Nguyen v Nguyen and Vu Publishers Pty Ltd and Van Thang Nguyen and Thien Huu Nguyen - [2006] NSWSC 550

No judgment structure available for this case.

CITATION: Nguyen v Nguyen & Vu Publishers Pty Ltd and Van Thang Nguyen and Thien Huu Nguyen [2006] NSWSC 550

HEARING DATE(S): 13,14,15,16,17,20,21,22,23,24,27,28,29th March 2006

JUDGMENT DATE :
23 June 2006

JUDGMENT OF: Patten AJ at 1

DECISION: See paragraph 205

LEGISLATION CITED: Defamation Act 1974

CASES CITED: Hepburn v TCN Channel Nine Pty Ltd (1984) 1NSWLR 381
Pamplin v Express Newspapers Ltd (1988) 1WLR 116
Guise v Kouvelis (1946) 46 SR 419
Carleton v Australian Broadcasting Corporation (2002) ACTSC 127

PARTIES: Thuyen Nguyen - Plaintiff
Nguyen & Vu Publishers Pty Ltd - First Defendant
Van Thang Nguyen aka Hong-Anh Nguyen - Second Defendant
Thien Huu Nguyen aka Lao Ngoan Dong - Third Defendant

FILE NUMBER(S): SC No. 20280 of 2003

COUNSEL: Mr C Evatt with Mr M Rollinson - Plaintiff
Mr R McHugh with Mr R Potter - Defendants

SOLICITORS: Ledinh Lawyers - Plaintiff
Corrs Westgarth - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Defamation List

Patten AJ

23 June 2006

No. 20280 of 2003

Thuyen Nguyen

v

Nguyen & Vu Publishers Pty Ltd
First Defendant

Van Thang Nguyen aka Hong-anh Nguyen
Second Defendant

Thien Huu Nguyen aka Lao Ngoan Dong
Third Defendant

JUDGMENT
INTRODUCTION:

1 The Plaintiff sues in respect of imputations arising out of articles published in two editions of the newspaper Tivi Tuan San. The articles in the Vietnamese language were respectively published on 17 April 2002 and 5 June 2002. Hereafter I will respectively refer to them as the first article and the second article. Collectively, they will be “the articles”.

2 It was alleged, and admitted, on the pleadings that, at the relevant time, the First Defendant was the publisher of Tivi Tuan San, the Second Defendant was its editor and the Third Defendant was the author of the articles. English translations of the articles as attached to the Statement of Claim are annexed to this judgment. Although the translations were denied on the pleadings, the parties, as I understand it, were substantially in agreement that they are broadly accurate and no evidence was adduced on the subject. It will be observed that neither article identifies the Plaintiff by name, but it seemed to be common ground that the expression “Cu Bip”, which was untranslated, means “Cheating Bachelor”.

3 In their answers to interrogatories the Defendants stated that about 6,800 copies were printed of the newspapers containing the articles. In each case, about 4,000 copies were sold. The issue of the newspaper published on 17 April 2002 was distributed NSW 1,120 copies, Victoria 5,235 and Queensland 240 copies. The edition of 5 June was distributed slightly more widely, namely, NSW 1040 copies, Victoria 5330 copies, Queensland 240 copies, Western Australia, 30 copies and South Australia 160 copies.

4 At a trial presided over by Sperling J in December 2004, pursuant to s7A of the Defamation Act 1974 (the 1974 Act), a jury found that the first article gave rise to the following imputations defamatory of the Plaintiff, the paragraphs in parenthesis, corresponding to numbered paragraphs in the translation:

“1. The Plaintiff is a fraudster (paragraphs 2,5 and 6)

2. The Plaintiff bragged that he had a Bachelor Degree when his real level of education is three levels lower than Bachelor (6).

“3. The Plaintiff is a deceiver (21)

4. The Plaintiff pilfered details from other people’s books for the contents of his own book (22).

5. The Plaintiff is an opportunist in that he gives public support for Ly Tong’s cause, not for patriotic reasons as a Vietnamese, but to advance his own personal interests (18-26, 35, 36).

6. The Plaintiff put his book on sale for $40 each, offering to donate half of the sale proceeds to support Ly Tong’s cause, not because he wished to help that cause but because he knew that, without such an offer, no one would pay him even $5 or $10 for a copy (22,23).

Pleadings and Particulars:

5 By his Statement of Claim, the Plaintiff sought damages, aggravated damages, interest, and punitive damages in respect of publication in States and Territories other than NSW.

6 The defences filed on behalf of all Defendants denied the meaning, in English, of the matter complained of, raised contextual imputations under s16 of the 1974 Act, alleged that any imputations defamatory of the Plaintiff were of substantial truth and related to matters of public interest or were published under qualified privilege at common law or by statute, pleaded unlikelihood of harm under s13 of the 1974 Act and pleaded defences of comment. The defences may, of course, need to be considered according to the law in the various states and territories where the articles were published.

7 The contextual imputation said to arise from the first article was:

“1. The plaintiff is the worst kind of fraudster”.

2. The Plaintiff is a plagiarist.

3. The Plaintiff misused Ly Tong’s name for his own benefit.

4. The Plaintiff is the worst kind of fraudster.

8 Lengthy particulars of truth were provided and much of the trial was devoted to the issues raised by those particulars. I will need to return to them in some detail.

9 The Plaintiff’s reply to the defences of qualified privilege and qualified protection pleaded that the Defendants were actuated by express malice, such malice being the subject of some 16 particulars. In relation to the defence of comment, the Plaintiff pleaded that the Defendants did not have an honest belief in the truth of the comment relying, inter alia, on the particulars of express malice.

The Plaintiff’s Evidence:

10 Before coming to a consideration of the issues which need to be determined, it is appropriate that I make reference to the evidence of the Plaintiff. In chief, he told his counsel, Mr Evatt, who appeared with Mr Rollinson, that he was born on 12 September 1939 in Vietnam and is now 66 years of age. He said that he resides at Allendale Heights in Melbourne and Cabramatta in Sydney. In his early years he was raised in Vietnam by his grandmother, as his parents mainly lived in France where his father was a teacher. He said that both his parents were arrested by the Vietcong and presumably killed while he was still a child.

11 His secondary education commenced at a school in Hue but continued at Hung Dao School in Dalat. At the end of Year 12 of High School, he received a certificate known as Baccalaureate 2 and entered military officers’ training school from which he graduated after 12 months, as a junior lieutenant. The army he joined was the National Army of South Vietnam then in conflict with the Communist Army of North Vietnam. After a period of 2 years of military service, he said that he was discharged due to injury. He then obtained admission to the University of Hue in the Faculty of Pedagogy, with a view to acquiring teaching qualifications.

12 His evidence was that the usual length of a university degree course was 4 years but in his case because of military service he was entitled to complete it in 3 years. He said that he graduated from the university in 1965 with a degree in mathematics or majoring in mathematics but, prior to graduation, had purchased an interest in and commenced teaching at a private school called Thien Binh. After graduation not only was he owner of, and teacher of mathematics at Thien Binh but also became the principal. The school was confiscated in 1975 when the Vietcong overran South Vietnam.

13 In addition to his involvement with Thien Binh school, the Plaintiff said that in 1969 he became registrar of a much bigger high school, Hung Dao, located about a kilometre away of which he became part-owner with the principal, Mr Nguyen Ngoc Minh. This situation continued, according to the Plaintiff, until 1973 when Mr Minh resigned and the Plaintiff purchased his ownership rights and took his place as principal of Hung Dao. At the same time he resigned his position as principal of the smaller school. As I understand the Plaintiff’s evidence, he continued as owner and principal of Hung Dao High School and teacher of mathematics to pupil in Years 10 and 11, until it too was confiscated by the Communists in 1975.

14 After his schools were confiscated, the Plaintiff said that he fled to the countryside and for the next two and a half to three years, sought to hide from the Communists. In this period, he did such farm and other work as he could find to support his family. He had previously married Ha Thi Huong who bore him 4 children. In 1979 he was able to migrate with his family to Australia, but he and his wife were divorced 5 years later. His children, who all continue to live in Australia, are respectively aged 39, 36, 34 and 31. He told Mr Evatt that Ha Thi Huong was his first and only wife.

15 In Australia, the Plaintiff worked in a building material factory for about 2 years. He then went into business on his own account, establishing both a restaurant and a construction business. In 1987 he acquired the business which had, since 1980, published the Vietnamese language newspaper, The Bell of Saigon which, he said, was the first Vietnamese language newspaper established in Australia, being published weekly in Sydney and circulated nationally. It was firmly anti-communist but otherwise published articles of general interest to the Vietnamese community.

16 He continued to publish The Bell of Saigon until about 1996 when it ceased publication for several years. Publication resumed in 2002 but continued only until 2004 since when the newspaper has been closed. He claims that the closure resulted from the drying up of advertising following the publication of the articles. Although the Plaintiff does not claim economic loss, he relies on this circumstance as a factor contributing to his hurt feelings.

17 In 1990, the Plaintiff published under his authorship, a book written in Vietnamese entitled The True Face of Ho Chi Minh. This book, exhibit A, had a red cover and was known throughout the trial as the “red book”, to distinguish it from the second edition of the book, published in 2000 which had a white cover and was conveniently known as the “white book”. I will hereafter refer to them in the same way

18 It was the Defendants’ case that both the red book and the white book were plagiarised by the Plaintiff from other publications and much of the trial was devoted to this issue. It is convenient to set out passages relating to the subject from the evidence in chief of the Plaintiff:

Q. In 1990 you published Exhibit 1 (sic exhibit A), the red book, I think it is called “The True Face of Ho Chi Minh”?
A. Yes.

Q. And Ho Chi Minh - well, I don’t know when he died, but Ho Chi Minh was the leader or dictator of what became Communist Vietnam, that is the whole country?
A. Yes. Yes, he was the leader of the Communists and he’s the one who directed the war invading the south.

Q. When did he die?
A. 1969.

Q. And it is called “The True Face of Ho Chi Minh” and did you write this book?
A. Yes.

Q. Is it friendly to Ho Chi Minh or does it attack him?
A. This book attacks and condemns Ho Chi Minh and the Communists, the Vietnamese Communists.

