Nikolopoulos v Greek Herald Pty Ltd

[2003] NSWSC 1060

CITATION:	Nikolopoulos & Ors v Greek Herald Pty Ltd & Anor [2003] NSWSC 1060
HEARING DATE(S):	27 October 2003
JUDGMENT DATE:	18 November 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J at 1
DECISION:	JUDGMENT FOR PLAINTIFFS
CATCHWORDS:	DEFAMATION - DAMAGES ASSESSED
LEGISLATION CITED:	Defamation Act 1974
CASES CITED:	Carson v John Fairfax & Sons 1993 178 CLR 44 Garbett v Hazell, Watson & Viney Ltd 1943 All ER 359 Rogers v Nationwide News Ltd 2003 77 ALJR 1739 Waterhouse v Station 2GB 1985 1 NSWLR 58
PARTIES :	George Nikolopoulos, John Georgopoulos, Alex Pettas, Tom Haralambidis, Peter Mitrothanasis, Bill Kategiannis, George Tsokos, Jim Panagakis, Chris Giorgakopoulos, John Gournaropoulos and Bill Venetoulis v Greek Herald Pty Limited and Theodore Skalkos
FILE NUMBER(S):	SC 20071/99
COUNSEL:	C. Evatt with J. Henness (Plaintiffs) No appearance (Defendants)
SOLICITORS:	Brock Partners (Plaintiffs)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Tuesday 18 November 2003

20071/99 - GEORGE NIKOLOPOULOS, JOHN GEORGOPOULOS, ALEX PETTAS, TOM HARALAMBIDIS, PETER MITROTHANASIS, BILL KATEGIANNIS, GEORGE TSOKOS, JIM PANAGAKIS, CHRIS GIORGAKOPOULOS, JOHN GOURNAROPOULOS and BILL VENETOULIS v GREEK HERALD PTY LIMITED and THEODORE SKALKOS

JUDGMENT

1 HIS HONOUR: Eleven plaintiffs seek damages alleging that they have been libelled in an article published in the Greek Herald on 20 January 1999. The matter complained of was published in the Greek language and the evidence includes a relevant English translation. The litigation has a considerable history, both at first instance and appellate levels. It is unnecessary to trace this in detail now. A hearing on 5 February 2001 pursuant to s7A of the Defamation Act 1974 (the Act) resulted in determination by a jury that the matter complained of made an imputation in respect of each plaintiff that he lied to members of the Canterbury Marrickville Olympic Soccer Football Club Limited (the Club) and that such imputation was defamatory of each of them. The plaintiffs were directors of the Club. None of them was mentioned by name in the publication.

2 On 9 May 2003 a hearing date of 27 October 2003 was fixed. On 15 July 2003 a notice of ceasing to act as solicitor was filed by Mr Tony Lazoropoulos who was to that time the solicitor on record acting for the defendants. Nevertheless, Mr Lazoropoulos appeared for the defendants on 15 September 2003 when a notice of motion filed by the plaintiffs, seeking inter alia, orders that the defence be struck out was, by consent, dismissed. On that occasion the presiding judge (Nicholas J) gave certain directions and also gave leave to each of the plaintiffs, “should he be so advised, to file written statements in lieu of or in addition to, each giving evidence at the forthcoming trial.”

3 Upon the action being listed for hearing as scheduled on 27 October there was no appearance on behalf of either defendant. The relevant pleadings, following the trial pursuant to s7A abovementioned, are identified as the Second Further Amended Statement of Claim following that hearing and pursuant to order of 5 February 2001 and the Further Amended Defence filed on 29 January 2003.

4 The pleadings by the defendants raised these specific defences:

(i) Qualified privilege (at common law and pursuant to s22 of the Act);
(ii) Justification;
(iii) Contextual truth;
(iv) Comment (fair comment where relevant); and
(v) Mitigation of damages.

5 Requisite particulars were supplied. The evidential onus of proof in respect of all of these defences rests upon the defendants. In the circumstances of their unexplained absence from the hearing, there was, of course, no evidence to support any of these defences and I therefore find that each of them fails.

6 Essentially the remaining issue concerns the damages of the individual plaintiffs.

7 All plaintiffs availed themselves of the leave granted by Nicholas J and their statements are comprised in Exhibits B1 to B11, supplemented by Exhibit C. Oral evidence was confined to testimony that at the relevant time the Club consisted of three hundred and ninety members.

