Ahmadi v Fairfax Media Publications Pty Ltd

CATCHWORDS : DEFAMATION - damages - jury verdict on liability and defence - six imputations proved true and two further imputations not proved true - reputation still damaged - jury verdict that article still defamatory - effect of true imputations to reduce damages significantly - more than nominal damages awarded

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Carson v John Fairfax & Sons Ltd & Slee [1993] HCA 31; (1993) 178 CLR 44 CASES CITED : Hobbs v Tinling [1929] 2 KB 1 John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327

PARTIES : Abdullah Ahmadi (Plaintiff) Fairfax Media Publications Pty Ltd (Defendant)

COUNSEL : C A Evatt / R Rasmussen / C Dibb (Plaintiff) T Blackburn SC / D Sibtain (Defendant)

SOLICITORS : The People's Solicitors (Plaintiff) Johnson Winter & Slattery Lawyers (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2008/289438 Abdullah Ahmadi v Fairfax Media Publications Pty Ltd

JUDGMENT 1 HIS HONOUR: On the weekend commencing 4 August 2007, the defendant, Fairfax Media Publications Pty Limited ("Fairfax"), published in its newspaper, the Sydney Morning Herald ("SMH"), and on the internet, an article accusing the plaintiff, Mr Abdullah Ahmadi, of being a people smuggler, and, amongst other things, of making threats against Mr Haideri and Mr Haideri's family, in order to extract USD$5,000 from Mr Haideri. 2 Mr Ahmadi sued Fairfax for defamation. Fairfax justified its publication on the basis of the truth of the allegations and, on 21 December 2009, a jury returned a verdict, the effect of which was that the allegations relating to people smuggling were not justified on the basis of truth, but the other allegations relating to the making of threats were. 3 Further, the jury verdict determined that Fairfax had not established that Mr Ahmadi's reputation had not been further harmed by the imputation, not proved to be true, given the published imputations that were true. In other words, and ignoring, for ease of comprehension, the burden of proof, the untrue imputations made by Fairfax against Mr Ahmadi had the effect of defaming him (or further harming his reputation), despite the damage to his reputation arising from the truth of the other allegations, which were published at the same time. 4 The jury having reached its verdict, and having determined the answers to the questions in the manner it did, the Court is now required to deal with, and issue judgment on, the assessment of damage. This judgment deals with damages. 5 Fairfax submits that only nominal damages should be awarded, while Mr Ahmadi maintains his claim that compensatory damages should issue. Notwithstanding the confined issue with which the Court must deal, it is necessary to recite the factual basis for determining the issue and the principles to be applied. Issues for the jury and the answers given 6 The jury was asked six questions (with subparagraphs). It answered them as indicated below. 1. Has the Plaintiff established that he was identified as Mr X by at least one person who read the article entitled " He Fled the Taliban, Now Persecution Has Another Face ", published in the Sydney Morning Herald on 4 August 2007? YES

If you answered "yes" to question 1, has the Plaintiff established that such identification by that person was reasonable? YES

Has the Plaintiff established that the article entitled " He Fled the Taliban, Now Persecution Has Another Face ", published in the Sydney Morning Herald on 4 August 2007, conveyed to the ordinary reasonable reader the following imputations (or imputations not different in substance from those imputations)?

(a) The Plaintiff has persecuted Mr Haideri. YES (b) The Plaintiff is a people smuggler. YES (c) The Plaintiff smuggled Mr Haideri into Australia. YES (d) The Plaintiff threatened to kill Mr Haideri. YES (e) The Plaintiff threatened to abduct Mr Haideri and send him back to Afghanistan. YES (f) The Plaintiff threatened to track down and kill Mr Haideri's wife and children. YES (g) The Plaintiff is an extortionist. YES (h) The Plaintiff has tried to extort $5000 from Mr Haideri. YES

If you answered "yes" to any of questions 3(a) to 3(h), has the Plaintiff established, in the case of each imputation where you answered "yes", that that imputation was defamatory of the Plaintiff?

