Konstantinidis v Foreign Media Pty Limited and Ors [2004] NSWSC 835 (20 September 2004)

Last Updated: 17 November 2004

NEW SOUTH WALES SUPREME COURT

CITATION: Konstantinidis v Foreign Media Pty Limited & Ors [2004] NSWSC 835



CURRENT JURISDICTION:

FILE NUMBER(S): 20998/1996

HEARING DATE{S): 02/07/04, 27/08/04, 08/09/04

JUDGMENT DATE: 20/09/2004

PARTIES:
Simon Konstantinidis (Plaintiff)
George Stavroulakas (Fourth Defendant)

JUDGMENT OF: Buddin J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
M Lynch (Plaintiff)
Fourth Defendant in person

SOLICITORS:
Mallesons Stephen Jaques (Plaintiff)


CATCHWORDS:
DEFAMATION - Assessment of damages

ACTS CITED:
Civil Liability Act 2002
Defamation Act 1974

DECISION:
Judgment for the plaintiff in the sum of $100,000. Order the fourth defendant to pay the plaintiff's costs.


JUDGMENT:


IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION



BUDDIN J


MONDAY 20 SEPTEMBER 2004


20998/96 - KONSTANTINIDIS v FOREIGN MEDIA PTY LIMITED & ORS


JUDGMENT

1 HIS HONOUR: In September 1996 the plaintiff, who is a solicitor, instituted proceedings in which he sought damages arising from what he alleged were defamatory remarks made about him in three radio programs, two of which were broadcast on 28 August 1996 and a further one which was broadcast the following day. The first defendant is a company which, at the relevant time, held a narrow band area service licence, pursuant to which it broadcast to its subscribers a program in the Greek language, known as the “Voice of Greece”. The second defendant, Theo Skalkos, is the director and one of the two shareholders of the company.

2 On 29 August 2002, a jury having been empanelled for the purpose pursuant to s 7A of the Defamation Act 1974, found that the matters complained of in the first broadcast on 28 August 1996 conveyed the following imputations in respect of the plaintiff. Each such imputation was also held to be defamatory of the plaintiff.

(1) That, as President of Sydney Olympic Soccer Club he arranged finance for that club knowing that the funds were derived from the proceeds of crime.

(2) That, in that capacity, he was a person who was prepared to accept laundered criminal money as contributions to the Club.

(3) That, in that capacity, he knowingly engaged in dishonest conduct in the raising of finance for that club.

That broadcast took the form of a discussion between Tony Leonis (the third defendant) and George Stavroulakis (the fourth defendant). The program was substantially repeated that evening. In those circumstances, the jury found that imputations (2) and (3) referred to above had been conveyed in that latter program as well.

3 The following day the first defendant again broadcast its program, the “Voice of Greece”. On this occasion, there was a discussion which involved each of the second, third and fourth defendants. The jury found that the matters complained of in this program conveyed the following imputations. Each of these imputations was also held to be defamatory.

(1) The plaintiff defrauded one of his clients by organising a sham auction of her property in order to purchase the property for himself at an undervalue through a criminal retained to bid at the auction on his behalf.

(2) The plaintiff stole money from the poker machines of the Sydney Olympic Soccer Club.

(3) The plaintiff was a person who was prepared to steal money from the Sydney Olympic Soccer Club.

4 On 5 December 2003 I gave judgment for the plaintiff against the first and second defendants in respect of the various programs. It is necessary to relate some of the history of the matter in order to understand how the proceedings have reached their current state. When the matter was called on for hearing in November 2003, Mr Lynch announced his appearance on behalf of the plaintiff. He informed me that the proceedings in respect of the third defendant had been resolved between the parties. There was no appearance by either the first or second defendants. The fourth defendant appeared in person. He said that he had only received notice of the proceedings the previous day when he was provided with a letter to that effect from the plaintiff’s solicitor. He said that he was unable to proceed without representation. He also indicated that he was unable to afford to pay for such representation. Furthermore, he said that he had profound difficulties in understanding the English language.

5 I adjourned the proceedings for two days in order to ascertain if assistance could be provided to the fourth defendant through the Bar Association’s pro bono scheme. When the matter resumed, Ms Rawlings appeared but only for the purpose of seeking an adjournment of the proceedings in respect of the fourth defendant. The plaintiff opposed the application. His position was that if I was nevertheless minded to grant the application, then he still wished to proceed against the remaining defendants, that is the first and second defendants.

6 Ms Rawlings informed me that the fourth defendant, who had been consistently represented until July 2003, wished to defend the proceedings and that he also wished to raise substantive issues concerning the pleadings. It also emerged that the fourth defendant had been overseas between 1 August and 16 October of that year. That being so, I concluded that it was conceivable that he had received no prior notification of the hearing date, notwithstanding the fact that such notification was undoubtedly sent to his home address some time in August. In any event, I granted the adjournment. At the time I said that the matter was “reasonably evenly balanced” and that it should be understood “that this is the last occasion upon which [the fourth defendant] could expect to receive any generosity from the court”. The fourth defendant was of course present in court at the time when those remarks were passed.

7 I then made consequential orders concerning the future conduct of the proceedings in relation to the fourth defendant. I ordered that the fourth defendant was to file and serve any defence on or before 15 December 2003. Subsequently an order was made by the List Judge that the fourth defendant file a draft of the amended defence on or before 30 January 2004.

8 In the circumstances, I had also adjourned the proceedings in respect of the first and second defendants for a period of two days in the hope that all matters could still proceed together. However neither the first nor the second defendant appeared on the adjourned date. I ultimately decided to proceed to hear the matter in respect of each of those defendants in their absence.

9 As I have said, these proceedings have been on foot since September 1996. A defence was filed in November of that year. Thereafter followed a number of interlocutory proceedings, the details of which it is unnecessary for present purposes, to record. As I have indicated, it was not until August 2002 that the hearing pursuant to s 7A of the Defamation Act was conducted. Thereafter all four defendants sought leave to appeal against the jury’s verdict. Although leave to appeal was granted, the appeal was dismissed with costs on 23 June 2003. Then on 15 July 2003 Mr Lazaropoulos, the solicitor who until then had acted on behalf of each of the four defendants from the outset, filed a Notice of Ceasing to Act as Solicitor on behalf of any of them.

10 In the upshot, in respect of the first and second broadcasts I awarded the plaintiff damages in a lump sum of $200,000 plus interest. So far as the third broadcast was concerned, I awarded the plaintiff damages in the sum of $275,000 plus interest.

11 In these proceedings the plaintiff seeks damages only in respect of the first and second broadcasts.

12 The hearing of the matter against the fourth defendant was ultimately set down for hearing before me on 2 July 2004. It was apparently then anticipated that it too would also proceed on an ex parte basis. Nevertheless the fourth defendant appeared but indicated that he would again be unrepresented. He sought leave to file in court a second further amended defence which was dated 28 June 2004. He informed me that it had been prepared by Mr Lazaropoulos. In it he abandoned all of the defences upon which he had previously relied other than a defence of qualified privilege both at common law and under s 22 of the Defamation Act. I granted him leave to file that defence in court even though he had plainly not complied with orders to file such a defence in accordance with the timetable which had been fixed for that purpose. The plaintiff did not object to my taking that course particularly because it was hoped that such an approach on his part would enable the matter to proceed to finality.

