Nine Network Australia Pty Ltd v Tabbaa

[2018] NSWCA 243

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Nine Network Australia Pty Ltd v Tabbaa [2018] NSWCA 243
Hearing dates:	3 September 2018
Decision date:	25 October 2018
Before:	White JA
Decision:	Order that the respondent’s notice of motion filed 11 July 2018 be dismissed with costs.
Catchwords:	COSTS – Security for costs – Defamation proceedings – Whether special circumstances exist – Where appellants are impecunious – Whether appeal grounds are reasonably arguable – Whether arguable that the primary judge’s statement to witness at the conclusion of the witness’ evidence in the presence of the jury created procedural unfairness – Where question of public interest arises in relation to the defence of honest opinion under s 31 of the Defamation Act 2005 (NSW) – Application dismissed
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW), s 29 Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7 Defamation Act 2005 (NSW), ss 31, 38 Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 51.50, 51.53
Cases Cited:	Carolan v Fairfax Media Publications Pty Ltd (No. 6) [2016] NSWSC 1091 Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 Fraser v Holmes [2009] NSWCA 36 Holmes v Fraser [2008] NSWSC 570 Lloyd v David Syme Co Ltd [1985] 3 NSWLR 728; [1986] AC 350 Marks-Isaacs v Fowler & Ors [2005] NSWCA 37 Michel v R [2009] UKPC 41; [2010] 1 WLR 879 Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806 Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 R v Hayward [2017] NSWSC 1170 Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 Saba v National Australia Bank Limited [1999] NSWCA 93 Soultanov v The Age Co Ltd (2009) 23 VR 182 Tabbaa v Nine Network Pty Ltd (No 10) [2018] NSWSC 468 Tabbaa v Nine Network Pty Ltd (No 11) [2018] NSWSC 389 Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240 Zaia v Eshow [2017] NSWSC 1540
Texts Cited:	David Rolph, Defamation Law (2016) Thomson Reuters
Category:	Procedural and other rulings
Parties:	Nine Network Australia Pty Limited (Applicant) Mouhammad Tabbaa (Respondent 2018/16067 and 2018/16076) Pamela June Tabbaa (Respondent 2018/16080)
Representation:	Counsel: A Dawson SC with M Cowden (Applicant) R Rasmussen (Respondents)   Solicitors: Macpherson Kelley Lawyers (Applicant) Turner Freeman Lawyers (Appellants)
File Number(s):	2018/16067;2018/16076;2018/16080

Judgment

1. HIS HONOUR: This is an application for security for costs in relation to three appeals. The respondents to the application (Mr and Mrs Tabbaa) brought defamation proceedings against the applicant (Nine Network).

2. Mr Mouhammad Tabbaa commenced two defamation proceedings. In the first proceeding (2015/79981) he complained of a segment of a programme “60 Minutes” published by Nine Network on 29 June 2014 with the title “Forced Marriage: An Extraordinary Story of Kidnap, Survival, Escape and Hiding”. He also complained of a publication by Nine Network on the 60 Minutes website on 27 June 2014. (He also complained of the republication of the same segment of the 60 Minutes programme on 7 December 2014, but this last matter was not pressed.)

3. In the second proceeding brought by Mr Tabbaa (2015/181496) he complained of a publication by Nine Network on an early news programme on 30 June 2014, which referred to the earlier broadcast on Sixty Minutes, and a publication on 6 July 2014 described as a “viewer feedback segment” in which opinions and comments of viewers about the main broadcast were published.

4. Mrs Pamela Tabbaa brought defamation proceedings (2015/181481) in respect of the 60 Minutes programme published on 29 June 2014.

5. Each of the publications concerned an interview given by Mr and Mrs Tabbaa’s daughter, Ms Nadia Tabbaa, in which Nadia Tabbaa said that as a 13 year-old living in Sydney she was tricked into going to Egypt from where she was later taken against her will to Jordan and then to Syria to live with her father’s family. Nadia Tabbaa said that in Syria she was trapped, beaten, and married to an older second cousin before escaping on her 18th birthday with the assistance of the Australian Department of Foreign Affairs and Trade.

6. The three proceedings were heard together over 24 hearing days in November and December 2017 before a judge (Fagan J) and jury. The jury was required to answer a long series of questions. They delivered their answers on 21 December 2017. In the case of Mrs Tabbaa’s claim, the jury found that three of four alleged imputations were conveyed, but each was substantially true. The three imputations found to have been conveyed by the segment of the Sixty Minutes program concerning Mrs Tabbaa were that:

1. she lied to her daughter when she said they would take her to Egypt for a holiday;

2. she assisted in the abduction of her daughter; and

3. she conspired with her husband’s family to keep her daughter in Syria for years against her daughter’s will.

7. Nine Network succeeded in its defence of substantial truth. Judgment was entered for Nine Network. In a later judgment of 19 April 2018 Fagan J ordered Mrs Tabbaa to pay Nine Network’s costs on the indemnity basis. His Honour found that Mrs Tabbaa had “... invoked the court’s jurisdiction from the outset on the basis she knew to be false and ... persisted throughout the trial to verdict in that knowledge. This is properly described as an abuse of the Court’s process.” (Tabbaa v Nine Network Pty Ltd (No 11) [2018] NSWSC 389 at [70]).

8. In the first Mouhammad Tabbaa proceeding, that is, the proceeding based on the Sixty Minutes segment, following the jury’s answers to specific questions, judgment was entered for Nine Network. Mouhammad Tabbaa was ordered to pay Nine Network’s costs of that proceeding.

9. In the second Mouhammad Tabbaa proceeding a verdict was entered for Nine Network on the cause of action arising from the publication of the viewer feedback segment. With respect to the cause of action arising from publication of the news bulletin, the proceeding was adjourned to 5 February 2018 for a hearing before the primary judge on damages. The jury found that the news segment conveyed defamatory imputations that Mr Tabbaa forced his daughter to marry her cousin and sold off his daughter to her cousin’s family in Syria, and the video feedback segment broadcast on 6 July 2014 conveyed defamatory imputations that he had lured his daughter overseas in order to force her to marry her cousin, had beaten his daughter, and threatened to kill his daughter if she were not a virgin. The jury found that the imputations were not substantially true. The jury also found that Nine Network had established that a statement that the plaintiff was an awful man was an expression of opinion of his daughter to that effect, that the viewer would have understood that expression of opinion to be based upon other statements in the matter complained of, including that Nadia’s father beat her and threatened to kill her if she were not a virgin and had lured her overseas and while in Syria she was forced by her father’s family to marry her cousin. The jury found that Nine Network had not established that those facts were true, although it found that a viewer would have understood the expression of opinion to be also based on facts stated in the matter complained of that were true and which provided a reasonable basis for the opinion.