Q. Have you got a copy of the book? (Shown Exhibit 1 (sic exhibit A). There are photographs in that book?
A. Yes.

Q. Many of them, there might even be 100 photographs?
A. Yes.

Q. I have not counted them. Where did you get those photographs from, or most of the photographs?
A. When I wrote articles about Ho Chi Minh in the newspaper I received correspondence from readers of those articles and they sent me further articles with pictures and photographs on them.

Q. Were they the photographs you used in the main in your book?
A. Yes.

Q. What about the written material in the book?
A. I started conceptually with my thoughts and gathering of all the stories I gathered from my friends and acquaintances and relatives about the crimes committed by the Communists over the history.

Q. And did you refer to any books when you wrote the red book?
A. Yes, I received books, articles and excerpts from many people and at that time I was absolutely focused and dedicated to write this book. For me it is a dedication to my parents who were victims of the Communists and to make people aware of the crimes committed by the Communists.

Q. What was your motive, your reason for writing the book?
A. My main motivation was the injustice done to my parents, injustice done to my family and the injustice done to my country by this person Ho Chi Minh who imposed Communism into my land, my home and my country.

Q. In 2000 did you publish a second edition?
A. Yes.

Q. That is the white book Exhibit B, is that correct?
A. Yes.

Q. Did you add in the white book new material or is it pretty much the same as the red book?
A. Oh yes, I did. Yes, there are lots of new materials, especially after the Soviet Union opened their archives, that’s when many references and materials became available.

19 A little later in the examination, Mr Evatt, by a series of questions, sought to obtain the Plaintiff’s response to the Defendants’ allegations that he had plagiarised his book from a number of other books which were identified in the Defendants’ particulars and were admitted into evidence as exhibits. As a result, I think the Plaintiff’s position was encapsulated by his response to 2 questions asked by me:

“Q. Mr Nguyen, would you look at pages 48 and 49 of the white book, and would you also look at the same time at page 68 of the other book, (Book 5 – exhibit 2). What is being put to you is that pages 48 and 49 of this book have been substantially copied from page 68 of the other book, how do you respond to that?
A. Both books in these pages mentioning the same historical event and this historical event is not only mentioned here but it could have been mentioned in hundreds of other historical books.

HIS HONOUR: I understand that, but the allegation is that the text has been copied.

20 The Plaintiff gave a similar response to Mr Evatt in relation to the book 6, exhibit 3, Viet-Su Tanbien:

21 Later, in the examination, after making reference to 4 books, exhibits 5, 6, 7 and 8 – tu Thu’c Dan den Cong Sa’n, Mot Ngoi Truong Khac, Viet-Su Toan-Thu, and Tram Hoa, there was the following question and answer:

22 Upon the subject of whether the Plaintiff is entitled to be addressed by the honorific “Professor”, he told Mr Evatt that in Vietnam, at least at the time he was teaching, high school teachers were called, and entitled to be referred to as Giao Su which means Professor. He continued to use that title when he emigrated to Australia and said that he was addressed in that way by members of the Vietnamese community in Australia.

23 The Plaintiff said that the publication of the first article was made known to him by friends, one of whom sent it to him. He described his reaction, “I was enraged. I was extremely upset and I was so angry that my blood all went to my head”. Asked why he experienced these emotions, he said, “Because there is so much fabrication and lies and someone put all this fabrication and lies to throw mud on me, I have not done anything which I have felt is wrong in this society”. Later, he added, “I just felt humiliated. I felt so shameful. I felt so bad and it is beyond my words to say how enraged I was”. He said that in the context of the whole article the expression “Cu Bip” could only refer to himself.

24 At the time of the publication of the first article, the Plaintiff was scheduled to speak at a political forum on 30 April 2002 with two other speakers. Denunciation of communists and communism was the subject of the forum which had been advertised in the media naming him as a speaker and describing him by the title, Professor.

25 Asked about the reference in the first article to his education and qualifications, there was this exchange with Mr Evatt:

“Q. At the end of paragraph 6 there is reference to the blatant fraudster professor bragging that he had a bachelor's degree when in fact his education level was three levels below the level of bachelor, is that true? Is it true that you were not a bachelor and that your highest education level was in fact three levels below that of bachelor?
A. I couldn't have bragged about my qualification, whether is bachelor or whatever it was, had I not obtained a bachelor degree. How could I be a teacher and a professional in the system of the Republic of Vietnam for all those years?

Q. Is it true to say that you didn't have a bachelor degree at all, your highest education level was three levels below the bachelor's degree level; could you answer that Yes or No?
A. These are absolutely false.

Q. You have already said you have a bachelor's degree, is that correct?
A. Yes, I have got a bachelor degree but I have never bragged about my qualification.

26 The Plaintiff told Mr Evatt that he took other parts of the article to mean that he was not a true fighter against Communism and only pretended to be one and that readers were being exhorted not to listen to him because his words would be valueless. He said that many people telephoned him or spoke to him in person about the article but he agreed that they seemed, at least for the most part, to accept that the defamatory imputations were false. Altogether, he said that he received “hundreds” of phone calls from all states of Australia from persons of Vietnamese origin.

27 The second article came to the Plaintiff’s knowledge, according to his testimony, the day after publication when people telephoned him about it. He identified one caller, Mr Ho Cong Lo, who said that the article “contained allegations and false assessments of your goodwill activity”.

28 Following this conversation, he took steps to read the article which he said was the subject of many telephone conversations – “I couldn’t say exactly how many, but I remember in the – within 2 days coinciding with this article, my home phone and my mobile phone was ringing continuously, non-stop because people phoning me, talking to me about it”. Later in his evidence, he said that whether the phone calls were supportive or otherwise, “I just felt so upset and devastated”.

29 The Plaintiff said to Mr Evatt that he was an admirer and supporter of Mr Ly Tong, whom he regarded as a hero in the fight against communism, but was at the time imprisoned in Thailand. He denied that in any way he used his support of Mr Ly Tong for financial benefit. He asserted that there was no restaurant conversation as alleged and that the article was a complete fabrication.

30 He testified that 4,000 copies of the red book were printed at publication and that by the year 2000, thirty copies remained, the balance having been sold or given away. Many copies, he said, were given to anti-communists throughout the world. When the white book, being a reprint of the red book, was published about 2,500 copies were printed. He said that he continued to give away copies to interested persons but he also sold copies at $40 each. In order to assist a body called the Committee for the Spirit of Ly Tong, the Plaintiff said that he gave it 500 copies and received “not a single dollar” from the disposal of those books. He said that when he read passages in the second article suggesting that he had received financial benefit from his donation, he was, “absolutely enraged”.

31 For a number of years the Plaintiff was president of the Vietnamese Newspaper Association of Victoria. He was also for 2 years, president of the Vietnamese Lions Club and for 4 years its Treasurer. He was a founder of the Vietnamese Language School, formed to teach the Vietnamese language to children in Victoria and he was the publisher of two textbooks for Vietnamese speaking children. He said that his services were regularly in demand as a speaker at anti-communist forums in various states of Australia. He was an advisor to the Victorian Section of the Vietnamese Veterans Association in Australia and he was the author of an article published in the journal of that Association.

32 In respect of Mr Ly Tong, he said he was on the Committee supporting him and, indeed, said he “was one of the most active members” of that committee. He was involved in a number of other charitable and public activities of the Vietnamese community.

33 He said that the number of invitations for him to speak at forums has dropped since the articles were published and he perceives that the respect in which he was held by friends and associates has diminished. He said that, for instance, some people who before would greet him and shake hands when he approached would now appear to step back. All this, he said, made him, “very upset and very very sad”. He also said that it upset him that the newspaper Tivi Tuan San did not apologise to him and that he has been worried and concerned about the litigation. Prior to publication, he said no one asked him to comment about the allegations in the articles. He said that the allegations of bigamy and bribery made by the Defendant in the course of the litigation were false and upsetting.

34 Mr McHugh, who appeared for the Defendants with Mr Potter, made it clear that the Plaintiff’s credit is very much in issue and cross-examined him in great detail and at considerable length. The topics upon which the Plaintiff was challenged included the occasions on which he first read the articles; the number of people who spoke to him about them; the allegation that his books were plagiarised; his claim that he held a Bachelor Degree from a university; the authenticity of the document he claimed to be a copy of his interim university graduation certificate; his claim to have been a high school teacher and principal in Vietnam; his involvement with the committee supporting Mr Ly Tong, his offer to donate copies of his book in support of Mr Ly Tong; the allegation that he was a bigamist; and the allegation that in Vietnam he engaged in bribery and other corrupt conduct.

35 Much of the cross-examination was, in my opinion, extremely effective and cast grave doubts upon the credibility of the Plaintiff in a number of aspects. As it seemed to me, on many occasions the Plaintiff was evasive and prone to exaggeration. Some of his evidence contained contradictions and inconsistencies to the extent of being inherently implausible.

36 This is not a case, however, where I would reject the Plaintiff’s evidence in totality, but it requires, in my view, careful scrutiny where controversial and not independently supported. I will need to return to the cross-examination in greater detail when considering some of the issues raised for determination.

Questions of Truth:

37 A good part of the hearing was devoted to the Defendants’ attempt to prove the substantial truth of the Plaintiff’s imputations and the contextual imputations. The particular issues so litigated were identified in Mr McHugh’s written submissions:

(a) That Ex 11, which the plaintiff contends is a copy of his degree certificate from the University of Hue, is a fake document. Furthermore, that Ex 11, or the document from which it was copied, was fraudulently constructed or obtained by the plaintiff in order that he might hold himself out as a person with a bachelor’s degree.

(b) That the plaintiff never graduated from any university and does not hold a bachelor’s degree, and that his repeatedly holding himself out as having such a degree is not merely a false boast, but a fraud on the whole Vietnamese community in Australia.

(c) That the plaintiff took the literary works of other published authors and used those works (which included photographs as well as written text) in his own publications without permission from those authors or their publishers and without acknowledgement of the source of those materials; and that the plaintiff is thereby a plagiarist and a literary fraud.

(d) That the plaintiff had no right to hold himself out, as he did and does, as a teacher or a principal of a high school in Vietnam or to use the title “giao su” (Professor), as those positions and that title required the qualification of a bachelor’s degree.

(e) That the plaintiff made an offer to the NSW Committee for Promoting the Spirit of Ly Tong to donate half the proceeds of his book if the books were sold at fundraising events for $40 each, thereby using the name of Ly Tong to benefit himself.

