Duma v Fairfax Media Publications Pty Limited

Error in the principal judgment 10 In the principal judgment (at [441]) I stated that para 26(f) of the defence was not pressed. 11 Shortly after the publication of the principal judgment, the respondents emailed my chambers to inform me that para 26(f) of the defence had been pressed and that the implications of the settlement in the second proceeding for the assessment of damages fixed in the principal judgment had been addressed in both written and oral submissions. 12 At the time of writing I checked the orders that I had made in the second proceeding, noted the reference to the amount of damages being confidential, and did not recall seeing the figure, which was included in the offer of compromise annexed to Mr Svilans' affidavit. While the orders went on to indicate that there were references to the amount in Mr Svilans' affidavit, I did not notice that particular order at the time and did not read the offer of compromise in which the sum appeared. Consequently, I proceeded on the mistaken belief that I had not been informed of the figure. That misconception was the basis of my statement at [441] of the principal judgment. I erroneously assumed that the point in para 26(f) of the defence was not pressed because I had not been informed of the figure. 13 A review of the parties' written submissions and the transcript confirms that the point was not abandoned.

Can order 2 be varied under the slip rule? 14 I was invited by the respondents to vary order 2 by reducing the amount of the damages awarded to Mr Duma under r 39.05(h) of the Rules, which permits the Court to "vary or set aside a judgment or order after it has been entered if … there is an error arising in a judgment or order from an accidental slip or omission" (the slip rule). 15 The first question, then, is whether order 2 can be varied under the slip rule in the present circumstances. 16 In Flint v Richard Busuttil & Company Pty Ltd (2013) 216 FCR 375 at [26] the Full Court described the purpose of the slip rule in the following way: The purpose of the slip rule is to avoid injustice to litigants (Gould v Vaggelas (1985) 157 CLR 215 at 274-275) by ensuring that the Court's judgment or order reflects its intention at the time the order was made or the judgment was published, or reflects the intention that the Court would have had but for the failure that caused the accidental slip or omission: Symes v Commonwealth (1987) 89 FLR 356 at 357 … 17 In Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303 Mason CJ explained that the jurisdiction is not to be exercised for the purpose of enabling arguments already considered by the Court to be re-agitated or because the party seeking the variation has failed to present an argument "in all its aspects or as well as it might have been put". Rather, his Honour said: What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. 18 It is well established that, in general, a court will not exercise the power conferred by the slip rule unless the party seeking the variation can show that "by accident and without fault on his or her part the order was made without the applicant being heard": Theo v Official Trustee in Bankruptcy [1998] FCA 862; 4 ATR 404 (Black CJ, Sackville and Finn JJ), citing Autodesk at 302. 19 It can often be difficult to distinguish between a mistake or an error which results from an accidental slip or omission and one which results from a deliberate decision: Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 449F (McHugh J). 20 But not in this case. 21 My failure to deal with para 26(f) was based on a false assumption which, in turn, was founded on a regrettable oversight. If the oversight had come to my attention at any time before the delivery of judgment I would immediately have corrected the error and considered the submissions of both parties on this question, in the course of deliberating on the damages to be awarded to Mr Duma in this proceeding. 22 The slip rule has been invoked in similar circumstances. In Patel v Minister for Immigration and Citizenship (No 4) (2012) 208 FCR 128 at [43], for example, Collier J held that it was open to the Court under r 39.05(h) to vary a previous order following revelations that written submissions which had been sent by the appellant to the Court by email (although not filed in accordance with the Rules) were not placed on the Court file or otherwise brought to the judge's attention. 23 Accordingly, I conclude that the Court has the power to vary order 2 under the slip rule.

Should order 2 be varied? 24 Having determined that the slip rule would allow for a variation of order 2, I now turn to the question of whether the power should be exercised and the damages awarded to Mr Duma reduced to take account of the amount he received or agreed to receive in the settlement of the second proceeding.

