Zwambila v Wafawarova
[2015] ACTSC 171
•10 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Zwambila v Wafawarova |
Citation: | [2015] ACTSC 171 |
Hearing Date: | 28 April 2014 |
DecisionDate: | 10 July 2015 |
Before: | Penfold J |
Decision: | 1. The defendant Panganai Reason Wafawarova, otherwise known as Reason Wafawarova, is to pay the plaintiff: (a) $160,000 as general damages; and (b) $20,000 as aggravated damages. 2. The defendant Panganai Reason Wafawarova, otherwise known as Reason Wafawarova, is to pay: (a) the plaintiff’s costs of the proceedings up to and including 20 December 2013 (other than costs that are already the subject of an order of the Supreme Court), on an indemnity basis; and (b) the plaintiff’s costs since 20 December 2013 on a party/party basis. |
Category: | Principal Judgment |
Catchwords: | DEFAMATION – Actions for Defamation – defamation of foreign ambassador to Australia – subject of defamatory publication was conduct alleged to have taken place inside Zimbabwean Embassy – plaintiff relied on publication in Zimbabwe and electronic re-publications – defendant’s responsibility for publication – claim for aggravated damages – jurisdiction of ACT Supreme Court – choice of law – defendant’s failure to plead Zimbabwean law – nature of defamation – cultural significance of defamatory matter in Zimbabwe – assessment of damages – claim for indemnity costs where no settlement offer made and having regard to defendant’s conduct of proceedings – indemnity costs limited having regard to abandonment of parts of plaintiff’s case during hearing. |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT), ss 123, 139G, 139K, Div. 9.4.3 Service and Execution of Process Act 1992 (Cth), s 15(1) Civil Law (Wrongs) Non-economic Loss Declaration 2015 (ACT) |
Cases Cited: | Anderson v Mirror Newspapers (No. 2) (1986) 5 NSWLR 735 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 Kontis v Barlin (1993) 115 ACTR 11 Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 Zwambila v Wafawarova [2014] ACTSC 73 |
Parties: | Jacqueline Zwambila (Plaintiff) Panganai Reason Wafawarova (Defendant) |
Representation: | Counsel Mr S Littlemore SC (Plaintiff) Self-represented (Defendant) |
| Solicitors Aulich Civil Law (Plaintiff) Self-represented (Defendant) | |
File Number: | SC 11 of 2012 |
Introduction
Jacqueline Zwambila, who was at all relevant times the Zimbabwean Ambassador to Australia, brought defamation proceedings against two defendants by an originating claim and statement of claim filed on 13 January 2011. Her action against the first defendant, Nationwide News Pty Ltd, was settled by consent orders made on 25 May 2011, but the action proceeded against the second defendant.
The second defendant was identified in the originating claim as Panganai Reason Wafawarova. As is mentioned several times in this judgment, Mr Wafawarova asserts that his name is Reason Wafawarova, that Panganai is simply a Shona translation of the name Reason, and that he has never used the name Panganai. I understand that Shona refers, among other things, to the languages used by the Shona peoples of Zimbabwe. For reasons that will become apparent, I propose to make the orders in this matter by reference both to the second defendant’s name as shown in court papers but also in the name he prefers. In this judgment I shall generally refer to him simply as “the defendant”.
The statement of claim (and the amended statement of claim filed on 25 May 2011) alleged that on or about 12 November 2010 Mr Wafawarova had published an article defamatory of Ms Zwambila (the defamatory article) in Zimbabwean newspapers, including The Herald, and republished these allegations on his website from 12 November 2010.
On 20 December 2013, I made orders striking out all of Mr Wafawarova’s amended defence, and listing the matter on 28 April 2014 for the assessment of damages (Zwambila v Wafawarova [2014] ACTSC 73).
Defendant’s application for adjournment
On 28 April 2014, the defendant appeared in person.
He applied for an adjournment:
(a)to allow him more time to consider the material that had been filed and served by the plaintiff in accordance with orders made on 20 December 2013 requiring all affidavits, and any other material to be relied on for the assessment of damages, to be filed and served by 14 April 2014; and
(b)to allow him time to file an application to have the proceedings struck out.
More time to deal with plaintiff’s documents
The defendant said that he had received the plaintiff’s folder of documents on 16 April 2014. He did not dispute the assertion by counsel for the plaintiff that the documents had been emailed to him on 11 April 2014, but said that it was common for him to open his email only every three or four days. Although it is true that the hard copy bundle the defendant received from the plaintiff on 16 April 2014, two days after it was required to be served, was large (totalling 328 pages), it is also true that much of the material was historical material evidencing the progress of the plaintiff’s action, being material that had been either created by or previously served on the defendant, and that the new material consisted of:
(a)an affidavit about publication in Zimbabwe and in particular about the circulation and readership of The Herald (five pages summarising the effect of 52 attached pages of material sourced mainly from the internet);
(b)three affidavits about the plaintiff’s reputation and reactions to the publications among people who knew her (totalling 13 pages);
(c)the plaintiff’s affidavit (23 pages including 14 pages of attachments evidencing further publications of the allegations contained in the defamatory article);
(d)counsel’s 11-page summary of other defamation cases involving damages awards; and
(e)counsel’s 6-page submissions.
It was apparent that, if the defendant had read any of the plaintiff’s documents before he entered the court room for the damages hearing, he had read them in a very superficial way. He did not provide any explanation for his failure to make any effort to deal with the documents in the 12 days between when he received them in hard copy and the hearing date, or within the 17 days between when they were emailed to him and the hearing date. There was no claim that the documents raised particular matters that he would need extra time to address.
I was accordingly unconvinced by the defendant’s claim that he needed more time to consider the material provided by the plaintiff in relation to the assessment of damages.
Application to strike out proceedings
As to the foreshadowed application to have the proceedings struck out, the defendant again raised issues of the kind alluded to in Zwambila v Wafawarova at [36] and [42], in general terms relating to the difficulties alleged to be caused to him by the plaintiff’s diplomatic immunity.
Since those matters were raised in late 2013, the plaintiff’s status had changed; her diplomatic appointment had ended on 27 December 2013 and she had sought political asylum from the Australia Government (at paragraph 6 of the affidavit quoted at [37] below).
The defendant noted that the plaintiff had indicated that she was willing to remain in Australia, and sought to rely on this change to explain why he had not bothered to pursue the foreshadowed application to strike out the proceedings, despite the fact that the other basis of that application, the unavailability of witnesses to the alleged incident, had remained a live issue throughout the relevant period.
The defendant had also, so he said, been advised in February 2014 that the Zimbabwean government would not waive diplomatic immunity in relation to other Zimbabwean diplomats involved in the events the subject of the defendant’s publication. A letter from the Charge D’Affaires at the Embassy of the Republic of Zimbabwe in Australia dated 24 February 2014, included in the defendant’s filed documents, said:
Please be advised that the Government of the Republic of Zimbabwe, in terms of Articles 31-37 of the Vienna Convention on Diplomatic Relations, cannot authorize the release of the above-mentioned officials to be witnesses to the said case above.
The defendant argued that in the absence of those witnesses, the court had no jurisdiction to deal with the plaintiff’s action. I cannot see that the absence of witnesses could have deprived the court of jurisdiction, although it might have founded a stay application in some circumstances. However, given that this issue had been raised but not pursued, despite relevant court orders, while liability was still in issue, I considered that it did not need to be considered again long after the defendant’s defence had been struck out.
In his affidavit mentioned at [33] below, the defendant also raised a more general (and perhaps even more misguided) argument to the effect that the plaintiff’s claim related to official business conducted in the Zimbabwean Embassy, which was not within the jurisdiction of the Australian courts. It is however clear that the plaintiff’s cause of action relied on the publication of claims (not in the course of any official embassy business) which happened to be about her behaviour in the Embassy and, irrespective of the truth or otherwise of any such claims, did not rely on her actual behaviour in an official capacity in the Embassy.
I refused the defendant’s application for an adjournment so that he could file an application to have the proceedings struck out, having regard to the facts that:
(a)the defendant had made no attempt to comply with the orders I made in November 2013 in response to an earlier indication that he wished to apply to have the proceedings struck out; and
(b)the defendant had not before the day of the damages hearing made any application for the proceedings to be struck out, or even an application for any necessary leave to file such an application:
(i)since his defence was struck out on 20 December 2013;
(ii)since it became apparent early in 2014 that the plaintiff would be remaining in Australia for some time; or
(iii)since he was advised in February 2014 that there would be difficulties in arranging the attendance of witnesses at this hearing.
Order
The defendant’s application for an adjournment was therefore refused, and the hearing proceeded in relation to the assessment of damages.
The publication
Paragraph 5 of the amended statement of claim pleaded publication by the defendant, on or about 12 November 2010, in newspapers in Zimbabwe including a newspaper known as The Herald, of the defamatory article, as follows:
Ambassador strips naked
By: TH-TC-TZG-Reason Wafawarova
1.ZIMBABWE'S Ambassador to Australia, Ms Jacqueline Zwambila, yesterday allegedly stripped naked in front of three male embassy officials after accusing them of leaking information to The Herald newspaper in Harare.
