Nikolopoulos and 10 Ors v Greek Herald Pty Limited and AnorSkalkos v Nikolopoulos and 10 Ors

[2000] NSWSC 617

CITATION:

Nikolopoulos & 10 Ors v Greek Herald Pty Limited & AnorSkalkos v Nikolopoulos & 10 Ors [2000] NSWSC 617

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 20071 of 1999

HEARING DATE(S):

22 October 1999

JUDGMENT DATE:

5 July 2000

PARTIES :

GEORGE NIKOLOPOULOS
(First Plaintiff)

& 10 ORS

v

GREEK HERALD PTY LIMITED
(First Defendant)

& ANOR

THEODORE SKALKOS
(Cross-Claimant)

v

GEORGE NIKOLOPOULOS
(First Cross-Defendant)

& 10 ORS

JUDGMENT OF:

Levine J

COUNSEL :	M Rollinson (Plaintiffs/Cross-Defendants) T Molomby (Defendants/Cross-Claimant)
SOLICITORS:	Brock Partners (Plaintiffs) T Lazaropoulos (Defendants/Cross-Claimant)
CATCHWORDS:	Particulars of publication and identification - adequacy - imputations - capacity
DECISION:	See paragraph 36

DLJ: 3
CAV
[2000] NSWSC 617

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

No. 20071 of 1999

JUSTICE DAVID LEVINE

WEDNESDAY 5 JULY 2000

GEORGE NIKOLOPOULOS
(First Plaintiff)

JOHN GEORGOPOULOS
(Second Plaintiff)

ALEX PETTAS
(Third Plaintiff)

TOM HARALAMBIDIS
(Fourth Plaintiff)

PETER MITROTHANASIS
(Fifth Plaintiff)

BILL KATEGIANNIS
(Sixth Plaintiff)

GEORGE TSOKOS
(Seventh Plaintiff)

JIM PANAGAKIS
(Eighth Plaintiff)

CHRIS GIORGAKOPOULOS
(Ninth Plaintiff)

JOHN GOUNAROPOULOS
(Tenth Plaintiff)

BILL VENETOULIS
(Eleventh Plaintiff)

v

GREEK HERALD PTY LIMITED
(First Defendant)

THEODORE SKALKOS
(Second Defendant)

THEODORE SKALKOS
(Cross-Claimant)

v

GEORGE NIKOLOPOULOS
(First Cross-Defendant)

JOHN GEORGOPOULOS
(Second Cross-Defendant)

ALEX PETTAS
(Third Cross-Defendant)

TOM HARALAMBIDIS
(Fourth Cross-Defendant)

PETER MITROTHANASIS
(Fifth Cross-Defendant)

BILL KATEGIANNIS
(Sixth Cross-Defendant)

GEORGE TSOKOS
(Seventh Cross-Defendant)

JIM PANAGAKIS
(Eighth Cross-Defendant)

CHRIS GIORGAKOPOULOS
(Ninth Cross-Defendant)

JOHN GOUNAROPOULOS
(Tenth Cross-Defendant)

BILL VENETOULIS
(Eleventh Cross-Defendant)

JUDGMENT (Particulars of publication and identification - adequacy - imputations -- capacity)

1    By their Statement of Claim filed 24 February 1999 eleven plaintiffs sued two defendants. At all material times the plaintiffs were the directors of the Canterbury-Marrickville Olympic Football Soccer Club Limited. The first defendant corporation was the publisher of the “The Greek Herald;” the second defendant, Theodore Skalkos, was the “manager, editor and author”. 2    The plaintiffs sue on three publications in the defendants’ newspaper (20 January 1999; 10 February 1999; 11 February 1999). The publications, in very general terms, are concerned with the issue of the sale by the Club of certain real estate. The Statement of Claim has been the subject of two earlier judgments (30 April 1999 (NSWSC 420: DLJ: 1) and 11 June 1999 (DLJ: 2)). 3    In addition to a Defence, a Cross Claim was filed on 6 July 1999. The cross-claimant is Mr Skalkos only and the cross-defendants are the eleven plaintiffs. 4    The Cross Claim relates to two publications (22 January 1999, 26 February 1999) in the Greek Community Newspaper “Kosmos”. In respect of this pleading three matters are put in issue by the cross-defendants: particulars of publication, particulars of identification and imputations. 5    The cross-claimant has not sued the publisher of “Kosmos”. 6    In respect of each article the particulars of publication state that the matter complained of comprises an article published “inter alia by the cross-defendants in the … edition of the … newspaper ‘Kosmos’”. Reference is then made to the annexure to the Cross Claim. 7    Under the heading “Particulars of Publication” (paragraphs 4 and 8) the following sub-paragraph (b) is common to both publications:

