Lesses v Maras (No 2)
[2017] SASCFC 137
•20 October 2017
Supreme Court of South Australia
(Full Court: Civil)
LESSES v MARAS (NO 2)
[2017] SASCFC 137
Judgment of The Full Court
(The Honourable Justice Blue, The Honourable Justice Parker and The Honourable Justice Hinton)
20 October 2017
DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT - IN GENERAL
EVIDENCE - ADMISSIBILITY - EXCLUSIONS: PRIVILEGES - PUBLIC INTEREST PRIVILEGE - SETTLEMENT NEGOTIATIONS
Appeal against judgment awarding damages for defamation.
A District Court Judge awarded judgment in favour of the respondent in respect of two pleaded imputations, namely that three documents published by the respondent to members of the Greek Orthodox Community of South Australia (GOCSA) conveyed the imputation that the respondent is untrustworthy and that one of the publications conveyed the imputation that he does not care about GOCSA churches. The Judge assessed damages at $75,000.
On appeal, this Court upheld the judgment in respect of the ‘does not care’ imputation but allowed the appeal in respect of the untrustworthy imputation: Lesses v Maras [2017] SASCFC 48.
On the assessment by this Court of damages in respect of the ‘does not care’ imputation, the respondent seeks to rely on offers of an apology made as part of communications between the parties before action with a view to settling the respondent’s claim for defamation.
Held by the Court:
1. As the respondent does not contend that he made an offer to make amends or that he made an apology within the meaning of the Defamation Act 2005 (SA), the communications between the parties were protected by settlement privilege pursuant to s 67C of the Evidence Act 1929 (SA) (at [51] - [55]).
2. Damages assessed at $25,000 (at [76]).
3. The parties to be heard as to costs (at [78]).
Defamation Act 2005 (SA) ss 13, 15, 18, 19, 20, 32, 33, 34 and 36(1)(a); Evidence Act 1929 (SA) s 67C, referred to.
Broome v Cassell & Co [1972] AC 1027; Broome v Cassell & Co [1972] AC 1027; Carson v John Fairfax and Sons Limited (1993) 178 CLR 44; Coyne v Citizen Finance Limited (1991) 172 CLR 211; Herald and Weekly Times Limited v McGregor (1928) 41 CLR 254; Triggell v Pheeney (1951) 82 CLR 497, discussed.
LESSES v MARAS (NO 2)
[2017] SASCFC 137Full Court: Blue, Parker and Hinton JJ
THE COURT:
This is an appeal against a judgment for the plaintiff in an action for defamation.
The respondent Theo Maras sued the appellant John Lesses in the District Court for defamation. Mr Maras alleged that three documents published by Mr Lesses in June 2011 to certain members of the Greek Orthodox Community of South Australia (GOCSA) conveyed the defamatory imputation that Mr Maras is untrustworthy (the untrustworthy imputation) and that one document (the Flyer) also conveyed the defamatory imputation that he does not care about GOCSA churches (the does not care imputation).
The Judge upheld Mr Maras’ claim in respect of both imputations and awarded general damages of $75,000.
This Court partially allowed the appeal on liability, finding that the documents did not convey the untrustworthy imputation but the Flyer conveyed the does not care imputation which was defamatory.[1] This Court decided that the judgment of the District Court should be set aside and the parties have now made submissions on damages in respect of the does not care imputation.
[1] Lessesv Maras [2017] SASCFC 48.
These reasons address the assessment of damages, leaving issues of costs to be addressed at the third and final stage of the appeal.
Background
The background is set out in detail in the Court’s previous reasons.
Mr Maras and Mr Lesses had been fellow members of GOCSA since 1997 and had been friends for many years.
In 1960 there was an acrimonious split between GOCSA (and subsequently other members of the Federation of Greek Orthodox Communities of Australia (the Federation)) and the Greek Orthodox Archdiocese of Australia (the Archdiocese). Thereafter the Federation and the Archdiocese operated their own churches independently of and in competition with each other.
In 2010 the Greek Orthodox Community of Sydney (the Sydney Community) unilaterally commenced discussions with the Archdiocese with a view to reconciliation.
In December 2010 there was a meeting of the Federation attended amongst others by Mr Maras together with Vasillis Elovaris (President of GOCSA) and Elias Mavrogiorgis (Assistant Secretary of GOCSA). It was resolved according to the English version of the minutes of the meeting that “in future, a group of representatives from the Federation should also participate in the negotiations with the Archdiocese”. An English version published by the Greek Community Tribune of a press release issued by the Federation in Greek about the meeting included a statement that “[t]he Federation renewed its old decision regarding the church issue and unanimously resolved to include a delegation of [the Federation] in future negotiations with [the Archdiocese]”.
