Zoef v Nationwide News Pty Limited & Ors

Witnesses

1. In the case for the plaintiff, in addition to the plaintiff's own evidence, oral evidence was also called from Ms Rhonda Zoef, the plaintiff's daughter, Mr Tony Manu, an acquaintance of the plaintiff, and Mr Richard Beer, a client of the plaintiff's tailoring business.

Credit

1. In defending the proceedings, the defendant did not seek to attack the plaintiff's credit in any way. Nor did the defendant seek to attack the credit of any of the witnesses called in the case for the plaintiff.

Facts

1. The plaintiff was born in Skopje, Macedonia in 1932, where he had trained as a tailor. At the time of the publication in question he was aged 81 years. He has worked as a tailor all his life, first in Macedonia, then in Greece and in New Zealand, and since 1956, in Sydney. His business premises had been located in Newtown for about 25 years until 1970, when he moved his workshop to the back of the house he had built in Sylvania. He has continued to carry on the business of tailoring and clothing alterations from those premises.
2. On 21 August 2013, police had raided the plaintiff's premises. A cache of weapons and ammunition was found in the garage on the premises, which was occupied by the plaintiff's son, who was also named Tony Zoef. The plaintiff's son was then arrested and charged with a number of firearms and weapons related offences. There was only sparse evidence in these proceedings concerning the related criminal proceedings against the plaintiff's son.
3. On 22 August 2013 the defendant published the newspaper article in question concerning those events: Exhibit "A" reproduced as Appendix. The facts contained in that document speak for themselves.
4. The particular page of the publication that comprises Exhibit "A" contains two articles. The first article concerned Police Operation Talon, aimed at reducing gun crime. There is nothing in that article that pointed to the plaintiff.
5. The second article, which is the one in question, contains a prominent banner headline and information which the plaintiff claims indicates the article refers to him. That is a matter to be determined in the consideration of Issue 1.
6. The first time the plaintiff saw the article in question was when a neighbour showed it to him shortly after it was published. The plaintiff's evidence concerning those circumstances, at T26.38 - T27.11, was as follows: "Q. The neighbour showed you the paper, what happened next? A. Well, they asked me if I have any guns, if I have any explosive and I told him I am not a terrorist but this is, this is absurd. That, that upset so much, I was stuttering away and just shaking away. Q. Did you read the article? A. Yes, I did. Q. What was your reaction when you read the article? A. My reaction is just as it is I feel now. So it's shocking that I, I tried to built my reputation for 40 years and then one, one, one newspaper article destroyed half my business and half the customers haven't come to pick them up yet. Q. Well, you've told us about one neighbour, did any other people speak to you about the article? A. Well, yes, they, they, they speak to me, they read it, they asked me if it's true. Q. Who were these people? A. Customers and the, and the, and the friends. They just - it's-- Q. Well, how many customers and friends spoke to you about it? A. Well, about 20 customers ring me up and wanted to know what am I doing, isn't the business good enough so I have to involve guns to make money for it."
7. The plaintiff went on to describe, at T28.3 - T28.19, the effect the article had upon him, as follows: "Q. You said, "I mean" and then you were cut off, what did you want to say? A. Well, it was, it was - it's something that I worked all my life to keep the good reputation, to be the good, good, good people to do the job to satisfactory, to, to please the customers. And then all of a sudden it's cut down from under my feet by just an ad through the paper and it's, it's - I'm sorry, I get a little bit. Q. Take your time. You wanted to tell me what effect this had on you? A. Well, this effect had on me, I have now to take the heart tablets to slow down the heart when I get so - when I think of it and so I can calm down and start to live a normal life, if I can. Q. When did you start taking heart tablets? A. It was about 12 - 13 - after, after the thing when it started and it just kept eating at me. It's-- Q. You mean after the thing, you mean after this publication? A. Yes, yes, the thing."
8. Rhonda Zoef gave evidence that on 22 August 2013, her attention had been drawn to the subject article following a communication she had with her parents. On reading it, her initial reaction was that she immediately thought that the article referred to her father, the plaintiff: T13. She then realised the article in fact referred to her brother.
9. Later on the same day, she saw her father and observed that he was distraught and shocked at the suggestion that he was the tailor who was said to be a gunrunner: T15.41 - T16.4. She observed that since the subject article was published, her father has become more insular and reclusive: T17.7.
10. The plaintiff's son, Tony Zoef, who appears to have been the intended subject of the article in question, was born in 1970. He was aged 43 years at the time the subject article was published: T17.
11. When Rhonda Zoef first saw the article, she had focussed on the associated photograph on the page which depicted grenades and guns, and she had not initially focussed on the other photograph, which turned out to be a poor quality photograph of her brother: T18. In that context, her immediate reaction was to think that the article related to her father. As she thought more about the article, and as a result of her special knowledge of her own family, she quickly came to realise the article in question was in fact about her brother, and not about the plaintiff: T19.
12. The plaintiff explained that he was unaware of his son's cache of weapons and ammunition: T37.19. I accept that the plaintiff had not known of the existence of the arsenal of weapons and ammunition that his son had kept in the garage of his premises: T28.36 - T29.11. His son was the occupier of the garage where those things were found by the police. The plaintiff was shocked by the discovery of the items seized by the police: T36.37.
13. The plaintiff was upset by the publication because of its emphasis on the person in question being a tailor, and as a result, that affected him, and by implication, his business as well: T37.46. His son had never worked as a tailor: T38.26.
14. The plaintiff was concerned that people who did not know his son were making a connection between the plaintiff himself and the Tony Zoef referred to in the publication, and in doing so, were asking him whether he had or was dealing in guns, whether he had been arrested, or whether he wasn't making enough money from his work as a tailor: T39.39 - T41.8.
15. However, the plaintiff has encountered situations in which his customers, his neighbours and at the places of other businesses he attended, where people who were not necessarily familiar with his family, have questioned him as to whether he was involved in the making of or the running of guns. The plaintiff found those conversations upsetting even though he considered that the questions were absurd. As a result he has avoided going out as he found it unpleasant to have to explain himself in such conversations: T30.41.
16. The plaintiff feels that his previously good reputation has "gone down": T30.48. He has noted what he has estimated to be a 60 per cent drop off in his business, and that a significantly high proportion of his customers have not returned to collect their garments: T30.25 - T30.31.
17. The plaintiff has never received an apology in respect of the publication of which he complains: T34.41. As a consequence, he remains upset that the article contained untruths that he feels relate to him, and he is concerned as to the effect this has had on his business. He has also been worried and concerned about the present litigation: T34.43 - T35.9.
18. When Mr Tony Manu, a social acquaintance of the plaintiff gave evidence, he said he had read the article in question and he had expressed surprise that the article referred to the plaintiff, who he had understood from the article was said to be a tailor by day and something else at night. He was surprised at this because he had regarded the plaintiff as being a person of good reputation: T63 - T64.
19. When he read the article he focussed on the fact that the Tony Zoef mentioned in the article was a tailor, and he became concerned over the effect that the article might have on the plaintiff's business, even though the published photograph was not that of the plaintiff. He knew the plaintiff was not 43 years of age: T66 - T68.
20. When Mr Richard Beer, who has been a client of the plaintiff since 1981, gave evidence, he stated that to his knowledge, the plaintiff had a well-known and good reputation as a tailor in the Sylvania Heights area: T69.8 - T69.24. He stated that when he read the subject article, he became confused because of the apparent age discrepancy within the publication, and thought it was a mistaken reference to the plaintiff: T69 - T71.
21. At around the time of the publication, the readership of the Sydney Daily Telegraph was estimated to have been of the order of 1.12 million people: Exhibit "F", answer to interrogatory 1(ii). The defendant intended that the target audience should read the matters of which the plaintiff complained. This is evidenced by the fact that the publication in question appeared under the prominent headline on page 9. The readership of the on-line version of the publication was not quantified, but it was undoubtedly significant.
22. It transpires that the publication in question contained numerous matters that were plainly incorrect insofar as they referred to the plaintiff. Those incorrect matters were as follows: 1. The plaintiff, the tailor referred to in the headline of the article, did not have an alter ego as a gunrunner and he was not a gunrunner: Exhibit "A", paragraph numbered 27; 2. The plaintiff had not ever been arrested, either by police or by Australian Customs and Border Protection Services: Exhibit "A", paragraph numbered 33; 3. The plaintiff had not faced, and had not ever been required to face, Sutherland Local Court on 21 August 2013 in the sense of having to face any charges: Exhibit "A", paragraph numbered 31; 4. The plaintiff had not been charged, either with 21, or any other offences, involving a huge or any cache of weapons and ammunition that had been discovered at his Sylvania home: Exhibit "A", paragraph numbered 38. 5. The plaintiff did not apply for bail as he had not been arrested, and as there had been no restraint upon his freedom, he had not ever required bail: Exhibit "A", paragraph numbered 35;
23. The question of whether it was the plaintiff who was identified in the article in question was a contested matter of fact to be determined in the proceedings.

