Kim Anne Ahmed v Harbour Radio Pty Limited

His Honour: The plaintiff, Kim Anne Ahmed, sues the defendant, Harbour Radio Pty Limited (Harbour Radio) for damages for defamation arising from the publication on 21 May 2008 (the first broadcast) of a broadcast in the Ray Hadley program over radio station 2GB. The transcript of the first broadcast is Annexure A to these reasons. The plaintiff also sues Harbour Radio and Ray Hadley for damages for defamation arising from the publication on 1 October 2009 (the second broadcast) in the Ray Hadley program over radio station 2GB. The transcript of the second broadcast is Annexure B to these reasons.

The proceedings are under the Defamation Act 2005 (NSW) (the Act). The hearing before the jury took place between 4 November and 2 December 2013. On 2 December 2013 the jury determined that the first broadcast conveyed the following imputations which it found to be defamatory of the plaintiff:

The jury also determined that the second broadcast conveyed the following imputations which it found to be defamatory of the plaintiff:

With respect to the first broadcast, the defendant failed to establish defences of justification and honest opinion under s 25 and s 31 of the Act. With respect to the second broadcast the defendants failed to establish the defence of justification. However, the jury, as directed, found that the defendants have established that the parts of the broadcast which conveyed imputations (a) and (d) were contained in the judgement given by the Federal Court of Australia on 1 October 2009 in Ahmed v Harbour Radio Pty Limited [2009] FCA 1113 under the defence of public document, under s 28(1) of The Act. It was agreed that imputation (c) was an expression of opinion rather than a statement of fact, but the defendants failed to establish that it was based on material which was substantially true.

The remaining issues, which are for me to determine, are the amount of damages that should be awarded to the plaintiff, and costs. The plaintiff claims general compensatory damages, including aggravated damages, interest, and an order for costs. There was no claim for economic loss.

As the imputations found by the jury demonstrate, the broadcasts made very serious criticisms and allegations of the plaintiff's character and conduct for maintaining loyalty to her husband. As the jury rejected the defendants' cases that the imputations were substantially true, the court must assume that in finding for the plaintiff it made all the findings necessary to sustain its determination in her favour (Crampton v Nugawela (1996) 41 NSWLR 176, p 179). Accordingly, for the purpose of providing background facts sufficient to enable an understanding of the plaintiff's case on damages, I have accepted her account of relevant events in which she was involved.

The plaintiff was married to Emran Ahmed (Emran) in April 1993. They have two children, now teenagers. In 2005 the plaintiff and her husband opened a seafood business under the name Seafood Lovers. It operated at the Carlingford Court shopping centre from premises they leased from GPT Property Management Pty Ltd (GPT).

On 1 February 2007 Emran was arrested and charged with the offence of aggravated indecent assault upon Ms X, a 17 year-old part time employee of the business. The incident took place at about 6pm on 27 January 2007 in the cool room of the shop when Emran forced himself upon her in an unsuccessful attempt to have sex. An account of the incident was published in the first broadcast.

The plaintiff was unaware of the incident until Emran's arrest. When confronted by her, Emran denied that the events with which he had been charged were true. The plaintiff accepted his denial, saying she had been married to him for a long time and had seen no such behaviour.

On about 1 February 2007 the plaintiff became concerned at what she perceived to be incidents of harassment at the shop, particularly attributable to Mr Y, the father of Ms X. Thereafter during 2007 and 2008, on her solicitor's advice, she and others, including her father Mr Warwick Bagshaw, kept a diary recording such incidents.

The plaintiff said that from 20 September 2007 Emran only attended the shop out of business hours following a program broadcast by the defendants that day.

On 25 July 2007 the charge was prosecuted in the Local Court, Burwood. Emran denied the allegations and gave evidence in his defence which the learned Magistrate rejected as fanciful. Ms X's version of the events was accepted, and the offence found proven. Emran was allowed bail and the proceedings were stood over for sentencing, initially to 20 September 2007 and then to 7 November 2007.

By letter of 28 September 2007 GPT notified the plaintiff and Emran of a breach of covenant of their lease of the shop based on Emran's conviction. By letter of 24 October 2007 GPT confirmed an arrangement with the plaintiff and Emran which restricted Emran's access to the area at the back of the shop during specified trading hours, and to the common areas of Carlingford Court shopping centre.

