Brien v Mrad

[2019] NSWDC 764

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Brien v Mrad [2019] NSWDC 764
Hearing dates:	9, 10 and 16 September 2019
Date of orders:	19 December 2019
Decision date:	19 December 2019
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the defendant. (2) Costs reserved, with liberty to apply. (3) Exhibits retained until further order.
Catchwords:	TORT – defamation – slander – whether the words of the matter complained of were spoken by the defendant in the course of the annual general meeting of the North Shore Karting Club – defendant denies publication – whether words published of and concerning the plaintiff – whether the words established to be spoken materially alter or qualify the sense of those set out in the particulars of claim – material difference between words pleaded and words proved – judgment for the defendant
Legislation Cited:	Defamation Act 2005 (NSW), ss 34, 35 and 36
Cases Cited:	Al Muderis v Duncan (No 3) [2017] NSWSC 726 Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 Armstrong v McIntosh (No 2) [2019] WASC 379 Beattie v Ball (1999) 3 VR 1 Bowden v KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig & Chapman [2019] NSWDC 98 Browne v Dunn (1893) 6 R 67 Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 Coles Supermarkets Australia Ltd v Clarke [2013] NSWCA 272 Cush v Dillon; Boland v Dillon [2009] NSWDC 21 Cush v Dillon; Boland v Dillon (2011) 234 CLR 298 Davis v Nationwide News Pty Ltd [2008] NSWSC 693 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Feo v Pioneer Concrete (Vic) Pty Ltd [1999] VSCA 180 Gayle v Fairfax Media Publications Pty Ltd (No 2); Gayle v The Age Company Pty Ltd (No 2); Gayle v The Federal Capital Press of Australia Pty Ltd (No 2) [2018] NSWSC 1838 Hanson‑Young v Leyonhjelm (No 4) [2019] FCA 1981 John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 Lewis v Daily Telegraph Ltd [1964] AC 234 McGlen-McLeod v Galloway [2012] NSWCA 368 Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 Precision Plastics Pty Ltd v Demir [1975] HCA 27; 132 CLR 362 Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296 Robinson v Australian Broadcasting Corporation [2004] QCA 319 Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 Umeyor v Ibe [2016] EWHC 862 (QB) Watson v Foxman (1995) 49 NSWLR 315 Wilson v Basson [2019] NSWSC 1449 Wilson v Bauer Media Pty Ltd [2017] VSC 521
Texts Cited:	Gatley on Libel and Slander (12th ed., Sweet & Maxwell) Cross on Evidence (11th ed., LexisNexis)
Category:	Principal judgment
Parties:	Plaintiff: Martin Brien Defendant: Hussein Mrad (aka Sam Mrad)
Representation:	Counsel: Plaintiff: Mr T Senior Defendant: Mr N Olson   Solicitors: Plaintiff: HWL Ebsworth Lawyers Defendant: Rose Litigation Lawyers
File Number(s):	2018/393848
Publication restriction:	None

Judgment

Introduction

1. These are proceedings for defamation brought for statements asserted to have been made by the defendant at the 2018 Annual General Meeting (“AGM”) of the North Shore Karting Club (hereafter referred to as “North Shore Karting Club, “karting club” or “the club”).

2. In Umeyor v Ibe [2016] EWHC 862 (QB), Warby J commenced his judgment with the following observations:

“[1] This is the trial of a claim for slander. Slander claims are very unusual today. Many communications that would have been spoken in the past are now text-based, so that any defamation claim would be in libel. But slander claims have always been rare. There are probably many reasons for that, but among them are the difficulties sometimes encountered in proving the exact words spoken; the general principle that slander is not actionable without proof of special damage; and the fact that the range of exceptions to that rule is limited; and the fact that spoken words are, as a rule, less likely than written publications to cause serious harm to reputation. The last three of these factors are no doubt inter-related. All four factors are relevant in the present case, which illustrates several of the difficulties to which slander claims can give rise.”

3. Warby J’s description of the difficulties for slander, and in particular in proving the exact words spoken, is a cautionary warning in relation to the issues in these proceedings.

The words alleged to have been spoken by the defendant

4. The plaintiff is a member of the North Shore Karting Club, of which the defendant is the president. The words asserted to have been spoken by the defendant, as set out in paragraph 3 of the statement of claim, are:

“3. On 19 September 2018, at the annual general meeting (AGM) of the NSKC held at the Bankstown Sports Club, the Defendant published of and concerning the Plaintiff, the following statement:

Martin Brien bribed Endree Saade with a tyre discount in exchange for a signed proxy. (the “matter complained of”)

Particulars of publication

(a) The matter complained of was made orally by the Defendant by addressing the group of approximately 55 persons at the AGM.”

5. The imputations pleaded to arise (as set out at paragraph 4 of the statement of claim) are:

1. The plaintiff bribed Endree Saade to obtain his proxy vote.

2. The plaintiff is a corrupt person of low moral character.

3. The plaintiff engages in unscrupulous and dishonest business practices.

6. Rather surprisingly, no challenge to the form or capacity of the imputations has been made.

The issues for determination

7. The sole issue on liability is whether the defendant said those words, or words not substantially different.

8. The defendant says he did not say anything about the plaintiff at all (written submissions, paragraphs 6-9). His evidence is that he read out verbatim the text of a speech (Exhibit 3) that he had written beforehand. While the defendant makes alternative submissions of “fatal variance” (Gatley on Libel and Slander (12th ed.) (“Gatley”) at [32.15]) or alternatively failure to discharge the onus of proof, the position of the defendant and of the witnesses he called is that nothing at all was said about the plaintiff.

9. In order to determine this issue, it is necessary to make findings of fact not only about whether the words were spoken but in relation to the encounter earlier in the evening when the defendant has challenged the validity of the plaintiff’s proxies for Endree Saade and Joe Hamli (as pleaded in the Defence, or “Hamwi”, as his name has been spelled on some occasions; similarly, Mr Saade’s first name is spelled “Andre” in parts of the transcript; where these variances occur, they have been left in their original form).

10. The remaining issue is the assessment of damages.

The evidence of the parties

11. The plaintiff was not present in the meeting room when the words were spoken. He gave evidence of accounts to him of these words by persons who were present, but is unable to give direct evidence as to what was actually said. According, he called the following witnesses, who gave evidence of what they saw and heard:

1. Mr Mitch Lozina, a barrister practising in the area of building and construction law, who was the unsuccessful candidate, against the defendant, for the position of club president. He has been a member of four clubs since becoming interested in the sport in 2014.

2. Mr Richard Erdmann, an engineer and managing director of a manufacturing company. A former president of the Australian association, he has belonged to many clubs and karting organisations over his many decades of involvement in the sport.

3. Mr Chris Dell, the operator (since 2001) of a family karting accessories business set up by his father in 1962. He had been a club member for about 10 years.

4. Mr Niven Riches, a factory manager for a printing business. He has belonged to a series of clubs, including the North Shore club, at various times since 2003.

5. Mr Michael Vitlic, a veterinarian, who had been a member of the club for approximately 7 years.

6. Mr Michael Micallef, an automotive mobile paint repairer, who had been a member of the club for 12 years.

12. The defendant gave evidence and called the following witnesses:

1. Mr Darren Cohen, the owner of a security company, who joined two years beforehand and is a member of the club committee.

