Pahuja v TCN Channel Nine Pty Ltd

Supreme Court of NSW|2017-06-13|Before: McCallum J

Judgment

HER HONOUR: Sunil Pahuja brought proceedings for defamation against Channel Nine in respect of a segment of the television program, A Current Affair. The proceedings were tried with a jury, who gave their verdict by answering specific questions. The effect of the jury's answers is that Mr Pahuja has enjoyed substantial but not complete success in the proceedings. It remains to determine the amount of damages that should be awarded, a task which falls to the judge: s 22(3) of the Defamation Act 2005 (NSW).

The plaintiff

Mr Pahuja grew up in India where he obtained a Bachelor of Commerce and a post-graduate Diploma in International Business. He worked for his father in a fabric dye business in India for about five years before migrating to Australia on a student visa at the age of 27. He completed a Masters of Professional Accounting in Queensland. While studying, he worked in various roles in the energy sector, ultimately developing his own business installing solar panels in residential houses. Mr Pahuja became a permanent resident of Australia in 2011 and also met his wife that year. They have a child who was born in Australia. They attend a Hindu temple in Brisbane and know many people in the Indian community in that city. Mr Pahuja became an Australian citizen in 2014, which he described as "a very proud moment".

Circumstances in which the broadcast was made

The segment of A Current Affair which defamed Mr Pahuja purported to expose "a cruel immigration scam". The broadcast was based on information provided to Channel Nine by a lawyer and migration agent, Mr Parmesh Chand. Mr Chand was acting for a friend of Mr Pahuja, Mr Satnam Singh, in migration proceedings in the Federal Court. Mr Singh had come to Australia on a student visa but wanted to migrate permanently. He retained Mr Chand to act for him after losing an application to the Migration Review Tribunal (presumably for review of a decision refusing a visa). Mr Chand acted for Mr Singh on an application to the Federal Court for judicial review of the Tribunal's decision. The application was unsuccessful. Mr Singh had evidently lodged an appeal to the Full Court of the Federal Court (exhibit 1; MFI 2, line 70) but Mr Chand had advised Mr Singh that the appeal was hopeless. In the meantime, it appears Mr Singh had received a letter informing him of a debt owed to the Commonwealth, presumably for the costs of the proceedings at first instance (MFI 2, line 5).
Mr Singh decided at that point to approach a different migration agent, Mr Mofid Bebawy at Choice Migration, with a view to obtaining a "457 visa" (short for the former Temporary Work (Skilled) Visa (subclass 457 visa), which required an applicant to be sponsored by an employer). He gave evidence, which I accept, that he chose Choice Migration after reading online reviews.
Mr Singh made an appointment to see Mr Bebawy on 30 March 2015. He asked Mr Pahuja to go with him to that meeting. There was nothing exceptional about that request. Mr Pahuja and Mr Singh had been friends since 2011 when they worked together for Origin Energy. Mr Singh later moved in as a boarder with Mr Pahuja and his wife. He was still living with them at the time of these events. Throughout 2014 and 2015, Mr Pahuja had regularly accompanied Mr Singh to appointments to support him and because his English was better than Mr Singh's.
Mr Pahuja and Mr Singh attended Mr Bebawy's offices together on 30 March 2015. Mr Pahuja gave evidence, which I accept, that he had not previously met Mr Bebawy. There was no evidence to suggest that, prior to the meeting, Mr Pahuja had ever had any dealings with Choice Migration or that he recommended Choice Migration to Mr Singh. Both Mr Pahuja and Mr Singh gave evidence that he did not. A number of good friends of Mr Pahuja gave evidence as reputation witnesses in the trial; none had ever heard him speak about Choice Migration or recommend its services.
When Mr Pahuja and Mr Singh met Mr Bebawy, Mr Pahuja had a short conversation with him about Mr Singh's chances of obtaining a 457 visa. Mr Pahuja also asked Mr Bebawy whether Mr Singh would be able to repay the debt to the Commonwealth by instalments. Mr Pahuja then waited in reception while Mr Singh attended his appointment with Mr Bebawy. During that meeting, Mr Singh signed a contract for Mr Bebawy to work on visa applications for both Mr Singh and his wife for a total cost of about $16,000 consisting of $12,500 for Mr Bebawy's fees and about $3,500 for government fees (Exhibit B, tab 3).
It appears that, shortly after the meeting, Mr Singh rang Mr Chand and told him about Mr Bebawy (that is an inference I draw from the transcript of a conversation on 1 April 2015 between Chand and Singh: exhibit 1; MFI 2, commencing at line 13). Mr Chand asked Mr Singh to come and see him "to discuss Full Federal Court". He rang Mr Singh several times to confirm that he would attend that meeting. Mr Singh asked Mr Pahuja to go with him to the meeting. For the reasons already stated, that was an unexceptional request.
Mr Pahuja and Mr Singh attended Mr Chand's offices together on 1 April 2015. Mr Chand secretly filmed the meeting. During the meeting, he repeatedly directed the conversation to the topic of Mr Bebawy. The broadcast on A Current Affair was based primarily on that footage, as indeed was the truth defence in these proceedings. It will be necessary to return to what was said.
On 8 April 2015, Mr Pahuja received a telephone call from a lawyer acting for Mr Bebawy who asked him whether he (Mr Pahuja) had made allegations about Mr Bebawy to Channel 9. Mr Pahuja gave evidence that he did not understand what the enquiry was about. It may be inferred (from the content of the broadcast) that the telephone call from the lawyer was made after Mr Bebawy had been confronted by Channel 9 with allegations drawn from what Mr Pahuja and Mr Singh had said to Mr Chand in the secretly-recorded meeting.
About 15 minutes after Mr Pahuja received the telephone call from the lawyer, Channel 9 cameramen arrived at Mr Pahuja's door and confronted him with an allegation that he was taking a cut from Mr Bebawy. The reporter invited Mr Pahuja to give an interview "to clear the air". Mr Pahuja agreed to be interviewed on camera on that basis.
After being confronted by Channel 9, Mr Pahuja obtained Mr Bebawy's telephone number from Mr Singh and called him. Mr Pahuja told Mr Bebawy that he was not involved with Channel 9.
Several days later, Channel 9 cameramen returned to Mr Pahuja's house asking for Mr Singh. Mr Pahuja told them Mr Singh was not there. Mr Pahuja and his wife left to go to a doctor's appointment (she was pregnant at the time). When they returned, the reporter, Jesse Grayson, was still waiting outside their apartment.

