Tabbaa v Nine Network Australia Pty Ltd

Tabbaa v Nine Network Australia Pty Ltd - [2019] NSWCA 69 - NSWCA 2019 case summary — Zoe

[5]

headnote [This headnote is not to be read as part of the judgment] On 29 June 2014, Nine Network Australia Pty Ltd ("Channel Nine") aired a 60 Minutes program entitled "Forced Marriage: An extraordinary story of kidnap, survival, escape and hiding." The program included an interview with a young woman, given a pseudonym, about how members of her family arranged for her to travel to the Middle East, where she was forced to undergo a virginity test, beaten and required to live with her grandmother in Syria for five years against her will. This program was uploaded to Channel Nine's website shortly after airing, and rebroadcast in December 2014. A short early morning news segment relating to the same subject matter was broadcast on 30 June 2014, and a video feedback segment was broadcast on 6 July 2014. Mouhammad Tabbaa, the father of the young woman, commenced two sets of defamation proceedings against Channel Nine in March 2015. The mother of the young woman, Pamela June Tabbaa, also commenced proceedings in relation to the initial broadcast of the 60 Minutes program. The three proceedings were heard together before a judge and jury in November and December 2017. The jury found numerous imputations to be conveyed and to be defamatory. It upheld the defence of truth with respect to most of those which involved facts, others being matters of opinion. The trial judge entered judgment for the defendant in respect of all the defamatory matter except in relation to the broadcast of the early morning news item. After a further hearing, the judge awarded no damages. The appellants raised numerous grounds of appeal, but pursued only the following issues at the hearing, namely that: (1) the judge's conduct in the proceedings gave rise to a reasonable apprehension of bias; (2) judgment should not have been entered on the basis of the defence of honest opinion, absent a finding by the judge that the opinions related to a matter of public interest; (3) judgment should not have been entered on the basis of the defence of honest opinion, the judge having concluded that, on the proper construction s 31(3) of the Defamation Act 2005 (NSW) the defence did not apply to all of the defamatory matter, as had been submitted by the defendant, and (4) the assessment of damages should not have taken into account compensation already received, and should have taken circumstances of aggravation into account. The Court (Basten JA, Gleeson and Payne JJA agreeing), dismissing the appeal, held:

While it is not clear that an appeal against a judge's award of damages in a trial involving a jury is an appeal as of right under s 102 of the Supreme Court Act 1970 (NSW), no issue having been taken it may be treated as such: [17], [88], [89]. Supreme Court Act 1970 (NSW) ss 101, 102, 75A; Bennette v Cohen (2005) 64 NSWLR 81; [2005] NSWCA 341, considered. Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31, distinguished.
While there are circumstances where the interventions of a trial judge in proceedings may give rise to a reasonable apprehension of bias, the actions of the trial judge complained of did not give rise to such an apprehension, particularly in light of the overall conduct of the parties at trial: [33], [88], [89]. Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48; Balic (No 2) (1994) 75 A Crim R 515; MJD v Regina [2006] NSWCCA 151; Regina v Kearns [2003] NSWCCA 367; R v Mawson [1967] VR 205, applied. Piccolotto v The Queen [2015] VSCA 143; Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30, distinguished.
As the appellants had a reasonable opportunity at trial to submit that the opinion did not relate to a matter of public interest, and that the effect of the opinion defence did not extend to all of the defamatory material, they were bound by the conduct of their counsel: [52], [59], [70], [88], [89]. University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; [1985] HCA 28; Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33; Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, applied.
The judge was entitled to have regard to a prior award of compensation, in excess of the amount to be awarded in the proceedings, as a mitigating factor under s 38 of the Defamation Act 2005 (NSW) and to award no damages: [80]-[82], [88], [89]. Thompson v Australian Capital Television Pty Ltd (1997) 129 ACTR 14; Uren v John Fairfax & Sons Pty Ltd (1965) 66 SR(NSW) 223, considered.
In considering all of the relevant material and the context of Mr Tabbaa's relationship with his daughter, the judge was correct in finding that there was no basis for aggravation on the basis of his knowledge of the falsity of certain imputations not held to be true: [85], [88], [89].

[6]

Judgment

BASTEN JA: On 29 June 2014 Channel Nine ran a 60 Minutes program entitled "Forced Marriage: An extraordinary story of kidnap, survival, escape and hiding." The program involved interviews with two women from Muslim backgrounds who gave accounts of their own treatment, together with some general information concerning the numbers of reported cases of child brides in Sydney, and the existence of Australian laws against forced marriages. The primary material was an interview with a young woman given the pseudonym "Rania Farrah". Her real name is Nadia Tabbaa.
At about the time that the program went to air, it was also published on the Channel Nine website. On 7 December 2014 the program was rebroadcast.
In March 2015, the father of the young woman, Mouhammad Tabbaa, commenced proceedings in defamation against Nine Network Australia Pty Ltd (Channel Nine) ("first proceedings"). He sued with respect to the broadcast of the matter, its republication on the Nine Network website and its republication in December 2014. Mr Tabbaa was not named on the program, but there was footage of him driving a car; there was also footage of his daughter and a picture of his former wife, the young woman's mother, Pamela June Tabbaa. Identification was therefore based on recognition by those viewers who knew these family members.
On 30 June 2014, the day after the 60 Minutes broadcast, there was an item on Channel Nine early morning news referring to the "frightening reality of child brides" which had been revealed on 60 Minutes, accompanied by footage of Mr Tabbaa in a car and a photograph of Pamela Tabbaa. On 6 July 2014 Channel Nine broadcast an item identified as "video feedback" which briefly repeated elements of the 60 Minutes story and recounted a number of comments by viewers supportive of the young woman's courage in resisting abuse and publicising her story. Mr Tabbaa commenced separate proceedings with respect to these two broadcasts ("second proceedings").
On 19 June 2015 Pamela Tabbaa, commenced proceedings with respect to the broadcast of the 60 Minutes program on 29 June 2014 ("mother's proceedings"). Mr and Mrs Tabbaa had divorced some seven years before the program was first broadcast.
A trial in the Supreme Court ran through November and December 2017, with a judge and jury sitting for 24 days. At the end of the trial, the jury were asked, and gave answers to, a number of questions, on the basis of which the trial judge, Fagan J, entered judgment for the defendant in the mother's proceedings and in the first proceedings. He also entered judgment for the defendant in the second proceedings with respect to the publication of the viewer feedback segment on 6 July 2014. In the result, Mr Tabbaa was successful only with respect to the early morning news item broadcast on 30 June 2014, being part of the second proceedings. Following a further hearing in February 2018, the judge awarded no damages. The judgment with respect to those orders, damages, and a notice of motion filed by the plaintiffs on 4 January 2018, which will be explained further below, was delivered on 19 April 2018. [1]

[7]

