Habib v Nationwide News Pty Ltd
[2010] NSWSC 924
•19 August 2010
CITATION: Habib v Nationwide News Pty Limited [2010] NSWSC 924 HEARING DATE(S): 28-29 July 2010
JUDGMENT DATE :
19 August 2010JURISDICTION: Civil JUDGMENT OF: McClellan CJatCL DECISION: Plaintiff entitled to an award of $5,000. CATCHWORDS: DEFAMATION - assessment of damages - extent of hurt to feelings and effect of defamatory publication upon plaintiff's reputation - DEFAMATION - effect of adverse findings of the plaintiff's credit in relation to assessment of damages - adverse findings made in respect of a plaintiff in the course of a trial not relevant to any award of damages - DEFAMATION - whether publication of articles in relation to the plaintiff after defamatory publication further damage the plaintiff's reputation - relationship between bringing of proceedings in defamation and effect of further publications based upon adverse findings of plaintiff in such proceedings LEGISLATION CITED: Defamation Act 1974 CATEGORY: Principal judgment CASES CITED: ABC v McBride (2001) 53 NSWLR 430
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Burstein v Times Newspapers Ltd [2000] All ER (D) 2384; [2001] 1 WLR 579
Grobbelaar v News Group Newspapers Ltd [2002] All ER (D) 355 (Oct); [2002] 4 All ER 732
Habib v Nationwide News Pty Limited [2008] NSWSC 181
Jamoo v Nationwide News Pty Ltd [2004] NSWSC 126
Jarratt v Fairfax Publications Pty Ltd [2001] NSWSC 739
Middendorp Electric Co Pty Ltd v Somevald [2001] VSC 312
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89; [2001] NSWCA 302
Pamplin v Express Newspapers (No 2) [1988] 1 All ER 282; [1988] 1 WLR 116
Ratcliffe v Evans [1892] 2 QB 524
Triggell v Pheeney (1951) 82 CLR 497
Turner v News Group Newspaper Ltd [2006] All ER (D) (May); [2006] 1 WLR 3469
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118TEXTS CITED: Gatley on Libel and Slander (11th ed) (2008) para 34.43-35.47 PARTIES: Mamdouh Habib (plaintiff)
Nationwide News (defendant)FILE NUMBER(S): SC 2005/269165 COUNSEL: C Evatt/R Rasmassen (plaintiff)
A Leopold SC/S Chrysanthou (defendant)SOLICITORS: Peter Erman (plaintiff)
Blake Dawson Waldron (defendant)LOWER COURT JURISDICTION: Court of Appeal LOWER COURT FILE NUMBER(S): CA40166/08 LOWER COURT JUDICIAL OFFICER : Hodgson JA; Tobias JA; McColl JA LOWER COURT DATE OF DECISION: 16 March 2010 LOWER COURT MEDIUM NEUTRAL CITATION: NSWCA 34
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LISTMcCLELLAN CJ at CL
THURSDAY 19 AUGUST 2010
JUDGMENT2005/269165 HABIB v NATIONWIDE NEWS PTY LIMITED
: The plaintiff brought proceedings for defamation in respect of an article written by Piers Akerman which was published in the Daily Telegraph on 15 February 2005. I have attached a copy of the article to these reasons. The statement of claim pleaded seven imputations:
a. the plaintiff has the habit of supporting terrorists;
b. the plaintiff lied when he said he was tortured;
c. the plaintiff knowingly made some false claims;
d. the plaintiff is not a reasonable Australian citizen;
e. the plaintiff is not a good Australian citizen;
g. the plaintiff tried to recruit fighters for the Jihad.f. the plaintiff is a fund raiser for international terrorists; and
2 Somewhat surprisingly the jury found only imputation (c) was conveyed by the matter complained of.
3 The defendant pleaded truth to the imputation and alleged that there were 7 occasions on which the plaintiff had made “false claims.” The matter was tried before me and I found that four of the alleged occasions were true (Habib v Nationwide News Pty Limited [2008] NSWSC 181). The plaintiff appealed to the Court of Appeal which found that in relation to two of those occasions the evidence tendered by the defendant which I admitted should have been rejected with the consequence that the defence failed in relation to those occasions. The third occasion considered by the Court was concerned with a statement the plaintiff made in an interview with Miss Katie Wood of Amnesty International when he said that “I have never been in Egypt since I come to Australia.” The Court held that, in its context, this could not be construed as an unequivocal statement that he had not physically been in Egypt since he migrated to Australia. The Court of Appeal accepted that the plaintiff’s statement was “equally capable of the meaning … that the appellant was seeking to disassociate himself from being an Egyptian citizen and emphasising that he was an Australian citizen who should not, as the man he believed was Mr Adams had threatened, be sent to Egypt” (at [343]).