The broadcast

The broadcast went to air on 28 April 2015. It was introduced by the well-known presenter, Ms Tracey Grimshaw, with the following words: "Now, a hidden camera investigation exposing a cruel immigration scam. Tonight, overseas born residents forced to pay thousands of dollars to dodgy agents in a bid to live and work in Australia and as Jesse Grayson reports it's big business."
What followed was a disordered collection of snippets from a variety of sources. The central theme was the allegation that "dodgy agents" were engaged in an immigration scam in which they accepted payments of tens of thousands of dollars in order to secure the grant of a 457 visa. Although the opening remarks of the presenter suggested a scam involving multiple migration agents, only one was featured in the program. That was Mr Bebawy. However, in the program, he was not named and his face was pixelated. By contrast, Mr Pahuja was not only named and featured openly in the broadcast but was in fact presented front and centre in connection with the allegation that the "dodgy agent" was charging up to $60,000 for a 457 visa.
The program included "hidden camera" footage of two separate meetings. First, it included extracts of the footage secretly taken by Mr Chand when Mr Pahuja and Mr Singh attended his office ostensibly to talk about the case in the Full Federal Court. That footage shows Mr Pahuja making a number of representations about Mr Bebawy, including that he (Mr Bebawy) was taking "61,000"; that most Indians are willing to pay 30,000 or 40,000 and, for Sydney, 60,000 or 70,000; that "there is a 0% chance that you won't get a visa"; that he (presumably a reference to Mr Bebawy) was charging "50,000 for the sponsorship, 10,000 for his fees" and that Mr Singh was selling his property back in India to pay the fee.
Separately, the broadcast included footage of a meeting secretly recorded by a man named only as "Raul", presented in the program as a person who cooperated with Channel Nine with a view to obtaining admissions from Mr Bebawy by posing as a person seeking information on behalf of a potential applicant for a 457 visa.
The program also cut to extracts from interviews with Ms Susan Moriarty, a workplace lawyer, and Michaelia Cash, then the Assistant Minister for Immigration and Border Protection.
While the presentation of that collection of material is confusing in some respects, the unequivocal impression conveyed is that Mr Pahuja was part of the scam and acted as the so-called dodgy agent's "fixer" (an assertion made twice in the broadcast). However, upon close scrutiny, the footage presented as supporting that connection does no such thing. It will be necessary to return to that issue.