On 4 November 2007 the plaintiff was informed by Emran of an incident at the shop said to involve intimidatory conduct on the part of Mr Y. She said that later that day she observed Mr Y glaring at her and her daughter so that she feared for their safety. She reported the incident to Constable Skeels at the Blacktown Police Station and sought an apprehended violence order (AVO). Her application was declined.

On 6 November 2007 the plaintiff attended Blacktown Court and applied to the registrar to issue an application for an AVO in which she was named as the applicant, and Mr Y as the defendant. The grounds of the application were in the following terms: "The applicant relies on the following grounds: The defendant is the father of a victim in respect of a of a (sic) charge against the applicants husband (sic) for aggravated indecent assault. The applicant and her husband own a seafood shop located at Carlingford Court. Since the charge matter was last before the court (Burwood Local Court 20/9/07) the defendant has been attending the shopping centre and loitering around the applicants business (sic). The defendant walks past the shop and glares at the applicant and her children. The applicants daughter (sic) has expressed concerns for her safety to the applicant when they see the defendant loitering around the shop. On 4/11/07 the defendant approached the applicants husband (sic) who was working at the shop and said "fuck you" the applicants husband walked to the back of the shop and contacted security (sic). This incident occurred about 8am. At 9.45am the applicant then noticed the defendant again loitering near their shop. The defendant then walked past a number of times stareing (sic) at the applicant and her daughter. This caused the applicant and her daughter to feel intimidated by the defendant. The applicant has also received a number of threatening and nuisance phone calls which she believes the defendant is responsible for. The applicant fears further harassment and intimidation from the defendant." One of the orders sought was an order restraining Mr Y from loitering about the Seafood Lovers shop at Carlingford Court.

On 7 November 2007 Emran was convicted and sentenced to a term of imprisonment for twelve months, suspended on a good behaviour bond for a period of twelve months. At the hearing the plaintiff gave evidence in support of submissions against a custodial sentence on the ground of resultant hardship to the family.

By letter of 8 November 2007 GPT informed the plaintiff and Emran of its intention to terminate the lease by reason of Emran's conviction. They were locked out of the shop that night.

On 9 November 2007 the plaintiff and Emran commenced proceedings against GPT in the Equity Division of the court to regain possession of the shop. Shortly thereafter the matter was resolved on an interim basis by returning possession upon Emran's undertaking to the court not to come to Carlingford Court. The plaintiff said that thereafter she managed the shop, and Emran remained away.

On 27 February 2008 an AVO was made against Mr Y in his absence. The application had been before the court on a number of occasions at which the plaintiff and Mr Y and/or his solicitor were in attendance. These included an unsuccessful mediation. The orders included an order restraining Mr Y from loitering outside the plaintiff's residence and the Seafood Lovers shop. (On 17 March 2008 Mr Y applied for revocation of the AVO. The application was adjourned on a number of occasions and eventually dismissed when Mr Y or his solicitor failed to appear. On 20 May 2008 Mr Y lodged an appeal against the AVO in the District Court, but did not proceed with it).

On 20 May 2008 Emran's appeal against his conviction was heard by his Honour Judge Ellis in the District Court at Parramatta. The matter proceeded by way of the tender of the transcript of the proceedings before the Local Court, and also by way of written and oral submissions from both the prosecution and defence. The appeal was dismissed and the conviction and sentence confirmed. The plaintiff said that she attended court with her husband at the trial and the appeal every day to support him because she believed him to be telling the truth. She said that on some days others attended, including her parents, and family friends. She said that although she maintains her belief in his innocence she accepts the findings of the courts and the conviction of her husband.

On 21 May 2008 the first broadcast published an account of the appeal and its outcome during an interview with Mr Y.

On 2 September 2008 the plaintiff commenced proceedings against Harbour Radio in the Federal Court of Australia (Ahmed v Harbour Radio Pty Ltd NSD 1368/2008) in which she alleged that between September 2007 and 21 May 2008 Mr Hadley had disparaged Emran on 17 separate occasions during his talk back radio programme. Her claims included claims for damages for defamation arising out of the publication of the first broadcast, and for breaches of s 60 Trade Practices Act 1974 (Cth).

In about September 2008 the Seafood Lovers business was sold.

On 1 October 2009, on Harbour Radio's application, Mr Justice Foster of the Federal Court of Australia ordered that the claims under s 60 be struck out and the proceedings be transferred to this court. His Honour published his reasons. The proceedings, and the outcome, were the subject of the second broadcast later that morning.

Some time after the sale of the business the plaintiff obtained a diploma which qualifies her for her present occupation as a community mental health rehabilitation worker.

In Ryan v Premachandran [2009] NSWSC 1186 I summarised the general principles as follows: "114 By s 34 of the Act, the court, in determining the amount of damages to be awarded, is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. 115 By s 35(1) the maximum amount for non-economic loss which may be awarded is $294,500. 116 By s 36 the court is to disregard the malice of the defendant at the time of the publication or at any other time except to the extent that the malice affects the harm sustained by the plaintiff. 117 By s 37 an award of exemplary or punitive damages is precluded. 118 The relevant principles were stated in Ali v Nationwide News Pty Ltd [2008] NSWCA 183 (pars 70-84) by Tobias JA and McColl JA. They referred to the following observations of Hayne J in Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 (par 60): "The three purposes to be served by an award of damages for defamation are identified in the joint reasons in Carson v John Fairfax & Sons Ltd: (i) consolation for the personal distress and hurt caused to the appellant by the publication; (ii) reparation for harm done to the appellant's personal, and in this case, professional reputation; and (iii) the vindication of the appellant's reputation. As pointed out in Carson: the first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant; vindication looks to the attitudes of others." 119 Hayne J, went on to point out (par 67) that assigning a money sum as sufficient to remedy personal distress, hurt and harm to reputation and to vindicate a plaintiff's reputation translates losses which have no market value into amounts of money. He said: "... But in neither defamation nor in other cases of non-pecuniary loss can any standard of evaluation be employed except one that is described in qualitative and therefore necessarily imprecise terms. The damages that may be awarded "are such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man". 120 In the assessment of compensatory damages for harm to reputation in a case such as this it is important to take into account the observations of Mahoney, ACJ in Crampton v Nugawela (1996) 41 NSWLR 176, p 193 that "... In some cases, a person's reputation is, in a relevant sense, his whole life. The reputation of a clerk for financial honesty and of a solicitor for integrity are illustrations of this ... the trustworthiness, actual or reputed of a professional colleague is a matter of a legitimate and ongoing interest", and p 195 "In my opinion, the law should place a high value upon reputation and in particular upon the reputation of those whose work and life depend upon their honesty, integrity and judgment". In Readers Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500, Brennan J held (p 507) that account may be taken of an especially adverse impact of the defamatory imputation upon the plaintiff's reputation in the eyes of some group or class in the community. 121 With respect to aggravated damages it is important to keep in mind that any award of aggravated damages must be confined to what is truly compensation for the relevant harm to the plaintiff caused by the defendant's conduct and must not include any element of punitive damages. Such conduct must be in some way unjustifiable, improper, or lacking in bona fides (Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497). 122 In Ali (pars 79-85) courts are reminded that in awarding aggravated damages, the conduct of the defendant which will increase the harm caused by the publication of the libel, a failure to apologise, and the conduct of the defendant right up to the amount of verdict are all matters which may be taken into account."

The plaintiff has a cause of action in defamation arising from the publication of each broadcast. The second broadcast was published about 17 months after the first. Although under s 39 of the Act it is open to the court to assess damages in a single sum for more than one cause of action, in my opinion it is in the interests of justice in these proceedings that a separate assessment be made for each broadcast.

In addition to the time gap, a relevant consideration is that the only compensable defamatory imputation conveyed by the second broadcast, i.e. that the plaintiff is a silly woman, has an obviously different sting from any of those conveyed by the first. An additional factor is that the thrust of the attack upon the plaintiff in the first broadcast was to drive her and Emran out of business at a time when she was managing the shop, whereas by the time of the second broadcast the business had been sold, and they had gone from Carlingford Court long before it went to air.

The first broadcast went to air on 21 May 2008, the day after Emran's appeal was dismissed in the District Court. At the time the plaintiff was working in the seafood shop as she had been since about 2005.

The following is a summary of her evidence following publication of the first broadcast.

