Ali v Nationwide News Pty Ltd [2008] NSWCA 183

Appeal Outcome: Special leave application dismissed with costs 13 February 2009 (S401/2008)

New South Wales Court of Appeal

CITATION: Ali v Nationwide News Pty Ltd [2008] NSWCA 183

HEARING DATE(S): 5 June 2008

JUDGMENT DATE: 8 August 2008

JUDGMENT OF: Tobias JA at 1; McColl JA at 1; Basten JA at 140

DECISION: (a) Appeal allowed. (b) Set aside the judgment and verdict of James J dated 20 December 2007 awarding the appellant damages in the sum of $125,000. (c) Set aside Orders 1 and 2 of the Consent Orders entered on 3 March 2008. (d) Verdict and judgment for the appellant in the sum of $275,000. (e) Award interest on the judgment sum from 11 June 2003 up to and including 8 August 2008. (f) The respondent to pay the appellant's costs of the appeal. (g) Liberty to the parties to file consent orders to give effect to order (e). (h) Liberty to apply to McColl JA within 14 days of the date of these orders in the event of any dispute as to the quantum of interest to be paid in accordance with order (e).

CATCHWORDS: DEFAMATION – damages – whether manifestly inadequate – assessment of damages – compensatory damages – gravity of imputations – importance of injured feelings - DEFAMATION – assessment of damages – aggravated damages for failure to apologise where no apology solicited by plaintiff - PRACTICE AND PROCEDURE – appeal – grounds of appeal – scope of review of primary judge's decision – whether Court should interfere with primary judge's findings on evidence - STATUTES – s 46A Defamation Act 1974

Acts Interpretation Act 1901 (Cth) LEGISLATION CITED: Civil Liability Act 2002 Defamation Act 1974 Migration Act 1958 (Cth)

CATEGORY: Principal judgment

Ali v Nationwide News Pty Ltd [2007] NSWSC 58 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Bashford v Information Australia [2000] NSWSC 665 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 Browne v Dunn (1894) 6 R 67 Carlson v King (1947) 64 WN(NSW) 65 Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 Cassell & Co Ltd v Broome [1972] AC 1027 Clark v Ainsworth (1996) 40 NSWLR 463 Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 Crampton v Nugawela (1996) 41 NSWLR 176 Cross v Queensland Newspapers Pty Ltd [2008] NSWCA 80 Dearman v Dearman [1908] HCA 84; 7 CLR 549 Dingle v Associated Newspapers Ltd [1964] AC 371 Ex parte Reid; Re Lynch (1943) 43 SR(NSW) 207 Fleming v The Queen [1998] HCA 68; 197 CLR 250 Fox v Percy [2003] HCA 22; 214 CLR 118 Herald & Weekly Times Ltd v McGregor [1928] HCA 36; (1928) 41 CLR 254 HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302; (2005) 21 BCL 454 Humphries v TWT Ltd (1993) 113 FLR 402 John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 CASES CITED: Ley v Hamilton (1935) 153 LT 384 M & E M Holt Pty Ltd v Thompson [2001] NSWCA 359 McDonald v Coles Myer Ltd (t/as K-Mart Chatswood) (1995) Aust Torts Reports 81-361 Mifsud v Campbell (1991) 21 NSWLR 725 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 Moit v Bristow [2005] NSWCA 322 Pettit v Dunkley [1971] 1 NSWLR 376 Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362 Public Service Board of New South Wales v Osmond [1986] HCA 7; 159 CLR 656 Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72 Shellharbour City Council v Rigby [2006] NSWCA 308; 150 LGERA 11 Smiths Newspapers Ltd v Becker [1932] HCA 39; (1932) 47 CLR 279 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 State Rail Authority of New South Wales v Brown [2006] NSWCA 220; 66 NSWLR 540 Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127 Young v Cesta-Incani [2007] NSWCA 229

PARTIES: Romzi Ali - Appellant Nationwide News Pty Ltd - Respondent

FILE NUMBER(S): CA 40931/07

COUNSEL: T Molomby SC and R Rasmussen - Appellant T Blackburn SC and J Hmelnitsky - Respondent

SOLICITORS: Public Interest Advocacy Centre Ltd - Appellant Blake Dawson Waldron - Respondent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 20154/04

LOWER COURT JUDICIAL OFFICER: James J

LOWER COURT DATE OF DECISION: 15 March 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Ali v Nationwide News Pty Limited [2007] NSWSC 58

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40931/07 SC 20154/04

TOBIAS JA McCOLL JA BASTEN JA

Friday 8 August 2008

Romzi ALI v NATIONWIDE NEWS PTY LTD

Headnote The appellant sued the respondent for defamation in respect of two articles and an editorial published in The Australian newspaper on 11 June 2003. The subject of the articles was alleged fundraising activity within the Australian Muslim community for terrorist organisations in Indonesia. The appellant was identified in the leading article as having raised money for the organisation Laskar Jihad.

At a trial in March 2005 held pursuant to s 7A of the Defamation Act 1974 ("the Act"), a jury found the matter complained of conveyed the following imputations defamatory of the appellant:

a) That he has raised money for the operations of Laskar Jihad, an organisation which does not worry about doing killings in pursuit of its political objectives; and

b) That he is a supporter of terrorism.

The respondent initially filed defences of qualified privilege (both at common law and pursuant to the relevant statutes in respect of publication in the various states and territories) but, at the further hearing to consider the defences and, if appropriate, to determine damages, informed the Court it would not rely on any defences. The further hearing was therefore limited to an assessment of the amount of damages to which the appellant was entitled.

On 15 March 2007 James J awarded the appellant $125,000 in damages.

The appellant appealed against the primary judge's award of damages asserting error in respect of an alleged failure on the part of the primary judge to give reasons for his rejection of certain parts of the appellant's evidence and for refusing to award aggravated damages in respect of the respondent's failure to apologise. The appellant also complained that the award of compensatory damages was manifestly inadequate.

Held, allowing the appeal –

As to the adequacy of damages

1. Per Tobias and McColl JJA: (a) Damages awarded for defamation serve three purposes: consolation for the personal distress and hurt caused to the plaintiff by the publication, reparation for the harm done to the plaintiff's personal and (if relevant) business reputation and vindication of the plaintiff's reputation: [70]. Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 applied

(b) A solatium for injured feelings forms a large element in the damages awarded for defamation: [72].

Cassell & Co Ltd v Broome [1972] AC 1027 applied

(c) The damages awarded in a defamation action have to be regarded as demonstrating that the plaintiff has been vindicated in his or her reputation. They should reflect the high value the law places upon reputation and, in particular, upon the reputation of those whose work and life depend upon their honesty, integrity and judgment: [74].

Dingle v Associated Newspapers Ltd [1964] AC 371; Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44; Crampton v Nugawela (1996) 41 NSWLR 176 applied

(d) Damages awarded for defamation must be such as to enable the plaintiff to point to the sum awarded as being sufficient to convince a bystander of the baselessness of the charge: [75].

Cassell & Co Ltd v Broome [1972] AC 1027 applied; Ley v Hamilton (1935) 153 LT 384 referred to (e) The assessment of damages for defamation involves an understanding of the nature and seriousness of the imputations and the defendant's conduct: [76]. Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 applied 2. Per Tobias and McColl JJA: (a) An appellate court should intervene to prevent a miscarriage of justice if it is convinced that the damages awarded are so high or so low that it is outside the range of what could reasonably be regarded as appropriate to the circumstances of the case: [86]-[88].

Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44; Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 applied; Triggell v Pheeney [1951] HCA 23; 82 CLR 497 referred to

Per Tobias and McColl JJA; Basten JA dissenting:

(b) In light of the findings made by the primary judge, the award of $125,000 for general compensatory damages was manifestly inadequate and should be set aside and a figure of $275,000 awarded instead: [133]-[135].

As to aggravated damages

3. Per Tobias and McColl JJA: (a) An award of aggravated damages may be made if the defendant has acted in a manner which demonstrates a lack of bona fides or in a manner which is improper or unjustifiable: [79].

Triggell v Pheeney [1951] HCA 23; 82 CLR 497 ; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 applied

(b) Conduct which demonstrates a lack of bona fides or in a manner which is improper or unjustifiable will be such as will increase the harm which the publication of the libel has caused or may be supposed to have caused: [79]-[80].

Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 applied; Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 referred to

(c) Damages for failure to apologise can be awarded both as part of general compensatory damages or as aggravating compensatory damages: [81]-[82].

Clark v Ainsworth (1996) 40 NSWLR 463 applied; McDonald v Coles Myer Ltd (t/as K-Mart Chatswood) (1995) Aust Torts Reports ¶81-361 referred to

Per Basten JA dissenting: (d) An award of aggravated damages must be in accordance with s 46 of the Act which requires that the state of mind of the publisher must be disregarded except to the extent it affects the harm suffered by the plaintiff, an effect likely to be reflected in the assessment of ordinary damages: [212]- [213]. Carson v John Fairfax & Sons Ltd [1993] HCA 31 discussed

4. Per Tobias and McColl JJA; Basten JA dissenting: (a) The primary judge failed to give adequate reasons for his rejection of the appellant's claim for aggravated damages on the basis of the respondent's failure to apologise: [126]. (b) The appellant was entitled to an award of aggravated damages notwithstanding an apology was not sought by the appellant in circumstances where the respondent had elected not to defend the defamatory imputations: [83], [128]-[129].

Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 considered As to the evidence of the appellant's belief 5. Per Tobias and McColl JJA; Basten JA dissenting: (a) The primary judge was not entitled to reject the evidence of the appellant as to his belief in a connection between the publication and certain distressing events in circumstances where the relevant evidence was not the subject of cross examination and where that belief was not ex facie irrational: [110]-[115].

M & E M Holt Pty Ltd v Thompson [2001] NSWCA 359; HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302; (2005) 21 BCL 454 considered

Per Basten JA dissenting: (b) The Court should not in the exercise of its appellate functions interfere with the findings of the primary judge as to the appellant's state of mind at a particular time: [182].

Fox v Percy [2003] HCA 22; 214 CLR 118 considered

As to the duty of a primary judge to give reasons

6. Per Basten JA dissenting: The grounds of appeal in respect of lack of reasons were misconceived. The duty of a primary judge to give reasons is not in issue where the appeal in substance involves a complaint as to the findings made: [153], [156], [173].

Carlson v King (1947) 64 WN(NSW) 65; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323; Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 considered.

Cross v Queensland Newspapers Pty Ltd [2008] NSWCA 80; Shellharbour City Council v Rigby [2006] NSWCA 308; 150 LGERA 1; Young v Cesta-Incani [2007] NSWCA 229 referred to.

Orders :

(a) Appeal allowed. (b) Set aside the judgment and verdict of James J dated 20 December 2007 awarding the appellant damages in the sum of $125,000. (c) Set aside Orders 1 and 2 of the Consent Orders entered on 3 March 2008. (d) Verdict and judgment for the appellant in the sum of $275,000. (e) Award interest on the judgment sum from 11 June 2003 up to and including 8 August 2008. (f) The respondent to pay the appellant's costs of the appeal. (g) Liberty to the parties to file consent orders to give effect to order (e).

(h) Liberty to apply to McColl JA within 14 days of the date of these orders in the event of any dispute as to the quantum of interest to be paid in accordance with order (e).

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40931/07 SC 20154/04

TOBIAS JA McCOLL JA BASTEN JA

Friday 8 August 2008 ROMZI ALI v NATIONWIDE NEWS PTY LTD Judgment 1 TOBIAS and McCOLL JJA: On 15 March 2007 James J awarded Romzi Ali, the appellant, damages in the sum of $125,000 in respect of the publication by Nationwide News Pty Ltd, the respondent, of two articles and an editorial (the articles) in The Australian on 11 June 2003 (the newspaper). The articles comprised statements which the appellant alleged conveyed the defamatory imputations of which he complained. 2 The appellant appeals against his Honour's award of damages primarily upon the grounds that his Honour failed to award aggravated damages and that his award of compensatory damages was manifestly inadequate.

