FEDERAL COURT OF AUSTRALIA
Goyan v Motyka [2009] FCA 776
BANKRUPTCY – bankruptcy notice – application to set aside notice – notice claims respondent owes applicant sum by reason of final judgment of other Court – whether notice should be set aside or time for compliance with requirements of it should be extended because sufficient reasons to “go behind” judgment – where applicant contends that legal advisers in earlier proceeding were negligent because applicant and husband did not give evidence at trial and because certain defences were not raised – where applicant has not applied to other Court to set aside final judgment
Held: application dismissed – no reason to make any orders, either setting aside notice or extending compliance with it, by reason of circumstances surrounding final judgment.
BANKRUPTCY – bankruptcy notice – application to set aside notice – notice claims respondent owes applicant sum by reason of final judgment of other Court – whether notice should be set aside or time for compliance with requirements of it should be extended because applicant has counter-claim, set-off or cross demand – where certain publications identified as giving rise to cross demand, being claim for unliquidated damages for defamation – whether applicant “has” cross demand where limitation period has expired – whether applicant has prospect of obtaining extension of time – whether evidence that any cross demand is for amount equal to or exceeding amount of judgment – whether applicant has shown that any cross demand is not one which she could have set up in earlier proceeding
Held: application dismissed – applicant has not shown prima facie case or case with reasonable probability of success.
Bankruptcy Act 1966 (Cth) ss 30, 40, 41
Defamation Amendment Act 2002 No 136 (NSW)
Limitation of Actions Act 1936 (SA) s 48
Limitation Act 1969 (NSW)Corney v Brien (1951) 84 CLR 343 cited
Ebert v The Union Trustee Company of Australia Ltd (1960) 104 CLR 346 discussed
Goyan v Motyka [2008] Aust Torts Reports ¶81-939 discussed
In re Newman; Ex parte Brooke (1876) 3 Ch D 494 cited
Olivieri v Stafford (1989) 24 FCR 413 cited
Petrie v Redmond (1942) 13 ABC 44 cited
Re Ling; Ex parte Ling v Commonwealth of Australia (1995) 58 FCR 129 discussed
Re Sterling; Ex parte Esanda Ltd (1980) 44 FLR 125 referred to
Wenkart v Abignano [1999] FCA 354 citedJ L Goldring, “Going Behind a Judgment” (1973) 47 ALJ 377
MARIA GOYAN v WOLODYMYR MOTYKA
SAD 93 of 2008
BESANKO J
24 JULY 2009
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 93 of 2008
BETWEEN: MARIA GOYAN
Applicant
AND: WOLODYMYR MOTYKA
Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
24 JULY 2009
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The application by the applicant to reopen her case be refused.
2.The application dated 29 April 2008 be dismissed.
3.The second order made by the Federal Magistrates Court on 9 July 2008 be discharged.
Note:Settlement and entry of orders is…
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Details
- Case
- [2009] FCA 776
- Decision Date
CaseChat Overview and Summary
The appeal in Goyan v Motyka was heard by Tobias JA, Giles JA, and Handley AJA, all of whom agreed with the findings and reasoning presented in the initial judgment. The primary issues before the court were whether the Goyans' defense of common law qualified privilege was valid and whether the damages awarded to Dr Motyka and Mrs Ostrowskyj were excessive. Additionally, the Goyans argued that the primary judge's finding of malice against Mrs Goyan was incorrect.
The court examined the evidence and arguments presented by both parties, particularly focusing on the context and content of the defamatory publications. The court held that the Goyans' defense of common law qualified privilege was not applicable because the publications were not made in circumstances of honest opinion or in the public interest. Furthermore, the court confirmed that Mrs Goyan's publications were indeed actuated by malice, which negated any defense based on qualified privilege. Regarding the damages, the court found that the primary judge had properly assessed the amount awarded to Dr Motyka and Mrs Ostrowskyj, considering the nature and impact of the defamatory statements.
The court dismissed the Goyans' appeal, upheld the findings of the primary judge, and affirmed the damages awarded to Dr Motyka and Mrs Ostrowskyj. The final orders of the court included the refusal of the Goyans' application to reopen their case and the dismissal of their appeal, with the Goyans to bear the costs of the appeal.
The court examined the evidence and arguments presented by both parties, particularly focusing on the context and content of the defamatory publications. The court held that the Goyans' defense of common law qualified privilege was not applicable because the publications were not made in circumstances of honest opinion or in the public interest. Furthermore, the court confirmed that Mrs Goyan's publications were indeed actuated by malice, which negated any defense based on qualified privilege. Regarding the damages, the court found that the primary judge had properly assessed the amount awarded to Dr Motyka and Mrs Ostrowskyj, considering the nature and impact of the defamatory statements.
