Maras v Lesses - [2016] SADC 40

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MARAS v LESSES
[2016] SADC 40
Judgment of His Honour Judge Chivell
21 April 2016
DEFAMATION - ACTIONS FOR DEFAMATION - TRIAL
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE
DEFAMATION - JUSTIFICATION
DEFAMATION - OTHER DEFENCES
DEFAMATION - DAMAGES
Action for defamation.
Plaintiff and defendant are both members of the Greek Orthodox Community of SA Inc. (GOCSA). Plaintiff had also been President of the Federation of Greek Orthodox Communities of Australia.
In June 2011 the defendant published three documents, a ‘flyer’, a ‘newsletter’ and an email, to GOCSA members accusing the plaintiff of actions as President of the Federation which were not authorised by GOCSA, and which put GOCSA assets, particularly their churches, at risk. He accused the plaintiff of breaching his fiduciary obligations to GOCSA, and treating GOCSA members with contempt.
Plaintiff claims that the publications carry imputations that he is untrustworthy and that he does not care about GOCSA churches, and are therefore defamatory. Defendant denies that the publications carry those imputations and denies that the statements are defamatory. In the alternative, defendant raises defence of qualified privilege at common law and pursuant to s 28 of Defamation Act. Plaintiff pleads that qualified privilege defeated by malice.
Defendant also pleads, in relation to second imputation, that the meaning is true in substance and in fact at common law, or is substantially true in substance and in fact within the meaning of s 23 of Defamation Act.
Defendant also raises defences of fair comment at common law and/or honest opinion within meaning of s 29 of Defamation Act. Plaintiff pleads fair comment/honest opinion defence not available as a fair-minded person could not have held those opinions, and opinions not honestly held by defendant.
Plaintiff claims damages and aggravated damages.
Held:
1.   The publications carry the imputations alleged by the plaintiff.
2.   The imputations are defamatory of the plaintiff.
3.   The publications occurred on an occasion of qualified privilege.
4.   The published material was sufficiently connected to the privileged occasion.
5.   The statements in the publications were untrue to the defendant’s knowledge and were made with reckless disregard for the truth.
6.    Defence of qualified privilege at common law defeated as publications actuated by malice.
7. Defence of qualified privilege under s 28 defeated as publications actuated by malice.
8.    Defence of substantial truth/justification in relation to second imputation not made out.
9.    Defence of fair comment/honest opinion defeated as opinions not honestly held.
10. Damages awarded in sum of $75,000.
11. Claim for aggravated damages dismissed.
Defamation Act 2005 (SA) s 6, s 7, s 23, s 28, s 29, s 32, s 33, s 34, s 35, s 36, referred to.
Duffy v Google Inc [2015] SASC 170; Sands v Channel Seven Adelaide Pty Ltd & Anor (2010) 270 LSJS 340; [2010] SASC 202; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; Morgan v Oldham Press [1971] 1 WLR 1239; Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; Tolley v Fry [1930] 1 KB 467; Myroft v Sleight (1921) 90 LJKB 883; Murphy v Plasterers Society [1949] SASR 98; Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682; Grundmann v Georgeson [1996] Aust Torts R 63,500; Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306; Guise v Kouvelis (1947) 74 CLR 102; Roberts v Bass (2002) 212 CLR 1; Atkas v Westpac Banking Corporation (2010) 241 CLR 79; Cush v Dillon (2011) 243 CLR 298; Horrocks v Lowe [1975] AC 135; Papaconstuntinos v Peter Holmes a Court (2012) 249 CLR 534; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; Mowlds v Fergusson (1947) 74 CLR 206; Baird v Wallace-James (1916) 85 LJPC 193; Toogood v Spyring (1834) 149 ER 1044; Henderson v London Borough of Hackney [2010] EWCH 1651 (QB); Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; Barrow v Bolt & Anor [2015] VSC 107; Hockey v Fairfax Media Publications [2015] FCA 652; Hudson v Mayes (1993) 173 LSJS 200; Briginshaw v Briginshaw (1938) 60 CLR 336; Morgan v John Fairfax & Sons (No 2) (1991) 23 NSWLR 374; Barbaro v Amalgamated Television Services (1990) 20 NSWLR 493; O'Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474; Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; Brent Walker Group Plc v Time Out Ltd [1991] 2 QB 33; Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524; Rofe v Smith's Newspapers (1924) 25 SR (NSW) 4; Sutherland v Stopes [1925] AC 47; Duffy v Google Inc (No 2) [2015] SASC 206; Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118; Broome v Cassell & Co. [1972] AC 1027; Carson v John Fairfax and Sons Limited (1993) 178 CLR 44; Ali v Nationwide News Pty Ltd [2008] NSWCA 183; Coyne v Citizen Finance Limited (1991) 172 CLR 211; Cornwall v Rowan (2004) 90 SASR 269; Herald and Weekly Times Limited v McGregor (1928) 41 CLR 254; Triggell v Pheeney (1951) 82 CLR 497; Flegg v Hallett [2015] QSC 167; Andrews v John Fairfax [1980] 2 NSWLR 225, considered.

MARAS v LESSES
[2016] SADC 40
CONTENTS
Introduction
The Parties to the Litigation
The Greek Orthodox Community of South Australia (‘GOCSA’)
The Cause of Action
The Statements Complained Of
Background Facts
- Role of Federation
- Constitution of GOCSA
- The Arrangement with the Church of True Orthodox Christians of Greece (‘GOX’)
- 27 October 2010 Meeting with Bishop Nikandros
- 19 December 2010 Federation Meeting
- Early 2011 Telephone Conversation with Mrs Lesses
- 9 May 2011 Open Letter to GOCSA Members
- 22 May 2011 Federation Meeting – Termination of GOX?
- 24-26 May 2011 Defendant Emails to Plaintiff
- 29 May 2011 GOCSA AGM
- Use of the Minutes of the 19/12/10 Federation Meeting
- 1 June 2010 - The Flyer Statement
- 1 June 2010 - The Newsletter Statement
- 4 June 2011 Article in Neos Kosmos
- 16 June 2011 Defendant Email
Did the Statements Convey the Imputations Alleged?
- Conclusion
Are the Imputations Defamatory?
- Conclusion
Qualified Privilege
- An Occasion of Qualified Privilege?
- Conclusion
- Was the Defamatory Material Sufficiently Connected to the Privileged Occasion?
- Conclusion
- Malice – Was the Occasion Used for the Purposes of the Privilege?
- The Evidence as to Malice
- Conclusion
Statutory Defence of Qualified Privilege
- Reasonableness
- Conclusion
Fair Comment
- Comment/Opinion
- Conclusion
Justification
- Statutory Defence
- Conclusion
Damages
- Aggravated Damages
MARAS v LESSES
Introduction

This is an action in defamation between two old friends. They are both members of GOCSA (Greek Orthodox Community of South Australia). Their dispute is about loyalty to that organisation. They have both contributed much to GOCSA, and to South Australia generally.
It is very unfortunate that they have not been able to settle their differences and restore their friendship.
The Parties to the Litigation
Mr Maras and Mr Lesses are both successful and respected members of the South Australian community.
Mr Maras is a very successful property developer. He is widely known and respected for his philanthropic and cultural activities. He is a member of numerous community, professional and industry organisations. He is a Member of the Order of Australia.
Mr Lesses’ background is in the union movement, firstly in the Federated Clerks Union, later as a delegate to the United Trades and Labour Council. He rose to become President of that important body. He later became a Presiding Officer of several administrative tribunals. He was appointed a Commissioner in the Industrial Relations Commission in 2000. He retired in 2006. He is also a Member of the Order of Australia.
Both men are proud of their heritage. Their families came to Australia from Icaria, also spelled Ikaria, an island in the North Aegean Sea. Icaria is named after Icarus, who, according to Greek legend, flew too close to the sun and fell into the sea nearby.
Mr Maras was born in Greece in 1948. His maternal grandfather came to Australia in 1928. He came to Australia with his parents in 1952.
Mr Lesses was born in Adelaide in 1944. His father had first come to Australia in 1926. He returned to Greece in 1932, married and returned to Australia in 1938. His wife and son, Mr Lesses’ older brother, arrived in 1939.
Mr Maras and Mr Lesses grew up in the ‘West End’ of Adelaide. They knew each other as schoolboys. Mr Lesses said that his parents were very close to Mr Maras’ grandparents. Mr Maras’ maternal grandfather was ‘revered’ in the Adelaide Greek community.[1]
[1] T 528.
Against this background, it is very unfortunate that their relationship has broken down to the extent that is apparent from the evidence.
Mr Maras was represented by Mr R Whitington QC with Mr M Sykes. Mr Lesses was represented by Mr Heywood-Smith QC with Mr D Crocker.
The Greek Orthodox Community of South Australia (‘GOCSA’)
The genesis of this litigation lies in the history of the Greek community in South Australia.
In his book The Story of a Community,[2] Dr M P Tsounis traces the early years of the Greek community in South Australia. He records that the first Greek settler in South Australia arrived in 1842. By 1914, there were about 100 Greek settlers in Adelaide, and 600 or so before 1939. By 1950, by which time the families of Mr Maras and Mr Lesses had arrived, there were about 1,000. There was a great increase in migration to Australia by Greek people in the 1950s and 1960s.
[2] Exhibit D52.
Dr Tsounis records that there was a need for an organisation to ‘represent all Greeks and speak up for them, build a Greek church, organise a Greek school for an increasing number of children and help those in dire need’.[3]
[3] Exhibit D52, page 3.
The first meeting of GOCSA was held in Adelaide in 1930. GOCSA established a school and a church, raised money for charitable purposes, and supported new arrivals to Australia. Mr Lesses described how GOCSA provided accommodation for his family when they first arrived in Adelaide in 1942 until they were able to find their own.[4]
[4] T 500.
During the era of ‘mass migration’, the Greek community in Adelaide grew to about 12,000 by 1961, and 22,000 by 1971.[5] GOCSA grew along with this increase. A community centre (Olympic Hall) was built in 1957, and further schools were established.
[5] Exhibit D52, page 37.
During the late 1950s, tensions grew between GOCSA and the Church of Greece, an Archdiocese of the Greek Orthodox Church which is closely associated with the Greek government. The Church is recognised in the Greek Constitution. In Greece, its priests are public servants, paid by the government. The Church is highly influential in matters of government policy.[6] I will refer to the Church of Greece as ‘the Archdiocese’. This was the terminology used by all the witnesses.
[6] T 505.
During the late 1950s, the Archdiocese sought to convert the various Greek communities in Australia, in Adelaide and elsewhere, into parishes of its Church, and to take control over the valuable assets which they had built up. This was deeply resented by many GOCSA members. The Federation of Greek Orthodox Communities of Australia was established in 1958 to present a united front to oppose the Archdiocese ‘taking over’ the role of GOCSA and the other communities in Australia.
In 1960, GOCSA severed all relations with the Archdiocese. Communities in Newcastle, Melbourne and Sunshine (Victoria) followed. The leader of the Archdiocese, Archbishop Ezekiel, excommunicated several of the community representatives involved, and declared all sacraments by priests other than those of the Archdiocese to be ‘uncanonical’. This also had unfortunate legal effects for people since their marriages and inheritance rights were invalidated under Greek law.[7]
[7] Exhibit D52, page 57.
This invalidation of the sacraments of GOCSA churches has been referred to throughout these proceedings as the ‘ecclesiastical issue’.
Dr Tsounis suggests that there is also a political element to these resentments. He observes that the Greek Civil War of 1946-49 was won by a right‑wing government supported by Britain and the United States of America. It would seem that many GOCSA members saw the Archdiocese as a right-wing and authoritarian organisation associated with the Greek government of the time. For their part, the Greek government of the time and the Archdiocese described the GOCSA officeholders behind the severance of relations as communists and traitors.[8] Mr Lesses described the Archdiocese as despotic and anachronistic.[9]
[8] Exhibit D52, pages 61-3.
