Tabbaa v Nine Network Pty Ltd (No 10)

[2018] NSWSC 468

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Tabbaa v Nine Network Pty Ltd (No.10) [2018] NSWSC 468

Hearing dates:

20-24 and 27-30 November 2017; 1, 4-8, 11-15 and 18-21 December 2017; 5 February 2018

Date of orders:

19 April 2018

Decision date:

19 April 2018

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

In proceeding No 2015/79981 the further orders of the Court are:

 

1. The plaintiff’s notice of motion filed 4 January 2018 is dismissed.
2. The parties’ costs of the notice of motion filed 4 January 2018 are to be costs in the proceeding.
3. For the purpose of assessing costs under the order for costs made 21 December 2018, one half of the hearing time of the trial and of the post-trial hearing on 5 February 2018 is to be attributed to this proceeding.

 

In proceeding No 2015/181496 the further orders are:

 1. The plaintiff’s notice of motion filed 4 January 2018 is dismissed.
2. The plaintiff’s damages under the judgment entered in his favour on 21 December 2017 are assessed at nil.
3. The parties are each to bear their own costs of this proceeding including their costs of the plaintiff’s notice of motion filed 4 January 2018.

Catchwords:

DEFAMATION – defences – honest opinion – opinion “not honestly held” – whether defendant had reasonable grounds to believe opinion was “not honestly held” – no evidence opinion was not honestly held – “matter of public interest” – whether opinion related to “matter of public interest” – forced marriage and attitudes to premarital relations – scope of defence of honest opinion – whether defence applies to individual opinionative imputations where defamatory imputations of fact conveyed by the same publication – issue not determined due to delayed application inconsistent with conduct at trial

 

DEFAMATION – practice and procedure – application to have certain jury answers and judgment set aside – Uniform Civil Procedure Rules 2005 (NSW), r 36.16 – where ground of alleged error in judgment not raised at trial or before entry of judgment

 

DEFAMATION – remedies – compensatory damages – damage to reputation – injury to feeling – where publication partly justified – mitigating effect of imputations found true – mitigating effect of compensation already received from third party republishing defamatory material – Defamation Act 2005 (NSW), s 38(1)(e) – where third-party compensation greater than damages that would be assessed

  COSTS – party-party – bases of quantification – ordinary basis – where plaintiff partially successful in defamation proceedings – where compensation already received from third party – where conduct of both sides resulted in prolonged proceedings – application for costs on indemnity basis – where Calderbank offer made – one week for acceptance – where offeree unrepresented at time of offer – whether non-acceptance unreasonable

Legislation Cited:

Crimes Act 1900 (NSW)
Defamation Act 2005 (NSW)
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Attrill v Christie [2007] NSWSC 1386
Australian Broadcasting Corporation v O’Neill [2006] HCA 46
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183
Besser v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174
Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091
Carson v John Fairfax & Sons Ltd & Slee (1993) 178 CLR 44; [1993] HCA 31
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60
Chappell v Mirror Newspapers Ltd (1984) Aust Torts Rep 80-691
Fraser v Holmes [2009] NSWCA 36
Green v Schneller [2000] NSWSC 548
Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695; [2015] NSWCA 290
Harrigan v Jones [2001] NSWSC 623
Holmes v Fraser [2008] NSWSC 570
Hunt v Star Newspaper Co Ltd [1908] 2 KB 309
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728; [1986] AC 351
London Artists Ltd v Littler [1969] 2 QB 375
Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643
O’Brien v Australian Broadcasting Corporation [2017] NSWCA 338
Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No.2); Carelli v FS Architects Pty Ltd (No.2) [2008] NSWCA 205
Tabbaa v Nine Network Pty Ltd (No.11) [2018] NSWSC 389
Zaia v Eshow [2017] NSWSC 1540

Category:

Principal judgment

Parties:

Mouhammad Tabbaa (plaintiff)
Nine Network Pty Ltd (defendant)

Representation:

Counsel:
Mr Clive Evatt/Mr Roger Rasmussen/Mr William Evatt (plaintiffs)
Mr Alexander Dawson SC/Ms Monique Cowden (defendant)

  Solicitors:
Turner Freeman Lawyers (plaintiffs)
Macpherson Kelley (defendant)

File Number(s):

2015/079981; 2015/181496

Judgment

1. The plaintiff, Mouhammad Tabbaa, brought two proceedings in defamation for matters published by the defendant in mid-2014. In proceeding No 2015/79981 he claimed damages in respect of the following:

1. A segment of the defendant’s “60 Minutes” program broadcast on the evening of 29 June 2014 (“the main broadcast”). This was predominantly an interview with the plaintiff’s daughter, Nadia Tabbaa, in which she described mistreatment by her father between 2002 and 2006.

2. The publication of the main broadcast on the Internet, commencing soon after it had aired. This continued to be displayed on the defendant’s website at least up to the trial of the plaintiff’s actions.

2. In proceeding No 2015/181496 damages for defamation were claimed arising from:

(c)   an early morning television news item broadcast from Sydney at 5:11 am on 30 June 2014, which referred to the main broadcast and

(d)   a segment of the defendant’s “60 Minutes” program of 6 July 2014, in which there were published opinions and comments of viewers upon the main broadcast of the previous week (“the viewer feedback segment”).

3. The two proceedings were tried together, jointly with a defamation action brought by the plaintiff’s former wife, Pamela Tabbaa, arising out of the main broadcast. The trial, by jury, occupied 24 sitting days in November and December 2017. All claims failed except that of the plaintiff in respect of the morning television news. The jury were required to answer a long series of questions. Their answers were delivered on 21 December 2017. In proceeding No 2015/79981 judgment was entered for the defendant together with an order that the plaintiff pay the defendant’s costs of that proceeding. In proceeding No 2015/181496 judgment was entered for the defendant on the cause of action pleaded in pars 4 and 5 of the statement of claim (concerning the viewer feedback segment). With respect to the cause of action pleaded in pars 2 and 3 of the statement of claim (concerning the morning television news), the proceeding was adjourned to 5 February 2018 for a hearing on damages. The costs of the proceeding were reserved.

4. These reasons are directed to my determination of the following matters:

1. In relation to the main broadcast and the Internet publication, concerning both of which the plaintiff was unsuccessful, questions for resolution by the trial judge arose under the defence of honest opinion pursuant to s 31(3) of the Defamation Act 2005 (NSW). Namely, (a) whether there was any evidence that the defendant had reasonable grounds to believe Nadia Tabbaa did not honestly hold an opinion said to be expressed by her in the main broadcast and (b) whether the opinion related to a matter of public interest. These reasons address the basis upon which I determined those issues adversely to the plaintiff. That determination, in combination with the jury’s answers, resulted in judgment being entered for the defendant on the causes of action based upon those published matters.

2. In relation to the viewer feedback segment similar issues arose as to (a) whether there was any evidence that the defendant had reasonable grounds to believe Nadia Tabbaa did not honestly hold an opinion said to be expressed by her in the segment and (b) whether the opinion related to a matter of public interest. I determined both of those issues against the plaintiff, for reasons which appear herein.

3. On 4 January 2018, two weeks after the entry of the judgments adverse to the plaintiff, he filed notices of motion for orders that there be set aside either the jury’s answers to questions concerning the honest opinion defence or, in the alternative, the “verdicts for the defendant” on those causes of action against which the honest opinion defence was upheld. This judgment includes my reasons for dismissing those notices of motion.

4. With respect to the claim concerning the morning news the jury found that at least one person who viewed the news item had identified the plaintiff as the person of whom the matter had been published. They found that five defamatory imputations were conveyed, three of which were untrue and the other two of which were true. Accordingly the plaintiff’s cause of action on the news broadcast has been sustained and these reasons will address my assessment of damages under s 22(3) of the Defamation Act.

5. In proceeding No 2015/181496 no costs order was made on 21 December 2017. These reasons will address liability for costs of that proceeding, wherein the plaintiff has been partially successful.

6. I will contingently assess damages for the main broadcast, the Internet publication and feedback segment, in case error should be found in my refusal to set aside the judgments for the defendant on those matters.

7. In proceeding No 2015/79981 I ordered on 21 December 2017 that the plaintiff pay the defendant’s costs. It is necessary to refine that order so far as the costs of the trial and of the post-verdict hearing on 5 February 2018 are concerned, because the hearing time was occupied by three separate proceedings and there has been a mixture of results. By notice of motion filed in this proceeding on 30 January 2018 the defendant seeks that the costs awarded on 21 December 2017 be assessed on an indemnity basis. The claim for the indemnity basis is also now to be determined.

5. It is necessary that I make findings of fact at this stage of the proceedings, particularly for the purpose of assessing damages and to a lesser extent in order to decide the costs issues. My findings of fact must be consistent with the jury’s answers to the questions submitted to them on all causes of action.

Outline of the main broadcast and Internet publication

6. The main broadcast comprised, for the most part, an interview with Nadia Tabbaa, a daughter of the plaintiff and Pamela Tabbaa. She was referred to in the program as Rania Farrah. The plaintiff was not named but images of him were shown and he was identifiable. Pamela Tabbaa was referred to as “Margaret” but at least one image of her was shown and, as Nadia Tabbaa’s face was not concealed or disguised, Pamela Tabbaa was identifiable as the person frequently referred to as her mother.

