Yunghanns v Colquhoun-Denvers

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2016 01170

PETER NICHOLAS YUNGHANNS	Plaintiff
v
NICHOLAS COLQUHOUN-DENVERS	Defendant

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JUDGE:	T FORREST JA
WHERE HELD:	Melbourne
DATES OF HEARING:	30 April, 1, 2, 3, 4, 7, 8, 9, 10, 11 May, 13, 14, 15, 16, 17, 20, 21, 22, 23, 24 August 2018
DATE OF JUDGMENT:	28 June 2019
CASE MAY BE CITED AS:	Yunghanns v Colquhoun-Denvers
MEDIUM NEUTRAL CITATION:	[2019] VSC 433

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DEFAMATION – Claim – Two emails in November and December 2015 alleged to be defamatory – Imputations – Defendant concede defamatory nature of imputations – Common law truth – Statutory defence of justification – Whether accusations not genuine, authentic or truthful – Plaintiff did not act dishonestly – Qualified privilege made out – Qualified privilege not defeated by malice – Defamation Act 2005 ss 25, 30.

DEFAMATION – Counterclaim – Three emails between November 2015 and May 2016 alleged to be defamatory – Plaintiff denied defamatory nature of imputations – Common law defence of truth established – Statutory defence of justification made out – Defamation Act 2005 s 25.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Houghton QC with Mr B Holmes	Strongman & Crouch
For the Defendant	Mr B McClintock SC with Dr S Baron Levi and Ms J Alderson	Batten Sacks

TABLE OF CONTENTS

1... Introduction.............................................................................................................................. 1

1.1 The impugned emails............................................................................................................ 3

2 .. Legal Principles....................................................................................................................... 13

2.1 Defamation............................................................................................................................. 13
2.2 Defences.................................................................................................................................. 15
2.2.1... Common law truth................................................................................................ 15
2.2.2... Statutory justification............................................................................................ 15
2.2.3... Common law qualified privilege........................................................................ 16
2.2.4... Statutory qualified privilege............................................................................... 17
2.2.5... Malice...................................................................................................................... 19

3 .. Background.............................................................................................................................. 20

4... The Claim................................................................................................................................... 32

4.1 Publication............................................................................................................................. 32
4.2 Imputations............................................................................................................................ 35
4.2.1 The 3 November email............................................................................................ 35
4.2.2 The 30 December email........................................................................................... 37
4.2.3 The imputations are defamatory............................................................................ 39

5... Defence of Truth/Justification.......................................................................................... 39

5.1 Witnesses................................................................................................................................ 42
5.2 Dishonesty.............................................................................................................................. 43
5.3 FIP by-laws accusations....................................................................................................... 44
5.4 Bank accounts........................................................................................................................ 55
5.4.1 PY................................................................................................................................ 62
5.4.2 AJ................................................................................................................................. 63
5.4.3 NC-D........................................................................................................................... 64
5.4.4 RC................................................................................................................................ 65
5.4.5 AT................................................................................................................................ 65
5.4.6 Analysis...................................................................................................................... 67
5.4.7 Conclusion................................................................................................................. 74

5.5 The Taylor Report................................................................................................................. 74
5.5.1 Conclusion................................................................................................................. 80

5.6 Failure to elect B and C country members and fake entries on the website................ 80
5.6.1 PY................................................................................................................................ 85
5.6.2 NC-D........................................................................................................................... 85
5.6.3 Analysis and conclusion.......................................................................................... 86

5.7 Super Nations Tournament................................................................................................. 88
5.7.1 PY................................................................................................................................ 92
5.7.2 NC-D........................................................................................................................... 93
5.7.3 RC................................................................................................................................ 93
5.7.4 Conclusion................................................................................................................. 93

5.8 CEO......................................................................................................................................... 94
5.8.1 PY.............................................................................................................................. 100
5.8.2 NC-D......................................................................................................................... 100
5.8.3 RC.............................................................................................................................. 101
5.8.4 AT.............................................................................................................................. 101
5.8.5 Analysis and conclusion........................................................................................ 102

5.9 Commitments...................................................................................................................... 104
5.9.1 Conclusion............................................................................................................... 105

5.10 FIP 2014 accounts.............................................................................................................. 106
5.10.1 Conclusion............................................................................................................. 111

5.11 FIP 2015 accounts.............................................................................................................. 111
5.11.1 Conclusion............................................................................................................. 112

5.12 Polo Development Fund.................................................................................................. 112
5.12.1 PY............................................................................................................................ 118
5.12.2 NC-D....................................................................................................................... 120
5.12.3 AJ............................................................................................................................. 122
5.12.4 RC............................................................................................................................ 123
5.12.5 AT............................................................................................................................ 123
5.12.6 Was there a binding three year US$600,000 contract between FIP and MPC/Goldin for the creation of a PDF?................................................................................................ 125
5.12.7 Misconduct that warrants PY being declared by FIP as persona non grata 132
5.12.8 Truth/justification conclusion........................................................................... 133

6... Defence of Qualified Privilege........................................................................................ 134

6.1 Common law ‘duty/interest’ qualified privilege.......................................................... 134
6.2 ‘Response to attack’ qualified privilege.......................................................................... 135
6.3 Statutory qualified privilege............................................................................................. 138
6.4 Malice.................................................................................................................................... 139
6.5 Analysis and conclusion.................................................................................................... 142

7... The Counterclaim................................................................................................................. 151

7.1 Publication........................................................................................................................... 151
7.1.1 Are the imputations in the 6 November 2015 email defamatory?.................. 152
7.1.2 Are the imputations in the 22 December 2015 email defamatory?................. 159
7.1.3 Are the imputations in the 30 May 2016 email defamatory?........................... 162

8... Defences to Counterclaim................................................................................................ 165

8.1 Truth/justification.............................................................................................................. 165
8.1.1 Imputation (a) — commercial incompetence..................................................... 166
8.1.2 Imputation (b) — knowing approval of a false report...................................... 167
8.1.3 Imputation (c) — NC-D engaged in duplicitous behaviour designed to protect himself, RC and AT from disclosing their ineptitude......................................................... 168

8.2 Conclusion on truth/justification..................................................................................... 169

9... Conclusion on Claim and Counterclaim.................................................................... 169

Appendix A — Table of References......................................................................................... 171

HIS HONOUR:

1 Introduction

Both Mr Peter Yunghanns (‘PY’)[1] and Mr Nicholas Colquhoun-Denvers (‘NC-D’) have been enthusiastic participants in the sport of polo for many years. Both occupied senior positions in the Federation of International Polo (‘FIP’), the international federation that represents the sport of polo. In 2012, PY was a member of the Executive Committee (‘EC’) of FIP. NC-D was also then a member of the EC, and became the president-elect of FIP. In 2014, he became president of FIP and retains that position.
[1]A full list of the abbreviated names in these reasons is provided at Appendix A of this judgment.

Over time, acrimony developed between PY and certain members of FIP — most notably, Dr Richard Caleel (‘RC’), NC-D’s immediate predecessor as FIP president. The disagreement initially concerned differing views as to the proper administrative processes for FIP’s affairs. PY became frustrated at what he perceived to be a lack of leadership and corporate governance at FIP. The use of deprecatory language, very often overlaid with sarcasm or frank abuse, characterised his correspondence.

Towards the end of 2012, through 2013 and 2014, and into 2015, this correspondence continued. It was largely one-sided. PY had been a significant benefactor to the sport of polo. He had been much respected for his business acumen and generosity towards the sport; nevertheless, he became a highly critical foe of RC and the FIP administration. In December 2014, NC-D inherited the FIP presidency from RC.

On 3 November 2015 and 30 December 2015, NC-D made statements in emails that PY claimed were defamatory of him. Broadly, PY claimed NC-D, as president of FIP, made statements which imputed that PY made false allegations, acted to undermine FIP sponsorships, was dishonest and irresponsible, and was guilty of sufficient misconduct to warrant him being declared persona non grata.

NC-D admitted that these emails contain defamatory imputations and raised the following defences:

(a) statutory defence of justification under s 25 of the Defamation Act 2005 (Vic) (‘the Act’) and the common law defence of truth;

(b) statutory defence of qualified privilege under s 30 of the Act and the common law defence of qualified privilege; and

(c) statutory defence of triviality.[2]

[2]The statutory defence of triviality was pleaded but was not pursued at trial.

In a counterclaim, NC-D alleged he was defamed by PY in three emails published on 6 November 2015, 22 December 2015 and 30 May 2016. NC-D claimed that various statements made in the first two emails carried the broad meanings that he failed to account for US$600,000 that was provided to FIP, engaged in gross financial mismanagement, may have made improper use of the US$600,000, and engaged in fiduciary mismanagement, including perhaps applying funds held by FIP to an improper purpose. The final email is said to repeat these broad allegations and to further allege that NC-D approved reports knowing them to be false, and engaged in duplicitous and misleading behaviour.

PY denied that any of the impugned statements carry defamatory imputations and raised the following defences:

(a) statutory defence of justification[3] and the common law defence of truth;
[3]Defamation Act 2005 (Vic) s 25.

(b) statutory defence of qualified privilege[4] and the common law defence of qualified privilege; and
[4]Ibid s 30.

(c) honest opinion.[5]

PY further submitted that the counterclaim is without merit and no more than a strategic legal contrivance.

[5]This defence was raised in the pleadings but was not pursued at trial.

Thus, five emails generated between 3 November 2015 and 30 May 2016 are alleged to be defamatory. I shall reproduce these emails in chronological order below.[6]
[6]When I reproduce emails or portions of them, I shall reproduce them as written and will include spelling or grammatical errors.

