Ali v Nationwide News Pty Limited

[2007] NSWSC 58

CITATION:	Ali v Nationwide News Pty Limited [2007] NSWSC 58
HEARING DATE(S):	5-8/02/07
JUDGMENT DATE :	15 March 2007
JUDGMENT OF:	James J at 1
CATCHWORDS:	Newspaper - defamation - damages
LEGISLATION CITED:	Defamation Act 1974; Defamation Act 2005;
CASES CITED:	Broome v Cassell (1972) AC 1027; Carson v John Fairfax & Sons Limited (1993) 178 CLR 44; Clark v Ainsworth (1996) 40 NSWLR 463; Jones v Dunkel (1959) 101 CLR 298 Triggell v Pheeney (1951) 82 CLR 497; Rogers v Nationwide News Pty Limited (2003) 216 CLR 327; State of New South Wales v Riley (2002-2003) 57 NSWLR 496
PARTIES:	Romzi Ali v Nationwide News Pty Limited
FILE NUMBER(S):	SC 20154/04
COUNSEL:	T Molomby SC/RKM Rasmussen - Plaintiff TD Blackburn SC/JO Hmelnitsky - Defendant
SOLICITORS:	Public Interest Advocacy Centre Inc - Plaintiff Black Dawson Waldron - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

Thursday 15 March 2007

20154/04 Romzi ALI v NATIONWIDE NEWS PTY LIMITED

JUDGMENT

1 HIS HONOUR: These are proceedings in defamation by the plaintiff Romzi Ali against the defendant Nationwide News Pty Limited, which is the publisher of the Australian Newspaper. The matter complained of consisted of two articles and an editorial in the Australian Newspaper of 11 June 2003, a newspaper having a wide circulation in New South Wales and in other parts of Australia.

2 The first article, which appeared at the top of page 1 of the newspaper and which became exhibit A in the proceedings, was in the following terms:-

“Second airport terror link
‘He asked nicely always, but I think people knew it was better to give money’
Australian Indonesian Community Source
A MEMBER of a violent Indonesian group with suspected links to Jemaah Islamiah and al-Qa’ida has been actively fundraising in Sydney for ‘jihad’, while working as a shuttle bus driver at Sydney airport.
The Australian understands the man, who is known as Dance Darmince but often uses the alias Mohammad Darimi, heads a small group of Laskar Jihad members in Sydney and has been co-ordinating their fundraising efforts for the past five years.
Mr Darmince is an Australian citizen and has lived in Sydney’s Lakemba for about 20 years.
From about 1999, he drove airport shuttle buses transporting passengers to, from and around Sydney airport for private shuttle bus company Kingsford Smith Transport.
The company confirmed yesterday that Mr Darmince had been employed under his alias, Mohammad Darimi. It said that after on-and-off employment for more than four years, he had quit in November.
The revelation follows the news that Bilal Khazal, a man whom the CIA says is affiliated with Osama bin Laden, worked as a Qantas baggage handler at the airport in the lead-up to the Sydney Olympics.
Transport unions said yesterday his employment high-lighted lax security at airports.
Mr Khazal told the Nine Network last night that he was innocent and the CIA had wrongly named him as an al-Qa’ida operative.
But ‘like any Muslim’, he said, he believed bin Laden was a good man. He argued that the US and Israel were behind the September 11 attacks and the Bali bombing.
Mr Darmince’s former boss, KST manager John Koolman, said Mr Darmince had had access to public areas only, and before being hired had been asked for his driver’s licence and an authority from the NSW Department of Transport, which included a police check.
A source within the Sydney Indonesian community told The Australian Mr Darmince, and occasionally other men, visited Indonesian people at home and asked them for money to ‘help with their jihad and the fighting in the Malukus’.
‘He asked nicely always, but I think people knew it was better to give money’, said the source.
He said Mr Darmince travelled regularly from Sydney to Indonesia. He was in Australia last month, but had since returned to Indonesia.
‘Laskar Jihad have the same purpose as JI’, one source said. ‘They both want an Islamic state (in Indonesia) but Laskar Jihad is much more radical than JI – (they are) much scarier people who don’t worry at all about doing killings’.
It is understood Australian security agencies have been closely monitoring Laskar Jihad in Australia for several years.
The group is thought to be responsible for the death of thousands of Christians in Ambon, the capital of the Maluku Islands, and is believed to have loose links with al-Qa’ida and Jemaah Islamiah.
The Australian has also been told Romzi Ali, the secretary of the Dee Why Mosque at the centre of a power struggle with JI in the late 1990’s, was also raising money for Laskar Jihad operations in 2000.
Mr Ali denies he ever helped raise money for Laskar Jihad and says he only helped to collect funds for hospitals and orphans – Christian or Muslim.
While there is a widespread belief among some terror experts that Laskar Jihad disbanded around the time of the Bali bombings, the Australian National University’s Clive Williams said he believed the organisation was still active.
More reports – p 2
Editorial p 10”

3 The second article, which appeared on page 2 of the newspaper and which became exhibit B in the proceedings was headed “Ex-Qantas worker denies terror links” and related solely to Bilal Khazal, without mentioning or referring to the plaintiff. However, it contained the following insert:-

“Origins of the ‘Holy War Warriors’
LASKAR Jihad, or ‘Holy War Warriors’, were formally founded in 2000 by Jafar Umar Thalib, who spent the late 1980’s fighting alongside the mujaheddin in Afghanistan.
The group is thought to be responsible for the death of thousands of Christians in Ambon, the capital of the Maluku Islands, and is believed to have loose links with al-Qa’ida, Jemaah Islamiah and the Malaysian-based KMM-Kumpulan Mujahidin Malaysia.
At its height in 2000-1, the organisation had more than 10,000 members. It is now thought to be active in West Papua.
Last year, the Centre for Defence Information in Washington reported that Laskar Jihad had received at least $9.3 million embezzled from the Indonesian army”.

The article relating to Bilal Khazal was in the following terms:-

“BILAL Khazal, the former Qantas baggage handler alleged by the CIA to have ties with al-Qa’ida, last night declared he was innocent and had no links to terror.
Mr Khazal, organiser of the Islamic Youth Movement in Sydney’s southwest, said he was a victim of religious and racial profiling and denied being Osama bin Laden’s man in Australia, though he described bin Laden as a ‘good man’.
He said the CIA had wrongly named him.
Mr Khazal believes the US and Israel were behind the September 11 attacks and the Bali bombing, he told the Nine network’s A Current Affair program.
The Mufti of Australia, Sheik Taj el-Din Al Hilaly, yesterday supported Mr Khazal, declaring he posed no threat to national security.
‘There’s nothing to be alarmed about, he is not a terrorist, there is no evidence to say he is… this is alarmist,’ he said through translator Keysar Trad. ‘If he was a terrorist, why hasn’t he been arrested?’
But sources in Sydney’s Islamic community told The Australian Sheik Hilaly was ‘kidding himself’ if he believed Mr Khazal was innocent.
‘We know he recruits young people who are stupid… They are desperate… Even though ASIO is watching him he has not stopped his activities,’ said a source who would not be named. ‘They have more members then ever before’.
Foreign Minister Alexander Downer would not reveal yesterday when Mr Khazal’s passport had been revoked. ‘We have been concerned about him’ and had confiscated his passport,’ he said, adding that Mr Khazal was appealing against the decision”.