7. In addition to the interview with Nadia Tabbaa the segment included commentary by a presenter and passages from an interview with a medical practitioner who works with females under the age of 18 years who have been forced into marriage. In outline the content of the program was as summarised at [8]-[15] below. The correct names of the persons concerned are used here although they were not used in the broadcast.

8. Pamela Tabbaa was born in Australia. She commenced a relationship with the plaintiff in Sydney in the late 1970s. He came from Syria. They were married and then moved to Saudi Arabia and later Jordan. They had five children together, including Nadia and an older brother (Omar Tabbaa, who was not named in the program). The plaintiff was violent towards Pamela Tabbaa throughout their relationship. When Nadia was eight years old her mother fled from the plaintiff, leaving him in the Middle East, and returned to Australia with the five children. The plaintiff did not return to Australia until many years later. In the years following Pamela Tabbaa’s return he contacted the family by phone on only a very small number of occasions.

9. When Nadia Tabbaa was in her first year of high school in southwest Sydney she commenced “getting into trouble … smoking a cigarette before class … wagging a day at school … talking to boys”. At age 13 her mother made a plan with the plaintiff, her son by a former marriage (Geoffrey Rodgers) and Nadia’s older brother Omar, to deceive her into travelling to Cairo, ostensibly for a two-week sightseeing holiday. Unbeknownst to Nadia the real purpose of the trip was to get her to the plaintiff’s relatives in Syria where she was to remain so that they could “get her set in her ways”.

10. Once Nadia and Geoffrey Rodgers were in Cairo, Omar Tabbaa joined them and arranged air travel for himself and Nadia to Jordan. There they stayed with the plaintiff’s sister. The plaintiff came to Jordan to meet Nadia. He interrogated her about whether she had “ever been with a man” and took her to a hospital to undergo a purported virginity test. As described, this was an examination to ascertain whether her hymen was intact. Despite the fact that she had not had any sexual experience she was beaten severely by the plaintiff and her older brother at her aunt’s house in Jordan. The brother said that the plaintiff must have accepted she was a virgin because otherwise “he would have killed you”. When asked how she reacted to this Nadia Tabbaa said:

It’s common practice over there, everyone is used to it. It’s quite a normal thing to kill your daughter for not being a virgin.

11. Nadia Tabbaa was taken from Jordan to Damascus, Syria and required to live there for the next five years “in a small apartment with her grandmother, uncle and aunt and their baby”. Over those five years she was continuously depressed. She was required to attend an Islamic school and she learned Arabic. She was held captive by the plaintiff’s relatives. She received phone calls from her mother every three weeks and “begged … to come home” but was put off with statements that “we can’t afford it, … one more year”.

12. Ms Tabbaa was “expected” to marry her second cousin who was “in his early 30s”. She barely knew him and they “never spoke” but she “went along” with the marriage and took part in an “engagement party”. However she secretly planned to escape from Damascus and return to Australia. British Embassy officials told her she could not be assisted until she was 18. On the day before her 18th birthday, at the end of August 2006, Ms Tabbaa arranged to meet diplomatic officials at a hotel in Damascus the next morning and to leave the country with their assistance.

13. Nadia Tabbaa said on the program she was by that stage so depressed by her situation in Damascus that she intended to take her own life if she could not escape. The meeting with the embassy officials went ahead. She was transferred to Jordan and provided with assistance for air travel back to Sydney.

14. By this time the plaintiff had himself come back to live in Australia. Soon after Ms Tabbaa’s return the plaintiff met with her face-to-face and made a threat in these terms:

No Western pig government is going to tell me how to raise my daughters, and if it comes to it, I’ll slit your mother’s throat and I’ll slit your sister’s throat and I’ll slit your throat.

15. Ms Tabbaa said in the television interview, which took place some seven years after the above threat had been made, that she was and remained fearful of violence at her father’s hands. A restraining order was made against him for her protection.

16. Parts of the presenter’s commentary in the main broadcast were capable of conveying that the plaintiff had forced his daughter when she was only 13 to marry her cousin 15 years her senior. The jury found that this meaning was in fact conveyed and that it was not true. Nadia Tabbaa herself had not said in the broadcast passages of her interview that she was forced to marry at the age of 13. It was the defendant’s error that the presenter’s commentary conveyed this.

17. The Internet publication of which the plaintiff complained consisted of a video recording of the main broadcast, in three parts, available for download and viewing. In addition there was some text on the defendant’s website relating to the program.

Imputations, true and untrue, in the main broadcast

18. With respect to the main broadcast and its publication on the Internet, the plaintiff pleaded 13 imputations (plus an additional one for the matter on the Internet). Of these the jury found that the following were conveyed, were defamatory and were substantially true:

(b)   The plaintiff abducted his daughter when she was 13 and sent her to Syria to be held captive by his relatives for five 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.

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

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

(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.

19. The defendant pleaded two contextual imputations pursuant to s 26 of the Defamation Act – both of which the jury found were conveyed, were defamatory and were substantially true – as follows:

A.   The plaintiff’s violent and controlling treatment of his wife was such that she fled Jordan without his knowledge and moved the family to Australia.

B.   By his violent and abusive mistreatment of women, the plaintiff has committed crimes.

20. The jury found that the following further defamatory imputations were conveyed but had not been proved true by the defendant:

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

(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.

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

21. The defendant had not contended that imputation (a) was substantially true but denied that it was conveyed.

22. The jury found that imputation (e) was not proved true but imputation (l) was. That is, they were satisfied the plaintiff had been violently abusive of Pamela Tabbaa but not that this had occurred in her daughter’s presence. This conclusion is explicable having regard to Nadia Tabbaa’s evidence in the trial that she had resided with both parents, and therefore could observe their relationship, only during the first eight years of her life, in Riyadh, Saudi Arabia and Amman, Jordan. Further she said that during that time the plaintiff worked elsewhere and visited the family only infrequently and for short periods.

23. The jury found imputation (f) not proved true but that imputation (g) was true. This is explained by reference to the evidence of Michelle Etherington. She had been in a relationship with Omar Tabbaa in 2002, in Sydney. They were subsequently married and later divorced. Ms Etherington said that upon Omar’s return from Jordan in about February 2002 he had boasted of having beaten Nadia so severely with a belt in Amman that his aunt had had to pull him off her. The jury’s answers are consistent with their having accepted Ms Etherington’s evidence and treated it as showing that Omar Tabbaa administered the beating whilst the plaintiff looked on.

(1) Honest opinion defence to the main broadcast and Internet publication

24. Upon the basis that the main broadcast gave rise to imputation (i) (see [20] above), the defendant pleaded the defence of honest opinion as provided for in s 31(3) of the Defamation Act. This was also pleaded in respect of the Internet publication which had the same content. The jury answered that the main broadcast (and Internet publication) would have been understood by the viewer as an expression of the opinion of Nadia and Omar Tabbaa to the effect that “The plaintiff is the kind of person who would kill his daughter for not being a virgin”. That is, imputation (i).

24. Further in connection with this defence the jury answered that the viewer would have understood that the expression of opinion was based upon one or more of the following facts which they found the defendant had established to be true:

(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.

(f)   Nadia’s father permitted her brother [Omar] to participate in the beating [of Nadia].

(g)   The beating only stopped upon the intervention of [Nadia’s] aunt.

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

No evidence Ms Tabbaa did not honestly hold the opinion

26. The jury answered “Yes” to the question whether the defendant had established that the expression of opinion might reasonably be based upon the facts listed in [25]. That is, the facts which they found the viewer would have understood to be the basis of the expression of opinion and which they also found to be true. Over objection from the plaintiff’s counsel I directed the jury to answer “No” to the question whether the plaintiff had established that the defendant “had reasonable grounds to believe that Nadia Tabbaa did not honestly hold that opinion”. This question arose pursuant to subs (4)(c) of s 31 of the Defamation Act. My reasons for having directed an answer in the negative to this ground of defeasance are as follows.

27. Nadia Tabbaa undertook a 90 minute interview with a journalist employed by the defendant in about February or March 2014. A recording of this interview (exhibit P) was played to the jury. Its transcript is exhibit Q. This interview was the source of the defendant’s information for the main broadcast. The passages in which Nadia Tabbaa spoke in the main broadcast were excerpts from the 90 minute interview.

28. The 90 minute interview included the passage summarised at [10] above, regarding the plaintiff’s interrogation of his daughter in Amman, Jordan in January 2002, at the age of 13, as to whether she had “ever been with a man”. She said that this took place on a vacant lot of land to which she was taken by the plaintiff, after first having visited a mosque with him. The 90 minute interview also contained her account of the purported virginity test, the beating at her aunt’s house, Omar Tabbaa’s statement that the plaintiff must have believed that she had not “been with a man” because otherwise “he would have killed me” and her reaction to this. Namely, her understanding that killing a daughter for not being a virgin was “common” and “normal” in the Middle East.

29. In the latter part of the 90 minute interview Ms Tabbaa recounted the plaintiff’s death threat made upon her return to Australia and her fear of his violence, as summarised above at [14] and [15]. She said in the interview that she did not at that time disclose her place of residence to her family or to anyone who had “potential contact” with her father, out of concern for her own safety at his hands.

