El Azzi v Nationwide News Pty Ltd

[2005] NSWSC 247

CITATION:	EL AZZI v NATIONWIDE NEWS PTY LTD [2005] NSWSC 247
HEARING DATE(S):	5, 11, 12, 14, 18, 19, 20, 21, 22, 25, 26, 27, 28, 29 October 2004; 1 November 2004; 31 January 2005
JUDGMENT DATE :	31 March 2005
JUDGMENT OF:	Levine J
DECISION:	1 Judgment for the plaintiff in the sum of $5,600; 2 I order the defendant to pay the plaintiff's costs on a party and party basis; 3 I order the return of the exhibits.

CATCHWORDS:

Defamation - all issues jury trial - qualified privilege at common law and under s 22 of the Defamation Act 1974 - verdict (whether nominal or of substance) - interest - costs - vale

LEGISLATION CITED:

Defamation Act 1974
Evidence Act 1995
Supreme Court Act 1970

CASES CITED:

Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354
Australian Consolidated Press v Driscoll (1988) Aust Torts Reports 80-175
Bashford v Information Australia (Newsletters) Pty Limited (2004) 204 ALR 193
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183
Casauria v De Kever (unreported, VSC, Hayne J, 21 November 1994, BC9405828)
Dunford Publicity Studios Ltd v News Media Ownership Ltd [1971] NZLR 961
Guise v Kouvelis (1947) 74 CLR 102
Howe & McColough v Lees (1910) 11 CLR 361
John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131
Mason v Doyle (unreported, NSWSC, Studdert J, 24 March 2005)
Maxwell v Murphy (1957) 96 CLR 261
Morgan v John Fairfax & Sons Ltd (1990) 20 NSWLR 511
Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374
Mowlds v Fergusson (1939) 40 SR (NSW) 311
Rodway v R (1990) 169 CLR 515
Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322
Stephens v West Australian Newspapers Limited (1993) 182 CLR 211
Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044
West v Nationwide News Pty Ltd [2003] NSWSC 767
Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697

PARTIES:

WILLIAM EL AZZI
(Plaintiff)
v

NATIONWIDE NEWS PTY LIMITED
(Defendant)

FILE NUMBER(S):

SC 10930 OF 1993

COUNSEL:

R Rasmussen
T Molomby SC / R Rasmussen on privilege argument
(Plaintiff)

T Blackburn SC / J Hmelnitsky
(Defendant)

SOLICITORS:

Kings Lawyers
(Plaintiff)

Blake Dawson Waldron
(Defendant)

LOWER COURT JURISDICTION:

[2005] NSWSC 247

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

JUSTICE DAVID LEVINE

THURSDAY 31 MARCH 2005

10930 OF 1993


WILLIAM EL AZZI
(Plaintiff)
v

NATIONWIDE NEWS PTY LIMITED
(Defendant)
JUDGMENT (Defamation – all issues jury trial – qualified privilege at common law and under s 22 of the Defamation Act 1974 – verdict (whether nominal or of substance) – interest – costs – vale )

1 This action was conducted in accordance with the law prior to the amendments in 1994 that brought about, in 1995, what are now known as “section 7A” trials. In other words, this was what is known as an “all issues jury” trial, save for those components traditionally left to the trial judge, as here, namely the defence of qualified privilege.

2 The publication of which Mr El Azzi complained was in the now defunct “Telegraph Mirror” of Wednesday, 22 May 1991. The publication was made up of a pointer on page 1 and a series of articles on pages 4 and 5, the principal one having the by-line of Miranda Devine with the headline “End of a 20-year run with crime’s big boys”. The headline across both pages was “Murders signal gangland war”, with the by-lines of Richard Lenarduzzi and Fiona Wingett. It is the article by the last two mentioned writers that is continued on page 5, which has a separate article by Fiona Wingett bearing a headline “A ‘Mad Dog’ who lived life on the edge”.

3 It is quite clear that two paragraphs in the Miranda Devine piece particularly provoked the action:

“Police files are clogged with the names of criminals, “identities” and corrupt detectives with whom he shared a beer, a joke and a chat about illegal ventures during his 20-year run with the big boys of crime.
Thurgar mixed with figures like missing assassin Christopher Dale Flannery, drug trafficker Michael John Sayers, jailed former ALP identity Tom Domican, murdered drug tsar Barry McCann and policeman William El Azzi.”

4 The action was commenced in this Court by Statement of Claim filed 17 March 1993. It was on 14 May 2004 that the matter was listed for trial by jury on 5 October 2004.

5 At the conclusion of the hearing on 29 October 2004, the jury had left for its consideration of the usual issues the following imputations of the plaintiff:

“(a) that he was a notorious, powerful and feared criminal
(b) that he was a feared underworld figure so powerful that his associates could be killed by him in pursuit of his criminal activities
(c) that he was a feared underworld figure so powerful that his associates had been killed by him in pursuit of his criminal activities
(d) that he was a feared underworld figure so powerful that he could cause his associates to disappear
(e) that he was a feared underworld figure so powerful that he had caused his associates to disappear
(f) that he was a member of a notorious criminal underworld whose other members and associates were involved in assassination, drug trafficking and murder
(g) that he was corrupted by his involvement and association with a notorious criminal underworld ” (emphasis added)

The jury found that the matter complained of did not, as a matter of fact, carry imputations (a) – (e).

6 The jury found that imputations (f) and (g) were in fact carried by the matter complained of and were defamatory of the plaintiff. In respect of imputation (f) the jury awarded the plaintiff the sum of $3,000 in damages; in respect of (g) the jury awarded the plaintiff the sum of $2,000.

7 The defendant relied upon qualified privilege at common law and pursuant to s 22 of the Defamation Act; there was also left to the jury truth in mitigation of damages.

8 Malice was not an issue in relation to the defence of qualified privilege at common law.

9 Conformably with the practice that had evolved before s 7A trials, contested matters of fact relevant to the privilege defence were left to the jury for its determination (see Morgan v John Fairfax & Sons Ltd (1990) 20 NSWLR 511). There was also a document of agreed facts.

10 It is for me to decide whether the defences have been made out upon the basis of what the jury found in relation to the disputed facts, and upon the facts as agreed between the parties.