The court dismissed the Goyans' appeal, upheld the findings of the primary judge, and affirmed the damages awarded to Dr Motyka and Mrs Ostrowskyj. The final orders of the court included the refusal of the Goyans' application to reopen their case and the dismissal of their appeal, with the Goyans to bear the costs of the appeal.
Orders
Orders of the court
1. The application by the applicant to reopen her case be refused.
2. The application dated 29 April 2008 be dismissed.
3. The second order made by the Federal Magistrates Court on 9 July 2008 be discharged.
Note:
Background
Background to the litigation
The circumstances of the defamation action in New South Wales are set out in the reasons for judgment of Tobias JA in Goyan v Motyka [2008] Aust Torts Reports ¶81-939. Giles JA agreed with Tobias JA, as did Handley AJA, although Handley AJA added some brief additional comments. Tobias JA described the background to the action in the following way (at 61,370-61,372 [2]-[19]):“On 1 May 2000 the respondents, Dr Wolodymyr Motyka (Dr Motyka) and his mother-in-law Mrs Edvokia Ostrowskyj (Mrs Ostrowskyj), together ‘the respondents’, commenced proceedings against the appellants, Maria Goyan (Mrs Goyan) and Michael Goyan (Mr Goyan), together ‘the Goyans’, alleging that they had published certain defamatory matters relating to the appellants in 1999 and 2000. At a hearing in 2002 pursuant to s 7A of the Defamation Act 1974 (the Act), a jury determined that a number of letters had been published by one or other and, in one case, both of the Goyans, which conveyed imputations defamatory of each of Dr Motyka and Mrs Ostrowskyj. Pursuant to s 7A(4) of the Act, the primary judge, James J, determined whether any of a number of defences pleaded by the Goyans were established and the amount of damages, if any, which should be awarded to each of Dr Motyka and Mrs Ostrowskyj. Relevantly, the only defence that was seriously pressed at the hearing before the primary judge was that of common law qualified privilege and, with somewhat less enthusiasm, unlikelihood of harm (s 13 of the Act). Those defences were rejected. His Honour also found that Mrs Goyan’s publication of the material complained of was actuated by malice. Having rejected the Goyans’ common law qualified privilege defence and having found that Mrs Goyan’s publications were in any event actuated by malice, the primary judge assessed damages in favour of Dr Motyka against each of the Goyans in the sum of $60,000 together, in favour of Mrs Ostrowskyj against Mrs Goyan in the sum of $45,000 and against Mr Goyan in the sum of $15,000, in each case together with interest. The Goyans appeal to this Court to review his Honour’s findings with respect to the defence of common law qualified privilege, including his finding of malice against Mrs Goyan. They also assert that the quantum of damages awarded to each of the respondents was excessive. The factual background of the disputeIn about 1971 Dr Motyka, who lived in Adelaide at the time, helped found an organisation called the Ukrainian Studies Foundation of Australia (the USFA), a company limited by guarantee. Its charter was to promote Ukrainian studies as an academic discipline at a tertiary level. It was, therefore neither a social, community nor cultural organisation. Dr Motyka was one of the original directors of the USFA and served as its chairman from 1990 to 2002. He and his wife moved to Newcastle in about 1979 when he took up an academic position in Accounting at the University of Newcastle. He holds the degree of Doctor of Philosophy in Commerce. Mrs Motyka is a registered medical practitioner. The Goyans also lived in Adelaide. Mr Goyan was a member of the USFA from 1971 and served on its Board in 1987-1988 and 1991. Between about 1976 and 1985 Mrs Ostrowskyj was the head of an organisation known as the Ukrainian Women’s Association of South Australia (the UWA). In about 1985 she moved to Newcastle and in 1987 helped found the Ukrainian Women’s Association, Newcastle and Hunter Region, which she has headed since its inception. Between 1998 and 2001 she was the head of the National Executive of the UWA in Australia. A Mrs Valentina Nakazny (Mrs Nakazny) had served as the Treasurer of the UWA, Newcastle and Hunter Region. However, she was removed from that office and expelled from the UWA some six or seven years before the publication of the matters complained of in this case. Mrs Nakazny was originally named as a defendant in the statement of claim but the proceedings against her were abandoned after she died. It appears that the present litigation emanates from a