Habib v Radio 2UE Sydney Pty Ltd (No 4)
[2012] NSWDC 12
•24 February 2012
District Court
New South Wales
Medium Neutral Citation: Habib v Radio 2UE Sydney Pty Ltd & Anor (No 4) [2012] NSWDC 12 Hearing dates: 17, 18, 19 October, 23 November 2011 Decision date: 24 February 2012 Before: Levy SC DCJ Decision: See orders at paragraphs [440] to [444].
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - defamation - trial following jury verdict pursuant to s 7A of Defamation Act 1974 - radio broadcasts - whether defences of truth, contextual truth and comment established; DAMAGES - assessment of compensatory and aggravated damages Legislation Cited: Defamation Act 1974, s 7A
Evidence Act 1995, s 60
Uniform Civil Procedure Rules 2005, r 31.23(1), Sch 7Cases Cited: Bellino v Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183
Branson v Bower [2001] EMLR 32
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Broome v Cassell & Co Ltd [1972] AC 1027
Carson v John Fairfax & Sons Ltd [1993] HC 31; (1993) 178 CLR 44
Cheng & Anor v Tse Wai Chun [2000] 3 HKLRD 418
Clark v Ainsworth (1996) 40 NSWLR 463
Clarke v Norton [1910] VLR 494
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Edwards v Bell (1824) 1 Bing 403
Goodrich Aerospace Pty Limited v Arsic (2006) NSWCA 187
Habib v Radio 2UE Pty Limited [2008] NSWDC 59
Habib v Radio 2UE Pty Limited [2009] NSWCA 231
Harbour Radio Pty Ltd v John Tingle [2001] NSWCA 194
Hepburn v TCN Channel Nine Pty Limited [1984] 1 NSWLR 386
Jackson v John Fairfax & Sons Pty Ltd [1981] 1 NSWLR 36
John Fairfax & Sons Pty Ltd v Jones [2004] NSWCA 205
John Fairfax & Sons Pty Ltd v O'Shane [2005] NSWCA 164
Keays v Guardian Newspapers Ltd & Ors [2003] EWHC 1565
Marsland v Andjelic (No 2) (1993) 32 NSWLR 649
Mason v Demasi [2009] NSWCA 227
McQuire v Western Morning News [1903] 2 KB 100
NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340
Scott v Sampson (1882) 8 QBD 491
Silken v Beaverbrook [1958] 1 WLR 743
Turcu v News Group Newspapers Limited [2005] EWHC 799
Triggell v Pheeney [1951] HCA 23;
(1951) 82 CLR 497
Turner v MGM Pictures Ltd [1950] 1 AllER 449
Whalan v Kogarah Municipal Council [2007] NSWCA 5Texts Cited: Gatley on Libel and Slander, 10th ed Category: Principal judgment Parties: Mamdouh Habib (Plaintiff)
Radio 2UE Sydney Pty Ltd (First defendant)
Macquarie Radio Network Pty Ltd (Second defendant)Representation: Mr CA Evatt with Mr R Rasmussen (Plaintiff)
Mr BR McClintock SC with Ms G Rubagotti (Defendants)
Demir Legal (Plaintiff)
Banki Haddock Fiora (Defendants)
File Number(s): 2006/294377
Judgment
Table of Contents
A
INTRODUCTION
Nature of the plaintiff's case
[1]
The defendants
[2]
Three broadcasts on 18 August 2005
[3] - [4]
Subsequent broadcast on 3 May 2011
[5] - [6]
Plaintiff's imputations
[7]
Pleaded defences and defence imputations
[8] - [10]
Reply by plaintiff claiming malice
[11]
Procedural history
[12] - [13]
Issues
[14]
Non-issues
[15] - [16]
Credit attack on Mr Habib
[17] - [32]
Summary of findings
[33] - [38]
Array of evidence
[39] - [42]
B
FACTUAL MATTERS
Facts
[43] - [287]
The initial 3 broadcasts
[44]
Mr Habib's personal background
[45]
Work history and prior receipt of Centrelink payments
[46]
Mr Habib's travel to Pakistan in 2001
[48]
Kidnapping in Pakistan and rendition in captivity to Guantanamo Bay
[49] - [52]
Alleged $11,000 Centrelink dispute
[53] - [56]
Events following Mr Habib's return to Australia in January 2005
[57] - [59]
Mr Habib's condition of health on his return to Australia
[60] - [72]
Medical assessments of Mr Habib in early February 2005
[73] - [87]
Interview on 60 Minutes programme broadcast on 13 February 2005
[88] - [93]
Chronology of Mr Habib's dealings with Centrelink in 2005
[94] - [185]
Mr Habib's participation in the City to Surf race on 14 August 2005
[186] - [190]
Publication of Daily Telegraph article on 18 August 2005
[191] - [192]
The three broadcasts on 18 August 2005
[193]
Estimated listening audience for the broadcasts
[194] - [199]
Assault and stabbing incident involving Mr Habib on 21 August 2005
[200] - [241]
Effects of the broadcasts on Mr Habib
[242] - [267]
Centrelink payments to Mr Habib 2006-2009
[268] - [273]
Centrelink notation concerning lodgement of income tax returns 1999 to 2005
[274] - [287]
C
FINDINGS ON DEFENCES
Defence of qualified privilege
[289]
Defence of truth
[290] - [308]
Defence of contextual truth
[309] - [337]
Contextual truth of the Laws imputation
[316] - [323]
Contextual truth of the Price imputation
[324] - [330]
Contextual truth of the Hadley imputation
[331] - [336]
Conclusions concerning contextual imputations
[337]
Defence of comment
[338] - [369]
Overview of defence of comment
[339] - [358]
Comment defence and the Laws imputation
[359] - [361]
Comment defence and the Price imputation
[362] - [365]
Comment defence and the Hadley imputation
[366] - [368]
Conclusions on claimed defence of comment
[369]
Consideration of reply by plaintiff
[370] - [378]
D
DAMAGES ASSESSMENT
General compensatory damages
[380] - [396]
Mitigation
[397] - [409]
Aggravated damages
[410] - [430]
Interest
[431] - [437]
E
DISPOSITION, COSTS & ORDERS
Disposition
[438]
Costs
[439]
Orders
[440] - [444]
A. INTRODUCTION
Nature of the plaintiff's case
The now repealed Defamation Act 1974 applies to these proceedings, in which Mr Mamdouh Habib claims damages for defamation, including aggravated damages. This follows a determination by a jury that Mr Habib had been defamed by the defendants: s 7A(3). The defamatory remarks, which concerned the honesty of Mr Habib's dealings with Centrelink over his entitlement to payment of social security benefits, were broadcast by the defendants on two radio stations on 18 August 2005. This final part of the proceedings is concerned with determining whether the pleaded defences have been established, and if not, the amount of damages to be awarded to Mr Habib: s 7(4).
The defendants
Mr Habib's claims are made against the first defendant, Radio 2UE Sydney Pty Ltd, concerning broadcast remarks made by Mr John Laws and Mr Steve Price on radio station 2UE, and against the second defendant, Macquarie Radio Network Pty Ltd, concerning broadcast remarks by Mr Ray Hadley on radio station 2GB. The respective defendants employed these persons as radio commentators.
Three broadcasts on 18 August 2005
Mr Habib's claim relates to three separate radio broadcasts on 18 August 2005. Transcripts of each of those broadcasts were tendered in the proceedings as Exhibit "G". Those transcripts are reproduced as Appendices A , B and C to these reasons. The sound recordings of those broadcasts were tendered as Exhibit "L".
The broadcasts in question speak for themselves, and there is no need to quote from them in detail, or to paraphrase them, other than to observe that a jury has found that Mr Habib had been defamed by those remarks with regard to the imputations I will shortly identify. It is sufficient to say of the broadcasts, as was fairly conceded by Mr McClintock SC, on behalf of the defendants, that the comments made by Mr Laws, Mr Price and Mr Hadley had ridiculed Mr Habib and were " not nice ", and in the case of Mr Hadley's comments, they were " not terribly edifying as a piece of public debate ... far from it ".
Subsequent broadcast on 3 May 2011
Mr Habib made an additional claim for aggravated damages against the second defendant over a further broadcast by Mr Hadley on 3 May 2011. Mr Habib claimed the second defendant had on that occasion engaged him in an interview and had broadcast that interview in the knowledge that the hearing date for these proceedings had already been fixed to commence on 17 October 2011.
Mr Habib claimed that in the 3 May 2011 broadcast, Mr Hadley had harassed him into agreeing to be interviewed, and had twisted his words, and had sought to improperly engage him in discussions to talk about his case, in the hope that the subject matter discussed in that further broadcast might assist Mr Hadley in defending himself in the present case. A transcript of that 3 May 2011 broadcast is reproduced as Appendix D to these reasons. The sound recording of that broadcast was tendered as Exhibit "H".
Plaintiff's imputations
The jury found in favour of Mr Habib in respect of 3 of the 50 imputations that he claimed were defamatory of him. Those 3 imputations are set out in Mr Habib's Second Further Amended Statement of Claim filed on 8 April 2011 [SFASOC], and are reproduced as follows:
(a) Mr Habib is dishonest because he is trying to get himself a disability pension even though he is so fit he can run in the City to Surf and beat 40,000 people;
[Broadcast by Mr Laws - Paragraph 3(c)(ii) of the SFASOC relating to the first defendant];
(b) Mr Habib is attempting to deceive Centrelink by seeking a disability pension when he is not disabled;
[Broadcast by Mr Price - Paragraph 5(a)(i) of the SFASOC relating to the first defendant];
(c) Mr Habib is dishonest because he is trying to get his hands on a disability pension to which he is not entitled.
[Broadcast by Mr Hadley - Paragraph 7 of the SFASOC relating to the second defendant].
Pleaded defences and defence imputations
The defendants pleaded defences of truth, contextual truth, comment and qualified privilege in relation to each of the imputations accepted by the jury. Ultimately, the pleaded defence of qualified privilege was not argued.
The defendants also relied upon the following contextual truth imputations that they have pleaded against Mr Habib:
(a) Mr Habib is dishonest because he tried to get his hands on a disability pension to which he was not entitled.
(b) Mr Habib is a dishonest welfare cheat.
On behalf of Mr Habib it was argued that the truth, contextual truth and comment defences were not available to the defendants because all the imputations concerning alleged dishonesty were framed in the present tense at the time of the broadcast, and were unsupported by the chronological facts.
Reply by plaintiff claiming malice
Mr Habib filed a Reply in the proceedings, alleging malice on the part of the second defendant in respect of the 3 May 2011 broadcast by Mr Hadley. As a consequence, Mr Habib claimed an additional entitlement to an award of aggravated damages against the second defendant in respect of that broadcast.
Procedural history
The more recent procedural history of the proceedings was that the jury trial took place on 28, 29 and 30 March 2011. The trial of the present proceedings, which took place on 17, 18, 19, 20 October and 23 November 2011, followed by written submissions, was concerned with determining whether the defendants had made out any of their pleaded defences, and if not, the appropriate measure of Mr Habib's entitlement to damages.
The long interval of time between publication and in bringing this matter to finality was due to the initial dismissal of the proceedings by another judge of this court as an abuse of process, and the subsequent reversal of that decision on appeal: Habib v Radio 2UE Pty Limited [2008] NSWDC 59; Habib v Radio 2UE Pty Limited [2009] NSWCA 231, the subsequent refusal of the defendants' special leave application in the High Court of Australia on 23 April 2010, the timing of the jury trial which concluded on 30 March 2011, and the many subsequent interlocutory disputes that followed, and which preceded the final hearing that concluded on 23 November 2011.
Issues
The resolution of the issues arising from the defences, which largely concerned the honesty and probity of Mr Habib's relationship with Centrelink, was in part dependent upon the analysis of Centrelink documents against the timeline of relevant events, and the credibility of the evidence given by Mr Habib in these proceedings, when assessed against the whole of the evidence.