10. The primary judge determined that Mr Tabbaa was not entitled to any damages from the false imputations in the news broadcast because, amongst other reasons, any damage to reputation would not be significant, over and above the diminution in character from the imputations that were conveyed and were substantially true (Tabbaa v Nine Network Pty Ltd (No 10) [2018] NSWSC 468 at [145] and [149]). The primary judge also found that the false imputations could not have caused compensable hurt to Mr Tabbaa’s feelings as the evidence which the jury evidently accepted and which the primary judge also accepted concerning the true imputations in the news item showed him to be:

“completely lacking compassion or sense of responsibility for his daughter, interested in her only to the extent of fearing she might infringe his preoccupying concern with her chastity or that she might in some other respect disobey his wishes.” (at [150])

11. The primary judge would have assessed damages in the sum of $20,000 (at [155]), except for evidence that prior to trial Mr Tabbaa had received compensation for defamation arising from publication on the internet by a third party of the content of the main broadcast (at [154]). The primary judge took that into account as a factor in mitigation of damages pursuant to s 38(1) of the Defamation Act 2005 (NSW) (at [154]).

12. The primary judge ordered Mr Tabbaa to pay Nine Network’s costs of the first Tabbaa proceeding. His Honour made no order as to costs of the second Tabbaa proceeding. Having attributed one-third of the hearing time to Mrs Tabbaa’s action, his Honour estimated that with respect to the remaining two-thirds of the hearing time, half of the total hearing time was devoted to the first Tabbaa proceeding, and one-sixth of the total hearing time was devoted to the second Tabbaa proceeding in which the morning news and feedback segment were litigated (at [173]).

13. Mrs Tabbaa’s notice of appeal contains 11 grounds as follows:

“1.   His Honour appeared to have been biased.

2.   His Honour should have disqualified himself from continuing hearing the matter.

3.   His Honour should have withdrawn from the Jury the questions on honest opinion as they were not in accordance with the defences.

4.   The Jury questions on honest opinion which were prepared by the Respondent were misleading, deceptive and contrary to law.

5.   His Honour erred by excessively intervening in the trial to the Disadvantage of the Appellant.

6.   His Honour erred in directing the Jury to answer the (honest opinion) defeasance questions ‘No’.

7.   His Honour erred in curtailing submissions to the Jury by Counsel for the Appellant.

8.   His Honour’s summing up and directions to the Jury were unfair and biased against the Plaintiff.

9.   His Honour erred in making a statement in open Court in favour of the Respondent’s chief witness at a time when His Honour had to make findings which involved that witness. His Honour also erred in making a statement in open Court denigrating the Appellant.

10.   His Honour erred in admitting Exhibit 5 (the Department of Community Services records) into evidence.

11.   His Honour erred in failing to ensure that the Appellant had a fair trial.”

14. Mr Tabbaa’s notices of appeal in respect of each of his proceedings contain additional grounds that are addressed in more detail below.

Application for security for costs of the appeals

15. Nine Network’s application for security for costs is made pursuant to r 51.50 of the Uniform Civil Procedure Rules 2005 (NSW). That rule provides:

“51.50   Security for costs

(cf SCR Part 51, rule 16)

(1)     In special circumstances, the Court may order that such security as the Court thinks fit be given for costs of an appeal.

(2)     Subject to subrules (1) and (3), no security for costs of an appeal is to be required.

(2A)     If an appellant or cross-appellant fails to comply with an order under this rule, the Court may order that the appellant’s appeal or cross-appellant’s cross-appeal be dismissed.

(3)     Subrules (1), (2) and (2A) do not affect the powers of the Court under rule 42.21 (which relates to security for costs).”

16. It is not disputed that Mr and Mrs Tabbaa are impecunious and do not have the means to meet an adverse costs order if their appeals fail. Nine Network’s solicitor estimates that Nine Network would be entitled to recover costs in excess of $1 million pursuant to the costs orders made by Fagan J (Quill p 53). On a solicitor and client basis Nine Network has incurred costs of in excess of $1.5 million in the proceedings below. The evidence on this application is that neither Mr nor Mrs Tabbaa is employed, but rely upon government payments as income. Neither is the registered proprietor of real property. Neither is a shareholder of a company. It is not disputed that both appellants are unable to pay either the costs ordered below or any future costs that they would be ordered to pay if the appeals are unsuccessful.

17. Nine Network seeks orders that Mr Tabbaa and Mrs Tabbaa provide security for costs of the appeals in the amounts of $115,728.29 and $57,864.14 respectively or such other amounts as the Court might determine, and the proceedings be stayed until the security is provided.

18. Nine Network accepts that impecuniosity alone is not a sufficient reason for ordering security for costs. It contends that there are “special circumstances” within the meaning of r 51.50(1) because:

1. the appeals do not have any realistic prospects of success, that is, that they are not reasonably arguable (Saba v National Australia Bank Limited [1999] NSWCA 93 at [12]; Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 at [21]);

2. both appeals raise issues that were not taken at trial;

3. Mrs Tabbaa’s appeal in particular has not been brought bona fide;

4. if successful, Nine Network will not be able to recover its costs of the appeals;

5. nor will Nine network recover its costs of the proceedings below; and

6. the subject matter of the appeals does not raise any matter of public interest.

19. The first is the critical issue. The second and third matters raised are but sub-sets of the principal issue. The appellants’ impecuniosity is not in dispute. Their inability to pay costs of an unsuccessful appeal or of the trial is a corollary of their impecuniosity.