(a) The Plaintiff has persecuted Mr Haideri. YES (b) The Plaintiff is a people smuggler. YES (c) The Plaintiff smuggled Mr Haideri into Australia. YES (d) The Plaintiff threatened to kill Mr Haideri. YES (e) The Plaintiff threatened to abduct Mr Haideri and send him back to Afghanistan. YES (f) The Plaintiff threatened to track down and kill Mr Haideri's wife and children. YES (g) The Plaintiff is an extortionist. YES (h) The Plaintiff has tried to extort $5000 from Mr Haideri. YES

If you answered "yes" to any of questions 4(a) to 4(h), has the Defendant established, in the case of each imputation where you answered "yes", that that imputation was substantially true?

(a) The Plaintiff has persecuted Mr Haideri. YES (b) The Plaintiff is a people smuggler. NO (c) The Plaintiff smuggled Mr Haideri into Australia. NO (d) The Plaintiff threatened to kill Mr Haideri. YES (e) The Plaintiff threatened to abduct Mr Haideri and send him back to Afghanistan. YES (f) The Plaintiff threatened to track down and kill Mr Haideri's wife and children. YES (g) The Plaintiff is an extortionist. YES (h) The Plaintiff has tried to extort $5000 from Mr Haideri. YES

If you answered "yes" to any of questions 4(a) to 4(h), but answered "no" to any of questions 5(a) to 5(h), has the Defendant established that the Plaintiff's reputation was not further harmed by the publication of those imputations in respect of which, in questions 5(a) to 5(h), you answered "no" because of the substantial truth of those imputations in respect of which, in questions 5(a) to 5(h), you answered "yes"? NO 7 By the time of closing addresses, the parties did not dispute the answers that ought to have been given by the jury to Questions 1, 2, 3 and 4 of the above questions. Although the attitude of Fairfax to the identity of the person defamed was initially to deny that the article identified Mr Ahmadi, it eventually conceded the answers to those questions (Questions 1 and 2). The test, as the Questions make clear, is whether at least one person who read the publication identified it as referring to Mr Ahmadi and such identification was reasonable. 8 Each of the parties agreed that the alleged imputations arose and that each was defamatory (Questions 3 and 4). As such, the jury confirmed the approach of the parties. 9 As already stated, the substantive issue was whether Fairfax had proved, on the balance of probabilities, that the imputations were true, and if some only of them were true, then whether Fairfax had established that Mr Ahmadi's reputation was not further harmed by the untrue allegations, because of the allegations that were true. 10 As is clear from the recited answers, the jury found that Fairfax had not proved that Mr Ahmadi was a people smuggler and that he (Mr Ahmadi) had smuggled Mr Haideri into Australia. On the other hand, the jury found that Fairfax had made the following true allegations about Mr Ahmadi:

(a) that he had persecuted Mr Haideri ("the persecution allegation");

(e) that he had threatened to abduct Mr Haideri and send him back to Afghanistan;

(f) that he had threatened to track down and kill Mr Haideri's wife and children;

