Before the Court is an application by the defendant that its costs of the plaintiff's unsuccessful action, which the plaintiff has been ordered to pay, should be assessed on an indemnity basis. The plaintiff, Pamela Tabbaa, claimed damages for defamation arising from a television broadcast by the defendant on 29 June 2014 in a segment of its "60 Minutes" program. She particularised four imputations. The jury found that only three of them were conveyed by the published matter. Each of those was found to be defamatory however the jury accepted that the defendant had proved each of them substantially true.
The three imputations were as follows:
(a) The plaintiff lied to her daughter when she said they would take her to Egypt for a holiday.
(b) The plaintiff assisted in the abduction of her daughter.
(c) The plaintiff conspired with her husband's family to keep her daughter in Syria for years against her daughter's will.
The plaintiff's action was tried together with a claim for damages in defamation brought by her husband, Mouhammad Tabbaa, based upon the same broadcast. He alleged that he had also been defamed in the publication of the program on the defendant's website, in the broadcast of a television news item on 30 June 2014 and in the broadcast of a viewer feedback item one week after the original "60 Minutes" program, on 6 July 2014. The trial with a jury occupied 24 sitting days in November and December 2017. The jury's findings were given on 21 December 2017 by way of answers to a series of questions submitted to them.
As all three of the imputations conveyed concerning the plaintiff were found to be substantially true, the defendant's defence of justification under s 25 of the Defamation Act 2005 (NSW) succeeded. Accordingly, upon the return of the jury's answers judgment was entered for the defendant. At that time it was also ordered that the plaintiff pay the defendant's costs of the action.
I have power to order that the defendant's costs be assessed on an indemnity basis and also to specify the extent to which the costs of the trial, which as mentioned was also a trial of Mouhammad Tabbaa's actions, should be included in the assessment against the plaintiff: Civil Procedure Act 2005 (NSW), s 98(1). Although the order that the plaintiff pay the defendant's costs has already been entered in those terms, it remains open to the Court to entertain the defendant's present application for indemnity costs and to apportion the costs of the trial. In this respect I am in the same position as Holland J in Degmam Pty Ltd (In Liq) v Wright (No 2) [1983] 2 NSWLR 354, where his Honour said (at 356C):
Secondly, the existing order is not a considered judgment as to the basis on which the costs ought to be taxed. It is a considered judgment as to whether the defendant should pay the costs of the other parties, but the question whether the costs should, in the light of the findings of the court, be taxed on any special basis was not in fact given any consideration by me before the order was made.
In the present case, the equivalent position was made clear at the time of ordering that the plaintiff pay the defendant's costs. I did not then make any "considered judgment" whether they should be on the ordinary basis or the indemnity basis but stated only that there was a "very serious question" whether the indemnity basis should apply, having regard to the implication from the jury's answers that they must have found the plaintiff deliberately untruthful.
The grounds upon which the defendant now says the indemnity basis should apply are set out in the defendant's written submissions dated 2 February 2018 as follows (referring to both the plaintiff and her husband as "the plaintiffs"):
a. the plaintiffs should have known that they had no chance of success;
b. each of the plaintiffs led false evidence and thereby sought to mislead the Court;
c. the proceedings were unnecessarily prolonged by the plaintiffs making unjustified allegations;
d. the proceedings amounted to an abuse of process.
The defendant's written submissions include a general contention as follows:
This couple, apparently driven together (the Court might infer) by pecuniary wants and the designs of their son Omar, have demonstrated that they are prepared to say whatever has to be said to get the result they need from the Courts. By the hopelessness of their cases and their conduct of the Proceedings, the Court should infer that they colluded (whether directly or with Omar) for the purpose of attempting to extract a damages award from what they perceive to be a wealthy media defendant.
That is, the factual premise of the indemnity costs claim is that the plaintiff mounted her defamation action and resisted the defendant's case on truth knowing from the outset that the three imputations listed at [2] were true and that her evidence in denial of them would be (and, in the event was) deliberately false. To substantiate the premise the defendant relies, first, upon the jury's findings (written submissions par 24).
The jury heard four weeks of evidence including from the plaintiff, from those who supported aspects of her account (notably her son Omar Tabbaa and her mother-in-law Faiza Alassad) and from those who contradicted her (in particular her daughter Nadia Tabbaa, her son by her first marriage Geoffrey Rodgers, Omar Tabbaa's former wife Michelle Etherington and the plaintiff's sister Julie Walker). The jury heard final addresses of both counsel in which the truthfulness of the plaintiff was closely considered. Their answers involved rejection of her evidence concerning the three imputations and acceptance of the opposing witnesses in circumstances where, from the nature of the subject matter, the plaintiff could not have been innocently mistaken or merely unreliable.
The imputations that were in issue concerned the plaintiff's own actions and her accompanying state of knowledge and intention. The events were dramatic, emotionally charged (because they involved the plaintiff's immediate family) and inherently memorable. In arriving at their rejection of the plaintiff's evidence on these imputations the jury must have found her deliberately untruthful. The defendant's factual premise for its present application, summarised at [9], must be accepted. Failure to accept this would be to contradict the jury's findings. I considered that that was apparent upon the jury returning their answers that the imputations were substantially true.