2.Ambassador Zwambila was selected by MDC-T leader Mr Morgan Tsvangirai as one of his party's nominees for top diplomatic postings within the spirit of the Global Political Agreement and inclusive Government.
3.Foreign Affairs Secretary Ambassador Joey Bimha yesterday could neither confirm nor deny receiving such reports, saying he was waiting for a full report from Canberra.
4."We are not in possession of the facts. Because of the time differences between the two countries, we have not yet received the details of that matter.
5."We will only comment after receiving a full report," Ambassador Bimha said.
6.The Herald newspaper was reliably informed that Ambassador Zwambila yesterday summoned three officials – Mr Moses Chikanyairo, Mr Givemore T. Nyanzou and Mr Felix Nyamupinga – to her offices at around 10 am Australian time, 1am (Zimbabwe time).
7.She interrogated them on who had given The Herald the embassy's website link.
8.The website in question was launched in Australia, apparently for international readers only and for the purposes of advancing MDC-T interests in Canberra.
9.Following the launch, Ambassador Zwambila posted an article claiming that sanctions imposed on Zimbabwe were not hurting ordinary people.
10.She was reportedly shocked to see excerpts of the article in The Herald on Wednesday.
11.When quizzed, the three embassy officials denied leaking any information.
12.At this point, the ambassador allegedly shouted in Shona: "Manje hamundizivi. (You don't know me well). Ask... (name of a minister mentioned) and he will tell you what I am capable of doing. Nhasi ndinoda kukubvisirai hembe. (Today I am going to strip naked in front of you)."
13.The sources said she then proceeded to remove her clothes and stood in front of them in her bra and panties.
14.The three officials left the office in embarrassment.
15.Australian staff at the embassy – including Ambassador Zwambila's driver, a receptionist and a cleaner – reportedly saw the officials beating a hasty retreat from her office.
16.When contacted for a comment from her Australian base yesterday, Ambassador Zwambila switched off her phone on learning that the call was from The Herald in Harare.
17.After that her phone went unanswered.
18.MDC-T's secretary for international relations, Professor Eliphas Mukonoweshuro, yesterday distanced his party from Ambassador Zwambila's behaviour.
19."She is a Government appointee. Diplomats representing Zimbabwe are not trained by the party... The Ministry of Foreign Affairs is the better authority to talk to," he said.
20.The website article reproduced by The Herald that drew Ambassador Zwambila's ire read in part: "These measures (illegal sanctions) have been revised annually, most recently in February 2010.
21.These measures do not hurt ordinary Zimbabweans, nor do they affect humanitarian assistance or legitimate business. The EU does not have any economic sanctions against Zimbabwe."
22.The website oddly had Australia's coat of arms on the top right hand corner, making Zimbabwe probably one of the few – if not the only – countries that has an embassy giving such prominence to its host.
23.Before publication of The Herald's story, the website ( was accessible.
24.However, by yesterday evening it appeared to have been pulled with a message on the host site saying: "The page you are looking for might have been removed, had its name changed, or is temporarily unavailable."
25.It was hosted by a company called Blue Host.
26.Ambassador Zwambila is not new to controversy. On several occasions, she opposed the State's position on sanctions.
27.In April this year she called for partial lifting of sanctions with a bias towards Government ministries run by MDC-T ministers.
28.Ambassador Zwambila was posted to Australia in October last year.
In the defence that was struck out (Amended Defence to Amended Statement of Claim, filed on 16 September 2011), the defendant did not plead to paragraph 5 of the amended statement of claim. Accordingly, neither the publication of the defamatory article nor its contents appears to be disputed.
Defendant’s responsibility for publication
Exhibit A is a document that was identified in the defendant’s list of discovered documents, called for by the plaintiff and produced by the defendant at the hearing, and immediately tendered by the plaintiff. It consists of an email dated 11 November 2010 from the defendant to several recipients whose email addresses are attached to a [domain] identified as “zimpapers.co.zw”.
Although the corporate structure is not absolutely clear, material in the attachments to Nicole Garnett’s affidavit mentioned at [31] below indicates that an organisation referred to as Zimpapers (which appears to be short for “Zimbabwe Newspapers”, which in turn describes itself as “the biggest newspaper publisher in the country”) is involved in publishing The Herald. The email refers to an attached “story line” and suggest the recipients seek a comment from “this lady” on a phone number provided, and a comment from “Foreign Affairs”. The attached “story line” is as follows:
Ambassador Allegedly Undresses In Front of Staff
•Ms Jacqueline Zwambila confronted Mrs Nyamupinga, Nyanzou and Chikanyayiro over Wednesday's Herald story on the publishing of comments on economic sanctions from the newly launched embassy website.
•She wanted to know how The Herald came to know of the website Link
•She accused the three of leaking "official information" to The Herald.
•They collectively denied the charges and they said they knew nothing about how The Herald acquired its information about this website.
•The ambassador is said to have started shouting at the officials and making numerous threats.
•She is said to have spoken in Shona saying she was going to strip in front of them to express her anger and it is said she made references to her previous altercations with Minister Shamhu when the two contested each other in an election in 2005.
•It is alleged she then went on to take of [sic] her garments and she stood before the embassy staff in her undergarments (Bra and pants) and she was shaking with rage.
•The officers at this time rushed out of her office and they say their hasty retreat was witnessed by other support staff at the Embassy.
•See Wednesday's story for the content of the story over which this argument started.
•The embassy staff, as you know already, have launched an official complaint with the Secretary Joey Bimha
•A comment from him, the Ambassador would be useful.
As well, the defendant conceded that he was the person who drew the story about the plaintiff to the attention of The Herald.
In Webb v Bloch (1928) 41 CLR 331 at 362-366, Isaacs J explained the law about a person’s liability for a publication by extensive reference to authority. It is sufficient for present purposes to cite the following remarks:
The meaning of "publication" is well described in Folkard on Slander and Libel, 5th ed. (1891), at p. 439 , in these words: "The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him." In Starkie on the Law of Slander and Libel, 1st ed. (1830), vol. ii., at p. 29 , it is said: "The declaration generally avers, that the defendant published and caused to be published; but the latter words seem to be perfectly unnecessary either in a civil or criminal proceeding; in civil proceedings, the principal is to all purposes identified with the agent employed by him to do any specific act" &c. In Parkes v. Prescott Giffard Q.C. quotes from the second edition of Starkie: "All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected." (citations omitted)
The defendant’s affidavit set out a “History of the Proceedings”, which I have treated as submissions about his responsibility for the defamatory article. In those submissions, the defendant says:
Apart from alerting The Herald’s Assistant Editor ... of events that had allegedly taken place at the Zimbabwean Embassy, and providing him information over a letter that had been sent to Harare by Zimbabwe embassy staff based in Canberra, I played no other part in the writing of the story in question.
It is clear from Webb v Bloch that the defendant’s admitted involvement in the publication is enough to make him a publisher for the purposes of this action.
I find that the defendant provided the details of the story contained in The Herald to The Herald, and accordingly that the defendant was a publisher of the defamatory article published in The Herald.
The defamatory imputations
The defamatory imputations pleaded by the plaintiff in relation to the defendant’s publications were as follows:
That she, the Zimbabwean ambassador to Australia:
(a) stripped naked in front of three male Zimbabwean embassy officials;
(b) lost her temper with embassy officials when they denied leaking information to the Herald newspaper in Harare;
(c) stripped to her underwear in front of three male Zimbabwean embassy officials;
(d) severely embarrassed embassy officials by her conduct;
(e) so inappropriately conducted herself as to cause embassy officials to flee her office;
(f) so conducted herself as to cause the Zimbabwean Secretary for International Relations to distance the Movement for Democratic Change ... from her behaviour.
The identification of these imputations was not challenged by the defendant. Imputation (b) was abandoned by counsel for the plaintiff during the hearing.
Evidence relevant to damages
Summary of material
A Notice to Admit Facts had been served on the defendant on 15 March 2014. The defendant conceded that he had not responded to this notice.
A Notice to Admit Authenticity of Documents was also served on the defendant, but was not relied on at the hearing.
Several affidavits were read on behalf of the plaintiff, as follows:
(a)an affidavit by the plaintiff affirmed on 3 April 2014;
(b)an affidavit by Edward Graham Cross affirmed on 4 April 2014;
(c)an affidavit by Obert C Gutu sworn on 10 April 2014 (with certain exclusions);
(d)an affidavit by Nicole Garnett affirmed on 11 April 2014 (from which were excluded several pages of irrelevant material apparently included in one of the exhibits by mistake);
(e)an affidavit by Brigid Harders sworn on 11 April 2014.
The plaintiff gave evidence, and was cross-examined by the defendant.
An affidavit sworn by the defendant on 23 April 2014 was read; it was subject to formal objection, mainly on the grounds of relevance, but counsel for the plaintiff indicated that, since the defendant was unrepresented, he did not object to me taking into account anything that might be “of significance”.