The scope of s 38(1) 25 Section 38 of the Defamation Act 2005 (NSW) (Defamation Act) (and its analogues in the other States) relevantly provides that: (1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that - … (d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or (e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter. 26 As Basten JA (with whom Gleeson and Payne JJA agreed) observed in Tabbaa v Nine Network Australia Pty Ltd [2019] NSWCA 69 at [74], s 38 "expressly identifies certain categories of evidence as admissible" and "impliedly authorises their use for a specific purpose, namely the mitigation (reduction) of an otherwise appropriate award of damages". His Honour went on to say (at [77]): [I]t may be accepted that with respect to damages already recovered, either by way of an award or a settlement, the primary purpose may be to prevent double recovery. There may, however, be other purposes, including encouraging the combining of claims, where possible, in one proceeding, and encouraging settlement of proceedings. That appears from the fact that even the bringing of proceedings for another publication is to be treated as a factor mitigating the damages to be payable by the defendant. 27 His Honour added (at [78]) that: There is no basis for imposing a constraint to the effect that the judge must allow the recovery of damages for publication of the defamatory matter the subject of the instant proceeding, unless affirmatively satisfied that it could have caused no additional harm to the plaintiff, over and above that for which he has already been compensated. That is not to say that the possibility of additional harm, or indeed the absence of it, is not a relevant consideration; it is merely to say that there can be no mechanical rule as to the application of such considerations. Further, it is clear that the section is not limited to republication of the identical defamatory matter, nor republication by the same defendant. It is sufficient that there has been another publication of matter "having the same meaning or effect" as the defamatory matter. 28 In Lewis v Daily Telegraph Ltd [1964] AC 234 at 261 Lord Reid said of s 12 of the Defamation Act 1952 (UK), which was similar to s 38, that the jury should be directed that: [I]n considering the evidence submitted to them they should consider how far the damage suffered by the plaintiffs can reasonably be attributed solely to the libel with which they are concerned and how far it ought to be regarded as the joint result of the two libels. If they think that some part of the damage is the joint result of the two libels they should bear in mind that the plaintiffs ought not to be compensated twice for the same loss. They can only deal with this matter on very broad lines and they must take it that the other jury will be given a similar direction. They must do the best they can to ensure that the sum which they award will fully compensate the plaintiffs for the damage caused by the libel with which they are concerned, but will not take into account that part of the total damage suffered by the plaintiffs which ought to enter into the other jury's assessment. (Emphasis added.)

The publications the subject of this proceeding 29 The content of each of the February articles was discussed in detail in paras [56]-[206] of the principal judgment. It is unnecessary to repeat that discussion here. 30 I determined that the following imputations were conveyed by the articles (at [208]-[210]): (1) Mr Duma acted corruptly by granting a 10% interest in PRL 21 to Elevala, a company owned and controlled by his close associate, Simon Ketan (in respect of each of the 10 matters complained of); (2) Mr Duma accepted a bribe from Horizon (in respect of each of the 10 matters complained of); (3) Mr Duma conspired with Mr Ketan to use Elevala as a vehicle for the payment of bribes to himself (in respect of the first, second, fourth, sixth, eighth, ninth and tenth matters complained of); and (4) Mr Duma acted corruptly in 2017 in relation to his efforts to move a naval base 10km inland (in respect of the first and second matters complained of).

The publications the subject of the second proceeding 31 The second proceeding concerned two articles published in the AFR, one in print and one on the AFR website, on 14 April 2020 (the April articles). They were written by the same journalists who had written the February articles. 32 The heading of the print article was "Brisbane house link to Horizon PNG probe" on the front page and "Brisbane house linked to PNG probe" on the fourth page. The print edition of the AFR sold 18,583 copies on the day the article was published. 33 On the front page of the print article it was reported that a Brisbane house and three banks were "at the centre of a money laundering probe into a $US10.3 million payment by Horizon Oil to a company linked to a senior minister in Papua New Guinea" and that the funds were "transferred into a shell company controlled by the former personal lawyer of William Duma, PNG's then petroleum minister". 34 In the first column of the fourth page, the statements made on the first page were repeated. The article then stated that Mr Duma was "facing a corruption investigation by authorities in Port Moresby" and the Australian Federal Police were "looking into the matter". 35 The article then stated that three Australian banks had "linked part of the $US10.3 million payment to the purchase of a $1.5 million house in the Brisbane riverside suburb of Indooroopilly" in which Mr Duma was said to have lived with his family while his sons attended a nearby private school. 36 The house was said to have been bought in November 2011 by a company "controlled by Darrell Seeto". Mr Seeto was described as a person "known to be close to the Duma family" and "involved in the same deal which saw Horizon Oil granted a lucrative petroleum licence in PNG by Mr Duma's department". Pictures of Mr Seeto and Mr Duma appear together at the top of the second column accompanied by the caption "[c]lose links". 37 The article also reported that Mr Seeto had advised Kina Petroleum on its ASX listing after it was granted a 20 per cent interest in PRL21, and that the sole shareholder and director of Elevala Energy, which acquired and then sold a 10 per cent stake in PRL21, was Simon Ketan, who was described as having "worked with Mr Duma" and "previously acted as his personal lawyer". 38 The article then reported that in January 2019 Mr Duma appointed Mr Seeto as the deputy chair of the National Development Bank, which provides credit to small and medium-sized businesses in Papua New Guinea. 39 The heading of the version of the article published on the AFR website was "Brisbane riverfront house at centre of PNG corruption probe". The parties agreed that this article was "in similar but not identical terms" as the version which appeared in print. It had been accessed by 22,619 unique visitors in Australia by 29 June 2020 and by 8,702 unique visitors in Papua New Guinea by 16 September 2020. 40 In his statement of claim in the second proceeding Mr Duma pleaded that the April articles conveyed the following imputations: (a) [Mr Duma] as the Minister for Petroleum in PNG acted corruptly by granting a 10% interest in a petroleum licence to Elevala, a company owned and controlled by his associate, Mr Simon Ketan; (b) [Mr Duma] as the Minister for Petroleum in PNG acted corruptly by granting a 20% interest in a petroleum license to Kina Petroleum, a company advised by his associate Mr Darrell Seeto; (c) [Mr Duma] as the Minister for Petroleum in PNG accepted a bribe from Horizon Oil; (d) [Mr Duma] conspired with Mr Simon Ketan and Mr Darrell Seeto to use a shell company known as Elevala as a vehicle for the payment of bribes to [Mr Duma]; (e) [Mr Duma] conspired with Mr Darrell Seeto and Mr Simon Ketan to launder money by purchasing a $1.5million house in Brisbane from the proceeds of a bribe paid by Horizon Oil for the [Mr Duma]'s family to occupy; (f) [Mr Duma] appointed Mr Darrell Seeto as deputy chairman of the National Development Bank as a payoff for Mr Seeto's company purchasing a $1.5million house in Brisbane from the proceeds of a bribe paid by Horizon Oil for [Mr Duma]'s family to occupy. 41 On the second day of the hearing, during his evidence in chief, Mr Duma testified that he was "very upset again" to read the April article published on the AFR website.