13 The hearing of the matter then commenced. The plaintiff’s wife gave evidence. At the end of her evidence in chief the fourth defendant remarked, “I don’t want to ask any questions but I feel very sad of what happened to her husband”. Mr Babalis, a long standing client of the plaintiff, then gave evidence. The only challenge of substance to his evidence concerned what he had said about the number of subscribers which the program had. Finally the plaintiff himself gave evidence. The fourth defendant sought to cross-examine him. None of the matters which he endeavoured to raise had any relevance to the proceedings. Certainly nothing was advanced which pertained to the defence upon which he was apparently relying. Even after I brought this matter to his attention, the fourth defendant did not ask any questions which were material to the proceedings.

14 Even more significantly he sought to raise other issues which were plainly relevant only to the issues which had been resolved against him in the s 7A proceedings. When I pointed out to the fourth defendant that those issues could not be re-ventilated because they had already been determined against him, he maintained, notwithstanding the fact that he had been represented at those proceedings, that he had been unaware of their outcome.

15 The fourth defendant said that if he had known about the jury verdicts “probably I wouldn’t come today”. He said that although he felt sorry for the distress which the broadcasts had caused to the plaintiff, he maintained that “I haven’t said anything against [the plaintiff] personally”.

16 The fourth defendant also sought to have the proceedings adjourned in order that he could call witnesses in support of his defence. He conceded however that he did not even have affidavits from those persons. Because it appeared that he had simply made no endeavours to get the matter ready for hearing, I refused the application.

17 Later on the fourth defendant requested that the matter be stood down in order that he could have the opportunity to talk directly with the plaintiff. Following those discussions, Mr Lynch indicated that the parties had resolved their differences. Mr Lynch described the agreement which had been reached in the following terms:

LYNCH: Firstly, that Mr Stavroulakis wishes to withdraw his defence. Secondly, that there is agreement that judgment be entered in favour of the plaintiff against Mr Stavroulakis. Thirdly, in an amount to be assessed by your Honour. There has been no agreement as to an amount. Both parties are content for your Honour to assess damages in respect of the publications. Fourthly, would your Honour note that Mr Stavroulakis is willing to provide a written apology to Mr Konstantinidis.

As to what happens, some time will be necessary but what both parties are most concerned about is to bring the matter to a conclusion today. If I am correct in putting the things that I have just put to your Honour and they do reflect the view that Mr Stavroulakis shares with the plaintiff, your Honour should simply note that Mr Stavroulakis is withdrawing his defence and entering (sic) judgment against Mr Stavroulakis in an amount of damages to be assessed by your Honour and a written apology by Mr Stavroulakis to Mr Konstantinidis.

HIS HONOUR: Can I get confirmation from Mr Stavroulakis that he agrees with what you have said?

STAVROULAKIS: Yes, I would like to withdraw my defence. I do not want to come again here. I would like to finalise the case. If I knew that this decision was taken by the jury as here I would not come today.

18 I then asked Mr Lynch to prepare short minutes to give effect to that agreement and to the possibility of mediation of the assessment of damages about which the parties seemed unable, at that stage at least, to agree. The fourth defendant, having taken the opportunity in the interim to speak on the phone to Mr Lazaropoulos, nevertheless declined to sign the short minutes. However he repeated that he did not want to defend the proceedings “any more”. He also promised to provide a written apology to the plaintiff within two weeks. The proceedings were then adjourned until 27 August to enable that to occur and to enable the parties to endeavour to resolve whatever issues remained outstanding.

19 On 18 August Ms Elliott wrote to the fourth defendant in the following terms:

We refer to the proceedings before Justice Buddin on 2 July 2004. Enclosed is a typed copy of the short minutes of order which you were invited to sign on that occasion.

On 2 July 2004 you informed his Honour that you would provide a written apology to Mr Konstantinidis, and that you would seek legal advice “tomorrow” (ie on 3 July 2004) in relation to whether or not you would sign the short minutes. We assume that you have now obtained legal advice in relation to the latter point.

Would you please inform us if you are now prepared to sign the short minutes. Please note that in the event that you decline to sign the short minutes, we will move the court on 27 August 2004 for an order that your defence be struck out.

We assume that you will be representing yourself in court on 27 August 2004. Please let us know if we are incorrect in that assumption and provide contact details of any legal representative you have instructed.


20 On 25 August Mr Lazaropoulos wrote to my associate. His letter is in the following terms:

I confirm that I have received instructions from George Stavroulakis to apply to the Court for a vacation of the hearing date of 27 August 2004 on the basis of his inability to appear and conduct his defence due to his illness. I enclose for your attention a copy of the medical certificates of his treating General Practitioner dated 23 August 2004, a copy of the report from the Bankstown-Lidcome (sic) Diabetic Clinic dated 15 July 2004.

I note that Mr Stavroulakis has been conducting his own defence to date and intends to continue to do so, and I understand that the above matter is currently part-heard.

I confirm that you will hear this application at 10.00 am on Friday 27 August 2004.


21 The certificate from the fourth defendant’s treating GP, Dr Jayadev, is in these terms:

This is to certify that Mr George Stavroulakis has Diabetes and today his blood pressure is raised at 170/110 mm. He has commenced on Avapro 150 mg 1 a day. He will be reviewed again on Friday 27th August 2004. Mr Stavroulakis will be unfit to attend court from 23.8.04 till 27.08.04


22 Mr Lazaropoulos informed the plaintiff’s instructing solicitor, Ms Elliott, of the foreshadowed application. She in turn advised Mr Lazaropoulos that the application would be vigorously opposed. Mr Lazaropoulos subsequently informed my associate by letter that his instructions had been withdrawn. In his letter to my associate, Mr Lazropoulos said that “the plaintiff (sic) will address Your Honour directly in respect of the proposed adjournment application”.

23 Ms Elliott then wrote to Dr Jayadev and requested that he make himself available for cross-examination in relation to the adjournment application. Dr Jayadev called Ms Elliott at midday on 26 August. Ms Elliott deposes in an affidavit which she swore the same day that a conversation to the following effect had then occurred:

He said I cannot come to court tomorrow. I am going on holiday. It is all booked. I have tried to get in touch with Mr Stavroulakis about this, but there is no answer. Do you have a mobile phone number for him?

I said I have two – 0433 131 390 and 0413 885 858. I think that one of them might be for Mrs Stavroulakis.

He said Thank you. What happens if I can’t come to court?

I said We understand that Mr Stavroulakis wants to rely on the medical certificates you provided in order to support an application to adjourn the hearing in court tomorrow. The plaintiff, who we act for, doesn’t want the hearing to be adjourned. On behalf of the plaintiff we will say that Mr Stavroulakis should not be allowed to rely on those certificates unless you are there in court and we can ask you questions about the certificates. The judge will then decide what happens.

