SMEC Holdings Ltd v Boniface - [2007] NSWSC 1402

No judgment structure available for this case.

CITATION: SMEC Holdings Ltd v Boniface [2007] NSWSC 1402

HEARING DATE(S): 5 November 2007; 6 November 2007; 7 November 2007; 8 November 2007

JUDGMENT DATE :
5 December 2007

JURISDICTION: Common Law

JUDGMENT OF: Simpson J

DECISION: (1) The first plaintiff: (i) In respect of the fourth, fifth, sixth and eighth publications respectively: verdict for the first plaintiff in the sums of $75,000, $100,000, $80,000 and $120,000; (2) The second plaintiff: (i) In respect of the second, third, fourth, fifth, sixth and eighth publications respectively: verdict for the second plaintiff in the sums of $80,000, $80,000, $80,000, $100,000, $110,000 and $110,000; (ii) in respect of the seventh publication: verdict for the defendant; (3) The third plaintiff: (i) In respect of the second, third, fifth, sixth and eighth publications respectively: verdict for the third plaintiff in the sums of $80,000, $80,000, $90,000, $90,000 and $110,000; (4) The fourth plaintiff: (i) In respect of the second, third and eighth publications respectively: verdict for the fourth plaintiff in the sums of $80,000, $80,000 and $110,000; (5) Order that the defendant pay the plaintiff’s costs of the proceedings.

CATCHWORDS: DEFAMATION – imputations found by jury to have been conveyed – defences of qualified privilege at common law, comment and unlikelihood of harm – circulation/distribution of defamatory publications - QUALIFIED PRIVILEGE – whether recipient “interested” in receiving communication on the relevant subject matter – whether defendant acted bona fide in making communication – COMMENT - whether imputations were an expression of opinion or statement of fact - whether comment was based on proper material for comment - UNLIKELIHOOD OF HARM – s 13 – whether recipient likely to place any trust or weight in communication - DAMAGES – whether proceedings an abuse of process – quantification – relevant considerations – aggravated damages

LEGISLATION CITED: Defamation Act 1974

CASES CITED: Adam v Ward [1917] AC 309
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366
Boniface v SMEC Holdings Ltd [2006] NSWCA 351
Clarke v Norton [1910] VCR 494
Howe v Lees (1910) 11 CLR 361
John Fairfax Publication Pty Ltd v O’Shane [2005] NSWCA 164
London Association of Greenlands Ltd [1916] 2 AC 15
Packer v Meagher [1984] 3 NSWLR 486
R v Rule [1937] 2 KB 375
Rumsey v Webb (1842) 1 Carr & M 104
Toogood v Spyring (1834) 1 CM & R 181; 149 ER 1044
Williams v Spautz [1992] HCA 34; 174 CLR 509

PARTIES: SMEC Holdings Ltd (First Plaintiff)
Peter Busbridge (Second Plaintiff)
Ross Hitt (Third Plaintiff)
Geoff Percival (Fourth Plaintiff)
Glen Boniface (Defendant)

FILE NUMBER(S): SC 21012 of 2001

COUNSEL: M J Neil QC/D A Caspersonn (Plaintiffs)
C A Evatt/R K M Rasmussen (Defendant)

SOLICITORS: Baker & McKenzie (Plaintiffs)
S Moran & Co (Defendant)

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

SIMPSON J

5 December 2007

21012/01 SMEC Holdings Ltd & Ors v Glen Boniface
JUDGMENT

1 HER HONOUR: In these proceedings four plaintiffs – SMEC Holdings Ltd (trading as Snowy Mountains Engineering Corporation and SMEC), (to which I will refer as “SMEC”), Mr Peter Busbridge, Mr Ross Hitt, and Mr Geoff Percival – sue the defendant, Mr Glen Boniface, for damages for defamation arising out of a series of publications made in 2000 and 2001 by email. The second, third, and fourth plaintiffs are all directors and executives of SMEC.

2 A contested jury trial pursuant to s 7A of the Defamation Act 1974 was conducted in 2005, over a period in excess of two weeks; it resulted in answers favourable to all plaintiffs, establishing that, on nine different occasions, the defendant had published a variety of imputations that, in various ways, defamed the plaintiffs. The principal area of contest in that trial concerned that necessary element of the plaintiffs’ case, that they had shown the defendant to have published each of the communications which contained the defamatory imputations.

3 An appeal to the Court of Appeal was successful only to a very limited extent; that Court held that the jury’s verdict that the plaintiffs had proved that the defendant published the ninth matter which they complained was perverse. The Court set aside the judgment in relation to that publication. It upheld the jury verdict in relation to all other publications: Boniface v SMEC Holdings Ltd [2006] NSWCA 351. It ordered that the defendant pay 95 percent of the plaintiffs’ costs of the appeal.

4 The present proceedings therefore concern the remaining eight publications. The defendant has pleaded the same defences to each: qualified privilege (at common law), comment, and that the publications were made in circumstances such that the plaintiffs were unlikely to suffer harm.

5 The first issues for present determination are whether the defendant has been able to establish the necessary elements of any one or more of the three defences he has pleaded; if he has, whether any of them is defeated by any matter available to the plaintiffs by way of defeasance; and, if the defendant has failed to establish any defence, or if any defence to which he is prima facie entitled is defeated, the quantum of damages to be awarded to any successful plaintiff. By reason of the jury verdict, and the Court of Appeal decision, the issue of the defendant’s responsibility for the publications is now foreclosed. Notwithstanding that, the defendant maintains his denial of responsibility for publishing any of the emails other than the seventh, which was the last in time.

Background

6 It is necessary at this point to set out some factual background. While some of what follows may appear to have only marginal relevance to the issues outlined above, it will, in due course, be seen that a number of facts and circumstances were raised by the case as it was fought by the parties.

7 The proceedings arise out of a rather sorry state of affairs in SMEC.

8 SMEC is a private engineering company that derived from the Snowy Mountains Hydroelectricity Authority. In about 1991-1993 shares in SMEC were sold by the Commonwealth Government to SMEC employees. By SMEC’s constitution, its shares may only be held by employees during the course of their employment, and must be disposed of within one year of termination of employment.

9 SMEC is the centre point of a number of related companies. The Group presently has about 2500 employees, and an annual turnover of $200 million. It undertakes engineering projects internationally, on its own behalf, and in association with organisations such as the World Bank, the Asian Development Bank, AusAid and others.

10 From 1993 until 2000 Mr Jack Boniface (the defendant’s father) was Chairman of the Board of Directors and Chief Executive Officer of SMEC. In 1995 the defendant commenced employment in the company as a Project Finance Manager.

11 In 2000-2001 each of the individual plaintiffs held an executive position in SMEC, and each is, and has at relevant times, been a member of the Board of Directors. By profession, each of them is an engineer.

12 Over the years, two circumstances (of present relevance) arose that upset the equilibrium of the SMEC workplace.

13 In December 1997 the defendant was found to have pornography on his office computer. A policy was promulgated (by Mr Jack Boniface, in his capacity as CEO) concerning the use of Internet facilities. That issue then appears to have subsided. At some (unidentified) time, dissatisfaction began to emerge among some Board members relating to the chairmanship of Mr Jack Boniface, and his performance of his role as CEO. Early in 2000 the Board took the step of abolishing the position of CEO. Mr Jack Boniface remained as Chairman of the Board until the end of that year. He was not re-elected as Chairman. At the end of 2001 his four year term as director expired and, although he renominated, he was not re-elected to the Board.

14 He has brought proceedings (which are still current) against SMEC in the Industrial Relations Commission; and SMEC has initiated litigation against him in this Court. No further details of the latter matter emerged in the evidence. The former involves allegations of unfair dismissal.

15 In 2002 the position of CEO was reinstated, and Mr Busbridge took up that position. He also became Chairman of the Board of Directors.

16 From 24 November 2000 a series of anonymous email messages circulated within SMEC. In terms of time, they fall into three groups: four were circulated between 24 November 2000 and 10 January 2001; three were circulated between 16 July and 1 August 2001. Another email which was not circulated within SMEC and was therefore not discovered until later was sent to the World Bank on 15 February 2001. These constitute the defamatory publications upon which the plaintiffs sue. Their content and the imputations they conveyed will be detailed below.

17 In about January 2001 the defendant was again found, in breach of SMEC’s promulgated Internet policy, to have pornographic images on his office computer. He was also suspected of having been responsible for the circulation of the emails which, to that date, numbered four. An investigation commenced into both matters. On 17 January 2001 the defendant’s employment was terminated. There were then no further defamatory emails detected until July 2001, from which date another three were circulated. The eighth email (15 February 2001) was discovered because, in that month, senior officers of the World Bank, having received the email, instigated an investigation and met senior executives of SMEC in order to ascertain the truth of the matters raised. During the course of this meeting, the representatives of the World Bank told the SMEC representatives that the Bank had received an anonymous email, which he declined to show to the directors, but which he read to them orally. It is a fair inference that this email was the circumstance that precipitated the World Bank investigation. Subsequently, SMEC directors came into possession of a copy of the email which they recognised as being similar or identical in content to that read to them at the World Bank meeting. The copy they received had certain parts deleted.

18 On 15 July 2001 an ABC Radio National broadcast a programme known as “Background Briefing”. The broadcast of that date was entitled “Doing Business Abroad: Ethical Dilemmas”. It was presented by Nicole Johnston. The theme of the programme was, as its title suggests, ethical issues involved in international business; considerable attention was paid to the sometimes perceived need to, and the propriety of, paying commissions or bribes to individuals in positions to facilitate the securing of contracts.