Non-issues
In identifying the issues concerning Mr Habib's relationship with Centrelink, something has to be said about the parameters of the present proceedings. The original pleadings and the related imputations that Mr Habib had sought to sustain in the hearing before the jury raised many wide-ranging matters. The 50 original imputations relied upon by Mr Habib which went to the jury, concerned not only Mr Habib's honesty, and the probity of his dealings with Centrelink regarding his entitlement to a disability pension, but also raised issues as to whether Mr Habib had a disability, whether he was a terrorist, and whether he was involved in nefarious activities whilst he was in Pakistan and Afghanistan, amongst other things.
In the present context, it should be clearly understood that this case is concerned only with the imputations accepted by the jury, namely, those I have identified at paragraph [7](a), (b) and (c) above concerning the honesty and probity of Mr Habib's dealings with Centrelink, and the defendants' consequential contextual truth imputations that I have identified in paragraph [9](a) and (b) above, and the related damages issues that arise for consideration, including the factual matters that underpin those imputations.
Credit attack on Mr Habib
In cross-examination, the defendants sought to make a concerted attack on the credit and honesty of Mr Habib on a range of matters. Mr Habib vehemently denied the substance of the assertions that were put to him in the course of those attacks.
Before embarking on the attack on Mr Habib's credit, on behalf of the defendants, Mr McClintock SC made it clear that he would not be cross-examining Mr Habib on his involvement in events occurring between 2001 and 2005, which was the time when Mr Habib was detained in Pakistan and then in Guantanamo Bay, Cuba.
In this regard, Mr McClintock SC indicated that this case was only concerned with the plaintiff's activities in relation to Centrelink, and not anything else (T49.1-T49.10). The defendants took that stance since the claimed imputations that were rejected by the jury which concerned matters of alleged terrorism and the like, were considered to be irrelevant to the imputations that survived for consideration in this part of the proceedings.
In the context of Mr Habib's claims regarding injury to his reputation and hurt to his feelings, it is relevant to set out the substance of the credit attacks that the defendants sought to sustain against Mr Habib in the course of these proceedings. In the following paragraphs I have identified the principal topics and the transcript references in connection with those credit attacks.
When analysed, the defendants' attack on Mr Habib's credit fell into two broad categories, each of which comprised a number of further specific assertions. I shall refer to the first category as the Centrelink allegations, and the second category as those involving Mr Habib's general conduct and probity as a witness.
The critical Centrelink allegations, which in essence were reiterations of the same basic assertion of dishonesty on the part of Mr Habib, were as follows:
(a) being prepared to cheat in his Centrelink application because of an asserted grudge he held against the Government for having wronged him in the events surrounding his detention in Guantanamo Bay: T123.29 to T124.30;
(b) doing everything he could to avoid having to tell Centrelink about the payment of $140,000 from 60 Minutes, this being a payment for an interview given by Mr Habib to Nine Network Australia Pty Limited: T141.20 to T142.4; T146.40 to T146.50; T157.1 to T157.12;
(c) not being frank with Centrelink: T159.5; T164.6 to T164.36;
(d) knowingly intending to deceive Centrelink as to his entitlement to receive Centrelink benefits: T164.5 to T164.23; T165.24 to T165.28;
The critical allegations by which the defendants sought to attack Mr Habib's general conduct and probity as a witness, were as follows:
(a) being " a publicity hound " who sought to have his name in the paper and to appear on television: T77.42 to T77.50
(b) falsely stating that he had not claimed sickness benefits and a disability pension in 2005: T79.25 to T79.34; T86.26 to T86.29
(c) lying in claiming that he did not know that social security payments were means tested: T117.34
(d) lying about not knowing that the receipt of the sum of $140,000 would cause him to lose his entitlement to Centrelink benefits: T119.30 to T119.47; T135.6 to T135.30; T148.24 to T148.29;
(e) fabricating his account of, or exaggerating the extent of, his mental state in 2005: T137.31;
(f) fabricating his account of an assault upon himself and his wife on 21 August 2005 in order to assist him with the present claim: T68.11; T63.48;
(g) being " quite prepared to make absolutely outrageous and defamatory allegations about people " when it suited him to do so: T167.35 to T167.47;
(h) an unspecified assertion that he had deliberately overstated matters in relation to his claim for damages: T256.32 to T256.35;
The matters that I have cited above involve serious allegations concerning Mr Habib's character and honesty. When stating my findings of fact on these matters, I will refer to each of those areas of controversy in the context where they arise for consideration in the course of identifying my findings of fact in Section B of my reasons.
In addition to the matters outlined above, on behalf of the defendants, during cross-examination of Mr Habib, it was initially positively put to Mr Habib, and then not pressed when objected to, that he was a person who would be quite prepared to avoid paying tax if he thought he could get away with it (T127.49 toT128.1).
That withdrawn assertion plays no part in the consideration of Mr Habib's credit because the question was not pressed, and has no bearing on the assessment of damages even though it was a matter which added to Mr Habib's feelings of affront at the trial, an impression that clearly emerged from his evidence. On that latter matter, Mr Habib's evidence as to his tax obligations and related responses was at T125.37 to T126.6, and was as follows:
"Q. Mr Habib, did I hear you say a short time ago that you paid tax?
A. I do pay tax.
Q. Is that true evidence?
A. Excuse me?
Q. Is that true evidence?
A. Yes, what I say is truth.
Q. Mr Habib, you didn't put a tax return in from 1990 through to 2005, did you?
A. Excuse, this is funny. Is this a joke?
Q. Mr Habib, would you answer my question? You didn't put a tax return in from 1990 to 2005, did you?
A. Ask United States if they put it from me when I was in Guantanamo Bay or John Howard or Phillip ..[Not transcribable reference to the then Foreign Minister, Mr Ruddock]..
Q. Mr Habib, you weren't arrested until 2001, were you?
A. I was kidnapped in 2001, yes."
In his final submissions, in addition to some general credibility challenges concerning Mr Habib's veracity, Mr McClintock SC placed reliance on two principal credit challenges to the evidence of Mr Habib.
The first of those categories of challenge was that Mr Habib had tried to avoid disclosing to Centrelink the payment of $140,000 as an interview fee from the Nine Network Australia Pty Limited in order to " defer the evil day " on which that payment would affect or cancel his Centrelink benefits ["the Centrelink disclosure issue"].
The second category concerned a challenge to the credulity of Mr Habib's explanation concerning what was said by one of his assailants in an assault and stabbing incident involving him and his wife on 21 August 2005, following the three broadcasts on 18 August 2005. The essence of the substance of the latter challenge was the accusation that Mr Habib had deliberately fabricated his account of those events in an attempt to assist his position in this case ["the assault and stabbing fabrication issue"].
I have rejected the credit attack upon Mr Habib concerning the Centrelink disclosure issue for the reasons that appear between paragraphs [ 94 ] to [ 185 ] of these reasons. I have also rejected the credit attack upon Mr Habib on the assault and stabbing fabrication issue. My reasons for rejecting that attack appear between paragraphs [ 200 ] to [ 241 ] of these reasons.
In considering the attacks made to Mr Habib's credit, on the evidence adduced in these proceedings, I have concluded that overall, the defendants have failed to make good their attacks by which they asserted Mr Habib was dishonest in his dealings with Centrelink. When read as a whole, a proper contextual consideration of the documentary evidence and related facts that based those attacks, does not sustain the assertions made.
A submission was made on behalf of Mr Habib, that in the context of this case, he should be regarded as being a person of unblemished reputation, notwithstanding that a level of notoriety had been created around him as a result of his time spent in captivity overseas, and the events leading to those circumstances, in the sense of him having a public persona, but not as a person with a bad reputation. On the evidence it must be presumed that Mr Habib is a person of good reputation.
Summary of findings
Following my assessment of the evidence on the issue of the credibility of Mr Habib's testimony, I have concluded that he should be considered to be a person whose reputation has been adversely affected by the disparaging comments made about him in the radio broadcasts in question, to thousands of listeners, by Mr Laws, Mr Price and Mr Hadley.
For the reasons I have given, I have found that the defendants have failed to make out any of the defences they have pleaded.
I have therefore assessed Mr Habib's entitlement to general compensatory damages against the first defendant in respect of the broadcast by Mr Laws on 18 August 2005 in the sum of $70,000, and in respect of Mr Price's broadcast on 18 August 2005, in the sum of $25,000. I have assessed aggravated damages against the first defendant in the sum of $25,000. I have assessed pre-judgment interest on general compensatory damages against the first defendant in the sum of $24,776. This entitles Mr Habib to a judgment against the first defendant in the total amount of $144,776.
I have also therefore also assessed Mr Habib's entitlement to general compensatory damages against the second defendant in respect of the broadcast by Mr Hadley on 18 August 2005 in the sum of $25,000.
I have not assessed aggravated damages against the second defendant in respect of Mr Hadley's broadcast on 3 May 2011. I have assessed pre-judgment interest on general compensatory damages against the second defendant in the sum of $6520. Habib is entitled to a judgment against the second defendant in the total amount of $31,520.
The combined total of these respective judgments is $176,296.
Array of evidence
Before stating my findings of fact, I propose to shortly outline the array of evidence adduced in the proceedings.
Mr Habib gave oral evidence, as did his wife, Mrs Maha Habib, his daughter Miss Mariam Habib, and an acquaintance, Ms Simone White. The latter witness gave some evidence of Mr Habib's pre-broadcast reputation, as well as some evidence as to her observations on the effect the broadcasts had on him.
The exhibits tendered in Mr Habib's case were marked in the series "A" to "S". The exhibits tendered in the defendants' case were marked in the series "1" to "6". A schedule identifying those exhibits appears as Appendix E to these reasons.
Mr Laws, Mr Price and Mr Hadley were not called to give any evidence, and the defendants did not call any oral evidence in addition to the documents they tendered.
B. FACTUAL MATTERS
Facts
The factual evidence was in large part unchallenged. In the paragraphs that follow, I set out my findings of fact concerning the relevant chronological events. I have considered all of the exhibits and I have drawn upon them, as well as upon the oral evidence, for the purposes of identifying my findings of fact. Where these findings result from the resolution of factual controversy within the evidence, and where it was relevant to do so, I have identified the relevant controversy along with my reasons for the resolution of any such controversy.
The initial three broadcasts
The starting point for laying out the relevant factual background is the content of the initial three broadcasts in question since it was those matters that have led to these proceedings. The broadcasts of 18 August 2005 have already been identified in Appendices A , B and C to these reasons and require no further summary.
Mr Habib's personal background
Mr Habib's background is that he was born in Egypt in 1955. He left Egypt in 1974. He lived in Italy between 1974 and 1977. He migrated to Australia in 1982. He is an Australian citizen. His whereabouts between 1977 and 1982 was not explored in the evidence and no issue arises from this fact. He married in Australia. He and his wife, Mrs Maha Habib, have four children, presently ranging in ages from 11 years to 26 years.
Work history and prior receipt of Centrelink benefits
In the past, in Australia, Mr Habib had at various times operated a cleaning business, a coffee shop business and a security business. The precise details of these businesses were not explored in the evidence. It appears these businesses were conducted by him through a corporate structure. Mr Habib stated that at all times, he had paid any taxes that were due, and he had relied upon the advice of an accountant concerning the management of his financial affairs to ensure this was so. Mr Habib's businesses failed and this resulted in him suffering a depressive illness and then receiving Centrelink benefits. That evidence was not contradicted.
Between 1999 and 18 July 2001, Mr Habib, was in receipt of a disability support pension from Centrelink. In these proceedings, it was not suggested on behalf of the defendants, that Mr Habib had been in any way disentitled to receive that pension during that period.
Mr Habib's travel to Pakistan in 2001
On 29 July 2001, Mr Habib temporarily left Australia. In that trip he had travelled to Pakistan. Mr Habib's oral evidence concerning the purpose of that trip was that he wanted to explore work opportunities in a proposed cleaning business. An additional explanation recorded in a medical report referred to him seeking a more easily accessible and affordable overseas Islamic education for his children because of his straightened economic circumstances after being involved in a failed business undertaking in Australia. It was not suggested that any relevant credit issue turned on those matters, and they were not further explored in much detail in evidence.
Kidnapping in Pakistan and rendition in captivity to Guantanamo Bay
Mr Habib alleged that on or about 1 October 2001, whilst he was in Pakistan, he had been kidnapped by local police, and then later detained by US military authorities. He stated that after his resultant involuntary detention at other places en route, including in Egypt, he was transported to Guantanamo Bay, in Cuba, where he was held as a detainee until late January 2005.
The evidence records that in those events, Mr Habib had given an account of having been subjected to extreme torture whilst he had been held against his will in Pakistan, and in Egypt, and also whilst he was in Guantanamo Bay. Mr Habib believed that at a high level, the Australian Government had a hand in these events. That evidence was not contradicted in these proceedings. There was no suggested basis from within the evidence which required that Mr Habib's evidence on these matters be seriously questioned or rejected.
The details of Mr Habib's time in detention at Guantanamo Bay, including the reasons for his incarceration there, and the reasons and the circumstances of his release and ultimate return to Australia, were not challenged or explored through cross-examination of Mr Habib, or his wife, or the other witnesses.
For the reasons outlined by counsel for the defendants, and to which I have already referred, the critical comments that Mr Laws had made about Mr Habib relating to his time overseas, including whilst he was in detention, were not put to Mr Habib in cross-examination.
Alleged $11,000 dispute with Centrelink
There was a suggestion made in the broadcast by Mr Laws, and in the Daily Telegraph article on which that broadcast was based, that Mr Habib had at some stage been in dispute with Centrelink over an alleged $11,000 pension overpayment to his family whilst he was in Pakistan and Guantanamo Bay, and in which it was said Mr Habib had been required to repay that sum to Centrelink.
It should be noted that there was no evidence called in these proceedings to support the assertion of any such disputed overpayment by Centrelink. I therefore consider that such matters must be seen as being unsubstantiated and unproven, especially since in circumstances where, in the weeks before the trial of these proceedings, in the context of several interlocutory listings for procedural directions, Mr Habib gave the defendants his written authority and consent for Centrelink to provide the defendants with unconditional access to copies of his Centrelink files. I was informed that such access in fact occurred. The circumstances of that access were that if Mr Habib had not given his consent for access to his Centrelink files, the defendants would have had a compelling case for these proceedings to be stayed and the hearing dates vacated. That prospect had been ventilated at a number of interlocutory pre-trial hearings.
In those circumstances, especially where the defendants made it clear in these proceedings, that Mr Habib's credibility was very much in issue, the inference is open that the Centrelink records did not substantiate the assertion of a dispute over an alleged $11,000 overpayment. I expect that, in the absence of other explanations, if any such material had existed within the Centrelink files, it would have been tendered by the defendants in these proceedings as this was a matter that could have had a bearing on Mr Habib's credit as a witness. Perhaps the issue was left unaddressed because the defendants regarded it as being irrelevant to the issues to be decided in the proceedings (T27.18). That is the basis upon which I shall proceed.
The Centrelink payments schedule shows that between 1 August 2001 and 12 May 2002, fortnightly Centrelink payments were made to Mr Habib at a time he was overseas, including in detention. The amounts paid as listed on that schedule, do not total $11,000, and are not identified as over-payments on that schedule: Exhibit "C".
Events following Mr Habib's return to Australia in January 2005
On about 28 or 29 January 2005, Mr Habib was returned to Australia after his release from detention in Guantanamo Bay. It is not relevant to delve into the detail of the circumstances of that detention. In these proceedings no evidence was called concerning any charges that were laid against him or concerning which laws, if any, had been infringed so as to result in his detention. Without evidence, matters of that kind cannot form part of the consideration in this case.
On Mr Habib's return to Australia, some sections of the community welcomed him. As evidence for this, a large piece of coloured cardboard, Exhibit "N", containing numerous handwritten personal messages from well-wishers, was tendered in the case for Mr Habib. This card was put forward as providing some evidence of Mr Habib's pre-broadcast good reputation in the community following his return to Sydney from Guantanamo Bay.
Although Mr Habib had been welcomed home by some sections of the community, it is a matter of notoriety not requiring evidence, that other sections of the community were not welcoming of him. This was so even to the extent that some sections of his own Muslim community in Sydney had shunned him: Exhibit "4".
Mr Habib's condition of health on his return to Australia
It is necessary to consider the evidence tendered concerning Mr Habib's state of health, including his mental health, on his return to Australia in January 2005 in order to evaluate the credit attack upon him, by which it was put that he was " making up " or had fabricated his account of his mental state in February 2005, an allegation which Mr Habib vehemently denied.
In his evidence, Mr Habib stated that he was in a poor state of health on his return to Australia.
The uncontroverted medical evidence is that on his return to Australia, Mr Habib was in a poor state of physical and psychological health. This was in the form of the unchallenged evidence of Professor Christopher Tennant, an eminent consultant psychiatrist, whose report on such issues, dated 14 February 2005, was addressed to Mr Habib's then solicitor, Mr Stephen Hopper: Exhibit "J".
Mrs Habib also gave evidence of her husband's poor physical and emotional state of health on his return to Australia. She was referred to photographs taken of him both before and after his time at Guantanamo Bay. In my view, those photographs, which were copied from Mr Habib's published biography, provided some degree of support for Mrs Habib's evidence: Exhibit "M".
Mrs Habib described her husband as appearing very thin on his return home. One of the photographs in Exhibit "M" showed a shirtless Mr Habib taken a few hours after his return to Australia. When that photograph was compared to an earlier family photograph from within the same biography, which was captioned " Happy times ", and bearing in mind the obvious cautions that need to be observed when interpreting photographic evidence, nevertheless, this appears to confirm that at some time beforehand, probably before he left Australia in 2001, Mr Habib had been much more well nourished in appearance. That matter was not the subject of contest.
On the matter of Mr Habib's condition of health on his return to Australia, I have extracted a portion of Mrs Habib's evidence between T185.24 to T186.5, where she relevantly stated:
"Q. What was your husband's mental state in those early days?
A. He wasn't with it. He didn't believe that he was there when he first came.
...
Q. How did he appear to you about being aware of things?
A. He thought - he thought himself that he was - it was another injection that he was given. He didn't actually accept that - he was trying to accept that I'm his wife and our kids is his kids and actually when he first came he was really welcome with a lot - lots of people and made him feel comfortable that he is welcome to Australia back home. And I've got a card from people who has actually signed it and gave it to him when they came, yes.
...
Q. --his own mental state, did he appear to you to be aware of what was going on?
A. No."
On the same subject, an extract of the evidence of Mr Habib appearing between T125.20 to T125.27 as to his condition of health on his return to Australia, was as follows:
"... when I come back from Guantanamo Bay I was sick, I was very ill. I'm not able to know what's going on. Take me about nine months to know even my family that's true is my family because I was under the drugs and I was really very ill. And what happened in my house in this time like a film or movie and whatever they doing I let them do it as a person - a handicap person or a mental issue person. But I was try to - I communicate with they what around me, that's exactly what happened ..."
It was not made clear in the evidence as to what was meant by the expression " I was under the drugs ". On analysis of the evidence, the possibilities are that on his return to Australia he was prescribed and was taking the medication referred to in the psychiatric report of Professor Christopher Tennant, or he was, possibly, still affected by drugs that could have been given to him whilst he was overseas. Professor Tennant had adverted to this possibility in his report by his use of the words " amongst others " to refer to a number of methods of torture. Mrs Habib's reference to " injection " at T186.5 could refer to this, however the issue was left unclarified in the evidence.
The state of the evidence does not reasonably permit the conclusion that Mr Habib was tortured by the use of drugs administered by injection or otherwise, or that he was still under the influence or the effects of those drugs on his return to Australia.
In view of such uncertainty, I consider a literal interpretation that Mr Habib was affected by the drugs that had been prescribed for him on his return to Australia is a more likely interpretation of the evidence, rather than the more speculative interpretation that he was still under the effect of drugs that had been given to him during torture as any evidence for the latter conclusion was not tendered.
I am unable to determine on the evidence tendered, that the drugs Mr Habib said he took in order to stay awake on the flight back to Australia, had any lasting effects in the days and weeks after his return, beyond any usual measure of fatigue that an individual might experience as a temporary after-effect of long distance plane travel.
There is no sound basis upon which the above evidence of Mr Habib's state of health on his return to Australia, as was described by him and his wife, should be doubted or rejected. Accordingly, I accept the evidence of Mr and Mrs Habib and Professor Tennant, whose opinions I shall set out, as reflecting a true account of Mr Habib's state of health as at January and February 2005.
Medical assessments of Mr Habib in early February 2005
In early February 2005, Mr Habib underwent a psychiatric examination and assessment by Professor Tennant. In these proceedings, the defendants did not seek to challenge the independence or the objectivity of the observations and conclusions made by Professor Tennant following that assessment, either through argument or through the calling of contrary evidence. The conclusions expressed by Professor Tennant were based upon his examination and assessment of Mr Habib about 5 days after Mr Habib had returned to Australia from detention in Guantanamo Bay.
For reasons that will shortly become apparent, the professional observations of Professor Tennant, when viewed alongside another tendered medical certificate from Mr Habib's general practitioner, assumes some significant importance in these proceedings in connection with some credit issues relating to Mr Habib's mental state in 2005, and as to whether he sought to exaggerate or fabricate his evidence on that issue, as was put to him in cross-examination. I will return to that issue shortly.
The following extract from Exhibit J provides the basis and the essence of the conclusions reached by Professor Tennant following his assessment of Mr Habib:
"...
There appears to be no family history of psychiatric illness, ...
...
His schooling, was largely uneventful with him completing secondary school at the age of 17. He was not interested in his schoolwork, did not do his homework but was well liked by both students and teachers he reports. He had a good friendship network and remains in contact with a large number of people from his childhood. There appears to be no identifiable psychological or conduct problems in his childhood and adolescence.
After leaving school he spent four years working in the Middle East and Europe in a variety of largely casual jobs. He worked in Syria, Italy and in Jordan, in service work, construction work , and as a assistant horse trainer.
He arrived in Australia at the age of 22 years and spent two years in factory work in two years working as a cleaner. Over 12 years built-up his own cleaning business. Not long after arriving in Australia, he met and married his wife who is originally from Lebanon. They appear to have had a happy marriage over the years and have four healthy children ranging in age from three to their early twenties. He has two sons and two daughters. Since his return he seems to be comfortably reestablishing his role within the family and his wife and children of course are exceptionally pleased to have him back.
Work History
He ran his successful cleaning business and at various times had from 15 to 30 employees. In addition he had a small security business and restaurant and at this time he considered himself to be successful and happy; and to this point he had no history of psychological disorder.
Around 1995 and 1996 he began to have significant problems with his major cleaning contract which was with the Department of Defense (sic) Housing. In essence what emerged was he lost; his cleaning contract and decided to challenge this, what he believed to be, an unjust decision. He challenged the decision through various authorities including the Ombudsman, the Anti Discrimination Board amongst others and in the courts. After prolonged proceedings and legal costs which require (sic) him to sell his house and resulted in his businesses failing he lost the final judgment.
In 1996 he developed his first significant depressive disorder and was treated with Prozac and Aurorix at various times. His symptoms at that time were those of a significant major depressive disorder. His working life was effectively destroyed and he remained unable to work for two years and was initially on Sickness Benefits and then the Disability Support Pension.
As their financial resources were significantly diminishing, the family contemplated moving back to an Islamic country where they could live more cheaply, in a country of sympathetic religious views and so obtain an easily accessible Islamic education for the children, matters which were very important to them. The family made two visits to Pakistan and Egypt after 1997 with the purpose both of examining the possibility of resettlement, finding work but also the visiting Mr. Habib's parents in Egypt, which they did. In the middle of 2001 Mr. Habib traveled (sic) to Singapore, Pakistan, and Egypt and the Emirates in order to again visit his family and seek out the possibility of work in these areas. It was at this time he was arrested just outside Karachi in Pakistan.
His detention
He remained in detention in Pakistan for approximately three weeks and was visited by an Australian Consular official and he reports was rude and unsympathetic to his plight. He was flown to Egypt from Pakistan where again, at the airport, an Australian Consular official was present. He remained in detention and was tortured in Egypt for some six months before being transferred to Cuba where he was interned, interrogated and tortured for three years.
The details of his torture both in the US and in Egypt have been documented elsewhere and reported to his legal advisers but in essence they included beatings, factitious drownings, various forms of electrocution including of his genitals, foreign bodies in his urethra, sensory deprivation, sleep deprivation and threats of return to Egypt, amongst others. Not surprisingly as a result of this he has significant psychiatric morbidities. The psychiatric morbidities were observed by medical offices (sic) in Cuba on his arrival and included PTSD and depression. Surprisingly the same report notes no such disorder on his departure from Cuba to Australia. The latter is of course an erroneous judgment, and the medical report is unsigned, not surprisingly, as it is quite unprofessional.
His Current Mental Conditions
Mr. Habib describes significant anxiety symptoms which are present for much of his waking life but are also exacerbated significantly by other stimuli. He describes tremulousness and shaking of his body, tachycardia, tightness in his chest and stomach, breathlessness and the inability to catch his breath, dizziness and poor memory. He desires to be left alone and is avoidant of people. He describes continuous memories of his unpleasant experiences and associated with this, accentuation of his anxiety symptoms he denies any particular nightmares. In addition particular stimuli provoke panic attacks similar to that described above. Examples; of such stimuli include the ring tone of his son's mobile phone (which is in the sound of an alarm), watching a video tape of his parents from Egypt, and severe anxiety when listening to news reports of the torture of a kitten recently, in Sydney.
On the basis of the symptoms Mr. Habib suffers from Post Traumatic Stress Disorder with Criteria A being fulfilled by his various torture experiences. He also meets Criteria B 1, 4, 5, Criteria C 3, 4, 5, 7, and Criterion D, 1, 3, 5.
In addition he has a major depressive syndrome in that his mood is low, he cries frequently, particularly in relation to memories or mention of his torture, he feels psychomotor retarded has poor concentration, major sleep disturbance, is irritable and sees little future for himself and gains little pleasure from any activity other than his pleasure at his release. He has major preoccupation with his past horrific experiences.
It is clear Mr. Habib will require two forms of relatively intensive treatment including medication and psychological intervention such as cognitive behavior (sic) therapy in order to reduce his suffering. I will assist in arranging for his treatment. I'm happy to assist in any other way that you think be useful."
Shortly after Professor Tennant's assessment of Mr Habib, on 15 February 2005, Mr Habib was also seen by Dr Mustapha Alameddin, a general practitioner. On that day, Dr Alameddin issued Mr Habib with a medical certificate incorporated in a Centrelink form: Exhibit "3". In that certificate, Dr Alameddin identified Mr Habib as having an anxiety disorder, depression, and generalised body aching. Dr Alameddin indicated that Mr Habib's symptoms of " fatigue, tiredness, weakness, headache, hearing buzz feeling " were of longstanding origin. Dr Alameddin noted that the prognosis for those symptoms was uncertain.
The medical opinions to which I have referred in the preceding paragraphs, and their underlying assumptions within the summarised history which provides the basis for the opinions, have a threefold importance.
First, they remain unchallenged and uncontradicted, and may therefore be safely assumed to be admissible and factually correct, as they do not appear to be either inherently or glaringly improbable or incorrect on their face, hearsay notwithstanding: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 per Heydon JA at [70] . Secondly, they are corroborative of the evidence given by Mrs Habib as to her description of her husband's condition of health upon his return to Australia in late January 2005. Thirdly, they provide a basis within the evidence for drawing inferences as to Mr Habib's likely medical condition immediately upon his return to Australia, and more particularly, on 31 January 2005 when he signed his application for Centrelink benefits, as well as in the weeks that followed until those benefits were conceded.
Before leaving my consideration of the medical evidence, I should observe that none of the opinions tendered were accompanied by an attestation of the Expert Witness Code required by UCPR r 31.23(1), Sch 7 or the previously applicable Sch K required by the former Supreme Court Rules which applied at the time the opinions were signed. In my view, in this case, nothing turns on that fact. It is plain from the date of Professor Tennant's report, that his report could not have been prepared for the purpose of these proceedings.
As the actual purpose of the report of Professor Tennant was not explored, I do not see anything of significance arising from the absence of reference in the report to either Sch 7 or the formerly applicable Sch K. Similarly, Dr Alameddin's report was obviously not prepared for the purposes of litigation, and no reference to Sch K or its equivalent was required in the circumstances. Dr Alameddin was simply filling out a Centrelink form that required him to state his opinion and the matters upon which that opinion was based.
No objection or argument was directed at the absence of an acknowledgment of the Expert Witness Code in the case of either of these reports. I consider the absence of such an acknowledgment to be of no consequence in this instance. The position may well have been different if the opinions under consideration had been prepared for this litigation. If that had been established as a fact, this most probably would have led to objections to the tender of the opinions.
I now turn to a consideration of the credit attack on Mr Habib in which it was asserted that in giving his evidence, he was making up or fabricating his account of his mental state in 2005.
Following my consideration of the evidence as a whole, I have concluded that the preponderance of the evidence, both lay and medical, requires that I reject that attack as unfounded. I have come to this conclusion for the reasons that follow.
First , Mr Habib's denial of the assertion of fabrication was forthrightly spontaneous, and seemed sincere, as was his denial that he had given a lucid account of himself on the 60 Minutes interview. Whilst Mr Habib's answers to questions in evidence, of themselves, were not necessarily conclusive on the issue of the credibility of his testimony, his denials were not inconsistent with his evidence in chief, where he had stated he was very ill at that time and was unable to know what was going on. In that context, I took the latter expression to be his manner of speaking rather than a literal statement. I did not consider the brevity of his denials to be a factor to be weighed against the acceptance of Mr Habib's evidence especially since the cross-examiner did not follow the issue up with further questions or other evidence to a degree of particularity that would be persuasive, and which might displace the acceptance of sworn testimony which was of itself not glaringly improbable or inherently incorrect.
Secondly , Mr Habib's account of his state of health on his return to Australia was supported by the evidence of Mrs Habib. Her evidence on this point remained largely unchallenged through cross-examination. The questions asked of Mrs Habib in cross-examination seeking to interpret posed photographs of an apparently smiling Mr Habib on being reunited with his family is hardly capable of being properly seen as a basis for challenge to the credibility of the testimony of either Mr or Mrs Habib. Mrs Habib did not agree with the proposition that on the televised 60 Minutes interview her husband appeared to be lucid and capable of explaining what had happened to him. Neither a taped copy of that interview, nor its transcription, featured in the evidence in these proceedings. As a result there was no available means by which to assess the correctness or otherwise of Mrs Habib's denial, which on its face, was not glaringly improbable so as to require rejection. In those circumstances, no good and sufficient reason has been suggested as to why the evidence of Mrs Habib on this issue should be disbelieved: Whalan v Kogarah Municipal Council [2007] NSWCA 5, at [41] .
Thirdly , the evidence comprising the unchallenged opinions of Professor Tennant and Dr Alameddin, both of whom saw and assessed Mr Habib in February 2005, provides a compelling basis upon which to reject the proposition underlying the credit attack under present consideration. The clear description that comes from this evidence is that Mr Habib's significant mental problems at the time these doctors saw him in February 2005 was of longstanding origin. Professor Tennant was of the opinion that the psychological problems that beset Mr Habib at the time of his report were likely to continue for some time, even with treatment. In view of the nature of the credit attack under present consideration, which was limited to February 2005, at this point I need not undertake a consideration of this issue beyond that time frame. It is reasonably clear from Professor Tennant's unchallenged opinion, which I accept, that Mr Habib had significant mental health problems, at the very least, throughout February 2005, as he claimed, and contrary to the asserted challenge to his credit on that issue.
In my view, each of the above factors, alone and in combination, require that I reject the criticisms of Mr Habib to the effect that he was making up or was fabricating his evidence on his mental state in February 2005.
This conclusion has some relevance to the assessment of the evidence concerning Mr Habib's dealings with Centrelink in January and February 2005. Before moving on to the Centrelink issues, it is necessary to review the matters surrounding Mr Habib's interview on the 60 Minutes programme, as that event, and its monetary consequences, gave rise to the Centrelink issues which are at the centre of these proceedings.
Interview on 60 Minutes programme broadcast on 13 February 2005
One of the focal points in these proceedings was Mr Habib's 2005 dealings with the producers of the television programme 60 Minutes and Nine Network Australia Pty Limited. Those dealings had led to these proceedings in that they had a relevant impact upon Mr Habib's existing relationship, entitlements and dealings with Centrelink, and led to further media attention upon Mr Habib and his circumstances. It was those dealings that led to the imputations that have arisen in these proceedings.
In the background to those events, there is no dispute that the events surrounding Mr Habib's detention at Guantanamo Bay, and the circumstances of his return to Australia, had attracted significant public notoriety, media attention and public interest. It is natural that this would have been so, and this was a matter that was undoubtedly influential in Mr Habib ultimately publishing his " ghost written " biography in 2010, and which apparently also covered those events. I take the opportunity to here record that I have not been provided with, nor have I read that biography, except for the extracted portions that were tendered in evidence: Exhibit "M" and Exhibit "4".
In the context of media interest in his story, in the period from 28 January 2005 to 3 February 2005, if not in the days beforehand, Mr Habib and his family, through their former solicitor Mr Hopper, had negotiated a payment of $140,000 from the Nine Network to Mrs Habib. The consideration for this payment was that Mr Habib was required to give the producers of the 60 Minutes programme an exclusive interview, and he was required to also make members of his family available for that purpose. It seems that there had been a media " bidding war " between the proprietors of the television stations Channel 7 and Channel 9 for the right to televise Mr Habib's story.
On 3 February 2005 an agreement was completed and signed by Mr and Mrs Habib, and by Mr John Westacott on behalf of Nine Network Australia Pty Limited, giving Channel 9 the right to telecast an exclusive interview with Mr Habib. Since the timing and the terms of that agreement have assumed some importance in these proceedings, I set out the terms of that agreement in full, as follows. The emboldened words appear as underlined text in the original Exhibit:
" EXCLUSIVE INTERVIEW AGREEMENT
This letter confirms the arrangements for an exclusive interview with you by Nine Network Australia Pty Limited (Nine), on the following terms and conditions-
1. Nine proposes to interview you concerning your experiences about your apprehension and detention in Pakistan. Egypt, Afghanistan and Guantanamo Bay; your release and return to Australia; and related events (the Interview) for the purposes of broadcast on "Sixty Minutes'" (the Program).
2. In consideration of Nine's agreement to broadcast the interview on the Program, and the payment referred to below, you agree to
(a) make yourself and members of your family available at times and locations to be arranged with Nina for the recording of the Interview and other footage,
and
(b) provide Nine with any background information or other material which relates to the subject matter of the interview;
and
(c) undertake at ail times to fell the truth to the best of your knowledge, in the Interview with Nine
3. You agree that the interview will be exclusive to Nine and exclusive of any other interviews with television, radio, print or any other media which may be received anywhere in the world, until 14 days after the interview has been broadcast by Nine. You undertake that neither you nor your immediate family will make any statements, or provide any material, to any other media concerning the subject matter of either the Interview or the Program, until 14 days after the Interview has been broadcast by Nine.
Notwithstanding, the exclusivity provisions outlined in the above paragraph, Nine acknowledges that the exclusivity period in relation to any interview which you conduct with the New York Times will extend only until 8.30pm, Australian eastern daylight saving time, on the day of the broadcast, being at the completion of the program.
4. Nine's exclusive rights under paragraph 3 do not apply if Nine has not broadcast the Interview within 21 days of the date of this letter.
5. You agree that all right, title and interest, including copyright, in the Program (including any footage of you recorded by Nine or obtained as part of the Interview] will be owned exclusively by Nine, and that Nine will be entitled to exploit that right, title and interest as it sees fit.
However, the profits derived from any overseas sales of the interview will be shared on an equal basis (50/50) between Maha Habib and Nine.