He said I see. I booked my holiday a long time ago, and one day is not very much notice.

I said Yes I understand.

He said He should be okay by now anyway. I prescribed him that medication on Monday. It should have brought his blood pressure down by now.

I said Do you think he would be well enough to attend court?

He said Yes he should be. I would expect him to be. But I can’t get in touch with him to arrange to examine him. There is no answer when I telephone him. If I examine him and his blood pressure is normal he can go to court.

I said Perhaps you could try the mobile numbers I’ve just given you.

He said Yes I’ll do that.

I said What time are you going on holiday tomorrow?

He said I’m not sure. About 12.30pm or 1.00pm.

I said You couldn’t come to court in the morning at 10.00?

He said No, I have surgery. I wasn’t supposed to be working but there are sick people. So I am having morning surgery then I will be leaving straight away for my holiday.


24 The fourth defendant then wrote to Ms Elliott himself. Although the letter is dated 27 August the facsimile transmission notation indicates that it was sent on 26 August. In that letter the fourth defendant wrote:

I refer to the above matter and your correspondence dated 18 August 2004. I note that I am not prepared to sign your client’s proposed short minutes.

I enclose herewith a copy of correspondence that will be sent this morning to Justice Buddin’s Associate.

I seek your consent to adjourn this matter for a period of 2 months.

I also advise that I will not be in a position to attend court tomorrow.

25 The fourth defendant enclosed a copy of the letter which he said that he intended to send to my associate. It is in the following terms:

I refer to the above matter and advise that I will not be in a position to attend court tomorrow due to ill health. I enclose herewith copy of medical certificate for your reference.

I apologise for the late notice, however the cause of my inability to appear before the honorable (sic) court tomorrow is due to circumstances beyond my control. I have been on sick leave from work for the past 2 months until the 25th September 2004, and have been unable to attend work or to my other affairs due to my condition.

Furthermore I note that due to my financial circumstances, I will be unable to engage the services of Counsel or a solicitor in these proceedings. Consequently I will have to represent and defend myself in these proceedings.

A copy of this letter has been forwarded this morning to the plaintiff’s solicitors requesting their consent for an adjournment of 2 months. I will be attending hospital on 22 September 2004 for surgery. Copies of any medical reports are available upon request.

I understand this is last minute notice and that you may have more urgent matters to attend to, and any assistance you can provide in this matter will be deeply appreciated.

26 No such letter was received by my associate. Nor was there any communication with the registry of this Court by or on behalf of the fourth defendant.

27 I might observe that the letters which the fourth defendant wrote were in English although he professed, at various stages during the course of the proceedings, to have difficulties in understanding the English language. Indeed he had retained the services of an interpreter on 2 July although he appeared not to require her assistance at least whilst the various witnesses gave their evidence.

28 Ms Elliott then wrote to the fourth defendant in the following terms:

We refer to your facsimile dated 26 August 2004.

The plaintiff does not consent to the adjournment of this matter and expects that you will attend Court tomorrow to make your adjournment application.

In your facsimile you state that you have been unfit for “the past two months”. However, we note you were well enough to attend court on 2 July 2004 (less than two months ago). Sarah Elliott of this office spoke to Dr Jayadev earlier today. Dr Jayadev expressed the view that the medication he prescribed for you on 23 August 2004 should have taken effect by now, and that, in his view, your blood pressure should now be normal and that you should be able to attend court. We will be providing affidavit evidence of this conversation to the court tomorrow.

Enclosed is a copy of a draft affidavit of Tony Rallis on which the plaintiff intends to rely tomorrow in order to resist your adjournment application.

29 That letter was delivered by courier to the fourth defendant’s address. Ms Elliott gave evidence before me in which she confirmed the accuracy of the contents of her affidavit.

30 The affidavit of Tony Rallis was sworn on 27 August. He also gave evidence before me confirming the accuracy of its contents. The affidavit is in the following terms:

I have known Simon Konstantinidis for about 12 years. My office is in the same building in which his office is located. I provide development consultancy services to Mr Konstantinidis when he requires. I am aware of Mr Konstantinidis’ defamation proceedings against George Stavroulakis and others.

I have known Mr Stavroulakis for about 8 years through my involvement with football.

About a year and half ago I met Mr Stavroulakis by chance at the entrance to the Cronulla Sharks Stadium. I was there to attend a football match.

We had a conversation in Greek to the following effect:

I said Why are you defaming Simon with lies?

He said Simon’s an arsehole. I’m going to fuck him. He took me to court.

I said What did you expect him to do? You wrote all those lies about him.

He said I don’t care. I’ve got nothing in my name – no money. He won’t get anything from me, apart from...

He then made a gesture signifying that what Simon would get from him was his “balls”.

About eight weeks ago Mr Stavroulakis telephoned me. We had a conversation in Greek to the following effect:

He said Let’s have a meeting and try to resolve this with your big fella.

I said OK let’s meet at Cellini’s.

I understood “big fella” to be a reference to Mr Konstantinidis.

We met at Cellini’s café in Marrickville. We have a conversation in Greek to the following effect:

He said I wouldn’t mind trying to settle with Simon. This matter has dragged on enough and I want to get on with my life.

I said What do you have in mind?

He said I would be prepared to give an apology in writing.

I said You realise that he’s going to want some sort of settlement satisfaction for all the hurt that you’ve caused him and his family. I will speak to Simon and come back to you.

Three or four days later I met with Mr Stavroulakis again at Cellini’s café. We had a conversation in Greek to the following effect:

I said Simon wants a judgment for about $150,000, a public apology and a contribution to the some of the costs incurred last time you were in court and you got an adjournment. I realise you have no money but it would give some closure to all the bad feeling that Simon has, for all the problems that you’ve caused.

He said No way. I’m not giving him any judgment.

I said What did you think, he was just going to forgive you for all the trouble you’ve caused him and his family?

He said There is no way I’m giving him a judgment so he can bankrupt me. I’ve got plans and I want to make money and I won’t be bankrupt.

I said Don’t you realise that you are going to lose anyway. Skalkos and Leonis have lost already. Why are you different?

He said I came here to do a deal. If he doesn’t want to settle with a written apology and forget about judgments and all that bullshirt I’ll just drag the court case out. Just like I got the last adjournment. I’m going to keep embarrassing your mate like I did the last time. Your bloke turned red like a tomato. Because there he was with all his barristers and solicitors costing him a fortune and I defeated him. I’ll just play the system. I’ll say the solicitor didn’t explain to me, “I speak no English, I no understand” [This was said in English] – that’s how I defeated your bloke’s legal team last time.

I said How many times do you think you can get away with that? And besides, Simon has spent a fortune obtaining justice against Skalkos and Leonis. Why would he stop there? After all the hurt he’s been through.

He said What hurt?

I said Do you think his kids like being teased about their father being an apparent crook or his parents like reading the Greek Herald and reading all these things about their son?

He said I thought I was coming here to finalise this matter. If that’s the game he wants to play I’ll just keep embarrassing him and costing him money. It must have cost $10,000 last time.

I said There’s only so many times you can get away with it as I’ve told you.

He said I’ll just play the system. I’m a sick man you know, with diabetes, I can get medical certificates. It’s not costing me anything. The worst thing that can happen is that I’ll have to pay some two bit solicitor $250 to turn up.


31 Having heard the evidence to which I have just referred, I indicated that the foreshadowed application for an adjournment would be refused and that the matter would proceed.

32 I indicated at the time that I would in due course provide my reasons for refusing the adjournment. I now do so. The fourth defendant obtained an adjournment of the proceedings when he first appeared before me last November, notwithstanding the inconvenience and fragmentation of the proceedings that was thereby occasioned. Thereafter, as I have said, the fourth defendant failed to comply with the timetable for filing his amended defence until the eve of the hearing. Even then he was not in a position to have the matter proceed to finality notwithstanding the fact that he knew that the matter was in for hearing.

33 The proceedings were adjourned until 27 August to enable the parties to endeavour to satisfactorily resolve the matter. They were apparently unable to do so. Shortly before the matter was scheduled to resume, the fourth defendant consulted his GP who provided the medical certificate to which I have referred. A solicitor was engaged to represent the fourth defendant but his services were withdrawn on the eve of the hearing. It may well be that this occurred only after the plaintiff indicated that he would not consent to an adjournment of the matter although I do not need to reach a concluded view about this aspect of the case.

34 The fourth defendant was, according to the solicitor, to appear on his own behalf, to argue for an adjournment. That did not occur. Nor did the fourth defendant communicate with the court about the foreshadowed adjournment application, although he informed the plaintiff’s solicitor that he would be making it. To the solicitors he indicated that he needed a lengthy adjournment even though there was nothing in the medical reports which suggested that his alleged indisposition was likely to last for that length of time. In the final analysis, the fourth defendant did not appear on the day of the hearing.

35 These proceedings have been on foot for 8 years. There is a very strong community interest over and above the interests of the parties, in bringing these proceedings to finality. Moreover in light of the material which has been placed before me, and given the history of the matter, it is difficult to conclude other than that the fourth defendant entertains no genuine interest in seeing these proceedings brought to a conclusion unless it is upon terms which are satisfactory to him. That appears, at least at present, to be most unlikely. The material concerning his medical condition, and particularly as at 27 August 2004 was on any view, decidedly ambiguous.

36 In those circumstances, whatever claims the fourth defendant may have had in adjourning the proceedings had to yield to the community’s interest in, and the plaintiff’s entitlement to, having them resolved.

37 After proceedings were adjourned on 27 August my associate received the following letter from the plaintiff’s solicitor:

I refer to the hearing of this matter before his Honour this morning.

I wish to inform the court that when my employed solicitor, Sarah Elliott, returned to her office after his Honour adjourned this morning she found the following message had been emailed to her by her secretary:

Dr Jay (sic) from Greenacre called re George Starvoulakis (sic). He said that he had improved and he would be in a position to attend court next week. His number is 9790 3616, he will be leaving the surgery about lunch time today but will be in the surgery on Monday, if you don’t catch him today.

I understand that the telephone call was received at about 10.00 am.

38 That communication, along with other considerations prompted me to relist the matter. Efforts, which were unsuccessful, were made to contact the fourth defendant by phone to inform him of the relisting. Contact was made however with his wife. She was informed of the fresh date. She said however that the fourth defendant was overseas but that she would contact him and advise him about it. She promised to ring back but did not and subsequent endeavours to contact both her and her husband proved fruitless.

39 Because no evidence was led in support of the one defence which remained, it must fail.

40 The sole remaining question to be determined is an assessment of the damages to which the plaintiff is entitled. The seriousness of the imputations which were found by the jury to have been conveyed is apparent from a reading of the transcript of the program which was broadcast on 28 August 1996. Its contents are set out below. As I have already said, it involved a discussion between the third defendant and the fourth defendant:

Tony Leonis: ... of current news. It is quite interesting ... something that is being heard for the first time and it will surely seem strange to quite a lot of people but we must pay particular attention to everything that will be heard. Mainly the friends of Sydney Olympic and much more the members of the Sydney Olympic
...
... listener friends today we have as our first topic of talk, an issue that concerns, as we said yesterday and on the day before, all Greeks. The Sydney Olympic issue. In order to assist us we have in the studio our Sports Editor Mr George Stavroulakis er who will help with my scant knowledge of matters such as these, but the interest is still, as I am told, the same for all of you sports fans although I am not an expert on this matter. Here in our job each of us has his own expertise.

Well, I have George Stavroulakis, George... good morning to you ... although we both said our good mornings much earlier today, at 5 o'clock in the morning,

George Stavroulakis: Yes, from 5 o'clock in the morning.

Tony Leonis: Good morning to our listeners, too, ... well ... today we will reveal something, George.

All these circumstances of the Sydney Olympic keep the interest of the Greeks unflagging. It is a fact that everyone keeps track of it but does not know what exactly is happening with that notorious consortium, in other words, group of people who have, supposedly, put in $50,000 each and will give financial support ... the ... to clear up the team's debt and furthermore are promising quite a lot. What they cannot predict, however, is the fans' abstention not only from the team but from the Sporting club also.

It is a fact and we have no reason to hide it and we do not know the reason why people no longer go to the club like they no longer go to see the team. They predict ... and those who know, and you are one of them, and who are in the know, predict that the team will not draw people to the sports field this year.

And a team, George, hangs in the balance, we think ...its finances and even its existence hangs in the balance by the attendance of the fans who help with that through their ticket purchases and in various other ways.

Well, we have this new group of people in which strange things are happening. Two of them, they say, er are giving $50,000, they say, but ... Mr Konstantinidis who is also the president and in some way, like ... the founder of this situation, so to speak, George ...

George Stavroulakis: We will say something else so that the listeners of "The Voice of Greece" will understand what is happening. This whole move was first started by a very respectable person, a very good fellow member of the community, Mr Harry Kountouris, and on the basis that the fans know of this person's integrity, they went ahead and wholeheartedly said: "Since this is known as the "Kontouris Group" ... yes, good on you boys, get together and we will give you the management of Sydney Olympic".

Tony Leonis: Right

George Stavroulakis: But behind Mr Harry Kountouris, in the end, from what everyone realised, and I do not think we are fools, not to have realised this, was Mr Konstantinidis who knew exactly that if he were the front man he knew that the Sydney Olympic people would not be behind him. As the inclinations of these people are well known ...

Tony Leonis: ... were there elections held? Were there any elections held? Was Mr Konstantinidis a candidate?

George Stavroulakis: Yes and he had been blackballed over and over again.

Tony Leonis: Right

George Stavroulakis: That is the truth. He lost also with Mr Pashalis.

Tony Leonis: Right

George Stavroulakis: Finally, he could not be elected so he was forced to come to a point whereby he put Mr Harry Kountouris in front in order to organise that Kountouris group and finally to be able to take the Sydney Olympic management in their hands. However, what I want to say which you previously said it yourself... that they put the money in, they are supposed to have put the money in, and it is true what you are saying because our er information and at least our documents show that these persons presented to us now as members of Sydney Olympic management, have not all put in money. There are others hiding behind them.