The plaintiff heard the broadcast by podcast on the evening of 21 May 2008. Her evidence of reaction included the following (T78 l.6 - T79 l.28): "Q. And what was your reaction when you heard what he said? A. Oh, a range of emotions. Q. Well, what were they? A. I was upset. I was so hurt. I was horrified. I was angry. I just thought to myself he's after me. When is he going to stop. Q. And did this come as a surprise or were you expecting it or what? A. I was expecting there to be a report on his programme. The day earlier my husband's appeal at the District Court had been dismissed, so in all fairness I expected something to be on the radio about my husband. Q. But like that? A. Well it was about me. Q. Yes? A. I was totally shocked. Q. You expected something about your husband? A. Yeah, I expected something to be about my husband. Q. Did you expect anything about yourself? A. No. Q. Did you have any opinion as to the status of Mr Hadley, you know, as a radio presenter? A. Well yes he is the number one am broadcaster to my knowledge. Q. Do any of your friends or relatives listen to him? A. Yes. Q. And do you regard him as influential or not influential? A. Very influential, especially where my shop was situated, very influential." And (T82 l.28 - T83 l.11): "Q. What was your reaction when you heard Mr Hadley refer to you as the cheer squad? A. Well I took that he was referring to myself. Q. And your reaction? A. I was upset. It made me sound like a fool. Q. Finally, your Honour, did you hear Mr Hadley say "and there is people defending this grub", did you hear him say that? A. Yes, I did. Q. And as one of the defenders what was your reaction? A. I was upset by that comment. Q. Did you hear him say "I will try and find out from Carlingford Court if this grub and his family still own the shop", did you hear him say he didn't want to turn people away if you didn't own the shop, and did you hear him say "but if this bloke" that's Emran, "still has any connection with the shop and his grub of a wife they should completely and utterly be sent out of business. Disgraceful", did you her him say that? A. Yes, I did. Q. What was your reaction when he referred to you as Emran's grub of a wife? A. Really hurt and upset. Q. And what about when he said that you and your husband should completely and utterly be sent out of business? A. I was scared. Q. Why was that? A. Because I thought here we go again, he is starting his radio campaign again. And I was scared because my husband had no connection with the business at all at that stage and it was an attack on myself."

With regard to the passage of the broadcast in which Mr Hadley pretended to be a registrar and rejected the AVO, her reaction was of devastation and horror because he was wrong. She also said she was insulted by his pronunciation of her name as "Akmed", and believed he did so deliberately to offend her.

After the broadcast the plaintiff received so many phone calls questioning her about it that, she said, she was a nervous wreck. She was questioned about the broadcast by other shopkeepers, and was told by her staff that customers had questioned them about it. She said (T85 l.38 - T86 l.9 "Q. Did they give you any examples? A. Yes, customers would come to the counter and inform them that they weren't going to shop at our business any more. They would ask when are we closing down "why aren't you closed down?", you know, things like "why are you working for a rapist?" Q. Now did the staff tell you that? A. The staff told me that but I experienced it myself too." ..... Q. The staff told you those things and what was your reaction when the staff told you that? A. I felt like I was living in some kind of nightmare. I was really upset and I just thought this is never going to end."

She said that she noticed avoidance by customers, and that neighbouring shopkeepers would point at her, and whisper about her, while she was working at the shop, which hurt and devastated her. She said that since the broadcast she tried not to go out because she felt everybody recognised her wherever she went. The evidence was (T95 l.39 - T96 l.4): "Q. What was your reaction about driving to work and the people in the shop speaking to you? A. For the most part I held it together. At other times it just became too overwhelming. Q. And? A. Well, I remember a lot of occasions I would start to drive to work, I would start to become anxious. I would pull over the side of the road, I would call my Mum crying and say, "Sorry, I can't go in, I just can't do it, I'm too scared." Sometimes I would have no one who could replace me so I would have to go and face it. Other times my Mum would actually leave her work and say, "You go home. I can leave work." She would go and replace me and I would go home. If I went to work and I was still trying to hold it together at times I would just have to walk away from the counter, go out the back, sometimes there would be no one at the counter to serve anyone, and just have a good cry for about five, 10 minutes, pull myself together and go back."

The second broadcast went to air on 1 October 2009 shortly after the judgment in the proceedings in the Federal Court of Australia was handed down.

The plaintiff first learnt of it from a long-time friend, Ms Rita Ghatt, who telephoned her and questioned her about it. She then listened to it by podcast. She was offended and insulted by the pronunciation of her name "Akmed".

With reference to the passage commencing "This woman, Kim Ann Ahmed, married to this horrible beast..." and ending "if we send you and your husband broke, I'll be absolutely delighted" her evidence was (T94 l.1 - l.20): "Q. Then he said, he again referred to you, "This woman, Kim Ak-med" - sorry, I will get on to something else. He ended up saying, called you a "silly, silly woman", do you remember that? A. Yes, I do. Q. And he said, "you have got your just desserts", right? A. Mm. Q. And we will be making sure that we apply for the costs in the next 24 hours. If we send you and your husband broke I will be absolutely delighted." Did you hear him say that? A. Yes, I did. Q. What was your reaction to that? A. I was scared, very scared and upset. Q. What, about sending you broke? A. Well, that's why I was - I was totally scared, I thought when is he going to leave me alone and I was scared I would lose everything."