(h) that he had tried to extort USD$5,000 from Mr Haideri. 11 Further, as is clear from the answer to question 6, and as has already been pointed out, the jury took the view that the imputations that were made, and not proved to be correct (hereinafter "the people-smuggling imputations") gave rise to further harm, notwithstanding the truth, or substantial truth, of those other imputations (hereinafter "the extortion imputations") that Fairfax had proved were true. Evidence 12 The Court must determine the facts upon which any damages claim is to be assessed. In that regard, the Court is able to find such facts as are necessary, independently of the jury, save that the Court is incapable of finding, as a fact, that which would be inconsistent with the verdict of the jury. 13 It is unnecessary for the Court to deal with the evidence and material relating to identity. The plaintiff, Mr Ahmadi, gave evidence in support of his own case and outlined his history of residence and business undertakings. 14 Mr Ahmadi was born in Afghanistan, went to high school in Kabul and completed approximately half of a medical degree. In 1988, he went to Peshawar, Pakistan and in 1991 his application to live in Australia was granted and, since arrival, he has, with short interludes for holidays/business, resided in Australia. In 1993, Mr Ahmadi became an Australian citizen. 15 When he first arrived in Australia, Mr Ahmadi drove taxis and, after a short time, commenced operating a carpet business, from which he expanded into foreign currency exchange and finance (as a mortgage consultant). His clients are predominantly, if not totally, from the Afghan community. 16 According to the evidence of Mr Ahmadi, Mr Ahmadi first met Mr Haideri when the latter entered his shop. According to Mr Ahmadi, he had met Mr Haideri before, in Katesea, Afghanistan, where, according to Mr Ahmadi's evidence, they had grown up in the same area and attended the same school. 17 Importantly, Mr Ahmadi alleged that in the days that he knew Mr Haideri in Afghanistan, he knew him by the name Abdulhay Omary. Mr Ahmadi attested to the fact that he had not seen Mr Haideri for a long time, since approximately 1988, but saw him again when he went back to visit Peshawar in 1995. 18 Mr Ahmadi met Mr Haideri in January 2001 and February 2001, in his shop. On both occasions Mr Haideri gave Mr Ahmadi $500 and asked Mr Ahmadi to transfer the funds to Mr Haideri's family in Afghanistan. 19 On the third occasion that Mr Haideri sought to transfer $500 to Afghanistan, Mr Ahmadi asked him to provide identification (a requirement of AUSTRAC). According to Mr Ahmadi, until that time, he had understood the person with whom he had been dealing was Mr Omary and had called him that. The identification that was provided, on request, was identification which identified the person seeking to transfer the money as Salem Haideri. 20 Mr Ahmadi confronted the person about the identification and accused him of having fake identification. According to Mr Ahmadi, an explanation was given which involved a change of name when the person came (or just before the person came) to Australia due to the fact that, under the name Omary, he had been refused a refugee visa. 21 The money-transfer transaction was not completed and, according to Mr Ahmadi, Mr Haideri threatened Mr Ahmadi, if he were to report the change of name to the authorities. 22 According to Mr Ahmadi, he next met Mr Haideri when he went to the Blacktown Police Station in 2003, approximately 2 years after their argument. Mr Ahmadi had heard from Mr Haideri, in the intervening years, when he requested him to send money for him, which Mr Ahmadi refused to do. At the police station, they met, they argued, and they were separated by police and taken to separate rooms. 23 Mr Ahmadi was summonsed to Blacktown Local Court for common assault, to which he pleaded guilty. Mr Haideri sought and obtained an apprehended violence order against Mr Ahmadi, and vice versa. 24 Mr Ahmadi called the immigration hotline and reported that Mr Haideri had come to Australia under a different name, that his true name was Abdulhay Omary, and that Mr Haideri, under his true name, had an application for refugee/immigration refused on an earlier occasion. 25 Notwithstanding that the burden of proving the truth of the imputations rested on Fairfax, Mr Ahmadi denied the conduct that was described in the article and that gave rise to the imputations earlier described in these reasons. Further, Mr Ahmadi denied that there was any arrangement between him and Mr Haideri (or Mr Haideri's family) under which Mr Ahmadi would be paid USD$5,000, or a further USD$5,000. 26 More importantly, for present purposes, Mr Ahmadi gave evidence of the damage to his reputation and the effect it had had on his acceptance within the Afghan community. In particular, he gave evidence of statements that were made to him, including in some anonymous phone calls, relating to the allegation against him of being a people-smuggler, and the significance of that allegation to members of the Afghan community, some of whom had relatives who had died during people-smuggling activities. 27 An extract of the evidence is appropriate: "One of them said that his family was sank [sic] on the water when they were coming from Indonesia to Australia and he said, 'You are a people smuggler. Don't do those kind of things and your life is in danger and you have already killed lots of people there'.

