Motyka v Gojan - [2007] NSWSC 31

No judgment structure available for this case.

CITATION: Motyka v Gojan [2007] NSWSC 31

HEARING DATE(S): 27,28,30/11/06,4,5,6,7,8/12/06

JUDGMENT DATE :
7 February 2007

JUDGMENT OF: James J at 1

DECISION: Damages should be awarded to both plaintiffs

CATCHWORDS: DEFAMATION- qualified privilege at common law - malice - damages

LEGISLATION CITED: Defamation Act 1974

CASES CITED: Adam v Ward (1917) AC 309
Ainsworth v Burden [2006] NSWCA 199
Bashford v Information Australia (Newsletters) Pty Limited (2004) 218 CLR 366
Carson v John Fairfax & Sons Limited (1993) 178 CLR 44
Howe & McColough v Lees (1910) 11 CLR 361
Lang v Willis (1934) 52 CLR 637
Moit v Bristow [2005] NSWCA 322
Robertson v Bass (2002) 212 CLR 1
Skalkos v Assaf [2002] NSWCA 14
Toogood v Spyring (1834) 1 CrM & R 181 at 193; 149 E.R. 1044 at 1049-50

PARTIES: Wolodymyr Motyka & Anor v Maria Gojan & Anor

FILE NUMBER(S): SC 20154/2000

COUNSEL: J O Hmelnitsky - Plaintiffs
CA Evatt/Ms L Evans - Defendants

SOLICITORS: Bale Boshev & Associates
Horowitz & Bilinsky - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

JAMES J

Wednesday 7 February 2007

20154/00 Wolodymyr MOTYKA & Anor v Maria GOJAN & Anor
JUDGMENT

1 HIS HONOUR: These proceedings are proceedings in defamation by the plaintiffs Wolodymyr Motyka (“Dr Motyka”) who is the first plaintiff and his mother-in-law Evdokia Ostrowskyj (“Mrs Ostrowskyj”) who is the second plaintiff against the defendants Maria Gojan (“Mrs Gojan”) who is the first defendant and her husband Michael Gojan (“Mr Gojan”) who is the third defendant.

2 When the proceedings were commenced there was an additional defendant Mrs Valentina Nakazna, who was the second defendant. However, Mrs Nakazna died some years ago and the proceedings against her were not pursued.

3 The proceedings were commenced as long ago as 1 May 2000. From time to time the statement of claim has been amended and the final version of the statement of claim is the fourth amended statement of claim filed in Court on 30 November 2006, which I will refer to simply as “the statement of claim”.

4 Because the matter alleged to be defamatory was published before the commencement of the Defamation Act 2005, the Defamation Act 1974 (“the Act”), and not the Defamation Act 2005, applies to the proceedings. A hearing pursuant to s 7A of the Act was held in 2002. At this hearing a jury determined that a number of publications were published by one or other of the defendants, which conveyed imputations defamatory of both plaintiffs or of the first plaintiff. Later in this judgment I will refer in detail to these publications and the defamatory imputations found by the jury.

5 The hearing before me was for the purpose of my determining whether any of the defences raised by the defendants were established and what amount of damages, if any, should be awarded to the plaintiffs (s 7A(4) of the Act).

Outline of Facts

6 Later in this judgment I will be reviewing in some detail some of the evidence which was given at the hearing before me. However, it will be convenient, at this stage of my judgment, to give a brief outline of some of the facts occurring before the publication of the publications sued on, which would appear to me to be uncontroversial and a knowledge of which is essential to a proper understanding of the publications sued on.

7 All of the parties and all of the witnesses who gave evidence at the hearing before me are of Ukrainian ancestry and are fluent in the Ukrainian language.

8 For many years up to 1979 Dr Motyka, his wife Mrs Motyka and his mother-in-law Mrs Ostrowskyj lived in Adelaide. In about 1971 Dr Motyka helped found an organisation called the Ukrainian Studies Foundation in Australia (“the USFA”), which became a company limited by guarantee, the principal object of which has been to promote Ukrainian studies in Australia at tertiary level. Dr Motyka was one of the original directors of the USFA. He later became chairman of the USFA and held that position from 1990 to 2002.

9 Between about 1976 and 1985 Mrs Ostrowskyj was the head of an organisation known as the Ukrainian Women’s Association (“the UWA”) of South Australia.

10 At all material times up to the present the defendants Mr and Mrs Gojan have lived in Adelaide. Mr Gojan was for many years a member of the USFA.

11 In about 1979 Dr Motyka and Mrs Motyka moved to Newcastle. Dr Motyka obtained an academic position in accounting at the University of Newcastle.

12 In about 1985 Mrs Ostrowskyj moved to Newcastle and in 1987 she helped found the Ukrainian Women’s Association, Newcastle and Hunter Region. She has been the head of the UWA Newcastle and Hunter Region since 1987. Between 1998 and 2001 she was head of the national executive of the UWA in Australia.

13 For some years the treasurer of the UWA Newcastle and Hunter Region was Mrs Valentina Nakazna. However, Mrs Nakazna was removed as treasurer and then expelled from membership of the UWA Newcastle and Hunter Region.

14 The USFA conducted an account with the Hoverla Ukrainian Credit Co-operative in South Australia. In late 1998 an officer of the Credit Co-operative forwarded to the USFA in Sydney a copy of a document which the Credit Co-operative had received, purporting to record that Mr Gojan and a woman named Mrs Berketa had been authorised to operate on an existing account of the USFA with the Credit Co-operative. A copy of this document became exhibit E at the hearing before me.

15 Dr Motyka was concerned by the document and at the Annual General Meeting of the USFA which was held on 30 January 1999 he said something about there having been an attempt to change the authorised signatories to the account,. This meeting was attended by Mr Gojan. Later in this judgment I will consider the evidence about what it was that Dr Motyka said at the meeting.

16 On 25 February 1999 Mr Gojan wrote a letter in English to the USFA in which he claimed to “clarify some issues … that arose at the General Meeting of the USFA on 30 January 1999”. This letter is set out at pp 105-106 of a book which became exhibit B at the hearing before me. Later in this judgment I will set out the terms of the letter.

17 On 30 March 1999 a letter was written in Ukrainian on behalf of the USFA to Mr Gojan, alleging that he had been guilty of misconduct in relation to the USFA in respects which were spelt out in the letter and requiring him to attend a meeting of the Board of Directors of the USFA to be held on 17 April 1999. The terms of the letter in Ukrainian are set out at page 113 of exhibit B. Dr Motyka, in the course of being cross-examined by counsel for the defendants at the hearing, gave what amounted to a translation of the letter into English, which is recorded at pages 109 and 110 of the trial transcript.

18 According to Dr Motyka’s translation, it was alleged in the letter that Mr Gojan had breached the constitution of the USFA, that he had improperly represented himself to be the head of the representation of the USFA in South Australia, that he had improperly convened a meeting of the representation of the USFA in South Australia, that he had improperly attempted to change the signatories to an account of the USFA and that he was distributing letters in which untrue allegations were made about the Board and members of the USFA. Mr Gojan was requested to appear before the Board at its meeting to be held on 17 April 1999 in Sydney. The Board offered to pay for Mr Gojan’s return journey from Adelaide to Sydney.

19 On 12 April 1999 Mr Gojan wrote a letter in English to Dr Motyka, which is set out at pages 118 to 120 of Exhibit B. In this letter Mr Gojan responded to issues raised in the letter of 30 March 1999 and said that he would not be attending the meeting of the Board of the USFA to be held on 17 April 1999. Later in this judgment I will set out the terms of the letter.

20 Mr Gojan did not attend the meeting of the Board of the USFA held on 17 April 1999 and the Board resolved that Mr Gojan be expelled as a member of the USFA.

21 By a letter in English dated 30 May 1999, the terms of which are set out at page 121 of Exhibit B, the Board of the USFA notified Mr Gojan that the Board had resolved that he be expelled from the USFA.

Publications Found by the Jury to Convey Defamatory Imputations

22 The publications found by the jury at the s 7A hearing to convey defamatory imputations were:-

23 Copies of the two letters in the original Ukrainian are annexure A to the statement of claim (pages 11 and 12 of the statement of claim) and copies of agreed translations of the two letters into English are annexure B to the statement of claim (pages 13 and 14 of the statement of claim). In the statement of claim the letter of 17 November 1999 (incorporating the letter of 15 November) is described as “the second matter complained of”.

24 The agreed translation of the letter of 15 November is as follows:-

“Valentina Nakazna

84 Crown Street

Belmont, NSW, 2280

Tel. 02 49479916

15-11-99.

Dear Mrs Gojan,

By chance the letter, which you wrote to the Board of the USFA, came into my hands. I read it several times and precisely your letter reminded me of my unjustly painful experiences from mr. Motyka and his mother-in-law - Dunia Ostrowskyj.

Six years ago they exhausted my health and that of my family to the limits. Such misery did they set upon me, threatened me with court action, police, in order that I be frightened and kept quiet about not my but their mistakes, when I struggled and tried to explain their unjustified slander against me. They then set lawyers upon me, but I did not in any way want to lose all my wealth, which I have accumulated in very difficult circumstances.

Just the same as in your case, Dunka started the matter when my husband travelled to Ukraine for 3 months and I was left alone to defend myself. Friends supported me morally however they did not put their weight behind me, by the time my husband returned they had managed to vilify not only in Newcastle, but also in Sydney, because she knew, that I also had friends there as well, and [she] tried to unjustifiably embarrass me, anywhere and in any way she could.

From the time when Ostrowska moved from Adelaide to Newcastle, arguments and slander started here in our Hromada [*I]. They with their family, that is son-in-law Motyka, daughter `doctor' and she herself have destroyed here the dancing group, school, social welfare (group), and are eating away the SUM - in a word - there is no sense in how this little family created itself. Many people have read your letter. All sympathise because not with only one person have they gotten into a feud and with you, as well as with many here in Newcastle they have telephoned and threatened with court action, and people are scared and quaked because they have not the capacity to go to court, but Motyka has crawled, like a rat into the millett and is threatening everyone all round.

Ostrowska has enticed [*2 potyahlasya] herself up to higher positions, let them come to know her even there. In Newcastle she has reached very and very low with her slander and cunning. She understood that amongst the Orthodox there was nothing she could do, so she dragged enticed [*2 potyahlasya] herself to the catholics, probably thinking, that it is easier to fool them. Mrs Maria, they have fallen very low in Newcastle. There was news, that even in Sydney she would be revealed for what she is. And this `Serdytyi', who [he] was afraid to sign the letter, this was if not 95% Mrs mother-in-law, because similar, unsigned letters, appeared even here in the Hromada, but people added 2 plus two = 4. This, that your husband was not given the opportunity to explain, that happened to me, this is the methods of the motyka liars and mother-in-law /Witch.

[in Russian]]

Let, Mrs Maria, this my letter to you be personal, because I no longer have any more health and strength to struggle with them. I am 77 years old, but even so I work for Ukraine. We distanced ourselves from the `Witch' and started to work on our own for Ukraine. We make dumplings [varennyky] and every month sell about 1000 to 2000. We have called ourselves women of `Kind Hearts', because the Social Welfare under Ostrowska does not do a single thing!, but we, every month now for 6 years send packages to the poor, paid for by the dumplings.