Defamatory meaning

The jury found that the broadcast conveyed the following imputations defamatory of Mr Pahuja: (a) the plaintiff was knowingly involved in a cruel immigration scam in which overseas residents were forced to pay tens of thousands of dollars to dishonest immigration agents in order to live and work in Australia. (d) The plaintiff dishonestly denied knowing the unscrupulous immigration agent. (g) The plaintiff introduced Satnam Singh to a dodgy immigration agent, knowing that Mr Singh would have to sell his property in India to pay the excessive and unfair $60K fee demanded by that agent to secure a 457 visa so Mr Singh could remain in Australia. (h) The plaintiff acted as a fixer for a dodgy immigration agent by directing persons to that agent he knew were desperate to obtain 457 visas. (j) The plaintiff was knowingly involved in a cruel immigration scam in that he arranges the meetings between the foreigners and the agent.
The defendant pleaded the defence of justification to imputations (d) and (g). The jury rejected the defence in respect of imputation (g) but found that imputation (d) was substantially true.
It follows that Mr Pahuja is entitled to an award of damages assessed by reference to imputations (a), (g), (h) and (j). The significance of the truth of imputation (d) in that assessment is considered below.

General principles

The principles to be applied in assessing general damages for defamation were summarised at length in the plaintiff's written submissions. For present purposes, the following summary will suffice.
The purpose of an award of general damages in defamation is to compensate the plaintiff for damage to reputation and give consolation for hurt to feelings.
Section 34 of the Defamation Act requires the Court to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
Section 35 of the Act specifies the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings (unless the Court orders otherwise under subsection (2)). The amount is increased each year and currently sits at $389,500. A debate as to whether the maximum amount is to be regarded as the upper limit of a range within which all awards must fall or, alternatively, a mere cut-off point was resolved only yesterday by the decision of the Court of Appeal of Victoria in the Rebel Wilson case: Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154. The unenlightening discussion of this issue that was contained in my previous draft of this judgment can, with respect, appropriately be replaced with a reference to the careful and comprehensive review of the relevant authorities undertaken by the Court of Appeal in that decision at [182]-[215]. The decision authoritatively rejects the proposition that the maximum damages amount identified in s 35(1) of the Act fixes the upper limit of a duly confined range.
The decision in Bauer v Wilson further holds at [249] that, where the condition for the exercise of the discretionary power in s 35(2) is enlivened (that is, where the court is satisfied that the circumstances of the publication are such as to warrant an award of aggravated damages): "the court is entitled to make an order for damages for non-economic loss that exceeds the statutory cap in respect of both pure compensatory damages and aggravated compensatory damages. In other words, the statutory cap does not then constrain the court's assessment of damages for non-economic loss; when an award of aggravated damages is warranted, the statutory cap is inapplicable."
However, as noted in the judgment at [244], the assessment remains subject to s 34, which stands as "an ever-present guide".

Damage to reputation

Prior to the publication of the matter complained of, Mr Pahuja enjoyed a good reputation. As already noted, he has been in Australia since 2009 and knows many people in the Indian community and also outside that community. He attends the local Buddhist temple and knows people there.
Evidence as to reputation was given by a number of witnesses. Mr Pahuja's wife, who has a Bachelor of Commerce and an Education degree, has known him since 2011. She arrived in Australia in June 2013. She said that, prior to the broadcast, Mr Pahuja had a reputation amongst their circle of friends in Brisbane as a diligent, decent and "really kind" person.
Monika Singh has known Mr Pahuja since 2009. She is a corporate banker at the NAB with a Bachelor in Information Technology and a Masters in Financial Management. She gave evidence that, prior to April 2015, Mr Pahuja had a reputation of being kind, composed, trustworthy and hard-working.
Mahesh Khurana is a Sydney accountant who met Mr Pahuja when they were studying for a Masters of Accounting in Queensland. He said Mr Pahuja's reputation was of being a hard-working and "family-oriented guy".
Finally, Ajay Arora is a friend of Mr Pahuja whom he met in Queensland. He said Mr Pahuja had a reputation of being a hard-working nice, friendly guy.
As noted in the plaintiff's written submissions, damage to reputation is presumed and need not be proved. In the present case, the imputations are very serious, alleging exploitation of vulnerable people for financial gain. It was noted on behalf of Mr Pahuja that the broadcast highlighted his face, name and involvement in what was repeatedly described as a "cruel" scam. It was further submitted that Mr Pahuja is presented as the villain of the piece. In my assessment, the unnamed "dodgy agent" was presented as the primary villain. However, by reason of the defendants' choice to pixelate his face and conceal his identity, the focus fell on Mr Pahuja. I accept that he is presented front and centre as the target of a stern attack.
The evidence was that the matter was broadcast to an estimated 1.2 million viewers throughout Australia (exhibit E, tab 20). Mr Pahuja gave evidence that many people telephoned him afterwards and asked him about the allegations. The reputation witnesses noticed that he was being treated differently and heard him being gossiped about.
The matter complained of was also made available on the internet for a short period only. It was downloaded almost 4,000 times, although the defendants noted that it cannot be known how many people watched the whole segment.

Hurt to feelings

The evidence of both Mr Pahuja and his wife amply established that he was very upset by the broadcast. He said that he was upset that his denials were not broadcast even though the journalist, Mr Grayson, had invited him to participate in an interview as his opportunity to put his side of the story. He said he socialised less after the broadcast because he did not want to have to explain himself to people. Mr Pahuja's wife confirmed that evidence. She said he could not work for over a month and continued to be upset at the time of the hearing. He was worried that his family in India would find out about the program and that it would bring shame to his family. The other reputation witnesses also confirmed that Mr Pahuja responded to the broadcast in a way that indicated he was very upset.

Matters of aggravation

Mr Pahuja claims aggravated damages on the basis that aspects of the defendants' conduct towards him were improper, unjustifiable or lacking in bona fides and so fall within the rule in Triggell v Pheeney (1951) 82 CLR 497; [1951] HCA 23. Mr Smark SC, who appears with Ms Chrysanthou for the plaintiff, noted in oral submissions that damages may be aggravated on any of those grounds severally; it is not necessary in every case to establish a subjective lack of bona fides, as appeared at one point to be suggested by Mr McClintock SC on behalf of the defendants. Mr Smark nonetheless accepted that a high bar must be met before a matter will be characterised as improper or unjustifiable for the purpose of the rule.
The first two matters of aggravation relied upon relate to the preparation and presentation of the program. First, Mr Pahuja relies on the fact that, although the intended target of the story was Mr Bebawy, the defendants elected to disguise his identity but to identify Mr Pahuja in the plainest way. Secondly, Mr Pahuja relies on the alleged unfair editing of the matter complained of. It was submitted that those aspects of the presentation of the matter complained of, considered in conjunction with the evidence (or lack of evidence) in the defendants' possession at the time the broadcast went to air, meet the requirement of the rule in Triggell v Pheeney.
A supplementary tender bundle was provided at the hearing on damages directed to those issues (exhibit E). That material was admitted only for the purpose of establishing the defendants' state of knowledge at the time of publication. It established the following sequence of events.
On 1 April 2015, the journalist, Mr Grayson, received an email from Mr Chand. The email made plain that Mr Chand was a lawyer and migration agent conducting business under the name "Chand Lawyers". It may be inferred from the content of the email that Mr Chand also provided Mr Grayson with a copy of the covert recording of his meeting with Mr Singh and Mr Pahuja. The clear object of the email was to expose an alleged "racket" in the migration industry, focusing particularly on the conduct of "the agent Mofid". The gist of the allegation was that Mofid was charging large sums of money to put visa applicants together with sponsors. Coming as it did from a lawyer, the email was quite extraordinary in its tone and content. Leaving aside the fact that it proposed a story based on secretly-recorded footage taken by a lawyer of a man who was obviously either an existing or former client, the email had a number of features that should have prompted a cautious approach, including capital letters and large font, grand claims ("the whole thing is bigger than BER HUR" [sic]), hints of bigotry ("currently we are getting the rejects from India") and a thinly veiled reference to the possibility that Mr Bebawy might be funding terrorist activity because he was "from Iran".
On 7 April 2015, an actor hired by Channel 9 attended an appointment with Mr Bebawy posing as the relative of a potential applicant for a 457 visa. The actor was fitted with a recording device. Clearly, the intention was that he would obtain admissions from Mr Bebawy implicating him in the alleged scam. He did not. The transcript of the conversation records Mr Bebawy insisting to the actor that he (Mr Bebawy) could only "do your file" and that he does not get the sponsors. Towards the conclusion of the interview, there was the following exchange: "Actor: But if, I don't have anyone to do the sponsorship that, that is the, my, my problem. Mofid: I can't assist you with that. All I can do is help you with the file. Assess your cousin, assess the employer make sure they are strong enough to carry, that's what we do. Actor: Okay. But. See I met, I met this guy called Sunil at this BBQ. Mofid: Who? Actor: Sunil. Right, and, and I was talking to him about basically visas and you know how my cousin in India is having difficulty coming here and he told me that you are the person to talk to [indecipherable] to find somebody who can do the sponsorship. Mofid: Maybe you can get your friend and tell him to come down here. So you can get Sunil and come and sit down together and see how we can help you."
