Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Harbour Radio Pty Ltd v Ahmed [2015] NSWCA 290 Hearing dates: 26 November 2014 Decision date: 24 September 2015 Before: McColl JA, Basten JA and Meagher JA Decision: (1) Allow the appeal in part and set aside the answers given by the jury to questions 3, 4, 5 (other than with respect to (d)) and 6(d). (2) Set aside orders 1-7 made on 17 March 2014. (3) Direct that there be a retrial of the proceedings limited to determining: (a) whether the expressions of opinion, being imputations (a)-(d) found to have been conveyed by the broadcast on 21 May 2008 and to be defamatory of the plaintiff, were based on material which was substantially true; (b) damages with respect to such of imputations (a)-(d) which were not based on material which was substantially true, together with imputations (e)-(g) conveyed by the broadcast on 21 May 2008 and imputation (c) conveyed by the broadcast on 1 October 2009 and defamatory of the plaintiff; and (c) costs of the first trial and the further trial. Catchwords: APPEAL – defamation proceedings – whether jury's findings in relation to defences reasonably open – whether substantial miscarriage of justice – whether appellate court may substitute own findings for those of jury – whether retrial appropriate – Supreme Court Act 1970 (NSW), s 108 – Uniform Civil Procedure Rules 2005 (NSW), r 51.53 DEFAMATION – assessment of damages – harm to reputation and hurt feelings – whether award excessive – assessment not binding during reassessment following retrial DEFAMATION – defences – honest opinion – distinguishing fact from opinion – whether opinion found in imputation or defamatory matter – whether opinions to be based on facts stated in publication – whether imputations were opinions based on material substantially true – concept of substantial truth in relation to assertion and denial – Defamation Act 2005 (NSW), s 31 WORDS AND PHRASES – "expression of opinion" – "based on" – Defamation Act 2005 (NSW), s 31 Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A Defamation Act 2005 (NSW), ss 2, 6, 25, 26, 28, 29, 31, 35 Defamation Act 2013 (UK), s 3 Supreme Court Act 1970 (NSW), ss 75A, 102, 108 Uniform Civil Procedure Rules 2005 (NSW), r 51.53 Cases Cited: Ahmed v Harbour Radio Pty Limited (2009) 180 FCR 313; [2009] FCA 1113 Associated Newspapers Ltd v Burstein [2007] EWCA Civ 600; [2007] 4 All ER 319 Branson v Bower (No 1) [2001] EWCA Civ 791 Brent Walker Group Plc v Time Out Ltd [1991] 2 QB 33 Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1 Givens v David Syme & Co (No 2) [1917] VLR 437 Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44 John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; 77 ALJR 1657 John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291; [2007] HCA 28; Marshall v Smith [2013] WASC 451 New South Wales v IG Index Plc (2007) 17 VR 87; [2007] VSCA 212; Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 Pryke v Advertiser Newspapers Ltd (1983) 37 SASR 175 Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575; [1999] HCA 45 Telnikoff v Matusevitch [1992] 2 AC 343 Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350; [2004] Aust Torts Rep 62-165 Texts Cited: A Mullis et al (eds) Gatley on Libel and Slander (Sweet and Maxwell, 12th ed, 2013) at [12.1] Category: Principal judgment Parties: Harbour Radio Pty Limited (First Appellant) Ray Hadley (Second Appellant) Kim Anne Ahmed (Respondent) Representation: Counsel: KP Smark SC, ATS Dawson, A Rao (Appellants) CA Evatt, R Rasmussen (Respondent) Solicitors: Banki Haddock Fiora (Appellants) Turner Freeman (Respondent) File Number(s): 2013/385943 Publication restriction: Material identifying the victim of the assault who was under 18 years of age at the time of the offences – see Children (Criminal Proceedings) Act 1987 (NSW), s 15A. Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2013] NSWSC 1928 Date of Decision: 19 December 2013 Before: Nicholas AJ File Number(s): 2009/297870 [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] Ms Ahmed ("the plaintiff") and her husband, Mr Ahmed, ran a seafood shop at Carlingford Court. In May 2007 Mr Ahmed was convicted and sentenced for aggravated sexual assault of a young employee, Ms X; his appeal against the conviction was dismissed. Throughout the proceedings the plaintiff stood by her husband. At some time after Mr Ahmed's arrest, the plaintiff applied for an apprehended violence order ("AVO") against the father of the assault victim, Mr Y, alleging that he had been loitering around the shop in a way that made the plaintiff concerned for the safety of her and her children. The Local Court made the AVO in February 2008. These events became a topic of a broadcasts on radio 2GB on 21 May 2008, during which the presenter, Mr Ray Hadley, interviewed Mr Y and made derogatory statements about the plaintiff related to her support of her husband and the AVO application. In September 2008 the plaintiff commenced proceedings against Harbour Radio Pty Ltd (the owner and proprietor of radio 2GB) in the Federal Court of Australia; the Federal Court struck out certain claims, but ordered that the claims in defamation be transferred to the Supreme Court. A second broadcast by Mr Hadley attacking the plaintiff took place on 1 October 2009. At trial the jury found that a number of imputations conveyed by the broadcasts were defamatory of the plaintiff. The jury rejected the defence of honest opinion pleaded by Harbour Radio Pty Ltd and Mr Hadley ("the appellants") under s 31 of the Defamation Act 2005 (NSW). The jury found that the imputations conveyed by the first broadcast were not expressions of opinion and, in relation to the second even though the relevant imputation was Mr Hadley's opinion, it was not based on material which was substantially true. Consequently judgment was entered for the plaintiff and the trial judge awarded the plaintiff damages of $240,000 for the first broadcast and $40,000 for the second. On appeal the appellants contended that the jury's findings were unreasonable. The appellants also challenged the quantum of damages. The Court had to determine whether: (i) the jury's findings that imputations (a)-(g) arising from the first broadcast were not expressions of opinion were unreasonable; (ii) the jury's findings that the expression of opinion contained in imputation (c) arising from the second broadcast was not based on substantially true material was unreasonable; and (iii) the awarded damages were excessive. The Court (McColl, Basten and Meagher JJA) held, allowing the appeal in part: In relation to (i) 1. The appellants' challenge to the jury's rejection of the honest opinion defences in relation to imputations (e)-(g) must fail. Even if imputations (e)-(f) (relating to the plaintiff running the seafood shop) were properly characterised as expressions of opinion, these opinions were based on the statement of fact contained in imputation (g) (that the plaintiff condoned and did not object to her husband's criminal activity), which the jury found to be not substantially true: [55]; [80]. 2 The jury's findings that imputations (b)-(d) (referring to the AVO application as being false, vexatious and frivolous) were not expressions of opinion were unreasonable. These statements were evaluative in nature and it was not reasonably open to the jury to find that they were statements of fact. Rather they were opinions based on what Mr Y said about the grounds upon which the AVO application had been made: [60], [68], [71]. 3. As the jury did not accept that imputations (b)-(d) were expressions of opinion (other than Mr Y's statement in relation to (d)), it failed to consider whether such opinions were based on material which was substantially true. A retrial was required to address that question: [82]. 4. The jury's finding that imputation (a) (that the plaintiff was a low, contemptible person) was a statement of fact was not reasonably open and must be set aside. As it is not clear how the jury would have assessed the basis of that opinion, the issue must be remitted for retrial: [77], [80]. In relation to (ii) 5. The opinion that the plaintiff was a "silly, silly woman" could only refer to the lack of merit or substance to the defamation proceedings instituted by her. The transcript of the second broadcast revealed no material which could provide a sufficient factual background on which such an opinion could have been based. Consequently it was open to the jury to reject the honest opinion defence: [84], [88], [89]. In relation to (iii) 6. Although it is arguable that the damages awarded with respect to both broadcasts were excessive ([92]; [91]), because of the necessary retrial with respect to the honest opinion defence in relation to a number of imputations, there must be a reassessment of damages in any event: [96]; [97]. Judgment 1. THE COURT: In the course of broadcasts on radio 2GB, on 21 May 2008 and on 1 October 2009, the presenter, Mr Ray Hadley, made adverse statements about the respondent, Kim Anne Ahmed. Ms Ahmed sued the owner and proprietor of radio station 2GB, Harbour Radio Pty Ltd (the first appellant), and the presenter (the second appellant) for defamation in the Supreme Court. The action was governed by the Defamation Act 2005 (NSW). (It is convenient to refer to Ms Ahmed as "the plaintiff".) 