Wraydeh v Fairfax Media Publications Pty Limited; Wraydeh v Nationwide News Pty Limited

1. [1]

   BELL P: I have had the considerable benefit of reading the reasons for judgment of Simpson AJA and agree with them and the orders proposed.

2. [2]

   GLEESON JA: I agree with Simpson AJA.

3. [3]

   SIMPSON AJA: These appeals arise out of proceedings in the District Court in which the appellant, Hussein Wraydeh, claimed damages for defamation against two media organisations, Nationwide News Pty Ltd (to which I will refer as “Nationwide”), and Fairfax Media Publications Pty Limited (to which I will refer as “Fairfax”). Fairfax was, at the time of the relevant publications, the publisher of the Sydney Morning Herald, a daily newspaper circulating principally in Sydney. Associated with the Sydney Morning Herald, and also published by Fairfax, is a website known as “SMH website”. Nationwide is the publisher of the Daily Telegraph, also a daily newspaper circulating principally in Sydney. The Daily Telegraph, too, has an associated website of which Nationwide is the publisher. The issues involved in the appeals concern the defences of qualified privilege at common law and the assessment of damages.

Background facts

1. [4]

   Just before 11 am on the morning of Sunday, 7 August 2016, at Punchbowl, a collision occurred between a Mitsubishi EVO and a Honda SUV. Ms Georgina (Gina) Abdallah was a passenger in the Mitsubishi. She was seriously injured in the collision and died in hospital later that day. At the time she was carrying no identification and her identity was not immediately known.

2. [5]

   The driver of the Mitsubishi was Mr Hassan Wraydeh (the appellant’s brother). Hassan Wraydeh had for some time been in a relationship with Ms Abdallah. Immediately after the collision Hassan Wraydeh left the scene. Shortly after, the appellant, who had been at his mother’s house which was nearby, attended the scene.

3. [6]

   Police were notified and commenced an investigation. The focus of the investigation was the identification of the injured passenger and the identification of the driver of the Mitsubishi. The appellant was already at the scene when police arrived, and was attempting to communicate with the injured passenger. He had a conversation with a police officer, and gave the name of the passenger as “Gina”. After some reluctance he gave his name, address, date of birth and a contact number. He said that he had known “Gina” for about four weeks “from the area”.

4. [7]

   From just before 2.30 pm on 7 August NSW police issued three media releases alerting media outlets to what was known of the circumstances of the collision and the need to locate the driver of the Mitsubishi. The first media release (Ex P) was issued at 2.24 pm. It recorded the circumstances, so far as they were known, of the collision, and said:

5. [8]

   The second media release (Ex Q), was published at 10.35 pm and announced that the female passenger of the Mitsubishi had died in hospital. It went on:

6. [9]

   The third media release (Ex C) was issued at 5.03 pm the following day (8 August), under the heading:

7. [10]

   Also on 8 August 2016 on the NSW Police Facebook page (Ex D), police published the following:

8. [11]

   In court documentation the appellant’s given name is spelled “Hussein”. It will be observed that, in the third media release, on the Facebook post, and in the further publications to which I am about to refer, the person to whom, it was said, police wished to speak was named as “Hussain” Wraydeh. Nothing turns on this discrepancy; it was common ground that the reference was, in each case, to the appellant.

9. [12]

   The purpose of the media releases was, through the mass communications facilities of the media outlets, to enlist the aid of the public in the police effort to identify the female passenger and to locate the driver of the Mitsubishi. The Facebook post directly served the same purpose. Communication with a wide spectrum of the public was most likely to achieve the purpose.

10. [13]

    Although it was never explicitly stated in any of the police publications, it is an available inference from the references to the interest of police in locating the appellant, and from the statement that police believed that the appellant may have had information vital to clarify the circumstances leading to the crash, and urging anyone who knew him to contact police, that they believed that he had, or might have, been the driver of the Mitsubishi. That is not a necessary inference from those publications: taken literally, they stated only that police believed that the appellant had, or might have had, relevant information.

11. [14]

    The media releases and the Facebook publication prompted the publications in respect of which the appellant claimed damages for defamation.

12. [15]

    On Monday 8 August 2016, on the website of the Sydney Morning Herald, Fairfax published, under the headline “Hunt under way for Sydney driver who left girlfriend in hit-and-run crash”, the following:

13. [16]

    On 9 August 2016, in the print edition of the Sydney Morning Herald, under the headline “Manhunt for driver who left fatally hurt woman in wreck”, Fairfax published a news item that contained the following:

14. [17]

    On 18 August 2016 Fairfax published another article in the print edition of the Sydney Morning Herald, under the heading “Man wanted over fatal Sydney crash caught after two weeks on run”:

15. [18]

    On 9 August 2016, in the print edition of the Daily Telegraph, Nationwide published the following:

16. [19]

    On the same day, from 10.24 am, on the website of the Daily Telegraph, Nationwide published, under the headline “Punchbowl fatal crash: Police hunt for driver after woman dies”:

17. [20]