20. In Preston v Harbour Pacific Underwriting Management Pty Ltd Basten JA (with whom Ipp JA and Hoeben JA agreed) said:

“[18]    The principles governing applications for security were helpfully set out by Beazley J in the Federal Court in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 197–198. Although the factors are discussed in the context of an unfettered discretion, in contrast to the power conferred by Pt 51 r 16, the factors themselves remain relevant in assessing special circumstances. The considerations engaged by the concept of ‘special circumstances’ in relation to security for costs were considered by this Court in Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143 (Beazley, Santow and Ipp JJA), and in Porter v Gordian Runoff Ltd [2004] NSWCA 171 (Bryson JA, Sheller and Giles JJA agreeing). The following principles were identified:

(1)   no order for security should be made in the absence of ‘special circumstances’;

(2)   consideration of what may constitute special circumstances should not be fettered by some general rule of practice;

(3)   impecuniosity, without more, will usually be insufficient;

(4)   an order may be appropriate if the appeal is shown to be hopeless, unreasonable or of an harassing nature;

(5)   where a bona fide and reasonably arguable appeal would be stifled by an order for security, such an order should usually not be made, and

(6)   the subject matter of the appeal, including an issue as to the liberty of the individual, or a public interest may provide a reason for not imposing a security order which would stifle the continuation of the appeal.

[19]    Some of these factors, particularly the last two, may better be seen as influencing the exercise of the discretion, rather than as potential ‘special circumstances’, engaging the power.”

21. Mr and Mrs Tabbaa have the evidentiary onus of establishing that any order for security would stifle their appeals (Marks-Isaacs v Fowler & Ors [2005] NSWCA 37 at [24]; Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240 at [28]). But Nine Network must establish the existence of special circumstances. To do that it must show that the appeals are not reasonably arguable.

22. Mr and Mrs Tabbaa did not give evidence on the application, but the evidence of their impecuniosity demonstrates that they could not provide the security from their own resources. They were able to conduct the trial and the appeal to date because their solicitors and counsel have acted on a contingency fee arrangement. Mr Dawson SC who appeared for Nine Network accepted that the only way security could be put up is if money from damages paid in settlement of a claim against another media organisation were available to them.

23. Evidence of that settlement was given at trial. The primary judge made an order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that the relevant exhibit was to be treated as confidential and information about it was not to be published or otherwise disclosed. That order continues. I have considered the amount and date of the settlement, and the description of matters to which it applied. Notwithstanding the evidentiary onus on the appellants on this issue, I consider it likely that an order for security for costs in anything like the amounts sought would stifle the appeal.

24. For the reasons which follow I am not satisfied that special circumstances have been established. I also consider that Mr Tabbaa’s appeal from the judgment entered for Nine Network in his first proceeding raises a matter of public interest. The application for security for the costs of the appeals should be dismissed.

Mrs Tabbaa’s appeal: CA2018/16080

25. Mrs Tabbaa alleged that the Sixty Minutes program conveyed four defamatory imputations, namely:

“a.   The plaintiff lied to her daughter when she said they would take her to Egypt for a holiday ...

b.   The plaintiff assisted in the abduction of her daughter ...

c.   The plaintiff conspired with her husband’s family to keep her daughter in Syria for years against her daughter’s will ... and

d.   The plaintiff condoned her daughter being married to a cousin being a man she had never met.”

26. The jury found that the first three matters had been conveyed by the broadcast, but the fourth was not. It found that each of the meanings that were conveyed was substantially true.

27. None of the grounds of appeal raise any issues concerning the accuracy of the directions to the jury in relation to these findings.

28. Ground 8 of the notice of appeal asserted with no specificity that the primary judge’s summing up and directions to the jury were unfair and biased against Mrs Tabbaa and that his Honour erred in failing to ensure that she had a fair trial. On this application counsel for Mrs Tabbaa submitted that the primary judge did materially misdirect the jury in relation to her case by citing to the jury a dictionary definition of the word “abduct” without consulting counsel as to the appropriate course to take to answer the question. As noted above at [25], one of the imputations alleged by Mrs Tabbaa was that she had assisted in the “abduction” of her daughter. The jury sent a note to the primary judge during the course of his Honour’s summing up requesting that his Honour explain under what conditions abduction or kidnapping could be applied to the actions of a legal guardian of underage children. Mrs Tabbaa complains that, without referring to counsel, the primary judge gave the jury a dictionary definition of “abduct” which was material to Mrs Tabbaa’s case because she was Nadia Tabbaa’s legal guardian.

29. A complaint about the direction given to the jury about the meaning of “abduct” is not a ground of Mrs Tabbaa’s appeal. The rules require that a ground of appeal be stated briefly, but specifically. There is no specific complaint in the notice of appeal about that direction.

30. Although Mrs Tabbaa says that the primary judge gave a direction in relation to the meaning of the word “abduct” which, I infer, is said to be erroneous, neither counsel sought to be heard on how the primary judge should respond to the jury’s request. No redirection was sought.

26. Mrs Tabbaa complains that the primary judge gave the jury a dictionary definition of “abduct”. Counsel did not explain why this was inappropriate. The question on appeal is not whether a parent might be said to have abducted or to have assisted in the abduction of her child where she or the father might be thought to have parental responsibility for deciding where the child should live. The question rather was what was conveyed, or was understood to have been conveyed, by the statement by the television reporter that at the age of 13 the plaintiff was “abducted by her own father” and the imputation that Mrs Tabbaa assisted in the abduction of her daughter. In the context in which the question is raised, and in the absence of any request for a redirection, I do not think that Mrs Tabbaa has a seriously arguable complaint on appeal. In any event, no new trial could be ordered unless it appears to the Court that some substantial wrong or miscarriage has been occasioned by a misdirection (UCPR r 51.53). Given that no redirection was sought, and that the complaint is not identified in the grounds of appeal, it is not reasonably arguable that even if the primary judge erred in his direction, the appeal would be allowed and a new trial ordered.

27. I deal with grounds 1, 2, 5, 9 and 11 below at paras [39] ff.

28. The complaint in ground 3 of the grounds of appeal that the primary judge ought to have withdrawn from the jury questions on honest opinion does not arise unless the defence of substantial truth fails. Subject to the complaint about the direction regarding the meaning of the word “abduct” that is addressed above, there is no complaint about the directions to the jury that would found a ground of appeal from its finding of substantial truth.

29. Ground 4 of the appeal (that the questions submitted to the jury on the defence of honest opinion were misleading, deceptive and contrary to law) does not arise for the same reason. In any event, there was no objection by counsel for the appellant at trial to the submission of the questions.

30. Ground 6 relating to the “(honest opinion) defeasance questions” does not arise in relation to Mrs Tabbaa’s appeal having regard to the jury’s findings on substantial truth.