Claimed Imputations

1. The plaintiff claimed that the following imputations set out in Exhibit "E" as arising from the matter complained of, cross-referenced to the identifying paragraph numbers added to the exhibit copy of the article: 1. The plaintiff is the mastermind behind a haul of military-grade weapons smuggled into Australia: (Paragraphs 29, 30 of Exhibit "A"); 2. The plaintiff so conducted himself so as to warrant being charged with 21 offences relating to weapons and ammunition: (Paragraphs 29, 31 of Exhibit "A"); 3. The plaintiff had in his house guns, grenades, an Israeli landmine, a pipe bomb, a gas mask, body armour and hundreds of rounds of ammunition: (Paragraphs 29, 31, 32, 33 of Exhibit "A"); 4. The plaintiff is a gunrunner: (Paragraphs 27, 29, 30 of Exhibit "A"); 5. The plaintiff is a gun toting criminal: (Paragraphs 6, 27, 29, 30, 31 of Exhibit "A"); 6. The plaintiff is a gun slinging punk in that he has an attitude that he rules the streets: (Paragraphs 20, 27, 29 ,30, 31 of Exhibit "A");
2. The above imputations were the subject of an earlier interlocutory hearing, at which time, in the plaintiff's favour, it was determined that those imputations were capable of conveying a meaning that was defamatory of the plaintiff, thus leaving the question of whether such imputations were in fact defamatory of the plaintiff to be determined at the final hearing: Zoef v Nationwide News Pty Ltd & Cuneo, Bozic SC DCJ, 7 March 2014, unreported.

Defences

1. In a defence filed on 28 April 2014, the defendant, conceded ownership and control of the newspaper, and that it was the publisher of that newspaper. The defendant did not rely on any defences based on truth. Instead, the defendant denied that the published material complained of was of, and concerning the plaintiff. The defendant further denied that the publication conveyed the claimed imputations, and claimed that the material was not defamatory of the plaintiff. As a further defence, the defendant claimed the article in question was a fair report of proceedings of public concern. The defendant also relied upon a defence that it had made a reasonable offer of amends that had not been accepted by the plaintiff.

Issues

1. The issues raised in the proceedings may be conveniently identified along the lines approved in Gardener v Nationwide News Pty Limited [2007] NSWCA 10, at [20], with modifications, as follows: Issue 1 - Has the plaintiff established, reasonably, that he was identified in the publication of which he complains; Issue 2 - Has the plaintiff established that the claimed imputations were conveyed to the ordinary reasonable reader, and if so, were such imputations defamatory of the plaintiff; Issue 3 - Whether the defence of fair report of proceedings of public concern pursuant to s 29 of the Defamation Act 2005 is available to the defendant on the evidence adduced; Issue 4 - Whether there had been a relevant offer of amends within the meaning of s 18 of the Defamation Act 2005, and if so, what was the significance of that offer to the proceedings; Issue 5 - The assessment of the plaintiff's entitlement to damages.
2. Before considering those issues, I will broadly summarise the respective submissions of the parties and identify the applicable legal principles that emerge from the case law.

Submissions of the parties

1. Essentially, the defendant argued that in addition to the specified statutory defences, the publication in question was not about the plaintiff, but was about another person, namely the plaintiff's son, and that therefore, the publication could not have been defamatory of the plaintiff. Accordingly, the defendant submitted the plaintiff's case must fail on the question of identification: MFI "6", par 3 and par 30.
2. On behalf of the plaintiff, in essence it was argued that as the plaintiff was referred to by name in the subject article, other evidence of identification was not required. On behalf of the plaintiff, it was also argued that all he had to do to succeed in the litigation to discharge the burden of proving that he was identified in the article in question, was to call witnesses who, on reasonable grounds, identified the plaintiff without having read the whole article on a close analysis: T126.42

Applicable legal principles

1. On the issue of identification, where a plaintiff has actually been named in a defamatory publication it is not necessary for the plaintiff to show that those to whom the material was published knew the plaintiff: Mirror Newspapers Ltd v World Hosts Pty Ltd (1978 - 1979) 141 CLR 632, at 639.
2. Even so, the plaintiff must establish that the defamatory matter should be understood to be referring to him: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, at 91. The determination of that question of identification is not to be decided by a consideration of what the publisher intended: Hutton v Jones [1910] AC 20.
3. In cases where a defamatory publication names one person but another person of the same name has been defamed, this can give rise to more than one claim: Lee v Wilson and Mackinnon (1934) 51 CLR 276, as cited in Australian Defamation Law and Practice, Volume 1, TK Tobin QC, MG Sexton SC, eds, 2003, at [6050].
4. In determining the question of identification, the question is, would a sensible reader reasonably identify the plaintiff as the person defamed: Morgan v Odhams Press Ltd [1971] 1 WLR 1239. In that regard, in The Law of Torts, JG Fleming 9th Ed, at pp 590 - 591, the following statement appears: "… Here also the standard of reasonableness is not high: the ordinary reader of a newspaper article, especially of the sensational variety, is not expected to read "with cautious and critical analytical care", he may read "casually and not expecting a high degree of accuracy" and indulge "in a certain amount of loose thinking" and even "rather far-fetched inferences". Evidence of witnesses that they believed the defamation to refer to the plaintiff is certainly admissible, even necessary when identification depends on special knowledge of the plaintiff, but it of course not conclusive. The recent trend reveals an increasing latitude not only in the relevant standard but also in passing the issue to the jury. … trend reveals an increasing latitude not only in the relevant standard but also in passing the issue to the jury. … Since liability is not dependent on fault, this liberality imposes a correspondingly greater burden on publishers." [References and citations in the quotation have been omitted]
5. In considering the matter complained of, the article containing that matter must be read as a whole, but the emphasis supplied by the publisher, in this instance, the prominent headline, is a factor that is not to be ignored: Mirror Newspapers Limited v World Hosts Proprietary Limited [1978 -1979] 141 CLR 632, at p 646.
6. The average or ordinary reasonable reader is not taken to be one who reads the article in question with cautious and critical analytical care. The ultimate question is whether an ordinary reasonable reader would understand that the words used referred to the plaintiff: Morgan v Odhams Press Ltd [1971] 1 WLR 1239, at pages 1254C - D; 1256H.
7. In a case where a party has been referred to in the article in question by his name, it is taken to have been published to anyone whomsoever, and the form of the article and the description within it was such, that in the circumstances, a person reading the article would reasonably believe it referred to the plaintiff: Consolidated Trust Company Limited v Browne; Fifty-Seven Darlinghurst Road Limited v Browne [1948] 49 SR (NSW) 86, at p 91, and at p 92, following David Syme & Co v Canavan (1918) 25 CLR 234, at p 238.
8. In cases involving headlines, it must be borne in mind that the ordinary reasonable reader will draw conclusions from general impressions when reading the matter complained of. Such general impressions are necessarily formed by the technique of using prominent headlines to communicate the principal message of the publication, and it must be recognised that in that process, such material may diminish the reputations of those affected: Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519, at p 575.
9. In cases where a person is mentioned by name in an article, a plaintiff is not obliged to call evidence identifying himself as the person referred to in the publication: Cross v Denley (1952) 52 SR (NSW) 112, at p 116.
10. In relation to the evidence of the plaintiff's daughter, Rhonda Zoef, who was disinclined to believe the published words in the article in question were true in relation to the plaintiff, her belief as to the truth or otherwise of the article was immaterial: Barbaro v Amalgamated Television Services Pty Ltd [1985] 1 NSWLR 30, at p 55: Hough v London Express Newspaper Limited [1940] 2 KB 507, at p 516.
11. In Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, in determining whether the defamatory matter was capable of referring to the respondent plaintiff in that case, it was stated that defamatory matter which does not name the plaintiff is actionable if there are special facts known to readers which properly lead them to infer that the defamatory matter refers to the plaintiff, even where the publisher is unaware of the existence of the plaintiff, and does not intend to refer to the plaintiff: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, at 351G, per Moffitt P, whose dissenting judgment was not in controversy on that point: Steele v Mirror Newspapers Ltd, per Samuels JA, at 371B.

