Ali v Nationwide News Pty Ltd - [2008] NSWCA 183

No judgment structure available for this case.

Appeal Outcome: Special leave application dismissed with costs 13 February 2009 (S401/2008)

New South Wales

Court of Appeal

CITATION: Ali v Nationwide News Pty Ltd [2008] NSWCA 183

HEARING DATE(S): 5 June 2008

JUDGMENT DATE:
8 August 2008

JUDGMENT OF: Tobias JA at 1; McColl JA at 1; Basten JA at 140

DECISION: (a) Appeal allowed. (b) Set aside the judgment and verdict of James J dated 20 December 2007 awarding the appellant damages in the sum of $125,000. (c) Set aside Orders 1 and 2 of the Consent Orders entered on 3 March 2008. (d) Verdict and judgment for the appellant in the sum of $275,000. (e) Award interest on the judgment sum from 11 June 2003 up to and including 8 August 2008. (f) The respondent to pay the appellant’s costs of the appeal. (g) Liberty to the parties to file consent orders to give effect to order (e). (h) Liberty to apply to McColl JA within 14 days of the date of these orders in the event of any dispute as to the quantum of interest to be paid in accordance with order (e).

CATCHWORDS: DEFAMATION – damages – whether manifestly inadequate – assessment of damages – compensatory damages – gravity of imputations – importance of injured feelings - DEFAMATION – assessment of damages – aggravated damages for failure to apologise where no apology solicited by plaintiff - PRACTICE AND PROCEDURE – appeal – grounds of appeal – scope of review of primary judge’s decision – whether Court should interfere with primary judge’s findings on evidence - STATUTES – s 46A Defamation Act 1974

LEGISLATION CITED: Acts Interpretation Act 1901 (Cth)
Civil Liability Act 2002
Defamation Act 1974
Migration Act 1958 (Cth)

CATEGORY: Principal judgment

CASES CITED: Ali v Nationwide News Pty Ltd [2007] NSWSC 58
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Bashford v Information Australia [2000] NSWSC 665
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474
Browne v Dunn (1894) 6 R 67
Carlson v King (1947) 64 WN(NSW) 65
Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44
Cassell & Co Ltd v Broome [1972] AC 1027
Clark v Ainsworth (1996) 40 NSWLR 463
Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211
Crampton v Nugawela (1996) 41 NSWLR 176
Cross v Queensland Newspapers Pty Ltd [2008] NSWCA 80
Dearman v Dearman [1908] HCA 84; 7 CLR 549
Dingle v Associated Newspapers Ltd [1964] AC 371
Ex parte Reid; Re Lynch (1943) 43 SR(NSW) 207
Fleming v The Queen [1998] HCA 68; 197 CLR 250
Fox v Percy [2003] HCA 22; 214 CLR 118
Herald & Weekly Times Ltd v McGregor [1928] HCA 36; (1928) 41 CLR 254
HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302; (2005) 21 BCL 454
Humphries v TWT Ltd (1993) 113 FLR 402
John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Ley v Hamilton (1935) 153 LT 384
M & E M Holt Pty Ltd v Thompson [2001] NSWCA 359
McDonald v Coles Myer Ltd (t/as K-Mart Chatswood) (1995) Aust Torts Reports 81-361
Mifsud v Campbell (1991) 21 NSWLR 725
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323
Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643
Moit v Bristow [2005] NSWCA 322
Pettit v Dunkley [1971] 1 NSWLR 376
Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362
Public Service Board of New South Wales v Osmond [1986] HCA 7; 159 CLR 656
Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1
Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72
Shellharbour City Council v Rigby [2006] NSWCA 308; 150 LGERA 11
Smiths Newspapers Ltd v Becker [1932] HCA 39; (1932) 47 CLR 279
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State Rail Authority of New South Wales v Brown [2006] NSWCA 220; 66 NSWLR 540
Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449
Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497
Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118
Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58
Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816
Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127
Young v Cesta-Incani [2007] NSWCA 229

PARTIES: Romzi Ali - Appellant
Nationwide News Pty Ltd - Respondent

FILE NUMBER(S): CA 40931/07

COUNSEL: T Molomby SC and R Rasmussen - Appellant
T Blackburn SC and J Hmelnitsky - Respondent

SOLICITORS: Public Interest Advocacy Centre Ltd - Appellant
Blake Dawson Waldron - Respondent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 20154/04

LOWER COURT JUDICIAL OFFICER: James J

LOWER COURT DATE OF DECISION: 15 March 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Ali v Nationwide News Pty Limited [2007] NSWSC 58

CA 40931/07
SC 20154/04

TOBIAS JA
McCOLL JA
BASTEN JA
Friday 8 August 2008

Romzi ALI v NATIONWIDE NEWS PTY LTD

Headnote

The appellant sued the respondent for defamation in respect of two articles and an editorial published in The Australian newspaper on 11 June 2003. The subject of the articles was alleged fundraising activity within the Australian Muslim community for terrorist organisations in Indonesia. The appellant was identified in the leading article as having raised money for the organisation Laskar Jihad.

At a trial in March 2005 held pursuant to s 7A of the Defamation Act 1974 (“the Act”), a jury found the matter complained of conveyed the following imputations defamatory of the appellant:

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; and

b) That he is a supporter of terrorism.

The respondent initially filed defences of qualified privilege (both at common law and pursuant to the relevant statutes in respect of publication in the various states and territories) but, at the further hearing to consider the defences and, if appropriate, to determine damages, informed the Court it would not rely on any defences. The further hearing was therefore limited to an assessment of the amount of damages to which the appellant was entitled.

On 15 March 2007 James J awarded the appellant $125,000 in damages.

The appellant appealed against the primary judge’s award of damages asserting error in respect of an alleged failure on the part of the primary judge to give reasons for his rejection of certain parts of the appellant’s evidence and for refusing to award aggravated damages in respect of the respondent’s failure to apologise. The appellant also complained that the award of compensatory damages was manifestly inadequate.

Held, allowing the appeal –

As to the adequacy of damages

1. Per Tobias and McColl JJA:

(a) Damages awarded for defamation serve three purposes: consolation for the personal distress and hurt caused to the plaintiff by the publication, reparation for the harm done to the plaintiff's personal and (if relevant) business reputation and vindication of the plaintiff's reputation: [70].

Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 applied

(b) A solatium for injured feelings forms a large element in the damages awarded for defamation: [72].

Cassell& Co Ltd v Broome [1972] AC 1027 applied

(c) The damages awarded in a defamation action have to be regarded as demonstrating that the plaintiff has been vindicated in his or her reputation. They should reflect the high value the law places upon reputation and, in particular, upon the reputation of those whose work and life depend upon their honesty, integrity and judgment: [74].

Dingle v Associated Newspapers Ltd [1964] AC 371; Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44; Crampton v Nugawela (1996) 41 NSWLR 176 applied

(d) Damages awarded for defamation must be such as to enable the plaintiff to point to the sum awarded as being sufficient to convince a bystander of the baselessness of the charge: [75].
Cassell& Co Ltd v Broome [1972] AC 1027 applied; Ley v Hamilton (1935) 153 LT 384 referred to
(e) The assessment of damages for defamation involves an understanding of the nature and seriousness of the imputations and the defendant’s conduct: [76].

Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 applied

2. Per Tobias and McColl JJA:

(a) An appellate court should intervene to prevent a miscarriage of justice if it is convinced that the damages awarded are so high or so low that it is outside the range of what could reasonably be regarded as appropriate to the circumstances of the case: [86]-[88].

Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44; Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 applied; Triggell v Pheeney [1951] HCA 23; 82 CLR 497 referred to

Per Tobias and McColl JJA; Basten JA dissenting:
(b) In light of the findings made by the primary judge, the award of $125,000 for general compensatory damages was manifestly inadequate and should be set aside and a figure of $275,000 awarded instead: [133]-[135].

As to aggravated damages

3. Per Tobias and McColl JJA:

(a) An award of aggravated damages may be made if the defendant has acted in a manner which demonstrates a lack of bona fides or in a manner which is improper or unjustifiable: [79].

Triggell v Pheeney [1951] HCA 23; 82 CLR 497 ; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 applied

(b) Conduct which demonstrates a lack of bona fides or in a manner which is improper or unjustifiable will be such as will increase the harm which the publication of the libel has caused or may be supposed to have caused: [79]-[80].

Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 applied; Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 referred to

(c) Damages for failure to apologise can be awarded both as part of general compensatory damages or as aggravating compensatory damages: [81]-[82].

Clark v Ainsworth (1996) 40 NSWLR 463 applied; McDonald v Coles Myer Ltd (t/as K-Mart Chatswood) (1995) Aust Torts Reports ¶81-361 referred to
Per Basten JA dissenting:
(d) An award of aggravated damages must be in accordance with s 46 of the Act which requires that the state of mind of the publisher must be disregarded except to the extent it affects the harm suffered by the plaintiff, an effect likely to be reflected in the assessment of ordinary damages: [212]- [213].

Carson v John Fairfax & Sons Ltd [1993] HCA 31 discussed

4. Per Tobias and McColl JJA; Basten JA dissenting:

(a) The primary judge failed to give adequate reasons for his rejection of the appellant’s claim for aggravated damages on the basis of the respondent’s failure to apologise: [126].