(f) That the plaintiff misled readers of his publication ‘The Bell of Saigon’ into believing that it was the largest circulation Vietnamese newspaper in Australia, while knowing that it was not.

(g) That the plaintiff participated in a fraudulent scheme to provide fake high school certificates to school students in Vietnam between 1973 and 1974.

(h) That the plaintiff committed the act of bigamy by marrying Ha Thi Huong in 1966 when he was already married to Mai Thi Huong. Furthermore, that this act was a fraud on Ha Thi Huong, her family and the community.”

38 It is convenient to regard Mr Mc Hugh’s distillation of the issues as a guide to my consideration of the evidence as I agree with his submission that conclusions upon the issues, adverse to the Plaintiff, would, in turn, lead to findings that the imputations and contextual imputations were substantially true.

The Plaintiff Falsely Boasted of Holding a University Degree:

39 The above heading encompasses issues (a) and (b) identified by Mr McHugh.

40 Admitted into evidence as Ex 11 was a document in the Vietnamese language, which the Plaintiff identified as a copy of a provisional degree given to him following his graduation in 1965 from the University of Hue. The document which became Ex 12 on the letterhead of the Bank of NSW purports to contain a translation of Ex11 which the Plaintiff said was made in 1981. The document was set out as follows:

(Bank of NSW Logo in colour) Bank of New South Wales

Extract – Translation from Vietnamese Language - Original
Republic of Vietnam
Ministry of Culture, Education and Youth
Hue University
Faculty of Teacher Training.

Temporary copy of the University Degree of Bachelor of Teacher Training
The Dean of the Hue University Faculty of Teacher Training hereby certifies:
Mr Nguyen Thuyen
Born on 12.9.1939
At Hue.
Has passed the graduation examination for the University Degree of Bachelor of Teacher Training conducted in 1965.
- Department: Mathematics
- Sessions: 18.6.1965
- Grade: Distinction
Pending the approval of the Minster of Culture, Education and Youth.

Dated at Hue 9/7/1965
Dean of The Teacher Training Faculty

41 The Defendants called evidence by video link with Pennsylvania USA from Professor Nguyen Van Hai, who testified to the effect that at the end of June 1965 he returned to Vietnam from Paris, France where he had been since 1963. He remained in Saigon throughout the summer but secured a position as an Assistant Professor at the University of Hue from October 1965, teaching mathematics in the School of Science.

42 The following year he was appointed Dean of the School of Science, a position which he held until 1975. As I understand his evidence he served also as Dean of the Faculty of Education or Pedagogy in 1967/68.

43 The effect of Professor Hai’s evidence therefore was that he was not the Dean of any faculty In Hue University on 9 July 1965. He said that, although the signature on Ex 11 appears similar to his signature, he did not, and would not have, signed the document. He said that the Dean at the time was Tri Huu Nguyen, a fact supported by official documents to which I will hereafter refer. Although Mr Evatt challenged Professor Hai upon his evidence, I accept it. He appeared to me an honest reliable witness who had no reason to do other than tell the truth.

44 The Plaintiff’s own evidence as to the provenance of the document Ex 11 as to the making of the alleged copy, Ex 12, and as to his loss of Ex 11 and other important documents was, in my opinion, extremely unconvincing.

45 Moreover, other pieces of evidence bear upon the question. The first is an apparently official certificate and translation issued by the Qualification Assessment Unit of the Office of Education and Training, The Peoples Committee, Thua Thien Hue Province, Socialist Republic of Vietnam. The certificate dated 22 march 2005 addressed to solicitors in Ho Chi Minh City, Ex 14 relevantly provided:

“The Qualification Assessment Unit of Thua Thien Hue Province (established in accordance to the decision number 2336 QD-UB on 19/07/2004 from the People’s Committee of TT Hue) received the application for qualification assessment from the Solicitor Office on the 10/01/2005 and advice from Hue University of Education.

Having considered the relevant files to verify graduation results of the University of Education in 1965, the provincial Qualification Assessment Unit is satisfied that:

46 The next piece of evidence is the report of Handwriting and Questioned Document Examiner, Mr Paul Westwood, to the effect that Ex 12, which the Plaintiff testified was an original document was in fact the product of a colour photocopier. Mr Westwood was not required for cross-examination and I accept both his qualifications and his opinion.

47 There is then the evidence of Mr Hoang Van Dinh (to whom I will make further reference later in these reasons) and to apparently official documents identified by him which list public school placements of persons who graduated from the School of Pedagogy at the University of Hue in 1965. On the face of it, although the evidence, like much of the evidence in this case, is not entirely satisfactory, one would have expected the name of the Plaintiff, if he had in truth graduated in 1965, to appear on the list and it does not. This is because a number of witnesses said that a graduate of the School of Pedagogy was required by law to teach in the public school system for a number of years. The Plaintiff conceded that he did not do so.

48 Although the evidence of Mr Westwood that Ex 12 is a photocopy and not an original document may not do more than reflect upon the credibility of the Plaintiff, the other evidence, in my opinion, overwhelmingly establishes that Ex 11 the document of which Ex 12 purports to be a copy, is a forgery. As the Plaintiff must have been aware of the forgery and proffers no explanation it must, I think, be accepted, as Ex 14 states that the Plaintiff did not graduate from Hue University in 1965. The Plaintiff does not himself suggest that he graduated from any other university or at any other time, and I conclude therefore that he is not a university graduate and does not hold a bachelor degree.

49 There is no doubt that in Australia the Plaintiff has continued to claim or boast that he holds a university degree - so much at least appears from his answers to interrogatories 16-20, verified on 26 August 2005:

“16. Have you ever studied at or attended University? If so, what was the name of each such University? By reference to each University:

(zz) During what year or years did you attend? Faculty of Science, Saigon University, First year – 1958-1958 academic year. The University of Hue, Faculty of Teacher Training academic year 1962-1963; 1963-1964;1964-1965.

(aaa) What course did you study? Degree of Bachelor of Teacher Training major in Mathematics.

(bbb) What faculty did you attend? Faculty of Teacher Training

(ccc) On what date did you graduate? In 1965.

(ddd) What qualification or qualifications did you obtain? Degree of Bachelor of Teacher Training major in Mathematic.

17. Have you ever claimed to have been a student at the University of Hue in Vietnam? If so how, when, where and to whom did you make those claims? To most of people I know since I arrived in Australia in 1979 as a political refugee.

18. Have you ever claimed to have graduated from a University? If so, how, when, where and to whom did you make such claim: To most of people I know since I arrived in Australia in 1979 as a political refugee.

19. Do you hold a Bachelor Degree? If so,

(fff) During what years did you study to obtain that degree? Academic year 1962- 1963; 1963-1964; 1964-1965.

(ggg) In what subject or subjects did you obtain that degree? Several Variable Calculus; Mathematical Methods for Differential Equations, Linear Algebra; Probability & Statistics; Algebraic Techniques in Number Theory; History of Mathematics, Differential Geometry.

(hhh) When did you obtain that degree? In 1965.

(iii) Have you ever been given the original of that degree? If so where is that document as at the date of answering these interrogatories? Yes, I misplaced my original copy since early 1980.

(jjj) To the best of your knowledge, is that degree recognised in Australia as a “degree” in accordance with Australian standards of education? Yes.

20. Have you ever claimed to hold a Bachelor degree? If so, how, when, where and to whom did you make such claim? Most of the members of the Vietnamese community I know.

50 Although in cross-examination the Plaintiff denied to Mr McHugh that he “bragged” about his university degree and denied that he deceived anybody, he claimed that his answers to interrogatories were true. The fact that the Plaintiff held himself out as the holder of a Bachelor Degree was undoubtedly, in my opinion, a false claim and dishonourable. I would, however, stop short of categorising it as fraudulent, or as Mr McHugh put it “a fraud on the whole Vietnamese community in Australia”. To my mind, the concept of fraud in its most usual meaning connotes the seeking or obtaining of some unfair or dishonest advantage, see Macquarie Dictionary Third Edition. There is, in my opinion, no evidence that the Plaintiff, whilst in Australia, sought or gained any benefit other than, perhaps, one of enhanced status by holding himself out as holding a Bachelor Degree.

51 It is, I think, appropriate to add that, although what I regard as the Plaintiff’s deliberate untruths on the subject of his university degree were inexcusable, it is not difficult to have some sympathy for the circumstances in which he found himself in Vietnam in 1975. Having to escape the country as best he could, it is not entirely surprising that he sought to establish credibility by the creation of documents which stretched the truth somewhat. Although I am not persuaded that he graduated from the University of Hue, it is, I think, probable (notwithstanding the evidence of Mr Hoang Van Dinh, which I accept, that he was a student in the Faculty of Pedagogy in the University of Hue at the same time as the Plaintiff yet cannot remember him), that he attended that university, very possibly for the period of 3 years mentioned in his testimony.

The Plaintiff was neither a teacher in, nor the principal of a High School in Vietnam?

52 As I have already indicated, the Plaintiff claims that after leaving University he owned, was principal of, and taught at Thien Binh Private School. He also subsequently owned, taught at, and became principal of Hung Dao Private High School.

53 His own evidence was that the law of Vietnam required a university degree in science or arts as a prerequisite to becoming the principal of a private school. His evidence was, to my mind, somewhat equivocal as to the requirements of the law in relation to teaching at a private school. He testified that he commenced teaching before graduation adding, “You could do the teaching where you have got certificates from University”. The precise meaning of this was not pursued either by Mr Evatt or Mr McHugh.

54 Professor Nguyen Vinh gave evidence on the subject in the Plaintiff’s case. He was born in Vietnam in 1942 but has for many years resided in Finland where he is a schoolteacher. As such, he claims to be entitled to the honorific, ‘Professor’. He first met the Plaintiff as a small child living in a neighbouring village. Their secondary and tertiary education took different paths but they met again at Hung Dao High School in 1972 where he taught mathematics on a part time basis, 8 hours per week until early 1975.

55 He said that the Plaintiff, at the time, was a teacher of mathematics to Year 12 and also principal of the school, having assumed that position in 1972 following the resignation of Professor Nguyen Minh. According to the witness, it was usual to address high school teachers as “Professor”. He claimed that the law required high school teachers and principals to hold a university degree.