19 Special focus was directed to SMEC. In particular, it was alleged that SMEC had dealt with a man called Pradeep Nair, who was on a World Bank black list, meaning that the World Bank would not deal with any organisation that engaged him. It was said that SMEC had dealt with Mr Nair, but the programme’s presenter was careful also to point out that she could not say that this had occurred after his black banning. Also of importance was an express statement that there was no suggestion that SMEC had ever paid bribes.

20 The programme referred to financial difficulties in which SMEC, from time to time, found itself, which were attributed to cash flow problems resulting from frequently delayed payment by overseas customers.

21 Mr Jack Boniface participated in the programme. Although he was quoted in it, Mr Busbridge did not.

22 The Board of SMEC was unhappy about the overall tenor of the programme, or about specific parts of it, and sought legal advice. They were advised that it was not actionable.

The defamatory publications

23 It is now convenient to set out the substance of the eight emails in question and the imputations found to have been conveyed.

(1) the first publication

24 The first publication was in two parts, constituted by two separate emails. The first email was dated 24 November 2000. It purported to be sent by a person identified as Viet Nam and was addressed to “[email protected]”. The subject matter was nominated as “Info”. Its content was:

“Bill,
An email from Peter to Ross was miss directed (sic) to me, and I thought you might be interested in the following:
‘.… One way or other JB will be gone by January or February at the latest. Without JB’s projection (sic) we can easily get rid of WB. He has been non-contributing to SMEC for years now, so there is no reason to keep him on after we have control …’

Please keep me out of this.

25 The subsequent email, dated 30 November 2000, and purportedly emanating from the same source, was sent to the same addressee, with the same subject heading, and was in the following terms:

“Bill,
Sorry there was a little more to that email that might interest you:

‘… We can easily but (sic) the pressure on WB to resign, he has been rorting the system for years, and JB wont be there to look after him …’

Once again please keep me out of this.

26 These two emails together constitute the first publication upon which the plaintiffs sue. Each was unsigned.

27 It was common ground that “Peter” was Mr Busbridge; “Ross” was Mr Hitt; “JB” was Mr Jack Boniface; and “WB” and “Bill” were Mr Bill Bultitude, another executive/employee of SMEC.

28 It was the plaintiffs’ case in the s 7A trial (and, by its verdict, accepted by the jury) that this email was sent by the defendant and that the assertion that the email to which it referred and from which it purported to extract portions, had never been sent by Mr Busbridge, and was, in fact, fabricated by the anonymous author.

29 In those circumstances, the jury accepted that the emails conveyed the following defamatory imputations:

(ii) the second publication

30 The second publication was dated 8 December 2000. It purported to emanate from “Small Shareholder” and was directed to “[email protected]; [email protected]; [email protected]”. Its content was:

31 The jury found that this publication conveyed the following imputations:

(iii) the third publication

32 The third email was dated 19 December 2000 and purported to have been sent by “SMEC Shareholders”; it was addressed to “[email protected]; [email protected]; [email protected]”. It identified its subject matter as “SMEC Board”.

33 It was brief; the whole of its content was:

“If the SMEC Board covers up the illegal dealings of Ross Hitt, Geoff Percivil (sic) and Peter Busbridge, the evidence will be given to ASIC for them to investigate.

Love

34 The jury found that three identical imputations had been conveyed of each of the individual plaintiffs. They can therefore be set out globally. They were:

(iv) the fourth publication

35 The fourth publication was dated 10 January 2001 and purported to emanate from “SMEC Fairy_Godmother”. The address line specified a large number of addressees, almost all of them at addresses containing “SMEC”; some named addresses such as “Snowy Hydro” and there were others that have no obvious connection with SMEC. The subject line was completed with the words “Small Shareholders – A Little Information for You”.

36 The body of the email was in the following terms:

“What Peter and Andy don’t want you to know.
A valuation of SMEC Developments for $9.6 million has been received from Ernest & Young Corporate Finance Pty Limited.
- The cost to have this carried out was very high. This is shareholders (your) money that was spent.
- The offer to purchase 90% SMEC Developments for more than $14 million has been rejected by the negotiation committee of Peter Busbridge, Robert Scott and Alastair McKendrick. I for one would like to know what negotiations actually took place. Why weren’t we informed of the full details of the offer?
- This valuation has resulted in $4.4 million of Shareholders (your) funds being written off the worth of SMEC.
- For obvious reasons this will mean the declared dividend of 10 cents per share for the last financial year will never be paid.
- SMEC’s Bank may cancel the credit facilities. This will probably result in SMEC being liquidated.
- The people (Busbridge, Scott, and McKendrick) who have put SMEC at such risk by once again putting their personal interests above the shareholders and SMEC by rejecting the offer to buy SMEC Developments. If they had any sense of decency they should resign from the SMEC Board and their employment with SMEC.

Love

37 It was not in dispute that “Andy” was Mr Andrew Marr, a Board representative of Small Shareholders.

38 The jury found that this publication conveyed the following defamatory imputations:

(i) of SMEC:

“(a) [that SMEC] was probably going to be liquidated;
(b) [that SMEC] was in such severe financial circumstances that it would never pay the dividend it had declared.
(c) [that SMEC] was having substantial problems with its bank who may cancel [SMEC’s] credit facilities.”

(ii) of Mr Busbridge:

“(a) [that Mr Busbridge] as a director of SMEC put his personal interests above his responsibilities to the shareholders of SMEC and SMEC itself by rejecting the offer to buy SMEC Developments when in fact [Mr Busbridge] knew it was in the best interests of the shareholders of SMEC and SMEC to accept the offer to buy SMEC Developments;
(b) [that Mr Busbridge] tried to keep the details about rejecting the offer to buy SMEC Developments secret because he knew he had breached his duties as a director in rejecting the offer to buy SMEC Developments;
(c) [that Mr Busbridge] was a hopeless director of SMEC whose actions in rejecting the offer to buy SMEC Developments made it probable that SMEC would be liquidated;
(d) [that Mr Busbridge] was a grossly incompetent director of SMEC in that he knew the offer to purchase the company SMEC Developments was well above the valuation of that company yet he rejected the offer.”

(v) the fifth publication

39 The fifth publication was dated 16 July 2001, and purported to have been sent by Neil Evans. It was directed to “[email protected]; [email protected]”. Its subject matter was identified “Radio National investigation into SMEC”. Its content was:

“Dear SMEC Staff,

As you are all aware Nichol Johnson (sic) an ABC investigative reporter has revealed the criminal activities of Peter Busbridge and Ross Hitt in her report yesterday. I hope all staff join me in calling the immediate dismissal of Peter Busbridge and Ross Hitt, and their resignations from the SMEC Board. I am aware that Peter Busbridge went to Kazakhstan last week, I assume in an attempt to cover-up his activities. Why is he using SMEC funds to cover-up his crimminal (sic) activities??

Why has the audit committee not been able to identify the criminal activities of Peter Busbridge and Ross Hitt? I call for an investigation by the federal police into their involvement.

The criminal activities of Peter Busbridge and Ross Hitt will lead to the World Bank and Asian Development Bank Black Banning SMEC from all future work. I personally know that Peter Busbridge has been undertaking business activities with Pradeep Nair who has a life black ban form (sic) the World Bank.

I call for a delegation from SMEC to the World Bank and Asian Development Bank to dispel any damage this incident in an otherwise clean history of SMEC. The team should be comprised of our highly respected senior managers Geoff Percival, Ids Groenhout and Jack Boniface.

I am writing to the World Bank and Asian Development Bank today to inform them that we have discovered the involvement of Peter Busbridge and Ross Hitt criminal activities under the context of representing SMEC International. Peter Busbridge and Ross Hitt where (sic) in fact not representing SMEC International in these matters and SMEC International does not condone this type of business practice. Peter Busbridge and Ross Hitt have as of today been dismissed from employment with SMEC. SMEC will assist World Bank and Asian Development Bank in there (sic) investigations.

Yours sincerely,

40 It was not in dispute that Mr Evans was not the author of this email. It was a fabrication by its author; that is (as the jury found) the defendant. The jury found that it conveyed the following imputations:

(vi) the sixth publication

41 There are two versions of the matter constituting the sixth publication. This is because, by July 2001, the management of SMEC had had filters installed on the internal email system. The first attempt to circulate the sixth publication fell foul of the filter system; somehow, however, by the second attempt, it appears to have been able to penetrate the filter.

42 In all material respects the two are identical. The first was dated 20 July 2001; the second 25 July 2001. Each was said to have emanated from “SMEC Phantom”, and bears the subject heading “Well – well – well …”. The earlier version contained, in the address line, “[email protected]; [email protected]”. The second version contains no identification of the addressee.

43 The emails were in the following terms:

“Hi All,

I listened intently to the ABC program the other night, and like you it raised a few questions in my mind, Peter Busbridge’s notice to all staff was quite misleading.

The memo relating to financial performance mentioned was from June 2001 not last year as stated by Peter Busbridge. If SMEC’s financial position is so good why haven’t the declared dividends been paid to shareholders.

Regarding the black banned Pradeep Nair. He was black banned by the world bank in April 1999. The email was three or four months after Pradeep Nair being black banned, and discussed his involvement in ten countries/projects. The invoice for his payment was in Feb/March 2000 for about $53,000.

If Peter Busbridge is lying about these basic facts, what else is he lying about? I have always found Peter Busbridge to be an individual of little integrity or honesty, who in SMEC can honestly say the (sic) he has not been mislead (sic) at sometime by him. The directors of SMEC should bring in an independent forensic accountant to follow the paper trail. I would also get some assurance if all the SMEC Holdings directors could sign a statement to the effect that SMEC and Peter Busbridge have had no involvement directly or indirectly in the bribery and corruption of government officials in winning projects.

