Tabbaa v Nine Network Australia Pty Ltd

1. [1]

   BASTEN JA: On 29 June 2014 Channel Nine ran a 60 Minutes program entitled “Forced Marriage: An extraordinary story of kidnap, survival, escape and hiding.” The program involved interviews with two women from Muslim backgrounds who gave accounts of their own treatment, together with some general information concerning the numbers of reported cases of child brides in Sydney, and the existence of Australian laws against forced marriages. The primary material was an interview with a young woman given the pseudonym “Rania Farrah”. Her real name is Nadia Tabbaa.

2. [2]

   At about the time that the program went to air, it was also published on the Channel Nine website. On 7 December 2014 the program was rebroadcast.

3. [3]

   In March 2015, the father of the young woman, Mouhammad Tabbaa, commenced proceedings in defamation against Nine Network Australia Pty Ltd (Channel Nine) (“first proceedings”). He sued with respect to the broadcast of the matter, its republication on the Nine Network website and its republication in December 2014. Mr Tabbaa was not named on the program, but there was footage of him driving a car; there was also footage of his daughter and a picture of his former wife, the young woman’s mother, Pamela June Tabbaa. Identification was therefore based on recognition by those viewers who knew these family members.

4. [4]

   On 30 June 2014, the day after the 60 Minutes broadcast, there was an item on Channel Nine early morning news referring to the “frightening reality of child brides” which had been revealed on 60 Minutes, accompanied by footage of Mr Tabbaa in a car and a photograph of Pamela Tabbaa. On 6 July 2014 Channel Nine broadcast an item identified as “video feedback” which briefly repeated elements of the 60 Minutes story and recounted a number of comments by viewers supportive of the young woman’s courage in resisting abuse and publicising her story. Mr Tabbaa commenced separate proceedings with respect to these two broadcasts (“second proceedings”).

5. [5]

   On 19 June 2015 Pamela Tabbaa, commenced proceedings with respect to the broadcast of the 60 Minutes program on 29 June 2014 (“mother’s proceedings”). Mr and Mrs Tabbaa had divorced some seven years before the program was first broadcast.

6. [6]

   A trial in the Supreme Court ran through November and December 2017, with a judge and jury sitting for 24 days. At the end of the trial, the jury were asked, and gave answers to, a number of questions, on the basis of which the trial judge, Fagan J, entered judgment for the defendant in the mother’s proceedings and in the first proceedings. He also entered judgment for the defendant in the second proceedings with respect to the publication of the viewer feedback segment on 6 July 2014. In the result, Mr Tabbaa was successful only with respect to the early morning news item broadcast on 30 June 2014, being part of the second proceedings. Following a further hearing in February 2018, the judge awarded no damages. The judgment with respect to those orders, damages, and a notice of motion filed by the plaintiffs on 4 January 2018, which will be explained further below, was delivered on 19 April 2018. [1]

Issues at trial

1. [7]

   The content of the main broadcast (as republished on the website) was summarised by the trial judge in the following passage (the “plaintiff” being Mr Tabbaa):

2. [8]

   With respect to the pleaded imputations, the effect of the trial was summarised by the judge in the following terms:

Issues on appeal

1. [9]

   Notices of appeal were filed with respect to each of the three proceedings. Taken cumulatively, there were more than 60 grounds of appeal. There was, however, much overlap: grounds 1-11 were identical in each proceeding. However, Mr Tabbaa’s appeal in the first proceedings contained further grounds 12-23 and, in the second proceedings, further grounds 12-26. Despite this prolixity, counsel for the appellants accepted at hearing of the appeals that only three issues arose.

2. [10]

   The first two grounds in each appeal alleged an appearance of bias on the part of the trial judge which, it was submitted, should have led him to disqualify himself from continuing to hear the matter. As a finding of a reasonable apprehension of bias on the part of a trial judge would be sufficient to vitiate the conduct of the trial, absent any other error, it is generally appropriate to deal with the issue of bias first. [2] It will be addressed first below.

3. [11]

   The second issue addressed the defence of “honest opinion” under s 31 of the Defamation Act 2005 (NSW), which was successfully raised by the defendant at trial. The relevant grounds took issue with (i) the formulation of the jury question on which the finding of opinion was based; (ii) the taking away from the jury of an exception to the defence; (iii) the failure of the judge to rule on the requirement of “public interest” in the publication, before entering judgment based on the defence, and (iv) the failure of the judge to set aside the judgment so entered on the basis of the correct understanding of the nature of the defence, being relief sought by the appellants on a notice of motion filed on 4 January 2018.