“(b) The first cross-defendant spoke the following words on his behalf and on behalf of the second to eleventh cross-defendants to Dimitrios Skouloudis, publisher of the ‘Kosmos’ newspaper and/or Vasilis Passas and/or other servants or agents of that newspaper in circumstances where re-publication in the ‘Kosmos’ newspaper of the matter complained of was a direct and natural consequence of his statements:
(i) The whole of the matter complained of consists of direct and indirect quotations of the first cross-defendant, made on his behalf and on behalf of the second to eleventh cross-defendants, or of material provided by him and/or the second to eleventh cross-defendants”.

8    The cross-claimant then states that “further particulars of publication” will be supplied following discovery and interrogatories. It is further alleged in the alternative that the cross-defendants “approved and/or authorised the publication of the matter complained of”. 9    For the cross-defendants it is said that the only “particular” given is that the first cross-defendant said what he did in the way set out in the particular. Even assuming the complete accuracy of every quotation and paraphrase of Mr Nikolopoulos in each article, nowhere (from the article, as I understand it), does he purport to speak for, that is, with the authority of anyone but himself. Had he done so, it might be sufficient for the plaintiff to allege that the other person or persons authorised him to do so. Whether his mere assertion of this would be sufficient to prove publication in the circumstances vis-a-vis other people would be a matter for proof at trial. It is said that as he is “silent” on the matter, the allegation that he “spoke on behalf of” all the other cross-defendants is too general to indicate the cross-claimant’s case. Particulars of whichever variety of agency is relied upon must be provided and will be sufficient in the usual course of events (Webb v Bloch (1928) 31 CLR 331 at 362-365 per Isaacs J). 10 The point of the complaint, which I take to be an application to have all the particulars of publication struck out as “embarrassing,” is that the cross-defendants do not know from the pleading the case to be made against each one of them as a “publisher” or in relation to the first cross-defendant who in some way is said to have been a “publisher” on their behalf or under their authority. In my view the cross-defendants are entitled to more specific particulars as opposed to the generalised allegations made. It is insufficient merely to refer to “direct or indirect quotations” without allocating either all of them or anyone of them to the requisite agency being exercised by the first cross-defendant on behalf of one or all of the second to eleventh cross-defendants. Equally, a reference to “material provided” either by the first cross-defendant or the other cross-defendants is insufficient. These defects are the more apparent when in sub-paragraph (a) the “matter complained of” is said to comprise the article published in the newspaper. 11    Particulars 4(a) - (d) and 8(a) - (d) are struck out as embarrassing. 12    The “Particulars of Identification” in relation to the first publication upon which the cross-claimant sues are as follows:

“5(a) The cross-claimant identified himself as the author of, and was the author of, an article published in the ‘Greek Herald’ newspaper on 20 January 1999 regarding the sale of the property of the Canterbury-Marrickville Olympic Soccer Football Club Limited;
(b) The cross-claimant is identified as a ‘specific publisher’, ‘this publisher’ ‘this person’, ‘he’, ‘him’ and ‘his’ in the matter complained of, and the ‘Greek Herald’ is identified as a ‘Greek community newspaper ’. Further, the cross-claimant’s position as publisher, over the past thirty years of the ‘Greek Herald’, the rival publication to the ‘Kosmos’ newspaper , is a notorious fact in the Greek-speaking communities throughout the States and Territories of Australia;
(c) The identity of the cross-claimant was known to readers of the ‘Kosmos’ newspaper who had read the article in the ‘Greek Herald’ newspaper signed by the cross-claimant to which this article purported to a reply, which by the very context of the matter complained of meant that the cross-claimant’s identity was a notorious fact, as the matter complained of would otherwise have been incomprehensible to the readers of the ‘Kosmos’ newspaper ; and
(d) The cross-claimant had made an offer, together with Vagelis Danias, for the purchase of the property of the Canterbury-Marrickville Olympic Soccer Football Club Limited”.