11 The disputed issues of fact left to the jury and its answers were:

“4. Did Sam de Brito have a conversation with the plaintiff on 21st May, 1991?
– YES
5. Did the plaintiff and Mr de Brito speak the substance of the words attributed to them in exhibit 8, or have a conversation substantially in the terms contained in exhibit 8?
– YES
6. Did Miranda Devine give consideration to the possibility that either of the following meanings would be conveyed to the reader?
(a) that the plaintiff was a member of a notorious criminal underworld whose other members and associates were involved in assassination, drug trafficking and murder;
– NO
(b) that the plaintiff was corrupted by his involvement and association with a notorious criminal underworld.
– NO
7. Did Miranda Devine intend to convey the meaning that the plaintiff was an associate of Roy Thurgar, that he drank with him and other people, that he mixed with him?
– YES
8. Did Miranda Devine believe that the meaning referred to in question 7 above was true?
– YES
9. Did Miranda Devine consider that readers might understand the matter complained of to convey of the plaintiff that he was an associate of Roy Thurgar, that he drank with him and other people, that he mixed with him?
– YES”

12 Exhibit 8 is the typewritten version of notes taken by Mr de Brito reflecting the substance of a conversation he had with the plaintiff. Exhibit 10 is a report prepared by Miranda Devine for the editor of the Telegraph Mirror newspaper dated 31 March 1991, consequent upon a complaint by the plaintiff. The answers given in relation to the intention of Miranda Devine and that to which she gave consideration were founded upon her evidence in the trial.

13 In relation to the conversation between Mr de Brito and the plaintiff, the jury’s answer reflected its resolution, on the balance of probabilities, of a conflict in the evidence, whereby the principal component was a conviction in the plaintiff that he did not speak to Mr de Brito but Mr Lenarduzzi.

14 The jury was provided by way of evidence with exhibits F – K, namely some answers to interrogatories by the defendant.

15 I think it is desirable to set out the statement of agreed facts in full:

“1. Prior to writing her contribution to the matter complained of, that is, the article appearing under her byline, Miranda Devine read:
(a) the folder of clippings relating to Roy Thurgar (exhibit 11);
(b) the clippings concerning the plaintiff (exhibit 9);
(c) Sam de Brito’s article in the Telegraph Mirror of 21st May, 1991 (exhibit 7); and
(d) drafts of that article.
2. Prior to writing her contribution to the matter complained of, that is, the article appearing under her byline, Miranda Devine spoke to her professional colleagues about the events of 21st May, 1991, that is, the shooting of Roy Thurgar.
3. The defendant did not intend to convey any of the imputations (a) to (g).
4. At the time of writing her contribution to the matter complained of, that is, the article appearing under her byline, Miranda Devine believed that Roy Thurgar:
(a) was a notorious underworld figure;
(b) had a tendency to be violent;
(c) had been implicated in a long series of violent incidents;
(d) was a feared criminal;
(e) was capable of killing;
(f) was running with crime’s big boys;
(g) was one of crime’s big boys.
5. At the time of writing her contribution to the matter complained of, that is, the article appearing under her byline, Miranda Devine believed that Christopher Dale Flannery:
(a) was a notorious underworld figure;
(b) was an assassin;
(c) was a feared criminal;
(d) associated with Roy Thurgar;
(e) was violent, capable of violence;
(f) was capable of making his own associates disappear;
(g) was one of crime’s big boys.
6. At the time of writing her contribution to the matter complained of, that is, the article appearing under her byline, Miranda Devine believed that Barry McCann:
(a) was a notorious underworld figure;
(b) was a notorious and feared criminal;
(c) was a powerful criminal;
(d) was violent;
(e) was the leader of a gang;
(f) was a drug tsar;
(g) associated with Roy Thurgar;
(h) was one of crime’s big boys.
7. At the time of writing her contribution to the matter complained of, that is, the article appearing under her byline, Miranda Devine believed that Tom Domican:
(a) was a notorious underworld figure;
(b) was a stand-over man;
(c) was part of McCann’s gang;
(d) associated with Roy Thurgar;
(e) was a feared criminal;
(f) was one of crime’s big boys.
8. At the time of writing her contribution to the matter complained of, that is, the article appearing under her byline, Miranda Devine believed that Michael Sayers:
(a) was a notorious criminal;
(b) associated with Roy Thurgar;
(c) was a drug trafficker;
(d) was a powerful and feared criminal;
(e) was a notorious underworld figure;
(f) was one of crime’s big boys.
9. Prior to the publication of the matter complained of, Richard Lenarduzzi discussed the deaths of Thurgar and Cooper with Inspector Wilson and Detective Sergeant Beresford.
10. The statements attributed to Inspector Wilson and Detective Sergeant Beresford in the matter complained of were made by them.
11. Richard Lenarduzzi wrote those parts of the matter complained of appearing under his byline which refer to statements made by Inspector Wilson and Detective Sergeant Beresford.
12. The following passages in the matter complained of were true:
“Police have appealed for help in solving both killings.
They want to hear from anyone who saw Cooper leave his shop and go to his van, or anyone who might have seen it leave the Chinatown car park.
And they want anyone who may have witnessed anyone acting suspiciously in Alison Road, Randwick, about 7.30pm on Monday to come forward.”
13. The contents of the statement of Fiona Wingett, a copy of which is attached, are true.
14. Prior to writing her contribution to the matter complained of, that is, the article appearing under her byline, Miranda Devine had the information recorded in exhibit 8.”

16 In its Defence to the Third Amended Statement of Claim, the defendant particularised its case on common law qualified privilege as follows:

“ 1. Pursuant to Rule 18(1)(a): Public Interest, and Particulars of Public Benefit
The matters complained of by their very terms related to the following subjects each of which by its very nature was of proper and legitimate interest and / or benefit to the readers of the Daily Telegraph (sic) :
(a) an appeal by the New South Wales Police Service to members of the public to provide information which might assist in the investigation of 2 murders;
(b) the murder of Roy Thurgar;
(c) the murder of Jack Cooper;
(d) organised crime in Sydney;
(e) associations between police and persons reputed to be involved in organised crime;
(f) the circumstances in which Roy Thurgar was murdered and details of his life which could be relevant to the investigation of his murder;
(g) the circumstances in which Jack Cooper was murdered and details of his life which could be relevant to the investigation of his murder.
2. Pursuant to Rule 18(1)(b): Qualified Privilege
2.1 Common law qualified privilege
The matter complained of was published pursuant to a duty of a social and / or moral nature to readers with a legitimate interest in receiving the publication because the matter complained of related to the matters of public interest particularised above.

17 The defendant’s case under s 22 was particularised as follows:

2.2 Qualified privilege pursuant to Section 22 (New South Wales)
(a) the subjects of the communication on which the defendant relies are the matters of public interest particularised above;
(b) the defendant relies upon the recipients of the communication having both an interest and an apparent interest in receiving information on the subject for communication;
(c) the reasonable ground for the defendant’s belief that the recipients had an apparent interest was that the matter complained of by its very terms related to matters the importance to the public of which are self evident;
(d) the conduct of the defendant in so publishing the matter complained of was reasonable.”

