Nguyen v Nguyen & Vu Publishers Pty Ltd and Van Thang Nguyen and Thien Huu Nguyen - [2006] NSWSC 550 - NSWSC 2006 case summary — Zoe

NSWNSWSC

Nguyen v Nguyen & Vu Publishers Pty Ltd and Van Thang Nguyen and Thien Huu Nguyen

[2006] NSWSC 550

Supreme Court of NSW|2006-06-23|Before: Patten AJ, Sperling J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2006-06-23

Before

Patten AJ, Sperling J

Source

Original judgment source is linked above.

Judgment (329 paragraphs)

[1]

INTRODUCTION: 1 The Plaintiff sues in respect of imputations arising out of articles published in two editions of the newspaper Tivi Tuan San. The articles in the Vietnamese language were respectively published on 17 April 2002 and 5 June 2002. Hereafter I will respectively refer to them as the first article and the second article. Collectively, they will be "the articles". 2 It was alleged, and admitted, on the pleadings that, at the relevant time, the First Defendant was the publisher of Tivi Tuan San, the Second Defendant was its editor and the Third Defendant was the author of the articles. English translations of the articles as attached to the Statement of Claim are annexed to this judgment. Although the translations were denied on the pleadings, the parties, as I understand it, were substantially in agreement that they are broadly accurate and no evidence was adduced on the subject. It will be observed that neither article identifies the Plaintiff by name, but it seemed to be common ground that the expression "Cu Bip", which was untranslated, means "Cheating Bachelor". 3 In their answers to interrogatories the Defendants stated that about 6,800 copies were printed of the newspapers containing the articles. In each case, about 4,000 copies were sold. The issue of the newspaper published on 17 April 2002 was distributed NSW 1,120 copies, Victoria 5,235 and Queensland 240 copies. The edition of 5 June was distributed slightly more widely, namely, NSW 1040 copies, Victoria 5330 copies, Queensland 240 copies, Western Australia, 30 copies and South Australia 160 copies. 4 At a trial presided over by Sperling J in December 2004, pursuant to s7A of the Defamation Act 1974 (the 1974 Act), a jury found that the first article gave rise to the following imputations defamatory of the Plaintiff, the paragraphs in parenthesis, corresponding to numbered paragraphs in the translation: "1. The Plaintiff is a fraudster (paragraphs 2,5 and 6) 2. The Plaintiff bragged that he had a Bachelor Degree when his real level of education is three levels lower than Bachelor (6).

[4]

In respect of the second article the contextual imputations asserted were: 2. The Plaintiff is a plagiarist. 3. The Plaintiff misused Ly Tong's name for his own benefit. 4. The Plaintiff is the worst kind of fraudster. 8 Lengthy particulars of truth were provided and much of the trial was devoted to the issues raised by those particulars. I will need to return to them in some detail. 9 The Plaintiff's reply to the defences of qualified privilege and qualified protection pleaded that the Defendants were actuated by express malice, such malice being the subject of some 16 particulars. In relation to the defence of comment, the Plaintiff pleaded that the Defendants did not have an honest belief in the truth of the comment relying, inter alia, on the particulars of express malice. The Plaintiff's Evidence: 10 Before coming to a consideration of the issues which need to be determined, it is appropriate that I make reference to the evidence of the Plaintiff. In chief, he told his counsel, Mr Evatt, who appeared with Mr Rollinson, that he was born on 12 September 1939 in Vietnam and is now 66 years of age. He said that he resides at Allendale Heights in Melbourne and Cabramatta in Sydney. In his early years he was raised in Vietnam by his grandmother, as his parents mainly lived in France where his father was a teacher. He said that both his parents were arrested by the Vietcong and presumably killed while he was still a child. 11 His secondary education commenced at a school in Hue but continued at Hung Dao School in Dalat. At the end of Year 12 of High School, he received a certificate known as Baccalaureate 2 and entered military officers' training school from which he graduated after 12 months, as a junior lieutenant. The army he joined was the National Army of South Vietnam then in conflict with the Communist Army of North Vietnam. After a period of 2 years of military service, he said that he was discharged due to injury. He then obtained admission to the University of Hue in the Faculty of Pedagogy, with a view to acquiring teaching qualifications. 12 His evidence was that the usual length of a university degree course was 4 years but in his case because of military service he was entitled to complete it in 3 years. He said that he graduated from the university in 1965 with a degree in mathematics or majoring in mathematics but, prior to graduation, had purchased an interest in and commenced teaching at a private school called Thien Binh. After graduation not only was he owner of, and teacher of mathematics at Thien Binh but also became the principal. The school was confiscated in 1975 when the Vietcong overran South Vietnam. 13 In addition to his involvement with Thien Binh school, the Plaintiff said that in 1969 he became registrar of a much bigger high school, Hung Dao, located about a kilometre away of which he became part-owner with the principal, Mr Nguyen Ngoc Minh. This situation continued, according to the Plaintiff, until 1973 when Mr Minh resigned and the Plaintiff purchased his ownership rights and took his place as principal of Hung Dao. At the same time he resigned his position as principal of the smaller school. As I understand the Plaintiff's evidence, he continued as owner and principal of Hung Dao High School and teacher of mathematics to pupil in Years 10 and 11, until it too was confiscated by the Communists in 1975. 14 After his schools were confiscated, the Plaintiff said that he fled to the countryside and for the next two and a half to three years, sought to hide from the Communists. In this period, he did such farm and other work as he could find to support his family. He had previously married Ha Thi Huong who bore him 4 children. In 1979 he was able to migrate with his family to Australia, but he and his wife were divorced 5 years later. His children, who all continue to live in Australia, are respectively aged 39, 36, 34 and 31. He told Mr Evatt that Ha Thi Huong was his first and only wife. 15 In Australia, the Plaintiff worked in a building material factory for about 2 years. He then went into business on his own account, establishing both a restaurant and a construction business. In 1987 he acquired the business which had, since 1980, published the Vietnamese language newspaper, The Bell of Saigon which, he said, was the first Vietnamese language newspaper established in Australia, being published weekly in Sydney and circulated nationally. It was firmly anti-communist but otherwise published articles of general interest to the Vietnamese community. 16 He continued to publish The Bell of Saigon until about 1996 when it ceased publication for several years. Publication resumed in 2002 but continued only until 2004 since when the newspaper has been closed. He claims that the closure resulted from the drying up of advertising following the publication of the articles. Although the Plaintiff does not claim economic loss, he relies on this circumstance as a factor contributing to his hurt feelings. 17 In 1990, the Plaintiff published under his authorship, a book written in Vietnamese entitled The True Face of Ho Chi Minh. This book, exhibit A, had a red cover and was known throughout the trial as the "red book", to distinguish it from the second edition of the book, published in 2000 which had a white cover and was conveniently known as the "white book". I will hereafter refer to them in the same way 18 It was the Defendants' case that both the red book and the white book were plagiarised by the Plaintiff from other publications and much of the trial was devoted to this issue. It is convenient to set out passages relating to the subject from the evidence in chief of the Plaintiff: Q. In 1990 you published Exhibit 1 (sic exhibit A), the red book, I think it is called "The True Face of Ho Chi Minh"? A. Yes.

[20]

WITNESS: The text could be similar but you could find similar texts in so many books on the same subjects. But this is about the spirit of the Vietnamese fighting the French and, as I said before, that I used excerpts and references to other books forward to enrich the spirit of the Vietnamese fighting the colonialists and fighting the communists, so that was the ideas of these two pages." 20 The Plaintiff gave a similar response to Mr Evatt in relation to the book 6, exhibit 3, Viet-Su Tanbien: "Q. The defendant alleges that pages 21, 22 and following pages are similar to pages 57, 58 and following pages of the white book, what do you say about that? You will have to look at pages 21 and 22 of that book and turn to the white book, 57 and 58. A. As I said earlier, this is a chronicle of historic events in our history and these events are mentioned not only in this book, these books, but also in the educational text books." 21 Later, in the examination, after making reference to 4 books, exhibits 5, 6, 7 and 8 - tu Thu'c Dan den Cong Sa'n, Mot Ngoi Truong Khac, Viet-Su Toan-Thu, and Tram Hoa, there was the following question and answer: "Q. As I understand it, correct me if I am wrong, do you concede that you used passages from those four books in your book? A. Yes. " 22 Upon the subject of whether the Plaintiff is entitled to be addressed by the honorific "Professor", he told Mr Evatt that in Vietnam, at least at the time he was teaching, high school teachers were called, and entitled to be referred to as Giao Su which means Professor. He continued to use that title when he emigrated to Australia and said that he was addressed in that way by members of the Vietnamese community in Australia. 23 The Plaintiff said that the publication of the first article was made known to him by friends, one of whom sent it to him. He described his reaction, "I was enraged. I was extremely upset and I was so angry that my blood all went to my head". Asked why he experienced these emotions, he said, "Because there is so much fabrication and lies and someone put all this fabrication and lies to throw mud on me, I have not done anything which I have felt is wrong in this society". Later, he added, "I just felt humiliated. I felt so shameful. I felt so bad and it is beyond my words to say how enraged I was". He said that in the context of the whole article the expression "Cu Bip" could only refer to himself. 24 At the time of the publication of the first article, the Plaintiff was scheduled to speak at a political forum on 30 April 2002 with two other speakers. Denunciation of communists and communism was the subject of the forum which had been advertised in the media naming him as a speaker and describing him by the title, Professor. 25 Asked about the reference in the first article to his education and qualifications, there was this exchange with Mr Evatt: "Q. At the end of paragraph 6 there is reference to the blatant fraudster professor bragging that he had a bachelor's degree when in fact his education level was three levels below the level of bachelor, is that true? Is it true that you were not a bachelor and that your highest education level was in fact three levels below that of bachelor? A. I couldn't have bragged about my qualification, whether is bachelor or whatever it was, had I not obtained a bachelor degree. How could I be a teacher and a professional in the system of the Republic of Vietnam for all those years?