Issue 1 - Was the plaintiff identified?

1. In considering whether the matter complained of identified the plaintiff, the following matters, and their context in the article in question, are relevant: 1. Exhibit "A" named Tony Zoef, and in doing so, identified his profession as a friendly tailor who alters clothing in the Sutherland Shire: Exhibit "A", par 29; 2. In the same context, Exhibit "A" stated that a person named Zoef was arrested: Exhibit "A", par 33; 3. In the same context, Exhibit "A" referred to the plaintiff's surname in stating that person faced Sutherland Local Court (on 21 August 2013) charged with 21 weapons related offences in relation to a cache of weapons found at the Zoef home in Sylvania: Exhibit "A", par 31; 4. In the same context, Exhibit "A" stated that the person named Zoef had not applied for bail, which was formally refused: Exhibit "A", par 35.
2. In my view, the combined context of those matters serves to adequately identify the plaintiff.
3. The banner headline "GLOVES OFF", the lesser but nevertheless bold headline "Police model gun crime tactics on New York's 9/11 response", and the article appearing under those headlines in Exhibit "A" make no reference to the plaintiff.
4. However, the emboldened headline "Tailor's alter ego as a gunrunner" and the article in question that appears below that headline both refer to the plaintiff: Exhibit "A", par 27.
5. I consider that to be so because the article strings together the plaintiff's name, his profession, the fact that he lives in his home in the Sutherland Shire, and has a business altering the clothes of locals all point strongly to the article mentioning the plaintiff by his name and is sufficient of his personal situation to indicate it was him who was the subject of the article.
6. Those details all follow the sensational headline "Tailor's alter ego as a gunrunner" thereby making a connection between the plaintiff and the described illegal activity concerning the cache of weapons and ammunition found at the premises.
7. The fact that an unclear undated photograph of Tony Zoef appears in the article (at par 38) is immaterial. The fact the article identifies the age of the person the subject of the article as being a 43 year old does introduce an element of possible confusion (par 30) along with the indistinct photograph (at par 38), but inaccuracy of some details appearing in a newspaper article is not an unknown phenomenon.
8. The salient feature is that the plaintiff was named in the article with sufficient of his personal details to suggest he was thereby identified, although the latter details are not essential to that finding.
9. As the article in question named the plaintiff, in my view thereby identifying him, this forms the basis of his right to bring the proceedings without more being shown by him. The fact that there were two persons at the premises named Tony Zoef is immaterial. Both persons of that name could bring proceedings for defamation in their own names: Lee v Wilson and Mackinnon (1934) 51 CLR 276.
10. The fact that the defendant would have a defence of truth and possibly other defences to a claim if brought by the plaintiff's son, would not serve to either de-identify the plaintiff or to render the plaintiff's claim of identification insupportable.
11. In those circumstances, the plaintiff is not obliged to call evidence identifying himself as the person referred to in the publication: Cross v Denley (1952) 52 SR (NSW) 112, at p 116.
12. Should I be wrong in those conclusions, I am nevertheless satisfied that the material complained of should be understood as referring to the plaintiff even though the publisher may not have intended that to be so: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, at 91.
13. I consider that in addition to the findings stated in the preceding paragraphs, an ordinary sensible reader would identify the plaintiff as the person the subject of the material complained of because of the specific of his name, profession, and locality as already explained. Such a reader, as the authorities summarised at paragraphs [39] above and following suggest, would not read such a sensational article as the one in question with critical and analytical care.
14. The article would be approached by such a reader with the permissible amount of loose thinking, and that reader would be reasonably entitled to draw the conclusion that the article was referring to the plaintiff, even though there were some elements of confusion such as a less than distinct photograph and a different age mentioned to that of the plaintiff. An ordinary reasonable reader would not necessarily know the plaintiff's age or his level of interest in matters to do with space. The headline of "Tailor's alter ego as a gunrunner" would catch the attention of such a reader and permit the general impression of the story being a reference to the plaintiff: Mirror Newspapers Limited v World Hosts Proprietary Limited [1978 - 1979] 141 CLR 632, at p 646; Morgan v Odhams Press Ltd [1971] 1 WLR 1239.
15. An indication of the correctness of those conclusions is the initial reactions of the plaintiff's daughter, Mr Manu, and Mr Beer, who knew the plaintiff: Steele v Munro Newspapers Ltd [1974] 2 NSWLR 348. Their special knowledge of the plaintiff distinguished them from the less informed attributes of an ordinary reasonable reader and enabled them to ultimately realise the allegations in the article did not involve the plaintiff. The plaintiff does not rely on any erroneous belief on the part of those persons as to identification: Nu-Tec v ABC [2010] NSWSC 711, at [18].
16. Either way, I am satisfied that the plaintiff was named in the publication. I am further satisfied, that an ordinary reasonable reader of the article in question would conclude that the article referred to and identified the plaintiff.
17. By referring to an alter ego of the tailor, the publication was referring to a person who was a tailor or who carried out the other activities described, namely gun running. This could reasonably be taken to be a reference to one person acting with two personae.

Issue 2 - Were the imputations defamatory of the plaintiff?