30. Having regard to the apparent sincerity of Ms Tabbaa depicted in the 90 minute interview and taking into account the coherence, consistency and prima facie credibility of her account, I am satisfied there was nothing inherent in the interview which could constitute, within the meaning of subs (4)(c) of s 31, “reasonable grounds to believe that … at the time the defamatory matter was published” Nadia Tabbaa did not honestly hold an opinion to the effect that “The plaintiff is the kind of person who would kill his daughter for not being a virgin”. Nor was there any evidence in the trial of other information available to the defendant that could have constituted reasonable grounds for believing Ms Tabbaa did not honestly hold that opinion. There was no evidence upon which the jury could have answered the relevant question in the affirmative.

The opinion in imputation (i) was a matter of public interest

31. I found that the opinion of Nadia and Omar Tabbaa that that “The plaintiff is the kind of person who would kill his daughter for not being a virgin” was “related to a matter of public interest” within the meaning of s 31(3)(b) of the Defamation Act. The relevant subject of public interest was particularised at par 29, item A of the defence in proceeding No 2015/79981 in these terms:

the practice of forced marriage which occurs within some parts of society, which had recently been the subject of legislation criminalising the practice and potentially conflicting ideologies of the treatment of women (particularly young daughters) in Muslim families within Western culture.

32. I did not state my finding that the opinion “related to a matter of public interest” during the trial. But that finding was clearly implicit, and would have been understood by counsel to be implicit, in my giving judgment for the defendant on 21 December 2017 on three of the plaintiff’s causes of action. The judgments were entered expressly on the basis of the s 31 defence and I was not at the time asked to give reasons. I do so now.

33. I accept the defendant’s formulation of the subject to which the expression of opinion relates. An aspect of the subject is the forcible control and punishment of young women with respect to premarital sexual activity and relations with the opposite sex. The subject embraces controlling behaviour by males in the community and in other communities internationally, according to religious and/or cultural practices which may be seen as inconsistent with social values reflected in Australian law. Pertinently to this subject, all of the true facts upon which the viewer would have understood the expression of opinion to have been based (see [25]) illustrated punitive consequences for the young female who was suspected of premarital intercourse, without inquiry as to the circumstances, particularly the conduct of the male person involved. This is in contrast with Australian laws which criminalise the conduct of a male who has sexual relations with a female under 16 (or between 16 and 18 in certain circumstances), for example Crimes Act 1900 (NSW) ss 66C, 66D, 66EB and 73.

34. In characterising the subject, as particularised by the defendants, as one of public interest I take guidance from the words of Lord Denning MR in London Artists Ltd v Littler [1969] 2 QB 375 at 391:

Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment.

35. This general statement has been approved and applied in Australia on more than one occasion, for example in Australian Broadcasting Corporation v O’Neill [2006] HCA 46 at [22] and in Green v Schneller [2000] NSWSC 548 at [21]. Another general statement of present relevance is that of Dawson, McHugh and Gummow JJ in Bellino vAustralian Broadcasting Corporation (1996) 185 CLR 183 at 220. Namely, that a subject of public interest in the law of defamation refers to the conduct of a person engaged in activities that either inherently, expressly or inferentially invite public criticism or discussion. The element of “public interest” was not discussed in Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695; [2015] NSWCA 290. But the Court and the parties appear to have accepted that the requirement was satisfied although the putative expressions of opinion concerned the conduct and character of a private citizen, as in the present case.

36. By recounting the purported virginity examination of Nadia Tabbaa in Amman in January 2002 and her claim that she was forced by the plaintiff’s mother and uncle to marry her second cousin, the main broadcast opened up generally the subject of forcible male control over sexual relations of young women, including with respect to premarital sex and forced marriage of girls at young ages. As captured in the defendant’s formulation quoted at [31] above, this is particularly a subject of public interest in Australia because of the mixed cultural and religious views and practices of Australian citizens from a variety of backgrounds. The opinion of Nadia and Omar Tabbaa that the plaintiff would kill a daughter for not being a virgin was in my view related to this subject. It is an opinion closely connected with legitimate public concerns regarding the extent to which immigrants to Australia follow religious and traditional practices in conflict with community standards otherwise generally accepted in this country concerning the treatment of women.

37. The plaintiff’s subjection of his daughter, at age 13, to a purported virginity test followed by a beating which he permitted Omar to administer (see [25]) and his threat four and a half years later to kill his wife and daughters (which the jury accepted he had made: see [14] and [18(d), (j) and (k)]), were acts which inherently invited public criticism and discussion. They related directly to the intensity of the plaintiff’s adherence to beliefs and traditions concerning male control over female family members, introduced by him into the family of himself and his Australian-born wife. The threat in September 2006 was made in terms which explicitly rejected the norms of peaceable and civilised behaviour in Australian society. He expressed contempt for the laws and institutions which uphold those norms. See the reference to “Western pig government” in the words Nadia Tabbaa attributed to the plaintiff (at [14]).

Legal argument at trial concerning the honest opinion defence

38. For two reasons I find it necessary to trace the course of submissions during the trial regarding the honest opinion defence. The first reason is that my finding that the opinion in imputation (i) “related to a matter of public interest” (s 31(3)(b)) was made in the absence of any substantive argument from the plaintiff’s counsel to the contrary, at any stage of the trial. The plaintiff implicitly acquiesced in me making this finding at the point where judgment was to be entered in relation to the main broadcast and the Internet publication. That occurred upon the return of the jury’s answers. The defendant applied for judgment at that time on the basis of the s 31 defence and the plaintiff’s junior counsel agreed with this.

39. The second reason is that when the defendant asked for judgment on the basis of the jury’s answers and junior counsel for the plaintiff agreed, no submission was made that the expression of honest opinion in imputation (i) was anything other than a complete defence to the published matter, notwithstanding that matter contained additional defamatory imputations which had not been proved true. The agreement that judgment be entered therefore constitutes in my view an insuperable obstacle to the plaintiff’s motion now before the Court to have set aside some of the jury’s answers and the judgment, on the basis of belated submissions about “public interest” and “complete defence”.

40. On 14 December 2017 (day 19 of the trial) when the evidence was almost complete the defendant’s senior counsel produced to the Court and to the plaintiff’s counsel what he described as “finalised” questions to go to the jury. These were a revision of an incomplete skeleton of questions which had been circulated by defence counsel early in the trial. The “finalised” questions were intended to be given to the jury at the commencement of the defendant’s address the next day, 15 December 2017 (day 20).

41. Question 7 was the first in a sequence concerning the honest opinion defence, as follows:

7. (Only answer this question if you have answered Yes to questions 2(i) and 3(i))

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”?

42. As referred to in the opening to this question, Question 2(i) was whether the first matter complained of (that is, the main broadcast) conveyed imputation (i), being to the effect that “The Plaintiff is the kind of person who would kill his daughter for not being a virgin”. Question 3(i) was whether imputation (i) was defamatory of the plaintiff.

43. Not long after the “finalised” questions had been produced on day 19, the plaintiff’s leading counsel stated that the questions “have got to be resolved”. No particular issues concerning the questions were raised at that point and the Court instead dealt with an unrelated application by the defendant. The next day, day 20, the plaintiff’s leading counsel raised an issue about whether an amendment to Question 7, which he had asked the defendant to make, had been incorporated. It was ascertained to his satisfaction that it had. Another issue concerning Question 8 was referred to. This was deferred to enable counsel to provide the Court with reference to authority, on the basis that the question could go to the jury and any refinement of it could be the subject of an oral direction.

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.

47. At the end of day 21 the defendant’s senior counsel made further submissions regarding the defence of honest opinion. He reiterated the substance of the analysis made in the passages quoted at [45]. Defence counsel elaborated the matter of public interest upon which he contended the opinion was expressed in the published matter. He referred to the pleading in which the matter of public interest had been particularised. He said the plaintiff’s counsel’s statement earlier on day 21 that “public interest is in dispute” was the first time controversy over that issue had been intimated.

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. Nor did the plaintiff’s counsel then (at the end of day 21) offer any submissions against the characterisation of the putative opinion as related to a matter of public interest.

49. Defence counsel proposed to provide further short submissions on the subject of public interest in writing. Such a note was provided to the Court during day 22 (19 December 2017) and was referred to at the end of that day, part way through the summing up.

50. As mentioned at [38]-[39] above, when the jury returned their answers, favourable to the defendant on elements of the defence of honest opinion, entry of judgment for the defendant with respect to the main broadcast and the Internet publication was accepted. No argument was raised about “public interest” or “complete defence”. Nor was any deferral of judgment asked for with a view to submissions being formulated. In proceedings No 2015/181496 the plaintiff’s junior counsel asked that entry of judgment be deferred but only because one cause of action in that proceeding had succeeded and damages were to be assessed later, not because of any dispute that judgment would follow on the cause of action to which the honest opinion defence had been pleaded (the feedback segment).

(2) Honest opinion defence to the feedback segment

51. In respect of the feedback segment the jury answered affirmatively that the matter complained of would have been understood by the viewer as an expression of Nadia Tabbaa’s opinion to the effect of imputation (c) conveyed by that matter, that “The plaintiff is an awful man”. They concluded the viewer would have understood that opinion to be based upon facts stated in the feedback item, of which they found the following to be true:

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

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

(e)   Nadia’s father and his family held her against her will in Syria for five years.

