Case: Goyan v Motyka [2008] Aust Torts Reports p81-939
Outcome: discussed
bankruptcy notice issued by the respondent claims that the applicant owes him the sum of $71,654.83 by reason of a final judgment entered by the Supreme Court of New South Wales. On 16 October 2007, the Supreme Court of New South Wales entered a judgment in favour of the respondent against the applicant in the sum of $60,000, together with interest, calculated at the rate of 2 per cent per annum from 21 November 1999 in the sum of $8,728.80. The amount of interest claimed in the bankruptcy notice is $11,654.83. The respondent's action which resulted in the judgment was a claim against the applicant and her husband for damages for defamation. An appeal by the applicant and her husband against the judgments entered against them was dismissed by the Court of Appeal of New South Wales: Goyan v Motyka [2008] Aust Torts Reports p81-939. The applicant's husband is Mr Michael Goyan. He was also served with a bankruptcy notice, wherein the respondent claimed that he was indebted to the respondent in the sum of $71,654.83. As I have said, he also was sued for defamation by the respondent in the same action in the Supreme Court of New South Wales. Mr Goyan issued an application against the respondent in the Federal Magistrates Court of Australia on 29 April 2008, seeking the same orders as are sought by the applicant in this proceeding. The proceedings by the applicant and her husband have been dealt with together and, for the most part, the same documents have been filed in each proceeding. As will be seen, on the day listed for the hearing of the applications, the applicant's husband consented to an order that his application be dismissed. The history of the proceeding The circumstances of the defamation action in New South Wales are set out in the reasons for judgment of Tobias JA in Goyan v Motyka [2008] Aust Torts Reports p81-939. Giles JA agreed with Tobias JA, as did Handley AJA, although Handley AJA added some brief additional comments. Tobias JA described the background to the action in the following way (at 61,370-61,372 [2]-[19]): "On 1 May 2000 the respondents, Dr Wolodymyr Motyka (Dr Motyka) and his mother-in-law Mrs Edvokia Ostrowskyj (Mrs Ostrowskyj), together 'the respondents', commenced proceedings against the appellants, Maria Goyan (Mrs Goyan) and Michael Goyan (Mr Goyan), together 'the Goyans', alleging that they had published certain defamatory matters relating to the appellants in 1999 and 2000. At a hearing in 2002 pursuant to s 7A of the Defamation Act 1974 (the Act), a jury determined that a number of letters had been published by one or other and, in one case, both of the Goyans, which conveyed imputations defamatory of each of Dr Motyka and Mrs Ostrowskyj. Pursuant to s 7A(4) of the Act, the primary judge, James J, determined whether any of a number of defences pleaded by the Goyans were established and the amount of damages, if any, which should be awarded to each of Dr Motyka and Mrs Ostrowskyj. Relevantly, the only defence that was seriously pressed at the hearing before the primary judge was that of common law qualified privilege and, with somewhat less enthusiasm, unlikelihood of harm (s 13 of the Act). Those defences were rejected. His Honour also found that Mrs Goyan's publication of the material complained of was actuated by malice. Having rejected the Goyans' common law qualified privilege defence and having found that Mrs Goyan's publications were in any event actuated by malice, the primary judge assessed damages in favour of Dr Motyka against each of the Goyans in the sum of $60,000 together, in favour of Mrs Ostrowskyj against Mrs Goyan in the sum of $45,000 and against Mr Goyan in the sum of $15,000, in each case together with interest. The Goyans appeal to this Court to review his Honour's findings with respect to the defence of common law qualified privilege, including his finding of malice against Mrs Goyan. They also assert that the quantum of damages awarded to each of the respondents was excessive. The factual background of the dispute In about 1971 Dr Motyka, who lived in Adelaide at the time, helped found an organisation called the Ukrainian Studies Foundation of Australia (the USFA), a company limited by guarantee. Its charter was to promote Ukrainian studies as an academic discipline at a tertiary level. It was, therefore neither a social, community nor cultural organisation. Dr Motyka was one of the original directors of the USFA and served as its chairman from 1990 to 2002. He and his wife moved to Newcastle in about 1979 when he took up an academic position in Accounting at the University of Newcastle. He holds the degree of Doctor of Philosophy in Commerce. Mrs Motyka is a registered medical practitioner. The Goyans also lived in Adelaide. Mr Goyan was a member of the USFA from 1971 and served on its Board in 1987-1988 and 1991. Between about 1976 and 1985 Mrs Ostrowskyj was the head of an organisation known as the Ukrainian Women's Association of South Australia (the UWA). In about 1985 she moved to Newcastle and in 1987 helped found the Ukrainian Women's Association, Newcastle and Hunter Region, which she has headed since its inception. Between 1998 and 2001 she was the head of the National Executive of the UWA in Australia. A Mrs Valentina Nakazny (Mrs Nakazny) had served as the Treasurer of the UWA, Newcastle and Hunter Region. However, she was removed from that office and expelled from the UWA some six or seven years before the publication of the matters complained of in this case. Mrs Nakazny was originally named as a defendant in the statement of claim but the proceedings against her were abandoned after she died. It appears that the present litigation emanates from a dispute between the parties over the organisation of the USFA. Mr Goyan and other USFA members in Adelaide believed they had formed the South Australian "branch" of that organisation. They organised themselves