Tabbaa v Nine Network Pty Ltd (No.10)

1. [1]

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

2. [2]

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

3. [3]

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

4. [4]

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

   1. (1)

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

   2. (2)

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

   3. (3)

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

   4. (4)

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

   5. (5)

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

   6. (6)

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

   7. (7)

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

5. [5]

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

Outline of the main broadcast and Internet publication

1. [6]

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

2. [7]

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

3. [8]

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

4. [9]

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

5. [10]

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

6. [11]

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

7. [12]

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

8. [13]

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

9. [14]

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

10. [15]

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

11. [16]

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

12. [17]

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

Imputations, true and untrue, in the main broadcast

1. [18]

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

2. [19]

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

3. [20]

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

4. [21]

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

5. [22]

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

6. [23]

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

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

1. [24]

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

2. [25]

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

3. [26]

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

4. [27]

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

5. [28]

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

6. [29]

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

7. [30]

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

8. [31]

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

9. [32]

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

10. [33]

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

11. [34]

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

12. [35]

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

13. [36]

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

14. [37]

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

15. [38]

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

16. [39]

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

17. [40]

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

18. [41]

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

19. [42]

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

20. [43]

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

21. [44]

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

22. [45]

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

23. [46]

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

24. [47]

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

25. [48]

    The plaintiff’s counsel still made no submission to the contrary of the defence position that the defence of honest opinion, based upon imputation (i), would operate as a defence to the whole cause of action for the published matter notwithstanding that matter conveyed other imputations which were not matters of opinion and which the jury might find not substantially true. Nor did the plaintiff’s counsel then (at the end of day 21) offer any submissions against the characterisation of the putative opinion as related to a matter of public interest.

26. [49]

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

27. [50]

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

(2) Honest opinion defence to the feedback segment

1. [51]

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

2. [52]

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

3. [53]

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

4. [54]

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

5. [55]

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

(3) Notices of motion to set aside judgments

1. [56]

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

2. [57]

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

3. [58]

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

4. [59]

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

5. [60]

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

6. [61]

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

7. [62]

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

8. [63]

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

9. [64]

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

10. [65]

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

11. [66]

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

12. [67]

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

13. [68]

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

14. [69]

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

15. [70]

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

16. [71]

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

17. [72]

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

18. [73]

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

19. [74]

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

20. [75]

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

21. [76]

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

22. [77]

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

23. [78]

    The effect of all of these authorities is that the defence under s 31(3), if it is engaged at all, is a defence to the whole published matter. But the corollary is that the whole published matter must be “reasonably capable of being regarded … only as [expression of opinion]” (to adapt the passage quoted at [73] above). Where the matter conveys both imputations which are “an expression of opinion” and other defamatory imputations of fact which have not been justified, the defence of honest opinion does not operate in a limited way, as a defence to the opinionative imputations. That is because in such a case the defence is not engaged at all. Published matter of that description is a mixture of opinion and untrue defamatory imputations of fact and, as such, cannot be defended as opinion under s 31 or as comment under the common law.

24. [79]

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

25. [80]

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

26. [81]

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

27. [82]

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

28. [83]

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

29. [84]

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

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

1. [85]

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

2. [86]

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

3. [87]

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

4. [88]

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

5. [89]

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

6. [90]

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

7. [91]

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

8. [92]

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

9. [93]

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

10. [94]

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

11. [95]

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

12. [96]

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

13. [97]

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

14. [98]

    Imputations (c) and (f) of the news item which the jury found to be true were a subset of those which they found true in the main broadcast (see [18] and [19]). Most of the factual findings I am able to make, as set out at [100]-[116] below, constitute facts, matters and circumstances by which the defendant proved the truth of both imputations (b) and (c) conveyed by the main broadcast (see [18]) and imputations (c) and (f) in the news broadcast (see [91]). These findings are based predominantly on the evidence given in the trial by Nadia Tabbaa. She was corroborated in significant respects by evidence of her older half-brother Geoffrey Rogers, her aunt Julie Walker and her brother’s ex-wife Michelle Etherington. The jury’s answers to the questions posed to them are consistent with their having generally accepted these witnesses. Ms Tabbaa’s evidence was also corroborated by records of the Department of Foreign Affairs and Trade (“DFAT”) concerning the Department’s assistance in her return from Damascus to Australia in August 2006.