As stated in the program it is easy for marketing executives, such as Peter Busbridge and Ross Hitt to be drawn into bribery and corruption. The best course of action for the company involve (sic) is to dismiss those individuals involved quickly. I for one am very interested in what ADB and the world bank have to say about this. As far as I can figure it from the evidence SMEC through Peter Busbridge was employing the services of a black banned person and should also be black banned for doing so.

One last comment it was obvious that the email didn’t come from N Evans, he has nether (sic) the independence or guts to take such a stand.

44 The second version had an additional final line in the following terms:

“p.s. what else do they know?”

45 The jury found that this publication conveyed the following defamatory imputations:

(vii) the seventh publication

46 The seventh publication was dated 1 August 2001 and identified its source as “anonymous”, giving an email address. It was directed to Mr Busbridge, and identified its subject matter as “Peter Busbridge, I’ve got some advice for you”. It was in the following terms:

“An anonymous visitor stopped by Advicebox.com and had the following comments for you:

Hey Peter Busbridge,

There is enough documentation around in the right hands to send you down for a long time. Your only alternative is to resign.

(viii) the eighth publication

47 As indicated earlier, the eighth publication is out of chronological sequence. It was, in fact, published on 15 February 2001, but the plaintiffs did not become aware of it until after the meeting with officers of the World Bank. At that meeting the content of the communication was read to them, but they were not given a copy. Subsequently, they obtained a copy of the text of the message, but without the information identifying the sender, the addressee, or the subject line. However, the jury’s verdict show that it was published by the defendant and was in the following terms:

“In early 2000 Mr Peter Busbridge authorised Mr S A Jafar, Bangladesh Country Manager, to pay a bribe of US$57,000 to be short listed for a Training Education and Health project. Mr Jack Boniface former CEO and Chairman of SMEC must be aware of the practice and would be the best person to question regarding these allegations. Mr Manfred Claasz former General Manager Corporate knows how the payments are covered up and accounted for. Allegations were made to the company that illegal project payments by Ross Hitt and Geoff Percivil (sic), and covered up by Peter Busbridge was made at the end of last year. These allegations where (sic) internally investigated by Mr Robert Scott, an external director, and found to be groundless. I believe that Mr Scott is aware of the bribery carried out by SMEC and is involved in the cover-up. I can no longer work for a company that engages in such practices and urge you to expedite your investigation into these allegations.”

48 The jury found that this publication conveyed the following defamatory imputations:

49 Having regard to the defences pleaded, it is convenient here to note the extent of the various publications, and the identity of the various recipients.

Circulation/Distribution

50 I have identified above the addressees of each of the emails. Although the recipients were not entirely co-extensive in each case, in general, (with two exceptions) the nominated addressees were internal SMEC mailing lists. This meant that most recipients were employees of SMEC. However the circulation of these emails exposed an anomaly within SMEC’s systems, in that former employees who had left SMEC’s employment were not removed from the lists and could potentially have gained access to SMEC’s internal email. Further, on one occasion an employee of a competitor, who was working with SMEC on a joint project, was a member of one of the lists. The “corporate.finance” list contained about 20 names; the “EveryAusSite” had about 287 active staff, but also about 100 former employees, as well as about 3 clients.

51 The two exceptions were the first and the seventh publications. The first was addressed only to Mr Bultitude; both parts of it were then drawn to the attention of the SMEC Board. Mr Busbridge gave evidence that he considered it his duty, as a director, to disclose the seventh publication to the Board, and did so. Regrettably, the significance of these circumstances appears to have been overlooked, and no argument was directed to the consequences of what must be seen as minimal (or, in the case of the seventh email, possibly non-existent) publication. This was not taken up during the course of the hearing. It raises some issues, at least with respect to the quantification of damages.

The evidence in the trial

52 The evidence in the trial was in a relatively narrow compass. Oral evidence was given by each of the individual plaintiffs, and by Mr Evans, who is also a director of SMEC and managing director of one of its associated companies. All were credible witnesses. No real attack was made upon the credibility of any witness, although, on occasions, it was put that one or other was exaggerating the extent of hurt and distress suffered; and an attempt was made to call in question the motives of the three individual plaintiffs in bringing the proceedings. These attempts were unsuccessful. I accept all witnesses as truthful and I accept in totality their evidence.

53 Each attested to the good reputation of SMEC, and of the individual plaintiffs; and each plaintiff gave evidence of the stress, anxiety and concern he felt on becoming aware of the publications. I will refer to this evidence in more detail below.

54 Each plaintiff affirmed that all imputations against him were false. Certain accusations contained in various of the publications were also denied.

55 It will be convenient to refer in more detail to the evidence in dealing with the specific defences to the specific publications.

56 It is convenient here to note also one of the documentary exhibits. Extensive interrogatories were administered to the defendant. He gave a single global answer to all which was relevantly in the following terms:

“1. … the Defendant does not admit publishing such matters and therefore he gave no consideration as to the possibility of the matters complained of conveying all or any of the imputations found by the jury. The Defendant did not intend the matters complained of to bear all or any of the imputations. He did not hold any belief in their truth or falsity and did not hold any opinions in the form of the imputations. The Defendant did not intend and did not convey any imputations and had no information in respect thereof. He did not make any enquiries and had no belief as to the accuracy of the statements in the matters complained of. He did not contact or attempt to contact the Plaintiffs.

57 Further, in correspondence between solicitors for the parties the solicitors for the defendant wrote (on 1 November 2007, Ex B):

“The plaintiffs have not brought this claim to recover damages for defamation (because the defendant does not have the means to pay either damages or costs in the amount potentially sought by the plaintiffs) but for ulterior motives of getting back at and embarrassing Mr Jack Boniface, to crush and destroy the defendant and prevent him from assisting his father in litigation with the first plaintiff.

This is evidenced by:

(i) The plaintiffs legal costs would be, on any reasonable estimate, in excess of $800,000.00 to date and, no doubt, would have been paid by the first plaintiff at the expense of its shareholders. The costs and expense are for the personal benefit of the second, third and fourth plaintiffs, who would retain their damages (if paid).

(ii) The plaintiffs are acting recklessly in conducting a trial which may run three to four weeks at a potential cost of $100,000.00 a week, without any chance of recompense from the defendant.

(iii) The plaintiffs made no attempt to recover the costs awarded in their favour by the Court of Appeal in December 2006. Had the plaintiffs taken the usual steps to recover the Court of Appeal costs, the defendant would most probably have been forced into bankruptcy. The plaintiffs have not taken this course of recovering costs and resulting in the probable bankruptcy of the defendant because the shareholders of SMEC would protest about funding a defamation trial costing hundreds of thousands of dollars against a potential bankrupt.

(iv) The second, third and fourth plaintiffs have no real upset about the publications or imputations and their reputations have not been adversely affected.

The pleaded defences

58 By reason of the dates of the publication, the proceedings are governed by the Defamation Act 1974. Three defences were pleaded and argued. They were:

(i) that each imputation was published under qualified privilege at common law. (In correspondence the defendant’s solicitors confirmed that they did not rely on the defence of qualified privilege provided by s 22 of the Defamation Act .);

(ii) that each imputation was published in circumstances such that the plaintiffs were not likely to suffer harm (as provided by s 13 of the Defamation Act );

Defamation Act

59 I will deal with the legal principles, and the relevant facts and circumstances of each.

(i) Qualified privilege

60 The starting point for a consideration of the principles applicable to a defence of qualified privilege at common law is the frequently cited passage from Toogood v Spyring (1834) 1 CM & R 181; 149 ER 1044 (described by the editors of Gatley on Libel and Slander (10th ed, 2004) as “canonical”). Parke B there 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.”

Bashford v Information Australia (Newsletters) Pty Ltd

61 Essential to the defence is the existence of an interest in the recipient in receiving a communication on the relevant subject matter, and a duty on the part of the communicator or publisher to make that communication to the recipient. In Adam v Ward [1917] AC 309 Lord Atkinson encapsulated, in the following terms, the circumstances in which an otherwise defamatory publication would receive the benefit of the defence:

“A privileged occasion is … 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.”

62 That proposition was endorsed, as was the extract from Toogood v Spyring, in the joint judgment of Gleeson CJ, Hayne and Heydon JJ in Bashford. In that case, the judges forming the majority focussed upon the existence of “that reciprocity of duty or interest between maker and recipient”. When the approach of the majority is contrasted with the dissenting approach of McHugh J, it can be seen that a fairly liberal approach must be taken to the determination of that question. Two things are clear: inaccuracy in a statement of fact, provided the statement is made bona fide, does not destroy the privilege: Bashford para 58; and the defendant must act bona fide in making the communication.

63 I have said enough about the principles concerning the determination of a plea of qualified privilege at common law. I turn now to the circumstances advanced on behalf of the defendant as entitling him to the benefit of the defence.

64 The principal contention put on his behalf was that all emails were sent predominantly to employees or former employees of SMEC. Included in this was the argument that each person so identified had an interest in the general subject matter of the management and administration of SMEC. This may be so in a general sense. It is not so in the sense in which the term “interest” is used in relation to a consideration of the defence of qualified privilege. It is not sufficient that the recipient be “interested” in a communication merely as a matter of gossip or curiosity; that person must have “an interest” in the communication as a matter of substance apart from its mere quality as news: Rumsey v Webb (1842) 1 Carr & M 104 at 105; London Association of Greenlands Ltd [1916] 2 AC 15; R v Rule [1937] 2 KB 375, cited in Gatley, para 14.13; Howe v Lees (1910) 11 CLR 361.