The matters complained of 3 The first article, which appeared at the top of page 1 of the newspaper was in the following terms: "Second airport terror link 'He asked nicely always, but I think people knew it was better to give money' Australian Indonesian Community Source A MEMBER of a violent Indonesian group with suspected links to Jemaah Islamiah and al-Qa'ida has been actively fundraising in Sydney for 'jihad', while working as a shuttle bus driver at Sydney airport. The Australian understands the man, who is known as Dance Darmince but often uses the alias Mohammad Darimi, heads a small group of Laskar Jihad members in Sydney and has been co-ordinating their fundraising efforts for the past five years. Mr Darmince is an Australian citizen and has lived in Sydney's Lakemba for about 20 years. From about 1999, he drove airport shuttle buses transporting passengers to, from and around Sydney airport for private shuttle bus company Kingsford Smith Transport. The company confirmed yesterday that Mr Darmince had been employed under his alias, Mohammad Darimi. It said that after on-and-off employment for more than four years, he had quit in November. The revelation follows the news that Bilal Khazal, a man whom the CIA says is affiliated with Osama bin Laden, worked as a Qantas baggage handler at the airport in the lead-up to the Sydney Olympics. Transport unions said yesterday his employment high-lighted lax security at airports. Mr Khazal told the Nine Network last night that he was innocent and the CIA had wrongly named him as an al-Qa'ida operative. But 'like any Muslim', he said, he believed bin Laden was a good man. He argued that the US and Israel were behind the September 11 attacks and the Bali bombing. Mr Darmince's former boss, KST manager John Koolman, said Mr Darmince had had access to public areas only, and before being hired had been asked for his driver's licence and an authority from the NSW Department of Transport, which included a police check. A source within the Sydney Indonesian community told The Australian Mr Darmince, and occasionally other men, visited Indonesian people at home and asked them for money to 'help with their jihad and the fighting in the Malukus'. 'He asked nicely always, but I think people knew it was better to give money', said the source. He said Mr Darmince travelled regularly from Sydney to Indonesia. He was in Australia last month, but had since returned to Indonesia. 'Laskar Jihad have the same purpose as JI', one source said. 'They both want an Islamic state (in Indonesia) but Laskar Jihad is much more radical than JI – (they are) much scarier people who don't worry at all about doing killings'. It is understood Australian security agencies have been closely monitoring Laskar Jihad in Australia for several years. The group is thought to be responsible for the death of thousands of Christians in Ambon, the capital of the Maluku Islands, and is believed to have loose links with al-Qa'ida and Jemaah Islamiah. The Australian has also been told Romzi Ali, the secretary of the Dee Why Mosque at the centre of a power struggle with JI in the late 1990's, was also raising money for Laskar Jihad operations in 2000. Mr Ali denies he ever helped raise money for Laskar Jihad and says he only helped to collect funds for hospitals and orphans – Christian or Muslim. While there is a widespread belief among some terror experts that Laskar Jihad disbanded around the time of the Bali bombings, the Australian National University's Clive Williams said he believed the organisation was still active. More reports – p 2 Editorial – p 10" (Emphasis added) 4 The second article, which appeared on page 2 of the same newspaper was headed "Ex-Qantas worker denies terror links" and related solely to Bilal Khazal without mentioning or referring to the appellant. However, it contained the following insert: "Origins of the 'Holy War Warriors' LASKAR Jihad, or 'Holy War Warriors', were formally founded in 2000 by Jafar Umar Thalib, who spent the late 1980's fighting alongside the mujaheddin in Afghanistan. The group is thought to be responsible for the death of thousands of Christians in Ambon, the capital of the Maluku Islands, and is believed to have loose links with al-Qa'ida, Jemaah Islamiah and the Malaysian-based KMM-Kumpulan Mujahidin Malaysia. At its height in 2000-01, the organisation had more than 10,000 members. It is now thought to be active in West Papua. Last year, the Centre for Defence Information in Washington reported that Laskar Jihad had received at least $9.3 million embezzled from the Indonesian army". The article relating to Bilal Khazal was in the following terms: "BILAL Khazal, the former Qantas baggage handler alleged by the CIA to have ties with al-Qa'ida, last night declared he was innocent and had no links to terror. Mr Khazal, organiser of the Islamic Youth Movement in Sydney's southwest, said he was a victim of religious and racial profiling and denied being Osama bin Laden's man in Australia, though he described bin Laden as a 'good man'. He said the CIA had wrongly named him. Mr Khazal believes the US and Israel were behind the September 11 attacks and the Bali bombing, he told the Nine network's A Current Affair program. The Mufti of Australia, Sheik Taj el-Din Al Hilaly, yesterday supported Mr Khazal, declaring he posed no threat to national security. 'There's nothing to be alarmed about, he is not a terrorist, there is no evidence to say he is… this is alarmist,' he said through translator Keysar Trad. 'If he was a terrorist, why hasn't he been arrested?' But sources in Sydney's Islamic community told The Australian Sheik Hilaly was 'kidding himself' if he believed Mr Khazal was innocent. 'We know he recruits young people who are stupid… They are desperate… Even though ASIO is watching him he has not stopped his activities,' said a source who would not be named. 'They have more members then ever before'. Foreign Minister Alexander Downer would not reveal yesterday when Mr Khazal's passport had been revoked. 'We have been concerned about him' and had confiscated his passport,' he said, adding that Mr Khazal was appealing against the decision". 5 The editorial, which appeared on page 10 of the newspaper was in the following terms: "Best defences against terror That terrorists with murder on their minds have called Australia home is alarmingly clear from recent revelations published in The Australian and broadcast by the ABC. Jemaah Islamiah, the organisation responsible for the Bali bombing, had a base in the Sydney suburb of Dee Why. Members sought to take control of a local mosque and use it to raise funds and recruit new members. The JI plan was defeated by opposition from the Muslim community and by ASIO raids following the Bali attack. But the organisation remains active in southeast Asia, and there is no guarantee its operatives will not keep trying to use Australia as a source of recruits, money and perhaps targets. When added to recent revelations that Osama bin Laden's al-Qa'ida network planned to murder mining magnate Joe Gutnick and that an alleged friend of the terror organisation was previously employed as a Qantas baggage handler at Sydney airport, there is ample evidence that Australians are in the assassins' sights. We should not be surprised that Australia is targeted by Muslims peddling a perversion of their faith, who believe slaughter is a legitimate means to extend their version of their faith. As JI cleric Abu Bakar Bashir told The Australian in the days after the Bali bombing last October, he wants Islam to 'regulate the world's people'. But while we should be alert and alarmed by the possibility of terror attacks, Australia is far from defenceless. That the Dee Why group was broken up by ASIO demonstrates that the police and security agencies are doing their job. They would be greatly assisted if Labor and the federal Government could settle their differences and pass the ASIO bill, now stalled in the Senate in a form that would allow terror suspects to be held for seven days without charge. While this is an infringement of civil liberties, the loss of a week's liberty for a handful of terror suspects is justified by the need to unbalance and unravel the terror networks here. But our surest defence is the very nature of our society. Organisations such as al-Qa'ida and JI fear Australia because they know ordinary Muslims, like people of all beliefs, will always embrace a society where they can prosper and practice their faith in peace – which will inevitably take them from the path of ascetic fundamentalism. Terrorism expert Rohan Gunaratna makes the point when he says JI operatives based in Australia have opposed their leaders' demands to mount local attacks because they like living here and prefer not to leave. More important, the Muslim community of Dee Why rejected the appeals of the JI interlopers. That these ordinary Australians rejected the apostles of hate is the best defence we have against the madness of JI and its allies". (Emphasis added)

The nature and course of the proceedings 6 Having regard to the date of the publication of the articles, the proceedings brought by the appellant were governed by the Defamation Act 1974 (the Act) and not the Defamation Act 2005. At a trial in March 2005 held pursuant to s 7A of the Act, a jury found that the matter complained of conveyed the following defamatory imputations of and concerning the appellant: (a) That he has raised money for the operations of Laskar Jihad, an organisation which does not worry about doing killings in pursuit of its political objectives; (b) That he is a supporter of terrorism. 7 On 18 May 2005 the respondent filed its Defence in which it pleaded in respect of the publication in each of the States and Territories of Australia that the matter complained of was published on an occasion of qualified privilege at common law and, in the case of the States of New South Wales, Queensland and Tasmania, that the matter complained of was published on an occasion attracting statutory qualified privilege. 8 In respect of all such defences, particulars of reasonableness were provided pursuant to Part 67 r 18(1)(b) of the Supreme Court Rules 1970 which included the assertion that the matter complained of was published by the respondent pursuant to a duty of a social and/or moral nature to readers with a legitimate and proper interest and/or an apparent interest in receiving the publication at common law in circumstances in which its conduct was reasonable by reason of, inter alia, the fact that the respondent honestly believed in the truth of the matter complained of. 9 The further hearing of the proceedings and, relevantly, the hearing of the issues raised by the respondent's defences on the one hand, and the assessment of damages on the other, was fixed for 26 June 2006. The matter was not reached on that day. However, at or about that time the respondent's legal representatives informed the appellant's legal representatives that the respondent would no longer be relying on any of the defences which it had pleaded and that, consequently, the further hearing would be limited to an assessment of the amount of damages to which the appellant was entitled. The respondent's position was confirmed at the commencement of the hearing before the primary judge on 5 February 2007. 10 The appellant's claim for damages included a claim for aggravated damages particulars of which, so far as is relevant, were that his damages had been increased by the respondent's failure to publish an apology. 11 At the hearing before the primary judge the only witnesses were the appellant and Dr David Millikan, a Minister of Religion, who was called on the appellant's behalf. Apart from tendering some correspondence, the respondent did not adduce any evidence.

The decision of the primary judge 12 The primary judge set out in some detail a summary of the oral evidence of the appellant and Dr Millikan. As to the former, he was born in Indonesia and arrived in Australia in September 1990 and had generally lived here ever since. He was married in 1993 and had two children. However, the appellant and his wife separated in December 2004 and divorced in 2006. 13 The appellant is a Muslim. After arriving in Australia he continued to practice his religion. He became an active member of a largely Indonesian Muslim community in Dee Why and attended the Dee Why Mosque (the Mosque). Between 1996 and 1998 he was an assistant to the Imam of that mosque. In 2001 he was elected secretary of the Mosque in which capacity he served from early 2002 to June 2005. He described his functions as secretary as follows: "As the secretary basically I am the leader in the community. I am involved in the wider community. It is not only for answering any letter coming from in or outside, but also I am involved in dealing with non-Muslim organisations wider than our community and also involved in announcing any announcement in Dee Why Mosque and also dealing with - like with any council or school or excursion or organising any activities in Dee Why." 14 On 12 October 2002 the bombings in Bali occurred in which 88 Australians were killed. Soon after the bombings there was significant publicity in the Australian media about Abu Bakar Bashir, a Muslim cleric alleged to have been complicit in the Bali bombings and who had visited the Mosque in 1993. Subsequent to the bombings, the Australian security organisation ASIO raided a number of homes of members of the Muslim community in Dee Why. The appellant's home was not raided. 15 After the Bali bombings the appellant participated in a number of events which were intended to counter the adverse publicity the Muslim community in Dee Why had received. One of those was a peaceful protest outside the Prime Minister's residence in Kirribilli which was reported in The Australian on 4 November 2002 in an article which included the following: "Romzi Ali, secretary of the Islamic Society of Manly and Warringah, called on Mr Howard to apologise for the raids. '(ASIO) don't have to come to our houses,' he said. 'We come here to talk to him and express that we have nothing to do with what happened outside Australia… we have nothing to do with terrorism at all". 16 The appellant first became aware of the articles on 11 June 2003 when the President of the Mosque telephoned him at his work. He then purchased a copy of the newspaper. After reading the articles he felt "angry" and "humiliated". He believed that the articles had caused "big damage on my reputation". His Honour observed (at [19]): "The [appellant] had been a spokesman for the Muslim community and had tried to build good relations with the wider community by engaging in the preceding months in the activities I have already mentioned." 17 When the appellant returned home on 11 June 2003 he did not take the newspaper with him or inform his wife about the articles. The following day his wife spoke to him about the matter. The appellant gave the following evidence in chief which was not the subject of cross-examination: "A. She told me that one of the neighbours came to her and told her that he heard my name being mentioned on the radio related to the matter I complain of and the radio said that I am a bad person, and I was so shocked and very angry that the matter that I complain of was being discussed on the radio and I said to her not to believe because she asked me whether the matter that I complain of is true or not. Q. Sorry, who asked you that? A. My wife, Nadra. You see she heard from other persons, not from myself, and I said to her not to believe what you heard from the neighbour or the newspaper because that's untrue. But since then, because I knew that she get upset with me because I didn't tell her in the first place, I knew that she didn't trust me anymore, like she lost her confidence with me. She lost her confidence with me. Q. Did anything happen in the relationship between you and your wife after that? A. Oh, yes. Since then I have quite many numbers argue with her because it has affected my relationship with her. When I get back home I don't want to discuss anything with her and she thought that I don't trust her any more, so for the ongoing relationship with her and with the kids it is big effect with me. Q. Did you at some time separate from your wife? A. That's right. Q. When was that? A. December 2004 she lodged a form for separation and separation still until now. Q. If you are upset, Mr Romzi, we can have a break. A. Sorry. Yes, December 2004 she lodged separation with me because I assume – I believe since the article was published she didn't trust me any more, like I was hiding something from her. And the separation to go on until goes to the court for divorce and it is granted on August last year, your Honour." 18 As we have observed, the appellant, although extensively cross-examined, was not challenged with respect to the evidence which we have recorded above. In particular, it was not suggested to him, as it was with respect to other aspects of his evidence, that he was exaggerating when referring to the impact of the articles, as he perceived it, upon the relationship with his wife. As we have noted, in December 2004 the appellant and his wife separated and their marriage was dissolved in August 2006. 19 After the publication of the articles the appellant continued for a time in the office of secretary of the Mosque but minimised his activities, especially in public. Thus he declined an invitation from Warringah Council to attend a citizenship ceremony. He stated in evidence that he: "cannot stand in front of people who might think that I am the person who has been mentioned in the article." 20 After the publication of the articles, the appellant stated that many people he had previously known stopped speaking to him in the street and he stopped speaking to the media because he did not know what they might write about him. Furthermore, he stopped wearing Muslim dress in public and wore it only inside the Mosque. He gave a number of examples of his reaction to the media attention given to Muslims in Australia and spoke to his wife about moving from Dee Why to a different suburb or even of returning to Indonesia. His wife informed him that she had overheard women in the Muslim community saying "she is the wife of the husband being talked about in the newspaper". 21 In fact in January 2004 the appellant and his wife moved to Mt Druitt although he continued acting as secretary of the Mosque until a new secretary was elected and took office in June 2005. 22 In March or April 2004 the appellant applied for a job with Pirelli Cable Company (Pirelli) and attended an interview. He said that the interview was running "smoothly" until he told the interviewer when asked what he did in his spare time, that he was involved in the Dee Why community as secretary, whereupon he: "saw the change on his face. Like, it was smooth. Just suddenly changed."

