SSAA Victoria wins defamation case against former President
Former SSAA Victoria president Karel Zegers has been ordered to pay $887,000 in damages and all the plaintiffs’ legal costs, amounting to several hundred thousand dollars after Melbourne's Supreme Court found he had defamed eight SSAA Victoria board directors and CEO Jack Wegman.
Mr Zegers was found to have set up two websites in the lead up to the 2014 SSAA Victoria board elections (in which he was a candidate) and used the websites to attack the board and Mr Wegman.
Forensic examination of Mr Zegers' computer also found that he had sent eight malicious and anonymous emails to 4000 SSAA Victoria members accusing the Board and Mr Wegman of dishonest, deceptive, immoral and illegal conduct and being in breach of the SSAA Victoria Constitution.
In handing down his judgement last week (August 16), His Honour Justice Dixon said, “I accept the plaintiffs’ contention that the defendant’s dominant and improper purpose was to denigrate and injure the plaintiffs in an anonymous manner in order to avoid exposure to the consequences of his actions.
“I am satisfied that the defendant was actuated by malice.”
Justice Dixon said the content of the emails contained “serious slurs on the reputations of the plaintiffs.
“The anonymous and confusing emails challenged the honesty, integrity and character of the plaintiffs in their professional context,” he said.
“They are mostly persons whose work and life depends upon their honesty, integrity and judgment.”
Even though he had denied sending the emails, Mr Zegers’ defence was that he believed there to be truth in the allegations he had made against the Board and Mr Wegman.
However, Justice Dixon found the allegations to be unfounded.
“… the defendant … subjected the plaintiffs to his false assertions that his view of events justified the conclusion that they were dishonest and deceptive,” he said.
“Ultimately, the events in court would reveal that it was the defendant who had been dishonest and deceptive and notwithstanding his protestations to the contrary, I do not accept that he had any genuine belief that the plaintiffs were dishonest, had engaged in acts of deception, or that Mr Wegman was guilty of improper conduct.
“Rather, I am satisfied that the defendant was vindictive.”
SSAA Victoria CEO Jack Wegman, who Justice Dixon noted “bore the brunt of the defendant’s attack”, said he was thankful justice had been done.
"We regret it came to this and the result gives us no joy," Mr Wegman said.
"But the size of the penalty shows how serious this matter is and justifies the course of action taken by the Board.
"At the time of these events, there was a destabilising faction within the Association attempting to block the positive steps we were taking to improve our culture.
"We felt compelled to take the matter to court as the last resort, but the Board considered it to be action which was vital to establishing clear standards of behaviour.
“We want the people who volunteer to serve on our Board and the staff who work in our State Office to know that they will not be subjected to malicious and false accusations without consequence.”
SSAA Victoria brought the defamation case to the Supreme Court after Mr Zegers rejected four requests to cease and desist.
Had he accepted responsibility and retracted his accusations after the first request was made, no costs would have been incurred.
The final request was made at the Supreme Court on the first day of the trial. Again it was rejected though the only thing the plaintiffs were asking for was an apology and a promise not to repeat the defamation – no costs, no damages.
Instead, Mr Zegers persisted with the defence that he had not sent the emails nor had anything to do with the two websites victorianshooters.com and straightshootersau.com.
To prove that he had, the plaintiffs argued that the writing style of the emails matched other correspondence Mr Zegers had admitted to writing.
The plaintiffs also traced the source of the websites to a South Australian website developer who submitted a document to the court denying involvement.
However, the trial took a surprise turn when Justice Dixon ordered that Mr Zegers’ computer be forensically examined.
The appointed digital forensic analyst (Leanne Balit) reported that a hard drive, which may have contained data relevant to the case, was missing from inside the computer.
The following is the exchange between Justice Dixon, Ms Balit and Mr Zegers:
HIS HONOUR: ...I wonder if we might just interrupt for a moment, because I see that Ms Balit has come back into court.
COUNSEL: Yes.
HIS HONOUR: (to Ms Balit) I take it you've come back into court because you've completed the task of taking the image of the disc, or have you run into problems?
MS BALIT: I have completed the first part. I've done an initial review and there appears to be a hard drive missing inside the computer.
HIS HONOUR: Missing what?
MS BALIT: A hard drive missing from inside the computer, which may contain data on it that may be necessary.
HIS HONOUR: Well, it is what it is.
MS BALIT: Yes.
HIS HONOUR: If your report says that you cannot answer questions because there's a hard drive missing, then I think that's what we have to say. (To the witness) Did you want to say something about that?
MR ZEGERS: Yes, Your Honour. I used to have – a few years ago I used to have what's called a D drive.
HIS HONOUR: Is that correct?
MR ZEGERS: Yeah. And…
HIS HONOUR: A what?
MR ZEGERS: A D drive. A second drive. A D drive, it's called.
HIS HONOUR: A D drive, yes?
MR ZEGERS: And it started to play up and the data I needed I put on my C drive, or I did. It was put on my C drive, and it's as a D, which apparently means it's very, very quick, and all that. And that's all that's to it.
HIS HONOUR: So, there was a drive there, but you've removed it?
MR ZEGERS: Yeah. And that would be, I don't know, it could be a year and a half, two years ago.
HIS HONOUR: Yes, and this is the drive that you said is no longer available?
MR ZEGERS: Yes, that's correct.
HIS HONOUR: (to Ms Balit) Well, you've heard that piece of evidence, to the extent that it assists you. I think we can't solve that problem.
MS BALIT: Your Honour, it was there last week. There was a D drive present last week.
MR ZEGERS: Oh no.
Ms Balit’s report to the court included 1683 pages of material which proved Mr Zegers had authored the emails in question. It was also revealed that he had conspired with the website developer, who had created the two websites in question, to lie about setting them up.
Mr Zegers then apologised to the court, admitting that he had lied.
As well as awarding damages and ordering court cost payments, Justice Dixon also issued an injunction stopping Mr Zegers publishing further defamatory material against SSAA Victoria.
The case has been referred to the Director of Public Prosecutions to see if Mr Zegers will face further charges of lying under oath, destroying evidence and conspiring to pervert the course of justice.
The full judgement can be found here.
Barrister Justin Castelan represented the plaintiffs in the Supreme Court. A report by Mr Castelan can be found here.
Because the penalty was among the highest to be awarded against an individual in Victoria, the case attracted media attention. The Age reported the case here, and because Mr Zegers is from Marong near Bendigo, the Bendigo Advertiser also reported the case.
