Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Cheng v Pan; Cheng v Zhou [2022] NSWCA 21 Hearing dates: 29 October 2021 Date of orders: 24 February 2022 Decision date: 24 February 2022 Before: Basten JA at [1]; Payne JA at [2] ; Simpson AJA at [3] Decision: Appeal 2021/54620 1. Appeal dismissed. 2. The appellant to pay the respondents' costs. Appeal 2021/54621 1. Appeal dismissed. 2. The appellant to pay the respondent's costs. Catchwords: DEFAMATION – defamatory matter – series of letters published conveying defamatory imputations – inference that all of the letters were published by the same person – whether the appellant the publisher of any or all of the letters DEFAMATION – remedies – where primary judge awarded general and aggravated damages – whether primary judge's assessment of damages was excessive – whether respondents entitled to award of aggravated damages COSTS – party/party – whether costs should be assessed on an indemnity basis Legislation Cited: Australian Charities and Not-for-profits Commission Act 2012 (Cth) Civil Procedure Act 2005 (NSW), s 101 Defamation Act 2005 (NSW), ss 9, 34, 35, 36, 39, 40 Evidence Act 1995 (NSW), s 136 Limitation Act 1969 (NSW), s 14B Supreme Court Act 1970 (NSW), ss 75A, 101 Cases Cited: Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; [2004] FCAFC 189 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Krivoshev v Royal Society for the Prevention of Cruelty to Animals Inc [2005] NSWCA 76 Monie v The Commonwealth (2005) 63 NSWLR 729; [2005] NSWCA 25 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77 Pan v Cheng; Zhou v Cheng [2021] NSWSC 30 R v Maxwell (1998) 217 ALR 452 Category: Principal judgment Parties: 2021/54620 Jie Cheng (Appellant) Henry Pan (1st Respondent) Chinese Australian Services Society Ltd (2nd Respondent) 2021/54621 Jie Cheng (Appellant) Bo Zhou (Respondent) Representation: Counsel: G O'L Reynolds SC/T Senior (Appellant) S T Chrysanthou SC/N G Olson (Respondents) Solicitors: Kalantzis Lawyers (Appellant) Australegal (Respondents) File Number(s): 2021/54620 2021/54621 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Civil Citation: [2021] NSWSC 30 Date of Decision: 1 February 2021 Before: Rothman J File Number(s): 2018/218713 2018/340360 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, Ms Jie Cheng, was found liable for the publication, between June 2017 and October 2018, of 24 letters written in a Chinese language that conveyed imputations defamatory of each of the respondents, Mr Henry Pan, the Chinese Australian Services Society Ltd ("CASS") and Dr Bo Zhou. The primary judge awarded damages (including aggravated damages) totalling $635,000 to the respondents, ordered the appellant to pay the respondents' costs on an indemnity basis and ordered that the appellant be restrained from repeating the defamatory imputations. The key issue in the primary proceedings was whether the appellant was proved to have published the letters. CCTV footage placed the appellant at the Hornsby Australia Post office from which two of the defamatory letters (Letters 8 and 11) were posted to various persons at the times they had been posted. The appellant accepted that she had posted the envelopes in which Letters 8 and 11 were contained, but claimed to have posted different letters in them. The primary judge made seriously and trenchantly adverse findings with respect to the appellant's credibility and found, based on the evidence, that the appellant had published Letters 8 and 11. Based on the content and writing style of the letters, the primary judge also accepted that an inference arose that all the other letters had been composed by the same person, being the appellant. The appellant appealed, both as to liability and as to damages. Held by Simpson AJA (Basten and Payne JJA agreeing), dismissing the appeal: Issue 1 – whether appellant liable for publishing the defamatory imputations (i) The primary judge gave detailed reasons for his conclusion that the appellant's denial of publication could not be believed. The alternative factual scenario proposed by the appellant – that the letters she had placed in the envelopes posted from the Hornsby Post Office were not Letters 8 and 11 – was demonstrably false. He was satisfied that Letters 8 and 11 had been published by the appellant: [44]–[46], [65]. (ii) Once it was established that the appellant had published Letters 8 and 11, the conclusion that she had published the remaining letters was inevitable: [66]. Issue 2 – whether each award of damages was excessive and whether the respondents were entitled to aggravated damages (iii) The contention advanced by the appellant, namely that because the publications were anonymous and made only to a few people a substantial award of damages was not warranted, was rejected. Many of the letters were addressed to multiple proposed recipients and many were addressed to individuals and organisations who held significant office in the Chinese community, and found their way to those persons. Furthermore, evidence that Mr Pan and CASS were treated differently than had previously been the case made clear that damage was done: [111], [113]. (iv) Section 35 of the Defamation Act, as in force at the time of publication, permitted an award of aggravated damages if the circumstances of publication so warranted. The primary judge's discretion to award aggravated damages did not miscarry having regard to the circumstances of this case: [117]–[119], [122]. Issue 3 – whether costs should not have been assessed on an indemnity basis (v) The primary judge was entitled to make an order for assessment of costs on an indemnity basis on ordinary principles. The appellant was given an opportunity to make submissions as to costs and failed to do so. The costs order was not disturbed: [125]–[129]. Judgment 1. BASTEN JA: I agree with Simpson AJA. 2. PAYNE JA: I agree with Simpson AJA. 3. SIMPSON AJA: In October and November 2019 two proceedings in defamation were heard concurrently in the Common Law Division of the Supreme Court. The plaintiffs in the first proceeding were Mr Henry Pan and the Chinese Australian Services Society Ltd ("CASS"). The plaintiff in the second proceeding was Dr Bo Zhou. The sole defendant in each proceeding was Ms Jie Cheng. The claims were governed by the Defamation Act 2005 (NSW) as it then stood. Significant amendments to the Defamation Act made by the Defamation Amendment Act 2020 (NSW), which took effect from 1 July 2021, do not affect these proceedings. By s 14B of the Limitation Act 1969 (NSW) a limitation period of one year is applicable to claims in defamation. 4. On 1 February 2021 Rothman J ("the primary judge") delivered judgment: Pan v Cheng; Zhou v Cheng [2021] NSWSC 30. His Honour upheld claims by Mr Pan and CASS that Ms Cheng had, over a period between July 2017 and May 2018, published material that conveyed defamatory imputations of them, and similar claims by Zhou of publications between November 2017 and October 2018. His Honour awarded damages (including aggravated damages) to each plaintiff (to be detailed below). The damages awarded totalled $635,000. His Honour also ordered in each case, that Ms Cheng pay interest to be calculated at 2% from 1 January 2017 to the date of judgment and in accordance with the rate prescribed by s 101 of the Civil Procedure Act 2005 (NSW) thereafter; and that Ms Cheng pay each plaintiff's costs of the proceedings assessed on an indemnity basis. Finally, his Honour ordered that Ms Cheng be enjoined and restrained from repeating the defamatory imputations. Importantly, he gave liberty to the parties to apply, within 14 days, in relation to the form of the orders, and the questions of interest and costs. No party exercised the liberty to apply. 5. Ms Cheng now appeals against each order. Having regard to the quantum of damages awarded in each case alone, each appeal is as of right: Supreme Court Act 1970 (NSW), s 101(2)(r). The appeals are governed by s 75A of the Supreme Court Act by which an appeal is a rehearing (subs (5)), and this Court has the powers and duties of the court of first instance, including the power to draw inferences and make findings of fact (subs (6)). 6. In the interests of clarity, when referring to the plaintiffs individually I will do so by name or title; because another person by the name of Cheng features in the proceedings, I will refer to Ms Cheng as "the appellant". Background 1. The following, which I understand to be uncontroversial, is largely drawn from the facts found by the primary judge, to some extent supplemented by uncontested evidence in the proceedings. 2. Each proceeding arose out of a series of written communications which took the form of anonymous letters written in a Chinese language and addressed to individuals largely, but not entirely, members of the Australian Chinese community, and sent by post. Most concerned the management and operation of CASS. CASS is a company limited by guarantee which provides aged care, disability, settlement and childcare services predominantly to the East Asian community in various Sydney suburbs and Wollongong. It is registered as a charity under the Australian Charities and Not-for-profits Commission Act 2012 (Cth). By reason of its not-for-profit status and that it is not "a public body", CASS is an "excluded corporation", exempt from the prohibition in s 9(1) of the Defamation Act on the pursuit of defamation claims by corporations. 