Mr Lesses and certain other members of GOCSA who ultimately formed the Coalition Supporting the Community Institution were opposed to negotiation with the Archdiocese and were concerned about the Federation resolution. They comprised or were sympathetic to a conservative group within GOCSA insofar as relations with the Archdiocese were concerned.[2]
[2] The terms “conservative” and “moderate” are adopted herein as a convenient description of the attitude of the respective groups towards the Archdiocese. It is not intended to suggest that the labels reflect the views of the respective groups on any wider issues.
Mr Maras and certain other members of GOCSA were in favour of negotiation with the Archdiocese. They comprised or were sympathetic to a moderate group within GOCSA insofar as relations with the Archdiocese were concerned.[3]
[3] The terms "conservative" and "moderate" are adopted herein as a convenient description of the attitude of the respective groups towards the Archdiocese. It is not intended to suggest that the labels reflect the views of the respective groups on any wider issues.
In late January or February 2011 Evangelia Lesses telephoned Mr Maras. She told him that people were afraid that the Goodwood church was going to close because it was always the first church to be targeted. Mr Maras was initially calm but became angry and raised his voice. Mr Maras said:
I don’t care if all the churches close except for one [understood to be the Cathedral in Franklin Street].[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.
In the first week of June 2011 Mr Lesses wrote the Newsletter and caused it to be emailed to those GOCSA members whose email addresses he had. He had between 60 and 70 such email addresses. The full text of the Newsletter is set out in our previous reasons.
In mid June 2011 Mr Lesses wrote the Flyer and caused it to be emailed to the same GOCSA members. The English text of the Flyer, together with the parts in Greek translated 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 within 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 overall theme of the Flyer was to express concern that the Federation had resolved to participate in future negotiation with the Archdiocese without prior discussion within GOCSA and to oppose negotiations with the Archdiocese. In addition, Mr Lesses included the defamatory passage “Mr Maras commented that he did not care if 3 churches closed” (the three churches statement).
Legal principles as to assessment of damages
It is common ground that this Court is to assess damages afresh without regard to the assessment by the trial Judge of damages on the combined basis of two imputations and three publications. This Court is not to start with the trial Judge’s assessment and subtract a component for the untrustworthy imputation and the Newsletter and Email publications.
Damages are to be assessed under common law principles subject to the limited modifications effected by Part 4 Division 3 of the Defamation Act 2005 (SA) (the Act).
General damages address three overlapping aspects of compensation for harm:
1. compensation for hurt to the plaintiff’s feelings;
2. compensation for harm to the plaintiff’s reputation; and
3. compensation to vindicate the plaintiff’s reputation.
In Carson v John Fairfax and Sons Limited,[5] Mason CJ, Deane, Dawson and Gaudron JJ said:
Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that "the amount of a verdict is the product of a mixture of inextricable considerations". The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. "The gravity of the libel, the social standing of the parties and the availability of alternative remedies" are all relevant to assessing the quantum of damages necessary to vindicate the appellant.[6]
[5] (1993) 178 CLR 44.
[6] At 60-61. (Citations omitted)
It should be borne in mind that a plaintiff is being compensated by reason of having been exposed to hatred, contempt or ridicule; to being shunned; or otherwise to being lowered in the estimation by the community. Damages are awarded in respect of the effect of the defamation on the community’s estimation of the plaintiff (the objective effect) and the effect on the plaintiff’s feelings as a result of the plaintiff’s perception of that effect (the subjective effect).
Section 32 of the Act provides that, in determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
The harm sustained due to the objective and subjective effects will depend on many factors including:
· the nature and gravity of the defamatory statement;[7]
· the importance and relevance of the defamatory statement to the recipients;[8]
· the context in which the statement is published;[9]
· the mode of publication;[10]
· the temporal extent of the publication;[11]
· the extent of the publication in terms of the number and class of the recipients;[12]
· the identity of the recipients and their relationship to the plaintiff and to the defendant;[13]
· the social standing of the plaintiff.[14]
[7] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 61 per Mason CJ, Deane, Dawson and Gaudron JJ; John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 at 141-142 per McHugh JA.
[8] Reader’s 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).
[9] 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).
[10] Herald and Weekly Times Limited v McGregor(1928) 41 CLR 254 at 263 per Knox CJ, Gavan Duffy and Starke JJ.