Maria Brylynska, the head of the Hromada, sympathises with you in the same way. She also has suffered enough from them.

With respect to you, dear Maria.

25 The agreed translation of the letter of 17 November is as follows:-

“Adelaide, 17-11-1999-12-01

Ouzh [Translator's note: Ukrainian Womens Association in Australia]

The named [persons] have now good experience in this devil's method.

This letter is one more important document, because it proves the need to struggle against criminality. Our obligation is to make known to all the Ukrainian community these horrific matters and who caused them.

[signature]

Maria Gojan

26 The jury at the s 7A hearing found that Mrs Gojan had published the whole of the text of both letters. The jury found that the letters conveyed the following defamatory imputations about Dr Motyka:-

“(a) That he had sought to intimidate Mrs Nakazna;

(b) That he had acted to destroy the social life in his community;

(c) That he was a wicked person;

(d) That he had conspired to unlawfully take possession of funds which did not belong to him.

27 The jury found that the letters conveyed the following defamatory imputations about Mrs Ostrowskyj:-

(a) That she had sought to intimidate Mrs Nakazna.

(b) That she had acted to destroy the social life in her community.

(c) That she was a slanderer.

(e) That she had conspired to unlawfully take possession of funds which did not belong to her.

28 2. A letter dated 21 November 1999 from Mrs Gojan to Mrs Nakazna.

29 A copy of the letter in the original Ukrainian is annexure C to the statement of claim (pages 15 and 16 of the statement of claim) and a copy of the agreed translation into English is annexure D to the statement of claim (pages 17 and 18 of the statement of claim). In the statement of claim the letter is described as “the third matter complained of”.

30 The agreed translation of the letter is as follows:- (in this judgment I reproduce agreed translations verbatim, without correcting punctuation, spelling or syntax)

“Adelaide 21-11-1999
Respected and Dear Mrs Valentyna,

Yesterday I received a fax from a very famous and educated person, a writer, who, because of Motyka, also wound up in hospital. I am sending you a copy of this letter.

[the truth will come out]

I could write much, but do not want to repeat everything that was already said because, as many people have told us, that for Motyka kind, wise words are of no significance, he does not pay any attention to tears. Human misery for him is joy and pleasure, people like him they call sadists.

The harm that has been inflicted upon us, together, will not pass in vain, this is now a proved fact. One day the time to account will come for Motyka and maybe he will recant, but there will be no return. It is regrettable that Motyka does not think about his children, what will he leave them? The question arises? Maybe two and a half million dollars? And what kind of reputation?

We will continue our fight against the anarchy of these monsters and, -as Christ the Lord said "forgive them, for they do not know what they do". I remember the words of the dear Mr. L. Denysenko, he said, that God sees all and they will receive theirs.

Dear Mrs Valentina, do not lose heart, life should be valued and let our enemies die, like the dew in the sun.

With great respect to you and your family.

May God be with you.

Please convey my greetings to all your friends, who tirelessly work for the good of Ukraine and the Ukrainian people.

Good luck!

Yours Maria Gojan

31 The jury at the s 7A hearing found that the letter published by Mrs Gojan conveyed the following defamatory imputations about Dr Motyka:-

“(a) That he was dishonest;

(c) That he was a megalomaniac;

(d) He had behaved so wickedly towards the Ukrainian community that he had forfeited the right to identify himself as Ukrainian;

(e) That he was a selfish egotist;

32 The jury found that the letter published by Mrs Gojan conveyed the following defamatory imputations about Mrs Ostrowskyj:-

(a) That she had behaved so wickedly towards the Ukrainian community that she had forfeited the right to identify herself as Ukrainian.

33 3. A letter dated 28 January 2000 from Mrs Gojan to a woman named “Mrs Rosa” (Stenanyszyn).

34 A copy of the letter in the original Ukrainian is annexure G to the statement of claim (page 21 of the statement of claim) and a copy of the agreed translation into English is annexure H to the statement of claim (page 22 of the statement of claim). In the statement of claim the letter is described as “the fifth matter complained of”.

35 The agreed translation of the letter is as follows:-

“Adelaide 28-1-2000 Maria Gojan

Today I received your letter written on 23-1-2000 for which I sincerely than you. It hurts me very much, that so many people have suffered and continue to suffer because of one such dishonest, shameless person who has brought honest people so much unpleasantness.

How much have our people suffered back home and were always frightened and paradoxically even here in a foreign land continue to suffer under that devil Motyka. Many people cannot understand him, not only here in Australia, but in Ukraine as well. How can a Ukrainian do such terrible things to his fellows and with such a high education, instead of helping us in our daily lives.

I found out plenty from Newcastle about mrs ostrowskyj and Mr. Motyka, that they poke their noses into everything, denigrate everyone, treat everyone as idiots. As I understood from letters and telephone discussions, that they involved themselves in the life and activities of some of our organisations and broke them up. This truly is the work of the enemy and I don't understand why they, having good professional jobs, involve themselves in the well established work of many of our organisations and so get in the way of all of you, wanting to ascribe the success to themselves.

In the case of your husband, whom Motyka - that liar and swindler threatened , many a person has suffered from him, including my husband, who was also in hospital. My husband remarked that this is the devil's work and we do not have the right to give in to him and must struggle. We are grateful to many people, who turn to us, tell us their complaints and in this way reveal more and more the terrible matter, created by this pillager-savage, supposedly an educated person. Motyka has no respect for the elderly, who have suffered so much in life, nor to himself, nor to Ukraine, to so disgracefully terrorise many honest people here in Australia.

With sincere greetings to you and I greet you with-the New 2000th year, wishing you sound health and I believe that Motyka and Ostrowskyj will not persecute you any more.

M Gojan

50 Beaufort Street

Woodville Park

SA 5011

Tel. 08 84456573”

36 The jury at the s 7A hearing found that the letter published by Mrs Gojan conveyed the following defamatory imputations about Dr Motyka:-

(a) That he was a dishonest person;

(b) That he had intentionally caused great suffering to many people;

(c) That within the Ukrainian community in Newcastle, he denigrated everyone and treated most persons as idiots;

(d) That he had undermined Ukrainian community organisations;

(h) That the first plaintiff had terrorised many honest people in Australia”.

37 The jury found that the letter published by Mrs Gojan conveyed the following defamatory imputations about Mrs Ostrowskyj:-

(a) That within the Ukrainian community in Newcastle she denigrated everyone and treated most persons as idiots.

(b) That she had undermined Ukrainian community organisations.

38 4. Two parts of the book published in the year 2000 by Mr Gojan, a copy of which became exhibit B at the hearing before me. The first part was the letter in English dated 25 February 1999 from Mr Gojan to the USFA, which is set out at pages 105 to 106 of the book, and the second part was the letter in English dated 12 April 1999 from Mr Gojan to Dr Motyka, which is set out at pages 118 to 120 of the book.

39 The letter of 25 February 1999 was in the following terms:-

“Dear Sir

RE: THE UKRAINIAN STUDIES FOUNDATION IN AUSTRALIA YOUR REFERENCE: PBJ : UKR 382 : 6007

I am writing to you in order that I may clarify some issues involving Mr Motyka that arose at the General Meeting of the USFA on 30 January 1999.

The purpose of this letter is to respond to an allegation, and a deliberate lie made by Mr Motyka to the effect that in September 1991 he was in Adelaide involved in matters pertinent to the USFA and that I Michael Goyan picked him up from…?, and brought him to my house at 50 Beaufort Street, Woodville Park in September 1991, the facts detailed hereunder which can and will be substantiated, if needs be, show Mr Motyka’s allegations to be errant nonsense:-

Lie No 1: I have never met Mr Motyka in Adelaide, let alone in September 91. I categorically deny picking Mr Motyka in Adelaide and transporting him to my house in Woodville Park.

Lie No 2: I have never introduced Mr W Polishko as Chairman of the USFA Branch of South Australia to Mr Motyka. I firmly believe that this was fabricated by Mr Motyka to incite Co-founders and donors against me at the General Meeting on the 30.1.99 in Sydney. Moreover, I have never been given a chance to deny this lie.

Lie No 3. I firmly maintain that no one here in South Australia was aware that Mr Motyka was in Adelaide relative to matters pertaining to the USFA in September 1991. I can assure you that no official meetings were called in Adelaide at that time.

Lie No 4. We categorically refute the statement made by Mr Motyka some individuals wanted, to take over the $80,000, we are not thieves! The facts of the matter are that on 1 December 1998, Mr W Polishko informed Mr Czudakewycz, Secretary of the Sydney Head Office by letter that monies collected and deposited in Adelaide: Account S1 at the “Hoveria” Cooperative controlled by Mr Polishko, USFA’s South Australian Branch, have been transferred to Mr M Goyan, Chairman of the USFA’s SA Branch. This is the account S1 totalling $17,000.00 only, recorded in the Adelaide “Hoverla” Cooperative. We have had absolutely no dealings or involvement with a separate account, totalling $80,000 held in the same cooperative and controlled by signatories attached to the “Head Office” in Sydney. Clearly there is no facility for SA Branch Members to access these funds, nor has there ever been any intention on our part to touch either account over the years. Accordingly we take great exception to misinformation given publicly by Mr Motyka, to the effect that I wanted to ‘get a hold on this money’, and that the matter was in the hands of the police. (We are still waiting for the police) I understand that these allegations are defamatory. I welcome Police intervention in order that I may then feel motivated to clear my name at 77 years of age, I maintain an impeccable reputation and standing in the Ukrainian community as an honest and reliable person. I am not about to have this besmirched by the likes of Mr Motyka, who seems to be a compulsive liar.

Lie No 5. We reiterate that contrary to untruth purveyed publicly by Mr Motyka, we have never received an unambiguous and substantive response to our letter dated 12 October 1998. We did so get very threatening letters from Mr Motyka.

As a consequence of the history of untruths and ongoing deception we maintain our resolve to have Mr Motyka removed from the position of Chairman and Director of the USFA. We believe that the matter is sufficiently serious to be brought to the attention of the Registrar of Companies and the Australian Securities Commission, and the whole Ukrainian community. We cannot overemphasise the negative effects of the ongoing stress and anxiety that Mr Motyka’s deliberate and ongoing intimidation and outright dishonesty is causing Co-founders of USFA, therefore with his deliberate lies has forfeited to be head of USFA.

Yours sincerely, Michael Goyan”

40 The letter of 12 April 1999 was in the following terms:-

“12.04.99.

Dear Mr. Motyka

RE: YOUR CORRESPONDENCE DATED 30TH MARCH 1999

I acknowledge receipt of your letter dated 30th March 1999 in which you aliege that I am in breach of the “Memorandum and Articles” of the USFA and invite me to appear before the Directors of the Board on 17th April 1999.

You will not be surprised that I reject your allegations and thai I am bemused at your invitation that I should appear before the directors for admonishment and/or to plead my case as to why I should not be expelled frcm membership of USFA. Obviously I will not be doing so.

Let me emphasise our position The gravity of the issues that are escalating since our initial enquiry in October, 1998, and our firm resolve to expose what we believe – and have evidence to support – are questionable activities that may well breach statutory requirements. This goes well beyond me being held accountable and having as explain my actions to the Directors of the Board.