18 The defendant approached the question of qualified privilege at common law as a matter of general principle. The case of Mowlds v Fergusson (1939) 40 SR (NSW) 311 was a case about malice, it being agreed that the two publications with which the Full Court was concerned had been made on an occasion of qualified privilege. However, Jordan CJ’s well-known general statement of principle warrants restatement. His Honour at 318 said:

“A privileged occasion comes into existence whenever something occurs which creates in one person an interest or duty, legal, social, or moral, to communicate information to another to serve some particular purpose, and creates also in the other a corresponding interest or duty to receive the communication for that purpose. And when such an occasion arises, any person having an interest or duty to make a communication to serve its purpose may make it to any person entitled to receive it; and if he restricts himself to a communication which is capable of serving the purpose of the occasion and is made with no other object than that of serving that purpose, he incurs no liability for or slander to any person of whom his communication may be defamatory.”

19 Such a statement of general principle, though not this statement, but rather a statement from Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044 at 1049-1050 per Parke B, is the subject of the following observations by Gleeson CJ, Hayne and Heydon JJ in Bashford v Information Australia (Newsletters) Pty Limited (2004) 204 ALR 193 at paragraph [10]:

“[10] These principles are stated at a very high level of abstraction and generality. "The difficulty lies in applying the law to the circumstances of the particular case under consideration". Concepts which are expressed as "public or private duty, whether legal or moral" and "the common convenience and welfare of society" are evidently difficult of application. When it is recognised, as it must be, that "the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact", it is clear that in order to apply the principles, a court must "make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication".”

20 The publication with which the High Court was concerned in Bashford was a journal of relatively small circulation and of specialised subject matter. As the defendant in this case recognises, one of the problems attending the application of the principles of qualified privilege to mass media publications is the identification of the requisite and reciprocal duty to publish and the interest in the readers in receiving the publication. As to the “interest”, the defendant points to the well-known statement of Higgins J in Howe & McColough v Lees (1910) 11 CLR 361, where his Honour said at p 398:

“It is used in the broadest popular sense, as when we say that a man is “interested” in knowing a fact – not interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news.”

21 In the same case, Higgins J said at 377:

“It is of the essence of the law relating to privileged occasions that their nature and their limits cannot be exhaustively described by any form of definition. The question whether a particular occasion is or is not privileged must be settled in each instance by applying the general principles to which I have referred to the facts as they arise. The interest relied on as the foundation of privilege must be definite. It may be direct or indirect, but it must not be vague or unsubstantial. So long as the interest is of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it, it will come within the rule.”

Howe’s Case was a slander case.

22 The observations in Howe received consideration and approval by McHugh J in Stephens v West Australian Newspapers Limited (1993) 182 CLR 211 in the following passage, which is worthy of citation at length (at 261-263):

“Reciprocity of interest or duty is essential to a claim of qualified privilege at common law. The need for reciprocity usually defeats a claim of qualified privilege where the publication has been made to the general public. Only in exceptional cases does a person have an interest or duty to publish defamatory matter to the world at large. Both in Australia and elsewhere, common law courts have repeatedly held that a person has no legitimate interest or duty to publish defamatory matter to the general public if no more is established than that the subject matter of the publication is one in which the public is interested. In Howe & McColough v Lees , Higgins J said that the word "interest" was not used in any technical sense. However, his Honour said that the person must not be "interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news" (90). In the same case, O'Connor J said that the interest must be "of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it".

As the decided cases show, however, circumstances may exist where the interest of the general public in a particular subject is such that a defence of qualified privilege is available even though the communication is made to the general public by means of a newspaper or other medium of general circulation. If a subject is one of public interest, members of the public have the requisite interest in receiving information on that subject from persons who have a corresponding interest or duty to communicate that information to the general public. If such information is published in good faith, both the author and the publisher of the article are protected "for the common convenience and welfare of society". The privilege of the publisher is "not an original privilege but one ancillary to, and dependent on, the existence of a privilege for the publication of the defamatory contents" to the general public. In Adam v Ward , a claim of qualified privilege was upheld in respect of a letter, published at the direction of the Army Council, that was intended to be and was published widely "in the British and Colonial Press". The House of Lords held that the general public had a sufficient interest in the contents of the letter to make the occasion one of qualified privilege because the letter recorded that the Council had acquitted a British Army General of charges of misconduct made against him by the plaintiff in the House of Commons. Lord Atkinson said "[e]very subject ... who had an interest in the Army had an interest in being by a public communication informed of General Scobell's acquittal". Similarly, in Loveday v Sun Newspapers Ltd this Court upheld a claim of qualified privilege where a newspaper article contained a reply to an attack on a municipal council made in the same article.
Both Adam and Loveday were concerned with publications in reply to attacks on the plaintiff or some other person which had been published to the world at large. But at least two cases show that the defence of qualified privilege may succeed even though the defamatory publication is not in reply to any attack. In Allbutt v General Council of Medical Education and Registration , the English Court of Appeal held that the Medical Council was entitled to a defence of qualified privilege in respect of a fair and accurate report to the public of the grounds for removing the name of a medical practitioner from the register of practitioners. In Dunford Publicity Studios Ltd v News Media Ownership Ltd Macarthur J upheld a defence of qualified privilege in respect of a Minister's criticism of the plaintiff, which had been published in a newspaper with a wide circulation. The criticism was the result of the Minister's belief that he had been misled into giving a letter of commendation in support of a road safety competition associated with the sale of Christmas cards by the plaintiff. Macarthur J said:
"Here, the Minister was misled by the organizers of the road safety contest. It was the duty of the Minister to ensure, and it was in the interests of the public, that his statement on the matter be given wide circulation. The wide circulation afforded by publication in a newspaper was proper. The matter was undoubtedly a matter of public interest. The Minister requested Truth to publish his statement."
These two cases show that the proprietor of a newspaper or a radio or television station is entitled to a defence of qualified privilege when it publishes statements made by a third person pursuant to or in discharge of that person's interest or duty to inform the general public about a matter.
In determining whether a person has a legal, social or moral interest or duty to publish to the world at large, the extent of the publication and the proportion of readers who have a legitimate interest in receiving the communication are relevant factors to be weighed. It has long been established, however, that qualified privilege is not lost simply because the communication is read, seen or heard by persons having no legitimate interest in receiving the communication. If publication in a newspaper or by radio or television is the only reasonable mode of communicating with the public, qualified privilege will not be lost because it is read, seen or heard by persons who have no legitimate interest in receiving the communication.” (Citations omitted)

23 Further, it is clear that the circumstances that constitute a privileged occasion “can themselves never be catalogued and rendered exact” (Bashford at 197, quoting Lord Buckmaster LC in London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 22). Thus there is a requirement to “make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication” (Guise v Kouvelis (1947) 74 CLR 102 at 116 per Dixon J).