dispute between the parties over the organisation of the USFA. Mr Goyan and other USFA members in Adelaide believed they had formed the South Australian “branch” of that organisation. They organised themselves accordingly, conducted annual general meetings of the ‘branch’ and elected representatives to act as their chairman, treasurer and so forth. At the times relevant to the litigation, Mr Goyan was serving as the elected chairman of the ‘branch’. South Australian members of the USFA, led by Mr Goyan, sought control over the funds which those members had raised and which were held in an account in the name of the USFA with the Hoverla Ukrainian Credit Co-operative in South Australia (the Credit Co-operative). In late 1998 an officer of the Credit Co-operative forwarded to the USFA in Sydney a copy of a document which it had received, purporting to record that Mr Goyan and a Mrs Berketa had been authorised to operate on USFA’s account with the Credit Co-operative. However, Dr Motyka and the Board of the USFA did not consider there to be ‘branches’ of the organisation: merely that there were some members of the USFA in Adelaide. They considered that the Board should keep control of all of the funds raised in the name of the USFA by its members, wherever they resided. According to the constitution of the USFA, so they claimed, representatives of the organisation could only be appointed by the Board or at the annual general meeting. The Board therefore asserted that so-called elections held with respect to the South Australian ‘branch’ were invalid. The Board further deemed that the South Australian representatives had no power to access the USFA’s account with the Credit Co-operative except with Board approval, which had not been given. Dr Motyka’s evidence on this issue as summarised by the primary judge at [83] was as follows: ‘Dr Motyka gave evidence that there was only one account with the Hoverla Credit Co-operative, an account held by the legal entity being the company even if it contained two ‘components’, an investment account and an operating account, and that the only persons authorised to operate on any component of the account were persons authorised by the Board of the USFA. Dr Motyka denied that there was a local account capable of being operated by members of the USFA in South Australia.’There was disagreement as to Mr [sic] Motyka’s characterisation of the account of the USFA with the Credit Co-operative as being only one account with two components. Mr Goyan believed there to be two accounts, and claimed he was seeking access to only one of them. During the USFA’s Annual General Meeting in Sydney on 30 January 1999 (the January AGM), Dr Motyka made reference to there having been an unauthorised attempt to change the signatories to the organisation’s account. Mr Goyan was at that meeting and took this reference to relate to him although he was not referred to by name. He also complained at the meeting of difficulties with, and inadequate accounting by, the Board. On 25 February 1999 Mr Goyan wrote a letter in English to the Board of the USFA (the 25 February letter) in which he purported to set the record straight regarding the accounts and in which he repeatedly referred to Dr Motyka as a liar. The USFA responded in a letter dated 30 March 1999 written by Dr Motyka in Ukrainian (the 30 March letter). The letter informed Mr Goyan that he had breached the constitution of the USFA in a number of respects, including illegitimately representing himself to be the head of the USFA’s South Australian ‘branch’ and illegally attempting to change the signatories to the USFA’s account with the Credit Co-operative. The letter further alleged that Mr Goyan had been distributing letters, some on USFA letterhead, which made untrue allegations against the Board and its members and which injured the good name and reputation of the USFA. Finally, the letter requested that Mr Goyan appear before the Board in Sydney at its next meeting on 17 April 1999 and contained an offer to pay for his return journey from Adelaide so that he could do so. Mr Goyan responded by letter dated 12 April 1999 in English (the 12 April letter) indicating that he would not be attending the Sydney meeting. In that letter he accused Dr Motyka of being high handed and intimidating and implied that he was attempting to alienate all the members of the USFA in order that he might have access to the organisation’s funds for himself.Mr Goyan did not attend the meeting on 17 April 1999 and was informed in a letter dated 30 May 1999 that the Board had resolved that he be expelled as a member of the USFA.”