The affidavit contains some material properly described as evidence (subject to a determination of admissibility in general and relevance in particular) and much material that is largely argumentative (although at certain points implies assertions of fact). To the extent that it is relevant, the material is mentioned at the appropriate parts of this judgment.
Material from the affidavit that is not specifically mentioned further includes:
(a)attempts to re-argue defences (public interest and fair comment) that have been struck out;
(b)a repeat of the defendant’s complaint discussed in Zwambila v Wafawarova at [36] to the effect that the plaintiff’s lawyers persisted in addressing the defendant by a name (Panganai) that he says is not his, and of his claim that this is his explanation for past actions that have been identified by the plaintiff as attempts to avoid service of relevant documents (but see [123] to [127] below); and
(c)a description of some of the defendant’s own activities as a journalist in recent years.
Plaintiff’s evidence
The plaintiff relied on the following facts included in the Notice to Admit Facts:
1.That the circulation of the edition of The Herald newspaper in which the matter complained of in paragraph 5 of the Amended Statement of Claim dated 24 May 2011 ("the Amended Statement of Claim") was published, was of the order of at least 100,000 persons;
2.That the readership of the edition of The Herald newspaper in which the matter complained of in paragraph 5 of the Amended Statement of Claim was published, was of the order of at least 250,000 persons;
...
8.That the Mugabe regime, which is in control of the government of Zimbabwe, is politically opposed to the party to which the Plaintiff belongs - the Movement for Democratic Change;
...
12.That in Zimbabwe and to persons of Zimbabwean descent, publication of the matter complained of in paragraph 5 of the Amended Statement of Claim would have been particularly damaging to the Plaintiff's reputation by reason of its readership's knowledge of Zimbabwean cultural values and sexual mores;
The plaintiff’s affidavit was as follows:
1My name is Jacqueline Nomhle Zwambila, and I am the Plaintiff in these proceedings. I understand I was born on 23 October 1957. I am currently 56 years old.
2.Between 4 March 2010 and 27 December 2013, I was employed as the Zimbabwean Ambassador to Australia and New Zealand. I am currently unemployed.
Background
1.I understand I was born in Bulawayo in the Republic of Zimbabwe ("Zimbabwe"). I was raised in Bulawayo by my parents, Alfred and Patricia Zwambila. My mother identifies as part of the Shona ethnic group (from the East and Southeast of Zimbabwe), and my father identifies as part of the Ndebele ethnic group (from Chegutu in Zimbabwe).
2.I attended school in Bulawayo.
3.In or around 1978, I moved to Harare in order to commence employment as a public relations officer and public servant. In the course of my employment over the following 16 years, I mixed throughout the entire Zimbabwean community, both professionally (dealing on many occasions with journalists and mass media representatives), politically and socially.
4.In or around 2010, I was appointed as Zimbabwean Ambassador to Australia and New Zealand. I moved to Australia in early 2010 to take up my diplomatic duties.
5.During my tenure in Canberra, I engaged in study at the Australian National University.
6When my appointment as Zimbabwean Ambassador to Australia and New Zealand ended on 27 December 2013, I applied to the Australian Government for political asylum. The outcome of my application has yet to be determined.
7.In or around December 2013, I obtained a Graduate Diploma in International Affairs from the Australian National University in Canberra. I intend to continue with my studies at the Australian National University, and hope to complete a Masters’ Degree in International Affairs in due course.
The Defendant's publication and my reaction to it
8.I first became aware of the article titled “Envoy strips naked in front of staff” published in The Herald newspaper (“the Article”) on the evening of 11 November 2010. At that time, I had returned home from a diplomatic engagement, and as I usually did, sat at my computer to review the Zimbabwean news bulletins.
9.Because the article appeared on the morning of 12 November 2010 in Harare, and given the time difference of eight (8) hours between Harare and Canberra, I am able to say the article was published approximately three (3) hours after the alleged incident had occurred.
10.My initial reaction to the article was one of deep upset, surprise and distress. The assertion that I was capable of stripping naked in front of my colleagues in anger was abhorrent to me, not only because the allegations were shocking, but also because such allegations have particular cultural significance in Zimbabwe (see paragraphs 17 and 18 below).
11.The alleged statements of fact about my conduct in the Article were not only untrue, but particularly hurtful because, in over 13 years of working in politics, I had diligently worked to gain respect and the reputation of being worthy of the position of my country's ambassador.
12.Beginning shortly after the Article was published and for several months afterwards, I received numerous email correspondence, Facebook messages and telephone calls from various friends, colleagues and associates including diplomats from other nations, who referred or directed me to the Article. During the conversations, callers invariably asked me “Is it true?” It was distressing and highly embarrassing to have repeatedly to deny the allegations made in the article.
13.As a result of the contact outlined at paragraph 12 (above), it became obvious that the Article had been seen by many people I respected both personally and professionally, and with whom I had spent many years developing relationships. I realised the Article had also been made available to a huge audience, most of whom I did not know, and whom I would never have the chance to meet to set the record straight. The thought that I had no hope of clearing my name with most people who read the attack on me has caused me great hurt and distress. It has reduced my self-confidence and self-esteem significantly, and caused me to question everything that I did in my role as Ambassador. I was also distressed because I felt the article tarnished my family name, and I felt concerned about the ramifications the Article may have for my family members in Zimbabwe and elsewhere. In African culture, a family's reputation is sacrosanct, and I felt keenly that the contents of the article had called our reputation into question.
14.Over time, I became increasingly distressed that my colleagues, family and friends would change their view of me, as a result of the Article. I felt my professional reputation, built up over 13 years of working in politics and 20 years working in public roles, had been irreparably damaged.
15.In addition to my personal reaction to the Article, I had to deal with the reaction of the Secretary for Foreign Affairs, who on or around 15 November 2010 requested by letter that I report to Head Office in Harare for consultations over the alleged incident. I travelled to Harare on or around 22 November 2010.
16.In the event, I was not reprimanded for the alleged incident and remained in my role as Ambassador, but I was caused to be fearful that such would happen. In Zimbabwe upon my return there, I was in a state of great anxiety and distress. I was concerned that I would be unable to continue my political career.
Cultural significance of the allegations
17.In relation to the peculiarity of the allegations themselves, I know them to have special significance in Zimbabwe. I understand the practice of a woman stripping naked to be an ancient African custom, dating back hundreds of years, and that it demonstrated the most extreme expression of anger which could be exhibited by a woman. In modern times, the custom has become extremely rare, such that if someone were to behave in that way now, it would be considered bizarre and entirely inappropriate.
18.For this reason, the allegations in the Article caused me significant distress. I believed Zimbabwean readers of the Article would consider my behaviour distasteful, and unacceptable for a person holding high diplomatic office.
Reactions of others
19.Since the Article was published, I have been caused to feel that I have been shunned or avoided by numerous people, including a number of my former associates. I felt as if people in the diplomatic community talk about me behind my back, and were reluctant to approach me about the contents of the Article. As time has passed, those feelings have lessened, but they are always at the back of my mind.
20.On the occasions I have travelled to Zimbabwe since the Article was published, I have been recognised by members of the public several occasions. No one has made any direct remark, except when in or around 2011, I went into a bank in Harare to withdraw money. At that time, the attendant at the bank said words to the effect,
“I do not need to see your ID, that's fine”.
I said words to the effect, “Why not?”
She giggled and responded with words to the effect, “I've seen the articles, you are a celebrity.”
The attendant then laughed, drawing the attention of the other attendants, who started to look at me. I felt extremely embarrassed.
Dealings with the Defendant
21.Prior to becoming aware of the Article, I did not know the Defendant, or have any dealings with him.
22.The Defendant has failed to apologise for publication or the Article, or retract the imputations contained in the Article, despite my instructing my solicitor to require that he do so. This makes me angry, because I feel like even now, the allegations are in the public mind. I feel victimised and continue frequently to search the internet for articles published by the Defendant which repeat the allegations.
23.I am aware since the Article was published, the Defendant has been involved in the publication of numerous other matters about myself, as follows;
(a) An article published on the website known as ZimEye (URL on 30 November 2013 (annexed and marked ‘A’);
(b) An article published on the website known as ZimEye dated 5 November 2013 (annexed and marked ‘B’);
(c) An article published in The Herald newspaper titled, “MDC ambassadors face the boot” (annexed and marked ‘C’); and
(d) Material published on the Defendant's website (URL (annexed and marked ‘D’).
Reading those articles serves only to keep the hurt alive. My perception is that the defendant is entirely unrepentant about hurting me, and must feel himself to be beyond the reach of this Honourable Court.
Counsel for the plaintiff noted that the publication identified in Annexure D to the plaintiff’s affidavit appeared to have been removed from the internet.
Paragraph 7 of the Amended Statement of Claim dated 24 May 2011 was as follows:
The Article and the imputations it conveys were, further, republished by the second defendant on his website between 12 November 2010 and a date yet to be ascertained to readers in all the States and Territories of Australia, in Zimbabwe, and in other places not yet ascertained.
