Greek Orthodox Community of South Australia Inc v Pashalis

[2015] SASC 122

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

GREEK ORTHODOX COMMUNITY OF SOUTH AUSTRALIA INC & ORS v PASHALIS

[2015] SASC 122

Judgment of The Honourable Justice Blue

19 October 2015

DEFAMATION - ACTIONS FOR DEFAMATION - COSTS

The defendant is the publisher of the monthly Greek language newspaper “The Paroikos”.  The April 2013 edition contained an article referring to the then priest at the Greek Orthodox Community of South Australia Inc St Nicholas Church at Thebarton.  It alleged that he and the president of the charity for the relief of the poor (understood to be the second plaintiff Elizabeth Georgacopoulos) set up a scheme to deceive and steal from naïve women at the church to the extent of more than $250,000.  It said that it was suspected that the crippled president of Franklin Street (understood to be the third plaintiff Evangelos Bogias) and his known clique were also involved in the scheme.

The Greek Orthodox Community, Mrs Georgacopoulos, Mr Bogias and members of the Community’s executive and supervisory committees sue for damages for defamation.

Held:

1.       The article was defamatory of Mrs Georgacopoulos (at [48], [62]-[64]).

2.       The article was defamatory of Mr Bogias (at [52], [65]-[66]).

3.       The article was defamatory of Mr Ninos (at [56], [73]-[74]).

4.       The article was not defamatory of the Greek Orthodox Community itself or of the remaining plaintiffs (at [59], [71]-[72]).

5.       The defence of qualified privilege fails (at [88]-[91]).

6.       Damages awarded in favour of Mrs Georgacopoulos and Mr Bogias of $10,000 each and in favour of Mr Ninos of $5,000 (at [95]).

Defamation Act 1974 (NSW) ss 22, 28, referred to.
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30; Carson v John Fairfax & Sons Ltd (1993) 113 ALR 577; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59; Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; Echo Publications Pty Ltd v Tucker & Ors; Fast Buck$ v Tucker & Anor (No 3) [2007] NSWCA 320; Griffith v Australian Broadcasting Corporation [2010] NSWCA 257, discussed.
Austin v Mirror Newspapers Ltd [1986] AC 299; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; Consolidated Trust Co. Ltd. v. Browne (1948) 49 SR (NSW) 86; David Syme v Canavan (1918) 25 CLR 234238; du Bost v Beresford (1811) 2 Camp 510 ; Hayward v Thompson [1982] QB 47; John Fairfax & Sons Ltd v Vilo (2001) 52 NSWLR 373; Jozwiak v Sadek [1954] 1 WLR 275; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Letham v Rank (1912) 57 SJ 111; Lower Murray Urban and Rural Water Corporation v Di Masi, Belbin & Marciano [2014] VSCA 104; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; Morgan v Odhams Press [1971] 1 WLR 1239; Parmiter v Coupland (1840) 6 M & W 105; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; Reynolds v Times Newspapers Ltd [2001] 2 AC 127; Sands v Channel Seven Adelaide Pty Ltd & Anor [2010] SASC 202; Slayter v The Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1; Theophanus v Herald and Weekly Times (1994) 182 CLR 104; Toogood v Spyring (1834) 1 Cr M & R 181; Tolley v Fry [1930] 1 KB 467; Villiers v Monsleyd (1769) 2 Wilson 403, considered.

GREEK ORTHODOX COMMUNITY OF SOUTH AUSTRALIA INC & ORS v PASHALIS
[2015] SASC 122

BLUE J:

1. This is an action for damages for defamation.

2. In the April 2013 edition of The Paroikos, which is published in the Greek language by the defendant Nicholas Pashalis, an article appeared on page 1 relating to the first plaintiff the Greek Orthodox Community of South Australia Inc.

3. The article referred to the then priest at the Community’s St Nicholas Church at Thebarton and alleged that he and the president of the charity for the relief of the poor at St Nicholas had set up a scheme to deceive and take money from naive women at the Church to the extent of more than $250,000, keeping the victims quiet with threats of excommunication and hell. The plaintiffs’ case is that the second plaintiff Elizabeth Georgacopoulos was the person who readers of the article would have understood was referred to as the president of the charity for the relief of the poor and the article is defamatory of her.

4. The article said that it was suspected that the crippled president of Franklin Street and his known clique were also involved in the scheme. The plaintiffs’ case is that the third plaintiff Evangelos Bogias was the person who readers would have understood was referred to as the crippled president of Franklin Street, the fifth to sixteenth plaintiffs (amongst others) were the persons who readers would have understood were referred to as his clique and the article is defamatory of them.

5. The plaintiffs’ case is that readers of the article would have understood that the first plaintiff had been involved or complicit in or had condoned the scheme and the article was defamatory of it.

