Wraydeh v Fairfax Media Publications Pty Limited; Wraydeh v Nationwide News Pty Limited

Background facts

1. Just before 11 am on the morning of Sunday, 7 August 2016, at Punchbowl, a collision occurred between a Mitsubishi EVO and a Honda SUV. Ms Georgina (Gina) Abdallah was a passenger in the Mitsubishi. She was seriously injured in the collision and died in hospital later that day. At the time she was carrying no identification and her identity was not immediately known.
2. The driver of the Mitsubishi was Mr Hassan Wraydeh (the appellant's brother). Hassan Wraydeh had for some time been in a relationship with Ms Abdallah. Immediately after the collision Hassan Wraydeh left the scene. Shortly after, the appellant, who had been at his mother's house which was nearby, attended the scene.
3. Police were notified and commenced an investigation. The focus of the investigation was the identification of the injured passenger and the identification of the driver of the Mitsubishi. The appellant was already at the scene when police arrived, and was attempting to communicate with the injured passenger. He had a conversation with a police officer, and gave the name of the passenger as "Gina". After some reluctance he gave his name, address, date of birth and a contact number. He said that he had known "Gina" for about four weeks "from the area".
4. From just before 2.30 pm on 7 August NSW police issued three media releases alerting media outlets to what was known of the circumstances of the collision and the need to locate the driver of the Mitsubishi. The first media release (Ex P) was issued at 2.24 pm. It recorded the circumstances, so far as they were known, of the collision, and said: "The female passenger of the white Mitsubishi was taken to Liverpool Hospital and remains in critical condition. The male driver fled the scene on foot and has not been located. … Police urge anyone with information to come forward."
5. The second media release (Ex Q), was published at 10.35 pm and announced that the female passenger of the Mitsubishi had died in hospital. It went on: "The driver of the white Mitsubishi fled the scene on foot while his female passenger was taken to Liverpool Hospital with critical injuries. She died about 6.10pm. … Officers from the Metropolitan Crash Investigation Unit and Bankstown Local Area Command have conducted extensive enquiries throughout the day but have not been able to locate the driver of the Mitsubishi, which was bearing stolen number plates at the time of the crash. They have also been trying to determine the identity of the now deceased woman, but at this stage her identity remains unknown." The media release went on again to encourage members of the public who had information to contact NSW Police.
6. The third media release (Ex C) was issued at 5.03 pm the following day (8 August), under the heading: "Police appeal for man to come forward after fatal Punchbowl crash." Relevantly, it said: "Police are appealing for a man to get in touch with investigators, as they continue inquiries into a fatal crash at Punchbowl yesterday. … Officers from the Crash Investigation Unit believe 39-year-old Hussain Wraydeh may have information vital to clarify the circumstances leading up to the crash. Police have been unable to get in touch with Mr Wraydeh and are appealing for anyone who knows him to urge him to contact police. … Police are urging anyone with information in relation to this incident to call Crime Stoppers … or use the Crime Stoppers online reporting page … ." An "editor's note" said that "An image of Hussain Wraydeh, a man police believe can assist with this investigation, will be posted on the NSW Facebook account".
7. Also on 8 August 2016 on the NSW Police Facebook page (Ex D), police published the following: "Police are appealing for a man to get in touch with investigators, as they continue inquiries into a fatal crash at Punchbowl yesterday. … Officers from the Crash Investigation Unit believe 39-year-old Hussain Wraydeh may have information vital to clarify the circumstances leading up to the crash. Police have been unable to get in touch with Mr Wraydeh and are appealing for anyone who knows him to urge him to contact police. Police have been told he may be driving a blue Mazda 6."
8. In court documentation the appellant's given name is spelled "Hussein". It will be observed that, in the third media release, on the Facebook post, and in the further publications to which I am about to refer, the person to whom, it was said, police wished to speak was named as "Hussain" Wraydeh. Nothing turns on this discrepancy; it was common ground that the reference was, in each case, to the appellant.
9. The purpose of the media releases was, through the mass communications facilities of the media outlets, to enlist the aid of the public in the police effort to identify the female passenger and to locate the driver of the Mitsubishi. The Facebook post directly served the same purpose. Communication with a wide spectrum of the public was most likely to achieve the purpose.
10. Although it was never explicitly stated in any of the police publications, it is an available inference from the references to the interest of police in locating the appellant, and from the statement that police believed that the appellant may have had information vital to clarify the circumstances leading to the crash, and urging anyone who knew him to contact police, that they believed that he had, or might have, been the driver of the Mitsubishi. That is not a necessary inference from those publications: taken literally, they stated only that police believed that the appellant had, or might have had, relevant information.
11. The media releases and the Facebook publication prompted the publications in respect of which the appellant claimed damages for defamation.