[11] 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).
[12] Herald and Weekly Times Limited v McGregor(1928) 41 CLR 254 at 263 per Knox CJ, Gavan Duffy and Starke JJ.
[13] Reader’s 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).
[14] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 61 per Mason CJ, Deane, Dawson and Gaudron JJ).
The defamatory words are to be understood in the context of the published words as a whole as well as in the broader context.[15] However, the plaintiff cannot recover damages for other words in the publication not alleged and found to be defamatory.[16]
[15] 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); The Ten Group Pty Ltd v Cornes [2012] SASCFC 99, (2012) 114 SASR 46 at [52]-[53] per Kourakis CJ, [103]-[104] per Gray J and [147] per Blue J.
[16] Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37, (1998) 193 CLR 519 at [183] per Kirby J; Selecta Homes and Building Co Pty Ltd v Advertiser-Weekend Publishing Co Pty Ltd [2001] SASC 140 at [144] per Gray J (with whom Doyle CJ agreed).
Section 34 of the Act provides:
34—State of mind of defendant generally not relevant to awarding damages
In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.
The fact that a defendant knew that a defamatory statement was false may increase the subjective harm sustained by a plaintiff if the plaintiff believes that the defendant knew that the defamation was false and this exacerbates the hurt to the plaintiff’s feelings.[17]
[17] Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 151-152 per Windeyer J.
The conduct of the defendant after publication in the context of threatened and actual litigation over the allegedly defamatory statement can be relevant to the quantum of damages. On the one hand, if the defendant persists in the allegedly defamatory statement by a plea of justification, this can in some circumstances exacerbate the subjective effect (and if itself published may increase the objective effect) and hence increase the damages, particularly if the plea is not pursued in good faith. On the other hand, if the defendant withdraws or otherwise does not persist in the allegedly defamatory statement, this can reduce the subjective effect (and if itself published may reduce the objective effect) and hence reduce the damages. The effect of High Court authority appears to be that there are no hard and fast rules and whether damages are increased or reduced as a result of post-publication conduct by the defendant will depend on all of the circumstances.
In Herald and Weekly Times Limited v McGregor,[18] Knox CJ, Gavan Duffy and Starke JJ said:
In point of law, the learned trial Judge would have been right if he had instructed the jury that in assessing damages they were entitled to take into consideration the mode and extent of the publication, that the defamatory statement was never retracted, that no apology was ever offered to the respondent, and that the statement had been persisted in to the end; because all these circumstances might in the opinion of the jury increase the area of publication and the effect of the libel on those who had read it or who would thereafter read it, might extend its vitality and capability of causing injury to the plaintiff... [19]
[18] (1928) 41 CLR 254.
[19] At 263.
In Triggell v Pheeney,[20] Dixon, Williams, Webb and Kitto JJ said:
It is no doubt true that the jury cannot take into consideration as a ground for giving or increasing damages, whether exemplary or compensatory, conduct of the defendant which was not merely bona fide but was justifiable or proper. A bona-fide defence raised properly or justifiably in the circumstances known to the defendant and evidence honestly given in support of such a defence doubtless cannot be used for such a purpose. But the decision of the majority in Herald and Weekly Times v McGregor must mean that the conduct of the defence may be taken into consideration not only as evidencing malice at the time of publication or afterwards, as, for instance, in filing a plea, but also as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable.[21]
[20] (1951) 82 CLR 497.
[21] At 514.
In Coyne v Citizen Finance Limited,[22] Toohey J (with whom Dawson and McHugh JJ agreed) said:
It is not the case that every unsuccessful defendant must face the prospect of damages being increased, simply because the defendant has elected to defend the action. It is for the jury, properly directed in the circumstances of the case, to determine whether the defendant's conduct lacks bona fides, or is improper or unjustifiable, in the sense referred to in Triggell v Pheeney. Nevertheless, persistence in a plea of justification may be relevant to the amount of compensatory damages awarded. An early withdrawal of the defamatory statement will ordinarily serve to reduce the harm suffered by the plaintiff; persistence in seeking to justify the statement may increase the scope of publication and the effect on those who read it: Herald and Weekly Times Ltd v McGregor. I take this to be the sense in which Lord Diplock suggested that `persistence by the defendant in a plea of justification or a repetition of the original libel by him at the trial can increase the damages': Broome v Cassell & Co. But compensation for continuing harm is a component of normal compensatory damages and, in the absence of at least one of the factors mentioned in Triggell v Pheeney, does not warrant an award of aggravated damages to the plaintiff.[23]
[22] (1991) 172 CLR 211.
