Jamoo v Nationwide News Pty Ltd

[2004] NSWSC 126

CITATION:	George Jamoo v Nationwide News Pty Ltd [2004] NSWSC 126
HEARING DATE(S):	02.03.04; 03.03.04; 04.03.04; 08.03.04
JUDGMENT DATE:	25 March 2004
JUDGMENT OF:	Nicholas J
DECISION:	Judgment for the Plaintiff in the amount of $79,200.00
CATCHWORDS:	Defamation - Assessment - Damages - loss of earning capacity - aggravated compensatory damages for failure to apologise and falsity of imputations
LEGISLATION CITED:	Defamation Act 1974 (NSW) ss 7A, 9, 46, 46A
CASES CITED:	Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Browne v Dunn (1894) 6 R 67 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 Crampton v Nugawela (1996) 41 NSWLR 176 Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165 Harrison v Mirror Newspapers Ltd (1982) 149 CLR 293 Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504 Markovic v White [2004] NSWSC 37 Rogers v Nationwide News Pty Ltd [2003] HCA 52 Selecta Homes and Building Co. Pty Ltd v Advertiser-Weekend Publishing Co. Pty Ltd (2001) SASC 140 State of NSW v Moss [2000] NSWCA 133 Thomas v van der Yssel (1976) 14 SASR 205
PARTIES :	Geroge Jamoo - Plaintiff Nationwide News Pty Ltd - Defendant
FILE NUMBER(S):	SC 20338/02
COUNSEL:	T Molomby SC - Plaintiff J Sackar QC/D Sibtain - Defendant
SOLICITORS:	John McEncroe & Company - Plaintiff Blake Dawson Waldron - Defendant

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

Nicholas J

25 March 2004

20338/02 George Jamoo v Nationwide News Pty Ltd

JUDGMENT

Introduction

1 His Honour: The Plaintiff, George Jamoo sues the Defendant, Nationwide News Pty Ltd for damages for defamation. The Defendant is the publisher of the newspaper “The Daily Telegraph” which circulates within New South Wales, The Australian Capital Territory and to some extent in other states of Australia.

2 The publication sued upon was the edition of the newspaper of 18 June 2002. In its business section in the column entitled “Bottom of the Harbour”, the relevant article appeared under the heading “Karl’s clobber had its price”. The full text of the article is annexure “A” to these reasons.

3 On 10 March 2003 a jury determined that the article conveyed the following imputations which it found to be defamatory of the Plaintiff:

“(b) That he took part in removing large sums of money from the Karl for Men account, shortly before that business went into liquidation, to prevent those funds falling into the hands of the liquidator”.
(d) That he paid $40,000 from the Karl for Men account, which should have been paid to the liquidator of the business, to Karl Suleman”.

4 There is no defence. The matter has proceeded only for the assessment of damages. The Plaintiff claims compensatory damages, including aggravated damages, and damages in respect of some financial loss.

5 The oral evidence for the Plaintiff was from himself and Dr Fawzy Soliman. The Defendant called no witness. Each party relied upon documentary evidence.

6 I find that the Plaintiff and Dr Soliman were truthful witnesses whose evidence I accept.

The Plaintiff

7 The Plaintiff is a company director, 41 years of age, married with two infant children. He is of Assyrian descent and migrated to Australia in 1979. He graduated as a Bachelor of Science from the University of Sydney in 1988, and in 1992 undertook a postgraduate computer course at the University of Technology, Sydney (the University).

8 In about 1989 the Plaintiff started employment in the computer industry. From February 1994 to August 1998 he was employed by Sun Microsystems Aust. Pty Ltd as a technical support engineer. During that time his performance was recognised by an Employee of the Year Award. Upon being approached, he accepted employment with IBM Global Services Australia Pty Ltd in September 1998 for an increased salary, and was engaged in the implementation of large computer systems until he left in about July 1999. He received a monetary bonus in recognition of his work. Again, upon being approached, he accepted employment with G. E. Capital I.T. Solutions (later taken over by CSC Australia Pty Ltd) as a senior specialist from August 1999 until August 2001. This employer rewarded his performances with several salary increases. His salary whilst with CSC Australia Pty Ltd ranged from $150,135.00 to $159,293.00. During the period 1991 to 1999 he undertook training courses for his employers on numerous occasions, including attendance at symposia and courses in the United States of America. During 1999 and 2000 he published papers at conferences in New Zealand, Sydney and Singapore.

9 It was his belief that he was very well known in the computer industry, and was respected as a person with a high level of expertise, dedicated to his work, and willing and able to assist in resolving difficult problems. His opinions and assistance were sought by many, not limited to fellow employees.

10 In September 1995 he stood, unsuccessfully, as an independent candidate for election to the Fairfield City Council, assisted with conventional campaign publicity.

11 The Plaintiff gave an account of his activities at the University. He began his PhD course and the teaching of business courses in 1998. He taught various classes in the academic years from 1998 to 2000, and 2001 to 2002. He had regular discussions with staff and students about his work and teaching, enjoyed a good relationship with them, and understood he was highly respected by staff because of his teaching, his experience in the industry and feedback from students.