56 In cross-examination Mr Mc Hugh broached the subject of an obligation to teach in public schools after graduation from the Faculty of Pedagogy at a Vietnamese University in 1965. There was this not altogether conclusive exchange:

“Q. Once somebody graduated from the faculty of pedagogy, the student was obliged to take up employment in a public school, do you agree?
A. *Yes.*

Q. A graduate wasn't allowed to work in the private school system unless he also worked in the public school system?
A. Yes.

Q. Do you agree?
A. Yes.

HIS HONOUR: Well --
A. Correct.

McHUGH: Q. And when you graduated, you went and worked in a public school first?
A. *Yes.*

McHUGH: Your Honour, I note the witness can answer some questions in English.

…………………………………………………..

Q. If somebody wanted to be a principal of a private school, it was necessary for that person to have a bachelor's degree in arts or sciences; do you agree?
A. That's correct. It is mandatory because it was specified by the law.

Q. It was not enough if one wanted to become a principal of a private school to be a graduate of the faculty of pedagogy; do you agree?
A. The graduation in the faculty of pedagogy is tantamount to the graduation of a university degree in other faculties, and that is the requirement satisfied for opening of private school, only on one condition, that that particular person didn't teach at the public school any more. Teachers of public school could only open private school when they were not required by the public school for reasons of injury or sickness or other reasons, that they were not required to teach at the public school any more.

Q. Ordinarily, a graduate of the faculty of pedagogy was required to work in the public school system for at least ten years; do you agree?
A. Yes, at least ten years.

57 Professor Vinh denied that Professor Minh, the previous principal, closed down the Hung Dao School when he resigned.

58 There were further witnesses on the subject called in the Plaintiff’s case. One was Ms Minh Luong. She graduated from the University of Hue in 1973 as a Bachelor of Arts, majoring in French. She then, according to her evidence, obtained employment at Hung Dao School where she said the Plaintiff was principal and a teacher of mathematics. She continued in the position until the Communists came in 1975. Mrs Luong testified to the effect that a Bachelor Degree was a prerequisite to teaching in a High School but she herself said that she started teaching before graduation, “Well because I wanted to gain experience and then also to make some money, to earn some money”.

59 Ms Luong came to Australia in 1975 and subsequently renewed her acquaintanceship with the Plaintiff. She has remained on friendly terms with him and gave evidence as to the effect upon him of the publication of the articles. In cross-examination, she restated her belief that it was necessary to have a Bachelor Degree to teach, but was uncertain as to the extent a school principal could abrogate this requirement.

60 Ms Luong said that she always referred to the Plaintiff as ‘Professor’, but agreed with Mr McHugh that in an article written by her in Vietnamese and published in the newspaper Tuan Tao Tivi, she referred to the Plaintiff several time and on all but one of them used the honorific, “Ong” meaning “Mr” as opposed to “Giao Su”, meaning “Professor”. She also agreed with Mr McHugh that in the s7A trial in this matter, she gave evidence to the effect that she only taught at Hung Dao School from 1972 until 1973. She said that since the trial she has remembered that she taught at the school from 1973 to 1975. She said that by the time she went to the school, Nguyen Ngoc Minh was no longer involved with it.

61 Another witness in the Plaintiff’s case, Ms Nguyen Psuong testified to being at Hung Dao School in Hue in 1973 and 1974 as a pupil in Years 9 and 10. She said that the Plaintiff, whom she referred to as Professor Nguyen Thuyen, was the principal and also taught mathematics.

62 On this aspect of the case, the Defendants also relied on the testimony of Mr Hoang Van Dinh, referred to earlier. As I have indicated, the documents he produced, established that the Plaintiff’s name did not appear on a list of public school placements for those who graduated from the Faculty of Pedagogy at Hue University in 1965. As I have also indicated, this evidence does support the contention that the Plaintiff did not graduate from the University. It is, however, I think, at best, equivocal as to whether the Plaintiff, whom Mr Dinh did not meet until 1983, in fact became, and was, the principal of, and teacher at, the two private schools, Thien Binh and Huong Dao.

63 Mr Mc Hugh submitted that I would not regard as reliable the evidence of Professor Vinh, Ms Luong and Ms Psuong. He pointed to evidence from Professor Vinh that Professor Minh left Huong Dao in 1972, whereas, according to the Plaintiff, he left in 1973, he also referred to Professor Vinh’s friendship with the Plaintiff. He pointed to the discrepancy earlier referred to between evidence given by Ms Luong at the s 7A trial and her evidence before me and he referred to a degree of uncertainty in the evidence of Ms Psuong, who must have been only a young teenager in 1973 and 1974.

64 Although there is validity in the submissions made by Mr McHugh regarding the evidence of Professor Vinh, Ms Luong and Ms Psuong, I formed the opinion that each of them was doing his or her best to tell the truth about events a very long time ago in a war-torn country. It is, I think, noteworthy that the Defendants did not themselves call any direct evidence as to whether the Plaintiff taught at, or acted as principal of the two schools in the period between 1965 and 1975.

65 Moreover, on this subject, the Plaintiff’s evidence was, in my opinion, much more forthright and convincing than it was on other subjects. In the result, I am satisfied, on the balance of probabilities, that the Plaintiff taught mathematics at, and became the principal of, both the schools mentioned in his evidence. Whether that, in the absence of a university degree, constituted a breach of the law of Vietnam is not a matter upon which I need make a finding, nor, in my opinion, is the state of the evidence such that I am able to make such a finding. It suffices that he was in fact a principal and a teacher. He was also, on the evidence, entitled to the honorific “Professor” as that title, being one of courtesy only, seems to have pertained to the occupations of teacher and principal rather than the possession of a university degree.

66 It follows that I find favourably to the Plaintiff upon issue (d) as identified by Mr McHugh.

Plagiarism:

67 Factual issue (c) identified by Mr McHugh is of plagiarism. The allegation was particularised as follows:

B 1. In or about 1990, the plaintiff wrote, edited, compiled and published a book entitled “The True Face of Ho Chi Minh” (the first edition). The plaintiff claimed and represented that this book was his own original work.

B 2 In or about 2000, the plaintiff wrote, edited, compiled and published a second edition of his book entitled “The True Face of Ho Chi Minh” (the second edition). The plaintiff claimed and represented that this book was his own original work.

B3 In or about 1962, Mr Hoang Van Chi authored a book entitled “From Colonialism to Communism” (Book 2)

B4 In or about 1983, Mr Vu Ngu Chieu and Professor Nguyen Thi Anh co-authored a book entitled “Another School for Young Nguyen Tat Thahn” (Book 3)

B5 In or about 1960, Mr Pham Van Son authored a book entitled “Viet Suan Toan Thu” (Book 4)

B6 In or about 1968, Mr Thai Bach authored a book entitled “Thi Van Quoc Cam Thoi Phap Thuoc” (Book 5)

B7 In or about 1963, Mr Pham Van Son authored a book entitled “Viet-Su Tanbien, Vol V11” (Book 6)

B8 In or about 1988, Huy Phong and Yen Anh authored a book entitled “Nhan Dien Ho Chi Minh” (Book 7)

B9 In or about 1959, Mr Hoang Van Chi edited a book entitled “Tram Hoa Dua No Tren Dat Bac”, produced by an organisation known as Mat Tran Bao Ve Tu Do Van Hoa (Book 8).

B10 When the plaintiff wrote, edited, compiled, and published the first edition of his book, he committed serious acts of plagiarism and breach of copyright by copying material from other people’s books and from other sources without obtaining permission from or giving acknowledgement to those other people or sources.

a) The photographs on pages 20,21,22,44,45, 46,47,54,55 and 56 of the first edition have been copied from a book written by Nguyen Khac Ngu entitled “Vietnam Nhung Hinh Anh Xua”;

b) The photograph on page 74 of the first edition has been copied from the book written by Quan Su, Military History, Joint General Staff, Republic of Vietnam headed “Quan Dan Vietnam Chong Tay Xam”;

d) The translations at pages 94 and 95 of the first edition have been substantially copied from translations prepared by Mr Vu Ngu Chieu and published in Book 3;

e) The letters at pages 96,97,98,99 and 100 of the first edition (those being letters written by Ho Chi Minh and French authorities) have been substantially copied from letters originally located and published by Mr Vu Ngu Chieu and published in Book 3;

f) The three photographs on pages 101 and 121 of the first edition have been copied from the Nhan Dan Newspaper of the Socialist Republic of Vietnam;

g) The photograph on page 122 of the first edition has been copied from the Army Museum of Socialist Republic of Vietnam;

h) The photograph on page 123 of the first edition has been copied from the Con Ong magazine published in France;

i) The photograph on page 124 of the first edition has been copied from the book entitled “Vietnam Hai Ngoai”.

B11 When the plaintiff wrote, edited, compiled, and published the second edition of his book, he committed serious acts of plagiarism and breach of copyright by copying material from other people’s books and from other sources without obtaining permission from or giving acknowledgement to those other people or sources.

a) Text on pages 69,70,71,72,126,151, 152,153,154,160,162,163,164,165,166,167,168,169,1170,171,173,174,175,176,177,178,179,182,183,184, 185,186,187,188,189,190,191,192,193,194,195,196,1197, 198,199,200,201,202,204,229,230,231,232 of the second edition of the plaintiff’s book has been substantially copied from Book 2;

b) Text on pages 134,135,138 and 139 of the second edition has been substantially copied from pages 33, 37,38 and 40 of Book 3;

c) Text on pages 25,26,27,28,29,30 and 35 of the second edition has been substantially copied from Book 4;

d) Text on pages 48 and 49 of the second edition has been substantially copied from Book 5; i.e. page68;

e) Text on pages 57,58,59,60,61,62 and 63 of the second edition has been substantially copied from Book 6; pp 21,22

f) Text on pages 115 and 116 of the second edition has been substantially copied from Book 7; pp 134-135;

g) Text on pages 381,382,383,384,385 and 386 ;of the second edition have been substantially copied from Book 8.”

68 The red book published in 1990 contained a bibliography which listed almost 40 books. However, there was no express acknowledgement in any part of the text that the author, namely the Plaintiff, had reproduced material from other sources. Likewise, but perhaps of less significance, none of the many photographs in the book acknowledged that they were reproduced from other books.

69 The white book published in 2000 contained a slightly longer bibliography, but again, no specific acknowledgement that any part of the text was copied from another work. In the white book there are, however, acknowledgements of the photographs.