3. Mr Pan has been involved in CASS since its inception in 1981, was involved in its establishment, and has held office as its Chairman and then Executive Director. He does not receive remuneration and does not claim reimbursement for expenses incurred. As the result of an assault in 2006, Mr Pan is totally blind. Dr Zhou (whose doctorate is in science, not medicine) has been involved in CASS since 1996 and became a Director shortly thereafter, Vice Chairman in about 2014, and Chairman in 2016. 4. In February 2015 a wholly owned subsidiary of CASS (CASS Care Ltd) opened a 63-bed aged care facility in Campsie. While the facility was in development the appellant was appointed as Director of Nursing. Her function was the day to day management and operation of the facility, including planning, development and coordination of the then proposed residential aged care services, activities of CASS Care and the supervision of staff. She reported directly to Mr Pan. In January 2016 she was appointed as Senior Executive Officer for Disability Services. 5. In April 2016 the appellant resigned from her position as Senior Executive Officer of Disability Services but continued working in the facility in other roles. In the same month, prior to her resignation, she made a formal complaint of bullying by Mr Pan and made various criticisms of the conduct of the facility. She withdrew the complaint of bullying on 31 May 2016. 6. On 16 and 18 August 2016 Mr Pan, as Honorary Executive Director, sent warning letters to the appellant concerning aspects of her conduct. On 23 August 2016 the appellant resigned her position at CASS. 7. Early in 2016 CASS began developing a business relationship with a Chinese aged care provider known as the Silian Technology Company ("Silian") located in Chongqing. Silian is at times referred to by various other names, such as "Sly Yours Nursing Home" and "Sly Yours Senior Care and Technology Co Ltd", "Chongqing Silian Youshi Scientific Ageing Industry Co". Both Mr Pan and Dr Zhou were involved in the project. Silian had a representative in NSW, Mr Xiaoru Liu. Silian's Chairman in China was Mingliang Luo. 8. From mid November 2016 numerous anonymous letters written in a Chinese language were sent to various individuals and organisations. Most of the letters named multiple proposed recipients. A number were addressed to the Ambassador or other officials of the Embassy of the People's Republic of China ("PRC") and/or the Consul-General thereof, Dr Tony Goh and Dr Leng Tan, Dr Zhou and others; several were addressed to Dr Zhou; several to Mr Pan's wife; several were addressed to unidentified individuals "from different walks of life in the community"; three were addressed to Silian and/or Mr Mingliang Luo. 9. I do not propose to give further currency to the content of the letters. It is clear that, in sum, they constituted a sustained campaign of attack on Mr Pan, making serious allegations of all kinds of perfidy. Although it appears that the principal focus of the author of the letters was Mr Pan, both CASS and Dr Zhou were also the subject of serious accusations. A number of the letters concerned what was alleged to be Mr Pan's personal behaviour. 10. It was the plaintiffs' case that each letter was written by the appellant, sent by her by post to the named addressees, and conveyed seriously defamatory imputations of one or more of the plaintiffs. The pleadings in the Supreme Court 1. By Statement of Claim ("the Pan/CASS Statement of Claim") filed on 16 July 2018 Mr Pan and CASS identified 21 anonymous letters in Chinese which they alleged had been published by the appellant between July 2017 and May 2018. Each letter was annexed to the Statement of Claim together with a translation into English by an accredited translator. Mr Pan alleged that each letter conveyed specified imputations that defamed him. CASS alleged that two of the letters (Letters 8 and 11) contained specified imputations that defamed it. Both Mr Pan and CASS accordingly claimed damages. 2. By Statement of Claim ("the Zhou Statement of Claim") filed on 6 November 2018 Dr Zhou identified 7 anonymous letters (four of which were also the subject of the Pan/CASS Statement of Claim) that he alleged had been published by the appellant between 17 November 2017 and 19 October 2018. Each letter was annexed to the Statement of Claim together with a translation into English by an accredited translator. Dr Zhou also alleged that each letter conveyed specified imputations that defamed him. He also claimed damages. 3. In many, if not all, cases the letters began by identifying the addressee or addressees and enquiring "how are you!" (the exclamation mark can be clearly seen in the Chinese version). The first letter, of 17 July 2017, named a number of addressees, including officials of the Chinese Embassy and Consulate, Dr Tony Goh and Dr Leng Tan, Dr Bo Zhou, and others. It made serious allegations about Mr Pan's conduct. It will serve no purpose to repeat here those allegations. The letter purported to be from "Enthusiastic people in the Chinese community". 4. The second letter (of the same date) named Dr Bo Zhou, Dr Leng Tan and Dr Tony Goh as addressees. It also made serious allegations about Mr Pan and purported to come from "Relevant people in the Chinese community". 5. The third letter (9 August 2017) named as addressees, again, officials of the Chinese Embassy and Consulate, community leaders, Dr Tony Goh and Dr Leng Tan, and "supervisors of every department of CASS and staff". It purported to be from "People in the community who care about CASS". 6. It is not necessary to make specific reference to the remaining letters, other than the eighth and eleventh. The eighth letter ("Letter 8") named "Dear Comrade in Charge at Chongqing Silian Youshi Scientific Ageing Industry Co" as the proposed recipient. Letter 8 purported to have come from "Representatives of family members from the CASS RACF" (an abbreviation for "Residential Aged Care Facility") and "Representatives of various walks of life in the Chinese community". The eleventh letter ("Letter 11") was addressed to "Respected Chairman Luo Mingliang" (who, as noted above, was Silian's Chairman in China). Letter 11 purported to have come from "Patriotic Overseas Chinese in the Chinese Community". Letter 8 made serious allegations against Mr Pan and CASS, and about the conduct of CASS's aged care facility. Letter 11 made serious allegations against each of the plaintiffs. 7. The appellant filed a defence to each Statement of Claim. She denied publishing any of the letters. She did not admit (but did not expressly challenge) the accuracy of the translations and did not admit (but did not deny) that the letters conveyed imputations that defamed the plaintiffs. She did not raise any of the defences for which the Defamation Act provides. Although it was not necessary to do so, the appellant verified each defence, thereby swearing to its truth, including the truth of her denial of publication. The proceedings at first instance 1. In the light of the pleaded defences, the issues at trial with respect to the appellant's liability for the publications were narrow: principally, whether the plaintiffs had established that the appellant had published all or any of the letters. A subsidiary issue, given the non-admission by the appellant, was whether all or any of the imputations pleaded by the plaintiffs were or was conveyed. The evidence and the argument centred on the question of publication. In respect of most of the letters the plaintiffs had no direct evidence that the appellant was the author or the publisher. In her verified defences, in sworn answers to interrogatories, in a statement dated 14 October 2019 – that is, two days before the trial commenced – and again in her oral evidence the appellant denied being the publisher of any of the letters. The plaintiffs sought to prove publication by the appellant by circumstantial evidence. Circumstances on which some reliance was placed were the history of the appellant's employment at CASS, the circumstances of her resignation, and the warning letters sent to her in August 2016 by Mr Pan. These circumstances, the plaintiffs asserted, established a motive for the appellant to seek to harm each of the plaintiffs. 2. An important aspect of the plaintiffs' case was that analysis of the content and writing style of the letters provided the basis for a strong inference that all had been composed by the same person. If that inference were drawn, then, provided they could establish that one or more of the letters was published by the appellant, an inference was available that all had been written and published by her. No issue was raised at trial concerning the common authorship of the letters; the trial proceeded, essentially, on the common understanding that all letters had been composed by the same author. (There is, of course, an important distinction between authorship or composition and publication. If authority is required for that proposition, it may be found in Lee v Wilson (1934) 51 CLR 276; [1934] HCA 60). Nor, despite the non-admission in the defences, was any issue taken concerning the accuracy of the translations. It may be observed that all letters were translated by the same accredited interpreter. 3. The plaintiffs focused on two of the letters to establish the appellant's authorship and publication. These were Letter 8 (dated 9 October 2017) and Letter 11 (17 November 2017). 