The second one said that, 'You are a people smuggler, you are doing the wrong things and your life is in danger' and the third one said that, 'You [sic] going to be under the truck within couple of weeks'." (Transcript, page 77, line 21 and following.) 28 The conversations were not in English. The languages in Afghanistan are either a dialect, or a variation of Persian (Farsi). Mr Ahmadi also gave evidence that within a short space of time after the publication in question, he lost about 100 customers, because "they don't trust me anymore". He received significantly fewer invitations to social events and had noticed a change in attitude of people towards him, since the article had been published. Previously, according to Mr Ahmadi, whereas people would volunteer a greeting to him, they now, generally, did not respond when Mr Ahmadi greeted them. There was no substantial cross-examination seeking to test the evidence of Mr Ahmadi on the effect of the publication on his reputation or business. Nor was there any substantial testing of the terms (or existence) of the telephone calls to which reference has been made. At the same time, there is no claim for special damages, or economic loss, associated with the publication of the article. 29 Mr Ahmadi was cross-examined as to alleged admissions, said to have been made to Mr Haideri, in which Mr Ahmadi is alleged to have said that he was "the person who got you out of Afghanistan" and that he wanted his USD$5,000. 30 A significant aspect of the cross-examination was the issue of the content of a number of telephone calls made by Mr Ahmadi to Mr Haideri between November 2002 and February 2003. The telephone records did not disclose calls received, because of the time lapse, but they disclose that Mr Ahmadi had called Mr Haideri 22 times between November 2002 and February 2003. Particular attention was directed at four calls, which occurred late Saturday night/early Sunday morning between 1.00am and 2.15am. This occurred on 10 November 2002. Other calls were also the subject of cross-examination. Mr Ahmadi conceded that all of the calls made by him did not concern, or were not confined to, the proposition that Mr Ahmadi would not transfer money to Afghanistan at Mr Haideri's request, because of the lack of proof of identity. This evidence was inconsistent with answers given to interrogatories by Mr Ahmadi. 31 At one stage, Mr Ahmadi suggested that someone other than him was using his phone. In particular, he suggested that his brother took over the phone. However, the general thrust of the evidence was that, if this occurred, it occurred on one occasion only. It should not be thought from the foregoing that cross-examination on the telephone calls was confined to the four calls on 10 November. It is only that those calls occurred in the early hours of the morning and, for that reason, the incidence of calls, took on a particular significance. Other calls occurred late at night. Mr Ahmadi sought to explain these calls on the basis that Mr Haideri had initiated contact and, in 80% of the cases, Mr Ahmadi was simply returning the call. Mr Ahmadi gave evidence that Mr Haideri was a security guard and often worked through the night. This last aspect was not the subject of contradiction. 32 As earlier stated, there are no records for calls received, because the telephone companies do not keep such records for the length of time necessary to enable them to be available. Nevertheless, the number of calls made by Mr Ahmadi, and the frequency of the calls, seem inconsistent with the proposition that Mr Ahmadi was protesting, notwithstanding the insistence of Mr Haideri, that he would not transfer monies as Mr Haideri was requesting. One would have thought, as a matter of common experience, that in such circumstances, the telephone calls would be less regular and less often, and the return of calls, likewise, would be confined (at regular intervals) to a confirmation that no change in attitude had occurred. 33 Further, the evidence of Mr Ahmadi, in cross-examination, was that the subject matter of the telephone calls extended beyond the subject matter described in the answer to the interrogatory. Of itself, the fact that the subject matter of the telephone call extended beyond that described in the interrogatory does not mean that the interrogatory is false, untrue or inaccurate. However, the combination of issues, and independent material that is available, tends to suggest that Mr Ahmadi was not being truthful about the telephone conversations, the number of them, the content of them and the continuing relationship between Mr Ahmadi and Mr Haideri. 