2. There was a lengthy trial before Nicholas AJ and a jury in November and December 2013. The jury found that a number of imputations were conveyed by the broadcasts and that they were defamatory of the plaintiff. They rejected the appellants' defence of honest opinion to both broadcasts finding, in respect of the first, that the imputations conveyed were not expressions of opinion and, in respect of the second, that the only relevant imputation, although an expression of the second appellant's opinion, was not based on material which was substantially true. 3. The trial judge awarded the plaintiff damages in the amount of $240,000 in respect of the first broadcast and $40,000 in respect of the second broadcast. [1] 4. The appeal (brought pursuant to s 102 of the Supreme Court Act 1970 (NSW)) sought to set aside the jury's verdict and sought a judgment in favour of the appellants, or a new trial. If they failed in their challenge on liability, the appellants invited this Court to reduce the award of damages. 5. The crux of the appellants' case was that all the defamatory imputations were opinions based on material which was substantially true, and thus protected by the defence of "honest opinion". [2] They contended that the findings in the plaintiff's favour were such as no reasonable jury, properly directed, could have reached. [3] They submitted that the trial judge misdirected the jury as to how they should decide whether the statements were expressions of opinion, rather than statements of fact, and as to how they should decide whether those opinions were "based on" material which was substantially true. 6. The factual substratum of the first broadcast had two strands, reflected in the imputations pleaded by the plaintiff. The first strand concerned her role in supporting her husband during the criminal proceedings brought against him with respect to a sexual assault on a part-time female employee. Her support was said to involve "championing his cause" and "condoning his criminal conduct". The second strand concerned her conduct in seeking and obtaining an apprehended violence order (AVO) against the father of the victim of the assault, requiring him to stay away from a shop from which the plaintiff and her husband carried on their retail business. The broadcast suggested that the application was made on a false basis. 7. The second broadcast followed commencement of proceedings by the plaintiff against the appellants relying on various causes of action, including defamation. 8. Before identifying the content of the defamatory broadcasts and the imputations pleaded by the plaintiff, it is convenient to set out some background circumstances, as recounted by the trial judge in his judgment assessing damages. Because the victim of the assault was under 18 years of age at the time of the offences committed by the plaintiff's husband, there is a statutory prohibition on publication of her name. [4] In these reasons, she is referred to as Ms X. Because use of her father's name would reveal her identity, he will be referred to as Mr Y. Statement of the case (a) background 1. The plaintiff married Mr Emran Ahmed in September 1993. In 2005 they opened a business called "Seafood Lovers" in Carlingford Court in premises leased from GPT Property Management Pty Ltd (GPT). [5] 2. On 1 February 2007, Mr Ahmed was arrested and charged with aggravated indecent assault upon Ms X, a 17 year old part-time employee of the business. It was alleged that, at about 6pm on 27 January 2007, he had forced himself upon her in an unsuccessful attempt to have sex with her in the cool room of the shop. [6] The plaintiff was unaware of the allegations until Mr Ahmed's arrest. When she confronted him, her husband denied the allegations; she said she believed his denials. [7] 3. From about the time of her husband's arrest, the plaintiff became concerned at what she perceived to be incidents of harassment at the shop by Mr Y, the father of Ms X. Thereafter during 2007 and 2008, on her solicitor's advice, she and others kept a diary recording such incidents. [8] 4. The charge against Mr Ahmed was heard on 25 July 2007 in the Burwood Local Court. Mr Ahmed continued to deny the allegations. The Magistrate accepted Ms X's account of the events and rejected Mr Ahmed's evidence as fanciful. The offence was found proven and Mr Ahmed was required to return for sentencing in November. [9] The plaintiff said that from about 20 September 2007, Mr Ahmed only attended the shop outside business hours. [10] 5. On 4 November 2007, following conduct of Mr Y outside her shop which she considered to be intimidating, the plaintiff reported the incident to police and sought an AVO, which was declined. [11] Two days later, she applied to the Local Court at Blacktown for an AVO against Mr Y. Her application stated that Mr Y had been loitering around the shop and glaring at her and her children, and that her daughter had expressed concerns for her safety when she saw Mr Y. She sought an order restraining Mr Y from loitering about "Seafood Lovers" at Carlingford Court. [12] 6. On 7 November 2007, Mr Ahmed was sentenced to imprisonment for 12 months, suspended upon him entering a bond to be of good behaviour for 12 months. [13] He appealed against the conviction and sentence. On 8 November 2007, the day after Mr Ahmed was sentenced in the Local Court, GPT informed the plaintiff and her husband that it intended to terminate the lease, by reason of his conviction. On that evening they were locked out of the shop. [14] On 9 November 2007, they commenced proceedings against GPT in the Equity Division of the Supreme Court, seeking to regain possession of the shop. The matter was resolved on an interim basis by GPT returning possession upon Mr Ahmed undertaking to the Court not to go to Carlingford Court. According to the plaintiff, she managed the business and her husband remained away from it thereafter. [15] 7. The plaintiff's application for an AVO against Mr Y was determined by the Local Court on 27 February 2008, in Mr Y's absence. Orders were made restraining him from stalking the plaintiff or any member of her family, or entering or loitering outside "Seafood Lovers". 8. On 20 May 2008 Mr Ahmed's appeal was heard and dismissed by Ellis DCJ in the District Court. [16] 9. The plaintiff attended the hearings in the Local Court and the District Court in support of her husband. At the defamation trial, she gave evidence that she did so because she believed him to be telling the truth. She said that on some days others attended, including her parents and family friends. She said she still believed in his innocence, even though she had accepted the courts' findings and her husband's convictions. [17] 10. On 21 May 2008, the day following the dismissal of Mr Ahmed's appeal, the first broadcast occurred, consisting of an interview between Mr Hadley and Mr Y, and a segment in which Mr Hadley presented a fictional account portraying himself as a registrar of the Local Court refusing the plaintiff's application for an AVO against Mr Y. 11. The plaintiff and her husband sold the business in about September 2008. [18] 12. On 2 September 2008 the plaintiff commenced proceedings against Harbour Radio in the Federal Court of Australia. [19] She alleged that she had been defamed by the broadcaster and Mr Hadley and that he had conducted a vendetta against her husband and her which had destroyed their business. She sued Harbour Radio in tort for damages for various causes of action, including defamation. [20] 13. On 1 October 2009, the Federal Court ordered that certain claims be struck out and the claims in defamation be transferred to the Supreme Court. The proceedings and the outcome were the subject of the second broadcast later the same morning. [21] (b) the first broadcast [22] 1. Mr Hadley introduced the segment by noting that Mr Ahmed had been convicted of the aggravated indecent assault and that his appeal had been dismissed the day before. He referred to Mr Ahmed's supporters, "who attend the court with him and champion his cause despite the fact that he's a deviant", describing them as "vile". He introduced Mr Y (referred to as Glen) as the father of the victim. Mr Ahmed himself is described variously by Mr Hadley as a "low life", "dirty low bastard", "grub" and "grubby old 44-year old". 2. During the interview, Mr Y confirmed that the "wife of the perpetrator" had taken out an AVO against him, which was granted when he was overseas and which prevented him from going to Carlingford Court till February of the next year. When Mr Y was describing his experiences in the District Court during Mr Ahmed's failed appeal, Mr Hadley referred to Mr Ahmed's supporters as his "cheer squad", and commented in relation to them, "you can't put brains in statues". 