4 The editorial, which appeared on page 10 of the newspaper and which became exhibit C in the proceedings, was in the following terms:-

“Best defences against terror
That terrorists with murder on their minds have called Australia home is alarmingly clear from recent revelations published in The Australian and broadcast by the ABC. Jemaah Islamiah, the organisation responsible for the Bali bombing, had a base in the Sydney suburb of Dee Why. Members sought to take control of a local mosque and use it to raise funds and recruit new members. The JI plan was defeated by opposition from the Muslim community and by ASIO raids following the Bali attack. But the organisation remains active in southeast Asia, and there is no guarantee its operatives will not keep trying to use Australia as a source of recruits, money and perhaps targets. When added to recent revelations that Osama bin Laden’s al-Qa’ida network planned to murder mining magnate Joe Gutnick and that an alleged friend of the terror organisation was previously employed as a Qantas baggage handler at Sydney airport, there is ample evidence that Australians are in the assassins’ sights. We should not be surprised that Australia is targeted by Muslims peddling a perversion of their faith, who believe slaughter is a legitimate means to extend their version of their faith. As JI cleric Abu Bakar Bashir told The Australian in the days after the Bali bombing last October, he wants Islam to ‘regulate the world’s people’.
But while we should be alert and alarmed by the possibility of terror attacks, Australia is far from defenceless. That the Dee Why group was broken up by ASIO demonstrates that the police and security agencies are doing their job. They would be greatly assisted if Labor and the federal Government could settle their differences and pass the ASIO bill, now stalled in the Senate in a form that would allow terror suspects to be held for seven days without charge. While this is an infringement of civil liberties, the loss of a week’s liberty for a handful of terror suspects is justified by the need to unbalance and unravel the terror networks here.
But our surest defence is the very nature of our society. Organisations such as al-Qa’ida and JI fear Australia because they know ordinary Muslims, like people of all beliefs, will always embrace a society where they can prosper and practice their faith in peace – which will inevitably take them from the path of ascetic fundamentalism. Terrorism expert Rohan Gunaratna makes the point when he says JI operatives based in Australia have opposed their leaders’ demands to mount local attacks because they like living here and prefer not to leave. More important, the Muslim community of Dee Why rejected the appeals of the JI interlopers. That these ordinary Australians rejected the apostles of hate is the best defence we have against the madness of JI and its allies”.

5 It will be convenient in this judgment to refer to the two articles and the editorial as “the articles”.

6 Having regard to the date of the publication of the articles, the proceedings brought by the plaintiff are governed by the Defamation Act 1974 (“the Act”), and not the Defamation Act 2005.

7 At a trial pursuant to s 7A of the Act, which was held in March 2005, the jury found that the matter complained of conveyed the following defamatory imputations about the plaintiff:-

(a) that he has raised money for the operations of Laskar Jihad, an organisation which does not worry about doing killings in pursuit of its political objectives.

(b) that he is a supporter of terrorism

8 The further hearing of the proceedings was fixed for 26 June 2006. On that day the matter was not reached. However, the legal representatives of the defendant informed the legal representatives of the plaintiff that the defendant would no longer be relying on any of the defences which had been pleaded in the defendant’s defence and, consequently, the further hearing would be limited to an assessment of the amount of damages which should be awarded to the plaintiff. At the commencement of the hearing before me counsel confirmed that the only remaining issue was the assessment of damages.

9 At the hearing before me the only witnesses were the plaintiff and a minister of religion Dr David Millikan, who was called on behalf of the plaintiff. A number of documents were tendered by counsel for the plaintiff and admitted into evidence. Apart from tendering some correspondence, the defendant did not adduce any evidence.

Summary of the Oral Evidence

10 As already indicated, the only witnesses were the plaintiff and Dr Millikan. I will now summarise some of the evidence of those witnesses. I have, of course, taken into account all of the evidence of both witnesses.

Plaintiff
Evidence in Chief

11 The plaintiff was born in Indonesia. He came to Australia in September 1990 and since then has lived mainly in Australia.

12 The plaintiff was married in 1993 and there were two children of the marriage. However, the plaintiff and his wife separated in December 2004 and last year they were divorced.

13 The plaintiff is a Muslim. After arriving in Australia he continued to practice his religion. He became an active member of a largely Indonesian Muslim community in Dee Why and attended a mosque at Dee Why.

14 Between about 1996 and 1998 the plaintiff held a position as assistant to the Imam of the Dee Why Mosque.

15 In 2001 the plaintiff was elected secretary of the Mosque at a general meeting of members. He served as secretary from early 2002 to June 2005. He described his functions as secretary as follows:-

“A. As the secretary basically I am the leader in the community. I am involved in the wider community. It is not only for answering any letter coming from in or outside, but also I am involved in dealing with non-Muslim organisations wider than our community and also involved in announcing any announcement in Dee Why Mosque and also dealing with - like with any council or school or excursion or organising any activities in Dee Why.”

16 In October 2002 the bombings in Bali in Indonesia occurred, in which eight-eight Australians were killed. Soon after the Bali bombings occurred there was publicity in the Australian media about Abu Bakar Bashir, a Muslim cleric alleged to have been complicit in the Bali bombings, having been at the Dee Why Mosque in 1993. The Australian security organisation ASIO made a number of raids on the homes of members of the Muslim community in Dee Why.

17 After the Bali bombings the plaintiff participated in a number of events, which were clearly intended to counter the adverse publicity the Muslim community in Dee Why had received. These events included:-

A peaceful protest outside the Prime Minister’s residence at Kirribilli. A report of the protest in the Australian newspaper of 4 November 2002 included the following:-

“Romzi Ali, secretary of the Islamic Society of Manly and Warringah, called on Mr Howard to apologise for the raids.
‘(ASIO) don’t have to come to our houses,’ he said. ‘We come here to talk to him and express that we have nothing to do with what happened outside Australia… we have nothing to do with terrorism at all”.


A picnic at Dee Why Beach in November 2002, which was attended by members of the Dee Why Muslim community and members of the congregation of the Dee Why Uniting Church of which Dr Millikan was the minister.

An open day at the Mosque in April 2003, which was attended by about 700 hundred people. In a report of the open day in the Sydney Morning Herald of 7 April 2003 the plaintiff, as “a mosque leader,” was quoted as saying “we are here to show we have nothing to hide”.