24 After the statement of these general principles, the defendant purports to embark upon an examination of the circumstances surrounding the publication and events leading up to it. No point was taken during the course of submissions that outside of the facts determined by the jury and the agreed facts, were facts relied upon by the defendant but not the subject of evidence. I remark upon this because the submissions for the defendant state, as a matter of fact, that on Monday, 20 May 1991, “two days before publication of the matter complained of, Roy Thurgar, an underworld figure, was assassinated in suburban Randwick”. Reference is made to some hours previously the body of another underworld figure, Jack Cooper, having been found. This is an instance of a newspaper using itself, and what it publishes, as evidence of the facts and as proof of the facts. These facts have not independently been proved. The parties appear to accept them as true as part of the background of circumstances leading up to the publication, in paragraphs 10 and 12 set out above.

25 It is agreed, however, that the police had issued an appeal, the essence of which is set out in paragraph 12 of the agreed facts. They had also made statements, the making of which is not in dispute (leaving aside again the question of the actual truth of their contents) as referred to in paragraph 10 of the agreed facts. The matter complained of contains a statement, attributed to Detective Inspector John Wilson, that Thurgar “had acquired a host of enemies during his long underworld career”. The police were “closing no lines of inquiry” and wished to investigate the associates of both of the murdered men. They postulated possible links to an earlier spate of gangland killings and gang wars in the 1980s, which would have to be explored.

26 Wilson is reported by the defendant as having said:

“Our intelligence suggests he had a falling out with a former criminal associate who may have ordered his killing. There could have been a number of reasons why. Thurgar was a man who had such a big criminal history that we will have to speak to a number of his associates as part of our investigations to try to establish a motive.”

27 The defendant also relies upon the statement attributed by it to Wilson (about which there is no issue that he said it):

“It is too early to suggest that there has been a resurgence of the gang warfare of the Eighties. But obviously we cannot rule it out as it is a line of inquiry we have to explore. If there are any similarities between the deaths it will become apparent to us.”

28 Reliance is also placed on what Detective Inspector Beresford said:

“Obviously someone didn’t like him, someone took revenge – but who and for what reason we do not know. He was a man with a lot of enemies. I think he was a guy who had a lot of problems.”

29 It is to be observed that these statements are not part of the express appeal to the public for information. They appear on their face to be providing information to the newspaper.

30 The defendant, after making some observations about the seriousness of gangland killings being a threat to society and of the risk of retribution, states that the police have a “legal, moral and social duty to take all reasonable steps to solve such murders as quickly as possible to restore public order and prevent further killings from occurring”. That is a statement of the role and function of the police service. The defendant then adds that the performance of the ordinary role and function of the police service “includes in appropriate cases the release of information to the public through the media to enable them to assist”. With that proposition I am in agreement. It would be a derogation from the proper performance of the police service’s duties for the service not to avail itself of the mechanism of instruments of mass communication to make an appeal to the public of the kind reported by the defendant in the publication sued upon. (There may be instances where, for security reasons or to maintain the integrity of an investigation in progress, the appeal to the public may be limited).

31 Members of the public and the readers of the newspaper (though not all of them, as has been referred to above by McHugh J) have a legitimate interest in receiving the information contained in the appeal made to the public for the public to give information, with a view to the solution of the crimes.

32 Trite though it is to say, the appeal to the public is for the public to give information to the police, and not to the press.

33 Thus far, as I understand the defendant’s submissions, it is the fact that the police has a professional duty to solve crime and prevent crime that as part of that duty, it can make appeals to the public, whereupon at the very least it could be said that the newspaper has a “civic” duty to publish the appeal made by the police.

34 What the defendant then goes on to say is that the public has an interest in receiving “all available information about the murders”. Why is that so? So that “each member of the public could fulfil his or her moral and social duty to provide the police with any information which is relevant to the police investigations”. Thus, it is argued, the public had an interest in being informed on the subject of the killings and was entitled to know the background, the nature of murdered men, their associates, the circumstances in which they were killed as far as those circumstances were known, whatever theories the investigating police might have had and “the public appeals of the police for assistance”. The defendant thus appears to be blurring the public appeal by the police, which the defendant I would hold had a civic duty or a moral duty to reproduce on the pages of its newspaper, with accompanying material of the background nature to which reference has just been made. It is argued that it is impossible to divorce the police appeals to the public for assistance from the associated police statements made about the murders. It would be artificial to publish the appeal, it is argued, without the other statements that the police thought appropriate to make.

35 The defendant submits that it had a duty to publish “the information” properly, as “the trail of a murderer can quickly go cold”.

36 The defendant then comes to the nub of the matter. If it is accepted, the defendant argues, that the defendant had a duty to publish the statements of Wilson and Beresford, “or at the very least their public appeal for assistance in solving the serious crimes”, then the question becomes whether a part of the matter complained of, which it is clear falls within neither of the alternate categories just referred to, but which refers to the plaintiff, was “sufficiently connected” with the “privileged occasion” to attract the defence. The posing of this proposition begs the question that the privilege attached to the occasion of publishing both the appeal by the police and the information by the police.

37 The defendant notes that the plaintiff sued on the whole of the matter complained of as giving rise to the defamatory imputations.

38 The defendant contends that the subjects were the murder of two underworld figures, the nature of the police inquiry into their murder, and the focus on investigation of the murdered men’s associates. It is asserted that those matters were of interest to the public beyond mere interest as news. The identity of Thurgar’s associates was a particular focus of the police investigation. It is suggested that information on that subject relates directly to both the request by the police for assistance and the statements by the police as to their lines of inquiry. It is argued that without this information (information about Thurgar’s associates), members of the public “with relevant information may not have realised its relevance and may not have brought it to the attention of the police.”

39 The defendant then proceeds to repeat by way of submission what it published by way of reportage, namely the acquaintance of the plaintiff with Thurgar, and the plaintiff’s description of him as contained in the matter complained of.

40 There was no issue of malice, and thus it is argued for the defendant that the public’s interest in receiving information on the subject (whether it be the appeal, the statements by the police, the focus of the investigation or a blurring of all three is not clear) was “of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it”.