The respondents' submissions 42 The respondents' submissions were prepared on 24 August 2021, three days before the respondents served their offer of compromise and approximately a month before the Court made orders bringing the second proceeding to an end. Their submissions on the plea in para 26(f) of their defence was brief and of little assistance. 43 The respondents simply said (citing Dingle v Associated Newspapers Ltd [1961] 2 QB 162 and Lewis at 261): The court must also have regard to s.38(1)(d) of the Act, by which it is admissible in mitigation of damages, that the "plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter". That provision reflects the common law, the rationale being to "avoid an overlapping of damages". (Original emphasis.) 44 During oral closing argument which followed the settlement of the second proceeding, the respondents submitted that the first four imputations alleged in the second proceeding were "substantially identical" to the imputations alleged in this proceeding, and the final two imputations alleged in the second proceeding were merely "consequential imputations". They argued that the highest imputation alleged was that Mr Duma had accepted a bribe and, in substance, that the additional imputations were of a lesser order of gravity. Counsel acknowledged that it was not open to the respondents to submit that the additional imputations would have no effect but, by the same token, the Court would not ignore the settlement sum. 45 Rather, since the Court is required to have regard to the totality of the damage suffered by Mr Duma in fixing a sum for damages, any amount awarded in this proceeding should be "considerably reduce[d]" by reason of the sum of money already received by Mr Duma in consideration for settling the second proceeding.

The applicant's submissions 46 In his written submissions in reply, Mr Duma acknowledged that the respondents were entitled to lead evidence of the terms of the settlement in the second proceeding under either s 38(1)(d) or s 38(1)(e) of the Defamation Act but submitted that the settlement of the second proceeding should have minimal effect on an award of damages in this proceeding. 47 Mr Duma advanced three arguments in support of his contention that the settlement of the second proceeding should not have a significant mitigating effect on the award of damages in this proceeding. 48 First, while Mr Duma accepted that there was "some overlap between the imputations pleaded in [the second proceeding] and those pleaded in [this proceeding]", he contended that: the April article the subject of [the second proceeding] was in very large part about different subject matter, namely the Brisbane house, allegations of money-laundering and suspicious matter reports, and allegations of conspiracy and pay-off involving Mr Seeto. Those topics, and those accusations, were both unique to, and the most prominent features of, the April article and [the second proceeding]. 49 Accordingly, Mr Duma submitted that "it could not be said that the matters complained of in [the second proceeding] had 'the same meaning or effect' as the defamatory matter in [this matter]" and that while the outcome of the second proceeding was "no doubt proper to be taken into account by the Court when awarding damages in [this matter]" it "would not have a significant mitigatory effect on those damages". 50 Mr Duma reiterated this point in oral submissions. He argued that the article published in April 2020 was "overwhelmingly about [a] different and very serious subject matter" than the articles the subject of this proceeding, and concluded that readers of the April 2020 article simply received a "different account of conduct…supposedly involving Mr Duma" than readers of the articles published in February 2020. 51 Second, Mr Duma submitted in oral argument that the amount he received in consideration for settling the second proceeding was not fixed by a judge assessing an appropriate amount of damages in the circumstances, but was an amount calculated by the respondents in light of the likely outcome of that proceeding which he accepted. Mr Duma argued that the amount was thus not necessarily a reflection of the true damage he suffered from the publication, but rather an amount offered to him by the respondents, calculated to induce him to accept settlement in an attempt to protect themselves from adverse cost consequences. 52 Third, in his oral submissions Mr Duma argued that, because the settlement sum in the second proceeding was confidential, he had not been vindicated by the terms of the settlement. Mr Duma contended that vindication in defamation proceedings is achieved "in very large part" by the size of the verdict, and that in circumstances where the size of the award is confidential and the amount payable described merely as "compensation" in the orders of the Court, the element of vindication was "absent". 53 Accordingly, Mr Duma submitted that the damages awarded in the second proceeding "should be no more than a very modest one".