The plaintiff said she received about 10 telephone calls questioning her as to when she would be moving, and whether she would be bankrupt. These upset her.

In respect of both broadcasts there has been no apology. Knowledge of the falsity of the imputations has caused her worry and concern. The litigation has been a distressing process. In re-examination she said (T 602 l.7 - l.36): "Q. Well, Mrs Ahmed, you have been in the witness box being cross-examined by my friend, Mr Dawson, for five days? A. Yes. Q. In the course of that cross-examination, on quite a number of occasions, he called you a liar; do you remember that? A. Yes. Q. What was your reaction to Mr Dawson calling you a liar on numerous occasions? A. Really upset. It's hard to hear someone for five days insinuating, calling you a liar when you know you are telling the truth. Q. At times Mr Dawson raised his voice at you? A. Yes. Q. And what was your reaction to that? A. I felt very intimidated. Q. What about the length of his cross-examination, how did that affect you? A. Probably one of the worst experiences of my life. Q. Also, at one stage, that's yesterday afternoon, you cried on two or three times and I think we had to have a short adjournment; do you remember that? A. Yes. Q. What actually made you cry? A. It was when I had to explain, it was getting up to the events of where Mr Y's behaviour towards me was getting worse and just having to think back and remember those times."

The plaintiff's mother, Wendy Bagshaw, heard the first broadcast. She observed the plaintiff to have been "upset and shaky about it". The plaintiff's father, Warwick Bagshaw, noticed the plaintiff was devastated by both broadcasts and "was a nervous wreck". Ms Rita Ghatt discussed each broadcast with her and observed her to be very distressed and upset. Another friend, Ms Sharon Handley, spoke of the plaintiff's good reputation. She heard people talking about the first broadcast.

Mr Giash Uddin and Ms Patricia Phillips testified to the plaintiff's excellent reputation. Ms Phillips noticed the plaintiff was devastated. With reference to what I infer was the first broadcast, she said she was telephoned by somebody who asked if she had heard it. Ms Karen Phillips is a long-time friend of the plaintiff who also heard the broadcast. She said the plaintiff was very upset by it. She said the plaintiff has always had a good reputation.

Taken overall, the evidence establishes, and I find, that the plaintiff had a high reputation in the circles in which she moved at the times of the publications.

For each broadcast the plaintiff claims aggravated damages for the following: (1) the plaintiff's knowledge of the falsity of the imputations; (2) the defendants' failure to apologise; (3) pleading by the defendants that the plaintiff was a person of bad reputation until withdrawn on 18 October 2013, shortly before commencement of the trial; (4) the defendants' persistence in the defence of justification; (5) the defendants' conduct of the trial in that: (a) the plaintiff was subject to a wounding and insulting cross-examination; (b) defamatory allegations were made of the plaintiff during cross-examination; (c) the plaintiff was subject to an improperly lengthy cross-examination.

As to (1), the falsity of the imputations entitles the plaintiff to an award of aggravated compensatory damages (Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182, par 43; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58, p 75; Rigby v Associated Newspapers Limited [1969] 1 NSWR 729, p738). Awareness of their falsity distressed her and would have aggravated their sting.

As to (2), in my opinion the failure to apologise in the circumstances of this case is not a matter of aggravation, but a factor to be taken into account as relevant to normal compensatory damages. The failure to apologise was adequately explained by the pleading and maintenance of the defences of truth and honest opinion. Furthermore, Mr Hadley said that he intended to convey the imputations, and firmly held the opinions represented by them. He was not shaken in cross-examination on this issue, and I accept his evidence. As the plaintiff did not establish that in each case the failure to apologise was improper or unjustifiable, her claim on this ground is rejected. As to (3), regarding the pleading of bad reputation, it appears it was initially raised as a head of mitigation in the defence filed on 13 May 2011. Upon complaint being made at a directions hearing on 18 October 2013, by letter the same day the defendants' solicitors advised that the plea was withdrawn, and apologised for its inclusion. Although the plaintiff said she had been confused about it, it did not add to her hurt. The claim for aggravated damages on this ground is rejected.