4. [12]

   The third issue addressed the judge’s refusal to award damages for that part of the second proceedings, the early morning news item, on which Mr Tabbaa succeeded. The appellant challenged the way in which the judge had taken into account an amount already received in other proceedings as sufficient to exceed the damages flowing from the present claim. Mr Tabbaa also asserted that he was entitled to aggravated damages because of his knowledge that the allegations were false.

5. [13]

   For the reasons set out below, none of these challenges should be accepted: the three appeals should be dismissed.

6. [14]

   In his 19 April judgment, the primary judge made a contingent assessment of damages on the assumption that the untrue allegation, namely that Mr Tabbaa had forced his daughter to marry when she was 13 years of age a cousin who was 15 years her senior, a statement made by the presenter of the program and not part of Nadia Tabbaa’s story, was not covered by the defence of honest opinion. The judge concluded that no damages would have been awarded for the main broadcast and for the internet publication “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.” [3] That finding was said to be “unsatisfactory”. As the legal entitlement to damages on that basis has not been established this issue falls away.

Nature of court’s jurisdiction

1. [15]

   Although the contingent finding as to loss was not determinative of the value of the rights under appeal, it was far from clear that the amount in issue on the main appeals, especially for the mother, was in excess of $100,000. If s 101(2) of the Supreme Court Act 1970 (NSW) was engaged, leave was required. However, s 101(2) was not engaged: because there had been a jury trial, the appeal lay under s 102 of the Supreme Court Act, which is not subject to a requirement of leave in any circumstances. [4] Fortunately, the restraint exercised by appellate counsel avoided the need for an extended hearing on untenable grounds, beyond the control of a leave requirement.

2. [16]

   However, it is less clear that s 102 of the Supreme Court Act applies to an appeal against an assessment of damages undertaken by a judge. Section 102 reads:

3. [17]

   The chapeau to s 102 speaks of “a trial of the proceedings or of any issue in the proceedings with a jury”; that does not appear to engage issues required to be determined by a judge. Similarly, the reference to the alteration of a verdict in par (c) implies that it is a verdict of a jury which has fixed the amount of damages. Much of the case law dealing with appeals from awards of damages relates to a time when damages were assessed by the jury; see for example Carson v John Fairfax & Sons Ltd. [5] However, as no question as to the competence of this aspect of Mr Tabbaa’s appeal was raised by the defendant, it is appropriate to deal with the matter as an appeal as of right under s 102. It would then not be an appeal to which s 75A of the Supreme Court Act applies because that provision does not apply to an appeal arising out of a trial with a jury in the Court: s 75A(2)(c). It is therefore not an appeal by way of rehearing.

(a) legal principles

1. [18]

   The standard to be applied in determining whether a claim of a reasonable apprehension of bias has been made out is well-established: the court must ask itself whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.” [6] It is, the appellants accepted, true that a judge presiding over a jury trial is not required to determine factual disputes. It is also true that a judge may form a view about factual issues, including the credibility of witnesses. It may be appropriate for a judge to take a factual issue from the jury if a particular finding is not available on the evidence. Sometimes it may be inferred that a judge has formed a particular view adverse to one party from oblique statements, exchanges with counsel or from directions in relation to factual issues. The appellants took the Court to no case in which a verdict was set aside because of apprehended bias on the part of the judge presiding over a jury trial.

2. [19]

   However, there are circumstances in which courts have reviewed claims of an alleged apprehension of bias against judges conducting jury trials. Broadly speaking, the statements of principle recognised that the judge is not a fact-finder in a jury trial, but nevertheless has significant powers to regulate and supervise the proceedings, including by rulings on the admissibility of evidence, controlling the behaviour of counsel and in summing-up the case to the jury. It has been said that the general regulation and control of the trial may influence the attitude of a jury “in subtle and sometimes imperceptible ways”. [7]

3. [20]