Issues at trial

The content of the main broadcast (as republished on the website) was summarised by the trial judge in the following passage (the "plaintiff" being Mr Tabbaa): "[8] Pamela Tabbaa was born in Australia. She commenced a relationship with the plaintiff in Sydney in the late 1970s. He came from Syria. They were married and then moved to Saudi Arabia and later Jordan. They had five children together, including Nadia and an older brother (Omar Tabbaa, who was not named in the program). The plaintiff was violent towards Pamela Tabbaa throughout their relationship. When Nadia was eight years old her mother fled from the plaintiff, leaving him in the Middle East, and returned to Australia with the five children. The plaintiff did not return to Australia until many years later. In the years following Pamela Tabbaa's return he contacted the family by phone on only a very small number of occasions. [9] When Nadia Tabbaa was in her first year of high school in southwest Sydney she commenced 'getting into trouble … smoking a cigarette before class … wagging a day at school … talking to boys'. At age 13 her mother made a plan with the plaintiff, her son by a former marriage (Geoffrey Rodgers) and Nadia's older brother Omar, to deceive her into travelling to Cairo, ostensibly for a two-week sightseeing holiday. Unbeknownst to Nadia the real purpose of the trip was to get her to the plaintiff's relatives in Syria where she was to remain so that they could 'get her set in her ways'. [10] Once Nadia and Geoffrey Rodgers were in Cairo, Omar Tabbaa joined them and arranged air travel for himself and Nadia to Jordan. There they stayed with the plaintiff's sister. The plaintiff came to Jordan to meet Nadia. He interrogated her about whether she had 'ever been with a man' and took her to a hospital to undergo a purported virginity test. As described, this was an examination to ascertain whether her hymen was intact. Despite the fact that she had not had any sexual experience she was beaten severely by the plaintiff and her older brother at her aunt's house in Jordan. The brother said that the plaintiff must have accepted she was a virgin because otherwise 'he would have killed you'. When asked how she reacted to this Nadia Tabbaa said: 'It's common practice over there, everyone is used to it. It's quite a normal thing to kill your daughter for not being a virgin.' [11] Nadia Tabbaa was taken from Jordan to Damascus, Syria and required to live there for the next five years 'in a small apartment with her grandmother, uncle and aunt and their baby'. Over those five years she was continuously depressed. She was required to attend an Islamic school and she learned Arabic. She was held captive by the plaintiff's relatives. She received phone calls from her mother every three weeks and 'begged … to come home' but was put off with statements that 'we can't afford it, … one more year'. [12] Ms Tabbaa was 'expected' to marry her second cousin who was 'in his early 30s'. She barely knew him and they 'never spoke' but she 'went along' with the marriage and took part in an 'engagement party'. However she secretly planned to escape from Damascus and return to Australia. British Embassy officials told her she could not be assisted until she was 18. On the day before her 18th birthday, at the end of August 2006, Ms Tabbaa arranged to meet diplomatic officials at a hotel in Damascus the next morning and to leave the country with their assistance. [13] Nadia Tabbaa said on the program she was by that stage so depressed by her situation in Damascus that she intended to take her own life if she could not escape. The meeting with the embassy officials went ahead. She was transferred to Jordan and provided with assistance for air travel back to Sydney. [14] By this time the plaintiff had himself come back to live in Australia. Soon after Ms Tabbaa's return the plaintiff met with her face-to-face and made a threat in these terms: 'No Western pig government is going to tell me how to raise my daughters, and if it comes to it, I'll slit your mother's throat and I'll slit your sister's throat and I'll slit your throat.' [15] Ms Tabbaa said in the television interview, which took place some seven years after the above threat had been made, that she was and remained fearful of violence at her father's hands. A restraining order was made against him for her protection. [16] Parts of the presenter's commentary in the main broadcast were capable of conveying that the plaintiff had forced his daughter when she was only 13 to marry her cousin 15 years her senior. The jury found that this meaning was in fact conveyed and that it was not true. Nadia Tabbaa herself had not said in the broadcast passages of her interview that she was forced to marry at the age of 13. It was the defendant's error that the presenter's commentary conveyed this."
With respect to the pleaded imputations, the effect of the trial was summarised by the judge in the following terms: "[18] With respect to the main broadcast and its publication on the Internet, the plaintiff pleaded 13 imputations (plus an additional one for the matter on the Internet). Of these the jury found that the following were conveyed, were defamatory and were substantially true: (b) The plaintiff abducted his daughter when she was 13 and sent her to Syria to be held captive by his relatives for five years against her will. (c) The plaintiff was violent and abusive towards his daughter. (d) The plaintiff threatened to slit his daughter's throat which made her fear for her life. (g) The plaintiff permitted the beating of his daughter by his son. (h) The plaintiff forced his daughter to undergo a virginity test. (j) The plaintiff threatened his daughter that he would slit the throat of his wife. (k) The plaintiff threatened his daughter that he would slit the throat of her sister. (l) The plaintiff bashed, beat and terrorised his wife for 20 years. [19] The defendant pleaded two contextual imputations pursuant to s 26 of the Defamation Act - both of which the jury found were conveyed, were defamatory and were substantially true - as follows: A. The plaintiff's violent and controlling treatment of his wife was such that she fled Jordan without his knowledge and moved the family to Australia. B. By his violent and abusive mistreatment of women, the plaintiff has committed crimes. [20] The jury found that the following further defamatory imputations were conveyed but had not been proved true by the defendant: (a) The plaintiff forced his daughter when she was only 13 to marry her cousin 15 years her senior. (e) The plaintiff was violent and abusive towards his wife, beating her regularly in front of his daughter. (f) The plaintiff beat his daughter with hands and belt at her Aunt's house in Jordan. (i) The plaintiff is the kind of person who would kill his daughter for not being a virgin. [21] The defendant had not contended that imputation (a) was substantially true but denied that it was conveyed. [22] The jury found that imputation (e) was not proved true but imputation (l) was. That is, they were satisfied the plaintiff had been violently abusive of Pamela Tabbaa but not that this had occurred in her daughter's presence. This conclusion is explicable having regard to Nadia Tabbaa's evidence in the trial that she had resided with both parents, and therefore could observe their relationship, only during the first eight years of her life, in Riyadh, Saudi Arabia and Amman, Jordan. Further she said that during that time the plaintiff worked elsewhere and visited the family only infrequently and for short periods. [23] The jury found imputation (f) not proved true but that imputation (g) was true. This is explained by reference to the evidence of Michelle Etherington. She had been in a relationship with Omar Tabbaa in 2002, in Sydney. They were subsequently married and later divorced. Ms Etherington said that upon Omar's return from Jordan in about February 2002 he had boasted of having beaten Nadia so severely with a belt in Amman that his aunt had had to pull him off her. The jury's answers are consistent with their having accepted Ms Etherington's evidence and treated it as showing that Omar Tabbaa administered the beating whilst the plaintiff looked on."

[8]

Issues on appeal

Notices of appeal were filed with respect to each of the three proceedings. Taken cumulatively, there were more than 60 grounds of appeal. There was, however, much overlap: grounds 1-11 were identical in each proceeding. However, Mr Tabbaa's appeal in the first proceedings contained further grounds 12-23 and, in the second proceedings, further grounds 12-26. Despite this prolixity, counsel for the appellants accepted at hearing of the appeals that only three issues arose.
The first two grounds in each appeal alleged an appearance of bias on the part of the trial judge which, it was submitted, should have led him to disqualify himself from continuing to hear the matter. As a finding of a reasonable apprehension of bias on the part of a trial judge would be sufficient to vitiate the conduct of the trial, absent any other error, it is generally appropriate to deal with the issue of bias first. [2] It will be addressed first below.
The second issue addressed the defence of "honest opinion" under s 31 of the Defamation Act 2005 (NSW), which was successfully raised by the defendant at trial. The relevant grounds took issue with (i) the formulation of the jury question on which the finding of opinion was based; (ii) the taking away from the jury of an exception to the defence; (iii) the failure of the judge to rule on the requirement of "public interest" in the publication, before entering judgment based on the defence, and (iv) the failure of the judge to set aside the judgment so entered on the basis of the correct understanding of the nature of the defence, being relief sought by the appellants on a notice of motion filed on 4 January 2018.
The third issue addressed the judge's refusal to award damages for that part of the second proceedings, the early morning news item, on which Mr Tabbaa succeeded. The appellant challenged the way in which the judge had taken into account an amount already received in other proceedings as sufficient to exceed the damages flowing from the present claim. Mr Tabbaa also asserted that he was entitled to aggravated damages because of his knowledge that the allegations were false.
For the reasons set out below, none of these challenges should be accepted: the three appeals should be dismissed.
In his 19 April judgment, the primary judge made a contingent assessment of damages on the assumption that the untrue allegation, namely that Mr Tabbaa had forced his daughter to marry when she was 13 years of age a cousin who was 15 years her senior, a statement made by the presenter of the program and not part of Nadia Tabbaa's story, was not covered by the defence of honest opinion. The judge concluded that no damages would have been awarded for the main broadcast and for the internet publication "having regard to the minimal diminution of reputation and the negligible additional hurt to feelings which could have flowed from the untrue imputations over and above the effect of the true imputations." [3] That finding was said to be "unsatisfactory". As the legal entitlement to damages on that basis has not been established this issue falls away.