When the interview concluded he was told that he would be informed as to the result and, after waiting for two or three days, he called the interviewer and was informed that the job had been filled. When asked in chief whether he related the fact that he was not successful in obtaining the job to the articles, he responded, " I believe so ". 23 The appellant was cross-examined on this evidence in the following exchange: "Q. Has it ever occurred to you, and I don't mean to be rude about this, Mr Romzi, everybody in the community misses out on jobs sometimes, but did it ever occur to you they might have found someone better for the job than yourself and that was why you didn't get the job? A. Not in the first place because I was confident when I was at interview and the interviewer asked me few question and he is quite happy with my answer and he show me around the place and the job that I am going to get, and it only stopped after I mentioned to interviewer when he asked me what did I do in my spare time and I said I am active in Dee Why Mosque. Q. Did the possibility occur to you, Mr Romzi, that whatever the reason was, it was not because you were mentioned in an article in The Australian, something like 18 months before? A. It's different. That's what I believe since the article. Q. See, Mr Romzi, just have a think about the proposition that you are putting. If those people at Pirelli cable company remembered you in the article, why would they not have remembered you when you first turned up for the interview? A. I have no idea." 24 The appellant also gave evidence that when he departed Sydney Airport in October 2005 for Indonesia and on returning in June 2006, and on both departing to and arriving back from Indonesia in November 2006, his passport was taken from him and he was required to wait 15-20 minutes on each occasion before it was returned and he was, to use his words, given "clearance to leave the airport". On each of those occasions the appellant believed that there was a connection between the taking of his passport, the delay in returning it to him and his being cleared to leave the airport and the publication of the articles. This connection was reinforced in his mind by the fact that after he arrived in Australia in 1990 he had made a number of trips to and from Indonesia, including after the 11 September 2001 attacks in New York. At those times he had had no problems with his passport either when leaving for Indonesia or returning a week later. He was asked: "Q. Do you believe there is any connection between that problem, I think you used the word 'problem' and this article that you are suing on? A. That's what I believe." 25 The appellant was cross-examined on this evidence after agreeing that the incidents in question only took place after the Bali bombings. The following exchange took place: "Q. Were you trying to suggest to the court when giving that evidence that the reason that you were detained by immigration was because of this article? Is that what you were trying to say? A. That's what I believe. Q. Let's just look at that, shall we, Mr Romzi. Your mosque had played host in the early nineties to Abu Bakar Bashir, hadn't it? A. Yes. Q. And this detaining of you by immigration happened after the Bali bombing, didn't it? A. Yes. Q. And it happened after the ASIO raids, didn't it, your being detained by immigration happened after the ASIO raids in November 2002? A. Yes. Q. It has occurred to you, hasn't it, Mr Romzi, that there is a connection between the ASIO raids, the Bali bombing, the visit of Abu Bakar Bashir and your being detained by immigration. That connection has occurred to you, hasn't it? A. I never been raid by ASIO. Q. Can I suggest to you, Mr Romzi, a much more likely reason for your being held up by immigration is your connection with your community which was the subject of ASIO raids after the Bali bombing? A. I don't think so. Q. Well, that is a much more likely reason, isn't it, Mr Romzi? A. I don't believe that. Q. You do believe that, don't you? A. It never happened before. Q. It never happened before the Bali bombing, did it? Q. It never happened before, even after 11 September." 26 At [37] his Honour observed that after publication of the articles the appellant had had ongoing mental and physical problems, lacked confidence in himself and believed that he was a bad person. 27 As we have said, the appellant claimed aggravated damages based on the respondent's failure to apologise. The appellant had not sought an apology. His evidence in chief with respect to this matter was as follows: "Q. Have you ever received from the defendant an apology for the publication of this article? A. No. Q. If you had received an apology, even last year after they dropped the defence, would that have meant anything to you? A. Yes. Q. What would it mean to you? A. It mean I knew in myself that they make mistake about myself so that's why they apologise to me. But they didn't do it." 28 The appellant was cross-examined with respect to this issue. The following exchanges took place: "Q. After the articles appeared, in the period immediately after the articles appeared, why didn't you ask the newspaper for an apology? A. Because I felt betrayal by the writer. Q. I am sorry? A. I feel like there is no understanding between me and the writer, the journalist. … Q. After you went and sought legal advice from a lawyer, after that period, after you had been to see the lawyer why didn't you ask for an apology then? A. Still I don't feel comfortable, I didn't feel comfortable with the newspaper. I'm worried what they are going to written about me in the future. … Q. Would it still make you feel better at all, would it make you feel any better to receive an apology from the newspaper? A. You mean when? Q. Now. A. Don't you think it's too late? Q. That's not an answer to my question, Mr Romzi. I am asking you whether it would make you feel any better at all? A. It would be different if when a long time ago when the first time it appeared. It's a bit different [now]. Q. How did you expect the newspaper back then to give you an apology if you didn't ask for one? A. Because there is no trust between me, no longer trust with me and journalists. Q. But you see you are complaining about not receiving an apology. You understand that. Part of your case is you didn't receive an apology from the newspaper? A. Yes. Q. And you may or may not understand this, but you are claiming also, Mr Romzi, additional damages from the newspaper because they have not apologised. Do you understand that? A. Yes. Q. Can I just ask you, how was the newspaper supposed to know that you wanted an apology if you never told them? A. I think it is a simple question. The simple answer is last year when there is a mistake, I knew at the close of the case for the first time, if there is an apology it is different. Now in my mind I knew there was a mistake from the newspaper which I believe since before, but still there is no like understanding from the newspaper, not realise it yet." 29 The appellant was cross-examined to the effect that the period after the Bali bombings had been "tumultuous", "unsettling" or "disturbing" for the Dee Why Muslim community. As the primary judge noted at [44], the appellant agreed that the situation was so bad that he felt that he had to make a public relations or media effort to try to correct misconceptions and misunderstandings that were out in the community as there was a perception that people in the wider community thought that the Dee Why congregation was associated with terrorism. 30 There were a number of unsettling events after the Bali bombings which caused the appellant a great deal of distress including an attack upon the Mosque in November 2002 when Muslim women had been insulted and school children bullied which, he said, were "absolutely devastating" to him personally. In April 2003 the concerns he had had in November 2002 were still continuing and he acknowledged that some of the stress and upset caused to him as a consequence of the publication of the articles was, in part, attributable to the events which had occurred after the Bali bombings. 31 However, as his Honour noted at [51], although the appellant accepted that he had felt increased hostility from the public between November 2002 and April 2003, he "could still manage that feeling". 32 The appellant was also cross-examined about his evidence to the effect that he thought that he was a bad person because of what had been published in the articles notwithstanding that he believed that what was published was incorrect. It was put to him in cross-examination, and he denied, that he had in his evidence exaggerated the effect of the articles on his feelings and on himself. The relevant exchange was as follows: "Q. But what I am suggesting to you is that in the evidence you have given you have resorted to exaggeration. You have exaggerated in your evidence the effect of this article on your feelings and the effect on yourself? A. Can I answer in different way. The article, the one mentioned my name in different articles, in different newspaper, it is always in the positive way. But since the article appears what I complain of, that's a negative way. So it has affected myself and my family. Before I get backup from my community because what I have done for them it is mentioned in the newspaper in a good way, in a positive way. But since the article, that's bring back myself because it has affected myself and I am a bad person. Q. Are you suggesting to the court that you think you are a bad person because of what you read in The Australian? Is that what you are saying? A. Yes. They blame me as supportive of the terrorism. Q. Are you saying to the court that you think you are a bad person because of what The Australian wrote about you? A. That's what The Australian think about myself. … Q. Are you telling the court that you now think you are a bad person because of what was in The Australian? A. Yes. Q. That's just not true, is it? A. That's what I feel. Q. Your position is that what was in The Australian is just rubbish, it is just wrong. That's what you think, isn't it? A. Yes, it's wrong. Q. And [it] served for you to go to court that you think you're a bad person because of what's in The Australian is just not true, is it? A. What I believe, that people will think that I'm indifferent, like, I'm a bad person."

This was the only occasion when it was directly suggested to the appellant that he was guilty of exaggeration. 33 His Honour then turned to Dr Millikan's evidence who he accepted as a witness who had come to court to tell the truth. Dr Millikan became good friends with the appellant, he being the Minister of the Uniting Church Parish at Dee Why since 2002 and having lived some 200m from the Mosque. He gave evidence in cross-examination that prior to the publication of the matter complained of the appellant's reputation amongst the whole community, and not just limited to Dee Why, was "impeccable". He was held in high regard, was respected and relied upon. It was clear that people trusted him. 34 Dr Millikan also gave evidence that upon publication of the articles the appellant appeared "frightened, very alarmed" by them. He attended Dr Millikan's house and was very shaken and spoke about taking his family and leaving Australia to return to Indonesia. Dr Millikan and his wife urged him not to take that course. He was, Dr Millikan said, "quite broken by the experience". He talked about being a little man, a man of no influence. He was frightened and since the publication of the articles, had become a changed man. He seemed to lack confidence and was not as pro-active as he had previously been. 35 After the publication of the articles, in face to face encounters and during telephone conversations and in casual meetings, members of Dr Millikan's parish had advised him that they were afraid of the contacts he was establishing with the Mosque. It was suggested to him by his parishioners, including a leading parishioner who, at the time, was Chairman of the Parish Council, that what had been stated in the articles may be true and that it was therefore dangerous for him to associate with people from the Mosque including the appellant. 36 In January/February 2003, prior to the publication of the articles, Dr Millikan had seen the appellant and his wife and observed the relationship between them. After their publication he had seen them together on three or four occasions, the first such occasion being in January/February 2004. He had observed what appeared to be a breakdown in their relationship. 37 In cross-examination Dr Millikan was challenged about the use of his word "impeccable" in describing the appellant's reputation. He explained what he meant in these terms: "…I would say impeccable means a reputation of the highest order, a reputation that has no stain against it, a person who is a person of good conscience, a person highly respected in the community". 38 He further agreed that the events flowing from the Bali bombings prior to the publication of the articles had been a traumatic experience for the appellant and that "he was deeply concerned about those matters but I saw no change in his personality or in his character". 39 As we have observed, his Honour (at [80]) concluded that he should accept Dr Millikan as a witness of truth. With respect to his assessment of the appellant, his Honour said (at [78]): "In his address counsel for the defendant did not challenge the plaintiff's evidence about primary facts but, it was submitted, I should find that the plaintiff had a tendency to exaggerate the effect of the publication of the articles on himself and a tendency too readily to assert that there had been a causal connection, or that the plaintiff believed that there had been a causal connection, between the publication of the articles and some subsequent event adverse to the plaintiff. I consider that there is some substance in these criticisms of the plaintiff's evidence. I will indicate the extent to which I consider that the criticisms are justified, when I review some particular subject matters later in this judgment." 40 The particular subject matters in respect of which his Honour accepted the criticisms of the appellant's evidence referred to in [78] of his judgment related, relevantly, to the appellant's assertion that the publication of the articles had contributed to the breakdown of his marriage, to his application for a position with Pirelli, and to his experiences at Sydney Airport when travelling to and from Indonesia. It is therefore appropriate at this point of the narrative to refer to the manner in which his Honour dealt with those matters. 41 With respect to the issue concerning the breakdown of the appellant's marriage, his Honour observed (at [110]) that his evidence with respect to that breakdown was "meagre" and that it was difficult to credit that the appellant's wife could have permanently lost confidence in him because he did not immediately tell her about the articles. According to the appellant's own evidence, he had assured his wife that the imputations were untrue. 42 Having then noted that the appellant's wife had not given evidence about the breakdown of the marriage to support the evidence of the appellant, but nonetheless declining to draw any Jones v Dunkel inference, his Honour's finding with respect to this matter was as follows (at [113]): "I do not consider that I should make a finding that I am satisfied that the breakdown of the plaintiff's marriage was caused by the publication of the defamatory imputations. Nor do I consider that I should make a finding that the plaintiff actually believed that the breakdown of the marriage was caused by the publication of the defamatory imputations or, if he did hold such a belief, that the belief was reasonably held by him." 43 With respect to the application for a position with Pirelli, his Honour dealt with this matter at [117]-[118]. In particular: "I do not accept that the plaintiff failed to obtain a position with the Pirelli Cable Company because of the publication of the defamatory imputations or that the plaintiff really believed that he failed to obtain a position because of the publication of the imputations." 44 His Honour dealt with the appellant's experiences at Sydney Airport in the following three paragraphs: "119 I consider that a much more likely reason for the plaintiff being held up by the Immigration Authorities at Sydney Airport would have been his connection with the Muslim community at Dee Why, which had been the subject of ASIO raids after the Bali bombings. 120 The plaintiff gave evidence that he had had no problems on an occasion when he had been at the airport after the destruction of the World Trade Centre in New York on 11 September 2001. However, this occasion, while it was after 11 September 2001, was still in the year 2001 and was, accordingly, before the Bali bombings in 2002. 121 I do not consider that I should find that the plaintiff was held up at Sydney Airport because of the publication of the defamatory imputations. Nor do I consider that I should find that the plaintiff actually believed that his being held up at the airport was caused by the publication of the defamatory imputations or, if he did hold such a belief, that the belief was reasonably held by him." 45 The appellant does not challenge his Honour's findings that he was not satisfied that the breakdown of the plaintiff's marriage, his failure to obtain employment with Pirelli and the reason he was held up at Sydney Airport were each caused by the publication of the defamatory imputations. However, the appellant does challenge the primary judge's finding that he did not accept that he (the appellant) actually or really believed that the breakdown of his marriage, his failure to obtain the Pirelli position or his being held up at the airport were caused by the publication and his further finding that if the appellant did hold such beliefs, they were not reasonably held. We shall return to these matters below. 46 At [81]-[86] of his judgment, the primary judge set out the principles relating to the assessment of damages in a defamation case, referring to ss 46 and 46A of the Act as well as to the decisions of the High Court in Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 60-61, 69-71 and 104-105 and Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 at 347-354, 368-371 and 380-387. His Honour further noted that he had been referred to a number of awards of damages in other defamation cases but that it was common ground that such awards were of limited, if any, assistance. 47 His Honour then dealt with the following issues. First, under the heading "The Degree of Seriousness of the Imputations", he noted the submission on behalf of the appellant that the imputations found by the jury were in the very worst category of imputations as it had been conveyed that the appellant was a supporter of terrorism, that is, a person supporting the indiscriminate slaughter of innocent persons. The imputations further conveyed, so it was submitted, that the appellant had raised money for the organisation Laskar Jihad which murdered people in pursuit of political objectives. It was submitted that the imputations were such as to arouse fear and loathing of the appellant in persons who read the articles. 48 His Honour then noted the submissions on behalf of the respondent which asserted that the very worst category of imputation would have been one which imputed that the appellant had himself directly engaged in terrorist acts and that imputations to the effect that a plaintiff had raped and murdered a child would fall into a far worse category than the imputations in the present case. At [90] his Honour concluded that the imputations found by the jury should be regarded as "serious imputations" and that counsel for the appellant had somewhat overstated their seriousness. 49 We should say at this point that we have significant reservations about this finding. We accept that the imputations may not have been in the "the very worst category" as counsel for the appellant had contended. However they were more than just serious. As we have said, the appellant had been at the heart of attempts to restore the Australian public's confidence in the Muslim community, particularly that community of which he was a part at the Mosque. He had acquired a public profile asserting that the members of the Mosque were not and should not be perceived to be linked to terrorist activities. The imputations struck at the heart of the public position he had taken. Prior to the publication of the articles, the respondent had reported the appellant's assertions that he, and his community, had "nothing to do with terrorism at all". By publishing the imputations, the respondent depicted him both as a supporter of terrorism and as one who raised money for an organisation which was insouciant about killing innocent people to pursue its political objectives. Members of the local community who had hitherto welcomed his efforts to build bridges with the Muslim community shunned and avoided him, and encouraged others to do likewise. He withdrew from his public activities and moved away from the community in which he had been so closely involved. The primary judge accepted (at [102]) the submission that the appellant's "whole world had been turned up-side down". In our view that was an accurate reflection of the evidence and captured the gravity of the imputations. We accept that it is impossible to rigidly define degrees of seriousness. However, in our view the imputations the jury found were conveyed were of a high degree of gravity, to which, with respect, his Honour's description "serious imputations" did not do justice.