15. [99]

    The narrative comprised in the findings at [100]-[116] below is closely similar to the summary of the main broadcast and of the 90 minute interview given at [8]-[16] and [28]-[29], reflecting the consistency of Nadia in her recounting of the events on separate occasions. At trial the defendant’s counsel led from her significantly more detail than had been asked for in the television interview. My findings involve rejection of the evidence of the plaintiff, Pamela Tabbaa, Faiza Alassad and Omar Tabbaa wherever the evidence of any of them was in conflict with that of Nadia. The jury clearly rejected these witnesses. These findings cover much the same ground as findings recorded in my judgment with respect to the costs of the action brought by Pamela Tabbaa: Tabbaa v Nine Network Pty Ltd (No.11) [2018] NSWSC 389

16. [100]

    Nadia Tabbaa gave evidence that the plaintiff had been physically abusive towards his wife during their time in Saudi Arabia and Jordan up to 1990s and that he had been absent from home most of Ms Tabbaa’s first eight years, when she lived in that part of the world, returning only intermittently and for short stays. Ms Tabbaa could recall clearly only three visits by him to Pamela Tabbaa and her young family during that period.

17. [101]

    The evidence in the trial showed that Nadia Tabbaa had lived with her mother in Sydney for nearly 5 years from the age of eight (in mid-1997) until she was 13 (January 2002). This followed Pamela Tabbaa’s separation from the plaintiff when she left him in Amman and returned to Australia with their five children. The plaintiff had negligible contact with his family from this time, except that Omar remained in touch with his father by telephone approximately every two weeks but sometimes with gaps of months. Nadia Tabbaa had only one phone conversation with her father soon after her arrival in Australia and then no contact for the next five years. Pamela Tabbaa did not hear from him at all. The plaintiff did not visit Australia in this period and he provided no financial support.

18. [102]

    During 2000 and 2001 Pamela Tabbaa and Omar (then aged about 20 years) physically abused Nadia leading to her running away from home, staying with other families and coming to the attention of her teachers and the Department of Community Services (“DoCS”). An officer of the Department attended the home and obtained undertakings from Pamela Tabbaa and Omar that the physical abuse would cease. They then made a plan, with the plaintiff, to deceive Nadia into travelling to the Middle East where she would be handed over to relatives of the plaintiff and where she would remain indefinitely. Nadia’s older half-brother, Geoffrey Rodgers, with whom she was on good terms, was persuaded to pretend that he had won two air tickets for a holiday in Egypt and that Nadia could accompany him. The tickets were in fact bought by Omar Tabbaa. Nadia was taken in by the deception and agreed to travel to Cairo with Geoffrey Rodgers. They departed on 9 January 2002. Pamela Tabbaa had obtained a passport for Nadia on an application wherein she falsely stated Nadia would return to Australia after one week.

19. [103]

    Nadia Tabbaa was led to believe she would be away for two weeks. She was unaware that her ticket was for one-way travel only, that Omar would arrive in Cairo a few days after Geoffrey Rodgers and herself and that she would be escorted by Omar to Amman to meet with the plaintiff and to be left in the care of his family. In accordance with these arrangements Omar landed in Cairo, to Nadia’s surprise, after she had been sightseeing there for a few days. He then took her to Amman and Geoffrey Rodgers travelled on to London.

20. [104]

    The plaintiff did not at that time reside in Amman but he arrived there a few days after Omar and Nadia. I accept Ms Tabbaa’s evidence, substantially in accordance with her 90 minute interview with the defendant, that in Amman the plaintiff interrogated her aggressively concerning her conduct in Australia, particularly whether she had “been with a man” (see [10] and [28]). The plaintiff and Omar then revealed to her that they had been communicating by email for months to arrange for her removal to the Middle East under false pretences.

21. [105]

    Shortly afterwards, still in Amman, the plaintiff required Nadia to accompany him and his mother to hospital on the pretext that the latter required medical attention. Once there Nadia was subjected to the gynaecological examination to which she referred in the 90 minute interview and of which she gave consistent evidence at the trial. This was followed by the savage beating of Nadia by Omar, with the plaintiff’s approval (also referred to at [10] and [28]).

22. [106]

    The plaintiff’s mother, Faiza Alassad, at that time resided in Damascus but was visiting Amman while the plaintiff, Omar and Nadia were there. The plaintiff made arrangements for Nadia to travel to Damascus with Faiza Alassad and to live there indefinitely in her apartment, together with one of the plaintiff’s brothers and his wife and child. After making these arrangements the plaintiff left Amman. His brief contact with Nadia in Amman for less than two weeks was all the plaintiff saw of his daughter in the Middle East. He had nothing to do with her for the next four and a half years whilst she lived in Damascus, apart from two phone calls over that period.

23. [107]

    Soon after the plaintiff’s departure from Amman, Nadia travelled with Faiza Alassad to Damascus. She had not held her own passport at any time on the journey from Sydney to Damascus and she did not hold it while she lived there over the following years. From the moment of Nadia’s arrival at her grandmother’s apartment she was set to work on domestic cleaning and other chores for approximately three hours per day. She did not speak Arabic and no one else in the household spoke English. When she misunderstood instructions or displayed ignorance of her relatives’ customs and expectations, she was verbally and physically abused. Over the next four and a half years, as Ms Tabbaa learned what was expected of her, nevertheless her grandmother continually found fault and abused her.

24. [108]

    At first the plaintiff’s brother Fouad resided in the apartment with his wife and baby. After some time Fouad and his wife quarrelled with Nadia Tabbaa’s grandmother and left. Another brother of the plaintiff, Mohammad Kheir, then moved in with his wife and two children. Frequently over the following years the grandmother screamed at Nadia and/or threw things at her as a result of dissatisfaction with her behaviour or performance of chores. Mohammad Kheir usually intervened and struck Nadia with an open hand to the side of her head or on her body. Faiza Alassad struck Nadia with an open hand and on occasions with a closed fist. Ms Tabbaa was hit in the stomach on a number of occasions, which caused her to vomit.

25. [109]

    One or other of Nadia’s two uncles resided in the apartment throughout her stay in Damascus. Whichever of them was present participated in abuse of her. In addition to being hit with the open hand, as described at [108], weekly or fortnightly over the period of her stay, Nadia received about ten severe beatings. These included an occasion of being held around the neck by Mohammad Kheir and lifted from the ground whilst choking. There were at least three occasions on which Mohammad Kheir suspended her half over a balcony balustrade on the third floor, with the threat of being dropped off the building. On another occasion he threatened to burn her face with a hot iron.

26. [110]

    The events that attracted this violence included failure to catch the school bus, appearing to be spoken to by a boy in the street, allowing herself to be seen from the balcony of the apartment without a headscarf on and other like trivia which apparently assumed enormous significance in the Islamic traditions of the household. Nadia was “very frequently” bruised from these domestic assaults. She did not try to find a police station at which to report her mistreatment because she expected no help and thought it would likely makes things “a thousand times worse” with the plaintiff’s family. She made no mention of her situation at her school as she perceived that such domestic violence could not be raised there.

27. [111]

    Faiza Alassad did not have the money to send Nadia to an English language school, which would have been privately operated and would have required the payment of fees. Nadia could not speak Arabic when she arrived in Damascus so she was not sent to any school for “at least the first year”. After Nadia had spent a short period at a public school commencing in 2007 the grandmother learned that some of the female students did not wear headscarves and that music classes were taught by men. This caused her to move Nadia to a sharia high school where, in her own words, she was “brainwashed” in Islamic studies. On two occasions she was required to participate, together with the whole student population, in protest at which American and Israeli flags were burned.

28. [112]

    Whilst she lived in Damascus between the ages of 13 and 17 Nadia was the subject of four approaches to her grandmother by women who had sons and saw Nadia as a prospective wife. Faiza Alassad made appointments with these women, on separate occasions, and required Nadia to remove her headscarf and wait upon them, in order to facilitate an inspection. Nadia was 13 at the time of the first of these approaches. One such appointment resulted in negotiations concerning dowry, between Nadia’s uncle and the male relatives of the prospective bridegroom. No consensus was reached.

29. [113]

    Throughout her time in Damascus Nadia had no means of initiating a call to the plaintiff. On the two occasions when he called her she told him of the abuse that was occurring. Nadia’s mother called her approximately every three weeks over the four and a half years. On many of these occasions Geoffrey Rodgers also spoke to Nadia on the phone. Nadia described to them her desperate unhappiness living under the conditions described above. She gave detail of the verbal, emotional and physical abuse and of the visits of the suitors. Pamela Tabba continually put her off, saying “Next year you could come home” or that Omar would have to come and get Nadia and that he refused. This happened in every phone call.

30. [114]

    By her last year in Damascus Nadia was gravely affected, emotionally and psychologically, by her treatment at the hands of the plaintiff’s relatives and by her mother’s abandonment of her. She suffered constant sleeplessness. She was affected to the point of harming herself by cutting, although not with such severity as to require medical attention. Nadia told her mother “I’m going mad and I’m suicidal”. This was towards the end of her time in Damascus, in late 2005 or the first half of 2006.

31. [115]

    A girl slightly older than Nadia living in the apartment next door had heard the shouting and screaming from within Faiza Alassad’s apartment and had seen the abuse of Nadia. Nadia was forbidden to speak with this girl but at some time in the second half of 2005 the girl handed her a piece of paper, ripped from a phone book, with the number of the British Embassy on it. Nadia phoned shortly afterwards and advised she was an Australian citizen being kept in Damascus against her will. She was told that she could not be assisted because she was under 18 and that when she came of age she could contact the Canadian embassy which provided assistance to Australian citizens in Syria. Nadia’s 18th birthday was not until 28 August 2006. She had made her call to the British Embassy secretly because she believed her father’s relatives would prevent her leaving the country if they knew of it.

