SMEC Holdings & Ors v Glen Boniface [2005] NSWSC 1099 | Case summary

JUDGMENT 1 HIS HONOUR: SMEC Holdings Limited (the first plaintiff), Peter Busbridge (the second plaintiff), Ross Hitt (the third plaintiff) and Geoff Percival (the fourth plaintiff) have sued Glen Boniface (the defendant) in defamation. A jury was empanelled to hear the action pursuant to s 7A of the Defamation Act. 2 There are nine matters complained of. For convenience copies of each of them are attached to these reasons. In relation to all but one of the matters complained of the relevant communication is in the form of an email or emails. In the last matter complained of the communication is in the form of a letter. 3 The first matter which the plaintiffs must establish in each instance is that the defendant published the relevant communication in question. Thereafter the particular plaintiffs have to also establish that the relevant communication conveyed to the ordinary reasonable reader a certain imputation or imputations; and in the event that any such imputation was conveyed, that it was defamatory of the particular plaintiff. 4 At the conclusion of the evidence called on behalf of the plaintiffs Mr Evatt, who appeared on behalf of the defendant, "moved the Court" pursuant to Part 34 rule 8(2) of the Supreme Court Rules for judgment on the basis that "on the evidence given, judgment for the [plaintiffs] could not be supported". His argument was that with the exception of the seventh matter complained of, which was admitted, the plaintiffs could not establish that the defendant published the various communications. In due course the submission was further refined. As I understand the situation, whilst not formally abandoning any part of the application Mr Evatt effectively confined it to the fourth, fifth, sixth and ninth matters complained of. 5 A separate argument relating solely to the first matter complained of concerning the question of identification was also raised. I will return to consider that matter in due course. 6 It is common ground that the present application raises a question of law which is to be approached upon the basis that the plaintiffs' case is taken at its highest. In Naxakis v Western General Hospital and Anor (1998) 197 CLR 269 Gaudron J stated the relevant test to be applied. Her Honour said: It is well settled that, where there is a jury, the case must be left to them "[i]f there is evidence upon which [they] could reasonably find for the plaintiff", or, as was said by Hayne JA in the Court of Appeal, the case can be taken away only if "there was no evidence on which the jury could properly conclude that the plaintiff had made out his case". (at 274) (footnotes omitted) 7 The issue was recently revisited in Swain v Waverley Municipal Council [2005] HCA 4 (see, generally, the judgment of Gleeson CJ at par 8; McHugh J at pars 31-2; Gummow J at pars 128-132 and Kirby J at par 203). 8 It is pertinent to observe at the outset that the trial proceeded in respect of all matters complained of together. No application was at any stage made by Mr Evatt for any of the matters to be heard separately. Nor was objection taken to the admissibility of any of the evidence or the use to which it could be put. Indeed, given the way in which the case was conducted it appeared that the defendant perceived that there was a forensic advantage to him in having the matters heard together. Mr Evatt sought to demonstrate that because there were, as he submitted, significant differences between various of the matters complained of, it followed that more than one person must have been responsible for sending them. Moreover, he submitted that if a doubt existed about whether the plaintiff had established that the defendant had published any one of the emails, then that would produce a domino effect in respect of some or all of the other communications. 9 At the conclusion of the submissions made on behalf of the respective parties, I rejected the application. It was agreed by the parties that in order to minimise the inconvenience to the jury my reasons for so ruling would be delivered at a later date. 10 The matter then proceeded. The defendant did not give evidence. (Indeed, although not presently relevant, Mr Evatt had informed the Court at the time when the application was made that he would not be doing so). In due course the jury was asked to answer a number of agreed questions. In relation to each matter complained of, the jury found that the particular plaintiff in question had established that the defendant had published the particular communication in question. However, in relation to a few of the imputations the jury found that the particular plaintiff had not established that it or they had been conveyed. 11 Following the jury's determinations, I referred the matter to mediation so that the parties could endeavour to resolve the issues that remained outstanding between them. The parties were content to follow that course. For reasons that are not presently material that process took a considerable time to complete. In due course I was informed that the mediation had proved to be unsuccessful. The parties had also agreed, in the interim, that it was unnecessary for me to provide reasons for the rulings to which I earlier referred. However, once it was clear that the mediation had been unsuccessful, it then became necessary to provide the reasons which are the subject of this judgment. 