Ayan v Islamic Co-ordinating Council of Victoria Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8810 of 2003

ABDUL AYAN

Plaintiff

ISLAMIC CO-ORDINATING COUNCIL OF VICTORIA PTY LTD (ACN 097 332 726) formerly known as ISLAMIC COORDINATING COUNCIL OF VICTORIA INC

DR MIR MOHAMMED HABIB

IBRAHIM YALCIN

IBRAHIM MOHAMMED

Defendants

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	20, 23-27 and 31 March 2009
DATE OF JUDGMENT:	3 April 2009
CASE MAY BE CITED AS:	Ayan v Islamic Co-ordinating Council of Victoria Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2009] VSC 119

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DEFAMATION – Defamatory meanings – Extent of publication – Qualified privilege – Occasion of qualified privilege - Malice – Justification – Truth – Sting must be justified – Damages for defamation – Economic loss – Andrews v John Fairfax & Sons.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C.W.R. Harrison SC with Mr M.A. Strang	Merhi & Associates
For the Defendants	Mr A.N. Bristow	Kennedy Guy

TABLE OF CONTENTS

Introduction........................................................................................................................................ 2

The letter.............................................................................................................................................. 3

The defendants................................................................................................................................... 4

The extent of publication of the letter........................................................................................... 5

The plaintiff’s imputations.............................................................................................................. 6

Identification of the plaintiff and the right to sue...................................................................... 7

What imputations arise?................................................................................................................... 9

Was the letter defamatory of the plaintiff?................................................................................. 13

Responsibility for publication...................................................................................................... 14

The justification defence................................................................................................................ 17

The qualified privilege defence.................................................................................................... 20

Malice................................................................................................................................................. 25

Damages............................................................................................................................................. 29

Interest................................................................................................................................................ 35

Conclusion......................................................................................................................................... 36

HIS HONOUR:

Introduction

In March 2001, the Islamic Co-ordinating Council of Victoria Inc sent a letter (“the letter”) signed by Mr Ibrahim Mohammed, the fourth defendant, to various abattoirs. The letter asserted, amongst other things, that a business called “Aus-Halal” had been wrongly representing to abattoirs that it was authorised by AQIS to provide Halal certificates in Victoria and that the recipient of the letter may have had contact with Mr Abdul Ayan, the plaintiff, through Aus-Halal. The letter went on to say that Aus-Halal was not recognised by AQIS to provide Halal certificates, but that the Islamic Co-ordinating Council of Victoria Inc would ensure a “business as normal” approach and that the recipients of Halal export meat orders would not be placed in jeopardy by the activities of Mr Ayan.

In this proceeding Mr Ayan seeks damages for defamation in relation to the publication of the letter. There are issues between the plaintiff and the defendants as to the extent of publication of the letter, the defamatory meanings that arise from the letter, the identification of the plaintiff, the right of the plaintiff to sue, whether the letter was defamatory of the plaintiff and the responsibility of particular defendants for the publication of the letter. In addition, the defendants rely upon a defence of justification and a qualified privilege defence.[1] In answer to the defendants’ qualified privilege defence, the plaintiff alleges malice. For the reasons given below:

(a) There will be judgment for the plaintiff against the first and fourth defendants for the sum of $125,000.[2]

(b) The plaintiff’s claims against the second and third defendants will be dismissed.

[1]Reliance upon the fact that a particular paragraph of an earlier version of the statement of claim was struck out by a Master on 20 July 2005 as a defence (paragraph 22A in the defendants’ amended defence to the further amended statement of claim) was abandoned by the defendants at T62.27. Similarly, reliance upon a plea of estoppel (paragraph 40 of the defendants’ amended defence) based upon the existence of an earlier proceeding (about which I will say more below) was abandoned at T105.20.

[2]Together with such amount as is appropriate (after having heard the parties) in respect of interest pursuant to s 60 of the Supreme Court Act 1986.

The letter

The letter was written on the letterhead of the Islamic Co-ordinating Council of Victoria Inc in the following terms:

“19 March 2001
Dear Sir/s
This letter is to keep your Company informed of recent developments concerning the certification of Halal meat in Victoria. You will be aware that the Islamic Co-ordinating Council of Victoria (‘the ICCV’), with whom your Company has dealt with in the past, is approved by the Australian Quarantine and Inspection Service (‘AQIS’) to provide Halal services and certification under the auspices of the Australian Government Supervised Muslim Slaughter Program.
It has recently come to our attention that an organisation known as the Islamic Co-Ordinating Council of Australia (‘the ICCA’) and a business called ‘Aus-Halal’ have been wrongly representing to various abattoirs that they are authorised by AQIS to provide Halal certificates in Victoria and elsewhere. You may have also had contact with a Mr Ali Chawk and a Mr Abdul Ayan through the ICCA and Aus-Halal.
The ICCA and Aus-Halal are NOT recognised by the AQIS to provide Halal certificates nor are they associated with the ICCV.
So as to protect the reputation of the Halal certificate program and Halal meat exports from Australia, the ICCV has commenced proceedings in the Supreme Court of Victoria against the ICCA, Mr Chawk and Mr Ayan and obtained orders, among other things, preventing:
(a)the ICCA from representing or holding itself out as an Islamic body recognised by the Australian Quarantine and Inspection Service with the authority to issue Halal meat certificates;
(b)the ICCA from issuing Halal meat certificates under the authority or purported authority of the Australian Quarantine and Inspection Service; and
(c)Mr Chawk and Mr Ayan from issuing Halal meat certificates or certifying Halal foods in Australia in the name of the ICCV with the authority or the purported authority of AQIS.

So as to insure no disruption to Halal Meat exports by your Company and the Halal certification program, a representative from our organisation will contact you shortly as to questions you may have concerning the certification program conducted by the ICCV.
We will ensure a ‘business as normal’ approach and that your Halal export meat orders are not placed in jeopardy by the activities of ICCA, Aus-Halal, Mr Chawk or Mr Ayan.
In the interim, our phone and fax number is …, and our address is 72 George Street (cnr Daws Road) Doncaster East, Victoria, 3109.
Mr Ehsan ul Haque, whose signature appears below is authorised to sign Halal meat certificates on behalf of this organisation.
Please do not hesitate to contact Mr Rafik Koyu on ... or Esad Alagec on … after hours if you have any concerns about your Halal certification program or require any further assistance.
Yours faithfully,
Ibrahim Mohammed, Chairman
Islamic Co-ordinating Council of Victoria Inc.
Ehsan ul Haque, Authorised Halal Meat Certifier”

The letter was signed by its two signatories and stamped next to the signatures with the common seal of the Islamic Co-ordinating Council of Victoria.

The defendants

In March 2001, the Islamic Co-ordinating Council of Victoria Inc was an incorporated association pursuant to the Associations Incorporation Act 1981. In July 2001, there was a transfer of incorporation within the meaning of s 31C of the Associations Incorporation Act. The Islamic Co-ordinating Council of Victoria Pty Ltd, the first defendant, is the body corporate deemed by s 31C(3) to be the same body as the Islamic Co-ordinating Council of Victoria Inc (“ICCV”).

ICCV is an organisation made up of 11 Muslim societies.[3] It is an organisation which provides (and has provided) services including the supervision of the slaughter of animals to ensure that the slaughter has been carried out in accordance with Islamic religious requirements. It is also approved by AQIS[4] “to provide Halal services and certification under the auspices of the Australian Government Supervised Muslim Slaughter Program”. It is common ground between the parties that the Halal certification process has great religious significance. The procedures and processes involved need to be rigorously complied with. A failure in the system has the serious consequence of the product being rejected for consumption by Muslims. In this regard, ICCV takes its obligations and duties very seriously.[5]
[3]See the evidence of the fourth defendant at T310.31 – 311.1. The societies are Elsedeq Islamic Society Inc, Australia (Nur), the Light Foundation Inc, Beiuzzaman Said Nursi Cultural Foundation Inc, Croatian Islamic Centre Inc, Bosnia-Herzegovina Islamic Society Inc, United Muslim Migrants Association of Victoria Inc, Keysborough Turkish Islamic Society and Cultural Centre Inc, Islamic Society of Victoria Inc, Cyprus-Turkish Islamic Society Inc, Thomastown Islamic Society and Cultural Centre Inc and Isomer Islamic Society Inc.
[4]In the words of the letter.
[5]See generally the evidence of the defendants’ witnesses, Mr Guzel, Dr Kazi and Mr Koyu.

Up until 25 February 2001, Dr Mir Mohammed Habib, the second defendant, was the vice-chairman of ICCV and a member of the executive committee. At the time of the publication of the letter, he did not hold any position with ICCV, nor was he a member. Up until 25 February 2001, Mr Ibrahim Yalcin, the third defendant, was the secretary of ICCV and its public officer. At the time of the publication of the letter, Mr Yalcin did not hold any position with ICCV, nor was he a member. At the time of publication of the letter, Mr Ibrahim Mohammed, the fourth defendant, was the chairman of ICCV.