Tony Leonis: Right ... so there are others hiding behind them and the two indeed, who each put $50,000 ... something was heard that they were bankrupt, isn't it so George?

George, this is not a bad thing. We are not criticising anyone but Mr Konstandinidis was asked, as my information tells me: "Where does the money these people are putting in come from?", as when you are declared bankrupt every dollar that you have in your pockets, as we all know, is controlled by some trustee or by some people in charge ... so where did they find this money?

And Mr Konstantinidis's answer was that it did not matter where the money came from, he says... the money may be coming from any lawful or unlawful means whatsoever.

George Stavroulakis: Mr Konstantindis's answer, which I think was clear on this issue, was given last week at the General Meeting held at the Sydney Olympic Club.

He mentioned this money because a lot had been heard outside and indeed during an interview I conducted with Mr Konstantinidis. I said to him: "There is information that this money does not belong to the people you present as the Kountouris Group." And he said to me: "No, I am telling you no as I know fully that all these people who are here put in money themselves."

However, in an answer that he gave to certain questions ... no, the question was not asked then but it had been asked a little earlier, Mr Konstantinidis's answer was this: "What do you care if this money is in cash or if it is in letters of guarantee in the bank.

And what do you care whether this money was put in by them, themselves, or by some other people? The money is there".

Tony Leonis: In other words, wherever the money came from, it is there.

George Stavroulakis: That was Mr Konstantinidis's answer and we then can come to any conclusion we like.

Tony Leonis: I should say, for example, to Mr Konstantinidis, as an answer, if I were there, that is, I would say to him in other words, if someone has some money from unlawful sources such as drugs, laundering etc., he could in order to promote himself and is in need to do that ... by someone who is carrying out unlawful dealings and ... I am not talking about any persons now, George ... This is theoretically speaking. Someone who is carrying out unlawful dealings could indeed go to Sydney Olympic, the team, and say: "I am putting in not only fifty but one hundred thousand dollars. Why? In order to promote myself as one of the members, right? ... of the Board of Directors." And we know very well, George, that every person having any dealings with the law wants to appear, somehow, as a respectable person in the community.

So, according to Mr Konstantinidis's reasoning, could a person like that put money in the team?

George Stavroulakis: By that answer, Mr Konstantinidis let our imagination "gallop" and begin to create scenarios ... we do not know what conclusions to reach... that can he true.

Another thing I would like to inform you about, as well as the listeners of "The Voice of Greece" and your programme, is that many want to become head of Sydney Olympic because believe me, during these past years many have stepped on Sydney Olympic and have become people with money and authority ... their mothers and everyone knows them now.

Tony Leonis: Exactly

George Stavroulakis: That is something, too, right?

Tony Leonis: That is something, too, and something very significant. That is why I want to make this revelation, today, George. This revelation I want the listeners to hear very clearly in order to see what is happening because we hide nothing and they should trust us because we have evidence.

So, I have in front of my hands, George, what is being revealed for the first time through this programme also. A document listing companies Mr Konstantinidis is involved in... Mr Simon Konstantinidis. So, one company called Brycill Pty Ltd with the number ACN 003 205 374 is a company which rents out, does properties, conducts property rental,... that is its business, in other words.

And this company is a registered company and the directors are Mr Simon Konstantinidis and Mr Jim Avgerinos of whom Mr Jim Avgerinos is also a partner of Mr er Greg Gavriilidis ...

George Stavroulakis: Gavriilidis ...

Tony Leonis: Gavriilidis, who owns the newspaper "TO VEMA".

George Stavroulakis: [indecipherable]

Tony Leonis: So certain mysterious things have begun coming out in the matter which is - what is the involvement of this newspaper in the matter? Well, Mr Konstantinidis is a partner of Mr Jim Avgerinos ... we have it in front of us. It is a document. It is proved. There are of course many other things down the track.

So we have the Sydney Olympic Sporting Club Ltd where Mr Konstantinidis is also a partner ... Carlisle Developments Pty Ltd that has home units that this company sells and Mr Simon Konstantinidis is also a partner in Balkon Pty Ltd, which is... a company, that is a shelf company, right? It is a private company etc., which Mr Simon Konstantinidis is in ... there is Davwick Pty Ltd that Mr Simon Konstantinidis is in ... and ...it is ...this one er, they say, with real and personal properties.

George Stavroulakis: Hmmm

Tony Leonis: And of course we have the "hare" here also. We have Mars Australia Developments ...

George Stavroulakis: Hmmm

Tony Leonis: ... which is another company in which the shareholders are Mr Bill Gertos, Mrs Shaunia Gertos, Mr Gertos, Gertos, Gertos, Mr Simon Konstantinidis by 25% and Mr Jim Avgerinos by 25%. Well, this company is a construction company and for investments ... property ... property investments ... investments in buildings. So, Mr Konstantinidis is in that company too as a partner of Mr Jim Avgerinos and Mr Gertos is the accountant ...the confidant, that is, of Mr Gavriilidis, again. In other words these cannot be coincidences. And we go on to the seventh company, to Galewood Pty Ltd which Mr Konstantinidis is in ... this is an authentic document_ So we are saying that there must be some connection between Mr Konstantinidis and Mr Avgerinos, since they are already partners in two companies and in these companies the other partners in the companies are persons of Mr Gavriilidis so we are beginning to see a certain connection in this whole story ... someone is getting in via the back door and getting it into his pocket and we do not know what the outcome will be.

Also, listener friends... we also have in front of us the list of the properties ... Mr Konstantinidis's properties ... er ... 257 Marrickville Road, Marrickville, 271 Enmore Road, I I Arthur Street ... these are units in Marrickville.

George Stavroulakis: Block of units, eh?

Tony Leonis: They are block of units and the ... one property at 120 Silver Street in Marrickville and for which listener friends we have a very long story to tell you ... and a story that will interest you very much in the future.

We will not tell it now. We are bound by certain legal matters but note this address especially ... 120 Silver Street Marrickville in order to hear a story that will make your hairs stand on end. I am saying this literally. And of course, in all these properties he also has the house he lives in.

So we give you the information listener friends in order for you to be able to come to your own conclusions.

We also have the matter of Mr Dendrinos. Mr Dendrinos, I think, has left for Greece ...

George Stavroulakis: Mr Dendrinos was one of the, I can say, much stronger supporters than the ones who are currently on the list of Sydney Olympic members and who, for quite a long time now, wanted to get into the Sydney Olympic management, something he did not achieve by the ballot ... and he was a person who wanted to get in the Juniors section because from what he had repeatedly expressed in the past, good business could be had there. Juniors can bring money to the club and he is right in that.

However, this is what I cannot understand... how, when they had got the instruction from the fans, from the Sydney Olympic members, in their hands ... Mr Dendrinos, upon getting the instruction he had waited for for so many years, he suddenly leaves for holidays in Greece with his return unknown.