12 Before proceeding any further it is necessary to sketch some background material. The defendant was an employee of the first plaintiff until his services were terminated on 17 January 2001. The second, third and fourth plaintiffs held senior management positions in that organisation. At that time the defendant's father was still chairman of the company's board of directors. During the course of his employment the defendant was allocated an office in which there was a computer available for his use. It is to be observed that the emails giving rise to the first four matters complained of were sent whilst the defendant was still employed by the first plaintiff. The remaining emails and the letter were all sent after his services were terminated. 13 The evidence revealed that shortly after the first few emails appeared, an investigation was commenced on behalf of the first plaintiff in an effort to ascertain who had sent them. It was during the course of that investigation that pornographic material was located upon the computer issued to the defendant. It was the plaintiffs' case that it was that discovery which led to his termination. That material was led, in part, to rebut the suggestion, which had been made on the defendant's part, that the real reason for his termination was to deprive the defendant's father of his son's voting entitlements and support at the board level of the company (that is, the first plaintiff). The defendant's father also left the organisation in acrimonious circumstances, in October 2001, having lost his position on the board. Indeed the tension which it was asserted existed between the defendant and his father, on one hand, and the company's senior executive team, on the other, was a constant theme in the cross-examination of the various plaintiffs. 14 As I have observed, the application in question was primarily directed at the four matters complained of which I earlier identified. Nevertheless, it is convenient to refer to each of the matters about which there is no real issue because of the capacity which that material has to impact upon the remaining four matters. It is also to be observed that the parties each signed a document entitled Notice of Matters Not In Issue (Ex AS). I have, where necessary for present purposes, drawn upon the contents of that document. Another document (Ex AF) revealed that the defendant was a "very experienced email user via the internet" and that he had "an ability to use various email accounts" (see also Exs Q and S). 15 It is convenient to deal first with the seventh matter complained of, for the simple reason that the defendant admits that he published it. There is direct evidence that he did so. A witness gave evidence that he observed the defendant using the computer in question on 1 August 2001 in an establishment known as the Gateways Store. Moreover, there was also photographic evidence which showed the defendant using the computer. Exhibit M, an email sent two days later, was in an almost identical form to the seventh matter complained of and a jury would be quite entitled to conclude that one and the same person was responsible for publishing both emails. That material was capable, together with other evidence, of supporting an inference that the defendant was involved in a course of conduct or a campaign in attacking the various plaintiffs. 16 It is convenient to next deal with the eighth matter complained of. Although it was sent in February 2001 (that is, some six months before the seventh matter complained of), the evidence revealed that this email (or at least some part of it) was extracted from the very same computer in the Gateways store from which the email that the defendant admitted sending on 1 August 2001 had been sent. 17 It is now convenient to deal with the first matter complained of, which consists of two separate emails. It is common ground, as I understand it, that the same person sent each of those emails. Nor is it in dispute that the emails were sent from the computer which was in the office allocated to the defendant. There was also evidence available which was capable of establishing a more direct connection between the defendant and the use of that facility at the relevant time. It is unnecessary to record the fine detail of that material given the approach taken by the defendant on this application. 18 In respect of the second matter complained of, an email sent on 8 December 2000, it is again not in issue that that email was also sent from the office computer used by the defendant. The account used was in the name of a Ms Coningsby and was the first use of that account. The defendant had participated in a conversation with Ms Coningsby on 6 December whilst he and a Mr Dutt were installing a computer in her home. During that conversation both he and Mr Dutt became aware of her password and log-in details. Ms Coningsby and Mr Dutt each gave uncontradicted evidence that they had not sent the email in question. There was also other powerful circumstantial evidence which pointed to the defendant having sent this email. 