52. Taking into account substantially the content of the defendant’s 90 minute interview of Nadia Tabbaa summarised at [27]-[29] above, again there is nothing inherent in the interview which could constitute, within the meaning of subs (4)(c) of s 31, “reasonable grounds to believe that … at the time the defamatory matter was published” Ms Tabbaa did not honestly hold the opinion in imputation (c). Nor did the evidence show that any other information available to the defendant provided reasonable grounds to believe Ms Tabbaa did not honestly hold that opinion. There was no evidence upon which the jury could have answered affirmatively the question concerning this point of defeasance of the honest opinion defence. I directed the jury to answer that the plaintiff had not established the defendant had reasonable grounds to believe Nadia did not honestly hold the opinion (Question 35).

53. The same subject of public interest as quoted at [31] was particularised in relation to the feedback segment at par 24, item A of the defence in proceeding No 2015/181496. Although the words of imputation (c) in which the expression of opinion is found are personal to the plaintiff, a private citizen, the “proper material” upon which the viewer would have understood the opinion to be based (see [51]) shows that it related to a matter of public interest in the way I have attempted to articulate at [31]-[37] above. I therefore concluded that the opinion in imputation (c) “related to a subject of public interest”.

52. Again the plaintiff’s counsel made no submission towards a conclusion that the opinion did not relate to a subject of public interest. Junior counsel accepted, when the jury gave answers otherwise establishing the defence of honest opinion, that the defendant was entitled to judgment on the cause of action arising out of the feedback segment. See the references to the relevant procedural steps in the trial at [38] and [50]. I applied much the same analysis as informed my decision on this issue with respect to imputation (i) in the main broadcast (see [31]-[37]).

53. The first question concerning the honest opinion defence to the feedback segment was Question 31. In relation to this and the related Questions 32-35, the defendant’s oral submissions during the trial to the effect that honest opinion would be a complete defence to the entire published matter and not just to imputation (c) (see [45]) were obviously equally applicable. Again, they were not contested by the plaintiff even when the defendant asked for judgment upon receipt of the jury’s answers.

(3) Notices of motion to set aside judgments

56. In each of proceedings Nos 2015/79981 and 2015/181496 the plaintiff filed notices of motion on 4 January 2018 seeking an order under r 36.16 or r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) that there be set aside either the jury’s answers to questions 7, 18 and 31 or “the verdicts for the defendant”. I take the latter to be a reference to the judgments entered on 21 December 2017. Question 7 and Question 18 were directed to whether imputation (i) in the main broadcast and in the Internet publication, respectively, would have been understood by the viewer as an expression of the opinion of either Nadia or Omar Tabbaa (Question 7 is quoted in full at [41]). Question 31 concerned whether imputation (c) in the feedback segment would have been understood by the viewer as an expression of the opinion of Nadia Tabbaa.

57. Rule 36.17 is commonly referred to as the “slip rule”. In my view it is not engaged in the present circumstances. The only potentially relevant subrules of r 36.16 are as follows:

36.16 Further power to set aside or vary judgment or order

(1)   The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

(3A)   If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

58. The plaintiff’s notices of motion were filed within 14 days after judgment. It would therefore be open to the Court to set aside the judgments of 21 December 2017 on the plaintiff’s application if there can now be identified some error. The plaintiff’s contentions in support of his notices of motion are as follows:

1. The jury’s answers to Questions 7-11 (concerning the honest opinion defence to the main broadcast) and 18-22 (the honest opinion defence to the Internet publication) could, as a matter of law, only give rise to a defence to imputation (i) and not to the whole of the respective published matters.

2. The jury’s answers to Questions 31-35 (concerning the honest opinion defence to the viewer feedback segment) could only support a defence to imputation (c) in that published matter, not a defence to the whole matter.

3. In relation to the viewer feedback segment imputation (c) was found by the jury to be substantially true and that “comprises the defence to that imputation”, leaving no room for operation of a further defence of honest opinion to the same imputation.

4. The court did not rule on whether the opinion, in any of the three matters which were subject to the s 31 defence, was “related to a matter of public interest” prior to judgment being entered.

5. Each of Questions 18 and 31 was expressed in terms of whether “the first matter” would have been understood as an expression of opinion, whereas Question 18 related to the Internet publication which was the second matter in proceeding No 2015/79981 (as identified in the heading on p 9 of the questions) and Question 31 related to the second matter in proceeding No 2015/181496 (see the heading to p 20).

59. The power to set aside a judgement under r 36.16 is discretionary and the circumstances which led to these judgments being entered must be taken into account. Principles regarding the exercise of a discretion of this nature were laid down by Mason CJ in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 in the following passages:

[4] … [T]he public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.

60. Those principles are not limited in their application to the High Court as the final court of appeal for Australia. They also apply to the exercise by this Court of its discretion under r 36.16: Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No.2); Carelli v FS Architects Pty Ltd (No.2) [2008] NSWCA 205 at [9].

Contentions (i)-(iii) on the plaintiff’s notices of motion

61. Contentions (i)-(iii) concern the same point and can be dealt with together. In par 29 of its defence to proceeding No 2015/79981 the defendant pleaded that if the main broadcast and the Internet publication were found to convey imputation (i), then those two published matters “were in that meaning not a statement of fact but an expression of opinion” etc. In No 2015/181496 the defendant pleaded in par 24 of its defence that if the feedback segment was found to convey imputation (c), then that published matter “was in that meaning not a statement of fact but an expression of opinion” etc. I understand the formulation “in that meaning” is equivalent to an allegation that in so far as the published matters conveyed imputations (i) and (c), they were expressions of opinion to the effect of the imputations. I do not understand those paragraphs of the defences as asserting that the published matters contain no other meaning than the opinions captured by the two specified imputations. Both parties acted throughout the trial in a manner consistent with them having the same understanding of the pleaded defence in this respect.

62. The clear underlying premise of the way Questions 7, 18 and 31 were formulated was that s 31(3)(a) would be satisfied (that is, each of the matters would be “an expression of opinion of a person” and would attract the defence to the whole published matter) if just one of the imputations conveyed by each matter respectively would be understood by the viewer as opinion. That underlying premise was made explicit in the oral submissions of defence counsel referred to above at [45] and [47]. The premise also clearly informed the defendant’s application for judgment on the basis of the jury’s answers with respect to honest opinion.

63. I do not consider that the Court, in the exercise of its discretion under r 36.16, should allow the plaintiff now to contend to the contrary of this premise. He is precluded from doing so at this stage by his counsel’s conduct of the case in:

• making no objection to the three impugned questions being submitted to the jury in the form drafted by the defendant, which was made available in ample time for consideration by the plaintiff;

• making no submission against defence counsel’s arguments concerning the operation of s 31(3) (see [45] and [47]) and

• agreeing that judgment for the defendant should follow from the jury’s answers concerning honest opinion.

64. In effect the plaintiff now argues in support of his notices of motion that under s 31(3)(a) if a defendant should prove that published matter, so far as it is defamatory, conveys either solely or in part “an expression of opinion of a person”, then that is a defence only to so much of the defamatory meaning as constituted the expression of opinion. In its application to published matter wherein the defamatory meaning is solely an expression of opinion this interpretation would seem uncontroversial. That is, if all the defamatory imputations conveyed are expressions of opinion (as for example in O’Brien v Australian Broadcasting Corporation [2017] NSWCA 338), the defence under s 31 would be engaged with respect to the whole. In its application to published matter wherein the defamatory meaning is only in part an expression of opinion, the interpretation now propounded by the plaintiff would result in s 31 providing a defence to that part but not to other defamatory imputations of fact. That would be directly opposed to what the defendant put at trial and still contends. On the hearing of the notices of motion the plaintiff’s counsel did not cite any authority in which this aspect of his interpretation of s 31(3)(a) has been adopted. Neither counsel cited any authority for or against such an interpretation at the trial because the defendant’s contention about how s 31(3) should be applied was not disputed.

65. If the plaintiff wished to urge upon the Court the interpretation and manner of operation of s 31(3) which he now advances, he should have sought, at the least, amendments of Questions 7, 18 and 31 before they went to the jury. He should have submitted that those questions be framed in terms of whether so much of the respective published matters as conveyed imputations (i) and (c) would have been understood by the viewer as expressions of opinion. Assuming answers favourable to the defendant on these and the other questions concerning the opinion defence, it would have been necessary for the plaintiff to have opposed the entry of judgment for the defendant and sought instead:

• in relation to the main broadcast and the Internet publication, submission to the jury of the question under s 26(b) whether such defamatory imputations of fact as were not found substantially true had caused harm to the plaintiff’s reputation further to the harm caused by the contextual imputations (see [19]) and

• assessment of damages for the feedback segment and, depending upon the jury’s answer under s 26(b), for the main broadcast and the Internet publication.

66. The plaintiff submits that, notwithstanding any position taken by counsel in the course of the trial:

Even if Counsel consent the Court can and must correct an error of law. It is submitted both Senior Counsel for the Defendant and [junior counsel for the plaintiff] were wrong. The ultimate responsibility for correct decisions in law is for the Court. On a question of law the Court itself must ensure that its decisions are correct particularly if they lead to a verdict. Both [senior counsel for the defendant and junior counsel for the plaintiff who appeared when the jury’s answers were taken and judgment was entered] may have innocently misled the Court in which case it is the Court’s duty to correct the error.