12 Since arrival in Australia he has been closely involved as a member of the Assyrian community in Sydney, participating in social activities such as weddings and picnics, and tutoring children. He is associated with the Assyrian Club, the Marconi Club, and the Mounties Club, and in the years 2000 and 2001 would visit them twice a week. Until 2002 he was a regular churchgoer. For many years up to the middle of 2002 he regularly swam, jogged, played snooker and soccer.

13 The Plaintiff gave evidence of his association with a Mr Karl Suleman who was well known as an entrepreneur and businessman, particularly in the Assyrian community. Many members of that community invested money in Mr Suleman’s businesses in the hope of gaining high returns.

14 The Plaintiff was introduced to Mr Suleman in May 2001. He agreed to design a database for Karl Suleman Enterprizes Pty Ltd, the business of which was the collection of shopping trolleys, and to fix computer problems for Froggy Holdings Pty Ltd on a consultancy basis. The Plaintiff resigned from CSC Australia Pty Ltd on 17 August 2001 intending to work full-time for Mr Suleman. He told his family and friends of this intention. Subsequently he joined Mr Suleman in the operations of Karl for Men Pty Ltd, a clothing retailer in Redfern. They were its directors and shareholders. The arrangement was that Mr Suleman provided capital and the Plaintiff provided his services as manager for which he would receive wages and share the profits with Mr Suleman. The company commenced operations on 2 November 2001 and ceased on 11 November 2001.

15 The Plaintiff said that on 11 November 2001 Mr Suleman requested him to take over and run the business, and he agreed to do so. For that purpose on 12 November 2001 Collezione Italia Pty Ltd was formed of which the Plaintiff was the sole director. It acquired the assets of Karl for Men Pty Ltd including its stock and cash, the value of which was about $860,000.00. It was intended that it be run on the same basis as Karl for Men Pty Ltd. It ceased trading on 28 December 2001 when the Plaintiff put it in the hands of a liquidator. He said that in the takeover process he transferred cash in the sum of $40,000.00 out of Karl for Men Pty Ltd into the George Jamoo Trust account which sum was ultimately paid to the liquidator.

16 By November and December 2001 there was much adverse press publicity concerning Mr Suleman and his affairs. By about January 2002 the thrust of the publicity was to brand Mr Suleman as dishonest and guilty of defrauding investors. The press clippings contained in Exhibit 3 demonstrate that publicity to this effect continued until July 2002 and there were similar articles published on occasions in 2003 and 2004. The Plaintiff was concerned that he might have been affected by this publicity by reason of his business association with Mr Suleman. He was disappointed that his former partner had acted dishonestly, particularly with those investors who were his friends. He felt embarrassment that his trust and judgement of Mr Suleman had been misplaced. The collapse of Mr Suleman’s businesses generated much discussion in the Assyrian community.

17 It was the Plaintiff’s intention after the collapse of the Suleman-associated businesses to concentrate on his studies for the first half of 2002. He was financially able to do so and without the need for employment.

18 On 17 June 2002 the Plaintiff attended the Supreme Court and was examined before the Deputy Registrar in relation to Mr Suleman’s affairs pursuant to the Corporations Act, 2001. The transcript of his evidence was Exhibit G. It establishes the falsity of the imputations, an issue which was not contested by the Defendant.

19 In early June 2002 he applied for leave of absence from his studies for six months to enable him to attend a family wedding in Syria. It was his intention to teach in the later part of 2002 after his return and to continue teaching in 2003. It was also his intention to start seeking full-time employment after his return, probably at the end of August 2002. He intended to resume his studies in February 2003 and to complete them by June 2003.

Jonathan Homes Pty Ltd

20 The evidence as to the nature and extent of the Plaintiff’s involvement in the operations of Jonathan Homes Pty Ltd is relevant to his claim for damages for loss of employment. It is thus necessary to provide some detail of it.

21 The account given in chief was succinct. It was that the Plaintiff and his brother established the company in October 1997. They are its directors and shareholders. Its business is the construction and development of properties. The Plaintiff’s involvement in its operations has been, and continues to be, with administration. His work includes liaising with banks and real estate agents whenever necessary, and inspecting sites from time to time. This he has done continuously even whilst engaged in full-time work and whilst studying and teaching at the University.

22 Under cross-examination the Plaintiff was questioned as to the history of the company’s activities and details of his involvement with it. As Exhibit 4 shows, between December 1997 and August 2003 the company has been undertaking projects which involve substantial sums of money. For example, the development at 342 Old Northern Road, Castle Hill consists of 30 townhouses now under construction with an estimated gross sale price of $18 million. Although the company pays him no salary it pays many of his personal expenses including medical and legal expenses, children’s school fees, and traffic fines.

23 For all these projects the Plaintiff negotiates with banks the terms and conditions of loans, and with real estate agents the marketing strategies, and with councils the conditions of development applications and approvals. He and his brother attend to financial matters including those relevant to the preparation and payment of progress claims. He assists his brother in finding properties and evaluating their development potential. The effect of his evidence was that the company’s demands upon his time are significantly less than those upon his brother’s time.

24 As to the Castle Hill project, the Plaintiff’s concern is that the associated commercial risk is such that if it fails everything, including his house, will be lost. He keeps a special eye on its progress, but says that his involvement with the other projects is to a similar extent.