    From 5.33 pm Nationwide published on the Daily Telegraph website a further article about the collision, which was largely about Ms Abdallah and her family, but included:

18. [21]

    On 18 August 2016 Nationwide published in the print edition of the Daily Telegraph, under the heading “Police question man wanted over crash death of mother-of-two”:

19. [22]

    It will be observed that in the 18 August publications (Exs 3 and 7) Fairfax continued to identify “Hussain” Wraydeh as the person suspected of having been, or believed by police to have been, the driver of the vehicle; Nationwide (in its print edition) correctly identified Hassan Wraydeh as the suspected driver. It is worth repeating that, although the third police media release and the Facebook post, both of 8 August, named the appellant as a person they believed could throw light on their investigation, they did not explicitly say that they believed him to have been the driver. While the content of those publications is capable of the interpretation that that was the case, other, more benign, constructions are available.

20. [23]

    On 7 August 2017 the appellant commenced proceedings against Fairfax, Nationwide, another news outlet (Dailymail.com) and the State of NSW. In each case he claimed damages (including aggravated damages) for defamation. The proceedings against the State of NSW were resolved with a judgment of $70,000 in favour of the appellant. The proceedings against Dailymail.com resolved with a payment of $100,000 to the appellant.

21. [24]

    The appellant’s claims against the respondents were finally formulated in an Amended Statement of Claim (Fairfax) and Further Amended Statement of Claim (Nationwide), each filed on 9 July 2018. The appellant claimed damages for what he alleged were defamatory imputations conveyed by the publications of:

22. [25]

    The appellant identified a series of defamatory imputations he alleged were conveyed by the publications. It is not necessary at this point to reproduce the entirety of the imputations pleaded (due to the similarity of the content of the publications, there was a substantial degree of repetition). By way of example, the appellant pleaded that each of the Fairfax publications conveyed the imputation that he was a “hit and run” driver; that he was a cruel and callous person; that he was the subject of a police manhunt (or that he was wanted by police over a fatal car crash); that he was a criminal; and that he had so conducted himself as to be reasonably suspected by police of being involved in a fatal car accident (the last two having been adopted from contextual truth defences pleaded by the respondents). The imputations pleaded against Nationwide were to similar effect. (There were variations in the manner in which the imputations were pleaded, but as those variations are not material to the issues in the appeals, it is not necessary or appropriate to take more time or to lengthen these reasons by identifying the imputations with precision. It will be necessary to have more precise regard to the imputations when I come to address the appellant’s complaints with respect to the assessment of damages).

23. [26]

    Each respondent filed a defence. With respect to certain of the imputations pleaded against it, (one of which was the imputation that the appellant was a criminal) Fairfax pleaded a defence of justification pursuant to s 25 of the Defamation Act; with respect to all imputations Fairfax pleaded a defence of statutory qualified privilege (s 30 of the Defamation Act); with respect to the publications of 8 and 9 August (respectively, Exs 2 and 1), but, notably not with respect to the publication of 18 August (Ex 3), Fairfax pleaded a defence of qualified privilege at common law. Nationwide also pleaded a justification defence to certain of the imputations pleaded against it (including that the appellant was a criminal), a s 30 defence to all imputations, and a defence of qualified privilege at common law to all imputations.

24. [27]

    In each case, the appellant filed a Reply to the defences of qualified privilege at common law pleading that, in publishing the imputations, both respondents were actuated by malice.

25. [28]

    The proceedings came on for trial before Wass SC DCJ and a jury in November 2019. Each respondent sought an order that the Reply be struck out; after some argument the primary judge indicated that she would make such orders, reserving the right of the appellant to seek to file amended Replies. No formal order appears to have been made, but the parties proceeded at trial and on appeal on the basis that orders striking out the Replies were made. No application was made to file further amended Replies. Malice was therefore no longer an issue.

26. [29]

    At the conclusion of the appellant’s case Ex 7 was withdrawn from the jury and the cause of action based on that publication was abandoned. That left for determination the causes of action against Fairfax constituted by Exhibits 1, 2 and 3, and against Nationwide by Exhibits 4, 5 and 6, and the defences raised to those publications.

27. [30]

    A series of detailed questions was left to the jury. These were directed to whether any or all of the imputations had been conveyed, and, if so, were defamatory, and to the various defences.

28. [31]

    The jury’s responses to the questions were highly favourable to the appellant; they found that all of the imputations pleaded (with the exception of the imputation that the appellant had so conducted himself as to be reasonably suspected of involvement in the accident) had been conveyed and were defamatory of him. They rejected all defences (including justification) of each respondent, except that they found that the conduct of Nationwide, in the second website publication of 9 August (Ex 6), was reasonable in the circumstances. This question was directed to Nationwide’s defence of statutory qualified privilege to that publication; the consequence of the jury’s finding was that that defence in respect of that publication succeeded.

29. [32]

    The jury otherwise found that neither respondent had acted reasonably. The consequence of those answers was that (with the exception of Nationwide’s publication of 9 August (Ex 6)) the s 30 defence had failed.