We have no confidence in a Chairman who governs by his own set of rules (and who is dishonest) guided by a Memorandum and Articles of questionable legality

Again, let me respond to the issues raised in your letter by putting forward the position of South Australian Donors which can be summarised as follows:

1. We reject your interpretat’on that our efforts to obtain definitive information about the disbursement of funds amounts to “Accusations of financial impropriety” Let me restate again that we have yet to receive any meaningful substantive response to our letter dated 12th October 1998 Had you, in your position as Chairman, responded honestly and unambiguously to the specific questions raised in our letter, we could have avoided this on-going exchange of correspondence and associated stress and tension. That you, in our opinion have deliberately attempted to obfuscate these issues, and intimidate, South Australian Donors in the process, strengthens our resolve to obtain detailed and factual information regarding the use of funds donated to the Foundation.

We are confident that we have acted correctly in our endeavours to obtain this information in recent months, and remain concerned and offended at your stance and behaviour which I can assure you is well documented You are mistaken if you believe that donors will ultimately give way to the illusion that you are carrying out the duties of your office ethically and with propriety, when in fact you are governed by your own set of rules.

2. I was appointed Chairman of the USFA for South Australia on the death of Rev N. Plichkovsky and was again nominated Chairman at the General Meeting in Adelaide on 12th December 1998, following due legal process. Evidently, there have been no objections to our activities here in South Australia – until such time that we began our enquiry into the use of the funds – giving rise to our suspicions and concerns If you had any misgivings at that stage you should perhaps have explained this to all Donors, myself included?

3. As has been the case for several years we have exercised our right to hold General Meetings in South Australia. Neither you or other Directors have ever objected to this in the past. I refer to a meeting in Adelaide which extended over two days (June 27th – 28th, 1987), which resulted in our raising substantial funds for the Ukrainian Australian Shevchenko Trust. Contrast this with a meeting recently convened by you to which few people were invited (or informed) and was over in 3 hours! You are high handed in your application of a governing set of rules that you yourself had no small part in drafting

4. I take great offence and exception at your accusation that an attempt was made by myself to defraud funds in South Australia. My honesty and credibility will never be questioned. Mr Motyka and Mr Czudakewycz pursue this line at your peril You should be ashamed of yourself, pursuing a strategy that is totally baseless and will continually reflect poorly on you. I am prepared to be judged by my peers on this score? Publication on the History of the USFA, inclusive of all letters reflecting on your character and actions, spontaneously received from donors from all over Australia.

Might 1 add that I have always paid for expenses when involved in USFA activities out of my own pocket Very odious tactics Mr Motyka.

5. I do not deny that a number of South Australian donors, including myself are, and will continue to distribute letters In the absence of any Media Coverage (Mr Czudakewycz told us himself that no Ukrainian Newspaper will publish our grievances). This is the most effective and democratically sound way of informing Donors of your actions and behaviour. We believe all Ukrainians have the right to have access to the facts in order that they might make informed opinions about this subject matter. It is not us who are damaging the reputation and development of the USFA In addition to the stress and worry that you have caused to so many well meaning donors, you now have the audacity to refer to paragraph 14 of the Articles of Association and summons me to Sydney! Please read the reasons in my letter written in Ukrainian as to why I am not in a position to attend But understand that in principle I do not intend to be part of this farcical attempt of officiousness on your part You may try to couch your position in an officious, high handed tone – it is all part of your intimidating approach which we believe is designed to prevent a proper investigation into your dealings.

I have already been to Sydney this year on 30 January 1999, in an attempt to reach some form of mutual understanding of our respective positions – I might add all at my own expense. It is on record that I was denied any real opportunity to make any representations – Moreover, ! was subjected to a monstrous accusation that I was attempting to get my hands on $80,000! As a result of your disgraceful conduct I was then prevented from defending myself, and worse, Mr Czudakewycz made reference to the fact that the matter was in the hands of the Police, no doubt in an attempt to discredit and embarrass me in front of the Ukrainian Community in Sydney. Then you Mr Motyka topped this accusation with more of your lies) I was speechless and very hurt. You tried to provoke me, but sooner or later the truth will be known.

As you may well find out Fraud is a very serious crime in Australia and defamatory accusations are also a very serious crime. If there was any substance to your accusation and you very well know there is not – the Police would have investigated the matter and laid charges against me. This illustrates the lengths that you are prepared to go to, to discredit me, deflecting attention of yourself perhaps? Apart from everything else your Public Relations skills alone bring discredit on the USFA.

Clearly, it suits your purpose to have me expelled. We know you would like to expel all donors so nobody will stand in your way and question how you are disposing of funds. Funds in the order of $2.5 million.

There is increasing concern and disquiet about the activities of the USFA Board of Directors, mainly as a result of the adequacy of information being made available and your role in suppressing the dissemination of meaningful and accurate information.

We believe you should resign and let someone else take over the running of USFA for the good of our future generations.

Yours faithfully

on behalf of the South Australia Branch of the USFA

Michael Goyan”

41 The jury at the s 7A hearing found that the two letters conveyed the defamatory imputation that the first plaintiff was a compulsive liar and that the letter of 12 April 1999 conveyed the defamatory imputation that the first plaintiff was engaged in a campaign of intimidation.

42 In the statement of claim the book is described as “the sixth matter complained of” but only the two letters are referred to in the particulars in the statement of claim.

43 5. A letter dated 28 August 2000 from Mr Gojan and Mrs Gojan addressed “To all Ukrainian Communities To all Donors to USFA To the Entire Ukrainian Society”.

44 A copy of the letter in the original Ukrainian is annexure K to the statement of claim (page 25 of the statement of claim) and a copy of the agreed translation into English is annexure L to the statement of claim (page 26 of the statement of claim). In the statement of claim the letter of 28 August 2000 is described as “the seventh matter complained of”.

45 The agreed translation of the letter was as follows:-

“ADELAIDE 28/2/2000

TO ALL UKRAINIAN COMMUNITIES
TO ALL DONORS TO USFA
TO THE ENTIRE UKRAINIAN SOCIETY
"We are forced to tun to all of you once again in the matter of the continued terrorism from Mr W. Motyka who still is the head of the USFA (the Ukrainian Studies Foundation in Australia) and his Ukrainian lawyer C. Bilinsky, when already two lawyers of Mr Motyka have earlier refused to undertake his matter against us.

Already more than 6 months have passed since Mr Motyka has frightened us as well as some people in Newcastle, NSW with legal proceedings. Also two years have passed, when this same man frightened us with the police and lawyers, but we have not seen any police because this is a concoction of an mad person. An now he has again commenced proceedings in the court. And again six months has passed since his previous attempt. We received a letter 25-8-2000 from the lawyer Bilinsky, that on 1-9-2000 there is to be a court hearing in Sydney at the summons of Motyka and Ostrowskyj, Motyka's mother-in-law.

Many people were frightened in the city of Newcastle, NSW by Mrs Ostrowskyj, in the same way, as practised by Mr Motyka, court action and lawsuits. Why create terror and disquiet amongst our people? What kind of methods are used by the people mentioned and where did they get them from?

Attached are copies of letters from Queensland, which we only today received, for your attention concerning the mentioned matters. Everyone should ask Motyka, with whose money will he be undertaking court action against us, because we do not take Ukrainians to court, but will be forced to mount a full defence. We know, the Motyka is planning to use the USFA funds, which donees gave for studies for the younger generation and also he has insured himself against lawsuits, if there were to be any against him. It appears that he already expected matters concerning fundatory (donees) and finances, operating without a Control Committee, which everyone demanded, and which was left without any attention. Motyka threw out genuine, hardworking members of the USFA and fundatory [donees] of the USFA. Should the Head do this! What kind of activity is this, possibly an enemy activity and so everyone should know about it. We warn everyone, that court action is very expensive and if the funds of the USFA are used for this purpose, then this will not be our fault but that of the Board of the USFA.

P.S. It was decided not to send the letters mentioned from Queensland as they are very important for the court case, if they are needed. But we are sending you a letter from Newcastle.

With respect to you.

46 The jury at the s 7A hearing found that the letter conveyed the following defamatory imputations about Dr Motyka:-

(a) That he sought to terrorise the Australian Ukrainian community;

(d) That he was unfit to head the Ukrainian Studies Foundation of Australia.

47 The jury found that the letter conveyed the following defamatory imputation about Mrs Ostrowskyj:-

(e) That she had sought to terrorise the Ukrainian community in Newcastle”.

Pleadings and Particulars

48 As already noted, the final version of the statement of claim was the fourth amended statement of claim of 30 November 2006. The defendants did not seek to further amend their defence and the amended defence to the third amended statement of claim, which was filed on 22 February 2006, stood as a defence to the fourth amended statement of claim.

49 In the defence the defendants, apart from traversing allegations in the statement of claim on which the jury subsequently made findings at the s 7A hearing, raised defences of qualified privilege at common law, statutory qualified privilege (s 22 of the Act), unlikelihood of harm (s 13 of the Act) and “mental impairment”.

50 Some particulars of the defence of qualified privilege at common law were furnished in the defence. Further particulars of the defence of common law qualified privilege were subsequently furnished which I will set out later in this judgment.

51 In their reply the plaintiffs alleged that the publication of each of the matters complained of had been actuated by malice. Particulars of malice were furnished which I will set out later in this judgment.

Summary of Evidence

52 Both of the plaintiffs gave evidence at the hearing before me. Other witnesses who gave evidence in the plaintiffs’ case were Ms Sonia Mycak; Mrs Olga Motyka, the wife of Dr Motyka and the daughter of Mrs Ostrowskyj; Mrs Lydia Beasley, a woman of Ukrainian ancestry who had married a non-Ukrainian; and Mrs Olga Bazalej. The defendants did not give evidence and did not call any witness.

53 I have decided that I should, in general, accept the plaintiffs and their witnesses as honest and reliable witnesses. Later in this judgment I will consider the reliability of Dr Motyka’s evidence about what happened at the Annual General Meeting of the USFA on 30 January 1999.

54 I have taken into account all the evidence of all of the witnesses but I will now summarise some only of the evidence of the witnesses.

Dr Motyka

55 Dr Motyka is an academic in the discipline of accounting at the University of Newcastle. He holds a degree of Doctor of Philosophy in Commerce.

56 A curriculum vitae of Dr Motyka, which was tendered during his evidence in chief, described inter alia his honorary community work over many years in the founding and the carrying on of a number of Ukrainian business, charitable, cultural, social and religious organisations. An item in the curriculum vitae reads:-

“Member of the founding group (1971) for the establishment of the Ukrainian Studies Foundation in Australia (based in Sydney but functions nationally), Patron Member of the USFA and Chairman of the Board 1990-2002….”

57 Dr Motyka gave further evidence about the USFA. It is a company limited by guarantee of which Dr Motyka was a director and then the chairman of directors. The objective of the USFA is to promote Ukrainian Studies at tertiary level in Australia. The activities of the USFA fitted in well with Dr Motyka’s area of academic research, which has been accounting in Eastern Europe.