19 It was following the sending of this email that the investigation on behalf of the first plaintiff, to which I earlier referred, began. The defendant was interviewed by investigators on 15 December 2000. The computer issued to him was examined on 11 December. A large number of files were found to have been copied from that computer to another computer. An expert in computer forensics gave evidence that the computer issued to the defendant had been subject to a process of defragmentation. The plaintiffs acknowledge that they cannot identify the computer from which the email that is the subject of the third matter complained of was sent. Nevertheless, if the defendant sent this email as well as the earlier ones, then it is understandable that he would not have wanted it to be traced to his computer. Moreover, the defendant knew that he was under investigation by the time the email which gave rise to the third matter complained of was sent. 20 The email that is the subject of the third matter complained of shares common characteristics, both in content and style, to the second matter complained of. Both refer to ASIC and the fact of it being brought in to investigate. Both emails refer to illegal conduct and to matters being covered up. Moreover, the plaintiff Geoff Percival's name is incorrectly spelt in both emails as "Percivil" (the same error is also made in the eighth matter complained of). Furthermore, the persons to whom the two emails are distributed are identical. In those circumstances a jury would be entitled to at least infer that the person who sent the second email also sent the third one. 21 The fourth matter complained of originates from an internet café in Kings Cross and was sent in the period leading up to the Annual General Meeting of the first plaintiff on 23 January 2001. The communication was clearly intended, from its contents, to capture the attention of the company's shareholders and no doubt to influence their opinions. Unusually it, and the previous email, are both signed off using the word "love". A jury would be entitled to infer that the matters addressed in it suggest, as do other emails, that the author had some knowledge of the inner workings of the company. This email, like the first three matters complained of, was sent from a hotmail account. 22 The email which is the subject of the fifth matter complained of was sent on 16 July 2001. It seems to have been inspired by the ABC program to which it refers. The themes involved in this email are, a jury is entitled to infer, of a similar nature to those raised in earlier emails. Certainly the attacks on the plaintiffs Busbridge and Hitt are maintained. This email also shares common features with the email which gave rise to the third matter complained of. Each of them originated from a computer connected to an internet service provider known as "pacific.net.au" and the persons to whom they were sent were members of internal distribution lists maintained by the first plaintiff. 23 Mr Evatt made a number of submissions in relation to this publication. He pointed to what he submitted were material differences between this email and other emails, in support of an argument that the person who sent them could not have sent this one. He pointed to the fact that in contrast to other emails, the plaintiff Percival's surname is spelt correctly in this communication. Moreover, he pointed out that that plaintiff is referred to in laudatory terms in this email, that is, as a "highly respect senior manager". It is to be noted, however, that some five months had elapsed since the previous email had been sent and it may be that circumstances had changed in the interim. 24 Mr Evatt also submitted that this email stood alone in that, although it purported to have been sent by Mr Evans, it clearly was not. He nevertheless further submitted that it was the one email which was not truly anonymous. 25 Although I accept that there may be some force in Mr Evatt's submissions, none of the matters which he has raised lead me to conclude that there is insufficient evidence to warrant leaving the fifth matter complained of to the jury. 26 It is accepted that although the sixth matter complained of consists of two separate publications, which are five days apart, they are nonetheless clearly related. It is open to a jury to conclude, given the contents of these two emails, that they pick up and build upon the allegations raised in the fifth matter complained of. There are references, for example, to the ABC program, to the Asian Development Bank, to the fact that the previous email did not emanate from Neil Evans and to the black ban which was placed on Pradeep Nair. Further, these emails were sent to the same sites as in the previous matter complained of. 27 The plaintiffs also rely upon a piece of circumstantial evidence. The