13    With respect to the second publication, reference is made in paragraph 9(a) to “The Greek Herald” publications of 9 and 10 February 1999; the particulars thereafter proceed in the same form as for the first publication but with the addition of a particular (e) “the cross-defendants commenced these proceedings numbered 20911 of 1997 in the Supreme Court of New South Wales on 24 February 1999”. 14    It is trite law that Particulars of Identification should set out facts and matters which if established to be known to particular people or classes of people would enable those persons or classes of persons to understand the relevant matter complained of to have been published “of and concerning” the cross-claimant. Such particulars should not state conclusions nor should they be argumentative. If a matter of “notoriety” is to be relied upon, that should be stated. If it be a case where by reference to one entity there is, by reason of notoriety, identified an “alter ego”, that should be stated. Arguably in a case such as this, Mr Skalkos is the “alter” ego of “The Greek Herald”. In neither article however is “The Greek Herald” or Mr Skalkos named. There is thus the technical requirement to provide particulars of the kind to which I have referred. 15    In respect of the first publication, no serious complaint can be made about particulars (a) or (d). Particulars (b) and (c) seem to be argumentative, state the conclusion that the cross-claimant is “identified” and to a certain extent, especially in relation to particular (c), the reasoning is circular. 16    Similar comments can be made with respect to particulars (b) and (c) in relation to the second publication. 17    Particular (e) is curious; it is not known whether the institution of those proceedings by the cross-defendants on other publications is in some way to be relied upon as an admission by them that in respect of the present publications the subject of the Cross Claim, identification is established by way of admission. Be that as it may, it is the kind of particular the demands that the identity of persons or classes of persons to whom that fact was known for the purpose to which I have referred be provided. 18    In relation to the first publication, I strike out particulars of identification (b) and (c); in relation to the second publication, I strike out particulars of identification (b) and (c). 19    In respect of both publications the cross-claimant is to provide proper particulars of any other facts and matters upon which reliance is placed in terms of their being known by people to the point where such people would understand the publications to be “of and concerning” Mr Skalkos. 20    The cross-claimant is further to provide particulars of the names of persons to whom the relevant facts were known and, if so advised, the appropriate particulars of classes of persons to whom such facts were known. 21    Pursuant to SCR Pt 31 r 2, by consent, the question of law as to the capacity of each of the matters complained of sued upon by the cross-claimant to carry the pleaded imputations was considered. 22    The first matter complained of, it is contended, in its natural and ordinary meaning conveys the following imputations:

“6(a) The cross-claimant conducted a dishonest campaign against the cross-defendants by writing shameless lies in his newspapers.
(b) The cross-claimant lied about the cross-defendants for the purpose of destroying their reputations.
(c) The cross-claimant fraudulently pretended to be interested in purchasing the property of the Canterbury-Marrickville Olympic Soccer Football Club.
(d) The cross-claimant broke the law by constantly libelling those in the community who are better than him”.