1. I now turn to a consideration of the claimed imputations. It has already been determined at an interlocutory stage of the proceedings that the imputations claimed by the plaintiff were capable of being conveyed in the publication in question: Zoef v Nationwide News Pty Limited; Bozic SC DCJ , 7 March 2014, unreported.
2. That decision, with which I respectfully agree, determined, at page 3, that the way in which the page of the publication in question was set up, it was capable of being read first, as a general article about weapons in the community, and then, as a specific example, by reference to the plaintiff.
3. The defendant "primarily" argued that the matter complained of was not an article about the plaintiff, and therefore, the plaintiff had not been defamed: MFI "6", par 3. Accordingly, in written submissions, the defendant did not specifically address, but nevertheless sought to avoid, imputations (a), (b), (c) and (g), and in doing so, it abandoned its written submissions concerning imputation (e).
4. In addressing the effect of that stance, Mr Sibtain, who appeared for the defendant, pointed to the second of the two articles as identifying the relevant controversy, namely that on the one hand there is material which identifies, or is capable if identifying, one person (being the plaintiff as I have found to be the case), yet on the other hand, there is material that squarely points away from the plaintiff: T87.1 - T87.9.
5. In my view, the avoiding effect of that submission should not be accepted. This is because the ordinary reasonable reader, invested with the range of characteristic reading techniques and skills already identified, including a permissible degree of loose and non-analytical thinking, focussing on the sensational headlines, would have understood that the article concerning the friendly Sutherland tailor with an alter ego as a gunrunner, was referring to the plaintiff.
6. Such a reader would have also drawn the connection that the reference to the person referred to in the article, as having faced Sutherland Local Court on 21 weapons-related charges on the day before the article was published, and who was formally refused bail in respect of those matters, was the plaintiff.
7. The finding I make is that the ordinary reasonable reader would reach those conclusions. It follows that the claimed imputations were conveyed, and that they were defamatory of the plaintiff. In my view, the latter conclusion follows because a person conducting himself in the manner described in the article would undoubtedly attract opprobrium, disdain, ridicule and contempt from society.
8. In my view, the arguments relied upon by the defendant seeking a contrary conclusion, wrongly proceed by a method of close and critical hindsight analysis that goes well beyond the lesser detailed approach taken by the ordinary reasonable reader. That approach involves an inappropriate dissection that would not ordinarily be applied by the ordinary reasonable reader to such a sensational headline and accompanying article.
9. The defendant's stinging slur arising from within that article has stuck to the person described as the friendly tailor, the plaintiff, wounding him, by wrongfully describing him as a gunrunner. I therefore find that the plaintiff was defamed by the publication, in the manner he has claimed.

Issue 3 - Claimed defence of fair report - s 29 of the Act

1. The defendant claimed that the article in question comprised a fair report of proceedings of public concern which gave rise to a defence pursuant to s 29 of the Defamation Act 2005.
2. Section 29 of the Act relevantly provides: "29 Defences of fair report of proceedings of public concern (1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern. (2) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was, or was contained in, an earlier published report of proceedings of public concern, and (b) the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report, and (c) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair. (3) A defence established under subsection (1) or (2) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education. …"
3. There was no evidence of matters of the kind contemplated by s 18(3) of the Act.
4. "Proceedings of public concern" is a term that is defined to include any proceedings in public in a court: s 29(4)(e) of the Act.
5. The relevant proceedings of public concern relied upon by the defendant as a defence to the plaintiff's claim are the criminal proceedings involving the plaintiff's son at Sutherland Local Court on 21 August 2013. Those proceedings received scant mention in these proceedings. The fact of those proceedings being in existence, and the fact that they related to 21 charges for which bail was formally refused, is mentioned in Exhibit "A". The fact that the proceedings were adjourned to October 2013 appeared in the on-line edition of the article: Exhibit "G".
6. Exhibit "A" is untimed. Exhibit "G" is stated to have been "loaded" at 10.36 on 22 August 2013, and later modified at 14.25 on that date. I infer from those times that the print version comprising Exhibit "A", which was most likely distributed much earlier than those times on 22 August 2013, preceded Exhibit "G". Ultimately, nothing turns on those differences.
7. In my view, for the reasons that follow, the defence claimed under s 29 of the Act must fail because the defendant has not proven the matters required by s 29(2)(b) of the Act for that defence to operate.
8. The record of the proceedings of Sutherland Local Court involving the plaintiff's son was not in evidence. There was no document in evidence that could be described as a report of those proceedings and from which a proper judgment could be made as to whether such a report was fair in its content.
9. As a result, the defendant has not shown that the matter complained of by the plaintiff was either contained in, or was a fair copy, or a fair summary, or a fair extract from, an earlier published report. I therefore reject the defence claimed under s 29 of the Defamation Act 2005.

Issue 4 - Offer of amends

1. A dispute arose as to the existence and non-acceptance by the plaintiff, of an offer issued by the defendant to make amends to the plaintiff.
2. On that issue, the plaintiff himself could not recall ever having seen an offer of amends from the defendant's solicitors addressed to him through his own solicitors: T51.49 - T52.1; T52.36; T53.14; T54.45 - T55.25; T56.11. That evidence was not contradicted. The plaintiff explained that in the last 18 months "it has been hell for [him and his] wife" and that his "memory is going, so I, I don't know. It's something I can't explain": T56.44.
3. In those circumstances, without supporting evidence, I am not prepared to infer from the content of the plaintiff's evidence as cited above, that the plaintiff's solicitor had acted without first obtaining instructions from the plaintiff concerning the correspondence offering amends.
4. The defendant relied upon a defence that it had made a relevant offer of amends. The correspondence the defendant relied upon was tendered as a bundle: Exhibit "1", pp 1 - 12. That correspondence reveals the following chronology of events relevant to the question of an offer of amends: Date Event Reference 20.12.2013 Service of statement of claim 1 16.01.2014 Defendant's letter offering amends 1 - 3 23.01.2014 Plaintiff's solicitor requests clarifications and modifications 4 30.01.2014 Defendant clarifies terms of the offer of amends 5 - 6 27.03.2014 Defendant withdraws offer made by letter dated 16 January 2014 and makes a fresh offer 7 - 10A 24.11.2014 Defendant withdraws offer of amends made by letter dated 27 March 2014 11 25.05.2015 Solicitor for the plaintiff purports to accept offer of amends contained in defendant's letter dated 27 March 2014 12