defendant was placed under surveillance, by an organisation acting at the behest of the first plaintiff, from 21 July 2001. On 24 July 2001 he was observed using a computer in the Gateways computer store. However, he "backed off" when approached by members of its staff. This incident occurred between the dates of the two emails which constitute the sixth matter complained of and only a week before the seventh matter complained of was sent. That evidence is at least capable of linking the sixth matter complained of with the seventh matter complained of. 28 Mr Evatt pointed to a discrepancy between the size of the bribe referred in the sixth and eighth matters complained of ($53,000 and $57,000, respectively). I am not persuaded that the discrepancy assumes any real significance for present purposes. 29 The ninth and final matter complained differs from the others in that unlike the others, it is in the form of a letter not an email. So far as its contents are concerned, the matters raised are similar to those raised in the fifth and sixth matters, namely a reference to the ABC program and to the investigations by the Asian Development and World Banks. There is also a reference, as there had been in the sixth matter complained of, to the fact that the World Bank would black ban future work. Reference to the fact that the company was "technically insolvent" is capable of being interpreted as again raising the liquidity problems which are referred to in the fourth matter complained of. The fact that the letter speaks in laudatory terms of the defendant's father gives rise to the clear inference that it was written by someone who was favourably disposed towards him. 30 Mr Evatt highlighted the fact that the letter referred to the recent departure of Jack Boniface, the defendant's father. It is agreed that the letter was written sometime in September 2001. Jack Boniface departed on 25 October 2001. In those circumstances Mr Evatt submitted that because the defendant well knew in September 2001 that his father was still working for the company, it is clear that he could not have sent the letter. He also pointed to the reference in the attachment to "current and/or past employees of the company" to support his contention that more than one person was involved in sending the emails. Although I again acknowledge that there may be some force in Mr Evatt's submissions, I am of the view that the issue remains, quintessentially, a matter for the jury to determine. 31 In my view there is material available which is capable of acceptance by the jury to establish that the defendant was responsible for publishing all nine matters complained of. Apart from any other consideration, the same themes are constantly emphasised. They include allegations about the illegal transfer and payment of money; bribery; corruption; and various criminal activities as well as the covering up of those activities, all of which warrant investigation by agencies such as the World Bank and investigative bodies such as ASIC and the AFP. There are also constant references to the fact that the various plaintiffs should resign from their positions with the company by reason of their activities. 32 The plaintiffs also asserted that the defendant had the opportunity to publish the various emails. As I have said, some of them were sent whilst he was still employed by the first plaintiff. The inference is also available that the defendant would have been privy, perhaps through his father or someone else, to the matters raised in the communications which followed his termination by the first plaintiff. 33 Finally, the plaintiffs rely upon motive. I have already briefly touched upon this issue. There was a body of material which suggested that at least some of the board members of the first plaintiff, and perhaps others as well, had become disenchanted with the management style of the defendant's father. This material suggested that there was a division of opinion in the upper echelons of the company about him. The company's Annual General Meeting was held over from November 2000 until 23 January 2001 and the first four emails were published during that period. Some of the current plaintiffs were standing for re-election at that meeting. They were opposed by another candidate who was ultimately defeated. Three of the first four emails were sent to the shareholders of the company. Given the fact that there was apparently a battle for positions on the board, the inference is available that the defendant was thereby motivated to send the first four emails. 34 As I have said, the defendant's services were terminated in mid January 2001. He clearly believed that the decision to remove him was unfair. Furthermore, he instituted proceedings to establish as much. The battle by his father to remain on the board continued until he was defeated later in the year. The inference is thus available that the defendant was motivated to send the five emails which followed his dismissal because he wished to continue to support his father and because of the personal animus which he felt by reason of his dismissal. 