[23] At 237-238.
Section 33 prescribes the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings (except when aggravated damages are warranted) at an annually prescribed amount which was $366,000 at the relevant time. It is common ground that this operates as a cap and not so at to require a court to scale the damages awarded against the maximum amount.[24]
[24] Contrast Civil Liability Act 1936 (SA) section 52 and Return to Work Act 2014 (SA) section 58.
Evidence of offers before action
On the hearing of the submissions on appeal on this Court’s assessment of damages, Mr Lesses tendered correspondence between the parties including letters by his solicitors to Mr Maras’ solicitors that he contends comprise offers to apologise that mitigate damages.
Mr Maras opposes the reception of this evidence on several grounds including that the evidence to be received must meet, but does not meet, the criteria for the reception of fresh evidence on appeal and that the communications are the subject of settlement privilege under section 67C of the Evidence Act 1929 (SA) (the Evidence Act). We address the privilege issue first.
We address the question on the hypothetical basis that the Judge decided liability in the manner now decided on appeal, invited submissions from the parties on the basis of the does not care imputation alone (the parties’ submissions at trial having been limited to the combined imputations) and Mr Lessees had tendered the correspondence at a hearing of submissions on quantum. For reasons that will appear, this is the appropriate basis to ensure that Mr Lesses is not unfairly placed in a superior position on appeal to the position in which he would have been if he had tendered the correspondence in the court below.
We begin by summarising the relevant communications. Because they were disclosed to the Judge on the costs argument and will be considered by this Court in any event when we address costs at the final stage of the appeal, there is no harm in disclosing relevant details of the communications for the purpose of ruling on Mr Maras’ objection.
The first communication in the bundle of documents tendered by Mr Lesses is a letter dated 28 November 2011 from Mr Maras’ solicitors to Mr Lesses alleging the defamatory imputations, demanding an apology and retraction be published and stating that the letter was a concerns notice[25] under the Act. Mr Lesses’ solicitors responded requesting particulars and stated that the letter constituted a further particulars notice[26] under the Act. On 23 December 2011 Mr Maras’ solicitors replied providing the requested particulars.
[25] Subsection 14(2) of the Act provides that a concern notice is a written notice informing the publisher of the defamatory implications that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question. The relevance of the giving of a concerns notice under the Act is that it triggers the commencement of a time limit for the making of an offer to make amends. Subsection 14(1)(a) provides that an offer to make amends cannot be made after 28 days have elapsed since the publisher was given a concerns notice by the aggrieved person.
[26] Subsection 14(3) of the Act provides that if an aggrieved person gives the publisher a concerns notice, but fails to particularise the imputations of concern adequately, the publisher may give the aggrieved person a written notice requesting the aggrieved person to provide reasonable further particulars about the imputations of concern as specified in the further particulars notice, Subsection 14(5) provides that an aggrieved person who fails to provide the reasonable further particulars specified in a further particulars notice within 14 days (or any further period agreed by the publisher and aggrieved person) after being given the notice is taken not to have given the publisher a concerns notice for the purposes of section 14.
On 25 January 2012 Mr Lesses’ solicitors wrote to Mr Maras’ solicitors enclosing a draft apology that Mr Lesses was prepared to issue to Mr Maras in settlement of his claim of defamation which was made on the basis that Mr Lesses did not admit liability to Mr Maras (the first Lesses letter). The letter was not expressed to be without prejudice, without prejudice save as to costs or open. The draft apology included a statement that “if anyone has drawn an inference from the newsletters to the effect that Mr Maras does not care about GOCSA churches, I regret this. No such inference was intended, and I apologise for the misunderstanding.”
On 23 February 2012 Mr Maras’ solicitors replied by letter expressed to be without prejudice save as to costs. The letter offered to resolve the matter on the basis set out in the letter including various amendments to the draft apology.
On 22 March 2012 Mr Lesses’ solicitors wrote to Mr Maras’ solicitors enclosing a further draft apology that Mr Lesses was prepared to provide having regard to the comments in their letter dated 23 February 2012 (the second Lesses letter). The draft apology included a statement that “I also apologise and regret the suggestion that Mr Maras does not care about GOCSA churches.”
On 6 June 2012 Mr Maras’ solicitors replied by letter expressed to be without prejudice save as to costs. The letter offered to resolve the matter on the basis set out in the letter including various amendments to the draft apology.