Excursions by school children to the Mosque, which took place after the open day at the Mosque.

A citizenship ceremony, held at some time in the first half of 2003 and before 11 June 2003, to which the plaintiff had been invited by Warringah council.

A media conference, held a few months after the Bali bombing, at which the plaintiff spoke.

A meeting with the local police commander.

18 The plaintiff first became aware of the articles in the Australian newspaper on 11 June 2003, when he was telephoned at his place of work by Nasser Abdul Gowi, the president of the Dee Why Mosque, and told about the articles. The plaintiff bought a copy of the newspaper and read the articles. After reading the articles he felt “angry” and “humiliated”. He did not want to talk about the articles with his colleagues at work, because he feared that, if he was asked about the articles, “I will scream”.

19 The plaintiff believed that the articles had caused “big damage on my reputation”. The plaintiff had been a spokesman for the Muslim community and had tried to build good relations with the wider community by engaging in the preceding months in the activities I have already mentioned.

20 When the plaintiff went home on 11 June 2003 he did not take the newspaper with him and he did not talk to his wife about the articles.

21 A neighbour who lived in the same block of units as the plaintiff asked the plaintiff whether ASIO had come and seen him.

22 The following day the plaintiff’s wife spoke to the plaintiff. The plaintiff gave evidence that:-

“She told me that one of the neighbours came to her and told her that he heard my name being mentioned on the radio related to the matter I complain of and the radio said that I am a bad person, and I was so shocked and very angry that the matter that I complain of was being discussed on the radio and I said to her not to believe because she asked me whether the matter that I complain of is true or not.”

The plaintiff gave evidence that because he had not immediately told his wife about the publication of the articles his wife lost confidence in him.

23 In December 2004 the plaintiff’s wife “lodged” a “form for separation” and in August last year the marriage was dissolved.

24 After the publication of the articles the plaintiff continued for a time to be secretary of the Mosque but “I minimised my activities, especially in public”. In August or September 2003 the plaintiff received a second invitation from Warringah Council to attend a citizenship ceremony but he declined the invitation, “because I feel I cannot stand in front of people who might think that I am the person who has been mentioned in the article”.

25 After the publication of the articles “many people that I knew before, they stopped talking to me in the street”.

26 After the Tsunami disaster (which occurred in December 2004) the Muslim community in Dee Why collected money for the victims of the Tsunami but the plaintiff let someone else make the announcement at the Mosque, “because I am worried people might think that I am going to collect money (for) Laskar Jihad”.

27 After the publication of the articles the plaintiff stopped talking to the media, because he did not know what they might write about him.

28 After the publication of the articles the plaintiff stopped wearing Muslim dress, that is a white gown, in public and wore it only inside the Mosque.

29 After the publication of the articles there was “a gap” between the plaintiff and his colleagues at work. The plaintiff worked for an information technology firm.

30 The plaintiff had had a regular part-time job cleaning a person’s house. A few days after the publication of the articles the householder “asked me not to come”.

31 After the publication of the articles the plaintiff suffered from headaches, from which he had not previously suffered and he had difficulty in sleeping. He consulted his family doctor about these matters. He also said “I get… back problem”.

32 After the publication of the articles, if there was any media attention given to Muslims in Australia, “this fearness… come up my mind again”.

33 A few days after 11 June 2003 a friend of the plaintiff’s Mazen El Bisri told the plaintiff that on 11 June 2003 or the next day he had heard on the radio “many callers on 2UE talking about the article and also talking about myself… and say (ing) that I’m a bad person”.

34 After the publication of the articles the plaintiff spoke to his wife about moving from Dee Why to a different suburb or even going to Indonesia. The plaintiff’s wife told the plaintiff that many times she had heard other women in the Muslim community saying about her “She’s the wife of the husband being talked about in the newspaper”.

35 In January 2004 the plaintiff and his wife moved to Mt Druitt. Despite the move to Mt Druitt, the plaintiff continued acting as secretary of the Dee Why Mosque, until an election for a new secretary, which had been delayed, took place in June 2005.

36 In about March or April 2004 the plaintiff applied for a job with the Pirelli Cable Company and attended an interview. The interview was running “smoothly”, until the plaintiff told the interviewer that he was the secretary of the Dee Why Muslim community, whereupon “I saw the change in his face”. The plaintiff did not obtain the position and believed that this was because of the publication of the articles.

37 After the publication of the articles the plaintiff had had ongoing mental and physical problems, lacked confidence in himself and believed that he is a bad person.

38 The plaintiff went to Indonesia in October 2005 and returned in June 2006. He also went briefly to Indonesia in November 2006. On each of these trips, on departing from Sydney and also on arriving back in Sydney, the plaintiff’s passport was taken from him and he had to wait fifteen to twenty minutes. The plaintiff believed that there was a connection between these events and the publication of the articles.

39 The plaintiff was concerned that the articles had been put on the Internet at the Australian Newspaper Website, because persons who accessed the site could read or download the articles and “do whatever they want to do”, including widely disseminating the articles.

40 The plaintiff had not received any apology from the defendant. He was asked whether an apology would have meant anything to him and he replied:- “It mean I knew in myself that they make mistake about myself so that's why they apologise to me. But they didn't do it.”

Cross-examination

41 The plaintiff agreed that he had never asked the defendant for an apology. He had not asked for an apology immediately after the publication of the articles, because he had felt betrayed by the journalist. He had first consulted a lawyer a few months after the publication of the articles, “after I feel more and more stress and depression”. After he had consulted a lawyer he had not asked for an apology, because “I didn’t feel comfortable with the newspaper. I’m worried about what they are going to write about me in the future”. When asked whether receiving an apology would make him feel better, the plaintiff said that it would have been different, if there had been an apology a long time ago, when the articles were published.

42 In 1993 Abu Bakar Bashir had given lectures at the Dee Why Mosque. He had stayed at a home of a member of the community. After the Bali bombings that member’s home had been raided by ASIO.

43 The plaintiff accepted that the period after the Bali bombings had been “tumultuous”, “unsettling” or “disturbing” for the Muslim community at Dee Why.

44 The plaintiff agreed with a question that “The situation was so bad that you felt that you had to have a kind of public relations or media effort to try to correct misconceptions and misunderstandings that were out in the community”. He agreed that “the misconceptions and misunderstandings” perceived were that “people in the wider community thought that the congregation was associated with terrorism”.

45 The plaintiff agreed with the statements by Mr Gowi reported in the Manly Daily of 5 November 2002, namely:-

“Mr Abdul Gowi said in the past few weeks the mosque had been attacked, Muslim women had been insulted and school children bullied. ‘We have been demonised and ostracised and blamed for the bombings in Bali because we are Muslims and largely Indonesian in our membership,’ Mr Abdul Gowi said. ‘Some of us are already making plans to leave as we feel there is no future for us here’”.