31. No submission is advanced in relation to ground 7 of the notice of appeal that the primary judge curtailed submissions to the jury. It was agreed that the time for counsel’s addresses should be limited to one day. The defendant’s counsel slightly exceeded that limit. The plaintiffs’ counsel was allowed a slightly greater time for address than allowed to the defendant’s counsel. This ground is not reasonably arguable.

32. Ground 10 (the admission of records of the Department of Community Services) is not reasonably arguable. The primary judge dealt with this question in his reasons for judgment No. 11. His Honour recorded that the defendant initially tendered a bundle of records that were marked as Exhibit 5. At the time of tender neither counsel referred to s 29(1)(d) of the Children and Young Persons (Care and Protection) Act 1998 (NSW). Later, the primary judge, having become aware of the section through a current law bulletin which summarised the decision of R A Hulme J in R v Hayward [2017] NSWSC 1170, brought to the parties’ attention that the effect of that section was, in his Honour’s view, that most of the records that had been admitted were inadmissible by reason of that provision. Neither party sought to have the documents that had been admitted removed from the jury’s consideration. There had been some cross-examination on some of the documents. The primary judge recorded that the plaintiffs’ counsel said that he wished to tender another bundle of similar documents. The primary judge recorded that he ruled that despite the “statutory inadmissibility”, if more material of the same nature were tendered by consent, he would have to admit it “in order to avert an imbalance in the trial”.

33. Assuming without deciding that the primary judge was correct in his interpretation of s 29(1)(d) of the Children and Young Persons (Care and Protection) Act 1998, that the documents that were admitted ought not to have been, that was only because neither party referred the judge to the relevant provision. It could not be said in such a case that the admission of the material occasioned a substantial wrong or miscarriage. Mrs Tabbaa did not seek to demonstrate by reference to any particular document that she says was wrongly admitted that a substantial miscarriage occurred. In any event, she does not appeal against the grounds upon which the primary judge admitted the tender. After the primary judge drew the parties’ attention to s 29(1)(d) of the Children and Young Persons (Care and Protection) Act 1998 no party applied for the jury to be discharged and neither party, it appears, sought any direction restricting the use that the jury might make of that material.

34. Ground 5 asserts excessive judicial intervention. Ground 11 asserts that Mrs Tabbaa did not have a fair trial. Grounds 1 and 2 allege actual or apparent bias. Ground 9 may be considered to be particular matters relied on for the other grounds.

35. Mr Rasmussen, who appeared for Mr and Mrs Tabbaa, referred in support of this ground to a statement made by the primary judge in the presence of the jury at the end of the evidence of a Ms Walker, who is Mrs Tabbaa’s sister. Prior to Ms Walker giving evidence a Mr Rodgers had given evidence. He is the elder son of Mrs Tabbaa from her first marriage and accompanied Nadia Tabbaa, his half-sister, to Egypt. I was not referred to the detail of Mr Rodgers’ evidence or Ms Walker’s evidence, but it appears from the primary judge’s summing up to the jury that Mr Rodgers had given evidence of having been a party to a plan to trick Nadia into agreeing to travel to Egypt and ultimately to Damascus. He is said to have described a conversation he had with Nadia’s brother, Omar, that Nadia would be taken from Cairo to meet her father and handed over to relatives in the Middle East. Both Mr and Mrs Tabbaa denied there was such a plan and Mrs Tabbaa said that Nadia was told that Omar would be going. The primary judge told the jury that Mrs Tabbaa’s evidence was in flat contradiction of, amongst other things, what Mr Rodgers said he understood.

36. It appears from the primary judge’s summing up that both Mr Rodgers and Ms Walker gave evidence of Mr Tabbaa having been violent and abusive towards Mrs Tabbaa. Both Mr Tabbaa and Mrs Tabbaa denied that he beat her.

37. More detail as to the evidence of Mr Rodgers and Ms Walker appears from the primary judge’s reasons when dealing with questions of costs of the proceedings brought by Mrs Tabbaa (Tabbaa v Nine Network Pty Ltd (No. 11) [2018] NSWSC 389). His Honour said that Nadia Tabbaa gave evidence that Mr Rodgers, her older half-brother with whom she was on good terms, told her in late 2001 that he had won two air tickets for a holiday in Egypt and invited her to accompany him. His Honour recorded that other evidence showed that the tickets had been bought by Omar Tabbaa, Nadia’s brother. It was Nadia’s evidence that she had been frequently physically abused by Omar, including by being regularly beaten with a belt as he physically chastised her in an attempt to impose restrictions on her manner of dress, contacts with friends and with other families and on her activities. He was eight years older than she (at [36]). His Honour found that Nadia’s father, Mr Tabbaa, had been violent towards Mrs Tabbaa throughout their relationship and when Nadia was eight years old Mrs Tabbaa fled from her husband leaving him in the Middle East and returned to Australia with her five children. Mr Tabbaa did not return to Australia until many years later (at [15]).

38. The primary judge recorded that Mr Rodgers gave evidence that he made a plan with Mrs Tabbaa and with Omar Tabbaa to deceive Nadia into travelling to Cairo in January 2002 (at [20]) and that at the instigation of both Mrs Tabbaa and Omar, he had lied to Nadia about having won tickets in a competition. The primary judge recorded that Mr Rodgers said he was told by Mrs Tabbaa and Omar Tabbaa that Omar would follow them to Cairo and would take Nadia from there to be left with her father’s relatives in the Middle East. He withheld this information from Nadia and described her surprise and concern when Omar joined them in Cairo (at [53]). Clearly Mr Rodgers’ evidence was directly contradictory of Mrs Tabbaa’s evidence.

39. The primary judge also recorded that Ms Walker said that Mrs Tabbaa had admitted to her very shortly after Nadia departed for Cairo that “We’ve abducted Nadia and as a matter of fact they’re in the air now” (at [59]).

40. In the passage complained about at the conclusion of Ms Walker’s evidence the primary judge said in the presence of the jury:

“Q.    Ma’am, that completes your evidence and you’re free to go. I think you said earlier that you – this may not be exactly how you put it, but you’d spoken quite harshly to Geoffrey Rodgers about his involvement in all this.

A.    Yes, I did.

Q.    I don’t ask you to comment on this, but I’ll just read you out an answer that he gave yesterday in Court, and then you’re free to go.