4. It is convenient at this point to take some time to explain the manner in which the plaintiffs sought to link the appellant with Letters 8 and 11. The following is drawn from undisputed evidence. Letter 8 1. One copy of Letter 8 was contained in an Express International Post envelope posted at the Hornsby Post Office on 9 October 2017. The back of the envelope contained provision for details of the sender and addressee. That was completed by the insertion of the name of Dr Tan as sender, together with an address and a telephone number. A signature purporting to be that of Dr Tan was inserted in the space provided for that purpose. Dr Tan is a general practitioner who conducted a medical practice at Chatswood. The address and telephone number inserted on the envelope were hers. On 9 October 2017 Dr Tan was telephoned by staff from the Hornsby Post Office who told her that the information contained on the envelope was insufficient for postage to China. Dr Tan had not posted any mail to China. The post office employee sent her the envelope, which she opened. The envelope contained a copy of Letter 8. Dr Tan had already received a large number of anonymous letters written in Chinese, making "derogatory allegations" about Mr Pan and the manner in which CASS's aged care facility was conducted. She passed these letters on to Mr Pan as she received them. On receipt of the copy of Letter 8 in the envelope, Dr Tan contacted Mr Pan and read the letter to him. Obviously, that copy of Letter 8 did not reach its proposed destination, although it was, clearly, published to Dr Tan. 2. A second copy of Letter 8 was received in China by Mr Mingliang Luo, who drew it to the attention of Mr Xiaoru Liu (Silian's representative in Sydney) to whom he sent a scanned copy of the letter and the envelope in which it had been received. Mr Liu informed Mr Pan of the letter. With the help of his secretary (Kitty Leong) Mr Pan compared the two letters and found that they were identical. Thus, the evidence established that Letter 8 had been published to Mr Mingliang Luo. 3. CCTV footage from the post office showed that it was the appellant who had posted both envelopes. In her statement the appellant admitted that she had sent two letters to the Silian Nursing Home in China on 9 October 2017, and another on 17 November. She said, however, that they were not Letter 8, and that Letter 8 had not been posted by her. The appellant annexed to her statement a letter that she said had been sent to two different addresses in China in Express Post envelopes. The letter she annexed was addressed to "the senior managers of Sly Yours Nursing Home" and questioned the qualifications of a nurse she said was reportedly to be sent from Australia to Silian. The appellant said that the letters were written out of concern that an inadequately qualified nurse was going as a specialist to Silian. That letter, like Letter 8, was unsigned. The appellant also annexed to her statement copies of the envelopes in which she said she had sent the letters. One of those envelopes was shown to be the envelope in which Letter 8 had been intercepted by Dr Tan; the other was the envelope in which a copy of the same letter had been received by Mr Mingliang Luo. 4. The appellant admitted that she filled in the details on the Express Post envelopes, and inserted Dr Tan's address and telephone number. She said that she did this because she believed that a letter from Dr Tan, who was known to senior management at Silian, would command more respect there than would a letter from herself, who was unknown to Silian. Letter 11 1. Letter 11 was posted on 17 November 2017 at the Hornsby Post Office in an envelope addressed to Mr Mingliang Luo at Silian in an Australian Express International Post envelope which the appellant admitted, in her statement, she had posted. Again, however, the appellant said that the envelope she posted did not contain Letter 11, but another copy of the letter she claimed had been in the envelope that had been delivered to Dr Tan. The evidence that the envelope contained Letter 11 and not the letter the appellant claimed to have sent was as follows. 2. In early January 2018 Ms Ka Po Maria Cheng, who was the Chief Operations Manager of CASS, received from Mingliang Luo via the WeChat messaging facility, a photograph of a letter and envelope that he told her he had received. Ms Cheng arranged for Mr Luo to deliver the documents to Dr Zhou, who was then in China. On his return to Sydney, Dr Zhou handed both the envelope and the letter to Mr Pan, who passed them to his secretary, Ms Leong. The envelope was the envelope which the appellant admitted posting, but which she said contained a different letter. The letter was the letter annexed to the Statement of Claim as Letter 11. 3. Put shortly, the plaintiffs' case was that: (1) the sequence of letters and the similarity of content and style gave rise to a clear inference that all had been written and published by the same person (this was not disputed at trial); (2) the evidence established conclusively that the appellant had published (by posting) Letters 8 and 11 (the appellant denied this); (3) the appellant had a motive (and was the only person shown on the evidence to have had a motive) to harm Mr Pan/CASS and Dr Zhou (the appellant does not appear to have challenged this); (4) the inference ought to be drawn that the appellant had published all letters (the appellant resisted this inference). 1. The appellant's case was that: (1) she had posted each of the three envelopes which were subsequently found to contain Letter 8 (2 copies) and Letter 11; (2) in doing so, she completed the back of each envelope with the name and contact details of Dr Tan, giving the false impression that Dr Tan was the sender; (3) each of the envelopes she posted contained an anonymous letter that was not either Letter 8 or Letter 11; (4) the evidence did not establish that she was the publisher of any of the letters. Submissions at trial 1. On behalf of the plaintiffs, written submissions that outlined their cases directed attention to the evidence on which they relied, and argued in favour of the findings of fact for which they contended were provided. No such assistance was given to the primary judge on behalf of the appellant. It is not easy to glean from the transcript how the appellant put her case. Final submissions on her behalf began with the primary proposition that the plaintiffs had failed to establish the appellant's responsibility for publication of "almost any" of the letters. A qualification was that there was some evidence of publication to Dr Zhou of three of the letters the subject of the Pan/CASS Statement of Claim. 2. A lengthy submission was then made concerning whether any publication had been proved to have taken place within one year prior to the commencement of the proceedings, an apparent reference to s 14B of the Limitation Act. So far as I can see, that issue was not pursued to any conclusion and is not raised on appeal. 3. An express and important concession was made that no challenge was made to "the imputations". In the absence of any contention to the contrary, I take that to mean that there was no dispute either that the imputations pleaded were conveyed, or that they were defamatory. As will be seen, that disposes of one of the arguments raised on appeal (although not reflected in the grounds pleaded). 4. I have been unable to discern, from the transcript, any attempt by counsel for the appellant to address the foundational building block of the plaintiffs' cases – that the appellant had published, by posting, Letters 8 and 11 – from which they proposed the inference that she had also published the remaining letters. The primary judgment 1. As is apparent from what I have already said, the only real issue for determination was a factual one: was the appellant the publisher of any or all of the letters? The dispositive findings of the primary judge may be stated with economy. 2. Unsurprisingly, in view of the position adopted on behalf of the appellant, the primary judge made a global finding (at [70]) that each of the imputations pleaded in each case was conveyed and (at [72]) that each was defamatory of the relevant plaintiff. 3. His Honour made seriously and trenchantly adverse findings with respect to the appellant's credibility. He gave a number of reasons for those findings. One was that the appellant insisted on the use of an interpreter even though it was apparent that she had an excellent command of the English language. His Honour rejected the appellant's explanation that, having spent some time in China, her English had become "degraded". He observed that she had studied and obtained qualifications in English, and disclosed during the course of her examination in chief that she was fluent in English. He referred to instances in her evidence when she had, notwithstanding the presence of the interpreter, answered in English. He noted an occasion when the appellant had distinguished, in English, between the words "incompetent" and "inappropriate". He concluded (at [129]) that her use of the interpreter was intended to give her more time in which to formulate her answers to questions in cross-examination. 4. His Honour summarised briefly the evidence of the publication of Letter 8, which, he later stated (at [152]), he was satisfied had been published by the appellant. 5. His Honour referred (at [120]-[124]) to the appellant's account of the letters she claimed to have posted on 9 October and 17 November, noting that those letters had not initially been produced but that some time later the appellant produced a photocopy of the letters she said she had posted. He said that she then produced what purported to be original letters but failed to produce any electronic files as requested. She did, however, produce hard copy files she claimed contained photocopies of the letters she said she sent to China. His Honour observed that the documents produced were "fresh" (not aged) in contrast to other documents in the files which showed signs of age. He considered that the documents produced were forgeries, being a last minute creation by the appellant of letters that did not previously exist and that had never been sent to China. 