32. [116]

    The DFAT documents establish that in August 2006 diplomatic personnel made arrangements to extract Nadia from Damascus and to repatriate her to Australia. Pamela Tabbaa warned embassy staff of the plaintiff’s capacity for violence and that he had threatened to kill her if she attempted to assist Nadia. She advised the embassy staff how they might call Faiza Alassad’s apartment to make arrangements with Nadia and suggested that the caller should pose as a person who regularly took Nadia to religious classes, to avoid arousing suspicion. On 28 August 2006 diplomatic personnel met Ms Tabbaa secretly and transferred her to Jordan for a flight from Amman to Sydney.

33. [117]

    Geoffrey Rodgers gave evidence in the defendant’s case concerning, firstly, his part in the plan formed with Pamela Tabbaa and Omar to deceive Nadia into travelling to Cairo in January 2002 (see [62] and [103]). He had had no contact with the plaintiff at that time and gave no evidence as to the plaintiff’s part in the deception. As referred to at [113], he was party to numerous phone conversations with Nadia during her time in Damascus in which she described her situation and pleaded to come home. Geoffrey Rodgers told of his feelings of guilt concerning the means by which he assisted with getting Nadia to the Middle East and concerning his failure to take action to bring her back to Australia.

34. [118]

    Mr Rodgers was an entirely credible witness who gave evidence without contradiction, prevarication or exaggeration. In cross-examination he was challenged about his phone conversations with Nadia whilst she was in Damascus, along the lines that if (as he said) she had complained of being abused by the plaintiff’s relatives Mr Rodgers would have sought the intervention of some authority or taken other action to rescue her. He explained that he regretted not having acted but that because he was only a half-brother with a different surname he thought:

35. [119]

    Counsel for the plaintiff pressed upon Mr Rodgers that he and Nadia had “put your heads together about your evidence haven’t you”. When required to give the witness particulars of the occasion and the basis for this proposition counsel suggested that it was founded upon Mr Rodgers not having taken steps to assist Nadia whilst she was in Damascus. There was nothing in the evidence of either Mr Rodgers or Nadia which could have justified this allegation of collusion being put affirmatively. Mr Rodgers rejected it. None of the cross-examination, in my view, detracted from the weight of his evidence.

36. [120]

    Michelle Etherington was called by the defendant to describe the conversations in late 2001 between Pamela Tabbaa and Omar through which agreement was reached between them concerning the dispatch of Nadia to the Middle East. Omar instructed Ms Etherington that Nadia was not to be told of the true nature of her trip to the Middle East and that “she wasn’t coming back”. This witness also related the description Omar had given in February 2002 of the recent encounter between Nadia and the plaintiff in Amman (see [24]).

37. [121]

    Michelle Etherington’s presentation in the witness box was forthright and her evidence was consistent both internally and with surrounding events. She was cross-examined to suggest that her evidence was “designed to get back, hit back at Omar” because she was involved in matrimonial proceedings with him concerning access to their two children. Ms Etherington denied the proposition and I accept her denial. In the course of her evidence she gave no hint of bitterness towards Omar Tabbaa or of a vindictive disposition or of a willingness to lie in order to put him in a bad light.

38. [122]

    Julie Walker is the sister of Pamela Tabbaa. Her evidence included that Pamela Tabbaa had admitted to her very shortly after Nadia departed for Cairo that “we’ve abducted Nadia and as a matter of fact they’re in the air now”. Ms Walker gave her evidence in a direct and credible manner, without apparent embellishment. She was not in the least shaken in cross-examination.

39. [123]

    It was obvious as soon as the plaintiff’s case had been opened that if the events described by Nadia Tabbaa in the main broadcast had not occurred, as the plaintiff would contend, then she must have fabricated the entire story. These were not matters about which Nadia could have been innocently mistaken or which she could have merely misconstrued. As a matter of practical advocacy, if the jury were to reject her account as fantasy it might be thought the plaintiff would need to advance some motive for Nadia to have made all of this up.

40. [124]

    Accordingly, at the forefront of Nadia’s cross-examination it was put that she had invented her entire narrative in order to harm the plaintiff because she hated him for having “dumped” her in that he “started another family and left [her] out of it”. The plaintiff had married another woman after Pamela Tabbaa and by 2006 this family included a son and a daughter.