1.1 The impugned emails

On 3 November 2015, NC-D composed the following email:

Dear FIP Members and friends,
For some time now, as many of you will be aware, a former member of FIP’s Executive Committee, Mr. Peter Yunghanns, has been making spurious accusations directed against the administration of FIP and its officers. We deeply regret Mr. Yunghanns’s behaviour in light of his past contributions to FIP and for that reason we have, up until now, tried our best to preserve the confidentiality of the sanctions passed against Mr. Yunghanns on grounds of misconduct by FIP’s Council of Administration ion in 2013 and 2014.
Unfortunately, despite our best intentions, it is no longer possible to maintain silence about this matter as Mr. Yunghanns has now extended his attacks upon FIP to individuals outside of the Federation including our major Chinese sponsor. As such, Mr. Yunghanns’s behaviour is threatening to disrupt the good work done by FIP, its administration and officers and risks alienating our major sponsors.
Accordingly, we feel obliged to inform you of the following facts.
1.FIP’s Council of Administration during its annual meeting in December 2013, in the presence of and with the approval of Past Presidents Marcos Uranga, Glen Holden and Eduardo Huergo — unanimously passed the following resolution:
“Vote of Confidence to Support President Caleel.
It is hereby stated that multiple accusations have been brought against the administration and our president by Mr. Peter Yunghanns and that those accusations have been brought before the Executive Committee and have been reviewed and fully investigated and have been found without merit. The council of administration hereby moves that Dr. Caleel and the administration have acted properly and has the unanimous support of the Council of Administration.
The Council of Administration moves that if Mr. Peter Yunghanns continues to make unfounded accusations or if perceived (by FIP) slanderous remarks of the Leadership of FIP that a request be forwarded to the Australian Federation that he be removed as their delegate.”

2.Despite this, Mr. Yunghanns continued making spurious accusations against FIP and its officers, as a result of which the Australian Polo Federation decided to change its representation in the FIP General Assembly from Mr. Yunghanns to an alternative representative.
3.In view of this and Mr. Yunghann’s continued accusations, FIP’s Council of Administration during its meeting in December 2014, unanimously passed the following resolutions, again, in the presence of and with the approval of the Past Presidents:
“Discipline Discussion — Mr. Peter Yunghanns. Allegations against FIP, Administration, lobbying against FIP officials, degrading letters to our major sponsors result in following motion: Motion to Declare PY “persona non grata” and to inform him that he is not welcome at FIP meetings or events.
Motion that any Ambassadorial position held by PY be revoked.”

This year Mr. Yunghanns, despite no longer being a recognised member of either the Australian Polo Federation or the Federation of International Polo, has not only continued to make serious, unfounded accusations but has added accusations of financial mismanagement concerning a so-called “Polo Development Fund”. Mr. Yunghanns alleged that there was an agreement to establish a US$600,000 “Polo Development Fund” and that the FIP has failed to properly account for the same. As with Mr. Yunghanns past allegations that the current administration have thoroughly investigated these claims against FIP and/or its Officers and found no merit in the accusations. Please see the attached letter from Eduardo Huergo.
It is therefore with regret that the gravity of Mr. Yunghanns’s latest accusation forces us to make this public communication in order to preserve FIP’s and its Officers’ reputation and good name, as well as to protect FIP and its members against the negative effects that Mr. Yunghanns’s false accusation may have on our organisation and sponsors.

We express our sincere hope that these unfounded accusations will stop, and that FIP and all those who work so hard to make it a success will be able to concentrate on the work at hand to the benefit of FIP’s members and the polo playing community around the world.
Sincerely,
President
Nicholas Colquhuon-Denvers

Executive Committee
Albert Marina
John Wright
Richard Caleel
Piero Dillier
Francois Berger

On 6 November 2015, in response to the 3 November email, PY wrote:

Dear Nicholas
Thank you for at last, sending the members a specious and revealing letter detailing your feigned, tongue in cheek concern for confidentiality and using this as an excuse for not acting earlier. You should have placed these matters before the members as they occurred and not wait until your back is against the wall.
As you’ve said before, good and timely communications are important. I may counsel you to practice what you preach. Another important aspect of communications is factual accuracy.
Let me first deal with the Polo Development Fund. For the benefit of all members and for the enlightenment of Officials, I outline the facts regarding the dealing with the Metropolitan Polo Club and the Goldin Group and the sponsorship agreements, which over a 4 year period resulted in over USV$8,000,000 being paid into the polo community.
In mid-2011, Eduardo Huergo and I had a meeting in Tianjin with the Chairman and Executives of Goldin Properties, and discussed the possibility of FIP organising the proposed Snow Polo event to take place in January 2012. Thereafter negotiations were conducted by Asad Jumabhoy and myself on behalf of FIP and resulted in a one year contract being entered into in respect of the 2012 Snow Polo.
Of the sponsorship monies for this event, more than USD$2,000,000 was paid into the polo community, of which USD$500,000 plus expenses were paid to FIP.
This event was considered by the Sponsors to have been a great success and discussions then commenced regarding the possibility of a three year contract being entered into. These negotiations which took place over a period of time and were carried out by Asad and myself on behalf of FIP.
During the course of the negotiations, the Sponsors indicated that they considered the fee of USD$500,000 was somewhat excessive in respect of the work undertaken by FIP, particularly as all expenses incurred by FIP were paid in addition to the fee. In effect the fee was a clear profit.
This was not an unreasonable attitude, particularly if viewed on the principal of quantum meruit.
The Sponsors wished to continue with FIP and the development of polo in Zone D, therefore it was agreed with the Sponsors by Asad Jumabhoy and myself that they would still pay USD$500,000 of which USD$200,000 was to be applied to a Polo Development Fund and the balance of USD$300,000 for FIP’s general purposes. One of the principal uses of the balance was to be to pay the salary of a Chief Executive. This verbal agreement was clearly understood by the Executive during negotiations and prior to entering into the 3 year agreement.
Eduardo’s letter, upon which you rely on Nicholas, is written in his normal diplomatic manner and implies that there was no written agreement regarding the fund, although there is significant documentary evidence of the fund’s existence which supports the verbal agreement.
Nicholas it may come as a surprise to you, to know that in law, a verbal agreement is equally binding on the parties as a written agreement. There are a few exceptions under English law, such as the purchase of land or long-term lease which must be reduced to writing.
Nicholas, there is also an English expression which hopefully you understand and abide by, namely that ‘my word is my bond’. A handshake can be as effective as reams of written words. The effectiveness of the handshake depends on the integrity and trust of the individuals involved.
As far as I am concerned, Asad and I shook hands with the Sponsors on this deal after considerable negotiation and discussion, and advised the Executive accordingly. I consider that a USD$200,000 per annum Polo Development Fund was an extremely worthwhile benefit for FIP to have, to enable it to develop polo, in particular Zone D.
If you believe my mental condition, which both you and the verbose Alberto consider to be impaired and maybe to some extent amnesic, there are other parties you can refer to, as to the veracity of my statements regarding the existence of the fund. Why don’t you contact the Sponsors and you should certainly talk to Asad.
Question – All members are entitled to know how the USD$600,000 FIP was received has been applied and the purpose for which it has been applied and what remains thereof. Maybe a source and application of funds statements should be available to members. Let’s see if you can do a mental somersault and turn this question into a spurious accusation.
Spurious Accusations
You may now realise that to fail to give any response implies confirmation of the veracity of statements made. You state they I have made spurious accusations against the Administration of FIP and its Officers. One definition of Spurious in the Oxford English Dictionary is ‘not true or genuine’.
I have set out a few examples (there are many more) of the statements I have made or questions I have asked regarding FIP’s incompetent and inept administration to which no answers have been received.
In December 2012, FIP agreed to open a bank account with an international bank. 12months later it had not done so. What say you, Nicholas?
FIP failed to take control of its bank account for over 9 months from December 2012. What say you, Nicholas?
FIP’s failing to take control of its bank account resulted in FIP being unable to meet its financial obligations when it fell due. What say you, Nicholas?
At an Executive Committee meeting in Tianjin, Richard and Nicholas with the encouragement of Alex Taylor, Chairman of the CEO selection committee appointed Alex Taylor, who was unemployed as CEO without any due process whatsoever. Upon complaints being received, they decided he would become interim CEO. Whether interim or permanent, no due process of any sort was undertaken. What say you, Nicholas?
It was agreed in December 2012, that a procedure for the election of B&C country members to the Council of Administration was totally inadequate. Nothing despite repeated requests has been done and as a result, Derek Wolsternholme was elected to the Council of Administration without holding any position in any member country. This shambolic situation still exists. This is gross incompetence and an insult to B&C countries. What say you, Nicholas?
The above are not spurious accusations, they are statements or questions to which all members are entitled to an answer.
Nicholas, you state that I have made over a period of 3 years, spurious accusations against FIP and its Officers. To enable the members to understand the mental process, whereby you are able to make this statement, would you please set out at least 6 of these spurious accusations, or more if you wish, which you claim I have made. The members are clearly entitled to know the basis you have for making this non-specific generalisation on numerous occasions.
Nicholas, open your mouth and let the members hear you. I am in the ring and have my jaw stuck out. See if you can land a devastating and telling blow.
Nicholas, I am sorry to cause you so much work, but please for the benefit of all members, kindly produce documentary evidence that supports and enables you to make the statement that I have attacked “our major Chinese sponsor”.
If you can’t produce documentary evidence, you should (sic) the graciousness to withdraw your statement and to apologise to the members for misleading them and making knowingly untruthful remarks, presumably designed to denigrate me. Why would you do that to a person who is has been declared P.N.G. by the pugnacious Alberto.
I have asked a number of questions regarding FIP’s finances to which all members are entitled to a response. Nicholas, a question about financial matters even with the best gymnastic skills in the world cannot be contorted into a spurious accusation. For instance how much money does FIP owe its member countries as a result of competitions which FIP organised up to 9 months ago? This is not a spurious accusation. Can the members have an answer.
How much money did FIP make or lose on the World Cup in Chile? This also is not a spurious accusation. You and the Chairman of the Finance Committee may well wish it were.
Let’s now here (sic) from the Chairman of the Finance Committee who by his own proclamation has “no fear and could fight really hard”. Let’s hope his ability to fight hard is not deployed to avoid reality. Can the members have an answer. By any standard of good communication, this significant financial results should have been advised to the members much earlier.
A few other factual comments, which with your mental gymnastics you may be able to morph them into spurious accusations. Let me make them and see how you go.
The Executive Committee reviewing itself and finding itself blameless is of course a nonsense. Did they prepare a report, to whom was it given, it should have been given to all members so they could have the benefit of the wisdom of the Executive Committee.
What did the Executive Committee say regarding its failure to control the organisations bank account and thereby failed FIP in its ability to meet its financial obligations and what did it say about its failure to provide any form of due process regarding the appointment whether permanent or interim of a CEO.
Another small point Nicholas, the motion revoking any ambassadorial position held by me be revoked is completely ineffective since I held no ambassadorial position under the Bylaws. I was appointed a Founding Ambassador under the hand of the Founder and I believe the only person so appointed. This was a grace and favour gesture not recognised under the Bylaws and in my view only the Founder can revoke this appointment. It is a pity, and time consuming that one has to continually deal with incompetents who have no understanding of practice, procedure or the provision of the bylaws. The ability to penetrate the cranial carapace appears to be beyond my ability.
Please as a matter of urgency, advise all members of at least 6 of the spurious accusations I have made against the Administration of FIP and the incompetence of its Officers and also set out your reasons for coming to this conclusion.
Regarding the Polo Development Fund, as far as I am concerned there was an agreed deal in respect of the establishment and a general understanding of the purpose for which it would be used. If my belief is incorrect and Asad Jumabhoy and the Sponsors, tell me it is incorrect, then maybe you and Alberto have correctly diagnosed that my mental condition is failing to the extent that I am hallucinating and my ability to recall facts is greatly diminished.
Please give these requests your urgent attention as I’m sure the members would like to be fully informed prior to the General Assembly.
All the best
Peter Yunghanns