3. After the interview, Mr Hadley offered a detailed précis of the incident for which Mr Ahmed was convicted. Mr Hadley concluded: "I'll try and find out … if this grub and his family still own the shop, I don't want to turn people away from the shop if he's no longer connected with it. But I'm telling you now, if he's connected with it – … and I don't wish any ill of people that may own it now – but if this bloke has any connection with it and his grub of a wife, they should completely and utterly be sent out of business. Disgraceful." 1. Later in the programme, Mr Hadley presented the second segment in which, he acted the part of a Local Court registrar. Mr Hadley said: "'No, look, I'm sorry, madam, I'm sorry, this is a frivolous AVO, we can't issue this AVO because you see I've got discretion here to refuse to issue the AVO because I'm satisfied your complaint is frivolous, vexatious and without substance because you're the husband – you're the wife, rather, of a convicted sexual offender, who offended against this man's daughter and has been convicted. So we can't have the AVO, that's got to go.' But what happens instead? Well, the Local Court Registrar he issues the AVO. So this poor bugger whose daughter was offended against can't go to his local shopping because the wife of the perpetrator says he looks at her funny. The place has gone absolutely stark raving mad, absolutely stark raving mad." (c) the second broadcast 1. The second broadcast was part of Mr Hadley's morning talk-back radio programme on 1 October 2009. [23] It was repeated at 8:51pm that evening. The plaintiff first learnt of the second broadcast from a friend. She listened to it by podcast. [24] 2. The first part of the broadcast consisted largely of Mr Hadley reciting parts of the Federal Court judgment, including details of the plaintiff's application and recapping elements of the first broadcast. Mr Hadley interposed his own comments throughout the recitation, reaffirming his previous comments about the plaintiff and expressing satisfaction with the Federal Court judgment. Mr Hadley finished by saying: [25] "This woman, Kim Ann Ahmed, married to this horrible beast, tried to sue me for defamation and she may well continue, however, we note with some anticipation his Honour made a judgment. The applicant may respond, the applicant, being Kim Ann Ahmed, is ordered to pay the respondent's costs. Me and this radio station. A victory for common sense. She's married to a lowlife grub who tried to perform a sexual act on a 17-year-old employee and was convicted of indecent assault and then she tried to line me up in the Federal Court for defamation. I'll tell you who's been defamed in this, the little girl involved with your grub of a husband and her family. That's who's been defamed, you silly silly woman. You've got your just desserts. And we'll be making sure we apply for those costs in the next twenty-four hours. If we send you and your husband broke, I'll be absolutely delighted." The trial 1. The trial before the jury took place between 4 November and 2 December 2013. On 2 December 2013, the jury, by answers to specific questions, found that the first broadcast conveyed the following imputations, which were defamatory of the plaintiff: [26] "(a) the plaintiff is a low, contemptible person; (b) the plaintiff has brought a false application for an AVO against [Mr Y]; (c) the plaintiff has brought a vexatious application for an AVO against [Mr Y]; (d) the plaintiff has brought a frivolous application for an AVO against [Mr Y]; (e) the plaintiff should be sent out of business; (f) the plaintiff is unfit to run the business Seafood Lovers because she condones her husband's criminal activity; and (g) the plaintiff condones and does not object to the criminal conduct of her husband." 1. The jury also found that the second broadcast conveyed the following imputations, which were defamatory of the plaintiff: [27] "(a) the plaintiff is a low, contemptible person; (c) the plaintiff is a silly woman; and (d) the plaintiff should be driven out of business because of her association with a convicted sex offender." 1. The appellants had pleaded that the matters complained of in both broadcasts were the honest opinions of its agent (Mr Hadley) and, in relation to the first broadcast, the honest opinions of Mr Y. 2. The jury answered a number of questions in respect of those defences. The questions and answers with respect to the first broadcast will be identified shortly. In relation to the second broadcast, question 10 asked as to imputations (a) and (d), whether the matter conveying those imputations was contained in the Federal Court judgment. The jury answered "yes" as to both. Those answers provided a defence to those imputations, based on publication of a "public document", [28] leaving only imputation (c) for consideration. Nature of appellate jurisdiction 1. To the extent that the grounds of appeal challenged the unreasonableness of the jury's verdicts, the role of this Court on an appeal is limited. The Court's jurisdiction to entertain the application to set aside the jury's verdicts and order a new trial or direct a verdict in the appellants' favour derives from s 102 and s 108 of the Supreme Court Act. [29] Unlike the powers it exercises on a rehearing pursuant to s 75A of the Supreme Court Act, in the case of a jury verdict this Court reviews the evidence only to determine whether the verdict was reasonably open to the jury. 2. Where the jury has answered multiple questions, it may be that an answer to one question, which is not reasonably open, may cast doubt on the jury's answers to other questions. [30] Further, material error in the directions given to the jury may provide a basis for appellate intervention. In the present case, the form of the questions, the directions and the answers given combine to provide a sufficient basis for intervention. 3. In circumstances where the court finds that a particular verdict of a jury is unreasonable, in the sense that no reasonable jury properly directed could have come to the conclusion reached, the court may be able to substitute a verdict for that given by the jury. [31] Where the verdict given by a jury, including the answer to a specific question, must be set aside on the basis that an alternative answer or verdict should have been given, it is appropriate for this Court to take that step. [32] However, that course will not be open in circumstances where, although the answer to a particular question was unreasonable, and there was only one alternative answer available, other factual issues remain undetermined. Thus, as will be explained below, findings of the jury that certain matters were statements of fact rather than opinion cannot result in a finding by this Court as to the availability of the defence of honest opinion unless the jury has also determined that there was proper material on which the opinion could be based. 4. Even where error has been identified and where the court is not able to substitute its own decision, it should not order a retrial unless satisfied that some substantial wrong or miscarriage has been occasioned thereby. [33] Defence of honest opinion 1. The primary submission of the appellants was that the answers given by the jury to questions directed to the defence of honest opinion were unreasonable. That requires attention to the defence provided by s 31 of the Defamation Act, which relevantly states: 31 Defences of honest opinion … (2) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. (3) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. (4) A defence established under this section is defeated if, and only if, the plaintiff proves that: (a) in the case of a defence under subsection (1) – the opinion was not honestly held by the defendant at the time the defamatory matter was published, or (b) in the case of a defence under subsection (2) – the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published, or (c) in the case of a defence under subsection (3) – the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published. (5) For the purposes of this section, an opinion is based on proper material if it is based on material that: (a) is substantially true, or (b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or (c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29. (6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material. 1. The distinction between statements of fact and expressions of opinion has a special function in the law of defamation. Section 31 does not purport to define the distinction, but assumes its existence. Accordingly, it is appropriate to turn to the general law to identify the principle to be applied in determining which category a particular statement falls within. [34] 2. Under the general law, the defence was conventionally identified as one of "fair comment on a matter of public interest". [35] However Gatley identified the phrase "honest comment", as preferable to the conventional terminology. (Despite the adoption of "honest opinion" as the title of the defence in s 3 of the Defamation Act 2013 (UK), Gatley retained the compromise, "honest comment" as the title of its Ch 12.) 