6. His Honour found (at [132]) that the appellant's account of the letters posted on 9 October 2017 was "fanciful", and that the appellant was "mendacious and dissembling … for the purposes of avoiding responsibility for her own conduct". He concluded that: "134 The whole tenor of the evidence of the defendant was that the evidence was given on the basis of that which the defendant considered best assisted her case and bore no connection with the truth nor any obligation to tell it. The Court does not believe any testimony of the defendant on any issue unless its effect was contrary to her interests." 1. The primary judge observed (at [97]), by reference to the history of the appellant's employment by CASS, that the appellant held and continued to hold significant anger and resentment towards the plaintiffs. He concluded (with "no hesitation") that the appellant was the only person the subject of evidence in the proceedings who had a motive to write the letters. He expressly acknowledged (at [98]) that that conclusion alone did not prove that the appellant published the letters. 2. The primary judge considered (at [152]) that it was clear that all the letters were "published" by a single individual and that there was no doubt that Letters 8 and 11 had been published by the appellant. He therefore drew the inference that the appellant was the publisher of all of the letters. 3. His Honour then proceeded to deal with the evidence of the reputations of the plaintiffs and the damage done to them by the publications. I will return to this. The appeals The pleaded grounds of appeal 1. Fifteen grounds of appeal were pleaded by the appellant in respect of the Pan/CASS proceeding; thirteen in respect of the Zhou proceeding. The two additional grounds in the Pan/CASS appeal merely reflect that there were two plaintiffs; the grounds in each case were otherwise identical. 2. Ground 1 in each appeal challenged the factual finding made by the primary judge that the appellant was the publisher of each of the letters; grounds 2, 3, 5, 6 and 7 attacked the reasoning towards that factual finding. Ground 3 asserted error in the adverse credibility finding against the appellant. Ground 4 in each appeal (which complained of an evidentiary ruling) was abandoned. Grounds 8, 10, 11, 12 and 13 in the Pan/CASS appeal attacked the awards of damages to Mr Pan and CASS (including, specifically, the award of aggravated damages); grounds 8, 10 and 11 in the Zhou appeal made parallel complaints about the award of damages to Dr Zhou. Ground 9 in each appeal challenged the order for a permanent injunction. Ground 14 in the Pan/CASS appeal and ground 12 in the Zhou appeal asserted error in the award of indemnity costs. Grounds 15 and 13 respectively asserted error in the failure of the primary judge to give any or any sufficient reasons for the challenged findings. 3. As, notwithstanding the number of grounds of appeal, the issues reduce to very few, the most convenient course is to outline the competing arguments of the parties, and state my conclusions. I will deal first with the issues concerning the liability of the appellant for the publications, and then move to questions of damages and consequential orders. Liability 1. At the outset of the written submissions for the appellant three propositions in respect of the liability findings were asserted: 1. that the "inordinate delay" in giving judgment, coupled with what was asserted to be the inadequacy of reasons (grounds 15 and 13 in the Pan/CASS and Zhou appeals respectively), calls for the judgment to be set aside; 2. that the "evidential case on the publications (as pleaded)" was so weak that judgment should be entered for the appellant on each publication; and 3. that even if the plaintiffs could establish that the appellant published any individual letter (such as to warrant a new trial) that case should be permanently stayed on grounds of proportionality. 1. Although no pleaded ground of appeal raised delay in the delivery of judgment as an issue, a pervading theme in both the written and oral submissions made on behalf of the appellant concerned the lapse of time between the final day of hearing and the date on which judgment was delivered (a period of 15 months). Delay 1. Given the emphasis placed by the appellant on the delay in the delivery of judgment, it is appropriate to identify with some precision both the appellant's contention on that question and the relevant legal principles. The appellant's submission in this respect was: "2.4 The cases demonstrate that in a case of inordinate delay, the principles of appellate review operate somewhat differently from the normal appeal and in a manner which assists an appellant in challenging such a judgment. Such delay may mean that a miscarriage of justice has been occasioned because of the unfairness created by inadequate reasoning, findings and consideration of the issues. Further, the appellate court will not accord to the trial judge the usual advantage on credit based findings, will scrutinise the judge's findings very closely and will look to see clear substantiation in the judgment of a basis for such credit findings, preferably by reference to observations or notes contemporaneous with the hearing. Moreover, the appellate court will scrutinise very closely the judge's reasons (without making favourable assumptions) to ensure that statements of a general assertive character are well grounded in the evidence and that all arguments and evidence relevant to a particular finding have been assessed." 1. Without pausing to examine the accuracy of this as a summation of the relevant principles, I turn to the decided cases. The consequences of delay in delivery of judgment have been the subject of consideration in a number of decisions in this Court (for example, Monie v The Commonwealth (2005) 63 NSWLR 729; [2005] NSWCA 25), the Court of Criminal Appeal (R v Maxwell (1998) 217 ALR 452), and the Full Court of the Federal Court of Australia (Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; [2004] FCAFC 189). In Monie Hunt AJA extracted from previous cases nine propositions with respect to the approach taken by appellate courts where delay in giving judgment is asserted to have affected the result. Those propositions presently applicable may be summarised as follows: 1. while it is well established that appellate courts will accord significant deference to findings of fact made by a trial judge due to the advantage of having seen and heard the witnesses give evidence and having observed the witnesses' demeanour, that advantage weakens over time. Thus, in cases of significant delay, an appellate court will expect that specific reasons be given for accepting or rejecting the evidence of those witnesses whose evidence plays an important part in the factual findings; 2. where such specific satisfactory reasons are not given, the appellate court will give careful scrutiny and consideration to the factual findings; 3. a significant delay in giving judgment may itself be the cause of pressure on the trial judge, which itself has an "insidious effect on the judge", possibly resulting in inadequate attention to difficult issues that have to be decided. 1. Hunt AJA hastened to add that delay in itself does not justify upholding an appeal; error must still be established sufficient to warrant a reversal of the judgment or the grant of a new trial. The significance of delay is that it may assist an appellant to establish error because a failure by a trial judge in a significantly delayed judgment to deal with particular matters on which the appellant relied may more readily give rise to the inference that the trial judge simply overlooked those matters. 2. In formulating his nine propositions Hunt AJA drew significantly on the decision of the Full Court of the Federal Court in Expectation Pty Ltd. Also referring to Expectation Pty Ltd, Giles JA took a somewhat more nuanced approach, questioning whether delay is "more correctly explanatory of deficiency otherwise found in the decision-making or expression of the decision". Citing his own earlier judgment in Krivoshev v Royal Society for the Prevention of Cruelty to Animals Inc [2005] NSWCA 76, his Honour said: "123 … But delay, however undesirable, does not itself mean that on appeal a different result is substituted or a new trial ordered – there would be no sense in causing further delay by a new trial. What must be considered is the effect of the passage of time on the quality of the decision-making, including the perception of an effect. The label of delay adds little. 124 … On one view, delay is a possible explanation for deficiency in decision-making or expression of the decision, the deficiency being otherwise found, and what matters is the quality of the decision-making assessed by regard to the issues, the evidence and the judge's reasons." 