67. Whilst accepting that it is the responsibility of the trial judge correctly to ascertain the law and to apply it, what occurred here went beyond a mere failure of the plaintiff’s counsel to provide assistance by way of submissions with reference to legislation and authority. Counsel remained silent in the face of the defence submissions referred to at [45] and [47], at a time well before the entry of judgment fell to be considered, and failed to raise any issue concerning the application of s 31(3) or the consequences that should follow under the section upon the jury’s findings. This contrasted with their ready objections and arguments at all other points throughout the case where any matter put forward on behalf of the defendant was disputed. Both counsel who appeared for the plaintiff have had considerable experience in defamation proceedings. The Court was entitled to take the plaintiff’s apparent acceptance of the operation of s 31(3) as a defence to the entirety of the relevant published matters, notwithstanding that only one imputation was an expression of opinion and that other defamatory imputations of fact were untrue, as an informed and considered position.

68. In addition to holding the plaintiff to the stance taken by his counsel at the trial, there is another discretionary reason for refusing to consider setting aside under r 36.16 the judgment which was entered for the defendant in proceeding No 2015/79981 on 21 December 2017. At that time the jury had not been discharged. Had the plaintiff taken the point now under consideration and succeeded upon it, the question under s 26(b), as referred to in the first point at [65] above, would have been submitted to the jury. Instead, with the plaintiff’s agreement to judgment being entered against him, the jury were discharged. If the plaintiff’s application to set aside the judgment were now to be entertained upon this ground and if it should succeed, the outcome would be that a fresh jury would need to be empanelled to try the residual question. That would be impractical. A fresh jury would not have heard the evidence which sustained the untrue defamatory imputations and the true contextual ones. The weighing exercise required under s 26(b) could not fairly be done. Even if the s 26(b) question could, practically and fairly, be submitted to a fresh jury, that would inflict significant additional cost upon the defendant. I would regard that as a detriment, arising solely from the manner in which the plaintiff’s case was conducted, which could not adequately be compensated for by an order for costs or in any other way.

69. On the view that I take of the plaintiff’s procedural position it is not necessary for me to reach a conclusion whether s 31(3) operates as a defence to the entire published matter in a case where one imputation is an expression of opinion but other defamatory imputations of fact are conveyed and not proved true by the defendant. Having reviewed the authorities cited by the defendant on the hearing of the notices of motion my view would be, with respect, that in such a case the section does not operate in the manner asserted by either party.

70. In Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728; [1986] AC 351, a decision on the comment defence in s 33 of the Defamation Act 1974 (Rep) (NSW), Lord Keith said (at 365):

[A] jury must necessarily approach a defence of comment on the basis that the comment conveys such of the defamatory imputations pleaded as the jury finds to be established. … Comment must have a meaning, and ex hypothesi the jury are proceeding on the footing that its meaning is defamatory in the sense of the pleaded imputations which have been found established.

71. Under the 1974 Act each imputation supported a cause of action whereas under the present Act there is only one cause of action for each published matter (see s 8). But the position remains that the “expression of opinion” relied upon by the defendant must be in the defamatory sense or meaning captured by the imputations which are being defended. In Holmes v Fraser [2008] NSWSC 570, a decision under the Defamation Act 2005, Simpson J (as her Honour then was) made these observations after referring to Lloyd v David Syme & Co Ltd and noting the change in the legislation:

[58] ... The cause of action is no longer constituted by the imputation pleaded, and s 8 provides that the publication of defamatory matter gives rise to a single cause of action, even if more than one defamatory imputation is carried. This would suggest that to answer the first question posed by s 31(1) (and the first question posed in respect of the common law defence) it is necessary to look, not to the defamatory imputations found to have been conveyed, but to the publication as a whole. Moreover, the reference in s 31(1)(a) to “matter” is to be contrasted with, for example, the terms of s 25, providing a defence of truth (justification) where the defamatory imputations carried by the “matter” are shown to be substantially true. However, there remain significant remnants of the concept of imputations. Section 8 of the 2005 Act, to which I have already referred, is predicated upon the notion that a defamatory publication is defamatory because it carries imputations that are defamatory. The fact that an imputation is no longer the cause of action does not affect that. And the Uniform Civil Procedure Rules continue to require that a plaintiff specify, in the statement of claim, each imputation upon which reliance is placed (UCPR 14.30(2)(b)). This rule is of long standing and was, no doubt, formulated for the purposes of the 1974 Act, but the rule makers have not seen fit to vary the requirement, although they are clearly cognisant of the charges made by the 2005 Act: see, for example, specific rules contained in Part 15, Division 4. No doubt, in some cases, it will be necessary to determine whether the predominant theme of the publication complained of is statement of fact or expression of opinion (in the extended sense that incorporates conclusions, deductions and the like).

[59] “Matter” may, and very often will, consist of an amalgam of statements of fact and expressions of opinion. Indeed, as I have previously mentioned, the common law defence depends upon the statement or identification of facts that can be shown to be “truly stated”. (Curiously, as I have mentioned, that requirement does not appear to have been imported into the statutory defence). On a literal construction of s 31, there is little, if any, room for concluding that “matter”, as it is used in s 31(1), ought to be construed as meaning the imputation or imputations found to have been conveyed, (as distinct from the publication as a whole) although such a construction would present the most workable result. This may, in some cases, pose real problems. For the purpose of applying subss (5) and (6) it is necessary to identify the “opinion”. That is something that is ordinarily (or was, under the 1974 Act) encapsulated in the imputation.

72. At [60]-[63] her Honour examined the published matter (a letter) and was prepared to read some of it as expressing the author’s opinion but held that those parts could not “convert a publication that is essentially a publication of statements of (purported) fact into the expression of opinion”. Her Honour’s analysis, both of the legal principles and of their application to the published matter in that case, was approved by the Court of Appeal: Fraser v Holmes [2009] NSWCA 36 at [74]-[92]. At [78] Tobias JA (with whom McColl and Basten JJA agreed) said that under s 31 of the 2005 Act it is “the matter” which must be an expression of opinion rather than a statement of fact and that “The position at common law seems to coincide with that under the 2005 Act”.

73. The common law position on the defence of fair comment is authoritatively laid down in Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60. There, Gummow, Hayne and Heydon JJ said at [83] that the passage quoted at [70] above, from Lloyd v David Syme & Co Ltd, is equally applicable to the common law and that:

it is “the imputation” which must be “reasonably capable of being regarded ... only as comment”.

74. At [41] their Honours quoted with approval the following statement of Fletcher Moulten J in Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 at 319-320:

[C]omment in order to be justifiable as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment … .

75. To similar effect, in Channel Seven Adelaide Pty Ltd v Manock Gleeson J explained (at [4]) that for the defence of fair comment to be sustained at common law it must be shown that the published matter is entirely, or solely, comment, apart from the true (or at least not defamatory) facts upon which it is based:

The defence is concerned with comment based on facts. The truth of those facts will affect the viability of the defence. The distinction between a comment (such as an expression of an opinion, or inference, or evaluation, or judgment) and the factual basis of the comment, blurred though it may be in many communications, affects the application of the defence in a number of ways. So long as a reader (or viewer, or listener) is able to identify a communication as a comment rather than a statement of fact, and is able sufficiently to identify the facts upon which the comment is based, then such a person is aware that all that he or she has read, viewed or heard is someone else’s opinion (or inference, or evaluation, or judgment).

76. In Carolan v Fairfax Media Publications Pty Ltd(No 6) [2016] NSWSC 1091 McCallum J summarised the position as follows:

[100] Unlike the defence of justification, which is directed (in terms) to the defamatory imputations carried by the matter complained of, the defence of honest opinion is directed to the “defamatory matter”. I take that expression to refer to the matter complained of in its defamatory sense. The task is to determine whether the defamatory matter (the defamatory sense of the matter complained of) amounts to a statement of fact about the plaintiff or an expression of opinion.

[101] That issue is informed, but not determined, by the imputations on which the plaintiff has succeeded. In Harbour Radio Pty Ltd v Ahmed [2011] NSWCA 290 the Court of Appeal emphasised the “contextual nature” of the inquiry, saying (at [44], emphasis added):

The risk in treating the imputation as the matter which must be identified as an expression of opinion or fact is that the form of the imputation may not accurately reflect the language of the defamatory publication. That is significant, bearing in mind the contextual nature of the inquiry as to whether a statement is opinion.

77. The passage quoted from Harbour Radio Pty Ltd v Ahmed is not conflict with the authorities cited at [70]-[73] but emphasises that, in ascertaining whether the published matter is an expression of opinion, caution must be exercised not to be diverted from the true nature of that enquiry by the terms in which the imputations have been pleaded or particularised. The following statement from McCallum J’s judgement in Zaia v Eshow [2017] NSWSC 1540 at [73] is to similar effect:

The defence thus focusses on the matter complained of in its defamatory sense. The task is to determine whether the defamatory sense of the matter is to be understood as an expression of opinion of the defendant rather than a statement of fact: Carolan (No 6) at [100]. The formulation of the plaintiff’s imputations will not necessarily be, and perhaps should not be, determinative in that context: Harbour Radio Pty Ltd v Ahmed [2011] NSWCA 290 at [44], cited in Carolan (No 6) at [101]. However, the formulation of the imputations may be expected to inform an understanding of the defamatory sense sought to be defended as opinion.

