Moroney v Zegers
Lying defamation defendant shot down by Sporting Shooters – $887,027.66 in damages: Moroney v Zegers  VSC 448
For a short time in 2012, Karel Zegers was the Acting President of the Victorian branch of the Sporting Shooters Association of Australia (SSAAV). His position on the Board was up for election in August that year and he decided to set up a website to run his campaign: shootersvictoria.com. He lost the election and on his last night in power, he used his position to send an email to the entire membership of the SSAAV complaining that the membership had been misled and they had not received the truth…. Not that he was a sore loser. In any event, it was a sign of things to come.
In 2014, there was another election for positions to the Board. Zegers ran again for a position and another website coincidentally appeared: Vicshooters.com.
On his candidacy profile, Zegers referred to the VicShooters.com website. Along with that, numerous emails were sent to the SSAAV members stating that the Board and Jack Wegman, its CEO, were dishonest, had lied, had deceived the membership and had overseen financial disasters. Those 2014 emails were largely sent from an address: email@example.com. Sentences like:
“And no amount of PROPAGANDA, FALSE INFORMATION and LIES is ever going to change the truth”;
“It appears the Board thinks it can do as it sees fit without any consequence.”;
“What else have they done wrong? Whatever it is, it must be bad, considering their efforts to hide all the information about their actions…. Don’t believe their propaganda”;
“Or worse still, are being told fibs (LIES!)”;
“All the while most members are not aware of the situation, are being fed propaganda making them think all is good.”;
Zegers was not named as the author of any of these. All of the emails were anonymous.
Nine members of the Board, together with its CEO, Jack Wegman, sued Zegers in defamation, and the matter got to trial in March and April this year. Shortly before the trial, in January 2018, another anonymous email reared its head. It urged people to come and watch the trial. Among other things, it stated:
“Mr Zegers is looking forward to the trial saying: ‘At the trial all the lies and false information given to the Board and SSAA (VIC) members in general will be out in the open for all to see and their cover-up will end. As well as that, there will be media presence, they will hear the evidence of the lying and the trickery that has been going on by some of the ‘leaders’ of our Association. The behavior of these people is immoral, at times illegal and certainly in breach of the SSAA (VIC) Constitution.’ We understand that Karl’s legal representatives will show all the damming evidence of this as it is revealed to the Court.”
From the outset of the trial, Zegers denied publishing the emails. He essentially relied on the Bart Simpson defence: No-one saw him do it. No-one heard him do it. No-one can prove anything….
After the opening submissions on day one of the trial, the plaintiffs stated an open offer to settle the case: Zegers apologise, undertake not to write anything about them again and there would be no order as to costs. Bargain!
Zegers wanted to run his truth defences, all the while denying that he wrote the emails in the first place. This was also despite warnings from Justice Dixon on day one, having heard the openings, that the sparse material that Zegers relied on to establish dishonesty, lies and deception went nowhere near proving any of that. His Honour stated that if it were a jury trial, he would not have even allowed many aspects of the truth defence to go to a jury.
Nevertheless, the trial continued. Among the seventeen witnesses on the plaintiffs’ witness list was Peter Erkens-Goss, the IT man who apparently created vicshooters.com. The plaintiffs sent him a subpoena to produce documents and possibly appear. Erkens-Goss submitted a document headed “Reply to Subpoena received by Goss PC Repairs”. It stated:
- The website was owned by someone called “Steven”, who was not a paying customer, but had won their hosting as part of a competition;
- Goss PC Repairs had since shut down; and
- he had received no communications with the actual website owner.
On day four of the trial, His Honour Justice Dixon ordered that Zegers present his computer for analysis. That afternoon, when he was due to give evidence, Zegers was suddenly “ill” and did not return to court that day.