46 The plaintiff agreed that “those unsettling events after the Bali bombings had caused (him) a great deal of distress”.

47 Apart from the attitudes of persons in the wider community, some persons within the Muslim community were giving false information to ASIO to settle old scores.

48 The plaintiff agreed that the events which occurred in November 2002 were “absolutely devastating” to him personally.

49 In April 2003 the concerns the plaintiff had had in November 2002 were still continuing. The plaintiff agreed that what had happened between November 2002 and April 2003 had been a “catastrophe” for the Muslim community. The plaintiff agreed that the aim of the open day at the Mosque was “to work towards a better awareness and alleviate any concerns or misconceptions the community might have towards Islam”.

50 The following questions and answers occurred in the cross-examination of the plaintiff:-

“Q. What I want to suggest to you is that some of the stress and upset you've given evidence about was a consequence, not of the articles that you have complained about in The Australian, but the terrible things that happened to your congregation after the Bali bombing?
A. No. It's not only that.

Q. No, not only that, but that's part of it, isn't it?
A. Part of it, yes”.

51 The plaintiff accepted that he had felt increased hostility from the public between November 2002 and April 2003 but “I could still manage that feeling”.

52 The plaintiff was asked why he thought he had been invited by the Warringah Council to the citizenship ceremony and he replied “Because they invite our community and they know I can speak well English”. The plaintiff accepted that he believed that he had been asked a second time (after the publication of the articles), because the council continued to hold him in high regard.

53 The plaintiff agreed that he had suffered a work injury to his lower back in about 1995.

54 The plaintiff was cross-examined about exhibit A. As reported in exhibit A, he had told the reporter from the Australian that he had never raised money for Laskar Jihad and had only helped to collect funds for hospitals and orphans. The following questions and answers occurred:-

“Q. That must have made you feel better when you read that the newspaper had accurately reported your denial?
A. No.

Q. You would have felt worse if the newspaper had not reported your denial, wouldn't you?
A. Not really, because, if they don't put in the first place, there won't be a problem”.

55 The plaintiff did not agree that a more likely reason for his being held up by the Immigration Authorities at Sydney airport was simply his connection with the Muslim community at Dee Why, which had been the subject of ASIO raids after the Bali bombings.

56 The plaintiff maintained in cross-examination that he believed that he had not obtained a position with the Pirelli Cable Company, because of the publication of the articles, notwithstanding that the articles had been published many months previously.

57 The plaintiff was cross-examined about his evidence to the effect that he himself thought that he was a bad person because of what had been published in the articles, notwithstanding that he believed that what was published in the articles was wrong.

58 It was put to the plaintiff in cross-examination, and he denied, that he had in his evidence exaggerated the effect of the articles on his feelings and on himself.

Further Evidence

59 There was some further evidence from the plaintiff in re-examination and further cross-examination about whether the invitations from the Warringah Council to the citizenship ceremonies had been addressed to the secretary of the Mosque or to the plaintiff personally. The plaintiff no longer had the letters of invitation.

Dr Millikan
Evidence in Chief

60 Dr Millikan has been the minister of the Uniting Church Parish, Dee Why since 2002. He lives about 200 metres from the Mosque.

61 Dr Millikan first met the plaintiff in about July or August 2002, when Dr Millikan attended the Mosque, because of a desire on his part to learn more about Islam and to open up communication with the Mosque. He subsequently attended the Mosque once a month for about a year.

62 Dr Millikan became good friends with the plaintiff. The plaintiff and the president of the Mosque came to Dr Millikan’s house and they discussed theology and other subjects.

63 The plaintiff and Dr Millikan organised the picnic at Dee Why beach, which about eighty persons attended. Dr Millikan attended a meeting between the plaintiff and the Area Commander of the Northern Beaches Police.

64 The following questions and answers occurred in the cross-examination:-

‘Q. From your knowledge, from your experience of people you associate with in the whole community, I don't limit this just to Dee Why, what do you say is Romzi Ali's reputation among those people?
A. It was impeccable.

Q. In any particular respects do you say that?
A. He was held in high regard. He was obviously respected, he was relied upon. It was clear people trusted him, and I would say his reputation was impeccable”.

65 Dr Millikan saw the articles in the Australian on 11 June 2003 or early the next day. Within forty-eight hours of the articles being published, he had discussed them with the plaintiff. The plaintiff appeared “frightened, very alarmed” by the articles. Dr Millikan gave further evidence about the plaintiff:-

“A. … He came to our house and he was very shaken and he began to talk about the effect of this on him, and he at that stage began talking about wanting to leave Australia and take his family and go back to Indonesia.”
….
“My wife and I were present at this meeting and we urged him not to do that. We said that we felt that he had recourse to the law, that he shouldn't run. We had a long discussion at that time about what his options were. He was quite broken by the experience. He talked about being a little man, a man of no influence. He was frightened, and we offered to befriend him in this situation and help him in any way we could, which in fact we did”.

66 Since the publication of the articles the plaintiff had been a changed man. Dr Millikan had been present when the plaintiff had been with other members of the Mosque. On these occasions the plaintiff behaved differently from how he had behaved previously. The plaintiff seemed to lack confidence and was not as pro-active as he had been.

67 After the publication of the articles, in face to face encounters, in telephone conversations and in casual meetings, members of Dr Millikan’s parish had advised Dr Millikan that they were afraid of the contacts he was establishing with the Mosque.

68 Dr Millikan gave evidence:-

“…one of my leading parishioners, in fact he is a man who was at the time chairman of the parish council. He made a point of contacting me and saying, this is following that article, he said, "How do you know that's not true, David? They are dangerous and I do not condone this sort of contact with the people in the mosque." He had attended the picnic, this same man”.

69 Dr Millikan gave further evidence :-

“…I can remember a woman after church saying to me - asking, questioning me, saying, ‘Why, what are you doing? This is dangerous. These people are different.’"

70 There were other conversations -

“…where people were expressing concern about the contacts between myself and the mosque and particularly myself and Romzi, because I had mentioned Romzi in church. I had mentioned Romzi and Nasser as friends of mine and I had talked about that friendship in church, so they knew they were talking about someone who I had claimed to be one of my friends.”

71 Before the publication of the articles the plaintiff had suggested that members of the Mosque and members of the Uniting Church parish form teams to collect rubbish in the Dee Why area as a form of community service. After the publications of the articles the plaintiff did not want to proceed with this suggestion and it lapsed. Before the publication of the articles another picnic had been planned. However, after the publication of the articles the plaintiff withdrew from this plan and there was no further picnic.