The extent of publication of the letter

In his further amended statement of claim, the plaintiff initially pleaded publication “to a number of businesses with whom … [he] did business”.[6] Twelve organisations were identified as being recipients of the letter. By their amended defence, the defendants pleaded:

“Save that they admit publication of the letter dated 19 March 2001 …, they do not admit the allegations in paragraph 22.”

Eventually, in further answers to interrogatories,[7] the first defendant admitted the letter was sent by fax, mail or personal delivery to specific ICCV customers. Whilst the first defendant’s answers assert that the precise customers could not be identified, a list of those who were to receive the letter identifies 64 different organisations.[8] The defendants’ position was stated by their counsel[9] to be that the defendants cannot be sure the letter was published to all 64 organisations on the list, but they believe “it was published to at least most of them”. Specifically, in answer to the plaintiff’s interrogatory 4, it is deposed that the letter was published to ten of the twelve businesses referred to in paragraph 22 of the amended statement of claim.[10] On day three of the trial, the plaintiff sought and obtained leave to amend paragraph 22 of his statement of claim to allege publication in conformity with his construction of the first defendant’s answers to interrogatories.[11]

[6]See paragraph 22 of the amended statement of claim.

[7]Exhibit A.

[8]Whilst these answers to interrogatories were only sworn on behalf of the first defendant, the fourth defendant accepted and gave evidence that what was said in these answers was likely to be correct (T333.29 – 334.25).

[9]T63.21 – 64.3.

[10]Namely, Luv-a-Duck Pty Ltd, AB Oxford Cold Storage Company Pty Ltd, Norvic Food Processing Pty Ltd, Poowong Meat Pty Ltd, Marven Poultry, RH Collinson Pty Ltd, Davis Poultry, Tabro Meats, Farm Pride and Ozimeats.

[11]The plaintiffs filed and served the final version of their statement of claim, being the second further amended statement of claim dated 31 March 2009, on the last day of the trial.

Whilst it is the defendants’ position that they cannot be sure that the letter was published to all 64 organisations identified in the first defendant’s further answers to interrogatories, the evidence discloses that the first defendant regarded the subject matter of the letter as very important. The rigorous and vigilant maintenance of Halal procedures and the inspection and certification process are matters that were, at the time (and still are), taken very seriously by ICCV and those associated with it. In this regard, a significant amount of resources have been expended to protect the integrity of the systems and processes to which the letter relates. For example, ICCV commenced proceeding number 4770 of 2001 (“the ICCV proceeding”) seeking ex parte orders against four defendants, including the plaintiff,[12] and pursued those proceedings to a trial which was heard over eight weeks. It is unlikely that, having regard to the seriousness with which ICCV (and those associated with it) regarded the subject of Halal certification, the letter would not have been sent (as was intended) to all of the entities on the list referred to in the first defendant’s further answers to interrogatories. In the circumstances, it is likely (and I find as a matter of probability) that the letter was sent to all of the 64 organisations referred to in the first defendant’s answers to interrogatories.
[12]ICCA was subsequently added as a fifth defendant.

The plaintiff’s imputations

The plaintiff relies on seven imputations. They are pleaded as follows:

“The … letter was defamatory of Abdul Ayan and of and concerning him in the way of his said business and in its natural and ordinary meaning meant and was understood to mean that Abdul Ayan, in the conduct of his business, Aus-Halal, and in the conduct of his occupation as a supervisor of Halal meat:
a.had falsely represented to his customers and potential customers that Aus-Halal was authorised by AQIS to provide Halal certificates in Victoria;
b.required, but did not have, the recognition of AQIS for the conduct of the business activities in Aus-Halal;
c.was falsely representing to his customers and potential customers that Aus-Halal was acting on behalf of the Council as certifier of Halal meat;
d.was wrongfully certifying Halal food in Australia in the name of the Council with the authority or purported authority of AQIS;
e.had placed in jeopardy the Halal meat export orders of the abattoirs and bone cutting businesses with which Aus-Halal dealt;
f.was threatening to disrupt the Halal meat export business of the firms to which the letter of 19 March 2001 had been sent; and
g.was a person with whom each of the recipient customers ought not to do business.”

The plaintiff contends that imputations (a) to (d) arise from the second and third paragraphs of the letter, namely:

“It has recently come to our attention that an organisation known as the Islamic Co-Ordinating Council of Australia (‘the ICCA’) and a business called ‘Aus-Halal’ have been wrongly representing to various abattoirs that they are authorised by AQIS to provide Halal certificates in Victoria and elsewhere. You may have also had contact with a Mr Ali Chawk and a Mr Abdul Ayan through the ICCA and Aus-Halal.
The ICCA and Aus-Halal are NOT recognised by the AQIS to provide Halal certificates nor are they associated with the ICCV.”

The plaintiff contends that imputations (e) and (f) arise from the fourth-last paragraph of the letter, namely:

“We will ensure a ‘business as normal’ approach and that your Halal export meat orders are not placed in jeopardy by the activities of ICCA, Aus-Halal, Mr Chawk or Mr Ayan.”

Finally, the plaintiff contends that imputation (g) arises from a combination of the second and third paragraphs extracted above, together with the fourth-last paragraph (also extracted above).

Identification of the plaintiff and the right to sue

In the course of his final submissions, counsel for the defendants contended:

(a) It is not appropriate to consider the plaintiff as Aus-Halal. In other words, there was no identity between the plaintiff and Aus-Halal and readers of the letter would not have identified the plaintiff in the references to Aus-Halal.

(b) Aus-Halal was a partnership whose business continued until 2002 when the partnership’s business was then transferred to a company, Aus-Halal Pty Ltd. If Aus-Halal (the partnership) was defamed by the letter, then the partnership had a right to sue in respect of that libel. The plaintiff in this proceeding (self-evidently) is Mr Ayan. The partnership has not sued and the plaintiff has not sued on behalf of the partnership.

(c) The plaintiff is not so identified by the name of the partnership that things said of the partnership would reflect on him. There is “no evidence by any objective person that in talking about Aus-Halal, the partnership, they knew or thought it was the same as referring to the plaintiff”.[13] Contrast was said to be made with cases like Todd v Swan Television and Radio Broadcasters Pty Ltd,[14] Mirror Newspapers Limited v World Hosts Pty Ltd[15] and Maxwell-Smith v Warren & Anor.[16]

[13]See paragraph 10 of the defendants’ submissions dated 30 March 2009.

[14][2001] WASC 334.

[15](1979) 141 CLR 632.

[16][2007] NSWCA 270.

The difficulty with the defendants’ submissions in relation to this aspect of the case is that the letter clearly associates the plaintiff with Aus-Halal. This identification appears from the last sentence of the second paragraph of the letter, sub-paragraph (c) of the fourth paragraph of the letter and the fourth-last paragraph of the letter. Whilst it was not pleaded by the plaintiff that the recipients of the letter knew that the plaintiff was associated with Aus-Halal and to be identified by references to Aus-Halal,[17] this proceeding and the ICCV proceeding have been conducted on the basis that there is an identity between Aus-Halal and the plaintiff.[18] Further, merely because a partnership (in this case Aus-Halal) might have sued for defamation does not preclude the right of an individual (even if he is one of the partners) from suing for defamation if the relevant publication (in this case the letter) is defamatory of him.[19] The letter having been sent in terms conveying an identity between Aus-Halal and the plaintiff, and the proceeding having been conducted on the basis that there was such an identity,[20] I propose to consider the issue of what imputations arise on the basis that ordinary, reasonable readers of the letter would have identified the references to Aus-Halal as references to the plaintiff.[21] This is how the letter would have been read and understood by ordinary, reasonable readers.
[17]Cf the position as it was in Queensland as disclosed in the Hall-Gibbs Mercantile Agency Limited v Dun & Ors (1910) 12 CLR 84 and the position as it was in New South Wales as disclosed in Mirror Newspapers Limited v World Hosts Proprietary Limited (1979) 141 CLR 632 at 640.
[18]See, for example, Exhibits G, H and I. See further paragraph 27 of the defendants’ submissions dated 30 March 2009 in which the reference to Aus-Halal must be a reference to the plaintiff (having regard to the terms of paragraph 8 of Exhibit I) and paragraph 28 of those submissions in which the reference to Aus-Halal must include the plaintiff (having regard to the use of the plaintiff’s name in the letter).
[19]See, for example, Todd v Swan Television & Radio Broadcasters Pty Ltd, supra at paragraph [78].
[20]I should also note for the sake of completeness that this was the basis upon which the ICCV proceeding was conducted.
[21]See paragraph 16 below.