78. The effect of all of these authorities is that the defence under s 31(3), if it is engaged at all, is a defence to the whole published matter. But the corollary is that the whole published matter must be “reasonably capable of being regarded … only as [expression of opinion]” (to adapt the passage quoted at [73] above). 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. Published matter of that description is a mixture of opinion and untrue defamatory imputations of fact and, as such, cannot be defended as opinion under s 31 or as comment under the common law.

79. Neither counsel submitted during the trial that s 31 applies in the manner I have described above. The questions they agreed upon were inconsistent with that view of the law. Notably, by questions 7, 8 and 31 both parties accepted that it would be open to the jury to find, for the purposes of s 31, that the published matters were expressions of opinion to the effect of imputations (i) and (c), notwithstanding that they might also find that one or more of the imputations of fact relied upon by the plaintiff were conveyed by the same matter, were defamatory and were untrue. Their agreement that judgments should be entered on the basis of the answers given was also inconsistent with the law as I take it to be. Having formed the above-stated view of the correct legal position I remain of the opinion that the plaintiff cannot be permitted to depart from the position he adopted at trial and that the judgments should not be set aside.

80. I have not found it easy to extract from the cases the principles governing s 31 and the common law defence of fair comment, as discussed above. 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.

Contention (iv) on the plaintiff’s notices of motion

81. Contrary to the plaintiff’s contention (iv) (see [58(iv)]), I did rule upon the question whether the expressions of opinion upon which the defendant relied were “related to a matter of public interest”: see the explanation at [31]-[37] and [53]-[53]. For discretionary reasons similar to those expressed at [63] and [66]-[68] above, again I would not entertain setting aside, pursuant to r 36.16, the judgments entered on 21 December 2017. I therefore have not reconsidered my reasons for finding that the opinions related to a matter of public interest as summarised at [31]-[37], by reference to substantive arguments belatedly advanced on this issue upon the hearing of the notices of motion.

Contention (v) on the plaintiff’s notices of motion

82. The plaintiff’s contention (v) (see [58(v)]) does not justify setting aside the jury’s answers to the relevant questions on the honest opinion defences or setting aside the judgments which followed. I consider there is no real possibility that the jury were misled or confused by the mistaken reference to “the first matter” in each of Questions 18 and 31. It would have been clear to them that these questions concerned whether the respective published matters by which imputations (i) and (c) were conveyed would have been understood as expressions of the relevant opinions.

83. Both counsel addressed in a manner which made it apparent that each group of questions related separately to one of the four published matters. The jury were alert and attentive throughout the trial. From time to time they submitted questions which indicated they were following the issues closely. The answers they gave as to which imputations were conveyed and which ones had been proved true were discerning. The sense of each of the impugned questions is clear enough notwithstanding the error which has now been identified. That sense would have been clear to this jury in particular.

84. For all of the reasons given at [57]-[83] the plaintiff’s notices of motion filed 4 January 2018 in each proceeding will be dismissed. Nevertheless, against the eventuality of an appeal and a different view being taken, I will in a later part of these reasons assess what would have been the plaintiff’s damages for each of the main broadcast, the Internet publication and the viewer feedback segment, weighing how much damage to reputation and hurt to feelings may have been caused by the untrue imputations, taking into account imputations which were found substantially true, including contextual imputations.

(4) Damages for the news item on which the plaintiff succeeded

85. To assess the plaintiff’s damages for the morning news it is necessary to consider the entirety of its contents. It commenced with a general summation by an announcer, Ms Lara Vella:

The frightening reality of child brides has been exposed with the shocking crime of forced marriage said to affect hundreds of Australian women every year. Sydney woman, Rania Farrah, was just thirteen when her, when she was kidnapped during a holiday in Egypt and sold off to her cousin’s family in Syria by her own flesh and blood. In an interview with Nine 60 Minutes, Ms Farrah told of her harrowing ordeal during harsh beatings and forced to live a life she hated. Contemplating her own life, she made a daring bid to flee to Australia and with the help of Authorities managed to escape on her 18th birthday.

86. Whilst the above summation was being spoken there were displayed scenes in a Middle Eastern city, then footage of the plaintiff driving his motor vehicle into an underground car park and lastly some photographs of Nadia aged 13 years (in early 2002) and images of her speaking with the defendant’s interviewer in 2014. From soon after the commencement of the news item and remaining on the screen throughout it there was displayed the following text:

Child brides

Sydney woman kidnapped in Egypt

Father forced her to marry her own cousin

87. The announcer’s summation was followed by extracts from the main broadcast which had been aired the previous evening. The first extract was of a voice-over with the following content (whilst more Middle Eastern scenes were displayed):

Officials explained to Rania that she would have to wait until she turned eighteen and deemed an adult before they could help. With no money she could only hope the embassy would follow through on a promise to meet her at the hotel in downtown Damascus.

88. The next extract from the main broadcast showed Nadia Tabbaa answering questions:

Nadia   My heart was pounding.

Q.   This was your one and only chance?

Nadia   One and only.

Q.   You were …

Nadia   If I didn’t get out, I was going to kill myself that very day. It hit home when um it was early morning when I arrived and we flew over Sydney Harbour.

89. The news item concluded with this further statement by the announcer, Ms Vella:

In just three years immigrant women’s health service has rescued more than 60 women from Iraqi, Afghani, Pakistani, Indian, Egyptian, Turkish and Sudanese families.

90. The defamatory imputations which the jury found were conveyed by this matter and not proved true were as follows. Of these, the defendant had not contended that imputation (b) was true.

(a)   The plaintiff forced his daughter to marry her cousin.

(b)   The plaintiff committed the crime of forced marriage by forcing his 13-year-old daughter to marry her cousin.

(d)   The plaintiff sold off his daughter to her cousin’s family in Syria.

91. In respect of two further imputations carried by the news item the jury found the defendant had established substantial truth, as follows:

(c)   The plaintiff kidnapped his daughter.

(f)   The plaintiff forced his daughter to live a life she hated in Syria.

Principles of assessment of damages where publication partly justified

92. In Carson v John Fairfax & Sons Ltd & Slee (1993) 178 CLR 44; [1993] HCA 31 Mason CJ, Deane, Dawson and Gaudron JJ provided this general statement of the purposes to which the assessment of damages in a defamation action is directed (at [32]):

Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that "the amount of a verdict is the product of a mixture of inextricable considerations" (Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40 at 150 (Windeyer J)). The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation (Carson vJohn Fairfax & Sons Ltd (1991) 24 NSWLR at 296-299.). The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant (Uren v John Fairfax and Sons Pty Ltd at 150; Coynev Citizen Finance Ltd (1991) 172 CLR 211; [1991] HCA 10 at 216; John Fairfax and Sons v Kelly (1987) 8 NSWLR 131 at 142; McCarey v Associated Newspapers Ltd (No.2) (1965) 2 QB at 107). Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. "The gravity of the libel, the social standing of the parties and the availability of alternative remedies" are all relevant to assessing the quantum of damages necessary to vindicate the appellant (Fleming, The Law of Torts, 8th ed (1992) p 595).

93. Matthews AJ said in Harrigan v Jones [2001] NSWSC 623 at [155]:

Damages in defamation cases traditionally fulfil three purposes. They are: to console the plaintiff for hurt and distress suffered as a result of the publication; to compensate the plaintiff for harm to reputation; and to act as a vindication of the plaintiff’s reputation. The third of these, vindication, is not necessarily an independent head of damages. Rather, the Court must ensure that the final award is sufficient to vindicate the plaintiff’s reputation. If the amounts notionally awarded in relation to the first two components are insufficient to achieve this purpose, then a further amount must be added on this account.

94. The only defence pleaded to the morning news item was justification under s 25, which failed because the jury did not find that all of the defamatory imputations conveyed were substantially true. Weighing up the effect upon reputation of the two imputations which the jury found to be true in mitigation of the damage caused by the three not found true is an aspect of the trial judge’s task in assessing damages. As said by McColl JA in Besser v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 at [86]:

(c) to the extent that the defendant fails to establish all the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, [it may] rely on those proved to be true in mitigation of the plaintiff's damages: partial justification.

95. With respect to the defence of contextual truth under s 16 of the Defamation Act 1974 (NSW) (repealed), it was held by Spigelman CJ (with the concurrence of Rolfe JA) in John Fairfax Publications Pty Limited v Blake [2001] NSWCA 434 at [5] that:

For purposes of determining whether the s16 defence is capable of being made out, the Court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself.

96. That observation was applied by McColl JA in O’Brien v Australian Broadcasting Corporation at [200], with reference to s 26 of the Defamation Act 2005. The same principle is applicable where the question is not one of determining the defence under s 26 but rather of determining what mitigation would result from there having been published, within the actionable matter, in addition to the untrue imputations others that were true and were damaging to reputation. The principles governing this were summarised in Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; [2014] NSWCA 90 at [26]-[32] (Macfarlan JA, Gleeson JA and Sackville AJA agreeing):

[26] […] [H]er Honour's approach […] involved her carefully considering the evidence in the case to determine what inferences should be drawn concerning Mr Holt's behaviour towards his wife. This approach was sanctioned by the following statement of principle in Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 120, the authority of which Mr Holt did not challenge:

“So much for evidence which is directed solely to establishing the plaintiff's previous bad reputation. But a defendant is also entitled to rely in mitigation of damages on any other evidence which is properly before the court and jury. This other evidence can include evidence which has been primarily directed to, for example, a plea of justification or fair comment”.