[23]

Q. Have you ever bragged about that degree, being a bachelor -- A. No, never." 26 The Plaintiff told Mr Evatt that he took other parts of the article to mean that he was not a true fighter against Communism and only pretended to be one and that readers were being exhorted not to listen to him because his words would be valueless. He said that many people telephoned him or spoke to him in person about the article but he agreed that they seemed, at least for the most part, to accept that the defamatory imputations were false. Altogether, he said that he received "hundreds" of phone calls from all states of Australia from persons of Vietnamese origin. 27 The second article came to the Plaintiff's knowledge, according to his testimony, the day after publication when people telephoned him about it. He identified one caller, Mr Ho Cong Lo, who said that the article "contained allegations and false assessments of your goodwill activity". 28 Following this conversation, he took steps to read the article which he said was the subject of many telephone conversations - "I couldn't say exactly how many, but I remember in the - within 2 days coinciding with this article, my home phone and my mobile phone was ringing continuously, non-stop because people phoning me, talking to me about it". Later in his evidence, he said that whether the phone calls were supportive or otherwise, "I just felt so upset and devastated". 29 The Plaintiff said to Mr Evatt that he was an admirer and supporter of Mr Ly Tong, whom he regarded as a hero in the fight against communism, but was at the time imprisoned in Thailand. He denied that in any way he used his support of Mr Ly Tong for financial benefit. He asserted that there was no restaurant conversation as alleged and that the article was a complete fabrication. 30 He testified that 4,000 copies of the red book were printed at publication and that by the year 2000, thirty copies remained, the balance having been sold or given away. Many copies, he said, were given to anti-communists throughout the world. When the white book, being a reprint of the red book, was published about 2,500 copies were printed. He said that he continued to give away copies to interested persons but he also sold copies at $40 each. In order to assist a body called the Committee for the Spirit of Ly Tong, the Plaintiff said that he gave it 500 copies and received "not a single dollar" from the disposal of those books. He said that when he read passages in the second article suggesting that he had received financial benefit from his donation, he was, "absolutely enraged". 31 For a number of years the Plaintiff was president of the Vietnamese Newspaper Association of Victoria. He was also for 2 years, president of the Vietnamese Lions Club and for 4 years its Treasurer. He was a founder of the Vietnamese Language School, formed to teach the Vietnamese language to children in Victoria and he was the publisher of two textbooks for Vietnamese speaking children. He said that his services were regularly in demand as a speaker at anti-communist forums in various states of Australia. He was an advisor to the Victorian Section of the Vietnamese Veterans Association in Australia and he was the author of an article published in the journal of that Association. 32 In respect of Mr Ly Tong, he said he was on the Committee supporting him and, indeed, said he "was one of the most active members" of that committee. He was involved in a number of other charitable and public activities of the Vietnamese community. 33 He said that the number of invitations for him to speak at forums has dropped since the articles were published and he perceives that the respect in which he was held by friends and associates has diminished. He said that, for instance, some people who before would greet him and shake hands when he approached would now appear to step back. All this, he said, made him, "very upset and very very sad". He also said that it upset him that the newspaper Tivi Tuan San did not apologise to him and that he has been worried and concerned about the litigation. Prior to publication, he said no one asked him to comment about the allegations in the articles. He said that the allegations of bigamy and bribery made by the Defendant in the course of the litigation were false and upsetting. 34 Mr McHugh, who appeared for the Defendants with Mr Potter, made it clear that the Plaintiff's credit is very much in issue and cross-examined him in great detail and at considerable length. The topics upon which the Plaintiff was challenged included the occasions on which he first read the articles; the number of people who spoke to him about them; the allegation that his books were plagiarised; his claim that he held a Bachelor Degree from a university; the authenticity of the document he claimed to be a copy of his interim university graduation certificate; his claim to have been a high school teacher and principal in Vietnam; his involvement with the committee supporting Mr Ly Tong, his offer to donate copies of his book in support of Mr Ly Tong; the allegation that he was a bigamist; and the allegation that in Vietnam he engaged in bribery and other corrupt conduct. 35 Much of the cross-examination was, in my opinion, extremely effective and cast grave doubts upon the credibility of the Plaintiff in a number of aspects. As it seemed to me, on many occasions the Plaintiff was evasive and prone to exaggeration. Some of his evidence contained contradictions and inconsistencies to the extent of being inherently implausible. 36 This is not a case, however, where I would reject the Plaintiff's evidence in totality, but it requires, in my view, careful scrutiny where controversial and not independently supported. I will need to return to the cross-examination in greater detail when considering some of the issues raised for determination.

[24]

Questions of Truth: 37 A good part of the hearing was devoted to the Defendants' attempt to prove the substantial truth of the Plaintiff's imputations and the contextual imputations. The particular issues so litigated were identified in Mr McHugh's written submissions: (a) That Ex 11, which the plaintiff contends is a copy of his degree certificate from the University of Hue, is a fake document. Furthermore, that Ex 11, or the document from which it was copied, was fraudulently constructed or obtained by the plaintiff in order that he might hold himself out as a person with a bachelor's degree. (b) That the plaintiff never graduated from any university and does not hold a bachelor's degree, and that his repeatedly holding himself out as having such a degree is not merely a false boast, but a fraud on the whole Vietnamese community in Australia. (c) That the plaintiff took the literary works of other published authors and used those works (which included photographs as well as written text) in his own publications without permission from those authors or their publishers and without acknowledgement of the source of those materials; and that the plaintiff is thereby a plagiarist and a literary fraud. (d) That the plaintiff had no right to hold himself out, as he did and does, as a teacher or a principal of a high school in Vietnam or to use the title "giao su" (Professor), as those positions and that title required the qualification of a bachelor's degree. (e) That the plaintiff made an offer to the NSW Committee for Promoting the Spirit of Ly Tong to donate half the proceeds of his book if the books were sold at fundraising events for $40 each, thereby using the name of Ly Tong to benefit himself. (f) That the plaintiff misled readers of his publication 'The Bell of Saigon' into believing that it was the largest circulation Vietnamese newspaper in Australia, while knowing that it was not. (g) That the plaintiff participated in a fraudulent scheme to provide fake high school certificates to school students in Vietnam between 1973 and 1974. (h) That the plaintiff committed the act of bigamy by marrying Ha Thi Huong in 1966 when he was already married to Mai Thi Huong. Furthermore, that this act was a fraud on Ha Thi Huong, her family and the community." 38 It is convenient to regard Mr Mc Hugh's distillation of the issues as a guide to my consideration of the evidence as I agree with his submission that conclusions upon the issues, adverse to the Plaintiff, would, in turn, lead to findings that the imputations and contextual imputations were substantially true. The Plaintiff Falsely Boasted of Holding a University Degree: 39 The above heading encompasses issues (a) and (b) identified by Mr McHugh. 40 Admitted into evidence as Ex 11 was a document in the Vietnamese language, which the Plaintiff identified as a copy of a provisional degree given to him following his graduation in 1965 from the University of Hue. The document which became Ex 12 on the letterhead of the Bank of NSW purports to contain a translation of Ex11 which the Plaintiff said was made in 1981. The document was set out as follows: (Bank of NSW Logo in colour) Bank of New South Wales

[29]

45 Moreover, other pieces of evidence bear upon the question. The first is an apparently official certificate and translation issued by the Qualification Assessment Unit of the Office of Education and Training, The Peoples Committee, Thua Thien Hue Province, Socialist Republic of Vietnam. The certificate dated 22 march 2005 addressed to solicitors in Ho Chi Minh City, Ex 14 relevantly provided: "The Qualification Assessment Unit of Thua Thien Hue Province (established in accordance to the decision number 2336 QD-UB on 19/07/2004 from the People's Committee of TT Hue) received the application for qualification assessment from the Solicitor Office on the 10/01/2005 and advice from Hue University of Education. Having considered the relevant files to verify graduation results of the University of Education in 1965, the provincial Qualification Assessment Unit is satisfied that: 1. The graduation examination for the year 1965 was held on 18/05/1965. The Dean of Hue University of Education signed the graduation certificate for this year's student. Doctor of Physic Tri Huu Nguyen (1963-1965) ………………………………. 2. Mr Thuyen Nguyen, date of birth: 12/09/1939 was not on the list of graduates for the mathematics program on 18/05/1965. …………………………………. For The Qualification Assessment Unit Head of Examination Office Signed and Sealed Ban Xuan Le" 46 The next piece of evidence is the report of Handwriting and Questioned Document Examiner, Mr Paul Westwood, to the effect that Ex 12, which the Plaintiff testified was an original document was in fact the product of a colour photocopier. Mr Westwood was not required for cross-examination and I accept both his qualifications and his opinion. 47 There is then the evidence of Mr Hoang Van Dinh (to whom I will make further reference later in these reasons) and to apparently official documents identified by him which list public school placements of persons who graduated from the School of Pedagogy at the University of Hue in 1965. On the face of it, although the evidence, like much of the evidence in this case, is not entirely satisfactory, one would have expected the name of the Plaintiff, if he had in truth graduated in 1965, to appear on the list and it does not. This is because a number of witnesses said that a graduate of the School of Pedagogy was required by law to teach in the public school system for a number of years. The Plaintiff conceded that he did not do so. 48 Although the evidence of Mr Westwood that Ex 12 is a photocopy and not an original document may not do more than reflect upon the credibility of the Plaintiff, the other evidence, in my opinion, overwhelmingly establishes that Ex 11 the document of which Ex 12 purports to be a copy, is a forgery. As the Plaintiff must have been aware of the forgery and proffers no explanation it must, I think, be accepted, as Ex 14 states that the Plaintiff did not graduate from Hue University in 1965. The Plaintiff does not himself suggest that he graduated from any other university or at any other time, and I conclude therefore that he is not a university graduate and does not hold a bachelor degree. 49 There is no doubt that in Australia the Plaintiff has continued to claim or boast that he holds a university degree - so much at least appears from his answers to interrogatories 16-20, verified on 26 August 2005: "16. Have you ever studied at or attended University? If so, what was the name of each such University? By reference to each University: (zz) During what year or years did you attend? Faculty of Science, Saigon University, First year - 1958-1958 academic year. The University of Hue, Faculty of Teacher Training academic year 1962-1963; 1963-1964;1964-1965. (aaa) What course did you study? Degree of Bachelor of Teacher Training major in Mathematics. (bbb) What faculty did you attend? Faculty of Teacher Training (ccc) On what date did you graduate? In 1965. (ddd) What qualification or qualifications did you obtain? Degree of Bachelor of Teacher Training major in Mathematic. 17. Have you ever claimed to have been a student at the University of Hue in Vietnam? If so how, when, where and to whom did you make those claims? To most of people I know since I arrived in Australia in 1979 as a political refugee. 18. Have you ever claimed to have graduated from a University? If so, how, when, where and to whom did you make such claim: To most of people I know since I arrived in Australia in 1979 as a political refugee. 19. Do you hold a Bachelor Degree? If so,

[30]