On 22 December 2015, PY composed the following email:

POLO DEVELOPMENT FUND
I have set out previously the negotiations that took place over many months that resulted in the signing of the 3 year agreement in December 2012.
The then President’s first newsletter in 2013 he says “the PDF fund is the result of a generous contribution by FIP Vice President Mr. Pan Sutong”.
The FIP website headed Polo Development Fund it says “Global Polo Development (“GPDF”) was founded in 2013 by FIP Vice President and Ambassador Mr. Pan Sutong with a generous contribution to the FIP as seed money and for the investment returns thereon to provide sustainable resources for the long-term development of polo worldwide”.
The Chief Executive has referred to the Pan Sutong Fund in emails.
I enclose an email from Asad to Eduardo Heurgo and myself which is self-explanatory. How did all these parties who have referred to Polo Development Fund know of the existence of this fund since none of them had any involvement in the negotiations with Mr Pan, or his executives regarding the agreements, the sponsorship and the application then?
I also have sighted an email dated 7 August 2012 from an Executive of Metropolitan which states “inter alia in line with the three year snow polo arrangement, on condition that it is agreed Mr Pan is agreeable to fund $200,000 per year towards the proposed endowment fund for the first 3 years”.
Question — How did all the parties who have referred to the Polo Development Fund know of its existence since none of them had any involvement in the negotiations with Mr Pan or his Executives?
Answer — these parties knew of the Polo Development Fund because in the course of our negotiations and at our meeting with the members of the Executive Committee in December 2012, Asad and I told the members of the agreement we had made with Mr Pan as to the allocation of the sponsorship money of which $200,000 per annum was to go to the Polo Development Fund.
Everyone agrees the fund exists. Are we merely arguing about the quantum?
There is a binding agreement between the donor and done as to its application of the sponsorship funds.
Given the above documentary confirmation of the existence of the fund, Nicholas again demonstrated his remarkable mental gymnastic ability and being supple and malleable turns my statement about the fund into a spurious accusation and unfounded allegation. Nicholas, can you explain your logic?
FAILURE TO ADMINSTER THE FUND
FAILURE TO FULFILL FIDUCIARY DUTIES
I say the polo development fund has not been administered or it has been improperly administered for the following reasons.
During the 3 years of the Fund’s existence, the members have never been given any factual or substantial information about the fund.
The amount of the fund has never been disclosed to members, although FIP acknowledges its existence in 2013.
The interest earned on the funds as disclosed in the FIP website has never been disclosed in the accounts to the members.
The fund has never been included in the accounts of the federation.
No information on the disbursement on the fund over the 3 years has never been provided to the members.
No report has been given to the sponsor as to the administration of the fund.
Nicholas, the above 6 points are self-evident facts. Explain to the members your magical mental logic which enables you to with all the skill of a David Copperfield morph these facts into spurious accusations and unfounded allegations. What type of communication would you describe this? Something towards progress?
The collegiate goodwill that exists between the Executive Committee and the Council of Administration and the large bucket of white wash they keep handy, enables them not to answer questions and to find themselves blameless and all questions based on fact or documentary evidence become spurious accusations and unfounded allegations.
This is a farcical performance worthy of a Gilbert and Sullivan operetta, and whilst relaxing I shall write further on this subject for your consideration, possibly in the New Year.
All the best
Peter

On 30 December 2015, NC-D responded with the following email:

Dear Members,
It is extremely regrettable that the significant progress and improvements achieved over the past three years in the administrative management of FIP is being continually overshadowed by an ongoing persona campaign of half-truths and innuendo by a former member of the FIP Executive Committee. Mr. Peter Yunghanns has not been a member of the Executive Committee since April 2013 and as a result, he has had only a limited access to information about FIP's current situation, much of this second-hand, and as such he is totally misinformed. Whilst the Executive Committee have addressed all the various issues he has raised with both the Council of Administration and all those Members attending this year's General Assembly in Buenos Aires, there are many others on his wide distribution list that were not in attendance and therefore need to be updated to address his ongoing e-mail campaign.
In light of Mr. Yunghanns's continuing vindictive diatribes, all those attending the General Assembly in Buenos Aires earlier this month were specifically given the opportunity at the end of the meeting under “Any Other Business” to air their views on the subject. I, as FIP's President, and FIP's Executive Committee stated that they would remain as long as necessary at the meeting to answer any queries on the matters he has raised. However, not one single delegate opted to stay on to discuss the matter, indicating that FIP's delegates have little or no interest in the half-truths, insinuations in Mr. Yunghanns's e-mails.
Contrary to Mr. Yunghanns's allegations, FIP's Hon. Treasurer and CEO ensured that FIP's accounts were 100% correct at the time of presentation to the General Assembly. Indeed, although not mandatory, FIP's accounts have been audited by Uruguayan CPA Juan Alberto Piazza Bianco prior to presentation and approval by the General Assembly.
The particular objections raised by Mr. Yunghanns are, again, based on his being insufficiently informed, unfortunately, this has not prevented Mr. Yunghanns from continuing to make his unfounded accusations.
The fact is that although FIP was in possession of the “remittance advice” from its Chinese sponsor for the outstanding funds, at the time of the opening of the General Assembly these funds had not actually been physically credited into the FIP account. This was explained in detail and clarified to all those present at the General Assembly. All of this information was freely announced at the Council of Administration meeting the previous day as well as at the General Assembly. It was also clearly included in the notes attached to the annual accounts which were distributed to all attendees. A few days after the General Assembly, on the 14th December, the funds from our Chinese sponsor were indeed received and credited to the FIP account and any outstanding debts in this connection to our Member Nations are in the process of being discharged.
Although all those in both the current as well as the past administration take great personal exception to Mr. Yunghanns's accusations of incompetence, and his misleading and deceptive statements, FIP decided that responding directly would only exacerbate matters. FIP is confident that the officially recorded minutes of all FIP meetings held which are available for inspection by any of our Members, will reflect the due diligence with which the FIP is currently being administered.
Mr. Yunghann's continuing accusations, made after he was asked to step down from FIP's Executive Committee, have led in 2014 to both the Council of Administration and the past Presidents formally and unanimously declaring him “persona non grata”. His regular e-mail assaults on the FIP Administration to all those unfortunate individuals on his wide distribution list (which include some of FIP's major sponsors) are not only extremely divisive to FIP's image both internally and externally and is wholly contrary to but also damaging to the ethos of the Federation.
We would urge any Member who is tired of his tedious and time consuming tirades to opt out by requesting to be removed from his mailing list and kindly copying in the FIP Office.
We attach here the minutes of the 2015 General Assembly and would take this opportunity to wish you a great 2016 polo season.

Finally, the email on 30 May 2016, composed by PY, is reproduced in full below:

The key to progress can be summed up in one word: ‘Communications’!
Nicholas J.A. Colquhoun-Denvers ESQ. August 2015
POLO DEVELOPMENT FUND
In his first Newsletter the President in early 2013 stated “The PDF is a result of the generous contribution by FIP Vice President Pan Sutong”.