4 The finding which was upheld by the Court of Appeal was concerned with the plaintiff’s statement that he had supported Sheikh Omar Abdul Rahman who was convicted of conspiracy in relation to the bombings of the World Trade Centre in 1993. The plaintiff had claimed that he only supported him because of “his sickness and his illness.” I found that this statement was knowingly false.
5 Because I ordered that the plaintiff’s claim be dismissed I did not proceed to determine the question of damages. The Court of Appeal returned the matter for that purpose. These are my reasons in relation to damages. These reasons should be read together with my earlier reasons in which I recounted the relevant facts.
6 When the matter first came before me counsel for the plaintiff indicated that he was instructed to ask me to appoint another judge to determine the matter. However, he could advance no argument to support the application. I could see no reason why either my original judgment or the decision of the Court of Appeal required that I appoint another judge to determine the issue of damages.
Legal principles
7 The proceedings were brought under the Defamation Act 1974 (NSW). Under that Act the cause of action was the published defamatory imputation (s 9(1)). When assessing damages s 46A required the court to “ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded.” In Jamoo v Nationwide News Pty Ltd [2004] NSWSC 126 at [51]-[57] Nicholas J summarised the relevant principles in the following terms:
51 Section 46(2) Defamation Act 1974 (NSW) (the Act) provides that damages for defamation shall be the damages recoverable “in accordance with the common law, but limited to damages for relevant harm”. “Relevant harm” is defined as “harm suffered by the person defamed” (s 46(1)(a)).
53 In Rogers v Nationwide News Pty Ltd [2003] HCA 52, Hayne J, para 60 observed that:52 Section 46(3)(a) provides that damages for defamation shall not include exemplary damages, and sub-para (b) provides that such damages “shall not be affected by the malice or other state of mind of the publisher at the time of the publication complained of or at any other time, except so far as that malice or other state of mind affects the relevant harm”.
- ‘The three purposes to be served by an award of damages for defamation are identified in the joint reasons in Carson v John Fairfax & Sons Ltd : (i) consolation for the personal distress and hurt caused to the appellant by the publication; (ii) reparation for harm done to the appellant’s personal, and in this case, professional reputation; and (iii) the vindication of the appellant’s reputation. As pointed out in Carson : the first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant; vindication looks to the attitudes of others.’
(Footnotes omitted).
- ‘… But in neither defamation nor in other cases of non-pecuniary loss can any standard of evaluation be employed except one that is described in qualitative and therefore necessarily imprecise terms. The damages that may be awarded “are such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man’.
55 I must also have regard to the requirements of s 46A of the act which provides:
46A Factors relevant in damages assessment
(2) In determining the amount of damages for non-economic loss to be awarded in any proceedings for defamation, the court is to take into consideration the general range of damages for non-economic loss in personal injury awards in the State (including awards made under, or in accordance with, any statute regulating the award of any such damages).(1) In determining the amount of damages to be awarded in any proceedings for defamation, the court is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded.
57 In Rogers (supra, para 73) Hayne J held that s 46A should not be understood as prescribing a particular, let alone a mathematical, relationship between the damages to be awarded for defamation and the damages for non-economic loss in personal injury awards. He said that it is of the first importance to recall the fundamental principle that the damages to be awarded for defamation must compensate for the effect of the defamation on the particular plaintiff.”
56 No submissions were made as to the application of this section in this case. I respectfully agree with the view of Levine J in Markovic v White [2004] NSWSC 37, para 35 that the real exercise is that provided for in s 46A(1), namely to ensure that there is an appropriate and rational relationship between the relevant harm as provided on the evidence and the amount of damages awarded.
8 As Nicholas J indicated, under the NSW Act a plaintiff was not entitled to exemplary damages but that entitlement would have existed, albeit to a modest extent, in the other States where the article by Mr Ackerman was published. The plaintiff makes no claim for exemplary damages.