58 Dr Motyka gave evidence about receiving and reading the letters of 15 and 17 November 1999. His wife had telephoned him at his work, saying that some mail had been received, which Dr Motyka needed to look at. Dr Motyka’s evidence continued:-

“I arrived home, would have been after five o'clock. I met my wife and my mother-in-law outside in our backyard next to the stairs, that is where they were standing holding the letters they were distraught about. They gave it to me. I was saying: What is causing you this? They said: Read it. I quickly read it. I was devastated to see what was being said about my family, about my mother-in-law, my children. It was virtually from beginning to end. From people that were living in Newcastle, for reasons that I couldn't understand. Seeing how distraught they were, that made me even worse, upset…”

59 All of the imputations which the jury had found were conveyed by the letters were untrue.

60 Some other copies of the letters were sent to Dr Motyka’s home by mail or passed on to Dr Motyka by other members of the Ukrainian community. Persons who passed on the letters included Mrs Basalej and Mrs Artym, both of whom were residents of Newcastle and members of the same church parish as Dr Motyka but not members of the USFA.

61 Very soon after receiving the letters of 15 and 17 November 1999 Dr Motyka received in the mail the letter of 21 November 1999. He was “devastated” by the letter. The imputations which the jury found were conveyed by the letter were untrue. Other copies of the letter were passed on to Dr Motyka. One person who passed on the letter to Dr Motyka was Mrs Danko, a woman living in Sydney, who had been the head of the UWA.

62 In early March 2000 Dr Motyka received in the mail the letter of 28 January 2000. Other copies of the letter were passed on to Dr Motyka by persons including a woman living in Adelaide named Ms Ciurak. It was “devastating” to Dr Motyka that “people in our local community were engaged in this…. And to realise it is also being spread in other places beyond our own community”. The imputations which the jury found were conveyed by the letter were untrue.

63 In September 2000 Dr Motyka received the letter of 28 August 2000. Dr Motyka was “dumbfounded”, “distressed” and “depressed” by the letter. The letter “goes directly to my financial integrity, accounting responsibilities, reporting, which is my profession”. Dr Motyka believed that funds collected for the USFA were “untouchable for anything other than for the purpose for which they had been collected”.

64 The letter of 28 August 2000 was addressed to the whole Ukrainian community. Dr Motyka wondered whether publication was limited to Australia or whether it had gone beyond Australia.

65 All of the imputations which the jury found were conveyed by the letter of 28 August 2000 were untrue.

66 Dr Motyka had first seen the book exhibit B in the latter part of the year 2000. Someone had passed the book on to Dr Motyka. Dr Motyka had read the book. “The majority” of the book was about Dr Motyka.

67 The letter of 15 November 1999 from Mrs Nakazna was reproduced at pages 145 to 146 of the book and the letter of 17 November 1999 from Mrs Gojan was reproduced at page 147 of the book. The text of the letter of 28 January 2000 from Mrs Gojan was reproduced at page 157 of the book.

68 Dr Motyka’s reaction to the book was “complete disbelief” that such a book would appear, particularly with a cover bearing the name and the logo of the USFA.

69 Dr Motyka was depressed and worried that imputations similar to those which had been conveyed in the letters were now being conveyed in the form of a book.

70 Dr Motyka was sent copies of the book by others persons including Father Kolomyjec, a Ukrainian Catholic priest in Sydney. Dr Motyka believed that Father Kilomyjec had passed on the book, not with any ill intent, but to keep Dr Motyka informed of what was happening.

71 Dr Motyka gave evidence that his mother in law Mrs Ostrowskyj was “very, very hurt” by the letters. Mrs Ostrowskyj had dedicated her whole life to the Ukrainian community. She kept asking “why, why am I being vilified? Why is our family being vilified?”

72 After he started receiving the letters, Dr Motyka in his capacity as chairman of the USFA tried to ensure that proper processes were adhered to in the affairs of the USFA. However, he experienced a decline in his credibility, more people questioning anything he said.

73 When Dr Motyka and his family attended church, some persons who would previously have approached them no longer did so and other persons reported to Dr Motyka that they had received letters, which Dr Motyka inferred were letters from Mrs Gojan. Dr Motyka resigned as chairman of the audit committee at the church, while remaining a member of the committee, because the head of the parish council Mrs Brylinsky was the author of some material in the book.

74 Dr Motyka perceived that Mrs Ostrowskyj was held in less esteem than previously and that more persons tried to avoid her.

75 Dr Motyka gave the following evidence:-

“The effects have been ongoing. There has been far less contact from circles and networks that I had a close working relationship with. There has been even a far less working contact where I would write to, for example, the Ukrainian Studies Foundation and they wouldn't respond or, if they did, it would be a year later and would be a perfunctory response if I asked for information. The same with the Ukrainian credit union that's in Sydney, the kind of responses are not what I used to be able to get. And when we attend functions of one kind or another there is not the circle of people that there was before with whom we used to involve ourselves and they with us”.

76 There was a long cross-examination of Dr Motyka, the transcript of which extends over more than 100 pages. I have taken into account all of the cross-examination but will refer expressly only to certain parts.

77 Dr Motyka was repeatedly asked in cross-examination about what he had said as chairman at the Annual General Meeting of the USFA on 30 January 1999 about Mr Gojan and the account of the USFA with the Hoverla Ukrainian Credit Co-operative. Dr Motyka consistently gave evidence to the effect that he had told the Annual General Meeting that an attempt had been made to change the authorised signatories to the account with the Hoverla Ukrainian Credit Co-operative, that the attempt had not been approved by the Board of the USFA and that the matter had been referred to police.

78 Dr Motyka gave evidence that at the Annual General Meeting he himself had not mentioned Mr Gojan’s name in relation to the account and had not heard anyone else mention Mr Gojan’s name in relation to the account. He conceded the possibility that Mr Gojan’s name might have been mentioned by someone during a break in the formal proceedings.

79 Mr Gojan had attended the Annual General Meeting on 30 January 1999 and had spoken at two stages of the meeting. At an early stage in the meeting, when salutations and well wishes from individuals and groups were being received, Mr Gojan had spoken about his complaints against the Board of the USFA. He was heckled by members and Dr Motyka as chairman of the meeting had asked Mr Gojan to sit down. Later in the meeting Mr Gojan had spoken again. Dr Motyka gave evidence that on this second occasion “surprisingly, he (Mr Gojan) didn’t raise the same matters. He was very conciliatory”.

80 Dr Motyka had told the Board of the USFA that Mr Gojan had wanted to take over the funds of the USFA in the account with the Credit Co-operative in South Australia and this matter was discussed by the Board.

81 Dr Motyka gave evidence that the Board had decided not “to go public” and to take steps to keep the dispute between it and Mr Gojan confidential. The Board did not know what was really happening in South Australia and wanted to carry out further investigations.

82 One part of the dispute between Mr Gojan and the Board of the USFA was that Mr Gojan was purporting, without the authority of the Board, to act as an officer of the “South Australian Branch” of the USFA. Dr Motyka asserted in his evidence that he, and the Board generally, took the position that there was no South Australian Branch of the USFA, only a “representation” of the USFA in South Australia and that any representative of the USFA in South Australia had to be authorised by the Board of the USFA.

83 Dr Motyka gave evidence that there was only one account with the Hoverla Credit Co-operative, an account held by the legal entity being the company even if it contained two “components”, an investment account and an operating account, and that the only persons authorised to operate on any component of the account were persons authorised by the Board of the USFA. Dr Motyka denied that there was a local account capable of being operated by members of the USFA in South Australia.

84 Dr Motyka was concerned by the information being received about the activities of Mr Gojan in South Australia, including the purported authority exhibit E, because he considered the USFA was responsible for all of the funds it had received and had to maintain control of those funds and he did not wish to be associated with any kind of financial irregularity.

Mrs Ostrowskyj

85 Mrs Ostrowskyj gave her evidence in chief in English but gave most of her evidence in cross-examination through an interpreter.

86 Mrs Ostrowskyj is the mother-in-law of Dr Motyka, who is married to her daughter Olga.

87 Mrs Ostrowskyj was born in Ukraine and came to Australia in 1949. She lived in Adelaide until 1985, when she moved to Newcastle.

88 While Mrs Ostrowskyj was living in Adelaide she was for nine years the head of the Ukrainian Women’s Association of South Australia. After moving to Newcastle, she was a founding member of the Ukrainian Women’s Association Newcastle and Hunter Region and she has been the head of the Ukrainian Women’s Association Newcastle and Hunter Region from 1987 up to the present. Between 1998 and 2001 she was the head of the National Executive of the Ukrainian Women’s Association in Australia.

89 When asked how she felt when the letters of 15 and 17 November 1999 were received, Mrs Ostrowskyj said “Numb. Absolutely numb”. Her daughter and her son-in-law had tried to calm her down but “it was very, very painful”. The imputations which the jury found were conveyed by the letters were false.

90 When Mrs Ostrowskyj received and read the letter of 21 November 1999 she was “very, very shocked”. The imputations which the jury found were conveyed by this letter were false.

91 When Mrs Ostrowskyj received the letters of 28 January 2000 and 28 August 2000, she did not know why she and her family were being attacked. The imputations which the jury found were conveyed by these letters were also false.

92 Copies of all of the letters were received by Mrs Ostrowskyj in the mail, with no return address being given.

93 Mrs Ostrowskyj was a member of the USFA but had never been a director and had never done or said anything in the affairs of the USFA and had had nothing to do with any dispute between the Board of the USFA and Mr Gojan.

94 Mrs Ostrowskyj gave evidence that after receiving the letter of 28 August 2000 “I isolated myself. I mostly stayed behind the door in my house…”

95 When asked how Dr Motyka had reacted to the letters, Mrs Ostrowskyj said:-

“I should say he didn’t express much. But he was very depressed and then almost in tears. He used to say that’s the payment… I earn to work for our community. That’s the mistake. And very badly, very badly, he took very hurtful and very badly”.

96 Mrs Ostrowskyj was further upset, when she saw that the letters of 15 and 17 November 1999 and 28 January 2000 had been reproduced in the book exhibit E.

97 Mrs Ostrowskyj was cross-examined about Mrs Nakazna. Mrs Nakazna had been the treasurer of the UWA in Newcastle. The UWA in Newcastle had applied to the New South Wales Government for a grant of $1,000 to provide Ukrainian national costumes. Mrs Nakazna had been told, incorrectly, by another member of the UWA in Newcastle that Mrs Ostrowskyj had received the grant from the Government. Mrs Ostrowskyj told Mrs Nakazna that the grant had not yet been received but Mrs Nakazna did not believe Mrs Ostrowskyj and she accused Mrs Ostrowskyj of stealing the money.

98 Mrs Ostrowskyj called a general meeting of the UWA Newcastle and Hunter region. At the meeting it was resolved that Mrs Nakazna be removed from the position of treasurer, although she continued for a time to be an ordinary member.

99 An auditing committee from the State organisation of the UWA checked the records of the Newcastle Branch and found that Mrs Nakazna “didn’t keep the book properly”.

100 On an occasion when a group from the UWA in Newcastle were travelling to Sydney by bus for a function, the fares for the bus were collected and paid to the driver but Mrs Nakazna subsequently drew an amount for the fares from the funds of the UWA.

101 Three letters had been written to Mrs Nakazna asking her for an explanation of her conduct but no reply had been received and, according to Mrs Ostrowskyj, Mrs Nakazna thereby “expelled herself from the organisation”.

102 The grant of $1,000 was ultimately received from the Government and passed to a Ukrainian dancing group, which was under the auspices of the UWA.