[9]

Nature of court's jurisdiction

Although the contingent finding as to loss was not determinative of the value of the rights under appeal, it was far from clear that the amount in issue on the main appeals, especially for the mother, was in excess of $100,000. If s 101(2) of the Supreme Court Act 1970 (NSW) was engaged, leave was required. However, s 101(2) was not engaged: because there had been a jury trial, the appeal lay under s 102 of the Supreme Court Act, which is not subject to a requirement of leave in any circumstances. [4] Fortunately, the restraint exercised by appellate counsel avoided the need for an extended hearing on untenable grounds, beyond the control of a leave requirement.
However, it is less clear that s 102 of the Supreme Court Act applies to an appeal against an assessment of damages undertaken by a judge. Section 102 reads: 102 Appeal after jury trial Where, in any proceedings in the Court, there is a trial of the proceedings or of any issue in the proceedings with a jury, an application for: (a) the setting aside of a verdict or judgment, (b) a new trial, or (c) the alteration of a verdict by increasing or reducing any amount of debt, damages or other money, shall be by appeal to the Court of Appeal.
The chapeau to s 102 speaks of "a trial of the proceedings or of any issue in the proceedings with a jury"; that does not appear to engage issues required to be determined by a judge. Similarly, the reference to the alteration of a verdict in par (c) implies that it is a verdict of a jury which has fixed the amount of damages. Much of the case law dealing with appeals from awards of damages relates to a time when damages were assessed by the jury; see for example Carson v John Fairfax & Sons Ltd. [5] However, as no question as to the competence of this aspect of Mr Tabbaa's appeal was raised by the defendant, it is appropriate to deal with the matter as an appeal as of right under s 102. It would then not be an appeal to which s 75A of the Supreme Court Act applies because that provision does not apply to an appeal arising out of a trial with a jury in the Court: s 75A(2)(c). It is therefore not an appeal by way of rehearing.

[10]

(a) legal principles

The standard to be applied in determining whether a claim of a reasonable apprehension of bias has been made out is well-established: the court must ask itself whether "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide." [6] It is, the appellants accepted, true that a judge presiding over a jury trial is not required to determine factual disputes. It is also true that a judge may form a view about factual issues, including the credibility of witnesses. It may be appropriate for a judge to take a factual issue from the jury if a particular finding is not available on the evidence. Sometimes it may be inferred that a judge has formed a particular view adverse to one party from oblique statements, exchanges with counsel or from directions in relation to factual issues. The appellants took the Court to no case in which a verdict was set aside because of apprehended bias on the part of the judge presiding over a jury trial.
However, there are circumstances in which courts have reviewed claims of an alleged apprehension of bias against judges conducting jury trials. Broadly speaking, the statements of principle recognised that the judge is not a fact-finder in a jury trial, but nevertheless has significant powers to regulate and supervise the proceedings, including by rulings on the admissibility of evidence, controlling the behaviour of counsel and in summing-up the case to the jury. It has been said that the general regulation and control of the trial may influence the attitude of a jury "in subtle and sometimes imperceptible ways". [7]
There are also cases where an apprehension of bias may arise from interventions by the trial judge in the course of proceedings. Those questions have generally arisen in criminal trials where an appellate court has considered whether there has been a miscarriage of justice, a ground of which may be a reasonable appearance of bias on behalf of the trial judge. [8] A ground of appeal based on such interventions was upheld in Piccolotto v The Queen, [9] where the Victorian Court of Appeal stated the relevant principles in the following terms: "[41] The power and duty of a trial judge to control and regulate the proceeding before him or her, by requiring worthless methods of examination to be abandoned or by restraining unnecessary prolonged cross-examination, are undoubted. [10] Trial judges on busy courts are expected to ensure that trials are conducted as efficiently as possible. A trial judge who does not intervene to prevent undue delay or to ensure that the parties focus upon the critical issues may otherwise be the subject of criticism by an appellate court. [11] That said, it is to be expected that such objections to improper or irrelevant cross examination, at least in the first instance, should be raised by the prosecutor. If the trial judge felt that the prosecutor was not discharging his duty, he should have raised those concerns with the prosecutor in the jury's absence so that it would not be necessary for the judge to intervene in the jury's presence and be seen to be stepping into the arena of dispute. [42] Secondly, as the conduct of counsel affected the proper course of the proceedings, the judge was entitled to reprove counsel to ensure that witnesses were treated fairly and that the court's time was not wasted. In doing so, judges, being human, can be expected to react with impatience or irritation from time to time. They may sometimes have to be strong and forceful but they should, no matter the provocation, comport themselves with dignity. [12] [43] If the trial judge frequently intervenes by correcting and rebuking defence counsel, even where the interference is justified and the mode of intervention is restrained, the risks may arise that the jury will infer that the judge has formed an unfavourable view of the merits of the defence case or, at least, of counsel whose conduct is in issue. [13] A judge's comments must not convey the impression, whether by intervention or otherwise, that the defence is 'hollow.' [14] Further, and quite distinct from the risk that the jury might conclude that the judge did not view the defence case with favour, trenchant criticism of counsel carries with it the danger that the jury, acting upon the impression created by the judge, may have concluded that counsel's conduct reflected a lack of judgment, or incompetency, so that valid arguments or points taken by counsel would then not receive the consideration due to them. For such reasons any sustained reproof or detailed criticism should be advanced as far as possible in the absence of the jury. [15] … [45] Thirdly, no matter how clear it is to the trial judge that the cross examination of counsel is time wasting or pointless, there can be no justification for persistent rudeness or demeaning remarks directed at counsel. Discourteous or impatient conduct must not be of such an order as to generate a real risk that presentation of the defence has been hampered. [16] The trial judge must be astute to temper any criticism of counsel in the jury's presence. Strident or repeated criticism may undermine counsel's credibility in the eyes of the jury and affect the way the jury thereafter views counsel's conduct and arguments. [46] Fourthly, the power to stop counsel from pursuing a line of questioning which is either misleading or has no basis in fact must always be exercised having regard to considerations of fairness and balance - particularly in any exchange that might occur in front of the jury. It is so very significant a matter for a judge to accuse counsel in front of a jury of deliberate and misleading conduct, deliberate time-wasting or other deliberately improper conduct. If the judge finds it necessary to express a view about counsel's integrity, it should not, save in rare circumstances, occur in the jury's presence. Such criticism, if advanced before the jury may irrevocably diminish the standing of counsel in the eyes of the jury and also create the risk that the jury will infer that their case is without merit."
Piccolotto also considered the relevance of a failure to seek the discharge of the jury: "[52] Beyond the application that the judge disqualify himself, defence counsel, a very experienced practitioner, made no application that the jury be discharged as a consequence of anything the trial judge said in the jury's presence. It must be recognised that, even in circumstances where a trial judge deals unfairly or harshly with counsel in the jury's presence, forensic decisions are sometimes made not to seek a discharge of the jury because the judge's manner may be viewed as likely to attract the jury's sympathy and so enure to the benefit of the party they represent. [17] [53] While allowing for the possibility that such a forensic decision may have been made, we are driven to the conclusion that the exchanges between the judge and the applicant's counsel, together with the other frequent remarks directed at defence counsel's conduct were likely to have had the adverse effects about which the applicant complains. First, the judge's conduct must have seriously undermined the credibility and competency of counsel in the eyes of the jury. Secondly, there was a real risk that the jury formed the impression that the judge thought the defence case to be without merit. It was inevitable that the atmosphere of the trial was tainted in a manner so adverse to the applicant that, by the time the jury retired to consider its verdict, it could not be asserted that there had been a fair trial. [18] "

[11]