[9] T 515-16.
Mr Maras said that his family were ‘strict’ followers of GOCSA. The divisions between GOCSA and the Archdiocese were so great that ‘you either belonged to one or the other organisation’.[10] He described the situation faced by Greek families:
Well, we have two churches with the same beliefs, the same dogma, serving one race, but unfortunately it has set families apart, it has stopped young adults from getting married. It has become major problems within families and households, sacraments of christenings are not recognised. When people go for Holy Communion if you haven't been baptised in the church of the Archdiocese the child can't get Holy Communion and it's appalling, and it keeps going on, and on, and on. And unfortunately, that divide has been deep-rooted.[11]
[10] T 52.
[11] T 56.
Mr Maras became a member of GOCSA in 1997. He had been encouraged to join and contribute by Mr Lesses. He applied his skills as a property developer in the development of the Greek Aged Care Home at Ridleyton. He became President of GOCSA in 2001, and President of the Federation soon afterwards. He did not seek re-election as President of GOCSA in 2007, but he remained President of the Federation until 2012.
Mr Lesses has been a member of GOCSA continuously since he turned 21 in 1965. His father had been a member since 1942. Mr Lesses and his family have also been passionate supporters of GOCSA for a long period.
Neither Mr Maras nor Mr Lesses disputed the other man’s claim to be a passionate and committed member of GOCSA. Nor did either man dispute the support given by the other to GOCSA’s antipathy to the apparent aims of the Archdiocese.
Mr Lesses’ attitude changed in late 2009. Mr Lesses said that his relationship with Mr Maras became strained as a result of the termination of the employment of a priest, Father Foti Tsitsis, on 11 January 2010.[12] Mr Maras was no longer President of GOCSA by then, but Mr Lesses seems to have attributed the blame to him and his allies on GOCSA’s Executive Committee for what he saw as the unjust treatment of Father Tsitsis.
[12] T 535.
The Cause of Action
Mr Maras sues Mr Lesses in defamation. The elements of the tort have been explained by Blue J in Duffy v Google Inc[13] as follows:
The common law tort of defamation is comprised by publication by the defendant to another person of matter defamatory of the plaintiff.
The tort can be divided up into the following ingredients:
1.     the defendant participates in publication to a third party of a body of work;
2.     the body of work contains a passage alleged to be defamatory;
3.     the passage conveys an imputation;
4.     the imputation is about the plaintiff;
5.     the imputation is damaging to the plaintiff’s reputation.
[13] [2015] SASC 170 at [157]-[165]. See also P George Defamation Law in Australia (Lexisnexis Butterworths, 2^nd ed, 2012) at page 125.
Since the Defamation Act 2005 (SA) was enacted and came into effect on 1 January 2006, the law of defamation has been constituted by both the common law, or the ‘general law’, and the provisions of the Act. The Act provides:
6—Tort of defamation
(1) This Act relates to the tort of defamation at general law.
(2) This Act does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication).
(3) Without limiting subsection (2), the general law as it is from time to time applies for the purposes of this Act as if the provisions of Part 2 of the Civil Liability Act 1936 had never been enacted.
7—Distinction between slander and libel abolished
(1) The distinction at general law between slander and libel is abolished.
(2) Accordingly, the publication of defamatory matter of any kind is actionable without proof of special damage.
In these reasons, any reference to the common law is made on the basis that the Act does not provide otherwise (whether expressly or by necessary implication), in accordance with s 6(2).
As to the five ingredients identified by Blue J:
1.publication by the defendant of the body of work to a third party is admitted in the pleadings;[14]
2.the content of the body of work containing the passages complained of is also admitted in the pleadings;[15]
3.the imputations conveyed in the passages complained of by the plaintiff are disputed by the defendant;
4.there is no dispute, and it is obvious on the evidence, that the alleged imputations are about the plaintiff;
5.damage to the plaintiff’s reputation as a result of the published statements is disputed.
The Statements Complained Of
[14] Third Defence, paragraphs 4.1, 5.1, 6.1.
[15] Third Defence, paragraphs 4.1, 5.1, 6.1.
Mr Maras says that the following statements were defamatory of him:
·a ‘flyer’ published by Mr Lesses on or about 1 June 2011 to members of GOCSA.[16] The following statements in the document are pleaded in the Statement of Claim:
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.
·a newsletter, also published on or about 1 June 2011 to GOCSA members.[17] Mr Maras points to the following statements in the document:
No GOCSA General Meeting authorised Messrs T Maras, E Mavrogiorgis and V Elovaris to discuss ecclesiastical issues with the Archdiocese [GOAA].
Members should hold T Maras, V Elovaris and E Mavrogiorgis accountable for this travesty of due process.
·an email published on or about 16 June 2011 to members of GOCSA.[18] Mr Maras points to the following statement in the document:
Mr T Maras and Mr E Mavrogiorgis are blatantly treating GOCSA members with contempt!
[16] Exhibit P6.
[17] Exhibit P5.
[18] Exhibit P10.
Mr Lesses admits that he published the flyer, the newsletter and the email to GOCSA members on the dates specified.[19] He notes that the statements identified by Mr Maras do not include all the statements in each document, and annexes each document to the Defence.[20]
[19] Third Defence, paragraphs 4.1, 5.1 and 6.1.
[20] Third Defence, paragraphs 4.2, 5.2, 6.2, Annexures A, B and C.

Mr Maras says that the statements in these three documents were defamatory of him because, in their natural and ordinary meaning, they meant, and were understood to mean, that he is untrustworthy.[21]
[21] Second Statement of Claim, paragraph 7.
Further, Mr Maras says that the statement in the email was defamatory of him in that, in its natural and ordinary meaning, it meant, and was understood to mean, that he did not care about GOCSA churches.[22]
[22] Second Statement of Claim, paragraph 8.
As to each of the alleged meanings in each of the three documents pleaded by Mr Maras, Mr Lesses pleads in his defence that:
·he denies that the statements give rise to the meanings alleged;[23]
·he denies that the statements are defamatory of Mr Maras;[24]
·if the statements do carry the meanings ascribed to them by Mr Maras, they were published on an occasion of qualified privilege at common law and pursuant to s 28 of the Defamation Act.[25]
As to each plea of qualified privilege, Mr Maras pleads in his reply that such a plea is not available to Mr Lesses because his publication was actuated by malice;[26]
·additionally, as to the imputation allegedly arising from the flyer that Mr Maras did not care if three GOCSA churches closed, Mr Lesses pleads that the meaning is true in substance and in fact at common law, or is substantially true in substance and in fact pursuant to s 23 of the Defamation Act;[27]
·an alternative pleading by Mr Lesses is that if the statements in each of the three documents carried the meanings ascribed to them by Mr Maras, the meanings constituted fair comment at common law, and/or honest opinion pursuant to s 29 of the Defamation Act.[28]
As to each plea of fair comment/honest opinion, Mr Maras pleads in his reply that such a plea is not available to Mr Lesses because his publication did not amount to comment or opinion, a fair-minded person could not have held such opinions, and Mr Lesses did not honestly hold those opinions at the time of publication.[29]
[23] Third Defence, paragraph 7.1.
[24] Third Defence, paragraph 7.2.
[25] Third Defence, paragraph 8.
[26] Second Reply, paragraph 8.
[27] Third Defence, paragraph 14.
[28] Third Defence, paragraph 11.
[29] Second Reply, paragraphs 11 and 12.
Mr Maras alleges that by reason of the publication of the statements, he has been injured in his reputation and brought into ridicule, odium and contempt. He says the damage he has suffered has been aggravated by Mr Lesses’ malicious intent in publishing the statements.
The grounds upon which these various assertions and counter-assertions and replies have been made in the pleadings have given rise to a number of factual issues.
I will analyse the various legal principles in due course. In order to demonstrate the relevance of what follows, I set out a summary of the factual issues identified in the pleadings:
·Mr Lesses asserts that Mr Maras was appointed by GOCSA as a delegate to the Federation and therefore had a duty to GOCSA to represent its interests. Mr Maras contradicts this, saying that upon becoming President of the Federation, his duty of care was to the Federation to represent the principal aims and objects identified in the Constitution;
·there was a General Meeting of the Federation on 19 December 2010. Mr Lesses asserts that Mr Maras attended to represent GOCSA. Mr Maras says he was there as President of the Federation. He adds that Messrs Mavrogiorgis and Elovaris, the President and General Secretary of GOCSA respectively, were there representing GOCSA. He says their presence was ‘to allow communications to flow from one organisation to the other’;
·Mr Lesses asserts that, at the 19 December 2010 meeting, Mr Maras supported a decision of the Federation ‘to renew its past decision with respect to the ecclesiastical issue … and to participate with the Archdiocese in future developments’.[30] He says Mr Maras did so without the approval of the GOCSA Executive Committee, and contrary to the GOCSA Constitution. Mr Maras denies that any such decision was taken. He says the only decision made was that the Federation should participate in dialogue with the Archdiocese in the event that any such dialogue occurred. This was its proper function. In any event, he says he had left the meeting before this decision was made;
·Mr Lesses asserts that the decision made would have an impact on GOCSA, including the closure of its churches and potential sale of its assets. Mr Maras denies this;
·Mr Lesses says that Mr Maras met with Bishop Nikandros of the Archdiocese on 27 October 2010; that the bishop had requested him to raise the ecclesiastical issue with the Federation; that Mr Maras agreed to do so if he had the blessing of Archbishop Stylianos of the Archdiocese; that Mr Maras had received the blessing so he would raise the ecclesiastical issue at the next meeting. Mr Maras says that he had met Bishop Nikandros by chance, he had been present for another purpose. He agreed that Bishop Nikandros made the request, and he had sought confirmation that Bishop Nikandros’ approach had the blessing of the archbishop, not that Mr Maras had sought or received any such blessing;
·Mr Lesses says that in January 2011, prior to publication of the flyer, Mr Maras was heard by Mr Lesses to say that he did not care if three of GOCSA’s churches closed. Mr Maras denies this allegation and points to various matters which he says contradict the allegation and, in particular, the efforts he had made over the years to keep GOCSA churches open;
·Mr Lesses asserts that Mr Maras failed to explain his support of the ‘decision’ made at the 19 December 2010 Federation meeting at the GOCSA annual general meeting on 29 May 2011. Mr Maras says that there was no new ‘decision’ to explain, and in any event, the annual general meeting was not an appropriate forum for any such explanation;
·Following the Federation meeting of 19 December 2010, a ‘media release’ was issued in Greek. There is controversy about the translation of the media release, and whether it was reasonable for Mr Lesses to rely on it in forming his conclusions about what decision had been made at the meeting, and whether Mr Maras supported it;
·On 3 July 2011, there was to be an election of the GOCSA Executive Committee, and Mr Lesses stood as a candidate. He says his candidature had no relevance to the publication of the relevant statements. Mr Maras asserts that Mr Lesses published the statements to embarrass him and to further his political ends in relation to that candidacy, and his ambition, if elected to the Executive Committee, to be elected by the Committee as President of GOCSA. Mr Lesses denies this;
·Mr Lesses criticises Mr Elovaris’ handling of the annual general meeting of GOCSA on 29 May 2011. He suggests that there was an attempt to cover up the outcome of the 19 December 2010 Federation meeting from GOCSA members by needlessly delaying the meeting and preventing him from handing out copies of the 19 December 2010 minutes. Mr Maras says the meeting was conducted in an appropriate way, and was chaired not by Mr Elovaris but by Mr Peter Ppiros.