6. In consideration of the rights granted to Nine under this agreement, Nine will pay Maha Habib the sum of $140.000 to be paid into the bank account referred to in Attachment A within 7 working days following the broadcast of the Interview. You agree that no payment will be made unless:
(a) the interview takes place, and is recorded and broadcast; and
(b) you strictly comply with the terms of this agreement, including the requirements of paragraph 3.
7. I f Nine is required to withhold amounts on account of any form of tax, you agree to such
withholding.
8. The parties agree not to disclose any of the terms of this agreement (except to their legal or financial advisers, or as required by law).
Please acknowledge your agreement to the above by signing where indicated below."
[Emphasis is as appears]
In the events that followed, Mr Habib honoured his part of the bargain that had been struck by that agreement. Between 6 and 12 February 2005, Mr Habib, his wife and his children went to the home of a 60 Minutes programme producer on Scotland Island in Sydney, for the purpose of filming the 60 Minutes interview. There, he was secreted away from other media access, and the interview in question was recorded. That interview was later televised on the 60 Minutes programme that went to air on Sunday 13 February 2005. In return, Nine Network Australia Pty Limited honoured its part of the agreement, and on 16 February 2005, the sum of $140,000 was deposited into Mrs Habib's account with Arab Bank Australia.
These dates will assume some importance when it comes to a consideration of the defences of truth and comment relied upon in these proceedings. Before leaving the matter of the 60 Minutes interview I take the opportunity to record that I have not seen that 60 Minutes interview, either at the time of the original broadcast, or since, and a copy of it was not tendered in evidence in these proceedings.
Chronology of Mr Habib's dealings with Centrelink in 2005
The 31 January 2005 date is a significant one for these proceedings because this was the first occasion on which Mr Habib had any dealings with Centrelink on his return to Australia in 2005.
On that day, two officers from Centrelink had attended at the home of Mr and Mrs Habib to discuss his Centrelink entitlements. In the presence of Mr Habib's then solicitor, Mr Stephen Hopper, and Mr Habib's wife, Mrs Maha Habib, those officers assisted Mr Habib by completing some forms to enable a claim for Centrelink benefits to be processed.
Those forms, and Mr Habib's dealings with Centrelink that followed, are at the heart of these proceedings: Exhibits "A" and "B".
The unchallenged evidence was that it was Mrs Habib who handled all the relevant Centrelink documentation, forms and correspondence.
The first relevant form was an application for disability payments: Exhibit "A". The second such form was a questionnaire requiring the disclosure of income and assets: Exhibit "B".
The unchallenged evidence is that the Centrelink officers who attended the home of Mr and Mrs Habib assisted Mr Habib by filling in these forms. That evidence is confirmed by the answer to question M2 in Exhibit "A", which records that fact.
Unless otherwise stated, the following chronological account of Mr Habib's dealings with Centrelink is unchallenged and uncontradicted. It is necessary and relevant to set those matters out in some detail for the purposes of considering the defences relied upon by the defendants, especially the allegations of dishonesty and welfare cheating.
After the two initial Centrelink forms were signed in the presence of the Centrelink officials, Mr Habib said one of those officials returned, accompanied by another Centrelink official as there was an apparent mistake as to which form had been signed by Mr Habib and further forms were required to be completed. Mrs Habib also stated that there were two visits by Centrelink officials on 31 January 2005 (T195.2). At this second visit to Mr Habib's home on 31 January 2005, it was stated that a Newstart Allowance form for unemployment assistance was signed and then taken away by the Centrelink manager (T12.1 to T12.44).
The evidence was left unclear as to which order Exhibits "A" and "B" were signed. They were both dated 31 January 2005. In any event, one such form was for unemployment assistance, and the other was for a disability pension.
In Exhibit "B", Mr Habib disclosed his assets at the time as comprising a 1993 motor vehicle, some household effects with an estimated value of $5,000 and a fifty per cent share of total deposits of $180 held in two Commonwealth Bank accounts.
In these proceedings, the defendants placed significant reliance on the following declaration which was acknowledged by Mr and Mrs Habib, and which I have extracted from Exhibit "B":
"I declare that:
the information provided in this form is complete and correct.
I understand that:
giving false and misleading information is a serious offence.
Centrelink can make relevant enquiries to ensure I receive correct entitlements.
I must notify Centrelink of any changes to this information within 14 days of the change(s) occurring."
[Emphasis added by defendant's submissions]
The defendant pointed out, correctly in my view, that the above declaration, and the obligation to provide information of changes of circumstances, continued to have effect for so long as Mr Habib's Centrelink application, or receipt of Centrelink benefits, remained current.
On behalf of the defendants, Mr McClintock SC argued that all the defendants had to do in order to defeat Mr Habib's present claim was to prove that Mr Habib had signed the application form for Centrelink benefits, Exhibit "A", and to view that fact alongside the undisputed chronological events that occurred along the timeline of Mr Habib's dealings with Centrelink. It was submitted this was all that was required without regard to whether Mr Habib had brought his mind to the application which was ultimately dealt with by Centrelink. It was argued that this was because the truth of those matters is the relevant matter for the defences of truth and comment. I shall consider those defences in due course.
The parties were at issue on the subject of the significance of the forms to the defences relied upon. On behalf of Mr Habib, it was argued that his mental state at the time he signed the application was also of some significance to the analysis of those events (T241.50 to T242.25).
At paragraphs [73] to [87], I have already referred to the evidence of Mr Habib concerning his mental state on his return to Australia. There is ample evidence that he was significantly psychologically affected. Having regard to the already cited and unchallenged opinion of Professor Tennant, I conclude that Mr Habib was undoubtedly seriously affected and mentally disturbed by his experiences, as outlined in the report of Professor Tennant.
However, allowing full force to the opinion of Professor Tennant, I nevertheless consider that the evidence adduced in this case does not permit a finding that Mr Habib was so mentally affected as a result of his experiences, that he was psychologically incapable of appreciating what was being done for him at the time with regard to the Centrelink application for benefits.
Accordingly, I find that Mr Habib must have been aware of the significance and the implications of placing his signature onto that application form and the related forms for social security benefits, just as he must have been aware of the implications of the signing of the contract with Nine Network Australia Pty Limited concerning the 60 Minutes interview.
In these proceedings the defendants acknowledged that at the time Mr Habib signed the Centrelink forms, he was without doubt legally entitled to seek and obtain the Disability Support Pension from Centrelink. It is clear from the evidence that Centrelink was also satisfied that this was so, and on 1 February 2005, Centrelink approved that pension, at which time a pension payment of $228.86 was made to Mr Habib: Exhibit "1", p 23.
In that regard, on behalf of the defendants it was clearly stated that it was not part of the defence case that Mr Habib was not entitled to a disability pension on the basis of the medical condition he had at that time. That concession went on to acknowledge that this was not surprising considering where Mr Habib had been for the previous 4 years, where a person of extraordinary fortitude might have found those circumstances hard to bear (T242.8 to T242.20).
The defendant tendered 2 bundles of Centrelink materials, which largely comprised printouts of on-line computerised records of copies of correspondence that Centrelink had sent to Mr Habib in relation to his benefit entitlements. Those bundles were business records which were admissible as evidence of Mr Habib's dealings with Centrelink and they were admitted into evidence: Exhibits "1" and "2".
On reading those records I am satisfied that the contents represent, in data form, the copies of the correspondence that were sent to Mr Habib by Centrelink. Similarly, I am satisfied, and there is no reason to doubt, that the file notes accurately record the substance of the dealings Mr Habib and his family had with officers of Centrelink on the occasions that record entries in Exhibits "1" and "2" were made of such events.
Given the imputations of dishonest dealings with Centrelink, and the defendants' pleas of truth and comment, it becomes necessary to analyse the Centrelink material in chronological detail before determining whether the defences have been made out. The relevant portions of that material are summarised as follows.
A schedule of the various benefit payments made to Mr Habib by Centrelink between 1999 and 2006 was tendered: Exhibit "5". The contents of that schedule were not entirely self-explanatory.
The schedule of Centrelink payments shows that Mr Habib first received a Disability Support Pension from Centrelink between 9 July 1999 and 7 May 2002. The latter part of that period had overlapped with part of the period that Mr Habib was in Guantanamo Bay. The payments to Mr Habib are shown on the schedule to have apparently ceased on 7 May 2002 until they resumed with payment for the period commencing on 31 January 2005.
On 31 January 2005, the Centrelink records were annotated with the entry " BTR Arrears ". That entry remains unexplained and in the absence of an explanation, nothing turns upon it.
On 31 January 2005, consistent with a claim for benefits having been made by Mr Habib, or made on his behalf, as was put, Centrelink sent him a letter confirming his intention to make a claim for payment of Centrelink benefits: Exhibit "2", p 23. On the same date, Centrelink sent Mr Habib a notification in which the following extract of a reporting requirement was stated:
"This is an information notice given under the social security law.
YOU MUST TELL US IF ANY OF THESE THINGS HAPPEN OR IS LIKELY TO HAPPEN
...
you and your partner receive a lump sum amount of money or one-off payment from any source."
In submissions the defendants referred to the above form of notice as a reporting notice, and I shall adopt that description for convenient reference to this and equivalent notices sent to Mr and Mrs Habib at various later times. A copy of the terms of that reporting notice is found in Exhibit "2" at p 20.
The reporting notice obliged Mr Habib to advise Centrelink within 14 days of events or circumstances that affected his payment entitlement: Exhibit "2", p 19.
A controversy has arisen in the proceedings over the interpretation to be placed on the requirements of the reporting notice in the sense of identifying the circumstances that triggered an obligation on Mr Habib to provide Centrelink with information on the happening of certain events.
In the context of the evidence in this case, and the matter of the payment to Mrs Habib of the amount of $140,000 by Nine Network Australia Pty Limited, I consider it to be plain that the reporting notice requiring Mr Habib to inform Centrelink of the likelihood of payment of a lump sum only arose for compliance when all pre-conditions that rendered the possibility of payment were known to have been fulfilled so as to create the circumstances of a payment to be " likely ".
I consider that the payment in question could not reasonably be considered to be " likely " in this context unless there was an established entitlement to it, where it was only a matter of agreed time to pass before the payment was to be made, and that nothing else had to occur to make the money due and payable. Until that was established, the proposed payment must be seen as a possibility only, and could not be reasonably characterised as being " likely " for notification purposes. I shall return to this question in due course in considering the defences.
On 1 February 2005, Centrelink paid Mr Habib an amount of $228.86. That amount represented a payment for a Newstart Allowance for the period 31 January 2005 to 8 March 2005: Exhibit "2", p 22. There is no dispute that a Newstart Allowance was for the provision of financial support from Centrelink whilst an applicant was looking for work. Given the opinions of Professor Tennant and Dr Alameddin concerning Mr Habib's state of health at that time, it is difficult to see what work Mr Habib could realistically have looked for at around that time. In any event, the defendants have not argued any disentitlement to those payments on medical criteria.
Two days later, on 3 February 2005, the agreement between Mr and Mrs Habib and Nine Network Australia Pty Limited was signed. At that time there was no evidence as to when the proposed 60 Minutes interview was scheduled to take place or was to be broadcast, if at all.
In my view, as at 3 February 2005, the obligation on Mr Habib to advise Centrelink of the possible future payment of $140,000 for the 60 Minutes interview payment, according to the agreement, had not yet arisen because the conditions precedent for such notification had not yet been fulfilled so as to enable that anticipated payment to be properly characterised as being " likely to happen ". As neither the interview nor the broadcast had yet occurred, I consider that any talk of a payment being due under the terms of the signed agreement Exhibit "E" for the purposes of notifying Centrelink, was premature, and could not in the circumstances be properly considered to be a " likely " change of circumstances requiring notification to Centrelink at that time.
In the early days of February 2005, Mr Habib was assessed by Professor Tennant, whose report provides insight into Mr Habib's mental state at around this time. No evidence was called concerning Mr Habib's mental state at the time the producer of the 60 Minutes programme had Mr Habib and his family stay at his home on Scotland Island between 6 February 2005 and 12 February 2005. However, when regard is had to the certificate of Dr Alameddin dated 15 February 2005, it is more probable than not, given the relatively short interval of time involved, that Mr Habib's mental state, as seen by Professor Tennant in early February 2005, would have remained the same or similar when filming for the 60 Minutes programme was being undertaken.