(b) factual basis of recusal application

As explained in the extract from the trial judge's summary of the events in question, the original plan to remove Nadia Tabbaa from Australia was concocted by Mr Tabbaa, Ms Pamela Tabbaa, Nadia's older brother Omar Tabbaa and a son of Pamela Tabbaa by a former marriage, Geoffrey Rodgers. The defence case commenced with the evidence of Nadia Tabbaa, followed by that of Mr Rodgers. Mr Rodgers gave extensive evidence with respect to the family background and his role in taking Nadia to Egypt.
Mr Rodgers and Ms Pamela Tabbaa realised that Nadia was quite desperate to escape from Syria and return to Australia. Mr Rodgers said that he had offered to pay on several occasions to bring Nadia home but had been told it was not an option. When she finally returned to Sydney, he collected her from the airport. Counsel for the defendant sought to obtain a description from him of his response to learning of Nadia's experiences after she returned to Sydney. After objections by counsel for the plaintiffs and rulings by the trial judge, he made the following statement: [19] "…I'd expressed my deep sorrow to Nadia about my role in what myself and my mum and Ra and Omar had done to her and their experiences overseas. I will always regret that - the effect that that's had on her life, which it seems is going to be an ongoing thing, and I just feel rotten. I - I still feel really, really deeply sorry about what happened to her."
Further questions as to how that had affected Mr Rodgers were objected to. The judge eventually saying: [20] "Why is that relevant? Look, in saying this, I don't mean to disregard what would be the effects on human feelings of people in a family like this, and I don't mean to be disrespectful to what effect these facts have had on people, but the jury are required to concentrate upon what occurred and whether what was said on the television program occurred is true. Now, what Mr Rodgers feels about it is just not to the point, Mr Dawson."
Counsel for the plaintiffs cross-examined Mr Rodgers to suggest that the mistreatment of which he had given evidence did not occur. Counsel also suggested to him that certain specific incidents, especially relating to assaults on Pamela Tabbaa, did not occur. Mr Rodgers' credibility was undoubtedly in issue.
Two witnesses were called to give relatively brief evidence, followed by Ms Julie Walker, who was Pamela Tabbaa's older sister and therefore the aunt of Geoffrey Rodgers and Nadia Tabbaa. She too gave evidence of the violence experienced by Pamela Tabbaa. She gave evidence of hearing from Pamela Tabbaa the statement, "we've abducted Nadia and as a matter of fact they're in the air now". [21] She also gave evidence of having a conversation with Geoffrey Rodgers after he returned to Australia stating: [22] "I most certainly did. I was - I was very angry. I said to Geoffrey, 'How dare you do something like that? You're living under nan's roof and I live there too, and you took Nadia away and you didn't even tell us.'"
At the end of Ms Walker's evidence the following exchange took place between the judge and the witness: [23] "Q. Ma'am, that completes your evidence and you're free to go. I think you said earlier that you - this may not be exactly how you put it, but you'd spoken quite harshly to Geoffrey Rodgers about his involvement in all this. A. Yes, I did. Q. I don't ask you to comment on this, but I'll just read you out an answer that he gave yesterday in Court, and then you're free to go. A. Right. Q. He said this yesterday, ma'am: 'I expressed my deep sorrow… about what happened to her.' You're free to go, ma'am."
After the judge had read the extract from Mr Rodgers' evidence the witness withdrew and Mr Evatt, for the plaintiffs asked: [24] "Why does your Honour read it out? HIS HONOUR: She's entitled to know it. It's evidence in the case. The jury have heard it." Further discussion then took place as to the future steps in the proceedings, following which the jury went out. In the absence of the jury, Mr Evatt continued: [25] "C EVATT: Your Honour, I don't think your Honour should have read out that passage. HIS HONOUR: Why not, Mr Evatt? C EVATT: Well, your Honour, it just seems that you're biased against the plaintiffs to read out a passage like that. HIS HONOUR: How would that be suggested from my reading back to her something that was said the day before by her nephew? C EVATT: Well, you could have read back a hundred things. HIS HONOUR: But that was something that was pertinent to her. C EVATT: I don't think your Honour should have done - I'm going to ask your Honour to disqualify yourself. HIS HONOUR: I'm not going to disqualify myself. An application that I disqualify myself is completely misconceived. I'm not going to be deciding the facts. What I'm going to be doing is summing-up to the jury. They decide the facts. They've been told at the outset, repeated on at least two occasions during the hearing, that the facts are entirely matters for them, and they'll be told again and again during the summing-up. C EVATT: Yes, but your Honour is - HIS HONOUR: If you're going to suggest that I would be biased in the way that I would sum-up to them, well, you simply can't say that at the moment because you haven't heard it? If there was going to be any application, the relevant application would be to discharge the jury on the basis that they've been biased by something that they've heard. I have no intention of doing that. I've heard enough about that, Mr Evatt."
Although there was no further recusal application based on this material, in submissions in this Court the appellants relied upon an explanation given by the judge at the start of his summing-up, explaining the exchange with Ms Walker. After explaining the purpose of the summing-up and the place it played in the proceedings, the judge continued: [26] "I told you, right at the outset, that the matters of fact, the evaluation of witnesses, are entirely matters for you. I have repeated that from time to time, because I intruded into the evidence; I asked questions. Sometimes to speed things up. Sometimes I thought to clarify things. Sometimes to cut things off. But I told you, at the times when I did that, that you were not to be influenced by any view that I appeared to take, or that you thought I might be taking. It is none of my role to take any view of the evidence or the conclusions of fact. There is one of those occasions when I raised something with a witness, about which I did not specifically reinforce to you that evaluations of fact are for you. That was when Mr Rodgers completed his evidence, and then Ms Walker came in and gave her evidence. And you will recall, at the end of her evidence, I read out to her something that Mr Rodgers had said. He had said that he was deeply remorseful for his part in this, what he thought was a cruel trick on Nadia. Now, whether you accept Mr Rodgers' evidence about there having been a scheme … whether you accept him or not is entirely up to you. Mr Evatt says he is lying. Whether you accept Ms Walker or not is entirely up to you. But the reason that I stopped to read back that answer that he had given, to Ms Walker, is this. Witnesses give their evidence in the order in which a party calls them. When one witness has finished, that witness may remain in court and hear the evidence of the others. If Ms Walker had been called first, and Mr Rodgers called afterwards, she would have heard him give that evidence. Now, these witnesses that come and give evidence here, they are not parties to the proceedings, but they are not just fodder to a legal machine. They are human beings. And when there is said, between an aunt and a nephew, that the aunt strongly disapproved of what she understood Geoffrey had done, and when he told you what he says he has done, and that he is very sorry about it; it is just a matter of human courtesy that I tell her what he said in open court. … But doing that does not convey any view about the truthfulness of them. I have told you over and over, and I tell you again, it is entirely for you. You judge who is telling the truth and who is not."
Concern for the personal feelings of participants in a trial may best be put to one side in conducting a trial, but the result of an expression of empathy does not necessarily lead to an unfair trial. This case may be contrasted with Webb v The Queen [27] in which the discharge of a jury was sought on the basis that, during the hearing, a juror in a murder trial had presented a bunch of flowers to a woman she did not know (who was in fact the mother of the deceased's fiancée), asking her to give them to the mother of the deceased. Mason CJ and McHugh J stated: [28] "The gesture of the juror may have been spontaneous, but a fair-minded person might fairly apprehend that it revealed a state of mind that was not compatible with the unemotional and impartial consideration of the case. … … But a finding that the incident gave rise to a reasonable apprehension of bias is not the end of the matter. The fair-minded and informed observer would also consider the effect of the judge's warning on the juror and the judge's assessment of the character of the juror."
Toohey J agreed with the Chief Justice and McHugh J in rejecting the challenge to the verdict. Nevertheless, the analysis is instructive because it focused on the capacity of the juror, as a decision-maker with respect to the facts, to approach the evidence on an unemotional and impartial basis. Not only did the act of the judge in the present case not reveal emotion or partiality, but the judge was not the decision-maker as to the facts.
Finally, if the foregoing considerations were thought insufficient, account should be taken of the manner in which the trial was conducted. The judge remarked on the circumstances at the end of his judgment: [29] amongst other difficulties, the judge stated: "[185] Throughout the trial counsel on both sides indulged in accusations against each other, in the presence of the jury, of procedural impropriety. Complaints were made about failure to give notice as to which witnesses would be called, failure to produce copies of documents that were being tendered, allowing an uncalled witness to wait within the hearing of the Court, allegedly improper communication between the plaintiff and an interpreter and so on. Such exchanges in the jury's presence, fairly described as squabbles, were frequent and were persisted in despite my requests that they cease or be deferred until the jury had been sent out. Counsel on both sides appeared to regard such conduct as legitimate advocacy. It is not. It had the potential to subvert my endeavours to have the jury decide the case only on the admissible evidence and the given law. On occasions these disputes had to be explained in an attempt to neutralise prejudicial effect. The jury were, in my estimation, not influenced. All four jurors showed attentive engagement with the case and they delivered balanced and discriminating answers to the questions they were asked. Counsel underestimated them." The judge further referred to "emotive, prejudicial and insupportable submissions [which] required extensive correction in the summing-up", [30] the judge concluded, referring to the "running battle" over evidence: [31] "Rather than exercise their own objective judgment and restraint, to assist the Court to accord a fair and efficient trial, counsel adopted equal but opposed positions of unreasonableness. They left it to the trial judge to try to withstand error, to protect witnesses (including the plaintiffs) against needless exposure of their private lives through irrelevant cross-examination and to overcome the distractions to which the jury were subjected."
Even a selective reading of the transcript (parts only of which were before this Court) confirms the criticisms made by the trial judge. In that context, it is impossible to give significant weight to the episode with Ms Walker set out in full above. The judge was correct to dismiss the recusal application as "misconceived".
Of course a statement made in the presence of a jury may lead to the discharge of the jury, if the unacceptable effect cannot be undone by appropriate directions. No application was made to discharge the jury, although in the course of the trial five recusal applications were made by counsel for the plaintiffs.
Nothing of the kind described in Piccolotto occurred in the present case; indeed, no counsel raised in this Court any criticism of the judge's description of how the trial had been run, as set out in the passages quoted above. Nor was it sought to defend the manner in which the trial was run by the respective counsel.