6. The defendant Mr Pashalis admits publication but denies the pleaded imputations or that they were defamatory of the plaintiffs. The defendant pleads statutory qualified privilege.

   Background

7. The first plaintiff the Greek Orthodox Community of South Australia Inc (the Greek Orthodox Community or the Community) is an association incorporated under the Associations Incorporation Act 1985 (SA). It was founded in 1930. Its objects include the provision of religious, moral and educational instruction in the Greek Orthodox faith, the establishment and maintenance of a Greek Orthodox Church in South Australia, and the promotion and carrying on of philanthropic or charitable work for the benefit of the poor and needy.

8. The Greek Orthodox Archdiocese of Australia (the Archdiocese) had been founded in 1924. Between 1930 and 1958, the Archdiocese and the Community worked in conjunction in relation to Greek Orthodox churches in South Australia.

9. Between 1958 and 1962, a schism developed between the Archdiocese and the Community (and its interstate counterparts) that resulted in their operating separate churches. This schism has continued to the present day.[1] The Archdiocese has 15 churches in South Australia and the Community has four churches. The schism has resulted in strong feelings in the South Australian paroikia (Greek community).

   [1]    See Dr MP Tsounis, The Story of a Community (1990) being exhibit P2.

10. In 1958, the Federation of Greek Orthodox Communities of Australia (the Federation) was formed. The Community was a founding member.

11. The Community has an Executive Committee which is responsible for the management and control of the affairs of the Community. It has 17 members who are elected by the members of the Community and hold office for two years. It meets once a month. In April 2013, the third to thirteenth plaintiffs were members of the Executive Committee.

12. The executive officers of the Community are the President, Vice President, Secretary, Treasurer, Assistant Secretary and Assistant Treasurer. They are elected by the Executive Committee and hold office for two years. In April 2013, the third plaintiff Evangelos Bogias was President and the seventh plaintiff John Ninos was Assistant Treasurer.

13. The six executive officers meet together two or three times a month between Executive Committee meetings. Evidence was not adduced as to this group’s formal name. For ease of reference I refer to it as the Executive Group.

14. There is also a Supervisory Committee responsible for oversight of the Executive Committee. The seven members of the Supervisory Committee are elected by the members of the Community and hold office for two years. A person cannot be a member of both Committees at the same time. In April 2013, the sixteenth plaintiff Vasilios Kalamboyias was a member of the Supervisory Committee.

15. The Community’s principal church is located in Franklin Street, Adelaide and is called the Cathedral of the Archangels of Michael and Gabriel. It also has a church at Thebarton called the Church of Saint Nicholas (Ayios Nikolas), and also churches at Goodwood and Croydon. The churches at Thebarton, Goodwood and Croydon each have a priest or senior priest (archimandrite) under the auspices of the Autocephalic Greek Orthodox Church of America and Australia. The church in Franklin Street has a metropolitan bishop who is responsible for the administration of the internal affairs of the four churches. In the Greek Orthodox Church, there is a hierarchy of priest, senior priest (archimandrite), bishop and metropolitan bishop.

16. As at April 2013, the priest at St Nicholas Church at Thebarton was Father Prokopios Kanavas. He had been brought to Australia from Greece by the Federation in 2010, having earlier held a position with the Jerusalem patriarchate. He was not recognised by the Archdiocese as a priest. Father Prokopios is not now associated with the Community.

17. Each Community church has a Women’s Auxiliary Committee which helps people in the community suffering hardship. As at April 2013, the President of the Women’s Auxiliary Committee at Thebarton had for many years been the second plaintiff Elizabeth Georgacopoulos. 

18. The Paroikos is a Greek language newspaper published by the defendant Mr Pashalis. It was founded in 2005 and is published monthly. As at April 2013, it was distributed in South Australia amongst other places at Archdiocese churches, the offices of the Greek Consul-General at Grenfell Street Adelaide, the Greek Club at Torrensville, Omega Foods at Hindmarsh, Gaganis Bros at Hindmarsh and George the Clipper hairdresser at Brompton.

19. The April 2013 edition of The Paroikos contained an article (the Article) on page 1 under the headline ΠΡΟΣΟXΉ ΔΑΓΚΩΝΟΥΝ (Attention They Bite) as follows:

    ATTENTION – THEY BITE

    Attention! At Ayios Nikolas at Thebarton they bite. Don’t go there. Don’t even pass by. Affirmed accusations which have reached the offices of the newspaper report that the pseudo-archimandrite from Jerusalem together with the president of the charity for the relief of the poor have installed a scheme and deceive poor naive women by taking from them various amounts, which the information say they share between them. The same information says that the amounts the shrewd members of the clique pilfered are not small. The reports inform that perhaps they exceed $250000. They also say that an old woman has “donated” her house to the pseudo-clergyman from Jerusalem. In order not to end up in prison the leaders of the scheme adjure and threaten their victims with excommunication and hell.