It may be noted that it was the actor, not Mr Bebawy, who first referred to a person named Sunil. The actor reported to Mr Grayson that Mr Bebawy was "too hesitant" to give the information they needed and that he needed to bring Sunil "in order for him to give me more information". He asked Mr Grayson whether Sunil would be willing to come with him. Mr Grayson responded "no". Mr Grayson concluded the discussion with the words "all right, looks like we are just going to have to bounce him on our own".
The following morning, Mr Grayson approached Mr Bebawy in the street with a television crew in tow. Their lengthy and acrimonious exchange can be summarised in the proposition that Mr Bebawy repeatedly denied the allegations and threatened to sue for defamation (which he later did).
Mr Pahuja gave evidence in the trial that, on the morning of 8 April 2015, he received a telephone call from a lawyer acting on behalf of Mr Bebawy who asked him whether he (Mr Pahuja) had made allegations about Mr Bebawy to Channel 9. He said that he had not. Shortly after that conversation, Mr Pahuja himself was approached in the street by Mr Grayson and the camera crew. The first question asked by Mr Grayson was whether Mr Pahuja knew Mofid Bebawy. Mr Pahuja responded "no absolutely not. I've heard about Mofid but I don't know him personally, no." Mr Grayson asked "so you've never had dealings with him at all?" Mr Pahuja responded "absolutely not".
Mr Bebawy retained Queensland lawyers to make an application to the Supreme Court of Queensland for an interlocutory injunction restraining publication of the broadcast he anticipated would be made as a result of those events. The application was dated 23 April 2015 and was supported by affidavits sworn by Mr Pahuja, Mr Singh, Mofid Bebawy and Matthew Bebawy (Mofid Bebawy's son). As already noted, that material was admitted in these proceedings on the question of damages only and solely for the purpose of establishing the information available to the defendant prior to publication. In short, the affidavits denied the substance of the allegations put to Mr Bebawy in the street by Mr Grayson. Importantly, the affidavits of Mr Pahuja and Mr Singh placed information before the defendants to the effect that, contrary to the impression created by the matter complained of (that Mr Singh was a victim of the scam perpetrated by Mr Pahuja and Mr Bebawy), Mr Singh and Mr Pahuja were in fact friends and had been for a considerable period of time. That same information had been provided to Channel Nine in the original email from Mr Chand of 1 April 2015.
Mr Pahuja's affidavit also denied the matters put to him by Mr Grayson in the street. The affidavit concluded as follows: "I categorically deny as untrue any suggestion that: (a) I have ever had any business arrangement with Mr Bebawy. I have only met Mr Bebawy on two occasions on 30 March 2015 and 9 April 2015 as referred to above. (b) I have never received any commission from Mr Bebawy (or anyone else) for referring Mr Singh (or anyone else) as a client to Mr Bebawy (or any other migration agent) or for finding a sponsor for Mr Singh (or anyone else).
Notwithstanding the receipt of that information, the broadcast went to air on 28 April 2015 with Mr Bebawy pixelated and his voice digitally altered but with no alteration to conceal the identity of Mr Pahuja. In fact, as already noted, Mr Pahuja was front and centre of the defamatory allegations made in the broadcast.
The affidavit material was served on the defendants on 24 April 2015. As submitted on behalf of Mr Pahuja, so far as the evidence before me reveals, the only material the defendants had to contradict the assertions made in the affidavits was the content of the secret recording. Mr Pahuja submitted that, having regard to the nature of that recording and the information provided in the affidavits served on the defendants, it was altogether reckless to construct a broadcast on the basis that the statements in the broadcast were true, unless those allegations were substantially supported by other reliable material" (which they were not).
The principal vice of the editing of the broadcast, as I would see it, is that the evidence Channel Nine had suggested impropriety on the part of Mr Bebawy, not Mr Pahuja. There was, quite simply, no evidence whatsoever to suggest that Mr Pahuja was part of any scam. On the contrary, all of the evidence held by the defendants was to the effect that Mr Pahuja was Mr Singh's friend. In other words, he was in the camp of the person the defendants portrayed as the victim, not the perpetrator. The suggestion that Mr Pahuja was in cahoots with Mr Bebawy was a complete construct of the journalist's making.