41. [125]

    This was a flawed theory of motive to lie. The DFAT records of Nadia’s contact with diplomatic personnel whilst she was in Damascus in August 2006 showed that at that time she asserted she had been “brought to Syria under false pretences (a holiday) by her father when she was 13 years of age and placed in the care of two uncles and grandmother on her father’s side”. She said she had been held against her will in Damascus from her arrival up to her present age of nearly 18 years and that her grandmother “is trying to marry her off”. She expressed fear that if the family in Syria learned she had spoken to the embassy or that she was trying to leave “they would take measures to prevent her from doing so”.

42. [126]

    Nadia gave evidence that she did not hear that her father had started another family until “towards the end of” 2006, after her return to Sydney. That date was not challenged in cross-examination. Indeed the plaintiff gave the same date. The plaintiff’s challenge to Nadia’s evidence thus involved the proposition she had commenced to fabricate her account before there had come to her notice the circumstance which supposedly motivated her to do so.

43. [127]

    The balance of the cross-examination concerned putting to Nadia that she had been treated kindly by her mother and Omar in Sydney up to January 2002 and by her father’s relatives in Damascus from then until August 2006. She rejected this emphatically. She was cross-examined upon alleged inconsistencies between her evidence and the 90 minute interview with the defendant. These were either reconciled to my satisfaction or were insignificant or both. I expect the jury took the same view. There was a lengthy passage of cross-examination concerning photographs of Faiza Alassad’s apartment in Damascus to suggest that there was no balcony railing or wall over which Nadia could have been suspended by her uncle, as she alleged (see [109]). At the conclusion of this line of questioning the suggestion was expressly withdrawn with an apology to the witness. It was clearly unsustainable.

44. [128]

    It is evident from the manner in which the jury answered the questions submitted to them that they did not find Nadia’s credit diminished by the cross-examination. Neither did I.

45. [129]

    The plaintiff’s evidence that he had no part in the plan to bring Nadia to the Middle East was inherently unbelievable. It is not credible that he would not have been left out of consultation about the plan. On Geoffrey Rodgers’ evidence it involved that Nadia would live with the plaintiff’s relatives in the Middle East for an extended period. It is inconceivable that he should not have known nothing of his daughter’s impending arrival in Amman or of the domestic conflicts at Ingleburn which led to Pamela Tabbaa and Omar sending her overseas. This aspect of the plaintiff’s evidence was made all the more difficult to accept by Omar Tabbaa’s testimony that he spoke to his father by phone from Australia, leading up to January 2002, once every two weeks, albeit with some intervals of non-communication.

46. [130]

    Equally incredible was the plaintiff’s evidence that when he arrived in Amman and met his daughter he did not speak to her about her alleged misbehaviour in Sydney. He asserted that whilst he was in Amman all discussions concerning Nadia’s recent conduct in Sydney and all arrangements for her to live with the plaintiff’s mother in Damascus took place by telephone between Pamela Tabbaa and Faiza Alassad, with Omar interpreting. This attempt to distance himself entirely from any confrontation with Nadia and from the arrangements for her to go to Damascus was strikingly improbable, given the undisputed reasons for Nadia having been sent to the Middle East in the first place and the involvement of his own family in her future custody.

47. [131]

    The plaintiff also denied that he had required Nadia to undergo an examination for the purpose of revealing whether she had engaged in any sexual activity. He claimed not to know what “virginity” is. I infer that this ridiculous denial was made, at the threshold of the subject, in order to avoid being drawn into any concession about any aspect of Nadia’s evidence.

48. [132]

    The plaintiff disputed every other part of Nadia’s account. He asserted that he was in frequent contact with her by phone while she lived in Damascus and that she said she was happy there. He denied that when she returned to Australia he threatened her. The plaintiff was emphatic and absolute in all of his evidence, making no concessions. The absurdity of the inflexible positions he adopted on the matters referred to above undermined his credibility generally.

49. [133]

    Pamela Tabbaa denied that there had been any deception of her daughter to induce her to travel to Cairo, denied that at the time of her departure it was intended Nadia would remain in the Middle East indefinitely, claimed that Nadia had gone to live with her grandmother in Damascus happily and said she reported being happy with the situation during phone calls over the next four and a half years. In finding that the defendant had proved substantially true all of the imputations in the main broadcast of which Pamela Tabbaa complained in her separate action, the jury evidently rejected her evidence. In Tabbaa v Nine Network Pty Ltd (No.11) I have recounted in detail the manner in which Pamela Tabbaa was contradicted. The plaintiff relied upon her evidence to rebut the defendant’s case on the truth of imputations (c) and (f) but gained nothing from it.