In addition to relying upon the jury's answers the defendant has submitted an analysis of the plaintiff's evidence in support of its contention she was deliberately untruthful (written submissions pars 25-27). Taking into account those submissions and the plaintiffs' brief oral submissions to the contrary on 5 February 2018, I will record my own observations upon the evidence generally in the case, so far as relevant to identifying the context of the jury's findings and to show that their rejection of the plaintiff, including the inherent attribution to her of deliberate falsehood, was open and, in my view, unsurprising. I would reach the same conclusion.
Reference to the factual issues upon which the plaintiff was disbelieved must commence with a brief summary of the broadcast program by which she said she had been defamed. This can be limited to parts that concerned the plaintiff. Other parts relevant only to Mouhammad Tabbaa's defamation actions will be omitted.
[3]
Outline of the "60 Minutes" segment
The segment of the "60 Minutes" program comprised, for the most part, an interview with Nadia Tabbaa, a daughter of the plaintiff and of Mouhammad Tabbaa. She was referred to in the program as Rania Farrah. There was also commentary by a presenter and passages from an interview with Dr Sharobeam. The doctor is involved in assisting females under the age of 18 years who have been forced into marriage against their will. In outline Nadia Tabbaa described in her interview on the program alleged events as summarised in the following paragraphs ([15]-[20]). The correct names of the persons concerned are used in this summary although they were not used in the broadcast.
The plaintiff is an Australian woman who met Mouhammad Tabbaa in Sydney in the late 1970s and commenced a relationship with him. The plaintiff was born in 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. Mouhammad Tabbaa was violent towards the plaintiff throughout their relationship. When Nadia Tabbaa was eight years old her mother fled from her husband, leaving him in the Middle East, and returned to Australia bringing the five children with her. The husband 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.
When Nadia Tabbaa was in her first year of high school she commenced "getting into trouble … smoking a cigarette before class … wagging a day at school … talking to boys". At age 13 the plaintiff made a plan with her husband and her son Omar to deceive Nadia 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 her father's relatives in Syria where she was to remain so that they could "get her set in her ways".
Once in Cairo, Omar Tabbaa joined Nadia (unexpectedly so far as she was concerned), arranged air travel to Jordan and escorted her there. They stayed in Amman with a sister of Mouhammad Tabbaa. He came to Jordan to meet his daughter. There 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 the girl had not had any sexual experience, she was beaten severely by Mouhammad Tabbaa and by her older brother at her aunt's house in Jordan.
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 her father'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".
Nadia was "expected" to marry her second cousin who was "in his early 30s". She barely knew him and they "never spoke". Nadia "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, she arranged with diplomatic officials to meet them at a hotel in Damascus the next morning and to leave the country with their assistance.
Nadia Tabbaa 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. By this time her father had himself come back to live in Australia. Soon after Nadia's return he met with her and threatened her with violence. Nadia said in the television interview, which took place some seven years after the 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 in 2006.
[4]
Pamela Tabbaa's evidence
In this judgment my references to the evidence are to a substantial extent repetitive of what I have said in my judgment of the same date concerning the defamation actions of Mouhammad Tabbaa. The plaintiff denied that there had been any deception of Nadia to induce her to travel to Cairo. She claimed to have told Nadia that her brother Omar would be following her and would take her to Jordan to visit relatives. She said that at the time of Nadia's departure for Cairo there was no definite plan that she would remain with her father's relatives in the Middle East and that this was no more than a possibility in contemplation. She claimed that Nadia went happily from Jordan to Damascus in early 2002 and remained there happily over the next four and a half years, free to return to Australia if she had ever requested that.
The plaintiff was cross-examined about alleged violent mistreatment of Nadia by Omar in Sydney, during 2000 and 2001. It was put to her, apparently on the basis of instructions from Nadia Tabbaa (having regard to Ms Tabbaa's subsequent testimony) that at the home in Ingleburn where the plaintiff, Nadia and three other children resided, Omar had frequently beaten her severely with a belt and with other objects, kicked her and otherwise physically mistreated her. Omar also lived in the home in mid-2000 but moved out the next year. He was 21 years old in mid-2000 and Nadia was then 11 (turning 12 in August). It was put to the plaintiff that this abuse made it highly unlikely Nadia would have agreed to travel to Cairo if she had known the trip involved Omar escorting her to Amman. Hence, it was suggested to the plaintiff, Nadia Tabbaa was not told that her brother would be joining her in the Middle East.
The plaintiff denied that Nadia was physically abused by herself or Omar. Records of the Department of Community Services ("DoCS") were tendered and she was cross-examined on them. The records included the following:
1. On 6 June 2000 (at age 11) Nadia had disclosed to a "notifier" that she had been hit and kicked by Omar in a protracted episode, watched over by the plaintiff.
2. On 16 June 2000 contact was made by a Department officer with the plaintiff and she confirmed "older sibling hits [subject child]". A case review report recorded that Omar was also present at the meeting and "They undertook to stop doing this and [use] other methods".