It began with Mr Chand's email in which Channel Nine learned that the client was Satnam and the other man in the secret recording was his friend, Sunil. The actor then mentioned Sunil to Mr Bebawy as a guy he met at a BBQ. The defendants knew from Mathew Bebawy's affidavit that, when Jesse Grayson confronted his father, he heard him refer to clients "Satnam and Sunil". Mr Bebawy could not recall any such clients but checked his database and came up with the name "Satnam Singh", through whom he contacted Sunil.
In the meantime, the journalist had confronted Mr Pahuja with the question whether he knew Mr Bebawy. Mr Pahuja lied that he did not know Mr Bebawy but that lie must be considered in context. It is to be recalled that, only minutes earlier, Mr Pahuja had received a call out of the blue from a lawyer acting on behalf of Mr Bebawy asking whether he had made allegations about him to Channel Nine. So, on the one hand, to deny he knew Mr Bebawy was a clear lie. On the other hand, those two events in short succession (a call from a lawyer, an approach from a television reporter) are likely to have caused a measure of panic. The overwhelming likelihood is that Mr Pahuja's primary concern at that point was to deny anything that might cause a problem for his friend, Mr Singh. It will be necessary to return to the issue of the lie in the context of the discussion of matters of mitigation.
Returning to the interview, Mr Grayson then asked Mr Pahuja whether he had heard that Mr Bebawy "fixes up" 457 visa for people and he said that he had heard there were a few guys that did that but that he didn't have any proof about Mr Bebawy doing that.
Inexplicably, Mr Grayson then asked, "so what do you say to allegations though that people say that you're the guy that is the middle man here. That you bring the people to Mofid, you sit down you negotiate a price?"
The evidence before me (including verified answers to interrogatories) clearly establishes that Mr Grayson had absolutely no basis for putting that question. No allegation had been reported to him that Mr Pahuja was Mr Bebawy's "middle man". His only source (Mr Chand) had clearly stated (in the email) that Mr Pahuja was Mr Singh's friend.
Mr Grayson also said to Mr Pahuja, "We're hearing that you do get a cut from Mofid for bringing him people" and later suggested (falsely) that he had received that information from Mofid. He had not received any such information from Mr Bebawy or anyone. He clearly made it up.
Mr Smark submitted that, in the circumstances, Mr Grayson's interview of Mr Pahuja, ostensibly to enable Mr Pahuja to "clear the air", was disgraceful. For the reasons set out above, I agree.
As established by the jury's verdict, the matter complained of was nonetheless edited so as to portray Mr Pahuja as Mr Bebawy's middle man or "fixer". In the circumstances, that was grossly unfair. It found no support in the information in the possession of the defendants. I am satisfied that the matter complained of was edited unfairly.
I am further satisfied that, in those circumstances, the pixilation of Mr Bebawy, contrasted with the open presentation of Mr Pahuja, was unjustifiable. Mr Pahuja gave evidence that he felt "helpless" when he saw that he and Mr Singh were shown while Mr Bebawy was not; he said he thought they did that because Mr Bebawy was "the rich guy" and could sue, whereas they were just normal people (T68).
In my view, the juxtaposition of the pixilation of Mr Bebawy with the open presentation of Mr Pahuja and the unfair editing of the matter complained of are matters that substantially aggravate the plaintiff's damages.
The plaintiff also relies, by way of aggravation of damages, on aspects of the defendants' conduct of the proceedings. First, he relies on the maintenance of the justification defences which, it was submitted, was improper and unjustifiable. In particular, it was noted that the defendants did not call a single witness to give evidence to substantiate the serious allegations made in the matter complained of which they maintained were true. The plaintiff further submitted that the defendants' reliance on the secret recording taken by Mr Chand was unjustified and improper, since Mr Pahuja makes no admission in that recording of having introduced anyone to Mr Bebawy, let alone multiple people.
It must be noted in this context that the justification defence was successful in respect of imputation (d) and was plainly not unreasonable in that respect. In my assessment, however, the maintenance of the defence was otherwise unjustified, for the reasons stated above in respect of the finding that the editing of the matter complained of was unfair.