   There are also cases where an apprehension of bias may arise from interventions by the trial judge in the course of proceedings. Those questions have generally arisen in criminal trials where an appellate court has considered whether there has been a miscarriage of justice, a ground of which may be a reasonable appearance of bias on behalf of the trial judge. [8] A ground of appeal based on such interventions was upheld in Piccolotto v The Queen, [9] where the Victorian Court of Appeal stated the relevant principles in the following terms:

4. [21]

   Piccolotto also considered the relevance of a failure to seek the discharge of the jury:

(b) factual basis of recusal application

1. [22]

   As explained in the extract from the trial judge’s summary of the events in question, the original plan to remove Nadia Tabbaa from Australia was concocted by Mr Tabbaa, Ms Pamela Tabbaa, Nadia’s older brother Omar Tabbaa and a son of Pamela Tabbaa by a former marriage, Geoffrey Rodgers. The defence case commenced with the evidence of Nadia Tabbaa, followed by that of Mr Rodgers. Mr Rodgers gave extensive evidence with respect to the family background and his role in taking Nadia to Egypt.

2. [23]

   Mr Rodgers and Ms Pamela Tabbaa realised that Nadia was quite desperate to escape from Syria and return to Australia. Mr Rodgers said that he had offered to pay on several occasions to bring Nadia home but had been told it was not an option. When she finally returned to Sydney, he collected her from the airport. Counsel for the defendant sought to obtain a description from him of his response to learning of Nadia’s experiences after she returned to Sydney. After objections by counsel for the plaintiffs and rulings by the trial judge, he made the following statement: [19]

3. [24]

   Further questions as to how that had affected Mr Rodgers were objected to. The judge eventually saying: [20]

4. [25]

   Counsel for the plaintiffs cross-examined Mr Rodgers to suggest that the mistreatment of which he had given evidence did not occur. Counsel also suggested to him that certain specific incidents, especially relating to assaults on Pamela Tabbaa, did not occur. Mr Rodgers’ credibility was undoubtedly in issue.

5. [26]

   Two witnesses were called to give relatively brief evidence, followed by Ms Julie Walker, who was Pamela Tabbaa’s older sister and therefore the aunt of Geoffrey Rodgers and Nadia Tabbaa. She too gave evidence of the violence experienced by Pamela Tabbaa. She gave evidence of hearing from Pamela Tabbaa the statement, “we’ve abducted Nadia and as a matter of fact they’re in the air now”. [21] She also gave evidence of having a conversation with Geoffrey Rodgers after he returned to Australia stating: [22]

6. [27]

   At the end of Ms Walker’s evidence the following exchange took place between the judge and the witness: [23]

7. [28]

   After the judge had read the extract from Mr Rodgers’ evidence the witness withdrew and Mr Evatt, for the plaintiffs asked: [24]

8. [29]

   Although there was no further recusal application based on this material, in submissions in this Court the appellants relied upon an explanation given by the judge at the start of his summing-up, explaining the exchange with Ms Walker. After explaining the purpose of the summing-up and the place it played in the proceedings, the judge continued: [26]

9. [30]

   Concern for the personal feelings of participants in a trial may best be put to one side in conducting a trial, but the result of an expression of empathy does not necessarily lead to an unfair trial. This case may be contrasted with Webb v The Queen [27] in which the discharge of a jury was sought on the basis that, during the hearing, a juror in a murder trial had presented a bunch of flowers to a woman she did not know (who was in fact the mother of the deceased’s fiancée), asking her to give them to the mother of the deceased. Mason CJ and McHugh J stated: [28]

10. [31]

    Toohey J agreed with the Chief Justice and McHugh J in rejecting the challenge to the verdict. Nevertheless, the analysis is instructive because it focused on the capacity of the juror, as a decision-maker with respect to the facts, to approach the evidence on an unemotional and impartial basis. Not only did the act of the judge in the present case not reveal emotion or partiality, but the judge was not the decision-maker as to the facts.

11. [32]

    Finally, if the foregoing considerations were thought insufficient, account should be taken of the manner in which the trial was conducted. The judge remarked on the circumstances at the end of his judgment: [29] amongst other difficulties, the judge stated:

12. [33]

    Even a selective reading of the transcript (parts only of which were before this Court) confirms the criticisms made by the trial judge. In that context, it is impossible to give significant weight to the episode with Ms Walker set out in full above. The judge was correct to dismiss the recusal application as “misconceived”.