Fairfax

1. On Monday 8 August 2016, on the website of the Sydney Morning Herald, Fairfax published, under the headline "Hunt under way for Sydney driver who left girlfriend in hit-and-run crash", the following: "A manhunt is under way for a driver who fled the scene of a fatal car crash in Sydney's west, leaving a 'funny, beautiful' mother of two dying in the passenger seat. … Driver on run after fatal crash Police are searching for the male driver of a stolen car after a collision in Punchbowl that killed his 38-year-old female passenger … The man behind the wheel of the stolen car on Sunday morning was allegedly 39 year old Hussain Wraydeh. The car also had stolen number plates. CCTV of the crash shows a man believed to be Mr Wraydeh getting out of the crumpled car before going back to check on his injured passenger. … He leans into the driver's side, grabs a few belongings and calmly walks away from the scene. Police have not yet found him." (Ex 2)
2. On 9 August 2016, in the print edition of the Sydney Morning Herald, under the headline "Manhunt for driver who left fatally hurt woman in wreck", Fairfax published a news item that contained the following: "A manhunt is under way for a driver who fled the scene of a fatal car crash in Sydney's west, leaving a 'funny, beautiful' mother of two dying in the passenger seat. … The man behind the wheel of the stolen car on Sunday morning was allegedly 39 year old Hussain Wraydeh. The car also had stolen number plates. CCTV of the crash shows a man believed to be Mr Wraydeh getting out of the wreck before going back to check on his injured passenger. He leans into the driver's side, grabs a few belongings, and calmly walks away from the scene. Police haven't been able to find him since. … ." (Ex 1)
3. On 18 August 2016 Fairfax published another article in the print edition of the Sydney Morning Herald, under the heading "Man wanted over fatal Sydney crash caught after two weeks on run": "A man wanted over the death of his passenger in Punchbowl has been caught by police after almost two weeks on the run. Hussain Wraydeh was being held at Bankstown Local Court on Thursday after his arrest on Wednesday night. … A police spokesman said he is still being questioned over the August 7 crash that killed his girlfriend, Georgina Abdallah, and they expect to lay charges. … Police believe Mr Wraydeh, 39, was behind the wheel of the car, which allegedly had stolen plates. CCTV of the crash shows the driver getting out of the crumpled car before going back to check on Ms Abdallah in the passenger seat. He leaned into the driver's side, grabbed a few belongings and walked away. Police had been searching for Mr Wraydeh ever since and initially believed he might have been hiding at a friend's house in Punchbowl. … Mr Wraydeh has been charged with 11 offences, including drug supply, possessing a prohibited drug, stolen goods in custody, driving while disqualified, driving an unregistered and uninsured vehicle, and unlawfully possessing number plates. …" (Ex 3)

Nationwide

1. On 9 August 2016, in the print edition of the Daily Telegraph, Nationwide published the following: "Cops hunt for driver in deadly car smash Police are desperately searching for a man alleged to have left his female passenger for dead after a fatal collision in southwest Sydney. Officers believe Hussain Wraydeh, 39, was behind the wheel of the Mitsubishi EVO that was fitted with stolen number plates. He is alleged to have fled the scene after crashing into another car on Warwick Street, Punchbowl, at 11 am on Sunday. … 'Police have been unable to get in touch with Mr Wraydeh and are appealing for anyone who knows him to urge him to contact police' a statement read. … ." (Ex 4)
2. On the same day, from 10.24 am, on the website of the Daily Telegraph, Nationwide published, under the headline "Punchbowl fatal crash: Police hunt for driver after woman dies": "POLICE are desperately searching for a man alleged to have left his female passenger for dead after a fatal collision in south west Sydney. Officers believe Hussain Wraydeh, 39, was behind the wheel of a Mitsubishi EVO that was fitted with stolen number plates. He is alleged to have fled the scene after crashing into another car on Warwick Street, Punchbowl at 11 am on Sunday. … Witnesses said that at first he showed concern for Ms Abdallah - a mother of two - who bore the brunt of the collision, leaning over to check on her after bystanders tried to help them. … Police combed nearby streets after the collision using dogs and a helicopter but were unable to find Mr Wraydeh. The Crash Investigation Unit said he 'may have information vital to clarify the circumstances leading up to the crash'. 'Police have been unable to get in touch with Mr Wraydeh and are appealing for anyone who knows him to urge him to contact police' a statement read.' …" (Ex 5) A photograph of the appellant accompanied this article.
3. From 5.33 pm Nationwide published on the Daily Telegraph website a further article about the collision, which was largely about Ms Abdallah and her family, but included: "Officers believe Hussain Wraydeh, 39, was behind the wheel of a Mitsubishi EVO that was fitted with stolen number plates. He is alleged to have fled the scene after crashing into another car on Warwick Street, Punchbowl, at 11 am on Sunday. … Police combed nearby streets after the collision using dogs and a helicopter but were unable to find Mr Wraydeh. The Crash Investigation Unit said he 'may have information vital to clarify the circumstances leading up to the crash'. (Ex 6) A photograph of the appellant also accompanied this article.