70 There was also in the white book a statement, Ex C, at the beginning which translated read:

“Completing the book “The True Face of Ho chi Minh” is not the effort of one person but owing to the encouragement and the intellectual support of many people through telephone and correspondence of reader of The Bell of Saigon Newspaper to all the Vietnamese Refugee communities from Communist including Organisations Association; especially thanks to the direct and indirect documentation provided from all walk of life, or extracts published yet without permission. I can not say enough of my gratitude and thankfulness.

I hope to receive understanding as writing about the “dead” is so much a deceased. But because the “living” (The Clique of The Vietnamese Communist) are still inflicting crime and blocking the way to Democratic Freedom. Writing about the deed of the “dead” so we can all be alert and not to let the “living” to follow the path of the “dead” to cheat and divert the mission of fighting for Democratic Freedom and the right to be human being of the people of Vietnam.”

71 As to the law in relation to plagiarism I am indebted to the extensive examination of authority by Higgins J (as he then was) in Carleton v Australian Broadcasting Corporation (2002) ACTSC 127. For the purposes of this case, I take the meaning of plagiarism from the Macquarie Dictionary, Third Edition:

1. The appropriation or imitation of another’s ideas and manner of expressing them, as in art, literature, etc to be passed off as one’s own. 2. something appropriated and passed off as one’s own in this manner.”

72 Carleton v ABC concerned a television programme relating to historical events, namely the massacre of Muslim men and boys at Srebrenica in 1995 by the Bosnian Serb Army. The events were the subject of several television documentaries. One was broadcast by BBC Panorama in 1996, another by BBC television in 1999, that programme being subsequently broadcast in Australia, and a third was broadcast by American 60 Minutes.

73 Mr Carleton, a television journalist, decided to make his own programme for broadcast on the Australian Channel Nine’s 60 minutes in a thirteen minute segment much shorter than the other programmes. One issue before Higgins J was whether it had been established that the programme eventually produced by Mr Carleton was plagiarised.

74 At paragraphs 112 and following of his judgment, His Honour said

“[112] The notion of "copying" is always a matter of degree. What are the points of similarity? What are the points of difference? Are the latter present merely to cover up the former? [113] The issue of "copying", for example, house plans often revolves around breach of copyright. That breach is what imparts wrongfulness or impropriety. [114] Ownit Homes Pty Ltd v D & F Mancuso Investments Pty Ltd [1988] AIPC 90-488; 5 BCL 64 ("Ownit Homes") is an example of that process. The Court (Fisher, Pincus, Einfeld JJ) commented on an argument that the notion of intentionally creating similarity had been given too little weight at first instance, (Ownit Homes [1988] AIPC 90-488 at 38, 240; 5 BCL 64 at 69-70):"... This line of argument appears to be rooted in the 'rough practical test' advanced by Petersen J in University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 at p610 '... that what is worth copying is prima facie worth protecting' - a test in which Lord Reid in Ladbroke [(Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273] saw 'much wisdom' (at p279). However, as Sir Owen Dixon remarked, 'stealing from one author is plagiarism; stealing from three authors is research' (The Dictionary of Australian Quotations, Heinemann 1984)." [115] The difficulty is explained with his customary clarity by Street J (as he then was) in Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278. [116] At 283, his Honour cited with approval the following, (from Copinger & Skone James on Copyright, 10th ed para406):" Form not idea protected A preliminary observation is that it is essential to have in mind in approaching any question of infringement the nature of the thing protected by copyright law. What is protected is not original thought or information but the original expression of thought or information in some concrete form. Consequently, it is only an infringement if the defendant has made an unlawful use of the form in which the thought or information is expressed. The defendant must, to be liable, have made a substantial use of this form; he is not liable if he has taken from the work the essential idea, however original, and expressed the idea in his own form or used the idea for his own purposes ..." (emphasis added)
…………………………………..
[118] There is an obvious analogy between an original architectural plan and a television program. Where the subject of the program is not fiction but history, as with the plans of a dwelling, there must necessarily be considerable elements of similarity between the original and the subsequent work. [119] The telling of the story of a war crime ought not to vary as to the facts conveyed. "Cry from the Grave" was comprehensive. Certainly more so than "The Evil that Men Do".
…………………………………………….

[123]

[124]

[125]

[126]

[127]

[128]

[129]

[130]

75 Many of the passages of authority quoted above and the observations of Higgins J are, in my opinion, apposite to this case and, in particular, to the Plaintiff’s claim that he was merely reciting historical events.

76 In support of their contention that the Plaintiff was guilty of plagiarism, the Defendants relied on the report (Ex 10) of Mr Ton That Quynh Du, a translator conversant with the English and Vietnamese language, who translated, in a way facilitating comparison, passages from the two editions of the Plaintiff’s book and passages from five other books which seem to be listed in the bibliography of both editions of the Plaintiff’s book.

77 I have previously made reference to the Plaintiff’s evidence in chief upon the subject of plagiarism. He was closely cross-examined by Mr McHugh upon such evidence.

“Q. You know what a plagiarist is, don't you?
A. Yes I do.

Q. A plagiarist is someone who appropriates someone else's ideas and manner of expressing them and passes them off as his own. Do you agree, do you agree?

A. Yes.

Q. And that was something which you considered to be defamatory of you, you agree?
A. Yes.

Q. When you asked Mr Ho to write that letter on your behalf you thought it was a bad thing to say about somebody who had a university degree that he was a plagiarist, do you agree?
A. Yes.

Q. It was a bad thing to say about somebody who was the published author of a book, do you agree?
A. Yes.

Q. And it was just as bad to say that of a Vietnamese author in Australia as of any other author in Australia, do you agree?
A. Yes.

Q. That is because the standards which apply, apply just the same to you as they apply to anyone else, do you agree?
A. Yes.

Q. (Witness shown exhibit A). Could you turn please to page 436, do you see those words at the top there “Tai Lieu Than Khao”?
A. Yes.

Q. They mean "books for reference", don't they?
A. Yes.

Q. Those were all books which you had had available to you when you wrote this book, weren't they?
A. Yes.

……………………………………………..

Q. Just staying with the white book, you refer towards the end of the first paragraph to extracts published without permission, you see that?
A. I want to express my feeling about the fact that I had to do this because I could not locate the source of the authors to seek permission.

Q. Mr Nguyen, please wait until I ask you a question. You refer there to the idea of permission, you see that?
A. Yes.

Q. As you just said, permission is what you get from the author or the author's family or the publisher of the source, do you agree?
A. That is correct.

MCHUGH: Q. There is something I wish to make perfectly clear Mr Nguyen. The defendants in this case do not say that you are not a true anticommunist. I just want to make that clear so that you understand before I continue. All right. Now, in fact, as you have already told his Honour, you are a very committed anticommunist aren't you.
A. Thank you.

Q. And the two editions of the book, Exhibit A and Exhibit B, are your contribution to the fight against communism in North Vietnam, or at least part of it.
A. Thank you.

Q. You agree?
A. Yeah, thank you.

Q. You yourself spent a lot of time working on the first edition?
A. Yeah.

Q. And you are proud of your contribution?
A. Yeah.

Q. And you are proud of this as your work?
A. Yeah.

78 After taking the Plaintiff through various passages in his book and comparing those passages with the texts of other books, Mr McHugh concluded this part of his cross-examination:

“MCHUGH: When you chose how to write your book you preferred those other sources and their account, is that right?
A. Because in my book there was part of the historical event during the French time so I had to refer to the book, but in my book there were so many other events and many other periods in the history which could not be found in this book.

Q. What you are saying to His Honour is that book 4 had one version of these events but other books which you looked at had a different version, is that what you are saying?
A. Yes.

Q. And those other books were the books that you relied on because you thought they were right, is that right?
A. Yes. For instance when I wrote on any particular event I had to read at least 3 or 4 books and one book would say A, the other book would say B, the other book would say C, then I have to double check to see which version would be the correct version for my interpretation of the event.

Q. What you did was rely on the work of the person who had written the book that you thought was correct, is that right?
A. Yes.

Q. You did not have primary source material yourself in Australia when you were writing these books, did you?
A. Yes.

79 Mr Du was cross-examined by Mr Evatt in some detail but, in my view, his opinions withstood the challenge made to them. I am satisfied that his translations and opinions should be accepted. In my opinion, the Defendants proved that substantial portions of both editions of the Plaintiff’s book were copied virtually word for word from other books. Neither in the bibliographies contained in the Plaintiff’s books, nor in the acknowledgment, Ex C, in the white book, did the Plaintiff, in my opinion, adequately acknowledge that much of what purported to be his writing was the original work of someone else. Because to a large extent the Plaintiff simply copied the text of other books, it is not to the point, in my opinion, for him to say that he was writing about well-known historical events. It was his extensive use of the means of expression employed by others without their acknowledgement or permission which constituted plagiarism, not the circumstance that he, quite legitimately, wrote about the same subject matter. His intentions, which may or may not have been reprehensible, are I think irrelevant. However, it is appropriate to record that not all of the text of the Plaintiff’s books was plagiarised. Much of it, so far as the evidence relates, was indeed his original work.

80 In my opinion, the Defendants are successful upon issue (c) identified by Mr Mc Hugh.

Support for Ly Tong:

81 It was common ground that a Mr Ly Tong is regarded as a hero by anti-communist Vietnamese and during the trial Mr McHugh made it clear that the Defendants do not contend otherwise than that the Plaintiff was, and is, a staunch anti-communist. Mr Ly Tong was said to be imprisoned in Thailand upon charges, which to me are unclear, but seem to relate to his dropping of anti-Communist leaflets from an aircraft over Vietnam. There was evidence of at least one visit by him to Australia and that committees for his support were formed in Victoria and NSW.

82 The issue (e) identified by Mr McHugh in his submissions whilst appropriate for the purposes of this judgment does not, it is to be noted, quite match either of the Plaintiff’s imputations 5 and 6 or contextual imputation 3.