13. [34]

    Of course a statement made in the presence of a jury may lead to the discharge of the jury, if the unacceptable effect cannot be undone by appropriate directions. No application was made to discharge the jury, although in the course of the trial five recusal applications were made by counsel for the plaintiffs.

14. [35]

    Nothing of the kind described in Piccolotto occurred in the present case; indeed, no counsel raised in this Court any criticism of the judge’s description of how the trial had been run, as set out in the passages quoted above. Nor was it sought to defend the manner in which the trial was run by the respective counsel.

(a) pleaded defence

1. [36]

   It is convenient to address the issues raised as to “honest opinion” by reference to the defence pleaded to the second further amendment statement of claim in the first proceeding. The defendant pleaded that particular (i), [32] namely that “[t]he plaintiff is the kind of person who would kill his daughter for not being a virgin” was an opinion held by Nadia Tabbaa and Omar Tabbaa.

2. [37]

   The question which was put to the jury, and answered “Yes” in respect of each person, was as follows:

3. [38]

   In the event that question 18 was answered “Yes”, the following further questions were asked:

4. [39]

   The jury answered “yes” to each of the matters identified in question 19 and then, in relation to a further question asking whether those matters were true, answered “yes” as to all except (d) and (e).

5. [40]

   The jury were then asked two further questions:

(b) statutory provision

1. [41]

   These questions and answers must be understood in the context of s 31 of the Defamation Act which, so far as presently relevant, reads:

2. [42]

   Because the challenge to the directed answer is not pursued it is not necessary to address the appellant’s challenge to the availability of the defence under s 31(4)(c). The grounds which are pressed are directed to the formulation of the questions which were said to be “misleading, deceptive and contrary to law”: ground 4. Further, the submissions took issue with the failure of the judge to rule upon the question of public interest, being an essential element of the defence pursuant to s 31(3)(b). It is convenient to deal with the latter issue first.

(c) “public interest”

1. [43]

   The appellants’ solicitor’s affidavit in support of the notice of motion of 4 January 2018 seeking to have the verdicts set aside (although not, in terms, the judgments which had been entered) referred to there having been no ruling by the Court as to whether “the opinions were matters of public interest”. [33] It was common ground that the question of whether the opinions “related to a matter of public interest” was a question to be determined by the judge. [34] In his judgment of 19 April, the judge said:

2. [44]

   As the submission was developed on the appeal, it was, in substance, that there was an outstanding issue with respect to whether the opinions did relate to a matter of public interest; it was an issue on which the plaintiffs had not been heard and was therefore an outstanding issue which, until resolved, stood in the way of the entry of judgment.

3. [45]

   That ground of complaint to the entry of judgment would be valid if there were an unresolved issue and it were established that the plaintiffs had not been accorded a reasonable opportunity to address with respect to the issue.

4. [46]

   This issue was not squarely raised by any ground of appeal; nor was there material in the appeal books suggesting that there was any unresolved issue in this regard. The appellants’ written submissions intimated that the entry of judgment was “premature” because “[i]t appears at this point the parties and his Honour had forgotten the need to resolve the public interest question.” [35] Shortly before the hearing of the appeal some additional materials were supplied to the Court by the appellants, including pages of the transcript of 18 December 2017, recording an exchange which took place shortly before the jury retired. The discussion was largely between the trial judge and counsel for the defendant in relation to how the defence under s 31 operated. [36] In the course of addressing the section, the judge asked counsel for the defendant what the matter of public interest was, to which counsel repeated the statement of the public interest identified in the pleading. Mr Evatt (for the plaintiffs) then intervened to say, “[p]ublic interest is in dispute, your Honour, and it’s for the Court to –”. [37] The judge and counsel for the defendant then continued their consideration of a different aspect of the provision, until the discussion was adjourned to allow addresses to the jury to continue. At 4pm, the following exchange took place: [38]

5. [47]

   Towards the end of the summing-up on 19 December 2017 (it continued the following day) the jury requested a copy of portions of the transcript of the evidence. Arrangements were made in that regard, following which counsel for the defendant raised a series of issues for consideration. One referred to his note on public interest: [40]

6. [48]