As to (4), it is to be kept in mind that normal compensatory damages will include a component for continuing harm occasioned by, for example, the defendants' persistence in a plea of justification which has the effect of prolonging, or keeping alive, the effects of the injury caused by the publication. Authority establishes that a defendant's conduct in defending a claim and the conduct of its case at the trial cannot be held to aggravate the harm unless it is shown that, in the circumstances, it was not bona fide, or was unjustifiable or improper (Haertsch, pars 47, 48, 51, 52; David Syme & Co Ltd v Mather [1977] VR 516, p 526; Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211, p 237; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474, p 497). In my opinion it has not been established that the continued persistence in the defence of truth was improper or unjustified. The litigation proceeded on the basis that the defendants had mounted an arguable case that all of the imputations found were substantially true. As I said in Haertsch (par 54)(i)): "... The jury's rejection of the defences in this case provides no basis for a finding that the defendants conduct in maintaining them renders the defendants liable for increased damages. It is, however, a factor relevant to normal compensatory damages." The claim on this ground is rejected.

As to (5), concerning the defendants' conduct of the trial, in my opinion there was nothing about the nature or length of the cross-examination of the plaintiff which was improper or unjustifiable, notwithstanding that the conduct may have caused her distress (Bickel, p 497). Analysis of the transcript provides ample support for this conclusion. I have come to the same conclusion about the particular complaint that defamatory allegations were made of the plaintiff during cross-examination. The conduct relied upon were the occasions when the defendants' counsel challenged the plaintiff on the veracity of her evidence concerning diary entries made on 1, 6, 17 February, and 15 July 2007. In short, it was claimed that the suggestions that the entry in each case was false or concocted were baseless, and should not have been put having regard to the contrasting evidence of Mr Y about the event in question. After careful analysis of the transcript of the relevant passages of the cross-examination and Mr Y's evidence, in my opinion there is no basis for a finding that counsel's conduct, although arguably forceful and vigorous, went beyond appropriate limits. With regard to the principles referred to in Haertsch (pars 49, 50, 53) and accepting that the plaintiff was hurt by the assertions, I am not satisfied that the conduct in making them was unjustified having regard to the issues and the context in which the cross-examination took place. The claim for aggravated damages on this ground is rejected.

The plaintiff's claim in respect of each broadcast is for compensatory damages for harm to reputation, for injury to feelings, for the purpose of vindication, and for aggravated damages.

The maximum damages amount under section 35 of the Act has been increased to the sum of $355,500 by declaration published in the Government Gazette on 31 May 2013. An assessment of damages by the court requires regard to the purposes of an award as explained in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, (p 60) namely (i) consolation for the personal distress and hurt caused by the publication; (ii) reparation for harm done to the plaintiff's reputation; and (iii) the vindication of the plaintiff's reputation. It is well recognised that the amount of the verdict is the product of inextricable considerations (Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 per Windeyer J; p 150).

In Attrill v Christie [2007] NSWSC 1386 Bell J (as her Honour then was) explained the approach to be taken in terms which I respectfully adopt, as follows: "44 I approach the matter on the basis that the maximum damages amount provided by s 35 is to be understood as fixing the outer limit of damages for non-economic loss (in cases which do not warrant an award of aggravated damages) and by analogy with the approach explained by Hayne awards for non-economic loss are to find a place within a range marked out in this way. This is not to say that an award of the maximum damages amount in a case not warranting an award of aggravated damages is to be reserved for the worst defamation imaginable. 45 In determining the amount of damages to be awarded to the plaintiff I am required to ensure that there is an appropriate and rational relationship between the harm sustained by him and the amount of the award. In this case it is necessary to make that assessment in circumstances in which the plaintiff's evidence of the hurt to his feelings must be assessed in a context which includes that the allegations for which the defendant is not liable were also hurtful to him. This does not involve mitigating the damages to be awarded by any consideration that the plaintiff's reputation was damaged by the publication of the allegations for which the defendant is not responsible on the program: Dingle v Associated Newspapers [1964] AC 317; Chakravarti v Advertisers Newspapers Ltd (1998) 193 CLR 519. 46 What it is necessary to do is to fix an amount that properly reflects the injury to the plaintiff's reputation and hurt to his feelings brought about by reason of the defendant's statements which were re-published during the program."