3. On 27 September 2001 a notifier informed the Department that Nadia said she had been beaten by Omar with her shoe "and now she cannot walk properly, and has bruising on her left arm, and light bruising on her legs". It was recorded Nadia had informed the notifier that "after the DoCS visit [of June 2000] she was severely beaten but didn't make another report because she was too scared. Nadia says that the beating[s] then stopped in their intensity but recently [have] gotten worse." According to this report Nadia told the notifier that Omar "said if she reports the beatings that he will have her sent to Syria" and that she is "petrified of the repercussions of the disclosure if DoCS advised the family then decide to leave Nadia at home".
4. On 28 September 2001 Nadia repeated directly to a DoCS case worker much of what she had told the notifier the previous day and exhibited bruises on her arm and shins.
5. On 2 October 2001 a DoCS case worker made a home visit and interviewed both the plaintiff and Omar. It was recorded "their account of the physical and emotional abuse corresponded with Nadia's. Both Pamela and Omar acknowledged the inappropriateness of physical punishment and undertook not to hit Nadia again".
6. In interviews by DoCS case workers in June 2000 and September and October 2001 the plaintiff acknowledged that she, also, had physically chastised Nadia.
In cross-examination on this material the plaintiff maintained her denial that Nadia was physically abused by herself or by Omar but had no rational explanation for the contemporaneous DoCS records of Nadia's complaints. Nor could she sensibly explain why she and Omar had given undertakings to the Department to cease corporal punishment if, as she asserted, there had been no corporal punishment.
The plaintiff's admissions in the DoCS records contradicted her denial of Omar's physical abuse of Nadia at Ingleburn in 2000 and 2001. The records detracted from her credibility and at the same time constituted positive evidence of a relationship between Nadia and Omar which made highly improbable the plaintiff's assertion she had fully disclosed to Nadia that her trip to Cairo would involve Omar joining her and escorting her to Jordan. This improbability was reinforced later in the trial when Nadia Tabbaa, her older half brother Geoffrey Rodgers and Michelle Etherington gave consistent evidence that the plaintiff had deliberately concealed from Nadia the intended purpose of her trip to Cairo. All of this was contrary to the plaintiff's denial of the defence of justification to the first two imputations (see [2(a)-(b)]).
In October 2010 Pamela Tabbaa made an affidavit in matrimonial proceedings between Omar and his former wife, Michelle Etherington, in the Federal Magistrates Court (as that court was then known). She deposed that Mouhammad Tabbaa "and I together decided that Nadia would be safer living with family in Syria for a time". The affidavit was a straightforward acknowledgement that in late 2001 the plaintiff and her husband had been parties to a plan, made before Nadia's departure to Cairo, for her to be removed to the Middle East to reside there. In cross-examination the plaintiff contested this and claimed she had only ever settled upon Nadia remaining in the Middle East and only agreed anything with her husband concerning this after the girl had arrived with her brother in Amman in January 2002.
After these defamation proceedings had been commenced the plaintiff swore another affidavit in the matrimonial proceedings, in May 2016. In this she omitted all reference to involvement of Mouhammad Tabbaa in the plan to remove Nadia from Australia to Syria. She deposed that she had taken the decision alone and "reached out to Nadia's paternal grandmother … who lived in Damascus Syria", asking whether Nadia could reside with her "indefinitely". That was also contradictory of her evidence in chief regarding the absence of any plan for her daughter to remain overseas, at the time of her departure.
There is also an available inference that in the matrimonial proceedings the plaintiff changed her affidavit evidence regarding whether her husband was involved the plan in order to suit the prosecution of his defamation claim, wherein he disputed that he had had any part in arranging for Nadia to be induced to travel to Cairo. In cross-examination the plaintiff could give no plausible alternative explanation for the variance in these affidavits. The May 2016 affidavit was contradicted by Faiza Alassad (Nadia's paternal grandmother) who gave evidence that she had no contact with the plaintiff about Nadia going to live with her prior to the girl's arrival in Amman.
The plaintiff's affidavits in the Federal Magistrates Court further damaged her case that the imputations set out at [2(a)-(b)]) were untrue. Both affidavits were direct, out-of-court admissions that the plaintiff had arranged prior to Nadia's departure for her to remain in the Middle East, contrary to her evidence in chief. The material difference between the two affidavits and the coincidence of the change with the commencement of the defamation proceedings bore upon her credit.
The plaintiff gave evidence at trial that she spoke by phone with Nadia once every three or four weeks whilst the child was in Damascus from early 2002 until August 2006. The plaintiff said that during these conversations Nadia described herself as generally happy and appeared so. If she had not been happy the plaintiff claimed that she could and would readily have made arrangements for Nadia to return to Sydney.
In contradiction of this the defendant tendered records of the Commonwealth Department of Foreign Affairs and Trade ("DFAT") from which it appeared that in early August 2006 Nadia represented to an Australian Emergency Response Team ("ERT") officer at the Canadian Embassy in Damascus the following:
1. She had been "brought to Syria under false pretences (a holiday) by her father when she was 13 years of age and placed in the care of her two uncles and grandmother on her father's side".
2. She was "being prevented from leaving Syria by her father and uncles … and requesting assistance to return to Australia".
3. Her movements in Syria were "monitored and … restricted" and she would not be permitted by her father and uncles to return to Australia. If the family in Syria learned she was trying to leave "they would take measures to prevent her from doing so".