103 Mrs Nakazna, having ceased to be a member of the UWA, started a small group of her own called “Women of Good Heart”.

104 Mrs Ostrowskyj gave evidence that she had known of Mr Gojan in Adelaide but “I wasn’t acquainted with him. No one had introduced us”. She had never accused Mr Gojan of causing disruption and trouble for her son-in-law.

105 Mrs Ostrowskyj had attended the Annual General Meeting of the USFA on 30 January 1999. She could not remember whether Dr Motyka had said anything at the meeting about missing funds.

106 Mrs Ostrowskyj was cross-examined about Rosa Stenanyszyn, who was the addressee of the letter of 28 January 2000. Mrs Ostrowskyj said that she had had a meeting with Mrs Rosa Stenanyszyn in church but said that the meeting had occurred quite recently.

107 In re-examination Mrs Ostrowskyj said that Mrs Nakazna had ceased to be a member of the UWA in Newcastle in 1989 or 1990, although she was very vague about dates.

Olga Motyka

108 Olga Motyka is the daughter of Mrs Ostrowskyj and the wife of Dr Motyka. She is the principal doctor at the Hunter Women’s Health Centre, a consultant at a Newcastle hospital and she teaches medicine at post-graduate level.

109 Mrs Motyka had seen each of the four letters sued on within a week of the date stated on the letter. All the letters had been received by her by mail.

110 Mrs Motyka gave evidence about the reaction of the plaintiffs to the letters of 15 and 17 November. She said:-

“My mother was just horrified, shocked, disbelieving that a letter, sorry, but with this, with this filth about our whole family was, well, which was sent to us and we then rang my husband who was at work. He left work because he could sense how distraught we were and came home and I can recall him just standing there horrified” .

111 Mrs Motyka was then asked about the reaction of the plaintiffs to the later letters and she replied:-

112 Both plaintiffs had tried very hard to contain their emotions and to behave in a dignified manner within the Ukrainian community. When asked what effect the letters had had on her husband Mrs Motyka replied:-

“Horrific, just horrific. They, I would have to say that they have just emotionally killed him. He saw a particularly close symbiosis with his work as a lecturer, senior lecturer in commerce at the University of Newcastle and the Ukrainian Study Foundation, particular area of speciality is that of International Accounting with a particularly vast body of knowledge in Eastern European Accounting, so he married the two together very well and what we have noticed, that there are two, many projects of international significance that he was working on that have just, well, have just, just been collapsed as a result of these letters” .

113 Mrs Motyka gave further evidence:-

“My husband tried very hard to continue with them (the projects) but a distress had occurred in the community and he lost support and he became very depressed and morose and he was unable to continue…”

114 Mrs Motyka’s mother had reacted particularly to two words in the first letter. One word was the Ukrainian word “vidma” translated into English as “witch”, which in Ukrainian meant “a very nasty person, a vindictive person, a horrible person”. The other word Mrs Ostrowskyj had particularly reacted to was the word translated into English as “enticed”. Her mother’s reaction to these two words had been “absolute revulsion”. Her mother was pacing around the room, shaking her head, saying “I can’t believe this”. She kept repeating the two words and their meaning.

115 Mrs Motyka said that her husband had not in 1999 discussed with her the letters of 25 February 1999 and 12 April 1999, which were later reproduced in the book. She herself had not been a member of the Board of the USFA. However, after the book had been published and received by Dr Motyka, he had discussed with Mrs Motyka the matters in the letters. Dr Motyka had then been very upset and shocked.

116 Mrs Motyka had seen other copies of the book. Mrs Basalej in Newcastle had received a copy of the book and had shown it to Dr and Mrs Motyka. Mrs Ciurak, a friend of Mrs Ostrowskyj who lived in Adelaide, had received a copy of the book and had sent it to the plaintiffs. Mrs Danko and Mrs Wijtowiycz, a member of the USFA living in Sydney, had received copies of the book and had sent them to the plaintiffs. Dr Motyka and Mrs Motyka had themselves received a copy of the book, posted anonymously to them.

117 Mrs Motyka gave some evidence about Mrs Nakazna. Mrs Nakazna had been the treasurer of the UWA in Newcastle. On one occasion money had been collected from members who were intending to travel to Sydney by bus and the money had been paid to the bus company. Mrs Nakazna had then sought to withdraw the same amount of money from the funds of the UWA.

118 An auditing committee based in Sydney had examined the financial records kept by the Newcastle Branch of the UWA and had ascertained that monies were missing. Mrs Nakazna was not accused of stealing but was asked to come to a committee meeting and explain discrepancies in the books. Mrs Motyka continued:-

119 Mrs Motyka said that there had been other letters, before and after, the four letters referred to in the statement of claim.

120 Mrs Motyka accepted that, even in Ukrainian, the word which had been translated as “witch” has a number of meanings.

121 In further evidence Mrs Motyka said that the word “vidma” in the Ukrainian language conjured up for Mrs Motyka “a gnarled, horrible, nasty, vindictive trouble maker a (morally) black woman” Mrs Motyka accepted that the word could conjure up a different meaning for another Ukrainian. Mrs Motyka could speak only from her experience of reading Ukrainian myths and fairy tales as a child. She agreed that the word could mean “old woman” or a “nasty old woman”.

Sonia Mycak

122 Sonia Mycak is a research fellow at the University of Sydney. She was a director of the USFA from about 1996 to February 2002.

123 Ms Mycak had received and read copies of each of the four letters referred to in the statement of claim, about a week after the date of each letter. Each covering letter had been addressed to Ms Mycak at her mother’s address, which Ms Mycak was using as her postal address.

124 Ms Mycak gave evidence that, after the letters started being received, other members of the Board of the USFA began to mistrust Dr Motyka and be suspicious of him. They demanded greater evidence from Dr Motyka than they had before. Ms Mycak attributed this change in attitude on the part of other members of the Board to the letters which were circulating in the Ukrainian community.

125 Late in the year 2000 Ms Mycak’s uncle had told her that he had received a copy of the book exhibit B and he had shown the book to Ms Mycak.

126 In 2001 Ms Mycak had seen a copy of the book on a table at the Ukrainian National Hall in Lidcombe, Sydney at a community cultural event attended by seventy to eighty Ukrainians.

127 Ms Mycak said that the cover of the book bore the words “Ukrainian Studies Foundation in Australia” and the USFA logo. She had not herself read much of the book.

128 Both Dr Motyka and Ms Mycak had not been re-elected to the Board of the USFA in the election which took place in February 2002.

129 The USFA is involved in promoting Ukrainian Studies as an academic discipline. There are other organisations that deal with aspects of Ukrainian culture such as dancing and singing.

Lydia Beasley

130 Lydia Beasley was a director of the USFA from about 1996 to February 2002.

131 Mrs Beasley recognised all of the letters, with the possible exception of the letter of 28 August 2000, as being letters which had been sent to her in the post, in envelopes which were marked with the name and address of Mr Gojan.

132 She had seen the book exhibit B a number of times. Quite a number of persons had had the book. She had not read the book but had thumbed through it. She had seen that much of the book was a compilation of letters she had already received.

Cross-examination

Lydia Beasley agreed that she was a good friend of the plaintiffs. She could not recall whether she had been present at the meeting of the Board of the USFA on 17 April 1999. She had been present at the Annual General Meeting on 30 January 1999. However, her recollection of what had been said at the Annual General Meeting was very vague.

133 In further evidence Mrs Beasley said that Dr Motyka had been visibly very, very upset by the letters. In further cross-examination she agreed that the Board and Dr Motyka had received many letters from Mr and Mrs Gojan up to the time of Mr Gojan’s expulsion from the USFA.

Olga Bazalej

134 Olga Bazalej is not and never has been a member of the USFA. She is a member of the UWA.

135 Mrs Bazalej had received the letter of 21 November 1999 in December 1999 and had received the letter of 28 January 2000 in early 2000. She had read the book in about October 2000.

136 Mrs Bazalej had seen a copy of the book near the Ukrainian Catholic Church in Newcastle.

137 Mrs Bazalej gave evidence:-

“As this book, and all these matters started to come on the scene, I noticed that they (the plaintiffs) were very withdrawn; very sort of, they started to change”.

138 In cross-examination Mrs Bazalej said that Mrs Nakazna had been the treasurer of the Ukrainian Women’s Association in Newcastle. At a meeting Mrs Nakazna had presented a receipt to say that she had paid for a bus trip. There were other amounts of money which were not accounted for by Mrs Nakazna. Mrs Nakazna had not kept any books, dispute being treasurer for a number of years.

139 Mrs Bazalej could not recall when the incident with the bus had happened but it had probably been eight to ten years before. She then gave evidence that she herself had been treasurer for at least ten years and that there had been another treasurer of the UWA in Newcastle between Mrs Nakazna and herself.

Defences Generally

140 As previously stated, the defendants raised defences of qualified privilege at common law, statutory qualified privilege, unlikelihood of harm and mental impairment. None of these defences was formally abandoned but the only defences which were pressed at the hearing were common law qualified privilege and, to some extent, unlikelihood of harm.

141 No submission was made in support of mental impairment being a defence to an action in defamation and no submission was made that I should find that either defendant suffered from mental impairment at the time of publishing any of the defamatory matter. I reject the defence of mental impairment with respect to all of the publications.

142 No submission was made in support of the defence of statutory qualified privilege. It is an element of the defence of statutory qualified privilege that the conduct of the publisher in publishing the defamatory matter was reasonable in the circumstances (s 22(1)(c) of the Act). Neither defendant gave evidence at the hearing and no attempt was made to discharge the onus of proving that the conduct of either defendant in publishing any of the defamatory matter had been reasonable. I reject the defence of statutory qualified privilege with respect to all of the publications.

143 Some submissions were made about s 13 of the Act, which provides that it is a defence that the circumstances of the publication of the matter complained of were such that the person defamed was not likely to suffer harm, and I was referred to Lang v Willis (1934) 52 CLR 637, a decision on a fairly similarly worded provision of the Defamation Act 1912, and Ainsworth v Burden [2006] NSWCA 199. It was pointed out by counsel for the defendants that it was held in Ainsworthv Burden that the section directs attention to the circumstances of the publication, that is whether the circumstances of the publication were such that the person defamed was not likely to suffer harm, and not to what actually happened, that is whether the person defamed in fact suffered harm.

144 In my opinion, the circumstances of the publication of each of the publications complained of were such that it cannot be said that the plaintiffs were not likely to suffer harm. The defamatory imputations found by the jury amounted to serious allegations against the plaintiffs; the allegations were of a kind which would be likely to cause injury to reputation and hurt to the plaintiffs’ feelings and each of the publications was published to a number, even if only a limited number, of persons. I reject the defence of unlikelihood of harm with respect to all the publications.

Common Law Qualified Privilege

145 The principal defence relied on by counsel for the defendants, with respect to all of the publications, was common law qualified privilege. The defence of common law qualified privilege is preserved by s 11 of the Act.

146 It was not in dispute at the hearing that I should consider the defence of common law qualified privilege in relation to each of the publications separately, except that the two letters in the book exhibit B should be considered together.

147 It was also not in dispute that Mrs Gojan as Mr Gojan’s wife would have been entitled to any qualified privilege to which Mr Gojan would have been entitled.