1. It was clearly the case in Monie that deficiencies in the judgment were exposed and that the reasons given by the trial judge were inadequate. Hunt AJA commented that the judgment gave "every indication that it had been written in haste and under pressure". His Honour's judgment details a sorry history of unfulfilled promises to deliver judgment. Giles JA agreed with Hunt AJA that the critical findings of the trial judge could not be supported and that adequate reasons had not been provided. Bryson JA agreed with Hunt AJA. He did not comment on the subtle difference in the reasoning of Hunt AJA and that of Giles JA. The result shows that, while delay in judgment delivery may have been the explanation for deficiencies in the judgment, it was the deficiencies and not the delay that required that the judgment be set aside and a new trial ordered. 2. Expectation Pty Ltd was another case in which deficiencies, other than delay itself, were exposed, the trial judge having failed to deal with certain significant issues. 3. In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77, Gleeson CJ said: "5 Undue delay in decision making, whether by courts or administrative bodies, is always to be deplored. However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay. The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare. … A court of appeal, reviewing a decision of a primary judge, may conclude that delay in giving judgment has contributed to error, or made a decision unsafe. Again, the ground of appellate intervention is the error, or the infirmity of the decision, not the delay itself [citing Monie]". 1. It is thus clear that error is not established by delay in the delivery of judgment alone; delay may explain error otherwise established, and may cause the appellate court carefully to scrutinise the findings of fact and the reasons given for those findings. The task of an appellant is to identify error or "infirmity" in the findings of fact, the statement and application of the relevant law, and/or the reasoning process. 2. A second theme running through the appellant's submissions was what was asserted to be inadequacy of reasons. I do not accept that criticism. The reasons adequately explain the basis of the conclusions. Adequacy of reasons needs to be assessed in the light of the contested issues at trial, of which there was here only one. 3. Even if the reasons were inadequate, the appeal is a rehearing, and s 75A(6) of the Supreme Court Act permits this Court to make relevant findings to draw appropriate inferences. This is an appropriate case for the exercise of that power, if inadequacy of reasons were otherwise established. Reasons 1. The primary judge rejected the appellant's evidence that she had not published the letters, finding that she could not be believed. He gave detailed reasons, set out above, for that conclusion. They are not, to any significant extent, based on the appellant's demeanour, or on his Honour's observation of the appellant in the witness box (other than her use of the interpreter), but on a rational assessment of objective evidence. The appellant complains (in ground 3 of each appeal) of the conclusion with respect to her credibility, yet no submission (other than that the findings may have been affected by inadequate consideration of the evidence and issues attributable to the time taken to deliver judgment) was directed to those grounds. To the extent that the primary judge's reliance on the appellant's use of an interpreter involved assessment of her demeanour in the witness box, the reasons indicate, with some force, that that circumstance made a significant impact on the primary judge, and his impression is unlikely to have diminished over the time it took to prepare the judgment. No submissions were advanced to the effect that the primary judge's observations about the appellant's use of the interpreter, her facility in the English language, or her reasons for the use of the interpreter, were not justified. That is confirmed by reference to the transcript of the final submissions in which his Honour stated his (contemporaneous) opinion that the appellant had "prevaricated". There is no basis for a conclusion that the adverse credibility finding is undermined by the delay in delivery of judgment. 2. In any event, the adverse finding of credibility was not the, or even an, operative reason for the essential conclusion that the appellant was the publisher of the letters. The primary judge expressly acknowledged that his rejection of the appellant's evidence denying publication did not prove the contrary. That conclusion was based on evidence that was incontrovertible – the evidence outlined above at [28]-[33]. The alternative factual scenario posited by the appellant – that the letters she placed in the envelopes were not Letters 8 or 11 – was demonstrably false. The salient finding of fact – publication of Letters 8 and 11 1. The conclusion that the appellant was the publisher of all letters was founded on a process of reasoning that depended on those incontrovertible facts. The process of reasoning was that all letters were authored by the same person; that it was established that the appellant was the publisher of Letters 8 and 11; and that therefore the appellant was the publisher of all letters. There is a powerful inference that the publisher of the letters was also their author but, in reality, authorship is not the question. There was nothing in the evidence to suggest that someone other than the appellant had taken the step of posting (and thereby publishing) the letters other than Letters 8 and 11. Once it was established that the appellant had published those letters, the conclusion that she had published the remaining letters was inevitable. The appellant's position, that she had posted the envelopes in which Letters 8 and 11 were received, but that the envelopes contained a different letter was, as the primary judge said, "fanciful". Inherent in the appellant's contention is that, somewhere and sometime between posting and receipt, a substitution of Letters 8 and 11 for her more innocuous letters had been effected, by a person or persons unknown. 2. Added to that are the uncontested findings that the appellant had a motive to harm each of the plaintiffs, and that she was in possession of information of the kind contained in some of the letters. A criticism was made, in ground 2, of what was said to be the finding that the appellant was the only person who had the motive to publish the letters. That is to misstate the finding, which was that the appellant was the only person the subject of evidence in the proceedings, who had such a motive. That was correct. Other submissions of the appellant 1. The remaining submissions advanced on behalf of the appellant may be disposed of briefly. A submission was made that the evidence did not support any finding that Mr Mingliang Luo had in fact received Letter 11. That is simply incorrect. As set out above, Mr Mingliang Luo sent, by WeChat, a photograph of the letter he had received in an envelope the appellant admittedly posted; that letter was Letter 11. A complaint was made that the evidence by which the plaintiffs sought to prove publication of Letter 11 by the appellant was hearsay. That may be correct, but no objection was taken to the evidence and it was admitted for all purposes. It was submitted that Mr Pan's evidence that Letter 11 had been read to him and caused him distress was admitted on the question of the hurt he experienced (which is relevant to damages) and was not admissible to prove publication. Reference was made to a passage in the Australian version of Cross on Evidence to the effect that: "If evidence, admitted without objection, is legally admissible in proof of some issue in the case, its evidentiary use should be confined to that purpose." 1. The Evidence Act 1995 (NSW) makes specific provision, in s 136, for the limitation on the use of evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party or misleading or confusing. No request was made to limit the use of Mr Pan's evidence. In any event, I do not understand the evidence of Mr Pan was admitted or used in proof of publication to Mr Mingliang Luo. That publication was adequately proved otherwise than by Mr Pan's evidence that the letter had been read to him and had caused him distress. 2. Criticism was made that, without explanation, Mr Mingliang Luo had not been called. Reliance was therefore placed on the principles stated in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. In light of the admission of the evidence of Maria Cheng without objection that criticism is also misplaced. Ms Cheng's evidence having been admitted, there was no call to clutter the proceedings by proof, by another means, of a fact of which unchallenged evidence had already been admitted. It must be remembered that the evidence showed that Mr Mingliang Luo was in China. Whilst video link evidence is available to be used, there is no reason to add to the costs and complexity of litigation by additional proof of a fact already the subject of unchallenged evidence. 3. It was submitted that sources for Letter 11 other than the appellant had not been eliminated. The short answer to that submission is that the appellant admitted that she posted the envelope in which Letter 11 was received in China. The evidence permits the inference to be drawn, comfortably and even irresistibly, that that envelope contained Letter 11 when it was posted. It was submitted that the evidence "does not connect up with" the office of the place where Letter 11 was received; nor was there evidence of "any system for dissemination of mail" at Silian. It was not explained why the place at which Mr Mingliang Luo received the letter had any bearing on the question of whether, in fact, he did receive the letter; it is sufficient that he did. The facts that the envelope was addressed to Mr Mingliang Luo at Silian, and that Mr Mingliang Luo sent a photograph of the letter to Ms Maria Cheng, amply proved his receipt of the letter. 