The DFAT records showed that diplomatic personnel contacted the plaintiff on 11 August 2006 "and briefed her on [Nadia's] discussion with [the ERT officer] in Damascus, noting [Nadia's] desire to depart Syria and her strict wish that her Syrian family (including brother Omar) not be informed of this fact". The plaintiff's response was recorded as follows:
[The plaintiff] supported all of [Nadia's] claims. She said [Nadia's] movements were monitored by several uncles and the family would not permit her to depart Syria. The father had categorically stated that [Nadia] would not be permitted to return to Australia.
In response to posts query regarding [Nadia's] safety, [the plaintiff] said that [Nadia's] family had not been violent to date, but confirmed that if she was caught trying to escape she could potentially be in danger. However the alternative was to be kept a prisoner. [The plaintiff] claimed that [Nadia's] father did have a history of violence and that during his recent visit to Australia she had resorted to calling the police to have him removed from her residence. The father was planning to travel to Syria in October, after which there would be no scope for [Nadia] to escape. She would continue to counsel [Nadia] to keep a low profile and not to do anything that would arouse the family's suspicion.
On 22 August 2006, according to the DFAT records, a diplomatic officer spoke to the plaintiff with the following result:
[The plaintiff] advised that [Nadia's] father had phoned [the plaintiff] warning her not to interfere or to try to return [Nadia] to Australia. [The plaintiff] claims [Nadia's] father threatened to kill [the plaintiff] if she tried anything in relation to [Nadia]. [The plaintiff] stated she still intends to assist [Nadia] in [her return to Australia].
The DFAT records show that on 28 August 2006 the plaintiff again spoke to a diplomatic officer and said she could not phone Nadia again "as it would arouse suspicion". The plaintiff told the officer that Nadia was allowed to receive phone calls from her friends after 12 noon each day and suggested that a female consular officer in Damascus should call to make the necessary arrangements for Nadia's departure, posing as "Amira", a friend of Nadia's who phoned the grandmother's house (where Nadia was residing) on a regular basis.
In cross-examination the plaintiff accepted the accuracy of the DFAT records as to what she told the diplomatic officials. But she claimed Nadia had instructed her what to say to them and that it was not the truth. It was open to the jury to reject that evidence and to treat the DFAT records as containing significant admissions by the plaintiff of the truth of all three of the imputations set out at [2] above. It was open to the jury to find it not credible that the plaintiff, at the request of her 17½-year-old daughter, would have misled Commonwealth diplomatic officials to the effect that she was held prisoner in Damascus and potentially in danger should she attempt to escape if, as the plaintiff testified, Nadia was happy in Syria and could be flown home at any time on request, without interference from the Syrian relatives. When Nadia Tabbaa was called in the defendant's case the plaintiff's counsel did not put to her that she had asked her mother to cooperate in fabricating a story of imprisonment for the ERT personnel at the Canadian embassy in Damascus.
[5]
Nadia Tabbaa's evidence
Nadia Tabbaa was the principal witness called in the defendant's case to prove the truth of the imputations against the plaintiff. She said that whilst living in Australia between 1997 and January 2002 she was frequently physically abused by Omar Tabbaa in the home in which they and their siblings were in the plaintiff's care. He beat her with a belt, weekly or fortnightly, and in other ways physically chastised her in an attempt to impose restrictions upon her manner of dress, her contacts with friends and with other families and her activities. Omar also sought to enforce the place of Nadia and her older sister in the household, as the ones who were to perform all household work. He was eight years older than Nadia. The harshness of this home life led Nadia to run away and to disobey her mother and Omar, particularly in 2000 and 2001 from the age of 11 to 13.
Nadia Tabbaa gave evidence that her older half-brother, Geoffrey Rodgers, with whom she was on good terms, informed her in late 2001 that he had won two air tickets for a holiday in Egypt. He invited Nadia to accompany him as he had no one else who wanted to go. Other evidence showed the tickets were in fact bought by Omar Tabbaa but according to Nadia's evidence she was taken in by the deception and agreed to travel to Cairo with Geoffrey Rodgers. They departed on 9 January 2002. She understood she would be away for two weeks.
Omar Tabbaa landed in Cairo, to Nadia's surprise, after she had been sightseeing there for a few days. Nadia Tabbaa gave evidence that Omar then took her to Amman, whilst Geoffrey Rodgers travelled on to London. Mouhammad Tabbaa did not at that time reside in Amman but he arrived there from somewhere else in the Middle East a few days after Omar and Nadia. He and Omar then revealed to Nadia they had been communicating by email for months to arrange for her removal to Syria under false pretences.
Shortly afterwards, still in Amman, Mouhammad Tabbaa required Nadia to accompany him and his mother, Faiza Alassad, to hospital on the pretext that the latter required medical attention. Once there Nadia was subjected to the gynaecological examination referred to in the television program (see [17]), followed by the beating administered by her father and her brother Omar (also as she had recounted on "60 Minutes").
Faiza Alassad at that time resided in Damascus but was visiting Amman. Mouhammad Tabbaa made arrangements for Nadia to go to Damascus with Faiza Alassad and to live there indefinitely in her apartment, together with one of Mouhammad Tabbaa's brothers and his wife and child. After less than two weeks in Amman Mouhammad Tabbaa left. Nadia then travelled with Faiza Alassad to Damascus. Her only contact with her father over the next four and a half years whilst she lived in Damascus was in two phone calls.