83 In his evidence in chief, as I have mentioned, the Plaintiff denied that he ever used Ly Tong’s name to benefit himself. Moreover, the Plaintiff visited Mr Ly Tong in prison last February and had admitted into evidence, as exhibit G, (not as evidence of the underlying facts) a letter from Mr Ly Tong:

84 Mr McHugh cross-examined the Plaintiff upon his evidence regarding Ly Tong. He was directed to his answers to interrogatories which were verified on 26 August 2005. There was then this exchange with the cross-examiner:

“Q. You say you were a member of that committee and one of the most active members of it. Could you have a look at page 20 of the interrogatories in front of you? Do you see the third paragraph down which begins with "WWW". You say there, don't you, in answer to the question have you ever been with - "have you ever been involved in any group which supports the cause of Ly Tong?" Your answer was "no." Not as an official member?
A. That was before 2004

Q. No, no, no, no. The question asks have you ever been involved?
A. I said that I was not a member before, before the arrest of Mr Ly Tong in Vietnam but I became a member when Mr Ly Tong was arrested in Thailand not the rest but because there were two stages of the activities of Mr Ly Tong in the first stage. He was arrested in Vietnam and then he was released and after his release from prison he came to Australia to speak and when I listened to him then I started - supported him, his cause after he was arrested in Thailand.

Q. Please pay attention to my question. Where in your answers to interrogatories do you say that you became a member after 2002?
A. Could you ask the question again?

85 There followed several pages of transcript in which the Plaintiff, rather forlornly, I thought, sought to place blame on his solicitor for errors in the answers to interrogatories, at the end of which there was the following question and answer:

86 Following the last answer, an adjournment was taken. Mr McHugh returned to the subject of Mr Ly Tong sometime later as the transcript records:

“Q. The evidence that you gave yesterday at transcript 77 about which I have already asked you where you said that you were on the committee for the promotion of the spirit of Ly Tong was false, wasn't it, that evidence was false?
A. No, it wasn't false. How can I not be a member of the committee when I was part of the delegation to visit him?

Q. You didn't become a part of that delegation to visit him until this year, did you?
A. Yes.

McHUGH: I will ask again to make clear.

Q. The first time that you became a member of the delegation to visit Ly Tong was in 2006, do you agree?
A. Yes.

Q. In fact when you wrote your interrogatory answers in August last year, let me show you the answer on page 20 that I want to take you to. If you look at page 20, it is close to the back and you come down to the paragraph that begins XXXX the question you were asked was:

“Have you ever said to any person that you would like to visit Ly Tong in gaol in Thailand?”

And your answer was "no"?
A. Yes, that's correct, because at that time I didn't go, I said no.

Q. If you come down to the next question, YYYY:

“Have you ever made plans of any nature to visit Ly Tong in gaol?”

Your answer was "no"?

A. At that time I was very busy, I didn't have any plan of doing so.

Q. If you come down to ZZZZ, you see the first question there asks:

“During the period from about 1992 to about 1998 was Ly Tong in gaol in Vietnam?”

Do you see that? And your answer was "I don't remember a specified period", that's correct?
A. That's correct.

Q. The next question, you were asked about the same period and whether a number of groups were established throughout Australia to give support to Ly Tong, do you see that?
A. Yeah.

Q. You say again that you don't remember the specified period?
A. Yeah.

Q. That's correct?
A. Yes.

Q. Then the next question asked whether in that period, 1992 to 1998, you offered to donate proceeds from the sale of your book to Ly Tong's cause?
A. No, no, no.

Q. That's correct?
A. Yes, that's correct.

Q. If you come over the page you were asked whether Ly Tong was released from prison in about 1998 and you said you don't remember?
A. Yeah, that's correct I don't remember.

Q. Then in the next question you were asked was Ly Tong arrested in Thailand in or about late 2000 and the question went on, "If so why was he arrested?", do you see that?
A. Yes.

Q. Your answer was, "I don't remember, please ask Ly Tong"?
A. Yeah.

Q. Is that correct, that answer?
A. Yes, its six years ago, it might have been correct, I didn't remember.

Q. Could you then come down to (viii) which asks:

“Did Ly Tong's trial in Thailand commence in or about 2001?”

A. Yeah.

Q. You say "I don't remember", is that correct?
A. Yes.

Q. Isn't it the case that until very recently you didn't know very much about Ly Tong?
A. I knew about him since 2002. I had been always interested in the cause of Ly Tong and whenever there was a opportunity for contribution to his cause I did, whether its a contribution in cash or contribution in any way I did but then I was actively involved, that was in 2002.

Q. In giving the answer you just gave were you referring to the first part of your answer to the period before 2002?
A. Yes, I was always supporting the cause of Ly Tong by donating or contributing to the cause but spending more time with that cause only happened later.

Q. I want to suggest to you that before 2002 you made no contribution of any description to the cause of Li Tong, do you agree or disagree?
A. No, I don't.

HIS HONOUR: Q. That means; I disagree, does it?

87 Mr McHugh cross-examined upon the subject of the Plaintiff donating copies of his book to aid the cause of Mr Ly Tong. In effect, what Mr McHugh put to the Plaintiff was that his proposal, at least initially, was that he would make 100 copies of his book available to the Victorian committee supporting Mr Ly Tong on terms that the books would be sold for $40 each and the committee and the Plaintiff would then share the proceeds equally. The Plaintiff vehemently denied any such proposal.

88 The Plaintiff’s evidence regarding the donation of copies of his book to a Ly Tong committee received some support from the evidence of Mr Minh Le, who was born in Vietnam in 1952 and came to Australia in 1978 after a period in a communist re-education camp. He said he has known the Plaintiff for about 10 years. From 1999 to 2005, he was national president of the Vietnam Veterans Association. He said the Plaintiff donated 200 copies of his book to that association, although it is unclear as to when that donation was made, except that it was during Mr Le’s presidency. Some of the books, he said, were given away in exchange for donations which, in turn, were sent to a foundation in the USA to support the cause of Mr Ly Tong. No benefit was received or sought by the Plaintiff for his donation.

89 Further support for the Plaintiff’s position regarding Mr Ly Tong was provided by Mr Van Tan Thach. He was born in 1950 in Vietnam and served in the South Vietnamese Army. After the communists assumed control of the country in 1975, he spent 3 years in a re-education camp and later escaped from Vietnam by boat. He came to Australia in 1980.

90 Since 2002, he has been NSW Charter President of a group called the Vietnamese Community. He said he is also a member and president of a committee formed in NSW in 2002 called The Ly Tong Spirit Development Committee.

91 He said that he met the Plaintiff in 2002 when a visit to Mr Ly Tong was being organised. At that time the Plaintiff offered to donate 500 copies of his book to Mr Thach’s committee on condition that all the proceeds would go to the fund to support Mr Ly Tong. Thereafter copies of the white book donated by the Plaintiff were offered at various fund raising functions. They were not sold at a fixed price but rather in exchange for donations, the amount of which varied considerably. All the proceeds were used to support the committee’s work for Mr Ly Tong.

92 In cross-examination, Mr Thach agreed that the first fund raising event at which the Plaintiff’s book was offered was held on 19 June 2002. He told Mr McHugh that the Plaintiff joined the committee some time after donating his books for its purposes but could not recall exactly when.

93 Mr Thach also told Mr McHugh that he visited Mr Ly Tong in prison in Thailand during 2002 and there met a Mr Pham Cao Tri with whom he had a number of conversations. He strongly denied that previously the Plaintiff had proposed to him that he would donate 100 copies of his book upon terms that he would receive one half of the proceeds of sale. He also denied that he asked Mr Tri to help promote the Plaintiff’s book in Melbourne where Mr Tri lived.

94 The Defendants called Mr Tri, who said that he was born in Vietnam in 1945 but now lives in Victoria. He served in South Vietnam’s Air Force from 1968 until 1975. He was then a farmer until 1980 when he came to Australia by boat as a refugee. In Australia he has been involved with the Vietnamese community, being on the committee of an association of ex-Vietnamese Air Force personnel.

95 Mr Tri said in effect that he was a supporter and sympathiser of Mr Ly Tong and met him in Melbourne some time between 1992 and 1998. He has also visited him twice in prison in Thailand. Over the objection of Mr Evatt, I permitted Mr McHugh to lead from Mr Tri evidence of conversations he had with Mr Van Tan Thach in Thailand in May 2002, to the effect that Mr Thach, purporting to act on behalf of the Plaintiff, wanted Mr Tri to assist in selling the Plaintiff’s book in Victoria on terms that the Plaintiff would receive half the proceeds and Mr Ly Tong’s Victorian committee would benefit in respect of the other half.

96 I should note that, somewhat disturbingly, Mr Tri said that about 2 weeks prior to the hearing, he had, at the request of the Third Defendant, Mr Thien, gone to the house of the Second Defendant, Mr Hong Anh Nguyen, where witnesses in the case discussed amongst themselves the evidence they would give. According to Mr Tri, there was nothing sinister in this, as the Second Defendant did no more than tell him, “to tell the truth”.

97 Mr Tri said that he had known Mr Thien for a long time. There was this exchange between the witness and Mr Evatt:

“Q. All right. Did Mr Thien tell you that Professor Thuyen, the plaintiff in this case had brought a claim against Tivi Tuan San newspaper?
A. Yes.

Q. And did he tell you that he was looking for witnesses to say that Professor Thuyen offered to sell his book for Ly Tong, half the proceeds to Ly Tong and half the proceeds to himself?
A. Yes, that's correct.

Q. And did you say words to the effect "I'm just the man you want, Mr Thach told me exactly that"?
A. Yes.

98 Later in respect of the transaction which, according to Mr Tri, was proposed to him on behalf of the Plaintiff, the transcript records:

“Q. When Mr Thach made this offer to you you'd never heard of Professor Thuyen, the author, had you?
A. That's correct.

Q. And you were supportive of Ly Tong?
A. Yes.

Q. And did you hold functions to raise money to support Ly Tong?
A. No.

Q. Why not?
A. Because personally I did not organise those functions because I'm just a member of the executive committee so whatever the committee does I just follow.

Q. Did the committee from time to time raise money to support Ly Tong? Not you, the committee?
A. Yes.

Q. Had you raised over the years monies to support Ly Tong?
A. As far as I know the committee takes the membership contribution to put into the activities to support Ly Tong.

Q. And did your committee from time to time have functions such as barbecues, dances and the like?
A. Yes, sometimes.

Q. Can you explain why you didn't accept Mr Thach's offer?
A. I discussed with the executive committee about the offer but then other members of the committee said that we shouldn't take the offer because had we done so we would have allowed someone to take advantage of the committee.