A.    Right.

Q.    He said this yesterday, ma’am: ‘I expressed my deep sorrow to Nadia about my role in what myself and my mum and Riad and Omar had done to her and their experiences overseas. I’ll always regret that, the effect that that’s had on her life, which it seems is going to be an ongoing thing, and I just feel rotten. I still feel really, really, deeply sorry about what happened to her.’ You’re free to go, ma’am.

A.    Thank you.”

46. Mr Evatt who appeared with Mr Rasmussen for the appellants at trial, objected to that comment. In the absence of the jury he asked the primary judge to disqualify himself on the ground that it “... just seems that you’re biased against the plaintiffs to read out a passage like that.”

47. The application was rejected. The primary judge said that he would not be deciding the facts and the jury had been told, and would be told again, that the facts were entirely matters for them. The primary judge said that if there were to be any application made the application should be for the discharge of the jury on the basis that they had been biased by something they had heard, but he had no intention of doing that.

48. Given the nature of the evidence of Mr Rodgers and Ms Walker as described by the primary judge in his judgment (No. 11) it is arguable that the jury might have considered the remarks made to the jury at the conclusion of Ms Walker’s evidence to be an endorsement by the primary judge of both Mr Rodgers’ evidence and her evidence. Impressions conveyed in a trial may not be susceptible to rationalisation. But if rational explication is required, the jury might ask why the primary judge would have made the comment if he did not believe the witnesses’ evidence, and by necessary inference disbelieve the plaintiffs’ evidence.

49. At the commencement of the summing up on 19 December 2017 the primary judge gave the following directions to the jury:

“I told you, right at the outset, that the matters of fact, the evaluation of witnesses, are entirely matters for you. I have repeated that from time to time, because I intruded into the evidence; I asked some questions. Sometimes to speed things up. Sometimes I thought to clarify things. Sometimes to cut things off. But I told you, at the times when I did that, that you were not to be influenced by any view that I appeared to take, or that you thought I might be taking. It is none of my role to take any view of the evidence or the conclusions of fact.

There is one of those occasions when I raised something with a witness, about which I did not specifically reinforce to you that evaluations of fact are for you. That was when Mr Rodgers completed his evidence, and then Ms Walker came in and gave her evidence. And you will recall, at the end of her evidence, I read out to her something that Mr Rodgers had said. He had said that he was deeply remorseful for his part in this, what he thought was a cruel trick on Nadia.

Now, whether you accept Mr Rodgers’ evidence about there having been a scheme – and he gave chapter and verse on the scheme; he described that he went to meetings with his mother and Omar, and they told him, specifically, how they would deceive Nadia and lure her overseas, and that she would be left there, he thought, for a couple of years – whether you accept him or not is entirely up to you.

Mr Evatt says he is lying. Whether you accept Ms Walker or not is entirely up to you. But the reason that I stopped to read back that answer that he had given, to Ms Walker, is this. Witnesses give their evidence in the order in which a party calls them. When one witness has finished, that witness may remain in court and hear the evidence of the others. If Ms Walker had been called first, and Mr Rodgers called afterwards, she would have heard him give that evidence.

Now, these witnesses that come and give evidence here, they are not parties to the proceedings, but they are not just fodder to a legal machine. They are human beings. And when there is said, between an aunt and a nephew, that the aunt strongly disapproved of what she understood Geoffrey had done, and when he told you what he says he has done, and that he is very sorry about it; it is just a matter of human courtesy that I tell her what he said in open court. If the order of witnesses had been different, she could have heard him say it herself. The order was as it was, and it seemed to me a matter of human decency to tell her that he had said that in open court, as between two blood relatives. But doing that does not convey any view about the truthfulness of them. I have told you over and over, and I tell you again, it is entirely for you. You judge who is telling the truth and who is not.”

50. It is arguable that this does not explain why, in the absence of the jury, the defendant’s solicitor could not have been asked to convey Mr Rodgers’ evidence to Ms Walker.

51. Mr Rasmussen also submitted that after the verdict had been brought in the primary judge made observations not based upon any submission by counsel for Nine Network that Mrs Tabbaa’s proceedings were obviously an abuse of process and suggesting that that might be the basis for ordering costs on the indemnity basis. The primary judge said that Mrs Tabbaa’s evidence was “just absolutely appalling”. However, this took place after the jury had brought in their verdict which necessarily entailed rejection of her evidence, a view with which the primary judge evidently agreed. I do not think there is anything in the latter complaint.

52. But the statements made to Ms Walker in the presence of the jury raise an arguable ground of appeal.

53. The appellants’ complaints of excessive or inappropriate judicial intervention giving rise to procedural unfairness, and actual or apprehended bias, are each distinct. In Michel v R [2009] UKPC 41; [2010] 1 WLR 879 Lord Brown said in the context of a criminal trial before a jury (or the jurats, being the fact-finding equivalent of a jury in Jersey), (at [34]) that:

“[The judge] must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced.”

54. Lord Brown’s observations were endorsed by Basten JA in Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 at [16]-[18]. His Honour said, referring to Lord Brown’s reasons:

“[18]     These statements are not merely aspirational; they describe the judicial function. Nor is the problem necessarily analysed as one involving an appearance of pre-judgment. The idea that the judge must maintain the appearance of impartiality, by maintaining an appropriate degree of detachment, are essential aspects of his or her function as the officer presiding in the court.”

55. The appellants’ complaint essentially is that the primary judge’s statement to Ms Walker at the conclusion of her evidence would have been seen by the jury as an endorsement by him of Mr Rodgers’ evidence of being a party to a plan to trick Nadia into travelling to Egypt and then to take her to Syria. The appellants contend that the primary judge, during the course of the trial, revealed his disbelief in the version of events presented by the plaintiffs and their witnesses and this was not cured by directions to the jury that questions of fact, including which witnesses should be believed and which disbelieved, were entirely matters for them.

56. A determination of the ground of appeal that there was procedural unfairness in the trial would require a much more detailed consideration of the transcript than was attempted in the hearing before me. But I do not characterise this ground of appeal as being hopeless or unarguable. The question then would be whether Mrs Tabbaa was deprived of the possibility of a successful outcome.

57. Nine Network submitted that it could not in any event be said that there was a substantial wrong or miscarriage of justice. The Court is not to order a new trial unless it appears to the Court that some substantial wrong or miscarriage has been occasioned (Uniform Civil Procedure Rules, r 51.53(1)). In my view, however weak Mrs Tabbaa’s case might appear to be (and the primary judge thought it was so weak as to be an abuse of process based on his and the jury’s assessment of her credibility), if it were found that there was not a fair trial because the primary judge had impermissibly conveyed his belief in the credibility of the defendant’s witnesses and his disbelief in the plaintiffs’ witnesses, which could not be or was not redressed by the directions to the jury, then it is arguable that there was a substantial wrong or miscarriage of justice (Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806 at [39]).