30. [33]

    The remaining issues, which fell to the primary judge for determination, were the defences of qualified privilege at common law to the publications represented by Exhibits 1, 2, 4 and 5 (qualified privilege not having been pleaded to Ex 3, and Ex 6 having been successfully defended pursuant to s 30 of the Defamation Act) and (if those defences failed) the quantification of damages.

31. [34]

    The primary judge upheld the defence of qualified privilege at common law in respect of each publication: Wraydeh v Fairfax Media Publications Pty Limited; Wraydeh v Nationwide News Pty Limited, unreported, District Court of NSW, 28 August 2020. She mistakenly included Ex 3 and found that qualified privilege protected that publication. She proceeded, on a contingent basis, to assess the damages that she would have awarded had the defence failed. She assessed the damages to which the appellant was entitled, against each defendant, at $35,000. In accordance with her findings on qualified privilege, the primary judge made orders for verdict and judgment to be entered in favour of each respondent.

32. [35]

    Subsequently, it having been drawn to her Honour’s attention that no defence in relation to the defamatory imputations published in Ex 3 had been made out and that the appellant was, therefore, entitled to a verdict in respect of that publication, she awarded the appellant the sum of $7,500: Wraydeh v Fairfax Media Publications Pty Limited, NSW District Court, unreported, 15 October 2020.

The appeal

1. [36]

   The appellant appeals against the orders. The grounds raised in each case are substantially identical. The appellant asserts (in general terms) that the primary judge was in error in upholding the defences of qualified privilege and he asserts specific error (to which I will return) in the consideration of that defence. He asserts, in each case, that the contingent assessment of damages was manifestly inadequate; and he asserts, in the Fairfax case, that the award of $7,500 as damages for publication of the defamatory imputations conveyed by Ex 3 was manifestly inadequate.

2. [37]

   It is a rare discussion of the defence of qualified privilege at common law that does not begin with the foundational passage from the statement of Parke B in Toogood v Spyring (1834) 1 Cr M & R 181 at 193; 149 ER 1044 at 1049-1050, as follows:

3. [38]

   The principles on which such a defence will succeed, founded on that passage, have been stated on numerous occasions. Some of the decisions are: Adam v Ward [1917] AC 309; Andreyevich v Kosovich and Publicity Press (1938) Pty Ltd (1947) 47 SR (NSW) 357; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; [1994] HCA 45; Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5; Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79; [2010] HCA 25; Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30; Papaconstuntinos v Holmes a Court (2012) 249 CLR 534; [2012] HCA 53; and Marshall v Megna; Megna v Tory; Tory v Megna [2013] NSWCA 30.

4. [39]

   A successful defence of qualified privilege at common law depends upon satisfaction of three conditions, as stated by Heydon J in Aktas at [55] (in dissent on the application of the principles):

5. [40]

   A modern formulation of the defence can be found in the joint judgment of French CJ, Gummow and Hayne JJ in the same case at [14]. Their Honours said:

6. [41]

   The requirement of reciprocity is often emphasised as “the hallmark” of the defence: for example, in Marshall at [3] (although, in Papaconstuntinos (at [8]) the majority in the High Court considered “community of interest” to be a more accurate term, as did Griffith CJ in Howe and McColough v Lees (1910) 11 CLR 361 at 369; [1910] HCA 67). Also frequently emphasised is the underlying philosophy that, as a matter of public policy, in some circumstances the importance of the protection of the reputation of an individual may have to give way to the importance of freedom of communication: Bowen v Hall (1881) 6 QBD 333 at 343; Aktas at [22], Cush at [12]; Andreyevich at 363.

7. [42]

   Statement of the principles may be easier than their application. In Bashford, Gleeson CJ, Hayne and Heydon JJ said (at [10]):

8. [43]

   As is apparent from the tripartite criteria stated by Heydon J in Aktas, a “privileged occasion” is distinct from a “privileged communication”: Guise v Kouvelis (1947) 74 CLR 102; [1947] HCA 13 per Dixon J (at 117, citing Lord Campbell CJ in Dickson v Earl of Wilton (1859) 1 F. & F. 419 at 426; 175 ER 790 at 793). As Lord Atkinson observed in Adam v Ward (at 334), the two terms are often used loosely as interchangeable. Lord Shaw of Dunfermline took a more precise view; he thought that, while an occasion may be “privileged”, a communication is “protected” (at [52] below).

9. [44]

   In many cases, the content of a communication will itself dictate whether an occasion is privileged. But it is not always so. In determining whether an occasion is privileged attention is directed to the commonality of interest in the subject matter of the communication. It is reciprocity (or community) of interest in the subject matter, not limited to the precise terms of the communication, that marks out whether the occasion is one of privilege. That that is so is a common thread in various of the decisions. Whether the communication (as distinct from the occasion) is privileged (or protected) is a separate question, determined by reference to the second of Heydon J’s three conditions.