41 The plaintiff, in his submissions, focuses on the elision of separate questions: whether there was an occasion of qualified privilege at common law in relation to the publication of the police appeal for information about two very recent murders. The second question is, if there is an occasion of qualified privilege for the publication of that appeal, did that occasion extend to protect the publication of material in addition to the appeal. The plaintiff argues, and I agree, that the defendant, on the assumption of privilege attaching to its publication of the police appeal, did not address succinctly the separate question but rather, as I have indicated during the course of the analysis of the defendant’s submissions, elided various considerations with the appeal and various components of the reportage.

42 The appeal for assistance from the police as published by the defendant was quite specific:

“Police have appealed for help in solving both killings.
They want to hear from anyone who saw Cooper leave his shop and go to his van, or anyone who might have seen it leave the Chinatown car park.
And they want anyone who may have witnessed anyone acting suspiciously in Alison Rd, Randwick, about 7.30pm on Monday, to come forward.
The gunman in the Thurgar case is described as being 162cm to 167cm tall, wearing an Andy Capp-style hat and a tracksuit top and jeans.”

43 I agree with the plaintiff’s analysis that the police appeal is discrete, and the balance of the article relating to investigations, or what I have called reportage, is detached from that appeal. Indeed, as the plaintiff says, the police had no difficulty in distinguishing between the appeal to the public for assistance and associated police statements about the murders, to use the words of the defendant in it’s submissions.

44 The plaintiff argues that the defendant elides, without clear acknowledgment of the difference, the question of the publication of the appeal by the police, and associated statements made by them relating to the question of publication of information generally about the matters of the murders. The publication of the information generally about the murders includes, of necessity, the police appeal. As I have remarked above, the police’s duty to solve the murders includes, in appropriate cases, release of information to the public and the making of appeals to the public. The mechanism adopted by the police legitimately and appropriately should include the vast resources available to instruments of mass communication. Save for the police appeal, it does not necessarily follow, as is implicit in the defendant’s submissions, that merely because information relating to the murders is conveyed by the publication as reportage that there exists a legitimate interest in the public to receive such information. The defendant seems to be suggesting that the receipt of the information, and the legitimate interest in the receipt thereof, is founded in the source being the police. This is wrong; the source is the defendant (save for the appeal).

45 I agree with the plaintiff’s submission that the defendant has blurred, merged and elided the distinction between any legitimacy in the defendant in republishing the police appeal and all the attendant “information about the murders”.

46 It is obvious that the defendant has to advance such a submission because the plaintiff is referred to only in the context of the matters other than the content of the police appeal.

47 The defendant’s privilege, if it exists, is derivative only. As McHugh J said in Stephens at 261, quoted above:

“…the proprietor of a newspaper or a radio or television station is entitled to a defence of qualified privilege when it publishes statements made by a third person pursuant to or in discharge of that person's interest or duty to inform the general public about a matter.”

48 The person who has the primary interest or duty to inform the general public about the matter is not the defendant but the police service.

49 In the end, on the very critical assumption that qualified privilege attaches to the publication of the police appeal, I am simply not persuaded that the material added to the appeal by the defendant’s reportage is covered by any such privilege.

50 Even material coming from the police not relevant to the appeal for assistance cannot be protected by the privilege:

“…at common law, privilege only attaches to those defamatory imputations that are relevant to the privileged occasion. Where a potentially privileged communication consists partly of matters relevant to the privilege and partly of matters that are not relevant, qualified privilege only attaches to that part which is relevant to the occasion.”
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 228 per Dawson, McHugh and Gummow JJ.

51 The plaintiff argues that the police service has a very particular role in the maintenance of order in society. This is indisputable. The performance of that role may well give rise from time to time to an occasion, by the publication of relevant material, the subject of a derived qualified privilege, especially, for example, in relation to police appeals to the public. There is no equivalent occasion of privilege if an instrument of the media chooses instead of confining itself to relaying an appeal by the police to join in and add to the hunt, to use the words in the plaintiff’s submissions, thereby involving innocent bystanders.

52 I was referred to the decision in Dunford Publicity Studios Ltd v News Media Ownership Ltd [1971] NZLR 961, where a newspaper’s publishing of a statement which had been made by a minister was held to have been made on an occasion of qualified privilege, but an article on the same subject a week later was not. Even the ancillary privilege attaching to the publication of the minister’s statement was limited (per Macarthur J at 968):

“In all the circumstances of the present case…I think it may properly be said that Truth was under a duty to publish the Minister’s statement together with any factual information necessary to identify the road safety competition referred to in that statement. To that extent, but to that extent only, I think that there was a duty on the part of the newspaper. A publication within those limits was in my opinion protected by privilege.”

53 It was not argued that that to which the plaintiff asserts privilege might apply, namely the police appeal, and that to which the defendant appears to be asserting that privilege would apply, namely the police appeal and what the police said to the defendant, is not defamatory and thus the necessity to consider any occasion of privilege does not arise. The defamatory part of what the defendant published is in the reportage of Miranda Devine. That component, by itself, nor tortuously related either to the appeal from the police or the statements by the police to the defendant, could not be said to have been published pursuant to the requisite duty, nor could it be said to be of the requisite interest to the body of readers.

54 The examination of the circumstances and the application of scrutiny to them, discloses to me that the defendant might well be described as having a legal, social, moral and indeed civic duty to publish to the world at large the appeal by the police for assistance to the police to solve murders in the ordinary course of police duties. The public, that is the readership, would have a legitimate interest in receiving the communication of the police appeal. But there, in my view, the matter ends.

55 That which, on any real view of the matter, defamed the plaintiff was part of neither the appeal nor the statements by the police to the defendant, and for the purposes of the strict doctrines of qualified privilege, has no connection other than by way of “news” to either the appeal by the police or the statements by the police officers.

56 The defendant fails in its defence of common law qualified privilege.

Section 22 qualified privilege

57 The defendant rightly says, of course, that the matter complained of was published in the course of, or as part of, providing information to the public on the subjects particularised above. Those subjects were of public interest, even if only as matters of news. The plaintiff was defamed in the course of the providing of information by the defendant in relation to those subjects. The defendant correctly identifies the real issue as the requirement that its conduct be reasonable in the circumstances. In Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 387 Hunt AJA (as his Honour then was and once again, at the date of these reasons, is) said:

“(1) The conduct must have been reasonable in the circumstances to publish each imputation found to have been in fact conveyed by the matter complained of. The more serious the imputation conveyed, the greater the obligation upon the defendant to ensure that his conduct in relation to it was reasonable. Of course, if any other defence (such as truth or comment) has already been established in relation to any particular imputation found to have been so conveyed, it is unnecessary to consider the reasonableness of the defendant's conduct in relation to the publication of that particular imputation.
(2) If the defendant intended to convey any imputation in fact conveyed, he must (subject to the exceptional case discussed in Barbaro's case, and perhaps also that discussed in Collins v Ryan ) have believed in the truth of that imputation.
(3) If the defendant did not intend to convey any particular imputation in fact conveyed, he must establish:
(a) that (subject to the same exceptions) he believed in the truth of each imputation which he did intend to convey; and
(b) that his conduct was nevertheless reasonable in the circumstances in relation to each imputation which he did not intend to convey but which was in fact conveyed.
If, for example, it were reasonably foreseeable that the matter complained of might convey the imputation which the jury finds was in fact conveyed, it will be relevant to the decision concerning s 22(1)(c) as to whether the defendant gave any consideration to the possibility that the matter complained of would be understood as conveying such an imputation, as will be his belief in the truth of that particular imputation and what steps he took to prevent the matter complained of being so understood: Evatt v John Fairfax & Sons Ltd at 13-14; Makim v John Fairfax & Sons Ltd (1990) 5 BR 196 at 209; see also Wright v Australian Broadcasting Commission at 712 (whether the defendant “knew whether he was likely to convey a misleading impression”); Austin v
Mirror Newspapers Ltd (at 362) (Privy Council).
(4) The defendant must also establish:
(a) that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right, (where appropriate) by making proper inquiries and checking on the accuracy of his sources;
(b) that his conclusion (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he had obtained;
(c) that the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and
(d) that each imputation intended to be conveyed was relevant to the subject about which he is giving information to his readers.
The extent to which the inquiries referred to in par (4)(a) should have been made will depend upon the circumstances of the case, in particular the nature and the source of the information which the defendant has obtained, and whether the position, standing, character and opportunities of knowledge of the informant (as perceived by the defendant himself) are such as to make his belief in the truth of that information a reasonable one: cf South Suburban Co-operative Society Ltd v Orum [1937] 2 KB 690 at 700-701; White & Co v Credit Reform Association & Credit Index Ltd [1905] 1 KB 653 at 658, 660; see, also, Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44 at 55-56. It is necessary to keep in mind that each of the matters referred to in par (4) are relevant to the reasonableness of the defendant's conduct; they do not raise questions independently of that issue. This is important in relation to the functions of judge and jury. If, for example, there is a dispute as to whether the defendant made a particular inquiry, that dispute is to be decided by the jury. But if there is a dispute as to whether reasonable conduct in the circumstances required inquiries to be made or as to whether the inquiries in fact made were sufficient, those disputes are to be decided by the judge as part of the ultimate question as to whether the defendant's conduct was reasonable in the circumstances.
Bearing in mind the precept of the Privy Council in Austin v Mirror Newspapers Ltd (at 360) that it would be impossible to give any comprehensive definition of what conduct will be held to be reasonable in the circumstances, and that it would be most unwise to attempt to do so, the above propositions do not purport to be exhaustive.”

58 The imputations conveyed were: (f) that the plaintiff was a member of a notorious criminal underworld whose members and associates were involved in assassination, drug trafficking and murder; and (g) that he was corrupted by his involvement and association with a notorious criminal underworld.

59 By agreed fact number 3, the defendant did not intend to convey these imputations. By reference to the jury’s answers, Ms Devine believed in the truth of the imputations she did intend to convey to the effect that the plaintiff was an associate of Roy Thurgar, that he drank with him and other people and that he mixed with him (jury answer number 7). Ms Devine believed that to be true (jury answer number 8) and considered that readers might understand that to be the meaning (jury answer number 9).

60 I add that Miranda Devine did not give any consideration to the possibility of either imputations (f) and (g) being carried by the matter complained of.

61 It was argued by the defendant that it was by no means a foregone conclusion that imputations (f) and (g) would be found to be carried. Ms Devine did not give consideration, as I have said, to the possibility of imputations in those terms.

62 The defendant rightly argues that these matters are not determinative of the outcome of the defence. These matters go to what I understand Hunt AJA should be understood as positing, namely the reasonable foreseeability issue. With respect to Hunt AJA, I think that is, as the defendant submits, a counsel of perfection. As the defendant argues, in a high proportion of cases resulting in a verdict favourable to the plaintiff, it will be the case that it was “reasonably foreseeable” that the imputations would be conveyed. If they were not intended to be conveyed, what is the defendant to do? I agree with the submission that if failure by the defendant to consider whether or not a reasonably foreseeable imputation would arise, and a consequent failure on its part to prevent it from arising, that is by not publishing, amounts to unreasonableness, then whenever such an imputation is conveyed, the defendant must have acted unreasonably. This would render the whole policy of the defence under s 22 pointless in my view.

63 What the defendant says is that it is a notable feature that there was no finding that what was written by Miranda Devine was factually untrue. Nor, I add, was there a finding that it was factually true. She was aware of the information disclosed to Sam de Brito by the plaintiff; she was aware of the information contained in library files on Thurgar; she was aware of information contained in the files on the plaintiff. What Ms Devine wrote, the defendant therefore argues, was not “wrong”.

64 This argument represents a peril that faces a media defendant, particularly a newspaper – namely the preoccupation with assumptions about the objective truth of what is contained in the material that a newspaper happens to publish. I have adverted to this above in relation to the defence of qualified privilege at common law. Any conclusions reached by Ms Devine may be supported by material published in newspapers; but the next step cannot logically be taken, namely, that the material supporting the belief was objectively true (merely because it was published by the defendant or indeed other newspapers). Be that as it may, a reasonably held belief in the truth of what was intended but not in fact conveyed (irrespective of the want of proof of the objective basis of that belief) can support a defence under s 22, just as any intention not to convey the imputations found by the jury is not determinative of reasonableness (Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 362).

65 In short, the defendant argues that the requirements of Hunt AJA have been met, and thus the defence is made out.

66 It is clear law that reasonableness under s 22(1)(c) is reasonableness in relation to the publication of the matter which carries the defamatory imputations: Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 705 per Moffitt P. The imputations found by the jury are much more serious than the imputations Ms Devine said she intended. The wording of the imputations goes directly to an association with a notorious criminal underworld and the plaintiff’s being corrupted thereby. Those elements, the plaintiff correctly argues in my view, are absent from the imputations as a quality intended by Ms Devine, which is merely a social acquaintance with Roy Thurgar.

67 The conclusion to which Ms Devine came is founded in material in exhibits 9 and 11, and part of the notes of de Brito (exhibit 7). Ms Devine in her memorandum (exhibit 10) refers “in a Daily Telegraph report on the court proceedings, police prosecutor Gerald Dempsey is quoted as saying Mr El Azzi, Mr Thurgar and their co-accused were regular drinkers at the Lansdowne Hotel in Chippendale, owned by Mr McCann”.