Mr Pahuja also relied upon the defendant's persistence in the honest opinion defence, which was abandoned at about 11:30 am on the first day of the trial. It was submitted that the maintenance of that defence was improper and unjustifiable as there was nothing about the matter complained of that amounted to opinion and there was no proper material for comment that could be proved true by the defendants. Whilst it certainly appears that the defence was optimistic, I do not think I can conclude on the strength of the material available to the Court that the maintenance of that defence was improper and unjustifiable. As noted by Mr McClintock, the abandonment of the defence may have reflected a tactical decision (having regard to the way in which such a defence must be put before the jury in accordance with the decision of the Court of Appeal in Harbour Radio Pty Ltd v Ahmed [2015] NSWCA 290). Further, to reach a conclusion on that issue would require a hypothetical rehearsal of the defence that was never run. I have not relied on that as a factor aggravating damages.
Finally, Mr Pahuja relied by way of aggravation of damages on the conduct of the trial. It is appropriate to set out the relevant complaints in full (paragraphs 94 to 99 of the plaintiffs written submissions): "94. At the beginning of the cross-examination senior counsel for the defendants asserted to the plaintiff that he was a liar because of what he said to Parmesh Chand on 1 April 2015 as secretly recorded by the defendants: T72.42. That assertion was improper given that the defendants' entire defence was evidently premised on the assertion that what the plaintiff said in that meeting was true. In fact on the second and third day of cross-examination it was repeatedly put to the plaintiff that it was in fact true. 95. The cross-examination was also improper when it was put to the plaintiff that it was unlawful to pay for a sponsor: Tl07.25. The allegation was not put directly against the plaintiff, but it was of course put as part of a justification case that the plaintiff was knowingly involved in a scheme which did just that, and the question reflected an assertion of illegality in the defence (paragraph 11(a)), which was without foundation, yet was not withdrawn until the third day of the hearing: T219.21. 96. Further, it was put to the plaintiff that his understanding of what he said in Ex 1 at MFI2, [27] ("each" as opposed to "weeks") was a lie: T119.22. That should not have been put, given that the plaintiff clearly was correct. Even if he had not been correct - it was too far to assert that he was lying. Another explanation could be that his recollection about a conversation that occurred over two years ago was imperfect. The proposition was gratuitously offensive. Counsel for the defendant later conceded that the witness was correct, but did not apologise to the plaintiff for incorrectly accusing the plaintiff of lying in the witness box in this respect: T288.20. 97. Counsel for the defendants also suggested to Mr Singh that the plaintiff introduced him to Mr Bebawy: Tl96.37. Now that the defendant's case is closed, there is no apparent basis on which that proposition could have been properly put to the plaintiff. It is not a quibble to distinguish between asking a witness about a matter in cross-examination, and putting a proposition to him as a fact. They have different effects, both in terms of the impact of the question on the tribunal of fact, and also upon the subjective experience of the witness. 98. Counsel for the defendants persisted on the third day of the trial in putting to the plaintiff that the imputations were true when no evidence had been adduced by the defendants to justify those allegations: T229.38-230.29. He put to him that he was up to his neck in an immigration racket with Mr Bebawy: T227.47; 228.14-20. There was no evidence of such a racket and no evidence that the plaintiff assisted Bebawy by introducing migrants to him. The questions were improper and unjustifiable. 99. The plaintiff's hurt was aggravated by the cross-examination of him as part of this trial: T231.30."
It may be accepted that the cross-examination was vigorous and that counsel confronted the plaintiff with strong allegations. It may perhaps even be said that the questioning approached the limit of what was fairly warranted by the information on which it was based. However, counsel for the defendants faced the difficult task of grappling with competing interpretations of the secretly-recorded meeting, including the plaintiff's own account in evidence at the hearing that what was said to Mr Chand in that meeting was merely a prank and was not true (that issue is addressed further below). Further, much of what was put by counsel in cross-examination was intrinsic to the maintenance of the defence, which has already been taken into account and must not be counted twice. I have concluded that the matters concerning the conduct of the cross-examination do not bear the characterisation required to aggravate the plaintiff's damages.