155 As stated above, in my opinion, the Defendants have failed to prove the substantial truth of imputations 5 and 6.

Contextual Truth:

156 This defence under s16 of the 1974 Act relies on the imputations alleged to be contextual set forth above. For reasons already given, in my opinion, only contextual imputation 2, which, in my view, arises out of the second article that the Plaintiff is a plagiarist, is a matter of substantial truth. That imputation, in my view, relates to a matter of public interest.

157 Thus contextual imputation 2 is to be considered under s16 (2) (c) of the 1974 Act in relation to the Plaintiff’s imputations 5 and 6.

158 In terms of Hepburn v TCN Channel Nine Pty Ltd (1984) 1NSWLR 381, the one contextual imputation which I find arises from the second article and which, in my opinion, is substantially true, differs in substance from the Plaintiff’s imputations 5 and 6, to which it is pleaded, and is capable of being rationally considered as so affecting the Plaintiff’s reputation that the imputations to which it is pleaded did not further injure that reputation.

159 In considering whether the Defendants’ imputation that the Plaintiff is a plagiarist did not prevent imputations 5 and 6 causing further damage, I adopt and seek to follow the principles expressed by Hunt J in Hepburn at page 405:

Defamation Act

additional

some

additional

160 In the result, I am of the opinion, largely as a matter of common sense, that the nature of the Defendants’ contextual imputation on the one hand, when compared with the nature of the Plaintiff’s imputations 5 and 6 on the other hand, does not lead to a conclusion that the Plaintiff’s imputations did not cause further damage. The plagiarism occurred in relation to the red book about 16 years ago. Although repeated, perhaps less reprehensively because of the acknowledgement, Ex C, in the white book more recently, the plagiarism, as it seems to me, has a different quality to the imputations regarding Mr Ly Tong. Those imputations, in my view, strike at the very heart of the Plaintiff’s work in the Vietnamese community and would be bound to cause damage to his reputation beyond anything arising from the imputation of plagiarism. Accordingly, I reject the defence of contextual truth under s16 of the 1974 Act.

Comment:

161 I have concluded that the reference to the Plaintiff being a fraudster in the first article is a comment upon identified facts, namely that the Plaintiff was not entitled to the honorific ‘Professor’ and did not hold a Bachelor Degree as he claimed.

162 As I have found, the former of those two assertions has not been proved to be substantially true but the latter has. This could be significant in some Australian jurisdictions where the common law applies. In NSW it would suffice if the material on which the comment was based was, to some extent, proper material for comment (see s30 (3) (b) of the 1974 Act).

163 Imputations 5 and 6, arising out of the second article, were also, I think, matters of comment. The facts on which the comments were based were, however, in light of my finding that they were untrue, not proper material for comment.

164 In my opinion, the comment that the Plaintiff is a fraudster represents an opinion which might reasonably be based on the fact that the Plaintiff falsely claimed that he held a Bachelor Degree. However, for reasons which hereafter appear, it is unnecessary for me to consider the significance of this finding in relation to legal jurisdictions outside NSW.

Malice:

165 As a reply to the defence of Comment, the Plaintiff pleaded lack of honest belief in the truth of the comment due to malice and arising from the circumstance that:

“The Defendants did not intend to convey the imputations about the Plaintiff because he was not named in the articles complained of and identification was put in issue by the Defendants at the Section 7A trial.”

166 Express malice was the subject of extensive particulars, including:

(a) The first Defendant is and was the publisher of “Tivi Tuan San” being a newspaper – magazine. The second Defendant was at all material times the editor of “Tivi Tuan San” and the third Defendant was the author of the articles complained of published in “Tivi Tuan San” on 17 April and 5 June 2002.

(b) At the same time the Plaintiff was the general manager and editor of the newspaper “The Bell of Saigon” which like “Tivi Tuan San” was published in the Vietnamese language. The two newspapers were and are rivals and competitors.

………………………………

(h) Improper and scandalous allegations of bigamy, forgery and corruption made by or on behalf of the Defendants against the Plaintiff.

(k) Defendants’ conduct of the case.

(m) The Defendants timed the publication of the first article complained of (17 April 2002) to appear in its newspaper just prior to the republication of the Plaintiffs newspaper “The Bell of Saigon”. The Defendants knew that the Plaintiff proposed to republish “The Bell of Saigon” at this time and the reason of the publication complained of was by attacking the integrity of the Plaintiff it would weaken the chances of success of “The Bell of Saigon” and result in the Defendants getting rid of a rival publication.

(n) Material complained of intrinsically malicious.

(o) Although the Defendants have admitted they intended to convey the imputations they denied that the imputations were of and concerning the Plaintiff in the defence (and at the Section 7 A trial)

167 That conduct of the Defendants, post publication, may constitute material from which express malice may be inferred is well established. The following passage taken from the judgment of Jordan C J in Guise v Kouvelis (1946) 46 SR 419 is appropriate to this case:

“There is another matter which, in the present case, I am disposed to think is capable of being regarded as evidence of express malice. Counsel for the defendant at the trial adopted the tactics of attempting to blacken the plaintiff’s character. He cross-examined him in an attempt to show that he was a man of generally bad character, and denounced him to the jury as being in fact a crook. These are tactics which counsel was perfectly entitled to adopt. If they produce the desired effect they may result in a verdict for the defendant, or for a farthing damages. But they carry a heavy risk … In the present case, in view of the plaintiff’s evidence as to the circumstances in which the slander was uttered and of the fact that the defendant must take the responsibility for his counsel’s conduct of the case, I think that counsel’s behaviour is capable of having regarded as reinforcing the inference that the defendant was animated by ill-will towards the plaintiff at the time of the publication of the slander – an ill-will which continued and received a new manifestation at the trial.”

168 Neither the Second Defendant nor the Third Defendant gave evidence of belief in the truth of the comment. On the other hand, the trial was conducted in a way which attempted, in my opinion, to paint the Plaintiff in the worst possible light. This included the unsuccessful and, in my view, scurrilous attempt to portray the Plaintiff as corrupt and as a bigamist.

169 Moreover, in the absence of evidence from the Defendants, the inferences available to be drawn from the facts stated in the particulars set forth above, may more readily be drawn. In all the circumstances, I conclude that the Defendants were actuated by express malice and had no belief in the truth of the comments. They, therefore, lost the benefit of the defence of comment, to the extent it was otherwise available to them.

170 As it seems to me, all Defendants are responsible for the malice, the Second Defendant and the Third Defendant being the servants or agents of the First Defendant.

Other Defences:

171 Apart from defences already mentioned, the Defendants pleaded defences of common law qualified privilege, “Lange” qualified privilege, statutory qualified privilege and unlikelihood of harm under s13 of the 1974 Act. No submissions were made by Mr McHugh in relation to any of those defences. Any defence of qualified privilege would in any event, be defeated by my finding of express malice.

172 As to the defence under s13 of the 1974 Act, it is difficult to see upon what basis it could be contended that the articles were published in circumstances where the Plaintiff was not likely to suffer harm, and Mr McHugh did not so contend. In my opinion, the articles were plainly designed to cause the Plaintiff as much harm as possible and, indeed, did cause significant harm.

Damages:

173 The Plaintiff is entitled to damages in respect of imputations 1, 5 and 6 in the context that the Defendants have proved the substantial truth of imputations 2, 3 and 4.

174 Gatley on Libel and Slander – 10th edition at paragraph 27.25 under the heading mitigation of damages states:

“A defendant may also plead in mitigation of damages the claimant’s general bad reputation or directly relevant background contextual material that bears on the claimant’s reputation. In addition, the defendant may at trial rely in mitigation of damages on any evidence properly before the court, including evidence which has been primarily directed to an unsuccessful plea of justification or fair comment.”

175 Amongst the authorities referred to by Gatley in support of the proposition quoted is Pamplin v Express Newspapers Ltd (1988) 1WLR 116, a decision of the English Court of Appeal. In the course of his judgment, Neill LJ said:

“There may be many cases, however, where a defendant who puts forward a defence of justification will be unable to prove sufficient facts to establish the defence at common law and will also be unable to bring himself within the statutory extension of the defence contained in section 5 of the Defamation Act 1952. Nevertheless the defendant may be able to rely on such facts as he has proved to reduce the damages, perhaps almost to vanishing point. Thus a defence of partial justification, though it may not prevent the plaintiff from succeeding on the issue of liability, may be of great importance on the issue of damages.”

176 In assessing damages, I must have regard to the hurt to the Plaintiff’s feelings and any damage to his reputation. The amount must be sufficient to vindicate the Plaintiff in the eyes of the community. The assessment is by no means an easy task in this case, complicated as it is by the need to consider the impact upon damages of those matter adverse to the Plaintiff found to be substantially true. Moreover, as Mr McHugh pointed out, the Defendants are only liable for damage caused by the defamatory imputations 1, 5 and 6. The Plaintiff admitted, in the course of his evidence, that he was also upset by meanings which he did not sue upon, including the meaning that he was not a true anti-communist and the meaning that he had no authority to speak in public on anti-communist matters.

Hurt to Feelings:

177 The Plaintiff’s evidence as to his prominence in the Vietnamese community was not challenged and there is no doubt in my mind that the defamatory imputations which entitle him to damages caused hurt to his feelings.

178 Earlier, I made reference to his evidence in chief as to how the articles came to his notice and as to his reaction to them. He was cross-examined upon this evidence and, in the result, I found his evidence upon the subject very confusing in an area where I would have expected him to be reasonably precise. For instance, he appeared to contradict himself ultimately, to my mind, leaving open the question whether he found out about the first article prior to the publication of the second article. At one point he seems to suggest that numerous people contacted him by telephone after the second article, but later he made reference to a Mr Hung Dao telephoning him to tell him about both articles, after which he read them.

179 In cross-examination, it emerged that at the s7 A trial of this matter, he claimed to have read the first article three weeks after it was published. His answers to interrogatories state that he became aware of the first article two days after publication when Mr Hung Dao and two others rang him, and the second article “immediately after the second article was published in TV (sic) Tuan San. I do not remember exactly what time but it was in the evening”.

180 He explained the inconsistencies “because this is a long time ago and I’m an old person”. Indeed, not a great deal turns on this part of the evidence except that it reinforces my view that the Plaintiff, at best, was an unreliable witness. One consequence of this on the issue of damages is that I do not accept the Plaintiff’s evidence that “hundreds” of people telephone or contacted him after the articles were published. I could not be satisfied that more than the few who gave evidence or were specifically mentioned in the evidence, did so.