[30] Third Defence [8.1.5].
At its clearest, Mr Lesses’ accusation against Mr Maras is expressed in paragraph 13.2.5 of the Third Defence:
The leadership within GOCSA, being the Plaintiff as President of the Federation and Mr Elovaris, as the President of GOCSA, sought to enter into an arrangement with the Archdiocese, to give control over GOCSA churches to the Archdiocese, without informing or seeking approval of GOCSA members or the Executive Committee. This arrangement could have led to four GOCSA churches being closed in accordance with canonical law.
Background Facts
- Role of Federation
It is clear that the various Greek Orthodox communities formed the Federation in 1958 in response to the perceived threat posed to their independence by the Archdiocese.
There had been several attempts made to effect a resolution of the ecclesiastical issue over the years. All of these attempts were conducted by the Federation from a position of relative strength, rather than individual communities negotiating separately.
There are many passages in the records of GOCSA which recognise the role of the Federation in this regard. I quote several passages by way of example:
·    (The President informs the meeting) about the decision of the Federation of the Communities that no community will negotiate on its own or come in contact with the Archdiocese but only with the governing council of the Federation.[31]
·    In the ecclesiastical issue, the Federation does the best it can do, in order to show to the Greek Community that its intentions for an honest and democratic dialogue on the serious issue of reconciliation are always well-meaning and sincere.[32]
·    The President refers to federation matters and particularly the ecclesiastical issue. The Federation of the Greek Orthodox Communities of Australia in many of its meetings dealt with the dispute issue, and it was characteristically stressed, the Federation of Communities Australia as always and now is ready for a dialogue with the Holy Archdiocese vexed issue of the dispute of which the consequences to Hellenism have created huge social and national problems. Unfortunately, though, and as it is known the Holy Archdiocese is always avoiding such a dialogue.
The doors of the Federation of Communities Australia are and remain open for the beginning of a dialogue, with the Archbishop Mr Stylianos on the principles which will safeguard the rights of the communities. For years now the Federation of the Greek Orthodox Communities of Australia has been asking for the beginning of an honest dialogue for the burning dispute issue, but unfortunately the Holy Archdiocese has never shown any signs of approach, for such a step.
The President assures the members that at the federation meetings which are called from time to time the dispute issue always has a primary position on the agenda, as we have repeatedly stressed, creates national and social problems to the Greek Communities of Australia with disastrous consequences to Hellenism in general.[33]
[31] Exhibit P48 Tab 4 - AGM of GOCSA 18/1/76.
[32]   Exhibit D41 – AGM of GOCSA 19/7/87.
[33] Exhibit D41 – AGM of GOCSA 18/9/88.
At the GOCSA annual general meeting on 26 June 2005, then President Mr Maras reported:
Through the Federation of the Greek Orthodox Communities we continue our efforts with the Patriarchate and we hope to make a visit to the Patriarch to submit yet again our situation, in order to resolve the schism of over 45 years, which not only has disadvantaged Orthodoxy in Australia, but the entire Greek population. We are strengthening our position with the support of Bishop Paul Christianoupoleos, and Archimandriti Gregory and Filaretou, together with our Holy Fathers Nicholas, George, John and Theodore, who tirelessly attend to our religious needs.[34]
[34] Exhibit P12.
Indeed, it was customary that at GOCSA annual general meetings, the report concerning the ecclesiastical issue came in the section of the minutes entitled ‘Report of the Federation’.[35]
[35] See, for example, the extract of the 2009 annual general meeting, Exhibit P14.
In 2007, a delegation from the Federation, including Mr Maras and Mr E Mavrogiorgis, and representatives of the Greek government, visited the Ecumenical Patriarchy of Constantinople in Istanbul, Turkey. Mr Maras told the Patriarch that they were having difficulty recruiting priests to provide ‘ecclesiastical coverage’ in GOGSA’s churches. He explained that priests are public servants in Greece, and they enjoy good wages and conditions. If a priest came to Australia to work for GOCSA, he would be ‘defrocked’ by the Archdiocese.[36] Younger priests in Greece are understandably reluctant to come to Australia and thereby put their careers at risk.
[36] T 65.
In his report to the GOCSA annual general meeting on 24 June 2007, Mr Maras said:
I visited the Fanari (ie the Ecumenical Patriarchy of Constantinople) again with Mr E Mavrogiorgis, accompanied by Ambassador Mr Xyda, who represented Mr Skandalakis, the Deputy Foreign Minister, once again, and we presented the positions of the Federation to the Patriarch, we agreed to place the necessary empowered clergyperson in Australia, but unfortunately, we have had no response except our written requests to the Fanari. “I give you my word that we will continue with our push in all directions for spiritual coverage from the Mother Church, and we will not stop until we find justice. Of course, I recommend patience till we find a fair and viable solution.
“I want to stress”, continued Mr Maras, “that at the duration of our discussions with the Fanari, we clarified that we seek spiritual and ecclesiastical coverage and are not negotiating our independence or the property of the Community.”[37]
[37] Exhibit P13.
There is no mention, in the evidence of witnesses or the records of GOCSA before the court, of any challenge to the idea that it was the role of the Federation to seek a solution to the ecclesiastical issue until the events of 2010-11. Furthermore, there was no mention of any requirement that the Federation should seek prior authorisation from GOCSA, or any other community, before they were entitled to discuss the ecclesiastical issue with the Archdiocese.
I heard evidence from the late Mr Nick Manos, a former Chief Magistrate, and a long‑serving member and former President of GOCSA.
Mr Manos spoke about the various negotiations with the Archdiocese during his time as an office-holder, from 1969 to 1973 and 1977 to 1985.[38] The alleged anxieties that the suggestion of negotiations with the Archdiocese provoked in Mr Lesses and others in 2010-11 did not seem to have arisen during Mr Manos’ tenure.
[38] T 799-800.
However, in June 2011, Mr Manos wrote an open letter to GOCSA members expressing concern at the possibility of negotiations between the Federation and the Archdiocese.[39] He wrote:
Only some five months earlier on 19/12/10 it is reported that the Federation of Greek Orthodox Communities (of which our Community is a member and was represented), unanimously agreed to discussions on the ecclesiastical issue with the Archdiocese. If this report is correct, what a betrayal, what a stab in the back for the Genuine Orthodox Church referred to in the President’s letter.
[39] Letter dated 30 June 2011, Exhibit D36.
Mr Manos said he first became aware of this ‘resolution’ by the Federation when he received the newsletter dated 1 June 2011.[40] He did not get a copy of the minutes of the 19 December 2010 meeting until July.[41] He said that the minutes coincided with Mr Lesses’ translation in the newsletter.[42]
[40] Exhibit P5.
[41] T 804.
[42] T 805.
Leaving the issue of the accuracy of Mr Lesses’ translation to one side, Mr Manos said that his assertion of a ‘betrayal’ was based upon his view that:
… you would need, in my view, a preliminary or an initial okay from the GOCSA executive committee before you could even entertain a discussion with the Archdiocese.[43]
[43] T 835.
Mr Manos acknowledged in cross-examination that the events of the 19 December 2010 Federation meeting were reported back to the next Executive Committee meeting of GOCSA.[44]
[44] T 837.
Mr Whitington then put the following questions:
Q.   Yes, but there’s a difference, isn’t there, between reporting back and referring back for the purpose of authority, you accept that as a lawyer, don’t you.
A.   Yes, I do.
Q.   And you accept, don’t you, that if there are to be no negotiations or no substantive step is being taken towards negotiations, while the resolution that we’re talking about might come, and a report back, it doesn’t come, and a reference back for the purpose of getting authority; do you agree with that.
A.   Yes.[45]
[45] T 837.
Mr Lesses was cross-examined about the procedure adopted by committees in the past, that is before 2010, during their ‘8 or 9’ attempts to achieve some sort of settlement of the standoff between GOCSA and the Archdiocese. Referring to a delegation from the Federation going to Athens in 1992, Mr Lesses was asked:
Q.   So the process followed on this occasion was that with the knowledge of the communities or at least their executives and probably with the communities as a whole, representatives of the Federation went to Athens to seek an arrangement with the Archdiocese.
A.   Yes – sorry, not an arrangement with the Archdiocese, to see if they can find a solution to the ecclesiastical issue.
Q.   Involving both the Greek government and the Archdiocese.
A.   Yes.
Q.   Apparently an agreement was reached.
A.   An in principle agreement was initialled, yes.
Q.   It was regarded as an agreement which could only ever be in principle on the side of the communities.
A.   Certainly.
Q.   Because everybody understood it had to be referred back to the community bodies and their members.
A.   Yes.
Q.   For their scrutiny and acceptance or rejection.
A.   Certainly.
Q.   That is what happened on this occasion.
A.   It did.[46]
[46] T 608.
What is abundantly clear from the entirety of the evidence, including that of Mr Manos and Mr Lesses, is that the Federation was established for the express purpose of presenting a united front in any negotiations with the Archdiocese, but that it had no power to bind individual communities to any agreement, particularly if their independence was thereby threatened or their assets put at risk. The Federation had no power to reach other than ‘in principle’ agreements with the Archdiocese, which were always subject to their acceptance or rejection by GOCSA. Mr Lesses’ allegations in the three publications must therefore be read in that context.
These observations arise particularly from the provisions in GOCSA’s Constitution, provisions which Mr Manos was instrumental in developing. I will discuss these provisions in the next section.
- Constitution of GOCSA
In order to safeguard themselves from the anticipated depredations of the Archdiocese, the members of GOCSA amended its Constitution so that it included a number of defensive provisions.
In particular, paragraph 2A provides:
2A. INDEPENDENCE
(1) The Community shall always remain self governing independent and autonomous and shall be governed according to this paramount clause, and the other clauses of the Constitution. At no time and under no circumstances shall the Community relinquish any of its rights or be bound by terms or clauses foreign to this Constitution. Neither in its government nor in its administration shall the Community be subject to any ecclesiastical, political, or other, body or authority.
(2) In order to make known the history of the Community and in particular the attempts to deprive it of its independence and democratic government the Community shall finance, undertake and maintain the compiling, editing, printing, distribution and publication of such history under the auspices of the membership Committee.[47]
[47] Exhibit P1.
Paragraph 2A(1) was inserted in 1972, and paragraph 2A(2) in 1973. Dr Tsounis’ book was published pursuant to paragraph 2A(2).
Mr Maras said that he had adhered to the principles in paragraph 2A(1) all his life and he would never do anything to compromise the independence of GOCSA.[48] It was clear that Mr Lesses had the same philosophy and was passionate in his views.
[48] T 60.
Paragraph 28 of the Constitution was also added in 1973. It reads:
28. AMENDMENTS TO THE CONSTITUTION
(1)Clauses 2, 2A, 2B, 4A, 27 and this clause 28 shall not be capable of amendments, alteration, addition or substitution unless all the financial members of the Community decide otherwise.
(2)All remaining clauses shall be capable of amendment, alteration, addition or substitution if 60% of the financial members present in the meeting called for this purpose vote in favour of the amendment, alteration, addition or substitution.

Mr Whitington cross-examined Mr Lesses at length about these defensive provisions. Mr Lesses described paragraph 2A as ‘paramount’.[49] He was the Assistant Secretary of GOCSA in 1972 when the paragraph was inserted.[50]
[49] T 588.
[50] T 590.
Mr Lesses’ evidence about the degree of authority held by the Federation to talk to the Archdiocese was therefore, in my view, illogical. The following exchange took place in cross-examination in relation to the multiple attempts by the Federation to negotiate an agreement with the Archdiocese:
Q.   But consistent with what you understand to be due process, you would have expected that all of those attempts, or any such attempts, were made through the Federation.