8 An answer to an interrogatory verified by the second defendant was tendered to establish circulation figures of the Greek Herald as approximately 24,000 in New South Wales, 600 in Victoria, 100 in Queensland, 20 in West Australia and 900 in South Australia. I mention that in unresponsive part answer to the particular interrogatory there was an assertion that neither of the defendants was a publisher of the Greek Herald at the relevant time. Publication by the defendants was not put in issue in the Further Amended Defence and I also observe that in particulars of qualified privilege at common law supplied in that defence, an introduction “The defendants as publishers of the Greek Herald” appears three times. (See par 3(b)(i), (ii) and (iii)). I find that the defendants were relevantly the publishers.

9 The matter complained of refers to a proposed sale of the Club property for $2.2 million and an asserted offer by the second defendant and a named businessman of $2.4 million. The plaintiffs, directors of the Club, are said to have deceived the members about the existence of this alleged offer. The sting in the imputation is readily discernible in the translation hereunder set out. The paragraphing is that of the translator and the first paragraph is a pointer, obviously appearing on a different page from the text of the principal article:

“1. Our Editor TH. SKALKOS reveals
Why did they hide from the members
of Marrickville Olympic
a bigger offer
for the purchase of their land?

SEE ARTICLE ON PAGE 54

2. S C A N D A L

3. Why did they hide from the members
of Marrickville Olympic
a better offer
for their land?

4. The properties of our clubs are considered properties of our community, for which the members and the directors of our community organisations decide, however, these do not cease to be in essence properties of us all.
5. Having this in mind, one is enraged even more when one realizes that the property of a community organisation, such as the Canterbury Marrickville Olympic is sold at a price which is by $200,000 lowever (sic) than that at which it could have been sold. Simply in order that certain people could earn money, openly but also secretly.
6. Without going around and without saying too much, following what I have been informed and confirmed on my return from a trip to Greece, the Canterbury Marrickville Olympic Committee, after two general meetings and unsuccessful attempts, convened a third general meeting and managed to convince the members to approve the sale of their land to the neighbouring Masonic Club, at the sale price of $2,200,000. The members’ approval was given following general meetings upon general meetings for the same issue and after the directors assured the members that THERE WAS NO OTHER offer for the land of their club.
7. This is exactly where the lie is, that is the concealment of the truth and the obvious existence of personal interests, which would be served with the sale of the land to the Masonic Hall and above all with the purchase of a particular other land. Which, in turn may blow up and lead to bankruptcy our only financially robust, at this point, soccer club, but in the meantime, those who are to benefit will benefit!
8. The truth, which the members were not told about and which the directors and the president of Canterbury Marrickville Olympic knew personally, was that there was another offer for the club land, bigger by $200,000 than the offer of the Masonic Club or any other offer.
9. The said offer was made by me personally an by the well-known businessman of our community Mr Vengelis Danias but for reasons which the directors of Canterbury Marrickville Olympic will need to explain to us, the members were not advised of its existence.

10. Why?

11. Is it because the granting of the exclusivity of sale of the land to the real estate agency of Mr Ronis was about to expire and so it would not receive the commission for the sale, unless the buyer was the Masonic Club? Or are there any other benefits from the Masonic Club to anyone who would secure for it the land, which is situated exactly next door to it.
12. Finally, how much more can a real estate agency expect to benefit from a big and risky, for Canterbury Marrickville Olympic, purchase of a building, whose price could reach as we hear, the sum of $5,000,000 and which is, of course, beyond the capabilities of the soccer club?
13. All the above are thoughts based on indications and especially on the fact of hiding our offer from the members of Canterbury Marrickville Olympic, which the president and the directors did not have the right to do. Especially, when they were asked in the course of the last general meeting ‘if there was any offer other than that of the Masonic Club’?
14. Perhaps the president and certain members of the Committee are our friends in other ways but this will not prevent us from denouncing the actions which may benefit certain pockets but undoubtedly harm the club, to the property of which we have ALL contributed through the years and for which we have all co-operated, some in small ways and others in bigger ways, in order to be maintained.
15. It should be noted that apart from the moral obligation, the president and the directors of Canterbury Marrickville Olympic may also have legal responsibilities for the fact that they hid from the members a more advantageous offer for the sale of the club’s property, which was made very seriously and not by just anyone but by known businessmen with financial power more than enough for its purchase.
16. As an editor of newspapers which reflect the public opinion of our community and also as a businessman, personally and with Mr Danias, we will investigate the matter in depth and will inform on what we discover. Because, neither on our part nor on the part of the majority of the Canterbury Marrickville Olympic club is there any intention of covering up a scandal which decreases the property of our soccer club and exposes it to deadly dangers for the sake of the interests of a real estate agency and of the agent’s circle of friends.
17. As for the resulting deficit(s) of $200,000 in the coffers of Canterbury, this should be made up by those who covered up the offer of $2,400,000 so that the land could be sold where they prefer at $2,200,000 less commission.