On the evening of Sunday 13 February 2005 the 60 Minutes interview with Mr Habib was broadcast on Channel 9 television.
In my view, once the 60 Minutes interview had been broadcast, in accordance with the requirements of the Centrelink reporting notice, it was certainly arguable that an obligation could have arisen for Mr Habib to notify Centrelink that it was likely that either he or his partner, Mrs Habib, would in due course receive a payment of a lump sum from Nine Network Australia Pty Limited, provided that Mr Habib continued to observe the conditions to which he had agreed as a pre-condition for payment. However, on that view, and at that point, the information as to the proviso was equally important to the information about the possibility of payment in terms of whether it was " likely " to happen.
There is little room for doubt that on 13 February 2005 Mr Habib must have been aware that the effect of his agreement with the producers of the 60 Minutes programme provided for payment of $140,000 to be made within 7 working days following the broadcast of the interview, namely by Tuesday 22 February 2005, provided also that he continued to strictly comply with the further requirements of paragraph 3 of his agreement with Nine Network Australia Pty Limited: Exhibit "E", clause 6(b). That provision required that he continue to refrain from any other media contact in the exclusivity period.
In Mr Habib's circumstances, the prospect of his wife receiving $140,000 within 7 days was undoubtedly a powerful incentive on Mr Habib to fulfil the remaining requirement for non-contact with other media for that sum to be paid. At that point, Mr Habib's awareness of those circumstances at that time is a relevant matter for consideration. I therefore consider that as at the evening of 13 February 2005, Mr Habib knew, just as any reasonable person in his position and circumstances would have known, there was a relevant change " likely " to occur to his circumstances. The question of whether that change at that time triggered the need for Centrelink to be notified of this likely change within 14 days of the broadcast remains an open and arguable one.
As the agreement with Nine Network Australia Pty Limited provided for Mrs Habib to receive the payment of $140,000, in my view, on the evening of Sunday 13 February 2005, the payment contemplated by the agreement was a more " likely " occurrence than it was immediately before the broadcast, but at that time, that emergent likelihood was not of a character that required notification to Centrelink because Mr and Mrs Habib still had to successfully refrain from contact with other media during the exclusivity period before Mrs Habib became entitled to the " likely " payment. It should be observed at this point that there had been a " bidding war " for media access to Mr Habib. There is little room for doubt that there was media interest in his story at that time. It is possible that Mr Habib may not have been able to avoid media contact in that period because of the media attention on him at around that time. In the context of this case, those circumstances have to be viewed prospectively and not in hindsight.
The non-contact with other media requirement was applicable until the expiry of 14 days after the broadcast, namely, 27 February 2005, even if payment were to have occurred before 27 February 2005.
That position also remained the case until the actual time when either Mr or Mrs Habib became aware that the payment of $140,000 had actually been made. I shall return to this point shortly in determining what could reasonably be understood to be the last compliance date for Mr Habib to inform Centrelink of the likelihood or fact of a payment of the kind under consideration here.
On construing the agreement Exhibit "E", on an objective view, I consider its meaning was that once the broadcast of the 60 Minutes programme had occurred, Mrs Habib was to receive the payment of $140,000 on or before 22 February 2005, which was within 7 days of the broadcast, provided the Habib family refrain from other media contact in the prescribed period.
Notwithstanding that provision, early payment was made on 16 February 2005. Once that payment had been made, and once the fact of payment was known to Mr Habib, or Mrs Habib for that matter, as she was handling the Centrelink correspondence, there is no room for doubt that such knowledge triggered the obligation to report the fact of payment to Centrelink.
The question arises as to when was the latest date by which Mr Habib was required to actually report to Centrelink the fact of the likely payment of $140,000. The starting point of that enquiry, must necessarily be the question of when did Mr and Mrs Habib become aware of the fact of payment. In my view, the 14 day notification period for compliance with the reporting notification requirement did not commence to run until such knowledge was acquired, on 27 February 2005, whichever of those events occurred first.
On this question there is no direct evidence, which compels a finding that either Mr or Mrs Habib actually knew on 17 February 2005, that the payment of $140,000 had been made the previous day. Nor is there evidence which necessarily requires or compels the drawing of an inference to the same effect. There was no relevant interrogatory or admission, nor was there any other form of admission that addressed this issue of the timing of the knowledge that the payment had been made. The argument to the contrary is an opportunistic one, that relies on a retrospective analysis of the events after they had unfolded in order to seek to impute knowledge to Mr or Mrs Habib. However, absent from the argument is the requisite evidence that would necessarily or reasonably impute knowledge on 17 February 2005, of the time of payment of $140,000 on 16 February 2005.
In contrast, I consider that a prospective analysis of the circumstances is required, especially where a dishonest motive is sought to be imputed to Mr Habib. The relevant enquiry is whether there was any evidence tendered that either shows or tends to show that either Mr or Mrs Habib actually knew, on 17 February 2005, that the sum of $140,000 had in fact been paid into Mrs Habib's bank account on 16 February 2005.
Generally, persons in the straightened financial circumstances that I infer had at that time affected the Habib family, may have had a keen interest in maintaining some degree of vigilance or enquiry about whether and when payment had been made, or obtaining urgent confirmation from the receiving bank, or from the payer, that the agreed payment had in fact been paid on time.
However, the process of drawing inferences of that kind must be tempered with the knowledge that the payer was entitled under the agreement to delay the payment until as late as 22 February 2005. There is no evidence which suggests that either Mr or Mrs Habib had been led to believe, on reasonable grounds not involving unwarranted speculation, that payment might be made before the date due under the agreement. No questions were directed at the state of knowledge of Mr and Mrs Habib as to whether the payment was expected to be made earlier than on the last due date, and if so, when.
In their submissions, the defendants pointed to the criteria for a successful comment defence to be fulfilled as follows:
(a) A statement of fact, which is a matter of substantial truth, is proper material for comment: s 30(2) of the Act;
(b) A comment is something in the nature of a deduction, inference, conclusion, criticisms, remark or observation: Clarke v Norton [1910] VLR 494, at 499;
(c) The limits of the defence of comment are very wide, and can protect comments that are:
(i) extreme and strongly expressed: John Fairfax & Sons Pty Ltd v O'Shane [2005] NSWCA 164, at [16];
(ii) violent, exaggerated or even in a sense, unjust: McQuire v Western Morning News [1903] 2 KB 100, at 110;
(iii) exaggerated, obstinate or prejudiced: Silken v Beaverbrook [1958] 1 WLR 743, at 747;
(iv) amounting to irrationality, stupidity or obstinacy: Turner v MGM Pictures Ltd [1950] 1 AllER 449, at 435; Cheng & Anor v Tse Wai Chun [2000] 3 HKLRD 418, at 435.
As is evident from the three broadcasts of 18 August 2005, and the transcripts of those broadcasts, some of the remarks made therein seem to qualify as extreme, strongly expressed, exaggerated, unjust, irrational and to the extent that it was suggested that perhaps it could be arranged for Mr Habib to be given a disability, also violent.
The defendants draw upon these statements from within the authorities I have cited, and rely upon the proposition that the comments that are protected by such criteria need not be reasonable, and that this allows room in public life for " the crank [and] the enthusiast [to] say what he honestly thinks as much as the reasonable man who sits on the jury ": Silken v Beaverbrook , at 747.
It is important to bear in mind that the defence of comment is made not to the matter complained of as a whole, but only to the imputation, however, in the consideration of these matters, regard may be had to the matter complained of that gave rise to the defamatory imputation: NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340, 349; John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164, at [40].
The defendants also rely upon the proposition that a statement which appears to be factual, and which is either true or false, may nevertheless be regarded as comment when it is drawn from other facts. In this regard, the defendants argue that an inference as to someone's motives may constitute an expression of opinion, even though the inference drawn may be to the effect that there exists a certain state of affairs, including a state of mind: Keays v Guardian Newspapers Ltd & Ors [2003] EWHC 1565; Branson v Bower [2001] EMLR 32.
The defendants have submitted that when each of the imputations are examined, it is apparent that " each of the imputations carries the badge of comment and each of the matters complained of was par excellence a comment piece ".
That submission was anchored to the propositions that Mr Laws, Mr Price and Mr Hadley are commentators on matters of public interest; they are in the business of publicising their opinions, and " in the tradition of talk-back radio, inviting the public to air their opinions or to agree or disagree with those opinions in light of the available facts ".
By that route of argument, the defendants sought to defend the expression of opinion embedded within each imputation, to the effect that the plaintiff is dishonest, and they sought to justify this as being a matter of public interest based upon proper material for comment.
In the paragraphs that follow, I set out my separate consideration of each of the defences of comment in relation to each of the three broadcasts made on 18 August 2005.
In the case of each imputation, the essential question is whether there was proper material for comment: s 30(3) of the Act.
Comment defence and the Laws imputation
The defendants have argued that in relation to the Laws imputation, the proper material for comment is constituted by the elements of the plaintiff being fit enough to run in the 2005 City to Surf race, a matter conceded by the plaintiff, the fact that the plaintiff ran in that race and beat 40,000 other people who competed in that race, a matter also conceded by the plaintiff, and finally, that " the plaintiff is trying to get a disability pension ", a matter the defendants have assumed to be true, but which was a disputed matter of fact that I have not accepted.
In my view, the fundamental flaw in the defendants' argument in respect of comment comprising the Laws imputation is the conflation of the events that prevailed at the time the application for a disability pension was made by the plaintiff or on his behalf on 31 January 2005, linked with the events of the plaintiff's participation in the City to Surf race almost 4 months later to arrive at the factually incorrect statement to the effect that at the time of the broadcast, the plaintiff " is trying to get a disability pension ".
In my view the temporal disconnection between those events demonstrates that the essential plank in the defendants' argument does not represent a statement of fact because of the factually incorrect character of the statement in question. It could not be reasonably said that the plaintiff was, as at the time of the broadcast, or at the time of the City to Surf race, currently trying to get a disability pension. Accordingly, although Mr Laws broadcast his opinion to that effect in the form of a comment, I consider that comment was not based on proper material for comment, and therefore the claimed defence of comment in relation to the broadcast by Mr Laws, must fail.
Comment defence and the Price imputation
The defendants have argued that in relation to the Price imputation, the proper material for comment is constituted by the elements that " the plaintiff is seeking a disability pension from Centrelink " and the conceded facts to the effect that the plaintiff ran in the 2005 City to Surf race, and that he beat 40,000 other people.
The statements the defendants seek to properly characterise as comment are the formulations that the plaintiff is not disabled, and " the plaintiff is attempting to deceive Centrelink ".
Again, consistent with the reasons for the conclusion I have reached concerning the present tense formulation of the comment in respect of the broadcast by Mr Laws, I consider that the claimed comment defence in respect of the broadcast by Mr Price is similarly afflicted by an erroneous foundation based on the present tense of the remarks and the imputation, and as such there is no proper material framing for comment to base the claimed defence.
Accordingly, I consider that the claimed defence of comment in relation to the broadcast by Mr Price, must also fail.
Comment defence and the Hadley imputation
The defendants have argued that in relation to the Hadley imputation, the proper material for comment is constituted by the elements that " the plaintiff is trying to get his hands on a disability pension" and that the plaintiff is not entitled to a disability pension. The relevant comment is identified as being " the plaintiff is dishonest ".
Consistent with my findings on the claimed defence of comment in relation to the Laws and the Price imputations, I consider that there is no proper material for comment in relation to this matter. In my view the flawed foundation for the claim that there was proper material for comment is the present tense assertion made at the time of the broadcast, that the plaintiff " is trying " to get a disability pension.
Accordingly, I consider that the claimed defence of comment in relation to the broadcast by Mr Price, must also fail.
Conclusions on claimed defence of comment
For the reasons I have outlined above, in respect of each of the imputations raised, the defendants have failed to make good their defence of comment, and those defences are accordingly rejected in relation to each of the broadcasts.