Mr Tabbaa’s appeals

58. The above conclusion also applies to Mr Tabbaa’s appeals.

59. Mr Tabbaa relies upon additional grounds of appeal as follows:

“12.   His Honour erred in not upholding the Appellants’ Notice of Motion filed 4 January 2018 in which, among other things, Orders were sought that the verdicts for the Defendant on the honest opinion questions be set aside.

13.   His Honour erred in paragraph 79 of his Judgment by entering verdicts for the Defendant although his Honour had found they were inconsistent with the law as he took it to be.

14.   His Honour erred in law in not construing the Jury’s answers in the honest opinion questions as relating to the imputations rather the matter complained of.

15.   His Honour erred in entering Judgment in favour of the Defendant on the honest opinion questions merely because counsel agreed to take this course.

16.   In respect of the second feedback claim his Honour erred in allowing the jury’s answer be taken for the honest opinion question relating to the imputation ‘The Plaintiff is an awful man’ when the jury had found the Defendant had established that imputation was substantially true.

17.   His Honour erred in failing to award the Appellant aggravated damages for the morning television news program (First Count) by not taking into account that hurt and upset over untrue imputations entitles a Plaintiff as in this case to such an award.

18.   His Honour erred in Paragraph 159 of his Judgment in finding that the Appellant had already received from a third party more compensation than his claim for damages proved to be worth because the compensation received by the Appellant was for the Sixty Minutes program broadcast 29 June 2014 and the compensation referred to by his Honour was for another different publication broadcast 30 June 2014.

19.   His Honour erred in refusing to allow the Appellant to refer to the Respondent failing to call witnesses.

20.   His Honour erred in not aborting the trial when it failed to end in three weeks.

21.   His Honour erred in not ensuring that Junior Counsel for the Appellant had time to obtain and did obtain instructions before he consented to verdicts for the Respondent for the Honest Opinion questions.

22.   His Honour should have required the Jury to answer any possible questions in relation [to] the defences of contextual truth.

23.   His Honour should have required the Jury to answer any possible questions in relation to the defences of contextual truth. [sic]

24.   His Honour erred in not directing the jury to give their answers to the questions orally.

25.   His Honour erred in not allowing more time for Counsels’ final addresses.

26.   His Honour erred in failing to award the Appellant damages including aggravated damages.”

60. Mr Tabbaa also relies upon the grounds of appeal raised in Mrs Tabbaa’s notice of appeal, including grounds 3, 4 and 6 that do not arise in her appeal because no question of the defence of honest opinion arises in her appeal.

61. The questions arising in respect of the defence of honest opinion under s 31 of the Defamation Act 2005 were complex. The primary judge was asked to leave 35 questions and many sub-questions to the jury to be answered “Yes” or “No”. These questions extended to 24 pages.

62. In the first of Mr Tabbaa’s proceedings (2015/79981) in respect of the publications of the Sixty Minutes segment broadcast, the jury found that the broadcast conveyed to the ordinary reasonable viewer the following meanings (or any meaning which did not differ in substance):

“(a)    The Plaintiff forced his daughter when she was only 13 to marry her cousin 15 years her senior

(b)   The Plaintiff abducted his daughter when she was 13 and sent her to Syria to be held captive by his relatives for 5 years against her will

(c)   The Plaintiff was violent and abusive towards his daughter

(d)   The Plaintiff threatened to slit his daughter’s throat which made her fear for her life

(e)   The Plaintiff was violent and abusive towards his wife, beating her regularly in front of his daughter

(f)   The Plaintiff beat his daughter with hands and belt at her Aunt’s house in Jordan

(g)   The Plaintiff permitted the beating of his daughter by his son

(h)   The Plaintiff forced his daughter to undergo a virginity test

(i)   The Plaintiff is the kind of person who would kill his daughter for not being a virgin

(j)   The Plaintiff threatened his daughter that he would slit the throat of his wife

(k)   The Plaintiff threatened his daughter that he would slit the throat of her sister

(l)   The Plaintiff bashed, beat and terrorised his wife for 20 years.”

63. The jury found that all of those imputations were defamatory of Mr Tabbaa. Nine Network did not contend that the first imputation was substantially true. The jury found that imputations (b), (c), (d), (g), (h), (j), (k) and (l) were substantially true. The jury found that imputations (e), (f) and (i) were not substantially true. The jury also found that the Sixty Minutes broadcast conveyed other contextual meanings which were substantially true, namely that:

1. Mr Tabbaa’s violent controlling treatment of his wife was such that she fled Jordan without his knowledge and moved the family to Australia; and

2. by his violent and abusive mistreatment of women, Mr Tabbaa had committed crimes.

64. The questions submitted to the jury, which had been prepared by the defendant’s legal representatives and acquiesced in by those of the plaintiff, raised only the following questions relevant to the defence of honest opinion on which Nine Network relied under s 31 of the Defamation Act:

“7.   Has the Defendant, Nine Network Australia, established that the first matter complained of would have been understood by the viewer as an expression of the opinion of:

(a)   Rania Farrah (Nadia Tabbaa), and/or

(b)   Omar Tabbaa

Rather than a statement of fact, to the effect that ‘The Plaintiff is the kind of person who would kill his daughter for not being a virgin’?”

The jury answered “Yes” to both (a) and (b).

65. Question 8 asked:

“8.   Has the Defendant, Nine Network Australia, established that the viewer would have understood that expression of opinion to be based on one or more of the following facts stated in the matter complained of:

(a)   Nadia’s father was a violent and abusive man

(b)   Nadia was subjected to a virginity test by her father

(c)   Nadia was a virgin at the time of the test

(d)   Nadia’s father was not satisfied with the results of the test

(e)   By reason of that dissatisfaction, Nadia’s father beat her with his hands and belt

(f)   Nadia’s father permitted her brother to participate in the beating

(g)   The beating only stopped upon the intervention of her aunt

(h)   Nadia’s brother told her after the beating that if her father had believed that she was not a virgin, his father would have killed her.”

The jury answered each question “Yes”.