72 Dr Millikan had first seen the plaintiff and his wife together in January or February 2003 and had observed the relationship between them. After the publication of the articles Dr Millikan had seen the plaintiff and the plaintiff’s wife together, on perhaps three or four occasions, the first occasion being in about January or February 2004. He had observed what appeared to him to be a breakdown in the relationship between the plaintiff and his wife.

Cross-examination

73 In cross-examination Dr Millikan agreed that he had been helping the plaintiff in the plaintiff’s court proceedings, that he felt that the plaintiff had suffered an injustice and that he was keen that the plaintiff should succeed and obtain a large amount of damages. However, Dr Millikan denied that his relationship with the plaintiff had caused him to colour his evidence and he asserted that he had come to court to tell the truth.

74 Dr Millikan was challenged about his use of the word “impeccable” in describing the plaintiff’s reputation. Dr Millikan explained what he meant by saying:-

“…I would say impeccable means a reputation of the highest order, a reputation that has no stain against it, a person who is a person of good conscience, a person highly respected in the community”.

75 As to his knowledge of the plaintiff’s reputation, Dr Millikan had seen the plaintiff interacting with members of the Muslim community, members of Dr Millikan’s own congregation, police, other Christian clergy and other Muslims who were not Sunnis.

76 Dr Millikan agreed that the Bali bombings and the publicity subsequently given in the media to the visit by Abu Bakar Bashir to the Dee Why Mosque in 1993 had caused great trouble in the Indonesian community in Dee Why and that was why Dr Millikan had assisted in the steps taken from November 2002 onwards to counter that bad publicity. Dr Millikan agreed that the events flowing from the Bali bombings (and before the publication of the articles) had been a traumatic experience for the plaintiff and “he was deeply concerned about those matters but I saw no change in his personality or in his character”.

Assessment of the Witnesses

77 As already indicated, the only witnesses were the plaintiff and Dr Millikan.

78 In his address counsel for the defendant did not challenge the plaintiff’s evidence about primary facts but, it was submitted, I should find that the plaintiff had a tendency to exaggerate the effect of the publication of the articles on himself and a tendency too readily to assert that there had been a causal connection, or that the plaintiff believed that there had been a causal connection, between the publication of the articles and some subsequent event adverse to the plaintiff. I consider that there is some substance in these criticisms of the plaintiff’s evidence. I will indicate the extent to which I consider that the criticisms are justified, when I review some particular subject matters later in this judgment.

79 Counsel for the defendant submitted that Dr Millikan in cross-examination had candidly admitted that he was not an impartial witness. It was submitted that his partisanship was demonstrated, for example, in what was submitted to have been the extravagance of his characterisation of the plaintiff’s reputation before the publication of the articles as having been “impeccable”.

80 I have taken into account Dr Millikan’s friendship with the plaintiff, his strong sense that the plaintiff has suffered an injustice which should be rectified, the assistance he has given the plaintiff in the proceedings and his desire that there should be a favourable outcome of the proceedings for the plaintiff. However, I have concluded that I should accept Dr Millikan as a witness who, as he said during his evidence, had come to court to tell the truth.

Principles Relating to the Assessment of Damages

81 Under s 46 of the Act damages are limited to damages for harm suffered by the person defamed, are not to include exemplary damages and are not to be affected by any malice or other state of mind of the publisher, except so far as that malice or other state of mind affects the harm suffered by the person defamed.

82 Under s 46A of the Act the Court is to ensure that there is an appropriate and rational relationship between the harm suffered by the person defamed and the amount of damages awarded and in determining the amount of damages for non-economic loss the Court is to take into account the general range of damages for non-economic loss in personal injury awards in this State.

83 In Carson v John Fairfax & Sons Limited (1993) 178 CLR 44 Mason CJ, Deane, Dawson and Gaudron JJ said at 60-61:-

“Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that ‘the amount of a verdict is the product of a mixture of inextricable considerations’. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. ‘The gravity of the libel, the social standing of the parties and the availability of alternative remedies’ are all relevant to assessing the quantum of damages necessary to vindicate the appellant”.

84 I was also referred to the judgments in Carson v John Fairfax of Brennan J especially at pp 69-71 and McHugh J especially at pp 104-105.

85 I was also referred to Rogers v Nationwide News Pty Limited (2003) 216 CLR 327, especially per Hayne J at 347 (59) – 354 (82), with whose judgment Gleeson CJ and Gummow J agreed, Callinan J at 368 (134) to 371 (141) and Heydon J at 380 (174) – 387 (193).

86 I was referred to a number of awards of damages in other defamation cases but it was common ground that awards of damages in other cases are of limited, if any, assistance.

Decision

87 A number of matters were raised in counsel’s written and oral submissions. I will deal in turn with these matters or at least with what appear to me to be the most important of these matters and in doing so I will refer to counsel’s submissions. There is, of course, some overlap between the different subject matters.

1. The Degree of Seriousness of the Imputations

88 It was submitted by counsel for the plaintiff that the imputations found by the jury were in the very worst category of imputations. It had been conveyed that the plaintiff was a supporter of terrorism, that is a person supporting the indiscriminate slaughter of innocent persons. It had also been conveyed that the plaintiff had raised money for the organisation Laskar Jihad, which killed people in pursuit of its political objectives. The imputations were such as to arouse fear and loathing of the plaintiff in persons who read the articles.

89 It was submitted by counsel for the defendant that counsel for the plaintiff had engaged in hyperbole in describing the imputations as falling within the very worst category. An imputation that the plaintiff had himself directly engaged in terrorist acts would have been a worse imputation. Many other imputations would be worse imputations, for example an imputation that a plaintiff raped and murdered a child.

90 In my opinion, the imputations found by the jury should be regarded as serious imputations, although I do consider that counsel for the plaintiff somewhat overstated their seriousness in some of his submissions.

2. The “Climate” in which the defamatory imputations were published

91 It was submitted by counsel for the plaintiff that the damage to the plaintiff had been increased by what was described as “the climate” in which the articles had been published. Counsel referred to a series of other articles published in the Australian newspaper in the period between 16 May 2003 and 11 June 2003, copies of which were admitted as exhibit E. These articles were about terrorism generally but, more particularly, about terrorism as affecting Australia. In some of these articles the suburb of Dee Why was mentioned and the plaintiff was mentioned by name.

92 It was submitted by counsel for the plaintiff that many persons who read the Australian newspaper on 11 June 2003 would have been regular readers of the Australian who had read the earlier articles. By reason of having read those earlier articles, these readers would have been more likely to have noticed the articles published on 11 June 2003 with their references to terrorism, Dee Why and the plaintiff, and more likely to have read, remembered and reacted to the articles.

93 Counsel for the defendant disputed that regular readers of the Australian would have been more likely to notice, read, remember and react to the articles of 11 June 2003, by reason of their having read the earlier articles. The submission which had been made by counsel for the plaintiff was variously described by counsel for the defendant as being otiose, as involving a non sequitur and as being wrong in principle.