Tony Leonis: Right ... so ...

George Stavroulakis: Well, I do not know if he will return ...

We do not know if he will return ... the man may have left for his summer holidays in Greece.

Tony Leonis: However, there is a certain a certain connection with him.. We give you the information listener friends. We give the information to the fans to make them aware of the fact that these things are happening and that all these things cannot be happening by chance ... that they cannot be coincidences, in other words, that Mr Simon Konstantinidis is a partner of Mr Jim Avgerinos. Mr Jim Avgerinos is a partner of Mr Gavriilidis and again, Mr Simon Konstantinidis is in a second company with Mr Avgerinos together with the gentleman confidant of Mr Gavriilidis. In other words, something is going on around here.

And because, as you well know, George, we and especially the fans, do not like to be taken for fools ... the fans have a special sensitivity to all this ...

George Stavroulakis: They are not only sensitive, they are also touchy...

Tony Leonis: Because they do not like to have their leg pulled, they should take a stance, they should take this information into account and when the time comes they can ask questions and... those are perfunctional things... we do not take away your freedom of speech and some idiots who come out there to boo ... the ones who give er give only $20 a year to the team and make an appearance only at the General Meeting and who are put up by others, they do not carry any weight. Indeed I was told that there would be some beatings the other day ... if they dare even speak to benefactors at least.

George Stavroulakis: In all, there are fifteen people only ._- in other words ...

Tony Leonis: Fifteen ... have you been informed of this George?

Transcript continued on next page

George Stavroulakis: Yes ... and there are photographs ... Anyway, I would like to say something and interrupt you, Tony, that is that some time ago now I bad said that behind this whole story is another gentleman who has plenty of money and who can give money without problem, would could say but in any case serving some other purposes all of them without exception except one who I do not wish to name because he gave me information and made me suspicious, we believed these while everybody else did not believe it, they continuously saying that Mr Konstantinidis with Mr Greg Gavrilidis are separated by, how can we put it, a hate, they have quarreled, they have locked horns, and I say, listen boys, this is exactly the excuse so that they can do business as they want ...

Tony Leonis: Exactly.

George Stavroulakis: Why do you take this thing into consideration ...

Tony Leonis: It is not of interest to us, George, it is not of interest to us what everyone does ... Mr Gavrilidis is a business man, and Mr Konstantinidis is a solicitor, they are professionals, we don't accuse anyone. What is of interest to us, and what burns us, George, is a team which was built by Greeks, and I say "built" because every Greek has put a little stone into the team, so that the team will remain and not fall into decline. In other words, we must try to save it for Sydney Olympic to remain. That is the purpose. of this broadcast, the third consecutive broadcast on the issue, and today's broadcast is the epilogue, the purpose of all of us and especially Mr Skalkos who has given plenty to the team, and it would a shame, and I say a shame, for certain persons that benefited from him, and that I know well because I am from within here, to write such untruths and such nonsense for the person of Mr Skalkos. These persons should be ashamed of themselves.

George Stavroulakis: That is true ...

Tony Leonis: They received benefits from him, I have seen them begging him on their knees for help, so these, and I have noticed one thing George, those who benefited from him, and there is another case outside sport, those who he helped and the ones who spill the most poison. It is a mystery, the human soul is an abyss. So I want to say that, to us the team matters most. Can this team progess?

George Stavroulakis: It is true. Yesterday, we had here an excellent veteran journalist ...

Tony Leonis: Thanassis ... Thanassis Hatzianestis ...

George Stavroulakis: Of course, who said a lot of truths and whom I would like to congratulate from this microphone and your broadcast, Tony, because he had the courage to stand up, despite being booed by those fifteen people who we know their identity, to stand up and say that I know how much Theodore Skalkos loves Olympic, you don't know and what he has offered. It is a fact that Arthur Hatzianestis who has been with the team for thirty years knows much more than these gentlemen, has a lot to say but even what he said in yesterday's broadcast I think that whoever was listening would have understood a lot. What I have to say is to see how the issue will progress, and we should not let this team die because dangers lurk and as you have learnt yourself the Australian Soccer Federation does not make allowances anymore. If it sees that you are on the wrong path, it can immediately tell you to go. So Sydney Olympic could die from moment to moment We are not secure where we are, this must be understood by the Greek fans, Sydney Olympic is not certain that it can participate this year in the big league.

Tony Leonis: So our purpose George, is not to suffer the damage and then try to catch up, but to prevent the damage. So that is why we have these broadcasts and inform the people, the fans and the members of Sydney Olympic so that they know what is happening at this moment Some people are trying to take over, and these persons might have other purposes, other plans, we don't know and we are sure about everything, but everything shows that it is not accidental that these people appear on the one hand as enemies and on the other had as partners ...
George Stavroulakis: Definitely.

Tony Leonis: ... And not in one company but in many companies. This must betaken into consideration by all and not to mock the people. Nobody should mock the people, You can mock one person many times, but you cannot mock the many on many occasions. They must understand this very well, because at the end they will find themselves exposed and if someone is exposed to soccer fans. George, you know what it means ...

George Stavroulakis: As we have said, soccer fans are easily agitated

Tony Leonis: That is, good luck to anyone who finds himself exposed to soccer fans. Is this true?

George Stavroulakis: I cannot say whether it is gate 7 or gate 13 ...

Tony Leonis: Does matter...

George Stavroulakis: But this is a strong gate as well ...

Tony Leonis: Exactly. If some of them see their team dying, and that is our efforts dear listeners to not let it die, I think that these persons will find themselves exposed. They can do whatever they what in their businesses, that is their right, but what we reveal outside sport is about the property 120 Silver Street, we are taking about a story which will blow your mind. But what, have patience, all in good time, every will come. I must thank George Stavroulakis, George thank you very much ...

George Stavroulakis: I thank you and I will wait for an occasion for us together from a stand of a soccer field we will feel the tension and excitement -of a soccer match.

Tony Leonis: Exactly George. I wish it wholeheartedly along with all Sydney Olympic soccer fans and all Greeks in general and I thank you for your valuable advice because as you know very well I don't know these things and I don't like saying inaccuracies. Anyway listeners, we will pass to a another song and immediately after we will talk about many more and more interesting topics.

41 As I have said, the plaintiff called evidence concerning the impact which the broadcasts had had upon him. Although the fourth defendant had the opportunity to cross-examine each of the witnesses called, the evidence was, for all practical purposes, uncontradicted.

42 When the plaintiff heard the first and second broadcasts, he said that he “was absolutely distraught” and “extremely upset”. He felt concern about its impact upon his family, particularly his children. He said that he “couldn’t believe what he was hearing”. He said that he felt “extremely distressed”, “embarrassed”, and demeaned. He gave evidence that as a result of the broadcasts he was very concerned about his reputation and his good name. He said that his sleep was disrupted and that he would wake up in a sweat at night. He gave evidence that he had suffered other physical reactions such as headaches and migraines as well as hot spots on the top of his head. He gave evidence of attending social events with less frequency and becoming withdrawn in the wake of the broadcasts.