accordingly, conducted annual general meetings of the 'branch' and elected representatives to act as their chairman, treasurer and so forth. At the times relevant to the litigation, Mr Goyan was serving as the elected chairman of the 'branch'. South Australian members of the USFA, led by Mr Goyan, sought control over the funds which those members had raised and which were held in an account in the name of the USFA with the Hoverla Ukrainian Credit Co-operative in South Australia (the Credit Co-operative). In late 1998 an officer of the Credit Co-operative forwarded to the USFA in Sydney a copy of a document which it had received, purporting to record that Mr Goyan and a Mrs Berketa had been authorised to operate on USFA's account with the Credit Co-operative. However, Dr Motyka and the Board of the USFA did not consider there to be 'branches' of the organisation: merely that there were some members of the USFA in Adelaide. They considered that the Board should keep control of all of the funds raised in the name of the USFA by its members, wherever they resided. According to the constitution of the USFA, so they claimed, representatives of the organisation could only be appointed by the Board or at the annual general meeting. The Board therefore asserted that so-called elections held with respect to the South Australian 'branch' were invalid. The Board further deemed that the South Australian representatives had no power to access the USFA's account with the Credit Co-operative except with Board approval, which had not been given. Dr Motyka's evidence on this issue as summarised by the primary judge at [83] was as follows: 'Dr Motyka gave evidence that there was only one account with the Hoverla Credit Co-operative, an account held by the legal entity being the company even if it contained two 'components', an investment account and an operating account, and that the only persons authorised to operate on any component of the account were persons authorised by the Board of the USFA. Dr Motyka denied that there was a local account capable of being operated by members of the USFA in South Australia.' There was disagreement as to Mr [sic] Motyka's characterisation of the account of the USFA with the Credit Co-operative as being only one account with two components. Mr Goyan believed there to be two accounts, and claimed he was seeking access to only one of them. During the USFA's Annual General Meeting in Sydney on 30 January 1999 (the January AGM), Dr Motyka made reference to there having been an unauthorised attempt to change the signatories to the organisation's account. Mr Goyan was at that meeting and took this reference to relate to him although he was not referred to by name. He also complained at the meeting of difficulties with, and inadequate accounting by, the Board. On 25 February 1999 Mr Goyan wrote a letter in English to the Board of the USFA (the 25 February letter) in which he purported to set the record straight regarding the accounts and in which he repeatedly referred to Dr Motyka as a liar. The USFA responded in a letter dated 30 March 1999 written by Dr Motyka in Ukrainian (the 30 March letter). The letter informed Mr Goyan that he had breached the constitution of the USFA in a number of respects, including illegitimately representing himself to be the head of the USFA's South Australian 'branch' and illegally attempting to change the signatories to the USFA's account with the Credit Co-operative. The letter further alleged that Mr Goyan had been distributing letters, some on USFA letterhead, which made untrue allegations against the Board and its members and which injured the good name and reputation of the USFA. Finally, the letter requested that Mr Goyan appear before the Board in Sydney at its next meeting on 17 April 1999 and contained an offer to pay for his return journey from Adelaide so that he could do so. Mr Goyan responded by letter dated 12 April 1999 in English (the 12 April letter) indicating that he would not be attending the Sydney meeting. In that letter he accused Dr Motyka of being high handed and intimidating and implied that he was attempting to alienate all the members of the USFA in order that he might have access to the organisation's funds for himself. Mr Goyan did not attend the meeting on 17 April 1999 and was informed in a letter dated 30 May 1999 that the Board had resolved that he be expelled as a member of the USFA." Tobias JA said that in 1999 and 2000 the applicant and her husband wrote a number of letters in both English and Ukrainian in the course of the disputes referred to in his statement of the factual background of the dispute. The letters were distributed to Dr Motyka and his family and other members of the Ukrainian Studies Foundation of Australia ("USFA") and the Ukrainian Women's Association of South Australia and to other members of the Ukrainian community. There were many letters but only a limited number were complained of by the respondents. Mr Goyan published a book in 2000 in which he reproduced many of the letters (in a mix of Ukrainian and English). The translated title of the book was " A Good Name is One's Greatest Wealth " and its cover bore the logo of the USFA. Tobias JA then set out the publications which had been found by the jury to have conveyed defamatory imputations. They were as follows: A letter dated 17 November 1999 from the applicant and addressed to "Dear Reader", which produced a letter dated 15 November 1999 that the applicant had received from Mrs Nakazny (see [9] of Tobias JA's reasons above). The letter from Mrs Nakazny was apparently written in response to a letter Mrs Goyan had sent to the Board of the USFA. A letter the applicant wrote to Mrs Nakazny on 21 November 1999. A letter the applicant wrote to Mrs Rosa Stenanyszyn on 28 January 2000. A letter the applicant and her husband co-signed and addressed openly to the Ukrainian community on 28 August 2000. The book containing letters dated 25 February 1999 and 12 April 1999.