Consideration 54 The sting of the April articles was that the proceeds of the bribe Mr Duma was alleged to have received as a result of his allegedly corrupt dealings with Horizon were channelled into the purchase of a house in Queensland - in other words, he not only conspired with Mr Ketan to receive a bribe but he was also involved in a money-laundering scheme to conceal his wrongdoing and he rewarded Mr Seeto for his role in the scheme. They repeated some, but not all, of the defamatory imputations conveyed by the February articles and added new ones. It is fair to say that, save in relation to the last two of the imputations, they were to the same effect. 55 No evidence was adduced concerning the amount Mr Duma received or agreed to receive. Presumably this was a deliberate decision on the respondents' part because they did not want the amount to be disclosed and did not consider that there was any basis upon which the Court could make a suppression or non-publication order. Mr Svilans' affidavit was forwarded to my chambers by email on 21 September 2021 but it was never filed or read and the respondents did not tender the offer of compromise or call evidence that it had been accepted. 56 Nevertheless, Mr Duma accepted that the amount was an agreed fact and, in the circumstances, should properly be taken into account, although he maintained that that it should have only a modest effect on the award. 57 The parties referred me to four authorities: Gayle v Fairfax Media Publications Pty Ltd (No 2) [2018] NSWSC 1838 (McCallum J) (Gayle); Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 (Wigney J) (Chau 2019); Chau v Australian Broadcasting Corporation (No 3) [2021] FCA 44; 386 ALR 36 (Rares J) (Chau 2021); and Hayson v The Age Company Pty Ltd (No 2) [2020] FCA 361 at [195] (Bromwich J) (Hayson). 58 In Gayle at [44]-[45] McCallum J assessed damages for the same defamation brought against three companies. Her Honour indicated "for transparency" that, had individual claims been brought against each of the newspapers, she would have assessed damages against the first company of $250,000, against the second for $200,000 and against the third for $100,000. But she went on to say that: [I]t is necessary to stand back from the sum of those amounts so as to avoid double or triple compensation, while also bearing in mind that the syndicated publication of the articles by each defendant did increase the scope of publication and cause some separate hurt and harm to Mr Gayle. Taking the holistic approach contended for by the defendants, I consider the appropriate total award to be an amount of $300,000. 59 The Court of Appeal declined to interfere with the assessment, noting that the grounds of appeal sought to challenge "an essentially impressionistic evaluation of damages compensating for the defamatory publication": Fairfax Media Publications Pty Ltd v Gayle (2019) 100 NSWLR 155 at [161]-[162]. 60 In Chau 2019 Wigney J considered that an appropriate award of damages for a defamatory publication in the Sydney Morning Herald would be $250,000 but that the damages should be reduced by $25,000 to reflect the fact that Dr Chau had already received $65,000 in compensation for defamatory imputations published by the Daily Telegraph. His Honour said at [359]: The defamatory imputations in those proceedings were similar in many respects to the imputations in this proceeding. It may be accepted that a significant portion of that settlement sum represented or comprised compensation for the hurt to Dr Chau's feelings and the damage to his reputation. It may equally be inferred, however, that the Daily Telegraph and the online version of the Herald are quite different publications with different readerships in terms of demographics. As s 38(1)(e) is to be applied in a broad way, it would appear to be relevant to have regard to the different circulation and readership of the two publications in assessing the extent to which Dr Chau has already received compensation for the same hurt or damage. 61 In Chau 2021 Rares J assessed damages of $550,000 in respect of a defamatory television program which was broadcast nationally and made available on the internet, but considered that the sum should be reduced by $35,000 by reason of the damages awarded to Dr Chau for similar defamatory publications in Chau 2019 and the $65,000 in compensation paid to Dr Chau by the Daily Telegraph. His Honour said at [163]: I consider that I should make a modest discount from the amount I would otherwise have awarded by force of s 38(1)(c) and (d) based on Wigney J's verdict and the earlier settlement in respect of the 2015 articles. Those sums related to previous publications to the effect of imputations 5 and 6. Wigney J's verdict of $225,000 (or $280,000 including pre-judgment interest) took account of the settlement of $65,000 and the publication of a prompt apology for the 2015 articles. Dr Chau accepted that a substantial proportion of the 12,000 persons who read the Fairfax website article also viewed the program and that some of the damages that Wigney J awarded had provided some relief for Dr Chau in respect of those viewers. 