Counsel noted that as a result of the striking out of the defendant’s defence, this stood as an admitted fact. However, no evidence was tendered about whether the date of removal had been ascertained, but counsel for the plaintiff conceded that this publication would have little significance in the assessment of damages. He also said that the plaintiff no longer relied on publication outside Zimbabwe.
The plaintiff gave evidence about how she felt when she first read the defamatory article. She said:
I was coming back from an engagement, as you know as a diplomat, as an ambassador, in the evening, and as it is my custom to this day, I always refer to the Internet to look up what was happening at home and the news in general and on the Zimbabwe site there was my name facing, staring at me, that I had stripped my clothes. It was mortifying to say the least and even to this day just to remember or to even think about it is something which I feel disrobed, undressed, naked, I feel demeaned, and at the time I thought, "Oh my goodness, what have I done to deserve this? Whites can be this kind of maliciousness. For someone who is a woman, an African woman, knowing what those connotations mean as an African woman, a mother, I've got grown up children, my son is 37, I've got a daughter in law, I've got sons in laws, I've got grandchildren, and there is the story on the Internet, because I was at my residence, on the Internet appearing that I'd stripped my clothes in front of staff. I nearly wanted to die, I wanted the Earth to swallow me. I was ashamed, I was embarrassed, I couldn't understand, "But why is this happening," and I have my son here with me, he was 23 I think at the time, and my nephew with me, he was also like 20, and they were going to the Canberra Institute of Technology and I was thinking, "Oh my goodness, what are they going to be thinking." Because it was not just about me, this was my name, Jacqueline Nomhle Zwambila. I come from a family, you know, of people who are also called Zwambilas. So this stigmatisation was not just mine, but I was carrying it for everybody, and when they came I showed them, my other son reacted so badly to this that he left because he just couldn't deal with it.
The plaintiff said that about two weeks after the article was published, she was summoned back to Zimbabwe to see the Secretary of Foreign Affairs. He had not mentioned the allegations of stripping, but had questioned her about matters to do with the running of the Embassy that, the plaintiff said, could have been dealt with without her travelling to Zimbabwe.
The plaintiff said that she felt terrible about the fact that the article was still available on the Internet, and would follow her everywhere. She noted that having finished her diplomatic career, she would be looking for a new job, and assumed that any potential employer would Google her and would find the defamatory articles. She also noted that, because of her role as a representative of Zimbabwe, the allegations against her damaged the dignity of Zimbabwe and its people.
The defendant cross-examined the plaintiff, but most of his questions were disallowed on relevance grounds; the answers given to the few questions that were allowed did not help the defendant and did not detract in any way from the other evidence tendered by the plaintiff.
Other affidavits in the plaintiff’s case
Mr Cross’s evidence was as follows:
1.My name is Edward Graham Cross and I live at ..., Harare in the Republic of Zimbabwe (“Zimbabwe”).
2. Since 2008 I have been the Member of the Zimbabwean Parliament for Bulawayo South on behalf of a political party known as the Movement for Democratic Change (“MDC”). I am currently also a Member of the Zimbabwean National Executive, and National Secretary for Policy. In my role as the Member for Bulawayo South, I am often required to travel outside of Harare to all parts of Zimbabwe on my political duties.
3.Prior to becoming the Member for Bulawayo South in 2008, I worked as an economist and the Chief Executive and Chairman of a number of companies in Zimbabwe.
4.I have known Ambassador Jacqueline Zwambila, the Plaintiff in these proceedings, for approximately fourteen (14) years. I first met her in or around 2000 at a MDC party event.
5.Since meeting the Plaintiff I have known her in her capacity as a professional public relations expert and practitioner, as an active member and potential political candidate for the MDC, and as the Zimbabwean Ambassador to Australia and New Zealand.
6.I am familiar with the newspaper published in Zimbabwe called The Herald. I read articles published in The Herald of interest to me (mainly articles about Zimbabwean political and business affairs) every day. I often discuss these articles with my colleagues in the Zimbabwean Parliament and members of the MDC. I have engaged in this practice since before 2010.
7.In 2010, it was commonplace to regularly see a large number of my colleagues in the Zimbabwean Parliament, members of the MDC and other persons in Harare, Bulawayo and other major centres reading articles from The Herald. They are also read widely on the internet on a daily basis.
8.The circles in which I generally mix are as follows:
a.Members of the Zimbabwean Parliament from various political parties;
b.Members and supporters of the MDC;
c.Political leaders and candidates from the MDC;
d. Members, political leaders and political candidates from other political parties in Zimbabwe;
e. Members, political leaders and political candidates from political parties in South Africa;
f.Senior executives from companies in the private sector in Zimbabwe;
g.Senior executives from companies in the private sector in South Africa; and
h.Other persons with an interest in Zimbabwean and South African political and business affairs.
9.In the circles in which I mix, the Plaintiff is very well known and highly respected. She is widely regarded as a mature professional who always manages her personal and public affairs in a sensible and responsible manner. The Plaintiff's reputation in these circles in relation to her behavioural standards in her personal and professional life is very high. She is known to be a very honest and socially conservative person, who always acts with the upmost respect for herself and others.
10.I first became aware of and read the article that is the subject of the Plaintiff's claim in defamation against the Defendant (“the subject article”) when it was published in The Herald, on or around 12 November 2010.
11.On the day the subject article was published, and in the period following its publication, l discussed the subject article with leaders in the MDC, Members of the Zimbabwean Parliament and other persons with an interest in Zimbabwean politics including many concerned diplomats. These persons reside in Zimbabwe and South Africa as well as other SADC States. Many of these persons said words to the effect:
“I wonder if it's true. I don't want to believe it”.
“Have you spoken to Jacqui? Have you asked her if it's true”.
“We need to obtain Jacqui's assurance there is no truth to the allegations. She can't maintain her position in the MDC if it's true”.
“This will ruin Jacqui's reputation. I hope it doesn't end her political career”.
“How's she supposed to stand up for herself? It's her word against theirs”.
12.After the publication of the subject article, I spoke to the Plaintiff who was clearly worried and upset about the impact the allegations were having on her and her family’s reputation. The subject article was relied on by members of a number of political parties in Zimbabwe as the basis for further personal attacks on the Plaintiff, and I observed her become highly concerned the allegations would have a serious and long lasting effect on her career.
13.In business circles the reaction was one of disbelief and concern. I have no doubt that the allegations will have a long lasting impact on her ability to work as a Public Relations Consultant for the private sector in Zimbabwe or South Africa where she is well known.
Mr Gutu’s affidavit, as admitted, was as follows:
1.My name is Obert Chaurura Gutu and I practise from ..., Harare, in the Republic of Zimbabwe (“Zimbabwe”).
2.I am the senior and founding partner of Gutu & Chikowero Attorneys at Law in Harare. I hold a Bachelor of Laws degree from the University of Zimbabwe and was admitted to practise law in Zimbabwe in 1986. I established my own law firm, Gutu & Chikowero Attorneys at Law, in 1990.
3.I was previously employed as the Deputy Minister of Justice in the Zimbabwean Government between June 2010 and July 2013.
4.I first met Jacqueline Zwambila, the Plaintiff in these proceedings, in or around 2000 at a party meeting for a Zimbabwean political party known as the Movement for Democratic Change (“the MDC”). At that time, the Plaintiff and I were both members of the MDC.
5.Since meeting the Plaintiff I have spent time with her on numerous occasions, including at MDC political meetings and rallies in Zimbabwe, and at gatherings of family and friends in Zimbabwe and Australia. I consider the Plaintiff to be a close family friend.
6.A copy of the newspaper printed in Zimbabwe called The Herald is delivered to my home address every morning. Each morning before I go to work, I sit down to read The Herald as part of my daily routine. This has been part of my daily routine since before 2010.
7.Since before 2010, many of my colleagues and friends have also reported reading The Herald on a daily basis. We often discuss articles contained in The Herald that we find interesting.
8.The circles in which I generally mix are as follows:
a. Members, affiliates and supporters of the MDC;
b. Parliamentary members in Zimbabwe;
c. Diplomats from numerous countries; and
d. Members and supporters of domestic and international bodies working in the areas of foreign aid, international human rights, women's rights, and good governance.
9.In the circles in which I mix, the Plaintiff is very well known, highly respected and held in high esteem. Before and after her appointment as the Ambassador to Australian [sic] and New Zealand, she was known as an inspirational and hardworking woman who tirelessly defended human rights and democracy both domestically and internationally. The Plaintiff's reputation was that of a very mature woman of extremely high moral standing who always conducted herself in a professional and respectable manner.
10.I first became aware of the article that is the subject of the Plaintiff's claim in defamation against the Defendant (“the subject article”) when it was published in The Herald on or around 12 November 2010.
11.Shortly after reading the subject article, and in the weeks following its publication, I discussed the subject article with numerous supporters, members and leaders of the MDC who reside in Harare, Zimbabwe. Many of these persons said words to the effect:
“I don't know what to believe. It's three peoples’ word against hers”.
“This will ruin Jacqui's reputation”.
“It has to be a political smear campaign”.