34 I turn then to the evidence of the altercation between Mr Ahmadi and Mr Haideri at Blacktown Police Station. Mr Ahmadi's version of events is that Mr Haideri called Mr Ahmadi and requested that he go to the Police Station (Transcript, page 50, line 47-48). Of itself, the proposition that Mr Haideri wanted Mr Ahmadi to go to the Police Station to sort out the issues between them seems consistent with the proposition that Mr Ahmadi was threatening Mr Haideri and not, as attested by Mr Ahmadi, the reverse. 35 Mr Ahmadi testified that, outside the Police Station, Mr Haideri provoked him, as a consequence of which an altercation occurred. Mr Haideri claimed that Mr Ahmadi attacked him in the Police Station and punched him seven or eight times to the face in order to prevent Mr Haideri from handing the paper and note to the police. It is not explained how Mr Ahmadi would have known of the contents of the paper (given that Mr Haideri says no words were exchanged between them). Nor does Mr Haideri accept that he did anything, in response to these unprovoked attacks by Mr Ahmadi. Mr Haideri testified, almost as unbelievably, that there was no agitation outside the Police Station and that, on arrival at the Police Station, he sought to go directly to the counter and hand a piece of paper with his version of events to the staff. 36 Two police officers were called to give evidence. While neither of them saw all of the events that occurred at the Police Station, their evidence is consistent with the proposition that a verbal disagreement occurred outside the Police Station and continued inside as the protagonist entered. Mr Ahmadi hit Mr Haideri, whose conduct was more consistent with defending himself than with instigating any violence or provoking any attack. 37 Nevertheless, I find that there was an exchange of words between Mr Ahmadi and Mr Haideri and that, as a consequence of that exchange of words, Mr Ahmadi attacked and punched Mr Haideri and Mr Haideri acted in a manner, which, predominantly, was to defend himself from that attack. 38 As to the telephone calls, Mr Haideri testified to the existence of the calls and to the making of threats by Mr Ahmadi, which threats formed the basis of the allegations in the published article, and the extortion imputations contained therein. Those extortion imputations, as defined above, relate to the making of threats referred to in imputations (b), (e), (f), (g) and (h) outlined above. It also includes the allegation that Mr Ahmadi persecuted Mr Haideri. The jury accepted Mr Haideri's evidence in this regard. 39 The evidence in that regard is supported, or corroborated, by independent evidence. Plainly, it is far more likely, given the frequency and number of telephone calls and meetings, and the circumstances of the events at the Police Station, that Mr Ahmadi was pursuing and persecuting Mr Haideri and was making threats of a kind that were intended to render Mr Haideri fearful and to comply with the demands being made upon him. 40 It seems that the jury have accepted Mr Haideri on those issues that relate to the extortion imputations, because of the existence of some independent evidence relating to the persecution of him by telephone and the violence perpetrated against him at the Police Station. That independent evidence renders far more likely the occurrences as recounted by Mr Haideri. 41 The other imputations are in a fundamentally different class. There is no independent evidence supporting, or tending to support, the imputation that Mr Ahmadi was involved in people-smuggling. The only evidence to that effect is the alleged admission by Mr Ahmadi to Mr Haideri. The nature of that admission depends upon the veracity and accuracy of Mr Haideri's testimony as to the conversations, or those parts of the conversations. 42 Indeed, Mr Haideri, on questioning, made it clear that he was unaware, from personal knowledge, that Mr Ahmadi was a people smuggler, or was involved in his own arrival in Australia. Mr Haideri testified that he had no direct knowledge that Mr Ahmadi was a people smuggler; and he took the view only because he believed his uncle (Transcript, page 533, line 10 and following). Further, Mr Haideri was asked the following question and answered it: "Q. Now, the person who made threats to abduct your family and your children was Mr Fazel and not Mr Ahmadi; do you remember I have asked you that before? A. WITNESS: Yeah, by phone my son, my uncle call me but he said maybe this guy's people, the Fazel, this guy's people because same time he is warning me too here, 'You not give the money I kill your children, your family, your everything'." (Transcript, page 534-535.) 