   There was no note thereafter from the plaintiffs. Nor was there any further reference to this issue before the jury returned to Court with the answers to the questions at 2.57pm on Thursday, 21 December 2017. Following distribution of the answers given by the jury, there was a discussion between the trial judge and counsel as to the consequential directions and orders which should be made to give effect to the jury’s answers. First, with respect to Pamela Tabbaa’s claim, counsel for the defendant noted that, of the imputations found to have been conveyed and to be defamatory, all were found to have been true; he therefore sought judgment and costs in his client’s favour. [41] Mr Rasmussen, who had been appearing with Mr Evatt for the plaintiffs, agreed with that result. [42] With respect to Mr Tabbaa’s claim, counsel noted that the opinion defence had succeeded with respect to the first matter of the first proceeding and operated as a complete defence. A different issue arose with respect to the early morning news segment. [43] The judge then said:

7. [49]

   Accepting that the defendant had to address the question of damages with respect to the early morning news segment, defence counsel, Mr Dawson, then turned to the feedback segment. The following exchange took place: [44]

8. [50]

   The judge then indicated that he proposed to enter judgment on the two causes of action with respect to Mr Tabbaa which had been decided in favour of the defendants. Mr Rasmussen suggested that “administratively it might be easier to wait”. [45] The judge then stated that he would prefer to finalise the two causes of action and then fix a date for the hearing on damages with respect to the third, after which he would give judgment in that matter. Mr Rasmussen raised no objection to that course. [46]

9. [51]

   Two inferences should be drawn from this material. The first is that, although Mr Evatt had said there was a dispute with respect to the element of public interest, it was a passing remark which was not developed and was not pursued, although counsel for the defendant expressly raised it after providing his note. The first inference to be drawn from the silence on the plaintiffs’ side is that there was no intention to provide a substantive response to the defendant’s submissions in respect of that issue. The alternative inference is that, if, contrary to the first inference, there was an intention to respond, there was ample opportunity for counsel to take that step, including following the reminder by the defendant in the course of the summing-up. That counsel with long experience in defamation matters did not return to the point at the time orders were being considered to give effect to the answers given by the jury, may have resulted from inadvertence; however, it is likely that such inadvertence resulted from the matter having been earlier been dismissed as an issue to be pursued. On any view there was no denial of procedural fairness.

10. [52]

    In these circumstances, the challenge to the entry of judgment must be rejected. For reasons which will be explained further below, the appellants are bound by the manner in which the trial was conducted by experienced counsel. The subjective intentions of counsel were not, in these circumstances, a material consideration. If a specific issue, raised by counsel for the defendant on more than one occasion, was not addressed, in circumstances where there was a reasonable opportunity to do so, there was no basis to set aside the judgments.

11. [53]

    This aspect of the appeals must therefore be dismissed; the grounds of dismissal are neither procedural, nor technical, but go to the fundamental principles underlying the operation of the adversary system. However, it is convenient to note that the judge addressed the substantive issue in the 19 April judgment, referring to the defendant’s pleading:

12. [54]

    It is not necessary to explore the reasoning of the trial judge in this respect further. There was no ground of appeal, nor submission, which challenged the conclusion that the opinions expressed by Nadia and Omar Tabbaa did relate to a matter of public interest. The judge’s conclusion in this respect may therefore be accepted. The trial judge was therefore correct to reject the application to reopen the judgments on this further basis.

(d) “honest opinion” – scope of defence

1. [55]

   The principal argument on the appeal with respect to the defence of honest opinion concerned the proper construction of s 31(3) of the Defamation Act. The issue may be succinctly stated as a choice between the following propositions:

   1. (1)

      by providing a “defence to the publication of defamatory matter”, where the matter was an expression of opinion, there was a defence to the entirety of the defamatory matter upon which the plaintiff sued;

   2. (2)

      where the defamatory matter was an expression of opinion, the defence operated only with respect to so much of the publication as constituted the expression of the opinion.

2. [56]

   In broad terms, the former approach was adopted by the defendant at the trial, both in formulating the relevant question for the jury and in the course of explanation of the formulation to the trial judge. The matter was left to the jury on that basis, without demur from the plaintiffs. Not having taken any point in this respect at trial, the appellants were somewhat coy as to the error identified for the purposes of the appeal. They eschewed the proposition that this Court should rule upon the correct construction of s 31; rather, they submitted that, in the course of his 19 April judgment, in considering the notice of motion seeking to have the orders made on 21 December 2017 set aside, the trial judge had in effect adopted the latter construction of s 31. It was submitted that the judge was in error in letting the orders stand once he was satisfied that they reflected an erroneous view of the law. The result, the appellants said, was that there would need to be a retrial.