A.   Yes.
Q.   Seeking to reach an agreement around the ecclesiastical issue in principle with a view to reporting back to the community bodies and letting the members decide.
A.   Yes.
Q.   Indeed, you accept, don’t you, that under the GOCSA constitution particularly clause 2A, what Mr Manos put is correct, that is that you could only ever expect an agreement in principle at the Federation level but GOCSA itself would not be bound, bearing in mind the nature of the arrangement, unless and until all members agreed.
A.   Yes.
Q.   I should indicate that it is the Federation that enters into the agreement with the synod of the community. That is exactly –
A.   That is how I understand the position to be.
Q.   That is what Mr Manos writes in the document I referred you to.
A.   Yes.
Q.   So, you are at one with him about that.
A.   Certainly.
Q.   And he gives a reason for that and you accept the reason. The reason, in the case of GOCSA at least, is eventually bound up with clause 2A.
A.   Exactly.
Q.   From GOCSA’s point of view if there is to be any negotiation of an agreement, particularly bearing in mind the interests of the kindred associations, it has to be done at federation level but only as a matter of principle.
A.   Yes.
Q.   And the members of GOCSA will always have the final say.
A.   Certainly.
Q.   And that is as you have always understood the position.
A.   Yes.
Q.   Now, on that basis you would accept, wouldn’t you, the federation wouldn’t need any direct authority from GOCSA to negotiate on behalf of GOCSA and the other community bodies; it would be appropriate for the federation to attempt to negotiate a resolution of the ecclesiastical issue in principle, subject always to the overriding authority and consent thereafter of the GOCSA members.
A.   No, I don’t accept that.
Q.   You don’t accept that.
A.   No, I don’t accept that.[51]
[51] T 611-13.
Mr Lesses’ position is contradicted by the very reason the Federation was established in 1958. The various entries in the records of GOCSA meetings show that the Federation had a standing authority to discuss the ecclesiastical issue with whomever it considered appropriate.
As previously observed, there is no evidence, apart from the ex post facto evidence of Mr Lesses and Mr Manos, that the Federation required the permission of GOCSA before any discussion could take place, let alone before an in-principle agreement could be reached.
-
The Arrangement with the Church of True Orthodox Christians of Greece

(‘GOX’)
By 2009, the difficulties that GOCSA was having with recruitment of priests had become serious. Mr Maras, in his capacity as President of the Federation, travelled to Greece (at his own expense, he was anxious to point out) to see what could be done. The President of GOCSA, Mr Vassili Elovaris, and the Secretary of the Federation, Mr Elias Mavrogiorgis, who was also Secretary of GOCSA, also attended. At the suggestion of a Greek Cabinet Minister, Mr Maras and Mr Elovaris had discussions with an ‘old calendar’ church[52] called the Church of True Orthodox Christians of Greece. This Church was known, using the English acronym, as ‘GOCC’ or ‘GOX’. GOX was independent of the Church of Greece.
[52] The Gregorian calendar was introduced by Pope Gregory XIII in the 16^th century. It was almost universally adopted in the West. The Orthodox churches continued to use the older Julian calendar until 1924, when the Greek Orthodox Patriarchate of Constantinople adopted the Gregorian calendar. The ‘old calendar’ churches, also known as paleomerologites, including GOX, declined to do so, and continue to use the Julian calendar in relation to religiously significant events.
Mr Maras explained that GOX was recognised by the Greek government. By engaging with them, GOCSA hoped that the ecclesiastical issue could be resolved, since their sacraments would be recognised.
These discussions led to the signing of a document, on 25 November 2009, at Pireaus, containing the terms of an agreement between GOX and the Federation.
The Very Reverend Avxentios, Metropolitan of Aegina, and President of the Holy Synod of GOX, signed on behalf of GOX, and Mr Maras signed the document on behalf of the Federation.[53]
[53] Exhibit P40.
The agreement set out respective roles of GOX and the Federation. It notes that the Federation ‘will cover all of the relevant costs (accommodation, living and transport expenses) that the Metropolitan will incur in the dispatch of his Pastoral duties’.[54]
[54] Exhibit P40 [5].
Mr Maras had given advance notice of his discussions with GOX. He gave a report on his proposed trip to Greece at the GOCSA annual general meeting on 31 May 2009.[55] He gave a further report at the annual general meeting of the Federation on 24 October 2009, at which the President and Secretary of GOCSA were present.[56]
[55] Exhibit P14.
[56] See Exhibits P15 and P28.
The consultation process with the individual communities was described by Mr Maras as follows:
Well, we then developed heads of agreement that we sent out firstly to the church in Greece which agreed with us. Then we distributed the heads of agreement to all of the communities that were associated with the Federation. In addition to that we sent out heads of agreement to senior members of the Greek community here in South Australia who had in the past experience viewed the agreement and came back with suggestions. We corrected - or revised I should say - the agreement, sent them back for approval with the synod in Greece. Some minor adjustments were made. Then each of the bodies, being the States, had to come back with a letter of agreement to say they were prepared to be part of or otherwise of us joining with this particular body.[57]
[57] T 75-6.
The President of GOCSA, Mr Elovaris, confirmed that the communities contributed to the agreement.[58] He said that GOCSA was party to that arrangement.[59]
[58] T 337.
[59] T 338.
I regard this evidence, which was not challenged in cross-examination, as important. Mr Maras is accused by Mr Lesses of arrogating to himself, as President of the Federation, the power to bind GOCSA and the other constituent bodies of the Federation to agreements he negotiated on the ecclesiastical issue. In my view, this evidence demonstrates that Mr Lesses’ accusation is incorrect.
Mr Maras described the agreement with GOX as ‘in principle’. In cross‑examination he acknowledged that the document is not expressed that way, but that was his own view.[60]
[60] T 322.
As it happened, this process may have led to the decision made by the Greek Orthodox Community of New South Wales to withdraw from the Federation and deal directly with the Archdiocese. This occurred later, in May 2011.[61]
[61] See Memorandum of Understanding between the Archdiocese and the NSW Community signed on 25 May 2011, Exhibit D63.
At its Executive Council Meeting on 9 February 2010, GOCSA ‘accepted’ the agreement between the Federation and GOX.[62] This is consistent with Mr Maras’ assertion that the agreement was always subject to its acceptance by the communities.[63] Mr Elovaris also said (at T 418) that the agreement was discussed in his President’s Report to the GOCSA annual general meeting in June 2010.[64]
- 27 October 2010 Meeting with Bishop Nikandros
[62] Exhibit P39, page 2.
[63] T 76.
[64] Exhibit P46, President’s Report, page 9.
Mr Maras is a Founding Member of the Foundation for Hellenic Studies based at Flinders University. The Foundation supports a chair at Flinders University in Hellenic language and cultural studies. He explained that the Foundation dealt with both sides of the ecclesiastical issue. One of the roles of the Foundation is to improve the accessibility and quality of Greek language education in Australia.[65]
[65] T 41.
On 27 October 2010, Mr Maras attended a meeting at St George College in Mile End. St George College is operated by the Archdiocese. He said the purpose of the meeting, as he understood it, was to discuss Greek language education issues with the principal and College officials.
Also present at the meeting were Bishop Nikandros and Father Patsouris from the Archdiocese. Mr Maras said he did not know that they would be present. After the discussion about educational issues, Bishop Nikandros asked Mr Maras why the Federation was not willing to discuss ‘getting together’ with the Archdiocese. Mr Maras said he asked Bishop Nikandros to put the approach in writing, because the topic always arose when GOCSA and Archdiocese people got together. He said he wanted to know that the approach had the blessing of the Archbishop.[66]
[66] T 82.
A letter followed from Bishop Nikandros which indicated that he had the authority from the Archbishop to discuss the issue of reconciliation further. Mr Maras said he does not have the letter. He said he probably gave it to the secretary of the Federation. In any event, the letter is not in evidence.[67]
[67] T 247.
In response, Mr Maras wrote a letter to Bishop Nikandros dated 29 November 2010.[68] He wrote:
As discussed I will raise the issue of a meeting with the Archdiocese at the next General Meeting of the Federation of the Greek Orthodox Communities of Australia, which should take place in the near future.
[68] Exhibit P8.
Mr Maras said he gave the correspondence to Mr Mavrogiorgis, the General Secretary of the Federation. Mr Mavrogiorgis was also the Secretary of GOCSA at the time. The minutes of the Federation meeting of 19 December 2010 show that the letters were described in detail.[69] Mr Maras said they were tabled.[70]
[69] Exhibit P2, page 3.
[70] T 299.
Clearly, as far as Mr Maras was concerned, there was no secret about this correspondence.
Mr Lesses said he first became aware of the letter when he saw it published in the ‘Neos Kosmos’ newspaper on 4 June 2011. Much had occurred in the interim, but he described his reaction:
I was in somewhat disbelief. I couldn't understand why the information contained in that letter wasn't conveyed to the executive committee of GOCSA. For example, we had the comments made by Mr Elovaris that Mr Maras is continually having discussions or coffee with these people but hasn't signed anything. That was a statement made in the December 2010 executive committee meeting of GOCSA. Here is a letter that fronts up six months later. This is a formal letter from Mr Maras as president of the Federation with a duty of care to GOCSA.[71]
[71] T 554-55.
I find Mr Lesses’ reaction puzzling:
·Mr Maras was no longer a GOCSA office-holder and, in particular, he was not a member of its Executive Committee;
·if anyone should have conveyed the information to GOCSA, it was Mr Mavrogiorgis;
·all that the letter indicates is that Mr Maras would raise the issue at the next meeting of the Federation;
·the implication that Mr Maras was somehow hiding the letter is clearly wrong;
·these events occurred in the context that, at a meeting on 11 June 2007, when Mr Lesses was Vice-President of GOCSA, the Federation set up a committee of five people to pursue an ‘honest and effective dialogue’ with the Archdiocese about the ecclesiastical issue. This was reported in a media release.[72] Mr Elovaris said the issue of reconciliation was discussed all the time at the Federation level.[73]
[72] Exhibit P45.
[73] T 416.
Having regard to these factors, Mr Lesses’ apparent reaction to reading Mr Maras’ rather innocuous letter seems quite excessive, so much so that I doubt its authenticity. Mr Lesses’ subsequent conduct is much more consistent with an arousal of Mr Lesses’ political instincts in that he senses that the letter presented an opportunity to challenge the leadership of GOCSA.
It is clear that the Executive Committee of GOCSA was aware of these events. The minutes of the meeting of the Executive Committee on 14 December 2010 record:[74]
Nick Kyriazopoulos referred to general talk that Theo Maras is having meetings with the Archdiocese. He continued to say that Theo Maras has always had coffee with these people but has not committed the GOCSA to anything.
[74] Exhibit P42 at page 2.
The minutes were corrected at the next meeting on 8 February 2011,[75] since the evidence is that it was Mr Elovaris, and not Mr Kyriazopoulos, who made that comment on 14 December.
[75] Exhibit P49.
There is no evidence that Mr Maras was ‘having coffee with these people’. I expect that ‘having coffee’ is a euphemism for ‘discussing’.
Mr Lesses said he saw these minutes in February or March 2011. He said:
I simply noted it and took it on board. I mean, I was very concerned that the executive committee had knowledge of Mr Maras having discussions with members of the archdiocese, but the critical thing that concerned me was that the minutes said that Mr Maras hasn't signed anything, and of course in my mind was to say 'Well, what is there to sign? Why would Mr Maras sign anything when it's a matter dealing with the community?'[76]
[76] T 541.