3. It is a matter for the jury to determine what is a statement of fact and what is an expression of opinion. In Channel Seven Adelaide Pty Ltd v Manock [36] Gummow, Hayne and Heydon JJ stated: [37] "The question of construction or characterisation turns on whether the ordinary reasonable 'recipient of a communication would understand that a statement of fact was being made, or that an opinion was being offered' – not 'an exceptionally subtle' recipient, or one bringing to the task of 'interpretation a subtlety and perspicacity well beyond that reasonably to be expected of the ordinary reader whom the defendant was obviously aiming at'." 1. The circumstances of the listener will, in practical terms, differ from those of a reader. The reader will ordinarily be better placed to distinguish fact from opinion than a person hearing spoken words. [38] 2. It is sometimes said that the facts upon which the opinion is based must be stated in the publication, or must be notorious. That is for two reasons. First, such a circumstance is likely to allow the reader (or listener) to distinguish more readily between fact and opinion. Secondly, it allows the reader or listener to judge the validity of the opinion. These functions are closely related, as appears from the following passage in the reasons of Gleeson CJ in Manock: [39] "However, to satisfy the requirements for the defence, it is not necessary that the facts upon which the comment is based be stated in the terms of the communication itself. The rationale is also satisfied if, to use the language of the majority in Pervan, the facts are 'sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to judge for themselves how far the opinion expressed in the comment is well founded'. [40] It is more accurate, therefore, to describe as conventional a case where the facts upon which the comment is based are stated in the terms of the communication, or are sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to identify it as comment on those facts and to assess for themselves whether the facts support the comment. If the purported facts upon which the comment is based are not true, the defence does not lie. Hence, Bingham LJ's summation that 'comment may only be defended as fair if it is comment on facts (meaning true facts) stated or sufficiently indicated.' [41] " 1. The question whether the proper material need be identified in the publication at all was noted, but not resolved, by Le Miere J in Marshall v Smith. [42] It was common ground in the present case that an expression of opinion without reference to the facts on which the opinion was based will not fall within the terms of the defence. That is because par (c) in each of subs 31(1), (2) and (3) requires that the opinion is "based on" proper material. That must be "material" that is "substantially true". [43] In Visscher v Maritime Union of Australia (No 6), [44] Beech-Jones J noted that to qualify as "proper material" on which an opinion may be based the material, if not shown to be substantially true, must have been published on an occasion of privilege or have otherwise attracted a defence under s 28 or s 29 of the Defamation Act. That language, he suggested, may indicate that the material on which the relevant opinion is based must be stated or indicated within the publication which included the defamatory matter. 2. The appellants noted that s 31 identified a defence "to the publication of defamatory matter", language which differed from the defences of substantial truth ("justification") in s 25 and contextual truth in s 26, both of which refer to the defamatory imputations, rather than the defamatory matter, as that which must be true. The case law, such as it is since the commencement of the Defamation Act on 1 January 2006, [45] has not treated this distinction as significant. 3. The risk in treating the imputation as the matter which must be identified as an expression of opinion or fact is that the form of the imputation may not accurately reflect the language of the defamatory publication. That is significant, bearing in mind the contextual nature of the inquiry as to whether a statement is opinion. The first broadcast (a) the form of the jury questions 1. Dealing with the imputations derived from the first broadcast (which came in two parts), the central challenge by the appellants was directed to the findings that each was conveyed as a question of fact and not as an expression of opinion by Mr Hadley (and in some cases, by Mr Y as well). 2. The manner in which the questions were identified may not have assisted the jury in their task. Questions 1 and 2, appropriately, asked with respect to each imputation first, whether it was conveyed and, secondly, whether if conveyed it was defamatory of the plaintiff. All seven were found to satisfy those tests. Question 3 then asked whether the defendants had established that such imputations were "substantially true". The jury answered "no" in respect of each imputation. That question would not have arisen in respect of those imputations which were conveyed as an expression of opinion rather than as a statement of a fact. However, that distinction was raised by question 4, which was required to be addressed only after the jury had considered whether the imputations were substantially true. (Question 5 was to similar effect, but was limited to imputations conveyed by the caller, Mr Y.) Question 6 then asked whether, with respect to any of the imputations said to be statements of opinion, they were based on material which was substantially true. The instructions with the questions required that they be dealt with sequentially. Thus, by placing question 3 before question 4, question 4 may have been substantially answered by default as a result of first answering question 3. 3. The sequential approach identified above was confirmed by the trial judge in the course of his directions to the jury. Very early in the summing up, the judge took the jury through the list of questions and stated: [46] "Now after question 2 comes question 3 which is the first of the questions dealing with the defences. That will involve you considering whether or not on the evidence you have been persuaded that any or all of the plaintiff's meanings are true. Depending on your answers to that, then one will move to consider the other lines of defence for which the defendants contend. At this point I will not get ahead of myself and I suggest that you do not either because it will only lead to confusion. It seems to me that you would find it logical and helpful just to approach the questions in the order in which they are presented to you and I would encourage you to stick to that order, proceed one at a time, and you will find that, depending on how you answer the earlier questions, you may not need to answer some or all of the later questions." 1. The problem is immediately apparent: the jury was asked to determine whether each imputation was "substantially true" before being asked whether any imputation involved an expression of opinion rather than a statement of fact. That the confusion thus raised was real and not merely potential, was revealed by the answers that the jury gave. Thus, in answer to question 3, the jury found that none of the imputations was "substantially true", a finding which included imputation (d), namely that the plaintiff had brought a frivolous application for an AVO against Mr Y. In answering question 5, the jury concluded that imputation (d) involved an expression of opinion by Mr Y. In answering question 6, however, which asked whether any imputation involving an opinion was based on material which was substantially true, the jury answered "no". The jury also found, for reasons which are unclear, that imputation (d) did not involve the expression of opinion on the part of Mr Hadley. This inconsistency in approach may have resulted in part from the form of questions 4 and 5, which were directed to whether defamatory imputations (rather than defamatory matter) were either an expression of opinion or statement of fact, and the assumption made by each of the questions that particular defamatory imputations were an expression of opinion or a statement of fact of Mr Hadley and, in some cases, of Mr Y as well. (b) the judge's summing up 1. The summing up covered two days. It was not until late on the first day that the judge returned to address what was required of the jury in answering questions 4, 5 and 6. In conventional terms, the judge sought to distinguish a "straight out allegation of fact" from the expression of "a value judgment". [47] The judge then proceeded to give a direction which appeared to require that with respect to any opinion, the facts on which it was based were to be found within the broadcast. "Now a way of approaching it will be to look for in the publication in each case facts which are identified as facts on which the opinion is based and this is to enable the listeners to judge for themselves whether the opinion is well-founded or not, that is to say, those facts recognisable as such and understood by the listener as such would lead a fair-minded person to hold the opinion as expressed in the statements in these opinions, either to hold the same opinion or to recognise it as an opinion but if so minded to disagree with it. And a practical way of approaching these questions may be simply to ask one by one separately in respect of each of the broadcasts, separately in respect of each statement, something along the lines 'he says that, but what is broadcast or said to be the basis for it, or how did he get that, what does he say is the basis for it?' And it would be necessary, dealing with each of these statements that were published, it will be necessary to deal with each in turn. Each will require, if they are to be found to be expressions of opinion, identification of the facts stated in the broadcast in each case which would be understood by or make an impression upon the listener." 