2. Mr Peter Pronseti, who had been a member of the club since 2015.

3. Mr Christopher Quinlan, who works in digital marketing and has been a club member for 18 years.

4. Mr David Haak, who builds go-kart engines and has been a club member for 6 years.

5. Mr Martin Heard, who works for an electrical company and has been a club member for 10 years.

The evidence called by the plaintiff

13. Each of the plaintiff’s witnesses had a longstanding interest in go karting. The cross-examination was limited to their recollection of events, and did not include challenges to their honesty. Their accounts differ in ways that the defendant submits are significant, so it is necessary to set out their evidence in some detail.

Mr Mitch Lozina

14. Mr Lozina, a member of four go karting clubs since he became interested in this sport in about 2014, decided to stand for election for president of the North Short Karting Club at an election which was to be held at the AGM on Thursday 19 September 2018. He told the court that his reason for doing so was his differing view on the club’s future from the current president (the defendant), in terms of his alliance with other go karting clubs around Australia.

15. Mr Lozina contacted the plaintiff to ask for his support (T 11). The plaintiff agreed and offered to obtain proxy votes from members who were not attending the AGM in person. Mr Lozina explained how the “form of appointment of proxy” (Exhibit C) was already filled out for himself as the president, for Greg Holden as vice-president, and Michael Shiller as a committee member (T 12):

“Q. So this is the form that Mitch sent you and it's pre‑filled out with the nominations, and Mitch is there as president, someone called Greg Holden vice president, and Michael Shiller as a committee member.

A. Mm-hmm.

Q. Who is Greg Holden?

A. Greg Holden is a guy I actually know, I basically know him through one of his employees, Todd Maden who works for him, in fact Todd Maden used to work with my - my wife/partner et cetera, and even Greg installed the gates at our factory unit et cetera.

Q. And who is Michael Shiller?

A. Michael Shiller, I just know him as a competitor, he raced in classes that I raced it, at the over 40s titles, and I beat him. And - sorry, I - just breaking, sorry, I'm just a bit nervous.”

16. These were the forms that the plaintiff used to obtain proxies for Mr Saade and for Mr Hamli.

17. Mr Lozina gave evidence both as to the venue (T 57-58), the number of people (T 58) and process of voting (T 58). He handed in proxy votes in his possession and the voting commenced. His evidence was that the defendant made a speech (T 59) and then made a comment about Mr Erdmann, which was as follows:

“Q. What did he say about Richard Erdmann?

A. He was - he said that he was offered a position. He talked about a meeting that - that they had attended, and he talked about David Filipetto and Richard Erdmann attending that meeting, and that within that meeting, it was made clear to him that Richard Erdmann was offered a position within Karting New South Wales. And I know Richard refuted that. But I'm not sure with respect to the order of - of those events. I know that he spoke about Richard Erdmann and - and gave him quite a serve. Yeah.” (T 59)

18. Mr Lozina described how Mr Erdmann then got to his feet:

“Q. And when you say “Richard refuted that,” do you mean Richard said something that‑‑

A. He did. Richard got up and - and - and basically countered what he said with respect to being offered a position within the Karting New South Wales board. And he made it known that he - he - he wasn’t accepting any position, wasn’t looking at any position, and that - that wasn’t truthful.” (T 60)

19. Mr Lozina next described the context in which the defendant spoke about the plaintiff:

“Q. Now, you said you remembered something in particular that Sam said, and during that speech, about Martin.

A. Yes. And at - and at the - the reason, it directly reflected on myself, because he - it had to do with how he obtained certain proxy votes, and‑‑

Q. Before you go on, can you tell the Court the words that you heard Sam‑‑

HER HONOUR: Perhaps what you could do is tell us a bit of a context to how it led into him saying his words. Just paint me a picture. I'm always telling witnesses to paint me a picture.

SENIOR: Yes. Thank you, your Honour.

Q. Did it come out of the blue?

A. He was - he was telling us - he was telling us how well the committee were doing as a whole and how hard they were working, and there were these people that were, you know, seeking to undermine the club, obviously referring to myself and others. And then he start talking about how these proxy votes were obtained, and he mentioned that Martin was offering bribes and misleading people with respect to what these proxy votes were about. The bribe was that he was offering discounts on tyres, and‑‑“ (T 60)

20. He specified the words spoken by the defendant as follows:

“Q. Doing the best you can, what exactly did Sam say about Martin?

A. He - well, he said he was - he wasn't tell the - the truth about the - the nature of the proxy form, and that in order to obtain these votes, he told them that Martin was offering discounts if they voted for myself. And he said that it wasn't about - the - the misleading part was that it wasn't about him voting for me, it was about whether the club would be staying with Karting Australia or Karting New South Wales. That's - that's what they were signing, according to - that - according to Sam.” (T 60)

21. These references to “the misleading part” are of importance because they identify further material qualifying the matter complained of.

22. There is a second problem. Mr Lozina described the defendant as pointing to a person in the room and asking that person to verify what was said as being the truth:

“Q. And when Sam made that allegation against Martin, did he do anything?

A. He pointed - he - after he'd made that allegation, he - he - he asked a person in the room to - to verify what he was saying was the truth.

Q. What did he say, what were the words he said?

A. “And I've even got someone here who can - who can verify what - what I've just said”, and someone stood up, he was standing in front of me, I - I think it was‑‑

Q. And you're moving your hand forward, for the transcript, he was gesturing forward at someone.

A. Yeah. There was - there was a person - there was a person in - in front of him, so he pointed to him, and - and the guy stood up, and‑‑

Q. What did he do?

A. And he said, “Yeah, I - I was - I was offered discounts to - to sign the form”.

Q. Who was that person?

A. I - I don't know the person.” (T 60-61)

23. Mr Lozina described himself as “quite shocked” (T 61) as he wondered whether it was the truth. He described the reason for his upset as follows:

“Q. Why were you upset?

A. Because I didn't want to be associated with - with people being bribed to vote for me. I didn't think it was necessary, I - I - I'd set out my agenda with respect to what I wished to do for the club, or what I wished to do for the sport in general, which - why I believe the sport should have gone with Karting New South Wales as opposed to Karting Australia, I didn't need people to lie and offer bribes on my behalf and in my name. And that - and I was quite - I was quite angry at the time.

Q. So you thought it was true then, you thought Martin had bribed?

A. Yeah, I did, yeah. Because you had Sam saying it, and then you had - then you had another bloke standing up and - and verifying it.” (T 61)

24. Mr Lozina had the following conversation with the plaintiff:

“Q. Why did you call him?

A. Because I was quite angry with him.

Q. You were angry with him?

A. Yeah. And - and I basically told him what Sam had said.

Q. Doing the best you can again, if you could tell the Court what you said and what Martin said.

A. If I - excuse my crudeness, I said, “Well, what - what the fuck do you think you're doing offering people bribes to vote for me?”

Q. And what did Martin say in reply?

A. “I didn't do that, that's - that's absolute bullshit.” And‑‑

Q. And did you say anything?

A. I said, “That's what he said, and he had a guy stand up”, so - and - and he just said, “Mate, it's not true. If that - if he said that, I'm - mate, I'm going to take this all the way. There is no way that he's going to do that to me.”“ (T 62)

25. This is consistent in content, although not in form, with the description of the plaintiff of this conversation (T 24), described in more detail below.