(eee) What was the name of the institution from which you obtained that degree? University of Hue. (fff) During what years did you study to obtain that degree? Academic year 1962- 1963; 1963-1964; 1964-1965. (ggg) In what subject or subjects did you obtain that degree? Several Variable Calculus; Mathematical Methods for Differential Equations, Linear Algebra; Probability & Statistics; Algebraic Techniques in Number Theory; History of Mathematics, Differential Geometry. (hhh) When did you obtain that degree? In 1965. (iii) Have you ever been given the original of that degree? If so where is that document as at the date of answering these interrogatories? Yes, I misplaced my original copy since early 1980. (jjj) To the best of your knowledge, is that degree recognised in Australia as a "degree" in accordance with Australian standards of education? Yes. 20. Have you ever claimed to hold a Bachelor degree? If so, how, when, where and to whom did you make such claim? Most of the members of the Vietnamese community I know. 50 Although in cross-examination the Plaintiff denied to Mr McHugh that he "bragged" about his university degree and denied that he deceived anybody, he claimed that his answers to interrogatories were true. The fact that the Plaintiff held himself out as the holder of a Bachelor Degree was undoubtedly, in my opinion, a false claim and dishonourable. I would, however, stop short of categorising it as fraudulent, or as Mr McHugh put it "a fraud on the whole Vietnamese community in Australia". To my mind, the concept of fraud in its most usual meaning connotes the seeking or obtaining of some unfair or dishonest advantage, see Macquarie Dictionary Third Edition. There is, in my opinion, no evidence that the Plaintiff, whilst in Australia, sought or gained any benefit other than, perhaps, one of enhanced status by holding himself out as holding a Bachelor Degree. 51 It is, I think, appropriate to add that, although what I regard as the Plaintiff's deliberate untruths on the subject of his university degree were inexcusable, it is not difficult to have some sympathy for the circumstances in which he found himself in Vietnam in 1975. Having to escape the country as best he could, it is not entirely surprising that he sought to establish credibility by the creation of documents which stretched the truth somewhat. Although I am not persuaded that he graduated from the University of Hue, it is, I think, probable (notwithstanding the evidence of Mr Hoang Van Dinh, which I accept, that he was a student in the Faculty of Pedagogy in the University of Hue at the same time as the Plaintiff yet cannot remember him), that he attended that university, very possibly for the period of 3 years mentioned in his testimony. The Plaintiff was neither a teacher in, nor the principal of a High School in Vietnam? 52 As I have already indicated, the Plaintiff claims that after leaving University he owned, was principal of, and taught at Thien Binh Private School. He also subsequently owned, taught at, and became principal of Hung Dao Private High School. 53 His own evidence was that the law of Vietnam required a university degree in science or arts as a prerequisite to becoming the principal of a private school. His evidence was, to my mind, somewhat equivocal as to the requirements of the law in relation to teaching at a private school. He testified that he commenced teaching before graduation adding, "You could do the teaching where you have got certificates from University". The precise meaning of this was not pursued either by Mr Evatt or Mr McHugh. 54 Professor Nguyen Vinh gave evidence on the subject in the Plaintiff's case. He was born in Vietnam in 1942 but has for many years resided in Finland where he is a schoolteacher. As such, he claims to be entitled to the honorific, 'Professor'. He first met the Plaintiff as a small child living in a neighbouring village. Their secondary and tertiary education took different paths but they met again at Hung Dao High School in 1972 where he taught mathematics on a part time basis, 8 hours per week until early 1975. 55 He said that the Plaintiff, at the time, was a teacher of mathematics to Year 12 and also principal of the school, having assumed that position in 1972 following the resignation of Professor Nguyen Minh. According to the witness, it was usual to address high school teachers as "Professor". He claimed that the law required high school teachers and principals to hold a university degree. 56 In cross-examination Mr Mc Hugh broached the subject of an obligation to teach in public schools after graduation from the Faculty of Pedagogy at a Vietnamese University in 1965. There was this not altogether conclusive exchange: "Q. Once somebody graduated from the faculty of pedagogy, the student was obliged to take up employment in a public school, do you agree? A. Yes.

[37]

57 Professor Vinh denied that Professor Minh, the previous principal, closed down the Hung Dao School when he resigned. 58 There were further witnesses on the subject called in the Plaintiff's case. One was Ms Minh Luong. She graduated from the University of Hue in 1973 as a Bachelor of Arts, majoring in French. She then, according to her evidence, obtained employment at Hung Dao School where she said the Plaintiff was principal and a teacher of mathematics. She continued in the position until the Communists came in 1975. Mrs Luong testified to the effect that a Bachelor Degree was a prerequisite to teaching in a High School but she herself said that she started teaching before graduation, "Well because I wanted to gain experience and then also to make some money, to earn some money". 59 Ms Luong came to Australia in 1975 and subsequently renewed her acquaintanceship with the Plaintiff. She has remained on friendly terms with him and gave evidence as to the effect upon him of the publication of the articles. In cross-examination, she restated her belief that it was necessary to have a Bachelor Degree to teach, but was uncertain as to the extent a school principal could abrogate this requirement. 60 Ms Luong said that she always referred to the Plaintiff as 'Professor', but agreed with Mr McHugh that in an article written by her in Vietnamese and published in the newspaper Tuan Tao Tivi, she referred to the Plaintiff several time and on all but one of them used the honorific, "Ong" meaning "Mr" as opposed to "Giao Su", meaning "Professor". She also agreed with Mr McHugh that in the s7A trial in this matter, she gave evidence to the effect that she only taught at Hung Dao School from 1972 until 1973. She said that since the trial she has remembered that she taught at the school from 1973 to 1975. She said that by the time she went to the school, Nguyen Ngoc Minh was no longer involved with it. 61 Another witness in the Plaintiff's case, Ms Nguyen Psuong testified to being at Hung Dao School in Hue in 1973 and 1974 as a pupil in Years 9 and 10. She said that the Plaintiff, whom she referred to as Professor Nguyen Thuyen, was the principal and also taught mathematics. 62 On this aspect of the case, the Defendants also relied on the testimony of Mr Hoang Van Dinh, referred to earlier. As I have indicated, the documents he produced, established that the Plaintiff's name did not appear on a list of public school placements for those who graduated from the Faculty of Pedagogy at Hue University in 1965. As I have also indicated, this evidence does support the contention that the Plaintiff did not graduate from the University. It is, however, I think, at best, equivocal as to whether the Plaintiff, whom Mr Dinh did not meet until 1983, in fact became, and was, the principal of, and teacher at, the two private schools, Thien Binh and Huong Dao. 63 Mr Mc Hugh submitted that I would not regard as reliable the evidence of Professor Vinh, Ms Luong and Ms Psuong. He pointed to evidence from Professor Vinh that Professor Minh left Huong Dao in 1972, whereas, according to the Plaintiff, he left in 1973, he also referred to Professor Vinh's friendship with the Plaintiff. He pointed to the discrepancy earlier referred to between evidence given by Ms Luong at the s 7A trial and her evidence before me and he referred to a degree of uncertainty in the evidence of Ms Psuong, who must have been only a young teenager in 1973 and 1974. 64 Although there is validity in the submissions made by Mr McHugh regarding the evidence of Professor Vinh, Ms Luong and Ms Psuong, I formed the opinion that each of them was doing his or her best to tell the truth about events a very long time ago in a war-torn country. It is, I think, noteworthy that the Defendants did not themselves call any direct evidence as to whether the Plaintiff taught at, or acted as principal of the two schools in the period between 1965 and 1975. 65 Moreover, on this subject, the Plaintiff's evidence was, in my opinion, much more forthright and convincing than it was on other subjects. In the result, I am satisfied, on the balance of probabilities, that the Plaintiff taught mathematics at, and became the principal of, both the schools mentioned in his evidence. Whether that, in the absence of a university degree, constituted a breach of the law of Vietnam is not a matter upon which I need make a finding, nor, in my opinion, is the state of the evidence such that I am able to make such a finding. It suffices that he was in fact a principal and a teacher. He was also, on the evidence, entitled to the honorific "Professor" as that title, being one of courtesy only, seems to have pertained to the occupations of teacher and principal rather than the possession of a university degree. 66 It follows that I find favourably to the Plaintiff upon issue (d) as identified by Mr McHugh. Plagiarism: 67 Factual issue (c) identified by Mr McHugh is of plagiarism. The allegation was particularised as follows: B 1. In or about 1990, the plaintiff wrote, edited, compiled and published a book entitled "The True Face of Ho Chi Minh" (the first edition). The plaintiff claimed and represented that this book was his own original work. B 2 In or about 2000, the plaintiff wrote, edited, compiled and published a second edition of his book entitled "The True Face of Ho Chi Minh" (the second edition). The plaintiff claimed and represented that this book was his own original work. B3 In or about 1962, Mr Hoang Van Chi authored a book entitled "From Colonialism to Communism" (Book 2) B4 In or about 1983, Mr Vu Ngu Chieu and Professor Nguyen Thi Anh co-authored a book entitled "Another School for Young Nguyen Tat Thahn" (Book 3) B5 In or about 1960, Mr Pham Van Son authored a book entitled "Viet Suan Toan Thu" (Book 4) B6 In or about 1968, Mr Thai Bach authored a book entitled "Thi Van Quoc Cam Thoi Phap Thuoc" (Book 5) B7 In or about 1963, Mr Pham Van Son authored a book entitled "Viet-Su Tanbien, Vol V11" (Book 6) B8 In or about 1988, Huy Phong and Yen Anh authored a book entitled "Nhan Dien Ho Chi Minh" (Book 7) B9 In or about 1959, Mr Hoang Van Chi edited a book entitled "Tram Hoa Dua No Tren Dat Bac", produced by an organisation known as Mat Tran Bao Ve Tu Do Van Hoa (Book 8). B10 When the plaintiff wrote, edited, compiled, and published the first edition of his book, he committed serious acts of plagiarism and breach of copyright by copying material from other people's books and from other sources without obtaining permission from or giving acknowledgement to those other people or sources. a) The photographs on pages 20,21,22,44,45, 46,47,54,55 and 56 of the first edition have been copied from a book written by Nguyen Khac Ngu entitled "Vietnam Nhung Hinh Anh Xua"; b) The photograph on page 74 of the first edition has been copied from the book written by Quan Su, Military History, Joint General Staff, Republic of Vietnam headed "Quan Dan Vietnam Chong Tay Xam"; c) The photographs on pages:82,224,225,226,227,228,229,230,231,232,234,276 297,298,299,300,338,410 and 430 of the first edition have been copied from the book entitled "Tong Cong Kich Mau Than 1968" of Quan Su, Military History, Joint General Staff, Republic of Vietnam. d) The translations at pages 94 and 95 of the first edition have been substantially copied from translations prepared by Mr Vu Ngu Chieu and published in Book 3; e) The letters at pages 96,97,98,99 and 100 of the first edition (those being letters written by Ho Chi Minh and French authorities) have been substantially copied from letters originally located and published by Mr Vu Ngu Chieu and published in Book 3; f) The three photographs on pages 101 and 121 of the first edition have been copied from the Nhan Dan Newspaper of the Socialist Republic of Vietnam; g) The photograph on page 122 of the first edition has been copied from the Army Museum of Socialist Republic of Vietnam; h) The photograph on page 123 of the first edition has been copied from the Con Ong magazine published in France; i) The photograph on page 124 of the first edition has been copied from the book entitled "Vietnam Hai Ngoai". B11 When the plaintiff wrote, edited, compiled, and published the second edition of his book, he committed serious acts of plagiarism and breach of copyright by copying material from other people's books and from other sources without obtaining permission from or giving acknowledgement to those other people or sources. a) Text on pages 69,70,71,72,126,151, 152,153,154,160,162,163,164,165,166,167,168,169,1170,171,173,174,175,176,177,178,179,182,183,184, 185,186,187,188,189,190,191,192,193,194,195,196,1197, 198,199,200,201,202,204,229,230,231,232 of the second edition of the plaintiff's book has been substantially copied from Book 2; b) Text on pages 134,135,138 and 139 of the second edition has been substantially copied from pages 33, 37,38 and 40 of Book 3; c) Text on pages 25,26,27,28,29,30 and 35 of the second edition has been substantially copied from Book 4; d) Text on pages 48 and 49 of the second edition has been substantially copied from Book 5; i.e. page68; e) Text on pages 57,58,59,60,61,62 and 63 of the second edition has been substantially copied from Book 6; pp 21,22 f) Text on pages 115 and 116 of the second edition has been substantially copied from Book 7; pp 134-135; g) Text on pages 381,382,383,384,385 and 386 ;of the second edition have been substantially copied from Book 8." 68 The red book published in 1990 contained a bibliography which listed almost 40 books. However, there was no express acknowledgement in any part of the text that the author, namely the Plaintiff, had reproduced material from other sources. Likewise, but perhaps of less significance, none of the many photographs in the book acknowledged that they were reproduced from other books. 69 The white book published in 2000 contained a slightly longer bibliography, but again, no specific acknowledgement that any part of the text was copied from another work. In the white book there are, however, acknowledgements of the photographs. 70 There was also in the white book a statement, Ex C, at the beginning which translated read: "Completing the book "The True Face of Ho chi Minh" is not the effort of one person but owing to the encouragement and the intellectual support of many people through telephone and correspondence of reader of The Bell of Saigon Newspaper to all the Vietnamese Refugee communities from Communist including Organisations Association; especially thanks to the direct and indirect documentation provided from all walk of life, or extracts published yet without permission. I can not say enough of my gratitude and thankfulness. I hope to receive understanding as writing about the "dead" is so much a deceased. But because the "living" (The Clique of The Vietnamese Communist) are still inflicting crime and blocking the way to Democratic Freedom. Writing about the deed of the "dead" so we can all be alert and not to let the "living" to follow the path of the "dead" to cheat and divert the mission of fighting for Democratic Freedom and the right to be human being of the people of Vietnam." 71 As to the law in relation to plagiarism I am indebted to the extensive examination of authority by Higgins J (as he then was) in Carleton v Australian Broadcasting Corporation (2002) ACTSC 127. For the purposes of this case, I take the meaning of plagiarism from the Macquarie Dictionary, Third Edition: 1. The appropriation or imitation of another's ideas and manner of expressing them, as in art, literature, etc to be passed off as one's own. 2. something appropriated and passed off as one's own in this manner." 72 Carleton v ABC concerned a television programme relating to historical events, namely the massacre of Muslim men and boys at Srebrenica in 1995 by the Bosnian Serb Army. The events were the subject of several television documentaries. One was broadcast by BBC Panorama in 1996, another by BBC television in 1999, that programme being subsequently broadcast in Australia, and a third was broadcast by American 60 Minutes. 73 Mr Carleton, a television journalist, decided to make his own programme for broadcast on the Australian Channel Nine's 60 minutes in a thirteen minute segment much shorter than the other programmes. One issue before Higgins J was whether it had been established that the programme eventually produced by Mr Carleton was plagiarised. 74 At paragraphs 112 and following of his judgment, His Honour said

