Lesses v Maras

[2017] SASCFC 48

Supreme Court of South Australia

(Full Court)

LESSES v MARAS

[2017] SASCFC 48

Judgment of The Full Court

(The Honourable Justice Blue, The Honourable Justice Parker and The Honourable Justice Hinton)

15 May 2017

DEFAMATION - ACTIONS FOR DEFAMATION

DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE

DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION

Appeal against judgment awarding damages for defamation.

The respondent sued the appellant for defamation in three documents published in June 2011 to members of the Greek Orthodox Community of South Australia.  The respondent pleaded that each publication conveyed the defamatory imputation that he is untrustworthy and one publication (the “Flyer”) conveyed the imputation that he does not care about GOCSA churches.

A District Court Judge awarded judgment in favour of the respondent, assessing damages at $75,000.  The Judge found that each imputation was conveyed and each was defamatory.  The Judge accepted that the publications were made on an occasion of qualified privilege and the defamatory words were sufficiently connected with the privileged occasion but found that qualified privilege was defeated by malice.  The Judge rejected a defence of fair comment in respect of the untrustworthy imputation for similar reasons.  The Judge ordered that the appellant pay 90 per cent of the respondent’s costs on an indemnity basis.

The appellant appeals against the judgment, contending that the Judge erred in finding that the pleaded imputations were conveyed and were defamatory and the defences of qualified privilege and fair comment were defeated by malice.  The appellant appeals against the assessment of damages on the ground that it is manifestly excessive and against the costs order on the ground that the Judge erred by failing to have regard to the impact on him of the amount of the costs awarded.

The respondent cross-appeals against the costs order and contends by alternative contention that the Judge erred in finding that the publications were made on an occasion of qualified privilege and the defamatory words were sufficiently connected with the privileged occasion.

Held by the Court:

1.  The publications did not convey an imputation that the respondent is untrustworthy (at [86], [94] and [106).

2. The Judge correctly found that the Flyer conveyed the imputation that the appellant does not care about GOCSA churches (at [100]).

3. The Judge correctly found that the “does not care” imputation was defamatory (at [120]).

4.  It is not an independent element of the cause of action for defamation that the defamation imputation reach a minimum level of seriousness (at [125]).

5. The Judge did not err in not upholding a defence of triviality under section 31 of the Act (at [129]).

6.  The Judge did not err in concluding that the Flyer was published on an occasion of qualified privilege and the defamatory words were sufficiently connected with the privileged occasion (at [156] and [161]).

7. The Judge did not err in finding that qualified privilege was defeated by malice (at [211] and [216]).

8. Judgment set aside.  Parties to be heard on damages and costs (at [219]).

Defamation Act 2005 (SA) s 28, s 31, referred to.
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; Betfair Pty Ltd v Racing New South Wales [2010] FCAFC 133; Cush v Dillon (2011) 243 CLR 298; Duffy v Google Inc (2015) 125 SASR 437; Ecclestone v Telegraph Media Group Ltd [2009] EWHC 2779; Fleming v Advertiser-News Weekend Publishing Company Pty Ltd [2016] SASCFC 109; Gould v Mount Oxide Mines Ltd (in Liq) (1916) 22 CLR 490; King v John Fairfax & Sons Limited [1983] 1 NSWR 31; Huish v Church Publishing Co Ltd [1966] 2 NSWR 748; NRMA Insurance Ltd v Flanagan [1982] 1 NSWR 585; Papaconstuntinos v Holmes à Court (2012) 249 CLR 534; Roberts v Bass (2002) 212 CLR 1; Ten Group Pty Ltd v Cornes (2012) 114 SASR 46; Toogood v Spyring (1834) 1 Cr M & R 181; Thornton v Telegraph Media Group Ltd [2010] EWHC 1414; Vale v Sutherland (2009) 237 CLR 638; Warren v Coombes (1979) 142 CLR 531, discussed.
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; Atkas v Westpac Banking Corporation (2010) 241 CLR 79; Barrow v Bolt [2015] VSCA 107; Clark v Molyneux (1877) 3 QBD 237; Clines v Australian Consolidated Press Ltd (No 2) [1965] NSWR 1407; Duffield v Arts Council of SA Inc (1981) 27 SASR 540; Entienne Pty Ltd v Festival City Broadcasters Pty Ltd (2001) 79 SASR 19; Enders v Erbas & Associates Pty Limited [2014] NSWCA 70; Guise v Kouvelis (1947) 74 CLR 102; John Fairfax & Sons Ltd v Hook (1983) 72 FLR 190; Leetham v Rank (1912) 57 SJ 111; Littleton v Hamilton (1974) 4 OR (2d) 283; Machado v Underwood [2016] SASCFC 65; Mowlds v Fergusson (1939) 40 SR (NSW) 311; Parmiter v Coupland (1840) 6 M & W 105; Pritchard v Krantz (1984) 37 SASR 379; Villers v Monsley (1769) 2 Wils 403; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 283 CLR 460; Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; Sands v South Australia (2015) 122 SASR 195; Slayter v The Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1; Tolley v J.S. Fry & Sons Ltd [1930] 1 KB 467, considered.

LESSES v MARAS
[2017] SASCFC 48

Full Court: Blue, Parker and Hinton JJ

THE COURT:

1. This is an appeal against a judgment awarding damages for defamation.

2. The respondent, Theo Maras, sued the appellant, John Lesses, in the District Court for defamation. The defamation was allegedly contained in certain passages in three documents published by Mr Lesses in June 2011 to members of the Greek Orthodox Community of South Australia (GOCSA). The passages relied on were:

   1.two passages in a newsletter dated 1 June 2011 published in the first week of June 2011 (the Newsletter):

   No GOCSA General Meeting authorised Messrs T Maras, E Mavrogeorgis and V Elovaris to discuss ecclesiastical issues with the Archdiocese...

   …

   Members should hold T Maras, V Elovaris and E Mavrogeorgis accountable for this travesty of due process.

   2.the following passages in an undated flyer published in the third week of June 2011 (the Flyer):

   Archdiocese Real Estate

   Mr T Maras, Mr E Elovaris and Mr E Mavrogiorgis remain unaccountable for their irresponsible conduct [refer below], which is in breach of their fiduciary obligations to the GOCSA, to the members and of the Act.

   On 19 December 2010 at a Federation meeting Mr T Maras, Mr E Elovaris and Mr E Mavrogiorgis [GOCSA reps] supported the decision without prior approval of GOCSA Executive Committee and/or General Meeting. It put the Community’s churches at risk of closure and/or the assets eventually being sold off…

   …

   Mr Maras commented that he did not care if 3 churches closed. Their decision is in breach of their fiduciary obligations to the GOCSA, to our members and of the Act.

   3.one passage in an email dated 16 June 2011 (the Email):

   Mr T Maras and Mr E Mavrogiorgis are blatantly treating GOCSA Members with contempt!

3. Mr Maras contended that the pleaded passages in each document conveyed the imputation that he is untrustworthy (the untrustworthy imputation), the pleaded passages in the Flyer also conveyed the imputation that he does not care about GOCSA churches (the “does not care” imputation) and each imputation was defamatory of him.

4. The Judge delivered reasons for judgment finding in favour of Mr Maras and awarding general damages of $75,000.[1] The Judge concluded that each alleged imputation was conveyed and was defamatory. The Judge rejected Mr Lesses’ qualified privilege defences at common law and under the Defamation Act 2005 (SA) (the Act). The Judge accepted that the publications were made on occasions of qualified privilege and the defamatory words were sufficiently connected with the privileged occasions. However, the defences were defeated by malice and Mr Lesses’ conduct was not reasonable as required for the defence under the Act. The Judge rejected Mr Lesses’ fair comment defence at common law and honest opinion defence under the Act in respect of the untrustworthy imputation. The Judge rejected Mr Lesses’ justification defence at common law and substantial truth defence under the Act in respect of the “does not care” imputation.

   [1]    Maras v Lesses [2016] SADC 40.

5. The Judge delivered separate reasons for judgment on costs, ordering that Mr Lesses pay 90 per cent of Mr Maras’ costs on an indemnity basis.[2]

   [2]    Maras v Lesses [2016] SADC 57.

6. Mr Lesses appeals against the judgment on liability on the grounds that the Judge erred in finding that the imputations were conveyed and were defamatory; in failing to determine that the claim did not satisfy a threshold of seriousness hurdle and that Mr Maras was unlikely to sustain any harm under section 31 of the Act; in rejecting the qualified privilege defences; and in rejecting the fair comment/honest opinion defences.

7. Mr Lesses appeals against the judgment on quantum on the ground that it is manifestly excessive. He appeals against the costs order on the ground that the Judge erred by failing to have regard to the impact on him of the amount of the costs awarded.

8. Mr Maras cross appeals against the costs order and contends by way of alternative contention that the Judge erred in finding that the publications were made on occasions of qualified privilege and the defamatory words were sufficiently connected with the privileged occasions. He seeks an order that Mr Lesses pay 100 per cent of his costs on an indemnity basis.

   Background

9. Mr Maras was born in 1948 in Greece. His family migrated to Adelaide in 1952. He became a member of GOCSA in 1997. He was a member of the Executive and President from 2001 to 2007. From 2001 to at least 2010, he was a representative of GOCSA at annual general meetings of the Federation of Greek Orthodox Communities of Australia (the Federation).[3] Between 2002 and 2012, he was President of the Federation.

   [3]    On appeal submissions were made by counsel for Mr Maras premised on Mr Maras having ceased to be a GOCSA representative in 2007 when he ceased to be President of GOCSA. However Mr Maras gave evidence that he was asked in 2007 when he ceased to be President of GOCSA to remain as a nominee of GOCSA at the Federation. Mr Elovaris gave evidence that, although he was President of GOCSA after 2007, he attended Federation meetings only as an observer.

10. Mr Lesses’ family emigrated from Greece to South Australia in 1938/39. Mr Lesses was born in 1944. In 1965 he became a member of GOCSA. He was a member of the Executive and Assistant Secretary from 1971 to 1977. He was a member of the Executive and Assistant Secretary/General Secretary  from 1991 to 1997. He was a member of the Executive and Vice President from 2005 to 2007. He was elected to the Executive in 2011 and elected as President in 2013.

11. Vassilis Elovaris was a member of the Executive from 1991 to 2011. He was President from 2007 to 2011. From 2007 to 2011 he attended the general meetings of the Federation but only as an observer, with Mr Maras and Mr Mavrogiorgis acting as GOCSA’s representatives at those meetings.

12. Elias Mavrogiorgis was a member of the Executive and Assistant Secretary of GOCSA between 2007 and at least 2011. He was also General Secretary of the Federation between 2007 and at least 2011.

13. GOCSA was formed in 1930. It was formed to build a church in Adelaide, build and run schools and promote Greek cultural life. At that time, Greek Orthodox Church priests in Australia were under the immediate jurisdiction of a Metropolitan in Australia (although that office was then vacant) and the ultimate jurisdiction of the Ecumenical Patriarch of Constantinople (the Patriarch).

14. GOCSA built a church in Franklin Street Adelaide (the Church of the Archangels Michael and Gabriel). Over the decades it established schools, community centres, an aged care home and a child care centre and engaged in numerous social, sporting and community activities.

15. Until 1958 GOCSA had a good relationship with the Diocese and its Metropolitans. GOCSA employed the priests and provided the church and supporting infrastructure. The Metropolitan supervised the pastoral activities of the priests.