    We are informed through a phone call by a known lady who, for the time being prefers to remain anonymous that the accusations have also been made officially to the police. The same lady suspects that the crippled president of Franklin Street and his known clique are also involved. The same lady has assured us that the developments are progressing and so on we will have terrible results.

    We challenge the members of the organisation, if they love their organisation, to investigate and carefully study these accusations and make the necessary decisions. It is not possible for us to tolerate any longer the antics of the clique of the crippled president who, on the altar of his own interests, keeps the community divided into those of the Archdiocese and those of the Community with the bogyman of the omnivorous archbishop.

20. Other articles in the same edition addressed politics, the economic crisis and other matters in Greece; local Greek community politics, social and other matters; local sport; other matters of interest to the local Greek community and international politics generally. It also included advertisements by several local Greek establishments, including Omega Foods.

21. In and from May 2013, the Article was reproduced on the website (the Goxmiga website).

    The trial

22. The trial commenced on 10 June 2015. At the outset, by consent I dismissed the actions of seven of the 16 original plaintiffs.[2]

    [2]    The 4th, 6th, 8th, 10th, 12th, 14th and 15th plaintiffs.

23. John Lesses, a member of the Executive Committee in April 2013 and who succeeded Mr Bogias as President in June 2013, gave evidence about matters of background, publication of the Article and matters relevant to its understanding.

24. John Apostolakis, an employee of the Interpreting and Translating Centre, who is also a member of the Community, gave evidence verifying translations of the Article and of other articles appearing on other occasions in The Paroikos.

25. After the first day of trial, the trial was adjourned on the application of Mr Pashalis, initially on the ground of his health and then to permit a mediation to take place. Mediation was not successful and the trial resumed on 3 September 2015.

26. On 3 September 2015, Mr Pashalis filed an application for dismissal of the action on essentially three grounds: seven of the original plaintiffs did not wish to proceed with the action; the Community’s funds were wrongly being used to fund the bringing of the action; and the imputations contained in the Article were true. I dismissed Mr Pashalis’ application, holding that the mere fact that some of the original plaintiffs did not wish to proceed with their actions was no bar to the remaining plaintiffs continuing with their own action; Mr Pashalis not being a member of the Community had no standing to complain about its expenditure of funds; and the onus of pleading and proving the defence of justification lay on the defendant. However, I treated the third ground of Mr Pashalis’ application as foreshadowing an intention to apply to amend his defence to plead justification. I deferred ruling on such an application until after Mr Pashalis had cross-examined Mrs Georgacopoulos.

27. Mr Apostolakis completed his evidence. Peter Ppiros, who was not in April 2013 a member of the Executive Committee but who is now Vice-President, gave written evidence in chief about matters of background, publication of the Article and matters relevant to its understanding. He was cross examined by Mr Pashalis. I also received written evidence in chief from the plaintiffs Mr Bogias, Mr Mavrogiorgis, Mr Ninos, Mr Angelis, Mr Marinos and Mr Kalamboyias.

28. Mrs Georgacopoulos gave written evidence in chief about matters of background, her role as President of the Women’s Auxiliary Committee, publication of the Article and matters relevant to its understanding. In cross examination, Mr Pashalis put a number of documents to Mrs Georgacopoulos and put a number of propositions to her about monies being given by members of the Community to Father Prokopios.

29. At the end of Mrs Georgacopoulos’ evidence, I heard argument on whether Mr Pashalis should have permission to amend his defence to plead justification. Mr Pashalis did not formulate any specific amendments to his defence but I proceeded on the assumption that he would seek to plead the matters he had put in cross examination to Mrs Georgacopoulos.

30. In Aon Risk Services Australia Ltd v Australian National University,[3] the High Court identified the principles to be applied in determining a late application to amend a defence.

    [3] [2009] HCA 27, (2009) 239 CLR 175.

31. In Channel Seven Adelaide Pty Ltd v Manock,[4] Bleby J (with whom White J agreed) summarised the factors to be taken into account as follows:

    [4]    [2010] SASCFC 59.