Consideration of matters raised in the reply filed by plaintiff
The reply filed by the plaintiff claimed that the defendants were actuated by express malice in the publication of the matters complained of. In support of the claim of malice the plaintiff asserted that:
(a) the broadcasts were inherently malicious as evidenced by their presentation, emphasis, delivery, repetition, and the abusive language spoken about the plaintiff;
(b) the reckless defence in pleading as a particular of truth that the plaintiff had applied for a disability pension at the time of publication;
(c) making reference to Centrelink in the defence in order to support an application to Centrelink to ascertain whether the plaintiff did make an application for a disability pension prior to 18 August 2005;
(d) Misconduct by the second defendant and its servants or agent, Mr Hadley, in speaking to the plaintiff by telephone on 3 May 2011, when he knew the trial was fixed for 17 October 2011, where Mr Hadley asked questions and sought information relative to the issues in the trial and as raised by the defence, and where it was asserted that Mr Hadley had denigrated and abused the plaintiff on Radio 2GB and, amongst other things, called him a " dole bludger ";
(e) the commentators did not have the opinions to which the comment defences related, and that the publication complained of was not in good faith for public information, advancement or education.
As to (e) above, the plaintiff was unable to show that the commentator did not hold the relevant opinions they had expressed in relation to him, and that the publications were not in good faith. Therefore, this component of the reply has not been sustained.
As to (d) above, it was certainly of interest to Mr Hadley, and those who assisted him, to arrange to have the plaintiff participate in a public broadcast on 3 May 2011 whilst this litigation was pending. Clearly, the second defendant, through Mr Hadley, saw a value in enticing the plaintiff into participating in an on air interview with Mr Hadley on Radio 2GB on 3 May 2011.
The plaintiff probably did feel he was harassed or goaded into participating in Mr Hadley's programme as a consequence of the calls he had received from Mr Hadley's assistant, requesting him to go on air with Mr Hadley.
Whilst the plaintiff probably saw an opportunity to ventilate some issues with Mr Hadley on air, co-incidental with any benefit and value Mr Hadley might have seen in having such participation from the plaintiff, it was at all times within the power the power of the plaintiff on 3 May 2011, to either decline, or to terminate his participation in Mr Hadley's programme. That said, the opportunity that arose for Mr Hadley to engage in discussion with Mr Habib in that way was not an unfettered one, or one without possible liability consequences in defamation, including aggravated damages, with regard to what would be said of Mr Habib in that broadcast. I shall return to this matter in due course.
As to (c) above, I see nothing within the reference to Centrelink in the filed defence as forming a basis for an award of aggravated damages. The Centrelink records relating to the plaintiff were at the front and centre of this litigation as the allegation of dishonesty had been levelled at the plaintiff in relation to his dealings with Centrelink. This is a matter that is covered by general compensatory damages, not aggravated damages.
As to (b) above, I have not been provided with sufficient evidence upon which to conclude, as the plaintiff submitted I should, that the defendants recklessly pleaded as a particular of their truth defence, that the plaintiff had applied for a disability pension at the time of the broadcasts. In my view, a finding of recklessness requires satisfactory evidence, and it cannot be inferred from unsound foundations. It ultimately transpired that the impugned plea of truth in the defence was misplaced, but the evidence does not satisfy the requirements for proof of recklessness.
As to (a) above, I am satisfied that the broadcasts were inherently malicious, as is evident from their presentation, emphasis, delivery, repetition, and the abusive language spoken about the plaintiff, as claimed.
I find that the tone and content of the broadcast by Mr Laws was clearly spiteful and laden with ill-will towards Mr Habib, as well as being intentionally aimed at ridiculing the plaintiff. Prime examples are the song that ridiculed and mocked the plaintiff, and Mr Laws' assent to the proposition raised by Mr Price that someone go out and give the plaintiff a disability. An additional factor is the intentional ostracism of the plaintiff, suggesting that he be laughed out of the country. These are matters of considerable aggravation that ought to sound in aggravated damages. I find that the plaintiff has established malice in respect of the broadcast by Mr Laws.
D. DAMAGES ASSESSMENT
The claims by the plaintiff for general compensatory damages and aggravated damages require separate consideration.
General compensatory damages
The defendants submitted that in the event the plaintiff is successful in establishing his entitlement to damages, general compensatory damages should be assessed at the lower end of the scale for such damages. In contrast, the plaintiff submitted that a much higher award was called for in the circumstances when the requisite elements are given due consideration. In that regard, Gatley on Libel and Slander , 10 th ed, page 230, states as follows:
"General damages serve three functions: to act as a consolation to the claimant for the distress he suffers from the publication of the statement; to repair the harm to his reputation (including, where relevant, his business reputation); and as a vindication of his reputation (in the eyes of the public)."
In support of that submission, and in accordance with the provisions of s 46A of the Act, which requires that such damages be assessed proportionately to the relevant harm, according to a rational and appropriate relationship with the harm, on behalf of the plaintiff, Mr Rasmussen submitted a series of case references and summaries exposing a range of awards for general compensatory damages that have been awarded in some 37 defamation cases decided between 1999 and 2008.
Whilst I have considered the underlying circumstances of those each of awards, I do not propose to individually review and analyse them here, other than to observe that the preponderance of those awards were made to professional persons such as medical practitioners, lawyers, businessmen and other professionals, and are distinguishable from Mr Habib's circumstances on the basis that Mr Habib has not suffered harm in the practise of a profession, as was the case in a significant number of those cited instances.
Here, the assessment exercise essentially requires the circumstances of the plaintiff, and the effect of the defamation upon his particular circumstances, to be taken into account. It is therefore not appropriate to undertake a case-by-case analysis for comparison purposes.
The matters I have taken into account include those matters set out between paragraphs [242] to [267] of these reasons, and Mr Habib's underlying health, as was explained in the medical evidence, which I have referred to and cited at [60] to [87] of my reasons.
When assessing general compensatory damages for defamation, the exercise is essentially one of assessing an appropriate solatium amount for hurt to feelings, damage to reputation and vindication: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, at 60. All three of these components must be included in one lump sum for compensatory damages, and the amount to be assessed is essentially one of impression rather than aggregating specific amounts for specific components: Broome v Cassell & Co Ltd [1972] AC 1027, at 1072.
In assessing general compensatory damages, I must also take into comparative consideration the amount of damages for non-economic loss to be awarded in other actions for damages for personal injuries: s 46A(2) of the Act.
In approaching these tasks, it is noteworthy that the plaintiff called only limited evidence of the effect the publications had on his reputation. That evidence was from Miss White, his wife Maha and his daughter Mariam, each of whom were clearly not influenced by the broadcasts, and as a result, did not think less of the plaintiff.
Recognising the impressionistic nature of the exercise, and at the same time confining the exercise to the task of identifying a fair amount to salve the hurt feelings of the plaintiff, injury to his reputation and for vindication, whilst at the same time ensuring a proportionality with a range of personal injury awards, the amount to be awarded has to be seen as compensatory to the plaintiff, not over-compensatory.
The amounts assessed must equate proportionately to damages awardable in personal injury actions in respect of claims in the modest to middle range attracting common law damages, and not covered by the table of percentages referred to in s 16 of the Civil Liability Act 2005. Instead, I shall have regard to common law considerations for the amount of non-economic loss as a general background source of comparison.
In making the required assessments, I note that the sting of each of the broadcasts still continues to have an adverse effect Mr Habib, and that the broadcasts still cause him upset.
I have already outlined the evidence that deals with the hurt and upset Mr Habib has experienced as a result of the broadcasts. In his submissions on behalf of the defendants, Mr McClintock SC conceded that those matters went beyond contemptuously low or nominal damages, and if accepted, as I have accepted them, this calls for proper damages for hurt to feelings, solatium and vindication.
I now turn to the assessment of damages in respect of each of the broadcasts. Understandably, counsel for the respective parties were reluctant to make submissions on what ought to be seen as a reasonable and appropriate range for general compensatory damages. The only assistance that was proffered by the parties was the submission on behalf of the plaintiff to the effect that there was no cap on such damages, and an award of about $180,000 per cause of action would be appropriate. The submission made on behalf of the defendants identified the customary jury submission to the effect that when assessing such damages, the feet of the assessor should remain firmly on the ground, which I took to be a call for realistically moderate damages to be awarded. I agree with the general appropriateness of that suggested approach in this case, and I shall adopt it in making my assessments in respect of each of the three broadcasts complained of broadcasts on 18 August 2005.
In taking an overview of the respective broadcasts, of the three broadcasts in question, it is plain that the broadcast by Mr Laws has had, and continues to have the most stinging effect on the plaintiff, and the plaintiff feels, whether rightly or wrongly, but as a natural probable consequence of the words used, that Mr Price's unfortunate remarks that suggested the proviso that " we can organise someone to go out there and give him a disability " have placed him and his family at risk of personal harm, a matter that naturally causes the plaintiff some distress. I do not consider the plaintiff is being unduly precious in not seeing any joke or humour in that statement. I therefore consider that the general compensatory damages that flow from the remarks by Mr Laws and Mr Price ought to be proportionately higher in respect of that broadcast, but as high as the figures submitted on behalf of the plaintiff.
Accordingly, I assess general compensatory damages against the respective defendants as follows:
(a) In respect of the broadcast by Mr John Laws on behalf of the first defendant : $70,000;
(b) In respect of the broadcast by Mr Steve Price on behalf of the first defendant : $25,000;
(c) In respect of the broadcast by Mr Ray Hadley on behalf of the second defendant : $25,000;
Taking the foregoing considerations into account, I have assessed general compensatory damages against the first defendant in the total amount of $95,000, and against the second defendant in the amount of $25,000.
In making those assessments I have considered the question of mitigation as explained in the paragraphs that follow.
Mitigation of compensatory general damages
The defendants submitted that " by reason of the plaintiff's bad reputation, the plaintiff is entitled to a lesser award of damage ": Scott v Sampson (1882) 8 QBD 491, a case decided well before the advent of the phenomenon of talk-back radio.
In support of that submission the defendants argued that the plaintiff's reputation was such that the imputations would reasonably and ordinarily cause much less damage than would be the case of a person of good reputation.
I consider that submission should be rejected because the correct approach, on the evidence adduced, is to regard the plaintiff as a person of good reputation. For the defendants to assert otherwise, evidence of bad reputation is required, and that evidence, either by tender of material, or conceded propositions put in cross-examination and sustained by findings of fact, is absent here. This is expressly so as a result of a forensic decision made in the conduct of the defence, as a matter I have recorded earlier in my reasons.
The defendants sought to justify the submission of argued bad reputation by referring to the evidence within Exhibit "4", the extract from the plaintiff's book, in which he referred to sections of his own Muslim community having shunned him on his return to Australia. I consider that the defendants have overstated the effect of that evidence as to Mr Habib's reputation, and I accept the plaintiff's explanation that suggested that he thought people in that community were wary or fearful of attracting unwarranted suspicion from certain government authorities if they were seen to be associated with him. Given the plaintiff's whereabouts between 2001 to January 2005, I consider that explanation from the plaintiff was a rational one, and not one that should be viewed as supporting a submission of bad reputation, particularly on the state of the cross-examination of the plaintiff on the issue.
The defendants also submitted that the plaintiff's credibility is a relevant matter to be taken into account on the question of mitigation of damages. In conformity with my findings on the credit of the plaintiff, I reject the submission that there were relevant credit issues concerning the plaintiff that should serve to mitigate the plaintiff's entitlement to general compensatory damages.
In coming to that conclusion I have taken the following matters into account.
The defendants submitted that Mr Habib was a seeker of publicity and that this should mitigate or ameliorate the level of damages that should be awarded to him.
On behalf of the defendants, Mr Habib's credit was attacked with the accusation that he was a " publicity hound " who would do anything to get his name in the papers and to appear on television (T77.42 to T77.47). It was also suggested to Mr Habib that he was " desperate " to get onto Mr Hadley's programme on 3 May 2001 in order to have his remarks broadcast (T75.17).