[27] To similar effect was the statement of Keene LJ in Turner v News Group Newspapers Ltd [2006] 1 WLR 3469 at [43] that:

“It has long been established that evidence of specific acts properly admitted on [a plea of justification or fair comment] may ... be taken into account by the jury when assessing damages even though the plea has failed”.

[28] By reference to Jones v Pollard [1997] EMLR 233, Keene LJ noted that to be used for this purpose, the evidence must relate to “the relevant sector of the plaintiff's life” (at [45]). […].

[29] The qualification referred to by Keene LJ reflects the requirement that evidence led by a defendant of a plaintiff's bad character must relate to the sector of the plaintiff's reputation with which the imputations relied upon by the plaintiff were concerned (Australian Broadcasting Corporation v McBride [2001] NSWCA 322; 53 NSWLR 430 at [16] - [23]; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; 278 ALR 232 at [162]).

[30] In John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227, Handley JA (with whom Spigelman CJ and McColl JA agreed) applied the principle referred to in Pamplin, noting that there was no reason why the same use should not be made in assessing damages of evidence led in support of a failed defence based on the truth of contextual imputations (at [51]).

[31] […]

[32] The law is undoubtedly concerned “to prevent [defamation] trials from becoming roving inquiries into the plaintiff's reputation, character or disposition” (Burstein v Times Newspapers Ltd [2001] 1 WLR 579 at [35]; McBride at [16]) but that policy was not infringed in the present case. The policy is manifested by the rule that, in general, evidence of “particular acts of misconduct on the part of the plaintiff tending to show his character and disposition”, as distinct from evidence of general bad reputation, is inadmissible in mitigation of damages (Gatley on Libel and Slander (11th ed 2008, Sweet & Maxwell) at [35.30]). This rule does not apply to evidence, such as led in Burstein, of particular facts which are directly relevant to the contextual background in which a defamatory publication came to be made. Nor is it applicable where, as described in Pamplin and as was the case here, the evidence is properly before the Court on another issue.

97. Upon the principle stated I am required to consider what further damage to reputation or hurt to feelings may have been caused by the three untrue imputations (see [90]), having regard to the evidence which established the facts, matters and circumstances giving truth to imputations (c) (that the plaintiff kidnapped his daughter) and (f) (that he forced her to live a life she hated in Syria).

• If the plaintiff had conceded truth where, in the event, it has been proved, the factual contest would have concerned only imputations (a), (b) and (d) in the morning news. This would have involved a fraction of the total of the evidence given in the case. It would have concerned only Nadia’s evidence of the kitab ceremony in Damascus in 2005 or 2006, the evidence of Faiza and Issam Alassad disputing that that ceremony occurred and the evidence of these witnesses concerning marriage customs in Syria.

• Imputations (c) and (f) involved the heavily time-consuming dispute over Nadia Tabbaa’s narrative of her experiences on which the plaintiff failed dismally (see [144]).

160. On the other hand, although the plaintiff has been wholly unsuccessful in this proceeding in monetary terms I would not order that he pay any part of the defendant’s costs. Imputations (b) (that the plaintiff forced his daughter to marry at 13) and (d) (that the plaintiff sold off his daughter to relatives) were not supportable upon anything that Nadia Tabbaa had ever told the defendant. It conceded the untruth of imputation (b) but sought to justify (d) by means of a very strained inference from scant material, which the jury understandably refused to draw. The defendant’s erroneous news reportage of the age at which Nadia Tabbaa said she had been married and of the non-existent “sale” of her to relatives contributed to fuelling the litigation. Although the plaintiff failed to recover anything from this proceeding the defendant should bear its own costs.

(6) Contingent assessment of damages for main broadcast and other matters

161. At [20]-[23] I have set out the imputations in the main broadcast and Internet publication which the jury found were not justified, together with a comparison of two of those imputations with others which the jury found to be true. 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).

162. The true imputations in the main broadcast and Internet publication are listed at [18]. With relevance to imputation (l), these facts were proved: Pamela Tabbaa was born in Australia and commenced her relationship with the plaintiff here in about 1977. He was violent towards her while they lived in Sydney. On one occasion he held her by the throat and forced her partly over the edge of a balcony at an apartment in Campsie. On another occasion he struck her with a piece of timber in the presence of her sister Julie Walker. The plaintiff was violent towards his wife whilst they lived together in the Middle East. On Pamela Tabbaa’s own account, given to her sister and her children after her return to Australia in 1997, the plaintiff was physically abusive during their time in Saudi Arabia and Jordan. He had provided insufficient funds for his wife properly to furnish a home while she lived with their children Amman. He did not provide enough money to feed the family adequately.

163. With relevance to imputations (c), (g) and (h) the facts proved were as summarised at [104] and [105].

164. Imputations (d), (j) and (k) concern events which occurred after Nadia Tabbaa returned to Sydney at the end of August 2006. She then commenced to live with her mother at Ingleburn and remained there until the end of the year. The plaintiff had from early 2006 returned to live in Australia but remained separated from Pamela Tabbaa. Within Ms Tabbaa’s first month back, during September 2006, the plaintiff attended the home and asserted that he continued to have authority over her. Ms Tabbaa responded that he had no such authority. At this the plaintiff became angry and made the pronouncement about the “Western pig government” and about slitting the throats of Ms Tabbaa and her mother and sister, as described in the 90 minute interview and quoted above at [29].

165. Ms Tabbaa commenced to work as a waitress but the plaintiff demanded she quit. He threatened to harm her if she did not. Pamela and Omar Tabbaa counselled Nadia that the plaintiff was capable of carrying out his threat. The plaintiff subsequently threatened Ms Tabbaa by phone and said he would also “get” Nadia’s older sister. Ms Tabbaa quit her waitressing job but reported the intimidation to police at Macquarie Fields Station on 19 September 2006. A constable applied for and obtained an Apprehended Violence Order against the plaintiff (exhibit 32).

166. All of these findings and the true imputations which encapsulate them detract greatly from the plaintiff’s reputation in the relevant sector, being that which concerns relations with his immediate family, particularly female members. If the defence of honest opinion had not succeeded, I would have assessed the damages for the main broadcast and for 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.

167. The feedback segment took the form of a presenter reading responses from the defendant’s viewers concerning the main broadcast aired one week earlier. Extracts of text from some of these responses were displayed on the screen. The presenter offered observations of his own on the general tenor of viewer reactions. The jury found that the following imputations were conveyed and had not been proved true:

(b)   The plaintiff lured his daughter overseas in order to force her to marry her cousin.

(d)   The plaintiff beat his daughter.

(e)   The plaintiff threatened to kill his daughter if she was not a virgin.

168. The following four imputations were found to have been conveyed but were true:

(a)   The plaintiff kidnapped his daughter.

(c)   The plaintiff is an awful man.

(f)   The plaintiff forced his daughter to be checked for her virginity.

(g)   The plaintiff held his daughter captive in Syria for five years.

169. It has earlier been noted, where an imputation equivalent to (d) above was considered in relation to the main broadcast, that the basis of the jury’s finding that this was not true was that, in Amman in January 2000, the plaintiff stood by while his 21-year-old son beat Nadia severely, rather than that he did so himself: see [23]. When the true imputations in the feedback segment are viewed together with the facts upon which the truth of imputations (a), (f) and (g) were proved at the trial, I consider the mitigating effect of the true imputations is such that no measurable harm to the reputation of the plaintiff nor any compensable hurt to his feelings can be said to have resulted from the publication of the matter overall.

170. Untrue imputation (b) in the segment did not include any damaging assertion with respect to Nadia having been at a very young age when it was imputed that the plaintiff lured her overseas for marriage purposes. Although imputation (b) and the false assertion that the plaintiff had threatened to kill his daughter for not being a virgin could in other circumstances cause serious damage to reputation and hurt to feelings, they would not do so in relation to a man against whom there were known all the facts concerning the abduction of his daughter to Syria at the age of 13 and her oppressive confinement there over the next four and a half years.

(7) Costs of No 2015/79981 - main broadcast and Internet publication

171. For reasons published separately I have ordered that one third of the defendant’s costs of the hearing time be attributed to the separate action of Pamela Tabbaa: Tabbaa v Nine Network Pty Ltd (No.11). Apportionment of the remaining two thirds of the hearing time must be made between proceeding No 2015/79981, in which the plaintiff was wholly unsuccessful and is to pay the defendant’s costs, and No 2015/181496, in which no costs order will be made.

172. There was considerable overlap between the issues litigated in connection with the main broadcast and Internet publication (No 2015/79981) and those litigated in relation to the morning news. However the former involved additional contested allegations of violence by the plaintiff towards Pamela Tabbaa over the many years of their marriage and threats of violence against Ms Tabbaa, her mother and sister in 2006. That is, the factual issues referred to at [162]-[165] above. These issues were a significant part of the trial because evidence was given on them by all members of the Tabbaa family and by Geoffrey Rodgers and Julie Walker. The plaintiff failed on these issues.