Mr Lesses is not being consistent here. He said he was in disbelief that Mr Maras’ letter had not gone to the GOCSA Executive Committee, yet here he is expressing concern that the Executive Committee did know about Mr Maras’ discussions, such as they were, with the Archdiocese. Further, taking the comment that he ‘hasn’t signed anything’ as a reason to suspect that there was something to sign (this is what he meant by ‘Well, what is there to sign?) is quite unreasonable and illogical.
- 19 December 2010 Federation Meeting
There was a general meeting of the Federation held in Melbourne on 19 December 2010. The minutes are Exhibit P2. They are inaccurate in several respects. For example, they record that the meeting was held on 24 October 2009 in Adelaide, which related to the meeting the previous year.
The meeting was somewhat rancorous from the start. The New South Wales Community had earlier refused to join the others in allowing GOX to provide ecclesiastical coverage. There was some criticism of the New South Wales decision.
Mr Maras told the meeting of the approach from Bishop Nikandros and, as he undertook to do in his letter of 29 November 2010, he tabled the letter at the meeting.
Mr Danalis, the President of the Sydney Community, then advised that, on 6 October 2010, they had commenced direct discussions with the Archdiocese which were progressing satisfactorily. Mr Maras said in evidence that he had been unaware of this prior to the meeting.[77]
[77] T 96.
The minutes are somewhat confusing. They read:
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).
Mr Maras said that he left the meeting at a much earlier stage than is indicated in the minutes. He noted that the minutes record that the meeting closed at 3.30 pm. He said that Mr Danalis’ proposal was seconded by Mr Tsilimos, but received no support from the other delegates. He said the debate became very heated and prolonged. The delegates from Sydney, Messrs Danalis and Tsilimos, ‘stormed out’.[78] He tried to cool the meeting down but he, too, had to leave at that point. He had no memory of Mr Mavrogiorgis’ counter-proposal. If he was still there when it was proposed, he left before the ensuing discussion, and before the resolution was put.[79]
[78] T 101.
[79] Ibid.
Mr Elovaris confirmed Mr Maras’ evidence about that, although he thought Mr Maras left before the Sydney delegates did.[80]
[80] T 347.
Mr Elovaris said that the dispute centred around the fact that the Sydney delegates proposed that Sydney would lead the negotiations with the Archdiocese, with the Federation participating. This received no support. The counter-proposal was that the Federation actively participate in the negotiations, and not take a back seat to Sydney. The clear implication of this counter‑proposal was that the Federation wished to restore the traditional approach whereby they would deal with the Archdiocese, from a position of strength, rather than individual communities negotiating directly with the Archdiocese, from a weaker position. This was clearly unacceptable to the Sydney representatives, and caused them to ‘storm out of the meeting’. Mr Elovaris confirmed that Mr Maras consistently argued that the unity of the Federation should be preserved, and that a united front be presented to the Archdiocese.
The minutes were taken by Mr Mavrogiorgis in Greek. They were translated into English by GOCSA employees later. Mr Maras said his signature on the English version is electronic. He said Mr Mavrogiorgis would simply read the minutes to him from the Greek, but he would not necessarily have read the English translation before his signature was applied.[81]
[81] T 92-3.
Mr Elovaris, who is fluent in both languages, said that the Greek version of the minutes (Exhibit P20) was at variance with the English version in several respects.
Importantly for this discussion, Mr Mavrogiorgis’ counter-proposal reads:
Mr Mavrogiorgis counter proposes that in event of any future negotiations with the archdiocese, representation of the federation will participate or take part. Seconded by Mr Zaphiris. At this point the delegation of Sydney departs furiously, tense. Discussion follows and the counter proposal has been unanimously adopted.
At that point of time, Mr Maras departs due to other commitments and Mr Nicholaou takes the chair.
[My underlining]
The next day, a press release was prepared. It purports to summarise the deliberations of the 19 December 2010 meeting. It was prepared in Greek by Mr Mavrogiorgis.[82] It was translated into English.[83] The English version of the press release appears on the letterhead of a consultant, so the inference is that he translated the press release from the Greek. It is notable that there is no mention of the New South Wales ‘walk-out’ in the press release. As to the ecclesiastical issue, paragraph 4 reads:
The Federation renewed its old decision regarding the church issue and unanimously resolved to include a delegation of FGOCA in future negotiations with the Holy Archdiocese of Australia.
Again, Mr Maras’ electronic signature, along with that of Mr Mavrogiorgis, appears at the foot of the document. The phrase ‘in the event of’ future negotiations is absent.
[82] Exhibit P3.
[83] Exhibit P4.
Mr Lesses saw the Greek version of the minutes. His evidence about his interpretation of the minutes and the press release is confusing. At T 544 his interpretation was:
That the federation had looked at it - I use the word at - a previous resolution to go on a deputation to the archdiocese to discuss the - on a deputation, on a deputation that the federation would send representatives.[84]
Later, at T 544-45, referring to Exhibit P20, which he described as a ‘cut and paste’ of Exhibits P2 (the minutes) and P3 (the press release) just discussed, he interpreted the counter-resolution of Mr Mavrogiorgis as:
The resolution, if you go to p.3 of the document it showed the motion that was moved by Mr Danalis and Tsilimos from the Sydney Greek Orthodox community and Mr Mavrogiorgis moved an amendment and said in the event of [Greek word], and he used the word 'in the event of', a future action of going to the Archdiocese in a deputation, then representatives of the Federation will participate.[85]
[84] T 542.
[85] T 545.

These two passages of evidence illustrate the way Mr Lesses has misinterpreted the minutes of the 19 December 2010 meeting.
What is plain from the minutes is that the only negotiations which had taken place before the meeting had been between Sydney and the Archdiocese. There had been no negotiations between the Federation and the Archdiocese. It was the Federation’s insistence that, in the event of any future negotiations with the Archdiocese, they should participate which caused the Sydney delegates to storm out. There was no specific proposal for any such negotiations.
Yet, knowing this, understanding it from reading the original Greek, Mr Lesses chose to interpret the information as indicating that there had already been negotiations between the Federation and the Archdiocese, and that it was intended that there would be further negotiations.
Mr Lesses said that he did not see the English language version of the minutes or the press release until much later. He said he was unable to recall when he first saw it, and that it may have been after the litigation commenced.[86]
[86] T 544.
It was completely unreasonable to draw such a conclusion from the known facts. There was nothing from which an inference could be drawn that such a delegation was being assembled, or that Mr Maras was doing anything other than protecting the interests of GOCSA. Further, Mr Maras had communicated all relevant information to GOCSA via its officers on several occasions.
Mr Lesses said he received information about the outcome of the Federation meeting on 19 December 2010 in January 2011. He described the news that the Federation had decided to make a ‘deputation to the archdiocese’ as ‘fairly cataclysmic’.[87] He heard it by ‘word-of-mouth’.
[87] T 538.
Mr Lesses said he then listened to a podcast of an interview Mr Maras gave in which Mr Maras mentioned the negotiations between GOCNSW and the Archdiocese, and made a comment that ‘communities were free to determine what they wished to do’.[88] That would seem to have been a statement of the obvious. However, to Mr Lesses, it was ‘divisive’ and ‘further fractured the members of the federation’.[89] He added:
I never heard any defence of the federation's activities or what I refer to as a clear repudiation of the archdiocese from the perspective of the federation, and particularly in regards to the impact his comments might have had on GOCSA members.[90]
[88] Ibid.
[89] Ibid.
[90] T 539.
Mr Lesses said the final and perhaps decisive point was:
Mr Mavrogiorgis in January had, at St Constantine Church, had made a comment that the only solution for the community was to go to the archdiocese and I immediately went into overdrive to counter it, those views.[91]
[91] Ibid.
Mr Mavrogiorgis did not give evidence about this conversation. There is no reason to conclude that what he said, if he said it, conformed with Mr Maras’ views. Mr Lesses obviously concluded that it did.
So Mr Lesses made it clear that, as a result of all these factors, he decided to mount a campaign to oppose Mr Maras because he had decided that Mr Maras was being disloyal to GOCSA, and intended to sell out to the Archdiocese in the same way Sydney had done.
The irony about Mr Lesses’ attitude is that even if Mr Maras had commenced a dialogue with the Archdiocese, this would have been no more than what had happened previously when Mr Lesses and Mr Manos were officeholders in GOCSA.
- Early 2011 Telephone Conversation with Mrs Lesses
Mrs Evangelia Lesses said that in early 2011 she had a telephone conversation with Mr Maras. Mr Maras said he did not recall the conversation.[92]
[92] T 280-81.
At the time of trial, Mrs Lesses had been married to Mr Lesses for 43 years. She is also a passionate GOCSA supporter.
Mrs Lesses said she called Mr Maras because she was concerned about the ‘coming and going’ of priests in the GOCSA churches, and the fears of people that the church might close. The call was on a Saturday morning.
Mrs Lesses said that Mr Maras was calm initially, but he later became angry and started to yell. She was also upset and angry. Mr Lesses came out of his study and she put the telephone on ‘speakerphone’ so he could hear.
Mrs Lesses said she raised the topic of Father Tsitsis, and his removal from the Church of St Constantine in Goodwood and subsequent ‘sacking’. After becoming angry, Mr Maras said words to the effect that ‘he didn’t care whether all the [GOCSA] churches were closed except for one’, referring to the cathedral in Franklin Street, Adelaide.[93]
[93] T 1077-78.
Mr Lesses said that he heard ‘voices’, including Mr Maras’ voice, on the telephone while he was still in his study. It was a ‘robust’ and ‘emotional’ exchange of views between Mr Maras and Mrs Lesses. Mr Lesses said he left his study and joined his wife in the hall by the telephone. She put it on speaker phone. The following conversation took place:
It was in response to the concern expressed by my wife, who said that ‘People are worried about the coming and going of clergy, we don’t know who is going to be the priest at the church, that St Constantine Church appears to be the first one that loses its priest, the priest is either diverted to another church or the church is closed, and that people are expressing concern that the church may be closed’. And the comment was that Mr Maras said ‘Well, I don’t care if all the churches close bar one’. It was related to the discussion concerning the decision of the federation to go on a deputation with the archdiocese. So it’s in that context that the discussion took place.[94]
[94] T 578.
Mrs Lesses said in cross-examination that it would not have been possible to hear the person on the other end of the line from Mr Lesses’ study, but it would have been possible to hear him in the hallway.[95]
[95] T 1086-87.
Mr Maras said in cross-examination that he regarded Mrs Lesses as a close friend.[96] Mrs Lesses was less forthcoming, describing their relationship as ‘pretty good’ at the time.[97]
[96] T 281.
[97] T 1075.
Mr Maras said he had no memory of any such conversation with Mrs Lesses. He could not deny that such a call took place, however.[98] When asked about the discussion about Father Tsitsis’ dismissal, he said that there could not have been such a discussion because this was a Community issue and not a Federation issue. He had no ‘jurisdiction’ over what happened with Father Tsitsis.[99]
[98] T 282.
[99] T 281.
It was put to Mr Maras in cross-examination that he made the statement alleged. His response was:
I didn’t say that and I think that I could say at this point again that I have a very, very strong track record with keeping the GOCSA churches open during my time, after my time and even today.
…
No. If there was an animated conversation and that got to the stage that you are suggesting, I don’t think that would have been something that would go past my memory bank, especially with Mrs Lesses.[100]
[100] T 282.
As to Mr Maras’ comment about not caring if all the churches closed bar one, in cross-examination Mr Lesses volunteered:
I think it was probably a comment of exasperation more than anything.[101]
[101] T 578.
Mr Lesses then denied that he intended to create the impression in the flyer that Mr Maras made the comment with serious intent.[102] His explanation for referring to the comment in the flyer was that it was ‘honest’, it was ‘as he said’. He conceded that he had never heard Mr Maras say anything similar, either before or since.[103]
[102] T 579.