25 Relevantly, the projects which require his services are those at Castle Hill, acquired 7 September 2001, at Lithgow, acquired 19 November 2002 and 17 March 2003, at Shellharbour, acquired 1 July 2003, and at Mount Hutton, acquired 19 August 2003. The only evidence as to specific activity within this period was that construction at Castle Hill began in August 2002, prior to which the Plaintiff was liaising with architects, engineers, and the council to obtain development approvals. Associated marketing activity took place, apparently later that year or early 2003.

Dr Soliman’s evidence

26 Dr Fawzy Soliman is a Doctor of Philosophy with a Master of Science degree. Since 1990 he has been a senior lecturer at the University where he is now the Course Director of Operation Management. He is a supervisor of PhD students. The following is a summary of his evidence.

27 Continuously since 1998 he has supervised the Plaintiff’s PhD studies which involves frequent contact with him. In accordance with University policy he offered the Plaintiff part-time teaching under his supervision. The feedback he received from students in relation to his teaching was quite positive, very good, and that he was always helpful. During the period from 1998 to the first half of 2002 feedback from staff was the same. Dr Soliman considered that the Plaintiff’s standard of lecturing was good, and that he was progressing well with his studies and thesis.

28 Dr Soliman’s attention was drawn to the article by a student a few days after its publication. The student expressed concern about the Plaintiff and questioned whether he would be continuing to mark examinations. Dr Soliman made a copy of the article and filed it. The impression given to him by the article about the Plaintiff’s integrity or honesty was not very good, something different from what he knew about him. He felt that the fact that the students knew about the article would not make it easy for him to engage the Plaintiff as a teacher the next semester.

29 Soon thereafter Dr Soliman requested the Plaintiff to meet him. At the meeting he questioned the Plaintiff about the article. The Plaintiff denied everything in it. Dr Soliman’s evidence was (T p 132):

“… there was a question mark as soon as I seen (sic) the article but he managed to ease my fear a little bit. But once again the article is there and the issues are there”.

30 During the next few weeks two full-time staff members and some students on separate occasions referred him to the article and made comments adverse to the Plaintiff. The discussion about the article took place in late June.

31 Dr Soliman next saw the Plaintiff in early August 2002 and observed that he appeared unhappy, depressed and unwell. The Plaintiff began lecturing in the August semester, but early on students complained that they were unhappy about his lack of effort. Dr Soliman spoke to the Plaintiff about these complaints and decided to replace him in order to avoid any backlash from the students. As a result, the Plaintiff ceased lecturing in August 2002. Dr Soliman also suggested that the Plaintiff consult a medical practitioner.

32 Furthermore, Dr Soliman advised the Plaintiff to take leave of absence from his PhD studies if he was unwell. In fact, the Plaintiff resumed those studies in March 2003 at which time he said he was not working and was able to finish his PhD. In about June 2003 he passed an examination and was working to Dr Soliman’s satisfaction.

33 He was asked for his opinion as to the impact on people in the computer industry of having said about someone that he took part in removing large sums of money from the Karl for Men account shortly before that business went into liquidation to prevent those funds falling into the hands of the liquidator. Dr Soliman said that he would think it was very negative. He went on to say (T p 142):

“…. In fact it would be very negative given that in the computer industry especially that sensitive information and files requires (sic) high integrity. That article doesn’t help in that regard, so obviously it would be negative, that’s my view”.

The impact of the publication

34 On the afternoon of 18 June 2002, whilst working in the University library the Plaintiff received a phone call from his niece who told him that his photograph was in the newspaper. He thereupon purchased a copy from a nearby newsagent and read the article, annexure “A” to these reasons.

35 His reaction upon reading it was that what was said about him was untrue. The column’s title, “Bottom of the Harbour” suggested wrongdoing; his photograph would lead to his recognition and association with the matters described. No doubt with reference to the imputations, he denied that he had taken money out of the Karl for Men account to prevent it going to the liquidator. He understood the article to be saying he was a thief, a crook, that he played a part in bringing down investors, and that he could be bought by Mr Suleman. Under cross-examination he confirmed that his overwhelming impression from the article was that it alleged that he was a thief and a crook who had stolen investors’ money. This and other allegations upset him deeply because he regarded himself as a person of the utmost integrity who always acted honestly.

36 The Plaintiff was concerned that readers, including many in his community, investors who had lost money, students, and colleagues with whom he had worked would also see him as a thief.

37 Later that day he returned home to an emotional confrontation with family members. His mother was crying. His brother, with whom he had always been very close, shoved the newspaper in his face and accused him of shaming the family, and of stealing money and giving it to Mr Suleman. That night he was unable to eat or sleep. A few days later his wife left their bedroom to sleep in another.

38 On 19 June 2002 the Plaintiff consulted his solicitor. He later composed the letter dated 24 June 2002 to the Defendant seeking an apology and the same day personally delivered it to the Defendant’s premises in Holt Street, Surry Hills. It is Exhibit K. It was his belief that he would receive an apology and he told his family so. For months he hoped an apology would be forthcoming, as did his family. All hoped that an apology would demonstrate to the public that he was not a thief, and would clear the name of the family.