35 In Seymour v ABC (1977) 19 NSWLR 219, Mahoney JA said: …[T]he probative force of circumstantial evidence may become greater as the individual items of evidence, each pointing, as Wigmore says, plausibly or probably towards the fact probandum, increase in number. (at 234) 36 A jury would be entitled, in my view, to conclude that the present case is of that character. For those reasons I ruled that there was sufficient evidence of publication in relation to each matter complained of to go to the jury. 37 I now return to the question of identification which concerns only the first matter complained of. The emails in respect of which the first matter complained of arises were published to Bill Bultitude and to him alone. The second plaintiff and third plaintiff have sued in respect of those emails and each of them has to establish that those emails were published of and concerning him. 38 The first email refers to the contents of an email purporting to have been sent from "Peter" to "Ross". As is apparent, the references are to first names only. Each of the plaintiffs must establish that Bill Bultitude reasonably understood those references to be to the second and third plaintiffs respectively. Mr Bultitude did not give evidence. Accordingly, there is no direct evidence as to whom he understood the names "Peter" and "Ross" referred. Mr Evatt submitted that the failure to call Mr Bultitude was fatal to the plaintiff's case. He submitted "that the second plaintiff has failed to establish he was identified as being Peter Busbridge by the only person to whom it is alleged the defendant published the matter complained of, that is to say Bill Bultitude". Precisely the same argument was advanced in respect of the third plaintiff. 39 In support of his argument Mr Evatt referred to the following passage in Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, in which Jordan CJ, with whom Street J agreed, said that: If the matter complained of is ex facie defamatory and refers by name to the person defamed, it is necessary to prove only that it was published, and publication to one person is enough. It is unnecessary to prove that the person to whom it was published had any knowledge of the person defamed or that the matter complained of led him to think the less of that person. If, however, the matter complained of is not ex facie defamatory, or does not refer by name to the person alleged to be defamed, and the defamatory character which is attributed to the matter, or the identity of the person defamed, would be apparent only to persons who had knowledge of special circumstances, it is necessary, in order to prove publication, to prove that it was published to a person or persons who had knowledge of those circumstances. (at 89) 40 Mr Evatt placed particular reliance upon the final sentence in the passage which I have extracted. He also relied upon the decision in Cross v Denley (1952) 52 SR (NSW) 112 (at 116). 41 Although each of those decisions was concerned with factual situations which are well removed from the present case, there is no doubting the general principles which they establish. They do not however, in my view, provide any comfort to the defendant in the present circumstances. 42 In Channel Seven Sydney Pty Ltd v Parras & Ors [2002] NSWCA 202, Mason P, with whom Handley JA and Ipp JA agreed, said: How then, does a plaintiff prove identification? It is common but not essential that witnesses are called who say that they made the requisite link between the defamatory material and the plaintiff. The case law speaks of evidence of extrinsic facts capable of providing the necessary identification. This of course may be done by the direct evidence of at least one (reasonable) reader or listener who took the matter complained of as referring to the plaintiff ( Steele at 373-4). The respondents contend that this requirement was satisfied. But direct evidence is not essential. In Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1, Blackburn J cited statements of general principle in the judgments of Moffitt P and Samuels JA in Steele , the speech of Lord Morris in Morgan and the decision in Hough v London Express Newspaper Ltd [1940] 2 KB 507. Blackburn J continued (at 10): In my opinion, the proper conclusion in principle is that it is not essential that there should be a witness who gives evidence that he took the words to refer to the plaintiff. From all the evidence, which may not include that of such a witness, the jury may decide that there probably were persons who did so. This conclusion is consistent with the words I have quoted of Lord Morris, and of Moffitt P, and with the law applicable to the analogous question of the defamatory nature of the words ( Hough's Case ). I do not believe that the words of Lord Simon, of Samuels JA, or of Gatley, are to be taken as meaning that if the words complained of do not expressly refer to the plaintiff, and no witness testifies to having taken them to refer to the plaintiff, the plaintiff must fail.

SMEC Holdings & Ors v Glen Boniface

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Cases Cited (4)

Cited By (2)