[38]

"[112] The notion of "copying" is always a matter of degree. What are the points of similarity? What are the points of difference? Are the latter present merely to cover up the former? [113] The issue of "copying", for example, house plans often revolves around breach of copyright. That breach is what imparts wrongfulness or impropriety. [114] Ownit Homes Pty Ltd v D & F Mancuso Investments Pty Ltd [1988] AIPC 90-488; 5 BCL 64 ("Ownit Homes") is an example of that process. The Court (Fisher, Pincus, Einfeld JJ) commented on an argument that the notion of intentionally creating similarity had been given too little weight at first instance, (Ownit Homes [1988] AIPC 90-488 at 38, 240; 5 BCL 64 at 69-70):"... This line of argument appears to be rooted in the 'rough practical test' advanced by Petersen J in University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 at p610 '... that what is worth copying is prima facie worth protecting' - a test in which Lord Reid in Ladbroke [(Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273] saw 'much wisdom' (at p279). However, as Sir Owen Dixon remarked, 'stealing from one author is plagiarism; stealing from three authors is research' (The Dictionary of Australian Quotations, Heinemann 1984)." [115] The difficulty is explained with his customary clarity by Street J (as he then was) in Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278. [116] At 283, his Honour cited with approval the following, (from Copinger & Skone James on Copyright, 10th ed para406):" Form not idea protected A preliminary observation is that it is essential to have in mind in approaching any question of infringement the nature of the thing protected by copyright law. What is protected is not original thought or information but the original expression of thought or information in some concrete form. Consequently, it is only an infringement if the defendant has made an unlawful use of the form in which the thought or information is expressed. The defendant must, to be liable, have made a substantial use of this form; he is not liable if he has taken from the work the essential idea, however original, and expressed the idea in his own form or used the idea for his own purposes ..." (emphasis added) ………………………………….. [118] There is an obvious analogy between an original architectural plan and a television program. Where the subject of the program is not fiction but history, as with the plans of a dwelling, there must necessarily be considerable elements of similarity between the original and the subsequent work. [119] The telling of the story of a war crime ought not to vary as to the facts conveyed. "Cry from the Grave" was comprehensive. Certainly more so than "The Evil that Men Do". …………………………………………….

[39]

[123] Again, however, there is a distinction between the appropriation of ideas through research and the copying of the expression of those ideas by others without attribution. [124] In the present case, Mr Carleton and his team between them, but primarily, on the evidence, Mr Carleton, researched the reports made on the Srebrenica massacre. That included David Rohde's book "End Game". It included the 60 Minutes CBS program and the Panorama program. [125] Any such program must have included file footage (if any) of the relevant events. It will include scenic representations of the places referred to and, possibly, re-enactment of events and, certainly, interviews with relevant witnesses or commentators. It will be linked together by the narrator. [126] So it was in this case. Given that Mr Carleton's program set out to tell the story in 15 minutes (it, in fact, took 14 minutes) only the most telling scenes and witnesses would be expected to be portrayed. [127] In the case of "The Evil that Men Do" the real difference was Mr Carleton. It was his telling of the story, his presence at the various Bosnian/Serbian sites, his conduct of interviews, that told the same story his way. [128] That it was inspired by and used similar film footage and locations and interviewees does not establish plagiarism. To do so there would need to be an element of "cheating". That could be done by, for example, miming a dubbed interview, that is, pretending to conduct an interview that had been conducted by some other journalist. Pretending to be on site but instead using shots provided by others may be cheating. It is not "cheating" to use file footage, particularly where the right to use it is obtained lawfully. [129] In other words, the 60 Minutes program was not plagiarised from the BBC program. It follows that it did not need to acknowledge prior research or its inspirational source or sources. Nor had the "Cry from the Grave" producers been obliged to, nor did they, acknowledge the preceding accounts of the story they told in their way. That is not to say that it would not have been courteous to have done so. It is simply that the omission of a courtesy does not constitute plagiarism. [130] It follows that the charge of plagiarism levelled by the defendants at the plaintiffs was both false and defamatory. That is, it was not true as a statement of fact. 75 Many of the passages of authority quoted above and the observations of Higgins J are, in my opinion, apposite to this case and, in particular, to the Plaintiff's claim that he was merely reciting historical events. 76 In support of their contention that the Plaintiff was guilty of plagiarism, the Defendants relied on the report (Ex 10) of Mr Ton That Quynh Du, a translator conversant with the English and Vietnamese language, who translated, in a way facilitating comparison, passages from the two editions of the Plaintiff's book and passages from five other books which seem to be listed in the bibliography of both editions of the Plaintiff's book. 77 I have previously made reference to the Plaintiff's evidence in chief upon the subject of plagiarism. He was closely cross-examined by Mr McHugh upon such evidence. "Q. You know what a plagiarist is, don't you? A. Yes I do.

[93]

91 He said that he met the Plaintiff in 2002 when a visit to Mr Ly Tong was being organised. At that time the Plaintiff offered to donate 500 copies of his book to Mr Thach's committee on condition that all the proceeds would go to the fund to support Mr Ly Tong. Thereafter copies of the white book donated by the Plaintiff were offered at various fund raising functions. They were not sold at a fixed price but rather in exchange for donations, the amount of which varied considerably. All the proceeds were used to support the committee's work for Mr Ly Tong. 92 In cross-examination, Mr Thach agreed that the first fund raising event at which the Plaintiff's book was offered was held on 19 June 2002. He told Mr McHugh that the Plaintiff joined the committee some time after donating his books for its purposes but could not recall exactly when. 93 Mr Thach also told Mr McHugh that he visited Mr Ly Tong in prison in Thailand during 2002 and there met a Mr Pham Cao Tri with whom he had a number of conversations. He strongly denied that previously the Plaintiff had proposed to him that he would donate 100 copies of his book upon terms that he would receive one half of the proceeds of sale. He also denied that he asked Mr Tri to help promote the Plaintiff's book in Melbourne where Mr Tri lived. 94 The Defendants called Mr Tri, who said that he was born in Vietnam in 1945 but now lives in Victoria. He served in South Vietnam's Air Force from 1968 until 1975. He was then a farmer until 1980 when he came to Australia by boat as a refugee. In Australia he has been involved with the Vietnamese community, being on the committee of an association of ex-Vietnamese Air Force personnel. 95 Mr Tri said in effect that he was a supporter and sympathiser of Mr Ly Tong and met him in Melbourne some time between 1992 and 1998. He has also visited him twice in prison in Thailand. Over the objection of Mr Evatt, I permitted Mr McHugh to lead from Mr Tri evidence of conversations he had with Mr Van Tan Thach in Thailand in May 2002, to the effect that Mr Thach, purporting to act on behalf of the Plaintiff, wanted Mr Tri to assist in selling the Plaintiff's book in Victoria on terms that the Plaintiff would receive half the proceeds and Mr Ly Tong's Victorian committee would benefit in respect of the other half. 96 I should note that, somewhat disturbingly, Mr Tri said that about 2 weeks prior to the hearing, he had, at the request of the Third Defendant, Mr Thien, gone to the house of the Second Defendant, Mr Hong Anh Nguyen, where witnesses in the case discussed amongst themselves the evidence they would give. According to Mr Tri, there was nothing sinister in this, as the Second Defendant did no more than tell him, "to tell the truth". 97 Mr Tri said that he had known Mr Thien for a long time. There was this exchange between the witness and Mr Evatt: "Q. All right. Did Mr Thien tell you that Professor Thuyen, the plaintiff in this case had brought a claim against Tivi Tuan San newspaper? A. Yes.

[105]

Q. Wouldn't the sale of the book help Ly Tong? A. Yes, we understand so, however, in raising fund we have to make a decision, a selection of what we could go for the funding. " 99 As it seems to me, the result of all the evidence about Mr Ly Tong is that nobody denies that the Plaintiff, in fact, donated copies of the white book in support of Mr Ly Tong and derived no benefit whatsoever from their disposal. It may be that the donation was made after publication of the articles, that is after 5 June 2002. It may also be that the Plaintiff was mindful of the impact his donation could have on restoring his reputation, to the extent it was damaged by the articles. Even if he was so mindful, having regard to his previous unchallenged record of service to the Vietnamese community, I would not be willing to find that the donation should be categorised as one "to advance his own personal interests". 100 Obviously there is significance in the timing of the Defendants allegation that the Plaintiff offered to donate books for the benefit of Mr Ly Tong on terms that he would profit from the donation. It depends on an alleged conversation, at which the Plaintiff was not present, in Thailand, between publication of the first article and publication of the second article which, unlike the first article, mentioned Mr Ly Tong. The difficulty for the Defendants, however, as I see it, is that apart from anything else, there is simply no evidence to the effect that Mr Thach had authority of the Plaintiff to make the proposal relied upon. It was not carried into effect, both the Plaintiff and Mr Thach denied that the authority was given and Mr Thach denied the conversation with Mr Tri. Moreover, I was not impressed with Mr Tri as a reliable witness and the fact that he purportedly relayed his alleged conversation with Mr Thach to fellow supporters of Mr Ly Tong such as Mr Pham Cong Khanh and Mr Vu Hoang Phu in Melbourne does not, in my opinion, improve the Defendants' position. 101 Although the Plaintiff's evidence as to his activities in support of Mr Ly Tong was confusing, especially in respect of any period prior to publication of the articles, I am not satisfied that it has been proved that he sought to benefit personally from anything done in support of Mr Ly Tong. I would resolve issue (e) in favour of the Plaintiff.

[106]

Corruption and Bigamy: 102 It is convenient to deal with these two issues together as they both rely almost entirely on the evidence of the Defendants' witness Mr Tran Dinh Dam, who, incidentally, also happened to be at the meeting at the Second Defendant's house, a fortnight before the trial. 103 Mr Dam told Mr McHugh that he was born in Vietnam in 1935. He completed Year 12 at High School and then entered the Faculty of Pedagogy at a university in Saigon. Following graduation, he taught from 1962 until 1967 at high schools in Saigon and Da Nang. In 1967 he was drafted into the army and attained the rank of First Lieutenant. After discharge from the army, he resumed his teaching career until 1975 when communists took control of the country. He spent a year in a re-education camp and ultimately came to Australia in 1991, under a family reunion programme. 104 In Australia, he said that he re-established contact with the Plaintiff with whom he had been acquainted in Vietnam and for a very short time worked for him. They had a falling out over a dispute involving money. 105 In 1973 he was appointed to the temporary position of Chief Examiner in Hue for the Baccalaureate examinations. As I understand his evidence, he actually served as Chief Examiner in Hue on three occasions, each for a period of about 2 weeks, two of those occasions being in 1973 and the other in 1974. His regular position at the time was teacher of physics and chemistry at a high school in Saigon. 106 I allowed Mr Dam to give evidence of a conversation he had with a Mr Le Viet Buu on the basis, as I was led to believe, that there was an illegal conspiracy between Mr Dam and Mr Buu which would implicate the Plaintiff. As it eventuated, however, the Plaintiff was not implicated at all and the conversation between Mr Dam and Mr Buu has no relevance so far as the Plaintiff is concerned. It does, however, impact upon the credibility of Mr Dam. 107 In effect, according to Mr Dam, he agreed to ensure that candidates for the Baccalaureate examination, nominated by Mr Buu, would pass the examination in exchange for a bribe of 400,000 Vietnamese dong each. Mr Dam said that the students actually nominated by Mr Buu were pupils of the Hung Dao School where, so Mr Dam said, the Plaintiff was a director or manager. He said that at the time of his conversation with Mr Buu, he had never met the Plaintiff. 108 Mr Dam said that subsequently he corruptly allowed two very weak students from Hung Dao School to copy the work of very good students so that he could pass them. After this, Mr Buu paid him 400,000 dong per student. As I have indicated no evidence implicated the Plaintiff in this corrupt conduct. However, about a week after receiving money from Mr Buu, Mr Dam said that in company with Mr Buu, he met the Plaintiff for the first time, at a restaurant in Hue. This was a purely social occasion. 109 At a subsequent meeting, however, at the Plaintiff's house when only the Plaintiff and himself were present, he said that he told the Plaintiff that he had students who wished to obtain certificates of having successfully passed Year 10 at High School. The Plaintiff thereupon, offered to provide blank certificates bearing the signature of the principal of his school for the sum of 100,000 dong per certificate. The significance of a Year 10 certificate, as Mr Dam said, was that it enabled the holder to enrol in a military officers training school. 110 After this conversation, Mr Dam, who continued to work in Saigon, said that whenever he wanted a certificate, he sent money by post to the Plaintiff in Hue and received back a blank certificate, bearing the signature as the school principal, of Mr Minh Ngoc Nguyen. He thereupon sold these blank certificates to students, needing and willing to pay for them, at 150,000 dong each. He said there were more than 10 of these transactions. As to the value of a Vietnamese dong in 1973, Mr Dam said that a high school teacher was paid about 20,000 dong per month. 111 After Mr Dam's release from "re-education" camp, he said that he re-established contact with the Plaintiff, who told him he was working in a "co-operative". They became friends and exchanged family visits as at the time they lived close to each other in Saigon. He met the Plaintiff's wife, Ha Thi Huong and their small children. He said that the Plaintiff left Vietnam in 1977 or 1978 while he was still living in Saigon. According to Mr Dam, the Plaintiff told him before leaving Vietnam that he had a previous wife (whom he did not name) and three grown-up children living in Hue. 112 Mr Dam then told Mr McHugh that whilst he remained in Vietnam, he was asked, by letter from the Plaintiff, to transfer a sum of money to his previous wife in Hue, named Mai Thi Huong. He did not keep the letter. He also, so he testified, was requested to transfer the family registration book for Mai Thi Huong from Hue to Long Thanh. Upon receipt of the letter, Mr Dam said that he sent money to Hue and then contacted the Plaintiff's brother to arrange the transfer of the family registration book from Hue to Saigon. In relation to Mr Dam's reference to the Plaintiff's brother, I should record the Plaintiff's evidence, upon which he was not challenged, that he was an only child. 113 Asked where the money he was to transfer to Mai Thi Huong came from, he replied, "I received the money from an agent who delivered the money to me and then I, based on what is written to me from the letter that I transfer that money to Hue". 114 Asked what he physically did in relation to the transfer of the money to Hue, he replied, "Through acquaintances or relatives who were travelling to Hue and then I asked these people to carry the money". He told Mr McHugh that "quite a while after that" he had direct contact with her. He said it was after completion of the transfer of the registration book to Long Thanh which, "is when I stopped sending money to Hue". 115 In the period between 1980 and 1990, Mr Dam said that money was sent through him to Mai Thi Huong, as I understand his evidence, about 10 times. During that period, he had some personal contact with Mai Thi Huong. He could not remember precisely when, but said, "It was between 1980 and 1990. It was when she went to my home to receive the money". There was then this exchange with Mr McHugh: "Q. Did you have any conversation with her the first time she came to your home to receive the money? A. I didn't actually meet with her, she met my wife, my ex-wife who was talking to her.

[137]

……………………………………. Phuoc Tan 27 March 2005 Dear Uncle Dam, Today Mr and Mrs Hai came to film our family at your request, we are very happy and grateful to your kindness. As you have got my telephone numbers but have not called me, I am very anxious to hear from you. They filmed my family: Cuc, Tuyen, Tuyen and Dan, my husband. Do you still remember him? My telephone numbers are: 061.938.158 and Tuyen's numbers are: 061.939.315. Please call us when you get these. I am pleased to tell you that we have received a gift of AU$200.00 from you. You have asked me to send you the certificate of marriage of our parents. Unfortunately, my mother does not have a copy now. It had to be furnished to the Court for the bigamy case. Then came the liberation (of the south) and we have lost it since. We do not have any copy now. Thus, I can only send you certificate of birth of the three of us. Uncle Dam, you have done so many good things for me. I am very grateful but please do not do anything concerning Mr Thuyen. I do not want to cause any trouble to him at this stage of my life. He sometimes contacted me and did not give us as much as he should, but I did not ask for more. I am happy with what I am endowed with. It is more important that I can earn things myself. I can not wait to hear from you very soon. Your niece (signed) Nguyen This Bach Cuc …………………………………… Dear Uncle Dam and brothers and sister, I would like to send my best wishes to you all. That is what I want to do. It is beyond my dream that 20 years have gone by and you still remember my family. At present, I work as a bicycle repairer. I am married with 2 children: one is doing grade 8 and the other grade 4. I am very grateful to you for the sum of AU$200.00 you gave us. I wish you all the very best. (Signed) Your nephew Nguyen Quang Tuyen (Tuyen) ………………………………………… Dear Mr Dam, I am Mai Thi Huong. I lost my personal documents 30 years ago, including my own copy of the certificate of Marriage. Mr Nguyen Thuyen lodged another copy with the court for the divorce case. Therefore, I do not have any copy left now. If necessary, I can come back to Hue to search for one. Otherwise, I am grateful to your help for my children. I would like to wish you and your family all the very best. For myself, I always go to pagoda to pray to Buddha for peace and happiness for the country and its people. Best wishes (signed) Mai Thi Huong ………………………………………… Phuoc Tan 15 April 2005 Dear Uncle Dam, We have received news and gifts from you: the first time AU$200.00 and the second time, a week later, AU$200.00. We were very much grateful to you for your kindness. Even though we are not related by blood, you still remember our family from a foreign land so far away. I am very much moved. I gave you my telephone numbers (061.938.158) and have waited for your calls but in vain. I would like to call you to see how you were doing but I did not have your telephone numbers. I called Mr Hai to ask for your numbers but he did not have them either. Thus, I must give up. I at times asked myself why you did not call me. After so many years apart, can we still recognize each other's voice? When I met Mr Hai on his first visit, he asked whether I knew of a Mr Dam of Thi Nghe. My memory instantly came back. How on earth I can forget your kindness and help offered to my family! Since Mrs Hai is about to leave for Australia, I would like to drop a few lines to send you my wishes and bring you your attention the following issue: It is about Mr Hai's second visit to my family at your request to film my family and get you our certificates of birth for the purpose of documentation, so that once Mr Thuyen dies, we will be entitled to inherit part of his legacy. We are very thankful to your kind thoughts but now I realize that I cannot sent them to you. I am afraid that these images, if sent to Australia, may cause us, and possibly you, troubles. It would be troublesome for all of us. The reason why I said so is that a few days ago Mr Thuyen telephoned me (he always addressed himself as 'thay' and is up to one's interpretation of our father-daughter relation). He asked about my family, how we were doing and how the children were doing at school and so on and so forth. I did not know why he learnt that you would visit my family, so he asked whether or not it was true (he called you insultingly). I instantly thought you two must have had quarrels so he called you like that. That is why I had to lie that nobody visited me (from Australia). He then warned me not to welcome you if you would visit me. He told me that when you first came to Australia you passed on rumours and that ruined his family. Thus, if you visited me, I should not welcome you. But that is the problem between you too. I understood that he said so because you two disliked each other. For myself, I am always grateful to you. Because you want the good things for us, you tell the truth. And the truth is sometimes bitter to take. That is why you are seen as destroying his family. I understand all that I have grownup children now and they are doing well at school. Though we are not rich, I feel all right. A flow will have its ebb and a bad compromise is better than a good lawsuit. I do not want to find enemies for myself. I am very much appreciative of what I have now and tell myself to behave reasonably. Furthermore, I do not want to hurt Mr Tuyen even though he did not treat me properly. That is why I do not want to send you those CDs because I do not want our father-daughter relationship to go sour once more. I want to bury that past into time and do not want to stir up that pain. Thus, I am asking you for your sympathy and your forgiveness if anything here makes you displeased. I have written rather long and do not know if you have enough time to read it. I wish you and your family in that foreign land far away to be fortunate, well and successful My family would like to send our best wishes to you. Your niece far way (signed) Nguyen Thi Bach Cuc 125 Since 1991, Mr Dam said he has had no dealings with the Plaintiff, although he did give some evidence as to the Plaintiff's reputation to which I will return. 126 Mr Evatt's cross-examination of Mr Dam occurred in two stages. The first stage constituted his cross-examination of Mr Dam upon the evidence given on the voir dire and largely concerned the correspondence quoted above, which became Ex 19:

[322]

135 He told Mr McHugh that he was acquainted with Mr Dam but did not meet him before coming to Australia. He denied ever meeting Mr La Viet Buu. He rejected as false the evidence of Mr Dam as to his participation in corrupt dealings in Vietnam. 136 Although agreeing that he had contact with Mr Dam in Australia, the Plaintiff denied that previously, while he was in Australia, he made any attempt to send money through Mr Dam to a woman called Mai Thi Huong in Vietnam. He also denied that any legal proceedings were taken against him by a person of that name. 137 I formed a very unfavourable impression of Mr Dam as a witness. His testimony seemed to me to be confused and confusing, and often inherently unbelievable. Upon several topics his version of events changed from one day to the next and I gained the distinct impression that he was making up his evidence as he went along. Indeed, in my view, the cross-examination by Mr Evatt virtually speaks for itself as a demonstration of the unreliability of Mr Dam, which is why I have so extensively quoted from it. I reject all of his evidence to the extent it is in dispute. 138 I am not satisfied that it has been established that the Plaintiff was ever married to a woman called Mai Thi Huong, and I am not satisfied that it has been established that persons named Nguyen Quang Tuyen, Nguyen Thi Bach Cuc and Nguyen Tuyen, were the Plaintiff's children. Upon these subjects I prefer the evidence of the Plaintiff. Furthermore, I have a grave suspicion that the letters, Ex 19, which to me, simply did not ring true, were concocted by Mr Dam, possibly with the connivance of the Third Defendant, Mr Thien, in an attempt to pervert the course of justice. That suspicion is not lessened by the failure of Mr Thien to give evidence. I would have expected him to do so and I infer that his evidence would not have assisted the Defendants' case. To a lesser extent, the same comment can be made about the Second Defendant, Mr Hong Anh Nguyen, as he too, on the evidence of Mr Dam, had some involvement with the letters. 139 In the result the issues of fact (g) and (h), identified by Mr Mc Hugh, should be resolved in favour of the Plaintiff. These issues do not arise out of the articles but if found against the Plaintiff would go, as particularised, to proof of the truth of the Plaintiff's imputations 1 and 3. The Circulation of The Bell of Saigon: 140 This was a relatively minor issue lying within a small compass. In cross-examination by Mr McHugh, the Plaintiff said that his newspaper The Bell of Saigon in 1987, 1988 and 1989 had a circulation of about 6,000 copies. He conceded that in the period 2003/2004 the circulation was no more than 2,000 or 3,000 copies. 141 He also conceded that the Defendants' newspaper Tivi Tuan Sam had, at some point of time, a circulation greater than The Bell of Saigon. For a time in its publication history, The Bell of Saigon contained, as part of its masthead, the words in English, "The First & Largest Circulation Vietnamese Newspaper in Australia". Some time after 1993 the ampersand was removed so that the mastead read "The First Largest Circulation Vietnamese Newspaper in Australia". 142 The Plaintiff said that he caused the ampersand to be removed in or about 2003 because he realised that it no longer had the largest circulation of a Vietnamese newspaper in Australia. 143 Mr McHugh submitted that the statement without the ampersand was misleading and part of a consistent course of misleading conduct. The Plaintiff denied any intention to mislead and Mr Evatt submitted that, at most, it was "mere puffery", pointing to the statement at the foot of the front page of the newspaper in Vietnamese, which translated, simply read that The Bell of Saigon is the first Vietnamese newspaper in Australia. 144 On the facts I have stated I do not think an inference adverse to the Plaintiff is available. On the basis that the Plaintiff's newspaper was the first Vietnamese language newspaper in Australia, the impugned statement is technically accurate, if somewhat lacking in clarity. Moreover, the evidence on the subject is itself unclear. The Defendants claim a circulation in 2002 of about 5000 throughout Australia. The Plaintiff claims a circulation in 1987,1988 and 1989 of about 6,000. The evidence seems to be silent as to when the Defendants circulation overtook the Plaintiff's circulation. 145 Accordingly, in my opinion, issue (f) identified by Mr McHugh should be answered favourably to the Plaintiff. Again, this matter is not mentioned in the articles but was relied upon by the Defendants as material to support the truth of Plaintiff's imputations 1 and 3. The Truth of the Imputations: 146 In light of the above factual findings, I need to consider whether the Defendants have proved the substantial truth of the Plaintiff's imputations and the contextual imputations. In this connection, I have found against the Plaintiff in respect of his claim to have graduated with a Bachelor Degree from the University of Hue in 1965, and against the Plaintiff on the issue as to whether he forged a certificate purporting to evidence his graduation. I have also found that both editions of the Plaintiff's book were plagiarised from other books 147 On the other hand, I have found in his favour that he did in fact teach at High Schools in Hue; that he was a school principal; that he was entitled to the honorific "Professor"; that he did not give support to Ly Tong in order to advance his personal interests and that he did not receive any financial benefit from the donation of his books nor seek to do so. I have also found in the Plaintiff's favour in respect of the allegations that he engaged in corrupt conduct in Vietnam; that he was a bigamist; and that he sought to misled readers of The Bell of Saigon into believing falsely that it had the largest circulation of any Vietnamese language newspaper published in Australia. 148 The first of the Plaintiff's imputations that he "is a fraudster" is couched in the present tense. In my opinion, it does not necessarily follow from the adverse findings I have made that the Plaintiff should be categorised as a fraudster at the time of publication of the articles in 2002. In that connection, I refer to what I said earlier upon the meaning of fraud 149 Some regard must, I think, be had to the very difficult circumstances which the Plaintiff faced in fleeing from Vietnam and seeking to establish himself in Australia. Although he falsely claimed to possess a Bachelor Degree from the University of Hue, and went to some pains to forge evidence of the conferral of such degree, there is no evidence that, as a consequence, anyone suffered financial or other detriment. Moreover, his original claim and the forgery seem to have occurred more than 25 years ago. It may be that he felt locked into a situation from which he could not escape even if motivated to do so. 150 In my opinion, the Defendants have not established the substantial truth of the first of the Plaintiff's imputations. The sting of the second of the Plaintiff's imputations is that he claimed falsely to have a Bachelor Degree from a university. For reasons given above, the Defendants have, I think, proved the substantial truth of that imputation. Moreover, for the purposes of the law of NSW and certain other Australian jurisdictions, I think that the Plaintiff's position in the Vietnamese community was such that it was legitimately in the public interest, or for the public benefit, that it be published that he did not hold a Bachelor Degree from a university. 151 Accordingly, the Defendants have, in my opinion, justified both imputation 2 and the matter in the articles which gave rise to that imputation. 152 Imputation 3 is that "the Plaintiff is a deceiver". In relation to their claim of the substantial truth of that imputation, the Defendants particularised the same matters as were relied upon in relation to imputation 1. Of those, only the allegations of plagiarism and of falsely claiming to hold a Bachelor Degree were found adversely to the Plaintiff. 153 "Deceive" according to the Macquarie Dictionary Third Edition, means "to mislead by a false appearance or statement; delude". Technically, at least, I think by continuing to portray himself as the author of a book of original composition and as the holder of a Bachelor Degree, the Plaintiff was engaging in conduct capable of deceiving others and thus was a deceiver. I think the Defendants have proved the substantial truth of imputation 3. Again, in light of the Plaintiff's prominent position in the Vietnamese community, I think that the imputation, and the defamatory material which gave rise to it, related to matters of public interest or were for the benefit of the public. 154 An allegation of plagiarism is, I think, the sting of imputation 4. As indicated earlier, I think the Defendants have proved the substantial truth of the imputation and I also think that the imputation, and the material which founded it, were published in the public interest or for the benefit of the public. It will, I think, be almost invariably the case that it is a matter of public interest or for the benefit of the public that the purported author of a book is exposed as a plagiarist. 155 As stated above, in my opinion, the Defendants have failed to prove the substantial truth of imputations 5 and 6.

[323]

Contextual Truth: 156 This defence under s16 of the 1974 Act relies on the imputations alleged to be contextual set forth above. For reasons already given, in my opinion, only contextual imputation 2, which, in my view, arises out of the second article that the Plaintiff is a plagiarist, is a matter of substantial truth. That imputation, in my view, relates to a matter of public interest. 157 Thus contextual imputation 2 is to be considered under s16 (2) (c) of the 1974 Act in relation to the Plaintiff's imputations 5 and 6. 158 In terms of Hepburn v TCN Channel Nine Pty Ltd (1984) 1NSWLR 381, the one contextual imputation which I find arises from the second article and which, in my opinion, is substantially true, differs in substance from the Plaintiff's imputations 5 and 6, to which it is pleaded, and is capable of being rationally considered as so affecting the Plaintiff's reputation that the imputations to which it is pleaded did not further injure that reputation. 159 In considering whether the Defendants' imputation that the Plaintiff is a plagiarist did not prevent imputations 5 and 6 causing further damage, I adopt and seek to follow the principles expressed by Hunt J in Hepburn at page 405: "The Defamation Act 1974, s 16(2)(c), requires the defendant to establish that the publication of the plaintiff's imputation "does not further injure the reputation of the plaintiff". That phrase should, in my view, be construed in the sense of "does not cause additional injury to the reputation of the plaintiff". The defence afforded by s 16 does not raise an issue simply of whether the combined effect of the defendant's contextual imputations is greater than the effect of the plaintiff's imputation to which they are pleaded. The defendant would not succeed even if the jury were satisfied that that was the situation, for obviously the plaintiff's imputation would still have some effect upon the plaintiff's reputation notwithstanding the effect of the truth of the defendant's contextual imputations. I am told that, in a previous unreported judgment of mine, I referred to the defendant's contextual imputations as "in effect swamping" the plaintiff's imputation. Certainly, if that were the situation, the defence of contextual truth would succeed. But it is not necessary that the defendant's contextual imputation should "swamp" the plaintiff's imputation. That is to put it too high altogether, if indeed that is what I said (the judgment itself has not been produced). But the defendant must satisfy the jury that, such is the nature of his contextual imputations,their truth so affected the plaintiff's reputation that the publication of the plaintiff's imputation to which they are pleaded did not cause additional injury to that reputation."

[324]

160 In the result, I am of the opinion, largely as a matter of common sense, that the nature of the Defendants' contextual imputation on the one hand, when compared with the nature of the Plaintiff's imputations 5 and 6 on the other hand, does not lead to a conclusion that the Plaintiff's imputations did not cause further damage. The plagiarism occurred in relation to the red book about 16 years ago. Although repeated, perhaps less reprehensively because of the acknowledgement, Ex C, in the white book more recently, the plagiarism, as it seems to me, has a different quality to the imputations regarding Mr Ly Tong. Those imputations, in my view, strike at the very heart of the Plaintiff's work in the Vietnamese community and would be bound to cause damage to his reputation beyond anything arising from the imputation of plagiarism. Accordingly, I reject the defence of contextual truth under s16 of the 1974 Act. Comment: 161 I have concluded that the reference to the Plaintiff being a fraudster in the first article is a comment upon identified facts, namely that the Plaintiff was not entitled to the honorific 'Professor' and did not hold a Bachelor Degree as he claimed. 162 As I have found, the former of those two assertions has not been proved to be substantially true but the latter has. This could be significant in some Australian jurisdictions where the common law applies. In NSW it would suffice if the material on which the comment was based was, to some extent, proper material for comment (see s30 (3) (b) of the 1974 Act). 163 Imputations 5 and 6, arising out of the second article, were also, I think, matters of comment. The facts on which the comments were based were, however, in light of my finding that they were untrue, not proper material for comment. 164 In my opinion, the comment that the Plaintiff is a fraudster represents an opinion which might reasonably be based on the fact that the Plaintiff falsely claimed that he held a Bachelor Degree. However, for reasons which hereafter appear, it is unnecessary for me to consider the significance of this finding in relation to legal jurisdictions outside NSW. Malice: 165 As a reply to the defence of Comment, the Plaintiff pleaded lack of honest belief in the truth of the comment due to malice and arising from the circumstance that: "The Defendants did not intend to convey the imputations about the Plaintiff because he was not named in the articles complained of and identification was put in issue by the Defendants at the Section 7A trial." 166 Express malice was the subject of extensive particulars, including: (a) The first Defendant is and was the publisher of "Tivi Tuan San" being a newspaper - magazine. The second Defendant was at all material times the editor of "Tivi Tuan San" and the third Defendant was the author of the articles complained of published in "Tivi Tuan San" on 17 April and 5 June 2002. (b) At the same time the Plaintiff was the general manager and editor of the newspaper "The Bell of Saigon" which like "Tivi Tuan San" was published in the Vietnamese language. The two newspapers were and are rivals and competitors. ……………………………… (h) Improper and scandalous allegations of bigamy, forgery and corruption made by or on behalf of the Defendants against the Plaintiff. (k) Defendants' conduct of the case. (m) The Defendants timed the publication of the first article complained of (17 April 2002) to appear in its newspaper just prior to the republication of the Plaintiffs newspaper "The Bell of Saigon". The Defendants knew that the Plaintiff proposed to republish "The Bell of Saigon" at this time and the reason of the publication complained of was by attacking the integrity of the Plaintiff it would weaken the chances of success of "The Bell of Saigon" and result in the Defendants getting rid of a rival publication. (n) Material complained of intrinsically malicious. (o) Although the Defendants have admitted they intended to convey the imputations they denied that the imputations were of and concerning the Plaintiff in the defence (and at the Section 7 A trial) 167 That conduct of the Defendants, post publication, may constitute material from which express malice may be inferred is well established. The following passage taken from the judgment of Jordan C J in Guise v Kouvelis (1946) 46 SR 419 is appropriate to this case: "There is another matter which, in the present case, I am disposed to think is capable of being regarded as evidence of express malice. Counsel for the defendant at the trial adopted the tactics of attempting to blacken the plaintiff's character. He cross-examined him in an attempt to show that he was a man of generally bad character, and denounced him to the jury as being in fact a crook. These are tactics which counsel was perfectly entitled to adopt. If they produce the desired effect they may result in a verdict for the defendant, or for a farthing damages. But they carry a heavy risk … In the present case, in view of the plaintiff's evidence as to the circumstances in which the slander was uttered and of the fact that the defendant must take the responsibility for his counsel's conduct of the case, I think that counsel's behaviour is capable of having regarded as reinforcing the inference that the defendant was animated by ill-will towards the plaintiff at the time of the publication of the slander - an ill-will which continued and received a new manifestation at the trial." 168 Neither the Second Defendant nor the Third Defendant gave evidence of belief in the truth of the comment. On the other hand, the trial was conducted in a way which attempted, in my opinion, to paint the Plaintiff in the worst possible light. This included the unsuccessful and, in my view, scurrilous attempt to portray the Plaintiff as corrupt and as a bigamist. 169 Moreover, in the absence of evidence from the Defendants, the inferences available to be drawn from the facts stated in the particulars set forth above, may more readily be drawn. In all the circumstances, I conclude that the Defendants were actuated by express malice and had no belief in the truth of the comments. They, therefore, lost the benefit of the defence of comment, to the extent it was otherwise available to them. 170 As it seems to me, all Defendants are responsible for the malice, the Second Defendant and the Third Defendant being the servants or agents of the First Defendant. Other Defences: 171 Apart from defences already mentioned, the Defendants pleaded defences of common law qualified privilege, "Lange" qualified privilege, statutory qualified privilege and unlikelihood of harm under s13 of the 1974 Act. No submissions were made by Mr McHugh in relation to any of those defences. Any defence of qualified privilege would in any event, be defeated by my finding of express malice. 172 As to the defence under s13 of the 1974 Act, it is difficult to see upon what basis it could be contended that the articles were published in circumstances where the Plaintiff was not likely to suffer harm, and Mr McHugh did not so contend. In my opinion, the articles were plainly designed to cause the Plaintiff as much harm as possible and, indeed, did cause significant harm. Damages: 173 The Plaintiff is entitled to damages in respect of imputations 1, 5 and 6 in the context that the Defendants have proved the substantial truth of imputations 2, 3 and 4. 174 Gatley on Libel and Slander - 10th edition at paragraph 27.25 under the heading mitigation of damages states: "A defendant may also plead in mitigation of damages the claimant's general bad reputation or directly relevant background contextual material that bears on the claimant's reputation. In addition, the defendant may at trial rely in mitigation of damages on any evidence properly before the court, including evidence which has been primarily directed to an unsuccessful plea of justification or fair comment." 175 Amongst the authorities referred to by Gatley in support of the proposition quoted is Pamplin v Express Newspapers Ltd (1988) 1WLR 116, a decision of the English Court of Appeal. In the course of his judgment, Neill LJ said: "There may be many cases, however, where a defendant who puts forward a defence of justification will be unable to prove sufficient facts to establish the defence at common law and will also be unable to bring himself within the statutory extension of the defence contained in section 5 of the Defamation Act 1952. Nevertheless the defendant may be able to rely on such facts as he has proved to reduce the damages, perhaps almost to vanishing point. Thus a defence of partial justification, though it may not prevent the plaintiff from succeeding on the issue of liability, may be of great importance on the issue of damages."

[325]

176 In assessing damages, I must have regard to the hurt to the Plaintiff's feelings and any damage to his reputation. The amount must be sufficient to vindicate the Plaintiff in the eyes of the community. The assessment is by no means an easy task in this case, complicated as it is by the need to consider the impact upon damages of those matter adverse to the Plaintiff found to be substantially true. Moreover, as Mr McHugh pointed out, the Defendants are only liable for damage caused by the defamatory imputations 1, 5 and 6. The Plaintiff admitted, in the course of his evidence, that he was also upset by meanings which he did not sue upon, including the meaning that he was not a true anti-communist and the meaning that he had no authority to speak in public on anti-communist matters. Hurt to Feelings: 177 The Plaintiff's evidence as to his prominence in the Vietnamese community was not challenged and there is no doubt in my mind that the defamatory imputations which entitle him to damages caused hurt to his feelings. 178 Earlier, I made reference to his evidence in chief as to how the articles came to his notice and as to his reaction to them. He was cross-examined upon this evidence and, in the result, I found his evidence upon the subject very confusing in an area where I would have expected him to be reasonably precise. For instance, he appeared to contradict himself ultimately, to my mind, leaving open the question whether he found out about the first article prior to the publication of the second article. At one point he seems to suggest that numerous people contacted him by telephone after the second article, but later he made reference to a Mr Hung Dao telephoning him to tell him about both articles, after which he read them. 179 In cross-examination, it emerged that at the s7 A trial of this matter, he claimed to have read the first article three weeks after it was published. His answers to interrogatories state that he became aware of the first article two days after publication when Mr Hung Dao and two others rang him, and the second article "immediately after the second article was published in TV (sic) Tuan San. I do not remember exactly what time but it was in the evening". 180 He explained the inconsistencies "because this is a long time ago and I'm an old person". Indeed, not a great deal turns on this part of the evidence except that it reinforces my view that the Plaintiff, at best, was an unreliable witness. One consequence of this on the issue of damages is that I do not accept the Plaintiff's evidence that "hundreds" of people telephone or contacted him after the articles were published. I could not be satisfied that more than the few who gave evidence or were specifically mentioned in the evidence, did so. 181 I accept Mr McHugh's submission that on the issue of damages it is important to bear in mind that the Plaintiff was not named in either of the articles. The defamatory imputations would thus have been apparent only to persons who had particular knowledge of the Plaintiff. There is no way of quantifying the number of such people with any precision but, in my opinion, the tenor of the evidence of those who gave relevant evidence, such as Mr Hong Cao Tran, was that many members of the Vietnamese community in Australia, particularly those who were actively involved in Vietnamese community affairs would have identified the Plaintiff or been sufficiently curious to ascertain the identity of the person referred to as Cu Bip. 182 The degree of upset and distress experienced by the Plaintiff, as to which he testified, was supported by the testimony of Ms Minh Luong; by his children Dr Chuong Nguyen and Mr Chuc Nuyen and by Mr Phan Ba Quy, and Mr Tran Hien. Each of those witnesses said they believed the defamatory imputations to be false. Mr Chuc Nguyen, a microbiologist, said that his father called the children together and told them that the defamatory allegations were false. He described him as "entirely upset, extremely angry and very stressed". 183 Dr Chuong Nguyen, a medical practitioner, also testified as to his father calling the family together and of him reading the two articles apparently on separate occasions. He said his father was "very distressed" and "very angry". He prescribed sleeping tablets. 184 As to hurt to his feelings, in broad terms, I accept the Plaintiff's evidence. Reputation: 185 A number of witnesses gave evidence as to the Plaintiff's reputation, both in his case and in the case for the Defendants. Mr Phan Ba Quy who lives at Cabramatta, a suburb of Sydney, said that he was born in 1935 and escaped from Vietnam in 1989. He came to Australia in 1994 and holds office in the Vietnamese Aged Association. He met the Plaintiff who is a member of the Association soon after arriving in Australia. He said that as the Plaintiff was in the teaching profession he called him "Professor". 186 He testified that before publication of the articles the Plaintiff was highly regarded and respected by him. After publication, he said the Plaintiff's reputation went down a lot in the eyes of members of his association. He denied to Mr McHugh that the Plaintiff had a reputation for being untrustworthy or dishonest. 187 Mr Hong Cao Tran born in 1941 came to Australia in 1982. He lives in the Sydney suburb of Villawood. He was, prior to 1975, in the South Vietnamese Army, attaining the rank of major. In Australia he became a member of the Vietnamese Veterans Association through which he met the Plaintiff in Melbourne about 1993. 188 He has met the Plaintiff on occasions since when the Plaintiff has been in Sydney and once they met in Queensland. He purchased a copy of the red book and was given a copy of the white book by the Plaintiff in 2002. According to Mr Tran, the Plaintiff was highly respected prior to 2002 in the circles in which he, Mr Tran, moved. Today, Mr Tran said that he is less certain about the Plaintiff's reputation as people do not know whether the articles are correct or incorrect. He, himself, was told by the Plaintiff that the articles were a fabrication, "I did believe in him but I also wonder whether, you know, what the people said about him is correct or incorrect so I was wondering". To Mr McHugh, Mr Tran said that the Plaintiff was not well known in Sydney apart from his role in the Veterans Association. 189 Mr Minh Le to whose evidence I have already made reference when asked as to the Plaintiff's reputation in 2002, replied: "Mr Thuyen was a righteous man and he is willing to contribute to any activities within the Vietnamese community apart from that I was not living close to him so I don't know much more about him." 190 In cross-examination, Mr Le conceded that he did not personally know the Plaintiff very well. As I understand his evidence, his knowledge of the Plaintiff was largely confined to his reputation in the Vietnamese community. 191 Mr Tran Hien, another witness born in Vietnam who now lives in Sydney, said that he came to Australia in 1980. He met the Plaintiff about 1985 through the Vietnamese Veterans Association and through Vietnamese community activities. He purchased a copy of the red book from a bookshop in NSW and acquired a copy of the white book for a $40 donation at a fund raising event in support of Mr Ly Tong, organised by the Veterans Association. He said that he read the first article after publication and, in discussion amongst members of the Veterans Association, the Plaintiff was identified as Cu Bip. 192 Upon the subject of the Plaintiff's reputation there was this exchange with Mr Evatt: "Q. Sir, before you read these two articles the first of them, can you tell the Court what was the reputation of Mr Nguyen in the circles of people among whom you moved, his reputation at that time? A. Before that his reputation was very high and he was involved a lot in the Vietnamese community activities and many times he was invited to deliver speech in the community and his speaking was highly admired because people admire him of his anti-communist stance and also admire him because of his general knowledge.

[326]

Q. Since these articles appeared has that situation changed or remained the same? A. Certainly his reputation was lessened a lot because I myself sometimes I went along with him, I walk with him and I feel shameful too. …………………………………………… Q. What is the reason for your saying to the court that his reputation you believe has been lessened? A. There was rumours, very bad rumours about Mr Nguyen Thuyen and about the articles who write bad things about him and I myself I felt that feelings too. " 193 In cross-examination, Mr Hien admitted to Mr McHugh that in 2003 he was advertising representative for The Bell of Saigon and knew the Plaintiff well. He disagreed with Mr McHugh that before publication of the articles the Plaintiff had a reputation either for being untrustworthy or for dishonesty. 194 Mr Tran Dinh Dam to whose evidence I have already made reference said that the Plaintiff's reputation before publication of the articles was "very bad in the eyes of the community". For reasons already given, I do not accept Mr Dam as a reliable witness. 195 Another witness called by the Defendants, Mr Pham Cong Khan, who lives at Hoppers Crossing near Melbourne and has been President of the Vietnamese Air Force Veterans Association in Australia said that the Plaintiff now has a bad reputation in the community of the Vietnamese Air Force Veterans Association. Asked about his reputation in early 2002, he replied, "In early 2002 I didn't hear anything about him about this person". 196 The evidence about the Plaintiff's reputation was not particularly satisfactory. Apart from its vagueness, it emanated from persons resident in Sydney, whereas it appears that the Plaintiff has mostly, since coming to Australia, lived in Melbourne. However, on the probabilities, I think that prior to publication of the articles the Plaintiff was reputed as a good citizen, honest and trustworthy, particularly in Vietnamese circles where he moved. I accept that this reputation was diminished by the articles even though, according to the evidence, most of those who spoke to the Plaintiff did not believe the defamatory imputations. Aggravated and Punitive Damages: 197 The Plaintiff claims aggravated damages and (where available in Australia) punitive damages. Claims for aggravated and punitive damages were made in the Second Further Amended Statement of Claim. Particulars of the former claim were: "The Plaintiff claims the damages to which he is entitled have been affected by his knowledge of the falsity of the imputations." 198 In relation to punitive damages the Plaintiff particularised: "The Defendant acted in contumelious disregard of the Plaintiff's rights." 199 The conduct of a defendant, both at the time of, and subsequent to publication, may be taken into account on the question of aggravated damages. In this case, in my opinion, apart from the aggravating conduct particularised in respect of the untrue imputations, the Defendants' conduct in raising and failing to prove corruption and bigamy constituted aggravating conduct and I propose to include in my award of damages a component for aggravated damages. 200 Exemplary damages are not available in NSW but, in relation to states and territories where they may be awarded, I do not think that this is an appropriate case to award them. Publication of the articles themselves was not, in my view, sufficiently reprehensible to warrant such damages, nor is this a case where compensatory damages are likely to be insufficient to meet the circumstances. Assessment: 201 I thus come to the assessment of an amount which will reflect the various factors relevant to this case, which I have already identified. Many of those factors point to an award towards the bottom of the range as submitted by Mr McHugh. On the other hand, although the circulation of Tivi Tuan Su was not large, it precisely targeted that section of the community to which the Plaintiff belonged and where he was likely to suffer the most damage to his reputation. 202 Including an allowance for aggravated damages, I think an award of $60,000 would do justice between the parties in this case. Costs: 203 Mr McHugh requested that costs be reserved and I will make an order in those terms. The matter may be re-listed by arrangement with my Associate for a costs argument