43 The evidence of the plaintiff was corroborated by that of his wife. She observed that he was “angry” and “upset” and that he was unable to sleep. She said that he would experience “cold sweats” and that he could not eat properly and that he had become depressed. She said that her husband had suffered from severe migraines with hot spots on the top of his head. She gave evidence that he had developed a “reflux peptic” reaction in his stomach. She also said that he had withdrawn socially.

44 The plaintiff gave evidence that there had been a reduction in the number of solicitors whom he had employed from 5 in 1996 to 2 or 3 in 1998. Furthermore, he said that “a number of clients withdrew instructions” following the broadcasts in August 1996. The evidence also reveals that the proportion of the plaintiff’s Greek clients declined from about 80% of his overall practice in 1996 to its current level of about 50-55%.

45 Mr Babalis gave evidence of the “many, many, many people”, including people he knew, who listened to the “Voice of Greece” at the time. The plaintiff’s wife said that in the Marrickville Greek community every household had a Voice of Greece radio and that “thousands” of people received the Voice of Greece broadcasts.

46 In assessing the damages to be awarded in the present case I must pay due regard to the matters set out in Part 4 of the Defamation Act 1974, and to the authorities in which the general principles to be applied are enunciated. As Hayne J, with whom Gleeson CJ and Gummow J agreed on the question of damages, observed in Rogers v Nationwide News Pty Ltd (2003) 77 ALJR 1739, there are three purposes to be served by an award of damages for defamation. His Honour said that they are:
“(i) consolation and hurt caused to the [plaintiff] by the publication;
(ii) reparation for harm done to the [plaintiff’s] personal, and in this case, professional reputation; and
(iii) the vindication of the [plaintiff’s] reputation. As pointed out in Carson the first two purposes are frequently considered together and constitute consolation for the wrong done to the [plaintiff]; vindication looks to the attitudes of others” (at 1750).

47 A little later his Honour said:

First, damage to reputation is not a commodity having a market value. Reputation and money are in that sense incommensurable. Secondly, comparisons between awards for defamation are difficult. Every defamation, and every award of damages for defamation, is necessarily unique. Thirdly, because the available remedy is damages, courts can and must have regard to what is allowed as damages for other kinds of non-pecuniary injury. (at 1751)

48 In Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1992-3) 178 CLR 44, Brennan J said:

The chief purpose of the law in creating a cause of action for defamation is to provide vindication to counter the injury done to the plaintiff in his or her reputation....

The sufficiency of the amount awarded is not to be determined by
reference solely to circumstances past and present; the amount must be sufficient to vindicate the plaintiff's reputation in the relevant respect in the future. Thus Lord Hailsham in Broome v Cassell & Co said:

"Not merely can [the plaintiff] recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge."

...

Although damages are awarded to vindicate the plaintiff's reputation, damages are not awarded as compensation for the loss in value of a plaintiff's reputation as though that reputation were itself a tangible asset or a physical attribute which, once damaged, is worth less than it was before. In order to achieve the purpose of vindicating reputation, damages for defamation are quantified by reference, inter alia, to what is needed to achieve that purpose: those damages are not quantified by reference to a depreciation in the value of a plaintiff's reputation. Other heads of damage are compensation for the external consequences produced by the publication of the defamation and "a solatium" for the plaintiff's internal hurt, that is, for the complex of reactions that the plaintiff has experienced as the result of the publication and its external consequences.

...

The consequences of publication include not only the insult publicly inflicted on the plaintiff but also the effect of the defamation on those to whom it is published, any diminution in the regard in which the plaintiff is held by others, any isolation produced (causing the plaintiff to be "shunned or avoided" is the traditional formula) and any conduct adverse to the plaintiff engaged in by others because of the publication of the defamatory matter. Damages are awarded also for the plaintiff's injured feelings, including the hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt by the plaintiff. Indeed, all those objective consequences and those subjective reactions which flow naturally from the publication of the defamatory matter are relevant factors. Of course, the subjective reactions are often produced by the objective consequences of the publication. The two categories are not cumulative heads of damage but descriptions of kinds of intangible factors which must be taken into account in assessing damages.

Damages may be aggravated or mitigated by the manner in which the defamatory matter was published and by the subsequent conduct of the defendant. Conduct of the defendant from the time of publication until verdict (including conduct at the trial, to which reference will presently be made) is relevant. In Broome v Cassell & Co Lord Reid, speaking of the bracket within which any sum could be regarded as not unreasonable compensation, said :

"It has long been recognized that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation."

Evidence of the defendant's conduct is admissible also in proof of malice. But s 46(3)(b) of the Defamation Act provides that, in New South Wales, damages --

"shall not be affected by the malice or other state of mind of the publisher at the time of the publication complained of or at any other time, except so far as that malice or other state of mind affects the relevant harm."

Evidence of the defendant's conduct is therefore relevant and admissible on the issue of compensatory damages, whether or not it tends to prove malice, but only so far as that conduct exacerbates or ameliorates the consequences of the original publication or the plaintiff's injured feelings.

Damages by way of vindication of reputation are not added to the damages assessed under other heads. Although an award of damages operates "as a vindication of the plaintiff to the public and as consolation to him for a wrong done", as Windeyer J said, the dual operation of an award does not require cumulative components of damages. The same sum can operate as vindication, compensation and solatium, for "the amount of a verdict is the product of a mixture of inextricable considerations". The amount assessed under other heads may itself be sufficient in aggregate to provide the vindication required. The extent of the overlap depends on the circumstances. But the award in total must be sufficient to satisfy the purposes for which damages for defamation are awarded: vindication of reputation, compensation for injury to reputation and solatium for injured feelings. (at 69-72) (footnotes omitted)



49 It is well established that damages in defamation are “at large” and that “the whole process of assessing damages is essentially a matter of impression and not addition”. See Broome v Cassell & Co Ltd [1972] UKHL 3; [1972] AC 1027 at 1071-2 per Lord Hailsham.

50 Nevertheless there are some particular features of the present case that must take their place in the assessment of the appropriate quantum of damages. At the forefront of any such assessment must be the fact that the various imputations to which I have referred are extremely grave. Apart from any other consideration, they constitute a direct attack upon the plaintiff’s integrity and honesty. Those are matters of vital importance to the plaintiff’s professional standing as a solicitor. As Mahoney ACJ said in Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176 “[I]n some cases, a person’s reputation is, in a relevant sense his whole life. The reputation of a clerk for financial honesty and of a solicitor for integrity are illustrations of this” (at 193). A little later his Honour said “the law should place a high value upon reputation and in particular upon the reputation of those whose work and life depend on their honesty, integrity and judgment” (at 195). In the present case, the plaintiff has been subjected to allegations which not only reflected upon his integrity and honesty but which were also clearly capable of constituting criminal misconduct.

51 It is readily apparent that the various imputations found by the jury to have been conveyed would cause very great anguish and distress to anyone about whom they were made. But as Hayne J said in Rogers, “it is of the first importance to recall the fundamental principle that the damages to be awarded for defamation must compensate for the effect of the defamation on the particular plaintiff” (at 1753). In other words, it is the plaintiff’s subjective response which is important. There is little doubt that he has been affected both emotionally and physically by the broadcasts.