“I hope this doesn't end her career”.
“Everybody is talking about the article and trying to work out if it's true”.
...
“People who don't know Jacqui personally will probably believe it and lose respect for her”.
12.A few days after the subject article was published, the Plaintiff contacted me by telephone. The Plaintiff sounded extremely upset and stressed. The Plaintiff said words to the effect:
“I’m worried about the impact the article could have on my job as a Diplomat, and my position in the MDC. I’m so upset to think my reputation could be ruined”.
13.Since the subject article was published I have observed the Plaintiff become increasingly frustrated by the allegations made against her in the subject article, and focus a lot of her time and energy on them. She has become very concerned about wanting to ‘clear her name’.
Ms Garnett was a solicitor employed by the plaintiff’s legal representatives. Her affidavit recorded the results of research she had conducted about the newspaper called The Herald and published in Zimbabwe, being the newspaper in which the defamatory article was published. The results of that research was summarised as follows:
(a) The proprietor of The Herald is Zimbabwe Newspapers (1980) Limited.
(b) As at 31 January 2013, an entity known as the Zimbabwe Mass Media Trust held 51.09% of the shares in Zimbabwe Newspapers (1980) Limited.
(c) The Zimbabwe Mass Media Trust was established by the Zimbabwean Government.
(d) The Zimbabwean Government, through the Mass Media Trust, controls The Herald.
Ms Garnett also reported that The Herald advertises its circulation as involving distribution to specified cities in Zimbabwe, being Harare, Mutare, Bulawayo, Gweru and Masvingo, and as having a target audience described as “mass market”.
As to the readership base, Ms Garnett reported as follows:
i. The Zimbabwe Advertising Research Foundation completes a survey known as the Zimbabwe All Media and Products Survey (“the ZAMPS Survey”) four times per annum.
ii. The ZAMPS survey completed in the fourth quarter of 2011 found:
1. Forty-seven percent (47%) of Zimbabweans over the age of fifteen (“adult Zimbabweans”) read a daily newspaper; and
2. Twenty-seven (27%) percent of adult Zimbabweans who read a daily newspaper read The Herald.
iii. The ZAMPS survey completed in the fourth quarter of 2012, found:
1. Forty-four percent (44%) of adult Zimbabweans read a daily newspaper; and
2. Twenty-five (25%) percent of adult Zimbabwean who read a daily newspaper read The Herald.
...
i. At 17 February 2011, the latest ZAMPS survey found that forty-four percent (44%) of adult Zimbabweans living in urban areas who read a daily newspaper read The Herald;
ii. The ZAMPS survey completed in the first quarter of 2011 found:
1. The Herald is the most widely read daily newspaper in Zimbabwe; and
2. The Herald is read by an estimated 1,038,392 adult Zimbabweans living in urban areas per day.
iii. The ZAMPS survey completed in the third quarter of 2011 found:
1. The Herald is the most widely read daily newspaper in Zimbabwe; and
2. The Herald is read by an estimated 916,714 adult Zimbabweans living in urban areas in Zimbabwe per day.
iv. As of 13 December 2011, The Herald had been the most widely read daily newspaper in Zimbabwe for twelve (12) decades.
Ms Garnett reported that in 2011, Zimbabwe’s population was approximately 12,754,000.
Ms Harders’ evidence mainly canvassed events leading up to the making of the order on 20 December 2013 striking out the defendant’s defence. It also dealt with the plaintiff’s advice to the defendant that as well as the claim for aggravated damages made in the amended statement of claim, she intended to claim aggravated damages based on the publication, after those events, of two articles dealing with the progress of her defamation claim (those articles were attached to Ms Harders’ affidavit). At the hearing, however, counsel for the plaintiff abandoned this aspect of the claim for aggravated damages, after the defendant queried the basis on which the articles could be attributed to him.
Ms Harders’ affidavit also stated that on 25 December 2013 the defendant published articles claiming an intention to appeal against my order striking out his defence, but as at 11 April 2014 had not done so. At that later date, the statutory period within which such an order could have been appealed had long since expired.
Ms Harders also testified that as at 3 April 2014, the defamatory article was still available on the website of The Herald.
Defendant’s evidence
The defendant’s affidavit that was admitted as mentioned at [33] above asserted that the Zimbabwean government led by Robert Mugabe had been “very uncooperative” in its response to the defendant’s requests for help in responding to the plaintiff’s action against him. The affidavit annexed a number of communications from the defendant to Zimbabwean officials, and people with “Zimpapers” email addresses, seeking financial and other assistance in relation to this matter. There did not seem to be any positive replies. This material was said to cast doubt on the plaintiff’s claims that the defendant is an “agent” of the Mugabe government, a claim that was abandoned by the plaintiff at the damages hearing.
Submissions about damages
Plaintiff’s submissions
Counsel for the plaintiff provided written submissions, some of which were not pressed. Counsel also provided a useful table of awards of damages in other possibly comparable defamation cases. I have considered that table, but do not see any need to refer specifically to other awards.
Defendant’s submissions
The defendant’s affidavit admitted as mentioned at [33] above contained some material that I shall treat as submissions and mention at relevant points.
Claim for aggravated damages
The amended statement of claim seeks aggravated damages against the defendant. Although several other grounds for an award of such damages were identified in the amended statement of claim, at the hearing the plaintiff relied only on the following matters from the amended statement of claim:
(a)the defendant’s failure to apologise for or retract the imputations, despite requests made by the plaintiff’s solicitor by letters dated 18 November 2010 and 14 December 2010; and
(b)what is described in Ms Harders’ affidavit of 11 April 2014 as:
the particular shame the Plaintiff suffered, as a Zimbabwean national aware of her country’s cultural values and sexual mores, at being portrayed as she was in the article complained of.
As noted at [51] above, the defendant was advised in late 2013 that the plaintiff would also rely on the publication of two further articles in her claim for aggravated damages, but the plaintiff abandoned this claim at the damages hearing.
One of the bases for a claim for aggravated damages that was abandoned at the hearing was the defendant’s “express malice in publishing the matter, which malice includes his improper motives and ulterior purposes as an agent of the Mugabe regime, which opposes the plaintiff and her party (the MDC)”. In the defendant’s affidavit, he asserts that this claim is “baseless, unfounded, spurious, ridiculous, speculative, and absolutely meaningless”. He also says that the plaintiff’s claim is of “a huge international conspiracy”, which he dismisses as “baseless imagination vainly elevated to the status of Court evidence”. The defendant also calls upon the plaintiff to prove his motivation for promoting President Mugabe‘s government, and to prove a relationship between him and the Mugabe government. He complains about his own treatment by the Mugabe government and defamation of him relating to his relations with the Mugabe government (and see [54] above).
The legal framework
Before assessing damages, it is useful to clarify the legal framework in which those damages are to be assessed. With very limited exceptions discussed below, neither party provided any submissions about that framework.
Jurisdiction
When this action was commenced, the defendant was apparently living in NSW. Although serving the originating application and statement of claim was not easy, the documents were eventually served by substituted service to the defendant’s email address, in accordance with orders made by the Registrar of this Court in March 2011. The defendant instructed solicitors and a defence was filed.
The only challenge to this Court’s jurisdiction has been made by reference to the fact that the scene of the events alleged in the defamatory article was the Zimbabwean Embassy; as explained at [15] above, I do not consider that this argument requires further consideration.
The ACT Supreme Court accordingly has jurisdiction to hear and determine this matter (see Service and Execution of Process Act 1992 (Cth), s 15(1); Kontis v Barlin (1993) 115 ACTR 11 at 18 to 19).
Choice of law
Defamation occurs where the defamatory matter is published (Lewincamp v ACP Magazines Limited [2008] ACTSC 69 at [174]). Although the availability of the material on The Herald’s website means that there is also publication whenever the material is downloaded to a person’s computer or other device (Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575), the damages claim in this case is based solely on the publication in Zimbabwe and “such republication as is the natural and probable consequence of that publication”.
The Civil Law (Wrongs) Act 2002 (ACT) deals with choice of law in a defamation proceeding by reference to where in Australia the relevant material is published. Section 123 of that Act is as follows:
123Choice of law for defamation proceedings
(1)If a matter is published wholly within a particular Australian jurisdictional area, the substantive law that is applicable in that area must be applied in this jurisdiction to determine any cause of action for defamation based on the publication.
(2)If there is a multiple publication of matter in more than 1 Australian jurisdictional area, the substantive law applicable in the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection must be applied in this jurisdiction to determine each cause of action for defamation based on the publication.
(3)In determining the Australian jurisdictional area with which the harm occasioned by a publication of matter has its closest connection, a court may take into account—
(a)the place at the time of publication where the plaintiff was ordinarily resident or, in the case of a corporation that may assert a cause of action for defamation, the place where the corporation had its principal place of business at that time; and
(b)the extent of publication in each relevant Australian jurisdictional area; and
(c)the extent of harm sustained by the plaintiff in each relevant Australian jurisdictional area; and
(d)any other matter that the court considers relevant.