1. In the course of the second day of the summing up, the trial judge revisited aspects of his directions with respect to questions 4 and 5. He stated: [48] "The plaintiff, in putting to you that there are no facts identified which would indicate to a listener that these statements are matters of opinion, is really putting, I think, in effect, that the ordinary reasonable listener is told that she is the wife of Mr Ahmed, but nothing more, that would support a statement that she was of the, or supported an opinion in terms of, for example, (a), (e), (f) and (g). If that is your view, or if that is the conclusion you come to, in that case, there would be no basis for finding that it was an expression of opinion, that the ordinary reasonable listener would take it as an expression of opinion, but would probably conclude that it was nothing more nor less than a bald statement of fact in the context in which it was uttered. Therefore, it is put to you you would answer 'no' in each case." 1. Again, the effect of this passage (summarising the plaintiff's submission without qualification or comment) was to focus on the need for facts to be stated in the broadcast, to which the opinions (if they were such) were to be referable. It is at least possible that this emphasis distracted the jury from the need to identify the defamatory matter (or the imputations) also by reference to subject matter and form. 2. Had the jury focused on the form and subject matter of the imputations, it is unlikely that they would have treated an imputation describing the application for the AVO as "frivolous" as a statement of opinion, but as a statement of fact when the relevant epithet was "false" or "vexatious". Further, given that the case was run on the basis that it was the imputation and not the defamatory matter which constituted the opinion, it is unreasonable to treat an identical imputation as a statement of fact by Mr Hadley (who did not know the facts) and an expression of opinion by Mr Y (who did know the facts). 3. The plaintiff submitted that if parts of the directions were to be identified as erroneous, a redirection should have been sought at trial. That did not happen. There is force in this submission in the sense that the Court will not readily find that there has been a miscarriage of justice in circumstances where the error could reasonably have been corrected whilst the matter was before the jury, but the appellant did not take that course. However, that factor has limited weight in the present case for two reasons. First, it is not entirely clear that the combined effect of the form of the questions, together with the lengthy summing up, could readily have been corrected. Secondly and more importantly, the appellants' challenge was primarily to the unreasonableness of the jury's findings. The Court can more comfortably be satisfied that what appear to be unreasonable findings should be so characterised in circumstances where the path by which the jury may have gone astray is identifiable in the manner set out above. 4. It is necessary to return to the form of the particular imputations in order to consider whether it was reasonably open to the jury to consider that all bar imputation (d) (and that only in the case of Mr Y) involved statements of fact and not expressions of opinion. (c) imputations (e), (f) and (g) 1. With one possible exception, each of the imputations arising from the first broadcast was expressed in terms which suggested an evaluative judgment. Such language is at least capable of constituting the expression of an opinion. The possible exception, imputation (g), stated, "the plaintiff condones and does not object to the criminal conduct of her husband". Given the way that the case was run, there is some support for treating imputations (g), (f) and (e) sequentially (that is in the reverse order to that in which they were pleaded). On that basis imputation (g) is to be treated as a fact which formed the basis of the opinions identified in imputations (f) and (e) respectively. However, on that approach, if imputation (g) were not substantially true, the appellants could not succeed on a defence of honest opinion with respect to imputations (e) and (f). The jury, in answering question 3, found (g) not to be substantially true. 2. The appellants proposed a different understanding of imputation (g). Although purporting to be factual, they submitted that it did not adopt phraseology used by the presenter and must, accordingly, be an opinion implied from other statements. Reference was made to the decision of the English Court of Appeal in Branson v Bower (No 1). [49] However, that case involved no more than a finding that the trial judge had properly identified the words complained of as "expressing a series of opinions about the motives of the appellant in a way which would leave the reader in no doubt that they were inferences drawn by the respondent from the facts set out in the article." [50] 3. Reliance was also placed on a second decision of the Court of Appeal, Associated Newspapers Ltd v Burstein, [51] a case involving a failure by the trial judge to strike out a defamation proceeding at the instance of the publisher. The publication was a review of an opera, the review conveying that the composer applauded the action of suicide bombers and raised them to a level of heroism. Keene LJ (with whom Dyson and Waller LJJ agreed) considered whether that amounted to a comment or a statement of fact. The trial judge had ruled that the words were capable of being understood as a statement of fact. Keene LJ concluded that, although such a statement might be treated as a statement of fact in some contexts, it was "patently intended as a summary of and a commentary on the factual description of the opera set out in the preceding part of the review." [52] He equated the situation to that described by Lord Ackner in Telnikoff v Matusevitch, [53] stating: "To say that 'A is a disgrace to human nature' is an allegation of fact, but if the words were 'A murdered his father and is therefore a disgrace to human nature', the latter words are plainly a comment on the former." 1. Depending on context, to comment upon and to summarise may involve different activities, the former being an expression of opinion, the latter not necessarily so. The difficulty in the present case is that the suggestion that the plaintiff condoned and did not object to the conduct of her husband was more in the nature of an ascription of motive than an expression of opinion or a summary of her conduct. The closest language in the first interview was the reference to the husband's attendance at court and to "his vile supporters … who attend the court with him and champion his cause despite the fact that he's a deviant". There is a level of ambiguity in that language. It was not just an allegation that the plaintiff (and others) attended court to support her accused husband; rather, she was said to "champion his cause". This may have meant that she supported him in his assertion of innocence, when the offence had been found proven beyond reasonable doubt, or it may have meant she provided a degree of approval for his conduct, including the sexual assault of a young female working in his shop. 2. The difficulty for the appellants in this circumstance is that if the matter involved a statement of fact, it could not have been supported as substantially true and the jury rejected that proposition. If it were to be treated as an opinion, then there did not appear to be any factual basis in the statements made by Mr Hadley (or Mr Y). The level of ambiguity means that, so long as the jury was not misdirected, it was open to them to treat the statement as one of fact. Further, there was no substantial miscarriage, warranting intervention, in the event that it should properly have been treated as a matter of opinion. (d) imputations (b), (c) and (d) 1. The analysis with respect to the first four imputations is less clear. It is convenient to leave aside imputation (a) and deal with imputations (b), (c) and (d), each of which appears to involve a judgment as to the nature of the application made by the plaintiff for an AVO against Mr Y, the father of the young woman who was assaulted by her husband. To describe such an application as "false" (as in imputation (b)), is to express an opinion about the grounds upon which the application was brought. If those grounds were revealed in the publication (they were not otherwise notorious), application of the relevant principle should have led the jury, acting reasonably, to conclude that this was an expression of opinion. 