43 As a consequence of those answers, there was no evidence (other than the alleged admissions) that Mr Ahmadi was involved in people smuggling or, more particularly, in smuggling Mr Haideri into Australia. The jury did not find that Fairfax had proved the people smuggling imputations. In so doing, the jury has not accepted Mr Haideri's version of the admissions and has not accepted those imputations, because, inter alia, there was no independent evidence available that supported Mr Haideri's version of events. 44 Further, it is clear that Mr Haideri's view as to the involvement of Mr Ahmadi in people smuggling was not only dependent upon Mr Haideri's belief in the truth of what his uncle told him, but in the accuracy of his uncle's analysis of events. It seems, apart from the suggested admissions, that there was no evidence that Mr Ahmadi was involved in people smuggling. 45 The question arises, necessarily or by implication, as to whether that finding is inconsistent with the findings of truth in relation to the extortion imputations. In my view, on the evidence that I accept, and bearing in mind the findings of the jury, there is no inconsistency between the findings of truth on the extortion imputations and the failure to find truth in the people smuggling imputations. 46 However, necessarily, the question arises as to what motive or reason there was for Mr Ahmadi to threaten Mr Haideri. There are two obvious answers to that question. Firstly, money may have been owed to Mr Ahmadi for reasons other than people smuggling. Secondly, Mr Ahmadi, believing that Mr Haideri had lied to the immigration department, sought to extort money for his silence. That last-mentioned motive for the threats, on that analysis, related to money that was not owing to Mr Ahmadi. 47 The evidence before the Court is not consistent with Mr Ahmadi having any capacity, or connections with capacity, to carry out any of the threats that the jury have accepted were made by Mr Ahmadi. In other words, there is no evidence to suggest that Mr Ahmadi had the capacity to abduct Mr Haideri and send him back to Afghanistan; or that he had contacts that would enable Mr Ahmadi to kill either Mr Haideri or Mr Haideri's family in Afghanistan. Nevertheless, it is sufficient for the Court to find that Mr Haideri considered the threats serious, and the Court so finds. 48 There is significant evidence concerning Mr Haideri's name in Afghanistan. As previously stated, Mr Ahmadi claimed that Mr Haideri was known, in Afghanistan, as Abdulhay Omary. Other witnesses testified to the same effect. No witness was called by Fairfax, other than Mr Haideri, who could testify to Mr Haideri's name prior to his arrival in Australia. 49 Of course, whether or not Mr Haideri's name in Afghanistan was Abdulhay Omary is not directly relevant to any of the issues that are before the Court. It is relevant that Mr Ahmadi generally believed that Mr Haideri's name in Afghanistan was Abdulhay Omary. The Court finds that Mr Ahmadi did genuinely believe that to be the case. Further, the Court finds, on the balance of probabilities (and bearing in mind the gravity of the allegations), that Mr Ahmadi made the threats, which the jury have found to be true, in order to extort money from Mr Haideri. That extortion of money was to pay for Mr Ahmadi's silence on the issue of identity and to ensure that Mr Ahmadi placed no impediment in the way of processing Mr Haideri's visa application. 50 Fairfax had available to it witnesses that could have attested, independently of Mr Haideri, to Mr Haideri's name in Afghanistan. Obviously, his wife is in that category, although her independence may not have been complete. Other persons were also in that category and, no doubt, included persons in Afghanistan, who would have been able to give evidence, either while physically in Court, or via video link. The failure to call those witnesses makes the drawing of the inference as to issues of identity easier: see Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. 51 The conclusions as to the substantive issues before the Court, consistent with the findings of the jury, are:

(a) Mr Ahmadi, the plaintiff, made threats, being what I have defined as the extortion threats, being those threats that led to all of the imputations other than the people smuggling imputations;

(b) Mr Ahmadi, who is identified by the publication of Fairfax, is not a people smuggler and was not involved in smuggling Mr Haideri into Australia;

(c) Fairfax, in its publication, imputed that Mr Ahmadi was involved in people smuggling and was involved in smuggling Mr Haideri into Australia;

(d) Mr Ahmadi's threats to, and the persecution of, Mr Haideri were for the purpose of extorting money from Mr Haideri in order to silence Mr Ahmadi about his contention as to Mr Haideri's false identity;

(e) Mr Haideri did not accede to those threats of extortion. Damage to reputation: Evidence 52 As earlier stated, some of the evidence before the Court related to identity, which, by the time of addresses, had ceased to be an issue. The evidence that was probative of the truth of the imputations was discursive and dealt with a range of issues, which were only indirectly relevant to the proceedings. These issues included the allegation relating to the previous identity of Mr Haideri. Nevertheless, there was a deal of evidence relating to the reputation of Mr Ahmadi, with which it is necessary to deal. 53 The undeniable and incontrovertible evidence was that the reputation of Mr Ahmadi, prior to the publication of the offending article, was extremely good. He was a person who was respected within the Afghan community, as an honourable person, given to assisting others, who had a very good and reputable business: see the evidence of Esah Naseema (particularly at Transcript, pages 171-172); Constable Omar Underabi (particularly at Transcript, page 177); Mohammed Esah Barez (particularly at Transcript, page 190); Mohomed Mohinspoor (particularly at Transcript, pages 212-213); Faridon Aman (particularly at Transcript, pages 218-219). 54 As earlier stated, prior to the publication of the article, Mr Ahmadi had enjoyed an excellent reputation. He was described variously as "really great"; "everyone had such respect for him"; "honest and respected within the community"; "very good, popular"; "a happy family man-always alive, honest, trustworthy-good friends with the community"; "honest, respectful and helpful"; "high up in the community". 55 I accept these comments and this evidence as an accurate portrayal of the reputation of Mr Ahmadi prior to the publication of the offending article. It should be noted that, invariably, the reputation to which the witnesses attested was a reputation within the Afghan community. 56 Before dealing with the manner in which that evidence must be treated, having regard to the findings of the jury as to the truth of the vast majority of imputations, it is necessary to analyse the evidence of the damage to Mr Ahmadi of the allegations of people smuggling, as distinct from the other allegations. 57 Mr Ahmadi's evidence of the anonymous phone calls that he received (given, obviously, at a time when he was unaware of the findings of the jury) concentrated on the allegations of people smuggling. That is not to say that the phone calls did not mention the allegations of extortion, or his conduct as an extortionist. 58 Nevertheless, the phone calls in which he spoke, and the conversations to which he referred, referred to him as "a people smuggler". While some of them also referred to the allegations that he had "threatened people", the overall impression and tenor of the content of those phone calls was that Mr Ahmadi was more concerned about the allegation that he was a people smuggler and the comments made to him suggested that those making the comments were, likewise, more concerned as to that particular allegation. 59 It seems that the jury also considered that to be the case. The evidence from other witnesses, and notwithstanding that it mentioned both the people smuggling allegation and the extortion allegation, gave the impression that it was the people smuggling allegation that was seen to be the kernel of the reason that people have shunned Mr Ahmadi. For example, Mr Naseema, when asked whether he had heard members of the Afghan community talking about Mr Ahmadi answered in the affirmative and said: "After reading the article this matter was spread to the community and it appeared to be in the community that he is involved in the people smuggling and that idea came to the minds of people, and that was a surprise to the Afghan community." [Sic] (Transcript, page 173.) 60 Likewise, Constable Underabi, while aware of both aspects of the allegations, referred to the members of the Afghan community referring to Mr Ahmadi as "a people smuggler": see Transcript, page 177. 61 Each of the witnesses to whose evidence the Court has referred made similar comments, to a greater or lesser degree. Even though all or most of the witnesses mentioned both sets of allegations (i.e. extortion and people smuggling), the clear impression of the witnesses was that it was the people smuggling imputation that most affected their view of Mr Ahmadi and/or that was most commonly the matter for comment within the Afghan community. 