The evidence
9 The plaintiff did not give evidence in relation to damages. Of course, some damage is assumed: Ratcliffe v Evans [1892] 2 QB 524 at 528. No evidence was given by the plaintiff’s wife although she was present in court throughout the proceedings. Evidence was given by family members about hurt to his feelings. There was some limited evidence elicited by the defendant when the plaintiff ultimately gave evidence about the plaintiff’s reputation within his local community.
10 The plaintiff called his sister, Sally Habib Yaghi. She described him as “very family man, funny man.” She said that she saw the plaintiff when he was reading the newspaper article and he was “very upset and angry and crying.”
11 She was asked, “what was your understanding of Mr Habib’s reputation prior to the events of him being arrested or detained overseas?” She replied: “really shocked cause I don’t believe it, very fine man, family man, funny I never think it is happening, it was a shock to me.”
12 The plaintiff also called his brother-in-law, Imad Yaghi. He was asked “what sort of reputation did Mr Habib have prior to all this?” He replied: “I know Mr Habib since 1986 and what I know about him he all fun, enjoy his life, loves swimming, going holidays, that is what I know about him.”
13 The plaintiff’s daughter, Maryam Habib, also gave evidence. She said that her father was emotional about the article and “disturbed and he was ill.” She said that he was crying.
14 Evidence was given by an ASIO officer of conversations he had with the plaintiff. During the course of the conversations the plaintiff accepted that there were rumours in the community that he was a spy for the Egyptian government although he denied that the rumours were true.
The plaintiff’s submissions
15 Counsel for the plaintiff submitted that the defamation was serious and occasioned both considerable damage to his reputation and hurt to his feelings, justifying a significant award of damages. It was submitted that because the imputation that he knowingly made some false claims was published in the context of his alleged involvement in terrorism, the published imputation was particularly damaging to his reputation. The plaintiff sought aggravated damages.
The defendant’s submissions
16 The defendant submitted that the imputation found by the jury was minor in the context of the entire article. It was submitted that a fair reading of the article made this plain and it could be inferred that the plaintiff was also of this view having regard to the imputations that were otherwise pleaded to arise. It was submitted that it was impermissible to speculate as to which part or parts of the article caused the plaintiff hurt or distress and that this was particularly so because the plaintiff did not give evidence about those matters. Accordingly it was submitted that the plaintiff had failed to establish that any significant damage was occasioned to him by reason of the imputation (see Jamoo at [62]-[72]).
17 The defendant further submitted that it was relevant to the assessment of damages that at the time of the publication the plaintiff was aware that he had knowingly made a false claim to the Australian public in relation to his support for a convicted terrorist. Although the defendant failed to show that the plaintiff had knowingly made multiple false claims (the plaintiff’s pleading being in the plural), nevertheless it was submitted that in its context the claim which the defendant proved to be false was serious and related to the plaintiff’s support for a convicted terrorist. It was submitted that the plaintiff said on a number of occasions in the 60 Minutes interview in February 2005 that he had supported Sheikh Omar Abdul Rahman for his sickness and nothing else. The defendant submitted that in these circumstances the plaintiff knowingly lied in a program broadcast on national television to a wide audience. It was submitted that the plaintiff could not have suffered any substantial hurt to feelings as a result of a publication of the relevant imputation when he knew that he had in fact been guilty of grave misconduct of that very kind. Furthermore it was submitted that the plaintiff conducted himself in a similar manner when he gave evidence in the proceedings.
18 With respect to aggravated damages the defendant submitted that the claim should fail. It was submitted that the plaintiff could not demonstrate that the defendant had acted improperly or unjustifiably or without bona fides, particularly in circumstances where the plaintiff had made at least one knowingly false claim: Triggell v Pheeney (1951) 82 CLR 497 at 514.6.
19 Furthermore, the plaintiff never gave any evidence from which it could be inferred that he knew that the imputation was false and that that falsity exacerbated his hurt to feelings: Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 151.9.