50 Of relevance to the foregoing is the second issue which his Honour dealt with under the heading "The Climate in which the defamatory imputations were published". He referred (at [91]) to a series of other articles published in The Australian newspaper between 16 May 2003 and 11 June 2003 which were admitted into evidence and which related to the subject of terrorism generally and, more particularly, terrorism affecting Australia. In some of these articles the suburb of Dee Why had been mentioned by name as had the appellant. 51 His Honour concluded (at [94]) that he should accept the appellant's submission that regular readers of The Australian newspaper would have been, to some degree, more likely to have noticed, read, remembered and reacted to the articles published on 11 June 2003 by reason of their having read earlier articles containing references to terrorism, Dee Why and the appellant. 52 The third issue was dealt with by the primary judge under the heading "Features of the publication of the defamatory imputations". He noted the following reference in the first article at the top of the front page of the newspaper under the bold heading "Second Airport Terror Link"; the fact that the appellant was identified in that article by both his name and his position as secretary of the Mosque; that he was described as having raised money for Laskar Jihad which was described as being thought to be responsible for the deaths of thousands of Christians and believed to have links with other terrorist organisations. He also noted that the Muslim community in Dee Why was referred to in the editorial article. 53 The respondent submitted that the first article was not principally about the appellant but about another man, a Mr Darmince. It submitted that the appellant was mentioned virtually in passing in the final column of the article and then only in that part which we have emphasised. It was likely, so it was submitted, that readers of the article would notice and recall something of what was said about Mr Darmince rather than the appellant. The second article did not mention or refer to the appellant, whereas the editorial referred to the organisation Jemaah Islamiah, but did not refer to Laskar Jihad. 54 Although his Honour did not deal specifically with these submissions of the respondent, we would consider that reasonable readers of the first article would, if anything, have associated the reference to the appellant with the activities of Mr Darmince as both were said to be raising money for a terrorist organisation. In other words, to adopt the vernacular, both were tarred with the same brush. 55 It is also to be noted that those parts of the second article which we have emphasised are in part directed at the Dee Why Muslim community. Although it states that that community rejected the appeals of the JI "Apostles of Hate", when read in the same newspaper as the first article and its specific reference to the appellant, it would be reasonable to infer that readers would not have associated the appellant with those members of the Muslim community at Dee Why who had rejected terrorism. As his Honour later found, the true position was that the appellant was a leading member of the Dee Why Muslim community who had publicly gone out of his way to reject terrorism. 56 His Honour then referred to that part of the first article which stated as follows: "Mr Ali denies he ever helped raise money for Laskar Jihad and says he only helped to collect funds for hospitals and orphans – Christian or Muslim."

His Honour noted that this denial had been expressly pleaded by the respondent in its defence as a matter mitigating damages. 57 The primary judge then said (at [98]): "In his evidence the plaintiff denied that the inclusion in the article of the denial had made him feel any better about the publication of the articles. I do not consider that I should accept the plaintiff's evidence that the immediate publication in the article itself of a denial by him did not in any way alleviate his distress."

58 The foregoing finding was the subject of challenge on the basis that his Honour did not provide any reasons for coming to that conclusion unless he was relying upon what he had said in [78] which we have recorded at [39] above. It is convenient to set out the relevant evidence on which his Honour's finding was founded: "Q. And you are pleased that they published you saying that you denied doing that and that you were collecting money for hospitals and orphans? A. Yes, say that I was collecting money for orphans, yes. Q. You were pleased to see that part of it in the newspaper? A. But that's mixed with others. Q. But you were still pleased to see that part of it in the newspaper, weren't you? A. Sorry, get mixed with my understanding. Q. When you read the paragraph that says 'Mr Ali denies he ever helped raise money for Laskar Jihad and says he only helped collect funds for hospitals and orphans, Christian or Muslim', when you read that you were pleased to see that, weren't you? A. Yes. Q. And that part of it, your denial, is accurately recorded, isn't it? A. Yes. Q. That must have made you feel better when you read that the newspaper had accurately reported your denial? A. No. Q. You would have felt worse if the newspaper had not reported your denial, wouldn't you? A. Not really, because if they don't put in the first place there won't be a problem." 59 Upon the assumption that his Honour's reasons for the finding was that he considered that the appellant was indulging in exaggeration when he gave the evidence referred to, such a finding of exaggeration with respect to the matter in question is not self-evident from the appellant's responses to the cross-examiner's questions. In fact the contrary is the case. As the appellant submitted, on one view the publication of the denial merely reinforced the credibility of the accusation contained in the immediately preceding paragraph of the article. And, as the appellant's last answer inferred, validly, in our view, had the respondent accepted his denial as true, it should not have published the accusation at all. His Honour accepted (at [99]) that the inclusion of the denial in the article would have caused "at least some readers" to have doubts, or to suspend judgment, about the truth of the allegations drawing that inference, no doubt, from the appellant's evidence. 60 His Honour also considered (at [99]) that there was force in the appellant's submission that many readers would have considered that the newspaper would not be likely to have published the imputations against the appellant, even though he denied them, unless it believed them to be true or would have considered that the denial attributed to the appellant was merely what one would have expected the appellant to say and should not be given any credence. 61 In our opinion there is a tension between his Honour's findings at [99] to which we have referred, and his non-acceptance of the appellant's evidence that the publication of the denial did not "in any way alleviate his distress". That tension should be resolved in favour of the appellant. 62 The fourth matter considered by his Honour was under the heading "Effect of the Publication of the Defamatory Imputations on the plaintiff". At [100] he accepted the appellant's evidence that he felt angry and humiliated when he read the articles, that he felt shocked when his wife spoke to him about what a neighbour had told her, that he had thought of leaving Dee Why or leaving Australia altogether, that he had suffered a loss of confidence and had reduced his activities at the Mosque and that he felt isolated in his place of work. His Honour also accepted (at [101]) Dr Millikan's evidence that after the publication of the articles, the appellant appeared frightened, alarmed, shaken and broken and that he was thinking of leaving Australia. 63 Of significance is the following finding of his Honour (at [102]): "I accept the submission by counsel for the plaintiff that the plaintiff's distress was increased by the following circumstances. After the Bali bombings publicity had been given in the media to the connection between Abu Bakar Bashir and the Muslim community in Dee Why and its Mosque. The plaintiff had then taken a leading role on behalf of his community in disowning violence and in seeking to establish good relations with the wider community, by such means as participating in the protest outside the Prime Minister's residence, the picnic at Dee Why beach, the open day at the Mosque, the school excursions to the Mosque, the media conference and the citizenship ceremony at Warringah Council. However, after the plaintiff had taken all these steps, the plaintiff had then been condemned in the articles as having himself been a supporter of terrorism. As counsel for the plaintiff expressed it, the plaintiff's 'whole world had been turned up-side down '." (Emphasis added) 64 His Honour next referred (at [104]) to the concession by the appellant in cross-examination that part of the stress and upset that he suffered after the publication of the articles was due to earlier events related to the Bali bombings and their sequelae. He then made the following finding (at [105]): "I find that the plaintiff was already distressed and upset at the time of the publication of the articles and that some part of the distress and upset he experienced after the publication of the articles should be attributed to the earlier events. However, I accept Dr Millikan's evidence that, although the earlier events had been traumatic for the plaintiff and the plaintiff had been deeply concerned by them, Dr Millikan had not seen any change in the plaintiff's personality as a result of those events. I also accept the plaintiff's evidence that, although he had experienced increased hostility from the general public from November 2002 onwards, he had managed to withstand that hostility. Although the earlier events had been distressing for the plaintiff, those events had not reflected on him personally." 65 Finally, under the heading "Loss of reputation", his Honour (at [122]) accepted Dr Millikan's evidence that before the publication of the articles the appellant was a person of high repute. At [123] he also accepted Dr Millikan's evidence about his conversations with senior parishioners which indicated damage to the appellant's reputation as a result of the publication of the imputations. 66 The primary judge then turned to the question of aggravated damages founded on the respondent's failure to apologise. It was common ground between the parties that aggravated damages may be awarded if the conduct of the respondent increased the appellant's damage and demonstrated a lack of bona fides, or was improper or unjustifiable: Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 at 514. His Honour noted (at [129]) that if a court finds that aggravated damages should be awarded it should give effect to that finding by making an award of damages towards the upper limit of the wide range of amounts of damages which might conceivably be awarded to the particular plaintiff. 67 Although no request was ever made by the appellant for an apology his Honour acknowledged (at [131]) that aggravated damages may be awarded for a failure to apologise even though there has been no request by the defamed person for such an apology, provided otherwise that one or other of the criterion referred to in Triggell is satisfied. 68 It had been submitted on behalf of the appellant that it was unjustifiable conduct for the respondent, at least from June 2006, not to have apologised after it was found that the matter complained of conveyed the defamatory imputations alleged and the respondent had conceded that it had no defence to the appellant's claim. His Honour rejected this submission saying (at [133]): "I am not, however, persuaded that the [appellant] has established that the [respondent's] conduct in not apologising, in the circumstances of this case, satisfies the criterion in Triggell v Pheeney . However, I will take into account that there was no apology, as being relevant to general compensatory damages. See Clark v Ainsworth (1996) 40 NSWLR 463." 69 In conclusion his Honour (at [143]) noted that an award of damages in defamation cases is "at large" and that the determination of the amount of damages is a matter of impression and not addition. Having confirmed that in assessing the appellant's damage he had endeavoured to take into account all of the findings he had made, he determined to award the appellant damages in the sum of $125,000. His Honour did not formally award interest on that sum. Subsequently consent orders were filed pursuant to which the respondent was to pay interest of $16,966 from the date of publication to the date of judgment and thereafter at a daily rate until judgment was entered.

The relevant legal principles

(a) Damages in defamation 70 Damages awarded for defamation serve three purposes: consolation for the personal distress and hurt caused to the plaintiff by the publication, reparation for the harm done to the plaintiff's personal and (if relevant) business reputation and vindication of the plaintiff's reputation: Carson at 60 per Mason CJ, Deane, Dawson and Gaudron JJ; Rogers at 347 [60] per Hayne J, Gleeson CJ and Gummow J agreeing. These purposes "overlap considerably in reality and ensure that 'the amount of a verdict is the product of a mixture of inextricable considerations'": ibid. As Mason CJ, Deane, Dawson and Gaudron JJ said in Carson (at 60-61, footnotes omitted): "The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. 'The gravity of the libel, the social standing of the parties and the availability of alternative remedies' are all relevant to assessing the quantum of damages necessary to vindicate the appellant." 71 In Carson Brennan J observed (at 70-71, footnotes omitted): " In McCarey v Associated Newspapers Ltd [No 2] , Diplock LJ said: 'The injuries that [a plaintiff] sustains may be classified under two heads: (1) the consequences of the attitude adopted towards him by other persons as a result of the diminution of the esteem in which they hold him because of the defamatory statement; and (2) the grief or annoyance caused by the defamatory statement to the plaintiff himself. It is damages under this second head which may be aggravated by the manner in which or the motives with which the statement was made or persisted in.' The consequences of publication include not only the insult publicly inflicted on the plaintiff but also the effect of the defamation on those to whom it is published, any diminution in the regard in which the plaintiff is held by others, any isolation produced (causing the plaintiff to be 'shunned or avoided' is the traditional formula) and any conduct adverse to the plaintiff engaged in by others because of the publication of the defamatory matter. Damages are awarded also for the plaintiff's injured feelings including the hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt by the plaintiff. Indeed, all those objective consequences and those subjective reactions which flow naturally from the publication of the defamatory matter are relevant factors. Of course, the subjective reactions are often produced by the objective consequences of the publication. The two categories are not cumulative heads of damage but descriptions of kinds of intangible factors which must be taken into account in assessing damages." 72 The harm caused to the plaintiff by the publication of the defamation often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. Thus "[a] solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the [general compensatory] damages": Cassell & Co Ltd v Broome [1972] AC 1027 at 1124 per Lord Diplock. 73 A person who is defamed receives damages because he or she has been injured in his or her reputation; that is, because he or she was publicly defamed. Damages in a defamation action vindicate the plaintiff to the public, and are consolation for a wrong done: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 150 per Windeyer J.

74 The damages awarded in a defamation action have to be regarded as demonstrating that the plaintiff has been vindicated in his or her reputation: Dingle v Associated Newspapers Ltd [1964] AC 371 at 396 per Lord Radcliffe; Carson at 69 per Brennan J. The level of damages should reflect the high value the law places upon reputation and, in particular, upon the reputation of those whose work and life depend upon their honesty, integrity and judgment: Crampton v Nugawela (1996) 41 NSWLR 176 at 195; applied in John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291 at [3] per Giles JA, Ipp JA agreeing. 75 The harm done by the defamatory publication for which general compensatory damages are recoverable, does not come to an end when the publication is made: Cassell at 1124 per Lord Diplock. "It is impossible to track the scandal, to know what quarters the poison may reach": Ley v Hamilton (1935) 153 LT 384 at 386 per Lord Atkin. Accordingly, the damages awarded for defamation must be such that "in case the libel, driven underground, emerges from its lurking place at some future date, [the plaintiff] must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge": Cassell at 1071 per Lord Hailsham of St Marylebone LC. Mahoney ACJ referred to this statement with approval in Crampton at 193, holding (at 194 – 195) that "[t]he award must be sufficient to ensure that, the defamation having spread along the 'grapevine'… and being apt to emerge 'from its lurking place at some future date', it was 'sufficient to convince a bystander of the baselessness of the charge' "; see also Carson at 70.

76 In assessing damages the tribunal of fact is entitled to take into consideration "the mode and extent of the publication, that the defamatory statement was never retracted, that no apology was ever offered to the respondent, and that the statement had been persisted in to the end". Such circumstances might in the opinion of that tribunal "increase the area of publication and the effect of the libel on those who had read it or who would thereafter read it, might extend its vitality and capability of causing injury to the plaintiff": Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 263 per Knox CJ, Gavan and Starke JJ. The assessment of damages involves an understanding of the nature and seriousness of the imputations and the defendants' conduct: see Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 at 241. 77 Finally under these general observations, we would observe that the defendant must take the plaintiff as it finds him or her: Humphries v TWT Ltd (1993) 113 FLR 402 at 418 - 419 per Miles CJ; Bashford v Information Australia [2000] NSWSC 665 at [42] per Davies AJ. 78 Humphries was reversed on appeal, but on the point that the damages Miles CJ awarded were inadequate: Humphries v TWT Ltd (1993) 120 ALR 693. The Court (Gallop, Davies and von Doussa JJ) implicitly approved (at 706) Miles CJ's statement that the particular sensitivities of the plaintiff were relevant to the award of damages. They concluded (at 706) that "the award made by the trial judge was so low that it failed to provide compensation appropriate to the injury to the appellant's feelings as found by him, and failed to provide a sum that, even in conjunction with the correction and apology, was sufficient to nail the falsity of the imputations".

(b) Aggravated damages 79 An award of aggravated damages may be made if the defendant has acted in a manner which demonstrates a lack of bona fides or in a manner which is improper or unjustifiable: Triggell at 514 per Dixon, Williams, Webb and Kitto JJ; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 497 per Hunt J. Conduct which demonstrates those characteristics will be such as will increase the harm which the publication of the libel has caused or may be supposed to have caused: Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653 per Samuels JA.

80 Aggravated compensatory damages are usually awarded only in relation to the injury to the plaintiff's feelings but are not necessarily so limited, and there may be conduct which also has the effect of increasing the injury to the plaintiff's reputation: Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75 per Hunt J.

81 We have earlier referred to the High Court's observations in Herald & Weekly Times Ltd v McGregor that in assessing damages the relevant tribunal can take into account the fact that no apology was ever offered to the plaintiff: see also McDonald v Coles Myer Ltd (t/as K-Mart Chatswood) (1995) Aust Torts Reports ¶81-361 at 62,686 – 62,687 per Clarke JA.