(b) The appellant was entitled to an award of aggravated damages notwithstanding an apology was not sought by the appellant in circumstances where the respondent had elected not to defend the defamatory imputations: [83], [128]-[129].
Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 considered

5. Per Tobias and McColl JJA; Basten JA dissenting:

(a) The primary judge was not entitled to reject the evidence of the appellant as to his belief in a connection between the publication and certain distressing events in circumstances where the relevant evidence was not the subject of cross examination and where that belief was not ex facie irrational: [110]-[115].

M & E M Holt Pty Ltd v Thompson

HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd

Per Basten JA dissenting:

(b) The Court should not in the exercise of its appellate functions interfere with the findings of the primary judge as to the appellant’s state of mind at a particular time: [182].
Fox v Percy [2003] HCA 22; 214 CLR 118 considered

As to the duty of a primary judge to give reasons

6. Per Basten JA dissenting:

The grounds of appeal in respect of lack of reasons were misconceived. The duty of a primary judge to give reasons is not in issue where the appeal in substance involves a complaint as to the findings made: [153], [156], [173].

Carlson v King (1947) 64 WN(NSW) 65; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323; Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 considered.
Cross v Queensland Newspapers Pty Ltd [2008] NSWCA 80; Shellharbour City Council v Rigby [2006] NSWCA 308; 150 LGERA 1; Young v Cesta-Incani [2007] NSWCA 229 referred to.

Orders

:

(a) Appeal allowed.

(b) Set aside the judgment and verdict of James J dated 20 December 2007 awarding the appellant damages in the sum of $125,000.

(c) Set aside Orders 1 and 2 of the Consent Orders entered on 3 March 2008.

(d) Verdict and judgment for the appellant in the sum of $275,000.

(e) Award interest on the judgment sum from 11 June 2003 up to and including 8 August 2008.

(f) The respondent to pay the appellant’s costs of the appeal.

(g) Liberty to the parties to file consent orders to give effect to order (e).

CA 40931/07
SC 20154/04

TOBIAS JA
McCOLL JA
BASTEN JA

Friday 8 August 2008

ROMZI ALI v NATIONWIDE NEWS PTY LTD

Judgment

1 TOBIAS and McCOLL JJA: On 15 March 2007 James J awarded Romzi Ali, the appellant, damages in the sum of $125,000 in respect of the publication by Nationwide News Pty Ltd, the respondent, of two articles and an editorial (the articles) in The Australian on 11 June 2003 (the newspaper). The articles comprised statements which the appellant alleged conveyed the defamatory imputations of which he complained.

2 The appellant appeals against his Honour’s award of damages primarily upon the grounds that his Honour failed to award aggravated damages and that his award of compensatory damages was manifestly inadequate.

The matters complained of

3 The first article, which appeared at the top of page 1 of the newspaper was in the following terms:

‘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” (Emphasis added)

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

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 2000-01, 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”.

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”.

5 The editorial, which appeared on page 10 of the newspaper was in the following terms:

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”. (Emphasis added)

The nature and course of the proceedings

6 Having regard to the date of the publication of the articles, the proceedings brought by the appellant were governed by the Defamation Act 1974 (the Act) and not the Defamation Act 2005. At a trial in March 2005 held pursuant to s 7A of the Act, a jury found that the matter complained of conveyed the following defamatory imputations of and concerning the appellant:

(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.

7 On 18 May 2005 the respondent filed its Defence in which it pleaded in respect of the publication in each of the States and Territories of Australia that the matter complained of was published on an occasion of qualified privilege at common law and, in the case of the States of New South Wales, Queensland and Tasmania, that the matter complained of was published on an occasion attracting statutory qualified privilege.

8 In respect of all such defences, particulars of reasonableness were provided pursuant to Part 67 r 18(1)(b) of the Supreme Court Rules 1970 which included the assertion that the matter complained of was published by the respondent pursuant to a duty of a social and/or moral nature to readers with a legitimate and proper interest and/or an apparent interest in receiving the publication at common law in circumstances in which its conduct was reasonable by reason of, inter alia, the fact that the respondent honestly believed in the truth of the matter complained of.

9 The further hearing of the proceedings and, relevantly, the hearing of the issues raised by the respondent’s defences on the one hand, and the assessment of damages on the other, was fixed for 26 June 2006. The matter was not reached on that day. However, at or about that time the respondent’s legal representatives informed the appellant’s legal representatives that the respondent would no longer be relying on any of the defences which it had pleaded and that, consequently, the further hearing would be limited to an assessment of the amount of damages to which the appellant was entitled. The respondent’s position was confirmed at the commencement of the hearing before the primary judge on 5 February 2007.

10 The appellant’s claim for damages included a claim for aggravated damages particulars of which, so far as is relevant, were that his damages had been increased by the respondent’s failure to publish an apology.

11 At the hearing before the primary judge the only witnesses were the appellant and Dr David Millikan, a Minister of Religion, who was called on the appellant’s behalf. Apart from tendering some correspondence, the respondent did not adduce any evidence.

The decision of the primary judge

12 The primary judge set out in some detail a summary of the oral evidence of the appellant and Dr Millikan. As to the former, he was born in Indonesia and arrived in Australia in September 1990 and had generally lived here ever since. He was married in 1993 and had two children. However, the appellant and his wife separated in December 2004 and divorced in 2006.

13 The appellant 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 the Dee Why Mosque (the Mosque). Between 1996 and 1998 he was an assistant to the Imam of that mosque. In 2001 he was elected secretary of the Mosque in which capacity he served from early 2002 to June 2005. He described his functions as secretary as follows:

“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.”

14 On 12 October 2002 the bombings in Bali occurred in which 88 Australians were killed. Soon after the bombings there was significant publicity in the Australian media about Abu Bakar Bashir, a Muslim cleric alleged to have been complicit in the Bali bombings and who had visited the Mosque in 1993. Subsequent to the bombings, the Australian security organisation ASIO raided a number of homes of members of the Muslim community in Dee Why. The appellant’s home was not raided.

15 After the Bali bombings the appellant participated in a number of events which were intended to counter the adverse publicity the Muslim community in Dee Why had received. One of those was a peaceful protest outside the Prime Minister’s residence in Kirribilli which was reported in The Australian on 4 November 2002 in an article which 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”.

16 The appellant first became aware of the articles on 11 June 2003 when the President of the Mosque telephoned him at his work. He then purchased a copy of the newspaper. After reading the articles he felt “angry” and “humiliated”. He believed that the articles had caused “big damage on my reputation”. His Honour observed (at [19]):

“The [appellant] 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.”

17 When the appellant returned home on 11 June 2003 he did not take the newspaper with him or inform his wife about the articles. The following day his wife spoke to him about the matter. The appellant gave the following evidence in chief which was not the subject of cross-examination:

“A. 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.

Q. Sorry, who asked you that?

A. My wife, Nadra. You see she heard from other persons, not from myself, and I said to her not to believe what you heard from the neighbour or the newspaper because that’s untrue. But since then, because I knew that she get upset with me because I didn’t tell her in the first place, I knew that she didn’t trust me anymore, like she lost her confidence with me. She lost her confidence with me.

Q. Did anything happen in the relationship between you and your wife after that?

A. Oh, yes. Since then I have quite many numbers argue with her because it has affected my relationship with her. When I get back home I don’t want to discuss anything with her and she thought that I don’t trust her any more, so for the ongoing relationship with her and with the kids it is big effect with me.

Q. Did you at some time separate from your wife?

A. That’s right.

Q. When was that?

A. December 2004 she lodged a form for separation and separation still until now.

Q. If you are upset, Mr Romzi, we can have a break.

A. Sorry. Yes, December 2004 she lodged separation with me because I assume – I believe since the article was published she didn’t trust me any more, like I was hiding something from her. And the separation to go on until goes to the court for divorce and it is granted on August last year, your Honour.”

18 As we have observed, the appellant, although extensively cross-examined, was not challenged with respect to the evidence which we have recorded above. In particular, it was not suggested to him, as it was with respect to other aspects of his evidence, that he was exaggerating when referring to the impact of the articles, as he perceived it, upon the relationship with his wife. As we have noted, in December 2004 the appellant and his wife separated and their marriage was dissolved in August 2006.

19 After the publication of the articles the appellant continued for a time in the office of secretary of the Mosque but minimised his activities, especially in public. Thus he declined an invitation from Warringah Council to attend a citizenship ceremony. He stated in evidence that he:

“cannot stand in front of people who might think that I am the person who has been mentioned in the article.”

20 After the publication of the articles, the appellant stated that many people he had previously known stopped speaking to him in the street and he stopped speaking to the media because he did not know what they might write about him. Furthermore, he stopped wearing Muslim dress in public and wore it only inside the Mosque. He gave a number of examples of his reaction to the media attention given to Muslims in Australia and spoke to his wife about moving from Dee Why to a different suburb or even of returning to Indonesia. His wife informed him that she had overheard women in the Muslim community saying “she is the wife of the husband being talked about in the newspaper”.