From her arrival at her grandmother's apartment Nadia Tabbaa was set to work on domestic cleaning and other chores for approximately three hours per day. She did not speak Arabic and no one else in the household spoke English. When she misunderstood instructions or displayed ignorance of her relatives' customs and expectations, she was verbally and physically abused. Over the next four and a half years, as Nadia learned what was expected of her, nevertheless her grandmother continually found fault and abused her, verbally and physically.
One or other of Nadia Tabbaa's two uncles resided in the apartment throughout her stay in Damascus. She gave evidence that whichever of them was present participated in physical and verbal abuse of her, on occasions including serious assaults. Faiza Alassad did not have the money to send Nadia to an English language school, which would have been privately operated and would have required the payment of fees. Nadia could not speak Arabic when she arrived in Damascus so she was not sent to any school for "at least the first year". After a short period at a public school commencing in 2003 Nadia was moved to a sharia high school where, in her own words, she was "brainwashed" in Islamic studies.
Whilst she lived in Damascus between the ages of 13 and 17 Nadia Tabbaa said she was the subject of four approaches to her grandmother by women who had sons and saw her as a prospective wife. Faiza Alassad made appointments with these women, on separate occasions, and required Nadia to remove her headscarf and wait upon them. Nadia was 13 at the time of the first of these approaches. One such appointment resulted in negotiations concerning dowry, between Nadia's uncle and the male relatives of the intended bridegroom. No consensus was reached.
Throughout her time in Damascus Nadia Tabbaa said her mother called her approximately every three weeks. On many of these occasions Geoffrey Rodgers also spoke to Nadia on the phone. Nadia told them she was desperately unhappy living under the conditions described above. According to her evidence she gave detail over the phone of verbal, emotional and physical abuse and of the visits of the suitors. The plaintiff continually put her off, saying "Next year you could come home" or that Omar would have to come and get Nadia and that he refused. This happened in every phone call.
Nadia Tabbaa testified that during her last year in Damascus she was gravely affected, emotionally and psychologically, by her treatment at the hands of the plaintiff's relatives and by her mother's abandonment of her. She suffered constant sleeplessness. She was affected to the point of harming herself by cutting, although not with such severity as to require medical attention. On the phone Nadia told her mother "I'm going mad and I'm suicidal". This was towards the end of her time in Damascus, in late 2005 or the first half of 2006.
A girl slightly older than Nadia Tabbaa living in the apartment next door had heard the shouting and screaming from within Faiza Alassad's apartment and had seen the abuse of Nadia. Nadia was forbidden to speak with this girl but at some time in the second half of 2005 the girl handed her a piece of paper, ripped from a phone book, with the number of the British Embassy on it. Nadia phoned shortly afterwards and advised she was an Australian citizen being kept in Damascus against her will. She was told that she could not be assisted because she was under 18 and that when she came of age she could contact the Canadian embassy which provided assistance to Australian citizens in Syria. Nadia's 18th birthday was not until 28 August 2006. She had made her call to the British Embassy secretly because she believed her father's relatives would prevent her leaving the country if they knew of it.
Nadia was, on her evidence, lastingly psychologically disturbed by her experience of having been lured to the Middle East under false pretences, left in the custody of her grandmother in Damascus and subjected to abuse as above described. She gave evidence that while attempting to study at a Sydney college in late 2006 she had a "flashback", which she described in terms consistent with symptoms related by sufferers of post-traumatic stress disorder. She was treated at Liverpool Hospital.
During 2007 Nadia Tabbaa lived in South Australia. She gave evidence that she again harmed herself by cutting whilst living there due to the psychological effects of the events of 2002 to 2006. Subsequently she travelled overseas. She returned from London to Sydney in late 2012. At that time Nadia became, on her own account, deeply depressed and suicidal. She attributed this to her mother never having acknowledged wrongdoing in the deception under which she travelled to the Middle East in 2002 and having abandoned her there to ill-treatment by her father's family. Nadia confronted her mother about this in mid-2013, at a point when she experienced what she described as "a breakdown".
Nadia Tabbaa's evidence was that shortly following this confrontation, the plaintiff for the first time apologised for her exile in Damascus. This led to a reconciliation that lasted nearly two years up to April 2015. During the period of reconciliation, in late 2013, Nadia Tabbaa decided to recount publicly her experiences. She contacted several media organisations including the defendant, which took an interest. The defendant conducted a 90 minute interview in about February or March 2014. Nadia informed her mother of her intention to be interviewed for television and the plaintiff said she was supportive. She provided photographs for Nadia's use in connection with the interview.
Nadia Tabbaa gave evidence that her mother witnessed her execution of a written agreement with the defendant for the exclusive interview, dated 14 May 2014, and that the plaintiff signed the document as witness and identified herself as such, signing with her maiden name Pamela Armstrong. Counsel for the plaintiff disputed the authenticity of the signature. Although the agreement was in the plaintiff's possession throughout the trial no evidence was led from the plaintiff, either in her own case in chief or in reply, to the effect that she had not witnessed and signed it. The issue had a bearing upon whether the plaintiff had foreknowledge of the "60 Minutes" program and whether she cooperated in it.