26. It was not put to Mr Lozina, in cross-examination, that the defendant never said these words. All that was challenged was his ability to hear the words because of the noise and his ability to remember generally:

“Q. It was difficult to hear what people, what any individual person was saying?

A. No, I don't agree with that at all.

Q. You're not currently in a position to recall the exact words that any person used at that AGM, are you?

A. With respect to particular things I am, with respect to other things in general I'm not. I can recall Steve Donnelly talking about J tyres and I remember Marty Hird responding back that people buy new tyres every race meet regardless of what they do, because there was discussions about the type of tyre we had. There were particular discussions that I do recall rather well, there's others that I probably don't. But I have a fairly good recollection of the night's events.

Q. Well, I want to suggest to you that you don't have any specific recollection of words that Mr Mrad said about Mr Brien.

A. I do, and I'll never forget those.” (T 68)

27. A further matter is that, in his written submissions, Mr Olson submitted that Mr Lozina and the other witnesses called to support the plaintiff had “personal and political relationships” (written submissions, paragraph 26) with the plaintiff. In the case of Mr Lozina, he had been a customer of the plaintiff since 2015 as well as a friend, and the plaintiff was there to support his campaign for club presidency. The plaintiff renewed his financial membership of the club solely for the purpose of supporting Mr Lozina (T 12). However, this allegation was never put to Mr Lozina in terms.

28. The defendant’s case is thus that either Mr Lozina could not hear or has forgotten, or is one of four witnesses (the others being Mr Erdmann, Mr Dell and Mr Riches) whose description of what was said differs so materially from each other and from the pleaded case that the slander claim cannot be established.

Mr Richard Erdmann

29. Mr Erdmann is an engineer and managing director of a manufacturing company, a small part the business of which involves manufacturing go kart components. His principal work, however, is architectural construction and other activities for the Department of Defence. He has been interested in go karting activities since approximately 1990 and is the former state president for the Australian Karting Association (now known as Karting NSW), as well as the national president of the Australian Karting Association between 2005 and 2008. He told the court he no longer had the time to take up official positions in the sport (T 88), but had been a member of the North Shore Karting Club since about 2012.

30. Mr Erdmann described the location and events of the AGM in similar terms to Mr Lozina. Mr Erdmann was seated about two-thirds of the way down in the meeting room on the left hand side.

31. Mr Erdmann was one of several witnesses who described the voting process and meeting as being disorganised and somewhat rowdy. He described people being lined up to vote (T 92), in circumstances that were “a bit of a mess” (T 91) and “very very confusing” (T 91). He particularly recalled problems with the proxy votes as follows:

“A. There was a lot of chatter about, you know, the - the proxy votes, 'cause it was a - not a nice, sort of, meeting in that sense, there was a lot of debate about the proxy votes, that they should have been in 24 hours before, and some people were doing them on the night and, you know. As to whether that was fact or fiction, I - I have no idea.” (T 92)

32. In particular, he overheard part of a conversation between the plaintiff and defendant which he described as follows:

“A. Martin came in, sort of, at the beginning, so when we did our - checked off our names, so - so he came in. I was already back to almost where I was sitting, Martin was standing there, something was said between Martin and - and Sam.

Q. So when did that happen?

A. That was right at the beginning before the voting started, and all I heard from Martin was, “That's bullshit”, or - or something to that effect. What was said, I don't know, but Martin wasn't very quiet about that. So a few other words were exchanged, then Martin went and sat down towards the back of the room, so he was to my right and behind me. So I - I have no idea what was - what was at that particular point in time. We went into the election process, as I say, people were lining up and queuing up and doing all those things.” (T 92)

33. Mr Erdmann described the circumstances in which the results of the vote were announced and the defendant made a speech. He described this in some detail as follows:

“Q. And what did Sam say?

A. He started out by describing how he came into the role in the first place, where people had asked him to be the president, and how he felt about that, that he felt, you know, that he was wanted, want of another term, he - he used a different term for that, but that's basically what he was saying, and he - and he was happy that he did the job, and how he had, together with committee, he'd - they'd, sort of, turned the club around, they felt they'd turned the club around, and that they'd bucked the trend of what was happening in the sport, right.

And, you know, he stated some numbers and things, and then spoke about a - a few other things, I think he congratulated his - his - some of the other committee members that had worked hard with him through the course of that year. And then out of left field, that it just, sort of, it came about the - the proxy votes, and he - he started to talk about the proxy votes and that there was a group of people trying to undermine the current committee. And then it came out with - with Martin Brien‑‑“ (T 93)

34. Mr Erdmann described what was said about himself and Mr Filipetto:

“A. So at the AGM. So at the AGM, what occurred there was that Sam said we had this meeting, that Dave Filipetto was - he didn’t think he was a very good person, right, and had no experience with it, because of a statement that Mr Filipetto had said in the meeting. I stood up in the room at that point.

Q. Did he say something about you at that point or was it just about‑‑

A. Right at that moment, no. I - I then stood up and defended Dave Filipetto, sat back down again. It went on. Then at some point, Sam turned - looked at me in the room. I was sitting down. And he said, “And what position have you been offered on the board of New South Wales?”

Q. And what did you say to that?

A. And so at that point I stood up in the room and I said, “I will explain to this room exactly what I said to the committee when I went into the meeting,” and I repeated exactly what I said in that meeting. And I can repeat that here if you wish, but I don’t think it's really relevant.” (T 94)

35. Mr Erdmann was then asked what was said about the plaintiff:

“Q. Can you tell the Court the words that Sam said about Martin.

A. Okay. It was in this whole sort of thing about the proxy votes.

Q. That was the context in which it was said?

A. That was the context that was being said in. And I - I - I understood the tension between Mitch Lozina and - and Sam. And so I - I really wasn't paying a hundred per cent attention right at that moment till - till Martin Brien's name got mentioned. Right? Because I thought, “Where's this come out of?”

Q. And what did Sam say?

A. And he goes, “And Martin Brien has been offering bribes to people with cheap go‑kart parts.” And he pointed to an individual in the room, said the person's name, who I have no idea who they were. And that was a person sitting to my right, right, a couple of rows forward, who nodded their head, and I'm assuming that that was person they were - he was speaking to.

Q. What did he say to that person?

A. He said - he just looked - he asked him for a confirmation that that had - that had occurred.

Q. What did he say? What were the words said?

A. That person didn’t say anything. He just nodded his head.

Q. What were the words that Sam used to that person?

A. Sam just said that “Martin Brien has been offering discounts - discounted go‑kart parts to people, right, for their proxy votes. Isn't that right, whoever the person's name was who was over to my right.” I then immediately turned to my right, further around, because I - the last time I saw Martin, he was on my right on the other side of the room. And I noticed he wasn't there. All right?” (T 94-95)

36. Mr Erdmann described the reaction in the room when these words were spoken:

“Q. And what was the reaction in the room after Sam said that?