On 21 June 2012 Mr Lesses’ solicitors wrote to Mr Maras’ solicitors enclosing a further draft apology that Mr Lesses was prepared to provide having regard to the comments in their letter dated 6 June 2012 (the third Lesses letter). The draft apology included a statement that “I also apologise and regret the suggestion that Mr Maras does not care about GOCSA churches.”
On 13 August 2012 Mr Maras’ solicitors replied rejecting the offer contained in the 21 June 2012 letter.
Mr Lesses seeks to rely upon the second and third Lesses letters in mitigation of damages but it is necessary to consider the first Lesses letter in any event because it forms part of a single chain of communications.
Section 67C of the Evidence Act provides:
67C—Exclusion of evidence of settlement negotiations
(1)Subject to this section, evidence of a communication made in connection with an attempt to negotiate the settlement of a civil dispute, or of a document prepared in connection with such an attempt, is not admissible in any civil or criminal proceedings.
(2) Such evidence is, however, admissible if—
(a) the parties to the dispute consent; or
(b) the substance of the evidence has been disclosed with the express or implied consent of the parties to the dispute; or
(c) the substance of the evidence has been partly disclosed with the express or implied consent of the parties to the dispute, and full disclosure of the evidence is reasonably necessary to—
(i)enable a proper understanding of the other evidence that has already been adduced; or
(ii) avoid unfairness to any of the parties to the dispute; or
(d) the communication or document included a statement to the effect that it was not to be treated as confidential; or
(e) the proceeding in which the evidence is to be adduced is a proceeding to enforce an agreement for the settlement of the dispute or a proceeding in which the making of such an agreement is in issue; or
(f) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or
(g) the making of the communication, or the preparation of the document, affects the rights of a party to the dispute; or
(h)the communication was made, or the document was prepared, in furtherance of—
(i) the commission of a fraud or an offence; or
(ii) the doing of an act that renders a person liable to a civil penalty; or
(iii) the abuse of a statutory power.
(3)Subsection (1) does not apply to parts of a document that do not concern attempts to negotiate a settlement of a dispute, if it would not be misleading to adduce evidence of only those parts of the document.
The operation of section 67C of the Evidence Act needs to be considered in conjunction with the provisions of the Act in relation to offers and apologies. The Act addresses these matters in three different ways.
First sections 20 and 36(1)(a) operate in conjunction to address apologies. They effectively provide that evidence of the making of an apology by a defendant is not admissible against the defendant on issues of liability but is admissible on behalf of the defendant on the issue of damages.
Sections 20 and 36(1)(a) provide:
20—Effect of apology on liability for defamation
(1) An apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person—
(a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter; and
(b) is not relevant to the determination of fault or liability in connection with that matter.
(2)Evidence of an apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter.
(3)Nothing in this section limits the operation of section 36.
36—Factors in mitigation of damages
(1)Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that—
(a) the defendant has made an apology to the plaintiff about the publication of the defamatory matter; or
(b) the defendant has published a correction of the defamatory matter; …
Secondly sections 13, 15, 18 and 19 operate in conjunction to address offers to make amends. They effectively provide that evidence of the making of an offer to make amends and of communications in connection therewith is not admissible on issues of liability but is admissible on behalf of the defendant on the issue of the section 18 remediation defence.
Sections 13, 15(1), 18(1) and 19 provide:
13—Publisher may make offer to make amends
(1)The publisher may make an offer to make amends to the aggrieved person.
(2)The offer may be—
(a)in relation to the matter in question generally; or
(b) limited to any particular defamatory imputations that the publisher accepts that the matter in question carries or may carry.
(3)If 2 or more persons published the matter in question, an offer to make amends by one or more of them does not affect the liability of the other or others.
(4)An offer to make amends is taken to have been made without prejudice, unless the offer provides otherwise.
…
15—Content of offer to make amends
(1)An offer to make amends—
(a)must be in writing; and
(b) must be readily identifiable as an offer to make amends under this Division; and
(c) if the offer is limited to any particular defamatory imputations—must state that the offer is so limited and particularise the imputations to which the offer is limited; and
(d) must include an offer to publish, or join in publishing, a reasonable correction of the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited; and
(e) if material containing the matter has been given to someone else by the publisher or with the publisher’s knowledge—must include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person; and
(f) must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer; and
(g) may include any other kind of offer, or particulars of any other action taken by the publisher, to redress the harm sustained by the aggrieved person because of the matter in question, including (but not limited to)—
(i)an offer to publish, or join in publishing, an apology in relation to the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited; or
(ii)an offer to pay compensation for any economic or non-economic loss of the aggrieved person; or
(iii)the particulars of any correction or apology made, or action taken, before the date of the offer.