The following Monday, Zegers produced his computer and was due to be cross-examined. Under cross-examination, Zegers was asked about the similarities between what he wrote in other material on the earlier Shootersvictoria website and the content and style of the anonymous emails. In particular, in the material Zegers admitted to having written:
- to indicate sarcasm, he often put single words in inverted commas, for instance: “information”, “governance”. Then in the nine anonymous emails, inverted commas were also used repeatedly in the same way;
- he often used an unusual grammatical device, being a colon, and then the next word commenced with a capital letter. This re-occurred in the nine anonymous emails 14 times;
- he often used a hyphen incorrectly. He wrote: “mis-understanding”, “un-necessary” and “un-believable”. In the nine emails, the same error appeared on several occasions and even in the same word:
“un-believable”…. which seemed apt;
- he wrote: “its an old political trick, accuse your opponents of exactly what you do yourself”. In one of the nine emails, virtually this exact statement was repeated. Given that Zegers ran in the 1998 election as a One Nation candidate, Zegers was well-versed in political strategy.
Faced with all of this in the witness box – Zegers still denied writing the emails. Over and over.
Meanwhile, the computer expert who had been appointed, Leanne Ballit, attended court and spent the day looking at the computer in a side room.
At the end of the day of cross-examination of Zegers, Ms Ballit returned. While Zegers remained in the witness box, this exchange took place.
HIS HONOUR (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.
MR ZEGERS: Yes Your Honour. I used to have – a few years ago I used to have what’s called a D drive. Is that correct? Yeah, and…..
A what? — A D drive. A second drive. A D drive, it’s called.
A D drive, yes? — 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.
So, there was a drive there, but you’ve removed it? — Yeah. And that would be, I don’t know, it could be a year and a half, two years ago.
Yes, and this is the drive that you said is no longer available? — 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….
Not good. The matter was adjourned while Ms Ballit prepared a report on what she then found on Zegers’ computer. The results: 1,683 pages of material, most of which had been deleted, and most of which incriminated Zegers. This included:
- 320 emails as between Zegers and Erkens-Goss regarding the creation, operation and maintenance of the vicshooters website;
- pages showing that Zegers had drafted all of the emails that the plaintiffs sued on and emailed them to a database containing at least 4,000 SSAAV members and others; and
- emails as between Zegers and Erkens-Goss where they prepared the Reply to Subpoena document that Erkens-Goss ultimately produced.
As for Zegers’ denials of having written the emails, the game was up. The next day in court consisted of Zegers sacking his lawyers and then stating that he wanted to apologise to the court and admit to all of his lies.
In the judgment, His Honour set out everything that occurred and swiftly dealt with Zegers’ other defences. The truth defences all failed. The evidence relied upon by Zegers was hopeless and did not amount to anything near dishonesty. The qualified privilege defence also failed. How could a person deny publishing and at the same time say he had a duty to publish? No chance. To be sure, His Honour also found that Zegers acted with malice and aggravated the plaintiffs’ damages with his conduct.
Left with assessing damages for nine plaintiffs, His Honour found $75,000 for the first, second, third, fourth and eighth plaintiffs, $80,000 for the fifth and sixth plaintiffs, $90,000 for the seventh plaintiff and $175,000 for the tenth plaintiff, Jack Wegman, who “bore the brunt” of the emails.
Including interest, Zegers was ordered to pay $887,027.66 in damages plus costs on an indemnity basis. The plaintiffs also obtained an injunction to restrain him from writing anything further about the plaintiffs. This is the second highest verdict in a defamation case in the history of the State of Victoria.
If that was not bad enough, His Honour also referred the papers to the DPP to investigate whether Zegers and Erkens-Goss had committed offences in the conduct of the case. If only Zegers had taken the walk away offer at the start of the case……
Undoubtedly, Zegers’ writings were prophetic. His email of January 2018 was hauntingly accurate: The trial revealed all the lies, the trickery, the cover-up and there was media interest. The only problem for him, was that he was talking about himself…
A well-known political strategy: accuse your opponents of exactly what you do yourself.