These suggestions followed an earlier suggestion made on behalf of the defendants that Mr Habib was not averse to publicity provided that it suited him (T77.39). Mr Habib denied these assertions. In the same vein, in connection with the 3 May 2011 broadcast by the second defendant, Mrs Habib denied the suggestion that her husband was anxious or enthusiastic to be interviewed by Mr Hadley (T199.33; T299.38 to T200.45).
Mr Habib responded to the publicity seeking assertions by denying them. He explained he believed he had done nothing wrong, and stated that over the previous 6 years, he had tried to publicly prove his innocence, as he put it. Mrs Habib gave similar evidence, stating that her husband had nothing to hide, and that he wanted to establish his innocence, and accordingly, her opinion was that he did not reject the opportunity to put forward his position. That statement had to be read in the context of the evidence of what Mr and Mrs Habib felt was media harassment of him, which was the reason that was put forward for Mr Habib having agreed to the interview with Mr Hadley on 3 May 2011.
The assertion that Mr Habib was a seeker of publicity arose in the context that he and his circumstances had attracted some media and public interest, undoubtedly as a result of his earlier detention in Guantanamo Bay, and the circumstances of his release and return to Australia. The evidence for that view is the very fact, timing and circumstances of the 60 Minutes interview, and the considerable sum of money that Nine Network Australia Pty Limited was willing to pay for the interview in order to defeat a rival bid for the exclusive right to interview Mr Habib, and to broadcast that interview.
In those circumstances, I do not consider that the description of Mr Habib as a seeker of publicity or a " publicity hound " is a fair rendition of the circumstances, where Mr Habib felt that as a result of the attention he had received and also as a result of the circumstances which led to that attention, he felt the need to prove his innocence.
I do not consider that the plaintiff's circumstances as described in the preceding paragraphs constitute ameliorating factors that should serve as discounting factors to reduce or discount the measure of damages that would otherwise be awardable to the plaintiff in this case, and which I have assessed at [395] of my reasons.
Aggravated damages
Aggravated damages are only awardable if the plaintiff can demonstrate that the defendants were lacking in bona fides , or had acted improperly, or unjustifiably: Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497, at 514.
On behalf of the defendants it was submitted that in this case, there should be no award of aggravated damages on account of the conduct of counsel for the defendants in conducting the defence at the trial, or for the conduct of the defendants in pursuing the defences of contextual truth and comment, or on account of the defendant's failure to apologise to the plaintiff, or in relation to the conduct of Mr Hadley in interviewing the plaintiff on 3 May 2011.
The defendants have submitted, in accordance with authority, that the vigorous persistence in a legitimate defence cannot be used to aggravate damages, and that forceful advocacy within appropriate limits, of itself, is not a matter of aggravation: Harbour Radio Pty Ltd v John Tingle [2001] NSWCA 194 at [26].
That statement is undoubtedly correct, and I consider that it is a full answer to the plaintiff's claim for aggravated damages in respect of the pursuit of the defences of contextual truth and comment, and in respect of the failure of the defendants to apologise to the plaintiff.
The absence of an apology is of itself insufficient to justify an award of aggravated damages. This is because the failure to apologise does not have the effect of increasing the hurt, and therefore the extent of the plaintiff's entitlement to damages, and conversely, if an apology is tendered, this may mitigate the level of damages that might otherwise be awarded: Carson v John Fairfax & Sons Ltd [2003] HC 31;(1993) 178 CLR 44, at 66. Furthermore, for an award of aggravated damages to be based on a failure to apologise, that course must be particularised as being part of a course of improper or unjustifiable conduct, which has not occurred in this case: Clark v Ainsworth (1996) 40 NSWLR 463, at 469, but not on account of the further broadcast to a wider audience on 3 May 2011, as that submission was not based on particulars, and it only arose in the course of final submissions, which gave rise to an objection as to its timing, which I consider to have been an objection justifiably made.
I now return to the matter of Mr Hadley's interview with the plaintiff on 3 May 2011 in the context of whether those circumstances should sound in aggravated damages.
That interview took place notwithstanding the fact that there was outstanding litigation still on foot between the parties, which was being vigorously contested, and where the parties had solicitors acting for them, and where there were no other avenues of communication open between them other than through their respective lawyers.
In that context, with the trial date already fixed, Mr Hadley had decided to canvass matters that were the subject of the litigation, and where it could be reasonably inferred he must have known the content of this interview could possibly be used for a purpose other than entertaining his listeners, namely for the purpose of attempting to embarrass, if not defeat the plaintiff's claim. That purpose may be arguably seen as lacking in bona fides and unjustifiable. I consider this to be so because of the content of the interview in which the plaintiff was encouraged to engage in discussion with Mr Hadley in a manner that was critical of his situation.
I infer from these circumstances, and from the contents of the interview as shown in the transcript, that it would appear Mr Hadley's purpose was to attempt to assist himself in the defence of the plaintiff's proceedings.
On the foregoing analysis, the plaintiff sought to demonstrate his entitlement to aggravated damages in respect of that conduct by Mr Hadley, for which the second defendant would be responsible, if that submission was to be accepted.
However, in my view, this aspect of the claim has not been made out. At all times, the plaintiff had the option of whether or not he should speak with Mr Hadley on 3 May 2011, or even whether he should continue to speak to him as he was being drawn further into the conversation. In my view he decided to participate in that interview for his own stated reasons, and he cannot reasonably be heard to complain of the consequences, where he later became dissatisfied with the impression that was conveyed of him in that broadcast.
I now turn to the matters complained of by the plaintiff arising from the cross-examination of him, which he argues as a basis for his claim for aggravated damages.
This concerned the cross-examination of Mr Habib to the effect that he was " making up " what he was saying in his evidence about his mental condition in February 2005: T137.32 - 33.
The complaint is that this question was put to Mr Habib in circumstances where the evidence as to his mental condition, as described in the opinions of Professor Tennant, and his general practitioner, Dr Alameddin, was not challenged, and was not contradicted by other medical evidence.
On behalf of the defendants it was submitted, in defence of the question under scrutiny here, and in resistance of a claim for aggravated damages, that the question was a legitimate one which was permissibly put to the plaintiff in the course of a challenge made to his credit.
There is little room for doubt that when cross-examining a witness on the credit, the cross-examiner is able to draw upon a variety of confrontational techniques to seek to highlight credit issues. The question under present consideration, and which was adopted by senior counsel for the defendants in his cross-examination of Mr Habib in this case, is but one of those techniques, and there can be no criticism of senior counsel for taking that course.
However, that is not the end of the analysis, because the employment of that technique, if unsupported by other evidence or concessions which serves to traduce or embarrass the plaintiff's responses, comes at a forensic price where the subject matter of the questions, here the assertion the plaintiff was giving made-up or false evidence, is a type of dishonesty that transcends the particularised type of dishonesty that concerned the plaintiff's dealings with Centrelink over his entitlement to a disability pension.
In my view, in the absence of medical evidence of that kind to provide a basis for an assertion that the plaintiff was making up his evidence about his mental condition, a matter for opinion, indicates that the ensuing unsuccessful credit challenge would be likely to, and in this case did in fact, aggravate the plaintiff's sense of grievance at being accused of dishonesty.
Accordingly, I consider that the plaintiff has made out a case for aggravated damages in respect of the challenge in cross-examination to the effect that he was making-up what he said about his mental condition in February 2005. The assessment of such aggravated damages is a matter for impression.
Having formed the impression that the effect of the aggravating factors on the plaintiff was significant, I assess the plaintiff's entitlement to aggravated damages as against the first defendant in respect of the broadcast by Mr Laws, and taking into account the interchange in which Mr Price and Mr Laws discussed the prospect of giving the plaintiff a disability, and also taking into account the attack made on the plaintiff in cross-examination to the effect that the plaintiff was making-up what he was saying about his mental condition in 2005, in the aggregate sum of $25,000;
In assessing this amount for aggravated damages I am mindful of the need to take care to avoid overlap of general compensatory damages and aggravated damages, both being forms of compensatory damages, as that could lead to over-compensation. Were it not for that factor, my assessments of the separate amounts for aggravated damages would have been significantly increased in this case.
Interest
In his statement of claim the plaintiff makes a claim for interest on damages. That claim can only relate to the claim for past compensatory damages between the time of the broadcasts on 18 August 2005, and the date of judgment, a period of 6.52 years.
In this case I see no reason why the plaintiff should not be awarded interest on general compensatory damages at the full rate of 4 per cent on the whole amount of general compensatory damages. The principle is that unless there are exceptional circumstances, the plaintiff is to be compensated with interest on his damages during the period the defendant has continued to have the benefit of such monies to the detriment of the plaintiff: s 100 of the Civil Procedure Act 2005; Marsland v Andjelic (No 2) (1993) 32 NSWLR 649, per Kirby P and Meagher JA at 652.
I do not consider there are exceptional circumstances in this case. Accordingly, I consider that the plaintiff is entitled to interest.
On the assessment of damages of $70,000 in respect of the broadcast by Mr Laws, interest at 4 per cent on $70,000 over 6.52 years is assessed in the sum of $18,256.
On the assessment of damages of $25,000 in respect of the broadcast by Mr Price, interest at 4 per cent on $25,000 over 6.52 years is assessed in the sum of $6520.
On the assessment of damages of $25,000 in respect of the broadcast by Mr Hadley, interest at 4 per cent on $25,000 over 6.52 years is assessed in the sum of $6520.
In aggregating the first two of these sums, I assess the interest payable to the plaintiff by the first defendant in the sum of $24,776. I assess the interest payable to the plaintiff by the second defendant in the amount of $6520.
E. DISPOSITION, COSTS & ORDERS
Disposition
The defendants have failed to establish their defences. Mr Habib has succeeded against the first defendant and he is entitled to an award of damages against that defendant in the total sum of $95,000. Mr Habib has also succeeded against the second defendant and he is entitled to an award of damages against that defendant in the total sum of $25,000. In each instance, interest is respectively assessed in the sum of $24,776 against the first defendant, and $6520 against the second defendant. This results in a judgment for the plaintiff against the first defendant in the sum of $176,276, and a judgment against the second defendant in the sum of $31,520
Costs
The result of the proceedings in which the plaintiff is to recover a total award of $176,296, requires that the defendants should pay Mr Habib's costs of the proceedings on the ordinary basis unless either party can establish an entitlement to some other costs order. The parties have leave to apply for a variation of the costs order I propose to make in favour of the plaintiff if they consider there are circumstances that warrant a departure from the usual order made at the conclusion of proceedings.
Orders
On Mr Habib's claim against the first defendant Radio 2UE Sydney Pty Limited, in respect of the broadcasts by Mr Laws and Mr Price on 18 August 2005, I make orders as follows:
(a) Verdict for Mr Habib on his claim in respect of pleaded imputations in paragraphs 3(c)(ii) and 5(a)(i) of the further amended statement of claim filed on 8 April 2011;
(b) General compensatory damages are assessed as follows;
(i) $70,000 in respect of the broadcast by Mr Laws;
(ii) $25,000 in respect of the broadcast by Mr Price;
(c) Aggravated damages are assessed in the sum of $25,000 in respect of the broadcast by Mr Laws;
(d) Interest on past general compensatory damages is assessed at $24,776;
(e) Judgment in favour of Mr Habib against the first defendant in the sum of $144,776.
On Mr Habib's claim against the second defendant Macquarie Radio Network Pty Ltd, in respect of the broadcast by Mr Hadley on 18 August 2005, I make orders as follows:
(a) Verdict for Mr Habib on Mr Habib's claim in respect of pleaded imputations in paragraph 7 of the further amended statement of claim filed on 8 April 2011;
(b) General compensatory damages are assessed at $25,000 in respect of the broadcast on 18 August 2005 by Mr Hadley;
(c) Interest on past general compensatory damages are assessed at $6520;
(d) Judgment in favour of Mr Habib in the sum of $31,520.
The defendants are each to pay Mr Habib's costs on the ordinary basis unless otherwise ordered.
The exhibits may be returned on the application of the parties.
Liberty to apply on 7 days notice if further orders are required.
**********
Appendices A to E
Decision last updated: 24 February 2012
3
13
3