66. In answer to question 9 the jury found that the facts stated in paragraphs (a)-(h) of question 8, upon which the expression of opinion in paragraph 7 would be understood to be based were true, except for paragraphs (d) and (e). In answer to question 10 the jury found that Nine Network had established that the expression of opinion in question 7 might reasonably be based on the facts set out in question 8 that the jury found were true. In answer to question 11 the jury found (as they had been directed to find) that Mr Tabbaa had not established that Nine Network had reasonable grounds to believe that Nadia Tabbaa did not honestly hold the opinion she expressed.

67. Materially the same answers were given to materially the same questions in respect of the second matter complained of in the first of Mr Tabbaa’s proceedings.

68. Nine Network submitted that by reason of the answers to questions 7-11 the defence of honest opinion under s 31 of the Defamation Act had been established. This was so notwithstanding that the only matter which the jury was asked to find was a matter of opinion, was that the 60 Minutes segment would have been understood by the viewer as an expression of the opinion of either or both of Nadia Tabbaa or Omar Tabbaa to the effect that “Mr Tabbaa is the kind of person who would kill his daughter for not being a virgin”, rather than this being a statement of fact. The findings that the Sixty Minutes segment conveyed an opinion to that effect that was based upon sufficient facts stated in the broadcast that were true, and that Mr Tabbaa had not established that Nine Network had reasonable grounds to believe that Nadia Tabbaa did not honestly hold that opinion, were said to be a complete defence under s 31, notwithstanding that the opinion was separate and distinct from the matters of fact also conveyed by the broadcast that were defamatory and were found not to be substantially true.

69. This question was not the subject of any debate at the time the jury’s answers were received. Mr Dawson SC submitted that because the opinion defence succeeded it operated as a complete defence. Mr Rasmussen who appeared for Mr Tabbaa agreed that that “... seems to be the case”. Judgment was given for Nine Network accordingly.

70. Curiously, the same contention appears to have been available to Nine Network in respect of the defence of honest opinion arising from the news broadcast the subject of Mr Tabbaa’s second proceeding. Although the particular defamatory imputations and identified matter of opinion were different, the issue raised appears to be identical. However, Nine Network did not contend that a complete defence of honest opinion had been established in the second proceeding.

71. On 4 January 2018 Mr Tabbaa filed a notice of motion that sought, amongst other things, that the “verdicts for the defendant be set aside”. The notice of motion was filed within the 14-day period allowed by UCPR r 36.16 for a party to challenge final orders that have been entered.

72. On 19 April 2018 the primary judge dismissed the notice of motion (Tabbaa v Nine Network Pty Ltd (No. 10) [2018] NSWSC 468). His Honour found that the agreement by counsel for Mr Tabbaa that judgment be entered for Nine Network constituted an insuperable obstacle to Mr Tabbaa’s notice of motion to set aside the judgment (at [39]). His Honour observed that on 14 December 2017 (day 19 of the trial) when the evidence was almost complete, Mr Dawson SC produced to the Court and to the plaintiffs’ counsel what he described as “finalised” questions to go to the jury. Those questions were intended to be given to the jury the following day. They were a revision of an incomplete skeleton of questions which had been circulated early in the trial by defence counsel (at [40]). Defence counsel took no substantive objection to the question. His Honour found (at [44]) that:

“44.   It was implicit in Question 7 that the defendant contended the main broadcast would have been understood by the viewer as an expression of opinion that ‘The Plaintiff is the kind of person … (etc)’ and that, if the jury answered Question 7 affirmatively then, subject to their answers to Questions 8, 9 and 10 and the trial judge’s ruling on public interest, there would be a defence to the entirety of the broadcast matter, not just to one of the imputations. No written or oral submissions to the contrary were advanced by the plaintiff at that time of the questions being produced by the defendant or thereafter.

45.   Defence counsel’s address commenced later on day 20. It continued on Monday, 18 December 2017 (day 21). The address covered Question 7 and the other questions concerning honest opinion. At the luncheon adjournment on day 21 I queried the drafting of the introductory text of Question 7. The defendant’s counsel justified it on this basis:

[I]f there is another imputation [that is, other than the one relied upon by the defendant as expressing an opinion] found conveyed but not proved to be true, then the opinion defence, as s 31 makes plain, is a defence to the entire publication …

What we’re saying is, if there is an opinion conveyed by the broadcast in the sense of that meaning - namely, the plaintiff is the kind of person who would kill his daughter for not being a virgin … then that is a complete defence so long as the proper material that we allege is proper material – that is, it’s true, and it doesn’t matter that there might be untrue statements, such as other imputations … contained in the broadcast.

[I]f I fall back to [the defence of honest opinion] and they’re satisfied that [imputation] (i) [is] conveyed [and is] defamatory and true, is also a statement of opinion, and they’re satisfied there is proper material to support that opinion, that’s a defence to the whole matter and it gets me over the absence of a defence under s 25 …

46. This gave full expression to what I have said, at [44] above, was implicit in the formulation of Question 7. Counsel for the plaintiff made no submission to the contrary of that analysis at that time. Following the luncheon adjournment but before the jury returned to court there was further discussion with senior counsel for the defendant, this time seeking clarification of the matter of public interest relied upon. The plaintiff’s leading counsel stated that ‘public interest is in dispute’. Discussion of the honest opinion defence was not completed because the jury were waiting and counsel were informed that the subject would be returned to at 4:00 pm.

...

48.   The plaintiff’s counsel still made no submission to the contrary of the defence position that the defence of honest opinion, based upon imputation (i), would operate as a defence to the whole cause of action for the published matter notwithstanding that matter conveyed other imputations which were not matters of opinion and which the jury might find not substantially true.”

73. It is seriously arguable that s 31 does not have the effect for which Nine Network contended at trial and in which the plaintiffs’ counsel acquiesced. The primary judge reviewed relevant authorities. The position can hardly be regarded as settled. Section 31 of the Defamation Act 2005 (NSW) relevantly provides:

“(3)    It is a defence to the publication of defamatory matter if the defendant proves that:

(a)    the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact, and

(b)    the opinion related to a matter of public interest, and

(c)    the opinion is based on proper material.

(4)    A defence established under this section is defeated if, and only if, the plaintiff proves that:

...

(c)    in the case of a defence under subsection (3)—the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.

(5)    For the purposes of this section, an opinion is based on proper material if it is based on material that:

(a)    is substantially true, or

...