16. In 1958 the Patriarch appointed a new Metropolitan, Metropolitan Ezekiel. Two newly appointed priests refused to account to GOCSA, criticised its councillors and organised the building of churches independently of GOCSA in Norwood and Unley.

17. GOCSA reacted by being instrumental in the formation of the Federation. The other founding members were the Greek Orthodox Communities (Communities) of Sydney, Melbourne and Newcastle. The Federation was subsequently joined by the Communities of Hobart - Tasmania, Wollongong, St Albans, Clayton, East Keilor and Cypriot Sunshine. The Communities of Hobart – Tasmania and Melbourne subsequently left the Federation.

18. At general meetings of the Federation, founding members were entitled to have two representatives (usually the President and Secretary) speaking and voting and other members were entitled to have one representative. Additional Community members were entitled to attend as observers. A President, Vice-President, General Secretary, Assistant Secretary and Treasurer were elected for a two year term from the Community representatives by the Community representatives.

19. In 1959 the Patriarch elevated Australia to an archdiocese: the Greek Orthodox Archdiocese of Australia (the Archdiocese). Metropolitan Ezekiel was elevated to Archbishop. The Archdiocese built additional churches at Thebarton, Port Adelaide and Prospect. The Archbishop introduced “the American Parish System” to convert the Communities into parishes, over which the Archdiocese would be the ultimate authority and the Communities would be required to transfer their church properties to the Archdiocese or its property trust.

20. In 1960 GOCSA severed relations with the Archdiocese. It was followed in due course by other Federation Communities. Archbishop Ezekiel reacted by excommunicating GOCSA’s councillors and declaring the sacraments of priests who did not serve him to be uncanonical. It was arranged that priests who were to serve in Federation Communities churches would be appointed by the Byelorussian Archbishop and the Cypriot Metropolitan.

21. In 1965 GOCSA adopted a replacement Constitution. It vested the management and affairs of GOCSA in the Executive, the members of which were to be elected by GOCSA members every two years. It provided for the President and other officers to be elected by the Executive. It provided for a Supervisory Committee to oversee the Executive and entitled its members to attend Executive meetings.

22. Between 1965 and 1970 GOCSA established additional churches at Bowden (later burnt down and rebuilt at Croydon), Goodwood and Thebarton. The church in Franklin Street was rebuilt and became known as the Cathedral of the Archangels Michael and Gabriel (the Cathedral).

23. In 1970 GOCSA played a leading role in the formation of the Independent (Autocephalic) Federation Church of America and Australia (the Independent Church). The Independent Church’s Archbishop appointed priests to serve in Federation Communities’ churches.

24. From the mid-1960s onwards, steps were taken from time to time to attempt to heal or end the schism between the Greek Orthodox Communities and the Archdiocese (the ecclesiastical issue) by approaches by Federation officers to the Patriarch in Istanbul or the Church of Greece in Athens. The last such approach was in 2007. No real progress was ever made.

25. In 1972 GOCSA’s Constitution was amended to insert new clause 2A to provide that GOCSA was always to remain self-governing, independent and autonomous and not subject to any ecclesiastical, political or other authority. In 1973 its amendment clause was amended to entrench inter alia clause 2A and clause 28 itself.

26. In 2006 or 2007 the Hobart-Tasmania Community left the Federation and its churches became part of the Archdiocese. At some point the Melbourne Community also left the Federation and its churches became part of the Archdiocese.

27. By 2009 there were eight members of the Federation: GOCSA, Sydney, Newcastle, St Albans, Clayton, Keilor, Sunshine and Wollongong. These Communities were having difficulty securing enough priests. At an extraordinary general meeting of the Federation in February 2009, it was decided to pursue ecclesiastic coverage through the Holy Synod of the Church of True Orthodox Christians of Greece (GOX).

28. In October 2009 at the annual general meeting of the Federation, the representatives of the Communities, with the exception of Harry Danalis on behalf of Sydney who abstained, agreed to GOX providing priests to serve in Community churches at Community expense. In November 2009 the President of GOX and Mr Maras as President of the Federation executed an agreement to that effect. In March 2010 each Federation Community member except Sydney joined the Holy Synod of GOX.

29. On 4 July 2010 a general meeting of the Sydney Community decided that the Sydney Community would not join the Holy Synod of GOX. On 19 July 2010 Mr Maras as President of the Federation and the Presidents of five of its Communities signed and issued an open letter. The letter said that the Federation declared for a final time that it had exhausted all possibilities of finding a solution to the ecclesiastical issue with the Archdiocese; the silence of the Archdiocese in response to Federation overtures had led the Federation to look for an alternative solution by continuing negotiations with GOX; the Federation had asked all Communities to put in their proposals for integration with GOX and all proposals were included in the final documented agreement; and the Federation accepted Sydney’s decision and would continue with the collaboration for the progress of the whole Community.

30. On 23 July 2010 Mr Danalis on behalf of the Sydney Community wrote to the Federation complaining about the issue of the open letter. He requested that his letter be published in the Greek press and circulated to all Communities, failing which he would do so himself.

31. On 6 October 2010 three members of the Sydney Community’s executive committee met with representatives of the Archdiocese with a view to its re-joining  the Archdiocese. At a second meeting it was requested that the issue be resolved nationally with the Federation’s participation.

32. On 27 October 2010 Mr Maras in his capacity as a member of the Foundation for Hellenic Studies attended a meeting with the principal of St George College at Thebarton to discuss Greek language education. The College is one of the Archdiocese’s schools. Bishop Nikandros of the Archdiocese was present and at the end of the meeting asked Mr Maras why the Federation was not prepared to talk to the Archdiocese about getting together. Mr Maras asked whether this was Bishop Nikandros’ idea or it was coming from the Archbishop. He told Bishop Nikandros that, if he wanted Mr Maras to raise the issue with the appropriate authorities, he should send him a letter.

33. Bishop Nikandros wrote to Mr Maras saying that he had authority from the Archbishop to discuss reconciliation. On 29 November 2010 Mr Maras replied saying that he would raise the issue of a meeting with the Archdiocese at the next general meeting of the Federation.

34. On 14 December 2010 there was a monthly meeting of the Executive. The minutes record that Mr Elovaris pointed out that at the 16 November meeting he had recommended – not proposed – that Mr Maras and Mr Mavrogiorgis remain as representatives of GOCSA on the Federation and that Mr Maras had since agreed to represent GOCSA on the Federation. No mention was made of any overtures from the Archdiocese.

1. On 19 December 2010 the annual general meeting of the Federation was held. The minutes record the following. Mr Maras reported on his communications with Bishop Nikandros. The Sydney Community representatives reported on their dissatisfaction with the agreement with GOX and their negotiations with the Archdiocese. There was heated discussion between the Sydney Community members and some other representatives. Mr Danalis moved and Mr Tsimilos of Sydney seconded a motion that the Federation participate with the Sydney Community in the discussions with the Archdiocese. Mr Mavrogiorgis moved a counter motion that in the event of future action of going to the Archdiocese in a deputation, representatives of the Federation will participate. This infuriated the Sydney Community members, who walked out. After further discussion, the remaining representatives unanimously endorsed the counter motion. The minutes record that at this point Mr Maras departed and the Vice President took the chair, although Mr Maras gave evidence that he departed before the counter motion was accepted (if not before it was put).

2. Mr Mavrogiorgis in accordance with usual practice prepared minutes of the meeting in Greek and electronic signatures of Mr Maras and himself were applied to them (the Federation Minutes). Employees of GOCSA translated the minutes into English and applied electronic signatures of Mr Maras and Mr Mavrogiorgis to those minutes. The English version recorded the resolutions moved by Mr Danalis and Mr Mavrogiorgis in the following terms:

   Mr Danalis suggests that the Federation must participate with the Sydney Community in the discussions with the Archdiocese, that have already commenced for the resolution of the ecclesiastical issue. Mr Tsilimos seconded.

   Mr Mavrogiorgis counter-proposes that in future, a group of representatives from the Federation should also participate in the negotiations with the Archdiocese. Mr Zaphiris seconded. (At this point the delegates from Sydney depart).

   A discussion ensues about the counter-proposal that was unanimously endorsed. (At this point Mr Maras departs due to other commitments, and Mr Nicholaou takes the chair).

3. Evidence was given at trial that the Greek version contained words designating “in the event of future negotiations” as opposed to “in future” in the English version.

4. On 20 December 2010 Mr Mavrogiorgis issued a press release in Greek on Federation letterhead bearing the electronic signatures of Mr Maras and Mr Mavrogiorgis (the Press Release). The Press Release said that four resolutions were passed unanimously at the Federation AGM which were set out in four numbered paragraphs. The fourth paragraph (the fourth resolution) was to the effect that the Federation renewed its old decision regarding the ecclesiastical issue and unanimously resolved to include a delegation of the Federation in future negotiation with the Archdiocese.

5. The Press Release was reproduced in the Greek Community Tribune newspaper in its January 2011 edition. That newspaper also published a photo taken at a reception hosted by Premier Mike Rann for the Greek Deputy Foreign Minister, showing “Mr Theo Maras in a warm handshake with Bishop Nikandros” with Premier Rann in the middle.

6. In late January or February 2011 Evangelia Lesses telephoned Mr Maras to express her concern about the Goodwood church which the Lesses attended. Mr and Mrs Lesses had a good long-standing relationship with Mr Maras and they spoke socially every two or three weeks. Mr Lesses’ and Mr Maras’ families both came from Icaria, Mr Maras’ grandfather and Mr Lesses’ father had enjoyed a good friendship and Mr Lesses and Mr Maras respected each other.

7. Mrs Lesses told Mr Maras that people were expressing concerns about the priests that were coming and going from the church and people were afraid that the Goodwood church was going to close because it was always the first church to be targeted. She talked about Father Tsitsis who served at the Goodwood church, was then removed to the Croydon church, and was sacked without reason because he was doing a very good job and people loved him.

8. Mr Maras was initially calm but became angry and raised his voice. Mrs Lesses became upset and raised her voice. Mr Lesses approached the telephone, which Mrs Lesses put on loudspeaker. Mrs Lesses said that if they kept going along this way they were going to have their churches closing. Mr Maras said:

   I don’t care if all the churches close except for one

   (the Cathedral in Franklin Street being the exception) (the 3 churches comment).[4]

   [4]    Mr Maras said in evidence that he did not recall the phone call and denied saying these words but the Judge found that he did and that finding is not challenged on appeal.

9. There is an issue whether Mr Lesses perceived at material times that Mr Maras was conveying that this was his view or was conveying exasperation and that this was not his view, which is addressed below.

10. On 8 February 2011 there was a monthly meeting of the Executive. The minutes record that Nick Saripasoglou asked how the ecclesiastical issue had come up at the Federation meeting, since he had been told at the December Executive meeting that it would not be raised and the sole purpose of the Federation meeting was elections; and Mr Mavrogiorgis distributed the Federation Minutes. The resolutions made by the Federation on 19 December had not been discussed with the Executive before the 19 December meeting.

11. Evangelous Bogias read the Press Release reproduced in the Greek Community Tribune. He spoke in due course to Mr Saripasoglou, who in due course gave to him a copy of the Press Release and the Federation Minutes. In due course Mr Bogias told Mr Lesses about the developments and gave him the Press Release and the Federation Minutes.

12. On 9 May 2011 Mr Elovaris sent an open letter to GOCSA members in Greek and English. He expressed strong support for the arrangement with GOX, saying:

    For quite some time now, the Community’s churches have been under the spiritual authority of the Holy Synod of the Genuine Orthodox Church of Greece; something that, naturally, has annoyed the church establishment in Australia. The Holy Synod has provided for the needs of the churches with new priests, and our co-operation with it is in a good and creative spirit.