[12]

(a) pleaded defence

It is convenient to address the issues raised as to "honest opinion" by reference to the defence pleaded to the second further amendment statement of claim in the first proceeding. The defendant pleaded that particular (i), [32] namely that "[t]he plaintiff is the kind of person who would kill his daughter for not being a virgin" was an opinion held by Nadia Tabbaa and Omar Tabbaa.
The question which was put to the jury, and answered "Yes" in respect of each person, was as follows: "18. … Has the Defendant, Nine Network Australia, established that the first matter complained of would have been understood by the viewer as an expression of the opinion of (a) Rania Farrah (Nadia Tabbaa), and/or (b) Omar Tabbaa rather than as a fact, to the effect that 'The Plaintiff is the kind of person who would kill his daughter for not being a virgin'?"
In the event that question 18 was answered "Yes", the following further questions were asked: "19. Has the Defendant … established that the viewer would have understood that expression of opinion to be based on one or more of the following facts stated in the matter complained of: (a) Nadia's father was a violent and abusive man (b) Nadia was subjected to a virginity test by her father (c) Nadia was a virgin at the time of the test (d) Nadia's father was not satisfied with the results of the test (e) By reason of that dissatisfaction, Nadia's father beat her with his hands and belt (f) Nadia's father permitted her brother to participate in the beating (g) The beating only stopped upon the intervention of her aunt (h) Nadia's brother told her after the beating that if her father had believed that she was not a virgin, his father would have killed her."
The jury answered "yes" to each of the matters identified in question 19 and then, in relation to a further question asking whether those matters were true, answered "yes" as to all except (d) and (e).
The jury were then asked two further questions: "21. Has the Defendant … established that that expression of opinion might reasonably be based on the facts in question 20 to which you have answered Yes?" "22. Has the Plaintiff, Mouhammad Tabbaa, established that the Defendant … had reasonable grounds to believe that Nadia Tabbaa did not honestly hold that opinion?" The jury answered "yes" to the former, and was directed to answer "No" to the latter. The ground challenging the directed answer was not pursued.

[13]

(b) statutory provision

These questions and answers must be understood in the context of s 31 of the Defamation Act which, so far as presently relevant, reads: 31 Defences of honest opinion … (3) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. (4) A defence established under this section is defeated if, and only if, the plaintiff proves that: … (c) in the case of a defence under subsection (3) - the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published. (5) For the purposes of this section, an opinion is based on proper material if it is based on material that: (a) is substantially true, or (b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or (c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29. (6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.
Because the challenge to the directed answer is not pursued it is not necessary to address the appellant's challenge to the availability of the defence under s 31(4)(c). The grounds which are pressed are directed to the formulation of the questions which were said to be "misleading, deceptive and contrary to law": ground 4. Further, the submissions took issue with the failure of the judge to rule upon the question of public interest, being an essential element of the defence pursuant to s 31(3)(b). It is convenient to deal with the latter issue first.

[14]

The appellants' solicitor's affidavit in support of the notice of motion of 4 January 2018 seeking to have the verdicts set aside (although not, in terms, the judgments which had been entered) referred to there having been no ruling by the Court as to whether "the opinions were matters of public interest". [33] It was common ground that the question of whether the opinions "related to a matter of public interest" was a question to be determined by the judge. [34] In his judgment of 19 April, the judge said: "[32] I did not state my finding that the opinion "related to a matter of public interest" during the trial. But that finding was clearly implicit, and would have been understood by counsel to be implicit, in my giving judgment for the defendant on 21 December 2017 on three of the plaintiff's causes of action. The judgments were entered expressly on the basis of the s 31 defence and I was not at the time asked to give reasons. I do so now."
As the submission was developed on the appeal, it was, in substance, that there was an outstanding issue with respect to whether the opinions did relate to a matter of public interest; it was an issue on which the plaintiffs had not been heard and was therefore an outstanding issue which, until resolved, stood in the way of the entry of judgment.
That ground of complaint to the entry of judgment would be valid if there were an unresolved issue and it were established that the plaintiffs had not been accorded a reasonable opportunity to address with respect to the issue.
This issue was not squarely raised by any ground of appeal; nor was there material in the appeal books suggesting that there was any unresolved issue in this regard. The appellants' written submissions intimated that the entry of judgment was "premature" because "[i]t appears at this point the parties and his Honour had forgotten the need to resolve the public interest question." [35] Shortly before the hearing of the appeal some additional materials were supplied to the Court by the appellants, including pages of the transcript of 18 December 2017, recording an exchange which took place shortly before the jury retired. The discussion was largely between the trial judge and counsel for the defendant in relation to how the defence under s 31 operated. [36] In the course of addressing the section, the judge asked counsel for the defendant what the matter of public interest was, to which counsel repeated the statement of the public interest identified in the pleading. Mr Evatt (for the plaintiffs) then intervened to say, "[p]ublic interest is in dispute, your Honour, and it's for the Court to -". [37] The judge and counsel for the defendant then continued their consideration of a different aspect of the provision, until the discussion was adjourned to allow addresses to the jury to continue. At 4pm, the following exchange took place: [38] "DAWSON: … Now, Mr Evatt says for the first time, that's now a matter of dispute. But it is, I agree with him, a matter for your Honour, so we can have that debate later and not detain the jury, or your Honour could receive short written submissions about it if we get to it, but-- HIS HONOUR: Well, how can one avoid it, though, because - I mean, it's being left to them. DAWSON: But the question of public interest is not being left to them. HIS HONOUR: No. DAWSON: … the specific matter of public interest is established by Professor O'Connor's evidence, which is that the use of virginity testing to determine a woman's sexual history is a matter of international scandal, and that the fact that this practice occurs and has happened to an Australian woman … in the circumstances described in the program couldn't be a more classic matter of public interest. HIS HONOUR: Yes. Even without that, I wouldn't have any difficulty understanding that an expression of opinion about a person's willingness to kill his own daughter because she had ceased to be a virgin out of marriage was related to the practice of forced marriage. DAWSON: Yes. I don't know what Mr Evatt's submission on it is, your Honour, but perhaps we should give your Honour a one-page dot point about how we put the public interest issue so that your Honour at least knows what the contest is. HIS HONOUR: Yes. That would be helpful. I think I get it, but that would be helpful." Counsel for the defendant handed up the short note on the following morning. [39]
Towards the end of the summing-up on 19 December 2017 (it continued the following day) the jury requested a copy of portions of the transcript of the evidence. Arrangements were made in that regard, following which counsel for the defendant raised a series of issues for consideration. One referred to his note on public interest: [40] "The note on public interest your Honour's received, I don't know if your Honour's received it from the plaintiffs, but if your Honour has we haven't received it. But your Honour should have that assistance from both of us, so that both parties have been heard. It may not arise, your Honour may not require it now, but I just thought I should flag it."
There was no note thereafter from the plaintiffs. Nor was there any further reference to this issue before the jury returned to Court with the answers to the questions at 2.57pm on Thursday, 21 December 2017. Following distribution of the answers given by the jury, there was a discussion between the trial judge and counsel as to the consequential directions and orders which should be made to give effect to the jury's answers. First, with respect to Pamela Tabbaa's claim, counsel for the defendant noted that, of the imputations found to have been conveyed and to be defamatory, all were found to have been true; he therefore sought judgment and costs in his client's favour. [41] Mr Rasmussen, who had been appearing with Mr Evatt for the plaintiffs, agreed with that result. [42] With respect to Mr Tabbaa's claim, counsel noted that the opinion defence had succeeded with respect to the first matter of the first proceeding and operated as a complete defence. A different issue arose with respect to the early morning news segment. [43] The judge then said: "Sorry, Mr Rasmussen, do you agree with that? That for both the first matter, the 60 Minutes broadcast of 29 June and the second matter, the internet segment, that notwithstanding some imputations [were] found untrue and balancing contextual imputations the opinion defence has disposed of them. RASMUSSEN: Yes, given the answers to that question your Honour, it seems to be the case."
Accepting that the defendant had to address the question of damages with respect to the early morning news segment, defence counsel, Mr Dawson, then turned to the feedback segment. The following exchange took place: [44] "DAWSON: … Again there's a mixed result on the truth case, but there is a complete defence made out in respect of the opinion defence. HIS HONOUR: Yes. So is there a verdict for - a judgment for you for that. DAWSON: Judgment - that's right. HIS HONOUR: All right. Well, Mr Rasmussen, do you have a different calculation of the wash up? RASMUSSEN: I don't, your Honour, no. I don't."
The judge then indicated that he proposed to enter judgment on the two causes of action with respect to Mr Tabbaa which had been decided in favour of the defendants. Mr Rasmussen suggested that "administratively it might be easier to wait". [45] The judge then stated that he would prefer to finalise the two causes of action and then fix a date for the hearing on damages with respect to the third, after which he would give judgment in that matter. Mr Rasmussen raised no objection to that course. [46]
Two inferences should be drawn from this material. The first is that, although Mr Evatt had said there was a dispute with respect to the element of public interest, it was a passing remark which was not developed and was not pursued, although counsel for the defendant expressly raised it after providing his note. The first inference to be drawn from the silence on the plaintiffs' side is that there was no intention to provide a substantive response to the defendant's submissions in respect of that issue. The alternative inference is that, if, contrary to the first inference, there was an intention to respond, there was ample opportunity for counsel to take that step, including following the reminder by the defendant in the course of the summing-up. That counsel with long experience in defamation matters did not return to the point at the time orders were being considered to give effect to the answers given by the jury, may have resulted from inadvertence; however, it is likely that such inadvertence resulted from the matter having been earlier been dismissed as an issue to be pursued. On any view there was no denial of procedural fairness.
In these circumstances, the challenge to the entry of judgment must be rejected. For reasons which will be explained further below, the appellants are bound by the manner in which the trial was conducted by experienced counsel. The subjective intentions of counsel were not, in these circumstances, a material consideration. If a specific issue, raised by counsel for the defendant on more than one occasion, was not addressed, in circumstances where there was a reasonable opportunity to do so, there was no basis to set aside the judgments.
This aspect of the appeals must therefore be dismissed; the grounds of dismissal are neither procedural, nor technical, but go to the fundamental principles underlying the operation of the adversary system. However, it is convenient to note that the judge addressed the substantive issue in the 19 April judgment, referring to the defendant's pleading: "[31] … The relevant subject of public interest was particularised … in these terms: 'the practice of forced marriage which occurs within some parts of society, which had recently been the subject of legislation criminalising the practice and potentially conflicting ideologies of the treatment of women (particularly young daughters) in Muslim families within the Western culture.'" The judge continued: "[33] I accept the defendant's formulation of the subject to which the expression of opinion relates. An aspect of the subject is the forcible control and punishment of young women with respect to premarital sexual activity and relations with the opposite sex. The subject embraces controlling behaviour by males in the community and in other communities internationally, according to religious and/or cultural practices which may be seen as inconsistent with social values reflected in Australian law. Pertinently to this subject, all of the true facts upon which the viewer would have understood the expression of opinion to have been based (see [25]) illustrated punitive consequences for the young female who was suspected of premarital intercourse, without inquiry as to the circumstances, particularly the conduct of the male person involved. This is in contrast with Australian laws which criminalise the conduct of a male who has sexual relations with a female under 16 (or between 16 and 18 in certain circumstances), for example Crimes Act 1900 (NSW) ss 66C, 66D, 66EB and 73." He further stated: "[36] … The opinion of Nadia and Omar Tabbaa that the plaintiff would kill a daughter for not being a virgin was in my view related to this subject. It is an opinion closely connected with legitimate public concerns regarding the extent to which immigrants to Australia follow religious and traditional practices in conflict with community standards otherwise generally accepted in this country concerning the treatment of women."
It is not necessary to explore the reasoning of the trial judge in this respect further. There was no ground of appeal, nor submission, which challenged the conclusion that the opinions expressed by Nadia and Omar Tabbaa did relate to a matter of public interest. The judge's conclusion in this respect may therefore be accepted. The trial judge was therefore correct to reject the application to reopen the judgments on this further basis.