82 Despite doubts expressed in Carson (at 66) about how the mere absence of an apology could aggravate damages, this Court has held that damages can be awarded for such a failure: Clark v Ainsworth (1996) 40 NSWLR 463 at 468 per Sheller JA, Simos AJA agreeing. By failing to publish any retraction or apology, the defendant is seen to be continuing to assert the imputations found to have been published: Carson at 78 per Brennan J. Damages for failure to apologise can be awarded both as part of general compensatory damages, the rationale being that the harm from the original publication may be prolonged and intensified by the absence of an apology, or as aggravating compensatory damages: Clark at 466 per Sheller JA. 83 Such a failure can be taken into account in awarding aggravated damages, even if the plaintiff sought no apology, as long as the failure satisfied one of the three criteria for such an award. In Fitzpatrick, the Court held that aggravated damages should be awarded for the defendant's failure to publish an unsolicited apology in circumstances where "the defamatory matter was totally without foundation, and this the appellant must have ascertained very soon after the respondent's solicitors first wrote complaining of the publications": at 659 - 660 per Samuels JA, Hutley and Priestley JJA agreeing.

84 In awarding aggravated damages, the court remains restricted to compensating the plaintiff for the loss actually suffered by him or her as the result of the defamation but, in assessing those damages, it may adopt the highest level of damages open as compensatory damages: Cassell at 1085 per Lord Reid; see also Lord Hailsham at 1073 and Lord Diplock at 1124. 85 A defendant's conduct right up to the moment of verdict is relevant to aggravated damages: Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 at 103 [287] per Callinan J.

(c) Appellate review of an award of defamation damages

86 Such an award should not be disturbed unless the amount is such that no reasonable jury could have awarded it: Triggell at 516; Carson at 61. In the case of a jury award, appellants have to prove that the jury probably got it wrong, not just possibly got it wrong. It must be possible to identify the impermissible error. A jury's verdict is not to be set aside on a conjectural basis but, rather, on the probabilities. 87 However, if an appellate court is convinced, not that in its own view the amount awarded is too high or too low, but that the amount awarded is so high or so low that it is outside the range of what could reasonably be regarded as appropriate to the circumstances of the case, it should intervene to prevent a miscarriage of justice: Carson at 61 – 62 per Mason CJ, Deane, Dawson and Gaudron JJ. 88 In the present context it is appropriate to cite the following passages from the judgment of Hayne J in Rogers at 348-349 (omitting footnotes): "62. A contention that an award of damages is manifestly excessive invokes the last of the bases for appellate review of an exercise of discretion identified in House v The King . If manifest excess is alleged, it is not said that a specific error of principle or fact can be identified. Rather, the contention that damages are manifestly excessive alleges that the result at which the primary judge arrived is evidently wrong and that, although the nature of the error made may not be discoverable, there must have been a failure to properly exercise the discretion in fixing the amount to be awarded. 63. This method of reasoning necessarily assumes that there is a standard against which excess can be judged. Identification of that standard does not require precise specification of the range of results within which a proper exercise of discretion might be bounded. It will usually be impossible to set such bounds precisely. Nonetheless, the standard must be capable of identification with sufficient precision to say whether a particular result clearly departs from it. 64. It is important to emphasise, however, that the task of an appellate court asked to set aside an award of damages as manifestly excessive is not simply mathematical. The appellate court does not begin by identifying the damages which it would have allowed and then, applying some margin for difference of view, observe the mathematical relationship between the award made and the figure it would have awarded. Rather, the question for the appellate court is whether the result at which the trial judge arrived bespeaks error. What must be identified is manifest excess, not just excess. 65. When trial by jury was common and damages for defamation were assessed by a jury, it was said that damages for defamation ' cannot be measured by any standard known to the law '. It was often said that the damages were ' at large '. Even so, the verdict of a jury was not immune from appellate review. In Triggell v Pheeney , it was held that the determinative question on appeal was whether ' the amount [was] such that no reasonable body of men could have awarded it '. The similarity between that test and the last of the bases for appellate review identified in House v The King is evident. But as Windeyer J demonstrated in Australian Iron and Steel Ltd v Greenwood , there are relevant differences between appellate review of jury verdicts and appellate review of judicial assessments of damages. It is not necessary to examine those differences. 66. In searching for the standard against which manifest excess of an award of damages for defamation can be judged, account must be taken of three basic propositions. First, damage to reputation is not a commodity having a market value. Reputation and money are in that sense incommensurable. Secondly, comparisons between awards for defamation are difficult. Every defamation, and every award of damages for defamation, is necessarily unique. Thirdly, because the available remedy is damages, courts can and must have regard to what is allowed as damages for other kinds of non-pecuniary injury." 89 The question as to whether the amount awarded to the plaintiff in a defamation action is enough to serve as a solatium, vindication and compensation can only be solved by an exercise of a discretionary judgment. An appellate court may interfere with an award of damages for defamation if it appears that the trial judge proceeded upon a wrong principle in fixing the amount of damages, or if the court can infer from the amount adopted by the trial judge, or otherwise, that in some way the discretion to award damages must have miscarried. As noted above, the court cannot interfere merely because it considers that it would itself have fixed some other amount: Smiths Newspapers Ltd v Becker [1932] HCA 39; (1932) 47 CLR 279 at 300 per Dixon J; Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362 at 369 per Gibbs J; see also Rogers at [62] per Hayne J.

(d) Comparison with other verdicts 90 The appellant drew the Court's attention to a number of defamation cases for the purpose of his submission that the damages awarded were manifestly inadequate. The respondent did not, at first, draw the Court's attention to verdicts in any other cases, contenting itself with the submission that the figures the appellant drew to the Court's attention were of no assistance. 91 As noted at [6] above, this case is governed by the now repealed Defamation Act 1974. Section 46A of that Act provided: "46A Factors relevant in damages assessment (1) In determining the amount of damages to be awarded in any proceedings for defamation, the court is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded. (2) In determining the amount of damages for non-economic loss to be awarded in any proceedings for defamation, the court is to take into consideration the general range of damages for non-economic loss in personal injury awards in the State (including awards made under, or in accordance with, any statute regulating the award of any such damages)."

92 When this provision was drawn to the parties' attention, the respondent pointed to some figures it had drawn to the primary judge's attention purporting to be representative of awards of damages in some personal injury cases under various statutory regimes. It was not apparent whether those awards were contemporaneous with the time the primary judge was considering this issue. 93 The exercise in which the Court engages in order to comply with its s 46A obligation was considered in Moit v Bristow [2005] NSWCA 322 at [111] ff per McColl JA, Beazley JA and Campbell AJA agreeing, in the context of Hayne J's statement in Rogers at [69] and [73] that the damages awarded for defamation should reflect the effect the particular defamation has had on the individual plaintiff. His Honour said (at [74]) that s 46A draws attention to the fact that "damages awarded for defamation must take their proper place in the administration of justice…[and] must stand in a proper relationship with awards for the non-economic consequences of personal injury". However, he accepted (at [74]) that: "[t]he relationship which s 46A(2) identifies is not, however, some precise or mathematical relationship between particular cases of defamation and personal injury or between particular classes of such cases. To do that would compare the incomparable." 94 In Moit, McColl JA concluded: "122 …Section 46A(1) requires the Court to ensure there is an 'appropriate and rational relationship between the relevant harm and the amount of damages awarded'. 'Relevant harm' as defined in s 46A(1)(a) means the harm suffered by the person defamed. As a part of that exercise s 46A(2) also requires the Court to take into consideration the general range of damages for non-economic loss in personal injury awards in the State as I have sought to explain.

123 However, as Rogers v Nationwide News Pty Limited makes plain, the statutory limits imposed by legislation such as the Motor Accidents Compensation Act or the Civil Liability Act neither impose a limit on the amount to be allowed (Hayne J) and may be of limited utility, albeit that they are taken into consideration (Heydon J)."

The appellant's grounds of appeal 95 With minor alterations and renumbering, the appellant's grounds of appeal were as follows: 1. His Honour erred in failing to give reasons for his findings not to accept: (a) the appellant's evidence that publication in the first article of a denial by him did not alleviate his distress;

(b) the appellant's evidence that the publication had caused the breakdown of his marriage, that he believed that the breakdown of his marriage was caused by the publication, nor if he did, that such belief was reasonably held;

(c) the appellant's evidence that he believed that he had failed to obtain a position with the Pirelli as a result of the publication;

(d) the appellant's evidence that he believed that his being held up at Sydney Airport was caused by the publication, nor if he did, that such belief was reasonably held.

2. His Honour erred in failing to give reasons for his finding that the respondent's failure to apologise was not a matter of aggravation.

3. The award of damages was manifestly inadequate.

Ground 1(a) 96 In our opinion this ground should be upheld not so much because his Honour failed to give reasons for his finding given his apparent reliance on what he had said in [78] of his judgment (see [39] above), but because, for the reasons to which we have already adverted at [57] to [61] above, his Honour erred in reaching his conclusion.

Ground 1(b), (c) and (d) 97 These grounds can be dealt with together as they generally raise the same issues. At [107] of his judgment the primary judge made the following observations with respect to the appellant's submission that his belief in relation to the matters the subject of these grounds could be taken into account in assessing his compensatory damages: "It is clear that a court in assessing damages for defamation can take into account, as relevant to the plaintiff's hurt and distress or to the harm done to the plaintiff's reputation or to both matters, an adverse consequence for the plaintiff, which the court is satisfied was in fact causally connected with the publication of the defamatory matter. However, in the present case it was submitted by counsel for the plaintiff that a court can also take into account, at least as relevant to the plaintiff's hurt and distress, a belief on the part of the plaintiff that an event adverse to him was caused by the publication of the defamatory matter, even if the court is not satisfied that the event was in fact caused by the publication of the defamatory matter, provided that the plaintiff's belief was genuinely and reasonably held by him. …" 98 In its supplementary submissions with respect to the issues raised by these grounds the respondent noted that in Rogers at 347-348 [60] the High Court had cited with approval the three purposes to be served by an award of damages for defamation referred to in the joint reasons in Carson (at 60) including "consolation for the personal distress and hurt caused to the appellant by the publication". Accepting that the break-up of his marriage, his failure to obtain the position at Pirelli and his detention at Sydney Airport caused him varying, although probably not equal, degrees of distress, the question was whether that distress was caused by the publication. 99 In the present case, so it was submitted, there being no direct evidence or evidence from which there was an available inference that the events in question were actually caused by the publication, the appellant was driven back to his belief in a causal connection between the distressing events and the publication. However, it was submitted that it was important to appreciate the reasons for his distress: the direct cause of that distress was his marriage break-up, the failure to secure the position and his detention at the Airport. Whilst the appellant said he believed there was a connection between those incidents and the publication, it was not his evidence that he believed that those incidents caused his distress. The cause of the hurt was plainly the incidents themselves, and not his belief that they were caused by the publication. 100 Accordingly, although the appellant was entitled to be compensated for hurt flowing from events caused by the publications, he was not entitled to be compensated for hurt flowing from events not so caused. In particular, he was not entitled to be compensated for a belief in a causal connection between an incident and a publication where that belief was not the source of the hurt or distress. 101 Alternatively, it was submitted that even if the Court found on the evidence that the appellant was specifically hurt by his belief in the connection between the publications and the incidents, no damages should be awarded for hurt feelings which were not a natural and probable consequence of the tortious act of the respondent. Hurt caused not by the events in question but by a belief that the respondent caused the events was not damage that could be so described. So much was implicit in the requirement of s 46A(1) of the Act that the Court was to ensure that: "there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded". 102 Of course, in significant respects the assessment of damages has to take account of the subjective response of the appellant: Rogers at 354 [81]. Nevertheless, the respondent submitted that it does not follow that objective considerations having nothing to do with the degree of the appellant's hurt feelings are irrelevant. Thus s 46A(2) of the Act requires the Court to take into consideration the general range of damages for non-economic loss and personal injury awards thus setting "a presumptive outer limit to awards for defamation": Rogers at 353 [76]. An extravagant degree of distress on the part of the appellant, even if proved to the satisfaction of the Court, would not displace its obligation to make an assessment of what ought to be awarded having regard to the general range of verdicts for non-economic loss in personal injury cases. 103 In response the appellant submitted that what was really at issue was the genuineness of the appellant's belief rather than its cause. If his belief was genuine then its cause was established. Such a belief could not have escaped causing him hurt and distress. 104 It was further submitted that the appellant's belief and the causal connection between the occurrence of the distressing event and the publication was itself a state of mind created by the respondent's publication and the environment in which it was published. The publication was unlimited in that it was to the public at large, and it was published in a climate of fear and suspicion directly related to the Bali bombings and Islamic terrorism directed at Western democracies. In these circumstances, so it was submitted, it is not so difficult to appreciate that such a state of mind or belief would indeed be the natural or probable consequence for a Muslim community leader accused of raising money for a terrorist organisation in Indonesia. 105 Finally, the appellant submitted that there was a clear distinction between hurt feelings caused by an event and hurt feelings caused by a belief that the event was precipitated by a defamatory publication, especially one so widespread and prominent as in the present case. The latter contains elements of humiliation and carelessness that are not found in the former. They are distinctly different types of "hurt". To be rejected at a job interview is a disappointment that could be remedied by the applicant making improvements in interview technique or some such, whereas a rejection caused by a defamatory publication is beyond the applicant's control and sounds in humiliation and outrage at the injustice of the result where otherwise there was a reasonable expectation of the applicant being successful. 106 The primary judge found in respect of each of the events in question that the appellant did not actually believe that those events were caused by the publication of the defamatory imputations. Unless that finding can be set aside the appellant will fail in limine with respect to the three grounds under consideration. 107 At this point it is necessary to note that there is a difference between Ground 1(b) on the one hand and Ground 1(c) and (d) on the other. Whereas the appellant was cross-examined with respect to the latter, he was not challenged with respect to his evidence as to his belief with respect to the cause of the breakdown of his marriage. 108 Although his Honour found (at [110]) that it was difficult to credit that the appellant's wife could have permanently lost confidence in him because he did not immediately tell her about the articles, nevertheless his unchallenged evidence was that he believed that she had lost confidence in him, that she considered that he did not trust her any longer and that he was hiding something from her. There is no doubt, if the appellant's evidence on this issue is accepted, that he associated that lack of confidence and trust with the publication of the defamatory matter. 109 The only possibility that can be advanced as a reason for the primary judge's finding that the appellant did not actually believe that the breakdown of his marriage was caused by the publication of the defamatory imputations was his acceptance (at [78]) that there was "some substance" in the respondent's submission that the appellant had a tendency too readily to assert that he believed that there was a causal connection between the publication of the articles and subsequent adverse events such as the breakdown of his marriage. 110 It would be difficult for the appellant to contest such a finding were it not for the fact that the relevant evidence was not the subject of challenge. The appellant therefore placed reliance upon the following passage from the judgment of Rolfe AJA, with whom Sheller JA and Davies AJA agreed, in M & E M Holt Pty Ltd v Thompson [2001] NSWCA 359 where his Honour said: "21. Prima facie if there is no cross-examination of an expert, (and indeed most witnesses), there is no basis for a Judge not to accept the unchallenged evidence. I say 'prima facie' because there are circumstances in which evidence in a report may be rejected or subject to criticism or doubt. This may occur where, for example, the report is ex facie illogical or inherently inconsistent; or where it is based on an incorrect or incomplete history; or where the assumptions on which it is founded are not established. However, in the absence of some such matters, there is no rational reason to not accept unchallenged evidence." 111 The above statement of Rolfe AJA was directed to the evidence of an expert. However in HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302; (2005) 21 BCL 454, after citing the passage from Thompson recorded above, Tobias JA said with the agreement of Mason P and Hodgson JA: "86. I would interpolate here a reference to the following passage from the judgment of Newton J in Bulstrade v Trimble [1970] V.R. 840 where, at 849, he said: 'I know of no case where it has been held that where evidence of a witness upon a particular matter is allowed to pass without cross examination, but evidence of a substantial character is called by the opposite party in direct contradiction thereof, the judge or jury is required in law to accept the former evidence. And, in my view, this is plainly not the law.'

87. In my opinion there is no inconsistency between this statement of the position and that stated by Rolfe A-JA in Hull . The critical issue where there is no cross examination of a particular witness, including an expert witness, is whether, as in the present case, there is a credible body of evidence of a substantial character in direct contradiction of the non cross examined evidence." 112 There can be no doubt that where factual evidence is not cross-examined upon, prima facie it should be accepted. However, it ought not necessarily be accepted where, as Tobias JA said in Multiplex, there is a credible body of evidence of a substantial character in direct contradiction of the non cross-examined evidence. In the present case there is no such body of evidence. Rather, his Honour has found (at [78]) that the appellant had a tendency too readily to assert a belief that there had been a causal connection between the publication of the articles and some subsequent adverse event. 113 In the present case it would have been open to the respondent to have cross-examined the appellant to suggest that the cause of the breakdown of the relationship with his wife was unrelated to the publication of the articles. But it did not. Further, the tendency to which the primary judge referred (at [78]) is not apparent on the face of the appellant's evidence with respect to this issue. His evidence was that since the publication he had had numerous arguments with his wife as it had affected his relationship with her. The appellant submitted, both as to the breakdown of his marriage as well as to the other two events the subject of Grounds (c) and (d), that his Honour had failed to consider the likelihood that a person traumatised and sensitised by such a publication as in the present case might well conclude that any adverse unexplained event to which he was later subjected, was in some way caused or connected to the publication. 114 It was further submitted that this was particularly so in the present case where his Honour had accepted that the appellant had felt angry, humiliated, shocked, had thought of leaving Australia altogether, had suffered a loss of confidence, felt isolated at work and appeared frightened, alarmed, shaken and broken. 115 In our opinion there is substance in the appellant's submissions. In the circumstances we find it difficult to accept his Honour's finding that the appellant did not hold the relevant belief given his unchallenged evidence to the effect that he did. Had there been something irrational about his holding such a belief, one may well have concluded that he did not in fact hold it. In the circumstances referred to in evidence, there was nothing irrational about the appellant believing that the breakdown in the relationship with his wife and the ultimate breakdown of his marriage were at least contributed to by the publication of the articles and his reaction to them. 116 A similar observation applies to his Honour's finding that even if the appellant held the belief in question, it was not held upon reasonable grounds. In any event, in our opinion it was sufficient to establish the relevant degree of causation, that the belief was in fact held and was a bona fide or genuine belief which was not irrational. Those criteria are, in our view, satisfied in the present case. Ground (b) should be upheld. 117 Grounds (c) and (d) are in a different category insofar as the appellant was cross-examined on his evidence with respect to each matter. However, again, there is nothing in the cross-examination with respect to his detention at Sydney Airport, which we have recorded at [25] above, that indicates a tendency to exaggerate. True it is that the events in question occurred when he left for Indonesia in October 2005 and returned in June 2006 and also when he travelled to and from Indonesia in November 2006, each event being approximately 2¼ to 3½ years after the publication of the articles. 118 Further, the cross-examination in question sought to obtain the appellant's agreement that a much more likely reason for his detention would have been his connection with the Dee Why community which was the subject of ASIO raids after the Bali bombing. It was not suggested to him that he did not hold the belief that it was due to the publication of the articles. In these circumstances, we find it difficult to accept the primary judge's finding that the appellant did not in fact have that belief. Of greater relevance is whether it was a belief rationally held. With some hesitation, we do not think it was given the length of time that had expired between the events in question and the publication of the articles. Accordingly, we would reject Ground (c). 119 As to the Pirelli incident, it was put to the appellant that his failure to succeed in his job application was not due to his being referred to in the articles but due to a better person being found for the job. Again, it was not suggested to him that he did not hold the relevant belief. In these circumstances it is difficult to accept his Honour's finding that he did not hold that belief. However, whether it was a rational belief is another matter. 120 In the present case the time lapse between the publication of the articles and the interview was nine or ten months. We have set out the exchange between the appellant and the cross-examiner relevant to this issue at [23] above. It may be that the answer "That's what I believe since the article" in the second answer in that exchange was only intended by the appellant to apply to his belief with respect to why he was not successful in the job interview. On the other hand it is possible that it could be interpreted as indicating that since the publication of the article, the appellant believed that the publication was the cause of all adverse circumstances that subsequently befell him. There is an ambiguity in the answer which is difficult to resolve in favour of the second possibility, as the cross-examiner did not seek to clarify the matter. 121 As to the third question and answer in the exchange, there is a deal of logic in the assertion contained in the question. It may well have justified a finding that the belief held by the appellant was not rational were it not for his answer to the first question in the exchange that all was going well at the interview until he was asked what he did in his spare time, at which point he informed the interviewer that he was active in the Dee Why Mosque. At that point there was a noticeable change in the attitude of the interviewer. The appellant was not cross-examined to suggest otherwise. It was that change that generated his belief when he failed to obtain the job that it was due his connection with the Mosque, in particular as Secretary. The fact that he was the secretary of the Mosque was part of the defamatory article. The connection was thus made. We see nothing irrational in the appellant holding that belief. In these circumstances we would uphold Ground (d). 122 However, we accept that the failure of the appellant to obtain a position with Pirelli, though involving a disappointment due to his belief that the reason for that failure was due to the publication of the articles, did not add in any significant way to the appellant's general level of distress. 123 On the other hand, the distress associated with the breakdown of his marriage and his belief that the publication of the articles was a contributing cause thereto is in a different category and would, in our view, add significantly to the hurt which he sustained and continues to sustain as a consequence of that publication.

Ground 2 124 The primary judge rejected the appellant's claim for aggravated damages based upon the respondent's failure to apologise, because "in the circumstances of this case" he had not satisfied the criterion in Triggell, relevantly, that the failure to apologise was unjustifiable. The ground of appeal asserts that the primary judge erred in failing to give reasons for that finding. The only reason he gave was that the appellant had not established the unjustifiability of the respondent's failure to apologise "in the circumstances of this case". Those circumstances were not directly the subject of identification or elaboration. In our view there was a failure by the primary judge to give adequate reasons for his finding. 125 The respondent submitted that in accordance with well-known authority the duty to give adequate reasons does not require a trial judge to spell out in minute detail every step in his reasoning process or to refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of his decision, expressing the specific findings that are critical to the determination of the proceedings: Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 at [41] per Santow JA, with whom Mason P and Sheller JA agreed. 126 The respondent submitted that on the present issue his Honour was not persuaded that the absence of an apology was lacking in bona fides or was unjustifiable or improper. It was for that reason that the claim for aggravated damages was rejected. It submitted that the appellant could have no doubt as to why such damages were not awarded. We do not agree. As we have indicated, the only reason articulated was "the circumstances of this case". That told the appellant nothing. This ground of appeal should be upheld. 127 The significance in defamation cases of an apology lies in the necessity to quell the impact of the defamatory statement. To achieve that end it is necessary that the apology be published with the same, or similar, degree of prominence as the original publication. 128 The respondent nevertheless submitted that as no request was ever made by the appellant for an apology it was not unjustifiable conduct for the respondent to have not proffered one. Further, the failure to apologise was not relied upon as a particular of aggravated damages until 29 January 2007, approximately one week before the commencement of the hearing. We do not regard either of those matters as relevant to whether the failure of the respondent to proffer an apology in or about June 2006 when it withdrew its defences was unjustifiable. This is particularly so given that the primary judge himself recognised (at [131]) that aggravated damages might be awarded for a failure to apologise even though there has been no request for such an apology. His Honour made no reference at any point in his judgment to the fact that the failure to apologise was not particularised as a ground for aggravated damages until 29 January 2007 and we find it difficult to see what relevance that would have had even if it had been taken into account. 129 As the appellant submitted, if a failure to apologise in circumstances where first, the appellant had established by curial decision that he had been seriously defamed and, second, where the defences to the appellant's claim had been withdrawn, is not aggravation in the sense of unjustifiable conduct on the part of the defamer, it is difficult to see that a failure to apologise could ever constitute such conduct. We agree. In our opinion the respondent's failure to apologise was a matter justifying an award of aggravated damages.

Ground 3 130 We have set out above the circumstances in which an award of damages can be the subject of appellate review upon the basis that it was manifestly excessive or inadequate. In our view the amount of $125,000 awarded by his Honour was so low as to be outside the range of what could reasonably be regarded as appropriate for what, in our view, was an extremely grave defamation. In terms of the general range of damages for non-economic loss in personal injury awards, the defamatory imputations in the present case would in our view be equivalent in terms of seriousness to a person who had sustained injuries which rendered him or her at least a paraplegic. 131 In Rogers at 353 [78], Hayne J noted that it had been accepted in argument in that case that $300,000 was not the highest sum awarded for non-economic loss and personal injury awards in New South Wales, reference being made to at least one case in 2002 where $420,000 had been awarded. However, as his Honour noted, it was not necessary to identify the highest amount that had been awarded for non-economic loss in a personal injury case, it being sufficient to note that in Rogers the trial judge had not been led into error by observing that an amount of up to $500,000 could be awarded in the case of quadriplegia. In Rogers the trial judge had awarded compensatory damages in the sum of $250,000 which the High Court upheld. 132 Acknowledging the restraint which must be exercised in terms of appellate intervention in a case such as the present, nonetheless we are unable to regard an award of $125,000 as being other than outside the possible range of damages which would be justified in respect of the particular defamation of the appellant in the present case. 133 It may be that the award of $125,000 may have been prompted by his Honour's finding that the imputations found by the jury should be regarded merely as "serious imputations" rather than, as we have found, as extremely serious imputations of a grave nature. However, leaving this aspect to one side, in our respectful view the amount awarded by his Honour flies in the face of the following findings: (a) That the appellant felt angry and humiliated when he read the articles, that he felt shocked when his wife told him what a neighbour had said to her, that he had thought of leaving Dee Why or Australia altogether, that he suffered a loss of confidence and felt isolated at his place of work; (b) That according to Dr Millikan whose evidence his Honour accepted, the appellant appeared frightened, alarmed, shaken and broken; (c) That the appellant was a person of impeccable character whose reputation had, in effect, been traduced by what, in the circumstances which prevailed in the months after the Bali bombings, was in our opinion an allegation equivalent to being accused of supporting the wholesale murder of innocent women and children; (d) That the appellant's distress caused by the publication of the articles was increased by the fact that after the Bali bombings occurred, he had taken a leading role on behalf of his community disowning violence and seeking to establish good relations with the wider community but had then been condemned in the articles as having himself been a supporter of the very conduct which he had made huge efforts to deprecate. As the primary judge noted at [102]: his "whole world had been turned upside down"; (e) That although he was already distressed and upset at the time of the publication of the articles by earlier events, nevertheless those events had not reflected on him personally and had not effected any change in his personality whereas that position totally changed after their publication. 134 In the foregoing circumstances publication of the subject articles must indeed have been catastrophic or close to catastrophic on the appellant's world. 135 In the foregoing circumstances, in our opinion, an award of $125,000 was manifestly inadequate and should be set aside.

Reassessment of damages 136 Both parties accepted that if the appeal was to be upheld, damages should be reassessed by this Court. In doing so, it would be necessary to take into account in determining an appropriate award of compensatory damages three factors in respect of which we have concluded that his Honour was in error in excluding them from his assessment of damages. The first concerns the appellant's distress given his belief that the publication of the imputations contributed to the breakdown of his marriage. The second, to which we would give relatively little weight, was the distress caused by the appellant's belief as to the reason he did not succeed in obtaining a position with Pirelli. The third was his Honour's rejection of the appellant's denial that the inclusion in the articles of his denial of the allegations made him feel any better about their publication. As we have said, in our view the publication of the denial did nothing to alleviate the appellant's distress. 137 As already indicated, in our opinion the appellant is entitled to an award of aggravated damages as a consequence of the respondent's failure to publish an apology either when it withdrew its defences to the appellant's claim in June 2006 or at all. That entitlement is to be reflected in an award of compensatory damages near to the top of the relevant range. 138 In all the circumstances to which we have referred, we consider an award of $275,000 to be appropriate to reflect the loss actually suffered by the appellant as a result of the defamation.

Conclusion 139 For the foregoing reasons we would propose the following orders: (a) Appeal allowed. (b) Set aside the judgment and verdict of James J dated 20 December 2007 awarding the appellant damages in the sum of $125,000. (c) Set aside Orders 1 and 2 of the Consent Orders entered on 3 March 2008. (d) Verdict and judgment for the appellant in the sum of $275,000. (e) Award interest on the judgment sum from 11 June 2003 up to and including 8 August 2008. (f) The respondent to pay the appellant's costs of the appeal. (g) Liberty to the parties to file consent orders to give effect to order (e). (h) Liberty to apply to McColl JA within 14 days of the date of these orders in the event of any dispute as to the quantum of interest to be paid in accordance with order (e). 140 BASTEN JA: This appeal concerned the alleged inadequacy of damages awarded by the trial judge, James J, in the Common Law Division, with respect to a defamation published by the respondent: see Ali v Nationwide News Pty Ltd [2007] NSWSC 58. 141 The background to the appeal has been fully set out by Tobias and McColl JJA in their joint judgment. In addition, their Honours have identified at [95] the grounds of appeal relied upon by the appellant. In these respects, I gratefully adopt what their Honours have said.