THIS STATEMENT IS TRUE.
An earlier FIP website stated inter alia, that the “Global Polo Development Fund (“GPDF”) was founded in 2013 by FIP Vice President and Ambassador Mr. Pan Sutong”.
THIS STATEMENT IS TRUE.
The re-designed FIP website states inter alia, that the “Global Polo Development Fund (“GPDF”) was founded in 2013 by FIP Executive Committee with a generous contribution of FIP Vice President and Ambassador Mr. Pan Sutong”.
THIS STATEMENT IS FALSE.
The statement in the re-designed website is false, the statement in the original website is correct. Please explain to members how the Executive Committee founded the Fund when none of them had any involvement whatsoever in negotiating the agreement with Metropolitan Polo Club, Mr Pan and his Executives to obtain the money for the established of the Polo Development Fund. Was the change made to show how capable the Executive were in founding the Fund and therefore they would not need to make any report as to the amount of the fund and the interest earned thereon or the disbursement, or administration thereof?
My concern is that the fund may founder due to hubris unfortunately prevalent in some members of the Executive.
Despite repeated requests, the members have been given no information as to the amount of the fund, the interest earned thereon, its administration and disbursement therefrom. Nor have they been advised of the additional increments of the fund by way of further generous contributions by the FIP Vice President Pan Sutong.
Who was the person responsible for this “clever” alteration? Was it Alex Taylor, as he has previously produced a false report to the Council of Administration which you and your predecessor knew to be false and you were both advised by a member of the Executive Committee that the report was false? However, had the report relating to FIP’s financial condition been truthful it would have, beyond doubt, demonstrated the complete commercial incompetence of the Chief Executive, your predecessor and yourself in failing to understand that the Executive of any organisation must control the bank account of that organisation and that 9 months after being instructed to open a bank account for FIP, with a major international bank, Alex Taylor had still been unable to carry out the onerous task of opening a bank account.
To avoid disclosing the abject commercial incompetence and ineptitude of yourself, your predecessor and the now Chief Executive, he produced a knowingly false report to the Council of Administration, approved by you and your predecessor.
Alex Taylor reported to the Council of Administration that FIP’s financial condition of being unable to pay its creditors when due, was a result of my having closed the FIP bank account. I had transferred the funds two months prior to closing the account to a subsidiary account which had been promptly opened by a member of the Executive Committee because of Alex Taylor’s inability to do so.
This transfer took some two months before closing the inoperative account. This inability to admit a mistake has continued to run through FIP’s administration because it is clear that you, your predecessor and the Chief Executive have an unshakeable belief in your own infallibility and live in denial of the fact that you are capable of making an error. It may come as a surprise to you Nicholas, that if you make a mistake, the best thing to do it to admit it rather than endeavour to disguise it. As I have quoted Sir Walter Scott to you before “Oh what a tangled web we weave. When first we practise to deceive!”
This duplicitous behaviour was designed to mislead the members as to the real cause of FIP’s financial condition and designed to protect you, your predecessor and the Chief Executive from disclosing your ineptitude, incompetence and complete lack of commercial common sense.
Let the members have some factual communications instead of regurgitating meaningless rhetoric, more appropriate to a rallying call at a political meeting.
Your refusal to respond or rebut factual statements indicate the statements are true, or you do not have the ability to produce facts to rebut them, so you seem to adopt the advice of Fred Legge III, a former polo player and American Agricultural attaché in Canberra some years ago who said “when in doubt, run in circles, yell and shout”. Nicholas, don’t get too giddy.
All the best
Peter Yunghanns

I shall set out the relevant legal principles. I shall then set out the background circumstances that I perceive to be relevant to the impugned emails. It will be necessary to set out in a little detail some of the events and correspondence that gave rise to the acrimony between the litigants. I will then turn to examine the merits of the claim and the counterclaim.

2 Legal Principles
2.1 Defamation

The law of defamation in Victoria is governed by the Act. An individual may sue in respect of anything published about him or her that is defamatory of that person. In order to succeed, the plaintiff needs to establish:

(a) the matter was published about the plaintiff to at least one other person; and

(b) the matter was defamatory of the plaintiff.

In order to determine whether the publication was defamatory of the plaintiff,[7] the affected party must prove:

(a) the publication bore one or more of the imputations (or permissible variants of them) alleged; and

(b) any of the imputations conveyed were defamatory of the affected party.

[7]Or the defendant when considering the counterclaim.

The imputations in the publication need not be exactly the same as the imputations proposed by the plaintiff. The imputations may be a permissible variant of those alleged by the plaintiff if they are not substantially different from and not more serious than the imputations proposed by the plaintiff.[8]
[8]Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 [30]–[40] (McColl JA, Gleeson and Payne JJA agreeing); Newnham v Davis (No 2) [2010] VSC 94 [48]–[50] (Kaye J); Fairfax Media Publications Pty Ltd v Zeccola (2015) 91 NSWLR 341, 352–354 [43]–[54] (McColl JA, Macfarlan JA and Sackville AJA agreeing).

Whether the publication bore the alleged imputations is assessed by reference to a hypothetical, ordinary, reasonable reader.[9] The hypothetical, ordinary, reasonable reader:
[9]Cripps v Vakras [2014] VSC 279 [277] (Kyrou J) (‘Cripps’). Cripps was later overturned in part, but not on this point of law: Vakras v Cripps [2015] VSCA 193 [98].

(a) does not live in an ivory tower;

(b) can and does read between the lines, in the light of his or her general knowledge and experience of worldly affairs;

(c) is not avid for scandal;

(d) is neither unusually suspicious nor unusually naïve;

(e) is of fair, average intelligence; and

(f) engages in a degree of loose thinking and, as I have said, is understood to read between the lines.[10]

[10]Lewis v Daily Telegraph Ltd [1964] AC 234, 258 (Lord Reid). See also Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186, 190 [10] (Gleeson CJ, McHugh, Gummow and Heydon JJ); Farquhar v Bottom [1980] 2 NSWLR 380, 385–386 [21]–[23] (Hunt J) (‘Farquhar’); Cripps [2014] VSC 279 [277].

The test is not whether the ordinary, reasonable reader, knowing particular facts, would believe an allegation made about the plaintiff in the publication. Rather, the test is whether the ordinary, reasonable reader would have understood the publication to convey that meaning.[11]
[11]Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33, 49–50 [63]–[65] (White J). See also Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, 505–506 (Brennan J); Farquhar (1980) 2 NSWLR 380, 386 [25] (Hunt J); Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, 466–467[4]–[5] (French CJ, Gummow, Kiefel and Bell JJ) (‘Radio 2UE Sydney’).

As to whether the imputations were defamatory of the plaintiff, the test is whether the imputation has a tendency to lower the reputation of the plaintiff in the minds of ordinary decent members of the community, being reasonable people of ordinary intelligence, experience and education who bring to the question their general knowledge and experience of worldly affairs.[12] This question must be addressed in relation to each imputation the plaintiff establishes.
[12]Radio 2UE Sydney (2009) 238 CLR 460, 466–467 [3]–[5] (French CJ, Gummow, Kiefel and Bell JJ).

It is clear that the essence of a defamation action is disparagement or diminution of reputation, whether it be a personal, business or professional reputation.[13] Statements which do not have any capacity to diminish a claimant’s reputation, such as ‘mere insults’ or ‘vulgar abuse’, are not defamatory.[14]
[13]Ibid 468 [10] (French CJ, Gummow, Kiefel and Bell JJ).
[14]Ibid 485–486 [68] (Heydon J).

2.2 Defences

The parties relied on the following defences.

2.2.1 Common law truth

It is a defence to defamation if the imputations in the publication are established to be true. The publication is presumed to be false and untrue until the defendant proves otherwise.[15] The defence must be considered in relation to each defamatory imputation.
[15]Gluyas v Junior [2013] VSC 3 [27] (Kaye J).

In order to make out the defence of truth, the defendant must prove that ‘all of the stings of the defamatory matter relied upon by the plaintiff are substantially true’.[16] It is unnecessary to prove the substantial proof of every detail alleged in each imputation.[17] Immaterial or trivial details may be ignored if they do not alter the ‘defamatory sting’.[18]

2.2.2 Statutory justification

[16]Fenn v Australian Broadcasting Corporation [2018] VSC 60 [11] (John Dixon J) (‘Fenn’). See also Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157, 172–173 [59] (McColl JA, Beazley and Giles JJA agreeing); Howden v Truth & Sportsman (1937) 58 CLR 416, 420-421 (Dixon J); Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 57–58 [279] (Gillard AJA, Winneke ACJ and Warren AJA agreeing) (‘Popovic’).

[17]Hardie v Herald & Weekly Times Pty Ltd [2015] VSC 364 [135] (Whelan JA) (‘Hardie’); Sutherland v Stopes [1925] AC 47, 79 (Lord Shaw). Hardie was later overturned, but not on this point of law: Hardie v Herald & Weekly Times Pty Ltd [2016] VSCA 103.

[18]Hardie [2015] VSC 364 [135] (Whelan JA); Fenn [2018] VSC 60 [11] (John Dixon J); Popovic (2003) 9 VR 1, 63 [306] (Gillard AJA).

Section 25 of the Act relevantly states:

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

Section 4 of the Act defines ‘substantially true’ as being ‘true in substance or not materially different from the truth.’ This requires the defendant to prove the truth of what is conveyed in the publication, ‘save for immaterial or trivial details which in no way [alter] the defamatory sting.’[19]
[19]Hardie [2015] VSC 364 [135] (Whelan JA).

The legal principles in relation to the statutory defence of justification substantially reflect the common law defence of truth. I shall consider together the merits of both of these defences.

2.2.3 Common law qualified privilege

In Barrow v Bolt,[20] I summarised the principles that apply to the defence of qualified privilege. The parties in this matter have accepted that summary as accurate. I reproduce it here (footnotes omitted):
[20]Barrow v Bolt [2014] VSC 599 (‘Barrow v Bolt’).

[18]The defence of qualified privilege will be established if two pre-conditions are satisfied:
(a)The publication must be made in the performance of a legal, social or moral duty, or to protect an interest. In Horrocks v Lowe, Lord Diplock described the privilege as follows:
The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue.

(b)The publication must be made to persons who have a corresponding duty or interest in receiving same. The classic statement of this principle appears in Lord Atkinson’s speech in Adam v Ward. An occasion of qualified privilege is ‘an occasion where the person who makes a communication has an interest or duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. This reciprocity is essential’.

[19]The interest of those receiving the document must be legitimate. Their interest cannot be based in curiosity, news or gossip. It must be an interest of substance.
[20]Whether these pre-conditions are met must be determined objectively. The defamatory communication must be relevant to the privileged occasion, although this requirement has been interpreted broadly. The privilege will only be lost where the impugned statement is totally foreign or unconnected to the privileged occasion. Where the defamatory statement is a response to an attack on the conduct of the defendant that response will be privileged provided that it is connected to the theme of the attack, the credibility of the attack or the credibility of the person who made the attack.[21]

[21]Ibid [18]–[20].

In Harbour Radio Limited v Trad,[22] the High Court considered the ‘response to attack’ limb of the defence of qualified privilege. Qualified privilege can be a defence to the publication of defamatory statements which may be false, if those statements warrant protection from an action in defamation because the occasion on which they are made demands that they be made freely absent the spectre of litigation. A successful defence of qualified privilege on a ‘response to attack’ basis relies on a defendant establishing:
[22](2012) 247 CLR 31 (‘Trad’).