A. It - it - it went a little bit hushed at that moment, all right, because it's not something we normally hear in those - those sorts of contexts. Like, go‑kart meetings can be fairly rowdy and - and things. But at that point, Sam was making some - some points, and he was the person speaking at the front of the room. And I - I've got to say to - to that, I mean, people were speaking. They were getting their opportunity to speak. So he was getting his opportunity to speak, and it was - it all led on from his acceptance speech.” (T 95)

37. Mr Erdmann said he had not been paying “100% attention” (T 97) as to what the defendant said during his speech until the moment Martin Brien’s name got mentioned. What is not clear from his account is which came first, the allegations about Mr Erdmann personally which led to his standing up or the allegations about the plaintiff. However, given the admission that Mr Erdmann was not paying much attention until the plaintiff’s name was mentioned, the likelihood is that his evidence should be construed as reading that the allegation about the plaintiff described by Mr Erdmann was made first and the challenge to Mr Erdmann’s own conduct was made subsequently. I note that his evidence of the defendant inviting one of the attendees at the AGM to confirm the allegations is consistent with the description of this event by Mr Riches, Mr Vitlic and Mr Micallef, as well as with Mr Lozina’s evidence as set out earlier.

38. In cross-examination, Mr Erdmann was challenged about asserted differences in his accounts of the conversations as follows:

“Q. You said that you weren't paying much attention until you heard Mr Brien's name mentioned. I'd suggest to you that you weren't closely paying attention of what was said. You accept that?

A. At - in the beginning of the - the discussion - or, sorry, of his summation of - of the proxy votes, I absolutely was not paying 100% attention, that's true.

Q. You hadn't followed the context of the speech up until that point?

A. I had followed the context, but I had no interest in it. So I couldn't repeat to you verbatim what he was saying, because I - I just had no interest in what he was saying, till he starts mentioning people's names.

Q. But equally, the words that you used in giving evidence in answer to Mr Senior's questions

A. Yes.

Q. and “Martin Brien has been offering bribes to people with cheap go kart parts”

A. Mm hmm.

Q. you can't be sure that those were actual words that Mr Mrad used during his speech, can you?

A. As close as my recollection recalls, yes I can.

Q. Well, I think you actually gave two versions, in answer to Mr Senior, because you gave that version and then you - a little bit later you suggested that he said, “Martin Brien has been offering discounted karting parts to people in exchange for their proxy votes.” Do you recall giving that evidence? A. Yes.

Q. So

A. To me they're the same thing, “go kart parts”, “karting parts”. I'm in that industry, we make those references all the time.

Q. I'd suggest to you that the fact that you've given multiple accounts of the words that were said during the speech reflects the fact that you are, as you sit here today, unable to recall any actual words that were used by Mr Mrad? (T 98)

39. There was an objection by Mr Senior at this point. Comparison between the transcript at T 95 line 1 to T 91 line 15 and T 98 line 5 shows that the words “go kart parts” appear in both answers in the evidence. It was counsel for the defendant who used the words “karting parts”, not the witness.

40. The second asserted inconsistency is whether or not the word “bribe” was used. However, as Mr Senior points out in his written submissions (paragraph 37), this was not put to Mr Erdmann in terms. I asked Mr Erdmann, after this objection:

“Q. Well, I think now that we know that there are those two differences, it's being put to you that because you've given two different versions you can't possibly remember what was said. So, do you agree or disagree?

A. I can't recall verbatim what was said, I'll - I'll - I'll agree with that. But I absolutely recall the context of what was said.

Q. And that context was?

A. The context was that Martin Brien was offering discounted parts or bribing people for their proxy votes, might be in order to get discounted parts. So, however you want to word that around, chase it around, you know.” (T 98 – 99)

41. As was the case with Mr Lozina, the challenge to Mr Erdmann’s evidence were based on faulty recollection and noise. It was never put to him that the defendant never spoke these words.

42. Apart from the reference by Mr Lozina to the “misleading” representation about leaving the current club arrangements (as to which see the evidence of Mr Dell at T 103, discussed below), Mr Erdmann’s evidence is consistent with that of Mr Lozina. He had a good recollection of the events on the night in question and answered questions in a careful and precise way, making concessions where appropriate, as his evidence at T 98 – 99 demonstrates.

Mr Chris Dell

43. Unlike the other witnesses called by the plaintiff, Mr Dell was not attending the meeting to support Mr Lozina. He abstained from the voting (T 102). He knew the plaintiff as a “business competitor” (T 100) whom he described as “one of our opposition” (T 101). Although he had not turned his mind to the events of that evening until he was served with a subpoena to give evidence (T 104), he said he had a particular recollection of the allegations made by the defendant against the plaintiff because he considered them “pretty shocking” (T 103) and “I kind of thought to myself, “Wow, Martin must be desperate for proxy votes” (T 103).

44. Mr Dell gave evidence more or less consistent with the other witnesses called by the plaintiff, in terms of the size of the room and the number of attendees at the AGM (T 101). He said that at times the AGM was rowdy and that people were speaking at the same time (T 105), but denied that it was difficult to hear the defendant’s speech. He also denied the suggestion that he was unable to distinguish when particular statements (by inference such as the matter complained of) was made during the AGM (T 105).

45. Mr Dell described the process of voting in a similar fashion as Mr Erdmann, noting that there was “a little bit of confusion” (T 102) and “a bit of confusion” (T 102). The results were announced and the defendant made a speech after the voting, standing in the front of the room. Mr Dell was unable to remember the defendant mentioning Mr Lozina in his speech, although he recalled “some back and forth” between Mr Erdmann and the defendant (T 103). He described what the defendant said about the plaintiff as follows:

“Q. Did he mention Martin Brien?

A. He did, there - there was one point where I'd actually asked him, “Are we going to vote on whether the club would stay with Karting New South Wales or not”, and he said, “No”. And then somebody else, I think, asked him why, and he said that he didn't think there was enough information out there for the club members to vote. And then he said that he - that he'd been told that Martin Brien was selling tyres at a discount in exchange for proxy votes.” (T 103)

46. I note the similarity in terms of a reference to staying or going from the club’s affiliations which immediately precedes the reference to the plaintiff but, unlike Mr Lozina, Mr Dell did not identify the link between staying or going from the club’s affiliations and the proxy vote.

47. As Mr Senior points out (written submissions, paragraph 70), Mr Dell was, like Mr Lozina and Mr Erdmann, not cross-examined on his evidence as to what the defendant said about the plaintiff during his speech. It was put to him, for example, that nothing at all was said, or that the words spoken about the plaintiff were different, or even that he was unable to recall the words. All that was put to him was that it was what was said at T 105 lines 24-28 as follows:

“Q. Yes. So as you sit here now, you're not in a position to distinguish between things that Mr Mrad may have said during his speech or things that may have been said during open discussion at the AGM or things that may have been said waiting in the line to vote, are you?

A. I don’t know if that's correct.”

48. Mr Dell recalled having a conversation with the plaintiff a few days after the AGM:

“A. I think he probably rang me a couple of days later, he generally orders products off our company every day or two.

Q. Did you talk about what had happened at the AGM?

A. Briefly.

Q. What did you say, or what did he say and what did you say?

A. I believe he was complaining about what Sam had said, but I didn't pay too much attention to it at the time.

Q. How did he seem, what was his demeanour?

A. He wasn't happy.” (T 104)

49. He was cross-examined about this at T 105-106:

“Q. Now, you gave evidence, when Mr Senior was asking you questions, that you spoke to Mr Brien by phone couple of days after the AGM. I'd suggest to you that you actually didn’t speak to him about what was said at the AGM until 1 April this year. Isn't that the case?