94 I accept counsel for the plaintiff’s submission that regular readers of the Australian newspaper would have been, to some degree, more likely to have noticed, read, remembered and reacted to the articles published on 11 June 2003, by reason of their having read earlier articles containing references to terrorism, Dee Why and the plaintiff.

3. Features of the publication of the defamatory imputations

95 Some of the features which would tend to support the plaintiff’s case in the assessment of damages are that the first article exhibit A is at the top of the front page of the newspaper under a bold heading “Second Airport Terror Link”; the plaintiff is identified in exhibit A by both his name and his position as secretary of the Dee Why Mosque; the plaintiff is described as having raised money for Laskar Jihad, which is described as being thought to be responsible for the death of thousands of Christians and as being believed to have links with other terrorist organisations; and the Muslim community in Dee Why is referred to in the editorial exhibit C.

96 Some features which would tend to support the defendant’s case in the assessment of damages are that the article exhibit A is not principally about the plaintiff but about another man Mr Darmince, the quotation under the heading is about Mr Darmince, the photograph in the article is a photograph of Mr Darmince and not the plaintiff and the cartoon in the article refers to Mr Darmince and not the plaintiff. The plaintiff is first mentioned, virtually in passing, only in the final column of the article exhibit A. It is likely that all that some readers of exhibit A would notice and recall is something of what is said about Mr Darmince. The article exhibit B is about another man Bilal Khazal and does not mention or refer to the plaintiff. The editorial exhibit C refers to the organisation Jemaah Islamiah but does not refer to Laskar Jihad.

97 The article exhibit A, after stating that the Australian newspaper has been told that the plaintiff was raising money for Laskar Jihad operations in the year 2000, immediately reports a denial by the plaintiff that he had ever helped to raise money for Laskar Jihad and an assertion by him that he had only helped to collect funds for hospitals and orphans. This denial was expressly pleaded by the defendant in its defence as a matter mitigating damages.

98 In his evidence the plaintiff denied that the inclusion in the article of the denial had made him feel any better about the publication of the articles. I do not consider that I should accept the plaintiff’s evidence that the immediate publication in the article itself of a denial by him did not in any way alleviate his distress.

99 As regards the effect of the denial on damage to the plaintiff’s reputation, it was submitted on behalf of the plaintiff that many readers would have considered that the newspaper would not be likely to have published the imputations against the plaintiff, even though he denied them, unless the newspaper believed them to be true, or would have considered that the denial attributed to the plaintiff was merely what one would have expected the plaintiff to say and should not be given any credence. I consider that there is some force in these submissions by counsel for the plaintiff. However, I consider that the inclusion of the denial in the article would have caused at least some readers to have doubts, or to suspend judgment, about the truth of the allegations about the plaintiff.

4. Effect of the publication of the defamatory imputations on the Plaintiff

100 I accept the plaintiff’s evidence that he felt angry and humiliated when he read the articles, that he felt shocked when his wife spoke to him about what a neighbour had told her, that he had thought of leaving Dee Why or leaving Australia altogether, that he suffered a loss of confidence, that he reduced his activities at the Mosque and that he felt isolated at his place of work.

101 I also accept Dr Millikan’s evidence that, after the publication of the articles, the plaintiff appeared frightened, alarmed, shaken and broken and that the plaintiff was thinking of leaving Australia.

102 I accept the submission by counsel for the plaintiff that the plaintiff’s distress was increased by the following circumstances. After the Bali bombings publicity had been given in the media to the connection between Abu Bakar Bashir and the Muslim community in Dee Why and its Mosque. The plaintiff had then taken a leading role on behalf of his community in disowning violence and in seeking to establish good relations with the wider community, by such means as participating in the protest outside the Prime Minister’s residence, the picnic at Dee Why beach, the open day at the Mosque, the school excursions to the Mosque, the media conference and the citizenship ceremony at Warringah Council. However, after the plaintiff had taken all these steps, the plaintiff had then been condemned in the articles as having himself been a supporter of terrorism. As counsel for the plaintiff expressed it, the plaintiff’s “whole world had been turned up-side down”.

103 It was submitted by counsel for the defendant that some of the distress the plaintiff had experienced after the publication of the articles had been due, not to the publication of the articles, but to other causes. The plaintiff had accepted in his evidence that the period after the Bali bombings had been a tumultuous, unsettling or disturbing period for the Muslim community and had been distressing and devastating for him personally. In cross-examination the plaintiff had admitted that part of the stress and upset he had given evidence about was a consequence, not of the publication of the articles, but of the terrible things that had happened to the plaintiff’s community after the Bali bombing.

104 I consider that it is correct that in cross-examination the plaintiff admitted that part of the stress and upset he had given evidence about was a consequence, not of the publication of the articles, but of earlier events and that this was an admission properly made by the plaintiff, because he had given evidence to the effect that the earlier events had been stressful and upsetting. However, on a close reading of the transcript it is apparent that the plaintiff did not admit that any of the stress and upset he attributed to the publication of the articles had been caused by the earlier events.

105 I find that the plaintiff was already distressed and upset at the time of the publication of the articles and that some part of the distress and upset he experienced after the publication of the articles should be attributed to the earlier events. However, I accept Dr Millikan’s evidence that, although the earlier events had been traumatic for the plaintiff and the plaintiff had been deeply concerned by them, Dr Millikan had not seen any change in the plaintiff’s personality as a result of those events. I also accept the plaintiff’s evidence that, although he had experienced increased hostility from the general public from November 2002 onwards, he had managed to withstand that hostility. Although the earlier events had been distressing for the plaintiff, those events had not reflected on him personally.

106 The plaintiff in his evidence asserted or implied that a number of particular events adverse to him had been caused by the publication of the defamatory imputations or at least that he believed that those events had been caused by the publication of the defamatory imputations.

107 It is clear that a court in assessing damages for defamation can take into account, as relevant to the plaintiff’s hurt and distress or to the harm done to the plaintiff’s reputation or to both matters, an adverse consequence for the plaintiff, which the court is satisfied was in fact causally connected with the publication of the defamatory matter. However, in the present case it was submitted by counsel for the plaintiff that a court can also take into account, at least as relevant to the plaintiff’s hurt and distress, a belief on the part of the plaintiff that an event adverse to him was caused by the publication of the defamatory matter, even if the court is not satisfied that the event was in fact caused by the publication of the defamatory matter, provided that the plaintiff’s belief was genuinely and reasonably held by him. No authority was cited for this submission, although it was submitted that Broome v Cassell (1972) AC 1027 provided some indirect support for it. I will now deal with some of the particular adverse events relied on by the plaintiff. In dealing with some of them I will refer to the last submission by counsel for the plaintiff.

(i) The breakdown of the plaintiff’s marriage

108 I have already summarised the plaintiff’s evidence about not talking to his wife about the articles on 11 June 2003, his subsequent conversation with his wife, his wife losing confidence in him and the separation and divorce from his wife.

109 I have also summarised Dr Millikan’s evidence about his observations of the relationship between the plaintiff and his wife, before the publication of the articles and on those occasions after the publication of the articles on which he saw the plaintiff and his wife together.

110 The plaintiff’s evidence about the breakdown of the marriage was meagre and it is difficult to credit that the plaintiff’s wife could have permanently lost confidence in him because he did not immediately tell her about the articles. According to the plaintiff’s own evidence he assured his wife that the imputations were untrue.

111 Dr Millikan saw the plaintiff and his wife together, after the publication of the articles, on only three or four occasions, the first occasion being more than six months after the publication of the articles.

112 The plaintiff’s wife did not give evidence and there was no evidence about the proceedings in the Family Court between the plaintiff and his wife. I do not consider that I should draw any Jones v Dunkel inference against the plaintiff, because his wife was not called as a witness, but it remains the position that there is no evidence from her about the breakdown of the marriage to support any evidence given by the plaintiff.

113 I do not consider that I should make a finding that I am satisfied that the breakdown of the plaintiff’s marriage was caused by the publication of the defamatory imputations. Nor do I consider that I should make a finding that the plaintiff actually believed that the breakdown of the marriage was caused by the publication of the defamatory imputations or, if he did hold such a belief, that the belief was reasonably held by him.

(ii) The plaintiff’s health

114 I accept that because of the publication of the defamatory imputations the plaintiff suffered from headaches and had some difficulty in sleeping. In the absence of any medical evidence and especially having regard to the plaintiff’s history of a work injury to some part of his back, I am not satisfied that the plaintiff suffered problems with his back as a result of the publication of the imputations.

(iii) The plaintiff being shunned

115 I accept that after the publication of the articles the plaintiff was shunned in the street by some persons whom he knew.

(iv) The loss of the part-time cleaning job

116 The plaintiff was asked by the householder not to come again, only a few days after the publication of the articles and I accept that he lost the part-time cleaning job because of the publication of the articles. There was no evidence about the extent of any loss of income.

(v) The application for a position with the Pirelli Cable Company

117 I do not accept that the plaintiff failed to obtain a position with the Pirelli Cable Company because of the publication of the defamatory imputations or that the plaintiff really believed that he failed to obtain a position because of the publication of the imputations.

118 The application for a position was made some months after the publication of the articles. A quite likely explanation for the plaintiff’s failure to obtain the position would be simply that he was not adjudged the best applicant for the position. If the plaintiff was rejected because he disclosed that he was the secretary of the Dee Why Mosque, this could well have been because the Dee Why Mosque had become linked with the Bali bombings, quite independently of the publication of the defamatory imputations against the plaintiff.

(vi) The plaintiff’s experiences at Sydney Airport

119 I consider that a much more likely reason for the plaintiff being held up by the Immigration Authorities at Sydney Airport would have been his connection with the Muslim community at Dee Why, which had been the subject of ASIO raids after the Bali bombings.

120 The plaintiff gave evidence that he had had no problems on an occasion when he had been at the airport after the destruction of the World Trade Centre in New York on 11 September 2001. However, this occasion, while it was after 11 September 2001, was still in the year 2001 and was, accordingly, before the Bali bombings in 2002.

121 I do not consider that I should find that the plaintiff was held up at Sydney Airport because of the publication of the defamatory imputations. Nor do I consider that I should find that the plaintiff actually believed that his being held up at the airport was caused by the publication of the defamatory imputations or, if he did hold such a belief, that the belief was reasonably held by him.

5. Loss of reputation

122 I accept Dr Millikan’s evidence that before the publication of the articles the plaintiff was a person of high reputation and that Dr Millikan had a sufficient basis for forming this opinion, in that he had seen the plaintiff interacting with members of the Muslim community, members of Dr Millikan’s own congregation, police, other Christian clergy and other Muslims who were not Sunnis.

123 I also accept Dr Millikan’s evidence about his conversations with the chairman of his parish council and a female parishioner and his conversations with other parishioners, indicating damage to the plaintiff’s reputation as a result of the publication of the imputations. In order for Dr Millikan to give evidence relevant to the plaintiff’s loss of reputation, it was unnecessary for Dr Millikan to be asked in terms whether, in his opinion, the plaintiff had suffered a loss of reputation because of the publication of the imputations.

124 No other witness was called to say that he or she believed the defamatory imputations about the plaintiff and thought less of the plaintiff because of the imputations but I accept that there can be practical difficulties in obtaining such witnesses, even where a loss of reputation has occurred, and, in any event, some loss of reputation can be presumed.

125 It is not possible to make a finding on whether the invitation by Warringah Council to the citizenship ceremony which was issued after the publication of the articles, was addressed to the secretary of the Mosque or to the plaintiff personally. However, the plaintiff had been the secretary of the Mosque since early 2002 and the issuing of the invitation, however it was addressed, suggests that the plaintiff continued to be well regarded by Warringah Council.

6 Aggravated Damages

126 In the further amended statement of claim the plaintiff claimed aggravated damages, in addition to ordinary compensatory damages. The particulars furnished of the aggravated damages claimed were:-

(a) The defendant’s failure to apologise

(b) The defendant’s publication of the matter complained of on a news text website of the defendant on the Internet

127 There was no particular of aggravated damages that the imputations were false to the knowledge of the defendant. The plaintiff’s solicitors had proposed applying to amend the statement of claim so as to add such a particular but had not proceeded with the application, after the defendant’s solicitors, having been given notice of the proposed application, had said that they would require the plaintiff to make an additional discovery of documents relevant to the claim for aggravated damages.

128 It was common ground between the parties that aggravated damages may be awarded, if there is conduct of the defendant which increases the plaintiff’s damage and which shows a lack of bona fides or is improper or unjustifiable. Triggell v Pheeney (1951) 82 CLR 497 at 514 per Dixon, Williams, Webb and Kitto JJ.

129 It would seem that if a court finds that aggravated damages should be awarded the court can give effect to the finding by making an award of damages towards the upper limit of the wide range of amounts of damages which might conceivably be awarded Cassell v Broome; State of New South Wales v Riley (2002-2003) 57 NSWLR 496 at 528 (131) to 529 (133).

130 I will now deal with each of the particulars of aggravated damages relied on.

(a) The defendant’s failure to apologise

131 No request was ever made by the plaintiff for an apology. However, aggravated damages may be awarded for a failure to apologise, even though there has been no request by the plaintiff for an apology, provided that the criterion in Triggell v Pheeney is satisfied.