(a) the existence of a duty or interest to reply to the attack;[23]
[23]Trad (2012) 247 CLR 31, 45 [25] (Gummow, Hayne and Bell JJ); 72 [116] (Kiefel J).

(b) there must be a sufficient connection between the subject matter of the attack and the defamatory response. A response must relate directly to the initial attack and cannot be made for an ulterior purpose other than the need for the defendant to vindicate himself or herself. The response may relate to the theme of the attack, the credibility of the attack or the credibility of the person who made the attack;[24] and

(c)the response must be made in good faith. That is, it must be made for the purpose of vindication.[25]

2.2.4 Statutory qualified privilege

[24]Watts v Time Newspapers Ltd [1997] QB 650; Trad (2012) 247 CLR 31, 49 [35] (Gummow, Hayne and Bell JJ).

[25]Trad (2012) 247 CLR 31, 48–49 [33] (Gummow, Hayne and Bell JJ); 72 [115] (Kiefel J).

Section 30 of the Act relevantly provides:

(1)There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—
(a)the recipient has an interest or apparent interest in having information on some subject; and
(b)the matter is published to the recipient in the course of giving to the recipient information on that subject; and
(c)the conduct of the defendant in publishing that matter is reasonable in the circumstances.

(2)For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.
(3)In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—
(a)the extent to which the matter published is of public interest; and
(b)the extent to which the matter published relates to the performance of the public functions or activities of the person; and
(c)the seriousness of any defamatory imputation carried by the matter published; and
(d)the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and
(e)whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and
(f)the nature of the business environment in which the defendant operates; and
(g)the sources of the information in the matter published and the integrity of those sources; and
(h)whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; and
(i)any other steps taken to verify the information in the matter published; and

(j) any other circumstances that the court considers relevant.
(4)For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.

For the practical purposes of this case, the legal principles in relation to the statutory defence of qualified privilege reflect those of the common law defence.

2.2.5 Malice

The defence of qualified privilege is defeated by malice.[26] An occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement.[27] Express malice is ‘any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff’.[28] The terms ‘express’ or ‘actual’ malice are used in contrast to the ‘presumed or implied malice that at common law arises on proof of a false and defamatory statement’.[29]
[26]Roberts v Bass (2002) 212 CLR 1, 11–12 [8]–[10] (Gleeson CJ), 30 [75] (Gaudron, McHugh and Gummow JJ), 65 [179] (Kirby J) (‘Roberts’).
[27]Ibid 11–12 [10]; 30 [75].
[28]Ibid 30 [75].
[29]Ibid. See also Horrocks v Lowe [1975] AC 135, 149 (Lord Diplock) (‘Horrocks’).

The burden of proving malice rests with the plaintiff.[30] Proof of malice should not be confused with evidence of the defendant’s ‘ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest’.[31] Leaving aside ‘knowledge of falsity’, it must be established that ‘the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication’.[32]
[30]Roberts (2002) 212 CLR 1, 38 [96]. See also Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 574; Horrocks [1975] AC 135, 149.
[31]Roberts (2002) 212 CLR 1, 31 [76] (Gaudron, McHugh and Gummow JJ). See also 66–67 [185] (Kirby J).
[32]Ibid. See also Mowlds v Fergusson (1939) 40 SR (NSW) 311, 327–329 (Jordan CJ) (‘Mowlds’).

Proof of knowledge of falsity is generally ‘conclusive evidence that the publication was actuated by an improper motive’[33] and thus is ‘almost invariably conclusive evidence of malice’.[34] Knowledge of falsity is not to be confused with lack of belief in the truth. Lack of belief in the truth of an imputation, or reckless indifference as to the truth or falsity of the statement, is insufficient alone to establish malice, but may be considered with other evidence.[35] The exception is where the reckless indifference is so extreme, it amounts to wilful blindness.[36]
[33]Roberts (2002) 212 CLR 1, 31 [76]. See also Mowlds (1939) 40 SR (NSW) 311, 327; Horrocks [1975] AC 135, 149–150.
[34]Roberts (2002) 212 CLR 1, 32 [77] (Gaudron, McHugh and Gummow JJ).
[35]Ibid 35 [87]. See also Horrocks [1975] AC 135, 150.
[36]Roberts (2002) 212 CLR 1, 34 [84]. See also R v Crabbe (1985) 156 CLR 464, 470–471 (Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ).

The defendant must use the occasion of qualified privilege honestly, but not necessarily carefully.[37] The defendant’s failure or refusal to make inquiries, apologise or correct an untruth is not sufficient to prove malice.[38] Unlike qualified privilege, malice is determined subjectively.[39]
[37]Roberts (2002) 212 CLR 1, 41 [103]. See also Clark v Molyneux (1877) 3 QBD 237, 244 (Bramwell LJ), 249 (Cotton LJ) (‘Clark’); Moore v Canadian Pacific Steamship Co [1945] 1 All ER 128, 133 (Lynskey J); Horrocks [1975] AC 135, 150; Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, 463 (Lord Porter).
[38]Roberts (2002) 212 CLR 1, 41 [103].
[39]See Enders v Erbas and Associates Pty Ltd [2014] NSWCA 70, [61]–[77] (Tobias AJA) (‘Enders’); Clark (1877) 3 QBD 237, 250.

For malice to be proved, the plaintiff must show that the improper purpose actuating the publication was the ‘dominant reason’ for the publication.[40] ‘Substantial’ evidence[41] must ‘definitely, and as a matter of common sense’ demonstrate an improper purpose, ‘which was really operative in the making of the statement’.[42] Any other approach would destroy the doctrine of qualified privilege.[43]
[40]Enders [2014] NSWCA 70, [61]–[77].
[41]Oldfield v Keogh (1941) 41 SR (NSW) 206, 214 (Jordan CJ); Godfrey v Henderson (1944) 44 SR (NSW) 447, 454 (Jordan CJ) (‘Godfrey’).
[42]Godfrey (1944) 44 SR (NSW) 447, 454; Roberts (2002) 212 CLR 1, 41 [104].
[43]Ibid.

The defendant also pleaded the statutory defence of triviality under s 33 of the Act, but did not pursue that defence at trial.

The plaintiff, in his Amended Reply and Amended Defence to the Counterclaim, pleaded the defences of common law truth, statutory justification, common law and statutory qualified privilege, and statutory honest opinion (s 31 of the Act). Statutory honest opinion was also not pursued at trial.

3 Background

The object of this part of these reasons is to provide a relatively short account of events leading up to the impugned statements. I shall endeavour to provide a context in which the various statements can be considered. I shall not set out every trivial interchange between PY and FIP personnel, however, I shall set out sufficient correspondence to provide a flavour of the acrimony that developed over time. I will examine some of the evidence more closely when dealing with specific aspects of the claim and counterclaim, and the defences that are made to those claims. It is impractical, however, to refer to every email and every exchange between PY and FIP personnel.

PY is now 80 years of age. At relevant times, he was in his mid-70s. He graduated from Melbourne University with Law and Commerce degrees in the early 1960s. He practised as a solicitor for a time, initially at Corr & Corr and then on his own account. He has concentrated on a successful business career for many years. Amongst other interests, he runs a large farm (13,000 acres) at Yaloak, just south of Ballan in Victoria. He acquired an interest in the sport of polo in the 1960s and, over time, that interest became his passion. The Yaloak farm has been developed into a centre of polo development. It houses the Yaloak Polo Club and Equestrian Centre. Currently, approximately 1,000 horses are stabled or agisted at Yaloak.

As a younger man, PY played polo around the country and internationally. He became involved in its local administration and also in the administration of the FIP, which was established in 1982. It has become the international governing body of the sport of polo.

Australia was a foundation member of FIP. By 2015, there were over 70 member countries divided into three categories. Category A (Argentina, United Kingdom and United States of America), Category B (countries, including Australia, with more than 100 registered polo players) and Category C (countries with fewer than 100 registered players). The national body in Australia is the Australian Polo Federation. FIP has a constitution and by-laws, however, it has remained a relatively small administrative body, run for most of its existence in the manner of a gentleman’s club, with honorary appointees addressing its administrative needs around professional obligations to their ‘day jobs’. FIP did not appoint a CEO until 2014, and even then it was initially on an interim basis.

The governing body of FIP is the General Assembly (‘GA’), which usually meets annually in Buenos Aries. Each member country is entitled to a number of votes that corresponds to the number of registered players in that country. Sitting below the GA in FIP’s administrative hierarchy is the Council of Administration (‘C of A’) and below that, the EC, who is responsible for FIP’s day to day running. The EC is headed by whomever is the current president. The president is elected by the GA. The presidential term was for four years but has recently been halved.

NC-D and PY occupied senior roles in FIP. NC-D is now aged 70. He also is passionate about the sport of polo. An Australian by birth, he is a UK resident and is a past chairman of the Hurlingham Polo Association (‘HPA’), the UK governing polo body. He commenced playing polo as a young man while serving in the British Army.

In 2008, as a consequence of his chairmanship of HPA, NC-D was invited to serve as one of several vice presidents of FIP. This was his first formal involvement with FIP. He got to know PY and it seems, initially, they got on quite well.

PY’s involvement with FIP extended over a much longer period than NC-D’s. From the 1980s until his summary removal from all FIP committees in 2014, he was very active and interested in promoting the sport. He was at times a member of the EC and FIP’s Finance Committee (‘FC’), as well as serving as FIP’s treasurer. He attended, at his own expense, local and international FIP organised tournaments and international meetings of the EC and GA.

In November 2009, Mr James Ashton assumed the FIP presidency. The first apparent disagreement between NC-D and PY emerged shortly after this. At this stage, NC-D was a FIP vice president. PY was on the EC. NC-D believed that the president should spend more time in Europe than Asia. PY believed otherwise. PY gave evidence that at this stage he bore no animus towards NC-D, but he believed that FIP, including

NC-D, lacked the experience and skills properly to administer a quickly growing organisation.