[103] T 579-80.
In re-examination, Mr Lesses purported to backtrack from his observation that Mr Maras did not make the statement with serious intent. He said that by the time he wrote the flyer, he did believe that Mr Maras meant what he said.[104] He referred to a number of events which had occurred in the meantime which had caused him to change his mind.
[104] T 993.
I reject this evidence. When Mr Lesses gave his answer in cross-examination, he used the present tense, ‘I think’. The clear import of this is that he was describing his present thoughts, not his thoughts at the time of writing the documents in issue. Mr Lesses’ attempt to backtrack from this does him little credit.
Despite this, I am inclined to accept the evidence of Mr Lesses, particularly as it is corroborated by Mrs Lesses, on the balance of probabilities that Mr Maras said words to the effect described by Mrs Lesses in the telephone conversation. Mr Maras’ memory was not clear enough to deny it. However, I also find that the statement was made in exasperation and without serious intent, and that Mr Lesses was well aware of that fact.
- 9 May 2011 Open Letter to GOCSA Members
On 9 May 2011, an open letter was sent to GOCSA members.[105] It was signed by Mr Elovaris. It was obviously intended to answer allegations made by a priest that he would expose a member of the Committee who had said ‘we’ll get rid of them’ (i.e. the GOCSA churches).
[105] Exhibit D37. The version in Greek is D37A.
Mr Elovaris strongly supported the GOX arrangement in the letter, and urged GOCSA members to do the same.
Mr Elovaris said that, at the time he wrote the letter, he did not know about the problems within GOX which had recently developed.[106]
[106] T 376.
This letter, and the cessation of the relationship with GOX which occurred soon afterwards, became one of the grounds for Mr Lesses’ suspicion that Mr Elovaris, and by association Mr Maras, were not being truthful to GOCSA members.
- 22 May 2011 Federation Meeting – Termination of GOX?
Prior to this meeting, there had been much disquiet among the GOCSA community about the unseemly behaviour of some of the GOX clergymen who had come to Australia pursuant to the agreement entered into at Piraeus in 2009.
It had become apparent that all but two of the seven bishops comprising the GOX synod had resigned. GOX thereby ceased to exist, because it no longer had the minimum number required by Greek law.[107]
[107] T 138, 343.
Mr Maras was obviously embarrassed by this, and tendered his resignation from the position of President of the Federation, to the meeting. The minutes record:
All present reacted, saying that we do not accept his resignation, that we had ALL decided together, that it was a collective mistake and that all of us must take action to resolve it. Mr Mantalos moved a motion – seconded by Mr Nikolaou – that we cease any cooperation with the aforementioned Synod and release a relevant public announcement. The motion was accepted unanimously. It was also agreed unanimously that, in the immediate future, the Federation should examine ways to reinforce the Autocephalous Church. This decision is to be communicated to the Executive Committees of the Federation’s Member Communities for information and discussion, and for each Executive Committee to make its decision known to the undersigned Seat of the Federation in writing.[108]
Mr Maras remained President of the Federation until November 2012.
[108] Exhibit P23.
These events placed GOCSA in an even worse position than it had been in before the GOX agreement. Since GOX no longer had status under Greek law, its sacraments would no longer be recognised, including those performed in GOCSA churches. The status of the GOX priests in Australia became problematic. They were employees of GOCSA.
This was clearly not a situation where the Federation or GOCSA terminated the arrangement with GOX, as Mr Lesses and others alleged. GOX had effectively ceased to exist. This became the subject of much debate and anxiety in the GOCSA community. Mr Maras said they began looking as far afield as Brazil and the Ukraine in order to find priests whose sacraments would be recognised.[109]
[109] T 139.
In cross-examination, it was suggested to Mr Maras that he gave no information about what plans the Federation had following the ‘termination’ with GOX.[110] At the meeting of the Federation on 22 May 2011, Mr Maras made it clear that the whole point of having the meeting on 22 May was that the issue could be discussed at the annual general meetings of the Communities in Adelaide, Newcastle and St Albans in Victoria, which were due to be held on 29 May.[111] Further, Messrs Elovaris and Mavrogiorgis were at the 22 May meeting representing GOCSA.[112] It was up to them to communicate the outcome of the meeting to GOCSA.
- 24-26 May 2011 Defendant Emails to Plaintiff
[110] T 236.
[111] See Minutes, Exhibit P23 [2].
[112] T 236.
As the 29 May 2011 annual general meeting of GOCSA drew closer, on 24 May 2011 Mr Lesses wrote an email to Mr Maras. Mr Maras replied on 25 May 2011 and Mr Lesses replied to that on 26 May 2011. The three emails are Exhibit P24.
The first email from Mr Lesses commences:
I say grow up. Not hate mail at all. I visited my brother – minding my business; the comment comes uninvited on top of condolences from a Koinotiko [community] member.
Clearly, there had been some earlier communication, presumably a complaint from Mr Maras that Mr Lesses was sending ‘hate mail’. Mr Maras said that Mr Lesses had also sent him, via his telephone, a photograph of his parents’ grave, with the suggestion that they would turn over in their grave if they knew what he was doing. Mr Maras said he was ‘devastated’ by this.[113] He had subsequently deleted the message with the photograph.
[113] T 169.
Mr Lesses was asserting that Mr Maras had already been dealing with the Archdiocese. He said:
So are we to tear our guts out also? What unity will we have when the Archdiocese start their tax-milking regime for the next 2 decades? Of course, they will have an annual memorial service to lord the victory over the Koinotik for the next 50 years; but your committing your descendant’s to inherit the Archdiocese with all its imperfections. So what you ask? I say: “if you haven’t got the time or patience move on-let someone fresh get into it’. Or have you been promised junket trips, kudos and such shit like honours here and in Greece? Minister Dollis needs to meet and recognise us as equals not treat us as a delinquent or disparate group of malcontents. Why did he not acknowledge our sacraments under GOX were canonical? Why hide this fact?
We should be saying: ‘Archdiocese, you want to normalise relations-sure, but as equals. We are happy to accept you to step up to us as our equal!’
That is an absolute threshold point. Are you up to it? If not then we will look to and develop our alternative strategy-as long as it takes. Our obligation is to pass on the struggle to our next generation.
Mr Lesses added a final piece of advice:
I say: Visit your grandad Menelaos Parianos and parents gravesite – ask for ‘fotisi’ [enlightenment].
Mr Maras replied to this email on 25 May 2011. He commenced by saying:
I find it difficult not to feel disappointed at the level of which this debate has come to, that you not only make wild, misleading and above all mischievous assertions but that you have to bring my deceased Mother and Father in to a debate. At some level I would have thought that you would at least respect those who have passed away and not to be used as political tools to further any case or point of view.
He then sought to refute Mr Lesses’ allegations by making the following points:
·he had always striven to maintain the independence of their church;
·he had never met the Archbishop;
·he was opposed to Sydney leaving the Federation;
·the Federation had never asked the Archdiocese for anything except dialogue;[114]
·he had made two trips to the Patriarch in Istanbul seeking recognition of GOCSA’s church;
·he had always paid his own travel and accommodation expenses.
[114] T 167.
He concluded:
I believe that your accusations, statements and ideas of where we are at and where we are heading are not in keeping with our actions but are a figment of your imagination and others who find it politically suitable to raise these dispersions for self gain.
Dear John, it seems to me that you have grossly misunderstood or you have been misled or you are deliberately going down this path for reasons as I have previously stated. This is not clever, in fact it is divisive and as to the actions of past and current of both Theo Maras and the Federation I am happy to present to the General Meeting as a sworn affidavit.
In his reply on 26 May 2011, Mr Lesses commenced with an apology for sending the photograph. Rather than accepting Mr Maras’ explanations, however, he proceeded with a further tirade about the Archdiocese:
If I caused you grief over the photo my apology as it was not intended; I hold both your mum your dad in high esteem-your dad commands my ultimate respect as a veteran of Makroniso.[115] Other than to graphically describe the substance of what was conveyed verbally at the grave site by a community member [minus the expletives]. They say a picture is worth a 1000 words. May our dead rest in peace!
But my dad who joined the Community in 1942 would grab me by the testicles and throat too, as you said your dad would you, if I ratted.
Fancy going cap in hand or to meekly follow Danalis’ expedient line of appeasement. It is apparent that we are getting sucked into the vortex of Sydney’s overtures.
[115] Makroniso (Makronisos) is a small island in the Aegean Sea close to the coast of Greece and facing the port of Lavrion. It is now uninhabited, but during the Greek civil war it was used as a prison island until the restoration of democracy in 1974. It is considered a monument to the civil war era (Wikipedia).
‘When one sails from Lavrion to the island of Kea much of the journey is spent going around a long barren island where you can see the ruins of some old buildings and little else besides rocks. This is the island of Makronisos, Greece’s equivalent of Alkatraz. But these were not hardened criminals, murderers and thugs. Makronisos was where many people who had fought to liberate Greece from the Germans during World War Two, met their fate at the hands of their countrymen, tortured and killed because of their political beliefs. The men who lived and died here were the first victims of the Cold War’ (greektravel.com).
Mr Lesses’ reference to following ‘Danalis’ expedient line of appeasement’ and that they were being ‘sucked into the vortex of Sydney’s overtures’ is a clear suggestion that Mr Maras was following Mr Danalis (the president of the Sydney community) down the same track towards surrendering to the Archdiocese. Clearly, Mr Lesses paid no attention to Mr Maras’ assurances, in his email, that ‘I … am very much opposed, as is every member of the Federation, to the process that Sydney is going through and have publicly opposed it’.
Mr Lesses then referred to ‘Deposing Afxentios’ (GOX), and said it appears to be ‘an attempt to return to the status quo of having our AutoCephalic Church without a “head”,’ as if the Federation had intended this result.
Finally, Mr Lesses acknowledged the possibility that he had his facts wrong, saying:
If I’m not well informed then I accept part responsibility-yet the Community bears a primary responsibility to keep members informed of evolving developments to prepare us to make an considered decision; and not to simply inform of us of conclusive determinations. Think (it) over … and go visit your mum and dad.
This comment strongly indicates that Mr Lesses was indifferent to the truthfulness of his assertions that Mr Maras was selling out to the Archdiocese. After acknowledging that he may not have been ‘well informed’, he continued ‘full steam ahead’ with his accusations.
Mr Lesses said that he sent the emails because he had been ‘dumbfounded’ after he had been told by another GOCSA member, Carlene Starr, that GOX had been ‘terminated’ (by the Federation).[116]
[116] T 553-4.
Mr Maras said he had not told Mr Lesses about what happened with GOX because he regarded the information as confidential until the annual general meeting on 29 May.[117] Mr Lesses did not hold office with GOCSA at that point.
- 29 May 2011 GOCSA AGM
[117] T 303.

Gillooly quotes Hunt AJA’s judgment in Morgan v John Fairfax & Sons (No 2):[243]
[243] (1991) 23 NSWLR 374 at 387-88.
(1) The conduct must have been reasonable in the circumstances to publish each imputation found to have been in fact conveyed by the matter complained of. The more serious the imputation conveyed, the greater the obligation upon the defendant to ensure that his conduct in relation to it was reasonable …
(2) If the defendant intended to convey any imputation in fact conveyed, he must [generally] … have believed in the truth of that imputation.
(3) If the defendant did not intend to convey any particular imputation in fact conveyed, he must establish:
(a) that [generally] … he believed in the truth of each imputation which he did intend to convey; and
(b) that his conduct was nevertheless reasonable in the circumstances in relation to each imputation which he did not intend to convey but which was in fact conveyed.