65 With one exception, I am unable to be satisfied that any recipient has been shown to have had an interest of the relevant kind. Certainly, if any of the imputations was true, it would be a matter of concern to employees of SMEC; and, equally certainly, if, for example, the imputations concerning corruption on the part of senior SMEC executives were true, it would have been the defendant’s duty to communicate this information to relevant authorities. But those relevant authorities are not the workforce of SMEC; those individuals had no relevant interest (other than, perhaps as matters of gossip or curiosity) in receiving information of that kind; it has not been shown that any of them would have been in any position to act in any meaningful way upon the information. In the circumstances of this case, having regard to the nature of the imputations, this is one way of testing the issue of duty and interest.

66 The exception to which I referred is the first publication. The sole recipient of that email was Mr Bultitude. In my opinion, he falls into the category of a person having an interest of the appropriate kind, in receiving information of the sort that was contained in the email – if that information were communicated bona fide.

67 For this reason alone, I would reject this defence in respect of all publications except the first. But there are additional reasons why it must be rejected and these apply also to the first publication. Essential to the defence is that the defendant acted bona fide in making any communication under consideration. He has not given any evidence to establish his bona fides. To the extent that there is any evidence at all of his state of mind, it is contained in the global answer given to all interrogatories administered on behalf of the plaintiffs. This makes abundantly and explicitly clear that the defendant did not turn his mind to the question of the accuracy of the very serious allegations that he was making. He has not been shown to have acted bona fide or honestly. The first and fifth publications were blatant fabrications by the defendant. For this reason, also, the defence must be rejected.

68 Finally, the defence is defeated on proof that the defendant was actuated, in publishing the imputations, by malice. Again, the defendant has given no evidence in relation to this question. However, the history which I have recounted above leaves open a strong inference that he was acting out of revenge – revenge for his own disciplining as a consequence of his wrongful use of SMEC computers; and out of revenge for his father’s loss of two positions, one as a Chairman of Directors, and as Chief Executive Officer. In the circumstances I feel comfortable in drawing the inference that this was the defendant’s motivation.

69 Accordingly, in respect of each imputation, I reject the defence of qualified privilege.

(ii) Comment

70 The relevant defence of comment is provided for by Pt 3 Div 7 of the Defamation Act. Essentially, the statutory enactment of the defence (as was the case in respect of the preceding common law defence of fair comment) attempts to strike a balance between the important principle of freedom of speech and the equally important protection of reputation against unwarranted vilification. There are two sides to freedom of speech: one is the freedom of individuals to express views on matters of general or public interest; the other is the right of those who wish to do so to receive or have access to those views.

71 By s 30(3) of the Defamation Act the defence of comment so provided is available if but only if:

72 By s 31 of the Defamation Act the defence of comment is not available unless the comment relates to a matter of public interest. By s 32, and subject to the matters already mentioned, the defence of comment is available where the comment is the comment of the defendant and is defeated only where it is shown that, at the time when the comment was made, it did not represent the opinion of the defendant.

73 The defence has most recently been explained by the Court of Appeal in John Fairfax Publication Pty Ltd v O’Shane [2005] NSWCA 164. There Giles JA said:

“16 At common law the defendant has a defence of fair comment if the words complained of are comment as distinct from a statement of fact, there is a basis for the comment contained or referred to in the published matter, and the opinion is expressed on a matter of public interest … There must be the basis for the comment in or referred to in the published matter, but it can be extreme and strongly expressed. Once the basis for the comment has been identified, the question is whether a fair-minded person, even if holding a strong, obstinate or prejudiced view, could have made it.”

74 “Expression of opinion” has been given a somewhat extended meaning. It includes:

“something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation etc”

Clarke v Norton

Gatley

O’Shane

75 Whether what is published is held to be a statement of fact or expression of opinion is to be determined by reference to the defamatory imputations found to have been conveyed; the focus is upon the imputations, and not upon the language used in the publication of which complaint is made.

76 The distinction drawn between “comment” (or the expression of an opinion) and a “statement of fact” is deceptively simple. It is, in reality, not always easy to draw. Giles JA illustrated the distinction in para [28] of O’Shane. His Honour pointed out that an assertion that “X murdered his father” (in those terms) is likely to be regarded as a statement of fact; but may, where relevant facts are set out, be perceived as a conclusion or inference based upon those facts. In those circumstances the “assertion” may more accurately be characterised as the expression of an opinion. This shows that, although the characterisation as fact or opinion is to be made by reference to the imputation itself, the context from which it is drawn remains relevant and important.

77 For present purposes it is necessary to emphasise that, where the imputation is characterised, not as a statement of fact, but as an expression of opinion, for the defence to be made out it is necessary that the basis for the opinion (or conclusion or observation) expressed be identified or identifiable from within the publication itself. This may be achieved explicitly by the express statement of asserted facts upon which the opinion is based or by incorporation or reference to some external statement of the asserted facts. Essentially, this requirement exists to enable the recipient of the opinion to make a judgment as to its fairness or validity. If the foundational facts upon which the opinion is based are not ascertainable by the recipient, then he or she has no way of evaluating the opinion. Given that (as Giles JA pointed out) opinions may be expressed forcefully, trenchantly and even aggressively, and detrimentally to the reputation of the subject matter, it is an important component of the fairness of the balancing exercise that underlies the defence that the recipient be in a position to make that assessment. It is a fundamental requirement that the asserted facts upon which the opinion is based be accurately stated: see s 30(1).

78 In the present proceedings the defence of comment has been pleaded across the board, that is, to every imputation found by the jury to have been conveyed of the various plaintiffs. It is therefore necessary to undertake the exercise of determining whether, in its context, any imputation is properly characterised as a comment or expression of opinion; and, if so, whether it meets the test prescribed by s 30(3)(b). The defendant relies only upon sub-s (3)(b); that is, he asserts that the material upon which the comment (as contained in the imputations) is to some extent proper material for comment. It is also necessary for him to establish that the comment represents an opinion that might reasonably be based upon that material to the extent to which it is proper material for comment.

79 The exercise involves also a determination of the material set out or referred to in each publication and the extent (if any) to which that material is proper material for comment.

80 “Proper material for comment” is defined in s 30(1) as:

“… material which, if [Division 7] had not been enacted, would, by reason that it consists of statements of fact … or for some other reason, be material on which comment might be based for the purposes of the defence or exclusion of liability in cases of fair comment on a matter of public interest.”

81 In other words, the sub-section preserves, to some extent, the common law in relation to the defence of fair comment.

82 To recap: in order to make out a defence under s 30(3)(b) to any of the imputations, the defendant must surmount three hurdles:

· he must prove that the imputation is properly characterised as the expression of an opinion, as explained in Clarke v Norton;

· he must prove that the opinion expressed is based upon facts accurately stated, either in the publication from which the imputation is drawn, or by clear reference to such facts stated elsewhere (and thus ascertainable by the recipient);

· he must show that the opinion is one that might reasonably be based upon those facts.

83 With those preliminary remarks I turn to each of the publications and the imputations held to have been conveyed.

The first publication

84 Two plaintiffs (Mr Busbridge and Mr Hitt) were held to have been defamed by the first publication; three identical imputations were conveyed concerning each. They were:

(a) that each plotted with the other behind the back of Mr Bultitude to get rid of Mr Bultitude;

(b) that each was a devious man in that he was planning to dismiss Mr Bultitude as soon as he obtained control;

85 On its face each of these imputations represents an assertion of fact.

86 That, however, is not sufficient; it is necessary to determine whether, in its context, any of the imputations is properly to be seen as a conclusion, or an opinion, drawn from material identified in the publication.

87 As set out above, the first publication is in two parts, consisting of two separate emails, sent, respectively, on 24 November 2000 and 30 November 2000. Only one assertion of fact is to be found in each: that Mr Busbridge had sent an email in the terms extracted – stating the intention of getting rid of Mr Bultitude, putting pressure on him to resign, and alleging that he had been rorting the system for years. That assertion was patently untrue, as is now common ground.

88 Contrary to the argument put on behalf of the defendant, the assertions of fact made by the author of the email were not, for example, that “JB” (Jack Boniface) would be gone by January or February, or that it would be easy to get rid of Mr Bultitude; those were assertions falsely attributed to an email said to have been sent by Mr Busbridge. The only relevant statement of fact contained in the emails the subject matter of the proceedings was that Mr Busbridge had made representations to that effect in an email to Mr Hitt. This cannot conceivably be the basis for the conclusions said to have been set out in the various imputations. Each imputation is in reality, as it appears to be, a statement of fact. The defence of comment fails at the first hurdle.

89 In any event, the patent falsity of the assertion makes it plain that it could not be proper material for comment; because the assertion was nothing but a fabrication, this was plainly known to the defendant, who has been found to have published the email.

90 In respect of the first publication the defence of comment wholly fails.

The second publication

91 The second publication conveyed imputations in substantially similar terms against each of the individual plaintiffs, Messrs Busbridge, Hitt and Percival, to the effect that each was knowingly involved in the illegal transfer of project payments; each covered up the illegal transfer of project payments; and each engaged in conduct that warranted investigation by the Australian Securities and Investments Commission (ASIC). In addition, the publication conveyed an imputation of Mr Busbridge that he knowingly covered up fraud committed by Messrs Hitt and Percival.

92 As was the case in respect of the first publication, each imputation is, on its face, framed in terms strongly suggestive of a statement of fact. However, it is necessary again to examine the content of the publication in order to determine that that is the correct construction. In the case of all imputations other than the last in respect of each plaintiff, the prima facie construction is the correct one. The email also contains the bald statement that illegal transfers of project payments were made by Messrs Hitt and Percival, and covered up by Mr Busbridge. This is not a publication which states facts from which the conclusion contained in the imputations is drawn. Accordingly, in respect of the first three imputations of Mr Busbridge and the first two of Messrs Hitt and Percival, the defence of comment must fail for this reason.