10. [45]

    In Adam v Ward Lord Finlay LC said (at 318):

11. [46]

    In Andreyevich Jordan CJ (at 362), adopting a proposition from the third edition of John Clement Carpenter Gatley and Richard O’Sullivan, Gatley on Libel and Slander (3rd ed, 1938, Sweet & Maxwell), accepted that an occasion of qualified privilege may be created by:

12. [47]

    More recently, in Bennette v Cohen [2009] NSWCA 60 , Campbell JA said:

13. [48]

    It has often been said, as a general proposition, that the requirement of reciprocity precludes the applicability of the defence to large audiences, such as are reached by mass media publications: Stephens (at 260); Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 570, 572; [1997] HCA 25; Aktas (at [14]); Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 133; [1994] HCA 46. This is because the essential requirement of reciprocity is usually absent in such publications, see Aktas (at [14]) and David Rolph, Defamation Law (2016, Thomson Reuters (Professional) Australia Limited) at [11.50]. In Roberts v Bass, Hayne J noted that, before Lange, apart from a few exceptional cases, the common law categories of qualified privilege protected only occasions where defamatory matter was published to a limited number of recipients. His Honour said (at [215]):

14. [49]

    Applying the principles stated above, the primary judge found that the occasion of publication of each of the news reports was a privileged one; that was because:

15. [50]

    Ultimately, it was not disputed that, because each article was published in response to police media releases seeking information from the public at large about a fatal motor vehicle collision, in which a person who was critically injured was, initially, unidentified, and from which the driver of the vehicle had fled, the occasion of publication in each case was privileged. An argument that the primary judge’s express finding that “all members of the public have a reciprocal interest in having the information that police had about those matters” was “not at all justified” was not pursued with any degree of vigour and was ultimately abandoned.

16. [51]

    Ground 2 of the appeal, which asserted error in the primary judge’s conclusion in this respect, was withdrawn. The issue on appeal was whether what was published was sufficiently “related to” the occasion of privilege.

17. [52]

    It is clear from the above that not every communication made on a privileged occasion is protected by the privilege. What is published must have a sufficient connection with the duty or interest by reason of which the privilege arises. This requirement was variously expressed in the speeches in Adam v Ward:

18. [53]

    In Mowlds v Fergusson (1939) 40 SR (NSW) 311, (at 318), Jordan CJ said:

19. [54]

    In Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183; [1996] HCA 47 (a case involving consideration of specific provisions of the Queensland Criminal Code and not, otherwise than as to the following paragraph, of guidance to the present issues), Dawson, McHugh and Gummow JJ (at 228) said:

20. [55]

    In Bashford the test was stated by Gleeson CJ, Hayne and Heydon JJ as follows (at [22]):

21. [56]

    The argument advanced to the primary judge, and repeated on appeal, was that, because each publication went beyond what was explicitly contained in the police media releases and named the appellant as the person suspected of being, or believed to have been, the driver of the Mitsubishi, the protection that would otherwise have been afforded by the privilege given to the occasion was lost. The primary judge rejected that argument; she considered (at [59]) that the difference between stating that the appellant was wanted for questioning (as was stated in the third media release and the Facebook post) and stating that he was suspected of being the driver was insufficient to deprive the publications of the privilege.

22. [57]

    Two misconceptions underlie the appellant’s submissions. The first is the proposition that the protection afforded by the privilege depends upon the defendant establishing a “need to publish the defamatory imputations in order to fulfill the purpose served by the privilege”. Such a proposition was expressly rejected by Lord Atkinson in Adam v Ward (at 334-335). His Lordship said:

23. [58]

    His Lordship then, at some length, reviewed relevant authority, and, (at 339), concluded:

24. [59]

    Nor was the appellant’s proposition supported by the decision of the Full Court of the Supreme Court of South Australia in Sands v South Australia (2015) 122 SASR 195; [2015] SASCFC 36, on which he placed heavy emphasis. In that case police held a media conference, and issued a media release, concerning an ongoing murder investigation in which Mr Sands was the principal suspect (see [17]). Although he was not named in any of the publications, Mr Sands was identifiable as the person to whom reference was made. Mr Sands brought proceedings in (inter alia) defamation. The content of the media conference and the media release was found to have conveyed two imputations defamatory of Mr Sands: that there were reasonable grounds to suspect that he was the murderer, and that he had so conducted himself as to warrant suspicion that he was the murderer. A defence of justification in respect of each imputation succeeded, and Mr Sands’ action was dismissed. A defence of qualified privilege at common law failed.

25. [60]

    Mr Sands appealed against the dismissal of his defamation claim. By Notice of Alternative Contentions, the State challenged the rejection of the qualified privilege defence, arguing that the trial judge had applied too stringent a test in finding that the publications in question went “beyond anything which might be required”, and “beyond anything which could be said to be necessary to discharge any duty”.