(4) The defendant must also establish:
(a) that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right, (where appropriate) by making proper inquiries and checking on the accuracy of his sources;
(b) that his conclusion (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he had obtained;
(c) that the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and
(d) that each imputation intended to be conveyed was relevant to the subject about which he is giving information to his readers.
Gillooly goes on to observe that ‘it will often be critical to establish that the publisher had an honest belief in the truth [of] what was published’.[244]
[244] At page 205.
An exception to this is Barbaro v Amalgamated Television Services,[245] where the reasonableness of the defendant’s conduct came from an admission (probably accidental, and in fact incorrect) made by the plaintiff that he was someone else who had been implicated in a Royal Commission. It was held that it was not necessary for the defendant to provide further proof of reasonableness.
- Conclusion
[245] (1990) 20 NSWLR 493.
I have found that the published statements were actuated by malice. Having regard to s 28(4), the plea of statutory qualified privilege also fails.
If I am wrong about that, I find that it was not reasonable to publish the material knowing it was untrue, or being reckless as to whether it was true or not. There can be no public interest in the publication of such material in these circumstances.
Fair Comment
Mr Lesses has also pleaded the defences of fair comment on a matter of public interest at common law and honest opinion relating to a matter of public interest pursuant to s 29 of the Defamation Act.
The author of George, Defamation Law in Australia[246] lists the elements of the common law defence at [27.1]:
(a)     the comment must be recognisable as comment;
(b)     the comment must be based on fact or other proper material;
(c)     the comment must be on a matter of public interest;
(d)the comment must satisfy the following objective test – could any fair-minded person honestly express that opinion on the proved facts? The defendant must prove that the comment is objectively fair – whether an honest person could express the opinion, even if it is exaggerated, prejudiced or obstinate.
[246] P George Defamation Law in Australia (Lexisnexis Butterworths, 2^nd ed, 2012).
This corresponds closely to the provisions of s 29 of the Defamation Act, which provides:
29—Defences of honest opinion
(1) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter was an expression of opinion of the defendant rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material.
(2) …
(3) …
(4) A defence established under this section is defeated if, and only if, the plaintiff proves that—
(a) in the case of a defence under subsection (1)—the opinion was not honestly held by the defendant at the time the defamatory matter was published; or
…
(5) For the purposes of this section, an opinion is based on proper material if it is based on material that—
(a) is substantially true; or
(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or
(c) was published on an occasion that attracted the protection of a defence under this section or section 26 or 27.
(6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.
- Comment/Opinion
As George points out at [27.2], ‘A comment is generally a statement of opinion based on facts or other “proper material”’. Accepting that, I will use ‘honest opinion’ to discuss both the common law and statutory defences.
Mr Heywood-Smith submitted that the imputation of untrustworthiness, contended by Mr Maras, must be the product of inference, and quotes George at [27.3].
The full two paragraphs at [27.3] are not so clear:
A statement of fact is generally not comment and cannot be protected by the defence of fair comment. However, a statement of inference, deduction, conclusion, criticism, judgment or observation is capable of being comment and an allegation of fact in the context of the publication may also be capable of being comment. There can be no clear line between comment and a statement of fact. The characterisation must be made for the purposes of the defence, and the context and circumstances of the use of the words will be important. A comment can be made by stating a value judgment and can also be made by stating a fact if it is a deduction from other facts.
This emphasises the importance of the ordinary reasonable person’s understanding of a publication as an expression of opinion for the defence to succeed. If the person cannot distinguish between statements of fact and a comment or is confused by the intermingling of facts and comment, the defence will fail.
A case cited by George illustrates that the distinction is not so easy. In O’Shaughnessy v Mirror Newspapers Ltd,[247] a theatre critic wrote:
Stupidity and lack of talent are forgivable; brave failures are deserving of praise–these are every-day human failings. But the waste and dishonesty of this production, or rather recitation, make me very angry indeed.
The trial judge held that the article was comment, as a matter of law. The High Court held that this was an error. The passage could have been regarded by the jury as going beyond criticism of the production, and attributed a dishonest motive to the plaintiff as a statement of fact.
[247] (1970) 125 CLR 166 at 167.
The test is an objective one. George continued:
The publisher’s intention that the statement be understood as an opinion is not relevant but rather whether the ordinary reasonable person would understand the published matter was the expression of the publisher’s opinion.[248]
[248] Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 491; Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 at [36].
In Channel Seven Adelaide Pty Ltd v Manock,[249] Gummow, Hayne and Heydon JJ at [35] quoted Bingham LJ in Brent Walker Group Plc v Time Out Ltd:[250]
The law is not primarily concerned to provide redress for those who are the subject of disparaging expressions of opinion, and freedom of opinion is (subject to necessary restrictions) a basic democratic right. It is, however, plain that certain statements which might on their face appear to be expressions of opinion (as where, for example, a person is described as untrustworthy, unprincipled, lascivious or cruel) contain within themselves defamatory suggestions of a factual nature. Thus the law has developed the rule … that comment may only be defended as fair if it is comment on facts (meaning true facts) stated or sufficiently indicated.
[249] [2007] HCA 60.
[250] [1991] 2 QB 33 at 44.
So it does not follow that simply because a statement is the product of an inference, it is necessarily a comment or expression of opinion. Their Honours in Channel Seven also quoted Jordan CJ in Goldsborough v John Fairfax & Sons Ltd:[251]
… it must appear that [the words] are opinions stated by the writer or speaker about facts, which are at the same time presented to, or are in fact present to, the minds of the readers or listeners, as things distinct from the opinions, so that it can be seen whether the opinions are such that they can fairly be formed upon the facts.
- Conclusion
[251] (1934) 34 SR (NSW) 524 at 531-2.
In light of these authorities, particularly the passage from Brent Walker Group, I find that the imputation of untrustworthiness is not a comment because it contains within it defamatory suggestions of a factual nature.
Further, Mr Lesses’ opinion conveyed by the imputation was accompanied by statements of fact which he knew to be untrue. No fair-minded person could honestly express that opinion, or make statements carrying the imputation of untrustworthiness, on the proven facts.
Finally, for the purpose of the statutory defence, I have found that the opinion was not honestly held by Mr Lesses at the time the material was published.
The defences of fair comment/honest opinion therefore fail.
Justification
The defences of justification and/or substantial truth are pleaded by Mr Lesses in defence of the claim by Mr Maras in paragraph 8 of the Second Statement of Claim that he had been defamed by the statement of Mr Lesses that ‘he did not care if 3 churches closed’.[252]
[252] The ‘flyer’, Exhibit P6.
In paragraph 14 of his Third Defence, Mr Lesses pleads that if the statement carries the meaning alleged, it ‘is true in substance and in fact at common law or is substantially true in substance and in fact pursuant to section 23 of the Defamation Act’.
The rationale for the defence was explained by Street ACJ in Rofe v Smith’s Newspapers,[253] quoted in Gillooly:[254]
In England it is a complete answer to a civil action that the defamatory matter complained of was true. The reason upon which this rule of law rests, as I understand, is that, as the object of civil proceedings is to clear the character of the plaintiff, no wrong is done to him by telling the truth about him. The presumption is that, by telling the truth about a man, his reputation is not lowered beyond its proper level, but is merely brought down to it …
[253] (1924) 25 SR (NSW) 4 at 21.
[254] Supra, at page 104.
Gillooly outlines the following applicable principles:
·the defendant must prove that the allegedly defamatory matter was in substance true;
·it is the imputations conveyed by the words used, rather than the actual words used, which must be proved;[255]
·it is therefore important to clearly establish the imputations which arise from the words (in this case they are co-extensive so no difficulty arises);
·the difference between substantial truth and literal truth is explained by Lord Shaw of Dumferline in Sutherland v Stopes:[256]
If I write that the defendant on March 6 took a saddle from my stable and sold it the next day and pocketed the money all without notice to me, and that in my opinion he stole the saddle, and if the facts truly are found to be that the defendant did not take the saddle from the stable but from the harness room, and that he did not sell it the next day but a week afterwards, but nevertheless he did, without my knowledge or consent, sell my saddle so taken and pocketed the proceeds, then the whole sting of the libel may be justifiably affirmed by a jury notwithstanding these errors in detail.
Gillooly continues:
However, half-truths are clearly not justifiable. To assert, for example, that a man has been convicted and sentenced to imprisonment for a particular offence without mentioning the fact that the conviction was subsequently quashed on appeal is to tell only part of the story. Though the assertion may be literally true, it is substantially false.[257]
·George suggests the following further principle:
The intention of the defendant is irrelevant to whether the defamatory imputation is true. It is not sufficient for a defendant to believe the defamatory matter is true.[258]
[255] Footnote 7 on page 105; see also George (supra) at page 321 and the authorities quoted at footnote 2.
[256] [1925] AC 47 at 79, quoted by Gillooly at page 111.
[257] See also George at page 322 and the authorities quoted at footnote 3.
[258] References at footnote 9 on page 322.
- Statutory Defence
Section 23 of the Defamation Act provides:
23—Defence of justification
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
The statutory defence of justification is therefore not materially different from the common law defence outlined above – both require that the imputation be substantially true.
For Mr Lesses to succeed on this point, he must prove on the balance of probabilities that the imputation that Mr Maras did not care about GOCSA churches is substantially true.
I have already discussed the evidence relevant to this topic under the heading ‘Early 2011 Telephone Conversation with Mrs Lesses’.
I have already found that Mr Maras spoke the words, or words to the effect of those alleged, namely, that he did not care if three GOCSA churches closed. I have also said that Mr Maras spoke those words in exasperation and without serious intent during the course of an angry and emotional conversation with Mrs Lesses, and that Mr Lesses was well aware of that fact.
I have also accepted Mr Maras’ evidence that he cared deeply about whether GOCSA churches closed, and that throughout his association with GOCSA, he worked towards avoidance of that result. It is also completely apparent that Mr Lesses was well aware of that fact.
On the basis of this evidence, I am not persuaded that the imputation arising from the statement in the flyer that Mr Maras did not care if three GOCSA churches closed is substantially true. Indeed, I am persuaded to the contrary.
- Conclusion
The defence of justification, both at common law and pursuant to s 23 of the Defamation Act, fails.
Damages
Section 32 of the Defamation Act provides:
32—Damages to bear rational relationship to harm
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.
Section 33(1) limits damages for non-economic loss to a particular figure. It is agreed[259] that the relevant figure in this case is $366,000.00.[260]
[259] Letter from plaintiff’s solicitors dated 22 September 2015.
[260] South Australian Government Gazette dated 15 May 2014, page 1642.
Section 33(2) empowers me to award an amount in excess of that figure only if the publication of defamatory matter the subject of these proceedings warrants an award of aggravated damages.
Section 34 directs me to disregard the malice or other state of mind of the defendant at the time of publication or at any other time, ‘except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff’.
Section 35 prohibits an award of exemplary or punitive damages.
Section 36 entitles a defendant to adduce evidence which mitigates the damage which may arise from the publication of defamatory material. This might include an apology,[261] a correction,[262] a previous recovery of damages or other compensation in relation to a similar publication,[263] and the existence of proceedings by the plaintiff in relation to similar proceedings.[264] No such evidence has been adduced here.
[261] Section 36(1)(a).
[262] Sub-s (1)(b).
[263] Sub-ss (1)(c) and (1)(e).
[264] Sub-s (1)(d).
In Duffy v Google Inc (No 2),[265] Blue J examined the relevant case law in relation to general damages for defamation. I extract the following principles:
[265] [2015] SASC 206.
·compensation for damaged reputation operates in two ways – as vindication of the plaintiff to the public and as consolation to him for a wrong done;[266]
[266] References at [93]-[108].