39 A few days later the Plaintiff saw his university supervisor, whom I take to be Dr Soliman, who questioned him about the article. The Plaintiff denied that he was a thief and showed him the bank statement for Karl for Men Pty Ltd to demonstrate the falsity of the assertion that in October 2001 money was “whooshing out of” its account.

40 The next week, at the Mounties Club, in response to questions from friends who had been investors in Mr Suleman’s business he denied he gave investors’ money to Mr Suleman. Their response was to laugh at him which he said caused him the biggest hurt “because of my respect and reputation”.

41 Prior to publication he believed he enjoyed the respect of his family, his community and his peers at university. After publication he felt deprived, humiliated, had lost confidence and felt he had lost all that he had believed in and worked for.

42 During the two weeks after publication the Plaintiff received many phone calls from unidentified callers whom he thought were students. Some laughed, some suggested he had taken money. On 23 June 2002 he received an e-mail from a student which referred to the article and wished him well with the case. She thanked him for being a great tutor. His reaction was disappointment as it indicated to him that she thought he was in trouble which was not the case.

43 The Plaintiff’s health was adversely affected by the publication. His condition remained substantially the same from the time of publication until the end of 2002. He lost weight, had problems with eating and sleeping, had headaches, lost concentration and became forgetful and irritable. Lack of sleep made him drowsy and sometimes he slept during the day.

44 On Dr Soliman’s advice he attended a doctor and then, on 7 August 2002, a psychiatrist. She prescribed the medication Orix. On 8, 23 and 29 August 2002 he attended his family doctor, Dr Aran, who prescribed medication for sleeping. On 4 September 2002 a Dr Amen prescribed the medication Zoloft. On 18 September 2002 a Dr Samad increased the dosage to two tablets per day. He also prescribed Doxapin and Diazepan. Thereafter, the Plaintiff consulted Dr Samad on nine occasions, the last being on 31 July 2003. There was no evidence as to the medicinal or therapeutic qualities of the drugs or of the condition for which they were prescribed. I infer no more than that they were anti-depressants.

45 The medication made the Plaintiff argumentative. He quarrelled with his wife and mother. The situation generated problems in the household which resulted in his mother leaving their home in December 2002. His wife continued sleeping in a separate bedroom until February 2003.

46 In about December 2002 he learnt that the 7A trial was fixed for 10 March 2003. He felt all was going to be well, and stopped taking his medication. His optimism continued and after success at the trial he felt much better physically and mentally. His wife also felt better, and thereafter their relationship improved. In early March 2003 he resumed work on his PhD, and his attitude was that he wanted to get better, not to be on medication, to finish his course, and to get along with his life. Although his evidence is not clear, it seems that he continued to take medication sporadically until about May or June 2003.

47 He has continued with the course, and hopes to finish his PhD by December 2004.

48 The Plaintiff resumed part-time lecturing at the commencement of term in early August 2002 but continued only to the end of that month. He stopped at the request of Dr Soliman. He did not teach for the rest of the year. On a visit to his former class in November 2002 he was told by two students that they had seen the article, that the newspaper had been shown to everybody and that everyone knew about it. Although he wanted to resume lecturing in the first half of 2003 he did not do so because of difficulty of concentration. In fact he resumed in August 2003, successfully, and has continued teaching to the present time.

49 He and his wife had planned to attend a family wedding in Syria in August 2002. He declined to go with his wife because of the publication, thereby disappointing and giving great offence to her family. Because he did not wish to see anybody as a result of the publication he attended church only a few times in the second half of 2002, and rejected invitations to social functions such as weddings and engagements until April 2003. Because he had no drive he gave up his sporting activities and did not resume them until about June 2003.

50 In August 2003 he sought full-time employment for the first time. He did so by communicating with several employment agencies, and responding to advertisements but without success. The correspondence with the agencies is Exhibit J, but in final submissions for the Plaintiff it was not relied upon.

Relevant principles as to assessment of damages

51 Section 46(2) Defamation Act 1974 (NSW) (the Act) provides that damages for defamation shall be the damages recoverable “in accordance with the common law, but limited to damages for relevant harm”. “Relevant harm” is defined as “harm suffered by the person defamed” (s 46(1)(a)).

52 Section 46(3)(a) provides that damages for defamation shall not include exemplary damages, and sub-para (b) provides that such damages “shall not be affected by the malice or other state of mind of the publisher at the time of the publication complained of or at any other time, except so far as that malice or other state of mind affects the relevant harm”.

53 In Rogers v Nationwide News Pty Ltd [2003] HCA 52, Hayne J, para 60 observed that:

“The three purposes to be served by an award of damages for defamation are identified in the joint reasons in Carson v John Fairfax & Sons Ltd : (i) consolation for the personal distress and hurt caused to the appellant by the publication; (ii) reparation for harm done to the appellant’s personal, and in this case, professional reputation; and (iii) the vindication of the appellant’s reputation. As pointed out in Carson : the first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant; vindication looks to the attitudes of others”.
(Footnotes omitted).