1. The legislative provisions concerning offers of amends appear in Pt 3, Div 1 of the Defamation Act 2005. The clear aim of those provisions is to promote the resolution of defamation claims without proceeding to litigation.
2. The defendant's solicitor's letter dated 16 January 2014 was stated to be in compliance with Pt 3, Div 1 of the Act and it appears to be in compliance with s 13 of that Act. That letter observed that the plaintiff had not provided a concerns notice to the defendant before the statement of claim was served, and by its terms, the defendant's solicitor's letter treated the plaintiff's statement of claim as if it was also a concerns notice.
3. Section 14(1) of the Act provides that an offer of amends cannot be made if 28 days has elapsed since the person aggrieved has given the publisher a concerns notice. As the defendant's solicitor's letter of offer of amends was sent 27 days after the service of the plaintiff's statement of claim, the offer of amends was compliant with s 14(1) of the Act.
4. Section 15 of the Act provides for the content of an offer to make amends. On its face, the defendant's solicitor's letter of offer of amends appeared to have been compliant with s 15 of the Act, and it was expressed to have been open for acceptance until the first day of the hearing, unless withdrawn in writing beforehand: Exhibit "1", p 2.
5. The letter of reply dated 23 January 2014 from the solicitor for the plaintiff was not an acceptance of the offer of amends. Instead, it indicated a readiness to accept the offer subject to some significant qualifications that were outlined. These included the provision of a heading "Apology" and for any published apology, to be published on either pages 2 or 3, or the same page as the offending articles, with the boxed text to measure 40mm in height and 2 columns in width. Monetary compensation was also sought: Exhibit "1", p 4. It is not necessary to determine whether that letter simply sought clarification on whether it represented a counter-offer.
6. The defendant's solicitor's reply of 30 January 2014 to the plaintiff's solicitor's letter dated 23 January 2014 noted that the letter dated 23 January 2014 did not constitute an acceptance of the offer of amends. The defendant's solicitor's letter dated 30 January 2014 rejected the plaintiff's counter-offer and advised that the previously served offer of amends remained open for acceptance on its previously expressed terms: Exhibit "1", p 5.
7. Eight weeks later, on 27 March 2014, the solicitor for the defendant wrote to the solicitor for the plaintiff to withdraw the offer of amends that had been communicated on 16 January 2014, and in doing so, made a renewal offer of amends that indicated where, and in what size and style, an apology would be published. It also included an offer of monetary compensation in the amount of $20,000 plus payment of the plaintiff's reasonable expenses incurred before the date of the renewed offer, including the costs of considering the offer, as agreed or assessed. The offer was expressed to remain open until the first day of the hearing unless withdrawn in writing: Exhibit "1", pp 7 - 10. That renewal offer was in compliance with s 16 of the Act.
8. On 24 November 2014, the defendant's legal counsel, who was not the solicitor from Ashurst's who wrote the letter dated 27 March 2014 making a renewed offer of amends, referred to that 27 March 2014 letter and withdrew that offer, in a manner that was provided for by s 16 of the Act: Exhibit "1", p 11.
9. Notwithstanding the stated confusion of the letter of 24 November 2014 referring to "my client's letter dated 27 March 2014" when in fact the earlier letter was from the defendant's solicitors, Ashurst's, the withdrawal was effective, and was in accordance with s 16 of the Act.
10. A period of 6 months then passed until the eve of the trial. The evidence is silent as to what if any communications took place between the parties on the issue of offers of amends in that period.
11. On the eve of the trial, namely 25 May 2015, the solicitor for the plaintiff wrote to the defendant purporting to accept the "updated offer of amends of 27 March 2014", without any reference to, or acknowledgment of, the fact that the offer in the letter dated 27 March 2014 had been withdrawn: Exhibit "1", p 12.
12. The circumstances of the plaintiff's solicitor sending his letter dated 25 May 2015 to the defendant remains unexplained. The purported acceptance proved ineffective and the proceedings therefore remained unresolved and then proceeded to trial.
13. This leads to a consideration of the significance of the withdrawal on 24 November 2014 of the renewed offer of amends dated 27 March 2014. Section 18 of the Act makes provision in the case of a non-acceptance by a plaintiff of a reasonable offer to make amends in that such a non-acceptance is a defence to an action in defamation. For that position to arise, three cumulative pre-conditions within s 18(1)(a), (b) and (c) must be fulfilled.
14. The first requirement of s 18(1) is that the publisher must make the offer as soon as practicable after becoming aware of the matter claimed to be defamatory. In my view, the defendant's offer dated 16 January 2014 and the defendant's renewed offer dated 27 March 2014 in response to the changed circumstances of negotiations satisfies the requirements of s 18(1)(a) of the Act.
15. The second requirement of s 18(1) is that at any time before the trial the publisher was ready and willing, on an acceptance of the offer by the aggrieved person, to carry out the terms of the offer. There is controversy as to whether the defendant can obtain the benefit of that provision: s 18(1)(b) of the Act. This will be considered following a consideration of s 18(1)(c).