    (1)Whether there has been undue delay in making the application;

    (2)The extent to which there will be wasted public resources in granting the amendment;

    (3)Whether there will be inefficiency occasioned by the need to revisit interlocutory processes;

    (4)Whether a trial date would need to be vacated or a trial adjourned;

    (5)Whether there is any satisfactory reason for the delay in applying;

    (6)Whether the point to be raised by the amendment would be raised in any event at the trial;

    (7)The likelihood of strain and uncertainty being imposed on the litigants;

    (8)Whether any further delay would undermine confidence in the administration of civil justice;

    (9)Any other prejudice likely to be suffered by the other party;

    (10)The additional costs likely to be incurred.[5]

    [5] At [46]. (Citations omitted)

32. In this case, the application to amend was made very late. The action was instituted in 2013 and the trial should have been completed in June 2015. The application was made on the day on which the trial was to resume on 3 September 2015. Granting the application would have entailed adjourning the trial and thereby causing substantial prejudice to the plaintiffs. The propositions put to Mrs Georgacopoulos in cross examination were not capable of establishing the truth of the imputations pleaded. In all the circumstances, I refused permission to amend the defence.

33. After this ruling, Mr Pashalis declined to cross-examine the remaining plaintiff witnesses and did not adduce any evidence in his own case.

    Publication

34. The plaintiffs plead that on about 24 April 2013 Mr Pashalis published the April edition of The Paroikos and the Article in particular. Mr Pashalis in his defence admits these allegations.

35. In Dow Jones & Company Inc v Gutnick,[6] Gleeson CJ, McHugh, Gummow and Hayne JJ said:

    Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act - in which the publisher makes it available and a third party has it available for his or her comprehension.[7]

    [6] (2002) 210 CLR 575.

    [7] At [26].

36. The admission in the defence should be understood as admitting the bilateral act of publication. In any event, the plaintiffs adduced evidence that copies of The Paroikos were available at various Greek establishments in Adelaide. For example, there was evidence that between 50 and 100 copies of The Paroikos were available to the public at each of Omega Foods and Gaganis Bros. Several witnesses other than the plaintiffs gave evidence that they saw the April 2013 edition and the Article. Several witnesses gave evidence that they were telephoned by members of the Greek community who read the Article.

37. The element of publication is established in respect of the Article in The Paroikos.

38. The plaintiffs also plead that Mr Pashalis published, or caused or contributed to the publication of, the Article on the Goxmiga website. Mr Pashalis denies any involvement in the website or publication of the Article on it. The plaintiffs adduced no evidence of such involvement. Publication by Mr Pashalis is not established in respect of the website.

    Imputations

39. The issue as to the meaning conveyed by allegedly defamatory words is determined objectively from the perspective of a fair-minded ordinary reasonable person in the general community reading or hearing the words in their context.[8]

    [8]    Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 298-301 per Mason J (with whom Gibbs CJ, Wilson and Brennan JJ agreed); Sands v Channel Seven Adelaide Pty Ltd & Anor [2010] SASC 202 at [95]-[97] per Gray J (with whom Nyland and Vanstone JJ agreed).

40. Where some persons reading the words have special knowledge not possessed by the community generally of matters that bear upon the meaning conveyed by the words, that special knowledge can, upon sufficient proof, be taken into account in determining objectively the meaning conveyed to a fair-minded ordinary reasonable person with that special knowledge (a true innuendo).[9]

    [9]    Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16,  (2009) 238 CLR 460 at [51] per the French CJ, Gummow, Kiefel and Bell JJ.

1. The plaintiffs plead 12 imputations said to arise from the Article. They plead these as being the natural and ordinary meaning of the words used. Alternatively, they plead a true innuendo by reason of six extrinsic facts known generally to members of the local Greek community.

2. The imputations differ between plaintiffs and I address them separately by reference to those plaintiffs. However, I first address the pleaded extrinsic facts.

3. Evidence adduced by the plaintiffs establishes that the following facts were known generally to members of the South Australian Greek community being the potential readers of the Article:

   1.an “archimandrite” is a senior priest in the Eastern Orthodox Church;

   2.the Women’s Auxiliary Committee of the Greek Orthodox Church of Saint Nicholas is also known as “the charity for relief of the poor”;[10]

   3.Mr Bogias walks with an altered gait;[11]

   4.the principal church of the Community, being the Cathedral of the Archangels of Michael and Gabriel, is located on Franklin Street.[12]

   [10]   This relates in part to the issue of identification of Mrs Georgacopoulos that I address below.

   [11]   This relates to the issue of identification of Mr Bogias that I address below.

   [12]   This relates to the issue of identification of Mr Bogias and of the other individual plaintiffs, apart from Mrs Georgacopoulos that I address below.

4. The plaintiffs plead that a “clique” is a term for a small and exclusive group of people and readers of the article were aware of this. This is not a true innuendo but the ordinary meaning of the word.