What imputations arise?

In this proceeding, a considerable amount of evidence was given concerning matters leading up to the publication of the letter. Specifically, there was evidence given about an investigation performed at the behest of ICCV (the report of which investigation is Exhibit O, and about which I will say more below) and the ICCV proceeding, which led to orders being made on 7, 15 and 27 March 2001.[22] Whilst this evidence may bear on the defendants’ justification and qualified privilege defences, it has no bearing on the natural and ordinary meaning of the letter. No party contended that there were extrinsic facts known to the recipients of the letter which altered the natural and ordinary meaning of the letter.
[22]Exhibits G, H and I respectively.

It is trite that the meaning of the letter is to be determined by the sense in which fair-minded, ordinary, reasonable people in the community would understand it. What its authors or publishers intended it to convey is irrelevant when determining its meaning. Similarly, what the plaintiff thinks the letter meant is irrelevant on this issue. Whilst in Farquhar v Bottom[23] Hunt J only had to consider whether the publication in that case was capable of conveying particular imputations, his Honour summarised the attributes and approach to be taken by a fair-minded, ordinary, reasonable reader. His Honour said:[24]

“In deciding whether the matter complained of is capable of conveying to the ordinary reasonable reader the imputations relied upon by the plaintiff, I must be guided and directed by the test of reasonableness. I must reject any strained, or forced, or utterly unreasonable interpretation: Jones v Skelton ([1063] SR (NSW) 644). I must proceed upon the basis that the ordinary reasonable reader is a person of fair, average intelligence: Slatyer v Daily Telegraph Newspaper Co Ltd ((1908) 6 CLR 1 at 7); who is neither perverse: ibid; nor morbid or suspicious of mind: Keogh v Incorporated Dental Hospital of Ireland ((1910) 2 Ir R 577 at 586); nor avid for scandal: Lewis v Daily Telegraph Ltd ([1964] AC 234 at 260).
This ordinary reasonable reader does not, we are told, live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs: Lewis v Daily Telegraph Ltd (supra at 258); Jones v Skelton (supra at 650); Lang v Australian Consolidated Press Ltd ([1970] 2 NSWR 408 at 412). It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer: Lewis v Daily Telegraph Ltd (supra at 277); Morgan v Odhams Press Ltd ([1971] 2 All ER 1156 at 1163); Lang v Australian Consolidated Press Ltd ([1970] 2 NSWR 408 at 412); Middle East Airlines Airliban SAL v Sungravure Pty Ltd ([1974] 1 NSWLR 323 at 34).”

[23][1980] 2 NSWLR 380.

[24]At pp.385-6.

With these principles in mind, I turn now to consider which of the plaintiff’s imputations arise. Imputation (a) clearly arises. But for changing the word “wrongly” to “falsely”, it follows the words of paragraph 2 of the letter. Similarly, imputation (b) arises from the second and third paragraphs of the letter. The implication from those paragraphs is that the plaintiff and Aus-Halal require recognition and authority from AQIS to provide Halal certificates. Likewise, imputation (c) arises. Again, it arises primarily from the second and third paragraphs of the letter. However, these paragraphs are not to be construed in isolation and imputation (c) (along with imputations (a) and (b)) arise from a fair reading of the letter as a whole – albeit that the second and third paragraphs are of particular relevance.

For the same reasons as those given in relation to imputations (a) to (c), imputation (d) is conveyed by the letter. Whilst the words “in the name of the Council” in imputation (d) probably add little to the sting, they arise from sub-paragraph (c) of the fourth paragraph of the letter.[25]
[25]At least, more obviously than they might be said to arise from the third paragraph of the letter.

Whilst a certain amount of reading between the lines is permissible, imputations (e) and (f) are too strained to arise. So far as imputation (e) is concerned, it could fairly be said the letter contains an imputation that continued dealing with the plaintiff might place the recipient’s Halal export meat orders in jeopardy. However, the letter does not make any reference to the recipient’s Halal export meat orders currently being in jeopardy as a result of dealings to date with the plaintiff or Aus-Halal.[26] Having considered the issue, I find the letter conveys an imputation that continuing to deal with Mr Ayan may place the recipient’s Halal export meat orders in jeopardy. So far as imputation (f) is concerned, there is no reference to any threat in the letter and no basis for inferring or implying one.
[26]However, nothing much may turn on this having regard to my conclusions with respect to imputations (a) to (d) and (g).

Consistently with what I have said above, imputation (g) arises. This is because the letter conveys an imputation that continuing to deal with Mr Ayan may place the recipient’s Halal export meat orders in jeopardy – he being required to have (but not having) the recognition of AQIS for the conduct of the business of Aus-Halal. Accordingly, an imputation is conveyed that Mr Ayan is a person with whom each of the recipient customers ought not to do business (at least in relation to Halal meat matters[27]).
[27]There was no suggestion during the hearing that the plaintiff had some other non-Halal business in respect of which recipients of the letter might care to continue to deal with the plaintiff.

It follows from what I have said above that the letter in its natural and ordinary meaning meant that the plaintiff, in the conduct of his business, Aus-Halal:

(a) had falsely represented to his customers and potential customers that Aus-Halal was authorised by AQIS to provide Halal certificates in Victoria;

(b) required, but did not have, the recognition of AQIS for the conduct of the business activities in Aus-Halal;

(c) was falsely representing to his customers and potential customers that Aus-Halal was acting on behalf of ICCV as a certifier of Halal meat;

(d) was wrongfully certifying Halal food in Australia in the name of ICCV with the authority or purported authority of AQIS;

(e) was a person with whom each of the recipient customers ought not to do business.

Whilst I have also found that the letter conveys the imputation that continuing to deal with Mr Ayan may place the recipients’ Halal Export meat orders in jeopardy, and whilst I find this is a permissible lesser variation of the plaintiff’s pleaded imputation (e) and is therefore one in respect of which the plaintiff may seek relief in this proceeding,[28] it is not necessary to consider this matter further, as the sting of this imputation is subsumed by the sting of the imputation I have found in sub-paragraph (e) above.

[28]See Chakravarti v Advertiser Newspapers (1998) 193 CLR 519.

There was debate before me as to whether the letter, when it referred to Halal certificates,[29] related to interim and transfer certificates on the one hand or final[30] certificates on the other hand. This issue was relevant not only in respect of the meaning of the letter but also in respect of the justification and qualified privilege defences. It is necessary to say something about the certification process. When meat is slaughtered, there is often a need to transfer the meat from an abattoir to a boning room and/or to a chilling room or cold store. It is only at the end stage of the process that a final certificate is issued certifying that the product is Halal. These certificates are stamped by the abattoir and an approved Islamic organisation (such as ICCV) and also have applied to them a Government seal. In order to provide certification in respect of a final certificate, the person or entity purporting to be (or to represent) the Islamic organisation must be approved by AQIS. It is common ground that neither the plaintiff nor Aus-Halal have (or have had) this approval.
[29]See in particular the second and third paragraphs of the letter.
[30]Sometimes called “export”.

During the course of the slaughter process, interim and transfer certificates may be completed for the purpose of certifying that the meat was killed in accordance with Halal procedures or has been transferred or stored in compliance with Halal procedures. Whilst interim and transfer certificates are “not for official use or export purposes”,[31] their completion provides a record which can enable final certification to take place. It is not necessary for a person completing an interim or transfer certificate to have any approval or recognition from AQIS. In summary, the plaintiff was at all relevant times a person who could complete an interim or transfer certificate, but could not complete a final certificate. Whilst the defendants ran their cases on the basis that the letter dealt with interim and transfer certificates (or dealt with concerns relating to the completion of interim and transfer certificates),[32] it is plain from the references to the approval or authority of AQIS that the letter refers to final certificates[33] (whatever may have been the intention of the publishers of the letter). It is in this sense that I have found the imputations set out in paragraph 21 above.
[31]See Exhibit 1.
[32]See generally the particulars under paragraph 22B of the defendants’ amended defence (particulars of the qualified privilege defence) and the particulars under paragraph 22C (particulars of the justification defence).
[33]Interim and transfers certificates not requiring any approval or authority of AQIS, whereas final (export) certificates require such approval or authority.

Was the letter defamatory of the plaintiff?