93 The final imputation, that the conduct of each plaintiff warranted investigation by ASIC, is in a different category. It is capable of being read, and, I have concluded, is properly read, as a statement of opinion. That does little to avail the defendant. The expressed opinion clearly purports to be based upon the preceding statement of fact, that illegal transfers of project payments were made and covered up. This assertion was false. The comment contained in these imputations is, therefore, not, to any extent, based upon proper material for comment. The defence of comment fails also in relation to these imputations.

94 So far as the second publication is concerned, the defence of comment fails.

The third publication

95 The third publication also conveyed imputations that defamed Messrs Busbridge, Hitt and Percival. The imputations conveyed were, in each case, identical. They were (i) that each plaintiff engaged in illegal dealings; (ii) that the actions of each plaintiff in so engaging was substantiated by evidence; and (iii) that the conduct of each plaintiff in so doing was so serious as to warrant investigation by ASIC.

96 On their face, the first and second imputations are statements of fact; there is no colour of opinion to be identified. It is therefore necessary to look to the content of the publication in order to determine whether, properly construed, either could be perceived as a conclusion or observation based upon facts there stated. There is nothing of that character in the publication. It is a short publication, containing, essentially, an assertion of fact that each of the plaintiffs had engaged in illegal dealings, and that evidence to that effect existed. There are no facts stated, or referred to, that would permit either of these imputations to be seen as a conclusion or observation. The defence of comment, in respect of each of these imputations, fails at the first hurdle.

97 In each case, the third imputation is capable of being perceived as an expression of opinion, and I would so construe it. However, each plaintiff gave evidence denying “illegal dealings” and no challenge was made to this evidence. I accept the evidence. The comment is therefore not based upon an accurate assertion of facts or on proper material for comment. In respect of these imputations the defence of comment fails at the second hurdle.

The fourth publication

98 The fourth publication conveyed three imputations that defamed SMEC, and four imputations that defamed Mr Busbridge. Because the imputations are framed quite differently it is necessary to deal with them individually.

99 The first imputation that defamed SMEC was that it was probably going to be liquidated. That, on its face, is a statement of fact. However, it is also capable, in the appropriate context, of expressing a conclusion from stated facts.

100 The email which is the defamatory publication is not easy to interpret. However, it does contain a number of assertions of purported fact:

· that a valuation of SMEC for $9.6 million had been received from Ernst & Young;

· that an offer to purchase 90 percent of SMEC for more than $14 million had been made;

· that that offer had been rejected by a negotiation committee of which Mr Busbridge was a member;

· that the valuation had resulted in a diminution of the value of SMEC in the amount of $4.4 million;

· that a dividend of 10 cents per share had been declared, but that, by reason of the diminution in value, would probably never be paid;

· that SMEC’s bank may cancel its credit facilities.

101 I have come to the view that the imputation, properly construed, was a conclusion based upon the assertions contained in the email. It therefore qualifies as an expression of opinion, or comment.

102 It is therefore necessary to consider whether it was based upon accurately stated facts.

103 Mr Busbridge was cross-examined in this respect. He agreed that Ernst & Young had valued SMEC at $9.6 million. He did not agree that an offer to purchase 90 percent of SMEC for more than $14 million was made and rejected. His evidence was that a “non binding indicative offer” had been made, but that no offer in a form capable of acceptance had ever been made. He was not able to comment on the assertion that the value of SMEC had been diminished by $4.4 million (because he said that he did not understand what the author of the email was saying).

104 He accepted that, if the premise that SMEC’s bank may cancel its credit facilities were correct, that would probably result in SMEC’s liquidation. However, he was not asked to, and did not, accept that premise. In other words, while he accepted the logic of the proposition, he did not expressly accept (or expressly reject) the premise.

105 There is an absence of apparent logic in the assertions made in the email. The author asserted that the valuation by Ernst & Young of SMEC at $9.6 million resulted in the diminution in SMEC’s value by $4.4 million. Simple mathematics shows that the $4.4 million results from the deduction of $9.6 million from $14 million said to have been offered – it would seem that what the author intended to say was that, by rejecting the offer of $14 million, the committee had caused a loss to shareholders of that dimension, rather than that the valuation by Ernst & Young had that effect.

106 In any event the assertion that SMEC’s bank may cancel credit facilities is entirely unsupported. I am satisfied that the defendant has failed to establish the truth of that proposition. It is on that basis, and only on that basis, that the defendant went on to express the view that SMEC would probably be liquidated. Accordingly, the defence of comment in respect of the first imputation defamatory of SMEC fails at the second hurdle.

107 A similar position applies in relation to the second imputation. The author appears to see a connection between the asserted rejection of an offer of $14 million, and a valuation of considerably less than that. He does not explain why, on a valuation of SMEC at $9.6 million, a declared dividend would not be paid. Although, as was the case in respect of the first imputation, I would accept that the second imputation is intended to represent the conclusion of the author of the email drawn from facts therein stated, the defendant has failed to prove that those facts were accurately stated. The defence of comment therefore also fails in respect of this imputation.

108 The third imputation defamatory of SMEC is in a different category. It is a statement of fact; there is nothing in the email to suggest that it represents the author’s conclusion from facts therein stated. There is nothing to support the assertion that SMEC was having “substantial problems” with its bank. Accordingly, the defence of comment fails in respect of this imputation at the first hurdle.

109 The first imputation defamatory of Mr Busbridge is in two parts; it is that, as a director of SMEC, he put his personal interests above his responsibility to shareholders by rejecting the offer to purchase; and that the reality was that Mr Busbridge knew it was in the best interests of shareholders that the offer be accepted.

110 The first part, in my opinion, clearly comes into the category of comment; the second part less readily so. On balance, I am prepared to treat the whole of the imputation as the expression of a personal opinion based upon facts asserted in the publication. Essential to the opinion is the factual assertion that the purchase offer had been rejected; for reasons I have set out above, that assertion has not been, and cannot be shown to be true. For that reason, the defence of comment in relation to this imputation fails.

111 The second imputation is, I am satisfied, a statement of fact. It emerges from the opening line of the email: “What Peter and Andy don’t want you to know”. There is nothing that would warrant treating this imputation as anything other than a statement of fact; it is not, and cannot reasonably be construed as, a conclusion drawn from other material contained in the publication. The defence of comment fails in respect of this imputation.

112 The third imputation is, essentially, that Mr Busbridge “was a hopeless director of SMEC”; this, it was said, was because of his rejection of the purchase offer, making it probable that SMEC would be liquidated.

113 To describe somebody as “a hopeless director” is certainly, in my opinion, capable of being read as an expression of opinion, and is most readily seen in that light. I therefore proceed on the basis that this imputation is an expression of opinion as distinct from a statement of fact. However, for reasons already given, the defence of comment cannot succeed because the opinion is not based upon an accurate statement of facts. The defence fails in respect of this imputation.

114 The same applies to the final imputation, that Mr Busbridge “was a grossly incompetent director of SMEC”; this because he knew the offer to purchase was well above the valuation of the company and yet he rejected the offer. Although I accept that to describe a person as “a grossly incompetent director” is an expression of an opinion, in this case that opinion is not based upon facts accurately stated. The defence of comment fails in respect of this imputation.

The fifth publication

115 The fifth publication conveyed two imputations defamatory of SMEC; six imputations defamatory of Mr Busbridge; and four imputations defamatory of Mr Hitt. It appeared over the signature of Neil Evans, alternate director. It was common ground that Mr Evans was not responsible for the email, and the jury found that it was in fact the defendant who was responsible.

116 The email contained the following (relevant) assertions of fact:

· that an ABC investigative reporter published a report concerning SMEC’s activities;

· that, in that report, the reporter revealed criminal activities on the part of Messrs Busbridge and Hitt;

· that, in the preceding week, Mr Busbridge had travelled to Kazakhstan;

· that the author assumed that this was for the purpose of covering up his (criminal) activities;

· that, for the purpose of that cover up, Mr Busbridge used SMEC funds;

· that the asserted criminal activities of Messrs Busbridge and Hitt would lead to SMEC being black banned from all future work by the World Bank and the Asian Development Bank;

· that Mr Busbridge had been undertaking business activities with Pradeep Nair;

· that Mr Nair was the subject of a “life black ban” from the World Bank;

· that Mr Busbridge had been dismissed from his employment with SMEC;

· that Mr Hitt had been dismissed from his employment with SMEC.

117 The first imputation defamatory of SMEC was that it would be black banned from all future work with the World Bank and Asian Development Bank because of the criminal activities attributed to Messrs Busbridge and Hitt. This is, prima facie, a statement of fact. However, in its context, it is appropriately to be seen as a conclusion drawn from the supposedly factual assertions of criminal activities on the part of Messrs Busbridge and Hitt. Accordingly, I accept that the first imputation qualifies as a conclusion, or expression of opinion as distinct from a statement of fact. But, as the comment is not based upon facts accurately stated it fails at the second hurdle. I reject the defence of comment in relation to the first imputation defamatory of SMEC.

118 The second imputation more readily comes into the category of comment; it is an expression of opinion that SMEC ought to be investigated by federal police because of asserted criminal activities by Messrs Busbridge and Hitt. However, as before, the imputation is not based upon facts accurately stated and the defence fails at the second hurdle.

119 The final imputation defamatory of both Mr Busbridge and Mr Hitt was that each had engaged in criminal activities under the context of representing SMEC. This presents as a statement of fact. That perception is not altered by examination of the contents of the publication. There is nothing in the publication that identifies or refers to any activity on the part of either man which could give rise to a conclusion that either had engaged in any criminal activities. Examination of the context does not convert what is, on its face, a statement of fact, into the expression of an opinion. Accordingly, the defence of comment pleaded in respect of these imputations fails. I pass, for the moment, over the second and third imputations that defamed Mr Busbridge. The fourth imputation in his case, and the second imputation in Mr Hitt’s case, are in identical terms, that is that criminal activities on their part under the context of representing SMEC should be investigated by the federal police, the World Bank and the Asian Development Bank. Consistently with the conclusions I have earlier reached, I accept that an assertion that particular activities ought to be so investigated is properly characterised as the expression of opinion. I have set out above the asserted facts upon which the opinion purports to be based.