[15]

(d) "honest opinion" - scope of defence

The principal argument on the appeal with respect to the defence of honest opinion concerned the proper construction of s 31(3) of the Defamation Act. The issue may be succinctly stated as a choice between the following propositions: 1. by providing a "defence to the publication of defamatory matter", where the matter was an expression of opinion, there was a defence to the entirety of the defamatory matter upon which the plaintiff sued; 2. where the defamatory matter was an expression of opinion, the defence operated only with respect to so much of the publication as constituted the expression of the opinion.
In broad terms, the former approach was adopted by the defendant at the trial, both in formulating the relevant question for the jury and in the course of explanation of the formulation to the trial judge. The matter was left to the jury on that basis, without demur from the plaintiffs. Not having taken any point in this respect at trial, the appellants were somewhat coy as to the error identified for the purposes of the appeal. They eschewed the proposition that this Court should rule upon the correct construction of s 31; rather, they submitted that, in the course of his 19 April judgment, in considering the notice of motion seeking to have the orders made on 21 December 2017 set aside, the trial judge had in effect adopted the latter construction of s 31. It was submitted that the judge was in error in letting the orders stand once he was satisfied that they reflected an erroneous view of the law. The result, the appellants said, was that there would need to be a retrial.
Further, the appellants contended that the error at the trial comprised a misconstruction, not of s 31, but of the questions relating to the opinion defence, being questions 18 and 19. [47] However, if the section was ambiguous, the question contained the same ambiguity. It was not suggested that counsel for the plaintiffs had identified the ambiguity and addressed the jury on the basis that the question only required them to determine whether the particular imputation identified in the question was an expression of opinion, rather than the whole of the first matter complained of (the 60 Minutes broadcast) being an expression of opinion to that effect. Had the issue been raised, it should have been directed to the formulation of the question and the submissions with respect to a reformulation of the question would have addressed the underlying statutory ambiguity. It is not open to the appellants to seek to avoid their failure to raise the issue at trial by limiting the issue to the proper construction of the question left to the jury.
In the course of the 19 April judgment, two reasons were identified for the need to trace the course of submissions during the trial. Relevantly for present purposes, the judge stated: "[39] The second reason is that when the defendant asked for judgment on the basis of the jury's answers and junior counsel for the plaintiff agreed, no submission was made that the expression of honest opinion in imputation (i) was anything other than a complete defence to the published matter, notwithstanding that matter contained additional defamatory imputations which had not been proved true. The agreement that judgment be entered therefore constitutes in my view an insuperable obstacle to the plaintiff's motion now before the Court to have set aside some of the jury's answers and the judgment, on the basis of belated submissions about 'public interest' and 'complete defence'."
It is not necessary to trace the course of the trial, the appellants accepting that the judge was not invited to take a different approach. [48] Rather, reliance was placed on the fact that "at the hearing on the notice of motion, the issue then being raised, he took the view that the approach taken at trial was wrong." The appellants described the error as being "of a fundamental nature", stating that "a trial should always proceed according to law."
It is not entirely clear why the fact that the judge identified the supposed error of law was important for this challenge. Presumably, if the judge had failed to identify the error of law, that would itself have been a ground of appeal. At the very least, the appellants would need to establish in this Court that the trial proceeded on a false legal premise, otherwise there would be no substantial miscarriage of justice and the Court would be required not to order a retrial, pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 51.53 ("UCPR").
This challenge ultimately turns upon the correctness of the trial judge's approach in rejecting the attempt to reopen the orders which had been entered on the basis of an issue not raised at trial.
As a general rule, where a litigant is represented it will be bound by the decisions made by the lawyers representing it at trial. As the High Court stated in University of Wollongong v Metwally (No 2): [49] "It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so."
Similarly, in Coulton v Holcombe [50] it was said: "To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish."
Acceptance that the litigant would generally be bound by the manner in which its case is conducted by its legal representatives is not to deny that there may be exceptional circumstances where that principle will not be conclusive. As Gleeson CJ explained in relation to a criminal trial in Nudd v The Queen: [51] "[9] … Considerations of fairness often turn upon the choices made by counsel at a trial. In TKWJ v The Queen, [52] the appellant complained that evidence of his good character was not led. This, it was said, was unfair. In rejecting that argument, this Court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision. [53] That, in the circumstances of the case, was conclusive. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct. [10] … Nevertheless, there may be circumstances where it is relevant to ask why some act or omission occurred. In some cases, for example, it may be material to know that counsel took a certain course upon the instructions of the client. There could be circumstances in which it is material to know that a course was taken contrary to instructions. The possibility of a need to know the reason for conduct cannot altogether be eliminated. In general, however, as far as justice permits, the inquiry should be objective. As a matter of principle, such objectivity is consistent with the assumptions on which the adversarial system operates. As a matter of practicality, it avoids the difficulties inherent in turning a criminal appeal into an investigation of the performance of trial counsel. … [16] In the late 1980s, there were a number of cases in the Criminal Division of the English Court of Appeal where tactical decisions made by counsel without instructions from the client were claimed to have given rise to miscarriages of justice. In 1989, in R v Ensor, [54] Lord Lane CJ, reviewing earlier decisions, reaffirmed the general rule that a client is bound by counsel's conduct, but approved a qualification, expressed in an earlier decision, to the effect that where an appellant 'might have suffered some injustice as a result of flagrantly incompetent advocacy by his advocate' the conviction would be quashed. This was not an invitation to substitute a standard of competence of counsel for the statutory test of miscarriage of justice. It was stated, as a qualification to a general rule, in recognition of the possibility of exceptional circumstances. Nor was it an attempt to define those exceptional circumstances with precision. Flagrant incompetence may be contrasted with conduct for which there is a rational explanation. If, instead of 'flagrant incompetence', the English judge had spoken of 'conduct incapable of rational explanation on forensic grounds', the meaning might not have been much different."
For reasons explained below, the scope of s 31 is by no means clear. In the course of the trial there were extensive exchanges between Mr Dawson and the trial judge on this point. It should be inferred that the plaintiffs' counsel made a decision not to challenge Mr Dawson's construction, a decision which was not "incapable of rational explanation on forensic grounds". Nor, it should be added, did counsel for the appellants suggest that it should be so characterised.
The reasoning in Metwally is inconsistent with the proposition that an "exceptional" case will be identified where there is a contention that the court proceeded on a mistaken view of the law. The basis of the attempt to reopen an earlier judgment in Metwally was that the constitutional validity of the Commonwealth law, on which the judgment turned, was open to challenge. The refusal of leave to reopen to allow that issue to be agitated is inconsistent with the proposition that an alleged error as to the legal underpinning of the earlier judgment involved a matter of a "fundamental nature" warranting the revisiting of the judgment.
In this situation, it is not entirely clear why the trial judge thought it appropriate to embark on an analysis of the operation of s 31(3), a step which was concededly unnecessary, [55] particularly as the result was to reach a conclusion that "the section does not operate in the manner asserted by either party", presumably referring to the submissions on the notice of motion. It is not an exercise on which this Court should embark either. However, two notes of caution should be raised in respect of the exercise to be undertaken.