The question that now arises is whether the letter, in the meanings which I have found it to bear, was defamatory of the plaintiff.[34] Whilst there is no single comprehensive definition of what is defamatory, matter is defamatory if it tends to lower the plaintiff in the estimation of right thinking members of the community generally; or causes him to be shunned or avoided; or is calculated to injure his reputation by exposing him to hatred, contempt or ridicule. To say of a person that they claim an authority they do not have and therefore those who require their services should not deal with them is both to lower that person in the estimation of right thinking members of the community and to cause that person to be shunned or avoided. In this case, the sting of the libel is that the plaintiff requires the authority of AQIS in order to perform the services he has been performing and he has wrongly claimed that he has this authority, when in fact he does not possess any such authority. The letter is defamatory in the meanings I have found. Further, it is not to the point (as argued by the defendants) that the letter did not target Mr Ayan (or that there was no intention to target Mr Ayan). If the letter is defamatory of the plaintiff, it is not an answer to say[35] that the letter identified concerns which the defendants had in respect of a number of entities. The fact that the letter may have been designed to stop a combination of entities from engaging in activities which its publishers were unhappy with does not take away the sting of a defamatory imputation published of and concerning the plaintiff by the sending of the letter.
[34]It is not to the point (as the defendants sought to contend (see paragraph 18 of their submissions dated 30 March 2009)) that particular phrases or paragraphs of the letter could be isolated as not being defamatory.
[35]Subject, of course, to the making out of any affirmative defence – such as qualified privilege.

Responsibility for publication

The letter was sent on the first defendant’s letterhead. It was signed by the chairman and bore the common seal of the first defendant. There is no doubt that the first defendant published the letter as admitted and to the extent admitted in the first defendant’s answers to interrogatories. The fourth defendant signed the letter. He, too, is therefore responsible for its publication. The next question is whether the second and third defendants have any responsibility for the publication of the letter so as to make them also liable.

The second and third defendants did not sign the letter. There is no evidence that they participated in writing or sending the letter. At the time the letter was published, neither held any position with ICCV. However, a defendant may be held to have a responsibility for publication if he consented to, or approved of, or adopted, or promoted, or in some way ratified the publication.[36] Bearing in mind that issues of this kind can be established by inference, I turn now to consider the position of the second and third defendants individually.
[36]See the judgment of Hunt J in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127 as approved by Dunford J in Bishop v New South Wales [2000] NSWSC 1042 at paragraph [14]. See also Webb v Bloch (1928) 41 CLR 331 per Isaacs J at p.364.

In evidence, the second defendant denied any involvement in the writing of the letter. Indeed, he denied any involvement in the letter, saying it occurred in a period after his position with ICCV ended.[37] He was cross-examined extensively about ongoing assistance he provided to ICCV after his position terminated. This included the swearing of an affidavit on 29 October 2001[38] in the ICCV proceeding. He was also cross-examined about meetings he may have attended at ICCV both before and after the publication of the letter. Whilst he admitted that he may have attended one or two meetings,[39] he at all times maintained a denial of any knowledge concerning the contents of the letter or its publication.
[37]25 February 2001.
[38]Exhibit Y.
[39]T276.17.

A significant attack was made on the second defendant on the basis that he said in evidence that he was unable to recollect the letter, or ever having seen the letter, before giving evidence.[40] It was suggested that this did not accord with an answer to interrogatory that he swore on 6 March 2009.[41] The second defendant swore, in answer to an interrogatory seeking details of the publication of the letter:

“Save that I am aware that the letter dated 19 March 2001 was prepared for publication by the first defendant I have no knowledge of the details of its publication.”

[40]T277.

[41]Exhibit Z.

During the course of the second defendant’s cross-examination, it was put that when he said in evidence he had no memory of the letter, that was untrue unless he had forgotten the memory of the letter which he must have had when he swore his answers to interrogatories. I reject the suggestion that any of the second defendant’s evidence was untrue. The second defendant impressed me as a person who was doing his best to recollect events as they unfolded. The fact that the second defendant had no recollection of the letter in the witness box is not contradicted by the second defendant having sworn[42] to an awareness that the letter was prepared for publication by ICCV. In any event, even if there was an inconsistency between the second defendant’s evidence and his answers to interrogatories as asserted by the plaintiff, it does not cause me to disbelieve the second defendant in his denial of any involvement or acquiescence in the publication of the letter. Accordingly, I find that the plaintiff has failed to establish publication against the second defendant and the second defendant is therefore entitled to judgment.
[42]Remembering that answers to interrogatories fall to be sworn on information and belief after having made all due and proper inquiries.

I turn now to the third defendant. Like the second defendant, the third defendant, in evidence, denied any involvement in the publication of the letter. He also denied knowing anything about the letter at the time it was sent.[43] He, too, was cross-examined about meetings that it was suggested he attended. His answer generally on this issue was that he did not “remember exactly” because the meetings inquired of happened more than eight years ago.[44] He was also cross-examined about ongoing assistance he provided to ICCV after his position terminated.[45] Additionally, he was cross-examined extensively on an affidavit he swore on 9 April 2001 in the ICCV proceeding.[46] His explanation for swearing affidavits and giving evidence on behalf of ICCV after his position terminated was that he had been on the executive committee of ICCV and the various matters that he gave evidence about related to matters that were done while he was in power. None of the matters put to the third defendant in cross-examination about his involvement with ICCV after 25 February 2001 cause me to conclude that the third defendant was involved in or acquiesced in the publication of the letter.
[43]T293.6.
[44]T297.10 - .14.
[45]The third defendant’s position terminated on 25 February 2001.
[46]Exhibit AA.

As with the second defendant, a significant attack was made on the third defendant on the basis that he, too, swore, in answer to an interrogatory seeking details of the publication of the letter:

“Save that I am aware that the letter dated 19 March 2001 was prepared for publication by the first defendant I have no knowledge of the details of its publication.”[47]

The attack made on the third defendant by reference to his answers to interrogatories was along the same lines as that made on the second defendant.[48] Nothing in the cross-examination caused me to conclude that the third defendant was doing other than his best to recollect events as he knew them. Further, nothing in the cross-examination or the evidence generally led me to conclude that the third defendant did have some involvement in the publication of the letter or acquiesced any way in its publication. Accordingly, I find that the plaintiff has failed to establish publication against the third defendant and the third defendant is therefore entitled to judgment.

[47]Exhibit AB.

[48]See in particular T307 – 309.

Having regard to my findings against the first and fourth defendants in relation to their responsibility for the publication of the letter and that the letter is defamatory of the plaintiff, it is necessary to consider their justification and qualified privilege defences. I turn to consider the justification defence first.

The justification defence

In paragraph 22C of their amended defence, the defendants plead[49] “the said words complained of in paragraph 22[50] … were true in substance and in fact”. Particulars are then given as follows:

“ICCA and Aus-Halal together in providing Muslim slaughtermen, Muslim supervisors, interim Halal certificates and export Halal certificates were purporting that they were authorised by AQIS to provide Halal certification.
Neither ICCA nor Aus-Halal were authorised by AQIS and neither were allowed to represent that they were authorised by AQIS to provide Halal certificates.”

[49]As an alternative plea to their non-admission in paragraph 22.

[50]By which they must be taken to refer to the letter.

It is trite that a defendant may seek to justify by proving that a defamatory imputation in respect of which he is sued is true in substance and in fact. It is the imputation which must be justified, not individual passages in the matter complained of if they do not equate with the imputation. As is said in Gatley:[51]

“It is the imputation contained in the words which has to be justified, not the literal truth of the words, nor some other similar charge not contained in the words.”

[51]Gatley on Libel and Slander (10^th ed) at paragraph 11.8.

The amended defence does not identify the imputations that are sought to be justified. Whatever one might say about this in terms of the authorities that deal with the pleading of justification defences, the only construction that I can give the plea is that the defendants contend that in whatever meanings arise, the letter is true and the facts that support these allegations are those set out in the particulars which I have extracted above. There are a number of difficulties with the particulars. So far as the first sentence of the particulars is concerned:

(a) First, the letter makes no reference to the provision of Muslim slaughtermen, Muslim supervisors or interim Halal certificates.

(b) Secondly, none of the imputations I have found relate to the provision of Muslim slaughtermen, Muslim supervisors or interim Halal certificates.

(c) Thirdly, the provision of Muslim slaughtermen or Muslim supervisors is unrelated to any authorisation required from AQIS to provide Halal certification.

(d) Fourthly, and most importantly, the sentence (either on its own or in combination with the second sentence of the particulars) does not justify[52] in any way the imputations I have found the letter to convey.

[52]In the sense of forming a basis for the establishment of the defence of truth.

To the extent that the first sentence of the particulars suggests (and to the extent that it was the defendants’ case) that in providing Muslim slaughtermen and/or Muslim supervisors and/or interim Halal certificates Aus-Halal was representing that it was authorised by AQIS to provide final certificates, I reject this proposition: it is neither true nor represents how the ordinary, reasonable reader would have read the letter.[53] In pursuing the defence of this proceeding, the defendants sought to blur the distinction between interim and transfer certificates on the one hand and final (or export) certificates on the other hand. The first sentence of the particulars is an example of his. As I have said above, AQIS certification only relates to the provision of final certificates. The provision of slaughtermen or supervisors or interim certificates cannot constitute a representation of an authority to provide final certificates.
[53]I reject the attempt in paragraph 21 of the defendants’ submissions dated 30 March 2009 to read into the letter the words “by their conduct” before the words “have been wrongly representing to various abattoirs” in paragraph 2. The ordinary, reasonable reader would interpret the words “wrongly representing” to be more than the lawful provision of labour hire services or the signing of interim certificates not requiring AQIS authorisation.