26. [61]

    The Full Court appears to have accepted that submission, but, nevertheless, upheld the decision of the trial judge on qualified privilege. The Court accepted that the issue of the media release and the holding of the media conference “had the potential” to attract the defence (which I take to mean to constitute an occasion of qualified privilege). The Court then identified “the real question” as whether the defamatory imputations were “sufficiently connected” to the occasion of privilege to attract the defence. Applying that test, the Court held that they were not, that provision of the information that Mr Sands was a suspect and had so conducted himself as to warrant such suspicion was “gratuitous”, and:

27. [62]

    Just what the Full Court had in mind in the use of “necessary” in the last passage is unclear. I do not read the passage as saying that only information “necessary” to serve the purpose of the privilege will receive the protection; that would be inconsistent with the earlier identification of “the real question” as whether the imputations were “sufficiently connected” to the occasion of privilege. It would also be inconsistent with the passage above (at [55]-[56]) from Lord Atkinson in Adam v Ward, which has for more than a century stood as authority in Australian courts. In my opinion the decision in Sands was made on its own facts and does not lend support to the proposition that a publisher must, to attract the defence of qualified privilege, establish a “need” to publish the very communication published.

28. [63]

    I note, however, that in Aktas Kiefel J, at [95], said:

29. [64]

    The correct test has been variously expressed as “not relevant and pertinent”; “beyond what was germane and reasonably appropriate”; “not truly referable to the particular right or duty which … is the foundation of the privilege”; “within the scope of the privilege attaching to the occasion”, not extraneous to the occasion; (all from Adam v Ward); “capable of serving the purpose of the occasion” (Mowlds); “whether the defendant has fairly and properly conducted himself in the exercise of [the privilege]” (Bashford); and, most simply, “relevant to the occasion” (Bellino). None goes so far as to impose necessity as the test for satisfaction of the second Heydon J criterion.

30. [65]

    The test of relevance was explored by Kirby J in Bashford, in a lengthy passage which it is worth taking the time to set out. At [193]–[194] his Honour said:

31. [66]

    Bashford is illustrative of the difficulty, not in the concepts involved (which can be succinctly stated) but in their application. The case involved an article published in a trade newsletter concerned with occupational health and safety matters. The article reported on proceedings in the Federal Court of Australia, concerning breach of copyright claims and an allegation of contravention of s 52 of the Trade Practices Act 1974 (Cth). The breach of copyright claim was of interest to consumers of the newsletter because it concerned safety information about certain chemicals. Incidentally (it seems) the article also mentioned that Mr Bashford had been found to have contravened s 52. In fact, it was a company of which Mr Bashford was a director of which this finding was made. Mr Bashford brought proceedings for defamation to which a defence of qualified privilege at common law was raised. The trial judge, Davies AJ, found that, because the principal part of the article concerned matters of interest to consumers of an occupational health and safety newsletter, the occasion of publication was privileged. He also found that, notwithstanding that the assertion that Mr Bashford had been found to have contravened s 52 was incorrect (it having been the company of which he was a director of which that finding was made), “the report was not irrelevant to the occasion”.

32. [67]

    On appeal, all members of this Court agreed that the occasion of publication was privileged; Sheller and Hodgson JJA considered that the test of relevance had been met; Rolfe AJA took a contrary view.

33. [68]

    In the High Court Gleeson CJ, Hayne and Heydon JJ held both that the occasion was privileged (at [26]) and that the publication was relevant to the occasion (at [27]). McHugh J held (at [89]) that the occasion was not privileged (although it is fair to acknowledge that his Honour took a fundamentally different approach to the question of qualified privilege to that taken by other members of the Court; he considered that the reasoning of the Court of Appeal, which was upheld by the majority in the High Court, “turns the law of qualified privilege on its head”).

34. [69]

    Gummow J accepted that the occasion was privileged, but took a different view again of relevance. At [135] his Honour considered that questions of relevance will ordinarily only arise where two or more defamatory imputations are published on a single occasion; in that case only one defamatory imputation had been published and the question of relevance did not arise. Kirby J accepted (at [186]) that qualified privilege attached, and, (at [198]) that the publication was relevant to the occasion. Callinan J agreed with McHugh J that the occasion was not one of privilege.

35. [70]

    It is an overstatement to say that only communications that are “necessary” for the discharge of a duty or the safeguarding of the interest that renders the occasion privileged are protected. The appropriate test is less stringent than that.

36. [71]

    The appellant’s argument was, in any event, founded on a false premise. It assumed, wrongly, that the occasion of qualified privilege came into existence by reason only of the police media releases and, importantly, that what was relevant to the occasion was confined to anything contained in those releases.

37. [72]

    It may be accepted that it was the issue of the media releases that crystallised a social and moral duty in the respondents to pass on to their readerships the information concerning the motor vehicle accident, the death of Ms Abdallah, and the flight of the driver. It was accepted that a relevant duty (or at least a common interest) existed; it was also (sub silentio) accepted that, as each respondent was a mass media outlet, the duty could not, in practical terms, be discharged to a more limited audience. Hence the concession, ultimately made, that the occasion was privileged.

38. [73]

    It is the assumption that, in discharging their duty, the respondents were confined to the content of the media releases and that anything outside that content failed to meet the requirement of relevance, sufficient connection, or that the publication be “germane” to the occasion that is the second misconception in the appellant’s argument.