148 The further particulars of the defence of common law qualified privilege which were ultimately furnished were:-

“The recipients of the letters and the readers of the book had a common interest with the Defendants in the matters raised therein which said matters related to the affairs and conduct of the Ukrainian Studies Foundation of Australia and the Ukrainian Womens Association, the conduct and affairs of members of the Ukrainian communities, the conduct and affairs of the Plaintiffs in respect of the Ukrainian Studies Foundation of Australia and the Ukrainian Womens Association and Ukrainian communities, the conduct and affairs of the Orthodox and Catholic Religions being the religion of members of the Ukrainian communities or a substantial portion of them, the conduct of the Plaintiffs in respect of their status and position as members of the Ukrainian communities and other matters relating thereto including reply to demand or show cause, reply to attack and redress of grievances and response by the first Defendant (Mrs Goyan) to attacks on her husband (the third Defendant). The Defendants had a moral or social obligation, duty or right to inform the recipients of the letters and readers of the book and likewise the recipients of the letters and readers of the book had a duty, interest or right to be so informed”.

Principles

149 Many discussions of common law qualified privilege begin with a passage in the speech of Lord Atkinson in Adam v Ward (1917) AC 309 at 334. His Lordship said:-

“It was not disputed, in this case on either side, that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential”.

150 Another judicial pronouncement about common law qualified privilege which is frequently referred to is that of Parke B in Toogood v Spyring (1834) 1 CrM & R 181 at 193; 149 E.R. 1044 at 1049-50. Parke B said:-

"In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits."

151 The latest High Court decision on common law qualified privilege to which I was referred was the decision of the Court in Bashford v Information Australia (Newsletters) Pty Limited (2004) 218 CLR 366. In Bashford Gleeson CJ, Hayne and Heydon JJ, after quoting the statement by Parke B in Toogood v Spyring which I have quoted, said at 373 (10) (omitting citation of authority):-

152 I was also referred to paragraph 53 in the judgment of McHugh J in Bashford, where his Honour said:-

“At common law, a defamatory statement receives qualified protection when it is made in discharge of a duty or the furtherance or protection of an interest of the maker of the statement or some person with whom the publisher has a direct business, professional or social connection, and the recipient of the statement has a corresponding duty to receive or interest in receiving it….”

153 In Howe & McColough v Lees (1910) 11 CLR 361 Higgins J said at 398 of the word “interest” in this context:-

“”[T]he word ‘interest’, as used in the cases, is not used in any technical sense. It is used in the broadest popular sense, as when we say that a man is ‘interested’ in knowing a fact – not interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news”.

154 This statement by Higgins J was quoted with approval by Gummow J in Bashford (at 421) (148)) and in Gatley on Libel and Slander (10th ed) (2004) at 392 par 14. 13.

155 A number of statements of principle about common law qualified privilege are collected in the judgment of McColl JA in Moit v Bristow [2005] NSWCA 322 at pars 73-79 in her Honour’s judgment. Her Honour said (omitting citation of authority):-

“73 The defence of qualified privilege protects the publication of a statement notwithstanding that it is false in fact, and injures the reputation of another, provided the statement is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. If the statement is fairly warranted by any reasonable occasion or exigency, and the statement is honestly made, it is protected for the common convenience and welfare of society

74 The expression ‘welfare of society’ used in Toogood v Spyring means that the interests of society in general require that a communication made under the particular circumstances to the particular person should be protected…

75 The duty or interest must exist in fact. A mere belief in its existence is not sufficient…

76 Furthermore, interest for the purpose of the law of qualified privilege means ‘more than an interest in the information ‘as a matter of gossip or curiosity’…[it] must be a social, moral or economic interest that is sufficiently tangible for the public interest to require its protection…’

Stephens v Western Australian Newspapers Limited

‘When it is said that a publication is privileged because it is made in the public interest, ‘interest’ is not to be equated with curiosity. It is used in a non-technical sense to mean that the publication is made for the welfare of society. … a publication defamatory of the plaintiff is not made on an occasion of qualified privilege merely because the person or persons to whom it is made — in that case, the readers of the newspaper — were interested in the subject matter.”

78 In order to determine whether a publication was made on an occasion of qualified privilege, the court examines all the circumstances of the case. These include the nature of the defamatory communication, the status or position of the publisher, the number of recipients and the nature of any interest they had in receiving it, and the time, place and manner of, and reason for, the publication. After considering these matters, the court makes a judgment as to whether the publisher had a duty or interest that justified making the publication and whether the recipients, or some of them, had a duty to receive or interest in receiving it…

Andreyevich v Kosovich

Bashford

Submissions

156 As the defendants did not tender any evidence at the hearing before me, the first closing address was made by counsel for the plaintiffs. The submissions made by counsel for the plaintiffs in his closing address included:-

157 I should accept Dr Motyka’s evidence about what he had said at the Annual General Meeting of the USFA on 30 January 1999 and what had not been said at that meeting by either Dr Motyka or by anybody else, at least in the formal parts of the meeting. On the basis of Dr Motyka’s evidence, I should find that there had not been any attack on Mr Gojan by Dr Motyka or by anybody else at the Annual General Meeting and, hence, there had been no reciprocal interest between Mr Gojan and persons who were merely ordinary members of the USFA or not even ordinary members of the USFA, to communicate and receive information about the plaintiffs, in reply to an attack made on Mr Gojan at the Annual General Meeting of members of the USFA.

158 It was accepted by counsel for the plaintiffs that Dr Motyka had made allegations of misconduct against Mr Gojan at meetings of the Board of Directors of the USFA and that these allegations of misconduct by Mr Gojan had been discussed at meetings of the Board. It was submitted that Mr Gojan had been given the opportunity of appearing before the Board and replying to the allegations at the meeting of the Board to be held on 17 April 1999. However, Mr Gojan had not availed himself of this opportunity and had taken the course of replying to the allegations by sending his letter of 12 April 1999.

159 It was submitted by counsel for the plaintiffs that there had not been any reciprocal interest between Mr Gojan (or Mrs Gojan) and the recipients of the letter of 17 November 1999 incorporating the letter of 15 November 1999, in communicating and receiving information about the incidents involving Mrs Nakazna. Although the evidence left it somewhat unclear precisely when these incidents had occurred, they had clearly occurred some years before 1999. At the time of the incidents Mrs Nakazna had been merely a member and an officer of the UWA Newcastle and Hunter Region. Mrs Nakazna was not in 1999 a member of either the UWA or the USFA.

160 In his closing address counsel for the defendants accepted that it was necessary, in respect of each publication, for the defendants to establish reciprocity of duty or interest between the publisher and the recipients of the publication. It was submitted that the recipients of each publication were limited to those persons who, on the evidence, had been proved to have received the publication.

161 Counsel for the defendants referred to the particulars of common law qualified privilege which had been furnished by the defendants. In accordance with these particulars, the occasion for which qualified privilege was claimed for each publication was not limited to replying or responding to an attack made on Mr Gojan. The attacks which had been made on Mr Gojan were only part of the circumstances giving rise to an occasion of qualified privilege for each publication. As formulated in counsel for the defendants’ closing address, it was submitted that there was reciprocity of duty or interest between the defendants and the recipients of each publication, in the communication by persons who were members of the Ukrainian community to persons who were members of the Ukrainian community, in the Ukrainian language (in the case of the four separate letters), of information about two persons (the plaintiffs) who were leading members of the Ukrainian community, about matters in which members of the Ukrainian community had an interest going beyond mere curiosity.

162 In support of this submission, counsel for the defendants referred to par 1 of the statement of claim which contained an allegation that “the plaintiffs… are particularly active in the Ukrainian community within New South Wales and Australia”. Counsel also referred to the curriculum vitae of each plaintiff which had been admitted into evidence and submitted that the curriculum vitae of each plaintiff showed a long and prominent involvement by each plaintiff in Ukrainian affairs and Ukrainian organisations.

163 It was submitted by counsel for the defendants that the letters of 25 February 1999 and 12 April 1999 in the book were clearly letters to the Board of the USFA or to Dr Motyka as Chairman of the Board of the USFA, replying to allegations of misconduct which had been made against Mr Gojan.

164 In an address in reply counsel for the plaintiffs submitted that the evidence showed that the principal positions held by Dr Motyka had been those of being, a director and chairman of the USFA, which, it was submitted, was not a general organisation representing persons of Ukrainian ancestry but a special organisation with the limited objective of promoting Ukrainian Studies at a tertiary level, and that the principal positions held by Mrs Ostrowskyj had been her position in the UWA. It was submitted that much of the publication of the matters complained of had been to persons who were not members of the USFA or were not members of the UWA and that publication to those persons had not been incidental or unavoidable.

165 It was submitted by counsel for the plaintiffs that it had not been shown that the givers and the receivers of the information in the publications had an interest in their subject matter of such a kind that it was desirable, as a matter of public policy, that the publications should be made with impunity.

Decision

166 In accordance with the authorities I have quoted, it is necessary to determine, in relation to each of the five publications (that is the four separate letters and the two letters in the book), whether the matter was published on an occasion of qualified privilege because of a reciprocal duty or interest between the publisher and the recipients. It is necessary to undertake a close scrutiny of the circumstances of the case, of the situation of the parties and the relations of all concerned and of events leading up to and surrounding the publication.

167 In the case of each publication, the recipients included the specific persons who were proved to have received the publication. However. I consider that the evidence permits inferences to be drawn, especially in the absence of any contrary evidence, that there were more recipients of some of the publications, for example the book, than those persons who can be specifically identified.

168 Although it is necessary to make a separate determination in relation to each publication, there are some circumstances common to all of the publications.

169 At the time of all of the publications Dr Motyka had been for a number of years the Chairman of the USFA. Notwithstanding any other positions held by Dr Motyka in Ukrainian organisations, it was his position as chairman of the USFA which was his most prominent position. All Dr Motyka’s dealings with Mr Gojan were in his capacity as chairman of the USFA.

170 The USFA was not a general organisation representing Ukrainians in Australia. As its full name (The Ukrainian Studies Foundation in Australia) suggests, it was an organisation having as its principal objective the promotion of Ukrainian Studies at a tertiary level. It was not concerned with Ukrainian culture generally.

171 Dr Motyka was, of course, not a member of the UWA.

172 At the time of the publications Mrs Ostrowskyj was the head of the UWA, both nationally and in Newcastle. However, although a member of the USFA, she was not a director of, and took no active part in, the affairs of the USFA.

173 Mr Gojan lived in South Australia. He was, until his expulsion, a member of the USFA and he had claimed to be a representative and an office holder of the USFA in South Australia. He had had no dealings with Dr Motyka otherwise than in connection with the affairs of the USFA.

174 Mrs Gojan was Mr Gojan’s wife. As already stated, it was accepted at the hearing that her status as Mr Gojan’s wife entitled her also to any privilege to which Mr Gojan was entitled.

175 Mrs Nakazna had been a member and the treasurer of the UWA Newcastle and Hunter Region. There had been dissension between Mrs Nakazna and other members of the UWA Newcastle and Hunter Region, including Mrs Ostrowskyj. Mrs Nakazna had been removed as treasurer and had ceased to be a member.

176 Although the evidence leaves it unclear precisely when these incidents involving Mrs Nakazna occurred, it is clear that they had occurred several years before the publication of the letters and the book. Mrs Nakazna’s own letter of 15 November 1999 refers to the events as having happened “six years before”. That these incidents had occurred several years before 1999 is confirmed by Mrs Bazalej’s evidence.