Whilst the second sentence of the particulars is literally true so far as the plaintiff is concerned in that Aus-Halal was not authorised by AQIS (and was not allowed to represent that it was authorised by AQIS) to provide Halal certificates,[54] the plaintiff does not take issue that he was not authorised by AQIS to provide any sort of certificate. The second sentence of the particulars (both alone or in combination with the first sentence) does not provide any basis for a defence of justification to the imputations or sting of the libel. Further, it provides another example of the attempt by the defendants to blur the distinction between interim and transfer certificates on the one hand and final (or export) certificates on the other hand so as to establish a defence to the publication of the defamatory imputations.
[54]The assertion with respect to ICCA can, for present purposes, be assumed to be true. However, it has no bearing on this aspect of the case so far as the plaintiff is concerned.

In addition to the evidence given by the second, third and fourth defendants, the defendants called Mr Sidki Guzel, Dr Abdul Khaliq Kazi and Mr Rafik Koyu. None of the defendants or their witnesses gave evidence that justified any of the imputations that were conveyed by the letter. There was no evidence that the plaintiff had ever represented to anyone that he was authorised by AQIS to provide Halal certificates.[55] Further, there was no evidence that the plaintiff required the recognition of AQIS before he could provide Muslim slaughtermen or Muslim supervisors, or before he could complete an interim certificate or a transfer certificate. Similarly, there was no evidence that the plaintiff had represented to anyone that Aus-Halal was acting on behalf of ICCV as a certifier of Halal meat (being a “final” certifier in the sense that I have found the letter to bear[56]). Additionally, there was no evidence of the plaintiff providing final certification in the name of ICCV with the authority or purported authority of AQIS. Again, it follows for the same reasons that the first and fourth defendants failed to justify imputation (e) (the plaintiff “was a person with whom each of the recipient customers ought not to do business”). It is to be remembered that a defendant may not, under a plea of justification, prove the truth of other matters damaging to a plaintiff’s reputation. He must prove the truth of the matters in the publication in respect of which complaint is made. This is so even if the “other matters” are in the same sector of the plaintiff’s life and are no less damaging to the plaintiff’s reputation than the matter complained of.
[55]Being final (or sometimes called “export”) certificates which required the provider to have authority from AQIS.
[56]At its highest for the defendants, all that could be found was an interim certificate (Exhibit 1) in which the plaintiff’s signature appeared next to the words “ICCV’s personnel:”. Exhibit 1 was undated and there was no evidence as to whether it was completed before or after the publication of the letter. See also the evidence of the plaintiff at T174.16 – T179.1, noting the reference to a card at T176.1 was a reference to Exhibit C, being the plaintiff’s AusMeat card for the year 2000 and in respect of which ICCV was the nominating organisation (see T73.31).

It follows from what I have said above that the defence of justification must fail. I turn now to consider the qualified privilege defence.

The qualified privilege defence

In paragraph 22B of their amended defence, the defendants plead[57] “the said words were published on an occasion of qualified privilege”. Particulars are then given as follows:
[57]As a matter further to their non-admission in paragraph 22.

“(a)The first defendant is in the business of halal certification and is and was at all material times recognised by AQIS as such;
(b)The abattoirs and boning rooms notified by the 19 March 2001 letter are all abattoirs and boning rooms involved in the production of halal meat;
(c)The said words contained in the 19 March 2001 letter were written to inform the said abattoirs and boning rooms of the fears the first defendant had in respect of ICCA and Aus Halal after:
1. An investigation of a subcommittee of the first defendant comprising Refik Koyu, Esad Alagic, and Bilgin Alpay which reported in February 2001 to the first defendant. In this report it was revealed to the first defendant that:
(i) Halal requirements for certification were not being met in that halal procedures were not being followed, inter alia the plaintiff did not properly supervise the halal procedure at the abattoirs and the boning rooms and that boning rooms were left unsupervised, the plaintiff was not supervising the transfer of meat to cold stores, the plaintiff was not ensuring the halal meat was kept separate from the other meat in the cold stores, and the plaintiff was not supervising the loading of the meat and was signing interim certificates not having properly supervised the halal procedure, production, transfer and storage of halal meat. Mr Ali Chawk was signing export certificates not knowing whether the halal procedure had been followed;
(ii) as the Halal requirements for certification were not being met by Aus-Halal and Mr Chawk the meat produced was not halal; and
2. An investigation by Ibrahim Mohammed revealed that ICCA and Aus-Halal were issuing interim halal certificates and export halal certificates in the name of ICCV without proper authority and without knowing whether the halal procedures had been followed; and
3. On Application by the first defendant, the Honourable Justice Beach granted an Injunction against inter alia the ICCA and the Aus-Halal to refrain (sic) them from:
(i) the fifth defendant by itself, its servants and agents, or howsoever otherwise, is restrained from:
(a) representing or holding itself out as an Islamic body recognised by the Australian Quarantine Inspection Service with the authority to issue Halal meat certificates;
(c) issuing Halal meat certificates under the authority or purported authority of the Australian Quarantine Inspection Service;
(d) certifying that meat as (sic) been slaughtered in accordance with Islamic religious edicts with the authority or purported authority of the Australian Quarantine Inspection Service;
(e) certifying Halal food in Australia under the authority or purported authority of the Australian Quarantine Inspection Service;
(f) certifying as Halal any meat, foodstuffs or beverage to be export out of Australia under the authority or purported authority of the Australian Quarantine Inspection Service;
(g) using any standard, letterhead, stationery, printed material or other property of the Islamic Co-ordinating Council of Victoria [registration number A252293J]

(ii) that Ali Chalk and the first plaintiff by themselves, their servants and agents, or howsoever otherwise, are restrained from:
(a) issuing Halal meat certificates or certifying that meat has been slaughtered in accordance with Islamic religious edicts in the name of:
(i) the Islamic coordinating Council of Victoria [registration number A252293J] under the authority or purported authority of the Australian Quarantine and Inspection Service;
(ii) the fifth defendant under the authority or purported authority of the Australian Quarantine and Inspection Service;
(b) certifying Halal food in Australia in the name of:
(i) the Islamic Co-ordinating Council of Victoria [registration number A252293J] under the authority or purported authority of the Australian Quarantine Inspection Service;
(ii) the fifth defendant under the authority or purported authority of the Australian Quarantine Inspection Service;
(c) certifying as Halal any meat, foodstuffs or beverage to be export out of Australia in the name of:
(i) the Islamic Co-Ordinating Council of Victoria [registration number A252293J] under the authority or purported authority of the Australian Quarantine Inspection Service;
(ii) the fifth defendant under the authority or purported authority of the Australian Quarantine Inspection Service;
(d) using any standard, letterhead, stationery, printed material or other property of the Islamic Co-ordinating Council of Victoria [registration number A252293J];
(e) representing themselves as acting with the authority of the Islamic Co-ordinating Council of Victoria [registration number A252293J].

The conduct of the ICCA and Aus-Halal together in providing Muslim slaughtermen, Muslim supervisors, interim halal certificates and export halal certificates when they were not authorized by AQIS gave rise to the representations that they were authorized by AQIS to provide halal certificates.
The action taken by the first defendant in the Supreme Court proceeding to prevent them continuing to improperly act in respect of halal meat certification and under a sense of duty and without malice towards the plaintiff and in the honest belief that the statements therein made were true; and
(d)In the premises, the first defendant and the abattoirs had a common and corresponding interest in the subject matter and in the publication.”

The cornerstone of the defendants’ qualified privilege defence was a report[58] produced in February 2001 by a sub-committee of ICCV. The report concerned what were described as deductions from wages of slaughtermen and supervisors sent to work in abattoirs and boning rooms. The report is critical of Aus-Halal and those responsible. The plaintiff is mentioned by name. The report also details concerns about whether or not Halal processes are being complied with. There is also discussion concerning the existence of ICCA. The report formed the basis for the commencement of the ICCV proceeding. The defendants contend that the letter was written on an occasion of qualified privilege because they have an interest in maintaining the integrity of the Halal process and certification procedures and the letter was written to relevant abattoirs and boning rooms to inform the recipients of the matters found in the report and of the existence of Supreme Court proceedings (the ICCV proceeding) designed to address those concerns. Much of the evidence called by and on behalf of the defendants was designed to show that the concerns identified in the report were legitimate and formed a proper basis for the commencement of the ICCV proceeding. It was then contended that the letter was an appropriate reporting of these matters to people with a relevant interest, namely abattoirs and boning rooms at which meat was prepared for Muslim consumption.
[58]Exhibit O.