54 His Honour went on to point out (para 67) that assigning a money sum as sufficient to remedy personal distress, hurt and harm to reputation and to vindicate a plaintiff’s reputation translates losses which have no market value into amounts of money. He said:

“… But in neither defamation nor in other cases of non-pecuniary loss can any standard of evaluation be employed except one that is described in qualitative and therefore necessarily imprecise terms. The damages that may be awarded “are such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man””.

55 I must also have regard to the requirements of s 46A of the act which provides:

46A Factors relevant in damages assessment
(1) In determining the amount of damages to be awarded in any proceedings for defamation, the court is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded.
(2) In determining the amount of damages for non-economic loss to be awarded in any proceedings for defamation, the court is to take into consideration the general range of damages for non-economic loss in personal injury awards in the State (including awards made under, or in accordance with, any statute regulating the award of any such damages).

56 No submissions were made as to the application of this section in this case. I respectfully agree with the view of Levine J in Markovic v White [2004] NSWSC 37, para 35 that the real exercise is that provided for in s 46A(1), namely to ensure that there is an appropriate and rational relationship between the relevant harm as provided on the evidence and the amount of damages awarded.

57 In Rogers (supra, para 73) Hayne J held that s 46A should not be understood as prescribing a particular, let alone a mathematical, relationship between the damages to be awarded for defamation and the damages for non-economic loss in personal injury awards. He said that it is of the first importance to recall the fundamental principle that the damages to be awarded for defamation must compensate for the effect of the defamation on the particular plaintiff.

Matters for assessment

58 The Plaintiff’s claim is for compensatory damages for injury to feelings, the harm occasioned to his reputation, and for vindication. He claims aggravated compensatory damages for the publication of false imputations and for the failure to apologise, and damages for loss of income from employment as a lecturer at the University and as a technical expert in the computer industry.

59 In support of the claim for hurt to feelings reliance is placed on the hurt resulting from the Plaintiff’s belief that the matter complained of conveyed imputations to the effect that he was a thief and a crook who had been responsible with Mr Suleman for investors losing money. Mr Molomby SC put that when read in the context of the article as a whole in the column entitled “Bottom of the Harbour” the imputations would suggest to the reasonable reader that the Plaintiff’s conduct was dishonest. He submits that the Plaintiff’s evidence should be understood as expressing in layman’s terms his belief as to meanings which are not substantially different from, and carry the same sting as, the imputations found by the jury.

60 For the Defendant, Mr Sackar QC argues that the Plaintiff’s belief is as to imputations which are substantially different from those found. He accepts that the Plaintiff is entitled to complain of the real sting of those imputations, namely that the conduct described was wrongful, but puts that it is not reasonably open to assert that it equates with theft, guilt of stealing investors’ money, or similar criminal conduct. He puts that when the imputations are read in context, particularly with regard to the following passage in the article:

“Around early October, a month before the KSE collapse and subsequent impoverishment of several thousand investors, money started whooshing out of the Karl For Men account in big licks.
Suppliers had to be paid, Jamoo said, and once that was done he kept $40,000 in a safe at his home briefly before passing it on to Suleman.
He told the court he paid all remaining monies to KSE’s liquidator.’

the meaning(s) derived by the Plaintiff is(are) incapable of arising from the matter complained of, alternatively neither have been considered nor found by the jury.

61 Importantly, he puts that the jury was not asked to consider whether the matter conveyed an imputation that the Plaintiff was a thief, was guilty with Mr Suleman of stealing investors’ money, or had acted dishonestly in preventing money from the Karl for Men account being paid to the liquidator.

62 Mr Sackar QC finally submitted that the Plaintiff is not entitled to be compensated for hurt to feelings resulting from his belief in imputations not found to have been conveyed. He referred to Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504 at p 501D where Hunt J said:

“Where a plaintiff identifies an imputation which is ultimately taken away from the jury, or one which the jury itself ultimately rejects, the injury to the plaintiff’s feelings resulting from or induced by his belief that such an imputation was conveyed by the matter complained of must be ignored, for it did not result from the defendant’s publication”.

(I take it that by referring to an imputation which is ultimately taken away from the jury His Honour would also include an imputation which had not been pleaded for the jury’s consideration).

63 Reference was also made to Selecta Homes and Building Co. Pty Ltd v Advertiser-Weekend Publishing Co. Pty Ltd (2001) SASC 140 para 144 in which Gray J stated: “When some of the defamatory imputations in a publication are actionable, the judge must eliminate from his mind those which are not. The judge must ascertain the actual defamation and assess damages in relation to the injury caused by that defamation”. In support, His Honour cited the passage in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, para 183 in which Kirby J said:

“Irrelevant considerations such as the existence of other discreditable matter which might have been published of the plaintiff, but was not, or the existence of some accurate allegations in the midst of unsustainable ones must simply be put out of mind. The plaintiff is only entitled to recover damages for the actionable wrongs proved”.