A. I - I stand by what I said. He rang me a few days later when he was ordering some parts.

Q. And I want to suggest to you that when you spoke to Mr Brien on the phone about the AGM, he asked you what was said about him at the AGM. Is that correct? Or do you remember what was said about him at the AGM?

A. Sorry. Could you ask the question again.

Q. When you spoke to Mr Brien on the phone about the AGM‑‑

A. So are you talking on 1 April or are you talking the few days afterwards?

Q. Well, your evidence is it happened a few days afterwards.

A. Yes.

Q. I'm suggesting to you that he said, “Do you remember what was said about me at the AGM?” or, “Did you hear what was said about me at the AGM?” Do you agree with that?

A. I believe he said that, yes.

Q. And I suggest to you that your words were, “Yeah. Something about votes and tyres.” Do you agree with that, or disagree?

A. To be honest, I don't remember exactly.”

50. This uncertainty about what he said to the plaintiff about what he heard does not detract from his certainty about what he says he heard on the night, the accuracy of which was not challenged on cross-examination. Apart from the lack of link between the club affiliation issue and the proxies, his evidence is consistent in general terms with the evidence of Mr Lozina. It is also consistent with Mr Erdmann.

Mr Niven Riches

51. Mr Riches described an involvement in go karting since 2003 which included being a member of the club and racing as a member (T 107). His daughter runs the safety track light system at Eastern Creek, which is the racing track used by the club (T 107).

52. Mr Riches was, like Mr Dell, undecided as to whom he should vote for at the meeting. He said that although he received a phone call from Mr Lozina asking for his vote, he had not decided who to vote for:

“A. I had a phone call from a Mitch Lozina asking - he was trying to get onto the committee, and asking, you know, could I have his vote and all that. And I said, “No, look, got to go online. See what people are going to say.” You know? I was - I was - I was - who was on the committee wasn’t really a - an issue to me. It didn’t - didn’t - didn’t worry me. So‑‑

Q. But you knew there was a vote for committee‑‑

A. Yeah, I knew there was a vote, and I - I knew there - there was a lot of people trying to get on the committee, because they're at the same meeting there was going to be an important decision to be made. And I think those people wanted to get into a position of importance at‑‑

Q. And is it fair to say that you were going there partly to support Mitch's‑‑

A. No, I wasn't go‑‑

Q. You weren't?

A. No, I hadn't made my mind up. I wanted to hear what people had to say. So, you know, and - yeah.” (T 108)

53. Mr Riches described the venue and number of persons for the AGM in similar terms to the plaintiff’s other witnesses (T 109). He was, however, much more forthright in his description of the process of voting which he described as “the most shonkiest voting system I've ever seen in a - in a meeting” (T 109), “chaos” (T 109) and “pathetic” (T 109). He described the problem as being the following:

“A. Well, it's just the - the - the manner in they are handing out the voting slips. And people were going, “Oh, I'll have one for my son as well, please,” and all this sort of carry-on. And yeah, I think at one stage there was - there was - there was more votes, and I mean, people in the room, and that was‑‑“ (T 110)

54. Mr Riches said that after the result of the voting was declared, the defendant made a speech (T 111). Mr Riches did not recall the defendant mentioning Mr Lozina in his speech, but said that he specifically recalled mentions of Mr Erdmann and the plaintiff:

“Q. Well, can I just stop you there. So, Sam was making an acceptance‑‑

A. An - an acceptance speech, it's, like, thank people for, you know, like, and what he'd done for the club.

Q. Where was he when he was doing his speech?

A. He - he was sort of, like, standing, sort of, like, three‑quarters the way up the‑‑

Q. From the front?

A. ‑‑up - up - up to the front. He wasn't dead at the front; he was sort of, like, three‑quarters of the way up the front. So‑‑

Q. And did he mention Mitch in his speech?

A. I can't recall whether Mitch was mentioned, no.

Q. Did he mention Richard Erdmann?

A. I think he did, yes. I think he had - I think he did.

Q. And he mentioned Martin?

A. And he mentioned Martin, but he‑‑“ (T 111)

55. He was asked to specify what was said about the plaintiff and he replied:

“Q. Tell us, what were the words he said about Martin?

A. I - I cannot tell you the exact words that were said.

Q. Tell us, as best you can, what the words were.

A. He basically - he asked where Martin was, and Martin had already left, apparently. And then he basically said that Martin - there was a couple of guys had turned up at his place and he gave then cheap tyres for their vote. And I felt it - it just felt a bit odd, like, why would you say something? The - you've won the election, why - why would you, like, like - I don't know whether there's anything to flinder to, but, you know, it was just such a funny thing to - to say, after you've won the election, and there's no need.” (T 111)

56. Mr Riches said that at the time of making these statements, the defendant looked at someone after he had said those words and pointed at that person:

“A. He - he looked for - he looked for him and, like, pointed at him, and that - that's basically it, the - you know, like, I - I was busy, you know, I'd - the - my focus was off it then. I was, like, and we were talking about this upcoming, and the attention in my group turned to the upcoming vote on it - on the split.” (T 112)

57. Mr Riches said he had a particularly clear recollection of the words spoken by the defendant because of his own reaction, namely he thought “You’re an idiot” concerning the plaintiff (T 112) and also because of the response of those around him, especially that of Mr Lozina:

“Q. What was the reaction in the room when he said that?

A. Yeah, there's just - you could see there was a few people that, like, “What - what the hell was that?” You know, that was just, like, and my good friend Chris was beside me, and I - Mitch Lozina was behind me. I turned around and Mitch was boiling, like, you know, he - and I've found - we - after the meeting we went for a dinner together, the - our block of friends. And, like, it was just, like, Mitch was beside himself that Martin would do something like that.” (T 111)

58. Once again, the precise allegation was not put to Mr Riches that the words were not spoken. He was challenged as to his ability to remember matters, and to remember the specific language, and he was asked a similar question to that put to Mr Dell, namely that because the meeting was chaotic he was not in a position to recall a particular statement. He replied to this as follows:

“Q. And I'd suggest to you that given how chaotic you remember the meeting being, you're not in a position to recall any particular thing that was said during Mr Mrad's speech.

A. No, not - not actual pacifics(as said) on the - on - on - up until the - the point where he - well, he - he caught - 'cause I knew Martin, he caught my attention when he said Martin. I, sort of, looked around, and - 'cause I, sort of, I'd half seen him leave straight after the vote, so that, sort of, like, got my attention, he's asking for someone that had left and, you know.

Q. Just to be clear, I'm suggesting that that's also a detail that you don't specifically recall.

A. If that - that‑‑

Q. Anything that was said about Martin.

A. I'd recall that - that - about the - the votes for tyres, sorry, votes for discounted tyre - for cash.

Q. But you're not able to recall‑‑

A. Word to word, no.” (T 114)

59. He also raised the matter with the plaintiff’s brother:

“Q. What did Mitch say to you?

A. Well, I remember walking out and I was a couple behind Mitch, and he turned round, “Well, bloody thanks for that, Martin, you make us look really good.” So, you know, it was - and, like, when we're - I - at our meal afterwards, I was sitting beside both Peter, who I know well, and I said, “What the hell is your brother doing?”

Q. Martin's brother, Peter?

A. Yeah, I said, “Well,” - and he goes, “Well, Marty's Marty, you know.” (T 111 – 112).

60. Mr Riches recalled not only his own initial reaction to the defendant’s words but also what the defendant did next:

“Q. What was your reaction when you heard Sam say that about Martin at the AGM?

A. I thought, “You're an idiot,” for Marty - I thought Martin was an idiot for doing it.

Q. Yes?

A. 'Cause, like, you know, like, it's a dumb thing to do.

Q. Thank you. Did Sam look at anyone or do anything when he said that, about Martin?

A. He was looking for the person - 'cause that's what caught my attention, and he was looking for the person that, sort of, had said that the vote, it got brought by tyres.

Q. Right. What did he do?

A. He - he looked for - he looked for him and, like, pointed at him, and that - that's basically it, the - you know, like, I - I was busy, you know, I'd - the - my focus was off it then. I was, like, and we were talking about this upcoming, and the attention in my group turned to the upcoming vote on it - on the split.” T 112)

61. Mr Riches was sufficiently concerned about the allegation to confront the plaintiff at his place of work (which was near Mr Riches’ factory) on a day following the AGM:

“Q. Okay. Did you speak to Martin at any point after the AGM, about what happened?

A. About - his factory is just around the corner from my one.

Q. I see.

A. So, about - but we're always too busy, like, I've only - I've been there - I've been there the best of four times and I've brought two things off him. He's a distributor, like, we don't, you know, it's not - so I - I turn up and said, “Mate, have - what the bloody hell are you doing?” You know.

Q. What did he say?

A. And he says, “I didn't do anything.” Q [sic] I said, “Mate” - like, and he goes, “Well, these guys, I've always sold tyres to them.” And he says, “Because I'm an on - online business, I give them discount for cash, cash in - or, but cash in the back pocket, and I've always done it.”

Q. Yes?

A. And he says - and he, you know.

Q. What was Martin's demeanour like? Was he

A. I - it wasn't that time, it was the - the next time I saw him.

Q. When was that?

A. It would have been about another month after that, and I, sort of, dropped a joke at him about, you know, get my money - give - give me some discount here for some tyres, and he wasn't happy, at his

Q. What did he say, or what did he do?

A. He says, “Well, I'm taking this guy to the cleaners”, he says, “I'm over this, he's - he's destroying me”. So he – it-” (T 112-113)

62. In cross-examination, it was put to Mr Riches that the meeting was so rowdy that he could not be certain he heard these words at all. Mr Riches disagreed, saying that while the meeting was a case of “men behaving badly” (T 113), he was able to hear, and that while he was not paying much attention to the speech, his attention was immediately drawn when he heard the plaintiff’s name (T 113):

“Q. And I'd suggest to you that given how chaotic you remember the meeting being, you're not in a position to recall any particular thing that was said during Mr Mrad's speech.

A. No, not - not actual pacifics(as said) on the - on - on - up until the - the point where he - well, he - he caught - 'cause I knew Martin, he caught my attention when he said Martin. I, sort of, looked around, and - 'cause I, sort of, I'd half seen him leave straight after the vote, so that, sort of, like, got my attention, he's asking for someone that had left and, you know.

Q. Just to be clear, I'm suggesting that that's also a detail that you don't specifically recall.

A. If that - that

Q. Anything that was said about Martin.

A. I'd recall that - that - about the - the votes for tyres, sorry, votes for discounted tyre - for cash.

Q. But you're not able to recall

A. Word to word, no.”

63. Although Mr Riches was not able to recall “word to word”, to use his phrase, he was able to recall the gist of what was said, and that content is consistent with the accounts of Mr Lozina, Mr Erdmann and Mr Dell.

Mr Michael Vitlic

64. Mr Vitlic, a member of the club for about seven years, knew the plaintiff from racing at Wollongong and from the fact that the plaintiff runs an online karting shop (T 70-71). He described the venue for the AGM in similar terms to the other witnesses called by the plaintiff, although he thought there were only approximately 60 to 80 persons in the room (T 71).

65. Mr Vitlic described the process of voting, including the taking of proxy votes (T 72). The defendant was then elected president and gave a speech (T 73).

66. Mr Vitlic did not recall the defendant saying anything about Mr Lozina during this speech (T 74), but he did recall the plaintiff speaking about Mr Erdmann and Mr Erdmann standing up as a result (T 73).

67. Mr Vitlic’s description of the defendant’s statement about the plaintiff was as follows:

“Q. And did Sam mention Martin in part of his speech?

A. The only thing I can remember of that was that Sam mentioned Martin's name. Someone stood up, didn’t know who it was, on the right side of the room. I don't remember what was discussed. I found out later.

Q. Well, I'll ask you about that.

A. Yeah.

Q. But just in terms of what happened in the meeting. So you heard Martin's name. Someone stood up.

A. Yep.

Q. What happened then?

A. I - I mean, look, if - if - if I knew specific - exactly what was said, I'd tell you, but I - I don’t, so I - I don’t want to kind of make - make something up. You know? Yep.

Q. And no‑one is asking you to make things up, certainly.

A. Yep.

Q. But just going back to what you said. You do remember Martin's name being mentioned, and you do remember someone standing up‑‑

A. Yes, that's - yeah.

Q. ‑‑in response to something Sam had said. Is that right?

A. I think so. Yep.” (T 74)

68. Mr Vitlic described going to have dinner with a group of other members, including Mr Erdmann and Mr Riches (T 75), and that they were talking about what had been said at the AGM (T 75):

“Q. So what did they say?

A. They were just saying that there's - there had been mention of inducements to garner votes for a specific side at the meeting, or specifically for Mitch Lozina.

Q. And when you say “there had been mention,” do you mean the people you were with having a drink were talking about that being mentioned in the AGM?

A. Yes. Yep.”

69. He described the plaintiff’s name occurring in the following context:

“Q. ‑‑what was said about Martin in terms of, did his name come up? That's what we want to know.

A. Yep. Yeah, his name did come up. Yep.

Q. And what was said about him?

A. It was - it - like, in relation to he'd asked some gentleman to stand up, who was obviously that gentleman that I did see stand up. But like I said, I didn’t hear it myself. But it was that he'd come to his shop and - to Martin's shop - and there had been - been an inducement for votes, because he had - inducement for votes for Mitch Lozina in - in order to buy tyres. That's - that's what everyone, I guess, knows. That's what I've kind of gathered after the meeting, that occurred. So - but like I said, I didn’t hear that specifically.” (T 77)

70. Mr Vitlic spoke to the plaintiff after the AGM and told him what had been said:

“A. So, it was just, like, in relation to what happened at the meeting, you know? I - I - I relayed pretty much what I told you to him.