62 As to the effect of the publication of the article, there is no doubt that Mr Ahmadi's reputation was severely prejudicially affected. Members of the Afghan community lost trust in him; they shunned him; he lost his reputation and his business suffered. Further, the impact on Mr Ahmadi was manifest. He became depressed, somewhat of a recluse, refusing to socialise even on the rare occasions when he was invited. The effect of the true imputations 63 Given the finding that the imputations relating to extortion, persecution and threats were true, significant qualifications must be made to the evidence that was otherwise forthcoming as to Mr Ahmadi's character and reputation. Notwithstanding Mr Ahmadi's reputation prior to the publication as one of high standing and trustworthiness, the Court must assume that the untrue imputations were published after the public, and in particular the Afghan community, were aware of the true imputations. 64 In other words, the Court must approach the issues that are now before it on the basis that the people smuggling imputations were levelled against a person known to be an extortionist, a person who has persecuted others, and a person who has threatened to kill others, including women and children. It is against a person with that reputation that the people smuggling allegation must be measured and its damage calculated. Consideration and conclusion 65 Ordinarily, and almost without exception, a plaintiff is entitled to damages for defamation on account of injury to reputation and injury to feelings: Carson v John Fairfax & Sons Ltd & Slee [1993] HCA 31; (1993) 178 CLR 44 at 60; Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327 at [60]; John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 at 142D - F; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1315]. In Carson, supra, the High Court said: "Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that 'the amount of a verdict is the product of a mixture of inextricable considerations' ((34) Uren v. John Fairfax and Sons Pty. Ltd. (1966) 117 CLR, per Windeyer J at p 150.). The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation." ( Carson , supra, at 60-61, per Mason CJ, Deane, Dawson and Gaudron JJ). 66 The High Court in Rogers, supra, reiterate the foregoing and cite Carson to confirm the approach taken in those proceedings by the Court. Notwithstanding the reference to "vindication" in the foregoing, vindication is not a separate head of damage. And in a case such as this, where the majority of imputations have been proved to be true, no amount should be allowed for the necessity to vindicate Mr Ahmadi. 67 But a person does not lose the right to bring proceedings in defamation, and to receive damages, simply because his reputation is bad or has been damaged. A person with a bad reputation ought not to have his/her character blackened further by the publication of defamatory material: Hobbs v Tinling [1929] 2 KB 1 at 46, per Greer LJ. 68 As the Court has sought to make clear, much of the damage to the reputation of Mr Ahmadi has been caused by the imputation of people smuggling, which imputation has not been proved to be true and, therefore, is not justified. Nevertheless, the degree to which Mr Ahmadi's reputation has been damaged is extremely limited, because his reputation must be at such a low level on account of that which has been proved to be true. 69 Fairfax submits that the Court should award only nominal damages. It submits that nominal damages only should be awarded because of "a practical failure of the plaintiff in these proceedings to vindicate his reputation". It is true that the Court, through the jury verdict, has found that Mr Ahmadi has engaged in conduct of the most dishonest and contemptuous kind. In this area, the Court takes into account all of the evidence adduced concerning Mr Ahmadi's conduct, even that evidence, which sought to prove his involvement in people smuggling. But the Court finds that Mr Ahmadi was not involved in people smuggling and that such an imputation, notwithstanding the conduct in which he has proved to be involved, has further damaged his reputation, and, in his community, significantly so. 70 The foregoing finding is consistent with the verdict of the jury, but would have been, and is, independently found to be the case, regardless of the jury verdict. It seems, on the evidence before the Court, that however poor was the reputation of Mr Ahmadi (or however poor it would have been if the true facts were known), his reputation was damaged further by the imputation that he was involved in people smuggling, which allegation has particular resonance, understandably, in the Afghan community. Family members of the Afghan community have died during the course of people smuggling, and, understandably, there is a direct antipathy to those involved in the process. 71 Nothing in the foregoing should be taken as condoning any activity such as extortion, threats to the safety of persons or their family and/or any such behaviour. And the truth of those allegations, and the consequential diminution in reputation occasioned by the true imputations must be taken into account in arriving at an award of damages. The Court also takes into account that this publication may not have occurred, if Mr Ahmadi were not to have made the threats to Mr Haideri about him and his family, which threats may have motivated Mr Haider to go to the "press". But the damages will not be confined to nominal damages. 72 At this point, any statutory limitation on the award of damages is relatively unimportant and/or irrelevant. Further, at this end of the scale, the amount of any such damages is largely intuitive. I award the plaintiff damages in an amount of $7,500. 73 The Court makes the following orders:

(ii) The defendant shall pay the plaintiff damages in an amount of $7,500;

(iii) The parties have leave to approach, at a time to be fixed, on the question of costs, including any special order as to costs, and on the question of interest, if any. **********

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