21 In fact in January 2004 the appellant and his wife moved to Mt Druitt although he continued acting as secretary of the Mosque until a new secretary was elected and took office in June 2005.

22 In March or April 2004 the appellant applied for a job with Pirelli Cable Company (Pirelli) and attended an interview. He said that the interview was running “smoothly” until he told the interviewer when asked what he did in his spare time, that he was involved in the Dee Why community as secretary, whereupon he:

“saw the change on his face. Like, it was smooth. Just suddenly changed.”

I believe so

23 The appellant was cross-examined on this evidence in the following exchange:

“Q. Has it ever occurred to you, and I don’t mean to be rude about this, Mr Romzi, everybody in the community misses out on jobs sometimes, but did it ever occur to you they might have found someone better for the job than yourself and that was why you didn’t get the job?

A. Not in the first place because I was confident when I was at interview and the interviewer asked me few question and he is quite happy with my answer and he show me around the place and the job that I am going to get, and it only stopped after I mentioned to interviewer when he asked me what did I do in my spare time and I said I am active in Dee Why Mosque.

Q. Did the possibility occur to you, Mr Romzi, that whatever the reason was, it was not because you were mentioned in an article in The Australian, something like 18 months before?

A. It’s different. That’s what I believe since the article.

Q. See, Mr Romzi, just have a think about the proposition that you are putting. If those people at Pirelli cable company remembered you in the article, why would they not have remembered you when you first turned up for the interview?

A. I have no idea.”

24 The appellant also gave evidence that when he departed Sydney Airport in October 2005 for Indonesia and on returning in June 2006, and on both departing to and arriving back from Indonesia in November 2006, his passport was taken from him and he was required to wait 15-20 minutes on each occasion before it was returned and he was, to use his words, given “clearance to leave the airport”. On each of those occasions the appellant believed that there was a connection between the taking of his passport, the delay in returning it to him and his being cleared to leave the airport and the publication of the articles. This connection was reinforced in his mind by the fact that after he arrived in Australia in 1990 he had made a number of trips to and from Indonesia, including after the 11 September 2001 attacks in New York. At those times he had had no problems with his passport either when leaving for Indonesia or returning a week later. He was asked:

“Q. Do you believe there is any connection between that problem, I think you used the word ‘problem’ and this article that you are suing on?

A. That’s what I believe.”

25 The appellant was cross-examined on this evidence after agreeing that the incidents in question only took place after the Bali bombings. The following exchange took place:

“Q. Were you trying to suggest to the court when giving that evidence that the reason that you were detained by immigration was because of this article? Is that what you were trying to say?

A. That’s what I believe.

Q. Let’s just look at that, shall we, Mr Romzi. Your mosque had played host in the early nineties to Abu Bakar Bashir, hadn’t it?

A. Yes.

Q. And this detaining of you by immigration happened after the Bali bombing, didn’t it?

A. Yes.

Q. And it happened after the ASIO raids, didn’t it, your being detained by immigration happened after the ASIO raids in November 2002?

A. Yes.

Q. It has occurred to you, hasn’t it, Mr Romzi, that there is a connection between the ASIO raids, the Bali bombing, the visit of Abu Bakar Bashir and your being detained by immigration. That connection has occurred to you, hasn’t it?

A. I never been raid by ASIO.

Q. Can I suggest to you, Mr Romzi, a much more likely reason for your being held up by immigration is your connection with your community which was the subject of ASIO raids after the Bali bombing?

A. I don’t think so.

Q. Well, that is a much more likely reason, isn’t it, Mr Romzi?

A. I don’t believe that.

Q. You do believe that, don’t you?

A. It never happened before.

Q. It never happened before the Bali bombing, did it?

Q. It never happened before, even after 11 September.”

26 At [37] his Honour observed that after publication of the articles the appellant had had ongoing mental and physical problems, lacked confidence in himself and believed that he was a bad person.

27 As we have said, the appellant claimed aggravated damages based on the respondent’s failure to apologise. The appellant had not sought an apology. His evidence in chief with respect to this matter was as follows:

“Q. Have you ever received from the defendant an apology for the publication of this article?

A. No.

Q. If you had received an apology, even last year after they dropped the defence, would that have meant anything to you?

A. Yes.

Q. What would it mean to you?

A. 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.”

28 The appellant was cross-examined with respect to this issue. The following exchanges took place:

“Q. After the articles appeared, in the period immediately after the articles appeared, why didn’t you ask the newspaper for an apology?

A. Because I felt betrayal by the writer.

Q. I am sorry?

A. I feel like there is no understanding between me and the writer, the journalist.

…

Q. After you went and sought legal advice from a lawyer, after that period, after you had been to see the lawyer why didn’t you ask for an apology then?

A. Still I don’t feel comfortable, I didn’t feel comfortable with the newspaper. I’m worried what they are going to written about me in the future.

…

Q. Would it still make you feel better at all, would it make you feel any better to receive an apology from the newspaper?

A. You mean when?

Q. Now.

A. Don’t you think it’s too late?

Q. That’s not an answer to my question, Mr Romzi. I am asking you whether it would make you feel any better at all?

A. It would be different if when a long time ago when the first time it appeared. It’s a bit different [now].

Q. How did you expect the newspaper back then to give you an apology if you didn’t ask for one?

A. Because there is no trust between me, no longer trust with me and journalists.

Q. But you see you are complaining about not receiving an apology. You understand that. Part of your case is you didn’t receive an apology from the newspaper?

A. Yes.

Q. And you may or may not understand this, but you are claiming also, Mr Romzi, additional damages from the newspaper because they have not apologised. Do you understand that?

A. Yes.

Q. Can I just ask you, how was the newspaper supposed to know that you wanted an apology if you never told them?

A. I think it is a simple question. The simple answer is last year when there is a mistake, I knew at the close of the case for the first time, if there is an apology it is different. Now in my mind I knew there was a mistake from the newspaper which I believe since before, but still there is no like understanding from the newspaper, not realise it yet.”

29 The appellant was cross-examined to the effect that the period after the Bali bombings had been “tumultuous”, “unsettling” or “disturbing” for the Dee Why Muslim community. As the primary judge noted at [44], the appellant agreed that the situation was so bad that he felt that he had to make a public relations or media effort to try to correct misconceptions and misunderstandings that were out in the community as there was a perception that people in the wider community thought that the Dee Why congregation was associated with terrorism.

30 There were a number of unsettling events after the Bali bombings which caused the appellant a great deal of distress including an attack upon the Mosque in November 2002 when Muslim women had been insulted and school children bullied which, he said, were “absolutely devastating” to him personally. In April 2003 the concerns he had had in November 2002 were still continuing and he acknowledged that some of the stress and upset caused to him as a consequence of the publication of the articles was, in part, attributable to the events which had occurred after the Bali bombings.

31 However, as his Honour noted at [51], although the appellant accepted that he had felt increased hostility from the public between November 2002 and April 2003, he “could still manage that feeling”.

32 The appellant was also cross-examined about his evidence to the effect that he thought that he was a bad person because of what had been published in the articles notwithstanding that he believed that what was published was incorrect. It was put to him in cross-examination, and he denied, that he had in his evidence exaggerated the effect of the articles on his feelings and on himself. The relevant exchange was as follows:

“Q. But what I am suggesting to you is that in the evidence you have given you have resorted to exaggeration. You have exaggerated in your evidence the effect of this article on your feelings and the effect on yourself?

A. Can I answer in different way. The article, the one mentioned my name in different articles, in different newspaper, it is always in the positive way. But since the article appears what I complain of, that’s a negative way. So it has affected myself and my family. Before I get backup from my community because what I have done for them it is mentioned in the newspaper in a good way, in a positive way. But since the article, that’s bring back myself because it has affected myself and I am a bad person.

Q. Are you suggesting to the court that you think you are a bad person because of what you read in The Australian? Is that what you are saying?

A. Yes. They blame me as supportive of the terrorism.

Q. Are you saying to the court that you think you are a bad person because of what The Australian wrote about you?

A. That’s what The Australian think about myself.

…

Q. Are you telling the court that you now think you are a bad person because of what was in The Australian?

A. Yes.

Q. That’s just not true, is it?

A. That’s what I feel.

Q. Your position is that what was in The Australian is just rubbish, it is just wrong. That’s what you think, isn’t it?

A. Yes, it’s wrong.

Q. And [it] served for you to go to court that you think you’re a bad person because of what’s in The Australian is just not true, is it?

A. What I believe, that people will think that I’m indifferent, like, I’m a bad person.”

33 His Honour then turned to Dr Millikan’s evidence who he accepted as a witness who had come to court to tell the truth. Dr Millikan became good friends with the appellant, he being the Minister of the Uniting Church Parish at Dee Why since 2002 and having lived some 200m from the Mosque. He gave evidence in cross-examination that prior to the publication of the matter complained of the appellant’s reputation amongst the whole community, and not just limited to Dee Why, was “impeccable”. He was held in high regard, was respected and relied upon. It was clear that people trusted him.