4. Finally, it was submitted that the "provenance" of Letter 8 had not been proved. The import of that submission is not apparent to me. 5. The evidence convincingly supported the conclusion that the appellant was responsible for posting Letters 8 and 11 and that each reached its destination at Silian. None of the criticisms raised in relation to the reasoning process affects the validity of the primary judge's conclusion in that respect. Publication of letters other than Letters 8 and 11 1. It was urged on the Court that it was necessary that: (i) the plaintiffs prove receipt of each of the remaining letters by each of the named (proposed) recipients, and, further (ii) that there was no evidence that any of the letters other than Letters 8 and 11 had been received by anybody. 2. Each proposition is wrong. It was not necessary that the plaintiffs prove receipt by any of the addressees (let alone all of them). It was sufficient to prove that each letter had been received and read by one person. Dr Tan gave evidence that she had received and read eight of the letters (besides Letter 8) – Letters 1, 2, 3, 5, 7, 9, 10 and 20. In his affidavit Mr Pan attested to the circumstances in which he had become aware of each of the letters of which he complained – he nominated, in each case, the person who had given him the letter. Plainly, that person had received and read the letters. It is not necessary to extend these reasons by repeating the detail of that evidence. 3. There was also evidence – hearsay, but hearsay to which no objection was taken – that officials and staff of the Consulate-General of the PRC had received letters critical of Mr Pan and CASS. It is not proved conclusively that these were the same letters the subject of the proceedings, but it is a clear inference that some, at least, were. That evidence will be referred to below, in the consideration of the awards of damages. 4. There is no error shown in the conclusion of the primary judge that the appellant was the publisher of each of the letters the subject of the proceedings. 5. It is necessary to note one further submission, which was that error was shown because the primary judge failed to give adequate reasons for his finding that each imputation pleaded was conveyed and was defamatory. As indicated above, not only was no issue taken about the imputations at trial, but an express concession was made that the imputations were not challenged. Nor did any ground of appeal raise any issue about the imputations. That did not deter counsel for the appellant from submitting that one imputation pleaded by Dr Zhou did not arise from the letter in respect of which it was pleaded and, indeed, was not capable of being conveyed. 6. It is necessary to do no more than note that the submission was made, and to reject it for the reasons given at the commencement of the previous paragraph. DAMAGES 1. The purposes of an award of damages for the publication of defamatory imputations are well established. They are: 1. consolation for the personal hurt and distress caused to the plaintiff by the publication; 2. reparation for the harm done to the plaintiff's reputation (personal and, if relevant, business); 3. vindication of the plaintiff's reputation: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31. Relevant statutory provisions 1. By s 34 of the Defamation Act, in determining the amount of damages to be awarded, the court is to ensure that: … there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. 1. Section 35(1) prescribes a cap on the amount of damages that may be awarded for non-economic loss. At the relevant time the maximum that could be awarded for non-economic loss was $421,000. By subs (2) the cap may be exceeded if the Court was satisfied that the circumstances of publication warranted an award of aggravated damages. (Section 35 has, since the publication of the letters, and since the date of judgment, been amended: Defamation Amendment Act 2020 (NSW). The amendment does not affect the current proceedings). 2. By s 39, where multiple defamatory imputations are found to have been published, the Court may assess damages in a single sum. 3. Section 36 provides as follows: 36 State of mind of defendant generally not relevant to awarding damages In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff. The reputations of the plaintiffs 1. Evidence of the reputations of Mr Pan, Dr Zhou and CASS was given by a number of witnesses. (i) Mr Pan 1. Some idea of the reputation of Mr Pan may be gleaned from a brief outline of his achievements. He was born in Singapore in 1951 and graduated, with the University Medal, from the University of New South Wales ("UNSW") in mechanical engineering. He held a teaching fellowship at UNSW from 1978 until 1980 when he started work with the Electricity Commission of NSW, eventually becoming Branch Head. In 1990, due to poor health, he transferred to the System Planning Branch to work on planning for the State's future power supply, and, in 1998, to Pacific Power International, where he worked as Project Manager until that organisation was wound up in 2004. He then worked as Managing Director of Dynamic Manpower Development Ltd, until the assault in 2006 that left him blind. 2. As mentioned above, in 1981 Mr Pan was instrumental in the foundation of CASS, and despite his subsequent blindness, he has worked in an honorary capacity as Chief Executive Officer of that organisation since 2006. 3. Mr Pan has held a number of positions (some voluntary) in community organisations and statutory bodies; for example, as a member of the Management Committee of the Canterbury Multicultural Aged and Disability Support Service from 1997 until 2017; as an Australia Day Ambassador appointed by the Australia Day Council, between 1999 and 2004; as part-time Commissioner to the Community Relations Commission from 2000 until 2006; as a member of the NSW Community Languages Schools Board from 2001 until 2006 (a position he relinquished due to the effects of the assault that caused his blindness); as a Member of the Equal Opportunity Division of the NSW Administrative Decisions Tribunal between 2003 and 2009; and as a member of the State Co-operative Council between 2003 and 2006. In January 1997 he was awarded the Medal of the Order of Australia in recognition of his voluntary contribution to community services through CASS. In 1997 he was awarded the Outstanding Community Services Award by both Canterbury and Rockdale Councils. In 2003 the Federal Government awarded him the Centenary Medal in recognition of his contribution to Australia. In January 2007 he was presented with an award by the Australian Council of Chinese Organisations in recognition of his voluntary service to the community through CASS. In 2007 he was awarded the Quang Tart Life Achievement Chinese Community Service Award, again in recognition of his voluntary service to the community through CASS. In 2018 he was awarded the UNSW Alumni Award for his contribution to social impact and public policy. In 2018 the Legislative Assembly of NSW acknowledged Mr Pan and CASS for community service provided by CASS to the people of NSW. 4. These awards and appointments alone are sufficient to attest to the high esteem in which Mr Pan is held across a wide range of areas of endeavour. 5. Mr Pan's high standing in the community was confirmed by Dr Tan, who is herself a distinguished member of the Chinese community, having received, in 2008, the "Outstanding Women Services Award" from the NSW Minister for Women, and being declared the "2019 NSW Woman of the Year", and who was, as at 2019 (the date she affirmed her affidavit), the Director and Emeritus Chair of CASS. 6. As indicated above, Dr Tan had been the recipient of a number of anonymous letters "highly derogatory" of Mr Pan and CASS. (The evidence does not firmly establish that any of those letters, other than Letter 8, was a letter the subject of either Statement of Claim, although it is a compelling inference that some, at least, were – and she was named as an addressee in many of the letters the subject of the proceedings). 7. Dr Tan has known Mr Pan since the 1970s when both were students at UNSW and both actively participated in student organisations. Dr Tan said of Mr Pan: "24 His work in the Chinese community has been tireless and he has worked without any financial gain to bring services to the community and improve the lives of others. His efforts have been frequently recognised and rewarded and I know that he has received numerous honours for his voluntary work. 25 Before these anonymous letters started arriving, Henry had a good reputation in the Chinese community. He is regarded as being a very hardworking and honest person who works tirelessly for CASS." 1. There was other evidence of Mr Pan's high reputation but it is unnecessary to take further time to recount it. It was not suggested that he was other than a highly regarded, well respected, member of the community, as the outline above establishes. (ii) Dr Zhou 1. Dr Zhou was born in China in 1962 and graduated from Peking University in 1984 with a Bachelor of Science in geology. He was awarded a PhD by the University of Sydney in 1992 and undertook three years of post-doctoral research at UNSW. He was then employed by an investment banking firm. He was elected a Director of CASS in 1997, Vice-Chairman in about 2014, and Chairman in 2016. 