(6)    An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.”

74. Section 8 of the Defamation Act provides:

“8   Single cause of action for multiple defamatory imputations in same matter

A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter.”

75. As Simpson J said in Holmes v Fraser [2008] NSWSC 570, “s 8 is predicated upon the notion that a defamatory publication is defamatory because it carries imputations that are defamatory” (at [58]). Section 31 provides that the defence of honest opinion is a defence to “the publication of defamatory matter”. On appeal in Fraser v Holmes (Fraser v Holmes [2009] NSWCA 36) Tobias JA said (at [78]) that it is “’the matter’ which must be an expression of opinion rather than a statement of fact. The position at common law seems to coincide with that under the 2005 Act.” The primary judge noted that in Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 Gummow, Hayne and Heydon JJ said that at common law it is the “imputation” which must be reasonably capable of being regarded as comment, applying Lloyd v David Syme Co Ltd [1985] 3 NSWLR 728; [1986] AC 350.

76. In Manock, Gummow, Hayne and Heydon JJ rejected the submission that the meaning pleaded by the plaintiff is irrelevant to the defence of fair comment. In Soultanov v The Age Co Ltd (2009) 23 VR 182, 199 at [44], [46] and [48] Kaye J applied Manock to the s 31 defence (see David Rolph, Defamation Law (2016) Thomson Reuters at [13.60]).

77. The primary judge also cited observations of McCallum J in Carolan v Fairfax Media Publications Pty Ltd (No. 6) [2016] NSWSC 1091 at [100] and in Zaia v Eshow [2017] NSWSC 1540 at [73] that the statutory defence of honest opinion must be addressed to the matter complained of in its defamatory sense and the imputations may be expected to inform an understanding of the defamatory sense sought to be defended as opinion.

78. It is clearly arguable that a defence of honest opinion under s 31(3) would not be made out merely if the published “matter” conveys in part an expression of opinion, but that opinion is unrelated to the defamatory imputations found.

79. The primary judge considered that if the defence under s 31(3) is engaged it is a defence to the whole published matter, but the defence is only engaged if the whole of the published matter is reasonably capable of being regarded as, and only as, an expression of opinion (at [78]). His Honour considered that:

“Where the matter conveys both imputations which are ‘an expression of opinion’ and other defamatory imputations of fact which have not been justified, the defence of honest opinion does not operate in a limited way, as a defence to the opinionative imputations. That is because in such a case the defence is not engaged at all.”

80. The primary judge did not give effect to that opinion because of the position taken by both parties up to the making of orders following the jury’s answers.

81. Unless the construction of s 31(3) contended for by Nine Network is correct, it is at least arguable that the consequence of the jury’s answers should not have been the entry of judgment for Nine Network, but a further hearing before the judge to assess damages, if any, arising from the imputations that were either conceded or were found not to be substantially true. But counsel for the plaintiffs accepted that it seemed to be the position that there should be judgment for the defendant as the result of the jury’s answers and judgment was entered accordingly. The primary judge found (at [80]):

“If the plaintiff had wished to oppose at trial the defendant’s contention that s 31(3) provides a complete defence to a matter notwithstanding that defamatory factual imputations are conveyed in conjunction with any expression of opinion, it is clear that his counsel would not only have had to say so but would also have had to assist the Court with reference to and argument on the numerous authorities. The fact that the plaintiff’s counsel refrained from advancing during the trial any legal argument or citation on the aspect of these defences which is now under consideration confirms that the plaintiff unequivocally acquiesced in the position taken by the defendant and must be held to that.”

82. It is arguable that at trial both parties ought to have assisted the Court with reference to the numerous authorities on s 31 that were later considered by the primary judge in his reasons of 19 April 2018 and which, at least arguably, do not support the position taken by the defendant. The defendant formulated questions for the jury that it contended would be sufficient to establish the defence of honest opinion under s 31. If the forensic position the defendant adopted as to what needed to be established to sustain the defence is incorrect, as may be the case, it is arguable that unless prior to the submission of questions to the jury the plaintiff had expressly acknowledged that the defendant’s contention as to the scope of the s 31 defence was correct, so that the defendant would be prejudiced by the plaintiff’s changing his position, the defendant should be held to the consequences of its formulation of the questions as being, as it contended, sufficient to sustain the defence. It is also arguable that as the notice of motion seeking to set aside judgment for the defendant was filed within 14 days, and no question of prejudice apparently would have arisen as a result of the plaintiffs’ counsel’s tentative acquiescence in the entry of judgment for the defendant, that the primary judge ought to have acted on the view he adopted as to the scope of s 31.

83. Nine Network’s riposte is that the primary judge went on to address what damages would have been awarded for the defamatory imputations that were not substantially true against the possibility that on appeal the Court of Appeal might consider that the defence of honest opinion had not been established in respect of those imputations. The primary judge concluded that he would have assessed the damages for the main broadcast and the internet publication at nil having regard to the “minimal diminution of reputation and the negligible additional hurt to feelings which could have flowed from the untrue imputations over and above the effect of the true imputations” (at [166]). The untrue imputations were imputations (a), (e) and (f) referred to at para [62] above. The imputations that were substantially true included that the plaintiff bashed, beat and terrorised his wife for 20 years and permitted the beating of his daughter by his son. Prima facie, it would be difficult for Mr Tabbaa to displace the primary judge’s contingent finding as to assessment of damages in relation to imputations (e) and (f).

84. The primary judge held that “the only imputation which could have harmed the plaintiff’s reputation additionally to the effect of imputations which the jury found true was imputation (a) (that the plaintiff had forced his daughter when she was 13 to marry her cousin 15 years her senior)”. That imputation has an additional sting to the imputations that were found to be substantially true. It is arguable that if the defence of honest opinion failed some damages should have been awarded in respect of that imputation.

82. For these reasons I conclude that the appeals cannot be characterised as hopeless or unarguable. I am not satisfied that special circumstances exist to justify the making of an order for security for costs.

83. I also consider that a question of public interest arises on Mr Tabbaa’s appeal in his first proceeding in relation to the defence of honest opinion. It would be in the public interest, and in the respondent’s long-term interest, for the issues raised under s 31 to be determined.

84. For these reasons I order that the respondent’s notice of motion filed 11 July 2018 be dismissed with costs.

**********

Decision last updated: 25 October 2018