The short answer to the qualified privilege defence is that the letter deals with matters different from those in the report. The sting of the letter is that the plaintiff is claiming[59] that he has AQIS approval to provide final certificates when he does not have this approval. This is not a matter raised in the report. The report deals with other concerns regarding Halal procedures and concerns in relation to deductions from wages and other financial matters. It is well settled that an occasion of qualified privilege must not be used for some purpose or motive foreign to the interest that protects the making of the statement. Further, there must be a significant connection between the defamatory material and the privileged occasion.[60] Whilst there is material in the report that might (subject also to considerations of malice) have been published to relevant abattoirs and boning rooms on the basis of qualified privilege, the material concerning the plaintiff’s need for AQIS certification and his claim that he had AQIS certification was not such material. These topics (the plaintiff’s need for AQIS certification and his claim that he had AQIS certification) were not contained in, nor the subject of, the report. The publication of material on these topics was foreign to the occasion of qualified privilege the defendants sought to rely upon. There was no connection between the defamatory material contained in the report which might have been published on an occasion of qualified privilege to relevant abattoirs and boning rooms and the actual sting of the libel, being the false claim to something that it was said that the plaintiff needed in order to operate his business.
[59]I reject the submission in paragraph 21 of the defendants’ submissions dated 30 March 2009 that the words “wrongly representing” should be construed as by conduct, rather than by claiming: see footnote 53 above.
[60]See generally Andreyevich v Kosovich and Publicity Press(1938) Pty Ltd (1947) 47 SR(NSW) 357, Roberts v Bass (2002) 212 CLR 1, Bashford v Information Australia (Newsletter) Pty Ltd (2004) 218 CLR 366 and Bennette v Cohen [2009] NSWCA 60.

As to the assertion in the particulars (and insofar as it was part of the defendants’ case) that an investigation by the fourth defendant revealed the plaintiff (Aus-Halal) issuing export Halal certificates in the name of ICCV, there was simply no evidence of any such certificate and I accept the plaintiff’s evidence that none was ever issued. Whilst it was asserted in the defendants’ particulars in relation to the qualified privilege defence that the fourth defendant conducted an investigation which revealed export certificates being issued by Aus-Halal without ICCV’s authority, no evidence of any such investigation was given before me.[61] At its highest, the fourth defendant’s evidence disclosed a belief as to confusion about who was issuing certificates (ICCV, ICCA or Aus-Halal) and that if Aus-Halal (the plaintiff) issued an interim certificate where Halal procedures had not been followed then this would affect the integrity and validity of the final certificate issued on the basis of the veracity and accuracy of the interim certificate.
[61]See in particular the fourth defendant’s evidence at T312.6 – T319.16. I do not take the reference to the supply of Halal certificates referred to at T317.5 to be a statement that (contrary to all of the other evidence) the fourth defendant found or had evidence that the plaintiff was signing (or had signed) any final certificates. I am reinforced in this conclusion by the references and concentration by the fourth defendant on interim and transfer certificates in his affidavit sworn 17 May 2001 in the ICCV proceeding (see in particular paragraphs 16, 21 and 22 of that affidavit): part of Exhibit A.

In the letter, reference is made to the commencement of the ICCV proceeding. This proceeding is said to have been commenced “so as to protect the reputation of the Halal certificate program and Halal meat exports from Australia”. The references to the ICCV proceeding in the letter do not assist the defendants in the pursuit of their qualified privilege defence. In referring to the ICCV proceeding, the defendants failed to note that the orders ICCV sought were not “intended to restrain … [Mr Ayan] in his role as an accredited Halal meat inspector and supervisor from signing such interim certificates or transfer certificates as may be provided to him in the ordinary course of business by the abattoirs and slaughterhouses for which he may be working from time to time”.[62] The defence of qualified privilege must fail because the publication of the letter is not related to the occasion of qualified privilege asserted by the defendants. To the extent that there was any evidence of a belief within ICCV (or a belief of the fourth defendant) that the plaintiff was issuing final certificates, there was simply no basis for any such belief, no such certificate ever having been found. I do not accept that either ICCV or the fourth defendant had any such belief.[63] It follows that the qualified privilege defence must fail.
[62]See paragraph 8 of the order of 27 March 2001 (Exhibit I) as it operated on paragraph 6 of the order of 15 March 2001 (Exhibit H).
[63]See, for example, T1422.25 – T1423.5 of the transcript of the trial of the ICCV proceeding (part of Exhibit U) wherein the fourth defendant was asked and answered the following question:
“And that you knew that Aus-Halal wasn’t involved in certification, nor was it receiving certification payments?---Counsellor, you asked me this question two minutes earlier and I said to you then that I had no knowledge of whether they were issuing certificates or not, and I still maintain that. And I still have no knowledge until this day whether they were actively issuing certificates or not … .”
Whilst there was an attempt by the fourth defendant to qualify this evidence at T347.7 – T347.9 on the basis that he became aware of documentation issued six months after he took over ICCV, it is to be remembered that the trial of the ICCV proceeding occurred in late 2005 (more than three years after the fourth defendant became the chairman of ICCV). None of the “documentation” referred to by the fourth defendant at T347.8 was produced and I reject his qualification to the evidence he gave in the ICCV proceeding.

Malice

Having regard to the conclusion I have come to that the letter was not published on an occasion of qualified privilege, it is, strictly speaking, not necessary to consider the issue of malice. However, matters relied upon by the plaintiff in respect of malice overlap with matters he relies upon in relation to the issue of exemplary damages. In the circumstances it is appropriate to consider the issue of malice. It is also appropriate to consider the issue of malice in the event that I am wrong in relation to my conclusions concerning the existence of qualified privilege.

Proof of express malice defeats qualified privilege. Express malice is when there is a purpose or motive that is foreign to the occasion of qualified privilege and it (the foreign purpose or motive) actuates the making of the defamatory statement. In Roberts v Bass,[64] Gaudron, McHugh and Gummow JJ said:[65]

“In the law of qualified privilege, the common law has always regarded malice as the publishing of defamatory material with an improper motive. Knowledge of falsity is ‘almost conclusive evidence’ that the defendant had some improper motive in publishing the material and that it actuated the publication.
…
In our opinion, neither the lack of honest belief nor knowledge of falsity ipso facto destroys a defence of qualified privilege. But knowledge of falsity is ‘almost conclusive evidence’ of improper motive, except where the defendant is under a legal duty to publish the defamation.”

[64](2002) 212 CLR 1.

[65]At paragraphs [78] and [83].

Much reliance was placed by the plaintiff upon statements in the letter which he asserts were false and known to be false by the defendants. For example, complaint was made concerning the statement in the letter that ICCA is not associated with ICCV.[66] The evidence discloses that some time after the formation of ICCA, some of those in control of ICCV took issue with the creation of ICCA and the activities it was engaged in. Whilst on a selective examination of the materials it could be said that to assert that ICCA was not associated with ICCV is false, by the time the letter was written there was a dispute between ICCV and ICCA to the point that ICCA was the fifth defendant in the ICCV proceeding. In these circumstances I do not accept that it was false to state in the letter that ICCA is not associated with ICCV. Further, even if it could be said that the statement was false, the statement is not one the falsity of which discloses express malice.
[66]See the third paragraph of the letter.

The first and fourth defendants published the imputations I have found[67] without any belief in their truth. However, I do not find that they actually had knowledge of their falsity. The evidence discloses that the first and fourth defendants were concerned about a number of matters at the time of publication of the letter. These related principally to the deduction of money from wages paid to slaughtermen and supervisors, a confusion as to an apparent association between ICCV on one hand and ICCA and Aus-Halal on the other hand, and the integrity of the Halal certification procedure in circumstances where interim or transfer certificates may have been completed without proper steps having been taken to ensure that the meat was (and remained) Halal. Nevertheless, I find that the first and fourth defendants’ motive for publishing the letter was to have those customers and potential customers of the plaintiff who received the letter cease dealing with the plaintiff. That was the tenor of what was conveyed by the letter. Further, one can infer from the terms of the letter that was the object which the first and fourth defendants wished to achieve.
[67]Paragraph 21 above.

The first and fourth defendants wanted customers and potential customers of the plaintiff who received the letter to cease dealing with the plaintiff because they wanted Muslim slaughtermen and Muslim supervisors to receive their full wage. Indeed, the fourth defendant admitted[68] that ICCV wanted to stop slaughtermen being employed by Aus-Halal and have them employed directly by the relevant abattoirs and sought to achieve that end by sending the letter. Further, they wanted to prevent the plaintiff from being involved in the interim and transfer certificate process as they saw the plaintiff’s involvement in this process as impacting negatively on the integrity of final[69] certificates. The first and fourth defendants sought to achieve this end not by conveying (as they might have) a summary of the report,[70] but by conveying defamatory imputations which had not been the subject of (or found in) any investigation.
[68]T349.28 – T350.4.
[69]Or export.
[70]Exhibit O.

If the first and fourth defendants had a proper belief that the plaintiff was claiming to be authorised by AQIS to provide final certificates in circumstances where he was not so authorised, then a publication to that effect to the plaintiff’s customers and potential customers may have been made on an occasion of qualified privilege. However, publishing that defamatory imputation for the purpose of having customers and potential customers cease using Muslim slaughtermen and Muslim supervisors provided by the plaintiff and for the purpose of preventing the plaintiff from being involved in the interim and transfer certificate process was a purpose foreign to any such occasion of qualified privilege. As that purpose actuated the publication of the letter, it follows that the first and fourth defendants’ publication was actuated by express malice.

For the sake of completeness I should note that the defendants contested the issue of malice on four bases:[71]
[71]See paragraphs 27 to 30 of the defendants’ submissions dated 30 March 2009.

(a) First, it was said there was no evidence of malice – the defendants having agreed to orders amending the injunctive orders in the ICCV proceeding so as to enable the plaintiff to provide Halal supervision and Aus-Halal to continue to operate its business.

(b) Secondly, it was said that ICCV “wanted to stop the Ali Chawk + ICCA + Aus-Halal combination”.

(c) Thirdly, it was said that some defendants “didn’t even know Ayan”.

(d) Fourthly, it was said that the fourth defendant conducted investigations in regard to the ICCA/ICCV confusion prior to taking any action.

None of these matters impact upon the question of whether the letter was published for a purpose or motive that was foreign to the occasion of qualified privilege alleged. None of them (even if accepted) are an answer to the conclusion that in publishing the letter there was express malice in the sense I have described it. It follows that, even if the letter was published on an occasion of qualified privilege, express malice has been established and the defence is thus not made out. The defences of justification and qualified privilege not having been made out by the first and fourth defendants, I turn now to consider the issue of damages.

Damages

It follows from what I have said above that the plaintiff has established an entitlement to damages from the first and fourth defendants in respect of the publication of the letter. The plaintiff claims compensatory damages together with aggravated and exemplary damages. In addition, the plaintiff claims damages for loss of income he alleges he would have received but for the publication of the letter. The loss of income claim has two components: first, a claim for loss of income the plaintiff would have earned as a supervisor; and secondly, a claim for loss of income the plaintiff would have earned through Aus-Halal providing labour to abattoirs and boning rooms. The claim in respect of loss of income (and the evidence led to support it) was put both as a claim for special damages and (in the alternative) in support of the claim for general damages in accordance with Andrews v John Fairfax & Sons Limited.[72] In that case, Glass JA said:[73]

“[I]t is established by the decisions in Ingram v Lawson (1840) 6 Bing (NC) 212; 133 ER 84 and Ratcliffe v Evans [1892] 2 QB 524 that a plaintiff suing for damages caused by defamation may elect to prove damages of a general kind, namely, for loss of business. This, as the authorities show, is different in kind from a claim for special damage, and does not need to be pleaded as such. The way in which the evidence for the plaintiff company was introduced shows that those advising it had a clear appreciation of the kind of evidence with Ingram’s case authorised, and were at pains, at all stages, to stay within the confines of the principles which it laid down. The distinction, as I understand it, is simply that, if a plaintiff sets out to prove special damage, he undertakes to show that the loss was caused by the defamatory publication. If he elects not to do this, but merely to prove a decline in his overall business situation, leaving it to inference that he has suffered financial loss in some way connected with the defamatory material, he is at liberty to present such a case. He is also permitted to tender financial detail in aid of such a decline in business. Indeed, it is hard to imagine how a claim for general loss of this character could be presented without some supporting information of a financial kind.”[74]

[72][1980] 2 NSWLR 225, and in particular at pp.235-6 and 251-2.

[73]At pp.251-2.

[74]See also the judgment of Hutley JA at pp.235-6.

The principles concerning the awarding of damages in defamation cases are conveniently summarised in the judgment of Gillard AJA in Herald & Weekly Times Limited v Popovic.[75] It is not necessary to set them out in any detail here. Compensatory damages are awarded as a vindication of the plaintiff’s reputation, reparation for the harm done to the plaintiff’s reputation and consolation for the distress, upset and injury to the plaintiff’s feelings occasioned by the publication.[76] In support of his claims for aggravated and exemplary damages, the plaintiff makes three allegations:

“(a) The defendants published the letter knowing that the defamatory implications contained in the same were false and untrue, or with reckless indifference as to their truth or falsity;
(b) The defendants’ dominant motive in publishing the letter was part of a campaign to stop the plaintiff from trading and to close his business down; and
(c) The defendants published the … letter for their own commercial motives to obtain control over Halal meat certification in Australia and the revenue raised therefrom.”

[75](2003) 9 VR 1 at 76 [377] et seq.

[76]See also Cassell & Co Limited v Broome [1972] AC 1027 at 1070 – 1071.

I do not accept that the first and fourth defendants published the letter for any venal commercial motive. As I have said above, the motive of the first and fourth defendants concerned wages being received by individual slaughtermen and supervisors and the integrity of the Halal system so far as it related to interim and transfer certificates. Whilst the motives were foreign to the occasion of qualified privilege, they were not such as to justify punishment (i.e. an award of exemplary damages). Further, whilst the first and fourth defendants’ motives were foreign to the occasion of qualified privilege, they did not increase the plaintiff’s hurt or harm from that occasioned by the publication of the letter.[77] So far as the allegation of actual knowledge of the falsity of the imputations is concerned, I have already determined above that there was no such actual knowledge on the part of the first and fourth defendants. However, there was a reckless indifference to their truth or falsity. There was no material which reasonably supported their publication. Nevertheless, again there was no increased harm or hurt to the plaintiff caused by this circumstance. Additionally, I am not of the view that this circumstance, in the context of the whole of the facts relating to the first and fourth defendants’ concerns, justifies an award of exemplary damages. Looking at each of the matters relied upon by the plaintiff in support of his claims for aggravated and exemplary damages, I am not prepared to conclude the matters relied upon increased the harm or hurt to the plaintiff; nor do I find them to be deserving of an award of exemplary damages in the circumstances of this case.[78] In my view, the plaintiff is only entitled to an award of compensatory damages.
[77]Counsel for the plaintiff fairly conceded that there was no specific evidence given by the plaintiff that any of the matters relied upon as “matters of aggravation” (see p.11 of the plaintiff’s written submissions dated 31 March 2009) were the subject of specific evidence by the plaintiff in terms that any of them had increased his hurt or harm. However, I was invited to infer that the various matters relied upon by the plaintiff increased his hurt and the harm suffered by him. Having regard to the history of the proceeding (including the time taken to prosecute this proceeding, together with the relative lack of significance of the defamation aspect of this proceeding as originally constituted (the original statement of claim pleaded causes of action in the now deleted paragraphs 9 to 21, 23, 25 to 33 and 35 to 38 alleging breaches of s 52 of the Trade Practices Act 1974, breaches of ss 9 and 12 of the Fair Trading Act 1999, wrongful interference with contractual relations and abuse of process)), I do not infer that the conduct of the first and fourth defendants has aggravated the harm done to the plaintiff by the publication of the letter.
[78]See generally Triggell v Pheeney (1951) 82 CLR 497 and Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419.

The plaintiff was born in Somalia in 1948. He is currently a businessman. He has a Bachelor of Arts, a Master of Arts and a Post-Graduate Diploma of Education and Bachelor of Education. He was a vice principal in a teacher training college in Somalia between 1976 and 1978. In Australia, he has been employed as a tutor in history at Deakin University, an editor, a relieving and temporary teacher, a lecturer in Modern Middle Eastern Studies at Melbourne University and a lecturer in Islamic and Arabic Cultures at RMIT. He has been involved in the creation and running of a number of entities within the Muslim community in Melbourne, including the Muslim Welfare Board of Victoria, the Islamic Women’s Welfare Council of Victoria and the first Muslim women’s refuge in Victoria. He has also been involved in providing cross-cultural workshops to Government service providers and training to different Ministries (including the Ministry of Housing and the Department of Immigration). He was involved in the first International Halal Food Conference in 1996. This Conference was opened by the then Deputy Prime Minister, Mr Tim Fischer. The plaintiff gave the opening speech of welcome at the Conference. He wrote the guiding principles and constitutional provisions for the establishment of the World Halal Food Council.