The appeal

1. The appellant appeals against the orders. The grounds raised in each case are substantially identical. The appellant asserts (in general terms) that the primary judge was in error in upholding the defences of qualified privilege and he asserts specific error (to which I will return) in the consideration of that defence. He asserts, in each case, that the contingent assessment of damages was manifestly inadequate; and he asserts, in the Fairfax case, that the award of $7,500 as damages for publication of the defamatory imputations conveyed by Ex 3 was manifestly inadequate.

Qualified privilege at common law: general principles

1. It is a rare discussion of the defence of qualified privilege at common law that does not begin with the foundational passage from the statement of Parke B in Toogood v Spyring (1834) 1 Cr M & R 181 at 193; 149 ER 1044 at 1049-1050, as follows: "In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits." (italics added)
2. The principles on which such a defence will succeed, founded on that passage, have been stated on numerous occasions. Some of the decisions are: Adam v Ward [1917] AC 309; Andreyevich v Kosovich and Publicity Press (1938) Pty Ltd (1947) 47 SR (NSW) 357; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; [1994] HCA 45; Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; [2004] HCA 5; Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79; [2010] HCA 25; Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30; Papaconstuntinos v Holmes a Court (2012) 249 CLR 534; [2012] HCA 53; and Marshall v Megna; Megna v Tory; Tory v Megna [2013] NSWCA 30.
3. A successful defence of qualified privilege at common law depends upon satisfaction of three conditions, as stated by Heydon J in Aktas at [55] (in dissent on the application of the principles):

• that the communication was published on a privileged occasion;
• that the communication was related to the occasion;
• that there was no malice in the publication. The defence will be established by satisfaction of the first and second of these, the onus of proving which lies on the defendant, but will be defeated if the plaintiff proves that publication of the communication was actuated by malice.

(i) occasion of privilege?

1. As is apparent from the tripartite criteria stated by Heydon J in Aktas, a "privileged occasion" is distinct from a "privileged communication": Guise v Kouvelis (1947) 74 CLR 102; [1947] HCA 13 per Dixon J (at 117, citing Lord Campbell CJ in Dickson v Earl of Wilton (1859) 1 F. & F. 419 at 426; 175 ER 790 at 793). As Lord Atkinson observed in Adam v Ward (at 334), the two terms are often used loosely as interchangeable. Lord Shaw of Dunfermline took a more precise view; he thought that, while an occasion may be "privileged", a communication is "protected" (at [52] below).
2. In many cases, the content of a communication will itself dictate whether an occasion is privileged. But it is not always so. In determining whether an occasion is privileged attention is directed to the commonality of interest in the subject matter of the communication. It is reciprocity (or community) of interest in the subject matter, not limited to the precise terms of the communication, that marks out whether the occasion is one of privilege. That that is so is a common thread in various of the decisions. Whether the communication (as distinct from the occasion) is privileged (or protected) is a separate question, determined by reference to the second of Heydon J's three conditions.
3. In Adam v Ward Lord Finlay LC said (at 318): "If the communication was made in pursuance of a duty or on a matter in which there was a common interest on the party making and the party receiving it, the occasion is said to be privileged". (italics added)
4. In Andreyevich Jordan CJ (at 362), adopting a proposition from the third edition of John Clement Carpenter Gatley and Richard O'Sullivan, Gatley on Libel and Slander (3rd ed, 1938, Sweet & Maxwell), accepted that an occasion of qualified privilege may be created by: "Statements made on a subject matter in which both the defendant and the person to whom the statements are made have a legitimate common interest." (italics added)
5. More recently, in Bennette v Cohen [2009] NSWCA 60 , Campbell JA said: "207 However one does not enquire whether the particular statement that was defamatory was made in circumstances such that the reciprocal interest of the maker and the recipient of the statement was such that the making of that statement itself advanced the welfare of society and the public interest. Rather, the requirement of public interest, for the existence of qualified privilege operates at a higher level of generality, that the duty or interest of both maker and recipient is such that it is in the public interest that a person should be free to make that type of statement in the type of circumstances where the particular statement in question was made. … 209 The caselaw quoted in the judgment of Ipp JA bears out that it is by reference to the type of communication involved in the defamatory utterance, rather than the particular defamatory utterance itself, that the public interest is to be gauged." (italics in original) Campbell JA placed emphasis on that part of the passage in Toogood v Spyring in which Parke B referred to "such communications" being protected.