It was an example of the erratic conduct of the plaintiff's case that although no evidence was led from the plaintiff herself to deny that she had witnessed and signed the document, Nadia Tabbaa was cross-examined to suggest that she had not and the jury were invited to make comparisons with signatures on other documents and to conclude that there had been a forgery of the plaintiff's signature.
The plaintiff remained on good terms with her daughter after the 60 Minutes program had been broadcast on 29 June 2014. This continued until April 2015 when Nadia Tabbaa learned that the plaintiff had recently commenced proceedings in defamation relating to the main broadcast. Pamela Tabbaa's statement of claim was filed in March 2015.
[6]
Supporting witnesses in the defendant's case on truth
Geoffrey Rodgers gave evidence in the defendant's case of his part in a plan which he said was formed with the plaintiff and Omar Tabbaa to deceive Nadia into travelling to Cairo in January 2002. He said that his own and Nadia Tabbaa's tickets to Cairo were purchased by Omar Tabbaa and that, at the instigation of the plaintiff and Omar, he had lied to Nadia about having won the tickets in a competition. He also said he was told by the plaintiff and Omar Tabbaa that the latter would follow them to Cairo and would take Nadia from there to be left with her father's relatives in the Middle East. He gave evidence that he withheld this information from Nadia and he described her surprise and concern when Omar Tabbaa joined them in Cairo.
Geoffrey Rodgers gave evidence that he was present with his mother during numerous of her phone conversations with Nadia during the time she was in Damascus, when Nadia described her situation and pleaded to come home. Geoffrey Rodgers told of his feelings of guilt concerning the means by which he had assisted with getting Nadia to the Middle East and concerning his failure to take action to bring her back to Australia over the years during which she reported by phone her unhappiness and mistreatment.
It was open to the jury to accept Mr Rodgers' evidence. It did not involve obvious contradiction, prevarication or exaggeration. In cross-examination he was challenged about his phone conversations with Nadia whilst she was in Damascus, to the effect that if she had complained of being abused by the plaintiff's relatives Mr Rodgers would have sought the intervention of some authority or taken other action to rescue her. He responded that he regretted not having acted but because he was only a half-brother with a different surname he thought:
that there was little anybody could do to help anybody in those countries, it was all at the hands of a father or a husband, or an older brother.
Counsel for the plaintiff suggested to Mr Rodgers that he and Nadia had "put your heads together about your evidence haven't you". When required to give the witness particulars of the occasion and the basis for this proposition counsel suggested that it was founded upon Mr Rodgers not having taken steps to assist Nadia whilst she was in Damascus. There was nothing in the evidence of either Mr Rodgers or Nadia that could have justified putting affirmatively an allegation of collusion. Mr Rodgers rejected it. It was open to the jury to conclude that the cross-examination did not detract from the weight of Mr Rodgers' evidence.
Michelle Etherington was called by the defendant to describe the conversations in late 2001 between the plaintiff and Omar Tabbaa through which agreement was reached between them about getting Nadia to the Middle East. Omar Tabbaa instructed Ms Etherington that Nadia was not to be told the true nature of her trip to the Middle East and that "she wasn't coming back".
It was open to the jury to have assessed Michelle Etherington as having presented credibly in the witness box and that her evidence was consistent both internally and with surrounding events. She was cross-examined to suggest her evidence was "designed to get back, hit back at Omar" because she was involved in matrimonial proceedings with him concerning access to their two children. Ms Etherington denied the proposition and the jury could have taken the view that she did not display bitterness towards her former husband or a vindictive disposition or willingness to lie in order to put him in a bad light.
Julie Walker, the plaintiff's sister, described the mistreatment of Nadia Tabbaa by Omar in Sydney prior to 2002. She said the plaintiff had admitted to her very shortly after Nadia departed for Cairo that "we've abducted Nadia and as a matter of fact they're in the air now". It was open to the jury to find that Ms Walker gave her evidence in a direct and credible manner, without apparent embellishment, and that she was not shaken in cross-examination. For my own part I found all of Geoffrey Rodgers, Michelle Etherington and Julie Walker highly credible witnesses.
[7]
Plaintiff's submissions
On the hearing of the defendant's notice of motion for indemnity costs the plaintiff made no submission to explain how the Court could, consistently with the jury's verdict, avoid the conclusion that the plaintiff founded her case on deliberately untruthful evidence. However it was submitted that the plaintiff "was corroborated in her evidence on many occasions" with respect to "various matters". This was particularised only in one respect, as follows.
It was said that the defendant's counsel "in his address said she told the truth to the consular officials. He relied on the accuracy of her evidence". What the plaintiff told the consular officials was that she confirmed the information Nadia Tabbaa had given them: see [31]-[34]. This was the diametric opposite of her evidence in the trial upon events which were the subject of the imputations. Certainly the defendant's counsel at all times contended, in cross-examination of the plaintiff and in final address, that she had been truthful in confirming to these officials the things Nadia Tabbaa had told them but the plaintiff herself said her confirmation had been a lie. Counsel for the defendant did not rely "on the accuracy of her evidence" as given in the trial.