(4)For the purposes of this section, the substantive law applicable in an Australian jurisdictional area does not include any law prescribing rules for choice of law that differ from the rules prescribed by this section.
(5)In this section:
Australian jurisdictional area means—
(a)the geographical area of Australia that lies within the territorial limits of a particular State (including its coastal waters), but not including any territory, place or other area referred to in paragraph (c); or
(b)the geographical area of Australia that lies within the territorial limits of a particular Territory (including its coastal waters), but not including any territory, place or other area referred to in paragraph (c); or
(c)any territory, place or other geographical area of Australia over which the Commonwealth has legislative competence but over which no State or Territory has legislative competence.
geographical area of Australia includes—
(a)the territorial sea of Australia; and
(b)the external territories.
multiple publication means publication by a particular person of the same, or substantially the same, matter in substantially the same form to 2 or more persons.
It is not clear to me that this provision has any direct application in the current case, since only publication in Zimbabwe is relied on. However, if s 123 is applicable, then under s 123(3) the ACT would seem to be the Australian jurisdiction with the closest connection with the harm suffered, given that the plaintiff at the relevant time not only lived in the ACT but was also based in the ACT in her official capacity as the Zimbabwean Ambassador to Australia and New Zealand. If s 123 has any relevance, then the substantive law to be applied would, subject to the relevance of foreign (non-Australian) law, be ACT law (s 123(2)). If s 123 is not in fact relevant at all, then (again subject to the relevance of non-Australian law) I cannot see any basis on which to apply anything other than the law of the ACT.
Regie Nationale das Usines Renault SA v Zhang (2002) 210 CLR 491 is authority for the proposition that foreign law must be pleaded if it is to be relied on. The majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said:
[68] Once the distinction between jurisdiction as a "threshold requirement" and choice of law is appreciated, it will be seen that there is no obligation upon either party to plead foreign law in order to render a claim or cross-claim justiciable. If, however, either party seeks to rely on foreign law, rules of court and general principles of pleading may oblige the party to plead the relevant foreign law. As is said in Bullen & Leake & Jacob's Precedents of Pleadings:
"Where a party relies on foreign law to support his claim or as a ground of defence thereto, he must specially plead the foreign law relied on in his statement of claim or defence, as the case may be, and he should give full particulars of the precise statute, code, rule, regulation, ordinance or case law relied on, with the material sections, clauses or provisions thereof. A mere allegation that an instrument depending on foreign law is null and void is too vague."
...
[69] Two particular questions arise respecting the pleading of foreign law in tort actions.
...
[70] The first question is whether it is necessary for the plaintiff to plead the foreign law in order to establish a cause of action. The answer preferred by Dicey is in the negative. In Walker v W A Pickles Pty Ltd, Hutley JA explained101:
"An action of tort may be brought in New South Wales courts irrespective of where the facts founding the action may have occurred, even if they occurred in a place where there may be no law at all: see Mostyn v Fabrigas. A pleading of a cause of action in tort which did not allege that the facts occurred in any particular law district would be formally valid. On the basis that the utmost economy is enjoined by the rules, it would seem to me that pleading of a foreign element in the initiating process in a claim in tort can never be necessary. ...
This approach is reinforced by the principle that foreign law, which is, except between the States and the Territories of the Commonwealth, a fact, is presumed to be the same as local law; and a fact presumed to be true does not have to be pleaded: See Supreme Court Rules, Pt15, r10(a).
On the other hand, if the defendant seeks to rely upon a foreign lex causae, then, in the ordinary way, it is for the defendant to allege and prove that law as an exculpatory fact.
In the absence of a specific pleading, this court (the forum court) will presume that any relevant foreign law is the same as the local law.
Since foreign (Zimbabwean) law has not been pleaded by either party, and is not the subject of evidence, I must proceed on the basis of domestic law, and for the reasons mentioned above, I propose to proceed by reference to the law of the ACT.
The defendant appeared to be taken by surprise by the conclusion that the ACT law would apply in the absence of any pleading from him that Zimbabwean law should apply. This might have been a matter of concern to the court given that by the time of the hearing the defendant was unrepresented, but he conceded that both his original defence (dated 16 April 2011) and his amended defence to the amended statement of claim (dated 16 September 2011) were drafted by lawyers who were then acting for him; however, the defendant said, his lawyers had not followed his instructions.
It is apparent, however, that the possible relevance of Zimbabwean law and of the publication in Zimbabwe was not entirely lost on the defendant’s lawyers.
The original defence asserted that:
this Honourable Court has no jurisdiction to hear this claim which alleges publication outside the Australian jurisdictional area.
The amended defence to the amended statement of claim said:
Further, the Second Defendant notes that the Plaintiff has particularised her claim of publication in paragraph 5 of her ASC as involving no claim of publication in any Australian jurisdictional area, but has pleaded no specific Zimbabwean law which is claimed to have been breached. For the avoidance of doubt, the Second Defendant notes that he reserves his right to add further defences based on Zimbabwean law if the Plaintiff particularises any Zimbabwean law claimed to have been breached.
The plaintiff did not at any point plead the application of Zimbabwean law. Nor did the defendant seek to raise Zimbabwean law in his defence.
I do not accept the implications of the defendant’s claim that, in relation to choice of law, he had given his lawyers “instructions” that were not followed. It seems much more likely that if the defendant had given any relevant instructions, they were to rely on the plaintiff’s failure to plead Zimbabwean law. In any case, even if I am wrong about that, the question whether the defendant’s former lawyers had carried out his instructions would be a matter for the defendant to take up with those former lawyers, not a matter for me.
The defendant also referred to Empson v Smith [1996] 1 QB 426 as relevant to his defence. That case relates to the scope of diplomatic immunity; it might conceivably have been relevant if this case had directly concerned events in the Zimbabwean Embassy rather than the publication in Zimbabwe of reports of such events. The defendant did not explain how this case was relevant except by noting that it related to diplomatic immunity.
Legal issues in assessing damages
In Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150, Windeyer J explained that:
compensation by damages operates in two ways – as a vindication of the plaintiff to the public and as consolation to him [or her] for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.
Measurable harm to the plaintiff’s earning capacity may be separately addressed in damages; no claim of such harm is made in this case.
Division 9.4.3 of the Civil Law (Wrongs) Act 2002 (ACT) imposes limits on awards of damages for defamation. Section 139E requires that there is:
an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
Defamation of a person who had a particularly good reputation may increase the amount of damages that is appropriate (Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 483; Anderson v Mirror Newspapers (No. 2) (1986) 5 NSWLR 735 at 737).
In general the damages for non-economic loss in a defamation proceeding are capped, at an amount that was set at $250,000 in 2006 and has been adjusted ever since by reference to increases in average weekly earnings (s 139F). The relevant amount is the amount that “is applicable at the time damages are awarded” (s 139F(1)). The current figure, which took effect on 1 July 2015, is $376,500 (Civil Law (Wrongs) Non-economic Loss Declaration 2015 (ACT)).
Section 139F(2), however, permits that maximum to be exceeded if the court is satisfied that the circumstances of publication warrant an award of aggravated damages.
In Davis v Nationwide News Pty Ltd [2008] NSWSC 693 at [28], McClellan CJ at CL rejected a submission that the NSW equivalent of s 139F(2) operated to confine the grounds for aggravated damages to the circumstances of the publication, and concluded that the NSW provision:
does not purport to deal in any general sense with a plaintiff’s entitlement to aggravated damages. The subsection is only concerned with the circumstances in which an award of damages for non-economic loss may exceed the statutory cap. Provided the award, including any component for aggravated damages by reason of the conduct of the defence or for other relevant reasons, does not exceed the statutory maximum, I am satisfied that an award of aggravated damages is available.
Aggravated damages may be awarded if the conduct of the defendant between the publication and the trial has been such as to increase the hurt or harm suffered by the plaintiff. In Triggell v Pheeney (1951) 82 CLR 497 at 514, the majority (Dixon, Williams, Webb and Kitto JJ) said:
It is no doubt true that the jury cannot take into consideration as a ground for giving or increasing damages, whether exemplary or compensatory, conduct of the defendant which was not merely bona fide but was justifiable or proper. A bona-fide defence raised properly or justifiably in the circumstances known to the defendant and evidence honestly given in support of such a defence doubtless cannot be used for such a purpose. But the decision of the majority in Herald and Weekly Times Ltd. v. McGregor [1928] HCA 36; (1928) 41 CLR 254 must mean that the conduct of the defence may be taken into consideration not only as evidencing malice at the time of publication or afterwards, as, for instance, in filing a plea, but also as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable.
In Carson v John Fairfax & Sons Ltd & Slee (1993) 178 CLR 44 (Carson) at 65-66, Mason CJ and Deane, Dawson and Gaudron JJ pointed out that if (as was the case at the relevant time under NSW legislation, and as is the case in the ACT under the Civil Law (Wrongs) Act now), the award of exemplary damages is excluded and the amount of any award of damages is confined to compensation for the hurt suffered by the plaintiff (rather than including any punitive element), then even aggravated damages must be “truly compensatory”. These points are made in s 139G of the Civil Law (Wrongs) Act, which permits the defendant’s state of mind to be taken into account in assessing damages only to the extent that the defendant’s malice or other state of mind “affects the harm sustained by the plaintiff”, and in s 139H, which excludes awards of exemplary or punitive damages.