Q. What did you say to him?

A. That - basically I told him that I didn't necessarily hear. I saw the gentleman stand up, and I saw Sam was at the front. I - I don't recall exactly what was said. I - I didn't hear it. But I - I learned of everything later, and that's - that's pretty much what I told you. From other people.” (T 78)

71. Mr Vitlic was not cross-examined.

72. Mr Vitlic’s recollection of there being an “inducement for votes for Mitch Lozina” in order “to buy tyres” is based upon what he heard after the meeting, rather than what he heard specifically. His evidence on this issue thus does not assist the plaintiff. However, his evidence is corroborative of two important issues, namely that the plaintiff was named during the speech, and the terms that others were using after the meeting to describe what was said. These contemporaneous repetitions of what was said by third parties is a factor to take into account when determining whether the defendant’s evidence that nothing at all was said should be accepted.

Mr Michael Micallef

73. Mr Micallef is an automotive mobile paint repairer who has been involved in the sport of go karting for about 12 years. He joined the club when Mr Lozina contacted him and asked if he would vote for him at the AGM:

“A. No - yeah, at Eastern Creek, yes. North Shore. Then was asked by Mitch Lozina, who was canvassing for - going for the club president. And he asked if I would support him in a vote, which I said I would. But in order to do that I had to join the club.” (T 80-81)

74. He described the room in similar terms to the other witnesses called by the plaintiff, although he thought there were approximately 65 to 70 persons in the room. He said that the defendant made a speech in the course of which he mentioned Mr Lozina (T 83). He described the circumstances in which the defendant mentioned Mr Erdmann and Mr Erdmann stood up in response to this as follows:

“Q. What about Richard Erdman? Did Sam say something about Richard?

A. Yeah, there was a bit of a - there was a bit of a spike going on. Richard stood up and there was sort of a - it seemed like a very - a - a bit of a personal attack towards Richard.

Q. Right. Do you remember what they - sorry‑‑

A. But - look, it's - to me, from what I can remember it was - Sam was implying that Richard was something to do with Karting New South Wales, and - and that's not what - the position that they wanted to be in. And‑‑

Q. What did Richard say?

A. Richard - Richard fired back and Richard, without going - getting too boisterous, he just basically put his point back across, that no, he has no involvement.” (T 83)

75. He then described how the defendant referred to the plaintiff as follows:

“Q. Right, okay. And did Sam say anything about Martin?

A. Look, I was up the back of the room when I heard Martin's name being mentioned.

Q. So you heard his name. Yes?

A. I was down the back with probably four other guys, who were having coffee and a biscuit. I heard Martin Brien being mentioned.

Q. His full name, Martin Brien?

A. Yeah. And one of the other guys, who was down the back with me, mentioned that Martin had left. And then, when I was talking to them, I looked over the - the guy who was facing me - I was looking over him, facing towards Sam, and then there was an - Sam mentioned another guy's name and - and he stood up, up the front of the room.” (T 83-84)

76. Mr Micallef was unable to say exactly what the defendant had said about the plaintiff:

“Q. Right. And what did they say?

A. I don't, like, I - I don't recall the content, because we were too busy down the back, having our own conversation.

Q. What was the context in which Martin's name was mentioned? What was Sam saying?

A. Well, I don't - I don’t recall that, what Sam said.” (T 84)

77. Mr Micallef went to dinner afterwards with Mr Lozina and others (T 84) and he recalled someone in the group asked about “Why was Martin - what happened with Martin?” (T 85). Mr Micallef recalls the reply as follows:

“Q. And what was the reply?

A. And the - the reply was that Martin was in - the implication was that Martin offering bribes, for - for kart parts, for votes.”

78. He said that the implication was that the plaintiff was giving cheap car parts to secure votes:

“Q. Martin was offering bribes of kart parts for votes. Is that it?

A. Yes, the - the implication was that Martin was giving cheap kart parts, to - to secure votes.”

79. He clarified this by saying:

“Q. Do you understand that? We want to know - it's that you said before in your evidence‑in‑chief that Martin was giving kart parts to secure votes?

A. Yes, that was what was said.

Q. Did anybody use the word “implication”?

A. No, not - not - that was - from what - from the conversation, the implication was, in my opinion, that Martin had been giving out cheap parts. Does that answer your - is that what you're after?” (T 87)

80. Mr Micallef also spoke to the plaintiff:

“Q. Since the AGM have you spoken to Martin about what was said at the AGM?

A. I spoke to Martin probably three weeks after the AGM. I was at‑‑

Q. What did - sorry.

A. ‑‑I was at a - at a car show at Eastern Creek, and happened to bump into him.

Q. What did you say, he say?

A. It - it wasn't a planned thing. Martin walked up to me and sort of - we were just having a bit of talk, and he said - I said, “Oh, yeah, I heard your name mentioned.” And he - and he goes, “What'd you hear?” And I said, “Look, I don't know the conversation, but I - I definitely heard your name.” And then he - he informed me of what was said.’ (T 85)

81. Mr Micallef’s evidence is of the same limited amount of assistance as that of Mr Vitlic. Both are certain that the plaintiff was named although they did not hear what was said, and both heard others describe what was said immediately afterwards.

The evidence of the plaintiff

82. Although the plaintiff was not in the meeting room at the time the defendant is alleged to have spoken the words, his evidence as to his earlier conversation with the defendant is central to the issue of what was said later.

83. The plaintiff runs an online karting business and he is a keen racer. He was a member of the North Shore club in the 1990s but had allowed his membership to lapse. It was one of many clubs of which he was a member as this was necessary in order to compete in races (T 9). Because he swaps and changes clubs for this reason, he had not been a member of the North Shore club for “a few years” (T 10) and he renewed his membership effectively after hearing from Mr Lozina, a customer with whom he had some common interests who had become a friend (T 11). He described the conversation as follows:

“Q. Doing the best you can, what did he say and what did you say as part of that conversation?

A. Well, the phone conversation happened around about lunch time because he‑‑

Q. What did Mitch say?

A. ‑‑he left me no time to get things done. Basically it was along the lines of, “Hey Martin, I'm gonna go for the presidency of North Shore Kart Club, can you support me?” I went, “Yeah, sure, like, no problems, I'll - I'll support you, I'll try to get you a couple of proxy votes as well. How many proxy votes are you allowed to have?” And he said, “You're allowed up to five.” All right, okay, so I‑‑

Q. And did he say anything else about those proxy votes?

A. Yes, he said that they have to be in by 7 o'clock that night, and I went, “Thanks, mate”, 'cause he left me no time to get - get it done. And then I said something, I said, “I'm currently not financial, I'll have to”, that's why I said, “When do they come”, I know that it was just after lunch.

Q. So what did Mitch do after that conversation?

A. Mitch emailed me a copy of the proxy form. Now, the proxy form was pre‑filled out, just leaving the space for the person's name, address and their signature.” (T 11-12)

84. The plaintiff described the other persons on the nomination form as follows:

“Q. So this is the form that Mitch sent you and it's pre‑filled out with the nominations, and Mitch is there as president, someone called Greg Holden vice president, and Michael Shiller as a committee member.

A. Mm-hmm.

Q. Who is Greg Holden?

A. Greg Holden is a guy I actually know, I basically know him through one of his employees, Todd Maden who works for him, in fact Todd Maden used to work with my - my wife/partner et cetera, and even Greg installed the gates at our factory unit et cetera.

Q. And who is Michael Shiller?

A. Michael Shiller, I just know him as a competitor, he raced in classes that I raced it, at the over 40s titles, and I beat him. And - sorry, I - just breaking, sorry, I'm just a bit nervous.