20 It was submitted that although insufficient for the defence of justification, the fact that the plaintiff had knowingly made a false claim to the Australian public in relation to his support for a convicted terrorist provided the background in which the plaintiff’s claim of damage should be assessed. It was submitted that the plaintiff deliberately set out to tell a lie to the Australian public with the consequence that it would be an affront to justice if he was awarded a substantial sum in damages. It was submitted that this was the case in which the effect of mitigation was to reduce the damages “perhaps almost to vanishing point”: Pamplin v Express Newspapers (No 2) [1988] 1 All ER 282; [1988] 1 WLR 116 at 120; see also Gatley on Libel and Slander (11th ed) (2008) para 34.43-35.47; Burstein v Times Newspapers Ltd [2000] All ER (D) 2384; [2001] 1 WLR 579 at [45]-[47]; ABC v McBride (2001) 53 NSWLR 430 at [14]; Grobbelaar v News Group Newspapers Ltd [2002] All ER (D) 355 (Oct); [2002] 4 All ER 732 at [68]; Turner v News Group Newspaper Ltd [2006] All ER (D) (May); [2006] 1 WLR 3469.
21 Finally the defendant submitted that the plaintiff’s reputation was marred by the perception within his community that he was a “spy”, ie a person who leads a life of deception. Accordingly, as the plaintiff accepted, being called a spy is a “bad thing”, it was submitted that the plaintiff’s damages should be assessed in light of his already poor reputation. It was submitted that a reputation for conducting oneself as a spy is tantamount to knowingly acting in a deceptive way. This aspect of the plaintiff’s reputation was said to derive from the same “sector” as the sector to which the relevant imputation related: see O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89; [2001] NSWCA 302.
Matters of credit
22 In the course of my reasons in relation to liability I made a number of findings in relation to the plaintiff’s credit. One of the issues in the trial related to an interview of the plaintiff by Australian officials at Guantanamo Bay on 15 May 2002. The interview was recorded and transcribed. Notwithstanding these facts, the plaintiff denied all knowledge that he had been interviewed. Although I was urged to find that there was an innocent explanation for his evidence – it was suggested that he was so overwhelmed by the events that he could not remember being interviewed – I did not accept this explanation.
23 As I said in my first judgment, the plaintiff’s denial that he was interviewed on 15 May 2002 at Guantanamo Bay is simply incredible.
24 I made other findings which were critical of the plaintiff’s credit. Having observed the plaintiff giving evidence I concluded that:
- “[E]]ven allowing for some difficulties with the English language, he sought to evade answering questions which may have presented difficulties with his case in these proceedings. Although on occasions he gave a lucid account of matters which were of no particular relevance, when pressed he would either avoid answering the questions or provide lengthy, rambling and confused explanations” (at [52]).
25 I said further:
- “I formed the impression that the plaintiff was prone to exaggerate and was cautious with questions which he perceived to be a challenge to his integrity. This caused him on occasions to give oblique answers or failed (sic) at all to answer the question. At times the impression he gave was of seeking to avoid the truth although on some occasions this may not have been the case” (at [55]).
26 The plaintiff was cross-examined about a conversation which occurred with an ASIO officer on 29 June 2000. I found that the interview occurred. It was during that interview that he claimed that he only supported the Sheikh for his sickness and his illness. This claim was knowingly false. His support was more general and he was of the view that the Sheikh was innocent of the crime of which he had been convicted.
27 With respect to the interview with Miss Katie Wood of Amnesty International I found that there were many inconsistencies between the answers which the plaintiff gave to Miss Wood and his evidence in these proceedings. I concluded that “the evidence in these proceedings was consistent with his interest in the litigation.”
28 I remain of the opinion that the plaintiff’s evidence could not be accepted in many respects. His evidence was given in order to enhance his forensic position in the present litigation and was at times evasive and at other times incredible.
29 The question is what part if any should my findings with respect to the plaintiff’s credit play in the assessment of damages. His reputation has undoubtedly been damaged by them. There is a related issue being the consequence, if any, of the finding which I made that the plaintiff did make a false claim in respect of Sheikh Omar Abdul Rahman which of itself must be damaging to his reputation, at least within the Australian community.
30 The issue of the relevance of adverse credit findings in the proceedings was considered but not finally determined by the Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419. The Court (Beazley, Giles and Santow JJA) were inclined to the view that adverse findings made in respect of a plaintiff in the course of the trial were not relevant to any award of damages. The reasoning appeared to turn on the proposition that because courts act on evidence and the judge’s findings were not evidence in the proceedings but findings made once the trial was concluded, they could not be considered when determining the question of damages necessary to restore the plaintiff’s reputation. The court seems to have accepted that the plaintiff may accordingly have “restored” a reputation which, at least by the time of the judgment, he or she may not have deserved [1407].