3. [57]

   Further, the appellants contended that the error at the trial comprised a misconstruction, not of s 31, but of the questions relating to the opinion defence, being questions 18 and 19. [47] However, if the section was ambiguous, the question contained the same ambiguity. It was not suggested that counsel for the plaintiffs had identified the ambiguity and addressed the jury on the basis that the question only required them to determine whether the particular imputation identified in the question was an expression of opinion, rather than the whole of the first matter complained of (the 60 Minutes broadcast) being an expression of opinion to that effect. Had the issue been raised, it should have been directed to the formulation of the question and the submissions with respect to a reformulation of the question would have addressed the underlying statutory ambiguity. It is not open to the appellants to seek to avoid their failure to raise the issue at trial by limiting the issue to the proper construction of the question left to the jury.

4. [58]

   In the course of the 19 April judgment, two reasons were identified for the need to trace the course of submissions during the trial. Relevantly for present purposes, the judge stated:

5. [59]

   It is not necessary to trace the course of the trial, the appellants accepting that the judge was not invited to take a different approach. [48] Rather, reliance was placed on the fact that “at the hearing on the notice of motion, the issue then being raised, he took the view that the approach taken at trial was wrong.” The appellants described the error as being “of a fundamental nature”, stating that “a trial should always proceed according to law.”

6. [60]

   It is not entirely clear why the fact that the judge identified the supposed error of law was important for this challenge. Presumably, if the judge had failed to identify the error of law, that would itself have been a ground of appeal. At the very least, the appellants would need to establish in this Court that the trial proceeded on a false legal premise, otherwise there would be no substantial miscarriage of justice and the Court would be required not to order a retrial, pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 51.53 (“UCPR”).

7. [61]

   This challenge ultimately turns upon the correctness of the trial judge’s approach in rejecting the attempt to reopen the orders which had been entered on the basis of an issue not raised at trial.

8. [62]

   As a general rule, where a litigant is represented it will be bound by the decisions made by the lawyers representing it at trial. As the High Court stated in University of Wollongong v Metwally (No 2): [49]

9. [63]

   Similarly, in Coulton v Holcombe [50] it was said:

10. [64]

    Acceptance that the litigant would generally be bound by the manner in which its case is conducted by its legal representatives is not to deny that there may be exceptional circumstances where that principle will not be conclusive. As Gleeson CJ explained in relation to a criminal trial in Nudd v The Queen: [51]

11. [65]

    For reasons explained below, the scope of s 31 is by no means clear. In the course of the trial there were extensive exchanges between Mr Dawson and the trial judge on this point. It should be inferred that the plaintiffs’ counsel made a decision not to challenge Mr Dawson’s construction, a decision which was not “incapable of rational explanation on forensic grounds”. Nor, it should be added, did counsel for the appellants suggest that it should be so characterised.

12. [66]

    The reasoning in Metwally is inconsistent with the proposition that an “exceptional” case will be identified where there is a contention that the court proceeded on a mistaken view of the law. The basis of the attempt to reopen an earlier judgment in Metwally was that the constitutional validity of the Commonwealth law, on which the judgment turned, was open to challenge. The refusal of leave to reopen to allow that issue to be agitated is inconsistent with the proposition that an alleged error as to the legal underpinning of the earlier judgment involved a matter of a “fundamental nature” warranting the revisiting of the judgment.

13. [67]

    In this situation, it is not entirely clear why the trial judge thought it appropriate to embark on an analysis of the operation of s 31(3), a step which was concededly unnecessary, [55] particularly as the result was to reach a conclusion that “the section does not operate in the manner asserted by either party”, presumably referring to the submissions on the notice of motion. It is not an exercise on which this Court should embark either. However, two notes of caution should be raised in respect of the exercise to be undertaken.

14. [68]

    The first is that, although the competing constructions have been identified above as a binary choice, [56] that should not govern the debate in an appropriate context as to the operation of s 31. So much may be derived from the finding of the trial judge that s 31 does provide defences to the whole of the published matter, but only in the situation where the whole of the published matter was reasonably capable of being regarded only as an expression of opinion. If it cannot be so regarded, the judge expressed the view that s 31 is not engaged at all. [57] (Neither party to the appeal addressed that construction.)