2. Of Dr Zhou, Dr Tan said: "26 I have known Bo Zhou over 10 years. …. He is regarded as a successful, intelligent and hard-working senior executive in the mining industry. Prior to these anonymous letters, Dr Zhou had a good reputation amongst persons within CASS and working with CASS." (iii) CASS 1. Of CASS, Dr Tan said: "27 CASS is the largest community services organisation in NSW. It is a not for profit organisation which provides services from cradle to old age. We offer family care and after and before school care and there is Chinese language and arts school at weekends. We also offer a new migrant settlement service and we have services for aged care and disability care. We also have two group homes for the provision of disability care. This is available to both the Chinese community and the largest community of NSW. We build and operate a 63 unit aged care residential facility. 28 CASS relies on the community support to provide its services and has a large number of volunteers. It should be noted that the board of CASS are all volunteers as well. Without the support of the community and the volunteers, we would not be able to run CASS or provide the wide range of services. 29. We organise many talks on health and information and provide speakers from numerous professions to speak to the community on a range on [scil - of] issues. 30. CASS had a very good reputation prior to these anonymous letters being sent out. It was a large caregiving organisation that helps many people." Damage to reputations 1. Mr Pan gave evidence of numerous instances of occasions on which he and CASS had, since the commencement of the dissemination of the letters, been subjected to adverse or hostile treatment. He said, for example, that he had encountered people in the street who abused him for alleged wrongdoing or questioned him about the allegations raised in the letters. He said that CASS holds an annual Charity Dinner, at the most recent of which he spent most of the evening on his own, with very few dignitaries and officials in attendance spending any time with him. The radio station that had previously provided airtime to CASS "now seem[s] to keep their distance from CASS" and, on at least four occasions, had not attended press conferences organised by CASS (in contrast to its previous attendance). An invitation to the Chinese Deputy Consul-General to an annual Volunteers' Thanksgiving Lunch to thank volunteers which had, in previous years, been accepted was initially declined (but subsequently accepted). A new Consul-General appointed in June 2018 did not (as had previous Consuls-General) visit CASS until after repeated invitations. When he did, he told Mr Pan and Dr Zhou that he had received about half a dozen anonymous letters denigrating CASS, Mr Pan and Dr Zhou and that his predecessor had received similar letters. Other officials from the Chinese Consulate also declined invitations to dinners, again in contrast to past patterns of behaviour. 2. Mr Pan also gave evidence of the hurt and distress that he experienced on learning of the letters, and said that he had found it "deeply hurtful and offensive" that the appellant "has repeatedly lied on oath" about her responsibility for the letters. 3. None of this evidence was the subject of cross-examination. The findings of the primary judge 1. Given the absence of any dispute about the reputation of any of the plaintiffs the primary judge dealt appropriately briefly with the evidence. His Honour accepted (at [154]) that the publications damaged the reputation of CASS "as a business entity" and were deliberately designed for that purpose. He considered that the publications were even more damaging to Mr Pan and Dr Zhou (at [155]) and were actuated by malice and a deliberate attempt to harm the plaintiffs (at [163]). His Honour considered that the manner in which the appellant had dishonestly conducted the proceedings by denying the publication, fabricating evidence, and, to some extent, reiterating the defamatory material in the court, aggravated the damage suffered by each plaintiff (at [164]). 2. The primary judge referred briefly (at [165]-[166]) to the reputation evidence. He considered (at [167]) that, because the defamatory material was aimed deliberately at the Chinese community and came from a member of that community and was written in Chinese, it became even more damaging. He said: "169 While the addressees and the persons to whom the publications were sent were not a large number of people, the fact that it was deliberately sent to influential members of the Chinese community, including the Ambassador of the [PRC] and the Consul General and staff, necessarily involves the proposition that the grapevine effect would have been even larger than would ordinarily be the case. It is not conjecture to posit that, within a minority group in Australia, scandalous accusations of this kind will circulate to an even greater level than might be the case within the general Australian community. 170 In relation to CASS, while it has no feelings, or, in the words of Lord Atkin, no soul to be damned or body to be kicked, the allegations were extremely damaging. CASS was shunned by Chinese ambassadorial and consular staff; Chinese community radio stations; and influential people within the Chinese Australian community." 1. While acknowledging that there was no evidence that the publications adversely affected the intended relationship between CASS and Silian (at [181]), his Honour found the damage to CASS's reputation to be "significant" (at [182]). He considered (at [192]) that the defamatory nature of the material had "spread to a large degree amongst the Chinese community". 2. The primary judge determined (at [171]) that each of the plaintiffs was entitled to aggravated damages; he recognised, however, the strictures of s 34 of the Defamation Act, requiring an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. His Honour found (at [183]) that Mr Pan and Dr Zhou had suffered significant damage to their reputations and extremely severe hurt to feelings. 3. The primary judge's reasons for the awards for aggravated damages were stated concisely. He said: "164 Further, the manner in which the defendant has conducted the proceedings, in denying the publication, and in the manner in which she has dishonestly conducted the proceedings, has aggravated the damage suffered by each of the plaintiffs. The defendant has fabricated evidence; lied about material facts; and, at least to some extent, reiterated the defamatory material in Court. In that respect, the defendant has, on the face of the manner in which this proceeding has been conducted, misled her own legal representatives and deliberately sought to mislead the Court." 1. In the previous paragraph, his Honour acknowledged s 36 of the Defamation Act; he said: "163 The state of mind of the defendant is not relevant to the awarding of damages, except to the extent that the state of mind amounts to malice, or some other state of mind that affects the harm sustained by the plaintiff. In these proceedings, the Court take the view that the publication of this material involves malice and a deliberate attempt to harm the plaintiffs." 1. Finally, (at [191]) his Honour said that he had had regard to comparable awards of damages made in defamation proceedings, and repeated that "as conceded by the plaintiffs", the defamation was not published to a large number of people. He did not, in the judgment, detail the comparable awards to which he had regard. He had, however, been referred to some such decisions during the course of argument. 2. The primary judge awarded damages as follows: Mr Pan: $285,000, including aggravated damages, and interest; CASS: $150,000, including aggravated damages, and interest. Dr Zhou: $200,000, including aggravated damages, and interest. The appeals 1. The appellant complains that each award of damages was excessive, and asserts specific error in the conclusion that the plaintiffs were entitled to awards of damages that included aggravated damages. 2. In written submissions the appellant complained that the findings on damages were not supported by any adequate reasoning or by any reference to the evidence, and that such reasoning as was disclosed was affected by errors of fact and law. As I read the written submissions, only one error of law, to which I will come, is asserted. 3. The submissions distinguished, appropriately, between the findings with respect to damages generally, and those specifically concerned with aggravated damages. 4. On a number of occasions in the written submissions, it was contended that, because the publications were anonymous and made only to a few people, a substantial award of damages was not warranted. Each of the premises underlying that submission should be rejected. There is no reason that I can see that justifies the proposition that an anonymous publication is necessarily less harmful than one that is attributed to an author, and no argument was presented in support of that proposition. And it is incorrect to say that the publications were made to "very few people" (although, in [191] the primary judge said that the defamations were not published to a large number of people, and said that this was conceded by the plaintiffs, I have been unable to locate any passage in which the plaintiffs made such a concession, and none was pointed to). Many of the letters, as noted above, were addressed to multiple proposed recipients. Moreover, many were addressed to individuals and organisations who held significant office in the Chinese community. Many were addressed to officials or functionaries of the Chinese Embassy or Consulate. Some (for example, Letters 10 and 15) were addressed to "Respected Various Community Leaders" and "Respected people from all walks of life in the community". There is no reason not to suppose that these letters found their way to at least some of the individuals who met those descriptions. There is no way of knowing how many letters were published, or how many individuals received them. The evidence that the Consul-General told Mr Pan and Dr Zhou that he had received half a dozen letters and that his predecessor had also received letters, although hearsay, supports the inference that some letters, at least, had reached their targets. 