120 None of these assertions was true, except perhaps that Mr Busbridge had travelled to Kazakhstan at the relevant time. But it was not true that he did do so in an attempt to cover up any criminal activities or that he had been engaged in criminal activities. Accordingly, in respect of each of these imputations the defence of comment fails at the second hurdle.

121 The fifth imputation in relation to Mr Busbridge, and the third imputation in relation to Mr Hitt, is that each had been sacked from his employment from SMEC. This is a statement of (asserted) fact; it does not qualify as comment. In any event it is and was quite untrue. The defence of comment fails in respect of these imputations.

122 The sixth imputation in respect of Mr Busbridge, and the fourth imputation in respect of Mr Hitt, are that each had lied by claiming to represent SMEC. These are clear statements of fact. They are not translated into conclusions or expressions of opinion by reference to any of the content of the publication. The defence of comment fails in relation to each.

123 The second and third imputations in respect of Mr Busbridge are that he went to Kazakhstan to cover up his criminal activities, and that he used SMEC funds for the same purpose. Each is an assertion of fact; neither qualifies as comment. Each is false and the defence could not pass the second hurdle.

124 In respect of the fifth publication the defence of comment wholly fails.

The sixth publication

125 The sixth publication conveyed three imputations defamatory of SMEC, seven defamatory of Mr Busbridge, and two defamatory of Mr Hitt.

126 The first imputation concerning SMEC was that its financial position was so bad that it could not afford to pay declared dividends to shareholders. This derives from a single sentence in the publication which reads as follows:

“If SMEC’s financial position is so good why haven’t the declared dividends been paid to shareholders.”

127 The imputation itself is a clear statement of fact. It does not purport to be a conclusion based upon anything contained in the publication. It does not qualify as comment. The comment defence in respect of this imputation fails.

128 The second imputation in relation to SMEC is that it was going to collapse. That derives from the final sentence in the publication which reads:

“I’m just glad that I don’t own shares in SMEC, when is it all going to collapse.”

129 This also is a clear statement of fact. The other purportedly factual assertions contained in the publication do not give any support to the imputation – that is, there is nothing in the publication that could lead to the view that what appears as a statement of fact is, in reality, a conclusion from stated facts. The defence of comment to this imputation fails.

130 The third imputation concerning SMEC is that it should be black banned by the World Bank and the Asian Development Bank.

131 This imputation has the flavour of an expression of opinion as distinct from a statement of fact. It derives from the following sentence:

“As far as I can figure it from the evidence SMEC through Peter Busbridge was employing the services of a black banned person and should also be black banned for doing so.”

132 I accept that, properly characterised, the imputation is the expression of an opinion. It purports to be based upon the author’s claim that SMEC through Mr Busbridge was employing the services of a black banned person. It is necessary, therefore, to examine the truth of that asserted fact. Mr Busbridge denied, in cross-examination, that he had done so. That denial was unchallenged. The comment was therefore not based upon facts accurately stated.

133 Mr Busbridge was asked about this in the context of cross-examination related to the ABC Background Briefing program. Mr Busbridge acknowledged that there had been an association between SMEC and Mr Nair but said that this terminated upon his being black banned by the World Bank. It was incorrect to say that SMEC was employing the services of a black banned person – what might have been correct was to say that SMEC had employed the services of a person who subsequently became the subject of such a ban. There is a vast difference. The defence of comment to this imputation fails at the second hurdle.

134 The two imputations defamatory of Mr Hitt are substantially similar (if not identical) to two of the imputations defamatory of Mr Busbridge. They are that each of these plaintiffs was involved in bribery and corruption (although the imputation of Mr Busbridge is that he was involved in other bribery and corrupt activities which only he knew about); and that each should be sacked because of his involvement in bribery and corruption.

135 In each case, the imputation containing an assertion of involvement in bribery and corruption is a clear statement of fact. Each derives from the following passages in the publication:

“I would also get some assurance if all the SMEC Holdings directors could sign a statement to the effect that SMEC and Peter Busbridge have had no involvement directly or indirectly in the bribery and corruption of government officials in winning projects.

136 There is nothing in this that would lead the reader to the view that the author was drawing a conclusion of involvement in bribery and corruption from other, stated or identified facts. There is nothing that would enable the reader to evaluate the validity of the assertion. In each case, these imputation fails to qualify as comment. The comment defence fails.

137 The second imputation concerning Mr Hitt (which equates to the sixth imputation concerning Mr Busbridge) is that he should be sacked because of his involvement in bribery and corruption. I accept that this conveys the expression of an opinion. The question, therefore, is whether it has been shown to have been based upon facts accurately stated. Both Mr Busbridge and Mr Hitt denied any involvement in bribery or corruption; I accept each denial. In each case the imputation fails at the second hurdle.

138 The remaining imputations concern Mr Busbridge only. They are:

(a) that he engaged in criminal activities in that he was involved directly or indirectly in the bribery and corruption of officials in winning projects;

(b) that he lied in his notice to all staff about SMEC’s financial position;

(c) that he lied in his notice to all staff about Mr Nair;

(d) that he had misled everybody with whom he had contact at SMEC;

139 The first is, like the sixth, an assertion of purported fact. There is nothing in the publication which would give rise to a view that it ought to be construed as a conclusion from stated facts. The defence of comment therefore fails in respect of this imputation. The same applies to imputations (b), (c), (d) and (g). In each case the imputation is purportedly a statement of fact; a reading of the publication does not alter that position. There is nothing in it that would suggest that the imputation ought to be construed as a conclusion or opinion. In each case, accordingly, the defence of comment fails.

The seventh publication

140 The seventh publication defamed Mr Busbridge only and conveyed two imputations defamatory of him. They were:

(a) that he was a criminal who would be sent to gaol for a long time;

141 The first is plainly an assertion of purported fact.

142 Unusually in the present case, examination of the publication gives some basis for the view that the imputation could be construed as a conclusion drawn from stated fact. It derives from the following:

“There is enough documentation around in the right hands to send you down for a long time.”

143 In my opinion this imputation sits on the boundary between statements of fact and expressions of opinion. However, even if I were to accept that it should be construed as an expression of opinion, it is not supported by any proven facts. Indeed, there is insufficient by way of asserted facts in the publication to permit the reader to form an independent view of the validity of the opinion, if such it be. Accordingly, the defence of comment fails in respect of this imputation.

144 The second imputation is, in my view, properly construed as an expression of opinion. However, it also is not based on sufficient asserted facts, and certainly not facts proven to be true. Accordingly the defence also fails in respect of this imputation.

The eighth publication

145 The eighth publication managed to defame all four plaintiffs. The imputations defamatory of SMEC are:

(a) that it arranged for its Bangladesh country manager to pay a bribe of US$57,000 for SMEC to be short listed for a training education and health project;

(b) that SMEC made bribery payments;

(c) that SMEC made illegal project payments;

146 Each of these presents as a statement of fact. That perception is supported by reference to the content of the publication. There is nothing which would suggest that these are conclusions drawn by the author from stated or identified facts. In respect of the imputations against SMEC the defence of comment fails.

147 The same is true of each of four imputations pleaded in (except for one) identical terms in respect of the individual plaintiffs. Each is presented as a statement of fact and there is no basis for taking a different view when regard is had to the content of the publication. Accordingly the defence of comment in respect of each imputation conveyed by the eighth publication fails.

148 That concludes my consideration of the defence of comment. It fails in respect of each imputation arising out of each of the eight publications. It is therefore unnecessary to deal with whether any publication related to a matter of public interest.

Defamation Act, s 13

149 The final defence relied upon on behalf of the defendant is that provided for by s 13 of the Defamation Act. That section is in the following terms:

“ 13 Unlikelihood of harm

150 The submissions advanced in support of this defence were succinct. They were, essentially, that all emails were “poison pen anonymous” communications and that it was unlikely that any recipient would place any trust or weight in them. When pressed about the response of the World Bank to the eighth publication (which is dated 15 February 2001, and is, for reasons earlier given, out of chronological sequence), counsel for the defendant pointed out two things: firstly, that the email was sent and received in February 2001, but the World Bank did not initiate enquiries until June or July of that year; and, secondly, that those enquiries coincided in time with the publication of the ABC broadcast, providing the basis for an inference that the investigation was causally linked to that broadcast rather than the email. Further, SMEC continued to do business with the World Bank.

151 The first part of the argument cannot be accepted. The emails, except for the eighth, were communicated to a closed circle, but a circle which consisted entirely or almost entirely of individuals closely associated with SMEC, whether by employment or some other close relationship. That concentrates the impact of the email. True it is, as was pointed out on behalf of the defendant, no witness was called to give evidence of taking any email seriously, or of thinking less of SMEC or any of the individual plaintiff as a consequence. Nor was there any evidence given by any of the individual plaintiffs of conduct from which such belief may have been inferred.

152 However, it is not possible to put entirely aside the content of the publications. It is to be remembered that they accused SMEC and its directors of illegal conduct of a very serious kind, and of corruption. The accusations were made repeatedly. It is impossible to think that they did not have some impact upon some recipients.