16. The third requirement of s 18(1) is that in all the circumstances, the offer was reasonable. In Pedavoli v Fairfax Media Publications Pty Limited [2014] NSWSC 1674, McCallum J described the starting point of the consideration of the reasonableness of an offer of amends (as provided for in s 18(2)(b)(ii) of the Act) is to consider the matter for which the amends are to be made. Her Honour stated that the reasonableness of the offer will be critically informed by its capacity to address the hurt and harm done by the publication in question, both as to its seriousness and its extent: Pedavoli v Fairfax Media Publications Pty Limited, at [18]. Her Honour further explained that the reasonableness of any monetary offer of amends is necessarily informed by the reasonableness of the correction, including the extent of its reach: Pedavoli v Fairfax Media Publications Pty Limited, at [100].
17. In my view, the question of the reasonableness of the offer of amends can be determined shortly, simply and directly in this case by reference to a letter sent by the plaintiff's solicitor on 25 May 2015, in which the plaintiff purported to accept the previously made offer of amends: Exhibit "1", p 12.
18. In my view, the plaintiff's willingness to accept the previously made offer (ignoring for the purposes of this analysis that it had been withdrawn) provides a sufficient indication of the reasonableness of that offer at the time it was thought to have remained open. Accordingly, the relevant offer of amends satisfied the requirements of s 18(1)(c) of the Act.
19. Returning then to the consideration of the content concerning whether the defendant has fulfilled the requirements of s 18(1)(b) of the Act, the polarised positions of the parties can be simply stated.
20. The plaintiff's position on the s 18(1)(b) point is that the claimed defence of offer of amends must fail because the requirements of s 18(1)(b) had not been fulfilled because the offer had been withdrawn, and therefore the publisher was not ready and willing to carry out the terms of the offer at any time before the trial. That argument is based upon the simple proposition that an offer cannot be accepted after its withdrawal, and its terms cannot be carried out at any time before the trial if it is no longer an extant offer.
21. The contrary position is that the defendant was entitled to withdraw the offer at any time, on written notice. It did so after a period of non-acceptance by the plaintiff of the defendant's offer of 27 March 2014. Before that withdrawal, the plaintiff could have accepted the terms of the offer before the notice of withdrawal was communicated. There is sufficient evidence within the correspondence to indicate that if the offer had been accepted when it was open, the defendant would have carried out the terms of such an accepted offer.
22. It is therefore necessary to construe the meaning of s 18(1)(b) of the Act. Section 18 of the Act relevantly provides: "18 Effect of failure to accept reasonable offer to make amends (1) If an offer to make amends is made in relation to the matter in question but is not accepted, it is a defence to an action for defamation against the publisher in relation to the matter if: (a) the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory, and (b) at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer, and (c) in all the circumstances the offer was reasonable. …"
23. The terms of s 18(1)(b) have been considered by Nicholas J in Bushara v Nobananbas Pty Ltd & Anor [2012] NSWSC 63. That case concerned time limits imposed for acceptance of an offer of amends. In that case, at [10] the following passage appears in his Honour's reasons: "10. Section 18(1)(b) imposes a condition the fulfilment of which requires the publisher to show, on acceptance of the offer, that it was ready and willing at any time before the trial to carry out the terms of the offer. It is tolerably plain that the issue of the publisher's willingness to carry out the terms of the offer only arises on the hypothesis that the offer which it made had been accepted. Put another way, what the publisher is required to show is that it was ready and willing to carry out the terms of the offer had it been accepted. In my opinion, upon its proper construction, sub-par (b) has no application to the terms of the offer which was not accepted. The requirements as to terms are separately and comprehensively provided for in s 15."
24. The language highlighted in the above paragraph cited from Bushara creates some difficulty for the present case. The terms of s 18(1)(b) are plainly intended to apply to circumstances where an offer of amends was not accepted. In the context of the present case, I consider that the provision must also contemplate the circumstance of an offer that was not accepted prior to its withdrawal. I do not take his Honour to be suggesting something different.
25. I consider that on a proper construction of s 18(1)(b), the work of that sub-section is not necessarily dependent upon an offer of amends being left open until the trial, but includes the circumstance of an offer that has been allowed to remain open for an acceptance until it is withdrawn, for whatever reason.
26. The question of whether the defendant had acted reasonably in withdrawing an offer that had been left open for acceptance but not accepted for a period of 8 months before it was withdrawn, does not arise for determination in the present case as there was no evidence of the forensic or tactical considerations that may have led to the offer being withdrawn.
27. The key operative event which engages s 18(1)(b) where the provisions of s 18(1)(a) and (c) are otherwise satisfied, is that the offer of amends could have been accepted and its terms could have been carried out, but instead, it was not accepted.
28. The result of such non-acceptance in this case is that the defendant is entitled to the benefit of a defence to the plaintiff's action as provided by the legislation: s 18(1) of the Act.
29. Allowing for the possibility that I may be wrong in my construction of s 18(1)(b), it remains necessary to consider the plaintiff's case for damages.