31 An obvious but probably irrelevant observation is to consider the approach which a jury applying common sense would have taken to the problem. I am not sure the Court of Appeal’s reasoning would prove attractive to the ordinary person so that, for example, an imputation that a plaintiff was a liar (which the defendant could not justify in the particularised case), would justify an award of damages when the jury was satisfied that the plaintiff told one or many lies when giving his or her evidence. The defendant may prove the plaintiff to be a liar at the trial, but not the damaging lie, and until that finding is made, the plaintiff’s reputation may be that he is an honest person. What is really happening is proof that the plaintiff may have enjoyed a reputation which he did not deserve.
32 The Court of Appeal acknowledged that the issue is not without difficulty and accepted that there is a contrary argument. It was articulated by Ipp JA, Beazley JA agreeing in McBride. Their Honours accepted the reasoning of Gillard J in Middendorp Electric Co Pty Ltd v Somevald [2001] VSC 312 who held that a plaintiff’s post-publication convictions on criminal charges could be taken into account in mitigation of damages.
33 The specific question raised in this case has not previously been authoritatively answered. However given the strength of the view expressed by the Court of Appeal in Marsden I believe I should follow it. McBride was concerned with findings other than by the trial court. Given that the controversy in the present case is concerned with the proposition that it is the plaintiff’s reputation at the date of publication which is to be restored, and for which compensation is to be awarded, I believe I should ignore my findings with respect to the plaintiff’s credit.
Hurt to feelings
34 As I have indicated, the plaintiff succeeded in relation to only one of the pleaded imputations. By comparison with the imputations which failed, either taken alone or together, the imputation upon which he succeeded (ie that he “knowingly made some false claims”) was modest. Having regard to the content of the article, the plaintiff’s failure on the other imputations is surprising but the plaintiff did not challenge the jury’s verdict and I must assess damages accordingly.
35 The question of damages when a plaintiff fails on some of his or her pleaded imputations was carefully considered by Nicholas J in Jamoo. The controversy in that case related to a publication which the plaintiff believed described his conduct as wrongful, which the defendant accepted, but also as a thief who was guilty of stealing investors’ money. The latter imputation was not accepted by the defendant to arise and, as it happened, was not found by the jury. As would be expected, the authorities are consistent on the issue. A plaintiff can only recover in respect of the reasonable reader’s understanding of what the matter complained of is saying that is the imputations found by the jury, but not for judgments or conclusions which the plaintiff may arrive at as a result of his or her own beliefs or prejudices: Jamoo at [64]; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301; Marsden at 172.
36 It follows that damages for hurt to feelings in the present case must be confined to damage from the imputation upon which the plaintiff succeeded. Because he did not give evidence, it is difficult to identify the extent, if at all, that that imputation occasioned hurt to feelings as opposed to the other, to my mind far more damaging, imputations. Without evidence on that issue but mindful of the limited impact of the imputation, the hurt occasioned by it would, in my judgment, be minimal. There is nothing in the evidence of the relatives who gave evidence on his behalf to suggest otherwise.
37 Although I accept that some of the plaintiff’s reported distress was because he was alleged to have knowingly made some false claims, I am satisfied that this could have been only a small component of the distress he felt as a result of reading the article.
Admissibility of subsequent articles
38 Following my decision in relation to liability, a number of newspaper articles were written. Those articles, which included an article by Mr Ackerman, were critical of the plaintiff. The criticisms were derived from my findings both as to the plaintiff’s credit and the pleaded imputations. The plaintiff accepted that Mr Ackerman’s article was an entirely accurate report of my judgment.
39 It was submitted that the publication of these articles occasioned further damage to the plaintiff which was compensable in these proceedings. Because the articles reported the proceedings and related to the imputation upon which the Court of Appeal held the plaintiff was entitled to succeed, it was submitted that the articles were admissible to establish further damage occasioned to the plaintiff from the original defamation. There was no submission that the defendant had acted improperly in publishing the articles. The plaintiff did not support his submission by reference to any relevant authority.