62 His Honour noted that there were aggravating circumstances in that the broadcast and ongoing online publication were a "partial reinforcement of the earlier defamations" which "rubbed fresh salt into the wound beginning 18 months after the wound was opened by the prior publications" (at [164]) and that the publishers "kept the program available online without any attempt to alert users of the ABC website of the apology [published as part of the settlement with the Daily Telegraph] or later verdict [in Chau 2019]" (at [165]). 63 In Hayson, Bromwich J considered that damages of $60,000 should be awarded for a defamatory publication in The Age but reduced that sum by $10,000 having regard to a confidential sum received by Mr Hayson in settlement of a defamation proceeding he brought against another media company. His Honour said at [195]: The final assessment of damages requires a synthesis of the entire evaluative process so that the competing considerations are able to be weighed and balanced to arrive at the final numerical result. The obligation imposed by s 34 of the Defamation Act to ensure that the amount of damages bears an appropriate and rational relationship between the harm sustained by Mr Hayson is a central consideration. The final step of arriving at a dollar amount therefore has an inevitably instinctive quality in weighing up the competing considerations. This does not readily lend itself to a simple process of addition and subtraction. Weighing up all the conclusions I have reached, I have concluded that an appropriate award of damages in all the circumstances is $50,000. This sum is arrived at after deducting $10,000 for the settlement achieved in the proceedings brought against Nationwide News Pty Ltd, in accordance with s 38(c) of the Defamation Act. 64 The process of assessing damages for non-economic loss in defamation is "essentially a matter of impression and not addition": Cassell & Co Ltd v Broome [1972] AC 1027 at 1072 (Lord Hailsham LC). References to amounts awarded in other cases or to the extent to which an award is adjusted to take into account receipt of compensation for other defamatory publications of the same kind can only be of limited utility. 65 It seems to me that the following matters bear on the adjustment that needs to be made to avoid double compensation in the present case. 66 First, as I observed at [434] of the principal judgment, an award of damages in defamation for non-economic loss serves three overlapping purposes: consolation for the personal distress and hurt caused to the applicant by the publication; reparation for the harm done to the applicant's personal and professional reputation; and vindication. I also observed, relying on Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60-61 that, at the very least, the sum awarded must be the minimum necessary to signal to the public the vindication of the applicant's reputation. 67 Since the settlement of the second proceeding did not include an apology and the amount of compensation to be paid was concealed at the respondents' request (confidentiality being a condition of the offer of compromise), it is difficult to see how the receipt of the compensation (or the agreement to receive it) could mitigate damages for harm to Mr Duma's reputation or operate as vindication, even if it mollified his feelings. In these circumstances, vindication could only be achieved by the making of the award in this proceeding. In any event, Mr Duma's reputation was no doubt gravely injured by the February articles. Moreover, the evidence indicated that the hurt he suffered from the allegations of bribery and corruption was more profound with the publication of the February articles. The April articles merely served to rub salt into the wound. 68 Second, the onus of proving mitigation rests with the respondents and the respondents did not require Mr Duma to be recalled so that they could cross-examine him on the effect, if any, that the settlement sum had on his injured feelings or personal distress. That said, I accept that the settlement must have had some salutary effect on his feelings. Nonetheless, by pressing on with this proceeding and by the manner in which they conducted it, the respondents reopened the wound, in all likelihood significantly reducing, if not eliminating, the ameliorating effect of the settlement of the second proceeding. 69 Taking all these matters into account, I propose to vary the amount awarded in damages by substituting $465,000 for $545,000.

Costs 70 In the principal judgment I ordered that the respondents pay Mr Duma's costs but reserved the question of the basis upon which those costs were to be paid. The orders included a timetable for submissions. In the meantime, the parties came to an agreement. I will make orders reflecting that agreement. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann.