in particular Zone D.

If you believe my mental condition, which both you and the verbose Alberto consider to be impaired and maybe to some extent amnesic, there are other parties you can refer to, as to the veracity of my statements regarding the existence of the fund. Why don't you contact the Sponsors and you should certainly talk to Asad.

Question - All members are entitled to know how the USD$600,000 FIP was received has been applied and the purpose for which it has been applied and what remains thereof. Maybe a source and application of funds statements should be available to members. Let's see if you can do a mental somersault and turn this question into a spurious accusation.

Spurious Accusations

You may now realise that to fail to give any response implies confirmation of the veracity of statements made. You state they I have made spurious accusations against the Administration of FIP and its Officers. One definition of Spurious in the Oxford English Dictionary is 'not true or genuine'.

I have set out a few examples (there are many more) of the statements I have made or questions I have asked regarding FIP's incompetent and inept administration to which no answers have been received.

In December 2012, FIP agreed to open a bank account with an international bank. 12months later it had not done so. What say you, Nicholas?

FIP failed to take control of its bank account for over 9 months from December 2012. What say you, Nicholas?

FIP's failing to take control of its bank account resulted in FIP being unable to meet its financial obligations when it fell due. What say you, Nicholas?

At an Executive Committee meeting in Tianjin, Richard and Nicholas with the encouragement of Alex Taylor, Chairman of the CEO selection committee appointed Alex Taylor, who was unemployed as CEO without any due process whatsoever. Upon complaints being received, they decided he would become interim CEO. Whether interim or permanent, no due process of any sort was undertaken. What say you, Nicholas?

It was agreed in December 2012, that a procedure for the election of B&C country members to the Council of Administration was totally inadequate. Nothing despite repeated requests has been done and as a result, Derek Wolsternholme was elected to the Council of Administration without holding any position in any member country. This shambolic situation still exists. This is gross incompetence and an insult to B&C countries. What say you, Nicholas?

The above are not spurious accusations, they are statements or questions to which all members are entitled to an answer.

Nicholas, you state that I have made over a period of 3 years, spurious accusations against FIP and its Officers. To enable the members to understand the mental process, whereby you are able to make this statement, would you please set out at least 6 of these spurious accusations, or more if you wish, which you claim I have made. The members are clearly entitled to know the basis you have for making this non-specific generalisation on numerous occasions.

Nicholas, open your mouth and let the members hear you. I am in the ring and have my jaw stuck out. See if you can land a devastating and telling blow.

Nicholas, I am sorry to cause you so much work, but please for the benefit of all members, kindly produce documentary evidence that supports and enables you to make the statement that I have attacked "our major Chinese sponsor".

If you can't produce documentary evidence, you should (sic) the graciousness to withdraw your statement and to apologise to the members for misleading them and making knowingly untruthful remarks, presumably designed to denigrate me. Why would you do that to a person who is has been declared P.N.G. by the pugnacious Alberto.

I have asked a number of questions regarding FIP's finances to which all members are entitled to a response. Nicholas, a question about financial matters even with the best gymnastic skills in the world cannot be contorted into a spurious accusation. For instance how much money does FIP owe its member countries as a result of competitions which FIP organised up to 9 months ago? This is not a spurious accusation. Can the members have an answer.

How much money did FIP make or lose on the World Cup in Chile? This also is not a spurious accusation. You and the Chairman of the Finance Committee may well wish it were.

Let's now here (sic) from the Chairman of the Finance Committee who by his own proclamation has "no fear and could fight really hard". Let's hope his ability to fight hard is not deployed to avoid reality. Can the members have an answer. By any standard of good communication, this significant financial results should have been advised to the members much earlier.

A few other factual comments, which with your mental gymnastics you may be able to morph them into spurious accusations. Let me make them and see how you go.

The Executive Committee reviewing itself and finding itself blameless is of course a nonsense. Did they prepare a report, to whom was it given, it should have been given to all members so they could have the benefit of the wisdom of the Executive Committee.

What did the Executive Committee say regarding its failure to control the organisations bank account and thereby failed FIP in its ability to meet its financial obligations and what did it say about its failure to provide any form of due process regarding the appointment whether permanent or interim of a CEO.

Another small point Nicholas, the motion revoking any ambassadorial position held by me be revoked is completely ineffective since I held no ambassadorial position under the Bylaws. I was appointed a Founding Ambassador under the hand of the Founder and I believe the only person so appointed. This was a grace and favour gesture not recognised under the Bylaws and in my view only the Founder can revoke this appointment. It is a pity, and time consuming that one has to continually deal with incompetents who have no understanding of practice, procedure or the provision of the bylaws. The ability to penetrate the cranial carapace appears to be beyond my ability.

Please as a matter of urgency, advise all members of at least 6 of the spurious accusations I have made against the Administration of FIP and the incompetence of its Officers and also set out your reasons for coming to this conclusion.

Regarding the Polo Development Fund, as far as I am concerned there was an agreed deal in respect of the establishment and a general understanding of the purpose for which it would be used. If my belief is incorrect and Asad Jumabhoy and the Sponsors, tell me it is incorrect, then maybe you and Alberto have correctly diagnosed that my mental condition is failing to the extent that I am hallucinating and my ability to recall facts is greatly diminished.

Please give these requests your urgent attention as I'm sure the members would like to be fully informed prior to the General Assembly.

All the best

Peter Yunghanns

11 On 22 December 2015, PY composed the following email:

POLO DEVELOPMENT FUND

I have set out previously the negotiations that took place over many months that resulted in the signing of the 3 year agreement in December 2012.

The then President's first newsletter in 2013 he says "the PDF fund is the result of a generous contribution by FIP Vice President Mr. Pan Sutong".

The FIP website headed Polo Development Fund it says "Global Polo Development ("GPDF") was founded in 2013 by FIP Vice President and Ambassador Mr. Pan Sutong with a generous contribution to the FIP as seed money and for the investment returns thereon to provide sustainable resources for the long-term development of polo worldwide".

The Chief Executive has referred to the Pan Sutong Fund in emails.

I enclose an email from Asad to Eduardo Heurgo and myself which is self-explanatory. How did all these parties who have referred to Polo Development Fund know of the existence of this fund since none of them had any involvement in the negotiations with Mr Pan, or his executives regarding the agreements, the sponsorship and the application then?

I also have sighted an email dated 7 August 2012 from an Executive of Metropolitan which states "inter alia in line with the three year snow polo arrangement, on condition that it is agreed Mr Pan is agreeable to fund $200,000 per year towards the proposed endowment fund for the first 3 years".

Question - How did all the parties who have referred to the Polo Development Fund know of its existence since none of them had any involvement in the negotiations with Mr Pan or his Executives?

Answer - these parties knew of the Polo Development Fund because in the course of our negotiations and at our meeting with the members of the Executive Committee in December 2012, Asad and I told the members of the agreement we had made with Mr Pan as to the allocation of the sponsorship money of which $200,000 per annum was to go to the Polo Development Fund.

Everyone agrees the fund exists. Are we merely arguing about the quantum?

There is a binding agreement between the donor and done as to its application of the sponsorship funds.

Given the above documentary confirmation of the existence of the fund, Nicholas again demonstrated his remarkable mental gymnastic ability and being supple and malleable turns my statement about the fund into a spurious accusation and unfounded allegation. Nicholas, can you explain your logic?

FAILURE TO ADMINSTER THE FUND

FAILURE TO FULFILL FIDUCIARY DUTIES

I say the polo development fund has not been administered or it has been improperly administered for the following reasons.

During the 3 years of the Fund's existence, the members have never been given any factual or substantial information about the fund.

The amount of the fund has never been disclosed to members, although FIP acknowledges its existence in 2013.

The interest earned on the funds as disclosed in the FIP website has never been disclosed in the accounts to the members.

The fund has never been included in the accounts of the federation.

No information on the disbursement on the fund over the 3 years has never been provided to the members.

No report has been given to the sponsor as to the administration of the fund.

Nicholas, the above 6 points are self-evident facts. Explain to the members your magical mental logic which enables you to with all the skill of a David Copperfield morph these facts into spurious accusations and unfounded allegations. What type of communication would you describe this? Something towards progress?

The collegiate goodwill that exists between the Executive Committee and the Council of Administration and the large bucket of white wash they keep handy, enables them not to answer questions and to find themselves blameless and all questions based on fact or documentary evidence become spurious accusations and unfounded allegations.

This is a farcical performance worthy of a Gilbert and Sullivan operetta, and whilst relaxing I shall write further on this subject for your consideration, possibly in the New Year.

All the best

Peter

12 On 30 December 2015, NC-D responded with the following email:

Dear Members,

It is extremely regrettable that the significant progress and improvements achieved over the past three years in the administrative management of FIP is being continually overshadowed by an ongoing persona campaign of half-truths and innuendo by a former member of the FIP Executive Committee. Mr. Peter Yunghanns has not been a member of the Executive Committee since April 2013 and as a result, he has had only a limited access to information about FIP's current situation, much of this second-hand, and as such he is totally misinformed. Whilst the Executive Committee have addressed all the various issues he has raised with both the Council of Administration and all those Members attending this year's General Assembly in Buenos Aires, there are many others on his wide distribution list that were not in attendance and therefore need to be updated to address his ongoing e-mail campaign.

In light of Mr. Yunghanns's continuing vindictive diatribes, all those attending the General Assembly in Buenos Aires earlier this month were specifically given the opportunity at the end of the meeting under "Any Other Business" to air their views on the subject. I, as FIP's President, and FIP's Executive Committee stated that they would remain as long as necessary at the meeting to answer any queries on the matters he has raised. However, not one single delegate opted to stay on to discuss the matter, indicating that FIP's delegates have little or no interest in the half-truths, insinuations in Mr. Yunghanns's e-mails.

Contrary to Mr. Yunghanns's allegations, FIP's Hon. Treasurer and CEO ensured that FIP's accounts were 100% correct at the time of presentation to the General Assembly. Indeed, although not mandatory, FIP's accounts have been audited by Uruguayan CPA Juan Alberto Piazza Bianco prior to presentation and approval by the General Assembly.

The particular objections raised by Mr. Yunghanns are, again, based on his being insufficiently informed, unfortunately, this has not prevented Mr. Yunghanns from continuing to make his unfounded accusations.

The fact is that although FIP was in possession of the "remittance advice" from its Chinese sponsor for the outstanding funds, at the time of the opening of the General Assembly these funds had not actually been physically credited into the FIP account. This was explained in detail and clarified to all those present at the General Assembly. All of this information was freely announced at the Council of Administration meeting the previous day as well as at the General Assembly. It was also clearly included in the notes attached to the annual accounts which were distributed to all attendees. A few days after the General Assembly, on the 14th December, the funds from our Chinese sponsor were indeed received and credited to the FIP account and any outstanding debts in this connection to our Member Nations are in the process of being discharged.

Although all those in both the current as well as the past administration take great personal exception to Mr. Yunghanns's accusations of incompetence, and his misleading and deceptive statements, FIP decided that responding directly would only exacerbate matters. FIP is confident that the officially recorded minutes of all FIP meetings held which are available for inspection by any of our Members, will reflect the due diligence with which the FIP is currently being administered.

Mr. Yunghann's continuing accusations, made after he was asked to step down from FIP's Executive Committee, have led in 2014 to both the Council of Administration and the past Presidents formally and unanimously declaring him "persona non grata". His regular e-mail assaults on the FIP Administration to all those unfortunate individuals on his wide distribution list (which include some of FIP's major sponsors) are not only extremely divisive to FIP's image both internally and externally and is wholly contrary to but also damaging to the ethos of the Federation.

We would urge any Member who is tired of his tedious and time consuming tirades to opt out by requesting to be removed from his mailing list and kindly copying in the FIP Office.

We attach here the minutes of the 2015 General Assembly and would take this opportunity to wish you a great 2016 polo season.

13 Finally, the email on 30 May 2016, composed by PY, is reproduced in full below:

The key to progress can be summed up in one word: 'Communications'!

Nicholas J.A. Colquhoun-Denvers ESQ. August 2015

POLO DEVELOPMENT FUND

In his first Newsletter the President in early 2013 stated "The PDF is a result of the generous contribution by FIP Vice President Pan Sutong".

THIS STATEMENT IS TRUE.

An earlier FIP website stated inter alia, that the "Global Polo Development Fund ("GPDF") was founded in 2013 by FIP Vice President and Ambassador Mr. Pan Sutong".

THIS STATEMENT IS TRUE.

The re-designed FIP website states inter alia, that the "Global Polo Development Fund ("GPDF") was founded in 2013 by FIP Executive Committee with a generous contribution of FIP Vice President and Ambassador Mr. Pan Sutong".

THIS STATEMENT IS FALSE.

The statement in the re-designed website is false, the statement in the original website is correct. Please explain to members how the Executive Committee founded the Fund when none of them had any involvement whatsoever in negotiating the agreement with Metropolitan Polo Club, Mr Pan and his Executives to obtain the money for the established of the Polo Development Fund. Was the change made to show how capable the Executive were in founding the Fund and therefore they would not need to make any report as to the amount of the fund and the interest earned thereon or the disbursement, or administration thereof?

My concern is that the fund may founder due to hubris unfortunately prevalent in some members of the Executive.

Despite repeated requests, the members have been given no information as to the amount of the fund, the interest earned thereon, its administration and disbursement therefrom. Nor have they been advised of the additional increments of the fund by way of further generous contributions by the FIP Vice President Pan Sutong.

Who was the person responsible for this "clever" alteration? Was it Alex Taylor, as he has previously produced a false report to the Council of Administration which you and your predecessor knew to be false and you were both advised by a member of the Executive Committee that the report was false? However, had the report relating to FIP's financial condition been truthful it would have, beyond doubt, demonstrated the complete commercial incompetence of the Chief Executive, your predecessor and yourself in failing to understand that the Executive of any organisation must control the bank account of that organisation and that 9 months after being instructed to open a bank account for FIP, with a major international bank, Alex Taylor had still been unable to carry out the onerous task of opening a bank account.

To avoid disclosing the abject commercial incompetence and ineptitude of yourself, your predecessor and the now Chief Executive, he produced a knowingly false report to the Council of Administration, approved by you and your predecessor.

Alex Taylor reported to the Council of Administration that FIP's financial condition of being unable to pay its creditors when due, was a result of my having closed the FIP bank account. I had transferred the funds two months prior to closing the account to a subsidiary account which had been promptly opened by a member of the Executive Committee because of Alex Taylor's inability to do so.

This transfer took some two months before closing the inoperative account. This inability to admit a mistake has continued to run through FIP's administration because it is clear that you, your predecessor and the Chief Executive have an unshakeable belief in your own infallibility and live in denial of the fact that you are capable of making an error. It may come as a surprise to you Nicholas, that if you make a mistake, the best thing to do it to admit it rather than endeavour to disguise it. As I have quoted Sir Walter Scott to you before "Oh what a tangled web we weave. When first we practise to deceive!"

This duplicitous behaviour was designed to mislead the members as to the real cause of FIP's financial condition and designed to protect you, your predecessor and the Chief Executive from disclosing your ineptitude, incompetence and complete lack of commercial common sense.

Let the members have some factual communications instead of regurgitating meaningless rhetoric, more appropriate to a rallying call at a political meeting.

Your refusal to respond or rebut factual statements indicate the statements are true, or you do not have the ability to produce facts to rebut them, so you seem to adopt the advice of Fred Legge III, a former polo player and American Agricultural attaché in Canberra some years ago who said "when in doubt, run in circles, yell and shout". Nicholas, don't get too giddy.

All the best

Peter Yunghanns

14 I shall set out the relevant legal principles. I shall then set out the background circumstances that I perceive to be relevant to the impugned emails. It will be necessary to set out in a little detail some of the events and correspondence that gave rise to the acrimony between the litigants. I will then turn to examine the merits of the claim and the counterclaim.

15 The law of defamation in Victoria is governed by the Act. An individual may sue in respect of anything published about him or her that is defamatory of that person. In order to succeed, the plaintiff needs to establish:

(a) the matter was published about the plaintiff to at least one other person; and

(b) the matter was defamatory of the plaintiff.

16 In order to determine whether the publication was defamatory of the plaintiff,[7] the affected party must prove:

(a) the publication bore one or more of the imputations (or permissible variants of them) alleged; and

(b) any of the imputations conveyed were defamatory of the affected party.

17 The imputations in the publication need not be exactly the same as the imputations proposed by the plaintiff. The imputations may be a permissible variant of those alleged by the plaintiff if they are not substantially different from and not more serious than the imputations proposed by the plaintiff.[8]

18 Whether the publication bore the alleged imputations is assessed by reference to a hypothetical, ordinary, reasonable reader.[9] The hypothetical, ordinary, reasonable reader:

(a) does not live in an ivory tower;

(b) can and does read between the lines, in the light of his or her general knowledge and experience of worldly affairs;

(c) is not avid for scandal;

(d) is neither unusually suspicious nor unusually naïve;

(e) is of fair, average intelligence; and

(f) engages in a degree of loose thinking and, as I have said, is understood to read between the lines.[10]

19 The test is not whether the ordinary, reasonable reader, knowing particular facts, would believe an allegation made about the plaintiff in the publication. Rather, the test is whether the ordinary, reasonable reader would have understood the publication to convey that meaning.[11]

20 As to whether the imputations were defamatory of the plaintiff, the test is whether the imputation has a tendency to lower the reputation of the plaintiff in the minds of ordinary decent members of the community, being reasonable people of ordinary intelligence, experience and education who bring to the question their general knowledge and experience of worldly affairs.[12] This question must be addressed in relation to each imputation the plaintiff establishes.

21 It is clear that the essence of a defamation action is disparagement or diminution of reputation, whether it be a personal, business or professional reputation.[13] Statements which do not have any capacity to diminish a claimant's reputation, such as 'mere insults' or 'vulgar abuse', are not defamatory.[14]

23 It is a defence to defamation if the imputations in the publication are established to be true. The publication is presumed to be false and untrue until the defendant proves otherwise.[15] The defence must be considered in relation to each defamatory imputation.

24 In order to make out the defence of truth, the defendant must prove that 'all of the stings of the defamatory matter relied upon by the plaintiff are substantially true'.[16] It is unnecessary to prove the substantial proof of every detail alleged in each imputation.[17] Immaterial or trivial details may be ignored if they do not alter the 'defamatory sting'.[18]

25 Section 25 of the Act relevantly states:

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.

26 Section 4 of the Act defines 'substantially true' as being 'true in substance or not materially different from the truth.' This requires the defendant to prove the truth of what is conveyed in the publication, 'save for immaterial or trivial details which in no way [alter] the defamatory sting.'[19]

27 The legal principles in relation to the statutory defence of justification substantially reflect the common law defence of truth. I shall consider together the merits of both of these defences.

28 In Barrow v Bolt,[20] I summarised the principles that apply to the defence of qualified privilege. The parties in this matter have accepted that summary as accurate. I reproduce it here (footnotes omitted):

[18] The defence of qualified privilege will be established if two pre-conditions are satisfied:

(a) The publication must be made in the performance of a legal, social or moral duty, or to protect an interest. In Horrocks v Lowe, Lord Diplock described the privilege as follows:

The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue.

(b) The publication must be made to persons who have a corresponding duty or interest in receiving same. The classic statement of this principle appears in Lord Atkinson's speech in Adam v Ward. An occasion of qualified privilege is 'an occasion where the person who makes a communication has an interest or duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. This reciprocity is essential'.

[19] The interest of those receiving the document must be legitimate. Their interest cannot be based in curiosity, news or gossip. It must be an interest of substance.

[20] Whether these pre-conditions are met must be determined objectively. The defamatory communication must be relevant to the privileged occasion, although this requirement has been interpreted broadly. The privilege will only be lost where the impugned statement is totally foreign or unconnected to the privileged occasion. Where the defamatory statement is a response to an attack on the conduct of the defendant that response will be privileged provided that it is connected to the theme of the attack, the credibility of the attack or the credibility of the person who made the attack.[21]

29 In Harbour Radio Limited v Trad,[22] the High Court considered the 'response to attack' limb of the defence of qualified privilege. Qualified privilege can be a defence to the publication of defamatory statements which may be false, if those statements warrant protection from an action in defamation because the occasion on which they are made demands that they be made freely absent the spectre of litigation. A successful defence of qualified privilege on a 'response to attack' basis relies on a defendant establishing:

(a) the existence of a duty or interest to reply to the attack;[23]

(b) there must be a sufficient connection between the subject matter of the attack and the defamatory response. A response must relate directly to the initial attack and cannot be made for an ulterior purpose other than the need for the defendant to vindicate himself or herself. The response may relate to the theme of the attack, the credibility of the attack or the credibility of the person who made the attack;[24] and

(c) the response must be made in good faith. That is, it must be made for the purpose of vindication.[25]

30 Section 30 of the Act relevantly provides:

(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that -

(a) the recipient has an interest or apparent interest in having information on some subject; and

(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.

(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.

(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account -

(a) the extent to which the matter published is of public interest; and

(b) the extent to which the matter published relates to the performance of the public functions or activities of the person; and

(c) the seriousness of any defamatory imputation carried by the matter published; and

(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and

(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and

(f) the nature of the business environment in which the defendant operates; and

(g) the sources of the information in the matter published and the integrity of those sources; and

(h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; and

(i) any other steps taken to verify the information in the matter published; and

(j) any other circumstances that the court considers relevant.

(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.

31 For the practical purposes of this case, the legal principles in relation to the statutory defence of qualified privilege reflect those of the common law defence.

32 The defence of qualified privilege is defeated by malice.[26] An occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement.[27] Express malice is 'any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff'.[28] The terms 'express' or 'actual' malice are used in contrast to the 'presumed or implied malice that at common law arises on proof of a false and defamatory statement'.[29]

33 The burden of proving malice rests with the plaintiff.[30] Proof of malice should not be confused with evidence of the defendant's 'ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest'.[31] Leaving aside 'knowledge of falsity', it must be established that 'the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication'.[32]

34 Proof of knowledge of falsity is generally 'conclusive evidence that the publication was actuated by an improper motive'[33] and thus is 'almost invariably conclusive evidence of malice'.[34] Knowledge of falsity is not to be confused with lack of belief in the truth. Lack of belief in the truth of an imputation, or reckless indifference as to the truth or falsity of the statement, is insufficient alone to establish malice, but may be considered with other evidence.[35] The exception is where the reckless indifference is so extreme, it amounts to wilful blindness.[36]

35 The defendant must use the occasion of qualified privilege honestly, but not necessarily carefully.[37] The defendant's failure or refusal to make inquiries, apologise or correct an untruth is not sufficient to prove malice.[38] Unlike qualified privilege, malice is determined subjectively.[39]

36 For malice to be proved, the plaintiff must show that the improper purpose actuating the publication was the 'dominant reason' for the publication.[40] 'Substantial' evidence[41] must 'definitely, and as a matter of common sense' demonstrate an improper purpose, 'which was really operative in the making of the statement'.[42] Any other approach would destroy the doctrine of qualified privilege.[43]

37 The defendant also pleaded the statutory defence of triviality under s 33 of the Act, but did not pursue that defence at trial.

38 The plaintiff, in his Amended Reply and Amended Defence to the Counterclaim, pleaded the defences of common law truth, statutory justification, common law and statutory qualified privilege, and statutory honest opinion (s 31 of the Act). Statutory honest opinion was also not pursued at trial.

39 The object of this part of these reasons is to provide a relatively short account of events leading up to the impugned statements. I shall endeavour to provide a context in which the various statements can be considered. I shall not set out every trivial interchange between PY and FIP personnel, however, I shall set out sufficient correspondence to provide a flavour of the acrimony that developed over time. I will examine some of the evidence more closely when dealing with specific aspects of the claim and counterclaim, and the defences that are made to those claims. It is impractical, however, to refer to every email and every exchange between PY and FIP personnel.

40 PY is now 80 years of age. At relevant times, he was in his mid-70s. He graduated from Melbourne University with Law and Commerce degrees in the early 1960s. He practised as a solicitor for a time, initially at Corr & Corr and then on his own account. He has concentrated on a successful business career for many years. Amongst other interests, he runs a large farm (13,000 acres) at Yaloak, just south of Ballan in Victoria. He acquired an interest in the sport of polo in the 1960s and, over time, that interest became his passion. The Yaloak farm has been developed into a centre of polo development. It houses the Yaloak Polo Club and Equestrian Centre. Currently, approximately 1,000 horses are stabled or agisted at Yaloak.

41 As a younger man, PY played polo around the country and internationally. He became involved in its local administration and also in the administration of the FIP, which was established in 1982. It has become the international governing body of the sport of polo.

42 Australia was a foundation member of FIP. By 2015, there were over 70 member countries divided into three categories. Category A (Argentina, United Kingdom and United States of America), Category B (countries, including Australia, with more than 100 registered polo players) and Category C (countries with fewer than 100 registered players). The national body in Australia is the Australian Polo Federation. FIP has a constitution and by-laws, however, it has remained a relatively small administrative body, run for most of its existence in the manner of a gentleman's club, with honorary appointees addressing its administrative needs around professional obligations to their 'day jobs'. FIP did not appoint a CEO until 2014, and even then it was initially on an interim basis.

43 The governing body of FIP is the General Assembly ('GA'), which usually meets annually in Buenos Aries. Each member country is entitled to a number of votes that corresponds to the number of registered players in that country. Sitting below the GA in FIP's administrative hierarchy is the Council of Administration ('C of A') and below that, the EC, who is responsible for FIP's day to day running. The EC is headed by whomever is the current president. The president is elected by the GA. The presidential term was for four years but has recently been halved.

44 NC-D and PY occupied senior roles in FIP. NC-D is now aged 70. He also is passionate about the sport of polo. An Australian by birth, he is a UK resident and is a past chairman of the Hurlingham Polo Association ('HPA'), the UK governing polo body. He commenced playing polo as a young man while serving in the British Army.

45 In 2008, as a consequence of his chairmanship of HPA, NC-D was invited to serve as one of several vice presidents of FIP. This was his first formal involvement with FIP. He got to know PY and it seems, initially, they got on quite well.

46 PY's involvement with FIP extended over a much longer period than NC-D's. From the 1980s until his summary removal from all FIP committees in 2014, he was very active and interested in promoting the sport. He was at times a member of the EC and FIP's Finance Committee ('FC'), as well as serving as FIP's treasurer. He attended, at his own expense, local and international FIP organised tournaments and international meetings of the EC and GA.

47 In November 2009, Mr James Ashton assumed the FIP presidency. The first apparent disagreement between NC-D and PY emerged shortly after this. At this stage, NC-D was a FIP vice president. PY was on the EC. NC-D believed that the president should spend more time in Europe than Asia. PY believed otherwise. PY gave evidence that at this stage he bore no animus towards NC-D, but he believed that FIP, including

NC-D, lacked the experience and skills properly to administer a quickly growing organisation.

48 In February 2010, PY accompanied Mr Ashton on his tour of Asian polo clubs and facilities. Tragically, Mr Ashton was killed during this trip whilst playing polo in Thailand. Mr Eduardo Huergo ('EH') agreed to act as president until the next GA meeting in December 2012.

49 In February 2011, PY and EH visited the Metropolitan Polo Club ('MPC') in Tianjin, China. They met with the president of that club, Mr Pan Sutong ('PS'). PS is associated with the Goldin group of companies ('Goldin'). The possibility of FIP organising a 'snow polo' event for the MPC was discussed. PY and another member of the EC, Mr Asad Jumabhoy ('AJ'), subsequently visited PS or his senior executives in Hong Kong and negotiated with them. These negotiations resulted in FIP and MPC contracting to put on a 'Snow Polo Tournament' in February 2012. MPC (underwritten by Goldin) agreed to pay FIP US$500,000 as an 'endorsement fee' for this event. It also agreed to pay US$1.6 million to the visiting teams for prize money and expenses. A controversial issue in these proceedings was a subsequent three year agreement relating to a series of Snow Polo Tournaments that allegedly required that $200,000 of the annual $500,000 endorsement fee be set aside by FIP into a 'Polo Development Fund' ('PDF').

50 In November 2015, PY queried FIP's accounting treatment of these monies. NC-D said this (and other PY allegations) were spurious. PY claimed he was defamed by this. NC-D said that the truth was that, whilst there may well have been discussions about allocating $200,000 per annum towards the PDF, this proposal never crystallised into a binding agreement between FIP and MPC/Goldin. This, NC-D submitted, was evident in two Heads of Agreement signed in 2012 where no mention is made of the PDF. PY submitted that there was a clear document trail that evinces what was an oral 'side agreement'. I shall consider these issues in some detail later in these reasons.

51 These Heads of Agreement were signed initially on 4 October 2012 and then, in slightly modified form, in December 2012. They related to arrangements for a Snow Polo World Cup in 2013 and an agreement in principle that MPC/Goldin engage FIP to administer at least one major polo event per calendar year. The 'endorsement fee' of $500,000 appeared to be split in two equal halves, the second of which was payable when PS was elected to vice president level of FIP in December 2012.

52 This dispute about the PDF did not emerge until 2015. Much earlier, another dispute arose within FIP about the appointment of RC as president of FIP and NC-D as his president-elect. In April 2012, an EC meeting and then a C of A meeting were held in Palm Beach, Florida. PY attended the EC meeting. At that meeting, it was determined that two 'outstanding' candidates ought be considered as replacements for the incumbent president, EH. It will be recalled that EH's term was to expire in December 2012.

53 The two candidates were NC-D and RC. The minutes of the discussion record that there was debate about whether the candidates ought be interviewed by an 'interviewing committee'.[44] The interview process was deferred subject to the two 'outstanding' candidates privately resolving their claims. An agreement was reached that RC be appointed president for a term of two years commencing December 2012 and NC-D would be appointed president-elect, also commencing in December 2012. Thus a strategy was developed for NC-D to succeed RC in December 2014.

54 PY did not agree with the process that I have described above. He considered that both candidates ought be interviewed, and further, that the by-laws of the FIP did not provide for the appointment of a president-elect. In his opening, senior counsel for PY stated:

Around this time, April/May 2012, the battle lines were being drawn. On the one hand, [PY] wanted by-laws and proper governance observed. On the other hand, [RC] and [NC-D] had reached their own agreement with the 'big three countries'[45] as to who would be president and who would succeed that person as the next president.

55 In February 2013, another dispute arose within FIP. It concerned events at the Snow Polo World Cup 2013. Two members of the FIP GA, Mr Derek Wolstenholme ('DW') and Mr Pat Nesbitt ('PN'), attended the Snow Polo World Cup and in particular, attended lunches and gala dinners conducted by PS. On 18 February 2013, PY emailed DW accusing him of 'freeloading', having 'inveigled' himself into MPC events. On the same day, he emailed PN, describing his conduct in attending lunches and dinners as 'rude, arrogant, gauche and inappropriate'. Both DW and PN responded to PY, and a highly acrimonious email exchange ensued. PN called PY malicious, misinformed and ignorant of the fact that he was, in fact, invited by MPC/Goldin. PY responded demanding a copy of the invitation. He added, 'Methinks that the cudgel of bluster and bombast may have been indiscriminately used to wound the knight of mendacity'. Insofar as this makes any sense, it seems that PY was styling himself as wielding the 'cudgel of bluster and bombast' which had wounded PN, who was the 'knight of mendacity'. To DW, after a terse exchange, he emailed (inter alia), 'you really are a joke'.

56 Up until April 2013, PY had been both a member of FIP's EC and FC. On 10 April 2013, the president, RC, notified PY that he had been removed from these committees. This decision was confirmed by the EC on 10 May 2013. The decision was then (according to the defendant) partially and conditionally rescinded upon PY agreeing to moderate the tone of his keyboard contributions. A meeting occurred at the Hilton Hotel in London on 14 May 2013 between at least PY, Mr Alex Taylor ('AT') (FIP treasurer at the time) and Mr Steve Orthwein ('SO'), a member of the C of A. There is some dispute as to whether AJ was present. Later in these reasons, I conclude that he was present.

57 AT, AJ and SO were then on the EC. The defendant asserted that a proposal was put to PY that, if he agreed not to engage in further acrimonious correspondence, he could be reinstated to the FC and be the chair of a 'to be established' China Committee ('CC'). It was said to be a further condition that he only communicate with the EC through AT or AJ. It is controversial as to whether PY accepted these terms immediately, later, or at all. What is clear, however, is that further emails were sent by PY which were viewed as breaching the agreement, and which ultimately resulted either in his final removal from the FC and CC, or (alternatively) the rescission of the conditional offers made to him. Either way, he was blocked from serving on those committees. PY formed the opinion, with some justification in my view, that he had been denied procedural fairness in this process.

58 There is a dispute about this, and whether RC and the EC acted within power and/or improperly and/or in denial of procedural fairness in taking the courses I have just outlined.

59 From this time on, PY, stung by his treatment after what he had perceived as long and loyal service to FIP, embarked upon a vigorous campaign against FIP. He accepted, in evidence, that he conducted a vendetta against FIP administration. I shall reproduce some of the more florid emails later in these reasons. It is sufficient now to set out some of the terms of an email of 19 September 2013 penned by PY and sent to EC members, including AJ, DW, RC and PN:

There has been comment that my language can be a bit abrasive, acerbic or harsh. The reason for this is that the good Commander[46] chooses not to answer or acknowledge correspondence ...

The great Commander has shown a complete lack of ability to handle even simple situations (ask him about Torci) and thus the situations are exacerbated because of his incompetence and refusal to act and thus my language becomes more robust.

The person making the allegation, which the Commander knows to be false, is his good friend, the loquacious, verbose and cerebrally impaired Derek Wolstenholme and, being a crony of the Commander's is not required to withdraw.

This refusal ... to take any action ... causes my vocabulary to be expanded.

This appears to be a charade played by the Commander and his crony ...

... he (the Commander) has smiled benignly whilst his eyes glazed over.

He [RC] does not know what he does not know and thus commits the common error of believing he knows everything.

Maybe the problem is anatomical in that he [RC] unfortunately, lacks vertebrae, his intestinal strength, if it exists, is minimal and he lacks a couple of other appendages with which most males are endowed.

It may not be possible to do anything, thus the only blessing is the shortness of his tenure.[47]

60 I consider this email, containing, amongst other things, allegations of brain damage and the apparent absence of testes, to be highly provocative. It was merely an opening salvo in what was to become a regular stream of abusive correspondence.

61 In October 2013, a 'Super Nations Tournament' was conducted under FIP auspices in Tianjin. A dispute arose over the interpretation of a player substitution rule. A dispute between PY and FIP developed over whether FIP had delegated responsibility for the running of the tournament to MPC. In an email from PY to members of the GA, PY stated, amongst other things, the following:

FIP's reputation "is fragile ... due to the stupidity and incompetence of our President Richard Caleel the great commander."

How, when, by whom and to whom was the delegation made - maybe the weasel?

This fabrication is designed purely to avoid Richard taking any responsibility for anything.

In order to weasel out of his responsibility he [RC] misrepresented the situation to and misled John Wright, in fact he lied to John. The truth is something with which Richard has little or no familiarity.

Nicholas, in these circumstances do you still maintain your previous position that you totally support and admire Richard's action in lying to the Chairman of the HPA? Richard's penchant for lying is well documented.

Richard absolves himself from all responsibility, prancing around uttering inane platitudes whilst dressed in sartorial splendour and thus avoid the male deer ...

As a result of him ... lying to John Wright, John reports Richard's advice to the HPA ...

He again weasels out of any responsibility ...

This is incompetence cubed ...

... Richard's incomprehensible stupidity ...

As a result of the ignorance, incompetence and arrogant attitude of Richard ... David Woodd wrote an intelligent and completely justifiable email ...

... somebody ... needs to sit this clown down and explain to him what the role of President entails.

62 A few weeks later, on 3 December 2013,[48] and then on 16 December 2013,[49] in emails, PY turned his attention to another issue; in these proceedings, called the 'B and C countries' issue. In those emails, PY maintained that there had been a failure to hold elections for B and C country representatives for the C of A, and consequently those countries were not validly represented on the C of A.

63 PY concluded with '[t]he president continues to weasel out of his responsibility in a manner no other president has.' Leading up to this, he referred to RC's 'ignorance and incompetence'. He asserted, 'You do not get your photo taken for this type of necessary effort'. He also stated:

The collegiate, feel-good atmosphere that has prevailed in FIP for the last 30 years under Presidents who knew and understood FIP culture and performed their role in an exemplary manner, unfortunately this situation no longer exists. We have a president who has demonstrated he is both parsimonious and grasping and submitted claims to which he was not entitled.

64 NC-D came to his president's defence. On 4 December 2013, he emailed to PY and copied in various members, including AT, AJ, RC, SO, DW, EH and PN:

What an astonishingly bitter and insulting attack on the eve of the General Assembly. It is unworthy of a gentleman or a member of FIP.

Your continuing attacks on the President after your scurrilous accusations, have already been, at the President's request, investigated by the Executive Committee and found to have absolutely no basis in fact, continue to waste time and disrupt the work of the EC and show division and discontent within the Federation.

Your ongoing personal vendetta against Richard is doing more to damage the reputation of FIP in its 30th year when we should be celebrating the success of this venerable institution and honouring those who have freely given of their time and energy to achieve this remarkable result.

65 PY then turned his attention to NC-D. On 5 December 2013, he emailed NC-D with some senior members copied in:

It is always a pleasure to receive a communication from the Executive Committee. In fact, you are the only member who writes to me.

I do not have time, at the moment, to make a detailed response to a fatuous missive replete with therapeutic adjectives or unsubstantiated statements together with the absurdity that an incompetent body can investigate its own incompetence and then surprisingly find that it's not incompetent. I will make a more detailed response soon.

Nicholas I have on previous occasions warned you that when you get into the ring with your hands around your knees and with your jaw stuck out the result is inevitable.

The email went on to request a response to PY's suggestion about a UK based Ambassador's Cup.

66 On 16 December 2013, in an email to members and former members of FIP, PY repeated his assertions concerning the alleged failure of FIP to elect representatives from B and C countries to the GA at the December 2013 GA meeting. He stated:

The President, by his inertia, and ignorance of the provisions of the Constitution and demonstrated inability to follow procedure and protocol, if he was aware of the provisions, he ignored them and he effectively disenfranchised B & C countries, who represent approximately 50% of the polo players of the world ...

Or, alternatively, the President was aware of the provisions but had a tame Council of Administration to whom he has never bothered to report pursuant to the provisions of the Constitution and the Council has allowed him so to conduct himself.

Thus the President has effectively reduced the Council of Administration to six members who no doubt he hopes he can rely on not to rock the boat.

Now Nicholas, you are good at adjectives, how would you describe the President's actions? If I use some of what you consider to be offensive words about the ineptness or deviousness of our President will you once again spring enthusiastically to his defence.

67 After further counselling NC-D on the use of adjectives, PY continued:

I recommend that an independent lawyer be appointed to review this situation. The website is false. It shows B & C country terms expiring in 2014. This is impossible as no elections took place in 2012.

How did these false entries get onto the website. Who issued the instructions to insert the false dates.

68 I shall examine these allegations made by PY later in these reasons.

69 FIP's bank account had been operated by PY or his secretary for several years. Some months after PY was removed from the EC and FC, he declined to continue operating the account. It became necessary for FIP to either continue to operate the Australian bank account or to open up a new account somewhere. For reasons which I shall examine later, FIP claimed to have difficulty with opening a new account and did not attempt to take over the PY account. The net result of this was that FIP became illiquid because it had nowhere to bank its receivables.

70 In late January and early February 2014, PY again emailed members. He asserted that, as a result of RC's financial incompetence, FIP was unable to meet its financial obligations to pay the 12 countries which were shortly to play in the Snow Polo tournament. RC's financial management was 'incompetent and inept'; he endeavoured to 'weasel out of responsibility' so as to 'insult the intelligence of these member countries ... Somebody needs to guide and counsel this inept clown'.

71 On 3 February 2014, PY suggested to RC that he (RC) should 'put [his] hand in [his] pocket, not FIP's'.

72 These 'insolvency' allegations were the subject of an EC report (called the 'Taylor Report' in these proceedings, after AT, its primary contributor). The Taylor Report, prepared for the consumption of FIP members generally, refuted the PY insolvency assertions and blamed the liquidity problems on PY's refusal to continue to operate the Australian bank account and the difficulty FIP had faced in opening another account.

73 On 10 April 2014, PY had received a copy of the Taylor Report. He stated that FIP now had a lack of integrity, honesty and common sense 'raised to the power of three', seemingly referring to RC, NC-D and AT.

74 In April 2014, FIP appointed AT as CEO.[50] FIP had sporadically been searching for a CEO for some time. The issue became pressing as the World Polo Cup was imminently to be held in Chile under the auspices of FIP. PY became aware that the EC had appointed AT as CEO. In September and October 2014, he asserted by email to FIP members that the chairman of the CEO appointment committee had appointed himself CEO without any due process and that RC failed to involve the C of A in AT's appointment.

75 Also in April 2014, PY made various allegations about FIP's accounting practices. In short, he alleged that there was a $2.5 million discrepancy in the books which required explanation and that FIP was blessed with 'two commercial clowns' who performed appallingly and disastrously, displaying collective stupidity and commercial and financial incompetence. FIP disputed these allegations and contended there was no discrepancy in the books.

76 Another issue between FIP and PY arose at a Special General Assembly ('SGA') held in Uruguay on 26 September 2014. The purpose of the SGA was said to be to amend the obsolete 1989 FIP by-laws so as to bring up to date the ratification of current members of FIP and to facilitate 'legal updating' of the registration of FIP in Uruguay. PY made various criticisms of the process adopted for the SGA, in particular, that in contravention of existing by-laws, an agenda was not specified, the C of A failed to give proper notice of the SGA and also failed to provide members with a copy of the proposed changes to the by-laws. In an email of 25 September 2014 addressed to RC with FIP members copied in, PY stated:

What an amazing man you are to bestow extraordinary, unilateral and unlimited powers upon yourself to disenfranchise the members from discussing or voting on resolutions ...[51]

77 The defendant disputes each of these allegations. Again, I shall return to them.

78 At paragraph 50, I indicated that the PDF issue, which had its genesis in 2012, did not publicly emerge until 2015. On 9 February 2015, PY alleged that a US$600,000 PDF had been established from funds provided by MPC/Goldin and had not been properly accounted for. FIP and NC-D disputed the existence of this obligation. PY alleged RC, NC-D and AT all knew of the existence of this fund, and had failed to administer the fund or even report on its existence. FIP conducted an investigation which concluded that, if there ever was an intention to establish a PDF, it was overtaken by the final written agreements of October and December 2012, neither of which made any reference to the PDF.

79 Two of the impugned emails - NC-D to FIP members on 3 November 2015[52] and PY to FIP members on 6 November 2015[53] - were sent out around this time.

80 On 10 December 2015, a GA meeting was held in Buenos Aires. By this time, PY had been declared persona non grata by the GA. He attended the GA meeting venue but was denied entry. In an email on 15 December 2015, he made certain enquiries about the state of the accounts. He concluded that if he did not receive answers within seven days he would 'again write to the members in more explicit terms and make certain postulations'.

81 On 22 December 2015, PY emailed FIP members and posed a series of questions relating to the accounts presented to the GA meeting.[54] NC-D responded on 30 December 2015[55] and finally, PY concluded this sorry correspondence on 30 May 2016.[56] These emails are also the subject of the claim and counterclaim.

82 The above is a snapshot of the ill feeling that developed between PY and the FIP representatives including NC-D, up to and including the time of the allegedly defamatory email exchange. Space precludes my recitation of every PY 'postulation', but in addition to those recited above, he, at times, referred to RC as a 'petty paltry peacock', a 'vainglorious megalomaniac', an 'evacuative organ' and the 'Sun God'.

83 Against this background, I turn now to consider the merits of PY's claim. I have set out the two impugned emails of 3 November 2015 and 30 December 2015. The plaintiff has established that the 3 November email was published in Australia and the United Kingdom. The distribution list of this email was produced by the defendant,[57] which demonstrates that the email was sent to various email addresses. For a publication to be established, the plaintiff must demonstrate not only that the information was made available, but also that it was communicated to another. If the recipient does not hear or see the material, there is no publication.[58] In the circumstances of this case, if the plaintiff proves that one person on the distribution list read the 3 November email (or the 30 December email), then publication of that particular email is proved.

84 In this case, I infer publication of the 3 November email from the following matters established in evidence:

(a) the distribution list was comprehensive;[59] and

(b) the impugned email became the subject of a reply or a forwarding email on several occasions.

85 The defendant in both written and oral submissions did not dispute publication of the 3 November email.

86 It is clear that the email was distributed to all parties on the distribution list and I consider it highly likely that many of them opened the email so as to have it available for their comprehension.[60]

87 I also infer that the 3 November email was of such a nature that it was likely to be republished:

(a) its contents were of interest not just to the particular recipients but also to members of their affiliated associations;

(b) it is addressed to 'Dear FIP members and friends';

(c) in fact, it was republished in an email from Mr Peter Abisheganaden ('PA'), Secretary of the Royal Malaysian Polo Association, to Mr Albert Tan and AJ; and

(d) the republication of any email is a very easy and simple process.

88 I consider it likely that NC-D intended FIP member associations in receipt of the November email to republish it to their affiliate member associations. I infer this from the text of the email. I also consider it likely, given the contents of the email, that it was a natural and probable consequence of the original publication that it would be republished.[61]

89 In these circumstances, I consider that the plaintiff has established both publication and republication of the 3 November email.

90 I also conclude that the 30 December email was published. The defendant belatedly produced a comprehensive distribution list for this email.[62]

91 The email was also replied to and forwarded on to others.[63] I infer that the email was opened by at least some of the intended recipients. Publication of this email was not disputed by the defendant. I conclude that the 30 December email was published. I am also satisfied that it is likely to have been republished, essentially for the same reasons as I explained for the 3 November email.[64]

92 I have set out the full text of the 3 November email in paragraph 9 of these reasons. In paragraph 4 of the Further Amended Statement of Claim, the plaintiff asserted that this email conveys that in the context of his dealings with FIP and its personnel and/or members, the plaintiff:

(a) makes accusations that are not genuine, authentic or truthful;

(b) acts in such a way as to threaten or undermine major sponsors of the FIP;

(c) persists in continuing to make allegations that are not authentic, genuine or truthful in circumstances where a responsible and reasonable person would not do so;

(d) makes false allegations;

(e) is dishonest and irresponsible; and

(f) is guilty of such misconduct that warrants him being declared persona non grata.

93 In its defence, the defendant denied any of these meanings and that the 3 November email was defamatory at all.[65] In oral submissions, however, senior counsel for the defendant accepted that the 3 November email carried imputations (a), (c), (d), (e) and (f). He contended that imputation (b) was not open on the evidence.

94 Senior counsel's concessions in oral argument as to imputations (a), (c), (d), (e) and (f) are sensibly made and I will act upon them.

95 As to the alleged imputation in (b), which asserts that the plaintiff acts in such a way as to threaten or undermine major sponsors of FIP, the impugned email (on this issue) reads as follows:

(a) ... Mr Yunghanns has now extended his attacks upon FIP to individuals outside of the Federation including our major Chinese sponsor. As such Mr Yunghanns' behaviour is threatening to disrupt the good work done by FIP, its administration and officers and risks alienating our major sponsors.

(b) ... this public communication (is made) in order to preserve FIP's ... reputation and good name, as well as to protect FIP ... against the negative effects that Mr Yunghanns' false accusation may have on our organisation and sponsors.

(i) PY has extended his attacks about FIP to people outside FIP, including sponsors; and/or

(ii) PY has extended his attacks upon FIP to attacks upon people outside FIP, including sponsors.

97 In my view, the reasonable ordinary reader would understand the meaning to be along the lines of (i) above. I accept that viewed in isolation, the passage quoted in (a) above is pretty much equally capable of meaning (i) or meaning (ii). In the context of the entire email, however, particularly the passage reproduced in (b) above, in my view, it is more likely that the relevant impugned part of the email conveys that PY has extended the reach of his solely FIP focused attacks to outsiders, including sponsors. In other words, the passage has meaning (i) set out above.

98 I conclude that PY has not established that the 3 November email conveys the meanings pleaded in paragraph 4(b) of the Further Amended Statement of Claim.

99 It follows that I conclude that the 3 November email conveys the following imputations made in the context of PY's dealings with FIP, its personnel or its members:

(a) PY makes allegations that are not genuine, authentic or truthful.

(b) PY persists in making allegations that are not authentic, genuine or truthful in circumstances where a responsible person would not do so.

(c) PY makes false allegations.

(d) PY is irresponsible.

(e) PY is dishonest.

(f) PY is guilty of such misconduct that warrants him being declared persona non grata.

100 There is very considerable overlap in these imputations, the language of which is derived from the Further and Amended Statement of Claim. Removing the overlap, the stings in the imputations, in my view, amount to the following:

(a) The plaintiff makes factually incorrect accusations.

(b) He has made such accusations persistently.

(c) He has made accusations that are irresponsible.

(d) He has made accusations that are dishonest.

(e) The plaintiff's conduct is such that it warranted him being declared persona non grata.

101 I shall refer to these as 'the November imputations'. As I have indicated, all are said to be made in the context of PY's dealings with FIP, its personnel or its members.

102 I have reproduced the text of the 30 December email at paragraph 12 of these reasons. In my view, the meanings conveyed in this email are also clear. I conclude that this email conveys the following imputations, as alleged in paragraph 6 of the Further and Amended Statement of Claim:

(a) PY would conduct a campaign against others that has no proper regard for the truth.

(b) PY is vindictive.

(c) PY makes accusations that have no foundations in fact.

(d) PY makes misleading and deceptive statements.

(e) PY is dishonest and irresponsible in his dealings (with FIP).

(f) PY is guilty of such misconduct that warrants him being declared persona non grata.

103 Again, all of these imputations are said to be made in the context of PY's dealings with FIP, its personnel or its members.

104 In oral submissions, the defendant did not dispute that the 22 December email conveys these imputations. Whilst the 22 December email does not state in terms that the plaintiff makes dishonest statements or is dishonest in his dealings with FIP, the language employed, I consider, conveys these meanings. In particular, I refer to the following phrases:

(a) 'an ongoing personal campaign of half-truths and innuendo';

(b) 'FIP's delegates have little interest in the half-truths [and] insinuations in Mr Yunghanns's emails'; and

(c) 'take great personal exception to Mr Yunghanns's accusations of incompetence, and his misleading and deceptive statements '.

105 In combination, these remarks go beyond an accusation that PY makes persistent and unfounded allegations. They constitute an assertion that he does so deceptively. That is, dishonestly.

106 Removing the considerable overlap in these imputations, I consider the stings in them can be summarised as follows:

(a) PY makes accusations that have no factual foundation.

(b) PY makes irresponsible statements in his dealings with FIP.

(c) PY makes dishonest statements in his dealings with FIP.

(d) PY is vindictive.

(e) PY is guilty of such misconduct that warrants him being declared persona non grata.

107 I shall refer to these as 'the December imputations'.

108 The November and December imputations are defamatory. Each imputation has a tendency to lower the reputation of PY in the minds of ordinary, decent members of the community, possessing the qualities that I have explained in earlier in these reasons. The defendant did not dispute that the November and December imputations are defamatory. He contended, nonetheless, that he was justified in making those imputations, as the substance of them is at least substantially true.

109 As I have said, it is a defence to defamation if the impugned imputation is established to be true or substantially so. It is no defence to establish that only part of the defamatory libel is true.[66] It is the sting or stings of the libel that must be shown to be substantially true. It is unnecessary to prove that an irrelevant comment or minor detail is true. For clarity, I will need to be a little repetitive.

110 The stings of the November imputations that I have found are as follows:

(a) the plaintiff makes factually incorrect accusations;

(b) he has made such accusations persistently;

(c) he has made accusations that are irresponsible;

(d) He has made accusations that are dishonest; and

(e) the plaintiff's conduct is such that it warranted him being declared persona non grata.

111 To succeed in his defence of truth to the November imputations, the defendant will need to establish that in his dealings with FIP, its personnel or members:

(a) PY made factually incorrect accusations;

(b) PY made factually incorrect accusations persistently. That is, on several occasions and over a significant period of time;

(c) PY made irresponsible accusations;

(d) PY made dishonest accusations; and

(e) by his conduct, PY was appropriately declared persona non grata from FIP.

112 The stings in the 30 December email that I have found are that PY:

(a) makes allegations that have no factual foundation;

(b) makes irresponsible statements in his dealings with FIP;

(c) makes dishonest statements in his dealings with FIP;

(d) is vindictive; and

(e) is guilty of such misconduct that warrants him being declared persona non grata from FIP.

113 In order to prove the truth of the defamatory imputations in the 30 December email, the defendant will need to establish that PY in his dealings with FIP, its personnel or its members:

(a) made factually incorrect accusations;

(b) made irresponsible statements;

(c) made dishonest statements;

(d) was vindictive in his dealings with FIP; and

(e) was guilty of such misconduct that warranted him being declared persona non grata from FIP.

114 The defendant pleaded 10 separate instances in his defence which he submitted establish the defence of truth/justification for both defamatory emails. The defendant need not establish all of these justifications or even most of them, but he will need to establish a sufficient number of them to establish that the impugned statements are persistent in the manner alleged. The truth of the persona non grata accusation will be determined by a consideration of a wider body of evidence that includes the 10 separate instances alleged, as well as other conduct of PY established in evidence.

115 The 10 separate instances pleaded in the defendant's defence are as follows:

(a) The plaintiff has made accusations regarding FIP's by-laws, which are not genuine, authentic or truthful.

(b) The plaintiff has made accusations regarding FIP's bank account, which are not genuine, authentic or truthful.

(c) The plaintiff has made accusations regarding a report to the C of A, which are not genuine, authentic or truthful.

(d) The plaintiff has made accusations regarding the failure to elect B and C country members, which are not genuine, authentic or truthful.

(e) The plaintiff has made accusations regarding the insertion of fake entries on FIP's website, which are not genuine, authentic or truthful.

(f) The plaintiff has made accusations regarding the Super Nations Tournament, which are not genuine, authentic or truthful.

(g) The plaintiff has made accusations regarding the election of a CEO, which are not genuine, authentic or truthful.

(h) The plaintiff has made accusations regarding alleged commitments, which are not genuine, authentic or truthful.

(i) The plaintiff has made accusations regarding FIP's accounts, which are not genuine, authentic or truthful.

(j) The plaintiff has made accusations regarding a PDF, which are not genuine, authentic or truthful.

116 Of these 10 sets of accusations, the defendant says (b), (c) and (j) are evidence of dishonesty.[67] I propose to deal with these issues individually and in the above order. Before I commence this task, I will make some observations about the oral evidence in the case.

117 Given the scope of the disputes between the litigants, there was relatively little oral evidence. Both the plaintiff and defendant spoke to their claims and defences. AJ was called by the plaintiff. RC and AT were called by the defendant. I shall review some of the evidence of these witnesses as I consider the different aspects of the two cases. I will, however, provide my impressions of the various witnesses at this stage.

118 Essentially, my view of every material witness in the case was relatively benign. I formed positive impressions of RC, AJ and AT. At times, I considered that their memories may be stretched and that they may have resorted to reconstructions, which tended to favour the party calling them, but these were isolated occasions. The contemporaneous document trail, almost always in the form of emails, is sufficiently complete in this case for it to form, in most instances, reasonable evidence of what was said and done on material issues. At no stage did I form the view that any of these three witnesses were prevaricating, answering evasively or were deliberately dishonest.

119 The parties have more emotional investment in the outcome of the case and at times, this was evident, particularly in the demeanour of PY. He was occasionally irritable, bordering on cantankerous. When confronted with some of his more colourful emails, he tended to downplay the (sometimes) frank abuse within; I also considered him to be defensive from time to time when questioned about those emails. Having said that, my impression of him was that he was an honest witness who, by and large, accepted the content of the contemporaneous evidence and the inferences that flowed from it.

120 I formed a positive view of NC-D as a witness. He gave his evidence under some difficulty, having broken his femur in an accident towards the end of the plaintiff's case. Despite recuperating over several weeks, at times, he appeared in some pain and his concentration levels seemed to vary. Notwithstanding this, he impressed me as a careful and conscientious witness, who was prepared to make sensible concessions when the occasion demanded. Like PY, I considered NC-D to be essentially an honest, decent person.

121 These positive impressions may simply be a reflection of the nature of this case. For all the acrimony and polarisation that has occurred between FIP personnel and PY, it has not been a 'hard swearing case'. Most of the differences between the parties were set in stone years ago in email correspondence and the conclusions that I have reached often draw more upon that rich contemporaneous seam of evidence, than on the oral evidence.

122 As I have said, both the plaintiff and defendant impressed me as honest, decent members of our community; yet both accused each other of dishonesty. To what standard must the accuser prove this allegation? Section 140 of the Evidence Act 2008 (Vic) ('Evidence Act') provides that, in a civil proceeding, the court must find the case has been proved on the balance of probabilities.[68] The court (without limiting the matters it may take into account) must take into account:

(a) the nature of the cause of action or defence; and

(b) the nature of the subject matter of the proceeding; and

(c) the gravity of the matters alleged.[69]

123 Section 140(2) reflects the common law doctrine of Briginshaw v Briginshaw.[70] The standard of proof to which a fact in issue must be proved by the party bearing the onus of proof is always 'on the balance of probabilities'. The strength of the evidence necessary to satisfy the balance of probabilities standard will vary according to the factors enumerated in s 140(2), together with any other relevant factor. In the language of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[71] 'the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove'.[72]

124 In the context of this case where parties of sound repute make cross allegations of dishonesty, these are serious allegations and would need to be established by cogent and strict proofs. This does not mean that the standard of proof is any higher than in other civil cases. It simply means that I ought not make findings of dishonesty lightly.[73]

125 In paragraph 115, I identified the 10 separate instances pleaded by the defendant which he submitted establish the defence of truth/justification for both defamatory emails. I shall deal with those instances in the order in which they are pleaded.

126 The defendant contends that the plaintiff made accusations regarding FIP's by-laws. These alleged accusations were made in an email sent by PY to office holders and delegates on 19 September 2013. I shall set out the email in full. To understand the context in which this email was sent, reference ought be made to paragraphs 56 to 59 of these reasons. The email reads:

Dear Members

There has been comment that my language can be a bit abrasive, acerbic or harsh. The reason for this is that the good Commander chooses not to answer or acknowledge correspondence and fails to act when he should do so which, when pointed out to him, he ignores and he takes actions which he should not, ignoring advice to this effect, all of which has been pointed out to him on a number of occasions in a not impolite and clinical manner. The Council members are, of course, unaware of all the previous correspondence which precedes my recent emails and which will assist them in understanding the language I use.

The great Commander has shown a complete lack of ability to handle even simple situations [ask him about Torin] and thus the situations are exacerbated because of his incompetence and refusal to act and thus my language becomes more robust.

Let me give you a few examples of the many available.

1. A member of the Council of Administration, the body to which the Executive Committee is responsible, states in writing that a member of the Executive Committee has failed in his responsibility in two areas and that in one case 'it is the most serious omission that I have ever known in my years in business and wins an Oscar for incompetence ...'

Because of the serious nature of the allegation all members of the Council of Administration and Executive Committee should have been informed of these allegations. The Commander chose not to inform anyone and took no action whatsoever despite repeated requests to do so. The following action, clearly, should have been taken: the allegations by the Council of Administration member investigated to establish if they were justified and, if so, all Council members should have been advised and the member of the Executive Committee, who had failed in his responsibility, should have been admonished, or otherwise dealt with. If the allegation of 'failure of responsibility' is proved to be incorrect, then the Council of Administration members should withdraw the allegation and apologise.

No action is taken. Why?

The person making the allegation, which the Commander knows to be false, is his good friend, the loquacious, verbose and cerebrally impaired Derek Wolstenholme and, being a crony of the Commander's is not required to withdraw. The Commander does not discuss the allegation with the Executive Committee, Council of Administration, or me. This refusal, or inability, to take any action when clearly action is required causes my vocabulary to be expanded.

This appears to be a charade played by the Commander and his crony and he wishes to avoid the absurdity of it being known by anyone, hence no information is given to either the Executive Committee or the Council of Administration.

The Commander knew the allegation to be false and did not wish to expose the absurdity of his crony. This form of stupidity results in language being inflamed.

2. I sent the following email to the Commander on 6 May:

'Dear Richard

Immediately after your appointment as President, there was a lunch at which you requested me to step down from the Executive Committee. Asad and I had spent 18 months negotiating with Metropolitan and one contract had been completed under which FIP received a fee of US$500,000 plus expenses and a 3 year contract had also been negotiated and was ready for signature under which FIP would receive fees totalling US$1,500,000 plus expenses.

I am sure given all the circumstances and the Executive Committee would like to understand your real reasons for wanting to get rid of me.

Was I incompetent?

Had any of my actions harmed FIP?

Had I exceeded my authority?

I looked forward to your thoughts when we meet.

All the Best.

Cheers

Peter'

No acknowledgement is received, no answer is given despite a number of requests to do so.

The Commander's inability to correspond, or even acknowledge correspondence, again strengthens my language. He will not face situations and by hiding he only exacerbates the problem.

3. The Constitution provides that the President will:

'(IX) Implement the decisions made by the Assembly, the Council of Administration and the Executive Committee'

He failed to implement a decision reached by a majority of the Executive Committee in London and, in fact, lobbied to have the decision reversed. When the obligation of implementation was pointed out to him he ignored it. Due to his precious nature he has no ability to withstand any form of correction, or criticism. Not the best quality in the alleged leader. Somebody, apart from me, should have explained to him he is bound by the decision of the Executive Committee.

4. The Constitution provides that:

'30.8 All decisions made by the Executive Committee will be informed to the members of the Council of Administration and made known at the next Assembly.'

The Council of Administration should require him to comply with the Constitution.

1. He has also ignored the provisions of the Constitution in relation to the appointment of the members of the Finance Committee. He obviously considers himself above the provisions of the Constitution.
2. He has chosen to make unilateral appointments without referring to, or discussing these with, the Executive Committee in breach of agreed protocol and thus depriving himself of the views and advice of the Executive Committee who have much greater knowledge of FIP's personnel, cultures and procedures than the Commander has since he has never been involved in the management of FIP affairs. He has merely reported on conferences he has attended.
3. Nine months ago he agreed to visit three areas in relation to the development of polo. He also at that time agreed to take certain actions in relation to the development of the Ambassador Cups. He has done nothing in relation to these agreements, maybe because he has had no experience whatsoever in these areas and it is not the sort of work a show pony can be expected to undertake.

These situations have been pointed out to him on a number of occasions and he has smiled benignly whilst his eyes glazed over.

Then does the Commander conduct himself in this manner, a manner completely at odds with the conduct of all the Presidents of the last 30 years with whom I have worked?

My view is that the problem is twofold:

1. He does not know what he does not know and thus commits the common error of believing he knows everything. This is well documented by his actions without taking advice from those who do know.
2. Maybe the problem is anatomical in that he, unfortunately, lacks vertebrae, his intestinal strength, if it exists, is minimal and he lacks a couple of other appendages with which most males are endowed.

Let us see what you can do to guide the good Commander in the path of righteousness for the sake of the development of FIP and its family, particularly as FIP is now in a much stronger financial position than it has been in the past to enable it to undertake such developments.

It may not be possible to do anything, thus the only blessing is the shortness of his tenure.

All the best

Cheers

Peter

Peter Yunghanns

127 Leaving aside the personal insults, the substance of the email is as follows:

(a) RC failed to implement a decision reached by the majority of the EC in London and lobbied to have it reversed. I infer that the decision PY is referring to was to reappoint him to the FC and establish him as chair of the newly formed CC.

(b) RC considers himself above the provisions of the FIP constitution and ignored it in relation to appointment of members of the FC. In particular, he failed to comply with arts 32.7(ix) and 30.1 of FIP's by-laws.

(c) RC makes appointments unilaterally without reference to the EC, contrary to protocol.

128 These allegations are alleged by NC-D to be untrue on the following bases:

(a) RC's decisions were made after consultation with the EC;

(b) the offer to appoint PY to FC was made by the EC;

(c) the decision to revoke the offer to appoint PY to the FC was made by the EC and not RC; and

(d) RC was entitled to lobby the EC about any matter.

129 Counsel for PY submitted that NC-D ran his case at trial on a 'materially different basis'. It was said that instead of characterising the issue as a revoked offer to appoint, the case at trial was that PY's re-appointment to FC and appointment to CC was always conditional on his not sending further insulting emails to FIP officials and/or members. Whether this is a 'materially different basis' or a clarification of the existing position is, in my view, immaterial.

130 PY was notified of his removal from the EC and FC on 10 April 2013.[74] This decision, made by RC, was confirmed by the EC on 10 May 2013. He was given no advance notice of this decision, nor accorded a hearing on it.

131 By 14 May 2013, PY had been removed from all FIP committees. What followed then was a rapprochement of sorts. The London meeting occurred at the Hilton Hotel. Present, undoubtedly, were PY, AT and SD. AJ may also have been present. It is alleged by NC-D, supported in evidence by AT, that a proposal was put to PY. He could resume his duties on the FC and be chair of the newly created CC if he agreed not to engage in further abusive communications to FIP members. It was also said to be a condition that his communications with the EC be confined to AJ and AT. AT stated in evidence that PY wanted time to think about this proposal.

132 On balance, I accept that AJ was present at this meeting. PY supported AJ's evidence that he was present, although AT's memory of the meeting is that AJ was not present. In evidence, AJ demonstrated a sufficient recall of matters discussed to suggest that in fact he was present. He stated that he recalled AT putting an offer on behalf of the EC that PY be removed from the EC but remain on the FC and be appointed as chair of the newly created CC. He said that AT had said to PY something to the effect of 'accept it, otherwise you're off anyway'. As I have said, I considered AJ to be an honest witness. In my view, he did his best to recall the detail of a meeting held over five years ago, as did PY and AT. AJ stated he did not believe that there were conditions attached to the offer made at the meeting, however, he did concede in cross-examination that PY was told his 'nasty' emails must stop, although he was free to question things.

133 The plaintiff submitted that the preponderance of documentary evidence surrounding the London meeting supports a conclusion that the appointments were unconditional or at the very highest, concerned only an embargo on emails addressed to DW and PN. In particular, the plaintiff referred to:

(a) The EC minutes of 14 and 15 May 2013 approved on 10 June 2013.[75] No reference is made in these minutes to any conditions attaching to PY's appointments to the FC and CC.

(b) An email from PY to SO, AT and AJ, confirming matters discussed at the London meeting in which there is no mention of any conditions attached to the appointment offers.[76]

(c) An email from RC to PY on 23 May 2013, copied to AT and SO, advising that the FIP website had been changed to reflect the appointments and stating, 'I am pleased to be moving forward with you and the rest of the FIP team'.[77] There is no mention of any conditions.

(d) AT forwarded the email in (c) above to AJ and SO on 24 May 2013. AT proposed that the forwarded email from RC should be sent to all members who were advised of PY's dismissals from the committees.[78] There was no mention of any conditions.

(e) An email from SO to PY of 31 May 2013 asking for confirmation that he would accept the appointments.[79] Again, no mention was made of the conditions. The plaintiff submitted that if the appointments were conditional, it is 'inconceivable' that they would not be referred to in this email.

134 In my view, it is likely that conditions were attached to these May 2013 offers of appointment. I accept that RC had decided to remove PY in April 2013 because he perceived PY to be 'disruptive', 'vulgar' and 'insulting', and that he considered it in FIP's best interests to do so. I have no doubt that by April 2013, PY was proving disruptive to the FIP administration and I am satisfied that the tone of these communications was, at least, part of the decision to remove him from the committees at that time. Assuming this to be the case, I consider it inherently likely that any offer to PY to re-enter FIP committees would be predicated on an undertaking of more temperate conduct generally, and that his communications be limited to contact with AJ (regarding the CC) and AT (regarding the FC). Although PY and AJ did not directly concede that the offer was conditional, both eventually conceded that the tone of PY's correspondence was a topic of discussion at the meeting. PY had a quite limited recollection of the meeting.

135 An email sent by PY to AT and SO (copied in AJ) on 16 May 2013 also bears upon this meeting:

Subject: Worthwhile talk

Dear Steve and Alex,

It was very worthwhile talking to you both on Wednesday evening.

You were right, I was wrong.

Look forward to seeing you both soon.

All the best

Cheers

Peter[80]

136 I consider this email is highly likely to be referring to the meeting at the Hilton Hotel on 14 May 2013 (notwithstanding that 14 May 2013 was a Tuesday). It was addressed to AT and SO, both undoubtedly present at that meeting, and AJ was copied in to the email. It would have made little sense to AJ unless he was present as well. Whatever the topic of the meeting was, it was sufficiently central to these parties so as not to require any identification of the topic in this email. PY was obviously contrite about something central to that meeting that had been raised by AT and SO. PY now has no recollection of what that contrition was about. I accept NC-D and AT's evidence that PY's insulting emails was that central topic. I also accept their evidence that an agreement was reached that PY could resume duties on the FC and chair the newly constituted CC, conditional upon an undertaking that he moderate the tone of his correspondence and communicate only with AJ and AT as set out above.

137 I have considered various documents generated at about this time.[81] Although no mention is made of the conditional nature of the appointments, it is hinted at in exhibit D66, an email in which AT states, '[I]n London, we were able to convince Richard [that] you would only communicate with Asad, when it comes to issues of the China Com., and through me for the Finances Com.' When shown this email, the plaintiff agreed that it was the subject of agreement by him. I understand the witness was accepting that in London, he agreed to communicate only with EC members, AJ about CC matters, or AT regarding FC matters. I consider that this further supports the view that the appointments had conditions attached.

138 It is undisputed that the plaintiff accepted his reappointment to the FC and his appointment to the CC as chair. The defendant contended that by sending an email to SO on 3 June 2013, PY breached the conditional agreement. In part, that email reads:

Richard appears to have great difficulty in understanding his relationship with the Executive Committee. This was clearly apparent prior to the London meeting. Richard needs to clearly understand that his role is to implement decisions, agreements and resolutions made or approved by a majority of the Executive Committee. Please help and assist him to understand his role and to understand appropriate procedure and protocol. This offer has been made previously but he has chosen not to avail himself of such offer. Over two weeks have passed since the agreement was reached. Please ensure it is implemented forthwith.[82]

139 I doubt that this email can be correctly characterised as insulting, abusive or similar, and I doubt that it breached the conditional agreement.

140 On 4 June 2013, PY emailed FIP members. Part of that email reads as follows:

It is a well-established management principle that the leader of any type of organisation has a duty and obligation to protect and stand up for any members of that organisation wrongly imputed or accused of wrongdoing, misconduct or failure to carry out his duties. This principle, if known to Richard, was ignored by him presumably on the basis that old friends are more important than protecting the integrity of one of his executive members.[83]

141 I have no doubt that this email is insulting and breached the conditional agreement reached, both in its content and in its distribution.

142 On 7 June 2013, RC proposed a motion to members of the EC rescinding the PY offers of committee appointments.[84] This was approved by the EC on that day.[85] Had the appointments not been conditional, I consider it likely that the EC would not have acted so expeditiously.

143 PY submitted that RC was required to implement the EC's decision about the PY unconditional appointments recorded in the May 2013 minutes,[86] and did not do so despite being required by the by-laws.[87] I reject this. In my view, it is more likely that the appointments were conditional, and considered to be breached by the content of the 4 June email and possibly also the 3 June email.[88]

144 I accept that the EC failed to notify the C of A or the GA of the PY appointment decisions as required by art 30.8 of the 2012 by-laws.

145 The plaintiff contended that the president did not have the power unilaterally to remove him from the EC. Section 30.3 of the by-laws provided that the EC be comprised of five members. Three members were to be appointed by the vice presidents to represent the 'A' countries. The remaining two (one representing 'B' countries, the other 'C' countries) 'will be appointed by the President'.[89] It is undisputed that PY had been appointed to represent the 'B' countries. I take the view that if the president was empowered by the by-laws to appoint PY, he was also impliedly empowered to remove him, unilaterally if he wished. PY conceded as much in his evidence.

146 In any event, I consider that RC did not make the decision to remove RC unilaterally, although he clearly initiated it. The decision to remove PY from the EC was confirmed by majority vote of the EC on 10 May 2013. PY was advised of this on 10 May 2013.[90] There is no evidence that the 'majority of the EC' determined not to dismiss PY from the EC, as asserted by PY. I am satisfied that, with the exception of AJ, the EC supported:

(a) both the initial removal of PY from the EC and the FC;

(b) his conditional reappointment to the FC;

(c) his conditional appointment to the CC; and

(d) his ultimate dismissal from these committees.

147 It will be understood from the above that I conclude:

(a) PY was removed from the EC and FC in early April 2014. This decision was made by RC and subsequently confirmed by the EC on 10 May 2013.

(b) At a meeting in London on 14 May 2013, PY was offered reappointment to the FC and appointment to the newly established CC, conditional upon the terms I have set out. PY accepted these offers and the conditions attached to them.

(c) Present at this meeting were PY, SO, AT and AJ.

(d) RC considered PY breached the condition relating to intemperate emails in his email of 4 June 2013.

(e) The EC reached the same conclusion and rescinded the appointments on 7 June 2013.

148 In the context of his truth/justification defence, I consider the defendant has established the following:

(a) That RC did not fail to implement a decision reached by the majority of the EC in London. I consider the agreement reached was conditional and implemented in its conditional form.

(b) That RC did not ignore the provisions of the FIP constitution in relation to the appointment of members of the FC.

(c) That RC did not make these decisions relating to appointments unilaterally without reference to the EC.

149 The defendant did not allege these statements were made dishonestly on this 'by-laws' issue. Out of an abundance of caution, I should add that whilst PY's allegations on this issue are, in my view, factually incorrect, I am not satisfied they were made dishonestly.

150 PY relied upon a significant body of evidence as to his good character. A finding of dishonesty is a significant step in any proceedings and as I have said, it is not one I am prepared to make without great care. As I have said, I considered PY to be essentially an honest witness. I am not satisfied that anything he said in his provocative email of 19 September 2013 was the product of dishonesty. Given the content of the email, its intemperate tone and the comparative ease with which PY could have ascertained whether RC had the power unilaterally to remove him from the EC and whether the EC supported his removal, I am satisfied that these aspects of PY's accusations on this issue were made irresponsibly. In other words, a responsible person would not have made these accusations.

151 At several places in these reasons, I have observed that, in my view, PY was treated poorly by the FIP administration. By that, I mean that I consider once it was proposed by RC that PY be dismissed from the EC and FC, he should (at least) have been given an opportunity to respond to that proposed course. As I have observed, PY had served FIP and the broader polo community for decades. He had contributed vast amounts of time and money to the sport and, in my view, deserved better than summary dismissal notified in an email.

152 It is unnecessary to make any legal finding as whether a breach of procedural fairness occurred. It is sufficient to state that, in my view, his interests (including a reputational interest) were affected by FIP's administrative decision, and he did not receive a fair and unbiased hearing before that decision was made.

153 From early 2014, PY sent a number of emails to FIP related recipients concerning FIP's management of its bank accounts. FIP, at relevant times, held two bank accounts at a National Australia Bank ('NAB') branch in Victoria. I particularly refer to emails sent on 22 January 2014,[91] 3 February 2014,[92] 4 August 2014,[93] and 24 September 2014.[94] It is necessary to reproduce those emails.

Dear Members

As the international governing body FIP's credibility, reputation and standing among its members are of critical importance.

Unfortunately under the current President the reputation of FIP has been and is being damaged.

Maybe the President is not receiving the directions he should from the Executive Committee. The Executive Committee appears to fail to understand that the President is bound to follow their directions.

A couple of examples of the Presidents ineptitude which has resulted in damage to FIP's reputation:

At the Super Nations Cup in October 2013, the President informed the Chairman of Hurlingham that FIP had delegated the responsibility for the details of running this tournament (Super Nations) to the local Metropolitan Polo club tournament committee, an entity that does not exist save in the evasive mind of the President. This is a complete absurdity and damages FIP's reputation as FIP is paid a substantial fee to organise the tournament. Fortunately this nonsense was not widely disseminated.

The next example of damage has been much more widely disseminated and now known among a large number of FIP members and has been the subject of complaints by them.

FIP has written, contractual financial obligation to pay the 12 countries participating in the Snow Polo the balance of their initial sponsorship entitlement being $75,000 per team which amounts to $900,000. Such payment was due to be made by 31 December.

The financial management of FIP has been so incompetent and inept that it has not presently the cash available to meet this obligation which is now 3 weeks overdue. The member countries have made commitments based on FIP's obligations to pay.

The responsibility for ensuring FIP meets it financial obligation ultimately falls upon the shoulders of the President.

Let me point out a simple procedure that should be followed when you have a commitment that you cannot meet. It is courteous, polite and plain common sense to write to the parties to whom you have the obligation and advise them you are unable to meet the obligation of the due date so they adjust their position accordingly. You know you cannot meet the obligations before the due date thus you write before the due date. Alex surely you know this is appropriate, proper commercial practice.

However such is the strength of character of the President and his continued failure to face reality and to weasel out of responsibility that he insults the intelligence of those member countries who are, in effect, his shareholders by ignoring them and failing to communicate with them.

Let's see how he slithers out of the obligations, what reasons he gives and upon whose shoulders he places the blame. Nicholas, I hope you will come to the Presidents aid with your usually ragbag of adjectives without a noun upon which to hang them.

The financial mess requires a detailed report to the Council of Administration as required by article 30.8 of the constitution.

Somebody needs to advise, guide and counsel this inept clown, which noun is used of one whose acts make people laugh in disbelief. The Presidents (sic) explanation of the player's box problem also produced disbelief and mirth among the members. The Presidents (sic) abdication of his responsibility to attend post match meetings, as done by previous Presidents, further diminishes FIP's standing.

I have some slight knowledge of how hard it was to improve FIP's financial position and its current inability to pay its debts as and when they fall due does not engender a warm and fussy feeling in my breast.

Please ensure prompt action is taken and a report pursuant to article 30.8 is received detailing how and why this situation arose.

All the Best.

Cheers

Peter

Dear Richard

Let me tell you one way you could solve FIP's present financial problem, which is that it is unable to meet its contractual financial obligations when they fall due. This problem arose to a large extent as a result of your commercial incompetence and lack of both inter personal skills and common sense:

Step one: put your hand in your pocket, not FIP's, since you principally caused the problem and buy a return ticket to Hong Kong. I realize such an action is difficult and painful for you as your reluctance to do so has been well demonstrated.

Book accommodation of your choice which again you can pay for, not FIP, then you sit with the Metropolitan/Goldin officials until you solve the problem.

Since you claim a special relationship with Mr Pan maybe you go right to the top and you pay for Wesley to go with you so nothing is lost in the translation, or alternatively you send Nicholas on the same mission using the same manual movements in respect of payment.

You have in the past frequently trumpeted Nicholas's special relationship with Mr Pan.

By adopting the method above I was able to see FIP had funds to enable it to meet its obligations.

Your claim of a special relationship for yourself and Nicholas may be doubtful as neither of you were seated at Mr Pan's table at the Gala Dinner.

You don't get your photo taken for this task but you do help to restore FIP's credibility with its members which your stupidity and incompetence has damaged on a number of occasions in the past such as the advice you gave John Wright as to who organized the Super Nations Tournament. Go and reread what John sent to David Woodd as a result of the fatuous nonsense you told him designed solely to enable you to shirk your responsibilities. In this financial situation the buck stops with you. You will, no doubt, again try to weasel out of responsibility and blame anyone you can think of in an endeavour to maintain your self-induced blameless position.

All the best

Cheers

Peter

Dear Richard

As your term if fortunately drawing to a close I thought the Members might be interested in a short summary of your ineptitude, incompetence and failure to implement agreements you made to advance FIP's Mission and your myopic vision of FIP's development due to your extremely limited comfort zone and the minimal exposure you have to the polo world of FIP.

Given your well documented failure to communicate facts to the relevant parties and your selective briefing of carefully chosen incomplete facts to others to demonstrate your Sun King persona and outstanding brilliance, therefore, it is appropriate that I set out for Members your numerous abject failings to give you the opportunity to refute them or, as is your usual reaction, find someone else to blame.

You agreed:

1. To visit Africa to develop the idea of an African League along the lines of the European Zone Championships which has been a great example of the implementation of FIP's Mission. You did nothing.
2. To further the proposals as enunciated by member countries at the Zone D play off in Malaysia and conveyed to you on a number of occasions. You did nothing.
3. To have detailed discussions with South Africa with a view to them holding an Ambassador Cup and/or Zone D play off. You did nothing.
4. To implement Piero Dillier's suggestions, which I forwarded to you, to expand the number of persons entitled to play in Ambassador Cups. You did nothing. You advised me you had forwarded this information to Nicholas. He told me he had not received it. A small example of your continual failure to implement agreements.

The above all fall clearly within FIP's Mission to develop polo in emerging countries and to develop and further increase the FIP family.

Please advise Members what you have done to further FIP's Mission and expand the FIP family during your term. Also advise the benefits that will accrue to FIP as a result of the Deauville exercise which will provide you with some excellent photographic opportunities.

Now let's deal with ineptitude, incompetence and an abysmal lack of any operational ability and a complete ignorance of procedure and protocol.

1. In December 2012 you agreed to open a FIP bank account with HSBC. This was not done. Does FIP now have a bank account? You do not understand how to take control of a bank account. You do not understand how to open a bank account.
2. You do not understand the importance of the Executive Committee to control the organisation's bank account.

1. This unbelievable ineptitude of a single commercial situation is the sole cause of FIP's financial condition and causes a lengthy lament by the Chairman of the Finance Committee, which merely confirms his unbelievable commercial ineptitude particularly given his calling.

1. You approved the fabrication of reasons that cannot be justified for failing to implement procedures for the election of B and C country representatives.
2. You agreed in December 2012 that such procedural amendments were necessary. You have done nothing to implement this agreement.
3. You have no understanding of the appropriate procedure to elect a Chief Executive of your governing body, the Council of Administration.
4. You failed to involve the Council of Administration, as required by the Constitution.
5. You annoyed a major sponsor by pushing to get your cronies Derek and Pat freebies at the Gala Dinner held at the 2013 Snow Polo. I had to placate the sponsor and give assurances that there would be no more freebies other than for those FIP personnel named in the Sponsorship Agreement.
6. At an Executive Committee meeting you appointed the verbose and hyperbolically afflicted Derek to organise FIP's insurance. This was not an Agenda item and you had to retract the appointment when the stupidity and inappropriateness was pointed out to you. What a shame your old crony lost this ever so important position.
7. Your unilateral actions in appointing Chairmen of Committees without consultation, or communication, is confirmation of your complete lack of understanding of procedural protocol that demonstrated the Commander Caleel persona, as published in the Montecito Journal.

1. You failed to attend any post game meetings of FIP Tournaments at which you were present. This has been the practise of all former Presidents but, of course, you are different. No doubt your non-attendance was due to your lack of knowledge and well documented ability to do anything to avoid having to make a decision in a situation which may become confrontational.

I shall not continue this litany of failures, however, should any Member wish further detail it can be supplied.

Richard, please refute the above, an unlikely possibility as your inability to respond to any questions or statements during the last 15 months speaks for itself of a significant defect, or aberration, in your psychological makeup and, at the same time, inform the Members of your achievements during your tenure of office to implement FIP's Mission statement.

All the best

Cheers

Peter

Dear Alex

Due to increasing decrepitude I am now a little out of touch with appropriate forms of procedure, protocol and communication and somewhat rusty on acceptable and appropriate commercial procedures and what level of competence is expected from holders of various offices.

I would therefore appreciate if you could enlighten the members, some of whom may be similarly impaired on the following issues:

(a) How at a Special General Assembly to "Reform the Federation of International Polo's original Bylaws" you are able to make the statement that "in this Special General Assembly there will be no discussion because all items in the agenda will be pre approved"

Who pre approved all the items on the Agenda? Was it yet another unilateral act of the great Commander, aided and abetted by yourself, and where was Nicholas?

Your extraordinary statement is a blatant insult to all members of FIP as is your failure to advise what provisions the new bylaws contain.

(b) Why the Chairman of the Finance Committee took no steps to take control of the associations bank account and this failure resulted in FIP being unable to meet its contractual obligations.

(c) Why the Chairman of the Finance Committee was unable, or incapable, of opening a bank account for the organisation. As Chairman of the Finance committee did you have the vaguest idea of your responsibilities?

(d) How did the Chairman of the Committee formed to appoint the CEO was able to appoint himself to the position of CEO without any due process whatsoever. Did you present your CV to the EC? Was a job description written? Were the terms of your appointment in writing specifying your specific duties and responsibilities?

Maybe this was unnecessary since it was all in your head and your dismal failure as Chairman of the Finance Committee as outlined above did not appear to be a relevant issue to you.

(e) Why for the first time in 30 years; (i) FIP has not received a fee from the country holding the World Cup but instead has taken on a contingent liability which may amount to $150,000 (ii) Only two teams nominated for the Zone D playoff.

(f) Why appropriate procedural provisions for the election of B & C countries have not been put in place, or are you going to slip something into the pre approved reformed bylaws which the members know nothing about and hope it will go through unnoticed?

I will not bore you with the endless litany of commercial and operational failures.

Richard has demonstrated his ineptitude and incompetence in all operation and procedural matters and this could be of no assistance to you.

Nicholas, on the other hand, having been a Steward and then Chairman of Hurlingham must surely, under the tutelage of the extremely competent David Woodd, have learnt much of procedure, protocol and commercial common sense. But, of course, sometimes it is a pain to comply with these requirements and given that Richard has no idea, and you appear also to lack knowledge in the area it is easier maybe for him to do nothing and just go with the flow.

In my view there needs to be new blood on both the Executive Committee and the Council of Administration neither of which appear to have been able to provide assistance and guidance to Richard who is an excellent figurehead but is completely ineffectual as a leader.

Incompetence is the opposite to magnetism, likes attract.

All the Best

Cheers

Peter Yunghanns

158 In short, the substance of the bank account related accusations (which the defendant contended are untrue) is as follows:

(a) FIP could not meet its financial obligations to pay participating 2013 Snow Polo Tournament countries sponsorship entitlements of $75,000 each. This is due to inept and incompetent financial management.

(b) FIP's inability to meet its contractual obligations arose as a result of RC's commercial incompetence. He did not understand how to take control of a bank account, open a bank account or that the EC should control that bank account.

(c) RC's financial ineptness is the cause of FIP's financial condition.

(d) The failure to open a bank account in a timely way was the sole cause of FIP's financial situation.

(e) AT took no action to take control of FIP's bank account and this has resulted in FIP being unable to meet is contractual obligations.

(f) AT was unable or incapable of opening a bank account for FIP and did not have the vaguest ideas of his responsibilities.[95]

159 The plaintiff contended that by August 2013, as he had been dismissed from all committees for some months, it was reasonable that he cease operating the NAB accounts and thus cease processing FIP payments, including wages. He submitted that in these circumstances, no member of the EC or FC took steps to either take control of the NAB accounts or transfer the FIP banking to a new account of its choice.

160 It is convenient to consider this issue in the light of two questions which capture the circumstances that underpinned PY's accusations:

(a) Why did FIP fail to meet its financial obligations in relation to the participating Snow Polo countries?

(b) What role did RC and AT play in any failure?

162 I shall set out a summary of some of the relevant evidence that I have considered on this issue.[96]

163 PY's evidence was that a bank account was opened for FIP in 2009 at NAB. After Mr Ashton's death, PY was a signatory, along with EH, and the account was administered by PY's secretary. In late 2012, PY suggested to RC and AT, then the president and treasurer of FIP respectively, that the FIP bank account be moved from NAB in Melbourne to the HSBC Bank in Buenos Aires. This evidence was not disputed.

164 On 2 August 2013, months after he was removed from the EC, PY contacted Mr Felipe De Sel ('FDS'), the FIP administrative assistant in Buenos Aires, and told him that he, PY, would no longer administer the bank account. He said this was because it took up too much time and, as he was no longer a member of the EC, it was not appropriate that he continue to administer it. He denied that his decision was a form of retaliation for his removal from the committees of FIP.

165 On 15 September 2013, PY received instructions from AT for the transfer of the funds in the NAB account to the new bank account with Standard Chartered Bank, Singapore.[97] PY was able to send only $350,000 per day.[98]

166 PY said that in January 2014, he became aware FIP had not paid agreed amounts, US$500,000 in total, to country participants of the Snow Polo Tournament. On 21 January 2014, PY wrote an email to FIP members, advising them of this outstanding payment, 'FIP has a written, contractual financial obligation to pay the 12 countries participating in the Snow Polo the balance of their initial sponsorship entitlement [which] was due to be made by 31 December.'[99]

167 In the Taylor Report, it was alleged that the reason for the delay in the payment to the country participants was that PY had closed FIP's Australian bank account in retaliation for being removed from the EC and FC. PY denied this allegation was true.

168 AJ said there had been discussions in the EC for some time as to the establishment of a new bank account. He agreed that PY suggested that FIP open an account in Buenos Aires and transfer the funds from the Melbourne account into it, and that RC, AT and AJ himself all agreed it was a good idea.[100] Despite the discussions and plans, he never heard about a new bank account opening and, as a member of the FC, he never saw any forms in relation to opening a new account.

169 AJ said it was his suggestion that FIP should use the FIP Properties Limited ('FIPPL') account to receive funds. He opened the FIPPL account in Singapore in September 2013.[101] The purpose of FIPPL was to manage the marketing and business arm of FIP, and also served temporarily as the recipient account for the money held in the Melbourne account, which PY had formerly been administering. He said he was not sure whether there was a link between PY's refusal to operate the Melbourne bank account and additional tax payments for the transfer of Goldin funds to the new FIPPL account.

170 Once FIP had decided to use the FIPPL account to temporarily hold FIP's funds, PY arranged for the money to be transferred to the FIPPL account, which was required to be done in allotments of US$350,000 per day.[102] Transfers went smoothly and were completed by 25 September 2013.[103] PY administered the bank account even after he was removed from the FIP committees, and made the required payments to FIPPL as soon as he was asked. AJ agreed that PY, in his email to FDS advising that he would no longer administer the bank account, made a link between his removal from FIP committees and his inability to continue to administer the bank account. He thought, however, PY was implying that the person administering FIP's funds should be on the committee, and he did not think this was a reference to PY being upset at his dismissal.

171 NC-D said that on 2 August 2013, he received an email from PY to the effect that PY would no longer manage the FIP bank account, which was based in Melbourne and of which PY was the sole signatory.[104]

172 In the preceding months, FIP had been attempting to open a new bank account, but was having difficulty because FIP's by-laws were not yet registered in Uruguay. He said several attempts had been made to open accounts in Switzerland and Brazil.

173 In September 2013, a new bank account was opened in Malaysia under FIPPL, which was effectively a subsidiary of FIP. As FIP was having difficulties opening an account, it was decided that the money from the Melbourne bank account should be transferred to the FIPPL account until a FIP bank account could be opened. NC-D said PY transferred the funds from the Melbourne bank account to the FIPPL account as requested.

174 RC said that sometime in the second half of 2013, PY made it known that he would no longer administer the funds in the FIP bank account in Melbourne, of which PY was sole signatory. PY's refusal to administer the FIP funds meant the contract between MPC/Goldin and FIP had to be redrafted to ensure the funds owing to FIP were deposited into the FIPPL account instead of FIP's account in Melbourne. There was therefore a delay in payment from MPC/Goldin, and a subsequent delay in FIP meeting its obligations to participants in tournaments. In cross-examination, RC agreed the delay was caused by several factors, including the Chinese New Year holiday and FIP's difficulties in opening a new bank account. RC agreed that in December 2012, PY had suggested to RC that FIP move its bank account from Melbourne to Buenos Aires. He was unsure whether the amount in the FIPPL account before the deposit of MPC/Goldin funds (US$1.48 million) was sufficient to fulfil FIP's contractual obligations.

175 AT said that on 2 August 2013, he became aware of an email PY sent to FDS, in which PY said that 'in view of the fact that I have been sacked by the great Commander Caleel neither I nor my staff are able to fulfil any functions' in relation to the FIP bank account. PY was sole signatory of that account. PY's decision created immediate difficulties. FIP could not pay rent, nor the salaries of three people on the payroll.

176 FIP attempted many times to open a new bank account, but was unable to do so because there was no copy of FIP's by-laws certified by the Uruguayan government. He said the EC authorised him to open an account with Credit Suisse in Switzerland and Itaú Unibanco in Brazil, but he was unable to do so. He agreed that FIP eventually opened a bank account before FIP's by-laws were validated in Uruguay, but said that was because the by-laws had been partially validated and there was enough evidence at that time to open an account, which was previously not the case.

177 Around this time, FIP, through AJ, incorporated a company called FIPPL in Singapore. FIPPL then opened a bank account with Standard Chartered Bank. PY transferred the money from the NAB Melbourne account to the FIPPL account.

178 AT said this solved initial financial difficulties in that FIP was once again able to manage its finances. It, however, created problems with the agreement with Goldin, because each contract between FIP and Goldin (global contract in 2012 as well as contract for each polo tournament) had a schedule of payment, nominating the Melbourne account. Each contract had to be rewritten and agreed between Goldin and FIPPL. The money was supposed to arrive from Goldin in August or September 2013, but in fact arrived in March or April 2014.

179 AT said he could not transfer the management of the NAB account in Melbourne to another EC member. It was more complicated than simply asking for the password, and would require board resolutions, appointing other people and sending documents. He said that while in retrospect it would have been appropriate to take control of the Melbourne account, the FC considered at the time that nothing could be done to gain control over the Melbourne account, and that PY would not cooperate.

180 AT stood by the comment that the delay in paying participants of the Snow Polo Tournament was as a result of PY refusing to administer the Melbourne account. He denied the delay could be attributed to FIP's accounting practices.

181 In my view, it was reasonable for PY to decline to administer the NAB accounts[105] after August 2013. He had been summarily dismissed from his committee positions months earlier, he had administered the accounts on a voluntary basis for many years, and he had advised AT and RC to arrange for a new FIP account as early as December 2012. In May 2013, PY notified AT that the final MPC tranche of a 2012 receivable had been paid into the NAB account and that it ought be transferred into FIP's new account.

182 Clearly, this could not occur at that stage because FIP had not yet opened a new account. AT replied to PY that '[w]e are working on the subject',[106] and that FIP were waiting for the documentation from Banco Itaú in Brazil.[107] Months went by.

183 On 1 August 2013, FDS, FIP's administrative officer, emailed PY's assistant (copied to PY):

Albert sent me an email telling me he has not received his July salary. Are we having any problems with transfers?[108]

[I]n view of the fact that I have been sacked by the great Commander Caleel, neither I nor my staff are able to fulfil any functions.[109]

You might inform the arrogant, ignorant and incompetent Commander Caleel that as I have pointed out to him principle 101 of management is to see your troops are looked after, 101 is if you remove a performer of a function, you ensure that somebody fulfils that role. Such mundane but necessary administrative matters no doubt would not occur to him ...[110]

For your information. Your lack of action confirms the adjectives I have used in my letter to Alex.

In the circumstances it is appropriate that you pay the salaries out of your own pocket and recoup them when you have made the appropriate edicts.[111]

187 On 5 August 2013, AT emailed PY and explained that the FIP by-laws needed to be certified before they could be presented to the Uruguayan authorities. This, he said, was a result of FIP's previous administration failing to comply with its filing obligations. This was holding up establishing bank accounts in Uruguay.

188 PY's response on 5 August 2013 provides an insight into the depth of his hostility at that time:

The good Commander interfered with the agreement I made with the EC ...

When I wrote and I advised he did not understand that he was subject to and bound by the decisions of the EC (which, by the way, he confirmed in writing) he suffered a fit of pique as his absolute authority was being questioned and negated, an unbearable affront to a Sun King, show pony.

In my view, his many actions confirm he is nothing more than an evacuative organ for the disposal of faeces. He worked hard to remove me and, therefore, he must write to me for any assistance that is required as a result of his actions. You, no doubt, can guess the answer.

I have suggested how he solves the problem in my letter to him. Let him do it. However, this involves him putting his hand in his pocket, an unlikely action due to a rattle snake residing there.

Alex, sorry to cause you a problem. I certainly have no wish to do this but we are blessed with an arrogant, ignorant and incompetent peacock who has no people skills, nor any idea of leadership or management. Fortunately he has less than 18 months to go ...[112]

189 On 7 August 2013, PY emailed AT and stated he would 'certainly effect the transfer of all FIP funds to the new account when you nominate it'.

190 In September 2013, AJ arranged for an account in the name of FIPPL to be opened in Singapore.[113] PY transferred the balance of the NAB accounts, which by this stage included the MPC monies, to be paid in a series of tranches into the FIPPL account. Both AT and PY agreed (at PY's suggestion) that it was sensible to leave the NAB accounts 'live' for a few months in case payments were made into them.

191 At no stage during this period from December 2012 to the closure of the NAB accounts on 18 October 2013, did anyone from FIP seek to take control of the NAB accounts or change the signatories for those accounts to FIP personnel. I regard this omission as extraordinary. AT, when pressed about this, stated that he did not believe PY would cooperate with FIP taking control of the NAB account. Given the tone of some of PY's correspondence at about this time, this belief, which I accept was genuinely held, is not completely unreasonable, however, the inquiry should have been made. PY was intermittently acting reasonably and had agreed to facilitate the transfer of the funds and suggested that the NAB accounts be kept open for a time. It would not have been difficult to ask him if he could cede control of the account to FIP personnel until such time as a new account could be arranged. I am surprised FIP did not.

192 Throughout this period, the salaries of the three salaried FIP employees were paid by RC, AJ and AT. PY emailed RC on 8 August 2013:

Have you had the courtesy to advise the staff, who have not been paid, the reason? Do not blame it on somebody else. The buck stops with you. If your cranial carapace is so impervious that it does not allow the simplest principle of management to permeate you must apologize to staff for the defect ...

193 Whilst I have stated that I consider it was reasonable for PY to decline to further administer the NAB account, I consider that he took considerable pleasure in doing so. It is impossible to avoid the conclusion from his early August emails that he was revelling in the embarrassment he had caused within FIP by declining to further operate the NAB accounts. I consider that, in the email of 5 August 2013, he relished the discomfort he had caused, to the 'show pony' - the 'Sun King' who was 'nothing more than an evacuative organ'. I am positively satisfied that PY refused to further administer the accounts because he had been dismissed from the FIP committees.

194 This issue flared again at the start of 2014. As I have observed, FIP had an obligation to pay US$900,000 to the participating countries in the 2013 Snow Polo Tournament held in Tianjin. These payments were due on 31 December 2013. They became overdue. The immediate reason they became overdue was that the MPC, who held the Snow Polo Tournament, was authorised only to pay the funds to the now defunct NAB account and it was proving difficult to arrange for that authorisation to be changed. Thus these funds could not be applied to the FIP obligation to the participating countries. There had also been a suggestion that a change in venue for these funds might give rise to a tax liability in China.

195 On 11 December 2013, Mr Tan from MPC received an email from RC about new contracts for the January 2014 Snow Polo Tournament. These contracts had not been signed. Mr Tan forwarded this email to PY, stating:

Hi Sir, fyi, we are less than a month before the event and we have not gotten a formally signed agreement and there's still outstanding payment from Goldin re SNC 13. FIP is already behind on its sponsorship payment obligations to participating national associations ... this is not good ...

Thanks for the update. I have emailed Asad my views which, summarised, say, I can see no need for haste, let Caleel stew a little bit.

197 This email also provides some insight into PY's relationship with MPC/Goldin.

I have been forwarded the attached emails and I copy my response to Albert.

Regarding Caleel's "cover my arse" email, why don't you send the contract with one of your flowery emails to the Deputy President for his approval first before submitting to the China Committee. Let more time elapse and the situation degenerate particularly if you decide to use a parachute. A rescue operation may then be necessary on appropriate terms.[114]

199 On 3 January 2014, AJ emailed the EC attaching three unsigned endorsement agreements naming FIPPL as the counterparty. AJ stated:

Signing has been delayed as we have been negotiating to see if there is a way forward on not having to pay taxes due to the closure of the Australian bank account ...

Funds will start to flow more once we have the contracts signed. The contracts are between FIP Properties P/Ltd and Goldin because FIP does not have a bank account.

200 Against this background, PY emailed various FIP members, pointing out that FIP was defaulting on its obligations.[115] The Taylor Report was prepared. As this is the subject of a separate pleading, I shall consider it separately, although it is intertwined with the bank accusations and indeed was prepared as a response to them.

201 In evidence, the defendant and his witnesses put forward various reasons for this banking impasse. PY had submitted to FIP what he styled as an 'aide-memoire' on 12 December 2012.[116] It included PY's suggestion that the FIP bank account be shifted to HSBC Buenos Aires. The problem with the proposals to open a new account, according to the defendant's witnesses, revolved around FIP having an insufficient legal status to qualify to be able to open such an account. AT gave evidence that FIP was not recognised by Uruguayan authorities as having any legal existence due to its failure to present evidence of GA modifications to by-laws since its incorporation in 1989; further, it did not have a certified copy of the original 1989 document verifying its legal status. AT stated in evidence that he understood that until various steps were undertaken by FIP, it was unable to open or conduct a bank account in Buenos Aires.

202 Various contemporaneous documents evidence the difficulty FIP was having in establishing a bank account. The problem was succinctly spelt out in an email by Mr Tan (MPC/Goldin) to AT and FDS (FIP) on 14 May 2014. Mr Tan referred to the urgent need that had arisen for FIP to set up the FIPPL account in Singapore so as to continue FIP's banking whilst FIP's legal status was sorted out. He observed that FIP could not hold shares in FIPPL until FIP's legal status is sorted out.[117]

203 AT described the genesis of the problem to PY in an email of 3 August 2013,[118] which responded to PY's decision to cease operating the account:

... the bank needs a certified copy of the bylaws, and in order to get that we need to demonstrate that FIP has complied with General assemblies since it was formed. As you well know, although the GA's happened, FIP never presented these documents in Uruguay.

204 Whilst there is no doubt that there were legal problems that precluded the timely opening of a bank account in Uruguay, in my view, this does not adequately explain FIP's failure to make adequate banking arrangements from at least May 2013. The NAB accounts remained open for some months after PY's decision to cease his operation of them and no effort was made by AT or some other FIP representative to take over the operation of those accounts.

205 The defendant alleged that PY was dishonest when he made his bank account accusations, which I have summarised at paragraph 158 of these reasons. This raises a subtle question. Whilst I consider PY must have known that his refusal to continue to administer the NAB accounts made FIP's management of its finances very difficult, he was entitled to conclude that his conduct in relation to the NAB accounts was justified. If the question of causation is approached from a point in time after PY had reasonably ceased to operate the NAB accounts, then FIP's (RC's and AT's) inactivity (against the background of the by-laws deficiency) was the sole cause of FIP's financial problems. There was only a joint cause if the question of causation is considered from a point in time before PY decided to refuse to administer the accounts any longer.

206 In my view, the question of causation should be examined in light of all of the evidence including PY's actions in refusing to operate and then closing the NAB accounts. In truth, FIP's financial problems were the product of both PY's refusal to further conduct FIP's bank account and FIP's inertia in making alternative banking arrangements. Given my assessment of PY, the character evidence called on his behalf and the uncertainty surrounding this issue of dishonesty, I am not satisfied that in making the various assertions in the impugned 'bank account' emails that he acted dishonestly. In other words, I am satisfied that he genuinely believed that the sole cause of FIP's liquidity crisis was FIP's failure to make timely alternative banking arrangements. Given the subtle distinctions between his belief and the true joint causes that I have found, I am not satisfied that he made this claim irresponsibly.

207 I conclude, however, that NC-D has proved that it was factually incorrect for PY to assert by implication that the sole cause of FIP's inability to meet its obligations was RC/FIP's financial incompetence. PY's closure of the NAB accounts was a joint cause of this inability.

208 I am of the view that the defendant has proved the plaintiff has acted vindictively.[119] PY was affronted by his dismissal from the EC and FC. He was entitled to believe he had been treated badly by FIP administration and he embarked upon a withering counter-attack. His prolific use of pejorative language evidences the conduct of a person who was seeking vengeance.[120] Describing RC as a 'show pony', the 'Sun King' and an 'evacuative organ for the disposal of faeces' is the clearest evidence of this.[121]

209 I am not satisfied that the defendant has proved the falsity of the plaintiff's accusations that FIP's/RC's financial management of the bank accounts was inept or incompetent.

210 In summary, I am satisfied of the following propositions:

(a) FIP was unable to access the receivables owed to it by MPC/Goldin because for a time, it did not have a bank account authorised to receive those monies.

(b) The failure of FIP to make adequate banking arrangements before and after the dismissal of PY from its committees was incompetent and/or inept.

(c) AT, RC and NC-D as CEO, president and vice president respectively, must bear the blame for this financial incompetence and/or ineptness.

(d) It was reasonable for PY to decline to further administer the NAB accounts by August 2013.

(e) PY had a collateral purpose in declining to administer these accounts. He wished to cause as much embarrassment and discomfort to RC and the FIP administration as he could.

(f) He achieved this.

(g) The causes of FIP being financially embarrassed through temporary insolvency were its failure to put in place proper banking arrangements in a timely fashion, and PY's action in refusing to administer the NAB accounts after August 2013.

(a) The defendant has proved the falsity of PY's accusations that RC/FIP's financial incompetence was the sole cause of its financial embarrassment in early 2014.

(b) The defendant has not proved that PY made any accusation on the bank accounts issue dishonestly or irresponsibly.

(c) The defendant has not proved the falsity of PY's accusations that FIP's inability to meet its financial obligations arose, to a large extent, from FIP or RC's financial incompetence.

(d) The defendant has proved that the accusation that AT took no action to control FIP's bank accounts is factually incorrect. He took some action, albeit (in my view) totally inadequate action, as I have explained.

212 Thus NC-D's defence of truth on accusations (b) and (c) have not been established. Accusations (a) and (d) have been established.

213 This aspect of the defence is linked to the 'bank accounts' issue and these two components should be read together. The oral evidence that I have set out in the 'bank accounts' section also should be read in connection with this part of these reasons.

214 In emails dated 10 April 2014 and 4 August 2014, PY made accusations to the following effect:

(a) that the report presented to the C of A regarding the closure of FIP's bank account (the Taylor Report) is a complete fabrication and totally misleading;

(b) that 'we now have a lack of integrity, honesty and common sense raised to the power of three, whereas before it was merely cubed (sic)'; and

(c) that RC fabricated a self-serving report to the C of A.

215 The defendant alleged that these allegations are not genuine, authentic or truthful on the basis that:

(a) the Taylor Report stated that FIP was delayed in its receipt of money due to the plaintiff preventing FIP from accessing its funds; and

(b) the Taylor Report was therefore correct or substantially correct.

216 The defendant alleged these accusations by PY were knowingly false or alternatively, made without proper basis or attempt to verify their accuracy.[122]

217 The plaintiff in his reply states that the statement in the Taylor Report - 'the reason for this delay by MPC is that since [the plaintiff] closed FIP's bank account in Australia in retaliation for being removed from the EC for unacceptable behaviours, FIP has not been able to open a new account because of the Bylaws situation' - is false and the defendant knew it was false.

Dear Council of Administration

The following is an update on both the Financial Obligations and the Bylaws issue.

FIP's contractual financial obligations

The present situation is that FIP is owing participating countries of the SPWC 2014 the balance of their initial sponsorship entitlement. This amounts to a total of US$ 900.000. FIP hasn't been able to pay this obligation because we haven't been paid by MPC either the expenses of SNC 2013 or the SPWC 2014.

Using our reserves we have managed to pay all our obligations on the SNC 2013, plus the advance monies to countries participating in the SPWC 2014 (US$ 275.000), and all current expenses up to date as well as the fees to all officials of the SPWC 2014.

The reason for this delay by MPC is that since PY closed FIP's bank account in Australia in retaliation for being removed from the EC for unacceptable behaviour, FIP has not been able to open a new account because of the Bylaws situation which we will explain in 1.2.

In order to solve this situation in the short term FIP asked MPC to make the payments to FIP Properties account. To do this and to comply with China's regulations, new documents had to be signed between FIP, FIP Properties and MPC and presented to the Chinese Tax authority and Central bank. All of this has been done and now we are awaiting the end of the Chinese New Year holidays (February 15th) to receive the payments. This means that with the additional China Tax costs after having to change the destination account of around $60,000 PY has regrettably caused a lot of damage and additional cost by his behaviour which was not in FIP best interests.

Bylaws - B and C countries

FIP Bylaws were created in Buenos Aires in February of 1989 and approved and filed by the Uruguayan Authority (UA) in August of that same year. Since then no other document has been filed in Uruguay. According to the Uruguayan law every year FIP should have registered its General assembly meetings as well as filed any modifications of the Bylaws for its approval and registration. Unfortunately this was never done by previous Administrations.

On top of this, over the years, the original copy of the Bylaws have been lost. In 2012 we started to work on the regularization of the Bylaws situation. To that effect we worked on modifications to the Bylaws which were approved during the GA of December 2012, and in Uruguay to register the modified Bylaws. Late last year we were able to obtain certified copies of the original bylaws by the UA and started the process of registry of the modified Bylaws. This is a process that will take several months as we have received response from the UA that we need to file all the GA's since 1989 to date. We have hired a law firm as well as an accounting firm in Uruguay in order to comply with all the necessary steps.

Until FIP complies with all these steps we won't be able to open a new bank account or modify the bylaws to change the B and C countries representative's election process. The EC has been working extremely hard over the past 2 years to resolve this situation and hopefully it will be completed prior to the next General Assembly.

Response to Peter Yunghanns

It seems that PY is using these issues to execute his personal vendetta and attack Richard Caleel, primarily, and the EC for voting him off the EC, Finance Committee and China Committee after he failed to take heed of the warnings over his disruptive e-mails.

PY was well aware that if FIP's bank account was closed in Australia and that it would take considerable time to open a new account because of the Bylaws situation. This is quite clear when on August 2nd 2013 he wrote:

"In view of the fact that I have been sacked by the great Commander Caleel neither I nor my staff are able to fulfil any functions" and the same day in an email addressed to RC and copied to the EC.

In the circumstances it is appropriate that you pay the salaries out of your pocket and recoup them when you have made the appropriate edicts. PY and his secretary were the only authorized persons to manage FIP's account in Australia.

And now with the delays with MPC he wrote to RC on February 3rd."... put your hand in your pocket, not FIP's, since you ..."

With respect to the B and C countries issue he is using this also to hurt RC and it is very clear that the delay in modifying the election process is not the President's fault. Actually being PY a lawyer and having been in FIP for over 25 years he should have known of the non-compliance of FIP with the Uruguayan regulations. He should also know that Edward's response on the duration of the mandates was not based on "his" interpretation but based on the law.

Also it seems that PY is not looking to "help" FIP to improve its governance when he sends all these mails to Harvey Lee (MPC). He is hurting FIP's reputation with our main sponsor.

Therefore in an attempt to stop PY from continuing to damage FIP, we ask that the members of the C of A answer PY asking him to stop his attacks to RC and the EC. We believe this answer should be made individually as PY is presently not a member of any FIP committee nor a representative of the Australian Polo Federation, therefore he is not entitled to a formal response from either the EC or the C of A.[123]

219 NC-D bears the onus of demonstrating that the particularised accusations are untrue and that PY knew this to be the case.

220 The substantial issue distils to this: can the defendant prove that when PY stated that the portion of the Taylor Report that concerned the closure of FIP's bank account was a complete fabrication and totally misleading, this statement was untrue and PY knew it to be so?

221 If the defendant can prove this, he will have gone a long way towards demonstrating the falsity of the accusation that RC fabricated a self-serving report to the C of A.

222 I discount the accusation by PY that 'we now have a lack of integrity, honesty and common sense raised to the power of three', as it is merely abusive hyperbole. It adds nothing to the facts alleged in the other particulars of defence in paragraph 14(c).

223 The impugned passage in the Taylor Report is to the following effect: the reason why the relevant payments have not been made is that PY closed FIP's bank account in Australia in retaliation for being removed from the EC for unacceptable behaviour. As a consequence of this closure and as a consequence of FIP's inability to open a new account because of the 'Bylaws situation', payment has been delayed.

224 In my view, this is partially but not totally correct. For reasons that I have already set out, I am of the view that PY's refusal to administer the bank accounts beyond August 2014 was a joint reason for the subsequent delay in receiving the MPC/Goldin funds together with the failure of the FIP administration either to make alternative banking arrangements or to take over the administration of the NAB accounts.

225 It is strictly inaccurate for the Taylor Report to state that it was PY's closure of the accounts that was responsible for this banking impasse. It was PY's refusal to administer the accounts beyond August 2014 that was initially responsible for this, rather than the closure which occurred subsequent to that refusal. Nothing, however, turns on this.

226 As I have already stated, in my view, PY's refusal to administer the accounts beyond August was a direct consequence of his indignation at what he perceived, legitimately in my view, as shabby treatment from FIP. PY's counsel argued that, given that the dismissals from the committees occurred in April 2014, and that PY closed the bank accounts in October 2014, the timing of such closure argues against it being a retaliatory response. There would be more force in this argument if PY's email correspondence between April and October was less hostile. I have reviewed some of this correspondence earlier in these reasons. The conclusion is inevitable that PY refused to administer the accounts and subsequently closed them because he was dismissed from the EC and FC. The conclusion that he took some pleasure in doing so is equally inevitable. In this sense, I am satisfied that his refusal to administer the accounts and their subsequent closure was retaliatory.

227 The plaintiff pointed to evidence that, he contended, supported his submissions on the lack of probity of the Taylor Report:

(a) The strategy that led to the composition of the Taylor Report was initially kept confidential between RC, AT and NC-D.

(b) By 10 February, a draft of the Taylor Report was sent to the EC, including PY's ally, AJ. AJ subsequently advised the EC that he considered the Taylor Report to be inaccurate and that PY did not close the account due to retaliation or anything of the sort. There was an email trail where he was asked to close the account and transfer the funds. AJ recommended caution and stated the EC asked PY to close the account.

(c) The payments to member countries (about US$900,000) could have been paid out of the $1.4 million of the other funds, which were sitting in the NAB account and transferred to the AJ controlled FIPPL account in September 2013. Thus any delay in receiving the MPC funds did not cause the delay in paying the payments to member countries. I am unable to reach any conclusion on this, as no evidence was led about FIP's other obligations during the 2012-2013 financial year.

(d) The original suggestion that a new account be opened so that FIP's funds could be transferred across came from the plaintiff, as did his suggestion that the NAB account remain open for a period to allow for any new payments into the account.

228 Despite the force in certain of these submissions, the PY emails that I have referred to and which I will repeat are, in my view, conclusive:

(a) 1 August 2013 email to FDS: '[I]n view of the fact that I have been sacked by the great Commander Caleel, neither I nor my staff are able to fulfil any functions.'

(b) 1 August 2013 email to AT and the EC: 'You might inform the arrogant, ignorant and incompetent Commander Caleel that, as I have pointed out to him principle 101 of management is to see your troops are looked after, 101 is it you remove the performer of a function, you ensure that somebody fulfils that role.'

(c) 1 August 2013 email to RC: 'Your lack of action confirms the adjectives I have used in my letter to Alex. In the circumstances it is appropriate that you pay the salaries out of your own pocket and recoup them when you have made the appropriate edicts.'

229 On 5 August 2013, PY sent his florid 'evacuative organ' email, which is reproduced at paragraph 188 of these reasons. In the third paragraph, he stated:

He worked hard to remove me, and, therefore he must write to me for any assistance that is required as a result of his actions. You, no doubt, can guess the answer.

230 NC-D has established that the impugned passage in the Taylor Report was not a complete fabrication and was not totally misleading. NC-D has established that PY's withdrawal from the banking arrangements was a retaliatory act consequent upon his dismissal from the FIP committees.

231 He has also established that this withdrawal was a cause of FIP's financial difficulties in early 2014. In this sense, NC-D has established that when PY stated that the report presented to the C of A regarding the closure of FIP's bank account was a complete fabrication and totally misleading, this allegation was not genuine, authentic or truthful. It was false. I am satisfied PY believed that the sole cause of FIP's financial problems was RC and/or AT's financial incompetence, and that there was a sound basis for this belief, provided it was based only on circumstances that existed after PY refused to operate the FIP/NAB accounts any further. Thus when he said the portion of the Taylor Report concerning the closure of the FIP bank account was a complete fabrication and totally misleading, I am not satisfied that he made this statement dishonestly or irresponsibly.

5.6 Failure to elect B and C country members and fake entries on the website

Dear Members

I set out a few concerns and worries I have about the administration of FIP.

Firstly, the Agenda for the General Assembly does not include an agenda item for the election of Band C country members to the Council of Administration. This is important as the Council of Administration is the supreme administrative body of FIP.

This again confirms the ignorance and incompetence of the President and his complete failure to understand matters of procedure and protocol.

The incompetence of the President has been clearly demonstrated throughout the year at Executive Committee meetings and FIP tournaments.

The provision in the Constitution for the election of Band C countries is a procedural shambles. It was agreed last year that a proper procedure be adopted. Our incompetent President has done nothing.

You do not get your photo taken for this type of necessary effort.

Secondly, the Constitution provides:

30.8 All decisions made by the Executive Committee will be informed to the members of the Council of Administration and made known at the next Assembly

I understand no decisions have been reported. Does this mean no decisions have been made during the past 12 months?

FIP has now at its disposal a reasonable amount of funds and these funds were to be judiciously and wisely used to further FIP's objectives. The financial guarantee proposed to be given at the Executive Committee meeting was completely excessive and fraught with danger. I understand that it has now been abandoned.

To have better fiscal control over FIP's operations once the budget is approved the Executive Committee, or Finance Committee, should report actual against budget at least on a quarterly basis [preferably monthly].

There should be a monetary limit on the amount the Executive Committee can approve without the approval of the Council of Administration.

The collegiate, feel-good atmosphere that has prevailed in FIP for the last 30 years under

Presidents who knew and understood the FIP culture and performed their role in an exemplary manner, unfortunately, this situation no longer exists. We have a President who has demonstrated he is both parsimonious and grasping and submitted claims to which he was not entitled.

Members need to get more financial information and take a more active interest and to speak up even if this may rock the boat a little but the boat is full of holes and may be saved by actions and questions.

You have previously received information on the incompetence of the President which has significantly damaged FIP's reputation and standing in the polo world e.g: the administration and conduct of the recent 24 goal Tournament at Tianjin. The President continues to weasel out of his responsibility in a manner no other President has.

I leave it to you to take whatever steps you deem appropriate to protect FIP's financial position and restore and enhance its reputation.

All the best

Cheers

Peter[124]

Dear Members and former Members

As you are no doubt aware I have expressed concern on a number of occasions about the administration and governance of FIP under the present President.

On the 3rd December I wrote to Felipe as follows:

"Dear Felipe

Could you please deliver a copy of the Bylaws to the Hyatt Hotel for me and also send an email to me advising which B and C country representatives come up for re-election this year?"

He delivered the Constitution as requested but he did not answer my question.

On the 11th December Felipe sent me the following email:

"Dear Peter,

The terms of the B and C member representatives of the Council of Administration can be found at our website at http://www.fippolo.com/council-of-adminstration/. Additionally Dr. Caleel asked to inform you that updates on the Council of Administration's terms will be uploaded upon his return to Santa Barbara."

He knew this to be false as he had advised that no mandates expire4d in December 2012 therefore, ipso facto, all mandates expired December 2013 [as their term of appointment is only for two years]

Question (i) who instructed Felipe to write this false email which he must have known was false?

Question (ii) who instructed Felipe, or somebody else, to amend the website to show all members expiring December 2014, which was false?

This deception needs to be thoroughly investigated by an independent person, preferably a lawyer.

The Constitution or By Laws of an organization set out the procedures for the governance of that organization.

Article 24.2 provides:

"Council members are elected for a term of two (2) years and may be reelected."

Article 23.7 provides:

"Thirty minutes before star4ting or during an interval of the Assembly, those full members of "B" and "C" categories and the affiliated clubs, will meet separately to elect the individuals to become part of the Council of Administration on their behalf. Both elections will be supervised by those individuals appointed by the President, who will report the voting outcome to the Assembly."

This article has numerous manifest deficiencies e.g. there is no procedure for nomination, whose hand the nomination should be under, quorum required, time of notice required, date nominations close, who should chair the meeting, election of a resignee, proxy etc.

It was agreed at the meeting in December 2012 when the new By Laws were to be adopted that this provision was vague, uncertain and administratively inept. It was decided as such amendment was quite complicated such amendment could be made prior to the meeting of December 2013. The reason for this decision was that no mandates of the Council of Administration members expired in 2012 and the amendment had to be made before December 2013 because many mandates expired then.

The President was advised on a number of occasions of the problem and the need to have a more certain procedure to elect B and C country members. He took no action.

He did not include it in the Agenda for the General Assembly, therefore, no meeting of the B and C countries was held at the recent General Assembly, thus, the mandates of the six Council of Administration members expired as no re-election took place or new nominees put forward.

Thus under the By Laws we have a Council of Administration of six appointed members and no elected members.

The President, by his inertia, and ignorance of the provisions of the Constitution and demonstrated inability to follow procedure and protocol, if he was aware of the provisions, he ignored them and thus he effectively disenfranchised the B and C countries, who represent approximately 50% of the polo players of the world registered with FIP.

Or, alternatively, the President was aware of the provisions but had a tame Council of Administration to whom he has never bothered to report pursuant to the provisions of the Constitution and the Council has allowed him so to conduct himself.

Thus the President has effectively reduced the Council of Administration to six members who no doubt he hopes he can rely on not to rock the boat.

Now Nicholas, you are good at adjectives, how would you describe the President's actions? If I use some of what you consider to be offensive words about the ineptness or deviousness of our President will you once again spring enthusiastically to his defence?

Nicholas, as the recently retired Chairman of HPA, presumably David Woodd well coached you on the need to comply with and abide by the provisions of the Hurlingham Constitution, therefore, you have had four years' experience as Chairman, why don't you coach and assist the President who has demonstrated a remarkable lack of ability.

It was apparent from your response when I remarked on your presumptuous caption at the head table that you had not read the Constitution or, if you had, did not understand its provisions in relation to a Deputy President, what adjectives would appropriately describe your ignorance?

Why should the B and C countries not be written to and given an explanation that they now have no representative on the Council of Administration and how such a serious and unconstitutional omissions will be corrected? Would you rather I write to the B and C countries after consulting Roget's Thesaurus?

I recommend that an independent lawyer be appointed to review this situation. The website is false. It shows B & C country terms expiring in 2014. This is impossible as no elections took place in 2012.

How did these fake entries get on the website?

Who issued the instructions to insert the false dates?

Who inserted the false dates on the website?

This perfidious conduct needs to be investigated to ascertain the manner in which this deception was perpetrated.

The website is manifestly deceitful and words like aiding and abetting a conspiracy come to mind in perpetrating a deceit on approximately 50% of the registered members of FIP. I know of at least one person who wished to nominate as a member of the Council of Administration.

The conduct of the President in the above circumstances is analogous to that of the dictator of a third world country.

In any democratically conducted organization, which FIP purports to be, such conduct by a President would ensure his removal together with an appropriate sanction against anyone who had aided and abetted him in this deception.

I again refer the President to Sir Walter Scott's quote: "Oh what a tangled web we weave when first we practice to deceive".

Gentleman the ball is in your court as he has been caught.

All the best

Cheers

Peter[125]

234 Leaving to one side the personal abuse from PY, the substance of his allegations are as follows:

(a) There was no agenda item for the December 2013 GA meeting for the election of B and C country members to the C of A.

(b) The mandates of the six B and C country C of A members expired by December 2013, and as no re-election took place, after December 2013 there were no elected members of the B and C countries on the C of A.

(c) RC (by his inertia and ignorance) demonstrated an inability to follow procedure and protocol.

(d) RC ignored the provisions of the constitution.

235 The defendant contends that the mandates of the six B and C country C of A members had not expired at all.

236 The plaintiff contends that the plaintiff expressed a view, as to the expiry date of the terms of the various B and C country representatives, which was reasonably open. Thus the plaintiff did not make any false allegations.

237 I shall summarise the relatively short oral evidence on this issue.

238 The C of A of FIP was made up of the president and three vice presidents, as well as 12 council members. Of the 12 council members, six are appointed by 'A' member countries, or the 'big three' countries, being the United States, the United Kingdom and Argentina; four council members are appointed by the 'B' member countries, which are countries with more than 100 registered polo players other than the 'big three'; and two council members are appointed by the 'C' members countries, which are countries with fewer than 100 registered polo players.

239 PY's evidence was that the information on the FIP website in relation to the B and C country members was false. The website stated that B and C country elections would be held in 2014. PY said this was false because B and C country member terms were two years, and there were no B and C country elections in 2012. PY said he drew this to the attention of FIP members, and the website was changed overnight. It was put to PY in cross-examination that he was mistaken and his allegations were baseless. PY said in evidence that he was not sure if he was mistaken because it was 'a storm in a teacup' and he has not bothered to review it.

240 NC-D said PY's complaints and accusations in relation to the election of B and C country members arose out of confusion. The by-laws were changed in 2012 so that B and C country member terms were two years, but the changes did not apply retrospectively. Therefore, the terms of B and C country members elected in 2010 expired in 2014. NC-D said PY was mistaken when he said that no B and C country members would be due for election in 2014. The website was run by a volunteer in Argentina, and if there were any inaccuracies, they were mistakes and not deliberately deceitful.[126]

241 It is clear to me that PY's construction of retrospectively amended two year terms for B and C country members, otherwise validly elected for four years, is incorrect. The six B and C country members elected either in April 2010 or October 2011 were elected to dates expiring either in April 2014 or October 2015.[127]

242 At the time of the 2010 and 2011 elections, the 2008 by-laws were operative. They provided for an elected period of four years for B and C country members.

243 In December 2012, by art 24.2, a new set of by-laws provided that 'Council members are elected for a term of two years'. This provision applies, I consider, only to members appointed under those 2012 by-laws. There is nothing in the article that abbreviates or modifies existing terms. The use of the present tense in art 24.2[128] suggests strongly that the article has application only to prospective appointments. Should the amended by-laws have been intended to apply to existing four year appointments, then I consider the amendment would have addressed those appointments specifically.

244 The PY emails of 3 and 16 December 2013 make strong accusations against RC, all predicated upon FIP's failure to elect B and C country members of the December 2013 GA.

245 PY, as a trained lawyer, ought to have known that the foundation for his condemnation of RC on this issue was highly dubious. I conclude that in his haste to condemn the FIP administration at every conceivable opportunity, he failed to consider the language of art 24.2. In evidence, he explained it away as 'a storm in a teacup'. He denied he had a vendetta with RC but stated, 'I have got a vendetta with the way he's administering FIP'.

246 A subsidiary accusation was made by PY that the FIP website contained false information. This also was predicated on what I consider to be his incorrect understanding of art 24.2. His identification of the insertion of 'false dates' as 'perfidious conduct' led to him describing the FIP website as 'manifestly deceitful'.

247 I consider PY's accusations on this issue to be strongly worded, particularly offensive and entirely incorrect. I consider a little more thought would have caused him to question the foundations of his criticism. Specifically, I conclude that PY was incorrect in stating:

(a) there was no agenda item for the December 2013 GA meeting for the election of B and C country members;

(b) the mandates of the B and C country C of A members had expired;

(c) RC had (in this instance) demonstrated an inability to follow procedure and protocol; and

(d) in this instance, RC ignored the provisions of the constitution.

248 I am not satisfied that PY acted dishonestly in making these allegations. That would require a finding that he knew the foundations for his accusations was incorrect,[129] and he made these accusations notwithstanding. There is no direct evidence to this effect and the indirect evidence points away from this and towards mistake. I consider that the allegations were made irresponsibly. The language employed in making the accusations, together with the nature of the accusations themselves, demanded that proper consideration be given to the foundations of those accusations.

249 The defendant alleged that PY made a number of accusations concerning the conduct of the Super Nations Polo Tournament held in Tianjin in October 2013. The allegations were to do with a disputed substitution decision made by a tournament official during a tournament match. The allegations are said to have been made in emails authorised by PY on 16 October 2013 and repeated in emails dated 28 November 2013,[130] 22 January 2014[131] and 3 February 2014.[132] In substance, Brigadier John Wright met with RC over the substitution dispute. Brigadier Wright authorised an email in which he stated FIP had delegated responsibility for the running of the tournament to the MPC tournament committee. This email and others in a chain were sent to PY. PY's email of 16 October 2013 contained many allegations against RC, including that he had a penchant for lying, was a weasel and uttered inane platitudes. Brigadier Wright, two days later, accused PY of taking his words out of context and that it was 'utterly ridiculous' to suggest that RC had lied to him.

250 PY's email of 16 October 2013 was sent to C of A members. It reads as follows:

Dear Members

FIP's reputation and standing in the polo community are of great importance in establishing its credibility within that community. It is fragile and can easily be damaged as it was at the 24 goal Tournament in Tianjin due to the stupidity and incompetence of our President Richard Caleel, the great Commander.

I set out the circumstances as I understand them:

• Richard did not establish or organize a FIP Tournament Committee not did he attend the post games meetings, which is normal procedure for a President. Why not?
• John Wright, Chairman of the HPA becomes aware of certain administrative problems and discusses them with Richard.
• Richard advises him that FIP [who is paid a significant fee to administer and organize this Tournament and the Snow Polo] had delegated responsibility for the details of running this Tournament to the local Metropolitan Polo Club Tournament Committee [There is no such entity]
• How, when, by whom and to whom was the delegation made - maybe the weasel?
• Thus, in Richard's view, we have the Tournament sponsor who is also sponsoring a team in the Tournament and through a Tournament Committee that does not exist, being responsible for the administration of this Tournament, which sponsor has also paid FIP a large fee to perform the administrative role which in Richard's convoluted logic the sponsor allegedly has. This fabrication is designed purely to avoid Richard taking any responsibility for anything.

It is difficult to imagine a more ludicrous or damaging situation. Yet it comes as no surprise given Richard's track record of avoiding situations where he might have to make a decision.

To some extent this is understandable as he has never ever organized any FIP event.

In order to weasel out of his responsibility he misrepresented the situation and misled John Wright, in fact, he lied to John. The truth is something with which Richard has little or no familiarity.

Nicholas, in these circumstances do you still maintain your previous position that you "totally support" and "admire" Richard's action in lying to the Chairman of the HPA? Richard's penchant for lying is well documented.

Richard absolves himself from all responsibility, prancing around uttering inane platitudes whilst dressed in sartorial splendour and thus avoiding the male deer. The buck stops at the President and he is obliged to exercise the authority vested in him.

As a result of him misleading, or should I say lying to John Wright, John reports Richard's advice to the HPA. Richard responds to John's advice to Hurlingham in a most predictable manner, he says:

"I agree with John's comments regarding this unfortunate and unforeseen issue. After this mornings (sic) discussion, I asked Benjamin Araya to convene a meeting of all team representatives and the tournament directors to resolve this question before the Friday and Saturday games."

He again weasels out of any responsibility and appoints the Horse Master, not the Tournament Director or the non-existent Tournament Committee or any FIP Committee which is the responsible authority, to hold a meeting.

This is incompetence cubed. A magnificent display of non-existent leadership.

As a result of the ignorance, incompetence and arrogant attitude of Richard and his complete failure to participate in the resolution of the problems, David Woodd wrote an intelligent and completely justifiable email [as is his habit] which concludes with the comment:

"... but the FIP has not always been the easiest body to defend within the HPA and this is going to make it more difficult."

FIP's reputation has suffered significant damage due to Richard's incomprehensible stupidity and failure to take any advice from people who could help, because in his mind he knows all - however, few people are so blessed.

At the previous tournaments organized and administered by FIP no controversy remained at the end of these tournaments. Any problems were sorted out on the spot and no complaints exited at the end of the tournaments, in fact compliments were received. Richard had no responsibility for the administration of the previous tournaments. Those responsible were:

1. Eduardo Huergo who has retired and who attended all post game meetings and effectively performed the role of President in a most appropriate manner.
2. Asad Jumabhoy who at the last moment was unable to attend due to an unforeseen family situation
3. The third person was sacked by the President for unknown reasons.

As I have said before, which utterances have apparently fallen on deaf ears, somebody, or somebodies, need to sit this clown down and explain to him what the role of a President entails.

We have three former Presidents with us under whom I have worked and all of whom fulfilled that role with distinction in a manner which enhanced FIP's reputation. Maybe they are the appropriate people to counsel Richard. The FIP Executive Committee seems more concerned with a collegiate, feel good atmosphere rather than exercising its authority over the President. This failure results in the occurrence of the incompetence and stupidity outlined above and the resultant damage to FIP's reputation in the polo community which occurred at the Tournament in Tianjin.

What steps are you going to take to help restore and enhance FIP's reputation in the polo community and in particular with one of its largest members, the HPA, whose support is vital.

The ball is in your court. I hope you caught it.

All the best

Cheers

Peter[133]

251 PY made the following allegations or observations in this email:

(a) There was no such entity as the MPC tournament committee.

(b) The tournament was being administered by an entity that does not exist and that this was a fabrication made by RC and designed purely to avoid him from taking responsibility for anything.

(c) RC lied to the chair of the HPA.

(d) RC has a penchant for lying.

(e) RC absolves himself from responsibility and prances 'around uttering inane platitudes whilst dressed in sartorial splendour'.

(f) RC weasels out of responsibility.

(g) As a result of RC's 'ignorance, incompetence and arrogant attitude', he has failed to participate in the resolution of the problems.

(h) '[S]omebody or somebodies need to sit this clown down and explain to him what the role of the President entails'.

252 As I have stated, Brigadier Wright emailed members of the EC (and not PY).[134] He said, inter alia, that PY had taken him out of context; the HPA were totally satisfied with the action taken by RC; that RC had acted swiftly, firmly and fairly to the realisation of 'pretty well everyone concerned'; and that it was ridiculous to suggest that RC lied to him. He said that if he has misunderstood or misrepresented anything that RC said, the fault was his.

253 PY, who had been supplied the Brigadier Wright email, then emailed Brigadier Wright. On 28 November 2013, in an email to Brigadier Wright, PY repeated his allegations that RC did not establish a FIP tournament committee. PY stated that RC had advised Brigadier Wright that FIP had delegated responsibility for the running of the tournament to a committee that did not exist; therefore, RC lied to Brigadier Wright, and that lie was designed by RC to allow him to avoid taking responsibility for anything. PY went on to add that RC was manifestly incompetent and a disgrace to the FIP.

254 The substance of PY's allegations distils to this:

(a) RC's assertion that he delegated to the local committee was a lie; and

(b) this lie was told to justify his abdication of responsibility for running the tournament.

255 PY contended in submissions that the defence of truth must fail if the defendant cannot establish that the organiser of the Super Nations Tournament 2013 had always been MPC. PY submitted the organiser was FIP, who was paid $50,000 to organise and endorse the event.[135] He submitted that 'this disposes of this issue'. There was no tournament committee to which it could be delegated.

256 NC-D contended in submissions that a tournament committee was in place, which included a tournament director and a house master. Both were appointed, employed and paid for by FIP. PY's accusation is said by the defendant to involve semantics and is an insufficient basis for an all-out attack on RC's character. Despite having had access to Brigadier Wright's mea culpa email, PY renewed his attacks on this basis.

257 I shall summarise the oral evidence on this issue.

258 The Super Nations Tournament was held in October 2013 in Tianjin. An agreement was reached between FIP and Goldin whereby FIP would hold certain responsibilities in relation to the Super Nations Tournament, including giving assistance, guidance and governance in the conduct of the tournament, coordination for the tournament and providing advice on international recognised play rules and regulations of the tournament. PY said FIP failed to fulfil its responsibilities at the Super Nations Tournament. He said it was the FIP president's responsibility to attend a meeting at the conclusion of play between the teams, umpires and the tournament director. PY said RC, who was president at the time, did not attend this meeting. PY also said RC had delegated FIP's responsibility to MPC, which was inappropriate because Goldin was paying FIP a substantial sum to run the tournament, and MPC sponsored a team in the tournament. There was no tournament committee to which delegation was possible.

259 NC-D said he became aware of PY's criticism of RC following the Super Nations Tournament in Tianjin when he received an email from PY on 3 December 2013, which alleged that RC 'continue[d] to weasel out of his responsibility.'[136] NC-D responded to PY's email in an email dated 4 December 2013,[137] which he said represented his views at the time. NC-D said that while presidents in the past had attended post-match meetings, RC considered it inappropriate to do so, considering he would have to resolve on appeal any issues that could not be resolved by the tournament director. He said the EC supported RC's position.

260 In October 2013, RC said PY accused him of failing to fulfil his role at the 2013 Super Nations Tournament. RC did not attend post-game meetings, which are technical meetings attended by teams and their managers. PY asserted in an email on 16 October 2013 that RC was stupid and incompetent for refusing to attend. RC said it was the role of the tournament committee, which was employed and paid for by FIP, to resolve any issues that arose at these meetings, and the FIP president was not obliged to attend.[138]

261 I accept the evidence of RC that he was not obliged to attend technical post-game meetings attended by the game participants, the house master and tournament director. I further accept that he had no formal role in those meetings and that the resolution of disputes at the post game meetings would have been under the direction of the tournament director and tournament committee, who were employed and paid for by FIP.

262 I further accept RC's evidence that he did not delegate responsibility for resolving disputes at this tournament to a non-existent entity. I accept that the post-game meetings were held under the direction of a tournament committee and tournament director employed by FIP.

263 I also accept that RC did not lie to Brigadier Wright in the manner alleged by PY.

264 It follows from the preceding paragraph that 'this lie' was not told to justify his abdication of responsibility for running the tournament.

265 These allegations were made in intemperate language. They were, I consider, part of a larger campaign to discredit RC and the FIP administration in every conceivable manner. The one alleged fact that underpinned all of these allegations was that RC delegated responsibility to a non-existent entity.

266 The defendant did not allege PY acted dishonestly in this instance and I am not satisfied that he did so act. I consider that the belief he had is accurately summed up in his evidence about the emails be had sent to Brigadier Wright:

I am not suggesting [Brigadier Wright] misrepresented anything Richard said to him. I am telling him what Richard said to him was wrong; there was no tournament committee to which it could be delegated. Simple as that.

267 I have, on balance, accepted RC's evidence on this issue that there was an entity to whom he delegated post-match responsibilities. He had personal knowledge of appointments that he made. This means that I consider, on this issue, that PY was incorrect and this foundation for his attacks on RC was misplaced. I am not prepared to conclude that he knew there was an entity to whom RC had delegated responsibility and deliberately lied about it. I think it is much more likely, and consistent with my impression of him as a witness, that his belief was firmly held and mistaken. Given the tone of PY's email, the strength of PY's allegations against RC, Brigadier Wright's response, and my conclusions as set out above, I consider that PY's accusations were made irresponsibly.

268 On 10 April 2014, the appointment of AT as interim CEO was announced to FIP members.[139]

269 The defendant alleged the plaintiff made accusations regarding this appointment which are not genuine.

270 In emails to members on 24 September 2014[140] and 17 October 2014,[141] PY made various accusations about AT's appointment. The email dated 24 September 2014 is set out at paragraph 157 of these reasons.

271 I shall reproduce the email dated 17 October 2014:

Dear Members

The Council of Administration is the supreme administrative body of FIP and it would appear that you either are not made aware of the numerous failings of the Interim CEO, or alternatively you are aware and fail to take appropriate action because of lack of interest.

The numerous failings of the interim CEO are manifest and apparent. The extent to which the President and Deputy President guide and direct him, if at all, is unknown, or if they do, it is clearly the blind being led by the myopic.

I now review of the performance of the now interim CEO and the presumed covert involvement of the President and former Deputy President.

1. The appointment of the CEO

It is claimed in writing by the then Deputy President to have taken place in January 2014. This statement is false but used to avoid answering a question.

When did the appointment take place?

When did the Council of Administration hear about it, after all, he was appointed your CEO presumably by the President and the former Deputy President.

What was communicated to you about the proposal to appoint a CEO of FIP?

Did the Council know the CEO was Chairman of the Committee to select a CEO?

Did you see and approve the job description, the terms of employment and definition of his areas of responsibility, his power to commit without approval?

As a result of complaints, the compliant President morphed the CEO into an interim CEO.

Does the Council of Administration know when the position for the permanent CEO will be advertised?

1. The interim CEO, previously Chairman of the Finance Committee and Chairman of the CEO

Selection Committee has demonstrated that he does not know:

i. How to open a bank account

ii. The importance of controlling FIP's bank account

iii. The importance of paying salaries on time

iv. The importance of FIP meeting its financial obligations to members

v. The proper procedure for conducting an Assembly

1. The interim CEO provided a false report to the Council of Administration about FIP's financial condition relying on Uruguayan law and my closing the bank account in October 2013 after I advised the Executive Committee in May 2013 that I had received all the funds from the 2013 Snow Polo and, therefore, wanted to transfer the account pursuant to the terms of my agreement with the Executive Committee. I was informed there was no account in existence to which I could transfer the funds and there was no request to take control of the account.
2. The interim CEO has wasted an enormous amount of time and incurred great expense as outlined in the attached extract of his report to the Council of Administration.

Have you been informed of the cost of the exercise?

Thus we have the absurd situation of a problem being created and a lot of time wasted. The simple solution, which apparently later dawned on him, was to change the domicile.

This simple solution i.e. change the domicile to overcome what appears to be onerous bureaucracy in Uruguay was suggested by me on a number of occasions but it was greeted with a benign nodding of heads in an affirmative manner followed by an intense lack of action.

The interim CEO spends a great deal of time creating a problem then finds a simple solution to the problem which would have prevented wasting all that time and money.

The interim CEO will provide you with what appears to be a plausible explanation for example: his plausible but false report on FIP's financial position. He must be questioned to ensure his explanations are accurate and sustainable.

1. The interim CEO clearly has no idea of the proper procedure of conducting a Special General Assembly. Given Nicholas' experience, he at least, should have been able to help Alex. Alex is on the committee of the Argentine Association. He must, therefore, be well aware of proper procedure but chooses to ignore it. You must ask him why?

In respect of the Special General Assembly he had the audacity to advise that:

"there will be no discussion because all items in the agenda will be preapproved. As you have probably seen in the agenda all issues are very straight forward."

And

"They are basically the same bylaws that were approved in 2012"

This statement is false, misleading and deceptive since the changes involve:

a) The change of domicile

b) The removal of the office of Deputy President

c) The removal of the office of Zone Coordinators

1. The removal of the requirement of the Executive Committee to act in a gratuitous capacity

Were you aware of any of the amendments?

Were you aware of the reasons for the amendments?

Did you receive any explanatory paper on the new By Laws? These, after all, are the By Laws by which the Council and Federation are governed.

Why should the interim CEO extend such courtesy to you as he considers he can act in a dictatorial manner telling you there will be no discussion in relation to the resolutions as the outcome has been prearranged.

This unacceptable behaviour in gagging Members from discussion presumably was with the approval of the President and then Deputy President, but as is their nature they take refuge behind our knowing interim CEO.

My comments are:

a) Makes sense

1. There may be a good reason to do this but it clearly warrants discussion

1. The Zone Coordinators have done an excellent job particularly in arranging Zone Play Offs. Who is to fulfil their role?

1. Since inception all officers of FIP have served gratuitously and many have paid their own travel, entertainment and accommodation expenses in furthering FIP's objectives and attending to FIP business. It is essential that this gratuitous service continues as it has for the past 30 years.

However, culture stems from the top and, unfortunately, FIP has inflicted upon itself a parsimonious President whose first action upon being appointed President was to claim expenses to which he was not entitled and such claim was rejected.

There are other examples of this type of petty behaviour.

6. In addition, the interim CEO stated that:

"They are basically the same bylaws that were approved in 2012 but adjusted to the Uruguayan legal technicalities."

This is false, misleading and deceptive since the change in the By Laws have nothing to do with Uruguayan legal technicalities which presumably no longer apply because the domicile is no longer in Uruguay: Article 1 of the New By Laws.

This is a good example of the muddled and confused state of mind of the interim CEO who appears quite incapable to think logically.

Any statement of justification or explanation by the interim CEO needs to be critically examined.

1. The interim CEO has committed FIP to a contingent liability of US$150,000 in respect of the World Cup.

Are you aware of the terms of this commitment?

Did you approve this commitment?

In view of the amount of money involved it is clearly a matter that the Council of Administration should:

a) Be aware of

b) Approve

In all other previous World Cups FIP has received a fee from the host country.

I wrote to the Council on the 4th December 2013 suggesting a couple of financial disciplines be put in place, namely:

"To have better fiscal control over FIP's operations once the budget is approved the Executive Committee, or Finance Committee, should report actual against budget at least on a quarterly basis [preferably monthly].

There should be a monetary limit on the amount the Executive Committee can approve without the approval of the Council of Administration."

1. The interim CEO was unable to secure the participation of three major teams in Zone D in the Play Offs due to having sent out invitations after applications closed and failing to liaise with those countries regarding their calendars.

These Zone D countries have always participated in the Play Offs before.

1. In his position as Chairman of the Finance Committee he did a good job in getting the FIP accounts in proper form and prepared detailed and meaningful budgets. He is a competent book keeper but the above litany of errors and incompetence demonstrates he is clearly incapable of fulfilling the role of interim CEO but has been appointed "in camera" in covert session by two even more incompetent individuals who, as far as I am aware, have no known operational or managerial experience of any significance to administer your Federation, thus you have incompetence cubed.

I have previously told you what the bank balance was at 30/06/2013. Do you know what the bank balance is at the end of September?

You should request the interim CEO to provide you with a source and application of funds.

You should request the interim CEO to provide you with a report as to FIP's achievements during the period December 2012 to date and what new funds have been raised by the executive during that period.

On the Council of Administration there are many experienced business people well versed in operational, managerial and procedural requirements and also experienced polo administrators who should know:

a) How to open a bank account

b) The importance of controlling a bank account

c) The importance of paying salaries on time

d) The importance of meeting financial obligations as they fall due

e) Due process in relation to the appointment of a CEO

f) The proper conduct of meetings

g) The importance of raising funds for FIP

1. The importance of applying FIP's funds to achieving its Mission Statements.

1. The importance of having clear procedural guidelines for example the procedure for the election of members representing the Band C countries on your Council.

In my view, the Council must be more active in using its powers to direct, advise, assist and counsel the executive. Unless you take a more proactive stance, FIP's administrative and financial position will suffer.

Why have you not used your powers to advise and assist?

All the best

Cheers

Peter

(a) the chairman of the committee formed to appoint the CEO was able to appoint himself to the position of CEO without any due process; and

(b) the president failed to involve the C of A in the appointment of AT.

273 The defendant submitted that these allegations are false because:

(a) AT did not appoint himself to the position of CEO;

(b) the statement that there was no due process whatsoever was not true, as AT was elected by the EC (which, in turn, had been authorised by the C of A to put a CEO in place in 2014 - even assuming such authorisation was required); and

(c) PY avoids altogether the fact that this appointment was an interim position that was necessary to keep the organisation functioning.

274 The oral evidence on this issue was as follows.

275 PY said there was agreement between members of the EC that a CEO be appointed. PY recommended that a job description be drawn up and that a selection committee be formed for this purpose.[142] A selection committee was created and AT was made chairman. AT was selected because EH, who was president at the time, believed there were no candidates from Argentina, and the chairman ought be from a country where there were no candidates to avoid perceived bias. PY's evidence was that AT was eventually appointed as CEO of FIP. PY said there was no advertisement of the CEO position, that he doubted AT had submitted his curriculum vitae, and that AT had effectively appointed himself to the position.[143]

276 NC-D gave evidence that FIP was in need of a CEO. FIP wanted to hold the Polo World Cup in 2014. It had already been delayed a year because an affordable venue could not be located. FIP also needed to register itself in Uruguay, which was a complicated and difficult process. AT volunteered to take on the role of interim CEO until these tasks were undertaken, after which FIP would appoint a CEO.

277 NC-D said AT was an ideal interim CEO because he was fluent in written and spoken Spanish and English, he had been a board member of Asociación Argentina de Polo for many years, he had been Treasurer of FIP for many years, he was well-connected and well respected in the polo community, and he was immediately available.

278 NC-D's evidence was that the EC voted to appoint AT as interim CEO in April 2014 (AT did not vote). He agreed that AT had practically written the job description for interim CEO, but denied that this was cause for concern considering FIP was a small organisation and AT was treasurer at the time and knew about the available budget for an interim CEO. NC-D said that, contrary to PY's complaints, the EC had power under the by-laws to appoint an interim CEO because it had the power and responsibility to deal with all administrative elements of FIP. AT's appointment as interim CEO was approved unanimously by the C of A.

279 In 2015, AT was appointed permanent CEO after a rigorous process.

280 In April 2014, RC asked the EC to appoint an interim CEO to address issues FIP was encountering, including difficulty finding a location for the World Cup and registration of FIP in Uruguay. RC said that after the World Cup, there would be a formal procedure appointing a CEO. RC suggested the interim CEO should be fluent in English and Spanish, have knowledge of FIP and its finances, and be well-connected. RC said AT fulfilled these requirements.

281 AT said that when he joined FIP, discussions were already underway about FIP's need for a CEO. He said that in January 2014, in Tianjin, the EC held meetings and agreed that there was an immediate need for a CEO due to the impending World Polo Cup and the by-laws issue. It was decided an interim CEO should be immediately appointed. On the final day of meetings, the EC discussed the possibility that AT be appointed interim CEO. AT said he left the meeting for this discussion.

282 On 28 March 2014, RC sent an email to the EC confirming the discussions in Tianjin and advising the EC that NC-D had made a motion that AT be appointed interim CEO, which RC seconded. On 2 April 2014, RC sent minutes to the EC confirming that the EC votes had been received and the motion was passed to appoint AT as interim CEO.

283 AT said he resigned from the EC and as treasurer upon his appointment. He said he was paid US$10,000 per month and received no benefits. He served as interim CEO until April 2015, when the World Cup took place. He was thereafter appointed CEO of FIP.

284 It was put to AT in cross-examination that the process of appointing an interim CEO was not fair and did not appear fair because he was on the committee for selection of a CEO and wrote the CEO job description for the EC. AT disagreed with this proposition.[144]

(a) In its meeting of 4 December 2013, the C of A resolved to appoint a CEO in 2014.[145]

(b) By late 2013, the FIP was under significant pressure to appoint a CEO even if only on an interim basis. There was limited time to arrange the upcoming World Polo Cup to be held in Chile.

(c) AT was chairman of a committee charged with investigating options for the appointment of a CEO. AT did not participate in the vote to appoint himself as interim CEO.

(d) AT had sufficient expertise and experience to justify this appointment as interim CEO.

(e) AT was appointed interim CEO by the EC.[146]

(f) AT's email of 7 March 2014 was, in effect, a job application for the position of interim CEO.

(g) AT did not 'appoint himself'.

(h) The C of A authorised the EC to put a CEO in place in 2014.

(i) PY's assertion that AT appointed himself to the position of CEO is incorrect. I am satisfied that PY did not know this was the case when he made the assertion. In evidence, he said:

I thought it extraordinary that the chairman of a committee investigating a position for CEO, decides he becomes CEO, or is approved by other members of the Executive Committee or by Dr Caleel and Nicholas Colqhuon-Denvers to become CEO.

286 PY's evidence suggested that he did not know whether or not AT appointed himself to the position of interim CEO. The defendant did not allege in his pleadings that PY made these accusations dishonestly, although he hinted at it in submissions.

287 It is incorrect to assert that there was 'no due process whatsoever'. I consider it more likely that PY made these allegations irresponsibly in the following sense. I consider it likely that PY concluded if AT was chairman of the committee that was authorised to investigate the appointment of a CEO, and given that he was appointed interim CEO, then he must have 'appointed himself'. There is no evidence of any efforts made by PY to check the validity of this conclusion. I consider he made this accusation without any other knowledge as to its correctness or otherwise. This is not a finding that PY acted dishonestly. I consider that this accusation was, however, made irresponsibly. It was made without any evidence as to its truth beyond an assumption that I have found to be incorrect.

(a) PY's statement that AT appointed himself to the position of FIP CEO is factually incorrect;

(b) PY's statement that there was no due process surrounding this appointment is factually incorrect; and

(c) PY made these allegations irresponsibly but not dishonestly.

289 In an email dated 4 August 2014, PY alleged that RC agreed to:

(a) develop an African league and did nothing;

(b) further proposals by Zone D countries to play off in Malaysia and did nothing;

(c) have detailed discussions with South Africa regarding holding an Ambassador Cup and/or Zone D play off and did nothing; and

(d) implement suggestions to expand the members of persons entitled to play in Ambassador Cups and did nothing.

290 This email is set out at paragraph 156 of these reasons.

291 The defendant contended that these allegations are untrue in that proposals (a) to (d) above were no more than suggestions made by PY in private conversations and were not the subject of any commitment by RC. The defendant also submitted that these accusations were part of a course of conduct in which the plaintiff made multiple untrue allegations in insulting emails.

292 The plaintiff submitted that this defence should be rejected. The impugned statements were referred to in an email.[147] They were also noted in a document entitled 'aide memoire' sent to RC by PY in December 2012.[148]

293 The plaintiff submitted that 'they are properly to be construed as commitments made by the president of FIP' and 'were not merely suggestions by the plaintiff made in private conversations'.

294 PY stated that in his view, these discussions resulted in agreements that 'would be finalised in a (formal) minute. It was not an EC minute, [he] couldn't do that, but that was [his] way of doing things'.

295 It is unnecessary to set out the evidence in any greater detail, as this issue was not prominent either in evidence or submissions.

296 I accept that RC spoke with PY about proposals (a) to (d). I accept that these matters were discussed at an EC meeting, and that RC agreed to formalise the discussion in an EC minute.

297 On balance, I conclude that RC did agree at least to investigate proposals (a) to (d), although I am unable to conclude positively that he actively committed to implementing these proposals. I consider it inherently unlikely that the president of a small sporting organisation would commit to implementing costly sounding proposals[149] without going back to the EC. Having said that, PY was firm in his view (expressed contemporaneously in an email[150] and an 'aide memoire'[151]) that RC did so commit. I accept that PY was certainly of the view that RC did make these private commitments. As to whether in fact RC did or not, I am unable to reach a concluded view. I suspect that he did not, but there is little evidence to support this suspicion.

298 NC-D has failed to prove that any statements by PY regarding these alleged commitments were not genuine, authentic or made dishonestly.

299 On 27 February 2015, in a letter from RC to members, RC reported that the annual budget was approximately US$3.5 million.

300 In an email from PY to members, offices, delegates and a principal sponsor and sent on 23 April 2015, PY made various allegations about the state of FIP's accounts and its financial position.[152] I shall reproduce this email:

Dear Members

You are entitled to answers to the following questions if you are interested enough to ask them.

1. In the President's letter dated 27 February he stated "Presently the Annual Budget is approximately USD$3.5 million dollars", normally this would mean a budgeted profit however it could be interpreted as budgeted revenue.

At the General Assembly less than 3 months earlier than the President's letter, a budget prepared by the Chief Executive Alex Taylor, approved by the Chairman of the Finance Committee and Treasurer, Alberto Marino and presumably the remainder of the Executive committee was tabled and adopted at the Assembly.

This showed a budgeted profit of USD$360,340 which is USD$3,139,660 less than Nicholas' statement of a budget of USD$3.5M. If the statement related to budgeted revenue the figure in the budget tabled was USD$970,055 which is USD$2,529,945 less than Nicholas' statement. This enormous discrepancy needs explanation as it is deceptive and misleading to members as to FIP's financial condition. Being blessed with two commercial clowns is on a stand alone basis amusing however to the extent their performance relate to FIP's financial condition is appalling and disastrous. Did the Chairman of the Finance committee and Treasurer Alberto Marino and the CEO Alex Taylor both self-proclaimed commercial and financial experts ignore this patently wrong statement about FIP's budget to embarrass the President or were they unable to detect such an enormous discrepancy due to their limited numeracy or did they not even read the President's letter, one would never know? Maybe the President suffered from amnesia and couldn't remember what the tabled budget showed or was he just too lazy to check the details before he made this enormously inflated and unsustainable statement about FIP's budget namely USD$3.5M. From whence and by what process enabled the President to make such and absurdly incorrect statement.

Let me tell you what will now happen. Alberto, Alex and Nicholas will go into a huddle and decide it is all my fault for having the temerity to raise this issue and I did it out of pure spite not because I was concerned with the financial condition of FIP being accurately stated. Therefore they will decide the best solution for them it to remain silent rather than respond and confirm their collective stupidity and commercial and financial incompetence. Members should request that Alberto, the Chairman of the Finance Committee and Treasurer and Alex Taylor the CEO to give a joint report of FIP's financial condition and the extraordinary discrepancy between the President's statement and the tabled budget. They cannot refuse to a members request asking questions regarding FIP's financial condition and budgets. Alberto, you can continue to remain mute but surely you can write! Do members want to know the true position of FIP's financial condition or not?

1. What qualification and right does Derek Wolstenholme have to be a member of the Council of Administration since he holds no position in Canadian polo? Derek has demonstrated a remarkable ability to push himself forward whilst ably aided by a good push from behind. This was initially well demonstrated at the 2013 snow polo tournament in Tianjin where the Wolstenholmes (sic) constant pushing for freebies caused adverse comment from the sponsors.
2. I understand his election was secured by John Wright purporting to use undirected proxies which were solicited by the Executive prior to the meeting (the Bylaws do not provide for the use of proxies in these circumstances). Of course this is irrelevant when operating in a collegiate, wink and nod and old chums atmosphere. John, you as Chairman of Hurlingham should know something of procedure and protocol. A simple question would be is this candidate eligible for election? The fact that Derek pushed himself forward as a candidate and elected with your help was possible because of the lack of proper procedure in the bylaws regarding election of B and C Country members. John the simple fact is you were snowed by cordial collegiality. A frequently used technique to divert and dull the mind of a new comer.

At the World Cup it was good to see the Wrights and Wolstenholmes together in convivial self-satisfaction company no doubt reflecting on a job well done.

The procedural defects for the election of B & C country members has been raised by me on numerous occasions.

It was agreed in December 2012 that the procedure needed to be amended. Any implementation of a proper procedure as a result of my request would be an unacceptable admission by the Executive that I was right. The written statement made by the President to the President of the Australian Polo Association in relation to the election of B & C Countries to the Council of Administration that neither the Council of Administration or the Executive Committee could think of a better way is both ludicrous and demeaning of the intelligence of these bodies.

However it was a typical feel good throw away statement designed to placate. Nicholas has developed a certain skill at this in the hope that questions will go away. In the same letter Nicholas also lied to the President of the Australian Polo regarding the election of the CEO.

Alex Taylor in his falsified report to the Council of Administration regarding the reasons for FIP's financial condition applying impeccable logic stated that my request for proper procedure to elect B & C country members was merely a personal vendetta against Richard. I have sought an understanding of the mental process by which Alex arrived at this conclusion that a request for procedural certainty is converted into a personal vendetta against the poor hopeless hapless Richard but as usual have been met by silence. Which silence confirms that is has no idea as to how he arrived at this completely illogical statement.

All member organisations have procedures for election of office bearers (e.g. qualifications, time for nomination, when nominations close, voting procedures, who is entitled to stand, e.t.c.)

Members you are entitled to a proper procedure to elect your representatives to the Council of Administration. For ease of reference the current provisions for election are:

17.7 Thirty minutes before starting or during an interval of the Assembly, those full members of "B" and "C" categories and the affiliated clubs, will meet separately to elect the individuals to become part of the Council of Administration on their behalf. Both elections will be supervised by those individuals appointed by the President, who will report the voting outcome to the Assembly.

As you can see there is a lack of any procedural protocol for the election of office bearers. If you want the shambles to continue say nothing and you will get God knows how many other unqualified persons elected to your governing body by the wink, nod and nudge procedure.

You Alberto are a lawyer and sit on the Committee of the Argentinian Polo Association therefore surely you must have some vague idea as to the procedures used to elect office bearers. Alex you also sit on the Argentinian Committee. What do you do 30 minutes before a committee meeting or during an interval therefore? Do you and Alberto participate in the election of office bearers during those pauses?

Nicholas, during your tenure as Chairman of the HPA did you have any procedures of election of office bearers or were they drawn from a hat?

You John presumably have some procedures for election of office bearers at Hurlingham? Or do you just gather 30 minutes before or during an interval of your meeting to elect stewards? What about you Richard, have you any idea how the USPA conducts the procedure for election of office bearers. If all else fails you are able to resort to the Honorary Legal Counsel who is undoubtedly extremely experience in appropriate procedures and protocols for electing office bearers.

A number of C Countries were removed as members which was only discovered by some of them after viewing the FIP website and some were currently paid up members when removed. No advice or reason was given to these countries as to why it was proposed to remove them. The removal was done by a stroke of a pen. Whose pen I am unaware. Was the removal approved in any minute either of the Council of Administration or Executive Committee? Is there any record at all as to how these decisions were made or approved?

I ask these questions as a matter of procedural interest and such action are in accordance with FIP's Mission Statement. In my view the only body capable of removing a member is the General Assembly as it is that body that approves the appointment of a member country. To suggest that an individual or some executive committee can usurp the authority of the General Assembly is blatantly wrong on any interpretation of the bylaws or principles or proper procedure, but is does not deter someone using a pen to make the removal without reference to the member so removed. Alberto, do you agree with my interpretation? You are a lawyer and it is it too difficult for you to form a view you could refer to FIP's esteemed honorary legal counsel or will you extend the depth of the hole of silence you have already dug yourself into? After all as you are only the Treasurer and Chairman of the Finance Committee it would clearly be inappropriate for you to make any comment about FIP's financial condition and the resulted loss caused by the arbitrary unexplained removal of some C countries. How do you perform at Argentinian Associate Committee meetings. The thought of a mute Argentinian polo player does stretch ones incredulity. No doubt it suits you to remain mute about FIP's financial condition otherwise any statement would confirm your incompetence.

However you are not really mute for when we met in Chile you demonstrated you were capable of verbal utterances which indicated you were not speaking to me but such utterances clearly indicated you were speaking. Again this seems to be logic similar to that which Alex uses. Maybe there is something cultural that I do not understand. Maybe you could explain if my surmise is correct? By the way Alberto, with the avoidance of doubt will you move again the motion awarding me unique status as I would not want this position challenge if it was found that the motion was improperly seconded by a person who purported to be a member of the Council of Administration but was not qualified to be on that body. However the continued silence merely against confirms the ignorant and arrogant response to valid questions by members by maybe their reasoning is they do not have to respond.

This action flies in the face of FIP's Mission Statement. It is a principal plank of FIP's Mission Statement to help develop polo in new and emerging countries. To arbitrary to some C countries without reason is completely inexcusable and inappropriate. Members, you are entitled to an explanation to this ignorant and arrogant conduct by one or more persons who claim to understand FIP but clearly do not. How naughty of me to request an explanation of such crass stupidity. Of course the shield of silence will be used against me but they cannot ignore a request from a member country for such information. But yes they can but they have ignored some requests from C Countries for an explanation. However they again evoke the golden rule of silence as a cure all as the best form of response to any question. However their continued silence merely confirms an ignorant and arrogant response to valid questions.

Maybe some bigger member than a C country needs to ask the question or maybe even an A country can ask a question or are all members merely prepared to sit back and allow our collegiate collection of clowns to do what they will without any regard for proper procedural or protocol? It is up to you if you wish them to flounder endlessly in what are really shallow waters that are far too deep for them.

The charade relating to the election of the CEO. I will not bother to go into all the unacceptable procedural details except to say it was apparent for more than 15 months that the election of Alex Taylor was a formality. In fact he was appointed CEO in Tianjin in January 2014 by Nicholas and Richard and was only reverted to interim CEO when complaints were made as no due process had occurred. In fact we had the remarkable situation where Alex was Chairman of the Committee to select the CEO and in his infinite wisdom and supreme confidence of his own ability and the fact he was readily available (why was this?) appointed himself with the enthusiastic support of Nicholas and Richard. If FIP were a hotel it would make Faulty (sic) Towers look efficient. If a slap stick comedy it would make the Marx brothers look serious.

I will write separately on the qualifications of Alex Taylor's poor performance as interim CEO before he was anointed at the recent comic performance.

All the best

Peter

301 The effect of the parts of this email relevant to FIP accounts is to make the following assertions:

(a) In the president's (NC-D) letter of 27 February 2015, he referred to an annual budget of $3.5 million. This would normally mean a budgeted profit. The budgeted profit adopted at the GA was $360,340, which is $3,139,630 less than stated by NC-D in his letter.

(b) If annual budget means budgeted reserve, the figure in the budget tabled was $970,055, which is $2,529,945 less than that stated as annual budget in the

NC-D letter.

(c) This discrepancy requires explanation.

(d) It is a deceptive and misleading statement as to FIP's financial position.

(e) FIP is blessed with two commercial clowns whose performance is appalling and disastrous, and who display collective stupidity and commercial and financial incompetence.

302 The defendant submitted that these allegations are false. 'Annual budget' does not normally mean a budgeted profit; it refers to total revenue. There was no discrepancy in the figures. Budgeted revenue was $3.5 million, of which $360,340 was the budgeted profit.

303 The plaintiff submitted that it was plain from the language of the 23 April 2015 email that allegations or accusations are not being made, and issues in the nature of queries were raised with respect to accounts, and the assertion that they are false statements must be rejected.

304 Leaving aside the contemptuous language, I agree with the plaintiff that this email, rather than making factual accusations, calls for explanations about the accounting treatment referred to in the NC-D letter of 27 February 2015 as compared to the figures in the budget tabled at the GA. In my view, the email dated 23 April 2015 does not contain allegations capable of being characterised as false statements about the 2014 accounts and is irrelevant to the defence of truth.

305 It is unnecessary to consider further the evidence relating to this issue.

306 The plaintiff was cross-examined in some detail about alleged false statements he is said to have made concerning the 2015 accounts. The plaintiff objected to evidence concerning the 2015 accounts. There is no allegation in any of the pleadings that the plaintiff has made false statements in the 2015 accounts. Given the breadth and complexity of the defendant's truth/justification defence, in the exercise of my discretion under s 135 of the Evidence Act, I will neither receive nor act upon evidence that relates to the 2015 accounts as bearing on the defence of truth/justification. I consider the probative value of the 'remittance advice' evidence to be marginal. The 2015 accounts were incorrect and subsequently corrected. The plaintiff's emails of 23 and 24 December 2015[153] point this out, amongst various insults. I consider that to allow the evidence to be admitted as relevant to the truth/justification defence when it had not been pleaded as such would be unfairly prejudicial to the plaintiff who is, in preparing his case, entitled to rely on the pleadings as a roadmap of the issues to be canvassed on significant issues in the case.[154]

307 The two emails[155] are, in my view, admissible for other purposes in these proceedings. They are part of the narrative of the correspondence that is, in my view, relevant to the defence of qualified privilege. The emails were sent in the period between the November and December 2015 emails that PY alleged are defamatory.

308 The defence of qualified privilege is a defence that relies on the circumstances that attach to the defamatory publication. The emails of 23 and 24 December 2015 are a component of those circumstances. I will admit them on the limited basis that they may bear upon the defence of qualified privilege in the manner that I have explained.

309 I conclude that there is nothing in the plaintiff's remarks about the FIP 2014 accounts that assist the defence of truth/justification. His emails about the 2015 accounts and remittance advice are not admissible to this defence.

310 The existence of a PDF is the most controversial factual issue in the case. It impacts upon the defendant's defence to the plaintiff's claim and to the defendant's counterclaim.

311 I have set out a short background to the PDF allegations in paragraphs 50 to 52 of these reasons. It is necessary now to set out the plaintiff's allegations about FIP and the PDF in some detail.

312 Commencing in February 2015, PY made a series of accusations against FIP, NC-D, RC and AT concerning an alleged agreement reached between FIP and MPC/Goldin about the establishment by FIP of a PDF to be funded by MPC/Goldin.

313 The email dated 9 February 2015 reads as follows:

Dear Members

The $US600,000 Polo Development Fund

Upon joining any organisation as an officer the correct procedure is to make oneself familiar with the culture, history, financial obligations and administration responsibilities of that organisation.

I believe many of you may not be aware of the principal polo development fun which at the end of the current 3 year contract with Goldin should have had $US600,000 allocated to it.

There has never been a disclosure of the amount of this fund or the extent or purpose to which proceeds have been applied.

The former President and current President, the Treasurer and then Chairman of the Finance Committee and now CEO (Alex Taylor) all knew of the existence of this fund established in December 2012 and should have established appropriate reporting procedures in respect of the conduct of this fund which totals $US600,000.

This neglect to report on the existence and administration of a fund of $US600,000 to anyone is outrageous and a clear indictment of the former President, current President and now CEO all of whom were fully aware of the fund this lack of transparency and communication again confirms the incompetence and inaptitude of this trio to which I have alluded on numerous previous occasions.

The Executive Committee and Council of Administration have a fiduciary duty and financial responsibility to see this fund is properly administered and its administration is reported to its member and the donor.

All members of the Executive Committee and the Council of Administration have a duty and obligation to all members countries and the donor to correct the situation and implement a proper reporting procedure. The cash in the fund should be disclosed in the balance sheet and any dispersal identified in the profit and loss statement.

Alberto you are now the Treasurer, Chairman of the Finance committee and a member of the Executive Committee, a strong, powerful and fearless man with self-proclaimed executive capabilities.

You have been observed to have a lot to say. Now is your opportunity to say something to the Executives and member Countries of the Federation. Did you know of the $US600,000 fund? What administrative and financial procedures and recording procedures are currently in place? What amounts have been dispersed from the fund to whom and for what purpose.

You will have to answer these questions both to your fellow Executive members and the member countries and to the donor.

Your new ploy of retreating into the sanctity of silence is inappropriate and in respect of a $US600,000 fund!

However with your now disclosed mental gymnastic ability maybe a backward pike with a half twist would be an appropriate manoeuvre.

Lest anyone doubt the veracity of my statement regarding the existence of the funds I suggest you seek confirmation from a former member of the Executive Committee who together with me negotiated the establishment of the fund and the quantum thereof and also seek confirmation of those statements from the donor.

All the best

Cheers

Peter[156]

The Paradox Puzzle and Problem of FIP Administration

FIP is the International body established to administer Polo worldwide.

The three 'A' countries have de facto control of FIP's affairs. The polo affairs in these 3 countries are well run, managed and observe appropriate protocol, procedure and financial disciplines. They also communicate their proceedings to their members. It is therefore puzzling and disappointing why they do not ensure that the International body complies with their own standards of administration and communication.

I shall refrain from criticising or mentioning individuals, as the majority of the FIP officials are volunteers and I have detected various levels of preciousness amongst them. It has also been my observation that the degree of preciousness of an individual is directly proportional to their level of incompetence.

However, the Chief Executive who is a paid employee will not be absolved from some criticism. I will highlight a number of matters which would not be tolerated by the three 'A' countries in their own organisation, yet they are tolerated in the administration of FIP. I will also touch on the specific performance of the Chief Executive. I am unaware to the extent that his actions were approved of or known by the Executive Committee.

Matters that would not be tolerated or allowed in the administration of the three 'A' countries

1. Procedure at Special General Assembly to make to make significant amendments to the bylaws to which FIP is governed.

a. No copies of the proposed amendments were forwarded to members;

b. No explanation for the reasons to the changes were given;

1. No explanation of the benefits or reasons for the change of domicile was given;

d. No reasons for the removal for the position of zone administrators.

The Chief Executive had the arrogance and the ignorance to advise in writing "that in this General Assembly there will be no discussion, as all items of the agenda will be approved." Who knew of these items and how did they approve them? The Chief Executive sits on the committee of the Argentinian Polo Association. Surely he has learnt something of the procedure and protocol at the meeting of the supreme body of the association when a change in the bylaws is proposed.

The Chief Executive is a self-professed commercial advisor and financial consultant and as I understand has some qualifications to support this. However Chief Executives also require integrity and honesty, attributes of which he has not displayed as will become apparent.

1. Failure to adopt proper procedures for the election of office bearers to the Council of Administration of FIP.
2. Allowing a person to be appointed to the Council without having any qualifications to be so appointed.
3. Failure to ensure meaningful communications are made to members advising of the affairs of FIP. A good example of the proper procedure is evidence of the report Hurlingham makes to its members. Both the Chairman of HPA and the former Chairman are on the Executive of FIP. They ensure such appropriate procedures occur at Hurlingham, why not ensure they occur in polo's governing body?
4. The arbitrary removal of members without reason or given any notice of the perceived defects and requiring rectification.
5. Failure to ensure participation by major countries in a Zone D play off. Files and horses were provided (this is always the most difficult thing to organise). The President wrote to the Australian President and advised "We agree that it was extremely badly handled to the detriment of these countries." This displays the lack of skill and incompetence of the Chief Executive, who has never organised any type of FIP event but such is his skill and ability he considers he does not need to seek advice or guidance. His self-confidence and complete lack of knowledge is not a deterrent to his perceived ability.
6. Failure of the Chief Executive then Chairman of the Finance Committee and Treasurer to control FIP's bank account and open a bank account. Neither of the 3 "A" countries would tolerate this inexcusable commercial incompetence in their organisation, but they blithely ignored it for many months at FIP, and this resulted in FIP's financial condition of being able to meet its financial obligations.

It should be noted that I forwarded documentation to the Chairman of the Finance committee showing him how a bank account could be opened but again such is his own perceived brilliance he sought no advice or help and of course was unable to carry out this simple task.

1. Alex Taylor falsely stated in his second report to the Council of Administration "The reason for this delay (in payments) by MPC is that since PY closed the FIP bank account in Australia in retaliation for being removed from the EC for unacceptable behaviour, FIP has not been able to open a new bank account because of the bylaws situation which we will explain in 1.2." The financial acumen and brilliance of the Chief Executive and Chairman of the Finance committee did not understand the importance of controlling an organisation's bank account nor did he know how to open a bank account.

Papers were sent to him by me to show how you can open a bank account. He sought no advice or guidance and consequently was unable to perform this simple task. He does not appreciate the difference between controlling a bank account and opening a bank account. One wonders how he obtained his commercial qualifications but such as his dexterity with the truth, he is also able to show himself as blameless.

Unfortunately his justification does not stand upon examination. The continued use by the Chief Executive of the Uruguayan regulations is but a smoke screen used to further obscure his incompetence. A member of the Executive committee advised Alex Taylor that his report to the Council of Administration was false but it suited Alex and the other members of the Executive committee to deflect blame from themselves as no other members of the Council of Administration were aware of the facts.

1. Failure to establish provision for a $600,000 polo development fund in the accounts of FIP. Failure to report disbursements therefrom.
2. Failure to correct the statement by the President that FIP had a budget of $3.5M when it is in fact ten times less than that amount namely $300,000. No doubt the financial skills and mental dexterity of the Chief Executive will enable him to point out that this was all my fault.
3. The failure by FIP to conduct any due process in electing the Chief Executive, which as a result of this procedure and complaints thereon, he was reverted to interim Chief Executive. Of course he was also the Chairman of the selection committee to appoint a Chief Executive.
4. Failure of the Executive to follow up and implement many of the suggestions made by members of Zone D to develop polo in Zone D.
5. Failure to make generational changes to the Executive. Such changes have occurred in the Ambassador Cup Committee which has been FIP's most successful operation in the last 2.5 years. Thus as illustrated above, we have senior officials in the 3 'A' countries who are heavily involved in their own organisations controlling FIP, and because of their involvement with their own organisations do not bother to ensure FIP is fun in the same efficient manner as their own organisations.

FIP can do little to benefit the 3 'A' countries and because of the lack of interest by the 3 'A' countries in FIP's administration, it does not implement one of the principal missions of FIP, namely the development of polo in new and emerging countries.

Thought has to be given to structural changes within FIP to ensure the continuation of Marcos' vision which has been well implemented say for the last 2.5 years. If the members continue to take no real interest in FIP then this vision cannot be continued and developed.

All the best

Peter

315 The email dated 6 November 2015 is set out above in paragraph [[157]](#_Ref7621 (a) A legally binding agreement was entered into between FIP and MPC/Goldin to allocate US$600,000 over three years to a fund devoted to the development of polo in the Asian region (the PDF).

(b) The existence of this PDF was known to RC, NC-D and AT.

(c) FIP had a financial responsibility to properly administer the PDF.

(d) FIP has failed to report on the existence and administration of the PDF.

(e) FIP has failed to provide for the PDF in its accounts.

(f) FIP has failed to report on disbursements from the PDF.

(g) FIP has failed to disclose how the PDF was received.

(h) FIP has failed to disclose how the PDF has been applied.

(i) FIP has failed to disclose the purpose for which those funds were received.

318 The defendant contends that these accusations made by the plaintiff are untrue:

(a) FIP did not enter into a binding legal contract with MPC/Goldin for the creation of a US$600,000 PDF.

(b) The plaintiff knew this to be the case because he was an officer of FIP, involved in the negotiations with MPC/Goldin and also involved in the negotiation and execution of two Heads of Agreement between FIP and MPC/Goldin.

(c) As an officer of FIP, he would have known that the EC had never approved a US$600,000 PDF.

(d) In making the accusations contained in the series of relevant emails, the plaintiff dishonestly alleged that there was a binding legal contract between FIP and MPC to allocate US$600,000 over three years to a fund devoted to the development of polo in the Asian region (the PDF).

319 A good deal of the oral evidence in the case occupied this topic. Essentially, the positions taken by the parties in evidence can be summarised as follows:

(a) PY maintained that FIP and MPC entered into an oral agreement in or around July 2012 that MPC pay US$200,000 per year for three years into a PDF for the purpose of polo development in Zone D, and US$300,000 for three years to FIP for general purposes. This was said to have evolved out of a view held by PS that the existing US$500,000 sponsorship fee payable by MPC to FIP was excessive.

(b) NC-D maintains that there was no legally binding agreement or contract that required FIP to establish a $600,000 PDF. There were discussions in 2011 about MPC/Goldin contributing $200,000 to a PDF. At its highest, there may have been an 'informal, non-contractual understanding' that PY planned to put $200,000 towards a PDF under the first Snow Polo contract. There was no final express oral agreement for a Snow Polo Development Fund; neither AJ nor PY nor the combination of them had authority to bind FIP; they did not present such an agreement to the EC for approval and, at any event, after 2011, the parties executed formal written agreements which superseded any oral agreement or understanding previously reached. The defendant contends that while a PDF was the subject of discussions in 2011, by the time that the first Heads of Agreement was entered into, it had faded away as a topic off interest between the parties and had been replaced by PS's bid to become vice president of FIP.

320 I shall summarise some of the oral evidence given relating to this issue. I shall refer to other specific aspects of the oral evidence when I analyse the parties' positions.

321 PY said that in 2011, he and EH travelled to China on polo business. PY had, prior to that time, been to a Snow Polo event in Tianjin, China, which was held at MPC. Whilst he was there, PY met Harvey Lee ('HL'), who was effectively CEO of Goldin, and PS, who was the owner. At this previous meeting, PY spoke to HL and PS about FIP, and the Goldin executives were eager to become further involved with FIP.

322 It was against this background that PY and EH visited Goldin executives in Tianjin in 2011. Over the following months, PY continued to engage with Goldin executives, particularly HL, in relation to FIP taking over the administration of the Snow Polo event, held annually at the MPC in Tianjin.

323 PY said he kept EH informed of these discussions, and EH agreed with PY's suggestion that FIP should negotiate a deal with Goldin. PY suggested, and EH agreed, that AJ should assist PY in his negotiations, given AJ's experience in Asian business culture and his geographical proximity to China. At this time, both PY and AJ were members of the EC.

324 In 2011, PY and AJ visited Hong Kong on a number of occasions to negotiate a deal between FIP and Goldin. An agreement was reached and a contract was signed by HL for Goldin and EH for FIP to administer the Snow Polo World Cup in 2012.[159] PY considered this contract to be an 'inflexion point' in the world of polo. He claimed FIP had never been recipient to such a substantial amount of money.

325 Following a successful 2012 Snow Polo Cup, negotiations commenced for a three year agreement. PY said he and AJ negotiated with executives of Goldin, and kept EH informed on the progress of negotiations.[160] In July 2012, an agreement was reached[161] whereby Goldin would provide to FIP US$500,000 per year for three years. In return, FIP would administer the Snow Polo event for those three years, and PS would be appointed honorary vice president of FIP. The conditions on the payment of the funds from Goldin to FIP were that US$300,000 was for general FIP use (including the hiring of a new CEO), and US$200,000 was to be used as part of a PDF which would support and promote the sport of polo in Zone D countries.

326 A range of emails passed between members of the EC, and also between the EC and Goldin, discussing the PDF.[162] PY said that at the GA meeting in December 2012, he discussed with members of the EC, including RC and AT, that the money ought be spent pursuant to the contract, namely, that the US$200,000 paid to FIP for the PDF should be spent for the purpose of supporting and promoting polo in Zone D countries.

327 PY said the PDF was also discussed at a meeting between himself and AT, AJ and SO in London on 14 May 2013. It was his evidence that all attendees agreed the PDF should be properly administered as a separate fund.[163] He said the Heads of Agreement signed by FIP and Goldin executives did not mention the PDF because it focused on the main points, while the PDF was well understood between the negotiators.

328 NC-D said he first made contact with Goldin executives in 2010, when he was invited to the opening of MPC in Tianjin. He was chairman of the HPA at the time. He discussed with Goldin executives their aspirations for MPC, and advised them to contact FIP. NC-D said he facilitated contact between Goldin executives and EH.

329 NC-D conceded that FIP did establish a PDF of sorts, and that it set money aside in the budget to spend on polo development. He acknowledged that emails had passed between PY, EH, AT, AJ, RC and NC-D[164] which mentioned the PDF, including that Goldin agreed to fund US$200,000 per year for the three year term of the Snow Polo agreement towards a 'proposed endowment fund.'[165] He accepted that RC suggested opening a trust or charity for the purpose of administering the funds,[166] and he agreed that a FIP newsletter mentioned a $100,000 budget to be approved for the development of polo, and a clinic that was the first recipient of a grant from the FIP PDF. He agreed that RC had written in the newsletter, '[t]he PDF fund is the result of a generous contribution by FIP vice president Mr Pan Sutong' and that PA, Secretary of the Royal Malaysian Polo Association, wrote in a letter that he knew of a Zone D development fun being set up. He also accepted that AT wrote in a draft of the Taylor report:

Edward [Huergo] found an excel sheet sent by MPC that disaggregates the USD 500,000 for the fees in two, USD 300,000 for FIP endorsement and USD 200,000 for Polo Development Funds.

330 However, NC-D gave evidence that there was no agreement between FIP and Goldin that US$200,000 of the money from Goldin be administered separately as a PDF. It was not mentioned in the contract between FIP and Goldin, and the EC had not approved it. He said negotiations regarding the establishment of a PDF fell away because of the desire of PS, chairman of Goldin, to be vice president of FIP. In effect, the consideration for the money from Goldin was the appointment of PS as FIP vice president, instead of the establishment of the PDF.

331 NC-D said the first time he heard of an agreement with Goldin that $200,000 per year was to be set aside for the development of polo was when he was forwarded an email PY had sent to FIP members on 9 February 2015 making such claims.[167] He investigated PY's claims by speaking to members and past presidents, including EH. There was nothing in the contracts with Goldin to suggest FIP and Goldin had agreed to create a PDF. NC-D said he contacted HL, a Goldin executive, who said that PY and AJ, who had negotiated with Goldin on FIP's behalf, had discussed various possibilities that the EC was unaware of, including that US$200,000 of the money from Goldin be set aside annually for the development of polo. HL ultimately said that, because the contracts made no mention of the PDF, FIP should spend the money donated by Goldin at its discretion. All of FIP's money, regardless of its source, was spent for the development of FIP and the development of polo.

332 NC-D said he was certain there was no agreement between FIP and Goldin about US$200,000 per year being administered separately as a PDF. He continued to stand by his words in an email he sent to FIP members (the first email subject of the Statement of Claim), that PY had made 'serious, unfounded accusations [and] has added accusations of financial mismanagement concerning a so-called "Polo Development Fund".'[168]

333 AJ said he was involved in negotiations with Goldin. He, along with PY and EH from FIP, and HL and Mr Sean Fang ('SF') from Goldin, negotiated an arrangement whereby the US$500,000 from Goldin would be split into two amounts: US$300,000 for FIP administration and US$200,000 for the development of polo in Zone D. PDF negotiations were evident in a range of emails passing between the Goldin and FIP executives.[169] He also emailed FIP executives and the EC with details of the PDF.[170] AJ agreed that there was no mention of the PDF in an early draft of the agenda of the EC meeting in London on 14 and 15 May 2013,[171] but said that RC added polo development to a later draft.[172] He agreed that there was some correspondence regarding negotiations with Goldin that made no mention of a PDF,[173] and he agreed that some correspondence that mentioned the PDF was not sent to the EC.[174] He said polo development was discussed at the EC meeting in London on 14 to 15 May 2013.[175] He agreed that 'polo development' did not necessarily equate to a PDF. AJ said that the EC told him to 'say what you have to say, just get this contract done'.

334 AJ said that each US$500,000 amount in the Heads of Agreement[176] referred to the US$500,000 that would be split into the US$300,000 and US$200,000 amounts as had been previously negotiated between FIP and Goldin. AJ said there was no reference to a PDF because HL said it could only be displayed as a lump 'marketing fee', and that the contract had to be structured strictly under Chinese law.

335 He said there was an oral agreement to establish a PDF. He said this occurred in two stages, the first being the negotiations for the 2012 Snow Polo Tournament, and the second being the discussions leading up to the US$500,000 contract. He said a separate US$200,000 PDF was discussed in all the meetings during this period. He said this was communicated to the EC, but the EC never voted on it.

336 AJ said he was never contacted in relation to investigations into the PDF that PY alleged existed. He said on 18 November 2015, he sent an email[177] to many people, including FIP members and Goldin executives, in response to PY's email on 6 November. He said he wrote that negotiations with Goldin had resulted in the establishment of a Zone D PDF, and that he was happy to chat with NC-D about it. He said neither NC-D, nor anyone from FIP, contacted him in relation to this.

337 In relation to the PDF, RC said there had been general discussion earlier in negotiations with MPC/Goldin about a PDF, but that the final agreement between the parties was the written contract, which made no mention of the PDF.

338 AT said that in February 2015, he became aware of PY's allegations concerning a US$600,000 PDF. He said that in 2012, there were discussions with Goldin regarding the possibility of establishing a PDF or a polo academy. He agreed that PY sent an email to the EC to that effect, and that RC had said it was a good idea to have a separate account for polo development. EH, however, who was negotiating with Goldin on behalf of FIP, told AT that the negotiations had moved to naming PS as FIP vice president. There were no discussions about the PDF at the EC or GA meetings in December 2012. He could not recall PY mentioning the PDF at this time. He had never heard of any proposal that there should be a separately administered PDF.

339 The Heads of Agreement outlined the payments to be made to FIP, as well as FIP's obligations.[178] FIP's obligations were to provide technical services for the Snow Polo World Cup and Super Nations Tournament to be held in Tianjin over the term of the agreement. PS was also to be appointed vice president of FIP. There was no mention in any signed agreements of a separately administered PDF. AT said there were two agreements made: one in October 2012 and one in December 2012. The December agreement reflected the October agreement, apart from the omission of the agreement that PS be appointed vice president of FIP. AT thought this was because Goldin did not want to make it look as though PS was buying his vice presidency. AT denied the two agreements were anything to do with a PDF.

340 AT said that the development of polo was part of FIP's aim as an organisation. FIP budgeted for polo development, and accounted for money spent on polo development in the balance sheet, but that this was not a result of any agreement between FIP and Goldin.

341 AT gave evidence that once he became aware of PY's allegations in relation to the PDF in February 2015, he immediately investigated it. He looked over all the contracts between FIP and Goldin, spoke to EH (who negotiated for the first agreement), and exchanged emails with EC members. AT received an email from NC-D on 3 November 2015,[179] which said that Goldin executives thought a PDF would be separately administered based on an oral agreement between PY and AJ on the one hand and Goldin on the other. SF said Goldin was not in a position to deny the existence of a PDF based on negotiations with PY and AJ. AT said this was never put to the EC for approval. As far as the EC was concerned, these negotiations amounted to the early discussions that were superseded by the agreement to appoint PS as FIP vice president.[180]

5.12.6 Was there a binding three year US$600,000 contract between FIP and MPC/Goldin for the creation of a PDF?

342 As the defendant alleging truth/justification, NC-D bears the onus to demonstrate that FIP did not enter into such a contract.

343 In mid-2012, PY and AJ met with MPC representatives HL, SF and PS. I accept that these discussions generally centred around a proposed three year arrangement between FIP and MPC for FIP to administer an annual Snow Polo tournament held by MPC. I further accept that PS told PY that he (PS) considered the annual endorsement fee of US$500,000 excessive and expressed an interest in how this fee was actually spent.

344 I accept PY's evidence that he discussed these remarks with AJ and as a result, he and AJ suggested to PS that the endorsement free might be split into US$300,000 for FIP's general expenses and $200,000 be used for a PDF to assist in developing the sport of polo.

345 It is clear that EH (then president of FIP) was informed of these discussions about a PDF. I accept the evidence of AJ and PY about this.[181] By 19 July 2012, RC responded to a PY email on this topic:

Thank you for the update. Great progress. Many thanks to you and Asad for your tireless efforts and your continued success. I would agree that a separate account for the Polo Academy funds should be established. Alex can best speak to this point as treasurer.[182]

346 NC-D responded to RC's email suggesting consideration be given to making the Polo Academy either a trust or charity.[183]

347 Through late July into August 2012, negotiations continued. MPC (through SF) stated that it agreed to a three year (one event a year) endorsement program with FIP, with MPC paying an endorsement fee of US$300,000 per year for endorsement and administrative services. SF proposed that HL would deal with the polo academy separately.

348 HL, on behalf of MPC, orally agreed to MPC making US$200,000 annual payment for a PDF as part of the proposed three year deal in a telephone conversation with the plaintiff on 7 August 2012. This was confirmed in an email from SF to AJ on the same day. [184] This email was forwarded to EH.

349 Some months later in December 2012 at the GA, I accept that AJ had discussions with other members of the EC about the PDF.

350 On 4 October 2012, a Heads of Agreement was signed in relation to the three year agreement between FIP and MPC/Goldin.[185] Clause 4 provided that, upon completion of PS as vice president of FIP, FIP and MPC would enter into a three year agreement in return for a payment of US$500,000 per year by MPC to FIP. For the first year of the agreement, it was agreed that an initial sum of US$250,000 be paid. After PS was appointed vice president of FIP in December 2012, a further US$250,000 was to be paid.

351 In this October Heads of Agreement, there was no mention of a PDF.

352 In December 2012, a further Heads of Agreement was signed at the FIP GA held in Buenos Aires. Predictably, PS was appointed vice president at the GA. Mention of the first year split endorsement fee was deleted.

353 Again, in this December Heads of Agreement, there was no mention of a PDF.

354 Volume 9 of the 2013 FIP Newsletter includes a section on the PDF:[186]

The FIP website has been updated with an Umpire Training Logbook as well as information regarding the FIP Polo Development Fund ...

The PDF is the result of a generous contribution by FIP Vice President Mr. Pan Sutong. An initial budget of U.S.$100,000 has been approved by the Executive Committee.

355 There was little further activity relating to a separate PDF. No separate PDF was ever formally established, either as a trust or a charity. Whilst I understand funds were applied to polo development from time to time, these were from FIP's general funds and not from any specific, designated polo development account. There was no individual treatment in FIP's books of account for a PDF and there was no reflection of a PDF in FIP's balance sheets.

356 Over the three year life of the FIP/MPC arrangement, I understand that the full US$1.5 million was paid to FIP. The receipt of these monies by FIP was fully accounted for in FIP's books and there is no suggestion in these proceedings that these monies were illicitly siphoned off or in some other way misapplied.

357 Against this background, in 2015, PY revisited the PDF. It is important to understand that, by this stage, PY had been dismissed from FIP committees, declared persona non grata by FIP and was in the midst of his self-accepted vendetta against FIP's administration.

358 I have reproduced the relevant parts of those emails at paragraphs 10 and 11 of these reasons. It will be recalled that PY made these following accusations on 6 November 2015 and 22 December 2015:

(a) There was a binding verbal agreement to allocate US$600,000 to a PDF (however described).

(b) RC, NC-D and AT all knew of this fund.

(c) FIP had both a financial responsibility and a fiduciary duty to administer the fund.

(d) FIP failed to report on the existence and administration of the fund. This failure is outrageous. PY particularises this 'failure to report' by accusing FIP of failing to give the fund individual treatment in the accounts in various ways.[187]

359 Once these allegations had been made, investigations were undertaken as to their probity. The plaintiff relied heavily on the product of these investigations. In a conversation with NC-D in 2015, HL told NC-D (who professed no knowledge of a three year $200,000 PDF) that there was a final verbal agreement which was 'as PY claims, a three year $200,000 Polo Development Fund ... and for Mr Pan to become vice president'.[188]

360 Whilst HL's account was recorded by NC-D in an 'illuminating' 2015 conversation (thus three years after the relevant events) and is supported in oral evidence by AJ and PY, there is no contemporaneous contractual documentation to support the existence of the three year $200,000 PDF. In 2012, the parties entered into two executed Heads of Agreement which made no provision for a PDF. There was a 'supersede' (or 'entire agreement') clause in another separate agreement which purported to supersede all previous agreements and arrangements. For reasons that I discuss at paragraphs 367 and 368, I am not prepared to act on this 'evidence'.

361 In April 2016, in response to an approach from NC-D, SF provided his and HL's recollections about the existence of the PDF in an email dated 25 April 2016:

1. Based on Harvey's and my own recollection, there was indeed a polo development fund envisaged in the 3-year contract for 2013-2015. In fact, we considered that $200,000 of the $500,000 paid to FIP for the 2012 Snow Polo World Cup was contribution towards this fund (See Asad's email of 22 October 2011 "Heads of Agreement" and its attachments).
2. In July/August 2012, Asad brought up the suggestion of a "5 Year (2012 through 2016) Seed Funding for the FIP Pan Su Tong Polo Academy for Zone D" (See Asad's email of 3 August 2012 in the thread "RE: Our Discussions Last Week in Hong Kong"). Asad suggested that the first year's funds commence with the contribution from the 2012 SPWC endorsement/sponsorship fees, and after discussing with Harvey (who relayed Asad's suggestion), Mr. Pan agreed in principle to sign a 3-year contract and to fund US$200,l000 per year towards the endowment fund (See my email 7 August 2012 in the same thread "RE: Our Discussions Last Week in Hong Kong"). This fund, to our understanding, is what is commonly referred to as the Polo Development Fund.
3. We do not know whether Asad and Peter have at the relevant time discussed the establishment of this fund no other officials of FIP. However, Harvey and I were given to understand that, in 2013, part of this fund was used to organise a regional umpires clinic in Kuala Lumpur (See email from Asad Jumabhoy of 10 July 2013 "Re: Polo Development Fund"). The aforesaid email has the subject "Polo Development Fund" and originated (or followed) from an email from Richard Caleel. Does this not point toward the existence of a Polo Development Fund?

1. For the reasons set out above, Goldin is not in a position to (as, according to the emails, it is not open for us to) deny the existence of a polo development fund. Goldin's position is that (i) we assumed this fund existed as a result of discussions with Peter and Asad (who were assumed to be properly representing FIP at the material time), and (ii) our understanding was that the $500,000 paid annually to FIP under the Heads of Agreement had two components: $300,000 endorsement fee and $200,000 contribution to the polo development fund. However, whether as a matter of fact this Polo Development Fund existed was really an internal matter of the FIP of which Goldin has no actual knowledge.[189]

362 The Heads of Agreement are not, in my view, the equivalent of signed, sealed and binding contractual documents. The plaintiff submitted, and I accept, that they are short documents which set out the head terms of the three year agreement and no more than that. I accept that they do not purport to be an exclusive and complete record of all of the applicable terms and conditions. They are, however, the major contemporaneous documentary record of the agreement between FIP and MPC/Goldin. If the establishment of a three year US$200,000 PDF was intended, in October and/or December 2012, to be part of the agreement between FIP and MPC, I would have expected that to be reflected somewhere in the Heads of Agreement, in some other contemporaneous formal document or otherwise adopted in writing by both parties.

363 I am cautious about overvaluing SF and HL's post-fact recollections delivered in a hearsay form when those recollections are at odds with a body of oral evidence and the content of the Heads of Agreement documents themselves. This does not mean, however, that I can simply disregard these recollections. I must consider them. They are also supported by a body of oral evidence. As I have said, I regarded the reliability and credibility of all material witnesses in this case as reasonably sound.

364 After anxious consideration, I am satisfied, on balance, that there was no completed agreement between the two parties to establish the impugned PDF. I am certain that it was discussed in some detail. I think it probable that MPC wanted US$200,000 per annum to be spent on polo development. If, however, MPC wished to bind FIP to allocate that sum specifically each year to polo development, then I consider there would very likely be some contemporaneous written record of such an agreement. And there is not.

365 In short, I have preferred what I consider to be a strong inference from what is not in the Heads of Agreement documents or any other written contractual documents over the recollections and reconstructions of the witnesses and the hearsay assertions of MPC employees. I also take into account that there is no written contemporaneous evidence that the establishment of a legally binding PDF was ever considered by the EC, C of A or GA.

366 I have not applied the parol evidence rule (as urged by the defendant), as I have not determined that the Heads of Agreement documents state all the terms of the contract.[190] This does not mean, however, that the Heads of Agreement are worthless as evidence. They constitute, in my view, circumstantial evidence that MPC did not bind FIP to allocate US$200,000 specifically each year to a PDF.

367 I have ignored the defendant's reference to side letters which appeared in submissions, but not (to my observation) in evidence.[191]

368 Given my findings on this PDF issue, it is unnecessary for me to consider the 'so-called' supersede clause contained in a document that was in the court book but not tendered at trial.[192] If I were to consider the effect of this 'supersede' clause agreement, I would have resolved it against the defendant; the document was not in evidence, it was a document valid for one year only and, in my view, would not be capable of displacing an overarching three year agreement. In its terms, it is also said to be governed by Chinese law. There is no evidence about the Chinese law of contract or the effect of the 'supersede clause'.

369 I emphasise that I have not found PY and AJ to be knowingly misleading the court on this issue. I simply prefer the evidence of NC-D, RC and AT, supported by the absence of any formal documentation that proves the existence of the impugned PDF.

370 I am not satisfied that PY and AJ had authority to bind FIP on the PDF proposal. They did not constitute a majority of the EC and, if they were delegated such authority, in my view, it is likely that there would be some record of this delegation; either in an EC minute, informally in an email or, less likely, in a formal instrument of delegation. I accept that they were authorised to negotiate on FIP's behalf probably up to a point just short of reaching an agreement, but in my view, it is likely that the decision to bind FIP to an agreement with MPC had to be undertaken by the EC.

371 NC-D has not established that PY made these PDF accusations dishonestly. I have found this a difficult issue to resolve and, in my view, it is one upon which reasonable minds may well differ. Given the gravity of the allegations made concerning the PDF, the relevant competing evidence, and the circumstantial nature of my reasoning path towards the conclusion that there was no completed binding legal contract between FIP and MPC/Goldin for the establishment of a PDF, I am not prepared to conclude that PY made these PDF allegations dishonestly or irresponsibly.

372 When PY made these accusations, I consider it likely that:

(a) PY believed there was a binding oral contract between FIP and MPC/Goldin; and/or

(b) PY thought there was a reasonable prospect that a court would hold that such a contract existed.

373 If either or both premises are correct, then I am unable to conclude that PY alleged the existence of this PDF knowing that its existence was a fiction. I have found that it remained a concept and never progressed to a binding agreement between the two parties. This does not mean that PY knew this and proceeded to assert its existence in the face of this knowledge.

(a) I am satisfied there was no legally binding agreement entered into between FIP and MPC/Goldin to allocate US$600,000 over three years to a fund devoted to the development of polo in the Asian region.

(b) PY was factually incorrect to allege that:

(i) there was such a PDF;

(ii) NC-D, RC and AT knew of the existence of the PDF;

(iii) FIP had a financial responsibility to properly administer the PDF; and

(iv) FIP had failed in various ways to account for the PDF.

(c) I am not satisfied that when PY authored the relevant PDF related emails that he made the PDF accusations dishonestly or irresponsibly.

5.12.7 Misconduct that warrants PY being declared by FIP as persona non grata

375 In the 3 November 2015 email, the recipients were advised that in view of PY's continued spurious accusations, the C of A unanimously resolved in December 2014 as follows:

Discipline Discussion - Mr Peter Yunghanns. Allegations against FIP, lobbying against FIP officials, degrading letters to our major sponsors result in the following motion: Motion to declare PY 'persona non grata' and to inform him that he is not welcome at FIP meetings or events ...

376 Literally translated from Latin, persona non grata means an unwelcome person. It is a serious form of censure. In my view, PY was guilty of misconduct that warranted this serious censure. At the risk of repetition, in his pre-December 2014 emails (which were relatively widely circulated in FIP circles), PY stated the following, amongst other 'postulations':

(a) To RC, and copied in NC-D, SO, AT, AJ and Silvio Coutinho: '[You have] ... the devious, duplicitous and mendacious qualities of a cowardly vainglorious megalomaniac'.[193]

(b) To FIP members: 'Maybe the problem is anatomical in that [RC], unfortunately, lacks vertebrae, his intestinal strength, if it exists, is minimal and he lacks a couple of other appendages with which most males are endowed.'[194]

(c) To NC-D and copied in FIP members: 'It does reveal that to make the statement you do, you may have been taking some form of hallucinatory substance, either nasally intravenously or by ingestion, or, alternatively, your ability to comprehend the English language is impaired.'[195]

(d) To FIP members: 'Somebody needs to advise, guide and counsel this inept clown ...'[196]

377 This is a very small snapshot of PY's email contributions to FIP in the pre-December 2014 period. More fulsome accounts of those contributions are scattered throughout these reasons. In short, PY, who alleged deep hurt through being described as a purveyor of spurious accusations, described the FIP president as an 'inept clown' who was mendacious, duplicitous, cowardly, vainglorious, neutered and a megalomaniac. For the vice president, he moderated his criticism and merely suggested that he may be an intravenous drug user.

378 The defendant has established that PY was guilty of misconduct that warranted him being declared by FIP as persona non grata.

379 It follows that the defendant has established that some, but not all, of the alleged accusations made by the plaintiff are not authentic, genuine or truthful. He has also established that certain accusations were made irresponsibly. In my view, he has failed to establish that the plaintiff made any of these accusations dishonestly. As I have said on a number of occasions and in various ways, PY impressed me as an honest man. A formidable enemy no doubt, but essentially honourable. Given my conclusions on qualified privilege, it is unnecessary to evaluate the precise extent to which the defendant has established the justification/truth defence. PY's accusations made concerning the FIP by-laws, the administration of its bank accounts, the associated Taylor Report, the failure to elect B and C country members, the Super Nations Tournament, the election of AT as CEO and the PDF, upon close scrutiny, are in certain respects factually inaccurate. In this sense, they are therefore not genuine, authentic or truthful.

380 NC-D raised the defence of qualified privilege in two ways:

(a) the usual 'duty/interest basis' considered in Barrow v Bolt; and

(b) 'on a response to attack basis'; the form of qualified privilege considered for example in Harbour Radio Limited v Trad.

6.1 Common law 'duty/interest' qualified privilege

381 I have set out the relevant principles for common law qualified privilege at paragraphs 28 to 29 of these reasons. Statutory qualified privilege is found in s 30 of the Act, which is reproduced in paragraph 30 of these reasons. As I have said, in this case for practical purposes, the legal principles that relate to statutory qualified privilege substantially reflect those of the common law defence. Both defences will be defeated by malice.

382 I am satisfied that the defendant has established that both publications were made on occasions of qualified privilege. The plaintiff addressed little, if any, argument against this proposition but argued that the defence was defeated by the defendant's malice, which actuated the publications.

383 I am satisfied that the defamatory imputations in the November and December emails were made on occasions of duty/interest qualified privilege for the following reasons:

(a) The defendant was the president of FIP. The FIP had been subject of a sustained 'vendetta' carried out by PY for several years, focusing on the administrative capacities and personal characteristics of RC, NC-D and AT.

(b) The publications were made by the president of FIP, acting in that capacity, and acting to protect an interest - namely, the protection of the reputations of FIP and its personnel.

(c) The initial recipients of the publications were largely members of FIP. The December email was also largely published to members of FIP. To the extent that either email was published or likely to be republished, I consider it likely that any recipient of the publication or republication would be a person with an interest in receiving the relevant email. The content of the two emails is such that it dealt with issues of substance of legitimate interest to members and friends of FIP.

(d) The publications are directly relevant to the privileged occasion. There is no suggestion that the substance of the emails is totally foreign or in some way unconnected to that occasion.

384 I have observed that the plaintiff embarked upon a protracted attack upon FIP, which extended, towards its conclusion, to NC-D. It extended throughout its course to the office of president of FIP. I have reviewed a good deal of the plaintiff's 'postulations' throughout these reasons. In my view, given that NC-D authored the impugned emails in his capacity as president of FIP, it is reasonable to assess his 'response' not only directly against the background of the PDF accusatory emails that I have set out earlier these reasons but also against the broader background of PY's email attacks upon the FIP organisation generally, RC and AT, and as time went on, NC-D himself.

385 In particular, I refer to the following passages that I have extracted from emails authored by PY that offer a flavour of the broad attack he embarked upon over several years and the related specific attack he made upon NC-D. Some repetition is necessary:

Your persuasive powers continue to be indeed remarkable as have previously demonstrated and embody all the devious, duplicitous and mendacious qualities of a cowardly vainglorious megalomaniac.[197]

(b) On 19 September 2013, PY wrote to FIP members:

Maybe the problem is anatomical in that [RC], unfortunately, lacks vertebrae, his intestinal strength, if it exists, is minimal and he lacks a couple of other appendages with which most males are endowed.[198]

It does reveal that to make the statement you do you may have been taking some form of hallucinatory substance either nasally, intravenously or by ingestion or, alternatively, your ability to comprehend the English language is impaired.[199]

Let's see how [RC] slithers out of the obligations, what reasons he gives and upon whose shoulders he places the blame. Nicholas, I hope you will come to the President's aid with your usually ragbag of adjectives without a noun upon which to hang them ...

Somebody needs to advise, guide and counsel this inept clown, which noun is used of one whose acts make people laugh in disbelief.[200]

The Dicky and Nicky [NC-D] duo have excelled themselves. You and Nicky will also be pleased to know I now have a copy of a report presented to the Council of Administration regarding the closure of the FIP account which is a complete fabrication and totally misleading.[201]

The supreme arrogance and ignorance demonstrated by you and the Chief Executive on previous occasions again shines brightly here and is demonstrated by your complete failure to understand the bylaws and the procedure at Assemblies ...

Congratulations to you and Alex in treating your constituents in such a high handed and disdainful manner and wasting FIP funds on another exercise in futility.[202]

Let me tell you what will now happen. Alberto, Alex and Nicholas will go into a huddle and decide it is all my fault for having the temerity to raise this issue and I did it out of pure spite not because I was concerned with the financial condition of FIP being accurately stated. Therefore they will decide the best solution for them is to remain silent rather than respond and confirm their collective stupidity and commercial and financial incompetence.[203]

Question. Have the President, the Legal Advisor and the CEO read the Bylaws? If YES, then they are grossly incompetent in failing to follow the provisions thereof, particularly in relation of the holding of the General Assembly which is the supreme body of FIP and it has ultimate authority. If the answer is NO, then they are grossly incompetent in failing to read and be aware of the provisions of the Bylaws relating to the proper governance of FIP.[204]

Nicholas, I've made numerous statements regarding FIP's administration or lack thereof. Retreating into silence, ignoring facts and correspondence and failing to rebut or refute my claims does nothing for your standing as President, nor does your refusal to factually substantiate your generalised derogatory statements relating to my conduct.[205]

This duplicitous behaviour was designed to mislead the members as to the real cause of FIP's financial condition and designed to protect you, your predecessor and the Chief Executive from disclosing your ineptitude, incompetence and complete lack of commercial common sense.[206]

386 It is unnecessary to provide more examples of this bitter email campaign. The emails speak for themselves.

387 I am satisfied that the defamatory imputations made within the November and December emails are also privileged at common law on a qualified privilege/'response to attack' basis:

(a) The defamatory imputations are closely connected to PY's broad three year attack.

(b) The defamatory imputations are directly connected to PY's direct attack on

NC-D, RC, AT and FIP in his PDF emails of 9 February 2015, 22 May 2015, and 6 October 2015.

(c) The defamatory imputations are directed at the credibility of the author of that attack, PY.

(d) There was no ulterior purpose to NC-D making the defamatory imputations other than to vindicate himself as president of FIP, and the past and present (in 2016) FIP administration.

388 Largely for the reasons set out in the preceding paragraphs, I have also concluded that the defamatory imputations were made on an occasion of statutory qualified privilege. In addition to these reasons, I consider that their publication was reasonable for the following reasons:

(a) The subject matter of the imputations was of interest to their likely readership.

(b) The defamatory imputations related to NC-D's performance as president of FIP and also to that of his administration.

(c) The defamatory imputations were made in response to a series of very serious questions being raised by PY in the emails of 9 February 2015, 22 May 2015, and 6 October 2015.

(d) There was substance to the assertions by NC-D that PY made incorrect accusations.

(e) The attack by PY on the competence and bona fides of NC-D and the FIP administration required a response.

(f) The sources of information acquired for the defamatory imputations were reasonably extensive, if at times, conflicting.

389 I conclude that the defamatory imputations were made on an occasion of common law qualified privilege and on an occasion of statutory qualified privilege.

390 As I have said, the defence of qualified privilege, whether statutory or at common law, is defeated by malice. I have set out the principles relevant to this issue at paragraphs 32 to 36 of these reasons. The plaintiff carries the onus of establishing that the defamatory matters were actuated by malice.

391 The plaintiff contended that he has demonstrated that the two impugned publications were actuated by malice for the following reasons:

(a) The purpose in sending the emails was to denigrate the plaintiff's character, and to accuse him of making false and spurious allegations in order to justify his summary expulsion from FIP without any due process. This, the plaintiff contended, is an improper purpose.

(b) The defendant did not hold an honest belief that what he published in the emails was true; alternatively, he was recklessly indifferent as to their truth or falsity.

(c) Within 24 hours of sending the November email, the defendant was informed by a senior executive of MPC (HL) that the plaintiff's claims were true.[207] In that email, NC-D told AT:

[It] would appear that the final verbal agreement reached between PY/AJ and Goldin was, as PY claims, a three year $200,000 Polo Development Fund (hence this $600,000 figure) and the $300,000 per annum [was to] hire a CEO and to set up an office in HK and for Mr Pan to become a Vice President'.

(d) NC-D concealed this conversation (with HL) from all other executives and members of FIP, including from recipients of the November email.

(e) This, the plaintiff contended, is conclusive evidence that NC-D knew the allegations he made against PY in the November email were false.

(f) NC-D knew the true position well before he sent the November email. This is evidenced by:

• The email from PY to NC-D dated 19 July 2012 about negotiations for a PDF.[208]

• The FIP Newsletter 2013 referring to the PDF as a result of the generous contribution of FIP vice president, PS.[209]

• The email from SF to AJ of 7 August 2012 relating to the establishment of a PDF.[210] NC-D must have been availed of this email by 25 September 2015.[211]

• The failure by NC-D to enquire of AJ, PS or SF as to the truth of the matters stated in the November email prior to its publication is (the plaintiff contends) evidence of malice.

• This failure of NC-D to enquire took place despite NC-D knowing:

A. PY and AJ were the only FIP representatives involved in the negotiations for the PDF with MPC. The defendant's justification for not asking AJ about these negotiations was that 'he was an acolyte of the plaintiff'.

B. PS, HL and SF were the only MPC representatives involved in the negotiations for the PDF with FIP.

(g) The plaintiff contended that NC-D's failure to correct the November email is further evidence of malice. After the publication of the November email, NC-D received:

• A copy of an email from AJ stating that '[w]e had established a Zone D PDF of $200,000 a year for three years as part of the renegotiation of the three year renewed contract in China (so by now it should be at $600,000 if my memory serves me correctly)'.[212]

• A copy of an email from PA to Peter Prendiville dated 1 December 2015. PA was FIP Tournament Director of the FIP Snow Polo World Cup and FIP Super Nations Cup from 2012 to 2015. He stated inter alia:

I knew of a Zone D development fund being set up. I was also involved in the planning stages discussing ... how this fund might be used in developing Zone D. So it came as a bit of a surprise when its existence was denied in the communication from the President and Executive Committee on 3 November 2015.[213]

• The defendant's long and illuminating conversation with HL on 3 November 2015.[214]

• SF's advice to NC-D that PY's claims relating to the PDF were true.[215]

(h) NC-D's actions and statements from 2013 onward bespeak ill will towards PY.[216]

(i) NC-D was part of a strategy developed with RC and AT to remove PY not only from international polo, but also from Australian domestic polo and to silence him as a critic.[217] Any attack to PY, according to AT, should be definitive and to the jugular.[218] This manoeuvring was privately undertaken by RC, AT and NC-D.[219]

(j) The defendant, far from being interested in improving FIP governance, led a search for 'dirt' on PY.

(k) The expulsion of the plaintiff as persona non grata from FIP, and the November email and December email were part of this strategy.

(l) It follows (the plaintiff contended) that the two impugned emails were sent for an improper purpose - to silence the plaintiff and justify his expulsion from FIP.

(m) NC-D's contribution to and distribution of the Taylor Report.

(n) The motion moved and passed at the C of A annual meeting in Buenos Aires declaring the plaintiff as persona non grata and to inform him to was no longer welcome at FIP meetings or events, together with a second motion passed at that meeting that any ambassadorial position held by PY be revoked is evidence of malice.

(o) The motive of the defendant was to expel the plaintiff in order to silence his criticisms. That is, an improper or collateral purpose unrelated to the allegations made by PY about FIP governance and finances.

392 As I have said, the burden rests with PY to demonstrate that the defamatory imputations that I have found in the 3 November 2015 and 30 December 2015 emails were actuated by malice. Should he demonstrate this, NC-D's defences of statutory and common law qualified privilege will be defeated.

393 PY contended that NC-D harboured a long felt animus towards him and plotted, together with RC and AT, to remove him from FIP and then silence him as a critic. The true purpose of both the November and December 2015 emails was to denigrate PY's character sufficiently so as to justify PY's expulsion from FIP without any due process.

394 PY relied on the following combination of facts to demonstrate NC-D's animosity towards PY which had, he submitted, brewed over a number of years. I shall not spell them out in any detail. Many have already been mentioned in other contexts:

(a) A dispute between PY and NC-D in 2010 over Mr Ashton's management of FIP and NC-D's promotion in FIP of Herbert Spencer.[220]

(b) The election of RC to be FIP president at a joint C of A and EC meeting on 18 April 2012, and the agreement between RC and NC-D that NC-D be president-elect. PY and NC-D differed on whether this arrangement was authorised under the by-laws and was the subject of proper due process.

(c) On 6 December 2012, after formally being elected as president, RC asked PY to step down from the EC. PY told RC to discuss this with other FIP officials. Shortly thereafter, RC spoke to PY and told him he would be happy to work with him on the EC with PY having a particular focus on China.

(d) On 10 April 2013, PY was summarily dismissed from the EC and FC.[221] He was given no reasons. RC, when asked for reasons, on 17 April 2013 replied that PY had conducted inappropriate dealings with Lloyds of London about an insurance issue.[222]

(e) On 3 May 2013, NC-D emailed PY and stated that PY had behaved belligerently and engaged in conduct unbecoming of a senior member of FIP. In response to an email from PY (dated 9 May 2013),[223] NC-D stated that PY had a 'monotonous pursuit of peripheral matters' and criticised PY's acerbic writing style.

(f) On 10 May 2013, RC stated to PY that a 'majority formal vote of the EC' confirmed his dismissal from the EC and advised him that he was not eligible to attend the EC meetings in London.

(g) After a meeting at the Hilton Hotel on 14 May 2013, on 15 May 2013, the EC agreed to reappoint PY to the FC and appoint him to the CC. Whether this appointment was conditional is disputed. I have found that it was.[224]

(h) On 15 June 2013, RC informed the plaintiff that the EC had passed a motion 'rescinding its offer to appoint [PY] to both the RC and CC'. No reason was given for this rescission.

(i) On 25 September 2013, NC-D proposed to members of EC and past presidents of FIP that the EC should issue a statement to the C of A to the effect that the EC did not agree with the plaintiff's allegations about FIP administration and that it supported RC.[225]

(j) On 3 and 4 October 2013 at an EC meeting, a motion was passed supporting RC and stating that the EC had reviewed and investigated the allegations concerning PY and determined that RC had acted in accordance with the spirit and letter of FIP's by-laws.[226]

(k) In response to PY's emails of 20 October 2013 and 4 December 2013, NC-D wrote:

... what an astonishingly bitter, calculated and insulting attack on the eve of the General Assembly. It is unworthy of a gentleman or a member of the FIP ... scurrilous accusations have already been, at the President's request, investigated by the Executive Committee and have been reviewed and fully investigated and have been found to be without merit.[227]

(l) The plaintiff was not contacted about this review and investigation.

(m) At its meeting on 4 December 2013, the C of A passed a motion that

if [PY] continues to make unfounded allegations or if perceived (by FIP) slanderous remarks of the leadership of FIP that a request be forwarded to the Australian Federation that he be removed as their delegate.

(n) On 3 February 2014, NC-D emailed RC and AT, and remarked that the honorary secretary (Mr Coutinho) ought send a letter to the Australian Polo Federation relating to PY. NC-D said:

We also need to urgently progress the working of disciplinary matters and exactly how a person can be deemed to be no longer part of the Federation for be bringing the Federation or the sport into disrepute.[228]

(o) On 27 February 2014, Mr Coutinho attached a letter to an email addressed to the Australian Polo Federation, expressing FIP's preference that PY not be reappointed as a representative of FIP:

Unfortunately although [PY] has put in a great deal of dedication in the past ... he has over the past year or so come into conflict with the organisation to the point where his abrasive attitude and emails have caused great concern and disruption within the Federation effectively preventing FIP from concentrating on matters of more importance. He has effectively been removed from all committees and appointments by the Executive Committee.[229]

(p) In February 2014, NC-D approved the Taylor Report for distribution to all members of the C of A.[230]

(q) In the draft Taylor Report, NC-D added the words 'in retaliation for being removed from the EC' onto the sentence:

The reason for this delay by MPC is that since [PY] closed FIP's bank account in Australia in retaliation for being removed from the EC for unacceptable behaviours, FIP has not been able to open a new account because of the Bylaws situations.[231]

(r) The plaintiff asserts in paragraph 9(ccc) of his Amended Reply and Amended Defence to Counterclaim that when the defendant inserted these words into the Taylor Report and when he approved the distribution of this report, he knew this statement to be false.

(s) PY became concerned about the appointment of AT as CEO in April 2014. He sent out a number of emails expressing this concern.[232] He received no response.

(t) On 22 April 2014, NC-D proposed to AT and RC that they invite the chairmen of the 'Big Three Polo Playing Countries' to write a letter stating that they supported AT's appointment. NC-D also asked Brigadier Wright (chairman of HPA) whether he would sign a letter that would 'take the wind out of PY'.[233]

(u) In an email on 2 October 2014, PY set out issues relating to the operational performance of FIP between December 2012 and October 2014. He received no response to those emails from NC-D or any other member of the EC.

(v) On 2 October 2014, RC sent NC-D and AT a draft motion to declare PY persona non grata and asked for comments.

(w) On 1 and 2 December 2014, the EC resolved to present a motion to the C of A declaring PY persona non grata and to inform the plaintiff that he would not be welcome at FIP events. A reason minuted for this motion in the Minutes of the meeting was:

He contacted our major sponsor (China) and 3 major Polo Federations, Past presidents etc. Damaged FIP.

(x) At the C of A meeting of 3 December 2014, the motion to declare PY persona non grata was approved unanimously.

(y) NC-D was confirmed as the new president at that meeting.

(z) PY was given no prior notice of these motions.

(aa) PY received a letter from the FIP secretary on 12 December 2014 setting out the terms of the motion passed at the C of A meeting on 3 December 2014.

395 In addition to the combination of facts set out in the previous paragraph, PY contended that the PDF in the terms specified by PS/MPC/Goldin existed in 2012, NC-D knew that it existed before he sent the November email and falsely maintained in that email that it did not exist. PY relied on the following evidence to support the existence of the PDF and NC-D's knowledge of same and the falsity of the assertions made in the November email:

(a) The email from PY to NC-D dated 19 July 2012 referred to negotiations for the PDF and to opening a special account to administer those funds. NC-D replied suggesting that consideration be given to establishing a trust or charity to administer those funds.[234]

(b) The FIP Newsletter (volume 9 of 2013) referred to the PDF in the following terms:

The PDF Fund is the result of a generous contribution of FIP Vice President Mr Pan Sutong.[235]

(c) The email from SF (Goldin) to AJ on 7 August 2012 confirmed the agreement between FIP and MPC for the PDF:

Further to my email yesterday, I understand that after failing to reach you, Harvey had a telephone conversation with Peter in relation to the proposed Polo Academy. The gist of the conversation was that:

1. In line with the 3 year Snow Polo arrangement (and on condition that it is agreed), Mr Pan is agreeable to fund US$200,000 per year towards the proposed endowment fund for the first years.

2. Further contributions will be subject to further discussion and agreement.

For your information. You may wish to discuss this with Peter as to the details.[236]

(d) NC-D became aware of this email at the latest by 25 September 2015. It was provided to AJ and AT on that day.

(e) Prior to the November email, NC-D failed to enquire of PY, AJ, PS, HL or SF as to whether in fact, the PDF existed.

(f) NC-D knowingly approved the Taylor Report in which it was falsely stated that the administration of FIP had 'thoroughly investigated' PY's claims about the PDF and found 'no merit in the accusations'.

(g) NC-D failed to respond to any of PY's subsequent emails setting out the facts relevant to the PDF.

(h) NC-D's failure to correct the falsity of the November email despite receipt of information said to confirm the existence of the PDF and thus the falsity of the email, including:

• The 'long and illuminating' conversation between NC-D and HL.[237]

• The correspondence from PY post 3 November 2015 relating to the PDF.[238]

• Email from AJ to NC-D dated 18 November 2015 in which AJ stated:

We had established a Zone D Polo Development Fund of $200,000 a year for 3 years as part of the 3 year renewal contract in China (so by now it should be $600,000 if my memory serves me correctly).[239]

• Email from PA to Mr Prendville dated 1 December 2015 with NC-D copied in (by this time, NC-D was president of FIP):

... in my time as FIP Tournament Director of the FIP Snow Polo World Cup and FIP Super Nations Cup from 2012 to 2015, I knew of a Zone D development fund being set up. I was also involved in the planning stages discussing with [AJ], Glenn Gilmore and quite a few others how this fund might be used in developing Zone D. So it came as a bit of a surprise when its existence was denied in the communication from the President and [EC] on 3rd November 2015.[240]

• In April 2016, NC-D was told by SF (senior MPC executive) that the plaintiff's claims regarding the PDF were true.

396 I am not satisfied that any animosity that NC-D may have harboured towards PY actuated the impugned November and December imputations. That animosity existed by November 2015 is beyond doubt. It is one thing to demonstrate animosity, however, it is quite another to demonstrate that it actuated the publication of the impugned emails. It is clear that by late 2015, NC-D, RC and AT were exasperated with PY. In the lead up to 3 November 2015, PY had maintained his attack on FIP and NC-D, and had turned his attention to the so-called PDF. His emails of 9 February 2015, 22 May 2015 and 6 October 2015 raised serious questions about financial management and accounting practices. Those letters demanded an investigation and a response.

397 Whilst I have concluded that the plaintiff has not established that the animosity NC-D harboured towards him actuated the impugned publications, it nevertheless provides a context in which to consider whether the plaintiff has established that the impugned emails were deliberately false. This, if established, would be strong, near conclusive evidence of malice.

398 In paragraphs 310 to 373 of these reasons, I have reviewed the PDF issue as part of NC-D's defence of truth/justification. I have concluded that NC-D established, on balance, that there was no binding agreement between FIP and MPC/Goldin to establish a PDF. For essentially the same reasons, I am satisfied that the plaintiff has not proved that there was such a binding agreement.

399 It follows that there was a solid basis for NC-D to reject the accusations or allegations made by PY concerning the PDF. On balance, I am satisfied that NC-D genuinely believed, when he published the November and December emails, that the content of those emails was true. I accept that he had received contrary information from sources connected with MPC, however, in my view, he was entitled to and did conclude from (amongst other things) the failure to mention the PDF in the two 2012 Heads of Agreement documents, the minutes of the EC or in any other formal contemporaneous document, that no binding agreement between the parties was ever completed.

400 I have little doubt that the establishment of a PDF was widely contemplated and that some FIP members may have concluded in 2012 that it was a 'done deal'. I also have little doubt that on the isolated occasions when funds were applied to polo development, it was expedient to refer to a PS-sponsored PDF (for instance, in volume 9 of the 2013 FIP Newsletter). I am not persuaded, however, that these pieces of circumstantial evidence are sufficient to displace NC-D's word on this issue, supported as it is by AT and RC, and circumstantially supported, in my view, by the absence of contemporaneous documentation to which I have referred.

401 PY contended that NC-D's addition of the phrase 'in retaliation for being removed from the EC for unacceptable behaviours' in the draft Taylor Report is evidence of malice. I disagree. For reasons that I have set out earlier, I consider that the conclusion is inescapable that PY refused to further operate the bank account and ultimately closed it as a response to his dismissal from the committees. His contemporaneous correspondence speaks for itself.

402 PY further contended that NC-D's assertion in the November email that a 'thorough investigation' had been conducted into the PDF issue was knowingly false. The full passage reads:

Mr Yunghanns alleged that there was an agreement to establish a $600,000 'Polo Development Fund' and that FIP has failed to properly account for same. As with Mr Yunghanns' past allegations ... the current administration have thoroughly investigated these claims against FIP and/or its officers and found no merit in the accusations.

403 PY argued that NC-D's assertion that a 'thorough investigation' was conducted was knowingly false, as he must have known that at the time of the publication of the November email, none of PY, AJ, PS, HL or SF had been interviewed about their knowledge of the PDF. They were, in fact, the people at the coalface who were said to have reached the PDF agreement.

404 In my view, PY is entitled to be critical of the thoroughness of an investigation that announced its findings without speaking to the major participants. Whilst there was a solid audit trail of documents that evidenced the PDF negotiations (including the November and December agreements), any thorough investigation should have involved interviews with the major participants. Against that, the 'thorough investigation' phrase used by NC-D was a reference to the totality of PY's accusations and questions, including whether or not the PDF had been properly accounted for in FIP's books. Whether an investigation is superficial or thorough, involves subjective evaluations about an essentially intangible concept. What may be thorough to some, may be cursory to others.

405 PY has not established to my comfortable satisfaction that when NC-D asserted that PY's claims had been 'thoroughly investigated', that claim was false. Even if one accepted that it was incorrect to characterise the investigation as thorough, I am not comfortably satisfied that NC-D used the term dishonestly. In other words, I am not comfortably satisfied that NC-D knew the investigation was not thorough, and went ahead described it as thorough regardless of the true position.

406 The plaintiff has not established malice. I consider NC-D's defence of qualified privilege has been established on both the usual 'duty/interest' basis and also on the 'response to attack' basis.

407 The plaintiff's claim for defamation fails. It is unnecessary to consider the statutory defence of triviality[241] and the issue of damages.

408 The defendant to the primary claim alleged in the counterclaim that three emails sent by PY to various FIP members defamed him. I have set out the legal principles relating to the defamatory imputations at paragraphs 15 to 21 of these reasons. It will be recalled that an imputation will be defamatory if the imputation has the tendency to lower the reputation of the claimant in the minds of ordinary decent members of the community. The essence of a defamation action is disparagement or diminution of reputation.

409 The three emails the subject of the counterclaim are:

(a) email dated 6 November 2015 from PY to the nominated recipients;[242]

(b) email dated 22 December 2015 from PY to the nominated recipients;[243] and

(c) email dated 30 May 2016 from PY to the nominated recipients.[244]

410 These emails are reproduced in full in paragraphs 10, 11 and 13 of these reasons. They are part of the sequence of five emails that has given rise to this litigation.

7.1.1 Are the imputations in the 6 November 2015 email defamatory?

411 NC-D, in the Further Amended Defence and Counterclaim, alleged that the

6 November email, in its natural and ordinary meaning, was defamatory of him, and meant and was understood to mean that the defendant:

(a) has failed to account for US$600,000 provided to FIP;

(b) engages in financial mismanagement;

(c) may have applied the US$600,000 in funds to an improper purpose;

(d) is incompetent and inept;

(e) is grossly incompetent; and

(f) is responsible for gross mismanagement.[245]

412 PY, in the Amended Reply and Amended Defence to Counterclaim, denied that this email, in its natural and ordinary meaning, was defamatory of the defendant and further denies that the email conveyed any of the meanings alleged in subparagraphs (a) to (f) of paragraph 53 of the counterclaim.[246]

413 Many of the factual findings that I have made in the plaintiff's defamation case have a carry-over impact in the counterclaim, although of course, the burden of proof is reversed.

414 It will be recalled that the 6 November 2015 PY email was a response to the allegedly defamatory 3 November 2015 email, in which NC-D asserted that PY's allegations concerning the PDF were baseless. I shall analyse the relevant contents of the 6 November email.

415 The first two paragraphs of the email are as follows:

Thank you for at last, sending the members a specious and revealing letter detailing your feigned, tongue in cheek concern for confidentiality and using this as an excuse for not acting earlier. You should have placed these matters before the members as they occurred and not wait until your back is against the wall.

As you've said before, good and timely communications are important. I may counsel you to practice what you preach. Another important aspect of communications is factual accuracy.

416 I consider that there is nothing defamatory in these paragraphs. Strong language is not of itself defamatory and there is nothing, in my view, in these paragraphs that would tend to diminish or disparage NC-D's reputation. Chiding for a 'feigned, tongue in cheek concern for confidentiality' as an excuse for 'not acting earlier' is, by any standards, mild criticism, and at any event, is not one of the imputations alleged by the defendant to be defamatory. Mere insults and vulgar abuse are generally not defamatory, as they do not have a capacity to diminish or disparage reputation.[247]

Let me first deal with the Polo Development Fund. For the benefit of all members and for the enlightenment of Officials, I outline the facts regarding the dealing with the Metropolitan Polo Club and the Goldin Group and the sponsorship agreements, which over a 4 year period resulted in over USV$8,000,000 being paid into the polo community.

In mid-2011, Eduardo Huergo and I had a meeting in Tianjin with the Chairman and Executives of Goldin Properties, and discussed the possibility of FIP organising the proposed Snow Polo event to take place in January 2012. Thereafter negotiations were conducted by Asad Jumabhoy and myself on behalf of FIP and resulted in a one year contract being entered into in respect of the 2012 Snow Polo.

Of the sponsorship monies for this event, more than USD$2,000,000 was paid into the polo community, of which USD$500,000 plus expenses were paid to FIP.

This event was considered by the Sponsors to have been a great success and discussions then commenced regarding the possibility of a three year contract being entered into. These negotiations which took place over a period of time and were carried out by Asad and myself on behalf of FIP.

During the course of the negotiations, the Sponsors indicated that they considered the fee of USD$500,000 was somewhat excessive in respect of the work undertaken by FIP, particularly as all expenses incurred by FIP were paid in addition to the fee. In effect the fee was a clear profit.

This was not an unreasonable attitude, particularly if viewed on the principal of quantum meruit.

The Sponsors wished to continue with FIP and the development of polo in Zone D, therefore it was agreed with the Sponsors by Asad Jumabhoy and myself that they would still pay USD$500,000 of which USD$200,000 was to be applied to a Polo Development Fund and the balance of USD$300,000 for FIP's general purposes. One of the principal uses of the balance was to be to pay the salary of a Chief Executive. This verbal agreement was clearly understood by the Executive during negotiations and prior to entering into the 3 year agreement.

418 Again, I am of the view that there is nothing defamatory in these paragraphs. They set out PY's account of the facts that are said to support the existence of the PDF.

Eduardo's letter, upon which you rely on Nicholas, is written in his normal diplomatic manner and implies that there was no written agreement regarding the fund, although there is significant documentary evidence of the fund's existence which supports the verbal agreement.

Nicholas it may come as a surprise to you, to know that in law, a verbal agreement is equally binding on the parties as a written agreement. There are a few exceptions under English law, such as the purchase of land or long-term lease which must be reduced to writing.

Nicholas, there is also an English expression which hopefully you understand and abide by, namely that 'my word is my bond'. A handshake can be as effective as reams of written words. The effectiveness of the handshake depends on the integrity and trust of the individuals involved.

As far as I am concerned, Asad and I shook hands with the Sponsors on this deal after considerable negotiation and discussion, and advised the Executive accordingly. I consider that a USD$200,000 per annum Polo Development Fund was an extremely worthwhile benefit for FIP to have, to enable it to develop polo, in particular Zone D.

420 There is nothing defamatory in these paragraphs. PY stated his contention that there was a verbal agreement to establish a PDF between 'the Sponsors' on the one hand, and himself and AJ on the other. Mildly condescending language does not amount to defamatory language.

If you believe my mental condition, which both you and the verbose Alberto consider to be impaired and maybe to some extent amnesic, there are other parties you can refer to, as to the veracity of my statements regarding the existence of the fund. Why don't you contact the Sponsors and you should certainly talk to Asad.

422 PY resorted to a little rhetoric in this paragraph while he invited NC-D to undertake inquiries to confirm his (PY's) recollection of events, however, there is no defamation of NC-D in this paragraph.

Question - All members are entitled to know how the USD$600,000 FIP was received has been applied and the purpose for which it has been applied and what remains thereof. Maybe a source and application of funds statements should be available to members. Let's see if you can do a mental somersault and turn this question into a spurious accusation.

424 The paragraph assumes the existence of the PDF and asserts that members are entitled to know how it was received and applied. PY made a suggestion for a source/application of funds statement. He was clearly stung by NC-D's allegation of 'spurious accusations' in the 3 November email and rhetorically asserts that the PDF issue he raises would require a mental somersault by NC-D to be characterised as 'spurious'. This paragraph does not convey any of the imputations alleged by the defendant and is not defamatory.

Spurious Accusations

You may now realise that to fail to give any response implies confirmation of the veracity of statements made. You state they I have made spurious accusations against the Administration of FIP and its Officers. One definition of Spurious in the Oxford English Dictionary is 'not true or genuine'.

I have set out a few examples (there are many more) of the statements I have made or questions I have asked regarding FIP's incompetent and inept administration to which no answers have been received.

In December 2012, FIP agreed to open a bank account with an international bank. 12months later it had not done so. What say you, Nicholas?

FIP failed to take control of its bank account for over 9 months from December 2012. What say you, Nicholas?

FIP's failing to take control of its bank account resulted in FIP being unable to meet its financial obligations when it fell due. What say you, Nicholas?

At an Executive Committee meeting in Tianjin, Richard and Nicholas with the encouragement of Alex Taylor, Chairman of the CEO selection committee appointed Alex Taylor, who was unemployed as CEO without any due process whatsoever. Upon complaints being received, they decided he would become interim CEO. Whether interim or permanent, no due process of any sort was undertaken. What say you, Nicholas?

It was agreed in December 2012, that a procedure for the election of B&C country members to the Council of Administration was totally inadequate. Nothing despite repeated requests has been done and as a result, Derek Wolsternholme was elected to the Council of Administration without holding any position in any member country. This shambolic situation still exists. This is gross incompetence and an insult to B&C countries. What say you, Nicholas?

The above are not spurious accusations, they are statements or questions to which all members are entitled to an answer.

426 PY, in this passage, set out his defence to the NC-D 'spurious accusations' allegations in the 3 November 2015 email. He identified various examples of asserted FIP incompetent and inept administration which have (he asserted) elicited no response. These examples related to FIP's bank accounts, its inability to meet its financial obligations, the appointment of AT as CEO without due process, and the procedure for the election of B and C country members to the C of A. The phrase 'what say you, Nicholas?' invited a response from NC-D as to whether these accusations can correctly be characterised as spurious. In my view, the only accusation that directly concerns any participation from NC-D in the impugned conduct is the appointment of AT as CEO. The balance of the impugned conduct in this set of accusations occurred well before NC-D was president. The accusations were directed at FIP administration and not NC-D personally. NC-D was personally criticised for alleging that PY makes 'spurious accusations'. The ordinary, reasonable reader would not understand that any of the content of this paragraph conveys that NC-D engaged in financial mismanagement, failed to account for FIP monies, was incompetent or inept or similar. Insofar as the paragraph relates to PY's assertions about AT's appointment and NC-D's participation in that process, the issues raised are relatively benign, and I am not satisfied the 'esteem in which [NC-D] is held by the community'[248] has been diminished in any way by the publication of this part of the email. It ought be borne steadily in mind that NC-D is the counterclaimant, and not the FIP executive community.

Nicholas, you state that I have made over a period of 3 years, spurious accusations against FIP and its Officers. To enable the members to understand the mental process, whereby you are able to make this statement, would you please set out at least 6 of these spurious accusations, or more if you wish, which you claim I have made. The members are clearly entitled to know the basis you have for making this non-specific generalisation on numerous occasions.

Nicholas, open your mouth and let the members hear you. I am in the ring and have my jaw stuck out. See if you can land a devastating and telling blow.

Nicholas, I am sorry to cause you so much work, but please for the benefit of all members, kindly produce documentary evidence that supports and enables you to make the statement that I have attacked "our major Chinese sponsor".

If you can't produce documentary evidence, you should (sic) the graciousness to withdraw your statement and to apologise to the members for misleading them and making knowingly untruthful remarks, presumably designed to denigrate me. Why would you do that to a person who is has been declared P.N.G. by the pugnacious Alberto.

I have asked a number of questions regarding FIP's finances to which all members are entitled to a response. Nicholas, a question about financial matters even with the best gymnastic skills in the world cannot be contorted into a spurious accusation. For instance how much money does FIP owe its member countries as a result of competitions which FIP organised up to 9 months ago? This is not a spurious accusation. Can the members have an answer.

How much money did FIP make or lose on the World Cup in Chile? This also is not a spurious accusation. You and the Chairman of the Finance Committee may well wish it were.

Let's now here (sic) from the Chairman of the Finance Committee who by his own proclamation has "no fear and could fight really hard". Let's hope his ability to fight hard is not deployed to avoid reality. Can the members have an answer. By any standard of good communication, this significant financial results should have been advised to the members much earlier.

A few other factual comments, which with your mental gymnastics you may be able to morph them into spurious accusations. Let me make them and see how you go.

The Executive Committee reviewing itself and finding itself blameless is of course a nonsense. Did they prepare a report, to whom was it given, it should have been given to all members so they could have the benefit of the wisdom of the Executive Committee.

What did the Executive Committee say regarding its failure to control the organisations bank account and thereby failed FIP in its ability to meet its financial obligations and what did it say about its failure to provide any form of due process regarding the appointment whether permanent or interim of a CEO.

Another small point Nicholas, the motion revoking any ambassadorial position held by me be revoked is completely ineffective since I held no ambassadorial position under the Bylaws. I was appointed a Founding Ambassador under the hand of the Founder and I believe the only person so appointed. This was a grace and favour gesture not recognised under the Bylaws and in my view only the Founder can revoke this appointment. It is a pity, and time consuming that one has to continually deal with incompetents who have no understanding of practice, procedure or the provision of the bylaws. The ability to penetrate the cranial carapace appears to be beyond my ability.

Please as a matter of urgency, advise all members of at least 6 of the spurious accusations I have made against the Administration of FIP and the incompetence of its Officers and also set out your reasons for coming to this conclusion.

Regarding the Polo Development Fund, as far as I am concerned there was an agreed deal in respect of the establishment and a general understanding of the purpose for which it would be used. If my belief is incorrect and Asad Jumabhoy and the Sponsors, tell me it is incorrect, then maybe you and Alberto have correctly diagnosed that my mental condition is failing to the extent that I am hallucinating and my ability to recall facts is greatly diminished.

Please give these requests your urgent attention as I'm sure the members would like to be fully informed prior to the General Assembly.

428 Again, in response to the 'spurious accusations' allegation, PY, in his characteristic style, invited NC-D to identify the precise 'spurious accusations' that he referred to in his email of 3 November 2015. PY was entitled to request this information. Thereafter in this passage, he requested information about FIP's finances, its communication with members about significant financial results, and the absence of dissemination (to that stage) of the Taylor Report. PY was critical of the motion revoking any ambassadorial position held by him under the by-laws. He expressed dissatisfaction that he has to deal with incompetents. He returned to the PDF topic and again, invited NC-D to investigate the existence of the PDF.

429 In my view, the point of this long email is to protest about the NC-D's 3 November 2015 allegation that PY makes spurious accusations and that members ought be provided with information that either supports the case for or against the NC-D 'spurious' allegation. I do not consider that the natural and ordinary meaning of this email is that NC-D has failed to account for US$600,000 provided to FIP, or that he (NC-D) has engaged in financial mismanagement or impropriety. There is no suggestion, in my view, that NC-D may have applied these $600,000 in funds to an improper purpose, nor in my view, is there any serious suggestion that he (NC-D) is grossly incompetent or inept, or responsible for gross financial mismanagement.

430 The email is critical of NC-D for making the 'spurious accusations' allegation and critical of FIP management in the ways that I have identified. None of the critical content of the email is, in my view, defamatory of NC-D, either taken paragraph by paragraph, or as an overall combination.

7.1.2 Are the imputations in the 22 December 2015 email defamatory?

431 NC-D alleged that the 22 December email, in its natural and ordinary meaning, was defamatory of him, and meant and was understood to mean that the defendant:

(a) has failed to account for monies provided to FIP;

(b) engages in financial mismanagement;

(c) has failed to properly administer FIP funds;

(d) fails to fulfil his fiduciary obligations to FIP;

(e) is commercially incompetent; and

(f) may have applied funds held by FIP for an improper purpose.[249]

432 I shall analyse the relevant content of this email.

POLO DEVELOPMENT FUND

I have set out previously the negotiations that took place over many months that resulted in the signing of the 3 year agreement in December 2012.

The then President's first newsletter in 2013 he says "the PDF fund is the result of a generous contribution by FIP Vice President Mr. Pan Sutong".

The FIP website headed Polo Development Fund it says "Global Polo Development ("GPDF") was founded in 2013 by FIP Vice President and Ambassador Mr. Pan Sutong with a generous contribution to the FIP as seed money and for the investment returns thereon to provide sustainable resources for the long-term development of polo worldwide".

The Chief Executive has referred to the Pan Sutong Fund in emails.

I enclose an email from Asad to Eduardo Heurgo and myself which is self-explanatory. How did all these parties who have referred to Polo Development Fund know of the existence of this fund since none of them had any involvement in the negotiations with Mr Pan, or his executives regarding the agreements, the sponsorship and the application then?

I also have sighted an email dated 7 August 2012 from an Executive of Metropolitan which states "inter alia in line with the three year snow polo arrangement, on condition that it is agreed Mr Pan is agreeable to fund $200,000 per year towards the proposed endowment fund for the first 3 years".

Question - How did all the parties who have referred to the Polo Development Fund know of its existence since none of them had any involvement in the negotiations with Mr Pan or his Executives?

Answer - these parties knew of the Polo Development Fund because in the course of our negotiations and at our meeting with the members of the Executive Committee in December 2012, Asad and I told the members of the agreement we had made with Mr Pan as to the allocation of the sponsorship money of which $200,000 per annum was to go to the Polo Development Fund.

Everyone agrees the fund exists. Are we merely arguing about the quantum?

There is a binding agreement between the donor and done as to its application of the sponsorship funds.

434 These paragraphs set out in some detail PY's contentions as to the existence of the PDF. Nothing in them is defamatory of NC-D.

435 The next paragraph of the email reads as follows:

Given the above documentary confirmation of the existence of the fund, Nicholas again demonstrated his remarkable mental gymnastic ability and being supple and malleable turns my statement about the fund into a spurious accusation and unfounded allegation. Nicholas, can you explain your logic?

436 Leaving to one side the laborious sarcasm, PY here has again criticised NC-D's characterisation of PY's PDF accusations as 'spurious' and 'unfounded'. He invited NC-D to explain this. PY made no suggestion that NC-D is responsible for the misapplication of PDF monies or has administered the fund incompetently. His criticism of NC-D was confined to NC-D's 'spurious' characterisation as it concerned PY's PDF allegations. This paragraph of the email benefits from a close reading. PY did not accuse NC-D of making spurious accusations and unfounded allegations. He criticised NC-D for interpreting PY's statement about the PDF as a spurious accusation and unfounded allegation. In my view, there is nothing in this paragraph that is defamatory.

FAILURE TO ADMINSTER THE FUND

FAILURE TO FULFILL FIDUCIARY DUTIES

I say the polo development fund has not been administered or it has been improperly administered for the following reasons.

During the 3 years of the Fund's existence, the members have never been given any factual or substantial information about the fund.

The amount of the fund has never been disclosed to members, although FIP acknowledges its existence in 2013.

The interest earned on the funds as disclosed in the FIP website has never been disclosed in the accounts to the members.

The fund has never been included in the accounts of the federation.

No information on the disbursement on the fund over the 3 years has never been provided to the members.

No report has been given to the sponsor as to the administration of the fund.

Nicholas, the above 6 points are self-evident facts. Explain to the members your magical mental logic which enables you to with all the skill of a David Copperfield morph these facts into spurious accusations and unfounded allegations. What type of communication would you describe this? Something towards progress?

The collegiate goodwill that exists between the Executive Committee and the Council of Administration and the large bucket of white wash they keep handy, enables them not to answer questions and to find themselves blameless and all questions based on fact or documentary evidence become spurious accusations and unfounded allegations.

This is a farcical performance worthy of a Gilbert and Sullivan operetta, and whilst relaxing I shall write further on this subject for your consideration, possibly in the New Year.

438 None of the above content raises any imputation against NC-D. The headings, particularly those to do with the failure to administer the fund, are linked to the subsequent paragraphs which themselves assume the existence of the PDF and complain about the lack of information to members or the sponsor in concerning the same. There is no suggestion in these paragraphs that NC-D is personally guilty of false or negligent accounting, financial mismanagement, gross incompetence or ineptness, or applying funds for an improper purpose. These contentions are set out in order to provide a context in which PY enquired of NC-D, and how he could transform these contentions into accusations that are spurious and unfounded.

439 In my view, none of the content of the 22 December 2015 email is defamatory of NC-D.

7.1.3 Are the imputations in the 30 May 2016 email defamatory?

440 NC-D claimed that the 30 May email, in its natural and ordinary meaning, was defamatory of him, and meant and was understood to mean that NC-D:

(a) makes false statements;

(b) has failed to account for monies provided to FIP;

(c) engages in financial mismanagement;

(d) is commercially incompetent;

(e) is inept, incompetent and lacks commercial sense;

(f) knowingly approves false reports;

(g) engages in duplicitous behaviour; and

(h) engages in behaviour designed to mislead members of FIP.[250]

441 I shall analyse the relevant content of this email.

The key to progress can be summed up in one word: 'Communications'!

Nicholas J.A. Colquhoun-Denvers ESQ. August 2015

POLO DEVELOPMENT FUND

In his first Newsletter the President in early 2013 stated "The PDF is a result of the generous contribution by FIP Vice president Pan Sutong".

THIS STATEMENT IS TRUE.

An earlier FIP website stated inter alia, that the "Global Polo Development Fund ("GPDF") was founded in 2013 by FIP Vice President and Ambassador Mr. Pan Sutong".

THIS STATEMENT IS TRUE.

The re-designed FIP website states inter alia, that the "Global Polo Development Fund ("GPDF") was founded in 2013 by FIP Executive Committee with a generous contribution of FIP Vice President and Ambassador Mr. Pan Sutong".

THIS STATEMENT IS FALSE.

The statement in the re-designed website is false, the statement in the original website is correct. Please explain to members how the Executive Committee founded the Fund when none of them had any involvement whatsoever in negotiating the agreement with Metropolitan Polo Club, Mr Pan and his Executives to obtain the money for the established of the Polo Development Fund. Was the change made to show how capable the Executive were in founding the Fund and therefore they would not need to make any report as to the amount of the fund and the interest earned thereon or the disbursement, or administration thereof?

My concern is that the fund may flounder due to hubris unfortunately prevalent in some members of the Executive.

Despite repeated requests, the members have been given no information as to the amount of the fund, the interest earned thereon, its administration and disbursement therefrom. Nor have they been advised of the additional increments of the fund by way of further generous contributions by the FIP Vice President Pan Sutong.

443 It should be borne steadily in mind that the allegations contained in these paragraphs concern historical statements made on the FIP website. There is no suggestion that NC-D was responsible for the false statement or endorsed it. There is nothing in these paragraphs that is defamatory of NC-D.

Who was the person responsible for this "clever" alteration? Was it Alex Taylor, as he has previously produced a false report to the Council of Administration which you and your predecessor knew to be false and you were both advised by a member of the Executive Committee that the report was false? However, had the report relating to FIP's financial condition been truthful it would have, beyond doubt, demonstrated the complete commercial incompetence of the Chief Executive, your predecessor and yourself in failing to understand that the Executive of any organisation must control the bank account of that organisation and that 9 months after being instructed to open a bank account for FIP, with a major international bank, Alex Taylor had still been unable to carry out the onerous task of opening a bank account.

To avoid disclosing the abject commercial incompetence and ineptitude of yourself, your predecessor and the now Chief Executive, he produced a knowingly false report to the Council of Administration, approved by you and your predecessor.

Alex Taylor reported to the Council of Administration that FIP's financial condition of being unable to pay its creditors when due, was a result of my having closed the FIP bank account. I had transferred the funds two months prior to closing the account to a subsidiary account which had been promptly opened by a member of the Executive Committee because of Alex Taylor's inability to do so.

This transfer took some two months before closing the inoperative account. This inability to admit a mistake has continued to run through FIP's administration because it is clear that you, your predecessor and the Chief Executive have an unshakeable belief in your own infallibility and live in denial of the fact that you are capable of making an error. It may come as a surprise to you Nicholas, that if you make a mistake, the best thing to do it to admit it rather than endeavour to disguise it. As I have quoted Sir Walter Scott to you before "Oh what a tangled web we weave. When first we practise to deceive!"

This duplicitous behaviour was designed to mislead the members as to the real cause of FIP's financial condition and designed to protect you, your predecessor and the Chief Executive from disclosing your ineptitude, incompetence and complete lack of commercial common sense.

Let the members have some factual communications instead of regurgitating meaningless rhetoric, more appropriate to a rallying call at a political meeting.

Your refusal to respond or rebut factual statements indicate the statements are true, or you do not have the ability to produce facts to rebut them, so you seem to adopt the advice of Fred Legge III, a former polo player and American Agricultural attaché in Canberra some years ago who said "when in doubt, run in circles, yell and shout". Nicholas, don't get too giddy.

445 I consider that there are various imputations that arise from the natural and ordinary meaning of portions from the above paragraphs. Relevantly, they are as follows:

(a) NC-D is commercially incompetent in failing to control the FIP bank account.

(b) NC-D knowingly approved a false report (the Taylor Report).

(c) NC-D engaged in duplicitous behaviour by publishing the Taylor Report, which was designed to protect himself, his predecessor (RC) and the CEO (AT) from disclosing their ineptitude.

446 The above imputations emerge clearly enough from the portion of the email reproduced at paragraph 444. In written submissions, PY did not address this 30 May 2016 email, although he denied any defamatory imputations in his pleadings. The imputations are patently defamatory of NC-D. Each has a tendency to lower NC-D's reputation in the minds of ordinary decent members of the community. Both his personal and professional reputation are disparaged and/or diminished by these imputations. I am not satisfied that the pleaded imputation that NC-D makes fals[251]tatements251 has been established, although this is academic, given the defamatory imputations that I have found to be established.

447 NC-D gave little evidence about the counterclaim. He stated that the impugned emails had caused him to feel annoyed, however, when pressed, it seems that the real source of his annoyance was PY's assertion that he may be an intravenous (or nasal) drug user. However offensive and defamatory this may be, it is not the subject of a claim in defamation in this action.

448 Further, in an email on 26 September 2016, which was authored by NC-D and sent to AT with the heading 'Counterclaim', NC-D stated:

As you know our Legal Team are working hard on putting together any material which might possibly support a counterclaim as part of our defence strategy in this case. Robert[252] has asked for any instances where PY has possibly defamed me personally by suggestion to my peers [of] incompetence or negligence.[253]

449 Notwithstanding the apparent strategic genesis of the counterclaim, the three imputations set out in paragraph 445 are defamatory. No argument for a permanent stay as an abuse of process was mounted by PY. I shall examine PY's defence to this defamatory publication.

450 PY raised the common law defence of truth and the statutory defence of justification in relation to each of the three impugned emails. As I have found that the 6 November and 22 December emails are not defamatory, I shall not consider them further. I have found that the 30 May 2016 email conveys the defamatory imputations that I have set out in previous paragraph. Again, many of the findings I have made in the claim have an application to this counterclaim; I am cognisant, of course, that the burden of establishing this defence rests with PY.

8.1.1 Imputation (a) - commercial incompetence

451 For reasons that I have set out at paragraphs 191 to 204, I am satisfied that the failure to make timely alternative banking arrangements from April 2018 onwards and perhaps earlier was commercially incompetent. In summary, FIP management, including RC, NC-D and AT should have realised how exposed to risk they were on this issue. PY, if he wished, could have closed the NAB accounts at any time. He indicated in December 2012 that he wished to cease the existing banking arrangements and move the FIP accounts to HSBC, Buenos Aires. As relations deteriorated between PY and RC, that risk magnified.

452 Compounding the failure to make timely alternative banking arrangements was the failure by FIP to seek to take control of the existing NAB bank accounts. True it is that PY may have resisted those efforts, but efforts should have been made. As time went by, creditors and staff went unpaid, and a major receivable could not be banked. Throughout this period (April 2013 - May 2014), AT was primarily responsible for the management of FIP's finances, but I consider that the president and vice president cannot reasonably avoid responsibility for the difficulties encountered at that time.

453 I consider that PY has established that from at least 2013 until early 2014, on this bank account issue, NC-D, along with AT and RC, were not commercially competent. All were, in some way, responsible for failing to make timely banking arrangements. It follows that PY has demonstrated the truth of this assertion of commercial incompetence. The common law defence of truth and the statutory defence of justification are made out in relation to this imputation.

8.1.2 Imputation (b) - knowing approval of a false report

For reasons I have set out at paragraphs 223 to 225, I am satisfied that in a certain respect, the Taylor Report was a 'false' report, in that it contained statements that were factually incorrect or at least not wholly accurate. A key statement of the Taylor Report, for present purposes, reads:

The reason for this delay by MPC is that since PY closed FIP's bank account in retaliation for being removed from the EC for unacceptable behaviour, FIP has not been able to open a new account because of the Bylaws situation which we will explain in 1.2.[254]

454 This statement is not 'false' in every respect. It was accurate in that FIP was not able to open a new bank account because of the by-laws situation and it was also accurate (I have found) that PY discontinued operating and ultimately closed the FIP NAB account in retaliation for being dismissed from the EC, FC and CC. The Taylor Report accurately summarised the use of the FIPPL account and the fact that it was thought new documents needed to be signed and presented to the Chinese authorities. I accept that the change in destination created an anticipated extra cost of $60,000, although this ultimately did not materialise. I also accept that the by-laws component of the Taylor Report adequately summarised the difficulties that AT was encountering in opening a new bank account.

455 To the extent that the Taylor Report lays blame for its financial predicament entirely with PY, it is, however, factually incorrect. Blame rested with both FIP management and with PY, as I have explained in paragraphs 223 to 225 of these reasons.

456 In my view, there is no accusation in the text under the heading 'Response to Peter Yunghanns', which has been demonstrated to be false.

457 I am positively satisfied that PY refused to operate and ultimately closed the NAB accounts in response to RC and the EC removing him from the EC, FC and CC. I am also satisfied that the precipitating cause was his 'disruptive emails'. RC may have thought PY 'too old' when he (RC) assumed the presidency but was ultimately satisfied by other FIP members that PY ought remain on the EC and FC. I am satisfied that the direct cause of PY's dismissal from the EC, FC and CC was his abrasive style, particularly his abrasive email style. The evidence establishes that PY sent some of his confrontational emails to HL of MPC/Goldin.[255]

458 I consider there was a clear potential for FIP's reputation with its main sponsor (MPC) to be damaged.

459 The plaintiff has therefore established that the Taylor Report was a false report to the extent that, by omission, it asserts that the sole cause for the delay in FIP receiving monies owed was PY's decision to discontinue operating and close down the NAB accounts, when in truth, it was one of two causes. The other was the financial incompetence of RC, NC-D and AT. There is no hint of this other cause anywhere in the Taylor Report. I am also satisfied that NC-D must have known this financial incompetence was a cause of this delay. Given his position and the information flow that came to him on the banking issues, I consider that it is inevitable that he knew that the failure to make timely banking arrangements was a cause of FIP's incapacity to meet its financial obligations in early 2014.

460 In my view, this omission was less than frank. The use of the definite article in the phrase '[t]he reason for this delay ...' conveys to the ordinary reader that the sole reason for the delay was as specified. Had the indefinite article been employed, 'a reason for this delay ...', this meaning would not have been conveyed.

461 I am satisfied that PY has established the truth of imputation (b). NC-D knowingly approved a false document. The common law defence of truth and the statutory defence of justification are made out in relation to this imputation.

8.1.3 Imputation (c) - NC-D engaged in duplicitous behaviour designed to protect himself, RC and AT from disclosing their ineptitude

462 'Duplicitous' is a strong word. Its various definitions in dictionaries range from deceitful to deceptive, ranging through fraudulent, dishonest and underhanded.

463 For reasons that I have explained, PY has established to my comfortable satisfaction:

(a) The Taylor Report omitted to acknowledge that the failure of FIP management to sort out its banking arrangements in a timely way was a cause of the delay in receiving payments from MPC.

(b) NC-D must have known that this failure of FIP to sort out its banking arrangements in a timely way was also a cause of that delay.

(c) The Taylor Report sought to cast all blame for FIP's financial predicament at the feet of PY. This was factually incorrect and NC-D knew it to be so, but nevertheless approved the dissemination of the Report.

464 I am comfortably satisfied that by approving the publication of the Taylor Report, NC-D's conduct was deceptive and thus duplicitous. I am also comfortably satisfied that the publication of this report was designed, in part, to deflect blame away from the FIP administration and towards PY. PY's conduct was a cause of FIP's financial predicament but not the sole cause.

465 I am therefore satisfied that PY has established the substantial truth of imputation (c). NC-D engaged in deceptive behaviour, designed to protect himself, RC and AT from disclosing their incompetent handling of the bank account issue.

466 PY has established the defences of common law truth and statutory justification to those imputations pleaded in the counterclaim that I have found to be defamatory. The counterclaim therefore fails.

467 In this unfortunate piece of litigation, both the plaintiff and defendant have failed to establish their respective claims. PY was treated badly, in my view, in being summarily dismissed from his positions on the EC and FC without the courtesy of a hearing. His conditional reinstatement on the FC and appointment to the CC ultimately came to nothing and he, in effect, declared verbal war on the administration of FIP. He had a fertile battlefield. FIP's administrative processes and governance were redolent of a pre-war gentlemen's club, and PY's trenchant criticisms of them extended over years. There was usually some point to the criticisms to do with a failure of governance or administrative process, but by lacing those criticisms with insults and personal abuse, in my view, PY did himself a significant disservice.

468 I consider that this case was never about the protection of PY's reputation. Had he real concerns about his reputation, he would never have published the scores of insulting emails that went under his name. Should I have needed to assess his damages, these offensive emails would have adversely impacted his entitlement to damages. By his own hand, he had diminished a hard and well-earned reputation well before the publication of the two impugned emails.

469 PY's defamation action was, I consider, a further step in his war on FIP and its personnel. Having goaded the FIP leadership group into defaming him, he set about punishing them with litigation.

470 FIP had no choice but to respond to PY's war of words. For years, it remained silent; no doubt in hope that PY, deprived of oxygen, would eventually lose interest. As I have said, I consider that FIP and its administration treated PY badly. He had been a loyal and productive servant to FIP over decades, and he deserved much more than summary dismissal and highly conditional partial reinstatement. FIP, through NC-D, was dragged into this litigation reluctantly and NC-D's counterclaim, issued for strategic purposes, had little merit.

471 It will be recalled that I considered both PY and NC-D to be, insofar as I could judge, honourable and decent men. I have made various findings that are adverse to both parties, however, in spite of these findings, I adhere to this view. If I am correct, then perhaps it is time that these qualities were supplemented with a little common sense.

Federation of International Polo Properties Limited

[1] A full list of the abbreviated names in these reasons is provided at Appendix A of this judgment.

[2] The statutory defence of triviality was pleaded but was not pursued at trial.

[3] Defamation Act 2005 (Vic) s 25.

[4] Ibid s 30.

[5] This defence was raised in the pleadings but was not pursued at trial.

[6] When I reproduce emails or portions of them, I shall reproduce them as written and will include spelling or grammatical errors.

[7] Or the defendant when considering the counterclaim.

[8] Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 [30]-[40] (McColl JA, Gleeson and Payne JJA agreeing); Newnham v Davis (No 2) [2010] VSC 94 [48]-[50] (Kaye J); Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329; (2015) 91 NSWLR 341, 352-354 [43]-[54] (McColl JA, Macfarlan JA and Sackville AJA agreeing).

[9] Cripps v Vakras [2014] VSC 279 [277] (Kyrou J) ('Cripps'). Cripps was later overturned in part, but not on this point of law: Vakras v Cripps [2015] VSCA 193 [98].

[10] Lewis v Daily Telegraph Ltd [1964] AC 234, 258 (Lord Reid). See also Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186, 190 [10] (Gleeson CJ, McHugh, Gummow and Heydon JJ); Farquhar v Bottom [1980] 2 NSWLR 380, 385-386 [21]-[23] (Hunt J) ('Farquhar'); Cripps [2014] VSC 279 [277].

[11] Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; (2015) 237 FCR 33, 49-50 [63]-[65] (White J). See also Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500, 505-506 (Brennan J); Farquhar (1980) 2 NSWLR 380, 386 [25] (Hunt J); Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460, 466-467[4]-[5] (French CJ, Gummow, Kiefel and Bell JJ) ('Radio 2UE Sydney').

[12] Radio 2UE Sydney [2009] HCA 16; (2009) 238 CLR 460, 466-467 [3]-[5] (French CJ, Gummow, Kiefel and Bell JJ).

[13] Ibid 468 [10] (French CJ, Gummow, Kiefel and Bell JJ).

[15] Gluyas v Junior [2013] VSC 3 [27] (Kaye J).

[16] Fenn v Australian Broadcasting Corporation [2018] VSC 60 [11] (John Dixon J) ('Fenn'). See also Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157, 172-173 [59] (McColl JA, Beazley and Giles JJA agreeing); Howden v Truth & Sportsman [1937] HCA 74; (1937) 58 CLR 416, 420-421 (Dixon J); Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1, 57-58 [279] (Gillard AJA, Winneke ACJ and Warren AJA agreeing) ('Popovic').

[17] Hardie v Herald & Weekly Times Pty Ltd [2015] VSC 364 [135] (Whelan JA) ('Hardie'); Sutherland v Stopes [1925] AC 47, 79 (Lord Shaw). Hardie was later overturned, but not on this point of law: Hardie v Herald & Weekly Times Pty Ltd [2016] VSCA 103.

[18] Hardie [2015] VSC 364 [135] (Whelan JA); Fenn [2018] VSC 60 [11] (John Dixon J); Popovic [2003] VSCA 161; (2003) 9 VR 1, 63 [306] (Gillard AJA).

[19] Hardie [2015] VSC 364 [135] (Whelan JA).

[20] Barrow v Bolt [2014] VSC 599 ('Barrow v Bolt').

[22] [2012] HCA 44; (2012) 247 CLR 31 ('Trad').

[23] Trad [2012] HCA 44; (2012) 247 CLR 31, 45 [25] (Gummow, Hayne and Bell JJ); 72 [116] (Kiefel J).

[24] Watts v Time Newspapers Ltd [1997] QB 650; Trad [2012] HCA 44; (2012) 247 CLR 31, 49 [35] (Gummow, Hayne and Bell JJ).

[25] Trad [2012] HCA 44; (2012) 247 CLR 31, 48-49 [33] (Gummow, Hayne and Bell JJ); 72 [115] (Kiefel J).

[26] Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, 11-12 [8]-[10] (Gleeson CJ), 30 [75] (Gaudron, McHugh and Gummow JJ), 65 [179] (Kirby J) ('Roberts').

[29] Ibid. See also Horrocks v Lowe [1975] AC 135, 149 (Lord Diplock) ('Horrocks').

[30] Roberts [2002] HCA 57; (2002) 212 CLR 1, 38 [96]. See also Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 574; Horrocks [1975] AC 135, 149.

[31] Roberts [2002] HCA 57; (2002) 212 CLR 1, 31 [76] (Gaudron, McHugh and Gummow JJ). See also 66-67 [185] (Kirby J).

[32] Ibid. See also Mowlds v Fergusson [1939] NSWStRp 43; (1939) 40 SR (NSW) 311, 327-329 (Jordan CJ) ('Mowlds').

[33] Roberts [2002] HCA 57; (2002) 212 CLR 1, 31 [76]. See also Mowlds [1939] NSWStRp 43; (1939) 40 SR (NSW) 311, 327; Horrocks [1975] AC 135, 149-150.

[34] Roberts [2002] HCA 57; (2002) 212 CLR 1, 32 [77] (Gaudron, McHugh and Gummow JJ).

[35] Ibid 35 [87]. See also Horrocks [1975] AC 135, 150.

[36] Roberts [2002] HCA 57; (2002) 212 CLR 1, 34 [84]. See also R v Crabbe [1985] HCA 22; (1985) 156 CLR 464, 470-471 (Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ).

[37] Roberts [2002] HCA 57; (2002) 212 CLR 1, 41 [103]. See also Clark v Molyneux (1877) 3 QBD 237, 244 (Bramwell LJ), 249 (Cotton LJ) ('Clark'); Moore v Canadian Pacific Steamship Co [1945] 1 All ER 128, 133 (Lynskey J); Horrocks [1975] AC 135, 150; Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, 463 (Lord Porter).

[38] Roberts [2002] HCA 57; (2002) 212 CLR 1, 41 [103].

[39] See Enders v Erbas and Associates Pty Ltd [2014] NSWCA 70, [61]-[77] (Tobias AJA) ('Enders'); Clark (1877) 3 QBD 237, 250.

[40] Enders [2014] NSWCA 70, [61]-[77].

[41] Oldfield v Keogh [1941] NSWStRp 33; (1941) 41 SR (NSW) 206, 214 (Jordan CJ); Godfrey v Henderson [1944] NSWStRp 36; (1944) 44 SR (NSW) 447, 454 (Jordan CJ) ('Godfrey').

[42] Godfrey [1944] NSWStRp 36; (1944) 44 SR (NSW) 447, 454; Roberts [2002] HCA 57; (2002) 212 CLR 1, 41 [104].

[45] The three Category A countries, being Argentina, the United Kingdom and the United States of America.

[50] There is some controversy as to whether AT was initially appointed as an 'interim' CEO and subsequently to the permanent CEO position, or whether the 'interim' descriptor was post-appointment revisionist history to appease the members after PY began criticising the appointment. It is unnecessary to resolve this issue.

[52] The subject of the claim. For the text of the email, see paragraph 9.

[53] The subject of the counterclaim. For the text of the email, see paragraph 10.

[54] The subject of the counterclaim. For the text of the email, see paragraph 11.

[55] The subject of the claim. For the text of the email, see paragraph 12.

[56] The subject of the counterclaim. For the text of the email, see paragraph 13.

[58] Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575, 600 [25]-[26] (Gleeson CJ, McHugh, Gummow and Hayne JJ) ('Dow Jones').