In Carson, the majority said at 66 (apparently in obiter dicta):
Whereas publication of an apology may mitigate damage, thereby reducing the harm suffered by a plaintiff in a defamation case, and so reduce the damages awarded, the failure to publish an apology does not increase the plaintiff's hurt or widen the area of publication. No doubt want of apology may be a relevant factor in establishing that a defendant is motivated by a desire to injure the plaintiff but that does not mean that want of apology itself aggravates the plaintiff's injury.
Assessment of damages
General assessment
The matters I have considered in assessing general damages are dealt with below.
The plaintiff’s conduct in relation to the proceedings
I accept submissions made on behalf of the plaintiff that she has acted promptly and appropriately in:
(a)having her legal representatives contact the defendant within a week after the publication (18 November 2010), and again several weeks later (14 December 2010), seeking an apology or retraction;
(b)commencing legal proceedings a month later (13 January 2011), when it became clear that no apology or retraction would be offered; and
(c)seeking various interlocutory orders aimed at ensuring that the matter progressed, as well as commencing bankruptcy proceedings with a view to recovering costs awarded to her against the defendant (a detailed history of the proceedings before trial is found in Zwambila v Wafawarova).
I also accept that, as noted in Zwambila v Wafawarova, those interlocutory applications have largely been decided in the plaintiff’s favour, and various costs orders have also been made in her favour.
The plaintiff’s reputation
As to the plaintiff’s reputation, I note Mr Cross’s evidence that:
9.In the circles in which I mix, the Plaintiff is very well known and highly respected. She is widely regarded as a mature professional who always manages her personal and public affairs in a sensible and responsible manner. The Plaintiff's reputation in these circles in relation to her behavioural standards in her personal and professional life is very high. She is known to be a very honest and socially conservative person, who always acts with the upmost respect for herself and others.
Mr Gutu’s evidence is also significant; he said:
9.In the circles in which I mix, the Plaintiff is very well known, highly respected and held in high esteem. Before and after her appointment as the Ambassador to Australian [sic] and New Zealand, she was known as an inspirational and hardworking woman who tirelessly defended human rights and democracy both domestically and internationally. The Plaintiff's reputation was that of a very mature woman of extremely high moral standing who always conducted herself In a professional and respectable manner.
In her affidavit, the plaintiff described her career:
3.In or around 1978, I moved to Harare in order to commence employment as a public relations officer and public servant. In the course of my employment over the following 16 years, I mixed throughout the entire Zimbabwean community, both professionally (dealing on many occasions with journalists and mass media representatives), politically and socially.
4.In or around 2010, I was appointed as Zimbabwean Ambassador to Australia and New Zealand. I moved to Australia in early 2010 to take up my diplomatic duties.
5.During my tenure in Canberra, I engaged in study at the Australian National University.
6When my appointment as Zimbabwean Ambassador to Australia and New Zealand ended on 27 December 2013, I applied to the Australian Government for political asylum. The outcome of my application has yet to be determined.
I find that the plaintiff was at all relevant times a senior diplomat, Zimbabwe’s most senior representative in Australia and New Zealand, and a person of good standing in Zimbabwe with a reputation for maintaining propriety and high standards in her professional and personal life. I find that as a senior diplomat and as a high-profile representative of one of the two main political parties involved in the government of Zimbabwe, the plaintiff’s reputation was very important to her.
The nature of the defamation
The imputations relied on are usefully repeated at this point:
That she, the Zimbabwean ambassador to Australia:
(a) stripped naked in front of three male Zimbabwean embassy officials;
(b) ...
(c) stripped to her underwear in front of three male Zimbabwean embassy officials;
(d) severely embarrassed embassy officials by her conduct;
(e) so inappropriately conducted herself as to cause embassy officials to flee her office;
(f) so conducted herself as to cause the Zimbabwean Secretary for International Relations to distance the Movement for Democratic Change ... from her behaviour.
A statement may be defamatory, even if it may tend to damage the plaintiff’s reputation only among some members of the community, provided some of these persons are included in the group of people to whom the statement is published (Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 at 544).
Counsel in written submissions said that the libel complained of was “of a particularly harmful and hurtful kind”, in that it asserted that the plaintiff “was guilty of sexually disgraceful conduct”, but in discussion he conceded that this was not the correct description of the nature of the libel.
The imputations seem to involve two different kinds of criticism of the plaintiff. The imputations of having stripped naked and having stripped to her underwear ((a) and (c)) certainly in context imply inappropriate conduct in a workplace. Whether that conduct is properly described as “sexually disgraceful” or simply embarrassing or confronting to those present is another question.
Imputations (d) and (e) refer to claims of conduct that is also clearly inappropriate in the workplace, while imputation (f) is that the plaintiff’s conduct was disapproved of by an official of the political party with whom the plaintiff was aligned.
There are clear imputations that the plaintiff had behaved inappropriately in her workplace. However, it is also put that the particular inappropriate conduct had special significance in Zimbabwe. The plaintiff’s evidence as to the cultural significance of her alleged conduct was set out in her affidavit as follows:
17.In relation to the peculiarity of the allegations themselves, I know them to have special significance in Zimbabwe. I understand the practice of a woman stripping naked to be an ancient African custom, dating back hundreds of years, and that it demonstrated the most extreme expression of anger which could be exhibited by a woman. In modern times, the custom has become extremely rare, such that if someone were to behave in that way now, it would be considered bizarre and entirely inappropriate.
18.For this reason, the allegations in the Article caused me significant distress. I believed Zimbabwean readers of the Article would consider my behaviour distasteful, and unacceptable for a person holding high diplomatic office.
Admitted Fact 12 (at [36] above) is as follows:
12.That in Zimbabwe and to persons of Zimbabwean descent, publication of the matter complained of in paragraph 5 of the Amended Statement of Claim would have been particularly damaging to the Plaintiff's reputation by reason of its readership's knowledge of Zimbabwean cultural values and sexual mores;
The plaintiff’s evidence is that originally, stripping naked was “the most extreme expression of anger which could be exhibited by a woman”. That may have reflected the risks that would generally have faced a woman who sought to express her anger by engaging in any physical conflict, at least with a man. Certainly it does not seem to imply that for a woman to express anger amounted to sexual misconduct. On its face, a claim that a woman has used a culturally recognised way to express anger does not seem to be any more significant than would be a claim that an Australian woman (or man) had raised her or his voice in order to express anger.
However, the plaintiff’s evidence is that “in modern times”, the custom is rarely practised, and that doing so would be considered “bizarre and entirely inappropriate”. In other words, the alleged conduct is in modern Zimbabwe regarded as inappropriate.
I am satisfied that this means that the behaviour would be embarrassing and confronting to others present if engaged in within a workplace. I also accept that it would be particularly so in the context of a workplace of a formal kind and behaviour by the most senior officer in that workplace, and even more inappropriate when engaged in by a senior diplomat in the country where she represented her government.
The reference to “sexual mores” in Admitted Fact 12 was not expanded on, either in evidence or submissions, and its significance is not absolutely clear. However, I shall assume that public or semi-public nudity might be seen as improper among some, possibly many, members of the Zimbabwean community even where there is no direct or explicit connection with sexual activity or sexual titillation.
I am satisfied that the defamatory article would have damaged the plaintiff’s reputation among many members of the Zimbabwean community who read the article but who had no personal knowledge of the plaintiff. For some people the damage to reputation would have related to the plaintiff’s alleged failure to conduct herself properly in her workplace and for others it might have related to their doubts about the plaintiff’s sexual and other morality.
The mode and extent of publication
It is not in dispute that The Herald is “controlled” by the Zimbabwean government through an entity known as the Zimbabwean Mass Media Trust (at [47] above). The plaintiff’s unchallenged evidence is that The Herald is a mass circulation newspaper in Zimbabwe. The plaintiff’s evidence suggested a readership at the time of up to 1,000,000 people, while the relevant “fact” set out in the unchallenged Notice to Admit Facts was that the readership was at least 250,000 people (at [36] above). I find that the readership of The Herald at the time of the publication was between 1,000,000 and 250,000. I see no need to make a more precise finding.
I also accept the proposition that a large number of those readers would have had no personal knowledge of the plaintiff and no basis on which to assess the truth of the publication. Counsel for the plaintiff noted that The Herald has “the authority of a government publication”, but there is no evidence before me about whether in Zimbabwe, having “the authority of a government publication” enhances or detracts from the credibility of a publication.
Counsel also noted the likelihood that the defamatory publication would remain on The Herald’s website, and thus be available worldwide, and particularly in Australia where the plaintiff is seeking employment, indefinitely.