39. [74]

    The appellant argued (at [20]) that the respondents could only be protected by the privilege because they were acting as intermediaries to enable the police to communicate with the public and (if I understand the submission correctly) that the parties to the “reciprocal interest” (or “reciprocal duty”) were the police and members of the public. In passing on the information provided by police, it was not open to the respondents to go beyond that information, because any additional information “does not form part of the occasion”.

40. [75]

    I would reject this contention (for which no authority was cited). It would, if accepted, constitute the respondents as agents of the police, having no independent relationship with consumers of their publications. True, it is, as I have said above, the occasion of privilege came into existence when police, by media release, involved media outlets in the quest for information about the passenger in the Mitsubishi, the identity of the driver and (in the third media release and the Facebook post) the location of the appellant. But the interest in the respondents in reporting news was not confined to what they had been told by the police.

41. [76]

    Once the occasion of privilege was established, by the relevant duty or interest, the respondents were at liberty to publish information “germane” to the occasion, whatever its source, provided that the communication was “honestly made” (Toogood - see [37] above); made with an “honest purpose” (Aktas - see [63] above); that the respondents (through their journalists) “fairly and properly conducted” themselves in the exercise of the privilege (Bashford - see [55] above); and did not go beyond “the scope of the privilege” (Adam - see [52] above). The publication was directly relevant to the occasion of privilege, and was, in my opinion, well within its scope. It is to be remembered that, in Toogood v Spyring, Parke B cautioned against restricting the relevant communication within any narrow limits (see above at [37]), a caution that was endorsed in Cush v Dillon (at [22]).

42. [77]

    I have already discussed the decision in Bashford, which is one example of a case in which inaccuracy in publication did not deprive the communication of a “sufficient connection” with the occasion of privilege. Another example is Cush v Dillon, the circumstances of which may be briefly stated.

43. [78]

    Mr Boland and Ms Dillon were members of the Board of a statutory authority, of which Ms Cush was the general manager. A rumour circulated that Mr Boland was having an extra-marital affair with Ms Cush. At a meeting with the Chairman of the Board Ms Dillon reported that the affair was “well known”, “widely known”, or “common knowledge”. A jury found that imputations defamatory of Ms Cush and Mr Boland had been conveyed by Ms Dillon’s communication. It was conceded that an occasion of qualified privilege (it being the duty of Ms Dillon to disclose to the Chairman information on staff related matters) existed, and, further, that the privilege extended to the communication of the existence of the rumour. In a joint judgment French CJ, Crennan and Kiefel JJ held (at [23]) that it could not be suggested, in those circumstances, that communication of the alleged affair as fact as distinct from rumour was less relevant to the occasion. Gummow, Hayne, and Bell JJ agreed, saying (at [52]) that the words used by Ms Dillon were not “so foreign to the occasion that they must be held extraneous or irrelevant”. Bashford and Cush are examples of the manner in which the test of relevance has been applied. As Bashford illustrates, different views may legitimately be taken.

44. [79]

    In my conclusion, it could not be said, in the present case, that what was added to the police media releases was “foreign” to the occasion of privilege. It was, in fact, correct that police suspected the appellant of having been the driver of the Mitsubishi, even though that was not explicitly contained in the media releases.

45. [80]

    The author of the first and second Fairfax publications (Ex 2 and 1) was Ms Ava Benny-Morrison. The author of the third (18 August, Ex 3) publication was Ms Rachel Olding with assistance from Ms Benny-Morrison. Ms Benny-Morrison was an experienced crime reporter, who had previously seen “dozens and dozens” of police media releases and was familiar with the language used. She interpreted the media releases as meaning that the appellant was a suspect, because she thought, if police wanted to interview him merely as a witness, they would have said so expressly.

46. [81]

    Ms Benny-Morrison had two confidential sources with NSW Police, one of whom had provided her, over two to three years, with information that had always been accurate; the other, whom she had known for about one year, had also consistently provided her with accurate information. The first source confirmed that the appellant was suspected of having been the driver of the Mitsubishi, and the boyfriend of Ms Abdallah. Ms Benny-Morrison believed, therefore, that the appellant was suspected by police of being the driver. Ms Olding, also an experienced crime reporter, gave evidence of the circumstances in which the 18 August publication was written. She had been present at Bankstown Court in relation to another matter, on the morning of 18 August, when the appellant was brought into court, in custody. (There was evidence that he had been arrested, possibly the day before, and charged with a variety of offences, including drug offences.) Ms Olding contacted the police media unit and was told that the appellant had been charged with unrelated offences, that he was still being questioned, and that police expected to lay further charges “but the main thing was that they’d got him”. The evidence does not disclose the outcome of those charges. However, on 24 August the appellant was stopped by police, in possession of a rental car the contract for which had expired but had not been returned.

47. [82]

    The author of each of the Nationwide publications was Mr Ben McClellan. He too drew the inference that the appellant was a person “significantly involved in this incident” (that is, the motor vehicle collision), and that police wished to speak to him quite urgently, and that police were indicating that they believed that the appellant was the driver of the Mitsubishi. Mr McClellan also contacted a confidential source in NSW Police who confirmed that the appellant was the suspected driver.