In February 2010, PY accompanied Mr Ashton on his tour of Asian polo clubs and facilities. Tragically, Mr Ashton was killed during this trip whilst playing polo in Thailand. Mr Eduardo Huergo (‘EH’) agreed to act as president until the next GA meeting in December 2012.

In February 2011, PY and EH visited the Metropolitan Polo Club (‘MPC’) in Tianjin, China. They met with the president of that club, Mr Pan Sutong (‘PS’). PS is associated with the Goldin group of companies (‘Goldin’). The possibility of FIP organising a ‘snow polo’ event for the MPC was discussed. PY and another member of the EC, Mr Asad Jumabhoy (‘AJ’), subsequently visited PS or his senior executives in Hong Kong and negotiated with them. These negotiations resulted in FIP and MPC contracting to put on a ‘Snow Polo Tournament’ in February 2012. MPC (underwritten by Goldin) agreed to pay FIP US$500,000 as an ‘endorsement fee’ for this event. It also agreed to pay US$1.6 million to the visiting teams for prize money and expenses. A controversial issue in these proceedings was a subsequent three year agreement relating to a series of Snow Polo Tournaments that allegedly required that $200,000 of the annual $500,000 endorsement fee be set aside by FIP into a ‘Polo Development Fund’ (‘PDF’).

In November 2015, PY queried FIP’s accounting treatment of these monies. NC-D said this (and other PY allegations) were spurious. PY claimed he was defamed by this. NC-D said that the truth was that, whilst there may well have been discussions about allocating $200,000 per annum towards the PDF, this proposal never crystallised into a binding agreement between FIP and MPC/Goldin. This, NC-D submitted, was evident in two Heads of Agreement signed in 2012 where no mention is made of the PDF. PY submitted that there was a clear document trail that evinces what was an oral ‘side agreement’. I shall consider these issues in some detail later in these reasons.

These Heads of Agreement were signed initially on 4 October 2012 and then, in slightly modified form, in December 2012. They related to arrangements for a Snow Polo World Cup in 2013 and an agreement in principle that MPC/Goldin engage FIP to administer at least one major polo event per calendar year. The ‘endorsement fee’ of $500,000 appeared to be split in two equal halves, the second of which was payable when PS was elected to vice president level of FIP in December 2012.

This dispute about the PDF did not emerge until 2015. Much earlier, another dispute arose within FIP about the appointment of RC as president of FIP and NC-D as his president-elect. In April 2012, an EC meeting and then a C of A meeting were held in Palm Beach, Florida. PY attended the EC meeting. At that meeting, it was determined that two ‘outstanding’ candidates ought be considered as replacements for the incumbent president, EH. It will be recalled that EH’s term was to expire in December 2012.

The two candidates were NC-D and RC. The minutes of the discussion record that there was debate about whether the candidates ought be interviewed by an ‘interviewing committee’.[44] The interview process was deferred subject to the two ‘outstanding’ candidates privately resolving their claims. An agreement was reached that RC be appointed president for a term of two years commencing December 2012 and NC-D would be appointed president-elect, also commencing in December 2012. Thus a strategy was developed for NC-D to succeed RC in December 2014.
[44]Exhibit P15.

PY did not agree with the process that I have described above. He considered that both candidates ought be interviewed, and further, that the by-laws of the FIP did not provide for the appointment of a president-elect. In his opening, senior counsel for PY stated:

Around this time, April/May 2012, the battle lines were being drawn. On the one hand, [PY] wanted by-laws and proper governance observed. On the other hand, [RC] and [NC-D] had reached their own agreement with the ‘big three countries’[45] as to who would be president and who would succeed that person as the next president.

[45]The three Category A countries, being Argentina, the United Kingdom and the United States of America.

In February 2013, another dispute arose within FIP. It concerned events at the Snow Polo World Cup 2013. Two members of the FIP GA, Mr Derek Wolstenholme (‘DW’) and Mr Pat Nesbitt (‘PN’), attended the Snow Polo World Cup and in particular, attended lunches and gala dinners conducted by PS. On 18 February 2013, PY emailed DW accusing him of ‘freeloading’, having ‘inveigled’ himself into MPC events. On the same day, he emailed PN, describing his conduct in attending lunches and dinners as ‘rude, arrogant, gauche and inappropriate’. Both DW and PN responded to PY, and a highly acrimonious email exchange ensued. PN called PY malicious, misinformed and ignorant of the fact that he was, in fact, invited by MPC/Goldin. PY responded demanding a copy of the invitation. He added, ‘Methinks that the cudgel of bluster and bombast may have been indiscriminately used to wound the knight of mendacity’. Insofar as this makes any sense, it seems that PY was styling himself as wielding the ‘cudgel of bluster and bombast’ which had wounded PN, who was the ‘knight of mendacity’. To DW, after a terse exchange, he emailed (inter alia), ‘you really are a joke’.

Up until April 2013, PY had been both a member of FIP’s EC and FC. On 10 April 2013, the president, RC, notified PY that he had been removed from these committees. This decision was confirmed by the EC on 10 May 2013. The decision was then (according to the defendant) partially and conditionally rescinded upon PY agreeing to moderate the tone of his keyboard contributions. A meeting occurred at the Hilton Hotel in London on 14 May 2013 between at least PY, Mr Alex Taylor (‘AT’) (FIP treasurer at the time) and Mr Steve Orthwein (‘SO’), a member of the C of A. There is some dispute as to whether AJ was present. Later in these reasons, I conclude that he was present.

AT, AJ and SO were then on the EC. The defendant asserted that a proposal was put to PY that, if he agreed not to engage in further acrimonious correspondence, he could be reinstated to the FC and be the chair of a ‘to be established’ China Committee (‘CC’). It was said to be a further condition that he only communicate with the EC through AT or AJ. It is controversial as to whether PY accepted these terms immediately, later, or at all. What is clear, however, is that further emails were sent by PY which were viewed as breaching the agreement, and which ultimately resulted either in his final removal from the FC and CC, or (alternatively) the rescission of the conditional offers made to him. Either way, he was blocked from serving on those committees. PY formed the opinion, with some justification in my view, that he had been denied procedural fairness in this process.

There is a dispute about this, and whether RC and the EC acted within power and/or improperly and/or in denial of procedural fairness in taking the courses I have just outlined.

From this time on, PY, stung by his treatment after what he had perceived as long and loyal service to FIP, embarked upon a vigorous campaign against FIP. He accepted, in evidence, that he conducted a vendetta against FIP administration. I shall reproduce some of the more florid emails later in these reasons. It is sufficient now to set out some of the terms of an email of 19 September 2013 penned by PY and sent to EC members, including AJ, DW, RC and PN:

There has been comment that my language can be a bit abrasive, acerbic or harsh. The reason for this is that the good Commander[46] chooses not to answer or acknowledge correspondence …
The great Commander has shown a complete lack of ability to handle even simple situations (ask him about Torci) and thus the situations are exacerbated because of his incompetence and refusal to act and thus my language becomes more robust.
The person making the allegation, which the Commander knows to be false, is his good friend, the loquacious, verbose and cerebrally impaired Derek Wolstenholme and, being a crony of the Commander’s is not required to withdraw.
This refusal … to take any action … causes my vocabulary to be expanded.
This appears to be a charade played by the Commander and his crony …
… he (the Commander) has smiled benignly whilst his eyes glazed over.
He [RC] does not know what he does not know and thus commits the common error of believing he knows everything.
Maybe the problem is anatomical in that he [RC] unfortunately, lacks vertebrae, his intestinal strength, if it exists, is minimal and he lacks a couple of other appendages with which most males are endowed.
It may not be possible to do anything, thus the only blessing is the shortness of his tenure.[47]

[46]A reference to RC.

[47]Exhibit D33.

I consider this email, containing, amongst other things, allegations of brain damage and the apparent absence of testes, to be highly provocative. It was merely an opening salvo in what was to become a regular stream of abusive correspondence.

In October 2013, a ‘Super Nations Tournament’ was conducted under FIP auspices in Tianjin. A dispute arose over the interpretation of a player substitution rule. A dispute between PY and FIP developed over whether FIP had delegated responsibility for the running of the tournament to MPC. In an email from PY to members of the GA, PY stated, amongst other things, the following:

FIP’s reputation “is fragile … due to the stupidity and incompetence of our President Richard Caleel the great commander.”
How, when, by whom and to whom was the delegation made — maybe the weasel?
This fabrication is designed purely to avoid Richard taking any responsibility for anything.
In order to weasel out of his responsibility he [RC] misrepresented the situation to and misled John Wright, in fact he lied to John. The truth is something with which Richard has little or no familiarity.
Nicholas, in these circumstances do you still maintain your previous position that you totally support and admire Richard’s action in lying to the Chairman of the HPA? Richard’s penchant for lying is well documented.
Richard absolves himself from all responsibility, prancing around uttering inane platitudes whilst dressed in sartorial splendour and thus avoid the male deer …
As a result of him … lying to John Wright, John reports Richard’s advice to the HPA …
He again weasels out of any responsibility …
This is incompetence cubed …
… Richard’s incomprehensible stupidity …
As a result of the ignorance, incompetence and arrogant attitude of Richard … David Woodd wrote an intelligent and completely justifiable email …
… somebody … needs to sit this clown down and explain to him what the role of President entails.

A few weeks later, on 3 December 2013,[48] and then on 16 December 2013,[49] in emails, PY turned his attention to another issue; in these proceedings, called the ‘B and C countries’ issue. In those emails, PY maintained that there had been a failure to hold elections for B and C country representatives for the C of A, and consequently those countries were not validly represented on the C of A.
[48]Exhibits P35, D41.
[49]Exhibit D41.

PY concluded with ‘[t]he president continues to weasel out of his responsibility in a manner no other president has.’ Leading up to this, he referred to RC’s ‘ignorance and incompetence’. He asserted, ‘You do not get your photo taken for this type of necessary effort’. He also stated:

The collegiate, feel-good atmosphere that has prevailed in FIP for the last 30 years under Presidents who knew and understood FIP culture and performed their role in an exemplary manner, unfortunately this situation no longer exists. We have a president who has demonstrated he is both parsimonious and grasping and submitted claims to which he was not entitled.