I have found that at the time of each publication the plaintiff had a high reputation. The imputations were baseless and damaging allegations, likely to have a serious impact upon listeners adverse to the plaintiff.

With respect to each broadcast the plaintiff spoke of her subjective reactions, and of the impact the conduct of the defendant had upon her. I accept her evidence relevant to the issue of damages. I was left in no doubt as to its veracity.

Although she was not named, identification of the plaintiff was not in issue. Nevertheless, although the broadcast was to a wide audience, caution should be exercised in assessing the likely scope of listeners who would have taken it to refer to the plaintiff. Damage to reputation is presumed. The evidence, including of telephone calls received, and of the whispering and pointing by other shopkeepers, indicated publication to many listeners throughout the general area in which she lived and worked. Although witnesses gave evidence of her reputation, none said that as a result of the broadcast they thought the less of her, or that her reputation was actually diminished in the circles in which she moved. However, it is self evident that the imputations conveyed by the broadcast would cause significant injury to her reputation. I am also satisfied that, given the nature of the accusations published, it would be natural and probable that there would be discussion about them, as the evidence of Ms Sharon Handley, Ms Patricia Phillips, and the plaintiff herself demonstrated. Thus some allowance should be made for the "grapevine" effect as explained by Gummow J in Palmer, Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388, (pars 88-89) in assessing the award.

Relevant to the measure of harm done by this broadcast to the plaintiff's feelings and reputation, and to the sufficiency of an award for the purpose of vindication, are factors including the extent and circumstances of its publication, and the context in which the several defamatory imputations were made. The matter complained of was part of a morning talk-back radio programme. Mr Hadley (T1001) agreed that his was one of the largest audiences of any of the radio announcers in Australia, and that he regarded himself as an influential broadcaster. He said his broadcasts went to listeners in Sydney and rural New South Wales, and in the Australian Capital Territory and Queensland.

Typical of its kind, this broadcast was honed by Mr Hadley to make a forceful impact on listeners. This was achieved, not only by the choice of words, but by the tone and manner of their delivery, and the context in which the defamatory statements were uttered. Taken as a whole, the broadcast developed into an unbridled tirade concerning the plaintiff, her husband, and his supporters which reached its crescendo when the words "... But I am telling you now, if he is connected with it ... but if this bloke has any connection with it and his grub of a wife, they should completely and utterly be sent out of business. Disgraceful." were spat into the microphone for the consumption of the audience.

The final segment was presented as a charade about the AVO, the butt of which was the plaintiff. That its purpose was to mock, scorn, and ridicule the plaintiff to the audience is manifest having regard to Mr Hadley's tone of voice, manner of delivery, and the language of the final passage: "No, look, I'm sorry, madam, I'm sorry, this is a frivolous AVO, we can't issue this AVO because you see I've got discretion here to refuse to issue the AVO because I'm satisfied your complaint is frivolous, vexatious and without substance because you're the husband - you're the wife, rather, of a convicted sexual offender who offended against this man's daughter and has been convicted. So we cant have the AVO, that's got to go. But what happens instead? Well, the Local Court Registrar he issues the AVO. So this poor bugger whose daughter was offended against can't go to his local shopping because the wife of the perpetrator says he looks at her funny. The place has gone absolutely stark raving made, absolutely stark raving made. That was nice being a Local Court Registrar for a short brief time."

The broadcast conveyed seven separate grave imputations, each with a different libellous sting. These poisoned arrows found their mark, and left the plaintiff sorely wounded. The evidence of hurt to her feelings, including the observations of her parents, is earlier referred to. I am satisfied that the broadcast caused her to suffer anxiety, alarm, distress, and anger, as did the ordeal of these proceedings to obtain an award. Factors to be taken into account include the failure to apologise, persistence in the plea of justification, and the matter of aggravation by her knowledge of the falsity of the imputations. Her claim to significant compensatory damages on this ground is entirely justified.

The broadcast was calculated to grab and hold the attention of many listeners, and undoubtedly it did. In my estimation it is probable that the reputational harm caused by the broadcast (particularly by imputations (a), (e), (f), and (g)) endured for many months after publication with gradually diminishing impact over time. Relevantly, in Crampton Mahoney JA (p 195) said: "But in the end, damages represent, in respect of some at least of the components of them, a normative or social assessment of what is appropriate, fair or just (the Court need not stand upon the particular terms) to compensate the plaintiff for what has been done to him. There is no market or tariff to determine this .... In my opinion, the law should place a high value upon reputation and in particular upon the reputation of those whose working life depend upon their honesty, integrity and judgment. This Court should record that its view is such. And it should record that, where hurt and reputation are involved, the vindication of the plaintiff should not be left to speculation: the damage to be awarded will be so large as to make what the Court has done plain and clear."