48. [83]

    The primary judge was correct to find that each publication was made on an occasion of qualified privilege, and each publication had the necessary degree of connection or relevance to the occasion. It was not to the point that the appellant was not, in fact, the driver of the Mitsubishi. The question was whether the assertion that he was believed by police to have been the driver had a sufficient connection with the occasion to come within the protection. In my opinion, in all of the circumstances, it clearly did. In my opinion each appeal so far as it challenges the conclusion that the publications were protected by qualified privilege, should be dismissed.

Damages

1. [84]

   With the exception of the damages awarded in respect of the publication of Ex 3, the question of the assessment of damages arises only contingently, on the hypothesis that the primary judge’s conclusions on qualified privilege are held to have been wrong. Having regard to the view to which I have come with respect to that question the issue of damages can be disposed of succinctly. It is, however, necessary to state more comprehensively the defamatory imputations found to have been conveyed. Although, as indicated above, they were framed in slightly different ways, the substance of the imputations found to have been conveyed by Fairfax was:

2. [85]

   The imputations found to have been conveyed by Nationwide were:

3. [86]

   There can be no doubt, and the primary judge so found, that the imputations were seriously defamatory of the appellant and that their publication had had a wide distribution.

4. [87]

   The appellant gave evidence of what he said was the distress he suffered on reading the publications. He said that he was “upset, gutted, shattered”. He claimed that the effect on him was to change his behaviour to such an extent that his relationship of 25 years broke down, and that, as a consequence, he lost contact with his children.

5. [88]

   He gave evidence of encounters with acquaintances who, he said, made adverse and derogatory comments to him, suggesting that he was a person who left a mother of two to die.

6. [89]

   The primary judge found the appellant’s evidence, in a number of respects, to be “inconsistent and unconvincing” ([82]-[90]), evasive ([105], [118]), “wholly unreliable” ([145]); “inherently unbelievable” ([150], [152]). She accordingly rejected his evidence in a number of major areas. She did not accept that the appellant suffered the hurt to feelings and distress that he claimed, finding that his evidence was a “gross overstatement” ([93]). She observed that the appellant was not so distressed as to attempt to correct the publications by informing either of the respondents or the police of the fact that he was not the driver.

7. [90]

   She rejected the account given by the appellant of what occurred when he attended the scene of the accident; that evidence was in conflict with the evidence of a police officer who was present, and whose evidence the primary judge accepted in preference to that of the appellant. She considered that the appellant’s evidence in this respect was motivated by a desire to distance himself and his brother Hassan Wraydeh from involvement in the accident ([100]).

8. [91]

   The primary judge rejected the appellant’s evidence concerning what had occurred when he was stopped by police on 24 August, after he was detected in possession of a rental vehicle the contract for which had expired and the vehicle not returned.

9. [92]

   The primary judge also rejected the assertion by the appellant that the termination of his relationship was attributable to the publications ([180]).

10. [93]

    The primary judge then considered evidence concerning the appellant’s criminal record. The evidence showed that, in 2006 the appellant was convicted of offences of supplying a commercial quantity of a prohibited drug (cocaine) and of having in his personal custody goods suspected of having been stolen. With respect to the drug offence the appellant was sentenced to imprisonment for 6 years and 4 months with a non-parole period of four years. The appellant gave evidence about his involvement in that offence which the primary judge found to be inconsistent with a statement of facts put before the sentencing court, and to be “a gross understatement” ([123]). The primary judge summarised her finding in relation to the appellant’s credibility as follows:

11. [94]

    The appellant claimed aggravated damages, based on the failure of the respondents to apologise and his knowledge that the imputations were false. The primary judge did not accept that the appellant had ever turned his mind to the failure of the respondents to apologise such as to exacerbate his feelings of hurt ([189]). She accepted ([190]) that the appellant knew that the imputations were false, but considered, echoing what she had said earlier, that he had at his disposal information to prove the falsity of the publications, about which he took no action. She declined to award aggravated damages.

12. [95]

    In considering the question of compensatory damages the primary judge took into account evidence that many other publications, on television and other outlets, had reported on the accident and had named the appellant. She found it difficult to attribute any specific damage done to the appellant’s reputation by the publications of the respondents, as distinct from those other publications. She took into account that the appellant had been compensated by the State of NSW (in respect of the police media releases) and Dailymail.com.

13. [96]

    She then reviewed cases put forward by the appellant and the respondent as guides to the appropriate award. She concluded, as indicated above, that the appropriate award in respect of each respondent was $35,000. As also indicated above, the primary judge subsequently made an award of $7,500 in respect of the publication constituted by Exhibit 3.

14. [97]

    In relation to each respondent the appellant contended that the contingent assessment of damages was manifestly inadequate, and can be seen to be erroneous in four specified respects:

15. [98]

    In relation to Fairfax, the appellant asserted that the award of $7,500 in respect of the publication of Exhibit 3 was manifestly inadequate, and that the primary judge erroneously failed to consider whether there were circumstances warranting an award of aggravated damages.