In 1997, the plaintiff decided to form a labour hire service. He envisaged providing Muslim labour to abattoirs and boning rooms in Victoria. Whilst he initially sought assistance from Mr Ali Chawk, in 1998 he commenced in partnership with Mr Andy Chaouk[79] under the business name, Aus-Halal. Aus-Halal then operated as a partnership between the plaintiff and Andy Chaouk, although in reality the plaintiff did all the work.[80] Subsequently, Aus-Halal became a company (Aus-Halal Pty Ltd) on 1 July 2002. In addition to earning income through Aus-Halal as a labour hire service, the plaintiff earned income providing Halal supervision services. These services were provided by him essentially to RH Collinson (although there is one tax invoice in relation to Unilever Foods).[81] These services were provided by the plaintiff personally, even though his tax invoices in respect of them were provided on the letterhead of another business name he used, being “Inter-trade Linkages”.
[79]The brother of Ali Chawk.
[80]T93.
[81]See Exhibit S.

The plaintiff described the effect of the publication of the letter in the following terms:

“It destroyed me. That’s the simple answer. It destroyed my livelihood, it destroyed my family life, it destroyed my ability to concentrate on the things that I wanted to concentrate on. It destroyed my research activities, it destroyed every aspect of my pursuits.”[82]

It was quite apparent during the course of his evidence that the plaintiff was still considerably affected by the publication of the letter.

[82]T136.22 - .30.

In the course of evidence, both sides tendered (without objection) medical reports. The plaintiff relied on a report from his general practitioner, Dr Harry Hemley.[83] The defendants relied upon a report from Ms Pamela Matthews,[84] a forensic psychologist. It is not necessary to detail the various matters set out in the reports. The reports disclose symptoms of depression and anxiety which have fluctuated over time since the publication of the letter (although the report of Dr Hemley makes reference to “severe depression” in October 2000[85]). Essentially, the reports underline the hurt feelings and distress suffered by the plaintiff as a result of the publication of the letter. The reports go some way to confirming the plaintiff’s evidence of the effect the publication of the letter had on him and the effect it appeared to have on him as gleaned from his presentation in the witness box. To the extent that the reports are relevant, I prefer the opinion of Ms Matthews that the plaintiff’s current presentation indicates mild depression, rather than the opinion of Dr Hemley as to a more serious illness. Dr Hemley’s current opinion needs to be seen in the light of his conclusion that the plaintiff was suffering from severe depression four months before the letter was published.
[83]Dated 10 March 2009 – Exhibit W.
[84]Dated 25 March 2009 – Exhibit 4.
[85]Before the publication of the letter.

I turn now to consider the plaintiff’s claim in respect of loss of income, starting with the loss alleged in relation to Aus-Halal and the provision of labour hire services. The financial documents tendered in relation to this aspect of the case[86] disclose that in the financial years ended 30 June 1999 to 30 June 2002, Aus-Halal’s net income was respectively $67,214, $117,628, $44,106 and $72,253.[87] The plaintiff’s tax returns disclose that he received half of this net income in each of those years. Immediately one can see that there was a sharp dip in net income in the year of the publication of the letter, but in the following year there was a significant increase (albeit not back to the level of the 2000 financial year). The explanation for the income level being maintained (if not increased) in the 2002 financial year is that whilst Aus-Halal lost almost all of its business, it was able to continue to provide labour to CRF (Colac Otway) until May 2003.[88] In May 2003, CRF (Colac Otway) ceased using Aus-Halal. It is apparent that this occurred because of the intervention of ICCV.[89] However, in the absence of any evidence from CRF (Colac Otway),[90] it is not possible to conclude that the letter was a cause of CRF (Colac Otway) ceasing to use Aus-Halal. As at May 2003, the letter was over two years old.
[86]Exhibit R.
[87]Exhibit R contained figures prepared by the plaintiff’s accountant and figures prepared by the plaintiff. There was some internal inconsistency. However, the plaintiff agreed that where there was an inconsistency, the figures of the accountant should be preferred. This is the course I have adopted.
[88]See Exhibit T.
[89]Again, see Exhibit T.
[90]Apart from that disclosed in Exhibit T.

Having examined the plaintiff’s tax records,[91] the financial records of Aus-Halal that were tendered in evidence[92] and considered the issue raised by the defendants that an individual plaintiff cannot recover any special damage resulting to a firm of which he is a partner,[93] I have concluded that the damage to Aus-Halal’s business (effectively reducing it to one client) so far as it affects the plaintiff should be dealt with as part of the plaintiff’s general damages in accordance with the principles set out in Andrews v John Fairfax & Sons Limited[94] to which I have referred above.
[91]Exhibit AD.
[92]Exhibit R.
[93]All partners should sue jointly for such injury. But cf Exhibit L, the plaintiff’s evidence concerning Mr Andy Chaouk’s involvement for “a couple of years” (T108.28 – T109.21), O’Brien v Dunsdon (1965) 39 ALJR 78 and Husher v Husher (1999) 197 CLR 138.
[94][1980] 2 NSWLR 225.

Turning now to the individual supervision work performed by the plaintiff,[95] the plaintiff gave evidence that in performing this work he used to receive approximately $400 per week.[96] This amount included GST. Further, in calculating any loss, an allowance has to be made for income tax. All of this work dried up upon the publication of the letter. The questions that arise are, what was the likely amount net of GST and income tax that the plaintiff would have earned providing supervision services but for the letter and for how long did the publication of the letter prevent the plaintiff from earning such income. An examination of the tax invoices[97] and the tax documents[98] does not enable one to answer these questions with any precision.
[95]The tax invoices in respect of which are Exhibit S.
[96]T163.27.
[97]Exhibit S.
[98]Exhibit AD.

The plaintiff invited me to treat this aspect of the case in accordance with the principles in Andrews v John Fairfax & Sons Limited (to which I have already referred). An examination of the plaintiff’s tax returns[99] justifies this approach.[100] Accordingly, I propose to take into account the decline in the plaintiff’s overall business situation by reason of the damage done to the plaintiff’s ability to conduct a labour hire business and damage done to the plaintiff’s ability to perform relevant supervising work in assessing the plaintiff’s general damages – remembering that compensatory damages are awarded as a vindication of the plaintiff’s reputation, reparation for the harm done to the plaintiff’s reputation and consolation for the distress, upset and injury to the plaintiff’s feelings occasioned by the publication. Whilst the actual charges (defamatory imputations) made in the letter are not at the most serious end of the spectrum of those in the possible range of cases, they are serious and have had a very significant effect on the plaintiff’s life and business. It is not to the point that “no evidence … [was] called to show that the publication of the letter would tend to ‘… lower the plaintiff in the estimation of right thinking members of society generally’”.[101] This is not a question about which one would expect evidence to be called. Damage to reputation is presumed to flow from a defamatory publication. Further, for the reasons given above, I have found that damage was sustained – including damage to the plaintiff’s overall business situation. In the circumstances, an appropriate award of damages to compensate the plaintiff is $125,000.
[99]Contained in Exhibit AD.
[100]Whilst the plaintiff’s tax returns show that his taxable income for the financial year ended 30 June 2002 was higher than for the year ended 30 June 2001, this is not (contrary to the defendants’ submissions) a complete answer to the plaintiff’s claim in respect of loss of business. The evidence discloses a significant loss of business, even though that loss has not translated on a dollar-for-dollar basis into the plaintiff’s tax returns. The evidence relating to the plaintiff’s loss of business makes this case a classic Andrews v John Fairfax case.
[101]See paragraph 31 of the defendants’ submissions dated 30 March 2009.

Interest

On the last day of the trial, the plaintiff amended the prayer for relief in his statement of claim in respect of interest from “interest pursuant to statute” to “interest including pursuant to statute”. When pressed as to what this meant, counsel for the plaintiff agreed that he was seeking interest in accordance with the principles set out in Hungerfords v Walker.[102] When it was put to counsel for the plaintiff that there was no evidence of the kind that the decision in Hungerfords suggested might be called in support of such a claim, counsel for the plaintiff agreed and said, “But we will try and keep our options open”.[103] The only submission made by the plaintiff on this issue was contained in the last sentence of his written submissions dated 31 March 2009, namely:

“The plaintiff also claims interest.”

There having been no evidence called which would justify an award of interest in accordance with Hungerfords, there is no basis for any such award. The plaintiff’s entitlement to interest is that provided by s 60 of the Supreme Court Act 1986. I will hear the parties on the amount of interest to be awarded under s 60.

[102](1989) 171 CLR 125.

[103]T360.20 – T361.1.

Conclusion

For the reasons given above:

(a) There will be judgment for the plaintiff against the first and fourth defendants for the sum of $125,000, together with interest.

(b) The plaintiff’s claim against the second and third defendants will be dismissed.

I will hear the parties on the question of interest and costs.

[2009] VSC 119

3 April 2009