    Every one of us – the President, members of the Management Committee, the ordinary rank and file members and the honorary members – has a duty to embrace the new priests and imbue them with the spirit and tradition of the Community institution…

    …The churches belong to the Community and I hope that we attend them for precisely that reason – not because we like one or the other priest.

13. On 22 May 2011 an extraordinary general meeting of the Federation was held to discuss the ecclesiastical issue and continued cooperation with Archbishop Afxentios (GOX). The minutes record the following. Representatives of the Sydney Community were not invited because of the purpose of the meeting. A resolution was passed unanimously to cease any cooperation with GOX and release a public announcement. A resolution was passed unanimously that the Federation should examine ways to reinforce the Independent Church. The decision was to be communicated to the executive committees of the member Communities for each executive committee to make its decision known in writing to the President of the Federation.

14. On 24 May 2011 there was an extraordinary meeting of the Executive. The minutes of the meeting were not tendered but the resolution made by the Federation on 22 May was discussed. That resolution had not been discussed with the Executive before the 22 May meeting.

15. On 29 May 2011 the annual general meeting of GOCSA was held. Before the meeting, Mr Lesses copied and pasted the Federation Minutes and Press Release into a composite two-page document. He handed out copies to members on their arrival. Mr Elovaris directed him to stop doing so.

16. The minutes of the annual general meeting record the following. The minutes of the May 2010 annual general meeting and the September 2010 special general meeting were read out in full.  Mr Elovaris read out in full his President’s report. He announced the decision of the Federation to cease to abide the agreement with GOX and explained why. Mr Maras gave a report as President of the Federation. There was debate whether the motion to receive Mr Elovaris’ President’s report should be put to the meeting and then discussed or the report should first be discussed and then the motion put to the meeting. The motion was put before discussion and it was resolved that the report be received. There were then questions to the President’s report.

17. The minutes record that Mr Lesses proposed that 83 new members be approved by the annual general meeting. Mr Elovaris said that due process had not been carried out and the Executive at its meeting on 10 May did not accept the members as proper procedure had not been followed. Carlene Vasilakis Starr asked to give a report as President of the Supervisory Committee but was not permitted to do so.

18. The minutes record that Vasili Roubanis said that at the meeting on 19 December 2010 the Federation discussed that they should start talks with the Archdiocese and enquired why then GOX had been invited here. He asked when was Mr Maras saying the truth: was it now or was it when he speaks to Bishop Nikandros. Mr Maras referred to the events that happened with the Sydney Community and said that the Federation needed to remain united. He said that his meeting with Bishop Nikandros was incidental to a meeting about teaching the Greek language.

19. The minutes record that Mr Bogias said that previous visits to the Patriarch had gone nowhere and it had been said that they were not to try again. He referred to the Press Release referring to continuing talks with the Archdiocese. He tabled a proposal that GOCSA remain with GOX and cease talks with the Archdiocese. He said that the Federation had failed and proposed that there be a secret ballot on the motion that GOCSA in future be represented at the Federation by the elected President and Secretary of GOCSA. He was answered that these were both issues for the Federation.

20. On 31 May 2011 the Greek Herald published a copy of a Memorandum of Understanding between the Sydney Community and the Archdiocese.

21. On 1 June 2011 Mr Lesses drafted the Newsletter. He caused it to be emailed later that week or early the following week by members of the Coalition Supporting the Community Institution to those GOCSA members whose email addresses he had. He had between 60 and 70 such email addresses.

22. On 4 June 2011 Neos Kosmos, a newspaper aligned with the Archdiocese, published an article entitled “Archdiocese opens door to unity in SA”. It referred to the announcement the previous week that GOCSA had severed ties with GOX and to the Sydney Community having entered into an agreement with the Archdiocese subject to ratification by members. It said that the Archdiocese had extended an invitation to the Federation to bridge the current divide. It published a copy of Mr Maras’ 29 November 2010 letter to Bishop Nikandros. It said that Mr Maras had denied any dialogue between GOCSA and the Archdiocese on SBS radio on 26 May but Bishop Nikandros said this was untrue. It quoted Bishop Nikandros as saying that the meetings at St George College were not incidental as Mr Maras had claimed.

23. On about 15 June 2011 Mr Lesses drafted the Flyer. He caused it to be emailed to those GOCSA members whose email addresses he had. On 16 June 2011 Mr Lesses drafted the Email. He caused it to be emailed to those GOCSA members whose email addresses he had.

24. On 30 June 2011 Nick Manos caused a letter to be emailed to members of GOCSA. He expressed concern about a lack of disclosure of Community affairs to the Executive and Supervisory Committees and an associated lack of accountability. He referred to reports that on 19 December 2010 the Federation had unanimously agreed to discussions on the ecclesiastical issue with the Archdiocese. He characterised this, if true, as a betrayal and stab in the back for GOX, which the President of GOCSA had praised in his letter of 9 May. He asked whether the representatives of the Communities had directions from the Executive or a general meeting to vote for a resolution that amounted to a betrayal of GOX. He expressed concerns about entering into a contract with the Archdiocese.

25. On 3 July 2011 elections were held to elect the 17 members of the Executive. Mr Lesses and 16 other members of the Coalition Supporting the Community Institution stood for election. On 6 July 2011 the Executive elected the office holders. Mr Lesses was one of the nominees for President but Nick Portellos was elected President. Mr Bogias was elected Vice President.

    The trial and reasons for judgment

26. Mr Maras gave evidence, called Mr Elovaris to give evidence and called Michael Abbott QC to give reputation evidence. Mr Lesses gave evidence and called Mr Bogias, Peter Ppiros, Mr Manos, Ms Vasilakis Starr, Mrs Lesses and his son Kosmas Lesses to give evidence.

27. The Judge in his reasons for judgment set out a chronological narrative under the heading Background Facts. The Judge did not explicitly make credit or reliability findings about the evidence of the witnesses and did not refer, other than in passing, to the evidence of some of the witnesses. During the course of the chronological narrative the Judge made findings about disputed issues concerning Mr Lesses’ state of mind and, to a lesser extent, disputed objective facts.

28. The Judge found that the untrustworthy imputation was conveyed by each of the three documents and the “does not care” imputation was conveyed by the Flyer. The Judge found that each of the untrustworthy and “does not care” imputations were defamatory.

29. The Judge found that the documents were published on an occasion of qualified privilege and that the defamatory passages were sufficiently connected to the privileged occasion. The Judge found, however, that malice was established and the conduct of Mr Lesses was not reasonable because he knew the material was untrue or was reckless as to its truth. The defences of qualified privilege therefore failed.

30. The Judge found that the untrustworthy imputation contained suggestions of a factual nature as opposed to opinion; no fair-minded person could honestly express the opinion on the proven facts; and the opinion was not honestly held. The defences of fair comment/honest opinion in respect of the untrustworthy imputation were therefore not made out.

31. The Judge found that Mr Maras did care if GOCSA churches closed and hence the defences of justification/substantial truth in respect of the “does not care” imputation were not established.

32. The Judge said that the untrustworthy imputation was the more serious of the two defamatory imputations found; summarised Mr Maras’ evidence about the effect of the defamation on him; found that he was deeply hurt by it; found that the gravity of the imputations was increased because they were not true (Mr Lesses not seeking to justify the untrustworthy imputation and his justification plea in respect of the “does not care” imputation having been rejected); the injury to Mr Maras’ feelings was exacerbated by their former close friendship and the fact that Mr Lesses took advantage of their relationship and personally insulted him about matters he knew Mr Maras was sensitive about; and Mr Lesses was actuated by malice. Taking these and other matters into account, the Judge assessed damages at $75,000.

33. In relation to costs, the Judge reduced Mr Maras’ costs award by ten per cent on account of his failure on the prima facie qualified privilege issues. The Judge awarded costs on an indemnity basis because Mr Lesses unreasonably rejected a filed offer by Mr Maras dated 27 February 2015 to settle the action for $25,000 plus costs to be taxed or agreed plus a retraction and apology.

    Do the imputations arise?

34. The question whether a pleaded imputation is conveyed by the words relied upon in a published document is determined objectively by construing the published words in the manner in which they would be understood by fair-minded, ordinary, reasonable persons in the general community.[5] The imputation must be conveyed by the pleaded words but the pleaded words are to be construed in the context of the publication as a whole against the background of any relevant general knowledge of members of the general community.[6] If the plaintiff wishes to rely on special knowledge possessed by persons to whom the document is published, the plaintiff must plead and prove such knowledge.[7]

    [5]    Sands v South Australia [2015] SASCFC 36, (2015) 122 SASR 195 at [175] per Blue, Stanley and Nicholson JJ; Machado v Underwood[2016] SASCFC 65 at [90] per Kourakis CJ and Nicholson J.

    [6]    John Fairfax & Sons Ltd v Hook (1983) 72 FLR 190 at 195 and 201 per Gallop and Morling JJ; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165-166 per Hunt CJ at CL (with whom Mason P and Handley JA agreed); Ten Group Pty Ltd v Cornes [2012] SASCFC 99, (2012) 114 SASR 46 at [52] per Kourakis CJ, [103]-[104] per Gray J and [147] per Blue J.

    [7]    Sands v South Australia (2015) 122 SASR 195 at [211] per Blue, Stanley and Nicholson JJ; Radio 2UE Sydney Pty Ltd v Chesterton[2009] HCA 16, (2009) 238 CLR 460 at [51] and [60] per French CJ, Gummow, Kiefel and Bell JJ.

35. The process of construction is broadly analogous to the construction of a contract; however there are differences due to the different nature, purpose and context of published words compared to contractual words. The approach to the construction of published words is succinctly summarised by Patrick George in Defamation Law in Australia:[8]

    The meaning of the words is to be determined by the sense in which fair-minded ordinary reasonable persons in the general community would understand the published words.

    The meaning of the words cannot be determined by evidence from the plaintiff or the defendant, but only by the interpretation reached through the ordinary reasonable person’s understanding of the words. In determining this issue, it is vital that the tribunal of fact focuses only on the publication complained of and puts out of its mind the evidence relating to other issues at the trial.

    The ordinary reasonable person is taken to be a person of average intelligence who approaches the interpretation of the publication in a fair and objective manner. The person is neither perverse nor suspicious nor ‘avid for scandal’. There is a limit of reasonableness, so that the ordinary reasonable person does not interpret the publication in a strained or forced or utterly unreasonable way.

    The ordinary reasonable person does not live in an ivory tower, but approaches the interpretation of the publication in the light of the person’s general knowledge and experience of worldly affairs.

    The ordinary reasonable person does not interpret the publication in a precise manner and does not formulate reasons for the meaning which is understood, but rather forms a general impression of the meaning from the words used. As a result, the ordinary reasonable person may imply meanings quite freely and will be prone to do so when the publication is derogatory. The interpretation is not approached in the same way that a lawyer might interpret the words, which would be in a logical, precise or analytical manner, or only draw implications if they are both necessary and reasonable.[9]

    [8]    Patrick George, Defamation Law in Australia (LexisNexis Butterworths, 2^nd ed, 2012) 163-164.

    [9]    Approved by this Court in Ten Group Pty Ltd v Cornes (2012) 114 SASR 46 at [51] per Kourakis CJ; Sands v South Australia(2015) 122 SASR 195 at [175] per Blue, Stanley and Nicholson JJ and Fleming v Advertiser-News Weekend Publishing Company Pty Ltd[2016] SASCFC 109 at [33] per Vanstone, Nicholson and Bampton JJ.