64 In New South Wales, of course, pursuant to s 9(2) of the Act, the actionable imputation or wrong is the imputation which has been found by the jury under s 7A(3) to be carried by the matter complained of and to be defamatory. The pleaded imputations are meanings which the Plaintiff alleges the reasonable reader will give to the article and the Plaintiff having thereby set the scene for the contest will be bound by the substance of them. (Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165 per Mason P paras 18, 19). Thus the Plaintiff’s claim for damages is limited to the harm resulting from those imputations and not others. The approach to be taken by the Court as indicated in Hughes, Selecta, and Chakravarti is consistent with statements which hold that a publisher is liable for the reasonable reader’s understanding of what the matter is saying but not for judgments or conclusions which he may reach as a result of his own beliefs and prejudices. (Harrison v Mirror Newspapers Ltd (1982) 149 CLR 291 at p 301; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at p 172). It follows that the Plaintiff’s hurt from the belief or knowledge that a person understood the matter to convey a meaning which is not open, or is substantially different from the found imputation, is not compensable.

65 The Defendant’s submission that the imputations found are incapable of reasonably suggesting that the Plaintiff was guilty of theft or similar criminality should be accepted. In my view the correct approach to be taken is upon the basis that the imputations reasonably understood in the context of the article suggest that the Plaintiff acted wrongfully in respect of the Karl for Men monies, ultimately to the detriment of investors.

66 These imputations (or ones not substantially different from them) fall short of allegations of guilt of dishonest conduct in the sense contended for by the Plaintiff. It seems to me that if the Plaintiff’s submissions were accepted it would allow the conversion of the imputations of wrongful conduct as found by the jury on the issue of liability into imputations of wrongful conduct of a substantially more serious degree on the issue of damages, a result which would be obviously unfair and unjust to the Defendant.

67 Nevertheless, it is plain that the Plaintiff was deeply distressed by the defamation and the shame he felt it brought upon him and his family. I am satisfied that a significant contribution to this distress was his awareness that it was published to members of the Assyrian community many of whom had been investors, as well as to students and university colleagues. References to the article by such people on occasions during the year undoubtedly revived and prolonged that concern.

68 There is much evidence of matters resulting from the publication as he understood it which intensified his hurt and caused it to endure for some months. This includes the confrontation with his brother, wife and mother on the day of publication, the family problems and arguments thereafter and the unfortunate consequences from declining to attend the wedding in Syria. He spoke of his humiliation, loss of confidence and the feeling that he had lost all he had believed in and worked for, and of what he described as his biggest hurt when laughed at in the Mounties Club by friends who had been investors.

69 A relevant factor to be taken into account is that his distress was such that it adversely affected his mental and physical health with the result that he ceased teaching, social and sporting activities and did not resume them until various times in 2003.

70 I accept entirely that imputations suggestive of wrongful conduct to the detriment of investors which were in fact conveyed by the article would have caused distress and hurt to the Plaintiff somewhat of the general kind described by him, but not to the same degree. The gravity of the found imputations is plainly less than that or those to which the Plaintiff attributed his subjective hurt. In assessing the component for damages under this head care must be taken to ensure that compensation for which the Defendant is liable is not awarded at a level higher than that justified by the publication of the found imputations.

71 Another factor on which the Plaintiff is entitled to rely in the award of compensatory damages in the circumstances of this case is the failure to apologise (cf: Markovic (supra, paras 26, 30)). The Defendant accepts that such failure supports an award of aggravated damages, a concession properly made. In his letter of 24 July 2002 to the Defendant the Plaintiff clearly identified the errors in the article and demonstrated the validity of his complaint with reference to the transcript of the proceedings to which the article referred. Reasonable conduct on the part of the Defendant compelled prompt acknowledgment and publication of an appropriate apology. Even when the jury found in favour of the Plaintiff the Defendant did not respond or offer to apologise. That none was forthcoming I find to have increased the Plaintiff’s hurt because, for him, its publication was of special significance as it was an important means by which his name and shame, and that of his whole family, would be cleared. The Defendant’s unexplained failure was improper and unjustifiable, and will be given due weight in the overall assessment. It justifies an increase in the amount which would otherwise have been awarded.

72 The Defendant also, quite properly, accepted the falsity of the imputations and that the Plaintiff was upset by their publication and, in the circumstances, that he is entitled to aggravated damages for such publication. I am satisfied the Plaintiff’s hurt was intensified by his knowledge that the defamatory matter published widely was false and that, in the circumstances, he is entitled to an increase in the amount which would otherwise have been awarded.

73 The Plaintiff is entitled to compensation for damage done to his reputation by the publication of the found imputations. The evidence of the Plaintiff as to his employment in the computer industry and with the University, and of his involvement in his community, and the evidence of Dr Soliman as to the Plaintiff’s university activities and responsibilities, supports the finding that, prior to publication, the Plaintiff had a good general reputation as a reliable and trustworthy person. He developed this reputation in the computer industry, among staff and students at the University, and among his family and other associates.

74 I find that publication of the imputations had, and was likely to have, a damaging effect upon his reputation. An example is Dr Soliman’s reaction that the article reflected adversely on the Plaintiff’s integrity and honesty, and raised a question mark in his mind which caused him to ask the Plaintiff about it. Dr Soliman also spoke of references to the article by staff and students, and discussions in the weeks following publication. His view was that the impact on people in the computer industry of the imputation that the Plaintiff took part in removing large sums of money from the Karl for Men account shortly before that business went into liquidation to prevent those funds falling into the hands of the liquidator would be very negative given that the handling of sensitive information and files requires high integrity.