Q. That's okay, that's all right.

A. And‑‑

Q. So you've got this form, what did you do next once you got the form?

A. Well - well, prior to - to Mitch - in the phone call, I forgot - one thing I - I missed out, I want to add to it, I - I - I confer with Mitch who he'd already got, because we have a lot of the common friends, but he knows that I have lots of customers in all - but through Sydney, that things - so I just rattled off names, said, “Yeah, I've got him, got him, got him”, and I went, “Okay, right”. So then I had a - a list to start ringing people to see if they were currently paid up members of North Shore Kart Club.

Q. Who did you speak to?

A. Well, I rang Josh Pontello and he told me that he was a member of Combined Districts so he wasn't eligible.

Q. That's a different club, is it?

A. Pardon?

Q. A different club?

A. Different club, different club couldn't vote in another club's election. Some people, like myself, were multiple - over the years were multiple members of multiple clubs.

Q. Who else did you‑‑

A. Michael Pesh, he was from - he - he races Canberra, so even though he lives in Sydney just near me, he - he lives - he was a member of Canberra. But then I started finding people, there was Greg Campbell, who - who I know, Daniel Orsini‑‑

Q. How do you know Greg?

A. Sorry?

Q. How do you know Greg?

A. Greg Campbell is just a customer, he buys lots of stuff off us now and again, and - and I remember he was racing at the Creek a lot, so I said, “Hey, you're a member, aren't you, can you give us a proxy?” “Yeah, sure, fine.” Daniel Orsini I've known for 25 years, or something, I went to his 21st and he's 45 years old, so I've known him for a long time, and he worked for me for a number of years back in the 90s, so I've him for a long time. And another gentleman called Rod Star, Rod Star is - is a car fabricator and I - we have a really good rapport over the phone, and I know his son raced at Eastern Creek, so I got Rod. So though - I got those guys pretty quickly.

Aggravated damages

222. The plaintiff particularised a claim for aggravated damages as follows:

“Particulars of aggravated damages

7. The Plaintiff’s hurt and harm occasioned by reason of the publication of the matter complained of has been aggravated by the following matters:

(a) the Plaintiff’s knowledge of the falsity of the imputations (as pleaded below);

(b) the Defendant’s failure to apologise for the publication for the matter complained of despite the Plaintiff’s request for him to do so in a letter from the Plaintiff’s solicitors, sent from HWL Ebsworth Lawyers to the Defendant by email ([email protected]) at 2:47pm on 5 October 2018 and by express post;

(c) the Plaintiff’s knowledge that the publication by the Defendant was made:

(i) maliciously, knowing it was false, or with reckless indifference to its truth or falsity;

(ii) with the intent to injure the reputation of the Plaintiff;

(d) the Defendant had no information to support the allegation made or alternatively insufficient information to justify the making of the allegation;

(e) the Defendant had made the allegation previously to the Plaintiff, who had denied it.”

223. In the first decade following the enactment of the uniform legislation, damages were awarded on the basis that the cap applied to general damages whether or not aggravated damages were awarded (Davis v Nationwide News Pty Ltd [2008] NSWSC 693 at [18]-[20]). The first judgment to note that an award of damages could, in appropriate circumstances, take a damages award over the cap was Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89 (at [41]-[42]). Dixon J, Wilson v Bauer Media Pty Ltd [2017] VSC 521, was the first judge to hold that an award of aggravated damages meant that the cap should be dispensed where aggravated damages were awarded. Although Dixon J did not refer to Cerutti v Crestside Pty Ltd, the Court of Appeal, which revised the damages, did so, but without disapproving the interpretation adopted by Dixon J.

224. While the majority of damages assessments in judgments endorse the position taken by Dixon J in Wilson v Bauer Media Pty Ltd, a significant number of damages assessments for defamation are made without referring at all to the impact of the award of aggravated damages on the cap, even though such an award is being made: Al Muderis v Duncan (No 3) [2017] NSWSC 726; Bowden vKSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig & Chapman [2019] NSWDC 98 at [304] – [319].

225. Other judgments have noted the difficulty without expressing a view: Gayle v Fairfax Media Publications Pty Ltd (No 2); Gayle v The Age Company Pty Ltd (No 2); Gayle v The Federal Capital Press of Australia Pty Ltd (No 2) [2018] NSWSC 1838 at [42] (however, aggravated damages were not awarded).

226. The most recent judgment to award aggravated damages, Hanson‑Young v Leyonhjelm (No 4) [2019] FCA 1981, makes no mention of this controversy, or of Wilson v Bauer Media Pty Ltd (although it does refer to Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496) but revealingly displays a pro-Cerutti v Crestside Pty Ltd approach at [231], in referring to a submission that the cap had not been exceeded.

227. The absence of Australia-wide agreed principles in relation to essential elements such as the quantum of damages creates uncertainty that undermines uniformity in defamation law, particularly in relation to costs-related issues such as sections 18 and 40 of the uniform legislation.

228. This was a publication to a handful of persons who were on the same team, so to speak, as the plaintiff. Hardly anyone else at the meeting knew who he was. Awards for slander are generally significantly lower than for written publications. As a slander, its effect was very limited in time. The words were spoken in a highly charged atmosphere of generalised hostility.

229. Taking the holistic approach recommended by McCallum J in Gayle v Fairfax Media Publications Pty Ltd (No 2); Gayle v The Age Company Pty Ltd (No 2); Gayle v The Federal Capital Press of Australia Pty Ltd (No 2) (albeit in relation to multiple publications), I would have awarded $15,000 in general damages.

Should aggravated damages be awarded?

230. This was an angry and rowdy meeting, where the words in question were spoken in the course of some hostile exchanges between the defendant and the opposing (and unsuccessful) party. This followed two earlier confrontations between the plaintiff and defendant, when the plaintiff unsuccessfully sought to hand in the proxy votes. The defendant was a poor public speaker and out of his depth.

231. Failure to apologise in relation to slanders should, in my view, be viewed with caution. In trials, defendants often tell the court that, where proceedings have been commenced long after the slander was published, they have trouble remembering what was said, particularly where there was hostility on both sides, which makes apology for what was said a difficult issue.

232. However, such awards have been made. In Cush v Dillon; Boland v Dillon (2011) 234 CLR 298, the plaintiff had to seek an extension of time in order to commence proceedings and the matter complained of was three sentences forming part of a very lengthy conversation with one person, the relevant part of which the defendant no longer recalled. Although the first instance judge observed that “damages should be so minimal as to be negligible” (Cush v Dillon; Boland v Dillon [2009] NSWDC 21 at [87]), aggravating factors in the damages, arising from failure to apologise (at [82]), took the award up to $5,000 for each plaintiff.

233. In the present case, where angry words are spoken and hostility appear to have been shown on both sides, I would not have awarded aggravated damages, notwithstanding the failure to apologise and other factors particularised. If I had awarded such a sum, I would have limited that award to $5,000.

Costs

234. I have reserved the issue of costs.

Orders

1. Judgment for the defendant.

2. Costs reserved, with liberty to apply.

3. Exhibits retained until further order.

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Amendments

21 January 2020 - Typographical error in Representation field.

Decision last updated: 21 January 2020