15. [69]

    The second caution relates to the manner in which the exercise is to be undertaken. Being a statutory defence, it is by no means clear that any useful assistance is gained from considering the operation of the common law defence of “fair comment”. Furthermore, on the statutory assumption (in s 6(3)) that any reference to the general law should treat the earlier Defamation Acts as never having been enacted, great caution must be taken in relying upon cases decided in relation to provisions of those Acts. A preferable course, at least in the first instance, would be to consider the terms of s 31 by reference to the language and operation of the Defamation Act 2005. That would require having regard to the statutory definition of “matter” (in s 4), the use of the term “defamatory matter” in other provisions (such as ss 22 and 25-33) and the different language of the defence of justification which deals with the “defamatory imputations carried by the matter”: s 25 (and see s 26).

16. [70]

    The grounds of appeal relevant to the defence of honest opinion should be rejected.

Assessment of damages

1. [71]

   Mr Tabbaa raised two complaints with respect to the assessment of damages. First, he challenged the finding that he should receive no damages because he had already received compensation in relation to another publication of the substantially the same matter in an amount which exceeded the assessment made by the primary judge. Secondly, he complained that the quantum should have taken into account a circumstance of aggravation, namely Mr Tabbaa’s knowledge of the falsity of the defamatory allegations.

(a) mitigating factor – recovery of other damages

1. [72]

   The statutory basis for the step taken by the trial judge is to be found in s 38 of the Defamation Act which relevantly provides:

2. [73]

   In construing this provision, the defendant referred to a judgment of Miles CJ in the ACT Supreme Court dealing with s 7 of the Defamation (Amendment) Act 1909 (ACT), which was to similar effect, and the construction given to an earlier provision, also to similar effect under earlier New South Wales legislation. In the passage relied upon, Miles CJ stated, somewhat enigmatically: [58]

3. [74]

   There are three difficulties with reliance upon this precedent. First, the statement was made in the application of legislation which differed in significant respects (though not perhaps in overall purpose) from s 38 of the Defamation Act. Secondly, it relied upon a case in this Court, Uren v John Fairfax & Sons Pty Ltd, [59] with respect to what was identified as “s 48 of the New South Wales legislation” (in fact s 24 of the Defamation Act 1958 (NSW)), which this Court is required to treat as never having been enacted. [60] Thirdly, at least with respect to s 38, it is difficult to identify any purpose other than the purpose of mitigation of damages referred to in both subs 38(1) and (2). The provision does indeed have a “dual function”, as submitted, but not the two limbs identified in the passage set out above. Rather, the section expressly identifies certain categories of evidence as admissible; it impliedly authorises their use for a specific purpose, namely the mitigation (reduction) of an otherwise appropriate award of damages.

4. [75]

   The judge dealt with this issue in the following passages:

5. [76]

   The appellant complained that the legislation “gives no assistance as to how any mitigation is to be evaluated” and stated that “[t]he basis on which his Honour proceeded is not entirely clear”. [61] The appellant submitted that the Court should proceed on the basis that (i) another publication will have additional effects unless there is a complete overlap in the audience for the two publications; (ii) even in the case of repetition to the same audience, a subsequent publication will have further effects, simply because successive publications will have additional, if diminishing impact, and (iii) the comparative size of the awards was irrelevant. The last proposition appeared to follow from the earlier propositions, namely that even a “small publication following a large one will still add its small amount of damage.”

6. [77]

   The appellant sought to impose on the exercise of the judge’s discretion a constraint not found within the terms of s 38. Precisely how such mitigation will be effected is not identified in s 38. It is clear that, with respect to an apology or a correction, the effect on damages will be very much a matter of impression. However, it may be accepted that with respect to damages already recovered, either by way of an award or a settlement, the primary purpose may be to prevent double recovery. There may, however, be other purposes, including encouraging the combining of claims, where possible, in one proceeding, and encouraging settlement of proceedings. That appears from the fact that even the bringing of proceedings for another publication is to be treated as a factor mitigating the damages to be payable by the defendant.