75 The evidence of the Plaintiff and of Dr Soliman was that some students and staff had the impression that the Plaintiff was in trouble over the matters described in the article. Although no one was called to give direct evidence that the publication caused him or her to think the less of the Plaintiff it may be readily inferred that, to varying degrees, the publication damaged his reputation among members of his family, the Assyrian community and others to whom he was known.

76 In assessing the appropriate component of the compensatory award for harm to reputation I accept the submission of Mr Molomby SC that a Court should heed the observations of Mahoney ACJ in Crampton v Nugawela (1996) 41 NSWLR 176 at p 193C that: “the trustworthiness, actual or reputed of a professional colleague is a matter of legitimate and ongoing interest”, and at p 195D: “In my opinion, the law should place a high value upon reputation and in particular upon the reputation of those whose work and life depend upon their honesty, integrity and judgment”.

77 Relevant to this component is the extent of publication, the evidence of which was the sales figures of the edition of the newspaper of 18 June 2002 as follows:

(a) The Australian Capital Territory 9,455

(b) New South Wales 403,603

(c) Victoria 205


(d) South Australia 240

(e) Queensland 3,554

(f) Western Australia 100

(g) Tasmania 0

(h) Northern Territory 185

78 The assessment also requires an estimate of the likely duration of reputational damage. Not surprisingly the evidence is of little assistance. Doing the best I can, I find that it is likely the substantial portion of harm occurred in the weeks immediately following publication and that the impact gradually diminished in the months thereafter. I infer that, absent evidence to the contrary, by about March 2003 - the time of the conclusion of the 7A trial and his resumption of studies under Dr Soliman’s supervision - any continuing impact on the Plaintiff’s reputation of the found imputations was likely to be small. In the result, of course, it will be necessary that the award be sufficient to serve as the vindication of his reputation.

79 The Plaintiff’s claims for financial loss are in respect of lost earning capacity for employment as a lecturer at the University, and in the computer industry. The basis of each claim is incapacity for work because of diminished power of concentration and depression caused by his reaction to the article.

80 For the Plaintiff it was submitted that his condition rendered him unfit to apply for and to perform full-time work from the time of publication to March 2003 and, on one view of the probabilities, until about May 2003 when Dr Samad reduced his medication. Mr Molomby SC claimed that the period for which he stands to be compensated is from early September 2002, when he would have applied for employment but for the publication, to March 2003 when it became reasonable for him to do so, such compensation to be at a rate of such earning capacity as found by the Court.

81 As for the claim for university employment, there is no issue. The Defendant accepts, as I find the evidence establishes, that the circumstances in which the Plaintiff stopped lecturing at the direction of Dr Soliman were caused by the publication of the article. He was thereby deprived of earnings from lecturing until the end of 2002. The evidence indicates that the academic year did not begin until March 2003 which is outside the specified period. It is also agreed that for the second half of 2002 the relevant rate of remuneration for lecturing was $6,846.00.

82 In the circumstances I find that the Plaintiff is entitled to compensation for loss of earning capacity as a lecturer for the period September 2002 until the end of that year in the amount of $6,846.00, which amount will be included as a component of the overall award.

83 The claim for loss of earning capacity for full-time employment in the computer industry is not straightforward. Its assessment necessarily involves evaluation of a number of factors.

84 For the Defendant Mr Sackar QC, over objection, submitted that the Plaintiff’s claim that he was incapable of full-time employment in the computer industry was inconsistent with his evidence as to the nature and extent of his activities on projects for Jonathan Homes Pty Ltd during the relevant period and thus should be rejected. The evidence of those activities is summarised in paras 20-25 above and need not be repeated. He argued that this evidence demonstrated that the Plaintiff was in fact capable of operating at a sophisticated intellectual level upon substantial projects and undermined the reasonableness of a claim that at the same time he was unable to seek or obtain full-time work in the computer industry. It was put that it was open to conclude that the Plaintiff was mentally and physically capable of seeking such work and that the true explanation for him not doing so was not disability but exercise of his choice not to do so. It was put that such a finding might be inferred from the evidence that the company paid many of the Plaintiff’s personal expenses, and that he was committed to the successful completion of the Castle Hill project and avoidance of the risk of its failure.

85 The evidence does not persuade me that the submissions on behalf of the Defendant should be accepted. The Plaintiff made it plain that the company did not require his full-time involvement, and that he had always been able to work for it whilst working full-time in the industry as well as teaching and studying. In my opinion the Plaintiff’s claim that he was, for the relevant period, disabled from full-time work as a specialist in the computer industry is not undermined by an ability to carry out for the company what was required of him from time to time. In short, the evidence elicited in cross-examination of the extent of his activities with the company, and of his capacity to perform them, is not inconsistent with his evidence that he was disabled from full-time work in the industry or, indeed, from teaching at the University.

86 Mr Molomby SC objected that it was not open to Mr Sackar QC to argue that the Plaintiff’s claim should not be accepted because of its inconsistency with his activities with Jonathan Homes Pty Ltd. It was contended that no such proposition had been put directly to the Plaintiff in cross-examination and in such circumstances the rule in Browne v Dunn (1894) 6 R 67 would operate to preclude the Defendant’s submission. Although I have rejected the Defendant’s submission it is appropriate to deal with the objection.