(ii) a privileged communication?

1. It is clear from the above that not every communication made on a privileged occasion is protected by the privilege. What is published must have a sufficient connection with the duty or interest by reason of which the privilege arises. This requirement was variously expressed in the speeches in Adam v Ward: "The privilege extends only to a communication upon the subject with respect to which privilege exists, and it does not extend to a communication upon any other extraneous matter which the defendant may have made at the same time. The introduction of such extraneous matter may afford evidence of malice which will take away protection on the subject to which privilege attaches, and the communication on the extraneous matter is not made upon a privileged occasion at all, in as much as the existence of privilege on one matter gives no protection to irrelevant libels introduced into the same communication." (Lord Finlay LC at 318); "But the fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion. Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected. To say that foreign matter will not be protected is another way of saying the same thing. The facts of different cases vary infinitely, and I do not think the principle can be put more definitely than by saying that the judge has to consider the nature of the duty or right or interest and to rule whether or not the defendant has published something beyond what was germane and reasonably appropriate to the occasion, or has given to it a publicity incommensurate to the occasion. For a man ought not to be protected if he publishes what is in fact untrue of someone else when there is no occasion for his doing so, or when there is no occasion for his publishing it to the persons to whom he in fact publishes it." (Earl Loreburn at 320-321); "If the statement is, so to speak, divisible into parts it may be that the judge may come to the conclusion that certain parts are not truly referable to the particular right or duty which in the case in hand is the foundation of the privilege." (Lord Dunedin at 329); "Privileged, however, as the occasion might be, it was contended that the communication went beyond the occasion and so was not protected by the privilege. I humbly think that this is a more correct way of stating the proposition than that usually adopted. Privilege is a term which is applied in two senses. There is a privileged occasion, and there is said to be a privileged communication. The former expression is correct; the latter, strictly viewed, tends to error. What is meant with regard to a privileged communication is that it was protected as being within the scope of the privilege attaching to the occasion. The occasion is privileged, the communication is protected. If, accordingly, and insofar as the communication deals with matter not in any reasonable sense germane to the subject-matter of the occasion, the protection is gone: the occasion with its privilege does not reach a communication upon this foreign totally unconnected matter." (Lord Shaw of Dunfermline at 348) (in each case the italics have been added)