68 That article is one dated 19 April 1989 headed “Drinking mates plan murder”. Again, there appears to have taken place the conversion of a report of an assertion of a fact to an assertion of the objective truth of the fact being reported. It is a very fragile basis to rely upon a report of court proceedings and to convert an opening statement by a Crown prosecutor into an assertion of an objectively true fact.

69 The plaintiff also points to another article in exhibit 10, being an article of 15 September 1989 (seen also in exhibits 9 and 11), reporting the dismissal of the charges and that a certain witness’ evidence against the plaintiff “evinced all the credentials of recent invention”. The fact that Ms Devine specifically mentions this article in her memorandum (exhibit 10), the plaintiff submits, reflects that it was to the forefront of her mind at the time as one of her principal sources – yet there was no reference by her to the remarks about recent invention.

70 Sam de Brito’s article in the Telegraph Mirror of 21 May 1991 (agreed fact 1(c)) and his notes (agreed fact 14) constituted other sources for Ms Devine. In the article, there is nothing about the plaintiff, nor is there anything in the notes about social contact with Thurgar. The plaintiff knows Thurgar, and the only contact recorded relates to seeing him a couple of weeks ago and lending him a quantity of detergent for his laundromat business he conducted in common with the plaintiff.

71 I am of the opinion that mere reliance on newspaper cuttings is perilous in the advancement of the defence of qualified privilege. The inevitable consequence of the reliance, and a naturally human one even for a journalist, is to assume the objective truth of the facts reported in the newspaper cuttings. That assumption is converted into an assertion of facts, and as the plaintiff has argued, none of the sources upon which Ms Devine relied reasonably could lead to the assertions of fact constituted by the imputations found by the jury and not intended by her. Not only were they not intended, but she gave no consideration to the possibility of them.

72 Another agreed fact was that the contents of the statement of Fiona Wingett, the author of another part of the whole matter sued upon, were true. Even if they are taken to be true, I do not see how they add to the reasonableness of the defendant’s conduct.

73 I am satisfied at this point that the found facts and agreed facts simply do not sustain reasonableness vis-à-vis the imputations found by the jury.

74 The plaintiff in his written submissions refers to the failure by Ms Devine to contact the plaintiff to allow him to comment on what she proposed to say; the evidence Mr Masters gave, to the effect that that is what one should do, and also the absence of any evidence from sub-editors responsible for the headlines. The defendant, so it is contended, led no evidence as to the state of mind, apart from Ms Devine in relevant respects, of the people who really mattered.

75 These propositions were not, as far as I can see, the subject of agreed facts or found facts. However, had they a part to play they would only reinforce the plaintiff’s position in my view.

76 As I have indicated above, the defence fails on a proper consideration of the requisite material when viewed in relation to the imputations found to be defamatory.

77 The defendant’s defence pursuant to s 22 of the Defamation Act fails also.

78 I turn now to the question of the true nature of the verdict, interest and costs. I make the observation that it is perhaps a reflection upon defamation litigation generally, or the litigation of this action in particular, that the volume of written submissions on these subjects exceeded that volume of submissions delivered in relation to the defence of qualified privilege.

The verdict

79 Shortly stated, it is contended for the defendant that whilst the figures are more than “nominal” in the strict sense, they represent a practical failure of the plaintiff, a policeman, to vindicate his reputation in respect of the two imputations found. It is said that the verdicts verge on the “contemptuous” when one considers the nature of the imputations, and the fact that they were conveyed of a policeman.

80 The jury was addressed at length by the defendant in relation to “nominal” damages; the jury was addressed by junior counsel for the plaintiff along the lines of his client not seeking to win a lottery, and the jury received appropriate directions in the course of my summing up, particularly in terms of the relationship of the award of damages to the harm done.

81 The defendant’s submission, in my respectful opinion, involves the imposition by the Court of a view of the figures at which the jury arrived in circumstances unknown to the Court. The very fact that the jury discriminated between the sums awarded and the imputations to which each related is a critical factor in rejecting either the imposition of a view by the Court or otherwise going behind the jury’s verdicts.

82 The jury in fact found that the plaintiff had been defamed by the publication of two of the imputations pleaded. The jury found, one can conclude without “going behind the jury’s deliberations”, that one was more serious than the other. There the matter, in my view, ends. The awards are not “nominal”, they are not a little bit more than nominal, they are not contemptuous: they are verdicts of substance.

Costs

83 A great deal of the written submissions delivered by the parties was concerned with whether or not an amendment to Part 52A was an amendment that affected accrued rights and thus could not operate retrospectively, or was merely a matter of procedure that could: Maxwell v Murphy (1957) 96 CLR 261 at 267 per Dixon CJ; Rodway v R (1990) 169 CLR 515.

84 The relevant amendment was that that came into effect on 19 September 2003 (before the hearing of this action). Part 52A r 33(1) was amended to exclude the application of the rule to proceedings for defamation after the decision of Simpson J in West v Nationwide News Pty Ltd [2003] NSWSC 767. Shortly stated, prior thereto, subject to the ever-important discretion in the Judge in a case such as the present, a plaintiff could be deprived of costs in certain circumstances. For example, Part 52A r 33(2)(b) provided that in proceedings commenced after 31 March 1983, but on or before 30 June 1993, where a plaintiff recovers a sum of not more than $10,000, the plaintiff shall not be entitled to payment of his or her costs of the proceedings unless it appears to the Court that the plaintiff had a “sufficient reason” for commencing or continuing proceedings in the Court, the Court makes an order for payment.

85 Costs are virtually ever in the discretion of the Court (see s 76 of the Supreme Court Act). I see no reason otherwise than to consider the award of costs on a discretionary basis without having to decide the acutely interesting and traditional issue as to whether an amendment operates prospectively or retrospectively. I have also had regard to the judgment of Studdert J in Mason v Doyle (unreported, NSWSC, 24 March 2005).

86 The publication complained of was on 22 May 1991 and proceedings were instituted in this Court by Statement of Claim filed on 17 March 1993. To remind, the hearing commenced on 5 October 2004 and concluded on the 29th. The record appears to disclose that the Defence was not filed until 19 May 2000 and that the Defence was one of substance, namely the defence of qualified privilege at common law and under s 22 of the Act, and in relation to the then pleaded claim for damages with respect to publication in other States. It also appears that the plea in mitigation alleging bad reputation was not added until 8 July 2002, and on the eve of the trial significantly amended on 5 October 2004 to include further particulars of bad reputation, and on 19 October 2004 to include particulars pursuant to Part 67 r 18(3), and further amended to add an extra particular of bad reputation on 22 October 2004. The defendant’s case has never been one in mitigation only, as the defendant seems to be submitting. I have come to the conclusion that the ultimate outcome reflected the publication of two serious imputations of the plaintiff, the quantification of damages which amounted to verdicts of substance but the arrival at which was a matter entirely within the province and knowledge of the jury. The plaintiff was entitled to commence the proceedings in this Court and to continue them, the more so where issues of bad reputation and justification in mitigation of damages only were raised so late in the day.