50. [134]

    Omar Tabbaa denied that he physically abused his younger sister in the home at Ingleburn in 2000 and 2001. He was contradicted as to this by Geoffrey Rodgers, Julie Walker and, most importantly, the DoCS records. The latter included contemporaneous notations that he implicitly acknowledged the beating of Nadia by undertaking to stop. None of the answers given by the jury directly implied a finding on the subject but clearly they rejected his evidence on other significant matters.

51. [135]

    Omar Tabbaa disputed that there had existed at the end of 2001 an agreement between himself, his mother and the plaintiff for Nadia Tabbaa to be removed to the Middle East indefinitely. Geoffrey Rogers and Michelle Etherington gave evidence that they had, respectively, been party to and witness to the discussions which constituted this plan. Omar Tabbaa’s 2010 affidavit in the Federal Magistrates Court acknowledged the plaintiff’s participation in the plan. Implicitly in the jury’s findings they rejected Omar Tabbaa’s evidence about this.

52. [136]

    He denied the beating of his sister in Amman after the gynaecological examination at the hospital. The jury’s answers show that they rejected his evidence on this also and preferred that of Nadia Tabbaa and of Ms Etherington, to whom Omar had admitted the beating when he returned to Sydney in January 2002. It is evident the jury also rejected Omar Tabbaa’s claim that Ms Tabbaa was happy in Amman and that she went happily to Damascus. He sought to portray the time in Jordan in early 2002 as a civilised visit to relatives which his sister greatly enjoyed. He denied there was any form of confrontation, even oral, between Nadia and her father at that time. That was an absurdly improbable scenario, given the undisputed evidence of family turmoil at Ingleburn and Pamela Tabbaa’s evidence that she did not know how to manage her daughter’s behaviour and spoke to the plaintiff’s mother about sending the girl to her. It is inconceivable that with that background to her arrival in Amman there should not even have been stern words between the plaintiff and his daughter.

53. [137]

    Faiza Alassad was called by the plaintiff in an attempt to prove that Nadia Tabbaa had not been mistreated in Damascus and that she had been happy there. She gave her evidence in a most exaggerated manner. She did not merely deny that Ms Tabbaa had been used and abused as a domestic servant but insisted she was never so much as asked to fetch a glass of water. With respect to physical abuse Faiza Alasaad not only denied this but asserted Nadia Tabbaa had been happy throughout her time in Damascus, proposition upon which Ms Tabbaa’s evidence in contradiction was amply corroborated. The plaintiff’s failure to call Ms Tabbaa’s main tormentor, the plaintiff’s brother Mohammed Keir, was telling against acceptance of Faiza Alassad’s version of the four and a half years in Damascus on the basis of Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.

54. [138]

    Ms Tabbaa gave evidence that during her last year in Damascus, when she was 17 years old, she took part in a form of marriage ceremony (referred to as a “kitab”) with her second cousin, Issam Alassad. He was about four years older than her and she was not romantically interested in him. The marriage was at her grandmother’s instigation and Ms Tabbaa said she went along with it in order to appear compliant and to conceal her intention to leave Damascus and return to Australia as soon as she could. She said she believed the ceremony was effective according to Syrian custom to make the couple man and wife.

55. [139]

    The defendant relies upon this evidence as further detracting from the plaintiff’s reputation and therefore mitigating the damage flowing from the untrue imputations in the morning news. Issam Alassad testified in the plaintiff’s case by audiovisual link from Damascus where he still resides. He denied that he agreed to marry Ms Tabbaa or that this was proposed or that she agreed. He denied taking part in a kitab ceremony with her. I reject his evidence and prefer that of Ms Tabbaa. Her account was compelling in its detail and in the manner in which it was given. She was firm and convincing and adhered to her recollection under cross-examination.

56. [140]

    Faiza Alassad also denied that the ceremony took place but I found her highly unreliable and I discount her evidence. Notably, she maintained that her granddaughter was happy and well treated throughout her time in Damascus, which was contrary to the convincing and detailed account given by Ms Tabbaa herself, the evidence of Geoffrey Rodgers concerning distressed phone calls, the DFAT records and the evidence of another young relative who visited the household in Damascus, Mouhanad Mousalim. A strong inference in support of Ms Tabbaa’s account of the kitab ceremony arises from the failure of the plaintiff to call his brother, Mohammad Kheir, whom the plaintiff said was present: see Jones v Dunkel.

57. [141]

    It has been mentioned that the defendant did not contend that either imputation (a) in the main broadcast and Internet publication (see [20]) or imputation (b) in the early morning news (see [90]) was true. The defendant’s concession was made because those imputations included, in addition to the fact that a marriage ceremony took place, the element that the marriage occurred when she was only 13. The defendant accepted throughout the trial that did not occur until she was 17. The defendant’s concession is not inconsistent with its affirmative case (and my finding) that such a ceremony took place.