34 Dr Millikan also gave evidence that upon publication of the articles the appellant appeared “frightened, very alarmed” by them. He attended Dr Millikan’s house and was very shaken and spoke about taking his family and leaving Australia to return to Indonesia. Dr Millikan and his wife urged him not to take that course. He was, Dr Millikan said, “quite broken by the experience”. He talked about being a little man, a man of no influence. He was frightened and since the publication of the articles, had become a changed man. He seemed to lack confidence and was not as pro-active as he had previously been.

35 After the publication of the articles, in face to face encounters and during telephone conversations and in casual meetings, members of Dr Millikan’s parish had advised him that they were afraid of the contacts he was establishing with the Mosque. It was suggested to him by his parishioners, including a leading parishioner who, at the time, was Chairman of the Parish Council, that what had been stated in the articles may be true and that it was therefore dangerous for him to associate with people from the Mosque including the appellant.

36 In January/February 2003, prior to the publication of the articles, Dr Millikan had seen the appellant and his wife and observed the relationship between them. After their publication he had seen them together on three or four occasions, the first such occasion being in January/February 2004. He had observed what appeared to be a breakdown in their relationship.

37 In cross-examination Dr Millikan was challenged about the use of his word “impeccable” in describing the appellant’s reputation. He explained what he meant in these terms:

“…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”.

38 He further agreed that the events flowing from the Bali bombings prior to the publication of the articles had been a traumatic experience for the appellant and that “he was deeply concerned about those matters but I saw no change in his personality or in his character”.

39 As we have observed, his Honour (at [80]) concluded that he should accept Dr Millikan as a witness of truth. With respect to his assessment of the appellant, his Honour said (at [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.”

40 The particular subject matters in respect of which his Honour accepted the criticisms of the appellant’s evidence referred to in [78] of his judgment related, relevantly, to the appellant’s assertion that the publication of the articles had contributed to the breakdown of his marriage, to his application for a position with Pirelli, and to his experiences at Sydney Airport when travelling to and from Indonesia. It is therefore appropriate at this point of the narrative to refer to the manner in which his Honour dealt with those matters.

41 With respect to the issue concerning the breakdown of the appellant’s marriage, his Honour observed (at [110]) that his evidence with respect to that breakdown was “meagre” and that it was difficult to credit that the appellant’s wife could have permanently lost confidence in him because he did not immediately tell her about the articles. According to the appellant’s own evidence, he had assured his wife that the imputations were untrue.

42 Having then noted that the appellant’s wife had not given evidence about the breakdown of the marriage to support the evidence of the appellant, but nonetheless declining to draw any Jones v Dunkel inference, his Honour’s finding with respect to this matter was as follows (at [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.”

43 With respect to the application for a position with Pirelli, his Honour dealt with this matter at [117]-[118]. In particular:

“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.”

44 His Honour dealt with the appellant’s experiences at Sydney Airport in the following three paragraphs:

“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.”

45 The appellant does not challenge his Honour’s findings that he was not satisfied that the breakdown of the plaintiff’s marriage, his failure to obtain employment with Pirelli and the reason he was held up at Sydney Airport were each caused by the publication of the defamatory imputations. However, the appellant does challenge the primary judge’s finding that he did not accept that he (the appellant) actually or really believed that the breakdown of his marriage, his failure to obtain the Pirelli position or his being held up at the airport were caused by the publication and his further finding that if the appellant did hold such beliefs, they were not reasonably held. We shall return to these matters below.

46 At [81]-[86] of his judgment, the primary judge set out the principles relating to the assessment of damages in a defamation case, referring to ss 46 and 46A of the Act as well as to the decisions of the High Court in Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 60-61, 69-71 and 104-105 and Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 at 347-354, 368-371 and 380-387. His Honour further noted that he had been referred to a number of awards of damages in other defamation cases but that it was common ground that such awards were of limited, if any, assistance.

47 His Honour then dealt with the following issues. First, under the heading “The Degree of Seriousness of the Imputations”, he noted the submission on behalf of the appellant that the imputations found by the jury were in the very worst category of imputations as it had been conveyed that the appellant was a supporter of terrorism, that is, a person supporting the indiscriminate slaughter of innocent persons. The imputations further conveyed, so it was submitted, that the appellant had raised money for the organisation Laskar Jihad which murdered people in pursuit of political objectives. It was submitted that the imputations were such as to arouse fear and loathing of the appellant in persons who read the articles.

48 His Honour then noted the submissions on behalf of the respondent which asserted that the very worst category of imputation would have been one which imputed that the appellant had himself directly engaged in terrorist acts and that imputations to the effect that a plaintiff had raped and murdered a child would fall into a far worse category than the imputations in the present case. At [90] his Honour concluded that the imputations found by the jury should be regarded as “serious imputations” and that counsel for the appellant had somewhat overstated their seriousness.

49 We should say at this point that we have significant reservations about this finding. We accept that the imputations may not have been in the “the very worst category” as counsel for the appellant had contended. However they were more than just serious. As we have said, the appellant had been at the heart of attempts to restore the Australian public’s confidence in the Muslim community, particularly that community of which he was a part at the Mosque. He had acquired a public profile asserting that the members of the Mosque were not and should not be perceived to be linked to terrorist activities. The imputations struck at the heart of the public position he had taken. Prior to the publication of the articles, the respondent had reported the appellant’s assertions that he, and his community, had “nothing to do with terrorism at all”. By publishing the imputations, the respondent depicted him both as a supporter of terrorism and as one who raised money for an organisation which was insouciant about killing innocent people to pursue its political objectives. Members of the local community who had hitherto welcomed his efforts to build bridges with the Muslim community shunned and avoided him, and encouraged others to do likewise. He withdrew from his public activities and moved away from the community in which he had been so closely involved. The primary judge accepted (at [102]) the submission that the appellant’s “whole world had been turned up-side down”. In our view that was an accurate reflection of the evidence and captured the gravity of the imputations. We accept that it is impossible to rigidly define degrees of seriousness. However, in our view the imputations the jury found were conveyed were of a high degree of gravity, to which, with respect, his Honour’s description “serious imputations” did not do justice.

50 Of relevance to the foregoing is the second issue which his Honour dealt with under the heading “The Climate in which the defamatory imputations were published”. He referred (at [91]) to a series of other articles published in The Australian newspaper between 16 May 2003 and 11 June 2003 which were admitted into evidence and which related to the subject of terrorism generally and, more particularly, terrorism affecting Australia. In some of these articles the suburb of Dee Why had been mentioned by name as had the appellant.

51 His Honour concluded (at [94]) that he should accept the appellant’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 appellant.

52 The third issue was dealt with by the primary judge under the heading “Features of the publication of the defamatory imputations”. He noted the following reference in the first article at the top of the front page of the newspaper under the bold heading “Second Airport Terror Link”; the fact that the appellant was identified in that article by both his name and his position as secretary of the Mosque; that he was described as having raised money for Laskar Jihad which was described as being thought to be responsible for the deaths of thousands of Christians and believed to have links with other terrorist organisations. He also noted that the Muslim community in Dee Why was referred to in the editorial article.

53 The respondent submitted that the first article was not principally about the appellant but about another man, a Mr Darmince. It submitted that the appellant was mentioned virtually in passing in the final column of the article and then only in that part which we have emphasised. It was likely, so it was submitted, that readers of the article would notice and recall something of what was said about Mr Darmince rather than the appellant. The second article did not mention or refer to the appellant, whereas the editorial referred to the organisation Jemaah Islamiah, but did not refer to Laskar Jihad.

54 Although his Honour did not deal specifically with these submissions of the respondent, we would consider that reasonable readers of the first article would, if anything, have associated the reference to the appellant with the activities of Mr Darmince as both were said to be raising money for a terrorist organisation. In other words, to adopt the vernacular, both were tarred with the same brush.

55 It is also to be noted that those parts of the second article which we have emphasised are in part directed at the Dee Why Muslim community. Although it states that that community rejected the appeals of the JI “Apostles of Hate”, when read in the same newspaper as the first article and its specific reference to the appellant, it would be reasonable to infer that readers would not have associated the appellant with those members of the Muslim community at Dee Why who had rejected terrorism. As his Honour later found, the true position was that the appellant was a leading member of the Dee Why Muslim community who had publicly gone out of his way to reject terrorism.

56 His Honour then referred to that part of the first article which stated as follows:

“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.”

57 The primary judge then said (at [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.”

58 The foregoing finding was the subject of challenge on the basis that his Honour did not provide any reasons for coming to that conclusion unless he was relying upon what he had said in [78] which we have recorded at [39] above. It is convenient to set out the relevant evidence on which his Honour’s finding was founded:

“Q. And you are pleased that they published you saying that you denied doing that and that you were collecting money for hospitals and orphans?

A. Yes, say that I was collecting money for orphans, yes.

Q. You were pleased to see that part of it in the newspaper?

A. But that’s mixed with others.

Q. But you were still pleased to see that part of it in the newspaper, weren’t you?

A. Sorry, get mixed with my understanding.

Q. When you read the paragraph that says ‘Mr Ali denies he ever helped raise money for Laskar Jihad and says he only helped collect funds for hospitals and orphans, Christian or Muslim’, when you read that you were pleased to see that, weren’t you?

A. Yes.

Q. And that part of it, your denial, is accurately recorded, isn’t it?

A. Yes.

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.”

59 Upon the assumption that his Honour’s reasons for the finding was that he considered that the appellant was indulging in exaggeration when he gave the evidence referred to, such a finding of exaggeration with respect to the matter in question is not self-evident from the appellant’s responses to the cross-examiner’s questions. In fact the contrary is the case. As the appellant submitted, on one view the publication of the denial merely reinforced the credibility of the accusation contained in the immediately preceding paragraph of the article. And, as the appellant’s last answer inferred, validly, in our view, had the respondent accepted his denial as true, it should not have published the accusation at all. His Honour accepted (at [99]) 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 drawing that inference, no doubt, from the appellant’s evidence.

60 His Honour also considered (at [99]) that there was force in the appellant’s submission that many readers would have considered that the newspaper would not be likely to have published the imputations against the appellant, even though he denied them, unless it believed them to be true or would have considered that the denial attributed to the appellant was merely what one would have expected the appellant to say and should not be given any credence.

61 In our opinion there is a tension between his Honour’s findings at [99] to which we have referred, and his non-acceptance of the appellant’s evidence that the publication of the denial did not “in any way alleviate his distress”. That tension should be resolved in favour of the appellant.

62 The fourth matter considered by his Honour was under the heading “Effect of the Publication of the Defamatory Imputations on the plaintiff”. At [100] he accepted the appellant’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 had suffered a loss of confidence and had reduced his activities at the Mosque and that he felt isolated in his place of work. His Honour also accepted (at [101]) Dr Millikan’s evidence that after the publication of the articles, the appellant appeared frightened, alarmed, shaken and broken and that he was thinking of leaving Australia.

63 Of significance is the following finding of his Honour (at [102]):

As counsel for the plaintiff expressed it, the plaintiff’s ‘whole world had been turned up-side down

64 His Honour next referred (at [104]) to the concession by the appellant in cross-examination that part of the stress and upset that he suffered after the publication of the articles was due to earlier events related to the Bali bombings and their sequelae. He then made the following finding (at [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.”

65 Finally, under the heading “Loss of reputation”, his Honour (at [122]) accepted Dr Millikan’s evidence that before the publication of the articles the appellant was a person of high repute. At [123] he also accepted Dr Millikan’s evidence about his conversations with senior parishioners which indicated damage to the appellant’s reputation as a result of the publication of the imputations.

66 The primary judge then turned to the question of aggravated damages founded on the respondent’s failure to apologise. It was common ground between the parties that aggravated damages may be awarded if the conduct of the respondent increased the appellant’s damage and demonstrated a lack of bona fides, or was improper or unjustifiable: Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 at 514. His Honour noted (at [129]) that if a court finds that aggravated damages should be awarded it should give effect to that finding by making an award of damages towards the upper limit of the wide range of amounts of damages which might conceivably be awarded to the particular plaintiff.

67 Although no request was ever made by the appellant for an apology his Honour acknowledged (at [131]) that aggravated damages may be awarded for a failure to apologise even though there has been no request by the defamed person for such an apology, provided otherwise that one or other of the criterion referred to in Triggell is satisfied.

68 It had been submitted on behalf of the appellant that it was unjustifiable conduct for the respondent, at least from June 2006, not to have apologised after it was found that the matter complained of conveyed the defamatory imputations alleged and the respondent had conceded that it had no defence to the appellant’s claim. His Honour rejected this submission saying (at [133]):

Triggell v Pheeney

Clark v Ainsworth

69 In conclusion his Honour (at [143]) noted 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. Having confirmed that in assessing the appellant’s damage he had endeavoured to take into account all of the findings he had made, he determined to award the appellant damages in the sum of $125,000. His Honour did not formally award interest on that sum. Subsequently consent orders were filed pursuant to which the respondent was to pay interest of $16,966 from the date of publication to the date of judgment and thereafter at a daily rate until judgment was entered.

The relevant legal principles

(a) Damages in defamation

70 Damages awarded for defamation serve three purposes: consolation for the personal distress and hurt caused to the plaintiff by the publication, reparation for the harm done to the plaintiff's personal and (if relevant) business reputation and vindication of the plaintiff's reputation: Carson at 60 per Mason CJ, Deane, Dawson and Gaudron JJ; Rogers at 347 [60] per Hayne J, Gleeson CJ and Gummow J agreeing. These purposes “overlap considerably in reality and ensure that ‘the amount of a verdict is the product of a mixture of inextricable considerations’”: ibid. As Mason CJ, Deane, Dawson and Gaudron JJ said in Carson (at 60-61, footnotes omitted):

71 In Carson Brennan J observed (at 70-71, footnotes omitted):

In McCarey v Associated Newspapers Ltd [No 2]

‘The injuries that [a plaintiff] sustains may be classified under two heads: (1) the consequences of the attitude adopted towards him by other persons as a result of the diminution of the esteem in which they hold him because of the defamatory statement; and (2) the grief or annoyance caused by the defamatory statement to the plaintiff himself. It is damages under this second head which may be aggravated by the manner in which or the motives with which the statement was made or persisted in.’

72 The harm caused to the plaintiff by the publication of the defamation often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. Thus “[a] solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the [general compensatory] damages”: Cassell& Co Ltd v Broome [1972] AC 1027 at 1124 per Lord Diplock.

73 A person who is defamed receives damages because he or she has been injured in his or her reputation; that is, because he or she was publicly defamed. Damages in a defamation action vindicate the plaintiff to the public, and are consolation for a wrong done: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 150 per Windeyer J.

74 The damages awarded in a defamation action have to be regarded as demonstrating that the plaintiff has been vindicated in his or her reputation: Dingle v Associated Newspapers Ltd [1964] AC 371 at 396 per Lord Radcliffe; Carson at 69 per Brennan J. The level of damages should reflect the high value the law places upon reputation and, in particular, upon the reputation of those whose work and life depend upon their honesty, integrity and judgment: Cramptonv Nugawela (1996) 41 NSWLR 176 at 195; applied in John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291 at [3] per Giles JA, Ipp JA agreeing.

75 The harm done by the defamatory publication for which general compensatory damages are recoverable, does not come to an end when the publication is made: Cassell at 1124 per Lord Diplock. “It is impossible to track the scandal, to know what quarters the poison may reach”: Ley v Hamilton (1935) 153 LT 384 at 386 per Lord Atkin. Accordingly, the damages awarded for defamation must be such that “in case the libel, driven underground, emerges from its lurking place at some future date, [the plaintiff] must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge”: Cassell at 1071 per Lord Hailsham of St Marylebone LC. Mahoney ACJ referred to this statement with approval in Crampton at 193, holding (at 194 – 195) that “[t]he award must be sufficient to ensure that, the defamation having spread along the ‘grapevine’… and being apt to emerge ‘from its lurking place at some future date’, it was ‘sufficient to convince a bystander of the baselessness of the charge’ ”; see also Carson at 70.

76 In assessing damages the tribunal of fact is entitled to take into consideration “the mode and extent of the publication, that the defamatory statement was never retracted, that no apology was ever offered to the respondent, and that the statement had been persisted in to the end”. Such circumstances might in the opinion of that tribunal “increase the area of publication and the effect of the libel on those who had read it or who would thereafter read it, might extend its vitality and capability of causing injury to the plaintiff”: Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 263 per Knox CJ, Gavan and Starke JJ. The assessment of damages involves an understanding of the nature and seriousness of the imputations and the defendants’ conduct: see Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 at 241.

77 Finally under these general observations, we would observe that the defendant must take the plaintiff as it finds him or her: Humphries v TWT Ltd (1993) 113 FLR 402 at 418 - 419 per Miles CJ; Bashford v Information Australia [2000] NSWSC 665 at [42] per Davies AJ.

78 Humphries was reversed on appeal, but on the point that the damages Miles CJ awarded were inadequate: Humphries v TWT Ltd (1993) 120 ALR 693. The Court (Gallop, Davies and von Doussa JJ) implicitly approved (at 706) Miles CJ’s statement that the particular sensitivities of the plaintiff were relevant to the award of damages. They concluded (at 706) that “the award made by the trial judge was so low that it failed to provide compensation appropriate to the injury to the appellant’s feelings as found by him, and failed to provide a sum that, even in conjunction with the correction and apology, was sufficient to nail the falsity of the imputations”.

(b) Aggravated damages

79 An award of aggravated damages may be made if the defendant has acted in a manner which demonstrates a lack of bona fides or in a manner which is improper or unjustifiable: Triggell at 514 per Dixon, Williams, Webb and Kitto JJ; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 497 per Hunt J. Conduct which demonstrates those characteristics will be such as will increase the harm which the publication of the libel has caused or may be supposed to have caused: Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653 per Samuels JA.

80 Aggravated compensatory damages are usually awarded only in relation to the injury to the plaintiff's feelings but are not necessarily so limited, and there may be conduct which also has the effect of increasing the injury to the plaintiff's reputation: Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75 per Hunt J.

81 We have earlier referred to the High Court’s observations in Herald & Weekly Times Ltd v McGregor that in assessing damages the relevant tribunal can take into account the fact that no apology was ever offered to the plaintiff: see also McDonald v Coles Myer Ltd (t/as K-Mart Chatswood) (1995) Aust Torts Reports ¶81-361 at 62,686 – 62,687 per Clarke JA.

82 Despite doubts expressed in Carson (at 66) about how the mere absence of an apology could aggravate damages, this Court has held that damages can be awarded for such a failure: Clark v Ainsworth (1996) 40 NSWLR 463 at 468 per Sheller JA, Simos AJA agreeing. By failing to publish any retraction or apology, the defendant is seen to be continuing to assert the imputations found to have been published: Carson at 78 per Brennan J. Damages for failure to apologise can be awarded both as part of general compensatory damages, the rationale being that the harm from the original publication may be prolonged and intensified by the absence of an apology, or as aggravating compensatory damages: Clark at 466 per Sheller JA.

83 Such a failure can be taken into account in awarding aggravated damages, even if the plaintiff sought no apology, as long as the failure satisfied one of the three criteria for such an award. In Fitzpatrick, the Court held that aggravated damages should be awarded for the defendant’s failure to publish an unsolicited apology in circumstances where “the defamatory matter was totally without foundation, and this the appellant must have ascertained very soon after the respondent's solicitors first wrote complaining of the publications”: at 659 - 660 per Samuels JA, Hutley and Priestley JJA agreeing.

84 In awarding aggravated damages, the court remains restricted to compensating the plaintiff for the loss actually suffered by him or her as the result of the defamation but, in assessing those damages, it may adopt the highest level of damages open as compensatory damages: Cassell at 1085 per Lord Reid; see also Lord Hailsham at 1073 and Lord Diplock at 1124.

85 A defendant's conduct right up to the moment of verdict is relevant to aggravated damages: Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 at 103 [287] per Callinan J.

(c) Appellate review of an award of defamation damages

86 Such an award should not be disturbed unless the amount is such that no reasonable jury could have awarded it: Triggell at 516; Carson at 61. In the case of a jury award, appellants have to prove that the jury probably got it wrong, not just possibly got it wrong. It must be possible to identify the impermissible error. A jury’s verdict is not to be set aside on a conjectural basis but, rather, on the probabilities.

87 However, if an appellate court is convinced, not that in its own view the amount awarded is too high or too low, but that the amount awarded is so high or so low that it is outside the range of what could reasonably be regarded as appropriate to the circumstances of the case, it should intervene to prevent a miscarriage of justice: Carson at 61 – 62 per Mason CJ, Deane, Dawson and Gaudron JJ.

88 In the present context it is appropriate to cite the following passages from the judgment of Hayne J in Rogers at 348-349 (omitting footnotes):

“He may have judged it wrongly but that is what he did. He chose not to tell her and as a result she found out from someone else.”

196 Counsel then quoted the remainder of the first three questions and answers set out at [17] and continued:

“Later, they separated in December 2004 at her instance. Line 24, page 30, ‘She lodged a form for separation’, and they have subsequently been divorced.”

197 There was a short adjournment, following which counsel continued:

“The plaintiff gave some evidence about a number of things that happened which he attributed to the publication. In my submission your Honour would certainly conclude that some of them were due to the publication, and in the end from the point of view of damage to him, damage in the sense of distress, it doesn’t matter whether his belief is correct or not as to whether they were caused by the publication if his is a reasonable belief.”

198 The matters then identified did not contain reference to the breakdown to the appellant’s marriage. The matter was raised, ironically, by counsel for the respondent (Tcpt, pp 162-163). At p 164, his Honour noted:

“Actually, counsel for the plaintiff seemed to rely on four express matters. One of which was the problem with immigration but did not include the breakdown of the marriage with the wife.”

199 Counsel for the appellant returned to the matter in reply (Tcpt, 08/02/07, p 186) in relation to the general topic which he said involved “the question of the destruction of his relationship with his wife”. He referred to the inference which counsel for the respondent had invited the judge to draw from the fact that his wife had not been called and that no explanation had been given for not calling her. At p 187, the following exchange took place:

“HIS HONOUR: The submission I think made by Mr Blackburn [for the defendant] was there was no evidence given by the plaintiff on which I could make a finding that the breakdown of the marriage was due to the publication of this article.

MOLOMBY [for the plaintiff]: In my submission there is such evidence and I think I did address on it earlier.

HIS HONOUR: I think my attention has been directed to page 30 and I took it up with Mr Blackburn actually, particularly page 30, line 14. ‘Because it’, which I took to be the publication of the article, ‘has affected my relationship with her’. Either the publication of the article or the publication of the article and the immediate subsequent events as between husband and wife.

MOLOMBY: As expanded on the page, yes, I don’t wish to take it beyond that.”

200 It appears from these materials that, first, as the trial ran, the suggestion by the appellant that the publication had affected his relationship with his wife was unchallenged, although the degree of affectation was no doubt treated as a matter for caution by the respondent. Secondly, counsel for the appellant did not initially identify the destruction of the marriage as a factor demonstrating the degree of distress suffered by the appellant. Thirdly, the respondent treated this matter as not being the subject of credible evidence and thus a topic on which he had not cross-examined because that course was not necessary. Fourthly, when counsel for the appellant returned to the matter in reply, he did not expressly dissent from his Honour’s summary that the evidence was that the publication had “affected” his relationship with his former wife. Fifthly, there was no complaint about the statement by counsel for the respondent that he had not cross-examined the appellant in relation to the cause of the breakdown of his marriage because there was no tenable evidence to support a finding in that respect.

201 It follows, in my view, that the appellant cannot now rely upon the proposition that his brief reference to the publication leading to the breakdown of his marriage some 18 months later was “unchallenged” and therefore had to be accepted by the trial judge. His Honour was entitled to accept the submission that there was no clear evidence of connection, beyond the mere assertion of a belief and, indeed, no clear evidence that the appellant linked the distress caused to him by the breakdown of his marriage with the publication. His Honour was entitled to find he held no such belief.

202 The joint judgment, adopting the appellant’s submissions, concludes that his Honour failed to consider “the likelihood that a person traumatised and sensitised by such a publication … might well conclude that any adverse unexplained event to which he was later subjected, was in someway caused or connected to the publication”: at [113]. With respect, it is difficult to characterise the breakdown of a marriage as an event to which someone is subjected. To describe the appellant as “traumatised and sensitised” is to draw an inference which was not drawn by his Honour, an omission as to which no complaint was made in the grounds of appeal. Whether the appellant was “traumatised and sensitised” so as to render more likely the holding of a belief which was thinly adverted to in the evidence, and if so over what time and for what purposes, were matters to be addressed at trial. The Court was not taken to any submission seeking to have his Honour make such a finding of fact. Perhaps because the substantive grounds of appeal were not adequately particularised or dealt with in written submissions, it is not clear where the phrase “traumatised and sensitised” originated. There certainly was an argument at trial about “heightened sensitivity”, but it was in the appellant’s submissions as to the state of the likely readership of The Australian in the period following the Bali bombing: Tcpt, 07/02/07, p 151.

203 Further, the suggestion that his Honour failed to consider the alleged belief in the context of a person who had been affected in a serious way by the publication implies that his Honour somehow ignored, at [108]-[113] of his judgment, the findings as to the plaintiff’s anger, humiliation, shock and distress set out at the beginning of the same section of the judgment at [100]-[102]. It also appears to ignore the careful distinction drawn by his Honour between the traumatic events of October 2002 (the Bali bombing) and the publication: at [103]-[105]. Further, the finding preferred in the joint judgment is that the ultimate breakdown of his marriage was “at least contributed to by the publication of the articles and his reaction to them”: at [115] above. The appellant’s evidence was, however, more specific: it was that his failure to tell his wife of the publication gave rise to her loss of confidence and trust in him. It was that factor which formed the basis of his belief. No error has been shown in the failure of the trial judge to accept that evidence.

(b) job interview and conduct of immigration officers

204 The joint judgment finds error on the part of the trial judge in failing to be satisfied that the appellant actually believed that these adverse events were caused by the publication of the defamatory statement many months earlier. That was despite the fact that the appellant was cross-examined to suggest that there might have been other reasons for the conduct in question. The basis for overturning his Honour’s finding of fact was that counsel did not directly suggest that the appellant did not in fact hold the asserted belief: at [118] and [119] above. That complaint was not raised in the grounds of appeal, nor in the appellant’s written submissions, perhaps because it had not been raised at the trial. Nor was there any clear complaint about the limits on the cross-examination in relation to these incidents at the hearing of the appeal.

205 Further, the relevance of these incidents is not entirely apparent. The appellant was not asked as to the distress he felt as a result of these incidents, nor was he asked to what extent his distress was a result of his belief in the effect of the publication. However, assuming the evidence was in some way material to the assessment of damages, the appellant has failed to make out any basis for setting aside the findings of primary fact.