The publicly inflicted harm entitles her to an award which vindicates her reputation and marks the baselessness of the defamation (Cassell & Co Ltd v Broome [1972] AC 1027; Ley v Hamilton (1935) 153 LT 384; Haertsch, par 83). An award of the Court which operates to vindicate her reputation should enable the plaintiff to lay this broadcast to rest in the gutter from which it came.

In assessing the amount of damages to be awarded to the plaintiff I have been guided by the relevant principles which emphasize its compensatory, not punitive, purpose and require there be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount awarded.

There is to be a verdict for the plaintiff in respect of the publication of the first broadcast. In my assessment the appropriate award for this publication is the amount of $240,000.

The second broadcast was part of the defendants' morning talk-back radio programme on 1 October 2009 with the reach described in par 54 above. It was repeated at 8.51pm that evening. Although the repeat broadcast was relied upon for damages, there was no evidence that the plaintiff or anyone else had listened to it, or of its effect upon her, or of the extent of its audience. In the circumstances I propose to give it some, but not great, weight in the assessment.

As earlier noted, this broadcast took place soon after judgment was delivered in the proceedings in the Federal Court of Australia which, inter alia, transferred the defamation proceedings in respect of the first broadcast to this court. Also noted was the fact that the seafood business had been sold in about September 2008.

The compensable imputation is that the plaintiff is a silly woman.

The plaintiff first learnt of the broadcast from Ms Rita Ghatt. She was questioned by a number of telephone callers. Having regard to its wide audience, I am satisfied that the broadcast and the imputation would have been a matter of discussion among the plaintiff's acquaintances, as indicated by the telephone calls. It is appropriate to make some allowance for the "grapevine" effect.

As to the hurt to the plaintiff's feelings, she said that she was scared and upset. Relevant factors for an assessment under this head include the failure to apologise, the persistence in the defence of justification, and aggravation by her knowledge of the falsity of the imputation. Also relevant is the strain of this litigation, but as I have made allowance for this factor in the assessment for the first broadcast I consider that, in the circumstances, there would be risk of double counting if more than nominal weight was given to this factor in relation to this broadcast. Nevertheless, a significant component of the award should be in respect to hurt to feelings.

Consideration of the impact of this broadcast upon the plaintiff's feelings and reputation must take into account the choice of words, the tone and manner of their delivery, and the context in which the defamatory imputation was conveyed. The statement containing this imputation was part of the final salvo launched against the plaintiff in these words: "I'll tell you who's been defamed in this, the little girl involved with your grub of a husband and her family. That who's been defamed, you silly silly woman. You've got your just desserts. And we'll be making sure we apply for those costs in the next twenty-four hours. If we send you and your husband broke, I'll be absolutely delighted."

The circumstances of publication establish it is highly unlikely that the imputation would have been heard and understood as a flippant accusation. Rather, I am satisfied that by publicly branding the plaintiff as a silly woman whilst threatening to break her the defendants caused significant harm to her reputation for which she is entitled to an award by way of reparation, and for vindication.

In assessing the amount of damages to be awarded to the plaintiff for the publication of the second broadcast I have adopted the approach taken in respect of the award for of the first broadcast.

There is to be a verdict for the plaintiff in respect of the publication of the second broadcast. In my assessment the appropriate award for this publication is the amount of $40,000.

Questions of interest on each award, and costs, remain outstanding. Failing agreement, the parties are to arrange with my associate by 4pm 6 February 2014 for the listing of these proceedings for submissions on these issues. I certify that this page and the 25 preceding pages are a true copy herein of the reasons for judgment of the Honourable Acting Justice Nicholas Ms Rosh Mohammed Date: 19 December 2013 Associate to the Honourable Acting Justice Nicholas Annexure A 2GB INTERVIEW BETWEEN RAY HADLEY AND GLEN, 21 MAY 2008 ANNEXURE B 1 October 2009. 11.52 am RAY HADLEY: 17 March 2014 - Anonymisation of Ms X Amended paragraphs: paras [8], [10] and [12] 17 March 2014 - Anonymisation of Mr Y Amended paragraphs: paras [10], [14], [15], [19], [21], [39] and [47]