5. The plaintiffs plead that it was generally known to members of the South Australian Greek community that the individual plaintiffs were all affiliated with the Greek Orthodox Community and that Mr Bogias was the President, Mrs Georgacopoulos was the President of the Women’s Auxiliary Committee of the Greek Orthodox Church of Saint Nicholas and the other individual plaintiffs were members of the Executive Committee or Supervisory Committee of the Community. I address this when dealing with the issue of identification below.

   Mrs Georgacopoulos

6. Mrs Georgacopoulos pleads the following imputations:

   1.Mrs Georgacopoulos, together with the fake senior priest, has set up a scheme to deceive and steal from naive and vulnerable women and share in the proceeds of the scam;

   2.Mrs Georgacopoulos, together with the fake senior priest, has stolen in excess of $250,000;

   3Mrs Georgacopoulos, together with the fake senior priest, has engaged in theft;

   4.Mrs Georgacopoulos, together with the fake senior priest, steals from naive and vulnerable women;

   5.Mrs Georgacopoulos, together with the fake senior priest, intentionally deceives naive and vulnerable women;

   6.Mrs Georgacopoulos, together with the fake senior priest, has taken advantage of an elderly lady, such that she has given her property to Mrs Georgacopoulos;

   7.Mrs Georgacopoulos, together with the fake senior priest, engages in bullying and threatening behaviour;

   8.Mrs Georgacopoulos, together with the fake senior priest, engages in extortion;

   9.Mrs Georgacopoulos associates with a person who falsely identifies himself as a senior priest of the Greek Orthodox Church.

7. I conclude below that Mrs Georgacopoulos was identifiable as the president of the charity for the relief of the poor at St Nicholas at Thebarton.[13]

   [13] See [62]-[64] below.

8. Considered individually and in isolation, each of the first five pleaded imputations are established. However, imputations 1 and 2 cover the field and the next three imputations can be disregarded. Pleaded imputation 7 is also established.

9. The remaining pleaded imputations are not established. As to imputation 6, the Article referred to the elderly lady giving her property to Father Prokopios and not to Mrs Georgacopoulos. As to imputation 8, the Article did not impute extortion as opposed to stealing or deception. As to imputation 9, while the reference to Father Prokopios being a pseudo-archimandrite conveys that he falsely identified himself as an archimandrite and while the Article conveys that Mrs Georgacopoulos associated with Father Prokopios, the sting of the pleaded imputation is that Mrs Georgacopoulos associated with Father Prokopios because, or at least knowing that, he was only pretending to be an archimandrite. This sting is not conveyed by the Article.

   Mr Bogias

10. Mr Bogias pleads the following imputations:

    1.Mr Bogias has been involved or complicit in the conduct identified at items 1 to 8 of [46] above;

    2.Mr Bogias associates with a person who falsely identifies himself as a senior priest of the Greek Orthodox Church.

11. I conclude below that Mr Bogias was identifiable as the crippled president of Franklin Street.[14]

    [14] See [65]-[66] below.

12. Pleaded imputation 1 is established in respect of items 1, 2 and 7 of [46] above.

13. Pleaded imputation 2 is not established.

    The other individual plaintiffs

14. The other individual plaintiffs plead the following imputations:

    1.they have been involved or complicit in the conduct identified at items 1 to 8 of [46] above;

    2.they associate with a person who falsely identifies himself as a senior priest of the Greek Orthodox Church.

15. I conclude below that the “known clique” of the crippled president of Franklin Street was the Executive Group and the only plaintiff in this category is John Ninos.[15]

    [15] See [71]-[74] below.

16. Pleaded imputation 1 is established in respect of items 1, 2 and 7 of [46] above.

17. Pleaded imputation 2 is not established.

    The Greek Orthodox community

18. The Greek Orthodox Community pleads the following imputations:

    1.the Greek Orthodox Community has been involved or complicit in the conduct identified at items 1 to 8 of [46] above;

    2.the Greek Orthodox Community has done nothing to prevent, and has therefore condoned, the conduct identified at items 1 to 8 of [46] above.

19. These pleaded imputations are not established. The thrust of the Article is to impute wrongdoing to Father Prokopios and Mrs Georgacopoulos with the complicity of President Borgias and his Executive Group. Those persons are alleged to have been acting contrary to the interests of, and outside the scope of their authority to act on behalf of, the Community. The Article calls upon members of the Community to investigate the allegations. In these circumstances, the Article does not impute that the Community itself is aware of, let alone complicit in or has condoned, the conduct of the alleged individual wrongdoers.

    Imputations about the plaintiffs

20. The test as to whether the imputation identifies the  plaintiff is objective: it is the understanding that would be formed by the ordinary, reasonable recipient of the communication as assessed by the trier of fact.[16]

    [16]   David Syme & Co v Canavan (1918) 25 CLR 234 at 238 per Isaacs J; Morgan v Odhams Press [1971] 1 WLR 1239 at 1243 per Lord Reid, 1264 per Lord Donovan and 1269-1270 per Lord Pearson.

21. Again, where some persons reading the words have special knowledge of matters that bear upon the meaning conveyed by the words, upon sufficient proof that special knowledge can be taken into account in determining objectively the meaning conveyed as to the subject of the words to a fair-minded ordinary reasonable person with that special knowledge.[17]

    [17]   Consolidated Trust Co. Ltd. v. Browne (1948) 49 SR (NSW) 86 at 89 per Jordan CJ; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 639-643 per Mason and Jacobs JJ (with whom Gibbs and Stephen JJ agreed).

    Mrs Georgacopoulos

22. The evidence establishes that each Women’s Auxiliary Committee of the Community’s churches in South Australia was known in the Greek community as “the charity for relief of the poor” and that in April 2013 Mrs Georgacopoulos was the President of the Women’s Auxiliary Committee of the Community’s Church Ayios Nikolas at Thebarton.

23. Mrs Georgacopoulos gave evidence, which was not challenged and which I accept, that she had been president since 1989, had received many awards from the Greek community and the broader community and was well known in the Greek community. This was corroborated by Mr Bogias who gave evidence that Mrs Georgacopoulos was well known in the Greek community as the president of the charity for the relief of the poor and Mr Ninos who gave evidence that Mrs Georgacopoulos’ committee is well known within the wider Greek community in South Australia.

24. Various witnesses gave evidence that they read the Article and understood that it referred to Mrs Georgacopoulos. Mrs Georgacopoulos also gave evidence that several people told her that they had read the Article and understood that it referred to her.[18]

    [18]   This evidence is admissible notwithstanding the hearsay rule: du Bost v Beresford (1810) 2 Camp 511 at 512 (170 ER 1235) per Lord Ellenborough CJ; Jozwiak v Sadek [1954] 1 WLR 275 at 277 per Ormerod J; Hayward v Thompson [1982] QB 47 and 57 per Lord Denning MR.

    Mr Bogias

25. The evidence establishes that the Community had its headquarters in Franklin Street, that as at April 2013 Mr Bogias was the President of the Community and that, while not crippled, Mr Bogias walks with an altered gait.

26. Various witnesses gave evidence that they read the Article and understood that it referred to Mr Bogias. Mr Bogias also gave evidence that a lot of people telephoned him as President of the Community who were upset as a result of reading the Article.

    The President’s clique

27. The plaintiffs plead that the reference to the President’s “known clique” is a reference to members of the Executive Committee and the Supervisory Committee.

28. The Oxford English Dictionary gives the following definition of the noun clique:

    1(a)A small and exclusive party or set, a narrow coterie or circle: a term of reproach or contempt, apply generally to such as are considered to associate for unworthy or selfish ends, or to small and select bodies who allocate supreme authorities in matters of social status, literature, etc.[19]

    [19]   Oxford English Dictionary, 2nd ed (1989) vol III page 333.

29. The Macquarie Dictionary gives the following definition of the noun clique:

    1.A small set or coterie, especially one that is snobbish exclusive.[20]

    [20]Macquarie Dictionary, 3rd rev ed (2003) page 368.

30. The plaintiffs plead that the word was understood by readers of the Article to mean “a small and exclusive group of people”.

31. The Supervisory Committee was independent of, and charged with the oversight of, the Executive Committee and the executive officers. It is too removed from the President to be characterised as being his clique.

32. The Executive Committee was a large body of 17 members that met only once a month. It is not sufficiently small or exclusive or associated with the President to be characterised as his clique.

33. The Executive Group comprised only five members apart from the President, each of whom was an executive officer and had executive responsibilities as Vice President, Treasurer, Assistant Treasurer, Secretary and Assistant Secretary. It was a small and exclusive group that met with the President on a weekly basis and whose members might be expected to have more frequent contact with the President. It is the obvious body, and the only body, to be characterised as his clique.

34. Leaving aside Mr Bogias, Mr Ninos is the only plaintiff who is at April 2013 was a member of the Executive Group, namely the Assistant Treasurer.

35. I note that the plaintiffs generally gave evidence that the reference to “his known clique” was a reference to the members of the Executive Committee and the Supervisory Committee. However, the only innuendo pleaded about the clique is that a “clique” is a term for a small and exclusive group of people. The meaning conveyed is to be determined objectively and not by reference to the understanding of the plaintiffs or of a recipient.

    Defamatory imputations

36. An imputation is defamatory if it exposes the plaintiff to hatred, contempt or ridicule,[21] or causes the plaintiff to be shunned[22] or otherwise tends to lower the estimation of the plaintiff by the community.[23]

    [21]   Parmiter v Coupland(1840) 6 M & W 105 at 108 (151 ER 340 at 341-342) per Lord Wensleydale.

    [22]   Villers v Monsley(1769) 2 Wils 403 at 404 (95 ER 886) per Wilmot Lord CJ.

    [23]     Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 507 per Brennan J (with whom Gibbs CJ, Stephen, Murphy and Wilson J agreed).

37. The test is objective: it is the understanding that would be formed by the ordinary, reasonable member of the community by reference to community standards as assessed by the trier of fact as to whether it is calculated to injure the plaintiff’s reputation.[24]

    [24]   Slayter v The Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7 per Griffiths CJ (with whom O'Connor and Isaacs JJ agreed); Letham v Rank (1912) 57 SJ 111 at 112 per Farwell LJ; Tolley v Fry [1930] 1 KB 467 at 479 per Greer LJ.

38. The imputations I have found that were conveyed by the Article about Mrs Georgacopoulos are manifestly defamatory:

    1.Mrs Georgacopoulos, together with Father Prokopios, has set up a scheme to deceive and steal from naive and vulnerable women and share in the proceeds of the scam;

    2.Mrs Georgacopoulos, together with Father Prokopios, has stolen in excess of $250,000;

    3.Mrs Georgacopoulos, together with Father Prokopios, engages in bullying and threatening behavior.

39. The imputations I have found that were conveyed by the Article about Mr Bogias and Mr Ninos are manifestly defamatory:

    1.they have been involved or complicit in Mrs Georgacopoulos, together with Father Prokopios, setting up a scheme to deceive and steal from naive and vulnerable women and share in the proceeds of the scam;

    2.they have been involved or complicit in Mrs Georgacopoulos, together with Father Prokopios, stealing in excess of $250,000;

    3.they have been involved or complicit in Mrs Georgacopoulos, together with Father Prokopios, engaging in bullying and threatening behavior.

    Qualified privilege

40. Mr Pashalis pleads the defence of qualified privilege under section 28 of the Defamation Act 2005 (SA) (the Act).

41. Section 28 of the Act relevantly provides:

    28—Defence of qualified privilege for provision of certain information

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

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

    (b)     the matter is published to the recipient in the course of giving to the recipient information on that subject; and

    (c)     the conduct of the defendant in publishing that matter is reasonable in the circumstances.

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

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

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

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

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

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

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

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

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

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

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

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

    Recipient interest or apparent interest

42. The common law defence of qualified privilege (which Mr Pashalis does not plead) recognises as a category of qualified privilege a communication to a recipient having a legitimate interest in receiving it by a person having a reciprocal interest in communicating it.[25] For this purpose, a distinction is drawn between a publication to a class of persons where the publishees have a special interest in the matter and a publication to the general public.[26]

    [25]   Toogood v Spyring (1834) 1 Cr M & R 181 at 193 (149 ER 1044 at 1049-1050) per Parke B.

    [26]   See Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 at [26] per Gleeson CJ, Hayne and Heydon JJ quoted below.

43. The common law in Australia recognises a limited category of communications to the public being communications in relation to government or political matters (the so-called Lange defence).[27]

    [27]   Theophanus v Herald and Weekly Times (1994) 182 CLR 104; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Compare the broader category recognised by the House of Lords in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 which has not been followed by the New South Wales Court of Appeal in John Fairfax & Sons Ltd v Vilo[2001] NSWCA 290; 52 NSWLR 373 at [107]-[112] per Heydon JA (with whom Handley and Giles JJA agreed) and several cases that have followed Vilo.

44. The word “interest” in section 28(1)(a) applies not only to the interest of a particular class of recipients but also to the interest of the public at large when it is in the public interest that the information be communicated to the public.[28] The reference to “interest” in section 28 is therefore broader than the category of communication to a specific class having an interest in receiving the communication referred to at [82] above.[29]

    [28]   In Lower Murray Urban and Rural Water Corporation v Di Masi, Belbin & Marciano [2014] VSCA 104, the Victorian Court of Appeal observed that the factors listed in subsection (3) appear to be drawn from the speech of Lord Nicholls in Reynolds v Times Newspapers Ltd: at [97] per Warren CJ, Tait and Beach JJA.

    [29]   Echo Publications Pty Ltd v Tucker & Ors; Fast Buck$ v Tucker & Anor (No 3) [2007] NSWCA 320 at [7]-[8] per Hodgson JA (with whom Mason P and McColl JA agreed); Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 at [103]-[104] per Hodgson JA (with whom Mason P and McColl JA agreed). See also Austin v Mirror Newspapers Ltd [1986] AC 299 at 312.

45. In Barbaro v Amalgamated Television Services Pty Ltd,[30] Hunt J said of section 22(1)(a) of the Defamation Act 1974 (NSW) which was in the same terms as section 28(1)(a) of the Act:

    The interest or apparent interest of the recipients need not be a proprietary one, nor even a pecuniary one. The word “interest” is not used in any technical sense; it is used in the broadest popular sense, to connote that the interest in knowing a particular fact is not simply a matter of curiosity, but a matter of substance apart from its mere quality as news. The interest must be definite; it may be direct or indirect, but it must not be vague or insubstantial — so long as the interest is of so tangible a nature that it is expedient to protect it for the common convenience and welfare of society, it will come within the privilege afforded by the section.[31]

    [30] (1985) 1 NSWLR 30 at 40.

    [31]   At 40B-C. (Citations omitted)

46. This passage has been approved by the New South Wales Court of Appeal in Echo Publications Pty Ltd v Tucker & Ors; Fast Buck$ v Tucker & Anor (No 3)[32] and Griffith v Australian Broadcasting Corporation.[33]

    [32] [2007] NSWCA 320 at [7]-[8] per Hodgson JA (with whom Mason P and McColl JA agreed).

    [33] [2010] NSWCA 257 at [103]-[104] per Hodgson JA (with whom Mason P and McColl JA agreed). See also Austin v Mirror Newspapers Ltd [1986] AC 299 at 312 per Lord Griffith delivering the judgment of the Privy Council.

1. In assessing whether recipients of the April 2013 issue of The Paroikos had an interest in having information on the subject of the Article within the meaning of section 28(1), it is useful to divide consideration between publication to a limited class and publication to the general public.

2. Publication of the April 2013 issue of The Paroikos was not confined to members of the Greek Orthodox Community. If it had been, it is likely that the publishees would have had a sufficient interest in having information on the subject of the Article. Publication was made to the general public, albeit only Greek speaking readers could read it and only members of the Greek community in South Australia were likely to read it. Members of the Greek community who were not members of the Greek Orthodox Community did not have a substantial interest in having information on the subject of the Article.

3. If information on the subject of the Article involved a matter of public interest, this would be a sufficient interest for the purpose of section 28(1)(a) of the Act.[34] However, the question whether officers of the Greek Orthodox Community were stealing from or deceiving members is not a matter of public interest as opposed to interest to members of the Greek Orthodox Community and the law enforcement authorities.

   [34]   It appears that subsection 28(3) at least was modelled on the factors identified by the House of Lords in          Reynolds v Times Newspapers Ltd [2001] 2 AC 127: see explanatory memorandum at: Lower Murray Urban and Rural Water Corporation v Di Masi, Belbin & Marciano [2014] VSCA 104 at [97] per Warren CJ, Tait and Beach JJA.

   Conduct reasonable in the circumstances

4. Subsection 28(3) of the Act provides a non-exhaustive list of circumstances that the court may take into account in determining whether the defendant’s conduct was reasonable. Section 28(1) provides that the onus of proof of establishing the three elements of the defence lies on the defendant. Mr Pashalis did not give evidence. He did not prove that his conduct was reasonable in the circumstances. During his cross-examination of Mrs Georgacopoulos, it became apparent that Mr Pashalis had received information from certain persons before writing the Article. However, it appears that he did not take obvious steps to attempt to check the sources of his information, including speaking to the police (his Article reporting that matters had been reported to the police), Mrs Georgacopoulos or Mr Bogias.

5. Mr Pashalis has failed to establish the statutory defence of qualified privilege.

   Assessment of damages

6. Mrs Georgacopoulos and Mr Bogias seek damages of $10,000 and Mr Ninos seeks damages of $5,000.

7. In Carson v John Fairfax & Sons Ltd,[35] Mason CJ, Deane, Dawson and Gaudron JJ said:

   Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that "the amount of a verdict is the product of a mixture of inextricable considerations". The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. "The gravity of the libel, the social standing of the parties and the availability of alternative remedies" are all relevant to assessing the quantum of damages necessary to vindicate the appellant.[36]

   [35]   Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44.

   [36]   At 60-61. (Citations omitted).

8. If I assessed damages from first principles, I would assess damages separately in favour of Mrs Georgacopoulos and Mr Bogias in amounts exceeding $10,000. As they seek only $10,000, I award damages in that amount. Assessed from first principles, I would have assessed damages in favour of Mr Ninos of at least $5,000. As he seeks $5,000, I award damages in that amount.

   Conclusion

9. Mrs Georgacopoulos and Mr Bogias are entitled to judgment for damages assessed at $10,000 each and Mr Ninos is entitled to judgment for damages assessed at $5,000.

10. The claims of the remaining plaintiffs are dismissed.

11. I will hear the parties as to consequential orders.