Failure to apologise: lack of reasons

206 It was not in dispute that a failure to publish an apology was relevant to the assessment of compensatory damages. In Coyne v Citizen Finance Ltd [1991] HCA 10; 172 CLR 211, Toohey J stated at 237-238 (in a judgment with which Dawson and McHugh JJ agreed) that “[a]n early withdrawal of a defamatory statement will ordinarily serve to reduce the harm suffered by the plaintiff; persistence in seeking to justify the statement may increase the scope of publication and the effect on those who read it”. In that sense, the trial judge made allowance for the absence of an apology, referring to Clark v Ainsworth (1996) 40 NSWLR 463 at 467, where Sheller JA referred to authorities leading up to and including Coyne. Rather, complaint arose in respect of his Honour’s failure to make an award by way of aggravated damages which, as his Honour correctly noted would have required him to make an award towards the upper limit of the available range: at [129]. He identified the relevant principle as that explained in Triggell v Pheeney [1951] HCA 23; 82 CLR 497 in the joint judgment (Dixon, Williams, Webb and Kitto JJ) at 514 where their Honours noted that the conduct of a defendant could be seen “as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant’s conduct or it is improper or unjustifiable”. No complaint was made about the identification of the correct test. His Honour applied those principles in the following passage:

Triggell v Pheeney

207 To acknowledge the plaintiff’s claim, identify the relevant legal criteria, identify the factual matter relied upon by the plaintiff and apply the criteria to that factual situation, involves the provision of reasons for a specific finding. Where an evaluative judgment is required, it is not always helpful to tease out the precise process by which one concludes that, for example, an omission to act is not to be described as improper or unjustifiable.

208 The substance of the appellant’s complaint was to reiterate the factual premise and assert, tendentiously, “[i]f failure to apologise in these circumstances is not aggravation, it is difficult to see that it ever could be”. As with other complaints of lack of reasons, the real complaint is that the reasons given were inadequate because they demonstrated error. The irony of this complaint is that, on that approach, the reasons in fact given fulfilled their precise purpose, which was to allow the appellant to identify appellable error. In identifying the error, he thereby demonstrated the flaw in his sole ground of appeal with respect to aggravated damages.

209 The joint judgment holds that his Honour failed to give reasons because he failed to identify “the circumstances of the case” at [133], in stating his conclusion. However, the circumstances upon which the appellant relied in his written submissions on the appeal, were those set out by the trial judge at [132].

Failure to apologise: substantive error

210 The proposition that the absence of any request for an apology is “relevant to whether the failure of the respondent to proffer an apology in or about June 2006 when it withdrew its defences was unjustifiable” requires further consideration. The starting point of that consideration must be s 46(3)(b) of the Defamation Act 1974 (NSW) which provides that damages:

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

211 The term “relevant harm” is defined in s 46(1)(a) as the “harm suffered by the person defamed”. It is for this reason that questions of aggravation, in New South Wales, permit no amount to be included by way of punitive or exemplary damages: see s 46(3)(a). As explained by Sheller JA in Clark, “[i]n assessing normal compensatory damages the jury may properly take account of the extent of the hurt to the plaintiff’s feelings which flows from the absence of apology”: at 468B. Further, as was explained in The Herald and Weekly Times Ltd v McGregor [1928] HCA 36; 41 CLR 254 at 263 (Knox CJ, Gavan Duffy and Starke JJ):

“In point of law, the learned trial Judge would have been right if he had instructed the jury that in assessing damages they were entitled to take into consideration the mode and extent of the publication, that the defamatory statement was never retracted, that no apology was ever offered to the respondent, and that the statement had been persisted in to the end; because all these circumstances might in the opinion of the jury increase the area of publication and the effect of the libel on those who had read it or who would thereafter read it, might extend its vitality and capability of causing injury to the plaintiff.”

212 How, as a practical matter, those factors are to be taken into account, yet allowing room for a further increase in the compensatory damages as an element of “aggravated damages”, is not easy to explain. In Carson v John Fairfax & Sons Ltd [1993] HCA 31; 178 CLR 44 at 110, McHugh J envisaged that compensatory damages could include an award “which hurts or punishes the defendant”, consistently with s 46. That approach does not appear to have support in the other judgments. In particular, the joint judgment (Mason CJ, Deane, Dawson and Gaudron JJ) noted that there was “an element of the punitive in aggravated damages at common law” (at 65-66) and continued:

Triggell v Pheeney

213 Within the terms of s 46, the state of mind of the publisher (including the motivation to injure) is only relevant so far as it affects the harm suffered by the plaintiff. It is not entirely clear what role the conduct of the defendant which is described as not bona fide, improper or unjustifiable has to play in the assessment of compensatory damages. If the attitude of the defendant were known to the plaintiff, in the sense that, for example, a request for an apology had been met with a disdainful rejection, that might tend to increase damages payable on a compensatory basis without the need to identify them as “aggravated damages”. This approach is consistent with the view expressed in the joint judgment that “[d]amages for failure to apologise can be awarded both as part of general compensatory damages, the rationale being that the harm from the original publication may be prolonged and intensified by the absence of an apology, or as aggravating compensatory damages”: at [82]. If it is merely a matter of a nomenclature, there can have been no error on the part of the trial judge, who accepted that the failure to apologise was to be taken into account as part of general compensatory damages.

214 The further difficulty in the present case is that the value of a published retraction or apology is greatest if it occurs at the earliest possible time following the defamatory publication. The timing, terms and appearance of the apology will all be relevant circumstances: see Carson at 78 (Brennan J). In the present case, no complaint was made in respect of the failure to publish an apology during the three years following publication. Two problems arise in those circumstances. The first is that the value and effect of an apology so long after the event might be open to differing assessments. In order to be effective, the apology must have identified the original article and thus, in a sense, republished it or at least drawn public attention again to its contents. Of course an apology could have been proffered at any stage by the respondent in terms which may have been accepted or rejected by the appellant. Nevertheless, in circumstances where the appellant had had the benefit of legal advice from a matter of months after the publication and, over the period of three years, had never requested an apology, it is quite unclear how the omission of the respondent (after the three year period had elapsed) could demonstrate lack of “bona fides”, or constitute improper or unjustifiable conduct.

215 The second difficulty arises from the evidence of the appellant. He stated, at the very conclusion of his evidence in chief (Tcpt, 05/02/07, p 49):

216 In answer to the first question in cross-examination, he agreed that he had never asked for an apology. Counsel returned to that question and the following exchange took place (Tcpt, 05/02/07, pp 68-69):

Q. That’s not an answer to my question, Mr Romzi. I am asking you whether it would make you feel any better at all?

217 The precise import of this evidence is by no means clear. At one stage the appellant seems to have been saying that it would have been different if the newspaper had apologised shortly after the publication. In the last answer, he may have been saying that an apology after it had abandoned its defence would have been acceptable. The answer was so unclear that it invited attention in re-examination, but none was given. In oral submissions, counsel for the appellant, after referring to a different matter of aggravation, continued (Tcpt, 07/02/07, p 135):

“He gave evidence also about the matter of an apology, that is at page 49, first, lines 22 to 30, against the background of the fact that he was told when this matter was scheduled for trial in June last year that the defence was not being relied on. He never received an apology, even after that.

This was then taken up with him in cross-examination and he was cross-examined on the fact that he had never asked for an apology. At 68 he said, ‘Because I felt betrayal by the writer’. He said, ‘I feel like there is no understanding between me and the writer, the journalist’. Which, in my submission, someone in his position might well feel. Point 9 to 10 on p 68. At 39 to 41 he said ‘Still I don’t feel comfortable, I didn’t … about me and in the future’.”

218 With respect, the appellant gave no precise evidence as to the manner in which his distress might have been alleviated, or indeed the manner in which his distress was accentuated, by the failure to give an apology following the withdrawal of the respondent’s defences in June 2006. Nor was his Honour given any assistance in submissions as to what the evidence of the appellant in fact demonstrated. Given this context, it is impossible to say whether, had his Honour treated the failure to give an apology as a matter warranting the award of “aggravated” compensatory damages, he would have awarded an amount any greater than that which in fact he did under the heading of “general compensatory damages”, as stated in his judgment at [133]. No error has been demonstrated in this regard.

Manifest inadequacy

219 The assessment of damages must be undertaken in accordance with the principles set out in ss 46 and 46A of the Defamation Act. His Honour recognised that at [81]-[82]. He referred also to the principles set out in Carson and in Rogers v Nationwide News Pty Ltd [2003] HCA 2; 216 CLR 327, particularly in the judgment of Hayne J at [59]-[82].

220 His Honour noted the submission that the imputations found by the jury were in “the very worst category of imputations”, but considered that counsel had “somewhat overstated their seriousness in some of his submissions”: at [88]-[90]. His Honour gave careful consideration to the “climate” in which the imputations were published, which he accepted would have made regular readers of The Australian more likely to have noticed, remembered and reacted to them: at [94]. He also noted, in some detail, features of the defamatory imputations: at [95]-[99]. His Honour accepted significant aspects of the plaintiff’s evidence and the evidence of Dr Millikan as to the immediate effect on the plaintiff of the publications: at [100]-[106].