Scope of appeal 142 The first issue which arises is the proper scope of the appeal. Apart from an unparticularised assertion that the damages were "manifestly inadequate", the other grounds are all restricted to error on the part of the trial judge in "failing to give reasons for" specified findings of fact either in not accepting the appellant's evidence (ground 1) or in the characterisation of the failure of the respondent to apologise (ground 2). However, the errors discussed in the joint judgment are not so confined. 143 Early in the hearing of the appeal (CA Tcpt, 05/06/08, p 5(10)-(20)), the presiding judge identified the reason why the trial judge appeared to have rejected evidence of the appellant linking the publication with the breakdown of his marriage. Counsel for the appellant agreed, stating: "This being a matter on no aspect of which he was cross-examined; absolutely none. Not as to whether it was a fact or not, as to whether he believed it or not, or not as to anything as to the basis of his belief. In our submission that was not open to his Honour to do that." 144 The presiding judge then noted that that was "a somewhat different point to your inadequacy of reasons argument". When pressed on the question of whether he took the substantive point or limited himself to inadequacy of reasons, counsel stated that he relied on the substantive point: Tcpt, p 6 (10). No objection was taken at that point on the part of the respondent and counsel for the appellant thereafter roamed widely across the field of alleged factual error. 145 The position of counsel for the respondent was somewhat ambivalent. When asked to address on a specific point, he responded (Tcpt, p 49): "May I ask this, is the point the court wants to hear me on that his Honour didn't give reasons for making that finding? Or that in some way the finding is unsupported by evidence not open to his Honour to find it?" 146 Counsel was asked to address on both, but when asked to clarify the significance of being asked to address on the substantive issue stated: "Your Honours should reject it but it's not a ground of appeal as we understand it. … But if your Honours want to hear me on the second of those issues, I'll attempt to address on it." 147 In the light of these exchanges, it is difficult to avoid the conclusion that the appellant was not being restricted to his grounds of appeal, nor required to formulate amended grounds. The result was far from satisfactory. The written submissions filed by the appellant dealt with matters of evidence and with the nature of the factual findings in question, but in terms which appeared to be by way of exegesis with respect to the identified grounds. That was understandable in the sense that to complain of lack of reasons in failing to accept evidence, the complainant must identify the relevant evidence in its context. The respondent clearly did not see there to be any unwarranted expansion of the grounds at that stage: its written submissions in response were directed with some specificity to the complaint of lack of reasons. Had the point been squarely raised, there would have been much to be said for the view that the appellant should not have been allowed to go beyond his identified grounds of appeal, absent an application for and grant of leave to amend. No such application was made, with the result that the majority would uphold this appeal on the basis of grounds which were never reduced to writing. 148 A further question raised by the course the appeal took is whether the appellant abandoned grounds 1 and 2 with respect to failure to give reasons. I did not understand counsel to take that step and the absence of any consideration of the limbs of ground 1 by the majority may indicate either that they do not succeed or that it is not necessary to address them. In my view both grounds 1 and 2 should be rejected and I seek to explain why that is so. Because that is apparently not sufficient to dispose of the appeal, I will also indicate why I would reject the substantive complaints which are said to underlie the grounds relating to lack of reasons.

Duty to give reasons 149 The obligation of a trial judge to give reasons for a final decision is frequently asserted. In this jurisdiction, the rationale of the duty is traceable to the judgment of Jordan CJ (Davidson and Street JJ agreeing) in Carlson v King (1947) 64 WN(NSW) 65 where, before the days of sound recording of judicial proceedings, his Honour noted at 66: "It has long been established that it is the duty of a Court of first instance, from which an appeal lies to a higher Court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision."

Jordan CJ made statements to similar effect in Ex parte Reid; Re Lynch (1943) 43 SR(NSW) 207 at 211-212. 150 In this jurisdiction the cases commonly referred to in support of the judicial duty to give reasons include Pettit v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Mifsud v Campbell (1991) 21 NSWLR 725 and Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; and see Fleming v The Queen [1998] HCA 68; 197 CLR 250 at [22] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ); Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72 at [26] (Gaudron, Gummow, Hayne and Callinan JJ). The content of the duty, as explained by Meagher JA in Beale (at 443), is in substantially similar terms to that imposed on administrative decision-makers by provisions such as s 25D of the Acts Interpretation Act 1901 (Cth) and s 430 of the Migration Act 1958 (Cth). The latter Act, the effect of which was considered by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323, provides: " 430 Refugee Review Tribunal to record its decisions etc (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." 151 The purposes underlying the requirements for decision-makers to give reasons are also well understood, although they do not operate uniformly in respect of administrative and judicial decision-making. However, in neither area does the requirement constitute an essential characteristic of the exercise of decision-making powers. Under the general law, there is no obligation on administrative decision-makers to give reasons; in respect of courts, it is treated as a normal but not universal incident of the judicial process – see Public Service Board of New South Wales v Osmond [1986] HCA 7; 159 CLR 656 at 667 (Gibbs CJ) – but it has no application to decision-making by juries either in criminal cases or in civil cases, where juries were once more common. 152 Although the duty has been constantly averred in recent years, and its supposed breach is commonplace in grounds of appeal in this Court, its scope and operation is more limited than widely appreciated. There is an ineradicable fallacy that appeals are brought from the reasons for judgment in the court below: they are not, a right of appeal being available only in relation to the decision reached or the orders made by the court. Where there is a right of appeal, the primary function of reasons is to allow the parties to understand how the decision was reached and whether the process involved error. A failure to give reasons is thus to be understood as a failure to explain how the final decision or orders were reached. There may be a misconception underlying (or at best an infelicity of expression in) the notice of appeal in the present case which asserted error "in failing to give reasons for … not accepting … evidence". 153 It is an abuse of the concept of the duty to give reasons to seek to pack into it other incidents of the judicial process, such as consideration of the material presented to the Court, making findings with respect to material facts and applying the relevant law. In this respect, there is no distinction between the duty with respect to administrative and with respect to judicial decision-making. As the High Court explained in Yusuf at [69], albeit in relation to the exercise of judicial review and not appellate powers and the obligations contained in s 430 of the Migration Act (see [150] above): "It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. … The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration." 154 Similar concerns underlay the comments of Hayne J in Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [129]-[131], where his Honour stated: "[129] Reference was made in argument to the 'sufficiency' of the primary judge's reasons. When it is said that a judge did not give 'sufficient' reasons for a decision there may be some doubt about what principles are engaged."

Having referred to the remarks of Jordan CJ set out above from Carlson v King , his Honour continued: "[130] In the present case, however, reference to the 'sufficiency' of the primary judge's reasons is not to be understood as seeking to invoke only those principles. Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue." 155 The point is exemplified by his Honour's analysis of the treatment of evidence in that case: "[131] The primary judge's reasons stated his conclusion that the evidence of Dr Trevithick was to be accepted and preferred to that of other evidence but disclosed no reasoning supporting that conclusion. No analysis was made of the competing evidence and no explanation proffered for rejecting it. The most that might be inferred from what was said was that some special significance was attached to the existence of the written record upon which Dr Trevithick founded his oral evidence. But what significance was to be attached to the existence of that record might well be thought to have turned critically upon the source or sources of the information recorded in it. That was not a matter examined in the reasons. The absence of explanation for, and reasoning in support of, the conclusion expressed in the primary judge's reasons reveals that the process of fact finding miscarried. It miscarried because, so far as the reasons reveal, no examination was made of why Dr Trevithick's evidence was to be preferred to that of other witnesses." 156 His Honour's remarks have been cited on a number of occasions in civil cases in this Court: see, eg, Shellharbour City Council v Rigby [2006] NSWCA 308; 150 LGERA 11 at [234] and [316]; Young v Cesta-Incani [2007] NSWCA 229 at [58] (Tobias JA) and Cross v Queensland Newspapers Pty Ltd [2008] NSWCA 80 at [136] (Beazley JA). They direct attention to the need for greater clarity in formulating grounds of appeal so as to reveal the real nature of the error alleged to have occurred. In many cases, an allegation of insufficiency of reasons is an inaccurate way of challenging the validity of the reasons, without troubling to identify the relevant flaw. 157 The language of "duty" is itself curious, especially when expressed in unqualified terms. It suggests a correlative right to obtain an order directing the trial judge to carry out his or her obligations. Constitutional power aside, mandamus does not lie against judges of superior courts, but in any event the proceedings are not to enforce the duty, but identify error in the decision. No drafter of a notice of appeal would think of alleging a duty to apply the correct law or get the facts right; the relevant grounds are likely to allege an error of law or erroneous findings of fact. The attraction of the formulation "failure to give adequate reasons" arose in cases where the right of appeal was restricted to an error of law and no other legal error could be identified. As will be seen, the present case was one in which the trial judge gave extensive reasons and, as became apparent in the course of the hearing of the appeal, the real complaints lay in the fact-finding process, as in Waterways Authority.

Rejection of evidence based on exaggeration 158 At trial, the plaintiff sought to establish the degree of the injury to his reputation and also the degree of his personal distress by evidence which fell into two categories. The first concerned his public image prior to the date of publication of the offending articles on 11 June 2003. To that end, he tendered material which sought to demonstrate that he had a position as secretary of the Dee Why Mosque which he used to limit and diminish hostility felt in parts of the community against Muslims, both following the terrorist attack in New York on 11 September 2001 and, closer to home, the Bali bombings of 12 October 2002. The need for the Muslim community to distance itself from such events became particularly vital following ASIO raids on members of the Dee Why Muslim community, apparently made in response to concerns that the Muslim cleric Abu Bakar Bashir had visited the Dee Why Mosque, and stayed with one of its members, in 1993. This material, part of which appeared in The Australian newspaper was of direct relevance to the imputation that the appellant was personally involved in raising funds for terrorists. 159 This material was largely uncontroversial and there was no suggestion that it had not been taken into account properly by the trial judge. 160 The second category of evidence, supporting the effect on him of the imputations, involved events which occurred some time after the publication of 11 June 2003. The first, chronologically, involved an unsuccessful job application with Pirelli Cable Company ("Pirelli") in March or April 2004, some nine months after the publication. In January 2004 the appellant and his family moved from Dee Why to Mount Druitt. The job interview was in March or April 2004: Tcpt, 05/02/07, p 42(55). He said of the job interview that it ran smoothly until he was asked what he did in his spare time and replied "I'm involved in Dee Why community as secretary in my spare time and saw the change on his face". He did not get the job. He agreed with a leading question, asking if he believed the change which he noted in the attitude of the interviewer related to the article. 161 The second matter relied upon was the separation from his wife, which occurred in December 2004, some 18 months after the publication, in circumstances to which further reference will be made below. 162 The third incident involved a delay of 15 or 20 minutes when departing from Sydney Airport for Indonesia in October 2005. Apart from the delay, the only conduct which varied from previous overseas trips was that immigration officials "took my passport": Tcpt, p 46 (5). It also occurred on his return to Australia approximately nine months later. The same thing happened in late November 2006: p 46(50). That evidence was followed by a further leading question as to his belief with respect to the connection with the article, set out in the joint judgment at [24] above. 163 The respondent challenged the appellant's evidence in respect of the immediate effect on him of the publication, by suggesting that the Bali bombings had caused him personally a great deal of distress and had resulted in Muslims, particularly Indonesian Muslims, being "demonised and ostracised", in accordance with views which had been expressed by the appellant and a colleague reported in articles in The Australian and in The Manly Daily on 5 November 2002. He agreed that his wife and daughter were among those suffering harassment and that "those unsettling events after the Bali bombings must have caused a great deal of distress": Tcpt, 05/02/07, p 59(20)-(25). In a passage quoted by the trial judge at [50], he gave the following evidence: "Q. What I want to suggest to you is that some of the stress and upset you've given evidence about was a consequence not of the articles that you have complained about in The Australian , but the terrible things that happened to your congregation after the Bali bombing? A No. It's not only that. Q. No, not only that, but that's part of it, isn't it? A. Part of it, yes." 164 It will be necessary to return to specific aspects of the cross-examination in relation to particular incidents, but as a broad proposition, his Honour accepted the submission that "the plaintiff had a tendency to exaggerate the effect of the publication of the articles on himself and a tendency too readily to assert that there had been a causal connection, or that the plaintiff believed that there had been a causal connection, between the publication of the articles and some subsequent event adverse to the plaintiff": at [78]. Against that background, it is convenient to turn to the specific respects in which his Honour did not accept the evidence of the appellant, without, as it is alleged, giving reasons for his conclusions.

(a) effect of inclusion of his denial in article 165 As noted in the joint judgment, the article included a report of the appellant's denial that he had helped raise money for a terrorist organisation: at [56] above. In cross-examination, the appellant was taken to the passage and agreed that he had indeed told the reporter all elements of the statement which was attributed to him in the article. It was then put to him that he had "no complaints about the publication of the denial in [the] article?": Tcpt, 06/02/07, pp 77-78. That question was objected to and repeated in different forms over the following page, ending with the passage set out in the joint judgment at [58] above. 166 In truth, the point appears to be of little moment in relation to his feeling of distress. The trial judge dealt separately with the possible effect of the denial on the plaintiff's reputation, at [99], about which there is no complaint. The reason why it can have been a matter of little or no moment is because his Honour accepted the distress felt by the appellant in reading the article in the following paragraphs: "[100] I accept the plaintiff's evidence that he felt angry and humiliated when he read the articles, that he felt shocked when his wife spoke to him about what a neighbour had told her, that he had thought of leaving Dee Why or leaving Australia altogether, that he suffered a loss of confidence, that he reduced his activities at the Mosque and that he felt isolated at his place of work. [101] I also accept Dr Millikan's evidence that, after the publication of the articles, the plaintiff appeared frightened, alarmed, shaken and broken and that the plaintiff was thinking of leaving Australia. [102] I accept the submission by counsel for the plaintiff that the plaintiff's distress was increased by the following circumstances. After the Bali bombings publicity had been given in the media to the connection between Abu Bakar Bashir and the Muslim community in Dee Why and its Mosque. The plaintiff had then taken a leading role on behalf of his community in disowning violence and in seeking to establish good relations with the wider community, by such means as participating in the protest outside the Prime Minister's residence, the picnic at Dee Why beach, the open day at the Mosque, the school excursions to the Mosque, the media conference and the citizenship ceremony at Warringah Council. However, after the plaintiff had taken all these steps, the plaintiff had then been condemned in the articles as having himself been a supporter of terrorism. As counsel for the plaintiff expressed it, the plaintiff's 'whole world had been turned up-side down'." 167 There is no passage in the judgment which places reliance upon the inclusion of the appellant's denial as a basis on which his distress should be taken to have been alleviated to an extent. Accordingly, although his Honour did not accept the plaintiff's evidence as to his response to the denial, nor did he take it into account as the respondent had pleaded it, in mitigation of loss. In those circumstances, the matter did not call for any greater reason for not accepting that evidence. The failure to give some further reason did not constitute appellable error. As has been said on numerous occasions, there is no call on a trial judge to provide reasons in respect of each piece of evidence rejected, where the rejection has no material effect on the outcome: see, eg, Mifsud at 728D-E (Samuels JA); Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127 at [59] (Ipp JA, Bryson JA and Stein AJA agreeing).