·the variety of matters to be considered in assessing damages for defamation means that the amount of a verdict is the product of a mixture of inextricable considerations;[267]
·in case the libel ‘emerges from its lurking place at some future date, he must be able to point to a sum (of damages) sufficient to convince a bystander of the baselessness of the charge;[268]
·a solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the damages even if there are no grounds for aggravated damages;[269]
·the three purposes for damages for defamation are consolation for personal distress and hurt, reparation for harm done to the plaintiff’s personal and (if relevant) business reputation, and vindication of the plaintiff’s reputation;[270]
·the gravity of the libel, the social standing of the parties and the availability of alternative remedies are all relevant’[271]
·damages are awarded not only for injury to reputation, but also for the plaintiff’s injured feelings, including hurt, anxiety, loss of self-esteem, sense of indignity and outrage;[272]
·damages are not accumulated under various heads but must be sufficient to satisfy the purposes for which they are awarded;[273]
·the harm to the plaintiff encompasses continuing harm, including hurt feelings, up to the conclusion of proceedings;[274]
·a defendant takes a plaintiff as he finds him or her, including any particular sensitivities he or she may have;[275]
·hurt and distress suffered during the litigation and in particular the trial as a result of the litigation process, a lack of apology and persistence by the defendant with the defence of justification can be taken into account as part of the harm caused to the plaintiff as a result of the defamation.[276]
[267] Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118, per Windeyer J at 150.
[268] Broome v Cassell & Co. [1972] AC 1027, per Lord Hailsham at 1071.
[269] Broome v Cassell, per Lord Diplock at 1125.
[270] Carson v John Fairfax and Sons Limited (1993) 178 CLR 44, per Mason CJ, Deane, Dawson and Gaudron JJ at 60-1.
[271] Ibid.
[272] Ibid per Brennan J at 70-1, 72.
[273] Ibid.
[274] Duffy v Google Inc. (No 2) at [98].
[275] Ali v Nationwide News Pty Ltd [2008] NSWCA 183, per Tobias and McColl JJA at [77]-[78].
[276] Duffy (No 2) at [100].
In this case, I remind myself that Mr Lesses has claimed justification only in relation to one statement, that Mr Maras did not care if three churches closed. That was a single statement among several reiterations of the other statements giving rise to the imputation of untrustworthiness. I regard the imputation of untrustworthiness as the more serious defamation in the circumstances.
The extent to which damages should be increased by the continuing harm caused to the plaintiff by the manner in which the defence has been conducted is an important component of general damages unless the test for aggravated damages is satisfied.[277]
[277] Coyne v Citizen Finance Limited (1991) 172 CLR 211. Mr Whitington also cited Cornwall v Rowan (2004) 90 SASR 269 at [805].
Mr Maras gave evidence that during his membership of GOCSA, he had been involved in arranging and supporting, indeed personally sponsoring, many cultural and sporting events.[278] The evidence clearly establishes that, in addition to these activities, his efforts to keep the GOCSA churches viable, and staffed with priests, so that their continued independence could be assured, were continuous and extensive.
[278] T 174-77.

With that background, Mr Maras described his reaction to the publication of the email as follows:
A.   Well, actually, I am lost for words even now because I just could not understand, after all of the effort, after all of the history, after all of the knowledge that the writer of this letter had, could put down something like this, and I am trying to find a word other than ‘devastating’, but it was hurtful, it was demoralising, it was devastating and I think that I was very disappointed to say the least, not only about who had written this but more in particular, re the organisation that we represented together for so long.
Q.   Now, when you said that you were devastated by the newsletter and the flyer, I put them together, does that description apply to each of them, that is, you were devastated by what you read in each of them.
A.   Look, it was one blow after another. It was like – it was a bit like someone put the blowtorch on you for no reason and no understanding.
Q.   And the transcript won’t record it, but you paused for a period before you gave that last part of your answer. Did it take you a while to compose yourself in order to respond and express your reaction to these three documents.
A.   Yes.[279]
[279] T 194.
Mr Maras said that since these events, he felt ‘belittled and shamed’, to the extent that he has not attended a GOCSA church service, funeral services or cultural activities. He explained:
Well, I think that it’s just very sad that someone would write these sorts of things and put them in print, and I asked for them to be retracted, they weren’t retracted, and it has just taken away everything that I have built up in the way of my personal reputation and my personal beliefs, and the community sees these sorts of things. And bear in mind one thing, that when we talk about membership of a Greek community, it’s not just about the membership of the Greek community who are members or paid-up members, we might have 1,000 paid-up members or 900 or whatever it is, right? But we have a congregation of many thousands. I am in a business that is predominantly covered by Greeks, which is a development industry. At that point in time I had people ringing me and asking me what was going on with the Greek community, why is all this happening? I had a constant barrage of questioning about the whole issue and I chose, and I think for the betterment of the community, to say that ‘Look, there’s different points of view, the community is fine and sooner or later we’ll sort out personal differences between us’.[280]
[280] T 196.
As for his reasons for bringing this action, Mr Maras said:
Q.From your point of view have you brought this action for the money or for a vindication.
A.I don’t care about the money, I don’t care about vindication, I just want my name cleared.[281]
[281] T 197.
I accept that Mr Maras’ feelings have been deeply hurt by the defamation. There is no evidence that he has been shunned by GOCSA people, but he has withdrawn from the community at great personal cost because of the humiliation he still feels. He mentioned, for example, his inability to attend the funeral of an old friend and spiritual guide, and his inability to hear his granddaughter recite her poetry in Greek.[282]
[282] T 196-7.
This is another case where the sensitivity of the plaintiff is a relevant matter. Thus in Ali v Nationwide News Pty Ltd, Tobias and McColl JJA said:
The harm caused to the plaintiff by the publication of the defamation 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. Thus ‘[a] solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large part in the [general compensatory] damages’.[283]
[283] Supra, at [72].
In Duffy v Google Inc. (No 2), Blue J added:[284]
The harm caused by the defamatory publication does not end at the time of publication but encompasses continuing harm including ongoing hurt feelings during and up to the conclusion of the litigation by the plaintiff seeking vindication.
The general principle of assessing damages in tort that a defendant generally takes the plaintiff as it finds her applies to defamation. In Ali v Nationwide News Pty Ltd, Tobias and McColl JJA said:
Finally under these general observations, we would observe that the defendant must take the plaintiff as it finds him or her: Humphries v TWT Ltd (1993) 113 FLR 402 at 418 - 419 per Miles CJ; Bashford v Information Australia [2000] NSWSC 665 at [42] per Davies AJ.
Humphries was reversed on appeal, but on the point that the damages Miles CJ awarded were inadequate: Humphries v TWT Ltd; (1993) 120 ALR 693. The Court (Gallop, Davies and von Doussa JJ) implicitly approved (at 706) Miles CJ’s statement that the particular sensitivities of the plaintiff were relevant to the award of damages. They concluded (at 706) that “the award made by the trial judge was so low that it failed to provide compensation appropriate to the injury to the appellant’s feelings as found by him, and failed to provide a sum that, even in conjunction with the correction and apology, was sufficient to nail the falsity of the imputations”.
[284] At [99]-[100].
The publications, and hence his embarrassment, extend at least to the GOCSA membership and wider Greek community he mentioned above. Although this is a substantial publication, it is not as serious as might have been the case if the defamatory material had been published in the mass media.
In my view, the gravity of the defamations was increased because they were untrue (Mr Lesses did not seek to assert the truthfulness of the imputation of untrustworthiness) and I have rejected his assertion of truthfulness in relation to Mr Maras’ attitude to closing GOCSA churches.
The injury to Mr Maras’ feelings was also exacerbated by the fact that Mr Lesses was a close friend who took advantage of their relationship and who personally insulted him about matters he knew Mr Maras was sensitive about (for example, his parents’ graves), and who was actuated by malice.
Mr Lesses must have known that to accuse Mr Maras of untrustworthiness before the entire GOCSA community was among the most serious defamations possible. Mr Maras had been entrusted with the future security of their most precious assets, their churches, with all the history of conflict and double-dealing with the Archdiocese which put them at risk. The imputations of untrustworthiness and of not caring about the churches were therefore particularly serious.
It is not to the point that the wider South Australian community would not understand the issues. Mr Maras is a prominent businessman in Adelaide, with an established reputation for integrity and philanthropy. Even those with no interest in contemporary Greek affairs would still, if they heard about it, regard an imputation of untrustworthiness as particularly serious, even if they did not understand the issue about GOCSA churches.
Taking all these matters into account, and awarding one sum in relation to the three separate publications and in relation to both imputations, since they constituted a consistent course of conduct, each publication building upon the others, and taking into account the maximum permissible under the Act, I consider a sum of $75,000.00 to be an appropriate sum for general damages.
- Aggravated Damages
In Duffy v Google Inc (No 2), Blue J summarised the authorities thus:
Aggravated damages in defamation are compensatory and not punitive and are awarded “to reflect conduct by the defendant which aggravates the injury and increases the harm done to the [plaintiff]”.
Aggravated damages may be awarded for defamation when the defendant’s conduct of the defence (or other conduct at or after the publication) is lacking in bona fides, improper or unjustifiable.
Such conduct may include a failure to apologise or persistence in a plea of justification, but only if the defendant’s conduct in failing to apologise or persisting in the plea of justification is lacking in bona fides, improper or unjustifiable.[285]
[Citations omitted]
[285] At [81]-[83].
This is the test established by Herald and Weekly Times Limited v McGregor[286] and Triggell v Pheeney.[287]
[286] (1928) 41 CLR 254 at 263.
[287] (1951) 82 CLR 497 at 514.
Mr Whitington submitted that aggravated damages might be justified where the defendant’s publication was actuated by malice, and caused him to conduct himself in a manner calculated to increase the extent and effectiveness of the publications. Any increased hurt to the plaintiff as a result may be presumed, and need not be proved by the plaintiff.[288]
[288] Flegg v Hallett [2015] QSC 167 at [235]-[237]; Andrews v John Fairfax [1980] 2 NSWLR 225 at 249-50.
Mr Whitington argued that the plaintiff was entitled to aggravated damages because:
·Mr Lesses’ actions were so extreme and unjustifiable that Mr Maras could not understand the attack on him;
·Mr Lesses acted without bona fides, which would have been self-evident to Mr Maras;
·Mr Lesses was acting for his own purposes in an election campaign in spite of their longstanding personal relationship.
The case for aggravated damages in this case is compelling. Mr Lesses was aware of the untruthfulness of some of his statements and at least reckless about others, and they were deeply hurtful. I am not completely convinced that they were motivated by spite towards Mr Maras. It may be that Mr Lesses thought that his publications were merely part of the accepted ‘rough and tumble’ of GOCSA politics, and that Mr Maras had the standing and resources to shrug off such accusations without lasting damage.
Clearly, both men are passionate believers in the rightness of the GOCSA cause. I suspect that Mr Lesses wanted to demonstrate that he was the more passionate and righteous fighter. He is clearly a very competitive man, and I suspect rather dogmatic and obstinate in his views. He decided that he and/or those who agreed with him must be elected to the GOCSA Executive Committee, and he was prepared to use everything at his disposal to achieve that aim.
I agree that his actions have been extreme and unjustifiable, but I am not satisfied that I should exercise my discretion to award aggravated damages. I consider there is sufficient in the award of general damages to achieve the purposes of the cause of action.
There will be judgment for the plaintiff for $75,000.00. I will hear the parties as to any consequential orders.

Citing Roberts v Bass (2002) 212 CLR 1. I take this to mean that the onus is on the plaintiff to prove

the negative of this element.