2. The grounds of the application were identified, at least in substance, in the course of the broadcast. There were basically two, namely that the conduct of Mr Y involved stalking the plaintiff and that she (and her daughter) felt intimidated by his conduct. The other relevant material was Mr Y's rejection of the allegations made by the grounds. 3. On the basis that imputation (b) involved an expression of opinion concerning facts revealed in the course of the broadcast, the position was as follows. First, the finding of the jury (in answer to question 3) that the imputation was not proved to be substantially true is beside the point. Section 31(2)(c), read with s 31(5), requires that the material on which the opinion is based be substantially true. 4. That requirement reflects the defence of fair comment under the general law as expressed by King CJ in Pryke v Advertiser Newspapers Ltd, [54] in a passage cited with approval by Gleeson CJ in Manock: [55] "A statement can be regarded as comment as distinct from allegation of fact only if the facts on which it is based are stated or indicated with sufficient clarity to make it clear that it is comment on those facts." 1. The reference to "the facts on which it is based" is to the "true facts", sometimes referred to as "the facts as truly stated". The position in that respect was stated by Bingham LJ in Brent Walker Group [56] in the passage cited by Gleeson CJ in Manock at [5] (extracted at [42] above) and by the plurality (Gummow, Hayne and Heydon JJ) at [35]. In Pervan, the plurality expressed the "established common law principle" as being that "in order to make out a defence of fair comment the defendant must show, amongst other things, that, where the comment is based on facts, the facts are truly stated". [57] 2. Where the matter with respect to which an opinion is expressed consists of an assertion and denial as to the happening of particular facts, it is necessary to determine whether the comment has been made upon the fact of the assertion and denial having been made, or upon the basis that the denial is true. This distinction (between commenting on the basis of what in fact was said as distinct from the truth of what was said), was referred to in the joint reasons in Pervan, [58] quoting the succinct statement of Cussen J in Givens v David Syme & Co (No 2) [59] that: "…I do not suggest, that a person or a newspaper cannot comment upon what is said in Parliament, but, of course, there is a marked distinction between commenting upon what is said in Parliament on the basis of what in fact was said, and commenting on the basis that what is said by every member of Parliament may be taken to be true. In such a case if a defendant relies on the truth of the statements as an answer to an action for defamation, he must be prepared to prove them to be true, either on a plea of justification or as a foundation for comment." 1. It may seem strange that a person who denies an accusation made by the plaintiff against him and comments, on the basis of his denial, in terms defamatory of the accuser must prove the truth of his denial in order to establish a defence of honest opinion. However, in such a circumstance the defendant might have available a defence of qualified privilege, not requiring proof of the substantial truth of his denial. [60] 2. If, as it was open for a jury to find in this case, the matter on which the opinion was based included an assertion and denial as to the happening of particular events and the opinion expressed was that the plaintiff's version was untrue, the opinion may be based upon the truth or substantial truth of the denial. In such a case, that is the fact on which the opinion is based and to make out a defence under the general law and under s 31(1)(c) that fact must be established as substantially true. 3. It would be open to a jury to find that the statements giving rise to imputation (b) were not based on the mere fact of the assertions made by the grounds of the application for the AVO and of Mr Y's denial of the truth of those grounds. Rather, Mr Hadley's opinion was arguably expressed on the basis that what Mr Y said as to those allegations was true. 4. The result of the analysis so far is that imputation (b), or at least the publication of the defamatory matter from which it derived, should have been held to involve an expression of an opinion and the answer given by the jury to question 4 was, in this respect, unreasonable. As noted above, the explanation for the answer in fact given is probably found in the order in which questions 3 and 4 were required to be addressed and the absence of any question which directed attention to whether any particular defamatory matter or imputation arising from that matter was an expression of opinion or statement of fact of Mr Hadley or Mr Y. 5. Imputations (c) and (d) (namely, that the application for the AVO was vexatious and frivolous) should also reasonably have been understood to be expressions of opinion, by application of the same reasoning as that set out above with respect to (b). The findings that the imputations were not substantially true did not address the right question and hence provided no answer to the proposition that there was a miscarriage of justice with respect to the answers given to question 4 in relation to imputations (b), (c) and (d). 6. As appears from the foregoing discussion, that which needed to be identified as proper material upon which to base the relevant opinions, and which needed to be substantially true, may have been the statements made by Mr Y as to the fact of the issue of the AVO and as to the bases upon which it was issued. The application for an AVO was in evidence and identified the following grounds: "The defendant is the father of a victim in respect of … a charge against the applicants [sic] husband for aggravated indecent assault. The applicant and her husband own a seafood shop located at Carlingford Court. Since the charge matter was last before the Court (Burwood Local Court 20/09/07) the defendant has been attending the shopping centre and loitering around applicants [sic] business. The defendant walks past the shop and glares and the applicant and her children. The applicants [sic] daughter has expressed concerns for her safety to the applicant when they see the defendant loitering around the shop. On 4/11/07 the defendant approached the applicants [sic] husband who was working at the shop and said 'Fuck you'. The applicants [sic] husband walked to the back of the shop and contacted security. This incident occurred about 8am. At 9.45am the applicant then noticed the defendant again loitering near their shop. The defendant then walked past a number of times stareing [sic] at the applicant and her daughter. This caused the applicant and her daughter to feel intimated by the defendant. The applicant has also received a number of threatening and nuisance phone calls which she believes the defendant is responsible for. The applicant fears further harassment and intimidation from the defendant." 1. In the course of the first broadcast, Mr Y stated that the respondent had taken out an AVO against him but said he could not really talk about it because he was challenging it in the court. He did, however say: "I don't know whether I was stalking – she's talking about stalking her and something about her daughter and all this type of stuff. It's just farcical, it's a joke." 1. After referring to the dismissal of the husband's appeal against conviction, Mr Hadley then said: " - - but now you've got to go back to court because this dirty low bastard attacked your daughter because his wife is alleging that you're stalking him and his – or her and her family." 1. In the course of the second segment of the first broadcast, when impersonating the registrar of the Local Court speaking to the applicant for the AVO, Mr Hadley stated: "Well, he comes into our shopping centre and he looks at me. What do you mean he looks at you? Well, he looks at me. I'm intimidated by the way he looks at me." 1. Whether that was proper material for the opinion expressed that the application for the AVO was frivolous, vexatious and without substance was a matter to be determined by the jury. They did not approach the matter on that basis and accordingly there must be a retrial with respect to those imputations. (e) imputation (a) 1. With respect to imputation (a), namely that the plaintiff is a low, contemptible person, its content, taken in context, defines it as an expression of opinion. The jury's finding that it was a statement of fact was not reasonably open and must be set aside. The relevant part of the publication giving rise to the imputation was the reference to the plaintiff as "his grub of a wife". 