36. On appeal, the question for the court is whether the pleaded imputation is conveyed by the pleaded words: it is not whether the pleaded words are legally capable of conveying the pleaded meaning. It is not necessary before interfering with the trial judge’s construction that an appellant first demonstrate some error in approach as opposed to error in outcome.[10]

    [10] Machado v Underwood[2016] SASCFC 65 at [90] per Kourakis CJ and Nicholson JJ; Fleming v Advertiser-News Weekend Publishing Company Pty Ltd[2016] SASCFC 109 at [32] per Vanstone, Nicholson and Bampton JJ.

1. In Ten Group Pty Ltd v Cornes,[11] members of this Court applied to the construction of words in a defamation case the principles enunciated by the High Court in Warren v Coombes:[12]

   … in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. …

   The duty of the appellate court is to decide the case – the facts as well as the law – for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.[13]

   [11] (2012) 114 SASR 46 at [4] per Kourakis CJ, [86]-[87] per Gray J and [144]-[146] per Blue J. See also Entienne Pty Ltd v Festival City Broadcasters Pty Ltd [2001] SASC 60, (2001) 79 SASR 19 at [38] per Olsson J (with whom Duggan and Williams JJ agreed).

   [12] (1979) 142 CLR 531.

   [13] At 551-552 per Gibbs ACJ, Jacobs and Murphy JJ.

2. In Fleming v Advertiser-News Weekend Publishing Company Pty Ltd,[14] this Court said:

   The appeal to this Court is one by way of re-hearing and it is not necessary to form a concluded view as to whether or not the Judge committed any error in his approach. The following propositions are adapted from the joint judgment of Kourakis CJ and Nicholson JJ in Machado & Anor v Underwood & Anor [2016] SASCFC 65 at [90]:

   The [Judge] has no special advantage on the question whether the words found to be uttered or published carry the pleaded imputation. Although a question of fact, it is a matter of the construction of the words which [the respondents admit were] published. This Court is free to reach its own conclusion unrestrained by any need to defer to the forensic advantage of the [Judge]. Accordingly, we can move directly to the question of whether the ordinary and natural meaning of the words carried the pleaded imputations [rejected by the Judge] without staying to consider whether the [Judge’s] reasons, on a fair reading, manifest [any] error.[15]

   [14] [2016] SASCFC 109.

   [15] At [32] per Vanstone, Nicholson and Bampton JJ.

   The Newsletter

3. The full text of the Newsletter (with the allegedly defamatory words underlined) was as follows:

   “OUR COMMUNITY” – Part 1 of 10

   It is regretful that as a GOCSA member of 46 years I did not have the opportunity to express my concerns at the GOCSA’s highest forum-the General Meeting.

   I apologise that I am now forced to communicate to GOCSA members directly and privately. JK Lesses.

   May 2011 Annual General Meeting

   ‘A Monumental Fiasco’

   A monumental fiasco was witnessed by members at the Greek Orthodox Community of SA [GOCSA] annual general meeting on Sunday 29 May 2011.

   Olympic House opened at 2pm; at 3pm the meeting adjourned with proceedings to commence at 4pm to enable a quorum. The meeting closed at 8.30pm.

   Prior to 4pm the President made an extraordinary public announcement to request and instruct John Lesses to stop distributing the meeting [19/12/10] Minutes and Media Release of the Federation of Greek Orthodox Communities of Australia’s [FGOCA].

   The media release simply cross referenced to the minutes to confirm and reveal that Messrs T Maras, E Mavrogeorgis and V Elovaris attended the meeting. The Media Release at dot point 4 announced:-

   «Ἠ Ὁµoσπονδία ανανέωσε παλιά της απόφαση γύρω από τό το εκκλησιαστικό και ομόφωνα απεφάσισε σε μελλοντικές διαπραγματεύσεις με την ΙεράΑρχειπισκοπή Αuστραλίας θα λάβει μέρος και αντιπροσωπεία της Ομοσπονδίας Ελληνικόν Ορθοδόχων Κοινοτήτων Αuστραλίας.»

   Roughly translated: “The Federation renewed its past decision regarding the ecclesiastical [issue] and unanimously determined in future discussions its representatives would participate with the Holy Archdiocese of Australia [GOAA].”

   This announcement informs us that:-

   ·   FGOCC representatives have been seeking discussions with GOAA for 3-4 years.

   ·   No GOCSA General Meeting authorised the FGOCC representatives to seek discussions with the GOAA.

   ·   As the 2009 GOCSA General Meeting endorsed the FGOCC arrangement for the Genuine Orthodox Church of Greece to provide religious services, the GOCSA’s representatives were not authorised by a General Meeting to severe that arrangement on Sunday 22 May 2011.

   ·   No GOCSA General Meeting authorised Messrs T Maras, E Mavrogeorgis and V Elovaris to discuss ecclesiastical issues with the Archdiocese [GOAA].

   Stand firm for our Community’s autonomy and independence. No way will we go with the Archdiocese!

   Democracy and Free Speech

   Thanks to V Elovaris’ announcement members snapped up the 200 copies. A further 500 copies are now in circulation. That’s democracy and free speech in action.

   ‘Chaotic Management of AGM Business’

   V Elovaris announce on 28 April 2011 that his President’s Report will be posted to members’ homes – Vassili read the report word by tortuous word, line by line at the meeting.

   Members’ were disappointment – the minutes and President’s Report took 1 hour 45 minutes to be read. Many members saw this as a deliberate ploy to waste time.

   Then P Ppiros [Chairperson] failed to follow meeting procedure after the President’s Report i.e. to accept a motion “that the report be received”; and after questions and debate etc. to accept a motion “that the report be adopted”.

   Contrary to procedure both the Chairperson and President insisted: “that the President’s Report be adopted”.

   The meeting erroneously adopted the report, without discussion – this stopped any amendment or an addendum. 

   The ‘adoption’ motion was contrary to meeting rules, undemocratic and deprived members a chance to express a views on that agenda item.

   This resulted in delaying key questions for debate that were raised when members were exhausted. But issues were raised and debated despite the President’s annoyance.

   He displayed arrogance and continually interrupted members who dared to ask questions. Case in point was the Supervisory Committee member who report on the President’s similar behaviour during Executive Committee meetings.

   The member cited Executive and Supervisory Committee members had insufficient information to make decisions, consultation and transparency on the GOCSA’s true state of finances and corporate governance was sadly lacking.

   Members should hold T Maras, V Elovaris and E Mavrogeorgis accountable for this travesty of due process.

   oooOooo

   For the sake of “our Community” please email and/or pass this newsletter on to family and friends.

   By forwarding this email to 3 persons approx. 800 persons will be informed-thank you in anticipation!

   GOCSA EXECUTIVE COMMITTEE
   ELECTIONS VOTE ON SUNDAY 3 JULY 2011:
   Defend “our Community” with your vote
   Please make sure you are financial.

    

   
   

   Next topic Part 2 of 10 – The 83 membership applications
   This newsletter is issued and distributed “Without Prejudice”.
   No GOCSA resources were used for this newsletter.

   Authorised by John K Lesses AM JP [1 June 2011]

4. The Judge gave the following reasons for finding that the untrustworthy imputation was conveyed:

   As to the newsletter, Mr Heywood-Smith submitted that the imputation was no more than an allegation that Mr Maras did not follow due process in discussing ecclesiastical matters with the Archdiocese. Mr Lesses denies that there is an imputation in the document that Mr Maras is untrustworthy.

   This is also a very limited analysis of the document. Elsewhere in the document, which Mr Lesses has pleaded in full and annexed to the Defence and marked ‘B’, Mr Lesses makes it clear that he is asserting that Mr Maras and others were misleading GOCSA members about their activities, they were concealing their real intentions, and were acting without authority. The assertion that Mr Maras did not follow due process should be seen in that light. This is clearly an imputation that he was untrustworthy.

5. Mr Lesses contends that the pleaded passages, considered in the context of the Newsletter as a whole, do not convey the imputation that Mr Maras is untrustworthy.

6. The adjective “untrustworthy” is defined by the New Shorter Oxford English Dictionary to mean:

   Not trustworthy, unreliable, not to be trusted.[16]

   [16] The New Shorter Oxford English Dictionary (Oxford University Press, 4^th ed, 1993) 3515.

7. When applied to a person, the adjective untrustworthy refers with opprobrium to the person’s character, namely that the person cannot be trusted. While a person’s character may be evidenced by an act or acts, untrustworthiness is not a quality of an act or acts but of a person.

8. The two passages relied on by Mr Maras as conveying the pleaded imputation that he is untrustworthy are far removed from each other in the Newsletter and appear under different headings. The first impugned paragraph (the authority paragraph) relates to the authority of representatives in December 2010 to discuss ecclesiastical issues with the Archdiocese. The second impugned paragraph (the due process paragraph) relates to due process at the AGM in May 2011.

9. For reasons that will appear, it is desirable first to consider the meaning and effect of each paragraph separately and then to consider the combined effect of both paragraphs together.

10. The authority paragraph is the fourth dot point in a paragraph that is the third of a sequence of four paragraphs (the resolution paragraphs) addressing the fourth resolution made by the Federation announced in the Press Release that in future discussions its representatives would participate with the Archdiocese. The resolution paragraphs end with an exhortation to members to stand firm for GOCSA’s autonomy and independence from the Archdiocese.

11. The authority paragraph in the context of the resolution paragraphs and the Newsletter as a whole conveys to a reader that Mr Lesses contends that Messrs Maras, Mavrogiorgis and Elovaris as GOCSA representatives at the Federation meeting ought first to have sought authority from GOCSA before agreeing to future discussions of the ecclesiastical issue with the Archdiocese. Merely to suggest that a representative acted beyond his or her authority is not to suggest that the representative is untrustworthy. Untrustworthiness is a character flaw different in nature and degree from a representative acting beyond his or her authority. An important aspect of the context of the authority paragraph is that, on the face of the Newsletter, the action of Messrs Maras, Mavrogiorgis and Elovaris in joining in the Federation resolution was in no sense clandestine: on the contrary it was made public by the issue within 24 hours of the Press Release quoted in the Newsletter. When read in the context of the Newsletter as a whole, the authority paragraph does not give rise to the untrustworthy imputation. Whether Mr Lesses was justified in making the assertion about the need for authority does not arise.

12. The due process paragraph appears as the last of ten paragraphs (the AGM paragraphs) under the heading ‘Chaotic Management of AGM Business’ whose subject matter is the management of business at the AGM on 29 May 2011.  The preceding nine paragraphs make three related complaints about the management of business at the AGM. First, contrary to Mr Elovaris’ previous announcement that his report would be posted to members in advance, Mr Elovaris laboriously read his report word by word, with the reading of the minutes and report taking almost two hours, wasting time and exhausting members who wished to ask questions. Secondly, contrary to due process Mr Elovaris and the Chair insisted on the report being adopted before discussion, precluding any amendment or addendum and further delaying questions and exhausting members who wished to ask questions. Thirdly, contrary to due process Mr Elovaris continually interrupted members who wished to ask questions, including a Supervisory Committee member. These complaints (whether justified or not) are manifestly complaints about “due process”, being the subject matter of the concluding due process paragraph under this heading.

13. The due process paragraph also includes Mr Mavrogiorgis and Mr Maras as responsible for the travesty of due process and a reader of the Newsletter would understand (as it happens correctly) that they were all present at the AGM and participated in its proceedings.