40 The defendant resisted the tender and submitted that the articles were irrelevant. It was submitted that the necessary causal connection between the original defamatory article and subsequent articles could not be established. It was submitted that my judgment was a consequence of the proceedings brought by the plaintiff in which there was a risk that I would make findings adverse to him. Although some of my findings were overturned by the Court of Appeal, it was submitted that the occasion for the publication of the relevant articles was not the original defamatory article but a judgment at the conclusion of the trial brought by the plaintiff.
41 In my judgment the defendant’s submission must be accepted. By bringing the proceedings, the plaintiff accepted the risk that the trial judge would make findings adverse to him which would be given publicity. That is a normal incident of litigation. In the absence of any impropriety the fact that publicity is given to findings which are ultimately overturned cannot be reflected in the damages.
Damages
42 As I have indicated in my judgment, the plaintiff is entitled to only minimal damages for hurt to his feelings by reason of the imputation which the jury found to have been conveyed. The article extended well beyond that imputation. I appreciate that the jury did not find any other pleaded imputation established but it is plain, and in my judgment entirely to be expected, that the plaintiff believed that the other imputations had been conveyed. Those imputations directly relating to lies he had told in relation to and support he had given to terrorists were likely to occasion him considerable hurt. Although there was evidence that the plaintiff was upset by the article there was no evidence that this was because of the relevant imputation rather than his understanding of the other, and to my mind far more serious, allegations that were published.
43 With respect to the damage to his reputation, in my judgment it is relevant that he falsely denied supporting Sheikh Omar Abdul Rahman. That amounts to a finding that the plaintiff was prepared to tell an untruth to the Australian public in relation to his support for a terrorist and very significantly diminishes his reputation. For that reason, although the plaintiff succeeded in establishing that the published article defamed him, when it said that he made multiple false claims I am not persuaded that his reputation was thereby significantly damaged.
Aggravated damages
44 The plaintiff argued for an award of aggravated damages.
45 I described the relevant principles in respect of such a claim in Jarratt v Fairfax Publications Pty Ltd [2001] NSWSC 739 at [114]-[117]:
- “114 It has also been stated that aggravated compensatory damages may be awarded if the defendant's conduct is "improper, unjustifiable or lacking in bona fides" ( Vacik at 9; Triggell v Pheeney (1951) 82 CLR 497 at 514).
- 115 The correct approach to aggravated damages was explained by Higgins J in Costello and Abbot v Random House Pty Limited (1999) 137 ACTR 1 at 46 where his Honour said:
- ‘The concept of 'aggravated damages' is not, whether calculated separately or not, a different 'head' of damage. It focuses on the circumstances of the wrong doing which had made the impact of it worse for the plaintiff. It is not to go beyond compensation for the aggravation of the harm to repute or feelings. It is not a means of punishing a defendant.’
116 The difference between ordinary and aggravated damages was examined by Levine J in Marsden (para 4732 and following) where he pointed out that factors sometimes thought relevant only to aggravated damages are in fact relevant to ordinary compensatory damages: See Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 considered by Clarke JA in Australian Consolidated Press Ltd v Ettinghausen (Court of Appeal, unreported, 13 October 1993 at p 25)
- 117 As the High Court noted in Gray at 4 ; in Uren v John Fairfax & Sons Pty Ltd (1965-66) 117 CLR 118 at 149, Windeyer J observed that the distinction between aggravated and exemplary damages is "not easy to make in defamation, either historically or analytically and in practice is hard to preserve." The concept of aggravated damages serves as a reminder that there are different elements to the award of damages and the conduct of the defendant, when publishing or defending the publication, may, if unjustifiable, improper, or lacking in bona fides, be reflected in the award of damages if damage is by reason of that conduct suffered by the plaintiff: see Bickel at 497.”
46 I am not persuaded that the defendant’s conduct in publishing the imputation upon which the plaintiff succeeded was improper and lacking in bona fides (see Triggell v Pheeney at 514.6). Furthermore I am not persuaded that the knowledge the plaintiff had of the falsity of the imputation, which was in any event true as to part, exacerbated the hurt to his feelings: Uren at 151.5. As it happens the plaintiff had knowingly made a false claim, which he repeated a number of times, denying his support for a convicted terrorist. I am not persuaded that the plaintiff is entitled to an award for aggravated damages.
Conclusion
47 In my judgment the plaintiff is entitled to an award of $5,000.
48 The parties may address me in relation to costs.
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