58. [142]

    The jury were not satisfied of the truth of imputation (a) in the early morning news or imputation (b) in the feedback segment. Both of those, again, involved the plaintiff having forced the marriage. The jury’s failure to find these imputations true is also not inconsistent with my finding that Ms Tabbaa took part in the kitab as described and that she understood it resulted in her being married according to local custom. The jury may not have been satisfied that the ceremony was effective to conclude a marriage or that the plaintiff forced his daughter to take part in it.

59. [143]

    I find that the plaintiff was informed of his mother’s intention that Ms Tabbaa should marry Issam Alassad and that the plaintiff approved the marriage. There is contemporaneous support for this latter finding in the DFAT records. These facts contribute to the mitigation of damages but I do not consider that they negate entirely the additional impact of the untrue imputations, namely, that he forced her to marry at 13 and that he sold her to relatives.

60. [144]

    The central and dominating contest in the trial was over the issues of whether Ms Tabbaa had been taken to live in Damascus against her will and whether her four and a half years’ residence there had been under harsh conditions and, also, against her will. A very large proportion of the evidence was concerned with these two issues, depending as they did upon Ms Tabbaa’s long narrative of her experiences. It was a conspicuously unequal contest. Ms Tabbaa’s evidence was impressive and consistently supported by the defendants other witnesses. The plaintiff’s denials were strained and implausible and his chief supporting witness on this predominant aspect of the case, Pamela Tabbaa, was clearly untruthful.

61. [145]

    Damage flowing from the untrue imputations in the television news and also mitigation of damage must be considered solely by reference to the facts proved in connection with that matter, in isolation from the contents of and facts proved in relation to the other published matters complained of. Any impact upon the plaintiff’s reputation from false imputations (a), (b) and (d) in the news over and above the diminution of his character from imputations (c) and (f) would not be of a very significant order.

62. [146]

    The facts which established the substantial truth of imputation (c) (that the plaintiff kidnapped his daughter) leave him with a very adverse reputation as a parent. By January 2002 he had barely seen Nadia in the first 13 years of her life. From 1997 he had had no contact with her, had provided no material support and had undertaken no responsibility for her education or guidance. He then had a few days’ contact in Jordan, for an interrogation, a purported virginity examination and a beating, before handing her over to his mother and brother. Thereupon he ceased all contact once again. The circumstances portray him as an uncaring, brutal, irresponsible parent who abandoned his child to others at all times, including when she appeared most to need guidance.

63. [147]

    The facts and circumstances underlying the truth of imputation (f), which the jury also found to be justified, similarly confirm the plaintiff’s poor image. As referred to in imputation (f), the “life she hated”, to which the plaintiff committed his daughter in Damascus, was that described in the findings at [107]-[116]. It was characterised by denial of education, serfdom, religious indoctrination, physical and mental abuse and periodic exhibition as a marriage prospect through her mid-teens.

64. [148]

    In summary, the true imputations ((c) and (f)) involved Nadia being condemned to spend her teenage years in conditions of abuse and virtual incarceration, completely isolated from family members with whom she had warm relations (her siblings other than Omar, her maternal grandmother and her aunt Julie Walker). This was brought to an end not by the plaintiff relenting or intervening but only by Nadia making her escape with consular assistance. The escape was achieved despite the plaintiff threatening Pamela Tabbaa that he would kill her if she tried to assist their daughter (as recorded in the DFAT documents).

65. [149]

    The plaintiff’s own evidence regarding damage to reputation was entirely addressed to the manner in which people have treated him in reaction to the main broadcast, not to the morning news. His evidence did not distinguish between the reactions of these people to one imputation as opposed to another and it did not isolate the effect of the untrue imputations in causing people to treat him differently. The plaintiff’s own evidence on the subject is of no value for assessing damage to reputation as a result of the untrue imputations in the morning news.

66. [150]

    With respect to the plaintiff’s hurt to feelings, I am not satisfied that any measurable, compensable hurt to the plaintiff’s feelings would flow from the false imputations of forcing Nadia to marry at 13 and selling her off. The evidence which the jury evidently accepted (and which I also accept) concerning the true imputations in the news item showed a man completely lacking compassion or sense of responsibility for his daughter, interested in her only to the extent of fearing she might infringe his preoccupying concern with her chastity or that she might in some other respect disobey his wishes. The false imputations cannot have caused compensable hurt to feelings in someone who had shown he had no sensible feelings where his daughter was concerned.