The first is that, although the competing constructions have been identified above as a binary choice, [56] that should not govern the debate in an appropriate context as to the operation of s 31. So much may be derived from the finding of the trial judge that s 31 does provide defences to the whole of the published matter, but only in the situation where the whole of the published matter was reasonably capable of being regarded only as an expression of opinion. If it cannot be so regarded, the judge expressed the view that s 31 is not engaged at all. [57] (Neither party to the appeal addressed that construction.)
The second caution relates to the manner in which the exercise is to be undertaken. Being a statutory defence, it is by no means clear that any useful assistance is gained from considering the operation of the common law defence of "fair comment". Furthermore, on the statutory assumption (in s 6(3)) that any reference to the general law should treat the earlier Defamation Acts as never having been enacted, great caution must be taken in relying upon cases decided in relation to provisions of those Acts. A preferable course, at least in the first instance, would be to consider the terms of s 31 by reference to the language and operation of the Defamation Act 2005. That would require having regard to the statutory definition of "matter" (in s 4), the use of the term "defamatory matter" in other provisions (such as ss 22 and 25-33) and the different language of the defence of justification which deals with the "defamatory imputations carried by the matter": s 25 (and see s 26).
The grounds of appeal relevant to the defence of honest opinion should be rejected.

[17]

(a) mitigating factor - recovery of other damages

The statutory basis for the step taken by the trial judge is to be found in s 38 of the Defamation Act which relevantly provides: "38 Factors in mitigation of damages (1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that: … (c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, or … (e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter. (2) Nothing in subsection (1) operates to limit the matters that can be taken into account by a court in mitigation of damages.
In construing this provision, the defendant referred to a judgment of Miles CJ in the ACT Supreme Court dealing with s 7 of the Defamation (Amendment) Act 1909 (ACT), which was to similar effect, and the construction given to an earlier provision, also to similar effect under earlier New South Wales legislation. In the passage relied upon, Miles CJ stated, somewhat enigmatically: [58] "All that can be gleaned, with respect, is that the section is to be applied in a broad way with the object of preventing a plaintiff from receiving double compensation and while requiring the defendant to answer fully in damages to the extent that its publication has brought about damage to reputation, to restrict those damages to the injury caused by the publication by the defendant sued upon by the plaintiff."
There are three difficulties with reliance upon this precedent. First, the statement was made in the application of legislation which differed in significant respects (though not perhaps in overall purpose) from s 38 of the Defamation Act. Secondly, it relied upon a case in this Court, Uren v John Fairfax & Sons Pty Ltd, [59] with respect to what was identified as "s 48 of the New South Wales legislation" (in fact s 24 of the Defamation Act 1958 (NSW)), which this Court is required to treat as never having been enacted. [60] Thirdly, at least with respect to s 38, it is difficult to identify any purpose other than the purpose of mitigation of damages referred to in both subs 38(1) and (2). The provision does indeed have a "dual function", as submitted, but not the two limbs identified in the passage set out above. Rather, the section expressly identifies certain categories of evidence as admissible; it impliedly authorises their use for a specific purpose, namely the mitigation (reduction) of an otherwise appropriate award of damages.
The judge dealt with this issue in the following passages: "[154] Evidence was tendered by the defendant that the plaintiff received, prior to the trial, compensation for defamation arising from publication on the Internet by a third party of the content of the main broadcast. That evidence was received under s 38 which provides … [155] But for that evidence I would have assessed the plaintiff's damages for the morning television news at $20,000. … [156] As the compensation received from the third-party was significantly greater than the damages I would assess, the plaintiff is not entitled to any further award in this proceeding."
The appellant complained that the legislation "gives no assistance as to how any mitigation is to be evaluated" and stated that "[t]he basis on which his Honour proceeded is not entirely clear". [61] The appellant submitted that the Court should proceed on the basis that (i) another publication will have additional effects unless there is a complete overlap in the audience for the two publications; (ii) even in the case of repetition to the same audience, a subsequent publication will have further effects, simply because successive publications will have additional, if diminishing impact, and (iii) the comparative size of the awards was irrelevant. The last proposition appeared to follow from the earlier propositions, namely that even a "small publication following a large one will still add its small amount of damage."
The appellant sought to impose on the exercise of the judge's discretion a constraint not found within the terms of s 38. Precisely how such mitigation will be effected is not identified in s 38. It is clear that, with respect to an apology or a correction, the effect on damages will be very much a matter of impression. However, it may be accepted that with respect to damages already recovered, either by way of an award or a settlement, the primary purpose may be to prevent double recovery. There may, however, be other purposes, including encouraging the combining of claims, where possible, in one proceeding, and encouraging settlement of proceedings. That appears from the fact that even the bringing of proceedings for another publication is to be treated as a factor mitigating the damages to be payable by the defendant.
There is no basis for imposing a constraint to the effect that the judge must allow the recovery of damages for publication of the defamatory matter the subject of the instant proceeding, unless affirmatively satisfied that it could have caused no additional harm to the plaintiff, over and above that for which he has already been compensated. That is not to say that the possibility of additional harm, or indeed the absence of it, is not a relevant consideration; it is merely to say that there can be no mechanical rule as to the application of such considerations. Further, it is clear that the section is not limited to republication of the identical defamatory matter, nor republication by the same defendant. It is sufficient that there has been another publication of matter "having the same meaning or effect" as the defamatory matter.
Part of the reason for the cryptic nature of the judge's reasons was no doubt the agreement that the relevant evidence was the subject of a suppression order. The evidence, obtained on subpoena, included a statement of claim issued by Mr Tabbaa against the owner of a website which had published a summary of the story, in very similar terms to those used by Nine Network, together with a link to the 60 Minutes program. Why the identification of any part of that material should be suppressed is obscure. What was probably intended by the suppression order was that there be no publication of the term of a deed of release executed by the parties in October 2016 which contained the amount of the payment, representing damages and a proportion of the costs incurred by the plaintiff.
The deed required that the parties keep the contents of the deed confidential and not disclose its contents unless required by law. That contractual obligation would not, of itself, warrant an order under the Court Suppression and Non-publication Orders Act 2010 (NSW) of the content of the subpoena, the statement of claim and the deed of release. However, it was suggested that the Court should not lift the suppression order without hearing from the media outlet which was a party to the deed. Accordingly, these reasons will not disclose the amount of the payment, beyond saying that, even making allowance for the fact that the figure covers both damages and costs, and having regard to the fact that the matter was settled about 8 months after the proceedings were issued, the likely component for damages was well in excess of the figure of $20,000 assessed by the trial judge in the present matter. That is a relevant factor.
It is also relevant to have regard to (i) the similarity of the imputations pleaded in the statement of claim to those pleaded in the present matter; (ii) the fact that the plaintiff was not identified in the publication of the early morning news item, and (iii) was not a public figure and would not have readily been identified by anyone who did not recognise him as the driver of the car shown in the footage, or who knew him as the father of Nadia Tabbaa, who was shown, but not named, in the news broadcast.
In these circumstances, there was no error in reducing the award of damages by $20,000.