14. The due process paragraph considered separately from the authority paragraph does not give rise to the imputation that Messrs Maras, Mavrogiorgis and Elovaris are untrustworthy. Whether Mr Lesses was justified in making the due process assertion does not arise.

15. It is common ground on appeal that the due process paragraph should be understood as referring to the authority paragraph (as well as the AGM paragraphs) and read in conjunction with it. Although we would not have so construed the Newsletter, we proceed on this basis because it is common ground.  The two paragraphs read in conjunction would be understood as asserting that Messrs Maras, Mavrogiorgis and Elovaris had not followed due process in agreeing to the discussion of ecclesiastical issues with the Archdiocese because they acted without prior authorisation from GOCSA. That their conduct was said to comprise a breach of meeting rules and indeed a travesty of due process, along with the accompanying suggestions about the conduct of the AGM, reinforces that the complaint, or allegation, relates to due process. This is a counter-indication that it is being alleged that they are untrustworthy. Read in conjunction, the authority and due process paragraphs would not be understood as asserting that Messrs Maras, Mavrogiorgis and Elovaris are untrustworthy.

16. The untrustworthy imputation does not arise from the pleaded passages of the Newsletter.

    The Flyer

17. The full English text of the Flyer (with the allegedly defamatory words underlined), together with the parts in Greek as translated by Mr Elovaris at trial into English in square brackets, was as follows:

    ARCHDIOCESE REAL ESTATE

    Mr T Maras, Mr E Elovaris and Mr Mavrogiorgis remain unaccountable for their irresponsible conduct [refer below]), which is in breach of their fiduciary obligations to the GOCSA, to the members and of the Act.

    On 19 December 2010 at a Federation meeting Mr T Maras, Mr E Elovaris and Mr Mavrogiorgis [GOCSA reps] supported the decision without prior approval of GOCSA Executive Committee and/or General Meeting. It puts the Community’s churches at risk of closure and/or the assets eventually being sold off. “The Federation renewed its past decision regarding the ecclesiastical [issue] and unanimously determined in future developments its representatives would participate with the Holy Archdiocese of Australia [GOAA]”. Source: Federation of Greek Orthodox Communities of Australia Media Release 21/12/2010]

    Why did Mr Elovaris try to stop the Media Release from being distributed at the GOCSA Annual General Meeting [29/5/2011]? Why not explain that under Canonical Law, an Archdiocese of Australia’s Parish Church with a 4K radius will take precedence to remain open over a GOCSA church? Mr Maras commented that he did not care if 3 churches closed. The decision is in breach of their fiduciary obligations to the GOCSA, to our members and of the Act.

    NOT FOR SALE!

Franklin Street Cathedral	Croydon Church	George Street, Thebarton	Goodwood Church
[THE PEOPLE SAY NO! TO THE ARCHDIOCESE! Your Grace, leave aside your pretend smile. The community does not negotiate and does not sell holy sites or churches. Take Mr Maras with you, he's all yours.]

COALITION SUPPORTING THE COMMUNITY INSTITUTION

The Flyer contained a reproduction of the photo from the Greek Tribune showing Mr Maras and the Bishop Nikandros shaking hands from which the image of Mr Rann had been removed.

The untrustworthy imputation

1. The Judge gave the following reasons for finding that the untrustworthy imputation was conveyed:

   Mr Heywood-Smith submitted that the imputation in the flyer was no more than an allegation that Mr Maras, with others, acted irresponsibly as office holders. He points out that the word ‘irresponsible’ appears in the first line of the document. That is true, but in the same sentence it is alleged that Mr Maras was ‘in breach of [his] fiduciary obligations to the GOCSA, to the members and of the Act’. It is an allegation that he has not acted in good faith. This is clearly an imputation that he is untrustworthy.

2. Mr Lesses contends that the pleaded passages, considered in the context of the Flyer as a whole, do not convey the imputation that Mr Maras is untrustworthy.

3. Read together, the first, second and fifth impugned sentences comprise a suggestion by Mr Lesses that, by supporting the Federation decision to participate in future developments with the Archdiocese without prior approval of the Executive or a general meeting of GOCSA, Messrs Maras, Elovaris and Mavrogiorgis acted irresponsibly and in breach of their fiduciary obligations to GOCSA.

4. For the reasons given above, the mere fact that Mr Lesses suggested that Messrs Maras, Elovaris and Mavrogiorgis acted beyond their authority does not amount to a suggestion that they are untrustworthy. Again, an important aspect of the context is that, on the face of the Flyer, the action of Messrs Maras, Elovaris and Mavrogiorgis in joining in the resolution of the Federation was in no sense clandestine: it was made public by the issue within 48 hours of the Press Release referred to in the Flyer.

5. The contention that Messrs Maras, Elovaris and Mavrogiorgis acted “irresponsibly” does not connote that they are untrustworthy and involves such a lesser degree of opprobrium that it counters any potential suggestion that they are untrustworthy. The contention that they acted in breach of their fiduciary obligations does not connote that they are untrustworthy. The phrase “fiduciary obligations” is to be construed as understood by fair-minded laypersons as opposed to lawyers. Such persons would have a limited understanding of the expression compared to that of an equity lawyer. In the context of the use of the expression in the Flyer alleging that Messrs Maras, Elovaris and Mavrogiorgis as GOCSA representatives breached their fiduciary obligations by supporting the Federation decision without prior GOCSA approval, such persons would understand (rightly or wrongly) that a representative breaches a fiduciary obligation if the representative acts without the approval of the principal (the second paragraph of the Flyer giving context to the first). This does not entail that they are untrustworthy. Even if an equity lawyer’s understanding were applied, an allegation of breach of fiduciary obligation is not an allegation that the fiduciary is untrustworthy.

6. A reader of the Flyer would expect that, if dishonesty or untrustworthiness were being asserted, this is what Mr Lesses would have asserted rather than irresponsibility and breach of fiduciary obligations. The sting of the allegations in the Flyer is different in nature and degree from any imputation that Messrs Maras, Mavrogiorgis and Elovaris are untrustworthy

7. The untrustworthy imputation does not arise from the pleaded passages in the Flyer.

   The “does not care” imputation

8. Mr Maras contended at trial that the “does not care” imputation arose from the following sentences in the pleaded passage:

   It puts the Community’s churches at risk of closure and/or the assets eventually being sold off.

   ..

   Mr Maras commented that he did not care if 3 churches closed.

   The Judge gave the following reasons for finding that the “does not care” imputation was conveyed:

   As to the second imputation, Mr Heywood-Smith submitted that the imputation in the email is that Mr Maras ‘did not care if 3 churches closed’, which are the words used in the flyer, not that he ‘did not care about GOCSA churches’, which is the imputation alleged by Mr Maras.

   This is a distinction without a difference.

1. Mr Lesses’ primary contention is that there is a critical distinction between saying that Mr Maras commented that he did not care if three churches closed and saying that Mr Maras did not care if three churches closed. The former is only a report of what Mr Maras said and says nothing about Mr Maras’ state of mind; whereas the latter represents that Mr Maras’ state of mind is that he did not care.

2. As juries are daily directed, in general a person’s state of mind can only be inferred from what the person says and does: it is not possible to see directly into the person’s mind. There is nothing in the content or context of the Flyer that indicates to a fair-minded lay reader that Mr Lesses was conveying that Mr Maras’ reported comment was facetious, sarcastic, joking or otherwise not to be taken seriously. On the contrary, the location of the sentence, surrounded by the other pleaded sentences, including that GOCSA’s churches were at risk of closure on any merger with the Archdiocese, positively indicated that Mr Lesses was conveying that Mr Maras’ reported comment represented Mr Maras’ state of mind. Mr Lesses’ primary contention must be rejected.

3. Mr Lesses makes a secondary submission that, if the impugned sentence is to be understood as a statement that Mr Maras does not care if three churches close, that does not convey that Mr Maras does not care about GOCSA churches.

4. The impugned sentence is to be understood in the context of the Flyer as a whole, which included the statement that the 19 December 2010 decision put GOCSA’s churches at risk of closure and the pictures of GOCSA’s four churches at the bottom of the Flyer under the banner “Not For Sale!”. If GOCSA had 100 churches, Mr Maras not caring about three GOCSA churches closing would not have been tantamount to his not caring about GOCSA churches at large. The position would probably be the same if GOCSA had ten churches. By way of analogy, if a bank has 100 or even ten branches, a statement by the bank’s chairperson that he or she does not care if three branches close would not be tantamount to a statement that he or she does not care about bank branches. However, if Mr Maras does not care if three out of four GOCSA churches close, that is tantamount to his not caring about GOCSA churches.

5. The “does not care” imputation was conveyed by the pleaded passages of the Flyer.

   The Email

6. The full text of the Email (with the allegedly defamatory sentence in italics) was as follows:

   Subject: Newsletter

   To all GOCSA members and supporters

   It is regretful that as a GOCSA member of 46 years I did not have the opportunity to express my concerns at GOCSA’s highest forum – the General Meeting. I apologise that I am now forced to communicate to GOCSA members directly and privately. Please on forward this leaflet to all of your contacts who might be concerned about the current situation, whether they be members or not.

   It was outrageous for V Elovaris [GOCSA President] to direct and instruct to stop a 6-month old public Media Release being circulated [i.e. the doc exposed the GOCSA representatives undemocratic attitude and behaviour] to members attending the Annual General Meeting! It’s time to repudiate Elovaris’ junta style democracy. It’s time to take a stand and say NO! – OXI!

   This situation is deadly serious as the current leadership, without consultation with members; or control by the existing Executive Committee; seeks to enter into an arrangement to give the Archdiocese of Australia full control over our churches i.e. that will also lead them to be closed in accordance with canonical law.

   This is not a fear mongering assertion. The full text the Federation of Greek Orthodox Communities of Australia Media Release 21/12/2010 [signed by Mr T Maras and Mr E Mavrogiorgis] is available on request.

   Mr T Maras and Mr E Mavrogiorgis are blatantly treating GOCSA members with contempt!

   Make sure you are financial to be able to vote [you can pay on the day] and attend to vote on 3 July 2011.

   Remember to vote for an Executive Committee candidates [names to be provided after nominations close] who will stand up under adversity and commit to be accountable to and report to the members at a General Meeting before any binding decision is made – not after the decision, as was the case in December 2010!

   Regards

   John

   [John Lesses AM JP]

7. The Judge gave the following reasons for finding that the untrustworthy imputation was conveyed:

   As to the email, Mr Lesses asserts that it means no more than it says, namely, that Mr Maras is ‘treating GOCSA Members with contempt’. This is also an analysis which is too limited. Like the flyer and the newsletter, the email, which Mr Lesses has pleaded in full and annexed to his Defence and marked ‘C’, also alleges misleading, secretive and unauthorised behaviour. This is the context in which the assertion that Mr Maras was treating GOCSA members with contempt should be assessed. This is also an imputation of untrustworthiness.

   These findings do not constitute a breach of the ‘single meaning rule’, as suggested by Mr Heywood-Smith. In any event, the two meanings pleaded by Mr Maras arise from different statements in the document, and they are separate and distinct from each other. There is no allegation of multiple meanings arising from the same statement.

   I reject Mr Heywood-Smith’s submission that an imputation of untrustworthiness is ambiguous. ‘Untrustworthy’ means ‘unable to be trusted’. ‘Trustworthy’ means ‘able to be relied on as honest, truthful or reliable’.  There is nothing ambiguous about these words.

8. Mr Lesses contends that the impugned passage, considered in the context of the Email as a whole, does not convey the imputation that Mr Maras is untrustworthy.

9. The sentence saying that Mr Maras and Mr Mavrogiorgis are treating GOCSA members with contempt must be understood as a reference to their participation, without prior consultation with members or authority from the Executive, in the Federation resolution the subject of the Press Release six months earlier to negotiate an arrangement that could give the Archdiocese control over GOCSA churches.

10. For the reasons given above, the mere fact that Mr Lesses suggested that Messrs Maras and Mavrogiorgis acted beyond their authority does not amount to a suggestion that they are untrustworthy. The suggestion that they treated members with blatant contempt does not connote that they are untrustworthy. Again, an important aspect of the context of the sentence is that, on the face of the Email, their action in joining in the resolution of the Federation was in no sense clandestine: it was made public by the issue within 48 hours of the Press Release referred to in the Email. The Email refers to a junta or undemocratic body: the vice of a junta or undemocratic body is not that it is untrustworthy but that it is autocratic. The sting of the allegations in the Email is different in nature and degree from and negates any imputation that Messrs Maras and Mavrogiorgis are untrustworthy.

11. The untrustworthy imputation was not conveyed by the pleaded passage of the Email.

    Academic debates on appeal

12. Three general matters of principle are debated on appeal. The debates are academic for the reasons that follow.

13. The first topic of debate is that Mr Lesses contends that the pleaded imputations must be conveyed by the pleaded words and Mr Maras cannot rely on other, non-pleaded, passages, although he (and Mr Lesses) can rely on the other passages for context. Mr Maras takes issue with this proposition and contends in any event that, as Mr Lesses pleaded the entire text of the three documents in his defence, Mr Maras can rely on any part of each document as giving rise to the pleaded imputation.

14. This debate is academic for two reasons. First, Mr Maras does not identify any words or passages in any of the three documents which he contends give rise to the pleaded imputations other than the pleaded passages in the context of the document as a whole. Secondly and in any event, if Mr Maras could rely on the words at large in each document, the untrustworthy imputation would not arise from any of those words. For completeness, we reject both of Mr Maras’ academic propositions: a plaintiff is confined to the pleaded words from which it is alleged that an imputation arises (such pleaded words to be construed in the context of the document as a whole). The mere fact that Mr Lesses pleaded the entirety of the documents for context does not change that position.

15. The second topic of debate is that Mr Lesses contends that each document must be construed independently of the other two documents. Mr Maras contends that the three publications are all of a piece, proximate in time and published to the same audience such that the publishees would have read each successive publication in the light of those that went before.

16. This debate is academic for two reasons. First, Mr Maras does not identify any part of the Newsletter which he contends gives rise to the pleaded imputations in the Flyer or the Email if the latter would not in their own right give rise to the pleaded imputations, nor any part of the Flyer which he contends gives rise to the pleaded imputation in the Email. Secondly and in any event, if Mr Maras can rely on a previous document in the manner he contends, particularly taking into account that none of the documents gives rise to the untrustworthy imputation, there is nothing in the previous documents that is capable of making a difference to the construction of the subsequent documents in this respect.

17. The third topic of debate is that Mr Lesses contends that, in the absence of a plea of true innuendo by Mr Maras, the publications are to be judged by reference to the knowledge of the community as a whole and not of a particular section of it such as members of GOCSA. Mr Maras contends that Mr Lesses confuses issues of meaning with defamatory impact, takes issue with Mr Lesses’ contention insofar as it addresses meaning and contends that in any event the case was conducted by both parties on the basis that the recipients of the publications had special knowledge of the history of and issues pertaining to GOCSA.

18. This debate is academic for two reasons. First, Mr Maras does not identify any particular special knowledge held by members of GOCSA which would result in the pleaded passages being construed in a manner and to an effect different to their construction without such special knowledge. Secondly and in any event, whatever degree of knowledge members of GOCSA might have of the history of and issues pertaining to GOCSA, the untrustworthy imputation does not arise from any of the three documents.

    Are the imputations defamatory?

19. An imputation is defamatory if it exposes the plaintiff to hatred, contempt or ridicule;[17] or causes the plaintiff to be shunned;[18] or otherwise tends to lower the estimation of the plaintiff by the community.[19]

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

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

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

20. 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 which are assessed by the trier of fact to determine whether the imputation is calculated to injure the plaintiff’s reputation.[20]

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

    The “does not care” imputation

21. The Judge gave the following reasons for finding that the “does not care” imputation arising from the pleaded words in the Flyer was defamatory:

    Mr Heywood-Smith also argued that the imputation in the flyer that Mr Maras does not care about GOCSA churches could not be considered defamatory because Australia is a secular society and there is no reason to think that Greek Australians are more religious than other Australians. He further submitted that most Greek Australians in Adelaide follow the Archdiocese and they would not see the imputation as defamatory.

    I do not accept this submission either. What would be abundantly clear to even the most casual observer of these events, whatever his or her allegiances may be, is that by his election as President, Mr Maras had been entrusted with the responsibility to further the aims of the Federation. These include the preservation of the independence of the Federation’s communities, and the preservation of the independence of GOCSA churches in particular.

    In that context, an assertion that he does not care about GOCSA churches is likely to damage Mr Maras’ reputation among those people who elected him, and others who shared the views of the Federation.

22. Mr Lesses’ primary contentions are that Australian society would not regard the “does not care” imputation as defamatory because Australia is substantially a secular society; there is no reason to approach Australians of Greek background as being more religious than Australian society generally; and in any event the majority of Australians of Greek background in Adelaide follow the Archdiocese and they would definitely not see the imputation as defamatory. This contention is the minor premise to the major premise of Mr Lesses’ argument referred to above that, in the absence of a plea of true innuendo by Mr Maras, the publications are to be judged by reference to the standards of the community as a whole and not by reference to those of a particular section such as members of GOCSA.

23. Mr Lesses’ major premise need not be considered because his minor premise is misconceived. First, the question whether the imputation is defamatory is not measured according to those characteristics of Australians that represent a numerical majority of the population. For example, if more Australians are female than male and more are Caucasian than otherwise and more are non-religious than religious, the assessment whether an imputation is defamatory is not measured according to the standards of female non-religious Caucasian Australians. To state the proposition is to demonstrate its absurdity. Secondly, the “does not care” imputation does tend to lower the estimation of Mr Maras in the eyes of ordinary, reasonable members of the Australian community at large. Given his role as a representative of GOCSA at the Federation and as Federation President, on the face of the Flyer he was acting contrary to his duties and responsibilities if he did not care about GOCSA churches.

24. Mr Lesses contends that there was no evidence adduced at trial that Mr Maras’ reputation was adversely affected and such evidence as was given (by Mr Abbott QC) suggested the contrary. If it is suggested that this answers the question whether the imputation was defamatory, this contention must be rejected. The test whether an imputation is defamatory is objective.

25. The Judge did not err in finding that the “does not care” imputation was defamatory.

    The untrustworthy imputation

    It is not necessary to consider whether an imputation that Mr Maras was untrustworthy would have been defamatory or the defences advanced in respect of it because that implication does not arise from any of the three published documents.

    Triviality

26. Mr Lesses contends that the Judge erred in failing to consider whether and determine that the claim did not satisfy the threshold of seriousness preliminary hurdle and that Mr Maras was unlikely to sustain any harm under section 31 of the Act.

    Threshold of seriousness

27. Mr Lesses contends that, to succeed in defamation, a defamatory imputation must reach a minimum threshold of seriousness; otherwise the cause of action fails. Mr Lesses relies on the following passage from the judgment of Tugendhat J in Thornton v Telegraph Media Group Limited:[21]

    I accept Mr Price's submission that whatever definition of "defamatory" is adopted, it must include a qualification or threshold of seriousness, so as to exclude trivial claims. I accept this submission for two reasons:

    i) It is in accordance with the true interpretation of Lord Atkin's speech in Sim. It is also in accordance with the decision of Sharp J in Ecclestone with which I respectfully agree;

    ii) It is required by the development of the law recognised in Jameel (Youssef) v Dow Jones as arising from the passing of the Human Rights Act 1998: regard for Art 10 and the principle of proportionality both require it.[22]

    [21] [2010] EWHC 1414.

    [22] At [89].

28. This passage must be understood in light of the submission made by Mr Price for the Telegraph Media Group, which Tugendhat J earlier summarised in the following terms:

    Mr Price for the Defendant submits that there are the following further legal principles to be applied:

    i) The threshold of seriousness: The hypothetical reasonable reader must not be unduly sensitive. So there must be a threshold of seriousness, and that threshold must be interpreted consistently with the Art 10 of the Convention, in particular, with the requirement of necessity in Art 10(2):

    "The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such …, restrictions … as are prescribed by law and are necessary in a democratic society, … for the protection of the reputation or rights of others…"

    Mr Price's primary argument is based on the words of Lord Atkin in Sim v Stretch. Lord Atkin gave a speech, with which the other two members of the Appellate Committee agreed. The ratio of that decision is therefore authority binding on all courts. Mr Price submits that this proposition is supported by the following words of Lord Atkin:

    "That juries should be free to award damages for injuries to reputation is one of the safeguards of liberty. But the protection is undermined when exhibitions of bad manners or discourtesy are placed on the same level as attacks on character and are treated as actionable wrongs".[23]

    [23] At [19]. (Citations omitted)

29. It must also be understood in light of the passage earlier quoted by Tugendhat J from the judgment of Sharp J in Ecclestone v Telegraph Media Group Ltd:[24]

    …a claim for defamation might arise where a claimant is alleged to have expressed views about people with whom he or she disagreed in such violent, excessive or abusive language that ordinary reasonable members of society might think the less of him or her for having done so. There may even be cases where a perceived lack of respect for a particular person in certain circumstances might be actionable in defamation. It seems to me however, that if the opinion expressed is an acceptable one there must be significant latitude given as to the manner in which it is expressed before right-thinking members of society would think the less of the person for expressing either their views, or their opinion of someone with whom they disagree.[25]

    [24] [2009] EWHC 2779.

    [25] At [84].

30. The passage from the judgment of Tugendhat J relied on by Mr Lesses should be understood as merely an elucidation of the requirement that, to be defamatory, an imputation must tend to lower the estimation of the plaintiff by the community and an emphasis that an adverse opinion may be expressed about a person without its having such a tendency. The seriousness of the adverse opinion is obviously a factor to be taken into account in determining whether its expression does tend to lower the estimation of the plaintiff by the community. The passage should not be understood as creating an additional element of the cause of action for defamation.

31. The seriousness of the imputation that Mr Maras does not care about GOCSA churches has already been taken into account in the previous section in concluding that the imputation does tend to lower the estimation of Mr Maras by the community and is defamatory.

    Defence of triviality

1. Proof that the publisher did not have a positive belief in the truth of the defamatory statement, was reckless as to whether it was true or false, bore ill-will towards the plaintiff, was biased or prejudiced against the plaintiff and/or had a motive other than duty or interest for making the publication may (depending on all of the relevant evidence) found an evidentiary inference that an ulterior purpose was the dominant purpose actuating the publication of the defamatory matter.[57] The operation of such evidence is of a different nature to the ordinarily conclusive effect of a finding that the publisher knew or believed that the defamatory statement was untrue under the knowledge of falsity conclusivity principle referred to above.

   [57]  Roberts v Bass (2002) 212 CLR 1 at [76], [78], [84] and [99] per Gaudron, McHugh and Gummow JJ.

2. A plaintiff alleging malice must plead it and provide particulars of the malice.[58]

   [58]  Clines v Australian Consolidated Press Ltd (No 2) [1965] NSWR 1407 at 1409 per Asprey J; Huish v Church Publishing Co Ltd [1966] 2 NSWR 748 at 748-749 per Brereton J; Duffield v Arts Council of SA Inc (1981) 27 SASR 540 at 542-543 per Mitchell ACJ (with whom Zelling and Sangster JJ agreed).

3. Mr Lesses’ contentions that the evidence did not support a finding of knowledge of untruth, that factual findings from which the Judge inferred that he was motivated by malice were against the evidence and the weight of the evidence, that his evidence in cross-examination in relation to Mr Maras’ intent was rendered irrelevant by his evidence in re-examination as to his state of mind in June 2011, and that the Judge relied on mere lack of belief which is not a head of malice can be considered together.

4. In cross-examination, Mr Lesses gave the following evidence:

   Q.He had a deep involvement with GOCSA and the Federation for 10 years from 2001.

   A.    To 2012, yes.

   Q.    Over that time did he make any efforts to keep GOCSA churches open.

   A.    Yes.

   ...  

   Q.    As at June 2011 did you think that Mr Maras wanted to close GOCSA churches.

   A.    He said so, he said that he did not care if GOCSA churches closed bar one.

   Q.And I think you said that you heard him say that in a conversation with your wife on the telephone.

   A.    Yes.

   Q.    And you said it was an angry conversation.

   A.    It was a robust discussion.

   Q.    I think you used the word 'angry'.

   A.    It was angry but it was robust and angry, yes.

   …

   Q.    And that was an angry comment, as you heard it.

   A.    I think it was probably a comment of exasperation more than anything.

   Q.Yes, that's right; and so had you heard Mr Maras say anything before or observed anything in his conduct which indicated that he wanted to close the churches bar one.

   A.    No.

   Q.And after that conversation did you hear him say anything or did you observe anything in his conduct that indicated he wanted to close all the churches bar one.

   A.    No.

   Q.And when you wrote this up in the flyer accompanied by the pictures of the churches, 'Not for Sale' and the doctored photograph of Bishop Nikandros with Mr Maras, you didn't say anything about the context in which that conversation took place, did you.

   A.    No.

   Q.You wanted to create the impression, didn't you, that that was something said by Mr Maras with serious intent, didn't you.

   A.    No.

5. In re-examination, Mr Lesses gave the following evidence:

   Q.You told my learned friend that you don't believe that Mr Maras meant that he didn't actually care about the churches. Do you recall giving that evidence.

   A.    Yes.

   …

   Q.The question was, at the time you composed the flyer and I think that we have that time as being on or about 16 June - between 16 and 19 June, did you turn your mind to whether or not Mr Maras meant what you understood he told your wife.

   A.In June I did believe that he meant it. That was a combination of a number of events that had transpired and become public knowledge.

6. In the passage extracted at [163] above, the Judge rejected Mr Lesses’ evidence in re-examination, preferring Mr Lesses’ evidence in cross-examination. Mr Lesses’ answer in cross-examination was given in the context of questions directed to his state of mind as at June 2011. If his state of mind in this respect had changed between January/February 2011 and June 2011, it is surprising that he did not say this during cross-examination. In addition, all of the circumstances surrounding the comment by Mr Maras belie the fact that, to the perception of Mr Lesses, Mr Maras did not make the comment with serious intent. Mr Maras never, to the knowledge of Mr Lesses, made any comment to that effect before or after the 3 churches comment on this occasion. There was nothing further said after Mr Maras made the comment on the topic such as would have been expected if there were any possibility that it might have been taken seriously.

7. The Judge in his reasons for judgment referred to Mr Lesses’ evidence in both cross-examination and re-examination. The Judge saw and heard Mr Lesses give evidence and was entitled as the trier of fact to accept his evidence by way of concession in cross-examination and reject his qualification or retraction of that concession in re-examination.

8. The Judge did not merely find that Mr Lesses lacked a positive belief that Mr Maras did not care if three churches closed. The Judge made a finding that Mr Lesses knew that Mr Maras made the comment in exasperation without serious intent and on this finding it follows that Mr Lesses knew that it was not true that Mr Maras did not care if three churches closed.

9. Mr Lesses contends that malice could not be found in the absence of a finding that he intended to convey the imputation that Mr Maras did not care about GOCSA churches. Mr Lesses draws a distinction between his belief whether Mr Maras said that he did not care if three churches closed and his belief whether Mr Maras did not care if three churches closed. He contends that the mere fact that he knew that it was untrue that Mr Maras did not care if three churches closed (if that finding is upheld on appeal) cannot amount to evidence, or conclusive evidence, of an ulterior purpose unless the Judge also correctly found that he intended by his statement in the Flyer to convey that Mr Maras did not care if three churches closed (as opposed to merely conveying that Mr Maras had made that comment).

10. In the passage extracted at [163] above, the Judge rejected Mr Lesses’ denial that he intended to create the impression in the Flyer that Mr Maras made the comment with serious intent.

11. Leaving aside Mr Lesses’ evidence, the wording of the Flyer gives rise to a very strong inference that Mr Lessees intended to create the impression that Mr Maras made the 3 churches comment with serious intent and that Mr Maras truly did not care if three churches closed. First, the reference to Mr Maras’ comment in the Flyer was in the context of the overall theme of the Flyer that the participation of Messrs Maras, Elovaris and Mavrogiorgis in the Federation decision put GOCSA churches at risk of closure. A reference to a comment by Mr Maras that “he did not care if 3 churches closed” was calculated to support that overall theme and would only do so if the reader took the comment as having been seriously made. Conversely, the inclusion of the reference to the 3 churches comment was entirely gratuitous if it were not to be taken seriously. Secondly, the overall tone of the Flyer was serious: it was devoid of any light-heartedness and contained no suggestion that any part was not to be taken seriously. On the contrary, its subject matter was ostensibly not only serious but of vital importance to GOCSA members. Thirdly, in the absence of any suggestion otherwise, the natural and ordinary intendment of the author was to convey not only that Mr Maras had made the 3 churches comment but also that it truly represented his attitude to GOCSA churches.

12. Mr Lesses’ evidence about his intention in including the reference to Mr Maras’ comment was equivocal. That evidence, given in cross-examination, was as follows:

    Q.You wanted to create the impression, didn't you, that that was something said by Mr Maras with serious intent, didn't you.

    A.    No.

    Q.Well, if you didn't want to give the impression that it was said by him with serious intent, why did you put it in the context of this flyer.

    A.    Because it's as he said, it's honest, it's honest comments.       

13. Mr Lesses did not give any evidence in chief or in re-examination concerning his intention, knowledge or belief about the impression that readers would form as a result of the inclusion of the reference to the 3 churches comment in the Flyer.

14. Although Mr Lesses denied in cross-examination that he wanted to create the impression that the reference to the 3 churches comment was made with serious intent, he did not give any meaningful explanation for his inclusion of reference to the comment in the Flyer and did not deny that he believed that readers would form the impression that Mr Maras had made the comment with serious intent.

15. The finding by the Judge that Mr Lesses intended to create the impression that Mr Maras made the comment with serious intent was well open to the Judge. A strong inference to this effect was open from the structure, tone and wording of the Flyer itself. The Judge saw and heard Mr Lesses give evidence and was entitled to reject his evidence in this respect.

16. Mr Lesses’ contentions that the Judge relied on knowledge of untruth which is not a head of malice, that malice could not be found in the absence of a finding about his dominant motive for publishing the Flyer and that malice  actuated the making of the reference to the 3 churches comment can be considered together.

17. Although knowledge of untruth does not itself comprise malice, because malice is only comprised by a dominant ulterior purpose of the publisher actuating publication of the defamatory matter, knowledge of the untruth of the defamatory statement is ordinarily conclusive of such malice. The Judge’s finding, which there is no basis to disturb, that Mr Lesses knew that his reference to Mr Maras’ comment conveyed to readers that Mr Maras did not care if three churches closed and knew that this was untrue was conclusive not only that Mr Lesses had an ulterior purpose but also that it was his dominant purpose actuating the publication of the defamatory statement. This was not a case where any exceptional circumstances existed such as a legal duty to make the statement regardless of a belief of its falsity to mitigate the conclusive effect of the finding.

18. We turn to Mr Lesses’ contention that the case on malice found by the Judge was neither pleaded nor advanced at trial by Mr Maras.

19. Mr Maras pleaded malice in his reply in response to Mr Lesses’ combined plea of common law and statutory qualified privilege in respect of both pleaded imputations. Mr Maras pleaded that Mr Lesses was actuated by malice and published each of the defamatory statements in the Flyer to embarrass Mr Maras within the Greek community and further Mr Lesses’ own political ends. He pleaded four particulars of this allegation, being that Mr Lesses published the defamatory statements in the Flyer as part of a campaign to be elected President in lieu of Mr Elovaris and to create the false impression that Messrs Maras and Elovaris were seeking to sell out GOCSA (and its churches) to the Archdiocese; the separation of GOCSA and its churches from the Archdiocese being well known within GOCSA (and the wider Greek community) to be a highly sensitive and emotive issue with proponents in vociferous support of the status quo; and Mr Lesses believed that, if he could create the impression in the minds of the GOCSA constituency that Messrs Maras and Elovaris were aligning themselves with the Archdiocese and therefore traitors to the cause of GOCSA’s independence from the Archdiocese and affiliation with the Independent Church while Mr Lesses was strongly defending the status quo, he would curry favour with the constituency and oust Mr Elovaris as President.

20. Mr Lesses’ first complaint is that Mr Maras pleaded only two purposes alleged to be ulterior (embarrass Mr Maras and further Mr Lesses’ own political ends) and did not plead that Mr Lesses knew that the defamatory statement was false, namely that Mr Maras did care if three churches closed. Mr Lesses refers to three decisions in the New South Wales Supreme Court in support of his proposition that such an allegation must be pleaded and particularised.

21. In Huish v Church Publishing Co Ltd,[59] Huish pleaded by way of particulars of malice that Church Publishing believed the defamatory matter to be untrue. Brereton J ordered that Huish provide particulars of the person or persons at Church Publishing who had that belief. In NRMA Insurance Ltd v Flanagan,[60] NRMA pleaded by way of particulars of malice that Flanagan knew the defamatory matter was false or lacked an honest belief in its truth or was reckless as to its truth. Hunt J held that this did not comply with the Rules because it amounted to a bald conclusion from unspecified facts and matters.[61]  In King v John Fairfax & Sons Limited,[62] King pleaded that Fairfax knew the defamatory matter was false or was reckless as to its truth or lacked an honest belief in its truth.  Hunt J held that this did not comply with the Rules because it amounted to a bald conclusion from unspecified facts and matters.[63]

    [59] [1966] 2 NSWR 748.

    [60] [1982] 1 NSWR 585.

    [61]  At 603.

    [62] [1983] 1 NSWR 31.

    [63]  At 32-33.

22. Mr Maras’s first response to this complaint is that knowledge that the defamatory matter was false is merely evidence of improper purpose, the purpose itself is the material fact, and it is not permissible to plead evidence as opposed to material facts. Mr Maras refers to the decision of the High Court in Roberts v Bass[64] that knowledge that the defamatory matter was false is ordinarily conclusive evidence of improper motive.

    [64] (2002) 212 CLR 1 at [76]-[101] per Gaudron, McHugh and Gummow JJ.