67. [151]

    The plaintiff’s own evidence generalised the upset he has felt in reaction to the morning news and to the defendant’s plea of justification of most of the imputations. He did not separately identify particular hurt to his feelings flowing from the untrue representations as opposed to the true ones. This evidence therefore does not assist in the assessment of his damages.

68. [152]

    There was a viewing audience of 76,000 for the morning news. Only one witness, the plaintiff’s daughter, gave evidence of having seen the news and identified the plaintiff in it. The plaintiff is not a public figure and the evidence does not show that he is so widely known as to make it likely the news item would be talked about so as to spread its defamatory effect.

69. [153]

    Section 35 of the Defamation Act limits the maximum amount of damages that may be awarded for non-economic loss in defamation proceedings to $389,000. The Court is required to locate the particular defamation in this case in a range, the outer limit of which is set by s 35: Attrill v Christie [2007] NSWSC 1386 at [44].

70. [154]

    Evidence was tendered by the defendant that the plaintiff received, prior to the trial, compensation for defamation arising from publication on the Internet by a third party of the content of the main broadcast. That evidence was received under s 38 which provides, so far is relevant to the present case:

71. [155]

    But for that evidence I would have assessed the plaintiff’s damages for the morning television news at $20,000. The plaintiff claims aggravated damages but I do not find anything in the defendant’s conduct which would support this claim, having regard to the principles upon which aggravated damages are awarded. These were stated by Samuels JA in Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 693 as follows:

72. [156]

    As the compensation received from the third-party was significantly greater than the damages I would assess, the plaintiff is not entitled to any further award in this proceeding.

73. [157]

    Damages in defamation are not mitigated by proof of prior publications damaging to the plaintiff’s reputation: Chappell v Mirror Newspapers Ltd (1984) Aust Torts Rep 80-691. I am not aware of any authority for or against the application of that principle to another publication by the same defendant, concerning the same subject matter and published in close proximity to the defamatory publication to which the action relates. Here, the main broadcast was published only the evening before the morning news. The offending item on the news was a report upon the main broadcast and therefore necessarily covered the same subject and was closely linked.

74. [158]

    If it were permissible or required that I should take into account, in assessing damages for the morning news, the mitigating effect of facts and circumstances which proved the truth of several imputations in the main broadcast then it would be my view that no measurable or compensable harm to reputation or hurt to feelings could be attributed to the news item additional to that which flowed from the main broadcast. My findings of fact material to that conclusion are stated in [162]-[165] below, in connection with the contingent assessment of damages for the main broadcast and Internet publication. It is not necessary for me to decide whether regard may be had to facts and circumstances affecting the plaintiff’s reputation as proved in connection with the main broadcast because of my view that, in any event, the assessable damages for the morning news are less than what the plaintiff has already received from another publisher of substantially the same content.

(5) Costs of No 2015/181496 (morning news and feedback segment)

1. [159]

   The parties should bear their own costs of proceeding No 2015/181496 concerning the morning news and the feedback segment. Although the plaintiff has established that the defendant is liable with respect to the morning news the following considerations are against awarding him any costs:

2. [160]

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

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

1. [161]

   At [20]-[23] I have set out the imputations in the main broadcast and Internet publication which the jury found were not justified, together with a comparison of two of those imputations with others which the jury found to be true. The only imputation which could have harmed the plaintiff’s reputation additionally to the effect of imputations which the jury found true was imputation (a) (that the plaintiff had forced his daughter when she was 13 to marry her cousin 15 years her senior).

2. [162]

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

3. [163]

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

4. [164]

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

5. [165]

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

6. [166]

   All of these findings and the true imputations which encapsulate them detract greatly from the plaintiff’s reputation in the relevant sector, being that which concerns relations with his immediate family, particularly female members. If the defence of honest opinion had not succeeded, I would have assessed the damages for the main broadcast and for the Internet publication at nil having regard to the minimal diminution of reputation and the negligible additional hurt to feelings which could have flowed from the untrue imputations over and above the effect of the true imputations.

7. [167]

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

8. [168]

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

9. [169]

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

10. [170]

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

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

1. [171]

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

2. [172]

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

3. [173]

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

4. [174]

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

5. [175]

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

6. [176]

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

7. [177]

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

The manner in which the trial was conducted

1. [178]

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

2. [179]

   In Chappell v Mirror Newspapers Ltd Moffitt P said:

3. [180]

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

4. [181]

   The relevant subsections of s 56 are as follows:

5. [182]

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

6. [183]

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

7. [184]

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

8. [185]

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

9. [186]

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

10. [187]

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

Orders

1. [188]

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

   1. (1)

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

   2. (2)

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

   3. (3)

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

2. [189]

   In proceeding No 2015/181496 the further orders are:

   1. (1)

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

   2. (2)

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

   3. (3)

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