Aggravated damages
The plaintiff claims aggravated damages in reliance on:
(a)the defendant’s “hurtful failure to apologise for and/or retract the imputations”; and
(b)“the particular shame the Plaintiff suffered, as a Zimbabwean national aware of her country’s cultural values and sexual mores, at being portrayed as she was in the article complained of.”
As noted, aggravated damages may be awarded if the conduct of the defendant between the publication and the trial has been such as to increase the hurt or harm suffered by the plaintiff (at [84] above). The claim in this case, to the extent that it relied on the defendant’s conduct since the publication, related only to the defendant’s failure to apologise or retract his defamatory claims.
The defendant’s failure to retract or apologise
The plaintiff described the defendant’s failure to apologise or retract his imputations as “hurtful”, but did not direct me to any basis on which I could find that the absence of an apology or retraction as such had aggravated the plaintiff’s injury or hurt, as would seem to be required by the propositions from Carson quoted at [86] above that:
the failure to publish an apology does not increase the plaintiff's hurt or widen the area of publication ... No doubt want of apology may be a relevant factor in establishing that a defendant is motivated by a desire to injure the plaintiff but that does not mean that want of apology itself aggravates the plaintiff's injury.
In his affidavit, and in the proceedings more generally, the defendant has repeatedly asserted that he had no reason to apologise, and no capacity to retract any part of the story attributed to him, when requested to do so by the plaintiff, because he was only a columnist with The Herald, and had no control over what that newspaper published. I have already concluded at [26] above that the defendant was in law a publisher of the defamatory article, and I reject the claim that he had no capacity to apologise for or retract it (while accepting that he may not have been in a position to insist that The Herald published any apology or retraction).
The defendant did not dispute the plaintiff’s submission that he has not asked The Herald to remove the material from his website.
I accept that the defendant’s continuing refusal to take responsibility for the defamatory article, and his repeated attempts to justify his failure to apologise or retract, have been distressing to the plaintiff and have increased the harm done to her by the defendant’s conduct.
Nature of allegations
I also accept that the allegation against her may have been particularly hurtful in the context of Zimbabwean values and attitudes, but I consider that that possibility is properly accounted for in considering the nature of the defamation (as I have done in this case), rather than being a factor justifying aggravated damages.
Conclusion - award of damages
Having regard to the nature of the defamation, the nature and extent of the original publication, including its enduring nature, the personal hurt that the defamation caused, the particular significance of the plaintiff’s reputation, and the need to vindicate her position, I consider that the plaintiff should receive damages of $160,000.
Having regard to the further harm done to the plaintiff by the defendant’s approach to requests for an apology or a retraction since the publication, I consider that the plaintiff is also entitled to an award of aggravated damages of $20,000.
Costs
Counsel for the plaintiff sought indemnity costs in reliance on s 139K of the Civil Law (Wrongs) Act, which is as follows:
139KCosts in defamation proceedings
(1)In awarding costs in defamation proceedings, the court may have regard to—
(a)the way in which the parties to the proceedings conducted their cases (including any misuse of a party’s superior financial position to hinder the early resolution of the proceedings); and
(b)any other matters that the court considers relevant.
(2)Without limiting subsection (1), a court must (unless the interests of justice require otherwise)—
(a)if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff; or
(b)if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant—order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.
(3)In this section:
settlement offer means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced), that was a reasonable offer at the time it was made.
Counsel sought indemnity costs having regard to the defendant’s failure to make any settlement offer and to the defendant’s conduct of the proceedings more generally.
Failure to make a settlement offer
Certainly it is true that the defendant has at no stage made any attempt to make amends or otherwise to settle the matter. Instead, as noted, he has repeatedly denied responsibility for the publication and asserted that accordingly he has nothing to apologise for and nothing to retract.
Conduct of the proceedings
As to the defendant’s conduct of the proceedings, counsel referred to my comments in Zwambila v Wafawarova at [64] to [67], as follows:
64. Next, counsel pointed to grounds for an assertion that:
[Mr Wafawarova’s] conduct in and incidental to these proceedings demonstrates mala fides, and ... he should be given no further latitude by the Court.
65. Those grounds included Mr Wafawarova’s repeated avoidance of, or refusal to accept, service (at [3], [19] and [20] above), thereby forcing Ms Zwambila to incur extra costs to achieve service, and repeated indications by his solicitors that he would or could make no payments towards costs or damages (at [9] and [15] above).
66. Finally, counsel submitted that there were no substantial matters genuinely in issue between the parties. In support of this he made the following submission about Mr Wafawarova’s defences:(a) The defences pleaded by the respondent can be summarised thus:
i.denial of publication (but he has admitted causing the publication);
ii.denial of the publication’s capacity to convey the imputations (but he has admitted that his ‘communication’ was capable of conveying four of the five pleaded imputations);
iii.denial of republication of the newspaper article on his own website;
iv.a defence of truth (but he asserts that he will be unable to call witnesses to the alleged events);
v.defences of ‘honest opinion’ and fair comment (but he has admitted in answer to interrogatories that he ‘had no intention to (convey) any imputations’); and
vi.a defence of triviality (which is unavailable, according to the authorities, in such a case).
67. Counsel also noted that despite the 4 November orders made in Mr Wafawarova’s presence, he had not filed or served any response to Ms Zwambila’s application or any supporting affidavit.
There is no doubt that the defendant’s conduct in prolonging these proceedings as described has increased the plaintiff’s costs, and there is good reason to believe that the plaintiff will struggle to recover any costs awarded in her favour.
Some of the delays (mainly but not only relating to difficulties in serving various documents on the defendant) have arisen from the defendant’s repeated complaints about what he says is an incorrect description of him used in documents in the proceedings, and his repeated refusal to take the steps provided by the Court Procedures Rules 2006 (ACT) to correct any such inaccuracy. In Zwambila v Wafawarova at [36], I noted that his complaint was made:
generally on the basis that he had never used the name Panganai, that the name used on the court documents which included Panganai “does not exist”, and that he wanted the record corrected because otherwise people who wanted to trace “the person involved in this matter” would have trouble finding him.
On 4 November 2013 I ordered that any application to amend the description of the defendant’s name be filed and served by 20 December 2013. That order was not complied with. I understand that 4 November 2013 was not the first occasion on which the defendant had been advised that there was a procedure for changing the name by which he was described on the court file.
The transcript of the damages hearing records that, in response to counsel’s submissions about his behaviour, the defendant said:
MR WAFAWAROVA: High-handed, oppressive, insulting and contentious behaviour of defendant. I think that needs to be - I don't even know what "oppressive" means in this case. Insulting or insulted. I don't even know what "contentious" is, but that whole last bit of - I think it's just meant to try and sensationalise and try to push a point over damages, but actually put in the evidence what I meant by (indistinct) all the problems that we have had with the plaintiff are mainly to do with citation that was wrong. I (indistinct) it is arrogance (indistinct) ignore correction that this is not my name and just do not my name and just do not do a simple thing as just correcting that in the court. So I thought they were arrogant and it is nothing to do with me being high-handed, oppressive, insulting. That's just ridiculous.
HER HONOUR: Sorry, your point on [paragraph 21 of counsel’s submissions] is that all the problems in this matter relate - have related to the wrong description of your name?
MR WAFAWAROVA: No. Describing my behaviour as that.
HER HONOUR: Sure, yes, but ‑ ‑ ‑
MR WAFAWAROVA: Yes. My argument is that (indistinct) we had and sending back the messages in the case of the bankruptcy case was all to do with a name. If I was just being uncooperative I wouldn't have bothered photocopying things and trying to give - they even brought in the message that he saw my licence and then he said, "Don't worry about the passport. I've seen that." So it was all to do - because it was just a reaction because I've done this more than once, and therefore the (indistinct) have not disgraced them.
I (indistinct) just plain arrogance that somebody would keep giving a name that does not belong to you. I thought it would be a simple matter of saying, "Okay, what's your correct name? We'll go by that." But instead (indistinct) listing what is on the web site and so on. For whatever reasons, I don't know. Then that might be - I'm now being described as high-handed, oppressive, insulting, contentious. I think that's just out of order.
I note in defence of the transcript providers that the defendant is very softly-spoken and that the hearing had to be conducted in a courtroom with a high level of background noise.
Conclusions on costs
The defendant’s conduct in delaying the proceedings, including on entirely spurious bases such as the complaint about his naming on court documents, and thereby increasing the plaintiff’s costs, could be seen to justify an award of indemnity costs in the plaintiff’s favour.
Nevertheless, I hesitate to make an order for indemnity costs in this case:
(a)given that the defendant’s defence was struck out on procedural grounds after an extended period during which he was self-represented; and
(b)having regard to how many aspects of the plaintiff’s case were abandoned during the damages hearing.
Having regard to each party’s approach to this litigation, I consider that it would be appropriate to order that the defendant pay the plaintiff:
(a)her costs of the proceedings up to and including 20 December 2013 (other than costs that are already the subject of an order of the Supreme Court), on an indemnity basis; and
(b)her costs since 20 December 2013 on a party/party basis.
| I certify that the preceding one hundred and twenty-nine [129] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Kate Harris Date: 10 July 2015 |
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