The only other argument put against the defendant's premise that the plaintiff was deliberately untruthful in contesting the facts underlying imputations is that the plaintiff "was cross-examined on [the DoCS records] … to her disadvantage when they … were confidential documents, shouldn't have been admitted". The background to this submission is complex. Before trial the defendant obtained from the Department under the Government Information (Public Access) Act 2009 (NSW) some records concerning the plaintiff and her two daughters. The plaintiff subsequently issued a subpoena to the Department, in response to which more records were produced to the Court. On 21 November 2017 I granted both parties access to the subpoenaed documents by providing copies, printed from the Court's electronic record of production.
The defendant then prepared a set of copies of DoCS records for tender. This was said to consist in part of documents that the defendant had obtained under the Government Information (Public Access) Act and in part of the subpoenaed material. On 22 November 2017 (day 3) the plaintiff foreshadowed an objection to the tender of the documents on the basis that they were only "selected pages". Counsel said:
In the plaintiff's case I tender the whole [DoCS] file … . [They are] business records, my friend says they are admissible, I tender them. … And he can refer to any pages he likes in them.
We propose to give the jury each a copy of the whole file.
At that point the subject was left on the basis that counsel would confer about the contents of an agreed tender bundle. On 23 November 2017 the plaintiff's counsel objected to the use of any of these records in cross-examination of her, on the ground that those which had been obtained under the Government Information (Public Access) Act should have been discovered pursuant to an ongoing obligation but were not. I found that these documents were not within any of the categories of which the defendant had been required to make discovery and I overruled this objection: Tabbaa v Nine Network Pty Ltd (No.1) (Supreme Court (NSW), Fagan J, 23 November 2017, unrep) at p 6.
On 23 November 2017 the defendant tendered a bundle of these records comprising 103 pages. The plaintiff's counsel objected to the tender on the grounds that (a) there were another 90 pages of records which should be included, (b) the tendered documents came from different sources (under freedom of information legislation and in answer to a subpoena), (c) the records were not arranged consecutively in the proposed tender bundle and (d) there were inconsistent redactions to some of the documents. None of these were valid objections, for reasons which I recorded in discussion with counsel. The documents were admitted and marked Exhibit 5. The plaintiff was thereafter cross-examined upon some of the events recorded therein.
At the time of tender neither counsel referred to s 29(1)(d) of the Children and Young Persons (Care and Protection) Act 1998 (NSW). I had not previously had to consider the section and I was unaware of it. The section is as follows:
29 Protection of persons who make reports or provide certain information
(1) If, in relation to a child or young person or a class of children or young persons, a person makes a report in good faith to the Secretary or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons:
…
(d) the report, or evidence of its contents, is not admissible in any proceedings other than the following proceedings (and appeals arising from the following proceedings):
(i) care proceedings in the Children's Court,
(ii) proceedings in relation to a child or young person under the Family Law Act 1975 of the Commonwealth,
(iii) proceedings in relation to a child or young person before the Supreme Court or the Civil and Administrative Tribunal,
(iv) proceedings before the Civil and Administrative Tribunal that are allocated to the Guardianship Division of the Tribunal or are commenced under the Victims Rights and Support Act 2013,
(v) proceedings under the Coroners Act 2009, and
…
After 23 November 2017 the section was brought to my attention through a current law bulletin which summarised the decision of RA Hulme J in R v Hayward [2017] NSWSC 1170, handed down 1 September 2017. I consider that the section is engaged by most if not all of the documents in Exhibit 5 and that they were, therefore, statutorily inadmissible. I drew the parties' attention to s 29 on 30 November 2017 (at the end of day 9 of the trial). Neither party applied for the jury to be discharged or the trial aborted. On the contrary the plaintiff's counsel said "I'm not going back on what I've said" (referring to the limited grounds upon which objection had earlier been taken (see [64]) and to his statement "I want to tender another bundle"). I ruled that, despite the statutory inadmissibility, if more material of the same nature were tendered by consent I would have to admit it "in order to avert an imbalance in the trial". In the event the plaintiff did not tender any additional DoCS records.
Contrary to the plaintiff's submission on the defendant's notice of motion for indemnity costs, I do not consider that this unfortunate history bears upon the untruthfulness of the plaintiff or the consequence of her untruthfulness for the indemnity costs application. Neither party objected to the material on the statutory ground to which the plaintiff now adverts and both accepted continuance of the trial for another 12 days up to verdict with knowledge of the error. The fact that some aspects of the plaintiff's untruthfulness were exposed in cross-examination on the DoCS records is not diminished in importance by the circumstances of the erroneous but relevantly consensual admission of the evidence.
[8]
Summary of contradiction of the plaintiff
The contradictions of the plaintiff's evidence at trial, on all points important to her case, are summarised as follows:
1. Her denial of mistreatment of Nadia Tabbaa by Omar in 2000 and 2001 (particularly) was contradicted by the records of Nadia's contemporaneous reportage to DoCS, by evidence of Nadia Tabbaa, Geoffrey Rodgers and Julie Walker in the trial and by her own admissions in the DoCS records.
2. The plaintiff admitted that she did not tell her daughter it was planned she should remain in the Middle East indefinitely. With respect to her evidence that this had not been decided upon and that Nadia Tabbaa knew Omar would follow her to Cairo and take her to Jordan, the plaintiff was contradicted by Geoffrey Rodgers, Michelle Etherington, her own affidavits sworn in her son's family law proceedings and her subsequent confirmation to consular officials of the account Nadia Tabbaa had given them (the DFAT records).