THEODORE SKALKOS “

10 It will be necessary to consider damages payable to the individual plaintiffs but there are some general aspects of assessment which can be mentioned. Damages are limited to those relating to relevant harm as defined: see s46. There is a form of statutory guidance: s46A. The evidence shows that the imputation is false: see s47.

11 The purposes of an award of damages for defamation have been described as three, undoubtedly overlapping, purposes namely consolation for the personal hurt to the plaintiff, reparation for harm done to reputation and vindication of that reputation: Carson v John Fairfax & Sons 1993 178 CLR 44. Within the limitations imposed by s46, aggravated compensatory damages may be available to a plaintiff. They are awarded where either the circumstances of the publication of the matter complained of or the defendant’s conduct then or subsequently makes the injury to the plaintiff worse: Waterhouse v Station 2GB 1985 1 NSWLR 58.

12 It will be observed as I deal with the individual assessments of damage that there is considerable similarity in a number of the claims and this is unsurprising in the circumstances of the commonality of their directorship of the club and their membership of the Greek community in Australia. To avoid repetition I record that in general I accept the unchallenged evidence in each of the plaintiffs’ statements, (Exhibit B1 to Exhibit B11).

13 All of the plaintiffs gave descriptions in a variety of language of their feelings of personal hurt and I accept what they say. I further accept that there exists in each case relevant matters of aggravation. As I make the individual assessments it will be unnecessary to recite in detail the descriptions of personal hurt but it is clear that in every case there has been a significant and continuing personal harm.

14 Recent discussions concerning the damages for defamation in the High Court (Rogers v Nationwide News Limited 2003 77 ALJR 1739) can be drawn upon for guidance. As was there observed, damage to reputation is not a commodity having a market value and every such award must be unique. Comparison between awards is particularly difficult. In this case, what the defendants published is recorded in a newspaper of significant circulation in the Greek speaking, or more accurately Greek reading, community. As Callinan J remarked in Rogers (par 134) such may serve for some as “at least a rough draft of the truth for historical purposes”.

15 In the case of each of the plaintiffs the falsity of the imputation and the failure to apologize will be taken into account in assessing aggravated damages.

GEORGE NIKOLOPOULOS

16 At relevant times, Mr Nikolopoulos was President of the club as well as being a director. He is a businessman who had admiration and respect, particularly within the Greek community.

17 As with many others, he has experienced being shunned by a number of people. This is of significance in assessing the measure of damage done: Garbett v Hazell, Watson & Viney Limited 1943 All ER 359. There is a matter which affects only this particular plaintiff, and that is that the defendants by their pleading made an allegation of bad reputation in terms that he “was accused of electoral fraud in relation to the elections of (the Club) in 1994”. This pleading was filed on 1 February 2001 and was not withdrawn until 29 January 2003, and its existence during that span should be taken into account, as I do, as a matter of impact upon the plaintiff in assessing his damages.

18 I assess his damages at $80,000.

JOHN GEORGOPOULOS

19 Mr Georgopoulos has been a member of the club for twenty years and a director for ten years. He has experienced shunning and accusation. His family and social life have been affected and he and his wife have ceased attending some functions.

20 I assess his damages at $60,000.

ALEX PETTAS

21 Alex Pettas joined the club in 1974. He was elected to executive office as Treasurer in 1995. His position as such was well known in the Greek community. He received offensive calls and suggestions that he should resign.

22 I interpolate that, although I have said that I generally accept the material in the statements including this plaintiff’s statement, I should specifically record that I am not satisfied that any interference with the brakes of his wife’s car had any connection with the defendant’s tort. The context of the imputation was, of course, related to money in the sense of circumstances surrounding the intended sale of the club’s asset. The position of Mr Pettas as the Treasurer assumes particular significance.

23 I assess his damages at $65,000.

TOM HARALAMBIDIS

24 Tom Haralambidis has been a member of the club since 1981 and served two terms of office as a director for a total of ten years.

25 He is a real estate agent and in fact the club property had been listed through his employer. He knew that no offer by the defendant Skalkos or any associate of his had been made, at least through the agency.

26 The plaintiff has experienced insults and shunning. His statement refers to the loss of a client but the terms of it do not elaborate any claim for actual economic loss.