87 As the defendant has submitted, the plaintiff himself has not been blameless and indeed, without rehearsing his extraordinary history involving criminal convictions since the date of publication, this is acknowledged by the plaintiff himself. The defendant, however, has failed to persuade me to exercise my discretion against the plaintiff for instituting and continuing his action in this Court or in its favour by reference to the nature of the outcome ultimately achieved.

88 There is one other aspect to which I must advert: the submissions on costs were in writing, and appended to the submissions for the defence, and without comment, is a document now known or described as a Calderbank letter headed “Without Prejudice save as to Costs”. I propose to ignore the letter. The plaintiff in any event contends that it is inadmissible under the Evidence Act: see s 131. Arguably it is admissible under s 131(2)(h) “the communication or document is relevant to determining liability for costs”. Be that as it may, the sum referred to in this letter which is inevitably before me was inclusive of costs. The further observation I make about the use of a Calderbank letter so close to a jury trial is that one must scrutinise carefully the realities that confront each party to an action before such a tribunal. If it were necessary for me so to decide, I would conclude that it was not unreasonable for this plaintiff to form a view that whatever might have been the offer contained in the Calderbank letter, it was appropriate for him to prosecute his claim as he saw it and as he was advised before a tribunal, whose reasoning of course is never open to scrutiny.

89 I am thus of the opinion that the plaintiff is entitled to an award of costs on a party and party basis.

Interest

90 The defendant submits that judgment should be entered in the sum of $5,000 without an award of interest. It is said that this is an unusual case, which in many respects might be regarded as an understatement. The defendant says that as a result of the unacceptable delay in the commencement of prosecution in the proceedings that the Court should exercise its discretion to refuse an award of interest under s 94 of the Supreme Court Act 1970. The authorities upon which the defendant relies in stating that are John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 and Australian Consolidated Press v Driscoll (1988) Aust Torts Reports 80-175.

91 Notwithstanding the general entitlement to the successful plaintiff to interest, it is submitted, an order for payment of interest extending well into the past is prima facie productive of unfairness to the defendant despite the fact that the defendant has had the use of the money: Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322 at 338 – 339 per Moffitt P. The defendant also draws attention to the remarks made by McHugh JA in Kelly at 144C – D:

“In the circumstances I think that prima facie the plaintiff is entitled to interest on the basis that the verdict represents loss spread over the period from the date of publication to the trial. I say prima facie because the learned trial judge thought that, by reason of the plaintiff’s delay in commencing and more importantly prosecuting the action, it would be prima facie unfair to award interest over the whole period. He said that he would not have awarded interest for more than three years. I see no reason to differ from his Honour’s view on this point.”

92 The matter complained of, as has been stated, was published on 22 May 1991. Proceedings were not instituted in this Court until 17 March 1993. The defendant says that the proceedings lay dormant for years without any proper attempt by the plaintiff to bring them to trial; it was only after 22 October 1999 when the defendant sought orders dismissing the proceedings, which had been transferred to the dormant matters list on 13 May 1998, for want of prosecution that any action was taken by the plaintiff. Plaintiff’s discovery was completed only on 11 March 2004. The imputations which the jury eventually found were never sued upon until 12 October 2004 shortly after the commencement of the trial and some 13 years after publication of the matter complained of.

93 For the plaintiff it is pointed out, conformably with the evidence given in the trial, that the plaintiff did complain within a few days of the publication of the matter complained of to the defendant and to the Journalists Association. It then appears that on 2 June 1991 he left for Lebanon by reason of fears for his life, not returning to Sydney until December 1991 upon which occasion he was immediately arrested and charged with importing heroin. That charge was not dismissed by a Magistrate until 31 January 1994.

94 The plaintiff explained in evidence that he did not commence the proceedings until March 1993 because he did not have funds and was defending the importation of heroin charge. That to my mind constitutes some explanation for delay. The important component is the prompt complaint made on publication. Nonetheless, the proceedings did lay dormant until roughly 2000. The defendant did not put on any defence until July of that year: Casauria v De Kever (unreported, VSC, 21 November 1994, BC9405828 per Hayne J).

95 The plaintiff had explanations in terms of his own health, the death of his father and contending with the criminal justice system. An intention to restore the matter to the list is evidenced by the plaintiff appearing by a solicitor in June 1998. For the plaintiff it is contended that discovery was first made in April 2002, two years before the date advanced for the defendant.

96 The plaintiff states “if there is fault for the delay in these proceedings then the plaintiff and defendant are tarred with the same brush and delay should not affect the discretion to award pre-judgment interest”.

97 The plaintiff points to the following passage at 143 in the judgment of McHugh JA in Kelly as expounding the fundamental principals and the fundamental difficulties that attend the award of interest, particularly in the defamation actions:

“The correct approach in theory would seem to be that, since the plaintiff was entitled to damages immediately upon publication, the proper inquiry is first to determine to what extent the award was increased by reason of continuing injury. In strict theory the interest, in respect of this additional sum, would need to take account of the fact that the injury was spread over a period after publication. That is, leaving aside any question of future loss, the matter should be approached on the basis that the plaintiff is prima facie entitled to interest on the whole amount of the award from the date of publication. However, that amount has to be reduced for any sum additional to “vindication damages” awarded in consequence of injury suffered between publication and verdict. This approach gives rise to obvious difficulties of assessment. But if, as I think is the case, the plaintiff is entitled to at least part of his damages from the date of publication, the choice is between awarding no interest at all or attempting to calculate interest on a basis which, although not mathematically perfect, achieves a measure of justice. Since it is unfair to plaintiffs to deprive them of interest for the period in which they have been deprived of their money, interest ought to be awarded to the extent that it is fair and proper.”

98 In the instant case I shall do my most humble best to be Solomonic. Clearly, the real damage to the plaintiff’s reputation was done at the time of publication. Vindication has occurred over 13 years later. There have been delays on both sides. I am unembarrassed to use the phrase “doing the best I can”, I have concluded the plaintiff should be awarded interest at 2 percent for 6 years – namely $600.

99 I make the following orders:

1. Judgment for the plaintiff in the sum of $5,600.

2. I order the defendant to pay the plaintiff’s costs on a party and party basis.

3. I order the return of the exhibits.

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