52 The words used leave little to the imagination. There was nothing subtle about them. Nor could it be said that the broadcasts contained, as it were, passing references to the plaintiff. The nature and scope of the imputations cast were such that their impact is unlikely to have been temporary or short-lived. These were not allegations which were likely to die a natural death.

53 Although the immediate audience reach for each of the broadcasts was relatively modest compared to say a national television broadcast, it was still a very significant audience from the plaintiff’s perspective given his prominent position in the Greek community and the importance of it to his legal practice.

54 It is clear from his evidence that the various broadcasts have had a very significant impact upon the plaintiff. Moreover that impact has continued up until the hearing itself. In short, he has been profoundly hurt by them. I do not overlook the fact that the quantum of damages assessed should reflect the fact that the plaintiff should be thereby provided with a significant measure of vindication, especially within the Greek community, in which his reputation has been particularly damaged. See Nugawela (supra) at 194F.

55 It is also reasonable to infer from the totality of the evidence that the broadcasts were responsible for a downturn in the plaintiff’s business. That is also accordingly a proper matter to take into account. See Andrews v John Fairfax & Sons Limited (1980) 2 NSWLR 225 at 235 per Hutley JA and at 251-2 per Glass JA. However there was no evidence adduced to establish that his professional earnings had diminished by an identifiable amount such as would entitle him to compensation for specific economic loss.

56 I am also required to have regard to the implications of s 46A of the Defamation Act. Hayne J in Rogers (supra) made the following remarks about the operation of that section. His Honour said:

In the end, what s 46A draws to attention is that damages awarded for defamation must take their proper place in the administration of justice. In particular, they must stand in a proper relationship with awards for the non-economic consequences of personal injury. The relationship which s 46A (2) identifies is not, however, some precise or mathematical relationship between particular cases of defamation and personal injury or between particular classes of such cases. To do that would compare the incomparable. Nonetheless, s 46A (2) should be understood as having two particular consequences of relevance to the present appeal.

First, it invites attention to the nature of the injury done by defamation compared with the consequences of physical injury. The injury done by defamation, even if serious, is often evanescent. By contrast, some personal injuries are permanent and devastatingly disabling. One of the principal purposes of an award of damages for defamation is to vindicate the wrong that was done. By contrast, damages for personal injury can compensate, but cannot right the wrong that was done. Yet, in neither defamation nor in personal injuries is there any measure by which the compensation for the non-pecuniary loss which the particular plaintiff has suffered can be assessed except what is “reasonable”.

The second effect of s 46A (2) flows from both the reference to the “general range” of damages allowed in personal injury cases and the inclusion, within the class of personal injury cases to be considered, of cases where the damages to be allowed are regulated by statute. Treating cases where the damages allowable are capped by statute as included within the “general range” to be considered shows that those statutory limits imposed in cases of motor or workplace accident are not to be taken as being indirectly imposed as limits on the amount to be allowed in defamation. But the reference to the general range of damages does identify the highest sums awarded for the non-economic consequences of personal injury as what might be called a presumptive outer limit to awards for defamation. So much follows from the fact that rarely, if ever, will the harm done by a defamation be greater than the most serious form of physical injury which leads to permanent and serious disabilities. And if that represents the presumptive outer limit to awards for defamation, each particular award that is made must find a place within a range which is marked out in that way. (at 1753)

57 In the present context I have been reminded by Mr Lynch that the current cap for general damages for non-economic loss in personal injury cases to which the Civil Liability Act 2002 applies, is $384,500 for a most extreme case. I also note that there is a statutory prohibition against the award of exemplary damages. See Defamation Act s 46(3)(a). That being so, no punitive element can be allowed to intrude.

58 I am persuaded that this is a case in which an award of aggravated compensatory damages is warranted. See Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 at 514. I am so persuaded because the broadcasts themselves were not only conveyed in a highly sensational way and contained allegations that upon the uncontradicted material which is before me, were entirely false, but also because of their widespread publication in the Greek community.

59 As I have already said, I awarded damages against the first defendant in respect of the first and second broadcasts in the sum of $200,000. That sum included a component for aggravated compensatory damages. In awarding aggravated damages I had regard to the aspect of the broadcasts to which I have just referred.

60 However I also placed considerable emphasis upon two other features of the case which significantly aggravated the damages which were awarded against the first defendant. On the day following the broadcasts with which I am presently concerned, the plaintiff’s solicitors wrote to the various defendants complaining about the broadcasts and warning them of the consequences of any further broadcasts. The first defendant nevertheless proceeded to publish no fewer than six further broadcasts in the following few weeks. Those programs contained material which was extremely derogatory of the plaintiff. I referred to particular aspects of them in the earlier judgment. It is unnecessary to repeat what I said there. Suffice it to say that I observed that those programs amounted to a “concerted campaign” to denigrate the plaintiff and revealed a “vendetta” against him. Furthermore, the first defendant persisted in relying upon the defence of truth in certain respects.

61 The plaintiff readily concedes that neither of those significant features of aggravating conduct was displayed by the fourth defendant. Accordingly, the plaintiff submits that the appropriate course that should now be taken is to reflect those differences by awarding a lesser sum by way of damages in the case against the fourth defendant. The first and fourth defendants are of course joint tortfeasors but it is contended that the proper approach is to reduce the amount of the fourth defendant’s joint and several liability in order to reflect his less serious conduct. The plaintiff submits that such an approach is supported by authority. See Bateman v Shepherd & Ors SC (ACT) 4 February 1997 unreported per Hogan AJ, which is referred to in Tobin and Sexton Australian Defamation Law and Practice Butterworths at 22,105 (March 2000).

62 I have not had the advantage of any detailed submissions upon this point and nor of course have I had the benefit of any submissions at all from the defendant. I am disposed nonetheless in the circumstances to assume, for present purposes, that this is the appropriate course to take.

63 Accordingly, the plaintiff’s position is that although he seeks a judgment against the fourth defendant for his part in the broadcasts, he does not seek a separate award for damages against him in addition to the award which I have already made against the first defendant.

64 As I have said, the fourth defendant at one stage foreshadowed the possibility that he would provide the plaintiff with a written apology. Ultimately none has been forthcoming. In the circumstances, nothing has been advanced by way of mitigation which could lead to a reduction in the damages which it would otherwise be appropriate to award.

65 In my view the fourth defendant should be held jointly and severally liable with the first defendant in respect of the first and second matters complained of in the sum of $100,000. That award should attract interest at the rate of 2% from the date of publication until verdict. See Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at paras 1538 – 1556. I note however that the plaintiff is prepared to forego any interest accruing after 5 December 2003.

66 I direct entry of judgment for the plaintiff in accordance with these orders. I order the fourth defendant to pay the plaintiff’s costs. The plaintiff is to bring in short minutes to give effect to these orders.


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LAST UPDATED: 22/09/2004