173. After attributing one third of the hearing time to Pamela Tabbaa’s action, my best estimate with respect to the remaining two thirds is that half of the total hearing time was devoted to proceeding No 2015/79981 and one sixth to proceeding No 2015/181496, in which the morning news and feedback segment were litigated.

174. In support of its claim for indemnity costs the defendant relies, first, upon a Calderbank letter dated 30 April 2015 in which it offered to accept dismissal of proceeding No 2015/79981 with no order as to costs. Although the plaintiff had been represented by Turner Freeman Lawyers when the statement of claim in this proceeding was filed, this letter was written directly to the plaintiff at his home address because, as stated in the opening paragraph, his solicitor had advised the defendant’s solicitor that the plaintiff was now unrepresented. A copy of the Calderbank letter was sent to Mr Hanley-Jones of Turner Freeman who had previously conducted the matter for the plaintiff.

175. The offer was stated to be open for acceptance until 5:00 pm on Thursday, 7 May 2015. The plaintiff did not accept the offer. It appears to have lapsed. There is no evidence of explicit rejection. After this time the plaintiff was again represented by Turner Freeman in the proceedings. There is no evidence before the Court as to the reason for or duration of the interruption of that representation.

176. In its submissions in support of an award of indemnity costs the defendant acknowledges the settled law that whether non-acceptance of a Calderbank offer will justify an indemnity costs order depends upon whether the non-acceptance (or rejection) was unreasonable. It is also acknowledged that the authorities establish factors relevant to reasonableness or otherwise include the stage of the proceeding at which the offer was made and the time allowed to the offeree to consider it. I cannot regard it as unreasonable on the part of the plaintiff not to have accepted this offer within the brief window of seven days for which it was open at a time when, for some reason not explained on the evidence, he was without legal representation. In fairness, to set up a basis upon which indemnity costs might be asked for the defendant would in my opinion have had to renew the offer in a letter addressed directly to the plaintiff’s solicitors at a time when it was clearly established that they had resumed or renewed their retainer.

177. The defendant’s second basis for claiming indemnity costs in No 2015/079981 is that the plaintiff’s evidence in denial of imputations which the jury found true in the main broadcast and internet publication was deliberately false. I find that some of his evidence must have been deliberately untruthful and to a degree the factual issues were widened unnecessarily by this. Although the proceeding failed altogether because of the opinion defence and would not have resulted in an award of damages even without that defence, I would not conclude that it was an abuse of process having regard to the unjustified imputation that the plaintiff forced his daughter to marry at 13. I will not order indemnity costs.

The manner in which the trial was conducted

178. This trial was wastefully prolonged. A trial which should have been completed comfortably within three weeks occupied five. Both parties were equally responsible for seriously unsatisfactory aspects of its conduct, which should not pass without comment directed to discouraging repetition.

179. In Chappell v Mirror Newspapers Ltd Moffitt P said:

It is notorious that the conduct of a defamation action, rightly or wrongly, resembles some type of duel in which the art of concealing art plays not a little part and the skill of the adversaries is to play hard according to the rules but exploiting the rules to have matter introduced into the case upon some permissible basis because of the known or believed collateral effect on jury minds.

180. Since those observations were made 34 years ago the laws of evidence and of procedure have been amended in ways which should enhance the integrity, efficiency and economy of civil jury trials. For example, Pt 3.7 of the Evidence Act 1995 (NSW) now restricts the introduction of credibility evidence and s 56 of the Civil Procedure Act 2005 (NSW) prescribes duties of parties and legal representatives in the conduct of proceedings. Section 56 is usually engaged in relation to compliance with the Uniform Civil Procedure Rules and interlocutory orders. However subss (3) and (4) express duties in entirely general terms and support the Court’s expectation of assistance and cooperation to achieve fair and efficient conduct of trials.

181. The relevant subsections of s 56 are as follows:

56 Overriding purpose(cf SCR Part 1, rule 3)

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) …

(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

(4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3):

(a) any solicitor or barrister representing the party in the proceedings,

(b) any person with a relevant interest in the proceedings commenced by the party.

182. Heedless of such developments in the law both leading counsel in this trial sought to exceed the outmoded paradigm described by Moffitt P, perhaps believing, wrongly, that trial by jury of a defamation action is some special class of procedure in which rules of evidence and objectives of efficiency and economy are relaxed to permit a wider scope of indirect influence upon the tribunal of fact. One manifestation was counsel for the defendant seeking to open up in cross-examination potentially extensive topics which could not have affected the facts in issue, nor have had any significant bearing on the credit of any witness, but were likely to be highly prejudicial to the plaintiff and/or Pamela Tabbaa. For example it was sought to adduce evidence of domestic violence at Ingleburn in June 2003 (the subject of my reasons for ruling designated No 2, 27 November 2017) and at Rockdale in March 2016 (reasons for ruling No 8, 22 December 2017). Attempts to cross-examine on these incidents were pressed with great insistence and consumed a significant amount of hearing time.

183. The plaintiff’s objections were inconsistent. I intervened on my own initiative in the defendant’s cross-examination of the plaintiff’s witnesses and in the evidence in chief of its own witnesses to try to contain the sprawl of the case. On the other hand the plaintiff’s leading counsel slowed the taking of oral evidence with frequent unmeritorious objections. As an apparently unconsidered reflex, he routinely responded to the tender of documents with claims that they had not been discovered. In all cases it was found, after some delay, that the documents either had been discovered or were not within any of the categories of which discovery had been ordered.

184. An egregious example of what I would call an ambit claim by the plaintiff’s counsel to cross-examine on credit was his attempt to question a female witness about an indecent assault upon herself. She had reported the incident as a schoolgirl to her teacher, decades before this trial. It was entirely unconnected with the facts in issue. Counsel endeavoured to put to the witness that her complaint, made at the age of eleven years, must have been fabricated because it was delayed. She had said at the time of complaint that the offending conduct occurred two years earlier, when she was nine. (The details of this are identified in my reasons for ruling designated No 3, 11 December 2017). I consider the attempt to pursue this irrelevant, prejudicial and embarrassing cross-examination was an abuse of counsel’s position.

185. Throughout the trial counsel on both sides indulged in accusations against each other, in the presence of the jury, of procedural impropriety. Complaints were made about failure to give notice as to which witnesses would be called, failure to produce copies of documents that were being tendered, allowing an uncalled witness to wait within the hearing of the Court, allegedly improper communication between the plaintiff and an interpreter and so on. Such exchanges in the jury’s presence, fairly described as squabbles, were frequent and were persisted in despite my requests that they cease or be deferred until the jury had been sent out. Counsel on both sides appeared to regard such conduct as legitimate advocacy. It is not. It had the potential to subvert my endeavours to have the jury decide the case only on the admissible evidence and the given law. On occasions these disputes had to be explained in an attempt to neutralise prejudicial effect. The jury were, in my estimation, not influenced. All four jurors showed attentive engagement with the case and they delivered balanced and discriminating answers to the questions they were asked. Counsel underestimated them.

186. The plaintiff’s leading counsel pursued into final address his deployment of irrelevancies. In defiance of a ruling I had given before his address commenced, he invited the jury to draw a Jones v Dunkel inference with respect to one witness and issued numerous invitations to the jury to speculate about evidence that might have been given by other witnesses who were not called. He mischaracterised the defendant’s case in two significant respects. First, he suggested that Nadia Tabbaa’s scars from self-harming were “the pinnacle” of the defendant’s case and that the defendant had failed to adduce medical evidence about the scars which he said would have been determinative of the issues in the trial. Secondly, he argued that that the defendant’s case somehow turned upon whether Syria should be classified as a third-world country. These emotive, prejudicial and insupportable submissions required extensive correction in the summing up which in turn made it difficult to maintain balance in directing the jury to use the evidence permissibly.

187. Counsel should have been able to conduct the trial with minimal disputes about relevance, other grounds of admissibility and points of procedure. Instead, everything was a fight. The limits of robust adversary procedure were well exceeded. Counsel imposed upon the Court a running battle to contain ambit evidentiary claims and other quarrels, calling for a near continuous sequence of rulings. Rather than exercise their own objective judgment and restraint, to assist the Court to accord a fair and efficient trial, counsel adopted equal but opposed positions of unreasonableness. They left it to the trial judge to try to withstand error, to protect witnesses (including the plaintiffs) against needless exposure of their private lives through irrelevant cross-examination and to overcome the distractions to which the jury were subjected.

Orders

188. In proceeding No 2015/79981 the further orders of the Court are:

1. The plaintiff’s notice of motion filed 4 January 2018 is dismissed.

2. The parties’ costs of the notice of motion filed 4 January 2018 are to be costs in the proceeding.

1. For the purpose of assessing costs under the order for costs made 21 December 2018, one half of the hearing time of the trial and of the post-trial hearing on 5 February 2018 is to be attributed to this proceeding.

189. In proceeding No 2015/181496 the further orders are:

1. The plaintiff’s notice of motion filed 4 January 2018 is dismissed.

2. The plaintiff’s damages under the judgment entered in his favour on 21 December 2017 are assessed at nil.

3. The parties are each to bear their own costs of this proceeding including their costs of the plaintiff’s notice of motion filed 4 January 2018.

**********

Amendments

20 April 2018 -

[189](2): delete '2007' substitute '2017'

20 April 2018 -

Cover page amended to reflect typographical correction at [189](2).

Decision last updated: 20 April 2018