221 Section 46A of the Defamation Act required that the Court ensure that there was “an appropriate and rational relationship between the relevant harm and the amount of damages awarded”. The Court was also required to take into consideration “the general range of damages for non-economic loss in personal injury awards in the State (including awards made under, or in accordance with, any statute regulating the award of any such damages)”. As explained by Hayne J in Rogers, the latter requirement may be seen as having two consequences:

“[75] First, it invites attention to the nature of the injury done by defamation compared with the consequences of physical injury. The injury done by defamation, even if serious, is often evanescent. By contrast, some personal injuries are permanent and devastatingly disabling. …

highest

222 A significant aspect of the subsequent events relied upon by the appellant, though rejected by the trial judge, was their capacity to extend significantly the temporal effects of the distress suffered by the appellant beyond the weeks or months immediately following the publication up until March or April 2004 (in relation to the Pirelli job interview) and until December 2004 (and possibly thereafter) in relation to his marriage breakdown. If the appellant’s evidence in relation to the airport incidents had also been accepted, that would have extended the temporal reach well into 2005 and possibly thereafter.

223 The joint judgment does not accept the beliefs with respect to the airport incidents as being rationally held, the test of rationality being accepted by the appellant and deriving from the need for there to be an “appropriate and rational relationship” between the harm and the amount of damages awarded: see s 46A(1). The joint judgment also takes into account the need to put damages not merely within the range, but at the top of the range, because of the circumstance of aggravation arising from the failure to publish a retraction or apology. When the additional elements relied on in the joint judgment are removed, as bases for the assessment of damages, the task of assessing the appropriate range changes.

224 There is also a question as to whether the joint judgment correctly applies the principles set out above. Their Honours state that “[i]n terms of the general range of damages for non-economic loss in personal injury awards, the defamatory imputations in the present case would in our view be equivalent in terms of seriousness to a person who had sustained injuries which rendered him or her at least a paraplegic”: at [130]. Their Honours then note amounts which have been awarded in New South Wales in the most serious category of personal injury cases, including quadriplegia.

225 If the reference to paraplegia is merely meant to state that the defamation is objectively of such a serious nature as to fall within at least the second most serious category of cases, that may be accepted, although paraplegia is a description of injury and is compared with the imputations, more than the level of distress of the appellant. However, the statement is open to the additional inference that there should be some proportionality between the award in a defamation case of that nature and an award of damages for non-economic loss in the case of somebody suffering personal injuries giving rise to paraplegia. Such an approach would not be correct. The test of proportionality identified in s 46A(2) requires attention to the harm actually suffered. Putting to one side vindication of reputation, there must be proportionality between the degree of distress caused by the defamatory publication, and the pain and suffering associated with serious physical and psychological injuries associated with paraplegia. In the case of defamation, humiliation, distress, injury to feelings and matters of a like nature may properly be seen as a form of psychological damage. In the present case, there was evidence of great immediate personal distress, including, as his Honour found, headaches and some difficulty in sleeping: at [114]. However, there was no medical evidence of any more serious continuing consequences for the appellant’s health.

226 Although no precise comparison can be made, the Court should then have regard to awards of general damages in personal injury cases with similar features, in order to ensure that there is no manifest disproportion which would allow for a legitimate sense of grievance. This exercise is not effected by classifying the defamation as serious, or very serious and then comparing awards which might be given in relation to serious, or very serious, cases of personal injury. In considering whether an award is manifestly inadequate, little guidance will be obtained from looking at the highest awards for the most serious personal injuries. The relevant point of reference is the bottom of the range of awards with respect to personal injury revealing similar levels of harm. This exercise was not assayed by the appellant. It has not been undertaken in the joint judgment.

227 Accepting all the limitations of the process of comparison, the exercise is one which is mandated by s 46A(2) of the Defamation Act. There is no reason to suppose that, without making specific reference to particular amounts, the trial judge did not undertake that exercise. The respondent identified a number of defamation cases determined in recent years where, for reasonably serious defamations, plaintiffs were awarded amounts in the range from $100,000 to $150,000. (The difficulty of comparison lies not only in the nature of the defamation, but in the highly variable effects on reputation and degrees of distress caused.) The respondent also referred the trial judge to various legislative provisions in New South Wales capping the amount of general damages for personal injury in relation to motor accidents, workers compensation and sporting injuries, to which may be added the general provisions of the Civil Liability Act 2002 (NSW).

228 Unless the appellant was able to identify the particular features of the present case and identify a figure below which an award could not properly be made, in the absence of any specific error, no case of manifest inadequacy could be established on a principled basis. Since the appellant did not do this, it is not possible to say that the award at which the trial judge arrived bespeaks error of a kind which would require the intervention of this Court.

Conclusion

229 The appeal should be dismissed with costs.

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Citations

Ali v Nationwide News Pty Ltd [2008] NSWCA 183

Most Recent Citation

Cases Citing This Decision

126

Feldman v Nationwide News Pty Ltd [2020] NSWCA 260

Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237

Gacic v John Fairfax Publications Pty Ltd [2015] NSWCA 99

Cases Cited

39

Statutory Material Cited

4

Carson v John Fairfax & Sons Ltd [1993] HCA 31

Triggell v Pheeney [1951] HCA 23

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CITATION:	Ali v Nationwide News Pty Ltd [2008] NSWCA 183
HEARING DATE(S):	5 June 2008
JUDGMENT DATE:	8 August 2008
JUDGMENT OF:	Tobias JA at 1; McColl JA at 1; Basten JA at 140
DECISION:	(a) Appeal allowed. (b) Set aside the judgment and verdict of James J dated 20 December 2007 awarding the appellant damages in the sum of $125,000. (c) Set aside Orders 1 and 2 of the Consent Orders entered on 3 March 2008. (d) Verdict and judgment for the appellant in the sum of $275,000. (e) Award interest on the judgment sum from 11 June 2003 up to and including 8 August 2008. (f) The respondent to pay the appellant’s costs of the appeal. (g) Liberty to the parties to file consent orders to give effect to order (e). (h) Liberty to apply to McColl JA within 14 days of the date of these orders in the event of any dispute as to the quantum of interest to be paid in accordance with order (e).
CATCHWORDS:	DEFAMATION – damages – whether manifestly inadequate – assessment of damages – compensatory damages – gravity of imputations – importance of injured feelings - DEFAMATION – assessment of damages – aggravated damages for failure to apologise where no apology solicited by plaintiff - PRACTICE AND PROCEDURE – appeal – grounds of appeal – scope of review of primary judge’s decision – whether Court should interfere with primary judge’s findings on evidence - STATUTES – s 46A Defamation Act 1974
LEGISLATION CITED:	Acts Interpretation Act 1901 (Cth) Civil Liability Act 2002 Defamation Act 1974 Migration Act 1958 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	Ali v Nationwide News Pty Ltd [2007] NSWSC 58 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Bashford v Information Australia [2000] NSWSC 665 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 Browne v Dunn (1894) 6 R 67 Carlson v King (1947) 64 WN(NSW) 65 Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 Cassell & Co Ltd v Broome [1972] AC 1027 Clark v Ainsworth (1996) 40 NSWLR 463 Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 Crampton v Nugawela (1996) 41 NSWLR 176 Cross v Queensland Newspapers Pty Ltd [2008] NSWCA 80 Dearman v Dearman [1908] HCA 84; 7 CLR 549 Dingle v Associated Newspapers Ltd [1964] AC 371 Ex parte Reid; Re Lynch (1943) 43 SR(NSW) 207 Fleming v The Queen [1998] HCA 68; 197 CLR 250 Fox v Percy [2003] HCA 22; 214 CLR 118 Herald & Weekly Times Ltd v McGregor [1928] HCA 36; (1928) 41 CLR 254 HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302; (2005) 21 BCL 454 Humphries v TWT Ltd (1993) 113 FLR 402 John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Ley v Hamilton (1935) 153 LT 384 M & E M Holt Pty Ltd v Thompson [2001] NSWCA 359 McDonald v Coles Myer Ltd (t/as K-Mart Chatswood) (1995) Aust Torts Reports 81-361 Mifsud v Campbell (1991) 21 NSWLR 725 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 Moit v Bristow [2005] NSWCA 322 Pettit v Dunkley [1971] 1 NSWLR 376 Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362 Public Service Board of New South Wales v Osmond [1986] HCA 7; 159 CLR 656 Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72 Shellharbour City Council v Rigby [2006] NSWCA 308; 150 LGERA 11 Smiths Newspapers Ltd v Becker [1932] HCA 39; (1932) 47 CLR 279 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 State Rail Authority of New South Wales v Brown [2006] NSWCA 220; 66 NSWLR 540 Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127 Young v Cesta-Incani [2007] NSWCA 229
PARTIES:	Romzi Ali - Appellant Nationwide News Pty Ltd - Respondent
FILE NUMBER(S):	CA 40931/07
COUNSEL:	T Molomby SC and R Rasmussen - Appellant T Blackburn SC and J Hmelnitsky - Respondent
SOLICITORS:	Public Interest Advocacy Centre Ltd - Appellant Blake Dawson Waldron - Respondent
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 20154/04
LOWER COURT JUDICIAL OFFICER:	James J
LOWER COURT DATE OF DECISION:	15 March 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Ali v Nationwide News Pty Limited [2007] NSWSC 58