177 It is apparent from contemporaneous letters or other documents in the book exhibit B that there had been dissension between Mr Gojan and the Board of the USFA, including Dr Motyka, from about 1998 onwards. There were a number of causes of this dissension, including Mr Gojan’s claim to be a representative and an office holder of the USFA in South Australia, his claim to have authority to operate on an account of the USFA with the Haverla Ukrainian Credit Co-operative and a claim by Mr Gojan that Dr Motyka had misappropriated a sum to be applied in the preparation of a Ukrainian commercial dictionary.

178 I have already referred to Dr Motyka’s evidence about what was said and what was not said, in relation to Mr Gojan, at the Annual General Meeting of members of the USFA on 30 January 1999 and to counsel for the plaintiffs’ submission that I should accept Dr Motyka’s evidence.

179 Counsel for the defendants submitted that it was difficult to reconcile Dr Motyka’s evidence with the terms of Mr Gojan’s letter of 25 February 1999, written soon after the meeting, which clearly suggest that Mr Gojan believed at the time of writing the letter that he had been attacked at the meeting.

180 There is, indeed, some difficulty in reconciling Dr Motyka’s evidence with the terms of the letter of 25 February 1999 from Mr Gojan. However, I have decided that I should accept this part of Dr Motyka’s evidence. He consistently adhered to that evidence during a long cross-examination and I was generally impressed by him as a witness. Mr Gojan, on the other hand, did not give evidence. Mr Gojan’s letter of 25 February 1999 could be explicable on the basis that, although Dr Motyka refrained at the Annual General Meeting from naming Mr Gojan or making any accusation against Mr Gojan, it nevertheless appeared obvious to Mr Gojan, particularly in the light of earlier communications between Mr Gojan and the Board or Dr Motyka, that he was under attack.

181 The alleged misconduct by Mr Gojan itemised in the Board’s letter of 30 March 1999 to Mr Gojan had previously been discussed, and was subsequently discussed, by the Board of the USFA. Mr Gojan was given an opportunity by the Board to reply to the Board about the alleged misconduct.

182 I will now proceed to deal with the publications individually.

183 The persons proved to have received the two letters were the plaintiffs, Mrs Motyka, Ms Mycak (who was a member and a director of the USFA), Mrs Artym, (who was not a member of the USFA), and Mrs Baselej, (who was not a member of the USFA).

184 In my opinion, the letter was not published on an occasion of qualified privilege. There was not a reciprocal duty or interest in Mrs Gojan publishing to the recipients information about events which had occurred, several years previously, in the affairs of the UWA Newcastle and Hunter Region.

185 This letter was written by Mrs Gojan in Adelaide to Mrs Nakazna in Newcastle and was published by Mrs Gojan.

186 The persons proved to have received the letter were the plaintiffs, Mrs Motyka, Ms Mycak, Mrs Danko, Mrs Beasley and Mrs Bazalej.

187 The letter of 21 November 1999 conveys very little factual information and is almost entirely devoted to accusing Dr Motyka of conducting a campaign to create dissension, of egotism, villainy, brutality, evil and sadism and of being a monster and of having forfeited the right to identify himself as a Ukrainian. There is a suggestion that Dr Motyka may have misappropriated the funds of the USFA. Some of the same accusations are made against Mrs Ostrowskyj.

188 The letter was published to at least one person (Mrs Basalej) who was not a member of the USFA and this publication was not incidental or unavoidable and on this ground alone the publication was, to that extent, not privileged.

189 In my opinion, having regard to these matters and matters which I have found were common to the publications, the letter was not published on an occasion of qualified privilege.

190 This was a letter from Mrs Gojan to Mrs Rosa Stenanyszyn, which was published by Mrs Gojan.

191 The persons proved to have received the letter were the plaintiffs, Mrs Motyka, Ms Mycak, Mrs Danko, Mrs Ciurak, Mrs Beasley and Mrs Bazalej.

192 As in the case of the letter of 21 November 1999, the letter conveys very little factual information and is almost entirely devoted to accusing Dr Motyka of being a dishonest, shameful person, of being a devil, of poking his nose into everything, of denigrating everyone, treating everyone as idiots and breaking up organisations, doing the devil’s work, being a pillager-savage, terrorising persons, telling lies, perpetrating evil and injustice and persecuting others. Some of the same accusations are made against Mrs Ostrowskyj.

193 The letter was published to some persons not being members of the USFA and the publication to those persons was not incidental or unavoidable and, consequently, the publication to those persons was not privileged.

194 In my opinion, having regard to these matters and matters which I found were common to all the publications, the letter was not published on an occasion of qualified privilege.

195 Dr Motyka sued on these letters as being parts of the book exhibit B, and not on the original letters.

196 In my opinion, each of the two letters, when published as a letter, was published on an occasion of qualified privilege. The letter of 25 February 1999 was a letter written by Mr Gojan to the Board of the USFA, replying to allegations which Mr Gojan understood had been made against him, even if the allegations had not been expressed by Dr Motyka at the Annual General Meeting of 30 January 1999. The letter of 12 April 1999 was a letter written by Mr Gojan to Dr Motyka as Chairman of the Board of the USFA, replying, in a factual manner, to charges of misconduct as a member of the USFA which had been expressly levelled against Mr Gojan by the Board of the USFA.

197 However, although I consider that each of the two letters, when published as a letter, was published on an occasion of qualified privilege, I consider that the two letters, when published as parts of the book, were not published on an occasion of qualified privilege.

198 The book was published some time in the year 2000, more than a year after the events referred to in the letters.

199 I find that the book was published to a number of persons, some of whom were not members of the USFA. Evidence was given at the hearing, which I accept, that the book, apart from being received by the plaintiffs and Mrs Motyka, had been received by Ms Mycak, Ms Mycak’s uncle, Mrs Danko, Father Kolomyjec (who was not a member of the USFA) Mrs Beasley and Mrs Bazalej (who was not a member of the USFA). Dr Motyka had received the book from someone in the Ukrainian community. Ms Mycak had seen a copy of the book on a table at a cultural function attended by seventy to eighty members of the Ukrainian community. Mrs Bazalej had seen the book near a Ukrainian Catholic Church.

200 I also have regard to the circumstances which I have found to be common to the publications.

201 This letter was addressed by Mr and Mrs Gojan to all Ukrainian communities, to all Donors to USFA and to the entire Ukrainian Society.

202 The persons proved to have received the letter were the plaintiffs, Mrs Motyka, Ms Mycak and Mrs Beasley.

203 As in the case of the letters of 21 November 1999 and 28 January 2000, the letter conveys very little factual information. In the letter Dr Motyka is accused of frightening persons by bringing legal proceedings, of being mad, a liar, a swindler and a cheat and of throwing out hardworking members. It is stated that Dr Motyka should resign as being an unfit person to head the USFA and that Dr Motyka is planning to use funds of the USFA to finance the court proceedings he has brought against the defendants. The letter refers to the court proceedings the plaintiffs have brought against the defendants. Mrs Ostrowskyj is accused of seeking to terrorise the Ukrainian community in Newcastle.

204 The letter was published to some persons who are not members of the USFA and publication to those persons was not incidental or unavoidable and, consequently, the publication to those persons was not privileged.

205 In my opinion, having regard to these matters and matters which I have found were common to all the publications, the letter was not published on an occasion of qualified privilege.

206 I have found that none of the publications were published on an occasion of common law qualified privilege. This finding is sufficient to defeat the defence of common law qualified privilege.

207 Counsel for the plaintiffs made alternative submissions that, even if I found that a publication had been published on an occasion of qualified privilege, nevertheless the qualified privilege had been lost, because the publication contained matter which was not relevant to the privileged occasion, or because the defendants had abused the occasion of qualified privilege or, lastly, because the defendants had been actuated by malice in making the publication.

208 Counsel for the plaintiffs cited Skalkos v Assaf [2002] NSWCA 14 at (28) and (29), where Mason P said:-

“extraneous”

Adam v Ward

“beyond what was germane and reasonably appropriate to the occasion”

ibid

Bellino v Australian Broadcasting Corporation

Bellino

209 In my opinion, the terms of each of the four separate letters were such that, even if the letter had been published on an occasion of qualified privilege and even allowing for some licence in a person attacked in replying to an attack, parts of what was published in each letter went beyond what was relevant or what was germane and reasonably appropriate to the occasion. On the other hand, I consider that, if the publication of the two letters in the book had been a publication on an occasion of qualified privilege, the qualified privilege would not have been lost in respect of any part of the letters on the grounds that what was published was irrelevant to the occasion or an abuse of the privilege.

210 In their reply the plaintiffs asserted that the publication of each of the matters complained of had been actuated by malice. The particulars of malice furnished were:-

“1. The excessive language of each of the matters complained of:

Annexure B (2nd matter complained of):

1.1 "Motyka has crawled like a rat into the millet and is threatening everyone all around"

1.2 "In Newcastle she has reached very and very low with her slander and cunning"

1.3 "She understood that amongst the Orthodox there was nothing she could do, so she dragged enticed herself to the catholics, probably thinking, that it is easier to fool them."

1.4 "This is the methods of the Motyka liars and mother-in-law/witch"

1.5 "But these vile people do not have any peace themselves, because to feud in such a way with people, probably affects the health of them, the whole family"

1.6 "...they attached themselves to money, like fleas to a pelt."

1.7 "And in the same way does she run the Ukrainian Womens Association here - everything to her benefit and someone says anything, her daughter and son-in-law appear and begin to eat people."

1.8 "We distanced ourselves from the `Witch' and started to work on our own for Ukraine".

1.9 "In this letter you will read how Motyka with his mother-in-law Ostrowska...persecuted and with their lies, caused stress and ill-health in the Ukrainian community..."

1.10 "The named [persons] have now good experience in this devil's method."

1.11 "This letter is one more important document, because it proves the need to struggle against criminality. Our obligation is to make known to all the Ukrainian community these horrific matters and who caused them."

1.12 "...it is regrettable that we have such pillagers amongst us..."

1.13 "...there are people who have fallen ill because of that megalomaniac Motyka"

1.14 "And today this unbelievable campaign of Motyka-Ostrowskyj, who do not have any moral right, given the way they behave, to identify themselves as Ukrainians. They persecute us worse than our enemies..."

1.15 "Therefore we have to be careful and reveal such villains and categorically get rid of them from within our society without any mercy...."

1.16 "our obligation is - to fight against evil and untruth."

1.17 "...for Motyka kind, wise words are of no significance, he does not pay attention to tears. Human misery for him is joy and pleasure, people like him they call sadists."

1.18 "It is regrettable that Motyka does not think about his children..."

1.19 "We will continue our fight against he anarchy of these monsters”.

1.20 "....God sees all and they will receive theirs"

1.21 "...so many people have suffered and continue to suffer because of one such dishonest, shameless person who has brought honest people so much unpleasantness."

1.22 "....they poke their noses into everything, denigrate everyone, treat everyone as idiots."

1.23 "This truly is the work of the enemy..."

1.24 "...Motyka - that liar and swindler..."

1.25 "...this is the devil's work..."

1.26 "...and in this way reveal more and more the terrible matter, created by this pillager-savage, supposedly an educated person. Motyka has no respect for the elderly, who have suffered so much in life, nor to himself, not to Ukraine, to so disgracefully terrorise many honest people here in Australia."