3. The plaintiff's evidence that her daughter was happy in Damascus and was free to return to Australia on request at any time was refuted by the evidence at trial of Nadia and Geoffrey Rodgers, by the contemporaneous record of Nadia's complaints to consular officials and by the plaintiff's admissions to those officials of the accuracy of the complaints.
[9]
Abuse of process
It was self-evident from the commencement of the proceedings that the plaintiff's claim for damages was always going to depend upon her refuting the truth of the first three imputations pleaded (see [2]). It must follow from what has already been said that the plaintiff has invoked the Court's jurisdiction from the outset on a basis she knew to be false and that she has persisted throughout the trial to verdict in that knowledge. This is properly described as an abuse of the Court's process.
This abuse has not only wasted the resources of the court and the time of the jury but has inflicted significant distress upon the plaintiff's daughter. Having heard all the evidence and counsel's addresses to the jury, I accept Nadia Tabbaa's evidence concerning her psychological disturbance in Damascus, continuing upon her return to Sydney in 2006 and thereafter. I accept her evidence that she communicated this distress to the plaintiff by telephone whilst she was in Damascus (see [44]-[45]) and at times after her return, particularly in mid-2013 (see [47]-[48]). I also accept that during a period of reconciliation the plaintiff expressed support for her daughter giving a television interview in which she would describe her experiences (see [49]-[52]).
The bringing of this action has, inevitably, caused the defendant to call Nadia Tabbaa to meet the plaintiff's assertions that her daughter's account on "60 Minutes" was a fabrication. Nadia Tabbaa was at times visibly distressed in the witness box, having to relive her experiences. She expressed her dismay that, having been mistreated in the respects she alleged, she should now find her mother attempting to recover damages by denying what occurred. The Court's process has been used in a way that has inflicted suffering upon Nadia Tabbaa, in aggravation of the plaintiff's original mistreatment of her in 2002-2006 as found by the jury.
[10]
The plaintiff's fourth pleaded imputation
The plaintiff's action was predominantly concerned with the three imputations which the jury found true. It was denial of their truth that occupied the overwhelming majority of hearing time, so far as hearing time should be attributed to the plaintiff's action rather than to the separate defamation claims of her husband. The fourth imputation was that the plaintiff had condoned her daughter being married to a cousin in Syria whom the daughter had not met. Evidence concerning the alleged marriage was adduced primarily for its relevance to Mouhammad Tabbaa's case and I regard the plaintiff's failure on this imputation as neutral on the question of indemnity costs.
[11]
Legal principles
In Degmam Pty Ltd (In Liq) v Wright (No 2) Holland J made this finding with respect to a defendant/cross-claimant who had been unsuccessful both in her defence and in the prosecution of cross-claims (at 358D):
It is sufficient to say that the allegations of fact she made as the basis of her defences and causes of action were in my opinion false and deliberately concocted by her in an attempt to deny the plaintiff its rights and to shift all blame and legal liability to the plaintiff from herself to the second cross-defendant.
His Honour also found that the defendant had multiplied "allegation upon allegation" and grossly prolonged the litigation. Holland J ordered that the defendant/cross-claimant pay all costs of the plaintiff/cross-defendant on an indemnity basis. The plaintiff did not multiply issues in the present case but the trial was certainly prolonged by her dogged denial of matters which were demonstrable from contemporaneous records and from the defendant's witnesses.
In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 398 Woodward J found that an applicant had continued a proceeding past the point where it "and its advisers must have known that they had no possibility of success". His Honour considered that sufficient "to provide the special circumstances which … are necessary before any order for costs other than 'party and party' costs should be made". At 401 Woodward J identified "wilful disregard of the known facts" as one available ground for awarding indemnity costs.
The approach taken in the above authorities was reaffirmed in Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 at [102]-[110] (Basten JA; Giles JA and Young CJ in Eq agreeing). The facts of the present case engage the principles stated.
[12]
Orders
A considerable part of the trial was concerned with issues solely arising in Mouhammad Tabbaa's actions. One such time-consuming issue was that of whether Nadia Tabbaa was married according to local custom in Damascus towards the end of her time there. Further such issues concerned Mouhammad Tabbaa's conduct towards his daughter in Jordan in 2002 and threats and acts of violence on his part after Nadia Tabbaa's return to Australia in 2006. The evidence of the plaintiff herself occupied several days but not even all of that was solely attributable to her case. She was additionally cross-examined upon issues relevant only to her husband's causes of action. Making a best estimate based upon my observations of the course of the trial and review of the transcript, I consider that one third of the hearing time should be attributed to the plaintiff's action.
For these reasons the following orders are made:
1. The costs to be paid by the plaintiff under the costs order made against her on 21 December 2017 are to be assessed and payable on the indemnity basis.
2. In the assessment of the costs of the proceedings awarded against the plaintiff the defendant's costs of the trial and post-verdict hearing on 5 February 2018 are to be taken to be one third of its total costs of the entire trial and post-verdict hearing.
[13]
Amendments
23 April 2018 -
79: delete '2012' substitute '2017'.
Cover page amended to reflect correction at 79.
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Decision last updated: 23 April 2018