7. [78]

   There is no basis for imposing a constraint to the effect that the judge must allow the recovery of damages for publication of the defamatory matter the subject of the instant proceeding, unless affirmatively satisfied that it could have caused no additional harm to the plaintiff, over and above that for which he has already been compensated. That is not to say that the possibility of additional harm, or indeed the absence of it, is not a relevant consideration; it is merely to say that there can be no mechanical rule as to the application of such considerations. Further, it is clear that the section is not limited to republication of the identical defamatory matter, nor republication by the same defendant. It is sufficient that there has been another publication of matter “having the same meaning or effect” as the defamatory matter.

8. [79]

   Part of the reason for the cryptic nature of the judge’s reasons was no doubt the agreement that the relevant evidence was the subject of a suppression order. The evidence, obtained on subpoena, included a statement of claim issued by Mr Tabbaa against the owner of a website which had published a summary of the story, in very similar terms to those used by Nine Network, together with a link to the 60 Minutes program. Why the identification of any part of that material should be suppressed is obscure. What was probably intended by the suppression order was that there be no publication of the term of a deed of release executed by the parties in October 2016 which contained the amount of the payment, representing damages and a proportion of the costs incurred by the plaintiff.

9. [80]

   The deed required that the parties keep the contents of the deed confidential and not disclose its contents unless required by law. That contractual obligation would not, of itself, warrant an order under the Court Suppression and Non-publication Orders Act 2010 (NSW) of the content of the subpoena, the statement of claim and the deed of release. However, it was suggested that the Court should not lift the suppression order without hearing from the media outlet which was a party to the deed. Accordingly, these reasons will not disclose the amount of the payment, beyond saying that, even making allowance for the fact that the figure covers both damages and costs, and having regard to the fact that the matter was settled about 8 months after the proceedings were issued, the likely component for damages was well in excess of the figure of $20,000 assessed by the trial judge in the present matter. That is a relevant factor.

10. [81]

    It is also relevant to have regard to (i) the similarity of the imputations pleaded in the statement of claim to those pleaded in the present matter; (ii) the fact that the plaintiff was not identified in the publication of the early morning news item, and (iii) was not a public figure and would not have readily been identified by anyone who did not recognise him as the driver of the car shown in the footage, or who knew him as the father of Nadia Tabbaa, who was shown, but not named, in the news broadcast.

11. [82]

    In these circumstances, there was no error in reducing the award of damages by $20,000.

(b) circumstance of aggravation – knowledge of falsity of publication

1. [83]

   The appellant complained that, in noting that he claimed aggravated damages, the judge restricted his consideration of the claim to aspects of the defendant’s conduct, in which he found no basis for aggravation. [62] That did not address the claim of aggravation based on the plaintiff’s knowledge of the falsity of the allegations.

2. [84]

   However, that was not the whole of the relevant material. In considering damage to reputation, the judge stated:

3. [85]

   These passages clearly address the pleading that the plaintiff’s “hurt and upset has been increased by his knowledge that the imputations are false.” [63] The challenge to this aspect of the assessment was without substance.

Conclusions

1. [86]

   With respect to each of the three areas of challenge raised by those grounds of appeal which were pressed, the grounds must be rejected and the appeal dismissed. In those circumstances there is no need to address the submissions concerning the contingent assessment of damages with respect to the main publication (and not given effect because of the judgment in favour of the defendant), or the notice of contention filed by the defendant contending that damages should be assessed at zero on the basis of the mitigating effects of all of the evidence adduced and the facts accepted as true.

2. [87]

   The Court should make the following orders:

   1. (1)

      Dismiss the appeal by Mouhammad Tabbaa in matter no. 2018/16067.

   2. (2)

      Dismiss the appeal by Mouhammad Tabbaa in matter no. 2018/16076.

   3. (3)

      Order that Mouhammad Tabbaa pay the costs of the respondent, Nine Network Australia Pty Ltd, incurred in relation to his appeals in this Court.

   4. (4)

      Order that the appeal by Pamela June Tabbaa in matter no. 2018/16080 be dismissed.

   5. (5)

      Order that Pamela June Tabbaa pay the costs of the respondent, Nine Network Australia Pty Ltd, incurred in relation to her appeal in this Court.

3. [88]

   GLEESON JA: I agree with Basten JA.

4. [89]

   PAYNE JA: I agree with Basten JA.