132 It was submitted by counsel for the plaintiff that the criterion in Triggell v Pheeney was satisfied, at least as from June 2006. It had been unjustifiable conduct for the defendant not to apologise, after it had been found that the matter published conveyed the defamatory imputations and the defendant had conceded that it had no defence to the plaintiff’s proceedings.

133 I am not, however, persuaded that the plaintiff has established that the defendant’s conduct in not apologising, in the circumstances of this case, satisfies the criterion in Triggell v Pheeney. However, I will take into account that there was no apology, as being relevant to general compensatory damages. See Clark v Ainsworth (1996) 40 NSWLR 463.

(b) The defendant’s publication of the matter complained of on a news text website of the defendant on the Internet

134 I have already referred to the plaintiff’s evidence to the effect that he was concerned that the articles had been put on the Internet at an Australian newspaper website, that the website could be freely accessed and that the defamatory imputations could be widely disseminated by persons who read or downloaded the articles.

135 Counsel for the plaintiff submitted that the original publication of the defamatory imputations in the newspaper of 11 June 2003 had been unjustifiable and that, while the unjustifiable nature of that original publication could not give rise to aggravated damages, the subsequent publication of the defamatory imputations on the Internet was likewise unjustifiable and, as a separate act from the original publication in the newspaper, could give rise to aggravated damages.

136 Interrogatory 3 of the interrogatories administered by the plaintiff to the defendant was concerned with the Internet. Interrogatory 3 and the answer to the interrogatory were in the following terms:-

“3. Has The Australian of 11 June 2003 been available at any time to date on the internet, or any similar service? If so,
(a) on what service has it been available;
(b) over what period or periods giving the starting and finishing dates of each, has it been available;
(c) on how many occasions has it been accessed via that service being had to it;
(d) of those who had access via that service to The Australian , how many were in:
(i) New South Wales;
(ii) The Australian Capital Territory;
(iii) Victoria;
(iv) South Australia;
(v) Queensland;
(vi) Western Australia;
(vii) Tasmania; and
(viii) Northern Territory;
(e) on how many occasions has access via that service been had to the matter complained of;
(f) of those who had access via that service to the matter complained of, how many were in:
(i) New South Wales
(ii) The Australian Capital Territory;
(iii) Victoria;
(iv) South Australia;
(v) Queensland;
(vi) Western Australia;
(vii) Tasmania; and
(viii) Northern Territory;
3A. Yes:

(a) The Australian of 11 June 2003 was available to subscribers on line at . Individual articles which were published in The Australian of 11 June 2003 were available to subscribers at . Portions of The Australian of 11 June 2003 were also available at

(b) The Australian of 11 June 2003 was available to subscribers only at from early in the morning of 11 June 2003 and taken off 24 hours later when it was replaced by the 12 June 2003 edition. The article entitled ‘Second airport terror link’ was available at between 11 June 2003 and 12 August 2005, the article entitled, ‘Ex Qantas worker denies terror link’ was available at between 11 June 2003 and 31 October 2005 and the article entitled, ‘Best defence against terror’ was available at between 11 June 2003 and 31 October 2005. The portions of The Australian of 11 June 2003 which were available at australian.news.com.au were only available on 11 June 2003.

The Defendant does not have a record of whether the matter complained of was available at on 11 June 2003 as only selected articles are available on that site.


(c) 95 people accessed the issue of The Australian dated 11 June 2003 from The Defendant does not have any information as to how many times was accessed during the 24 hour period that The Australian of 11 June 2003 was available at that site.

(d) The Defendant does not know where The Australian dated 11 June 2003 was downloaded from . The only information held by the Defendant in relation to the 95 subscribers who accessed the issue of The Australian dated 11 June 2003 from australian.newsstand.com is their name, customer ID, email address and the start and end date of each of their subscriptions

(e) The Defendant does not have a way of knowing if the 95 people who accessed The Australian on 11 June 2003 from read the matter complained of, only that they accessed the entire paper of that date. There were 4 downloads of the article, ‘Second airport terror link’ by 2 users, downloads of the article ‘Ex Qantas worker denies terror link’ by 2 users and no downloads of the article, ‘Best defence against terror’ from
(f)
(i) New South Wales: 2;
(ii) The Australian Capital Territory: 0;
(iii) Victoria: 0;
(iv) South Australia: 0;
(v) Queensland: 2;
(vi) Western Australia: 0;
(vii) Tasmania: 0; and
(viii) the Northern Territory: 0.

137 Most of the answers to interrogatory 3 were broadly summarised by counsel for the defendant in his closing address as follows:-

“Such of The Australian of that date, 11 June, which anybody could access, subscriber or not, was only available on 11 June. Subscribers to the newsstand address could only get the paper of that date for 24 hours and subscribers to the newstext address could get exhibits A, B and C, all three parts of the matter complained of, for a substantial period of time starting on 11 June in the case of exhibit A up until 12 August 2005 and in the case of exhibits B and C up to 31 October 2005
….
“…In relation to the newsstand subscriber site 95 people accessed the paper but we don’t know who, if any of them, where they were and whether they accessed the matters complained of. In relation to the subscriber newstext service, two people downloaded exhibit A, two people downloaded B and none downloaded exhibit C, and the breakdown your Honour will see was two in New South Wales and two in Queensland and we don’t know whether anyone read it on the free to air website or, indeed, whether the article was there”.

138 The particular of aggravated damages in the further amended statement of claim referred only to the newstext website but the argument at the hearing was not limited to this site.

139 I was invited to take judicial notice, and I consider that I can take judicial notice, that “newspapers these days put their additions or some of their additions up on the Internet”.

140 I was not referred by either counsel to any authority about any effect, on an award of damages for defamatory imputations published in a newspaper, of a newspaper having put the defamatory matter on a website on the Internet.

141 I do not consider that in the present case I should find that the putting or the retaining of the defamatory matter on the Internet showed a lack of bona fides or that it was improper or unjustifiable, so as to attract an award of aggravated damages.

142 On the other hand, it seems to me that I can take into account the putting and retaining of the articles on the Internet, as going to the extent of the publication of the defamatory matter and as thus being relevant to the assessment of ordinary compensatory damages. Having regard to the evidence in the answer to interrogatory 3 about the limited availability of the articles on the Internet and the limited extent to which the articles were or might have been accessed, I do not consider that much weight should be given to this factor.

Conclusion

143 It has often been said that an award of damages in defamation cases is “at large” and that the determination of the amount of damages is a matter of impression and not addition. See Australian Defamation Law & Practice p 13053 par 20015 and the cases there cited.

144 In assessing damages I have endeavoured to take into account all of the findings I have made in this judgment.

145 I have decided that I should award the plaintiff damages of $125,000.

146 I will not at this stage attempt to calculate interest on the amount of the damages and I will not formally enter any verdict.

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