1.27 "It is interesting, where did Motyka get such good training to lie and persecute us..."

1.28 "To all Ukrainian Communities, to all Donors to USFA, to the Entire Ukrainian Society

1.29 "...Terrorism from Mr W Motyka"

1.30 "Why create terror and disquiet amongst our people?"

1.31 "...Mr Motyka is a clear liar and swindler/cheat."

1.32 "Everyone should ask Motyka, with whose money will he be undertaking court action against us."

1.33 "We know, the Motyka is planning to use the USFA funds, which donees gave for studies for the younger generation..."

1.34 "Show Mr. Motyka's allegations to be errant nonsense"

1.35 "Lie No. 1" (and others)

1.36 "I am not about to have this besmirched by the likes of Mr Motyka, who seems to be a compulsive liar." (Page 106)

1.37 "..contrary to untruth purveyed publicly by Mr Motyka..."

1.38 "...Mr Motyka's deliberate and ongoing intimidation and outright dishonesty" (Page 118)

1.39 "We have no confidence in a chairman who governs by his own set of rules (and is dishonest)..."

1.40 "...you are mistaken if you believe that donors will ultimately give way to the illusion that you are carrying out the duties of you office ethically and with proprietary, when in fact you are governed by your own set of rules."

1.41 "Very odious tactics Mr. Motyka"

1.42 "...it is all part of your intimidating approach which we believe is designed to prevent a proper investigation into your dealings."

1.43 "...you topped this accusation with more of your lies..."

1.44 "As you may well find out Fraud is a very serious crime in Australia ... This illustrates the lengths that you are prepared to go to to discredit me, deflecting attention of your self perhaps?

2. The nature of the imputations made against the Plaintiffs in each of the matters complained of. The defendant will rely on the terms of each imputation found by the jury to have been conveyed.

3.1 The statement that "...for Motyka kind, wise words are of no significance, he does not pay attention to tears. Human misery for him is joy and pleasure, people like him they call sadists." (Annexure D) -

3.2 The reference to the first plaintiff as "...a compulsive liar." (Book, page 105)

3.3 The statement "...this pillager-savage, supposedly an educated person. Motyka has no respect for the elderly, who have suffered so much in life, nor to himself, not to Ukraine, to so disgracefully terrorise many honest people here in Australia." (Annexure H; reprinted at page 157 of the Book in Ukrainian)

3.4 The description of the second plaintiff Mrs. Ostrowskyj as a witch (Annexure A; reprinted in Ukrainian at pages 145-146 of the Book).

3.5 The description of the first plaintiff as a terrorist (Annexure L).

4. The fact that the Defendants refused to admit publication of the matters complained of, including before the jury empanelled in these proceedings.

Additional Particular of Malice against the third defendant

211 Counsel for the defendants disputed that particulars 2 and 4 were capable of being proper particulars of malice and I accept this submission. Counsel for the defendants, while acknowledging that malice is capable of being inferred from the language used in the matter complained of, submitted that a tribunal of fact is required to be cautious in inferring malice from the language used in a publication made on a privileged occasion. Counsel referred inter alia to Horrocks v Lowe (1975) AC 135 especially per Lord Diplock at 149-151 and Calwell v Ipec Australia Limited (1975) 135 CLR 321 at 332 per Mason J. As to the third particular of malice, counsel for the defendants submitted that there is a presumption in favour of a defendant that matter published on a privileged occasion was believed by the defendant to be true, that there is an onus on the plaintiff to rebut that presumption and that that presumption is very difficult to rebut.

212 Counsel for the defendants objected to any use being made, in determining the issue of malice, of evidence by Dr Motyka and Mrs Motyka that the words in Ukrainian which had been translated into English as “witch” and “enticed” had more derogatory implications than the English words have.

213 Counsel for the plaintiffs in his address in reply submitted that counsel for the defendants in his address had, incorrectly, tended to identify malice with an absence of belief by a defendant in the truth of what had been published. Counsel referred to Robertson v Bass (2002) 212 CLR 1 especially at 30 (75), where Gaudron, McHugh and Gummow JJ in their joint judgment, after distinguishing “express malice” which destroys qualified privilege from implied malice which arises at common law on proof of a false and defamatory statement, said:-

“Proof of express malice destroys qualified privilege. Accordingly, for the purpose of that privilege, express malice (malice) is any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame a plaintiff”.

214 At 32 (78) their Honours said that knowledge by the defendant of the falsity of the matter published or lack of honest belief in its truth is not “a separate head of, or equivalent to, malice. In the law of qualified privilege the law has always regarded malice as the publishing of defamatory matter with an improper motive”.

215 At 32 (79) their Honours said:-

“It is the motive or purpose for which the occasion is used that is ultimately decisive, not the defendant’s belief in the truth of the matter”.

216 I accept that I should apply these parts of the joint judgment in Robertson v Bass.

217 Even after making full allowance for the need for caution in inferring malice from the language of a defamatory publication, as enjoined by such authorities as Horrocks v Lowe and Caldwell v Ipec, I consider that the language used in each of the four letters, as particularised in the plaintiffs’ particulars of malice, was so excessive and so disproportionate that it should be inferred that Mrs Gojan was actuated, not by a dominant proper purpose of conveying matter which she had a duty or interest to convey and the recipients had a duty or interest in receiving, but by a dominant improper purpose of injuring the plaintiffs and/or venting her personal spite against the plaintiffs. Hence, I would find that, if the letters were published on occasions of qualified privilege, the qualified privilege was destroyed by Mrs Gojan’s malice.

218 I have reached this conclusion, without having regard to the evidence which was given about the connotations in Ukrainian of the words translated into English as “witch” and “enticed”. If I had regard to this evidence, I would regard it as fortifying my conclusion.

219 On the other hand, I would not infer from the language used in the letters of 25 February 1999 and 12 April 1999 or on any other basis including the fact that the letters had been re-published in a book, that the publication of the letters in the book was actuated by malice. The language in these letters which was particularised by the plaintiffs in their particulars of malice was, for the most part, comparatively temperate and amounts to vigorous assertions by Mr Gojan that what he says happened is true and that his opponents are telling lies.

Damages

220 The jury having found that the defendants published matter which conveyed defamatory imputations about the plaintiffs and I having found that the defendants have no defence, I have the function of assessing damages.

221 Under s 46 of the Act damages are limited to damages for harm suffered by the person defamed, are not to include exemplary damages and are not to be affected by any malice or other state of mind of the publisher, except so far as that malice or other state of mind affects the harm suffered by the person defamed.

222 Under s 46A of the Act the Court is to ensure that there is an appropriate and rational relationship between the harm suffered by the person defamed and the amount of damages awarded and in determining the amount of damages for non-economic loss the Court is to take into account the general range of damages for non-economic loss in personal injury awards in this State.

223 In Carson v John Fairfax & Sons Limited (1993) 178 CLR 44 Mason CJ, Deane, Dawson and Gaudron JJ said at 60-61:-

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

224 In the present case it was common ground that a single amount of damages should be awarded for each plaintiff against both defendants, without my making any attempt to differentiate between the defendants or between publications or between imputations conveyed by the same publication.

225 The damages which may be awarded are limited to damages for harm suffered by each plaintiff, by reason of the imputations found by the jury to have been conveyed and to have been defamatory of that plaintiff. This consideration makes the assessment of damages more difficult in the present case, because some of the harm suffered by each plaintiff is clearly attributable to the publication of matter other than the imputations found by the jury.

226 In the present case there is no evidence of either plaintiff suffering any economic loss.

227 As regards damage to reputation, it was submitted by counsel for the defendants that only a very limited publication of each of the matters complained of had been proved, that there is no evidence of the book ever having been available for sale in a book shop, that no witness had given evidence that because of any of the imputations he or she had thought any the less of either plaintiff and the only persons who had given evidence were friends or relatives of the plaintiffs, who did not believe that the imputations were true and for whom the reputations of the plaintiffs were not lowered by the imputations.

228 I accept these submissions made by counsel for the defendants, except that I would infer from parts of the evidence that the book had a wider circulation than simply to the persons expressly identified in the evidence.

229 As regards damage to feelings, I have already summarised the evidence of the plaintiffs and I accept that both plaintiffs were deeply distressed by the imputations. Dr Motyka’s distress was increased by his awareness of his mother-in-law’s distress. Dr Motyka’s distress by reason of the imputations in the book was increased by the appearance of the cover of the book, which carried the name and logo of the USFA. I take into account in favour of the defendants that the hurt and distress experienced by each plaintiff was partly caused otherwise than by the imputations found by the jury.

230 I take into account the need for the amount of damages assessed to signal the vindication of the reputation of the plaintiffs. Although it is true that the plaintiffs’ reputations had not been lowered in the eyes of the persons who gave evidence, I infer from some evidence given by Dr Motyka and Ms Mycak that Dr Motyka suffered some loss of reputation in the eyes of some members of the Ukrainian community.

231 Counsel for the plaintiffs referred in his written submissions to awards of damages in some other cases but I have not found any of those other cases of much assistance.

232 I consider that the harm suffered by Dr Motyka was substantially greater than the harm suffered by Mrs Ostrowskyj and consequently the damages awarded to Dr Motyka will be higher.

233 It has often been said that an award of damages in defamation cases is “at large” and that the determination of the amount of damages is a matter of impression and not addition. See Australian Defamation Law & Practice p 13053 par 20015 and the cases there cited.

234 I have decided that I should award Dr Motyka damages of $120,000 against both defendants and Mrs Ostrowskyj damages of $60,000 against both defendants.

235 I will not at this stage attempt to calculate interest on the amounts of the damages and I will not formally enter any verdict.

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Citations

Motyka v Gojan [2007] NSWSC 31

Most Recent Citation

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Cases Cited

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Statutory Material Cited

1

Ainsworth v Burden [2006] NSWCA 199

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CITATION:	Motyka v Gojan [2007] NSWSC 31
HEARING DATE(S):	27,28,30/11/06,4,5,6,7,8/12/06
JUDGMENT DATE :	7 February 2007
JUDGMENT OF:	James J at 1
DECISION:	Damages should be awarded to both plaintiffs
CATCHWORDS:	DEFAMATION- qualified privilege at common law - malice - damages
LEGISLATION CITED:	Defamation Act 1974
CASES CITED:	Adam v Ward (1917) AC 309 Ainsworth v Burden [2006] NSWCA 199 Bashford v Information Australia (Newsletters) Pty Limited (2004) 218 CLR 366 Carson v John Fairfax & Sons Limited (1993) 178 CLR 44 Howe & McColough v Lees (1910) 11 CLR 361 Lang v Willis (1934) 52 CLR 637 Moit v Bristow [2005] NSWCA 322 Robertson v Bass (2002) 212 CLR 1 Skalkos v Assaf [2002] NSWCA 14 Toogood v Spyring (1834) 1 CrM & R 181 at 193; 149 E.R. 1044 at 1049-50
PARTIES:	Wolodymyr Motyka & Anor v Maria Gojan & Anor
FILE NUMBER(S):	SC 20154/2000
COUNSEL:	J O Hmelnitsky - Plaintiffs CA Evatt/Ms L Evans - Defendants
SOLICITORS:	Bale Boshev & Associates Horowitz & Bilinsky - Defendants