153 I also reject the second argument. While the announcement of the World Bank investigation followed closely upon the broadcast of the ABC programme and it is therefore difficult to disentangle the impact of that publication as distinct from the defendant’s publication, it is not to be overlooked that the email sent by the defendant was sent directly to the World Bank and was quite explicit in its terms; the broadcast by the ABC was more general and there is no evidence that it came to the attention of the World Bank.

154 In any event, s 13 focuses upon the circumstance in which a publication is made. That is to be looked at prospectively, from the perspective available at the time of publication. In considering a s 13 defence it is inappropriate to apply a retrospective test of whether, post publication, any harm was in fact suffered.

155 Except in relation to the seventh publication, I reject the s 13 defence. Although no separate argument was addressed to this proposition, I have come to the view that the s 13 defence succeeds in respect of the seventh publication.

156 Two imputations, each of criminality, were held to have been conveyed of Mr Busbridge by this publication. This publication was published by the defendant only to Mr Busbridge himself. That does not constitute publication for the purposes of the law of defamation: Gatley, para 6.1. It was republished by Mr Busbridge, to the SMEC Board, pursuant to what he perceived to be his duty as a director. There is a discussion of the relevant principles in Gatley at para 6.12. But no argument was directed to this question and it would be inappropriate (especially in the light of the jury verdict and the Court of Appeal decision) to find other than that it had been published.

157 However, it is inconceivable that any harm could have been occasioned to Mr Busbridge’s reputation by the publication by the defendant.

158 With the benefit of hindsight, much the same might be said of the publication of the first emails to Mr Bultitude alone. But, bearing in mind the prospective nature of the exercise, and the malicious nature of the untruth contained in the emails, I am not prepared to find that, at the time of publication, Mr Busbridge was unlikely to suffer harm to his reputation. That he in fact did not (as I will find below) is not material to the consideration of the defence.

Damages

159 On behalf of the defendant a somewhat unusual submission was put as a general proposition in mitigation of damages. It invoked principles of abuse of process stated by the High Court in Williams v Spautz [1992] HCA 34; 174 CLR 509; and by Hunt J (as he then was) in Packer v Meagher [1984] 3 NSWLR 486. In short, the submission was that the proceedings were an abuse of process because they were brought for a purpose other than to vindicate the reputations of the plaintiffs. Vindication of reputation was said by Hunt J in Packer to be “the fundamental purpose of civil defamation proceedings”. A more detailed exposition of the law concerning abuse of process is to be found in Williams, but it is unnecessary to explore that here. The purpose other than vindication which it was contended lies at the heart of these proceedings was an attempt to compromise Mr Jack Boniface and to obtain evidence to use against him in the other litigation in which he and SMEC are engaged. In support of this argument, much was made of the contention (of which there was no evidence) that the defendant would be unlikely to be in a position to meet any award of damages, and the plaintiffs – or SMEC – would be considerably out of pocket as a result of their prosecution of their claims.

160 The evidentiary basis for these assertions is slender. Mr Busbridge acknowledged that he had made little or no enquiry as to the capacity of the defendant to meet any award of damages.

161 In cross-examination Mr Busbridge said:

“We're still waiting for Mr Boniface [the defendant] to admit what he's done, complete and open, everything and he refuses to do that …”

162 He said that if the plaintiffs received “a full, complete disclosure” by the defendant, including an apology, and an admission of his conduct, he (speaking for himself) would be prepared to discontinue the action. He was not able to commit SMEC or the other plaintiffs to the same position.

163 Later, Mr Busbridge said that he believed that the defendant did not act alone in publishing the emails. He believed that Mr Jack Boniface had been involved, and possibly others within SMEC.

164 Mr Percival was asked directly, in cross-examination, why he was bringing the proceedings. He answered:

“I'm bringing these proceedings because of the pain and anxiety that the publication of these matters caused to me personally and the potential damage to the company's reputation, as well as my own reputation, by this kind of matter.”

165 When asked what he hoped to gain from the proceedings he said:

“I want both myself and the company to be vindicated and it to be shown publicly that the information in these matters that we have complained of is not true. It would be nice to have an apology also.”

166 He said that he was personally not looking for monetary compensation but believed that SMEC was so entitled.

167 The evidence is overwhelmingly in favour of the conclusion that the proceedings were brought for the precise purpose for which the law of defamation exists – that is, to vindicate reputations against unfounded allegations of misconduct.

168 In any event, I have difficulty in understanding the proposition that if proceedings are brought for an improper purpose, that bears upon the assessment of damages. Other remedies are appropriate where that is the situation. I reject the proposition.

169 That brings me to a consideration of the reputations of each of the plaintiffs, so far as the evidence allows that assessment to be made; and to the seriousness of the imputations conveyed, the extent of their circulation, and the likely effect upon those reputations.

The first plaintiff – SMEC

170 The appropriate means of awarding damages is to allow a separate sum in respect of all imputations conveyed by each publication – that is, in the case of SMEC, there ought to be four separate awards of damages.

171 There was abundant evidence that SMEC was a functioning, reputable and successful engineering company, doing business in Australia and overseas and with organisations such as the World Bank and the Asian Development Bank. SMEC was defamed by four of the eight publications. Broadly speaking, the imputations escalated in seriousness. The fourth publication conveyed imputations reflecting upon its financial stability; it was circulated to a lengthy list of individuals identified in the addressee line of the email. SMEC was the subject of two defamatory imputations in the fifth publication; the imputations were that it would be black banned because of criminal activities of its directors, and ought to be investigated because of its failure to identify criminal activities of its directors. This also went to an extensive list of recipients.

172 SMEC was the subject of three imputations conveyed by the sixth publication, two of which reflected on its financial position and one of which suggested that it ought to be black banned by the World Bank and the Asian Development Bank. It was defamed by the eighth publication which conveyed four imputations, possibly the most serious of all. These were that it arranged for a bribe to be paid on its behalf to obtain an advantage, that it made bribery payments, that it made illegal project payments and that it deliberately covered up bribery and illegal project payments in its books.

173 This was the email that was sent to and received by the World Bank. Although limited in the extent of its circulation, its impact was calculated to be, and was, intense. Mr Busbridge described the World Bank as “critical” to SMEC’s international business.

174 Tangible evidence of damage for SMEC’s reputation is to be found in the investigation undertaken by the World Bank. In saying this, I recognise the force of the argument put on behalf of the defendant (concerning the temporal coincidence of the publication of the email with the ABC broadcast), with which I have dealt above, in the context of the s 13 defence.

175 I do not discount the possibility that the ABC broadcast may have had some bearing upon the decision of the World Bank to investigate SMEC, but, notwithstanding the timing of the investigation, I think it vastly more likely that the investigation was a response to the email sent by the defendant. That is the obvious inference from what was said to Mr Busbridge by the World Bank representative.

176 There was also evidence of damage to SMEC’s reputation from Mr Evans, who said that staff were “continuously asking questions” and were concerned about SMEC’s long term viability. He also spoke of questions from clients.

Quantification

· the fourth publication

177 The defamatory imputations conveyed by the fourth publication of SMEC related to its financial position. These must have caused considerable damage to its reputation. There was evidence that it did so. Mr Busbridge gave evidence of members of the workforce distancing themselves from management and exhibiting signs of stress and concern. He mentioned two companies, with whom SMEC had had a previous relationship, who refused to continue to work with SMEC. In respect of this publication I propose to award damages in the sum of $75,000.

· the fifth publication

178 The defamatory content of this publication was considerably more serious than the first, asserting that SMEC would be black banned from all future work for the World Bank and the Asian Development Bank because of criminal activities by its directors and that it ought to be investigated by the federal police because of its failure to identify those criminal activities. In respect of this publication I award the sum of $100,000.

· the sixth publication

179 Two of the imputations conveyed by this publication were, again, denigratory of SMEC’s financial position; however they were aggravated by the further assertion that SMEC should be black banned by the World Bank and the Asian Development Bank. In respect of this publication I propose to award the sum of $80,000.

· the eighth publication

180 This publication conveyed the most serious of the imputations and was targeted at the World Bank. The imputations concerned allegations of bribery, illegality, and deliberate concealment of bribery and illegality. There was direct evidence (in the form of the World Bank investigation) of the damage to reputation caused by this publication. This publication attracts an award of damages of $120,000.

The second plaintiff – Mr Busbridge

181 Mr Busbridge was defamed by each of the eight publications. He was plainly a principal target of the author.

182 He gave evidence of his history, background, and career. He is a distinguished engineer, having been identified as one of the 100 most influential members of that profession in Australia in two successive years. Evidence of his reputation was given by Messrs Hitt and Percival and by Mr Evans. Mr Evans described Mr Busbridge as having:

“the highest reputation, a man of great honour … a man who is quite black and white when it comes to his honour … [who] holds the greatest integrity.”

183 Mr Hitt described his reputation as “excellent”, as did Mr Percival. No suggestion to the contrary was made at any part of the proceedings.

184 Mr Busbridge exercised considerable restraint in giving evidence of his reaction to the publications. He said that he felt he was under attack and:

“I felt not very well about this.”

185 As the attack by email escalated he began to feel worse. The anonymity of the source of the attacks intensified his distress.

186 Some corroboration of his reaction was to be found in evidence by Mr Percival who said that he appeared to be angry about the publication of false accusations.

Quantification

· the first publication

187 Three imputations defamatory of Mr Busbridge were held to have been conveyed by the first publication: that he plotted against Mr Bultitude, that he was devious, and that he used pressure and threats to achieve his purpose. These are serious imputations. But in respect of this publication, it is to be recalled that it was published by the defendant only to Mr Bultitude, who took the step of republishing it to other members of the SMEC Board.