Matters of mitigation

The defendants relied upon a number of matters by way of mitigation, obviously including the truth of imputation (d).
The defendants submitted that imputation (d) is a serious imputation based on evidence including allegations that the plaintiff lied under oath. They submitted that the truth of that imputation is at variance with the character the plaintiff claimed for himself and should be regarded as having dealt a serious blow to his reputation.
The defendants further submitted that they are entitled to rely in mitigation of damages on any evidence before the Court that was primarily directed to the plea of justification, citing the decision of the English Court of Appeal in Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 120 A-E; approved in Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; [2014] NSWCA 90 at [32].
The task is to determine whether the matters relied upon, if accepted, are such as to reduce the damage done to the plaintiff's reputation by reason of the untrue imputations.
The assessment of the matters relied upon on the strength of those principles must of course be undertaken on the premise that the Court is bound by the jury's verdict. Section 22(3) of the Defamation Act reserves to the judicial officer authority to determine "all unresolved issues of fact" relating to the determination of damages. However, as noted in the plaintiff's written submissions, the jury's verdict is taken to warrant all findings which are included in the jury's verdict expressly or by necessary implication: McDonnell & East Limited v McGregor (1936) 56 CLR 50; [1936] HCA 28 at 55 per Dixon J.
The defendants' written submissions offered possible explanations for the jury's answers to the questions posed for their determination. In my respectful opinion, it is preferable not to embark upon any such scrutiny of the verdict. The task is to determine, by reference to the answers to the questions posed, what findings of fact are necessarily included in the verdict and to determine any unresolved issues of fact that remain, undertaking that task on the premise that my findings cannot be inconsistent with the jury's answers.
The defendants contended for seven factual findings which they submitted would mitigate the damages to be awarded to Mr Pahuja.
Firstly, the defendants seek a finding that the plaintiff lied in a statutory declaration dated 9 April 2015 (exhibit 2), when he said: 1. "I came with Satnam Singh to seek consultation visa option under no circumstances any fees was suggested to be paid to anyone apart of professional fees" and 2. "I met Mr Mofid once I came with Satnam."
The defendants' submissions on that issue were based primarily on what Mr Pahuja and Mr Singh said to Mr Chand in the secretly recorded meeting (exhibit 1) and included a careful analysis of that material.
In his evidence in the trial, Mr Pahuja gave evidence that what they told Mr Chand in that meeting was untrue and that they "played a prank" on Mr Chand. After viewing the video several times and analysing the transcript, I do not accept that evidence. I am satisfied that at least part of what they were conveying to Mr Chand was what Mr Bebawy had told them the previous day. This conclusion does not derogate from my conclusions as to matters of aggravation set out above. As explained, the vice of the editing process was the false construct, which found no support in any material available to the defendants (and which was in fact contradicted by that material) that Mr Pahuja was the middle man for Mr Bebawy. I should also note that Mr Bebawy has not been heard in these proceedings and I do not purport to make any finding as to anything he has done. However, I am satisfied that the first statement set out above from the statutory declaration was probably false.
I am not persuaded that the second statement was false. It is based on statements recorded in exhibit 1 which are ambiguous at best. I accept the plaintiff's evidence that he personally had not met Mr Bebawy before 30 March 2015.
Secondly, the defendants seek a finding that the plaintiff told three lies in his affidavit of 22 April 2015 (exhibit 3) concerning when he met Mr Bebawy and whether he had ever had any business arrangement with Mr Bebawy. Those submissions are based on a minute analysis of exhibit 1 taken at its very highest. As already noted, I have watched the video several times and undertaken the same analysis of the transcript. I am not persuaded that material establishes the lies contended for.
Thirdly, the defendants seek a finding that the plaintiff lied in evidence in the proceedings when he claimed that on 30 March 2015 he spoke with Mr Bebawy for only two minutes in a conversation that consisted only of two questions and answers. Again, the submission relied on exhibit 1. It was submitted that the matters reported to Mr Chand displayed so much detailed familiarity on the part of the plaintiff with Mr Bebawy's operation generally, and in respect of the particular transaction with Mr Singh, that he must have lied about the short duration of that meeting. The submission again takes exhibit 1 at its highest and ignores other possibilities, such as conversation between Mr Singh and Mr Pahuja after they left Mr Bebawy's office (they shared a flat at that time and had travelled to the meeting together). I would not be prepared to make a finding of a lie on evidence of that kind.
The fourth to sixth findings contended for relate to Mr Pahuja's evidence in the proceedings concerning what he told Mr Chand. The defendants seek findings that the plaintiff lied in his evidence when he claimed that: 1. during the 1 April 2015 meeting he and Mr Singh mostly told lies; 2. the reason for so doing was a desire to portray Mr Bebawy as superior to Mr Chand or to make Mr Chand feel jealous or to exaggerate or that he and Mr Singh were simply making things up; 3. that as at April 2015 he did not know anything about a $60K or similar fee charged by Mr Bebawy for Mr Singh (or others) including a $45K or similar sponsor fee; 4. Mr Bebawy was not arranging Mr Singh's sponsor.
For the reasons already stated, I accept that Mr Pahuja probably lied in his account of the meeting of 1 April 2015 and that, in truth, he was probably recounting information they had received from Mr Bebawy during that meeting. However, I am not persuaded of individual lies to the level of detail contended for by the defendants. The finding of dishonesty in that respect must nonetheless be taken into account as a matter reducing the assessment of damages.
Finally, the defendants made a formal submission that the Court should make a finding in the terms of imputation (a). For reasons that will be plain from this judgment, I reject that submission.
The assessment of the significance of the finding that Mr Pahuja lied in his explanation for what was said in the 1 April meeting is complex. As stated above, I consider that the events of 8 April 2015 are likely to have caused him to panic and to be concerned not to cause a problem for Mr Singh, whose future in Australia was at stake. It is also likely that he was anxious, in his various accounts, not to implicate Mr Bebawy. This submission is of course to be assessed in the context that Mr Grayson also lied when he confronted Mr Pahuja in what he would presumably contend to be a good cause. That is not to give in to a game of tit for tat but rather, more pertinently, to illustrate the point that all lies are not equal.
It must be accepted that the truth of imputation (d) and the foregoing findings as to Mr Pahuja's true involvement in Mr Singh's dealings with Mr Bebawy do in some measure diminish the damage that can be attributed to the matter complained of. However, for the reasons already explained, in my assessment the most damaging sting of the defamation was the indefensible suggestion that Mr Pahuja was Mr Bebawy's middle man and was involved in a cruel immigration scam.

Conclusion as to damages

In all the circumstances, I regard this as a very serious defamation which received wide circulation. But for the justification of imputation (d) and the matters of mitigation relied upon, a more substantial award would have been warranted. Taking those matters into account, I would assess the plaintiff's damages in the sum of $300,000.

Order

That judgment be entered for the plaintiff in the sum of $300,000.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 June 2018

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