5. A submission was made that the primary judge's findings of hurt to feelings were "necessarily based to a substantial extent on a close evaluation of [Mr] Pan and [Dr] Zhou in the witness box" without any indication that the primary judge made any contemporaneous note of his impression of their credibility. Again, the premise on which the submission is based is unsustainable. Mr Pan gave explicit evidence in his affidavit of the hurt to his feelings and his distress. Not a word of cross-examination was directed to any aspect of Mr Pan's evidence concerning the hurt and distress he said he had experienced. No credibility issue was raised. Rejection of Mr Pan's evidence in those circumstances would itself have constituted error of law. I accept that no such evidence was given by Dr Zhou but it is to be observed that he was not cross-examined at all. 6. A submission was made that there was no evidence that any witness thought less of any of the plaintiffs because of the publication of any of the letters; nor was there any "before and after" reputation evidence showing damage to CASS's reputation as a result of the publication of any of the letters. That, also, is factually incorrect. The evidence that Mr Pan and CASS were treated differently than had previously been the case (which was unchallenged) makes it clear that damage was done. 7. Other submissions made included that: 1. in the absence of any economic loss (which was not claimed by any plaintiff) it was very difficult for CASS to be awarded substantial damages because a corporation suffers no hurt to feelings; 2. the primary judge pointed to no basis for finding that publication in the Chinese language caused greater reputational damage than would have been caused had the publication been in English; 3. there was no evidence that what is colloquially called "the grapevine effect" operated (reference was made to observations by Gummow J in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 to the effect that "the grapevine effect" is not a "doctrine of law" but rather depends on the evidence in the case); 4. the avoidance by Chinese ambassadorial staff had not been shown to be attributable to the publications for which the appellant was shown to be responsible. 1. I reject each of these submissions. It is only necessary to read the letters to appreciate their likely impact on their reputations of each of the plaintiffs; the identification of the proposed recipients, and the publication in a Chinese languages makes circulation in the Chinese community likely, if not inevitable ("the grapevine effect"); while there was evidence of letters critical of each of the plaintiffs other than the 24 the subject of the proceedings (excluded from action, no doubt, by reason of the twelve month limitation period) any suggestion that the damage to the plaintiffs' reputations was caused by earlier letters and not the letters the subject for the proceedings is, to put it mildly, implausible. While the likelihood that the earlier letters caused some damage to the reputations of the plaintiffs may be accepted, it is obvious that the 24 letters the subject of the proceedings also caused damage, and, no doubt, exacerbated any damage that had already been done. 2. The specific submissions made of the primary judge's approach to the quantification of damages do not establish any error in the approach taken by him. I would reject grounds 10, 11, 12 and 13 of the Pan/CASS appeal, and grounds 10 and 11 of the Zhou appeal. Aggravated damages 1. As is made clear by s 35 of the Defamation Act (as in force at the time of publication) an award of aggravated damages was permissible if the circumstances of publication so warranted. Circumstances that warrant an award include the manner in which the defence is conducted: Triggell v Pheeney (1951) 82 CLR 497; [1951] HCA 23. 2. It was contended that the primary judge misstated the effect of s 36 of the Defamation Act. A series of criticisms was made of the primary judge's reasons for the awards of aggravated damages. It was complained that his Honour gave no reasons for the finding of malice, which, it was asserted, "has a technical meaning in the law of defamation". That is a somewhat misleading submission. It is true that malice has a specific meaning in the law of defamation, but that is because a finding of malice can defeat a statutory or common law defence (for example, qualified privilege) that may otherwise succeed. Since no such defence was pleaded, it is plain that the primary judge was not using the finding of malice in that way. Rather he was using it in its ordinary and natural meaning. It was hardly necessary that the judge give reasons for the finding of malice; the letters speak for themselves. There was no misstatement of s 36; [163] of the primary judgment was an accurate reflection of the provision. 3. It was then contended that no reasons were given for the finding of deliberate intention to cause harm to the plaintiffs, nor did the plaintiffs give evidence to that effect. The latter proposition is self-evidently misconceived; how could the plaintiffs give evidence of the appellant's intention? In any event, even a cursory reading of any of the letters – let alone all 24 – leaves no room for doubt that the intention was to cause harm, and significant harm, to the reputations of the plaintiffs. 4. A further submission (rendered irrelevant by my conclusions as to the appellant's liability for the publication) was that the appellant's denial of publication could only amount to aggravated damages if the denial were knowingly false, and that the primary judge should have held that publication of any of the letters had not been proved. It is sufficient to say that the evidence established that the appellant's denials were knowingly false (and repeated) and the primary judge so held, correctly. 5. Two complaints about the primary judge's reasoning do have some substance, to which no response was made on behalf of the plaintiffs. They are that the appellant reiterated defamatory material in court, and that she misled her own legal representatives. The plaintiffs pointed to no evidence to support these statements by the primary judge and, in my opinion, the complaints in this respect are justified. The comments are, however, of little importance in the overall decision to award aggravated damages. That decision is justified by the reasons that I do not find to have been erroneous. 6. It was well within the discretion of the primary judge to award aggravated damages. 7. I do not accept that any error has been shown in the process of reasoning by which the primary judge arrived at his quantification of damages. Nor do I consider, having regard to the severity of the accusations against the plaintiffs, the nature of the imputations, the period of time over which the letters were published, and the number and identity of the named recipients, that any of the awards has been shown to be manifestly excessive. No attempt was made, for example by reference to the comparable cases, to establish that any of the awards was out of step with prevailing patterns of damages awards. Injunction 1. By ground 9 of each appeal complaint was made of the grant of a permanent injunction. No submissions were directed to these grounds and they should be rejected. COSTS 1. The final issue concerns the order that costs in each case be assessed on the indemnity basis. No such order had been sought by the plaintiffs and no reasons were given for the order. 2. By s 40(2)(a) of the Defamation Act a court is obliged to order that costs be assessed in favour of a successful plaintiff on an indemnity basis if satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff. As was pointed out on behalf of the appellant, there was no evidence of any settlement offer by any of the parties, and s 40(2)(a) had no application. 3. That did not preclude an order for assessment of costs on an indemnity basis on ordinary principles. However, in the absence of any application for such an order, or any notice to the appellant of a proposed order, such an order would, ordinarily, constitute a denial of procedural fairness. 4. It was acknowledged that in his final orders the primary judge expressly granted liberty to the parties to make submissions on, inter alia, the costs orders. No such submission was made. It was submitted that "this was apparently by oversight" and should be remedied by the Court by setting aside the orders. 5. I do not accept this submission. The grant of liberty was a considered grant and gave the appellant the opportunity to put her case in relation to the costs orders. I would not disturb it. 6. In my opinion, no ground of appeal succeeds. Each appeal should be dismissed with costs. 7. The orders I propose are: Appeal 2021/54620 1. Appeal dismissed. 2. The appellant to pay the respondents' costs. Appeal 2021/54621 1. Appeal dismissed. 2. The appellant to pay the respondent's costs. ********** 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: 24 February 2022