Issue 5 - Damages

1. The defendant has conceded that there is no doubt the plaintiff had suffered considerable distress since the police raid on his premises. The defendant also conceded that the circumstances of the plaintiff having to face questions from neighbours and customers about the cache of weapons found at his premises would have also distressed him. The defendant has also conceded that in the years that followed the events, the plaintiff, as would anyone in his position, was highly distressed by the consequential matters he has had to face: MFI "6", par 49.
2. The defendant further argued that the plaintiff would have suffered that distress irrespective of the publication in question, namely irrespective of whether or not the publication was about him: MFI "6", par 50.
3. Those submissions bring into focus the central question of whether the plaintiff's distress was due to the publication of which he complains, or whether it was due to the overall circumstances of the undoubted ignominy that followed the discovery of weapons on his premises due to the actions of his son. Distress of the latter kind, when taken alone, is an insufficient basis for the recovery of damages for defamation.
4. The defendant's submissions which seek to lay the blame for the plaintiff's distress to the overall circumstances created by the plaintiff's son rather than due to the publication in question overlook an important uncontradicted matter in the evidence of the plaintiff, which I accept.
5. The plaintiff described his initial upset as having occurred after having been shown the publication. As recounted at paragraph [12] above, the unchallenged and uncontradicted evidence of the plaintiff was that the inevitable questions that arose in the circumstances caused him upset, stuttering and shaking, notwithstanding that he considered the underlying proposition of him being involved with guns absurd.
6. The defendant's arguments on this issue also overlook the plaintiff's unchallenged and uncontradicted evidence that his reaction at the time, is the same as he feels now. The plaintiff used the expression that he felt "cut down" from under his feet by the paper (which I take to mean the publication), and he takes tablets to slow his heart and to calm down. He said the subject matter just kept eating at him. There could be no clearer expression of a causal nexus between the plaintiff's distress and the publication of which he complains. I find that the focus of the plaintiff's evidence on those matters of distress related to the article and the shocking effect it had upon him in the form of injury to his reputation: T26.43 - T26.50.
7. On the basis of those findings, it becomes necessary to assess the plaintiff's entitlement to damages.
8. The maximum or outer limit of any amount of damages for non-economic loss in an action for damages for defamation is $366,000: s 35(1) of the Defamation Act 2005; Gazette No 57 of 27 June 2014, p 2322. The amount to be awarded must represent an appropriate and rational relationship to the harm sustained by the plaintiff: s 34 of the Defamation Act 2005.
9. The defamation that I have found to have occurred as a result of the publication, involved a serious injury to the plaintiff's reputation which conveyed imputations of illegal activity involving weapons. This was a matter which if true, would be something that would be viewed with utmost disdain in a civilised society, and defamatory imputations to that effect are matters that ought to sound in substantial damages. Notwithstanding the plaintiff's age.
10. The amount to be selected as the appropriate award of damages is recognised to be the product of "inextricable considerations" involving matters of consolation for personal distress and hurt caused by the publication, the reparation of harm occasioned to the plaintiff's reputation, and a vindication of reputation, as was explained by Bell J, in Atrill v Christie [2007] NSWSC 1386, at [38], following Carson v John Fairfax & Sons Ltd (1992 - 1993) 178 CLR 44, at p 60 and Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118 at p 150.
11. In Atrill v Christie, at [38] - [47] Bell J helpfully set out a discussion that guides the process of assessment of damages in such cases. The requirement is to ensure that there is a rational relationship between the harm suffered and the amount of the award. That exercise requires the exclusion of factors for which the defendant is not liable, which in the present case, would be the initial shock, shame, distress and ignominy that would inevitably have been associated with the police raid on the plaintiff's home and the plaintiff's recognition that his son's activities had caused this to happen: Atrill v Christie, at [45].
12. In my assessment, the plaintiff's shock at the initial events of the raid and the arrest and charging of his son were overtaken and eclipsed by the ongoing effects of the plaintiff's shocked reaction to the content of the defendant's publication by which the identified defamatory imputations concerning him were conveyed. I am satisfied from the evidence of the plaintiff that it was the latter effects that have continued to seriously distress him and cause him hurt. The defendant obtained no concessions from the plaintiff to the contrary to support an argument that the plaintiff's distress is unrelated to the publication of which he complains. I consider that those matters of hurt and distress for which he legitimately complains would ordinarily form the basis of substantial compensatory damages for defamation if the defendant had not established its s 18 defence.
13. As a result of the matters of which he complains, the plaintiff's reputation has suffered in the eyes of his customers, and in the eyes of those with whom he conducts the transactions of every-day life. This is evidenced by the nature and the content of the questions he has been asked by his neighbours, his customers and in the presence of at least one shopkeeper with whom he does business. Furthermore, whilst the significant decline he has described in his business may have been co-incidental and unrelated to the publication in question, and more to do with his advancing age, I consider that the fact of the existence of uncollected goods in the plaintiff's business suggests otherwise.
14. In the described circumstances, the statutory outer limit is not the appropriate sum to award, as plainly, that would be a sum too high. However, on the above rationale, I consider that the sum of $150,000 is the appropriate sum by which to compensate the plaintiff for such feelings of hurt and distress.
15. I consider that sum would have demonstrated vindication to reputation and the high value the law places on the reputation of those whose work and life depend upon their honesty and integrity: Ali v Nationwide News Pty Ltd [2008] NSWCA 183, at [74] and following. This is particularly so where the grapevine effect applies and no-one knows "how far the poison will spread": Ley v Hamilton (1935) 153 LT 384; Crampton v Nugawela (1996) 1 NSWLR 176, at 194 - 195.
16. The plaintiff has not made out the basis for his claim for aggravated damages as contumelious disregard of the plaintiff's rights has not been shown to have occurred in the form of actual knowledge on the part of the defendant of the falsity of the allegations. That matter has not been demonstrated: Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182, at [42] - [62].

Disposition

1. The defendant has established a defence pursuant to s 18 of the Defamation Act 2005. That defence has the inexorable effect of defeating the plaintiff's claim.

Costs

1. As the defendant has succeeded in the proceedings, the plaintiff should pay the defendant's costs on the ordinary basis, unless otherwise ordered.

Orders

1. I make the following orders: 1. Verdict and judgment for the defendant; 2. The plaintiff is to pay the defendant's costs on the ordinary basis unless otherwise ordered; 3. The exhibits may be returned; 4. Liberty to apply on 7 days notice if further or other orders are required.

APPENDIX (1.13 MB, pdf) | text only version (103 KB, rtf)

Amendments 22 October 2015 - Appendix not attached at original publishing. 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: 22 October 2015