NC-D came to his president’s defence. On 4 December 2013, he emailed to PY and copied in various members, including AT, AJ, RC, SO, DW, EH and PN:

What an astonishingly bitter and insulting attack on the eve of the General Assembly. It is unworthy of a gentleman or a member of FIP.
Your continuing attacks on the President after your scurrilous accusations, have already been, at the President’s request, investigated by the Executive Committee and found to have absolutely no basis in fact, continue to waste time and disrupt the work of the EC and show division and discontent within the Federation.
Your ongoing personal vendetta against Richard is doing more to damage the reputation of FIP in its 30th year when we should be celebrating the success of this venerable institution and honouring those who have freely given of their time and energy to achieve this remarkable result.

PY then turned his attention to NC-D. On 5 December 2013, he emailed NC-D with some senior members copied in:

It is always a pleasure to receive a communication from the Executive Committee. In fact, you are the only member who writes to me.
I do not have time, at the moment, to make a detailed response to a fatuous missive replete with therapeutic adjectives or unsubstantiated statements together with the absurdity that an incompetent body can investigate its own incompetence and then surprisingly find that it’s not incompetent. I will make a more detailed response soon.
Nicholas I have on previous occasions warned you that when you get into the ring with your hands around your knees and with your jaw stuck out the result is inevitable.

The email continues and concludes as follows:

FAILURE TO ADMINSTER THE FUND
FAILURE TO FULFILL FIDUCIARY DUTIES
I say the polo development fund has not been administered or it has been improperly administered for the following reasons.
During the 3 years of the Fund’s existence, the members have never been given any factual or substantial information about the fund.
The amount of the fund has never been disclosed to members, although FIP acknowledges its existence in 2013.
The interest earned on the funds as disclosed in the FIP website has never been disclosed in the accounts to the members.
The fund has never been included in the accounts of the federation.
No information on the disbursement on the fund over the 3 years has never been provided to the members.
No report has been given to the sponsor as to the administration of the fund.
Nicholas, the above 6 points are self-evident facts. Explain to the members your magical mental logic which enables you to with all the skill of a David Copperfield morph these facts into spurious accusations and unfounded allegations. What type of communication would you describe this? Something towards progress?
The collegiate goodwill that exists between the Executive Committee and the Council of Administration and the large bucket of white wash they keep handy, enables them not to answer questions and to find themselves blameless and all questions based on fact or documentary evidence become spurious accusations and unfounded allegations.
This is a farcical performance worthy of a Gilbert and Sullivan operetta, and whilst relaxing I shall write further on this subject for your consideration, possibly in the New Year.

None of the above content raises any imputation against NC-D. The headings, particularly those to do with the failure to administer the fund, are linked to the subsequent paragraphs which themselves assume the existence of the PDF and complain about the lack of information to members or the sponsor in concerning the same. There is no suggestion in these paragraphs that NC-D is personally guilty of false or negligent accounting, financial mismanagement, gross incompetence or ineptness, or applying funds for an improper purpose. These contentions are set out in order to provide a context in which PY enquired of NC-D, and how he could transform these contentions into accusations that are spurious and unfounded.

In my view, none of the content of the 22 December 2015 email is defamatory of NC-D.

7.1.3 Are the imputations in the 30 May 2016 email defamatory?

NC-D claimed that the 30 May email, in its natural and ordinary meaning, was defamatory of him, and meant and was understood to mean that NC-D:

(a) makes false statements;

(b) has failed to account for monies provided to FIP;

(c) engages in financial mismanagement;

(d) is commercially incompetent;

(e) is inept, incompetent and lacks commercial sense;

(f) knowingly approves false reports;

(g) engages in duplicitous behaviour; and

(h) engages in behaviour designed to mislead members of FIP.[250]

[250]Further Amended Defence and Counterclaim [57].

I shall analyse the relevant content of this email.

The first part of the email reads as follows:

The key to progress can be summed up in one word: ‘Communications’!
Nicholas J.A. Colquhoun-Denvers ESQ. August 2015
POLO DEVELOPMENT FUND
In his first Newsletter the President in early 2013 stated “The PDF is a result of the generous contribution by FIP Vice president Pan Sutong”.
THIS STATEMENT IS TRUE.
An earlier FIP website stated inter alia, that the “Global Polo Development Fund (“GPDF”) was founded in 2013 by FIP Vice President and Ambassador Mr. Pan Sutong”.
THIS STATEMENT IS TRUE.
The re-designed FIP website states inter alia, that the “Global Polo Development Fund (“GPDF”) was founded in 2013 by FIP Executive Committee with a generous contribution of FIP Vice President and Ambassador Mr. Pan Sutong”.
THIS STATEMENT IS FALSE.
The statement in the re-designed website is false, the statement in the original website is correct. Please explain to members how the Executive Committee founded the Fund when none of them had any involvement whatsoever in negotiating the agreement with Metropolitan Polo Club, Mr Pan and his Executives to obtain the money for the established of the Polo Development Fund. Was the change made to show how capable the Executive were in founding the Fund and therefore they would not need to make any report as to the amount of the fund and the interest earned thereon or the disbursement, or administration thereof?
My concern is that the fund may flounder due to hubris unfortunately prevalent in some members of the Executive.
Despite repeated requests, the members have been given no information as to the amount of the fund, the interest earned thereon, its administration and disbursement therefrom. Nor have they been advised of the additional increments of the fund by way of further generous contributions by the FIP Vice President Pan Sutong.

It should be borne steadily in mind that the allegations contained in these paragraphs concern historical statements made on the FIP website. There is no suggestion that NC-D was responsible for the false statement or endorsed it. There is nothing in these paragraphs that is defamatory of NC-D.

The email continues and concludes as follows:

Who was the person responsible for this “clever” alteration? Was it Alex Taylor, as he has previously produced a false report to the Council of Administration which you and your predecessor knew to be false and you were both advised by a member of the Executive Committee that the report was false? However, had the report relating to FIP’s financial condition been truthful it would have, beyond doubt, demonstrated the complete commercial incompetence of the Chief Executive, your predecessor and yourself in failing to understand that the Executive of any organisation must control the bank account of that organisation and that 9 months after being instructed to open a bank account for FIP, with a major international bank, Alex Taylor had still been unable to carry out the onerous task of opening a bank account.
To avoid disclosing the abject commercial incompetence and ineptitude of yourself, your predecessor and the now Chief Executive, he produced a knowingly false report to the Council of Administration, approved by you and your predecessor.
Alex Taylor reported to the Council of Administration that FIP’s financial condition of being unable to pay its creditors when due, was a result of my having closed the FIP bank account. I had transferred the funds two months prior to closing the account to a subsidiary account which had been promptly opened by a member of the Executive Committee because of Alex Taylor’s inability to do so.
This transfer took some two months before closing the inoperative account. This inability to admit a mistake has continued to run through FIP’s administration because it is clear that you, your predecessor and the Chief Executive have an unshakeable belief in your own infallibility and live in denial of the fact that you are capable of making an error. It may come as a surprise to you Nicholas, that if you make a mistake, the best thing to do it to admit it rather than endeavour to disguise it. As I have quoted Sir Walter Scott to you before “Oh what a tangled web we weave. When first we practise to deceive!”
This duplicitous behaviour was designed to mislead the members as to the real cause of FIP’s financial condition and designed to protect you, your predecessor and the Chief Executive from disclosing your ineptitude, incompetence and complete lack of commercial common sense.
Let the members have some factual communications instead of regurgitating meaningless rhetoric, more appropriate to a rallying call at a political meeting.
Your refusal to respond or rebut factual statements indicate the statements are true, or you do not have the ability to produce facts to rebut them, so you seem to adopt the advice of Fred Legge III, a former polo player and American Agricultural attaché in Canberra some years ago who said “when in doubt, run in circles, yell and shout”. Nicholas, don’t get too giddy.

I consider that there are various imputations that arise from the natural and ordinary meaning of portions from the above paragraphs. Relevantly, they are as follows:

(a) NC-D is commercially incompetent in failing to control the FIP bank account.

(b) NC-D knowingly approved a false report (the Taylor Report).

(c) NC-D engaged in duplicitous behaviour by publishing the Taylor Report, which was designed to protect himself, his predecessor (RC) and the CEO (AT) from disclosing their ineptitude.

The above imputations emerge clearly enough from the portion of the email reproduced at paragraph 444. In written submissions, PY did not address this 30 May 2016 email, although he denied any defamatory imputations in his pleadings. The imputations are patently defamatory of NC-D. Each has a tendency to lower NC-D’s reputation in the minds of ordinary decent members of the community. Both his personal and professional reputation are disparaged and/or diminished by these imputations. I am not satisfied that the pleaded imputation that NC-D makes false statements[251] has been established, although this is academic, given the defamatory imputations that I have found to be established.
[251]Further and Amended Defence and Counteclaim [57].

NC-D gave little evidence about the counterclaim. He stated that the impugned emails had caused him to feel annoyed, however, when pressed, it seems that the real source of his annoyance was PY’s assertion that he may be an intravenous (or nasal) drug user. However offensive and defamatory this may be, it is not the subject of a claim in defamation in this action.

Further, in an email on 26 September 2016, which was authored by NC-D and sent to AT with the heading ‘Counterclaim’, NC-D stated:

As you know our Legal Team are working hard on putting together any material which might possibly support a counterclaim as part of our defence strategy in this case. Robert[252] has asked for any instances where PY has possibly defamed me personally by suggestion to my peers [of] incompetence or negligence.[253]

[252]A reference to FIP’s honorary legal counsel.

[253]Exhibit P153.

Notwithstanding the apparent strategic genesis of the counterclaim, the three imputations set out in paragraph 445 are defamatory. No argument for a permanent stay as an abuse of process was mounted by PY. I shall examine PY’s defence to this defamatory publication.