23    The principal complaint in relation to 6(a) and (b) is that the relevant matter complained of is incapable of imputing that the cross-claimant said anything about the eleven cross-defendants or any of them. No connection with a cross-defendant can be made. The matter complained of refers to a “campaign” against “our team”; the “publisher” “blackens the names” of “unnamed” individuals. I agree with this submission as I do with the subordinate submission that the gist of an imputation such as 6(a) is to the effect that the cross-claimant wrote “shameless lies” about “someone”. The flaw in each of the imputations, on a capacity question, is the reference to “cross-defendants”. I find, as a matter of law, that this matter complained of is incapable of conveying such a notion. 24    Imputations 6(a) and (b) are incapable as a matter of law of being carried by the matter complained of. 25    As to imputation 6(c): it is contended that the matter complained of contains no suggestion of “fraud,” that is, dishonesty for motives of gain. What it is pointing to is that any interest displayed by the cross-claimant was simply never serious; that is a long way from a charge of fraud. The reference to the cross-claimant not being available to inspect the property, as is referred to in the second paragraph of the publication, points to no promise on the part of the cross-claimant to be available; it is simply points to the fact that the cross-claimant did not inspect the property. This insufficient to sustain a charge of fraud. 26    As a matter of law I hold that the matter complained of is incapable of carrying imputation 6(c). 27    With respect to imputation 6(d), the complaint seems to be directed to the question of form in so far as it is contended that the imputation does not impute any concrete act or condition of the subject of it. It is said that to say the cross-claimant is “constantly libelling people” (whom? how?) amounts to no more than mere abuse. The words “those in the community” adds nothing; the same can be said in respect of those people who are “better than him”. 28    I do not accept the submissions for the cross-defendants in relation to this imputation. It is good in form and is certainly clearly capable of arising. Given the matter complained of I am unable to see any question of further refinement or indeed, further generalisation. I do not regard it either as generalised and non-specific abuse (cf. Drummoyne Municipal v Australian Broadcasting Corporation(1990) 21 NSWLR 135 at 137D per Gleeson CJ). 29 I hold imputation 6(d) to be good in form and to be capable of being carried by the matter complained of. 30 The imputations said to be carried by the second matter upon which the cross-claimant sues are as follows:

“10(a) The cross-claimant conducted a dishonest campaign against the cross-defendants by mudslinging rather than reporting true facts.
(b) The cross-claimant published lies about the cross-defendants’ commission arrangements with Jim Ronis.
(c) The cross-claimant dishonestly pretended to be interested in purchasing the property of the Canterbury-Marrickville Olympic Soccer Football Club”.

31    Imputation 10(a) is not in issue and I hold it to be capable of being carried by the matter complained of. 32    As to imputation 10(b) the cross-claimant concedes that the matter complained of is incapable of carrying this imputation and I so hold. 33    As to imputation 10(c) I am not persuaded by the submissions for the cross-defendants that this imputation cannot as a matter of law be held to be carried. It was argued that the article imputes no more than that interest of the cross-claimant in purchasing the property was not worth following up. There was no pretence or dishonest pretence capable of being imputed by the article. That matter complained of is in the form of an interview with Mr Nikolopoulos, the first cross-defendant, and bears the headline, “The Truth About the Offers for the Property…” On page 2 of Annexure D (the English translation) Mr Nikolopoulos recites a history of offers made including (to be understood for present purposes), those from the cross-claimant. It is stated “It naturally follows that any verbal offers cannot be considered serious even in the best of circumstances”; this might point to nothing more than what is contended for the cross-defendants namely that the cross-claimant was not “serious”. Reference however is later made to “an attempt to cause the failure of the sale” (page 3). I am of the view that the matter complained of sufficiently, for the purposes of a capacity argument, can be understood as carrying a suggestion of something more than not being “genuine” in negotiations or making of offers by the cross-claimant. There is sufficient “there” to leave this matter to the jury. 34    Accordingly, I hold that imputation 10(c) is capable of being carried by the matter complained of. 35    The cross-defendants have predominantly succeeded in these matters and will be entitled to an order for costs. 36    The formal orders are:

1. Particulars of publication 4(a) - (d) and 8(a) - (d) are struck out.

2. Particulars of identification 5(b) and (c) and 9(b) and (c) are struck out.

3. In respect of both publications the cross-claimant is to re-particularise facts and matters as to both publication and identification in accordance with these reasons.

4. Imputations 6(a), (b) and (c) in the Cross Claim are, as a matter of law, incapable of being carried by the matter complained of.

5. Imputation 6(d) in the Cross Claim, as a matter of law, is capable of being carried by the matter complained of.

6. Imputations 10(a) and (c) in the Cross Claim, as a matter of law, are capable of being carried by the matter complained of.

7. Imputation 10(b) in the Cross Claim, as a matter of law, is incapable of being carried by the matter complained of.

8. The cross-claimant has leave to file an Amended Cross Claim within 14 days.

9. The cross-claimant is to pay the cross-defendants’ costs.

10. The proceedings are stood over for further directions in the Defamation List on 21 July 2000.
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Last Modified: 09/26/2000