2. If this opinion were based on the statement that she condoned her husband's criminal activity, the appellants' challenge must fail for the reasons that the challenge to imputations (e) and (f) must fail. If, however, it was based upon the truth of Mr Y's denial of the allegations made in the application for the AVO, the appellants' challenge is sound. 3. In the course of the first publication, Mr Hadley commenced with some background information concerning the case, noting that he had covered the "disturbing story" the previous year and was now able to follow it up because Mr Ahmed's appeal against conviction had been dismissed. He then interviewed Mr Y, introduced as the father of the victim of the assault. After some general remarks concerning what had happened in court on the appeal, Mr Hadley raised the question of the AVO taken out against Mr Y, ultimately identified as being taken out by the plaintiff. The tenor of Mr Y's comments was undoubtedly critical of the plaintiff, describing the AVO as "just farcical, it's a joke." In the course of the exchanges Mr Hadley expressed a level of agreement with that assessment using the words "God, strike me". However, the conversation then returned to Mr Ahmed and his conduct and the proceedings in court. Mr Hadley embarked upon a lengthy repetition of the allegations of the sexual assault, concluding with the comment "[a]nd there's people defending this grub." This remark was followed up by reference to the shop which Mr Ahmed and his family owned, concluding with the words "but if this bloke has any connection with it and his grub of a wife, they should completely and utterly be sent out of business. Disgraceful." 4. Reading the transcript of the broadcast (and listening to the recording) indicates that the reference to the plaintiff as a "grub" was directly sequential upon the discussion of Mr Ahmed's criminal activity and thus imputation (a) could be understood as falling within the same category as imputations (e) and (f). They depended upon the plaintiff's alleged condonation of, or non-objection to, her husband's criminal activity. However, imputation (a) was not conjoined by references to condonation and may not have been based on that statement. This Court cannot be sure how the jury would have assessed its basis on identified facts. It must be remitted for retrial. Conclusions – first broadcast 1. The result of the foregoing analysis is that it was open to the jury to conclude that imputation (g) was a statement of fact and was not substantially true. Accepting that it was unreasonable to conclude that imputations (e) and (f) were not expressions of opinion, nevertheless, they were each to be understood as based on the facts stated in par (g), which was found not to be substantially true. Accordingly, the appellants could not in any event have succeeded in their challenge with respect to imputations (e) and (f). 2. With respect to imputations (a), (b), (c) and (d), the finding that they were statements of fact and not expressions of opinion was unreasonable and should be set aside. On the basis that they were statements of opinion, there was a further question as to whether they were based on proper material, being the explanation for the basis on which the application was made for the AVO, which was substantially true. That was a question of fact to be determined by the jury, an exercise which did not occur, except with respect to imputation (d), in respect of Mr Y's statement, because the jury otherwise held that the imputations were statements of fact. Although, to a lawyer, imputations (b), (c) and (d) were substantially identical, in the common meaning of the language used, they were discrete. The jury's finding that Mr Y's opinion that the application was frivolous was not supported by material which was substantially true cannot therefore give rise to only one conclusion with respect to the other imputations. Further, there is some doubt attending the finding that this particular imputation in relation to this particular person was an expression of opinion, but that others were not. The apparent inconsistency means that the findings with respect to all three imputations, in relation to both Mr Hadley and Mr Y, should be set aside and that there should be a retrial with regard to whether those imputations are based on proper material. Second broadcast 1. Of the three imputations upheld in relation to the second broadcast, only imputation (c) remained after consideration of other defences. That imputation, referring to the plaintiff as a "silly woman", reflected the express words of Mr Hadley towards the conclusion of that broadcast. The plaintiff conceded at trial that it was an expression of opinion rather than a statement of fact and the jury answered question 14 in accordance with that agreement. The jury further held that it was not an opinion based on the judgment of the Federal Court, nor was it based on material which was substantially true. 2. The appellants' case was that, in so far as the jury did not consider that the basis for the opinion was the dismissal of certain causes of action brought by the plaintiff against the appellants in the Federal Court proceedings, the opinion must have been based upon the outstanding allegations, namely her claims in defamation. That view is supported by the immediately preceding sentence, Mr Hadley stating: "I'll tell you who's been defamed in this, the little girl involved with your grub of a husband and her family. That's who's been defamed, you silly silly woman." 1. So understood, this expression of opinion bears a resemblance to the imputations relating to the AVO against Mr Y. The only reasonable inference is that it was not the fact of bringing proceedings for defamation (or the fact of seeking an AVO) which gave rise to the derogatory opinion. Rather, it must have been the absence of substance or merit of the outstanding defamation allegations, analogously to the absence of merit of the grounds on which the AVO was sought. The question then becomes whether it was reasonably open to the jury to accept that there was substance in the basis on which the defamation proceedings were brought. 2. The plaintiff contended on the appeal that the only material which could have provided a basis for the opinion was that contained in the surrounding statements, namely that it was the victim of the assault (and her family) who had been "defamed", and not the plaintiff. Reading that material colloquially, it may have been true that the victim and her family had suffered from the conduct of the plaintiff's husband, and perhaps in part from her own conduct in seeking an AVO against the victim's father. That could not provide proper material on which to judge the opinion that the plaintiff was silly in bringing proceedings against the appellants. On that basis, the plaintiff contended that it was reasonably open to the jury to find that the opinion expressed in the imputation was not "substantially true" for the purposes of s 31(5). 3. That approach should not be accepted. The final part of the broadcast in which the opinion was expressed can only properly be understood by reference to earlier passages in which Mr Hadley had noted the allegation that he had referred to Mr Ahmed's "grub of a wife" and had said that "the [plaintiff] and her husband should be driven out of business." 4. Even accepting the broader approach, it was open to the jury to conclude that this material did not provide a sufficient factual background for the opinion, because it did not describe a basis on which it might reasonably be said that the defamation proceedings were misguided or without merit. 5. It may also be noted that little attention was given to the defence of honest opinion with respect to this imputation, in the pleadings, in the course of the trial or in the directions to the jury. In these circumstances, it is not possible to conclude that the answer given by the jury was not reasonably open. Accordingly the appellants' challenge with respect to the findings regarding imputation (c) in the second broadcast must be rejected. Challenge to award of damages 1. The trial judge awarded the plaintiff $240,000 damages with respect to the combined effect of the seven imputations held to arise from the first broadcast. He awarded a further sum of $40,000 with respect to the second broadcast. The maximum amount which could, at the time of the trial, have been awarded pursuant to s 35 of the Defamation Act was $355,000, with a possible increase in the event that the trial judge considered that an award of aggravated damages was required. The claim for aggravated damages in this case was rejected. 2. The plaintiff gave evidence of her subjective reactions to the broadcasts and the impact of the statements upon her. The judge said: [61] "I accept her evidence relevant to the issue of damages. I was left in no doubt as to its veracity." 