188 Although I am bound by the jury verdict, and the Court of Appeal judgment as to publication, I am nevertheless, entitled to take into account the minimal extent of that publication and the identity of the recipient. It is inconceivable that any damage could in fact have been occasioned to Mr Busbridge’s reputation by this publication. It is plain from the evidence of other Board members (as far as the evidence goes, the entirety of those who ultimately received it) that they were aware of the falsity of the content of the emails. I do not propose to award damages in respect of this publication.

· the second publication

189 Four imputations defamatory of Mr Busbridge were conveyed by this imputation – of illegality, of concealing illegality and concealing fraud, and that his conduct warranted investigation by ASIC. These are more serious than the earlier imputations. I propose to award the sum of $80,000 by way of damages.

· the third publication

190 Three imputations, essentially all of illegality and illegal conduct were conveyed by this publication. It also warrants an award of $80,000 by way of damages.

· the fourth publication

191 Four imputations defamatory of Mr Busbridge were conveyed by this publication. They essentially concerned his ethics and competence as a director of SMEC and also of concealment of breaches of his duty. Again, I consider the appropriate award of damages to be $80,000.

· the fifth publication

192 The imputations conveyed of Mr Busbridge by the fifth publication were considerably more serious. He was accused of criminal activities, concealment of criminal activities, using SMEC funds for that purpose, and by warranting investigation by the federal police, the World Bank and the Asian Development Bank; it was said that his employment had been terminated, and that he lied by representing himself as employed by SMEC. These imputations call for an award of damages of $100,000.

· the sixth publication

193 Seven imputations were conveyed by this publication, again of criminality, misleading conduct, lying, bribery and corruption, concealment of information and misleading conduct. These are more serious than the earlier imputations. They call for an award of damages of $110,000.

· the seventh publication

194 I have already held that the s 13 defence succeeds in respect of this publication.

· the eighth publication

195 Four imputations, concerning bribery and concealment of illegal practices and conduct, were conveyed of Mr Busbridge by this publication. They also call for an award of damages in the sum of $110,000.

The third plaintiff – Mr Hitt

196 Mr Hitt was defamed by six of the eight publications.

197 Mr Hitt is also an experienced and successful engineer. He has undertaken business delegations to various overseas countries; he has been requested by the World Bank to present a paper to Japanese consultants in order to assist them to secure and execute work for that organisation (even though this would bring them into competition with SMEC).

198 His reputation was described by Mr Busbridge as:

“Exceptionally good. He has known throughout the international area in all the countries we work in.”

199 He was described by Mr Evans as “an honourable man” who “holds his integrity very high” and one who would never contravene the law in any way. Having described Mr Busbridge’s reputation as “excellent”, Mr Percival said that Mr Hitt’s “was exactly the same. A very good reputation”.

Quantification

· the first publication

200 In many respects the imputations conveyed of him in this publication were in identical or substantially similar terms to those of Mr Busbridge. There is no reason to differentiate between the two in terms of the damage done to their reputations. It is equally inconceivable that Mr Hitt suffered any damage to his reputation by this publication. I do not propose to award damages in respect of this publication.

· the second publication

201 Although Mr Busbridge was defamed by four imputations in this publication, and Mr Hitt by only three, the sting is not distinguishable. I propose to award Mr Hitt the sum of $80,000 in respect of this publication.

· the third publication

202 The imputations conveyed of Mr Busbridge and Mr Hitt are identical. I propose to award Mr Hitt the sum of $80,000.

· the fifth publication

203 There is a slight variation in the nature of the imputations conveyed against Mr Busbridge and Mr Hitt in this publication. Although four of the imputations are virtually identical, there is no accusation of Mr Hitt that he travelled to Kazakhstan, or used SMEC funds for the purpose of concealing his criminal activities. I propose to recognise that by allowing a slightly smaller sum by way of damages. I will award the sum of $90,000 in respect of this publication.

· the sixth publication

204 There is a significant distinction in the imputations conveyed against Mr Busbridge and Mr Hitt in this publication. Where seven defamatory imputations were conveyed of Mr Busbridge, only two were conveyed of Mr Hitt. These were, however, serious – that he was involved in bribery and corruption, and that his employment ought to be terminated for that reason.

205 I propose to recognise the distinction between the two by awarding significantly less to Mr Hitt in respect of this publication. It is necessary, however, to acknowledge the very serious nature of the two imputations conveyed. I propose to award the sum of $90,000.

· the eighth publication

206 There is no discernible difference in the four imputations conveyed of Mr Busbridge and Mr Hitt in this publication. I propose to award damages in an identical amount, $110,000.

The fourth plaintiff – Mr Percival

207 Mr Percival was defamed by three of the eight publications.

208 He is also an experienced and respected engineer. Mr Busbridge said that he had a similar reputation to Mr Hitt, although he was probably even better known. Mr Evans described Mr Percival as:

“… one of life’s gentlemen, a very honest man, often very generous and honest man.”

209 Mr Percival described his concern with respect to the publication of the emails, and said that he had found the proceedings stressful.

Quantification

· the second publication

210 The imputations conveyed of Mr Percival by this publication were in virtually identical terms with those of Mr Hitt. He is entitled to be treated equally with Mr Hitt. I propose to award the sum of $80,000.

· the third publication

· the eighth publication

211 These imputations were in identical terms to those conveyed of Mr Hitt and of are the most serious nature, of illegality, bribery and concealment. I propose to award the sum of $110,000.

Aggravated Damages

212 A claim was made for aggravated damages. However, only the sketchiest of arguments was advanced in support of it. In quantifying the damages as I have, I have taken into account the serious nature of each of the imputations. I do not propose to take further time on this question.

213 The orders I make are:

(i) In respect of the fourth, fifth, sixth and eighth publications respectively: verdict for the first plaintiff in the sums of $75,000, $100,000, $80,000 and $120,000;

(i) In respect of the second, third, fourth, fifth, sixth and eighth publications respectively: verdict for the second plaintiff in the sums of $80,000, $80,000, $80,000, $100,000, $110,000 and $110,000;

(i) In respect of the second, third, fifth, sixth and eighth publications respectively: verdict for the third plaintiff in the sums of $80,000, $80,000, $90,000, $90,000 and $110,000;

(i) In respect of the second, third and eighth publications respectively: verdict for the fourth plaintiff in the sums of $80,000, $80,000 and $110,000;

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Citations

SMEC Holdings Ltd v Boniface [2007] NSWSC 1402

Most Recent Citation

Cavasinni v Camenzuli [2009] NSWDC 159

Cases Citing This Decision

1

Cavasinni v Camenzuli [2009] NSWDC 159

Cases Cited

5

Statutory Material Cited

1

Boniface v SMEC Holdings Limited [2006] NSWCA 351

Cush v Dillon [2011] HCA 30

CITATION:	SMEC Holdings Ltd v Boniface [2007] NSWSC 1402
HEARING DATE(S):	5 November 2007; 6 November 2007; 7 November 2007; 8 November 2007
JUDGMENT DATE :	5 December 2007
JURISDICTION:	Common Law
JUDGMENT OF:	Simpson J
DECISION:	(1) The first plaintiff: (i) In respect of the fourth, fifth, sixth and eighth publications respectively: verdict for the first plaintiff in the sums of $75,000, $100,000, $80,000 and $120,000; (2) The second plaintiff: (i) In respect of the second, third, fourth, fifth, sixth and eighth publications respectively: verdict for the second plaintiff in the sums of $80,000, $80,000, $80,000, $100,000, $110,000 and $110,000; (ii) in respect of the seventh publication: verdict for the defendant; (3) The third plaintiff: (i) In respect of the second, third, fifth, sixth and eighth publications respectively: verdict for the third plaintiff in the sums of $80,000, $80,000, $90,000, $90,000 and $110,000; (4) The fourth plaintiff: (i) In respect of the second, third and eighth publications respectively: verdict for the fourth plaintiff in the sums of $80,000, $80,000 and $110,000; (5) Order that the defendant pay the plaintiff’s costs of the proceedings.
CATCHWORDS:	DEFAMATION – imputations found by jury to have been conveyed – defences of qualified privilege at common law, comment and unlikelihood of harm – circulation/distribution of defamatory publications - QUALIFIED PRIVILEGE – whether recipient “interested” in receiving communication on the relevant subject matter – whether defendant acted bona fide in making communication – COMMENT - whether imputations were an expression of opinion or statement of fact - whether comment was based on proper material for comment - UNLIKELIHOOD OF HARM – s 13 – whether recipient likely to place any trust or weight in communication - DAMAGES – whether proceedings an abuse of process – quantification – relevant considerations – aggravated damages
LEGISLATION CITED:	Defamation Act 1974
CASES CITED:	Adam v Ward [1917] AC 309 Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366 Boniface v SMEC Holdings Ltd [2006] NSWCA 351 Clarke v Norton [1910] VCR 494 Howe v Lees (1910) 11 CLR 361 John Fairfax Publication Pty Ltd v O’Shane [2005] NSWCA 164 London Association of Greenlands Ltd [1916] 2 AC 15 Packer v Meagher [1984] 3 NSWLR 486 R v Rule [1937] 2 KB 375 Rumsey v Webb (1842) 1 Carr & M 104 Toogood v Spyring (1834) 1 CM & R 181; 149 ER 1044 Williams v Spautz [1992] HCA 34; 174 CLR 509
PARTIES:	SMEC Holdings Ltd (First Plaintiff) Peter Busbridge (Second Plaintiff) Ross Hitt (Third Plaintiff) Geoff Percival (Fourth Plaintiff) Glen Boniface (Defendant)
FILE NUMBER(S):	SC 21012 of 2001
COUNSEL:	M J Neil QC/D A Caspersonn (Plaintiffs) C A Evatt/R K M Rasmussen (Defendant)
SOLICITORS:	Baker & McKenzie (Plaintiffs) S Moran & Co (Defendant)