87 In my opinion the rule has no application in the circumstances of this case, and there was nothing unfair in receiving the Defendant’s submission. The Plaintiff gave evidence in chief of his activities with the company and was cross-examined extensively about them. The issue to which the cross-examination was directed was plain and it was open to his counsel to seek in re-examination of the Plaintiff explanation or clarification of matters arising from it if required, an opportunity which was not taken. Furthermore, the Defendant’s submissions were based upon the evidence of the Plaintiff himself, and not upon other evidence with which he was unable to deal.

88 Although no challenge was made to the credit of the Plaintiff in this case, in considering the Plaintiff’s complaint I find it apt to have regard to the observations in Thomas v van den Yssel (1976) 14 SASR 205 at p 207 of Bray CJ as to the rule in Browne v Dunn:

“But these principles cannot, in my view, be applied without qualification to a challenge to the witness’s credit generally, particularly the credit of a plaintiff in an action for damages for personal injuries in relation to his evidence about his symptoms and incapacities. Damages are always in issue. Such a plaintiff knows that the defendant will contend that his injuries do not deserve the sum which he himself has placed on them. And in many other cases the witness must know that the other side will contend that he is not telling the truth, and even in some cases that he is deliberately not telling the truth. I cannot assent to the proposition that counsel cannot argue or the court find that a witness is deliberately giving false evidence unless the witness is asked some such question as, “I put it to you that your evidence is false”, or “I suggest that that is a deliberate lie” or the like. Indeed a successful objection might be taken to such questions as needlessly offensive …”.

89 For the Plaintiff it is said that but for the publication it was his intention to seek full-time employment about the end of August 2002. He did not do so until August 2003. It is claimed that he was relevantly unfit until at least March 2003. Mr Molomby SC submits that as a result of his health the Plaintiff was delayed in applying for, and hence obtaining, full-time work for which he was qualified.

90 The evidence of his employment history demonstrates that he was hard working, well rewarded, and motivated to succeed in the computer industry. I find it probable that but for the publication he would have acted as intended and sought full-time employment from about September 2002. I infer that his qualifications and experience in the industry enabled him to make a reasonable judgment about his capacity for such work which leads me to find that he did not seek work because he judged himself unfit to perform it. Although there was no medical evidence on this issue this conclusion is supported by Dr Soliman’s evidence to the effect that in August 2002 he perceived that the Plaintiff’s health had deteriorated to the extent that he was not able to effectively carry out his teaching duties so that students had complained about his lack of effort, which caused him to decide to replace him in order to avoid a backlash.

91 However, the evidence also shows there came a point at which his condition improved to the extent that, in my view, it was no longer reasonable to adhere to that judgment. That point was reached in about December 2002 when he learnt of the 7A fixture, felt he was going to be well, and stopped taking his medication. Although one cannot be precise about it, the evidence does not satisfy me that it was reasonable for the Plaintiff to delay seeking employment thereafter.

92 Assessment of this component of the claim involves the exercise of a wide discretion. The Court is not constrained by narrow limitations and is required to do the best it can despite the paucity of specific evidence. Assistance is to be had from the analysis of the cases by Heydon JA in State of NSW v Moss [2000] NSWCA 133, paras 67-87, from which His Honour concluded that (para 87):

“The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility”.

93 There was no specific evidence as to the level of income available in August/September 2002 or thereafter for persons with the skills and qualifications of the Plaintiff and none by which the Court could be guided as to what was a reasonable length of time between commencing to seek employment and obtaining it. There was no specific evidence as to the state of the relevant employment market and available opportunities within the relevant period, or at all.

94 Exhibit E contains information as to the Plaintiff’s remuneration from employment in the computer industry in the financial years ended 30 June 1999, 2000, 2001 and 2002. As far as I can determine his earnings, including allowances, from such employment in 1999 were $108,582.00, in 2000 were $140,625.00, in 2001 were $146,258.00, and in 2002 were $44,836.00. There is no evidence as to the terms of any employment or of rates of remuneration on a weekly, monthly or other basis. Caution is required in making an assessment with regard to these figures.

95 It may be assumed that, if they had a vacancy, employers in the industry upon learning that the Plaintiff was seeking employment would move reasonably promptly to engage him. Allowing for contingencies the evidence suggests that he would have obtained appropriate employment within six to eight weeks of application. In all the circumstances, and with loose regard to his previous earnings, I conclude that his incapacity resulted in the loss of about one month’s employment, the damages for which I assess at $11,000.00.

96 The parties agreed that I should award a single verdict in respect of both imputations.

97 Accordingly, the overall compensatory award will include the sum of $17,846.00 as damages for financial loss in respect of university and industry employment. Taking that component into account, I award the Plaintiff for the publication of the article damages in the sum of $75,000.00.

98 The parties agreed that interest should run from the date of publication, namely 18 June 2002, at the rate of 3%. I have calculated interest on that basis and have rounded it off to $4,200.00.

99 There will be judgment for the Plaintiff in the action in the sum of $79,200.00.

100

The parties may address me in relation to costs, and arrangements should be made with my Associate by 2 April 2004 for the re-listing of this matter.

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Last Modified: 04/05/2004