…
18—Effect of failure to accept reasonable offer to make amends
(1)If an offer to make amends is made in relation to the matter in question but is not accepted, it is a defence to an action for defamation against the publisher in relation to the matter if—
(a) the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory; and
(b) at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer; and
(c)in all the circumstances the offer was reasonable.
…
19—Inadmissibility of evidence of certain statements and admissions
(1)Evidence of any statement or admission made in connection with the making or acceptance of an offer to make amends is not admissible as evidence in any legal proceedings (whether criminal or civil).
(2)Subsection (1) does not prevent the admission of evidence in any legal proceedings in order to determine—
(a) any issue arising under, or relating to the application of, a provision of this Division; or
(b)costs in defamation proceedings.
Thirdly section 38 addresses settlement offers. It effectively provides that evidence of the making of a settlement offer and of communications in connection therewith is admissible on issues of costs. This provision can be disregarded at this stage of the appeal as we are not yet addressing costs.
Mr Maras accepts that the fact that an offer to make amends is made on a without prejudice basis (either expressly or by the operation of subsection 13(4)) or would otherwise be the subject of settlement privilege does not prevent a defendant adducing evidence of the offer at trial in support of a section 18 defence. This is a result of the paramount operation of the Act vis a vis section 67C of the Evidence Act and/or because the matter falls within the exception created by section 67C(2)(g) of the Evidence Act. It may be assumed without deciding that the fact that an offer to make amends is made on a without prejudice basis does not prevent a defendant adducing evidence of the offer at trial by way of mitigation of damages. However Mr Lesses eschews any contention that the first, second or third Lessees letters (collectively the three Lesses letters) comprised or purported to comprise an offer to make amends and explicitly contends that they did not. Accordingly, insofar as the provisions of the Act relating to offers to make amends render communications otherwise the subject of settlement privilege admissible, they do not assist Mr Lesses.
Mr Maras also accepts that the fact that an apology would otherwise be the subject of settlement privilege does not prevent a defendant adducing evidence of the apology by way of mitigation of damages under section 20. This again is a result of the paramount operation of the Act in respect of section 67C of the Evidence Act and/or because the matter falls within the exception created by section 67C(2)(g) of the Evidence Act. However Mr Lesses eschews any contention that the three Lesses letters comprised or purported to comprise an apology and explicitly concedes that they did not (contending that they only comprise offers to make an apology). Accordingly, insofar as the provisions of the Act relating to apologies render communications otherwise the subject of settlement privilege admissible, they do not assist Mr Lesses.
Mr Lesses contends that the three Lesses letters are not the subject of settlement privilege under section 67C of the Evidence Act because they are not expressed to be without prejudice or without prejudice save as to costs. We reject that contention. Each of the three Lesses letters clearly comprises a “communication made in connection with an attempt to negotiate the settlement of a civil dispute” within the meaning of subsection 67C(1).[27] The combined effect of section 67C(1) and (2)(d) is that such communications are the subject of settlement privilege unless accompanied by a statement indicating that they are not confidential.
[27] District Council of Mallala v Livestock Markets Ltd [2006] SASC 80, (2006) 94 SASR 258 at [25] per White J.
Mr Lesses contends that the substance of the evidence has been disclosed with the consent of the parties by reason of evidence of the chain of communications having been adduced before the Judge on the hearing of submissions as to costs and accordingly the exception in section 67C(2)(b) applies. We reject that contention. Frequently evidence of privileged settlement communications is adduced after all issues of liability and quantum have been determined purely on the question of costs in circumstances in which that evidence could not be adduced on issues of liability and quantum due to settlement privilege. The mere fact that there is then an appeal on issues of liability and quantum does not entitle a party to adduce evidence on issues of liability and quantum on appeal which could not have been adduced at first instance due to the settlement privilege.
We therefore uphold Mr Maras’ objection to the admission of the evidence of the three Lesses letters. We disregard them for the purpose of assessing damages.
Assessment of damages
The parties make diametrically opposing submissions about the gravity and circumstances of the does not care imputation. The parties cite different cases, none of which are directly comparable to the present case, in support of their respective contentions concerning an appropriate damages award. These submissions culminate in a submission by Mr Maras that an appropriate range of damages would be $60,000 to $75,000 and by Mr Lesses that an appropriate range of damages would be $500 to $1,000. In general terms we do not accept the submissions at either extreme.