1. The judge noted that the plaintiff had not been named in the broadcasts and that "although the broadcast was to a wide audience, caution should be exercised in assessing the likely scope of listeners who would have taken it to refer to the plaintiff." He accepted that the evidence of telephone calls received and of whispering and pointing by other shopkeepers indicated "publication to many listeners throughout the general area in which she lived and worked." [62] The judge continued: "Although witnesses gave evidence of her reputation, none said that as a result of the broadcast they thought the less of her, or that her reputation was actually diminished in the circles in which she moved. However, it is self evident that the imputations conveyed by the broadcast would cause significant injury to her reputation. … [S]ome allowance should be made for the 'grapevine' effect." 1. The appellants raised a number of issues with respect to the reasoning of the trial judge in relation to damages. They noted that the first broadcast referred to the plaintiff only in passing, the main thrust being a report of the criminal proceedings against her husband, although the second part of the broadcast focused on the application for an AVO against Mr Y. More importantly, there was a question to be addressed as to the extent to which the plaintiff suffered from reports of her husband's conviction and the extent to which any "whispering and pointing" may have related to her husband's conduct, rather than to comments about her support for him. This issue was not addressed. Those factors, together with the limited evidence of actual harm to reputation, suggest that the award of damages in this case was excessive with respect to the first broadcast. 2. In relation to the second broadcast, the only imputation which was upheld was that the plaintiff was "a silly woman." This could only have carried a quite limited effect with respect to her reputation, or indeed injury to feelings. It was arguable that the amount awarded for this imputation was excessive. 3. Amongst the factors taken into account by the trial judge was "the persistence in the defence of justification, and aggravation by her knowledge of the falsity of the imputation." [63] So far as justification was pleaded with respect to the sole imputation in question, the particulars of truth relied upon were the same as those pleaded with respect to the imputations conveyed by the first broadcast. As, at least by the end of the trial, both parties had accepted the inevitable and imputation (c) was sought to be justified only as an expression of opinion, this was not a factor which should have been significant in assessing hurt to the plaintiff's feelings. 4. The judge also took account of the fact that "by publicly branding the plaintiff as a silly woman whilst threatening to break her the defendants caused significant harm to her reputation". [64] That statement may have provided justification for not treating the characterisation of the plaintiff as a "flippant accusation", being the suggestion rejected by the trial judge, but it is difficult to see why the threat to enforce the costs order made in the Federal Court would aggravate the damage to her reputation. Indeed, it might have been open to the trial judge to conclude that there was a sense in which the imputation related to the bringing of unsuccessful proceedings in the Federal Court, thereby diminishing the defamatory sense accepted by the jury. 5. Most importantly in the present context, the trial judge stated that, "[i]n assessing the amount of damages to be awarded to the plaintiff for the publication of the second broadcast I have adopted the approach taken in respect of the award for the first broadcast." [65] That would, understandably, include the assessment of the plaintiff's evidence with respect to her response to the broadcast. In circumstances where damages must, in any event, be reassessed at a further trial, it would not be appropriate for this Court to form any view as to the appropriate award with respect to the second broadcast. As no final conclusion can be reached with respect to the damages, to the extent that there must be a retrial, damages will need to be reassessed on the basis of such imputations as cannot be defended. These remarks have been made to indicate that, on a retrial, the judge will not be restricted to the scope of the award given by the trial judge, whatever imputations may or may not be upheld. Orders 1. The consequence is that this aspect of the appeal must be upheld, but limited to the allegations with respect to the AVO brought against Mr Y, being imputations (a), (b), (c) and (d) arising from the first broadcast. These imputations are not severable as a part of the calculation of damages. The judgment for the plaintiff must therefore be set aside. 2. On the basis that the only imputation left in the trial in relation to the second broadcast has survived the appeal, it might be open to this Court to reach a conclusion as to the proper amount of damages which should be awarded. However, for reasons given above that would not be an appropriate course. There must be a retrial as to damages generally. 3. Whether any further trial of the proceedings should be heard in this Court or in the District Court is not a matter which needs to be addressed on the appeal. 4. Each party having had a measure of success on the appeal, there will be no order as to the costs incurred in this Court. 5. The Court accordingly makes the following orders: (1) Allow the appeal in part and set aside the answers given by the jury to questions 3, 4, 5 (other than with respect to (d)) and 6(d). (2) Set aside orders 1-7 made on 17 March 2014. (3) Direct that there be a retrial of the proceedings limited to determining: (a) whether the expressions of opinion, being imputations (a)-(d) found to have been conveyed by the broadcast on 21 May 2008 and to be defamatory of the plaintiff, were based on material which was substantially true; (b) damages with respect to such of imputations (a)-(d) which were not based on material which was substantially true, together with imputations (e)-(g) conveyed by the broadcast on 21 May 2008 and imputation (c) conveyed by the broadcast on 1 October 2009 and defamatory of the plaintiff; and (c) costs of the first trial and the further trial. ********** Endnotes 1. Ahmed v Harbour Radio Pty Ltd [2013] NSWSC 1928 ("damages judgment"). 2. Defamation Act, s 31. 3. John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; 77 ALJR 1657 ("Rivkin") at [185] (Callinan J, Gleeson CJ and Heydon J agreeing); John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291; [2007] HCA 28 ("Gacic") at [51] (Gummow and Hayne JJ). 4. Children (Criminal Proceedings) Act 1987 (NSW), s 15A. 5. Damages judgment at [7]. 6. Damages judgment at [8]. 7. Damages judgment at [9]. 8. Damages judgment at [10]. 9. Damages judgment at [12]. 10. Damages judgment at [11]. 11. Damages judgment at [14]. 12. Damages judgment at [15]. 13. Damages judgment at [16]. 14. Damages judgment at [17]. 15. Damages judgment at [18]. 16. Damages judgment at [20]. 17. Damages judgment at [20]. 18. Damages judgment at [23]. 19. Ahmed v Harbour Radio Pty Ltd (2009) 180 FCR 313; [2009] FCA 1113; ("Federal Court judgment"). 20. Federal Court judgment at [11]-[13]; Damages judgment at [22]. 21. Damages judgment at [24]. 22. The transcript is annexure A to the damages judgment. 23. The transcript is annexure B to the damages judgment. 24. Damages judgment at [36]. 25. Pars 7 and 8 in transcript. 26. Damages judgment at [2]. 27. Damages judgment at [3]. 28. Defamation Act, s 28. 29. Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575; [1999] HCA 45 at [26] (Gleeson CJ and Gummow J). 30. Rivkin at [5] (Gleeson CJ). 31. Gacic at [45] (Gummow and Hayne JJ). 32. Gacic at [11] (Gleeson CJ and Crennan J); [42] and [54] (Gummow and Hayne JJ); [184] (Callinan and Heydon JJ). 33. Uniform Civil Procedure Rules 2005 (NSW), r 51.53. 34. Defamation Act, s 6(2). 35. A Mullis et al (eds) Gatley on Libel and Slander (Sweet and Maxwell, 12th ed, 2013) ("Gatley") at [12.1]. 36. (2007) 232 CLR 245; [2007] HCA 60. 37. Manock at [36] (references omitted). 38. Manock at [37], quoting Blackburn CJ in Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1 at 40; see also New South Wales v IG Index Plc [2007] VSCA 212; (2007) 17 VR 87 at [48]-[53] (Nettle JA). 39. Manock at [5]. 40. Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 327. 41. Brent Walker Group Plc v Time Out Ltd [1991] 2 QB 33 at 44. 42. [2013] WASC 451 at [35]-[36]. 43. Defamation Act, s 31(5)(a). 44. [2014] NSWSC 350; [2014] Aust Torts Rep 62-165 at [228]. 45. Defamation Act, s 2. 46. Summing up, 28/11/13, pp 3 and 4. 47. Summing up, 28/11/13, p 73-74. 48. Summing up, 29/11/13, p 105. 49. [2001] EWCA Civ 791. 50. Branson at [13]. 51. [2007] EWCA Civ 600; [2007] 4 All ER 319. 52. Burstein at [22]. 53. [1992] 2 AC 343 at 358B. 54. Pryke v Advertiser Newspapers Ltd (1983) 37 SASR 175 at 192. See also New South Wales v IG Index Plc at [48]-[53] (Nettle JA). 55. Manock at [6]. 56. [1991] 2 QB 33. 57. Pervan at 320 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ). 58. Pervan at 322. 59. [1917] VLR 437 at p 445. 60. Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; [2012] HCA 44. 61. Damages judgment at [52]. 62. Damages judgment at [53]. 63. Damages judgment at [66]. 64. Damages judgment at [68]. 65. Damages judgment at [69]. 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 September 2015