Damages

1. With the exception of the damages awarded in respect of the publication of Ex 3, the question of the assessment of damages arises only contingently, on the hypothesis that the primary judge's conclusions on qualified privilege are held to have been wrong. Having regard to the view to which I have come with respect to that question the issue of damages can be disposed of succinctly. It is, however, necessary to state more comprehensively the defamatory imputations found to have been conveyed. Although, as indicated above, they were framed in slightly different ways, the substance of the imputations found to have been conveyed by Fairfax was: "(i) the plaintiff is a hit-and-run driver; (ii) the plaintiff is a cruel and callous person; (iii) the police carried out a manhunt for the plaintiff because he fled the scene of a fatal car crash; (iv) the plaintiff drove a stolen motor vehicle with stolen number plates attached; (v) the plaintiff left a woman with whom he had a relationship to die when she suffered horrific injuries in a car crash; (vi) the plaintiff is hiding from police because of his involvement in a fatal car accident; (vii) the plaintiff is a criminal."
2. The imputations found to have been conveyed by Nationwide were: "(i) the plaintiff is a hit-and-run driver; (ii) the plaintiff drove a motor vehicle fitted with stolen number plates; (iii) the plaintiff was a callous and cruel person who left his passenger to die; (iv) the plaintiff hid from police who were searching for him using dogs and a helicopter; (v) the plaintiff drove his motor vehicle recklessly and crashed into another car thereby killing his female passenger; (vi) the plaintiff is a criminal."
3. There can be no doubt, and the primary judge so found, that the imputations were seriously defamatory of the appellant and that their publication had had a wide distribution.
4. The appellant gave evidence of what he said was the distress he suffered on reading the publications. He said that he was "upset, gutted, shattered". He claimed that the effect on him was to change his behaviour to such an extent that his relationship of 25 years broke down, and that, as a consequence, he lost contact with his children.
5. He gave evidence of encounters with acquaintances who, he said, made adverse and derogatory comments to him, suggesting that he was a person who left a mother of two to die.

Aggravated damages

1. The appellant claimed aggravated damages, based on the failure of the respondents to apologise and his knowledge that the imputations were false. The primary judge did not accept that the appellant had ever turned his mind to the failure of the respondents to apologise such as to exacerbate his feelings of hurt ([189]). She accepted ([190]) that the appellant knew that the imputations were false, but considered, echoing what she had said earlier, that he had at his disposal information to prove the falsity of the publications, about which he took no action. She declined to award aggravated damages.

Compensatory damages

1. In considering the question of compensatory damages the primary judge took into account evidence that many other publications, on television and other outlets, had reported on the accident and had named the appellant. She found it difficult to attribute any specific damage done to the appellant's reputation by the publications of the respondents, as distinct from those other publications. She took into account that the appellant had been compensated by the State of NSW (in respect of the police media releases) and Dailymail.com.
2. She then reviewed cases put forward by the appellant and the respondent as guides to the appropriate award. She concluded, as indicated above, that the appropriate award in respect of each respondent was $35,000. As also indicated above, the primary judge subsequently made an award of $7,500 in respect of the publication constituted by Exhibit 3.

The grounds of appeal with respect to damages

1. In relation to each respondent the appellant contended that the contingent assessment of damages was manifestly inadequate, and can be seen to be erroneous in four specified respects:

• that the assessment proceeded on the basis that the appellant had a duty to mitigate damages;
• that it was based on contradictory conclusions (that the appellant did not want to present himself to police in order to protect his brother Hassan, and that he was not so distressed as to inform police that his brother was the driver);
• that it failed to take account of the appellant's rehabilitation, and the finding of the jury rejecting the defence of justification to the imputation that he was a criminal; and
• that the primary judge erroneously considered that there were no circumstances justifying an award of aggravated damages.

1. In relation to Fairfax, the appellant asserted that the award of $7,500 in respect of the publication of Exhibit 3 was manifestly inadequate, and that the primary judge erroneously failed to consider whether there were circumstances warranting an award of aggravated damages.
2. The arguments advanced on the hearing were more confined. No authority was cited for the proposition (inherent in the first bullet point above) that a plaintiff in a defamation action has no duty (as do plaintiffs in respect of any other tort) to mitigate the damage done by the tort. In any event, as the President pointed out in argument, the primary judge's references to the failure of the appellant to notify the respondents that he was not the driver were not made in support of a finding that he failed to mitigate his damages, but as indicative that his claims of distress were unconvincing.
3. On behalf of the appellant it was first argued that the adverse credibility findings made by the primary judge were largely based, unfairly, on factual conclusions with respect to evidence that had not been the subject of cross-examination, or argument, on behalf of the respondents, and that the primary judge had "construct[ed] an attack on the credit of the appellant that the respondents, in their argument on damages, had not made". Specific reference was made to the primary judge's rejection of the appellant's evidence of hurt to his feelings caused by the publications, as to which, it was said, the appellant had not been cross-examined.

The award of $7,500 in respect of Exhibit 3 (Fairfax)

1. For the same reasons I am not persuaded that any error has been identified in the approach taken by the primary judge to the award of damages in respect of the publication of 18 August.
2. Even if I were to uphold the appeal against the finding of qualified privilege, I would not uphold an appeal against the assessment of damages.
3. Accordingly, I would dismiss each appeal with costs.

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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: 21 July 2021