[18]

(b) circumstance of aggravation - knowledge of falsity of publication

The appellant complained that, in noting that he claimed aggravated damages, the judge restricted his consideration of the claim to aspects of the defendant's conduct, in which he found no basis for aggravation. [62] That did not address the claim of aggravation based on the plaintiff's knowledge of the falsity of the allegations.
However, that was not the whole of the relevant material. In considering damage to reputation, the judge stated: "[146] The facts which established the substantial truth of imputation (c) (that the plaintiff kidnapped his daughter) leave him with a very adverse reputation as a parent. By January 2002 he had barely seen Nadia in the first 13 years of her life. From 1997 he had had no contact with her, had provided no material support and had undertaken no responsibility for her education or guidance. He then had a few days' contact in Jordan, for an interrogation, a purported virginity examination and a beating, before handing her over to his mother and brother. Thereupon he ceased all contact once again. The circumstances portray him as an uncaring, brutal, irresponsible parent who abandoned his child to others at all times, including when she appeared most to need guidance." The judge then turned to consider "Hurt to feelings", and said: "[150] With respect to the plaintiff's hurt to feelings, I am not satisfied that any measurable, compensable hurt to the plaintiff's feelings would flow from the false imputations of forcing Nadia to marry at 13 and selling her off. The evidence which the jury evidently accepted (and which I also accept) concerning the true imputations in the news item showed a man completely lacking compassion or sense of responsibility for his daughter, interested in her only to the extent of fearing she might infringe his preoccupying concern with her chastity or that she might in some other respect disobey his wishes. The false imputations cannot have caused compensable hurt to feelings in someone who had shown he had no sensible feelings where his daughter was concerned. [151] The plaintiff's own evidence generalised the upset he has felt in reaction to the morning news and to the defendant's plea of justification of most of the imputations. He did not separately identify particular hurt to his feelings flowing from the untrue representations as opposed to the true ones. This evidence therefore does not assist in the assessment of his damages."
These passages clearly address the pleading that the plaintiff's "hurt and upset has been increased by his knowledge that the imputations are false." [63] The challenge to this aspect of the assessment was without substance.

[20]

Endnotes

Tabbaa v Nine Network Pty Ltd (No.10) [2018] NSWSC 468 ("19 April judgment").
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [117] (Kirby and Crennan JJ); Gummow ACJ agreeing at [3].
19 April judgment at [166].
Bennette v Cohen (2005) 64 NSWLR 81; [2005] NSWCA 341.
(1993) 178 CLR 44; [1993] HCA 31.
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
Balic (No 2) (1994) 75 A Crim R 515, 520 (Cole JA, Handley and Sheller JJA agreeing). See also Regina v Kearns [2003] NSWCCA 367 at [34]-[38] (Spigelman CJ, Dunford and Hidden JJ agreeing); MJD v Regina [2006] NSWCCA 151 at [36]-[37] (Hodgson JA, James and Hoeben JJ agreeing).
See R v Mawson [1967] VR 205 at 207 (Winneke CJ, Adam and Barber JJ).
[2015] VSCA 143 (Redlich, Santamaria and Beach JJA).
See Mooney v James [1949] VLR 22, 28; Kalia (1974) 60 Cr App R 200; Kranz (1991) 53 A Crim R 331, 340; Love v The Queen (1983) 9 A Crim R 1, 26; Lars (1994) 73 A Crim R 91, 125..
R v Thompson [2002] NSWCCA 149; 130 A Crim R 24, [39]; R v Wilson & Grimwade [1995] 1 VR 163.
Lars (1994) 73 A Crim R 91, 133
Tousek v Bernat [1961] SR (NSW) 203, 209; Galea v Galea (1990) 19 NSWLR 263, 280.
Cunningham (1992) 61 A Crim R 412, 429 (Crockett, Southwell and O'Bryan JJ).
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3.
R v Hircock [1970] 1 QB 67, 72 (Widgery LJ); Cunningham (1992) 61 A Crim R 412, 429 (Crockett, Southwell and O'Bryan JJ).
See, for example, Lars (1994) 73 A Crim R 91, 130.
Lars (1994) 73 A Crim R 91, 142.
Tcpt, 13/12/17, p 1885(35)-(40).
Tcpt, p 1886(30)-(35).
Tcpt, 14/12/17, p 2043(40).
Tcpt, p 2044(42).
Tcpt, p 2057(26)-(41).
Tcpt, p 2057(45).
Tcpt, p 2059(5)-(35).
Tcpt, 19/12/17, pp 1-3.
(1994) 181 CLR 41; [1994] HCA 30.
Webb at 54-55.
19 April judgment at [178]-[187].
19 April judgment at [186].
19 April judgment at [187].
At that time particular (j).
Affidavit, Gaius William Whiffin, 4 January 2018, par 17.
See Defamation Act, s 22(5)(b).
Appellants' written submissions, 31 January 2019, par 25.
See tcpt, 18/12/17, p 2277.
Tcpt, p 2281(1).
Tcpt, pp 2306(35)-2307(35).
Tcpt, 19/12/17, p 2329(5).
Tcpt, 19/12/17, p 19U.
Tcpt, 21/12/17, p 6D-H.
Tcpt p 6N.
Tcpt, p 7V-8C.
Tcpt, pp 11U-12C.
Tcpt, p 12V.
Tcpt, pp 12-13.
See questions set out at [37] and [38] above.
Appellants' written submissions, par 22.
(1985) 59 ALJR 481 at 483; [1985] HCA 28.
(1986) 162 CLR 1 at 7 (Gibbs CJ, Wilson, Brennan and Dawson JJ); [1986] HCA 33.
(2006) 80 ALJR 614; [2006] HCA 9.
(2002) 212 CLR 124; [2002] HCA 46.
TKWJ v The Queen at [16] (Gleeson CJ); [26]-[27] (Gaudron J); [95] (McHugh J); [107] (Hayne J).
[1989] 1 WLR 497 at 502.
19 April judgment at [69].
See at [55] above.
19 April judgment at [78].
Thompson v Australian Capital Television Pty Ltd (1997) 129 ACTR 14 at 24.
(1965) 66 SR(NSW) 223.
Defamation Act, s 6.
Appellant's written submissions, pars 31 and 30 respectively.
19 April judgment at [155].
Further amended statement of claim filed 17 September 2015 in the second proceeding, p 4, "Aggravated damages". 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: 11 April 2019

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Cases Cited (27)