On the one hand, Mr Lesses’ statement that “Mr Maras commented that he did not care if 3 churches closed” carried the imputation that Mr Maras did not care about GOCSA churches and was thereby defamatory for the reasons given in our previous reasons for judgment, taking into account Mr Maras’ role within the Federation and GOCSA. While this statement was not liable to expose Mr Maras to hatred, contempt or ridicule, it was liable to expose him to being lowered in the estimation of the community. The trial Judge found, and we upheld on the liability appeal, that Mr Lesses did not believe that Mr Maras did not in fact care about GOCSA churches. In addition Mr Lesses included in the flyer a photograph of Mr Maras and the Archbishop shaking hands from which Mr Rann had been removed.
Mr Maras gave the following evidence about the effect of the three churches statement in the Flyer:
Q.Then, if we come down lower in this document, we see a statement that 'Mr Maras commented that he did not care if three churches closed' - can you see that.
A. Yes.
Q. So far as you're aware, have you ever been heard to say that publicly.
A. No.
Q.No. And of course, we're not told in this document what the attribution is, but did you care whether GOCSA churches close.
A.I care very much about GOCSA churches not closing. I have worked my fingers to the bone to ensure that all churches not only didn't close but never missed a beat in having a service for the term when I was president and since then. And let me say that if this is about closing of a church or a church service, it didn't happen in my time and I made sure that that didn't happen, or if the reference to that is that a church closes permanently, well then I take that very offensively.
Mr Maras gave some general evidence about the overall effect of the Newsletter and the Flyer upon him and that the combined effect of the Newsletter, the Flyer and the Email caused him not to attend GOCSA functions but this evidence in both instances related largely to the “untrustworthy” imputation and the only evidence led from Mr Maras about the effect of the three churches statement was the passage extracted in the previous paragraph.
While Mr Maras did not give evidence that the hurt to his feelings was increased by his perception that Mr Lesses did not believe that Mr Maras does not care about GOCSA churches or if three GOCSA churches close, this may be inferred from the circumstances.
Mr Maras had a high social standing within GOCSA and the Federation due to his position. The imputation that he does not care about GOCSA churches is of greater gravity than if he were only an ordinary member of GOCSA, in which case it would have had limited significance.
On the other hand, the objective seriousness of a defamatory imputation can vary widely. An imputation that Mr Maras does not care about GOCSA churches was towards the lower end rather than towards the upper end of objective seriousness. It was less serious for example than would generally be an imputation of dishonesty, paedophilia or other criminal conduct;[28] corruption or misusing an office for personal gain;[29] or sexual harassment.[30] In addition, while the imputation related to Mr Maras’ position within GOCSA, it did not relate to his trade or calling as a businessman.[31]
[28] See examples in Alastair Mullis and Richard Parkes QC (eds), Gatley on Libel and Slander (Thomson Reuters. Sweet & Maxwell, 12th ed, 2013) [2.28].
[29] See examples in Alastair Mullis and Richard Parkes QC (eds), Gatley on Libel and Slander (Thomson Reuters. Sweet & Maxwell, 12th ed, 2013) [2.37].
[30] See examples in Alastair Mullis and Richard Parkes QC (eds), Gatley on Libel and Slander (Thomson Reuters. Sweet & Maxwell, 12th ed, 2013) [2.29].
[31] See Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB), [2011] 1 WLR 1985 at [27]-[35] per Tugendhat J; Alastair Mullis and Richard Parkes QC (eds), Gatley on Libel and Slander (Thomson Reuters. Sweet & Maxwell, 12th ed, 2013) [2.3].
In considering the gravity of the defamatory imputation, the defamatory words must be understood in their context within the Flyer as a whole and the situation within GOCSA at the time. When the Flyer was published, there were opposing views within GOCSA as to the desirability of negotiation with the Archdiocese and this had given rise to different groups or factions.
As noted above, the overall theme of the Flyer was to express concern that the Federation had resolved to participate in future negotiation with the Archdiocese without prior discussion within GOCSA and to oppose negotiations with the Archdiocese. The attention of a reader would have been attracted to this overall theme. The reference to “Mr Maras commented that he did not care if 3 churches closed” was not particularly prominent within the Flyer as a whole and would have been seen as ancillary to the overall theme.