23. In Roberts v Bass,[65] Gaudron, McHugh and Gummow JJ drew a distinction between two discrete cases. In the first case where the publisher knows that the defamatory statement is false, that fact is ordinarily conclusive of improper motive.[66] In the second case, evidence that the publisher did not have a positive belief in the truth of the defamatory statement, was reckless as to whether it was true or false, bore ill-will towards the plaintiff, was biased or was prejudiced against the plaintiff may (depending on all of the relevant evidence) found an inference that an ulterior purpose was the dominant purpose actuating the publication of the defamatory matter.[67]

    [65] (2002) 212 CLR 1.

    [66]  At [76], [78], [83] and [98].

    [67]  At [76], [77], [84] and [98].

24. In Roberts v Bass, Gaudron, McHugh and Gummow JJ also drew a distinction between a case in which a plaintiff is able to identify and prove that the publisher was actuated by a specific improper purpose and a case in which the plaintiff cannot do so but can prove (usually by proving that the publisher knew or believed that the defamatory statement was false) that the plaintiff must have been actuated by a generic improper purpose.[68]

    [68] At [77].

25. If a plaintiff confines his or her case to a specific specified improper purpose to be proved by direct evidence (without alleging or relying on knowledge or belief of falsity), the plaintiff is not required to give particulars of the evidence to be relied on in such proof.

26. By contrast, when a plaintiff’s case is that the publication was actuated by a generic improper purpose to be inferred indirectly from facts and circumstances as opposed to a specific and specified improper purpose, the plaintiff should plead this and provide particulars of the facts and circumstances from which the inference arises. The position is analogous to other situations in which a plaintiff cannot be specific about an element of a cause of action or other ground of an application (for example improper purpose in an abuse of process case) but it is to be inferred from facts and circumstances. Even if the plaintiff’s primary case is that the publication was actuated by a specified improper purpose to be proved by direct evidence, if the plaintiff’s case in the alternative relies on a generic improper purpose inferred from facts and circumstances, this should be pleaded and particulars provided.

27. Similarly, when a plaintiff’s case relies on the knowledge of falsity conclusivity principle as the basis for an allegation that the publication was actuated by an improper purpose (even if the plaintiff identifies a specific improper purpose), the plaintiff should plead this and give particulars of the knowledge or belief of falsity. This is because a finding of knowledge or belief of falsity will in itself conclusively establish the existence of an actuating improper purpose in the absence of exceptional circumstances. Again, even if the plaintiff’s primary case is that the publication was actuated by a specified improper purpose to be proved in the conventional way, if the plaintiff’s case in the alternative relies on the knowledge of falsity conclusivity principle, this should be pleaded and particulars provided.

28. This analysis is consistent with the decisions of the New South Wales Supreme Court in Huish v Church Publishing Co Ltd,[69] NRMA Insurance Ltd v Flanagan[70] and King v John Fairfax & Sons Limited.[71]

    [69] [1966] 2 NSWR 748.

    [70] [1982] 1 NSWR 585.

    [71] [1983] 1 NSWR 31.

29. In the present case, although Mr Maras pleaded that Mr Lesses was actuated by an embarrassment and/or a political motive, Mr Maras’ case in reality relied predominantly on knowledge of falsity to conclusively establish the existence of a generic improper purpose. In the circumstances, subject to the trial having been conducted on a basis beyond the pleadings, Mr Maras was required to plead and particularise an allegation that Mr Lesses believed that Mr Maras did care if three churches closed and that the reference to the 3 churches comment in the Flyer conveyed that Mr Maras did not so care.

30. Mr Maras’ alternative response to Mr Lesses’ contention is that Mr Lesses acquiesced in Mr Maras conducting his case on this basis at trial, relying on the principle articulated by the High Court in Gould v Mount Oxide Mines Ltd (in Liq),[72] Banque Commerciale SA en Liquidation v Akhil Holdings Ltd,[73] and Vale v Sutherland[74] and by the Full Court of the Federal Court in Betfair Pty Ltd v Racing New South Wales.[75]

    [72] (1916) 22 CLR 490 at 517 per Isaacs and Rich JJ.

    [73] (1990) 169 CLR 279 at 286-287 per Mason CJ and Gaudron J and 296-297 per Dawson J.

    [74] [2009] HCA 26; (2009) 237 CLR 638 at 41 per Gummow, Hayne, Heydon, Crennan and Kiefel JJ.

    [75] [2010] FCAFC 133 at [51]-[58] per Keane CJ, Lander and Buchanan JJ.

31. Mr Maras concedes that he did not plead knowledge of falsity. However, he points to the fact that Mr Lesses himself pleaded that he believed the information in the statements in the Flyer to be true as part of his plea of reasonableness for the purpose of the statutory qualified privilege defence.[76]  Although this did not relieve Mr Maras of the obligation himself to plead knowledge of falsity as conclusively establishing malice, it did entail that Mr Lesses’ belief in the statements was a live issue at trial and was always expected to be the subject of evidence adduced by the parties.

    [76]  Defence [8.4.1].

32. The parties exchanged written closing addresses at trial before making oral addresses. Mr Maras at paragraphs 156, 157 and 175 of his written closing address explicitly invoked the knowledge of falsity conclusivity principle (although not under this name). Mr Lesses at paragraph 62 of his written closing address said that he anticipated that Mr Maras would rely for the purpose of malice on his evidence in cross-examination that he did not believe that Mr Maras made the 3 churches comment with serious intent and in turn submitted that his evidence in re-examination proved that by June 2011 he did so believe. Mr Lesses did not contend that such reliance by Mr Maras was not open because he had not pleaded knowledge of falsity.

1. During Mr Lesses’ oral address, he protested that Mr Maras had not pleaded nine matters the subject of Mr Maras’ oral and written closing address.[77] As Mr Lesses did not complete his reply in the time available, he was given permission to lodge a written reply addressing the balance of Mr Maras’ address. He lodged a written reply addressing paragraphs 25 to 198 of Mr Maras’ written closing address. He did not address paragraphs 156, 157 and 175. In contrast to his protests about the nine matters that Mr Maras did not plead, Mr Lesses made no protest about Mr Maras’ reliance on the knowledge of falsity conclusivity principle in respect of the 3 churches comment. On the contrary, during his oral address he read out and elaborated on paragraph 62 of his written address referring to his belief as to whether Mr Maras cared if three churches closed.[78]

   [77]  T1108/8-12 (no pleading of imputation of treachery); T1112/9-31 (no pleading that Mr Lesses knew churches could not be lost without vote at AGM as a particular of malice); T1117/2-10 (no pleading that Mr Lesses ‘photoshopped’ the photo of Mr Maras, Mr Rann and Bishop Nikandros to remove Mr Rann  as a particular of malice); T1117/11-18 (no pleading that Mr Lesses’ issue of exhibit P9 was evidence of malice); T1182/11-26 (Mr Maras confined to pleaded passages from which alleged imputations arise); T1183/15-1184/5 (no plea of true innuendo by reference to special knowledge of GOCSA member recipients or earlier publications); T1185/20-1186/29 (in response to paragraph 15 of Mr Maras’ closing address: no plea that there was no “need” to communicate the defamatory passages); T1188/31-1192/18 (in response to paragraph 17 of Mr Maras’ closing address: no plea that Mr Lesses was tactical in not asking questions at the AGM, in participating in an email train with Mr Maras between 24 and 26 May 2011, and in declining Mr Maras’ invitations of 26 May 2011 and 9 June 2011 to have a discussion  as particulars of malice); and T1195/14-1197/15 (no pleas that Mr Lesses knew extraneous, irrelevant or marginal matters to be false as a particular of malice).

   [78]  T1118/4-28.

2. Mr Lesses does not on appeal identify any evidence that he would otherwise have adduced, or any different manner in which he would otherwise have conducted his case at trial, if Mr Maras had pleaded knowledge of falsity in respect of the 3 churches comment. Given that Mr Lesses’ state of mind was already in issue by reason of his plea in his own defence, it is not possible to envisage any different manner in which Mr Lesses might have so conducted his case.

3. In the circumstances, notwithstanding his failure to plead knowledge of falsity, due to the manner in which the trial was conducted and in particular that Mr Lesses’ state of mind in this respect was already in issue by reason of his plea in his own defence and Mr Maras’ reliance on the knowledge of falsity conclusivity principle in closing address without relevant protest by Mr Lesses, Mr Maras was not precluded from relying on the knowledge of falsity conclusivity principle in respect of the 3 churches comment.

4. Mr Lesses’ second complaint is that the Judge erred in relying on findings that he did not believe in the truth of statements in the Flyer other that the pleaded statements when this was not pleaded as a particular of malice. This complaint relates exclusively to the untrustworthy imputation because the Judge did not rely on any finding that Mr Lesses did not believe in the truth of other statements in the Flyer when making his finding in respect of the “does not care” imputation. The Judge made the latter finding before and independently of the former findings.

5. Finally, we turn to Mr Lesses’ contention that the Judge’s finding that the 3 churches comment was published with the aim of harming Mr Maras’ reputation was against the evidence and the weight of the evidence.

6. The Judge did not explain why he inferred that the publication of the 3 churches comment was actuated by a purpose of harming Mr Maras’ reputation. This of course would be the effect of the publication, as it is ex hypothesis the effect of all defamatory publications, but to find that it was Mr Lesses’ purpose suggests circularity. There is no reason in the evidence to find that this was Mr Lesses’ purpose as opposed to some other ulterior purpose. A more likely ulterior purpose was that Mr Lesses opportunely seized on this fortuitous comment, knowing that it had not been seriously intended, as an illegitimate means of advancing what may be assumed to be a legitimate political end in respect of the affairs of GOCSA. In addition, Mr Maras pleaded only motives of embarrassing him within the Greek community and furthering Mr Lesses’ own political ends. While there is a degree of overlap between the concepts, there is a real difference between embarrassing a person and harming his reputation.

7. It is not necessary to further consider the Judge’s finding of a reputation harming purpose because we have upheld the Judge’s finding that Mr Lesses knew that Mr Maras did care if three churches closed and knew that readers of the Flyer would understand that the reference to the 3 churches comment conveyed that he did not care. This is conclusive that Mr Lesses’ dominant actuation was an improper purpose and it was not necessary for the Judge to find what that ulterior purpose was.

8. The Judge did not err in his overall conclusion that the common law defence of qualified privilege failed.

   Qualified privilege under the Act

9. Mr Lesses contends that the Judge erred in finding that the statutory defence of qualified privilege was not established because the conduct was not reasonable and was defeated by malice.

10. The third element of the statutory qualified privilege defence is that the conduct of the defendant in publishing the defamatory matter to the recipients is reasonable in the circumstances (section 28(1)(c) of the Act). The onus is on the defendant to prove this and the preceding elements.

11. The Judge found that the third element was not established because it was not reasonable for Mr Lesses to publish the material knowing it was untrue. Mr Lesses challenges that finding on the same grounds as his challenge to the Judge’s finding in the context of common law qualified privilege. That challenge fails for the same reasons.

12. Statutory qualified privilege is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice (section 28(4) of the Act).

13. The Judge found that malice had been proved by Mr Maras. Mr Lesses challenges that finding on the same grounds as his challenge to the Judge’s finding in the context of common law qualified privilege. That challenge fails for the same reasons.

    Damages

14. Given that the appeal is upheld in respect of the untrustworthy imputation, it is necessary for damages to be assessed in respect of the “does not care” imputation alone. We will hear submissions from the parties about the assessment of damages.

    Costs

15. After assessing damages, we will hear submissions from the parties about costs.

    Conclusion

16. We allow the appeal in respect of the untrustworthy imputation and dismiss it in respect of the “does not care” imputation. We set aside the judgment of the Judge. We will hear submissions from the parties about damages and costs.

    
    

[45] At [22].