16. [99]

    The arguments advanced on the hearing were more confined. No authority was cited for the proposition (inherent in the first bullet point above) that a plaintiff in a defamation action has no duty (as do plaintiffs in respect of any other tort) to mitigate the damage done by the tort. In any event, as the President pointed out in argument, the primary judge’s references to the failure of the appellant to notify the respondents that he was not the driver were not made in support of a finding that he failed to mitigate his damages, but as indicative that his claims of distress were unconvincing.

17. [100]

    On behalf of the appellant it was first argued that the adverse credibility findings made by the primary judge were largely based, unfairly, on factual conclusions with respect to evidence that had not been the subject of cross-examination, or argument, on behalf of the respondents, and that the primary judge had “construct[ed] an attack on the credit of the appellant that the respondents, in their argument on damages, had not made”. Specific reference was made to the primary judge’s rejection of the appellant’s evidence of hurt to his feelings caused by the publications, as to which, it was said, the appellant had not been cross-examined.

18. [101]

    In fact, in written submissions below, the respondents did not dispute that the appellant was upset by the publications; the point made was that he did not distinguish the distress he said that he experienced between the various publications of which he complained. The primary judge did not entirely discount any feeling of hurt or distress experienced by the appellant; she accepted (at [167]) that the appellant “must have had some negative reaction to seeing his name in connection with Hassan’s conduct”; it was the extent of the distress claimed by him that she did not accept.

19. [102]

    In my opinion the adverse credibility findings were entirely open to the primary judge. The appellant was cross-examined on various aspects of his evidence; for example, when asked in his evidence in chief about the circumstances of the 2006 offence of supplying a commercial quantity of cocaine, he downplayed his involvement, saying that it arose out of his youth and stupidity and a gambling problem and that he was using the drug himself only on a social basis. In cross-examination it was directly put to him that this was untrue; the detail of the circumstances of the offence was put to him. It could hardly be said that rejection by the primary judge of his account of his involvement in the offence was not available to her.

20. [103]

    The appellant was also cross-examined at some length about his conduct at the scene of the accident and discrepancies between his account and that of the police officer, and his account of the circumstances in which he was in possession of the rental car the contract for which had expired. The primary judge made it plain that her credibility findings in these respects had a direct impact on her acceptance or otherwise of the appellant’s evidence on issues directly relevant to damages.

21. [104]

    The principal argument advanced on behalf of the appellant was said to be “illogicality” of the emphasis placed by the primary judge on the failure of the appellant to attempt to correct the record by contacting police or the respondents. It was argued that doing so would have achieved nothing, as (so it was put) could be discerned from the absence of any correction after the respondents did learn that the appellant had not been the driver of the Mitsubishi. The argument itself lacks logic. That the respondents did not, of their own initiative, publish retractions or corrections says nothing of what they would or might have done if prompted by the appellant. To repeat, the primary judge used the appellant’s failure to take steps to correct the record as indicative that the appellant was not as concerned as he claimed to be about the publications. There was no illogicality in the approach taken by the primary judge.

22. [105]

    Finally, in relation to each respondent, it was submitted that the assessment of damages is out of proportion when the seriousness of the imputations and the breadth of the audience are taken into account.

23. [106]

    The purposes of an award of damages for the publication of defamatory imputations were stated succinctly in Carson v John Fairfax & Sons Ltd; Carson v Slee (1993) 178 CLR 44 at 60; [1993] HCA 31 as:

24. [107]

    While accepting that some damage to reputation is presumed, the primary judge noted that there was no reliable evidence of actual damage to the appellant’s reputation and, indeed, there was no evidence of the appellant’s pre-publication reputation. She was not satisfied that the appellant had suffered “personal distress and hurt”.

25. [108]

    Having regard to the seriously adverse findings as to credibility made by the primary judge, I am not satisfied that her Honour’s approach to the appellant’s evidence of the hurt and distress he claimed to have experienced was flawed. Similarly, there was, as the primary judge pointed out, no evidence on which any proper assessment of damage to reputation could be made. Moreover, the appellant had been compensated by the State of NSW and Dailymail.com for similar imputations arising out of similar publications; and other media outlets, for which neither respondent was responsible, had also published reports that, at least, linked the appellant with the accident.

26. [109]

    Some caution needs to be exercised in taking into account the settlement with the State of NSW; the statement of claim in that case included causes of action in wrongful arrest, assault, intimidation and false imprisonment (arising out of the appellant’s arrest on 17 August). There is no way of knowing what contribution the claim in defamation made to the overall settlement figure.

27. [110]

    It is not possible to say that the publications the subject of these appeals caused any greater damage to the appellant than is represented by the amount contingently assessed by the primary judge.

28. [111]

    I am not persuaded that the contingent awards of damages were manifestly inadequate.

29. [112]

    For the same reasons I am not persuaded that any error has been identified in the approach taken by the primary judge to the award of damages in respect of the publication of 18 August.

30. [113]

    Even if I were to uphold the appeal against the finding of qualified privilege, I would not uphold an appeal against the assessment of damages.

31. [114]

    Accordingly, I would dismiss each appeal with costs.