The Flyer was sent by email to 60 to 70 members of GOCSA whose email addresses were known to Mr Lesses. It is likely that most of the immediate recipients were sympathetic to the conservative group within GOCSA. In addition, it can be inferred that some of the recipients passed on the Flyer or a reference to its contents (via the grapevine effect) to family members or friends who were likely to be members of or associated with GOCSA. It can be inferred that some of the recipients directly or indirectly were sympathetic to the moderate group within GOCSA or were relatively neutral or undecided about the Archdiocese issue but there would have been relatively few such recipients.
It is unlikely that the Flyer was passed on directly or indirectly to South Australian members of the Greek community who had adhered to the Archdiocese or were not members of GOCSA. The reader of the Flyer would have known of the schism between the Federation and the Archdiocese, that there were different viewpoints within GOCSA as to the desirability of negotiation with the Archdiocese, that Mr Lesses and the Coalition Supporting the Community Institution were opposed to negotiation and that the Flyer was sent in furtherance of that opposition.
The Flyer was emailed to the same addressees to whom the Newsletter had been emailed approximately one week earlier. As the two publications addressed largely the same matters and the Newsletter was more extensive, it is likely that the recipients did not pay as much attention to the Flyer as they would otherwise have done. The mode of the publication being by email and the overall theme of the Flyer being relevant to the forthcoming elections, it is likely that the temporal extent of the publication was relatively limited as opposed to being ongoing over a sustained period.
The context in which the Flyer was published, the identity of the persons who read or became aware of it, their relationship with Mr Lesses and Mr Maras and the limited temporal aspect of the publication were such that the defamatory imputation had less gravity than if it had been made in isolation or directed to other persons.
The extent of publication was in the mid range between a handful of persons on the one hand and the public at large on the other hand.
Mr Maras did not call evidence from any person who read or heard of the Flyer as to the effect of the three churches statement upon them. Nor did Mr Maras give evidence that any person approached him in relation to the three churches statement. While it was not incumbent on Mr Maras to adduce such evidence, there is nothing to negate the inference we would otherwise draw that the objective effect of the defamatory imputation was quite limited. This is one of those cases to which Lord Diplock referred in the following passage from Broome v Cassell & Co:[32]
The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him.[33]
[32] [1972] AC 1027.
[33] At 1125.
Mr Maras submits that, while the other statements in the three June 2011 publications were found not to sustain the untrustworthy imputation, this does not entail that the other statements were not defamatory nor that they are irrelevant to damages. Mr Maras points to statements in the Newsletter conveying that Messrs Maras, Elovaris and Mavrogiorgis acted beyond their authority from GOCSA and did not follow due process. Mr Maras points to statements in the Flyer conveying that Messrs Maras, Elovaris and Mavrogiorgis acted irresponsibly and in breach of their fiduciary obligations to GOCSA. However, Mr Maras did not plead that any of these statements comprised imputations that were defamatory and he cannot recover through the back door damages for imputations which he did not allege were defamatory. In any event, these statements were made about Messrs Maras, Elovaris and Mavrogiorgis collectively and cannot be understood as referring to the comments attributed to Mr Maras alone concerning the closure of three churches.
Mr Maras submits that Mr Lesses’ persistence in the defence of justification prolonged and exacerbated the harm to him.
Mr Lesses’ plea of justification[34] was confined to a plea that Mr Maras did say that he did not care if three of GOCSA’s churches closed. Mr Lesses did not plead that Mr Maras did not care if three of GOCSA’s churches closed, much less that Mr Maras did not care about GOCSA churches.
[34] Defence [14] and [8.4.4].
In these unusual circumstances and given that the trial Judge found that Mr Maras did say that he did not care if three churches closed, it cannot be said that by his plea of justification Mr Lesses was continuing or exacerbating the original defamation.
Mr Maras submits that Mr Lesses’ persistence in the defences of qualified privilege and fair comment, resulting in a 10 day trial and a lengthy appeal, prolonged and exacerbated the harm to him and delayed a complete and final vindication. However, the defence of fair comment was pleaded only in respect of the untrustworthy imputation and not in respect of the does not care imputation. While the defence of qualified privilege was pleaded in respect of both implications, the plea was primarily directed to the “untrustworthy” imputation and almost all of the time spent at trial and on appeal related to the defences in respect of the untrustworthy imputation rather than the “does not care” imputation. In any event, persistence in a defence of qualified privilege is quite different in its subjective effect to persistence in a defence of justification.
Ultimately it is necessary to make a holistic assessment of the appropriate amount of damages to reflect the three overlapping aspects of compensation summarised at [19] above. Having regard to all the circumstances, we assess damages at $25,000.
Conclusion
We assess damages at $25,000.
We will hear the parties as to costs of the action and costs of the appeal.
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