8 Defences to Counterclaim
8.1 Truth/justification

PY raised the common law defence of truth and the statutory defence of justification in relation to each of the three impugned emails. As I have found that the 6 November and 22 December emails are not defamatory, I shall not consider them further. I have found that the 30 May 2016 email conveys the defamatory imputations that I have set out in previous paragraph. Again, many of the findings I have made in the claim have an application to this counterclaim; I am cognisant, of course, that the burden of establishing this defence rests with PY.

8.1.1 Imputation (a) — commercial incompetence

For reasons that I have set out at paragraphs 191 to 204, I am satisfied that the failure to make timely alternative banking arrangements from April 2018 onwards and perhaps earlier was commercially incompetent. In summary, FIP management, including RC, NC-D and AT should have realised how exposed to risk they were on this issue. PY, if he wished, could have closed the NAB accounts at any time. He indicated in December 2012 that he wished to cease the existing banking arrangements and move the FIP accounts to HSBC, Buenos Aires. As relations deteriorated between PY and RC, that risk magnified.

Compounding the failure to make timely alternative banking arrangements was the failure by FIP to seek to take control of the existing NAB bank accounts. True it is that PY may have resisted those efforts, but efforts should have been made. As time went by, creditors and staff went unpaid, and a major receivable could not be banked. Throughout this period (April 2013 – May 2014), AT was primarily responsible for the management of FIP’s finances, but I consider that the president and vice president cannot reasonably avoid responsibility for the difficulties encountered at that time.

I consider that PY has established that from at least 2013 until early 2014, on this bank account issue, NC-D, along with AT and RC, were not commercially competent. All were, in some way, responsible for failing to make timely banking arrangements. It follows that PY has demonstrated the truth of this assertion of commercial incompetence. The common law defence of truth and the statutory defence of justification are made out in relation to this imputation.

8.1.2 Imputation (b) — knowing approval of a false report

For reasons I have set out at paragraphs 223 to 225, I am satisfied that in a certain respect, the Taylor Report was a ‘false’ report, in that it contained statements that were factually incorrect or at least not wholly accurate. A key statement of the Taylor Report, for present purposes, reads:

The reason for this delay by MPC is that since PY closed FIP’s bank account in retaliation for being removed from the EC for unacceptable behaviour, FIP has not been able to open a new account because of the Bylaws situation which we will explain in 1.2.[254]

[254]Exhibit P44.

This statement is not ‘false’ in every respect. It was accurate in that FIP was not able to open a new bank account because of the by-laws situation and it was also accurate (I have found) that PY discontinued operating and ultimately closed the FIP NAB account in retaliation for being dismissed from the EC, FC and CC. The Taylor Report accurately summarised the use of the FIPPL account and the fact that it was thought new documents needed to be signed and presented to the Chinese authorities. I accept that the change in destination created an anticipated extra cost of $60,000, although this ultimately did not materialise. I also accept that the by-laws component of the Taylor Report adequately summarised the difficulties that AT was encountering in opening a new bank account.

To the extent that the Taylor Report lays blame for its financial predicament entirely with PY, it is, however, factually incorrect. Blame rested with both FIP management and with PY, as I have explained in paragraphs 223 to 225 of these reasons.

In my view, there is no accusation in the text under the heading ‘Response to Peter Yunghanns’, which has been demonstrated to be false.

I am positively satisfied that PY refused to operate and ultimately closed the NAB accounts in response to RC and the EC removing him from the EC, FC and CC. I am also satisfied that the precipitating cause was his ‘disruptive emails’. RC may have thought PY ‘too old’ when he (RC) assumed the presidency but was ultimately satisfied by other FIP members that PY ought remain on the EC and FC. I am satisfied that the direct cause of PY’s dismissal from the EC, FC and CC was his abrasive style, particularly his abrasive email style. The evidence establishes that PY sent some of his confrontational emails to HL of MPC/Goldin.[255]
[255]See, eg, exhibits P90, P91.

I consider there was a clear potential for FIP’s reputation with its main sponsor (MPC) to be damaged.

The plaintiff has therefore established that the Taylor Report was a false report to the extent that, by omission, it asserts that the sole cause for the delay in FIP receiving monies owed was PY’s decision to discontinue operating and close down the NAB accounts, when in truth, it was one of two causes. The other was the financial incompetence of RC, NC-D and AT. There is no hint of this other cause anywhere in the Taylor Report. I am also satisfied that NC-D must have known this financial incompetence was a cause of this delay. Given his position and the information flow that came to him on the banking issues, I consider that it is inevitable that he knew that the failure to make timely banking arrangements was a cause of FIP’s incapacity to meet its financial obligations in early 2014.

In my view, this omission was less than frank. The use of the definite article in the phrase ‘[t]he reason for this delay …’ conveys to the ordinary reader that the sole reason for the delay was as specified. Had the indefinite article been employed, ‘a reason for this delay …’, this meaning would not have been conveyed.

I am satisfied that PY has established the truth of imputation (b). NC-D knowingly approved a false document. The common law defence of truth and the statutory defence of justification are made out in relation to this imputation.

8.1.3 Imputation (c) — NC-D engaged in duplicitous behaviour designed to protect himself, RC and AT from disclosing their ineptitude

‘Duplicitous’ is a strong word. Its various definitions in dictionaries range from deceitful to deceptive, ranging through fraudulent, dishonest and underhanded.

For reasons that I have explained, PY has established to my comfortable satisfaction:

(a) The Taylor Report omitted to acknowledge that the failure of FIP management to sort out its banking arrangements in a timely way was a cause of the delay in receiving payments from MPC.

(b) NC-D must have known that this failure of FIP to sort out its banking arrangements in a timely way was also a cause of that delay.

(c) The Taylor Report sought to cast all blame for FIP’s financial predicament at the feet of PY. This was factually incorrect and NC-D knew it to be so, but nevertheless approved the dissemination of the Report.

I am comfortably satisfied that by approving the publication of the Taylor Report, NC-D’s conduct was deceptive and thus duplicitous. I am also comfortably satisfied that the publication of this report was designed, in part, to deflect blame away from the FIP administration and towards PY. PY’s conduct was a cause of FIP’s financial predicament but not the sole cause.

I am therefore satisfied that PY has established the substantial truth of imputation (c). NC-D engaged in deceptive behaviour, designed to protect himself, RC and AT from disclosing their incompetent handling of the bank account issue.

8.2 Conclusion on truth/justification

PY has established the defences of common law truth and statutory justification to those imputations pleaded in the counterclaim that I have found to be defamatory. The counterclaim therefore fails.

9 Conclusion on Claim and Counterclaim

In this unfortunate piece of litigation, both the plaintiff and defendant have failed to establish their respective claims. PY was treated badly, in my view, in being summarily dismissed from his positions on the EC and FC without the courtesy of a hearing. His conditional reinstatement on the FC and appointment to the CC ultimately came to nothing and he, in effect, declared verbal war on the administration of FIP. He had a fertile battlefield. FIP’s administrative processes and governance were redolent of a pre-war gentlemen’s club, and PY’s trenchant criticisms of them extended over years. There was usually some point to the criticisms to do with a failure of governance or administrative process, but by lacing those criticisms with insults and personal abuse, in my view, PY did himself a significant disservice.

I consider that this case was never about the protection of PY’s reputation. Had he real concerns about his reputation, he would never have published the scores of insulting emails that went under his name. Should I have needed to assess his damages, these offensive emails would have adversely impacted his entitlement to damages. By his own hand, he had diminished a hard and well-earned reputation well before the publication of the two impugned emails.

PY’s defamation action was, I consider, a further step in his war on FIP and its personnel. Having goaded the FIP leadership group into defaming him, he set about punishing them with litigation.

FIP had no choice but to respond to PY’s war of words. For years, it remained silent; no doubt in hope that PY, deprived of oxygen, would eventually lose interest. As I have said, I consider that FIP and its administration treated PY badly. He had been a loyal and productive servant to FIP over decades, and he deserved much more than summary dismissal and highly conditional partial reinstatement. FIP, through NC-D, was dragged into this litigation reluctantly and NC-D’s counterclaim, issued for strategic purposes, had little merit.

It will be recalled that I considered both PY and NC-D to be, insofar as I could judge, honourable and decent men. I have made various findings that are adverse to both parties, however, in spite of these findings, I adhere to this view. If I am correct, then perhaps it is time that these qualities were supplemented with a little common sense.

I will hear the parties on costs.

Appendix A — Table of References

Abbreviation Reference

AJ Asad Jumabhoy

AT Alex Taylor

C of A Council of Administration

CC China Committee

DW Derek Wolstenholme

EC Executive Committee

EH Eduardo Huergo

FC Finance Committee

FDS Felipe De Sel

FIP Federation of International Polo

FIPPL Federation of International Polo Properties Limited

GA General Assembly

HL Harvey Lee

HPA Hurlingham Polo Association

MPC Metropolitan Polo Club

NAB National Australia Bank

NC-D Nicholas Colquhoun-Denvers

PA Peter Abisheganaden

PDF Polo Development Fund

PN Pat Nesbitt

PS Pan Sutong

PY Peter Yunghanns

RC Richard Caleel

SF Sean Fang

SGA Special General Assembly

SO Steve Orthwein

Abbreviation	Reference
AJ	Asad Jumabhoy
AT	Alex Taylor
C of A	Council of Administration
CC	China Committee
DW	Derek Wolstenholme
EC	Executive Committee
EH	Eduardo Huergo
FC	Finance Committee
FDS	Felipe De Sel
FIP	Federation of International Polo
FIPPL	Federation of International Polo Properties Limited
GA	General Assembly
HL	Harvey Lee
HPA	Hurlingham Polo Association
MPC	Metropolitan Polo Club
NAB	National Australia Bank
NC-D	Nicholas Colquhoun-Denvers
PA	Peter Abisheganaden
PDF	Polo Development Fund
PN	Pat Nesbitt
PS	Pan Sutong
PY	Peter Yunghanns
RC	Richard Caleel
SF	Sean Fang
SGA	Special General Assembly
SO	Steve Orthwein

[2019] VSC 433

28 June 2019