27 I assess his damages at $60,000.

PETER MITROTHANASIS

28 Peter Mitrothanasis has been a member of the club for thirty six years and a director for twelve years.

29 He and his wife have been excluded from a group with whom he had previously enjoyed warm social relations. He has received insults and on one occasion was spat upon.

30 I assess his damages at $60,000.

BILL KATEGIANNIS

31 Bill Kategiannis has been a member and director of the club since 1996.

32 He has been the subject of insults and abuse. He was particularly exposed to such as he was the ticket collector at football games. He has candidly observed that since the jury verdict this abuse has subsided but “every now and then he is called a liar and a thief”.

33 There has been an effect upon the comfort of himself and his wife when they attend social functions within the Greek community.

34 I assess his damages at $60,000.

GEORGE TSOKOS

35 George Tsokos has been a member of the club since 1997.

36 He received anonymous calls asserting that he had robbed the club. He treated enquiries as implying doubt about his integrity and was particularly hurt when even his children enquired as to what was going on.

37 He had a takeaway food shop business, which he subsequently sold. He had noted some drop in business at the shop. He didn’t work for two years and commenced operating a contract cleaning business.

38 Invitations to functions have noticeably lessened and he has ceased some social activity.

39 I assess his damages at $60,000.

JIM PANAGAKIS

40 Jim Panagakis saw the matter complained of on the day of publication and was especially upset to return home to query from his own family as to what he had been doing. I do not have precise details of the length of his club membership or service as a director.

41 He received calls particularly in the week following publication in which he was called a liar and thief. He has been queried in person when attending such places as a garage, shop and soccer games. He has reduced his previously enjoyed frequent attendance at soccer games because of this.

42 I assess his damages at $50,000.

CHRIS GIORGAKOPOULOS

43 Chris Giorgakopoulos has been a member of the club for ten years and a director since 1997.

44 He saw the article on the date of publication. He worked at the time with ten people of Greek extraction. They read the article and he was ridiculed and called a liar. It was expressly suggested that he had joined the board of the club to steal its money. The taunts continued and some eighteen months later he sought and obtained other employment.

45 On his return home on the day of publication he was particularly upset to be asked by his wife (who had separately purchased the paper and read the article) for an explanation. She suggested his resignation because she was worried about “what people would say”.

46 Apart from harassment at work he received abusive phone calls. He was subjected to public abuse. On one occasion a member of a crowd at the Olympic games in Stadium Australia yelled out “you are a thief” as he went to his seat.

47 He has experienced shunning to a marked degree.

48 I assess his damages at $70,000.

JOHN GOURNAROPOULOS

49 John Gournaropoulos read the article on the day of publication. Thereafter he noticed that family and friends “acted differently towards me”. I do not have detail of the length of his club membership or service as a director.

50 He has been particularly distressed by a feeling that even his family are questioning of him. He sought medical attention for “aggravation to my nerves”.

51 I assess his damages at $50,000.

BILL VENETOULIS

52 Bill Venetoulis has been a member and director of the club for six years. He is the “convenor” of juniors for the club. As such he dealt with over one hundred children and their parents. After the publication he was subjected to abuse and insults from parents and children alike.

53 He received anonymous phone calls after the publication including some which he took to be death threats. He has had a long association with soccer organizations wider than his activity within the club but the result has been that he has been exposed to even more questioning and insults from these wider sources

54 He has suffered socially and noted a significant decline in invitations received. He is being treated for stress and ulcers, conditions from which he did not suffer prior to the publication.

55 I assess his damages at $70,000.

SUMMARY

56 The total damages payable by the defendants is $685,000.

57 I direct entry of judgment for the respective plaintiffs as follows:

(i)	Judgment for George Nikolopoulos	$80,000
(ii)	Judgment for John Georgopoulos	$60,000
(iii)	Judgment for Alex Pettas	$65,000
(iv)	Judgment for Tom Haralambidis	$60,000
(v)	Judgment for Peter Mitrothanasis	$60,000
(vi)	Judgment for Bill Kategiannis	$60,000
(vii)	Judgment for George Tsokos	$60,000
(viii)	Judgment for Jim Panagakis	$50,000
(ix)	Judgment for Chris Giorgakopoulos	$70,000
(x)	Judgment for John Gournaropoulos	$50,000
(xi)	Judgment for Bill Venetoulis	$70,000

58 The defendants are ordered to pay the plaintiffs’ costs of action.

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Last Modified: 11/19/2003