181 I accept Mr McHugh’s submission that on the issue of damages it is important to bear in mind that the Plaintiff was not named in either of the articles. The defamatory imputations would thus have been apparent only to persons who had particular knowledge of the Plaintiff. There is no way of quantifying the number of such people with any precision but, in my opinion, the tenor of the evidence of those who gave relevant evidence, such as Mr Hong Cao Tran, was that many members of the Vietnamese community in Australia, particularly those who were actively involved in Vietnamese community affairs would have identified the Plaintiff or been sufficiently curious to ascertain the identity of the person referred to as Cu Bip.

182 The degree of upset and distress experienced by the Plaintiff, as to which he testified, was supported by the testimony of Ms Minh Luong; by his children Dr Chuong Nguyen and Mr Chuc Nuyen and by Mr Phan Ba Quy, and Mr Tran Hien. Each of those witnesses said they believed the defamatory imputations to be false. Mr Chuc Nguyen, a microbiologist, said that his father called the children together and told them that the defamatory allegations were false. He described him as “entirely upset, extremely angry and very stressed”.

183 Dr Chuong Nguyen, a medical practitioner, also testified as to his father calling the family together and of him reading the two articles apparently on separate occasions. He said his father was “very distressed” and “very angry”. He prescribed sleeping tablets.

184 As to hurt to his feelings, in broad terms, I accept the Plaintiff’s evidence.

Reputation:

185 A number of witnesses gave evidence as to the Plaintiff’s reputation, both in his case and in the case for the Defendants. Mr Phan Ba Quy who lives at Cabramatta, a suburb of Sydney, said that he was born in 1935 and escaped from Vietnam in 1989. He came to Australia in 1994 and holds office in the Vietnamese Aged Association. He met the Plaintiff who is a member of the Association soon after arriving in Australia. He said that as the Plaintiff was in the teaching profession he called him “Professor”.

186 He testified that before publication of the articles the Plaintiff was highly regarded and respected by him. After publication, he said the Plaintiff’s reputation went down a lot in the eyes of members of his association. He denied to Mr McHugh that the Plaintiff had a reputation for being untrustworthy or dishonest.

187 Mr Hong Cao Tran born in 1941 came to Australia in 1982. He lives in the Sydney suburb of Villawood. He was, prior to 1975, in the South Vietnamese Army, attaining the rank of major. In Australia he became a member of the Vietnamese Veterans Association through which he met the Plaintiff in Melbourne about 1993.

188 He has met the Plaintiff on occasions since when the Plaintiff has been in Sydney and once they met in Queensland. He purchased a copy of the red book and was given a copy of the white book by the Plaintiff in 2002. According to Mr Tran, the Plaintiff was highly respected prior to 2002 in the circles in which he, Mr Tran, moved. Today, Mr Tran said that he is less certain about the Plaintiff’s reputation as people do not know whether the articles are correct or incorrect. He, himself, was told by the Plaintiff that the articles were a fabrication, “I did believe in him but I also wonder whether, you know, what the people said about him is correct or incorrect so I was wondering”. To Mr McHugh, Mr Tran said that the Plaintiff was not well known in Sydney apart from his role in the Veterans Association.

189 Mr Minh Le to whose evidence I have already made reference when asked as to the Plaintiff’s reputation in 2002, replied:

“Mr Thuyen was a righteous man and he is willing to contribute to any activities within the Vietnamese community apart from that I was not living close to him so I don’t know much more about him.”

190 In cross-examination, Mr Le conceded that he did not personally know the Plaintiff very well. As I understand his evidence, his knowledge of the Plaintiff was largely confined to his reputation in the Vietnamese community.

191 Mr Tran Hien, another witness born in Vietnam who now lives in Sydney, said that he came to Australia in 1980. He met the Plaintiff about 1985 through the Vietnamese Veterans Association and through Vietnamese community activities. He purchased a copy of the red book from a bookshop in NSW and acquired a copy of the white book for a $40 donation at a fund raising event in support of Mr Ly Tong, organised by the Veterans Association. He said that he read the first article after publication and, in discussion amongst members of the Veterans Association, the Plaintiff was identified as Cu Bip.

192 Upon the subject of the Plaintiff’s reputation there was this exchange with Mr Evatt:

“Q. Sir, before you read these two articles the first of them, can you tell the Court what was the reputation of Mr Nguyen in the circles of people among whom you moved, his reputation at that time?
A. Before that his reputation was very high and he was involved a lot in the Vietnamese community activities and many times he was invited to deliver speech in the community and his speaking was highly admired because people admire him of his anti-communist stance and also admire him because of his general knowledge.

……………………………………………

193 In cross-examination, Mr Hien admitted to Mr McHugh that in 2003 he was advertising representative for The Bell of Saigon and knew the Plaintiff well. He disagreed with Mr McHugh that before publication of the articles the Plaintiff had a reputation either for being untrustworthy or for dishonesty.

194 Mr Tran Dinh Dam to whose evidence I have already made reference said that the Plaintiff’s reputation before publication of the articles was “very bad in the eyes of the community”. For reasons already given, I do not accept Mr Dam as a reliable witness.

195 Another witness called by the Defendants, Mr Pham Cong Khan, who lives at Hoppers Crossing near Melbourne and has been President of the Vietnamese Air Force Veterans Association in Australia said that the Plaintiff now has a bad reputation in the community of the Vietnamese Air Force Veterans Association. Asked about his reputation in early 2002, he replied, “In early 2002 I didn’t hear anything about him about this person”.

196 The evidence about the Plaintiff’s reputation was not particularly satisfactory. Apart from its vagueness, it emanated from persons resident in Sydney, whereas it appears that the Plaintiff has mostly, since coming to Australia, lived in Melbourne. However, on the probabilities, I think that prior to publication of the articles the Plaintiff was reputed as a good citizen, honest and trustworthy, particularly in Vietnamese circles where he moved. I accept that this reputation was diminished by the articles even though, according to the evidence, most of those who spoke to the Plaintiff did not believe the defamatory imputations.

Aggravated and Punitive Damages:

197 The Plaintiff claims aggravated damages and (where available in Australia) punitive damages. Claims for aggravated and punitive damages were made in the Second Further Amended Statement of Claim. Particulars of the former claim were:

“The Plaintiff claims the damages to which he is entitled have been affected by his knowledge of the falsity of the imputations.”

198 In relation to punitive damages the Plaintiff particularised:

“The Defendant acted in contumelious disregard of the Plaintiff’s rights.”

199 The conduct of a defendant, both at the time of, and subsequent to publication, may be taken into account on the question of aggravated damages. In this case, in my opinion, apart from the aggravating conduct particularised in respect of the untrue imputations, the Defendants’ conduct in raising and failing to prove corruption and bigamy constituted aggravating conduct and I propose to include in my award of damages a component for aggravated damages.

200 Exemplary damages are not available in NSW but, in relation to states and territories where they may be awarded, I do not think that this is an appropriate case to award them. Publication of the articles themselves was not, in my view, sufficiently reprehensible to warrant such damages, nor is this a case where compensatory damages are likely to be insufficient to meet the circumstances.

Assessment:

201 I thus come to the assessment of an amount which will reflect the various factors relevant to this case, which I have already identified. Many of those factors point to an award towards the bottom of the range as submitted by Mr McHugh. On the other hand, although the circulation of Tivi Tuan Su was not large, it precisely targeted that section of the community to which the Plaintiff belonged and where he was likely to suffer the most damage to his reputation.

202 Including an allowance for aggravated damages, I think an award of $60,000 would do justice between the parties in this case.

Costs:

203 Mr McHugh requested that costs be reserved and I will make an order in those terms. The matter may be re-listed by arrangement with my Associate for a costs argument

Interest:

204 I allow the Plaintiff interest at 5% per annum on $60,000 for 4 years, such interest totalling $12,000.

Orders:

205 1. I direct a verdict and the entry of judgment against all Defendants in the sum of $72,000 inclusive of interest to the date of this judgment.

3. Exhibits may be returned.

I CERTIFY THAT THIS AND THE PRECEDING 93 PAGES CONSTITUTE A TRUE COPY OF THE REASONS FOR JUDGMENT OF ACTING JUSTICE PATTEN DELIVERED HEREIN.

………………………………..

ASSOCIATE

Citations

Nguyen v Nguyen and Vu Publishers Pty Ltd and Van Thang Nguyen and Thien Huu Nguyen [2006] NSWSC 550

Most Recent Citation

Cases Citing This Decision

1

Mizikovsky v Queensland Television Ltd (No 3) [2011] QSC 375

Cases Cited

3

Statutory Material Cited

1

Carleton v Australian Broadcasting Corporation [2002] ACTSC 127

Saint v John Fairfax Publications Pty Ltd [2002] NSWSC 312

Guise v Kouvelis [1947] HCA 13

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CITATION:	Nguyen v Nguyen & Vu Publishers Pty Ltd and Van Thang Nguyen and Thien Huu Nguyen [2006] NSWSC 550
HEARING DATE(S):	13,14,15,16,17,20,21,22,23,24,27,28,29th March 2006
JUDGMENT DATE :	23 June 2006
JUDGMENT OF:	Patten AJ at 1
DECISION:	See paragraph 205
LEGISLATION CITED:	Defamation Act 1974
CASES CITED:	Hepburn v TCN Channel Nine Pty Ltd (1984) 1NSWLR 381 Pamplin v Express Newspapers Ltd (1988) 1WLR 116 Guise v Kouvelis (1946) 46 SR 419 Carleton v Australian Broadcasting Corporation (2002) ACTSC 127
PARTIES:	Thuyen Nguyen - Plaintiff Nguyen & Vu Publishers Pty Ltd - First Defendant Van Thang Nguyen aka Hong-Anh Nguyen - Second Defendant Thien Huu Nguyen aka Lao Ngoan Dong - Third Defendant
FILE NUMBER(S):	SC No. 20280 of 2003
COUNSEL:	Mr C Evatt with Mr M Rollinson - Plaintiff Mr R McHugh with Mr R Potter - Defendants
SOLICITORS:	Ledinh Lawyers - Plaintiff Corrs Westgarth - Defendants