Evidence
Evidence Before The Court
The appeal of the applicant and her husband was dismissed with costs.The evidence on the application The applicant tendered 10 affidavits at the hearing before me. I will briefly summarise the contents of those affidavits. Mr Goyan swore an affidavit on 29 April 2008. This affidavit details the background to the dispute with the respondent and asserts that in publishing the material the subject of the defamation action the applicant was responding to serious allegations made against her and her husband by the respondent. Mr Goyan claims that he and the applicant were not properly represented by their counsel in the defamation action. Mr George Mencinsky swore an affidavit on 10 September 2008. He gives a general account of the dispute and the defamation action. He criticises the applicant’s counsel in that action. There is nothing to suggest that any of the material referred to by Mr Mencinsky was not available at the time of the defamation action. Mr Whittaker swore an affidavit on 4 December 2008 annexing an affidavit of Mr Yuri Mencinsky. This refers to certain statements allegedly made by the respondent in 1998 which were said to be defamatory of the applicant and her husband. It is asserted that the statements were conveyed to the solicitors and counsel acting for the applicant in the defamation proceeding. Mr Mencinsky states that he ascertained that counsel for the applicant in the defamation action did not wish to call the applicant as a witness. Mr Whittaker swore an affidavit on 5 December 2008. This affidavit was sworn in support of an application for an adjournment of the hearing. Mr Whittaker swore an affidavit on 22 December 2008. Mr Whittaker exhibits to his affidavit a bulletin of the Ukrainian Studies Foundation in Australia (“USFA”), “Volume 15, July-September 2002” and translations into English of certain passages therein. Mr Sergei Gunko swore an affidavit on 14 January 2009. He is the person who provided the translation of the bulletin article. Mr Goyan swore an affidavit on 15 January 2009. In that affidavit, he identifies a number of publications by the respondent, including the following:1.A letter from the respondent to a newspaper “Vilna Dumka” or “Free Thought” dated 7 December 1998.2.A radio broadcast on SBS radio in January 1999.3.A statement by a Ukrainian priest in January 2001 about what the respondent had told him about the applicant’s husband. Mr Goyan states in his affidavit that he was not aware until January 2009 that publication in South Australia could give rise to a cause of action in defamation in South Australia which could be prosecuted in South Australia. Mr Peter Kravchenko swore an affidavit on 22 September 2008. He sets out allegedly defamatory statements of and concerning the applicant and her husband made by the respondent at the annual general meeting of the Ukrainian Studies Foundation in Australia in January 1999. As I have said, after the hearing on 13 February 2009, the applicant issued a notice of motion seeking to reopen her case so that she could tender further documents. I heard submissions on that application and then reserved my decision. I refuse leave to reopen and I will not receive in evidence the further documents (MFI A11, MFI A12, MFI A13 and MFI A14). The documents are irrelevant to any issue before me.
Decision
Reasons for decision
BESANKO J
I think it is appropriate to proceed on the basis that the applicant puts two submissions. First, the bankruptcy notice should be set aside or time for compliance with the requirements of it should be extended because there are sufficient reasons to “go behind” the judgment against her in the defamation action. Secondly, the bankruptcy notice should be set aside or time for compliance with the requirements of it should be extended because she has a counter-claim, set-off or cross demand which meets the requirements of s 40(1)(g) of the Act.Going behind the judgment debt There is no doubt this Court has the power, in an appropriate case, to go behind a judgment debt in the sense of examining whether, in truth, there was, as it is sometimes put, consideration for the judgment debt. That power may be exercised on an application to set aside a bankruptcy notice (Olivieri at 429 per Gummow J). The power may result in the Court determining that there is, in truth, no consideration for the judgment debt and, although the Court has no power to set aside the judgment of another Court, it may decide to set aside the bankruptcy notice. The Court’s power to inquire into or examine a judgment may involve two steps. First, the Court may ask itself whether there are grounds to inquire into the judgment. Secondly, assuming the answer to the first question is yes, the Court may inquire into the judgment. In certain circumstances, it may be more appropriate for the Court to extend the time for compliance with the requirements of a bankruptcy notice, while an application to set aside the judgment is determined by the Court which entered the judgment, rather than inquiring into the judgment itself. The power to inquire into or examine a judgment is part of the power to set aside a bankruptcy notice and is not the aspect of ordering inquiries under s 30(2) of the Act. The power to inquire into a judgment arises not only in cases where the judgment reflects a pre-existing debt or liquidated claim, but also in cases where the judgment follows from the determination of an unliquidated claim and the judgment itself creates the debt: In re Newman; Ex parte Brooke (1876) 3 Ch D 494; Wenkart v Abignano [1999] FCA 354 at [23]. Plainly, a claim for damages for defamation falls into the latter category. There is a good deal of law on the circumstances in which the Court will inquire into, or examine, a judgment. The circumstances will vary according to the circumstances in which the judgment came to be entered. A Court will be far more inclined to inquire into and examine a judgment entered by default or consent, than it will in the case of a judgment entered after a contested trial on the merits followed by an appeal or perhaps even an unsuccessful application to set aside the judgment to the Court which entered it. Those are in effect the two ends of the spectrum. It has been said that, in the former case, a bona fide allegation that there was no pre-existing debt will be sufficient for the Court to inquire into or examine the judgment (see Corney v Brien (1951) 84 CLR 343 (“Corney v Brien”) at 357-358 per Fullagar J). It has been said that, in the latter case, the Court will not inquire into or examine a judgment unless there is evidence of fraud, collusion or a miscarriage of justice: Petrie v Redmond (1942) 13 ABC 44 at 48-49 per Latham CJ (with whom Rich and McTiernan JJ agreed); Corney v Brien at 356-357 per Fullagar J. The principles must be applied in a flexible fashion, having regard to the myriad of circumstances which may arise (see the discussion by J L Goldring in “Going Behind a Judgment” (1973) 47 ALJ 377).
Ratio Decidendi
Legal Principle Established
Established by: BESANKO J
Full text does not contain this section.