(b) marriage breakdown 168 The event which could have had real significance for the quantum of damages claimable by the appellant was the breakdown of his marriage with his former wife. However, the trial judge was not satisfied either that the breakdown of the marriage was caused by the publication or that the plaintiff "actually believed that the breakdown of the marriage was caused by the publication of the defamatory imputations …": at [113]. 169 The complaint that his Honour gave no reasons for this finding is without foundation. His Honour summarised the evidence given by the plaintiff, his wife had heard from a neighbour that his name had been mentioned "on the radio related to the matter I complain of", and that his wife having asked him whether it was true, he "said to her not to believe": Judgment at [22]. His Honour further noted: "The plaintiff gave evidence that because he had not immediately told his wife about the publication of the articles his wife lost confidence in him." 170 His Honour then noted that the appellant and his former wife had separated in December 2004 and that the marriage had been dissolved in August 2006: at [23]. When considering the effect of the publication on the appellant, his Honour referred back to his summary of the appellant's evidence: see [108]. He also noted the evidence of Dr Millikan, a minister of the Uniting Church in Dee Why, given for the appellant. His Honour summarised Dr Millikan's evidence with respect to the relationship between the appellant and his wife in the following terms at [72]: "Dr Millikan had first seen the plaintiff and his wife together in January or February 2003 and had observed the relationship between them. After the publication of the articles Dr Millikan had seen the plaintiff and the plaintiff's wife together, on perhaps three or four occasions, the first occasion being in about January or February 2004. He had observed what appeared to him to be a breakdown in the relationship between the plaintiff and his wife." 171 In relation to that evidence, the trial judge commented that there had been a period of some six months between the publication of the articles and the next occasion on which Dr Millikan had seen the appellant and his wife together: at [111]. He referred to the fact that the appellant's wife had not given evidence, but declined to draw any inference against the plaintiff from his failure to call his former wife. He noted that it remained the position that there was no evidence from her about the breakdown of the marriage to support any evidence given by the appellant: at [112]. This was significant: his Honour had noted that the appellant's evidence about the breakdown of the marriage was "meagre and it is difficult to credit that the plaintiff's wife could have permanently lost confidence in him because he did not immediately tell her about the articles": at [110]. He noted the appellant's evidence that he had "assured his wife that the imputations were untrue", thus indicating that it was no part of the appellant's case that their relationship broke down because his wife believed the imputations. 172 The appellant did not contend that his Honour failed to refer to the relevant evidence, but did in effect complain that "[w]ithout any evidence about the personality or other characteristics of the appellant's wife, there was no basis for that judgment": at [10]. There was also complaint that the appellant had not been cross-examined upon the evidence. The written submissions concluded that his Honour appeared to have "failed entirely to consider the likelihood that a person traumatised and sensitised by such a publication … might conclude that any adverse and unexplained event that later occurs to him is caused in some way by the publication". 173 These are complaints as to the findings made, not to the existence of reasons. They fall into a common fallacy, namely that the reasons given were deficient because they were not the reasons which would have been given if a different finding had been made. The complaint as to lack of reasons is without substance.

(c) failure to obtain position with Pirelli 174 Again, his Honour did not accept that the appellant failed to obtain a position with Pirelli because of the publication of the defamatory imputations, or that he really believed that he had failed for this reason: at [117]. He noted that the job application was "some months after the publication of the articles", that a "quite likely explanation for the plaintiff's failure to obtain the position would be simply that he was not adjudged the best applicant for the position" and that if he had been rejected because he had disclosed that he was the secretary of the Dee Why Mosque, "this could well have been because the Dee Why Mosque had become linked with the Bali bombings, quite independently of the publication of the defamatory imputations against the plaintiff": at [118]. 175 The question his Honour was required to consider was whether the appellant held a particular belief, namely that the publication of the matter complained of caused him not to obtain the job. One factor which the trial judge was entitled to take into account was the inherent implausibility of the connection and the existence of other plausible explanations, well-understood by the appellant. As already noted, his Honour had previously concluded that, whilst he had been subject to stress and upset as a result of earlier traumatic events, including the Bali bombings, which had increased public hostility towards persons associated with the Dee Why Mosque, the appellant had not been prepared to admit in his evidence a link between those earlier events and his state of distress and upset; rather, he had attributed the distress and upset entirely to the publication of the articles and events said to be consequential upon the publication. Reading the judgment as a whole, it is sufficiently clear why his Honour rejected the appellant's evidence: whether an alternative finding would have been open is not to the point. The complaint of absence of reasons is misconceived.

(d) conduct of immigration officers at Sydney airport 176 As with the other matters in issue, the trial judge rejected both the existence of a causal connection and the claim that the appellant actually believed in such a causal connection. Again, he noted that such a belief would have been unreasonable and that "a much more likely reason" for the plaintiff being delayed by immigration officers would have been his connection with the Muslim community at Dee Why, which had been the subject of ASIO raids after the Bali bombings: at [119]. 177 The inherent implausibility of the asserted belief is a valid reason for rejecting evidence that the belief was genuinely held by the appellant. That an alternative conclusion was open (which is not self-evident) is again not to the point. The complaint of absence of reasons is misconceived and should be rejected.

Challenges to factual findings 178 Because the precise nature of the challenges was never formulated in grounds of appeal, the Court is compelled to glean the real basis of challenge from the submissions. It is sufficient for present purposes that the appellant sought to overturn findings that he did not actually believe that the adverse events were causally connected with the publication. Such a challenge raises in stark terms the circumstances in which it is appropriate for an appellate court to interfere with the conclusion of a trial judge that he was not satisfied as to the existence of the state of mind claimed by the witness. Putting to one side the assertion that, at least in relation to the breakdown of his marriage, the appellant was not cross-examined to challenge his claims, such a challenge must surmount the long line of authority referred to by McHugh J in Fox v Percy [2003] HCA 22; 214 CLR 118 at [65]-[93]. As his Honour noted, there is an important distinction between an appellate challenge to inferences drawn from established or admitted facts and a challenge to findings of primary fact based solely on the evidence of a particular witness: at [88]. This line of authority was accepted in the joint judgment at [26]-[30]. While the joint judgment noted the need for caution in reaching conclusions based on the appearance of the witness – at [31] – their Honours repeated well-known statements that the appellate court should "observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record": at [23] referring to Dearman v Dearman [1908] HCA 84; 7 CLR 549 at 561. Their Honours continued: "These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole." 179 The distinction between inferences and primary facts is not the only relevant distinction to be drawn: primary facts may fall into a number of different categories. Some may be capable of determination with a reasonable degree of precision and certainty. Thus, the movement of a motor vehicle immediately prior to a collision may be capable of determination by reference to skid marks which have been noted and measured. Other facts may depend upon judgments of varying degrees of difficulty made by observers, such as the speed a vehicle was travelling at a particular time, as observed from another vehicle or by a pedestrian. A trial is not a scientific experiment, the trial judge being required to make findings of such facts as can best be done on the available material. However, there is a third category of evidence, namely the state of mind or belief of an individual at a particular time. In some circumstances, that will be a matter to be inferred from conduct. In other cases, of which the present is a clear example, the person's state of mind may depend entirely upon his or her own claims in the witness box. Further, each of the beliefs in issue in the present case depended upon the appellant's assessment of the unarticulated basis upon which others acted. In other words, he claimed to believe in a causal connection between the conduct of his wife, an employer and immigration officers, without any unambiguous indication as to the bases on which he inferred that they held the views ascribed to them. 180 In such a case, a trial judge is likely to work upon an assessment of character which may not helpfully be reduced to any precise verbal explanation. Further, the necessary assessment will no doubt involve an evaluative judgment based upon general experience. The latter can, perhaps, be as readily assessed by an appellate court as by the trial judge; the former cannot. Furthermore, there is no sensible means of breaking down the influence of the two elements, which are to a large extent capable of separation only in conceptual terms, as opposed to practical reality. In such circumstances, it is very difficult to identify "error" on the part of the trial judge. 181 Other situations must be distinguished from the present. Thus, in a different case, there might be psychological evidence of a plaintiff's mental state at a particular time which is consistent only, or at a particular level of probability, with the existence of a stressor of the kind related by the plaintiff. Alternatively, there may be psychological evidence to suggest that the plaintiff's mental state is such that he or she may well harbour irrational beliefs, thus countering an inclination to reject the plaintiff's evidence on the basis of inherent improbability. No such evidence was called in the present case. 182 It follows that, subject to the possibility already noted that particular evidence was "unchallenged", this Court cannot in the proper exercise of its appellate functions interfere with the findings of the trial as to the appellant's state of mind at a particular time. 183 This is particularly so when, as the joint judgment notes, the question is not whether specific conduct of others (such as refusal of employment) caused the appellant distress, but whether he held a belief as to the reason for the rejection, which belief caused the relevant distress. This was a fact the proof of which lay upon the appellant. Unless the trial judge was satisfied as to that precise fact on the balance of probabilities, it was to be rejected as a basis for the assessment of compensation for the distress caused by the defamatory publication.

(a) marriage breakdown 184 It remains to consider the challenges based on specific allegations of error and, first, whether particular aspects of the plaintiff's evidence were "unchallenged". This argument was run by the appellant particularly in relation to his belief as to the cause of the breakdown of his marriage. 185 The evidence in this regard was somewhat curious. The appellant did not suggest that his wife's attitude towards him changed because of a belief, or even a suspicion, that the defamatory statement might be true. Nor, despite evidence from Dr Millikan as to his change in character, did the appellant suggest that he had become a different or disagreeable person as a result of the attack on his character, so that he was no longer easy to live with. Rather, the evidence was that because he had not himself alerted his wife to the existence of the defamatory statement, so that she heard it for the first time from a neighbour, she "lost her confidence" in him: see passage of evidence set out at [17] above. He appears to have assumed that his wife no longer trusted him for that reason. Although he referred to numerous arguments, he gave no evidence that she said anything particular to him in that regard, either on the day in question or at any time thereafter. 186 To describe the evidence as "meagre", as the trial judge did, might be thought generous. To gain any degree of plausibility, it required some expansion as to the nature of their relationship prior to the time of publication. That was omitted. Similarly, there was no evidence that, over the subsequent 18 months, his wife provided some basis for his own assumption, nor any suggestion that he had sought to inquire of her whether his assumption might be correct. Given the paucity of the evidence, it might have been thought surprising if his Honour had been satisfied on the balance of probabilities as to any particular belief held by him as to the cause of the breakdown of the marriage. 187 That the breakdown of the marriage was distressing to the appellant was not in dispute. Nor was there any dispute that he and his wife were greatly distressed in the immediate aftermath of the publication. The question was whether the appellant should have been cross-examined to challenge his express assertion that he believed a reason for the breakdown was that his wife did not trust him anymore because he had failed to tell her of the article, for the respondent to be allowed to invite the trial judge not to accept his assertion. 188 The requirement on one party to challenge a witness called for another party as to any evidence which is to be disputed is an aspect of procedural fairness. It would be unfair to invite a judge to reject the plaintiff's evidence on the basis of conflicting evidence given by another witness when the plaintiff had not been given an opportunity to comment on the conflicting evidence. It may be impermissible to call such conflicting evidence. That principle derives from the decision of the House of Lords in Browne v Dunn (1894) 6 R 67. However, in order to understand the operation of the principle in the particular circumstances, it is necessary to identify at a greater level of particularity both its purpose and its effect. As noted, failure to put particular material in cross-examination may mean that the other party is precluded from calling evidence of that material or is precluded from inviting the trial judge to reject the evidence which went unchallenged. In the present case, there was no conflicting material, but merely a challenge to the veracity of the plaintiff. Nor is it complained that the respondent should not have been allowed to invite the trial judge to disbelieve the plaintiff in this respect. 189 As noted by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 17, referring to the speech of Lord Herschell LC in Browne: "His Lordship conceded that there was no obligation to raise such a matter in cross-examination in circumstances where it is 'perfectly clear that (the witness) has had full notice beforehand that there is an intention to impeach the credibility of the story he is telling'. His speech continued (at p 71): 'All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.'" 190 In Precision Plastics Pty Ltd v Demir [1975] HCA 27; 132 CLR 362, a plaintiff gave evidence of her intention to work until she reached the age of 55. She was not cross-examined as to that statement and it was held by Gibbs J (Stephen and Murphy JJ agreeing) at 370: "If it had been intended to suggest that she was not speaking the truth she should have been cross-examined on this matter so that she might have had an opportunity of explanation …, but she was not in fact cross-examined on her answer. The respondent's evidence that she intended to work until she reached the age of fifty-five was not inherently incredible. She had in fact been engaged in employment for most of the time during which she had been in Australia before the accident, and had only given up employment when it was necessary to care for her child. In these circumstances, in my opinion, the jury, acting reasonably, were bound to accept her evidence, uncontradicted and unchallenged in cross-examination, that she had the present intention of working until she reached the age of fifty-five. Of course, the jury were entitled to think that she might have changed her mind if her circumstances had altered, or that for one of many reasons she might have been unable to remain in employment for the whole of that period. Nevertheless, they would have been unreasonable to have taken any view other than that her loss of earning capacity was likely to cause her substantial economic loss." 191 There has been debate as to the extent to which that principle operates: see, eg, Allied Pastoral Holdings Pty Ltd at 18G and State Rail Authority of New South Wales v Brown [2006] NSWCA 220; 66 NSWLR 540 at [9] (Giles JA, Ipp JA agreeing) and [50]-[69]. 192 This was not a case in which the appellant was not cross-examined; nor was it a case in which cross-examination did not extend to his credibility; nor was it a case in which his credibility in asserting beliefs as to the causal link between particular adverse incidents and the publication complained of was not raised. As a result, the complaint is that his Honour should have accepted his evidence in relation to the breakdown of his marriage (meagre though it was), even though he may have formed views adverse to his credibility in relation to related matters, merely because this specific aspect of his beliefs was not the subject of cross-examination. Further, that result is said to follow where the respondent had no positive material to put in contradiction of the appellant's belief but merely wished to contend that it was in its terms implausible and so unsupported by the kind of evidence which might have been expected to be led, were the belief genuine, that his Honour would not have been satisfied on the balance of probabilities that the appellant held the belief. 193 Relevant cross-examination included the following passages (Tcpt, 06/02/07, pp 81-82): "Q. Mr Romzi, you understand I am not suggesting to you and I am not going to suggest to the Court that you weren't offended by what appeared in The Australian , that you weren't offended at all. You understand I am not suggesting that? A. Yes. Q. But what I am suggesting to you is that in the evidence you have given you have resorted to exaggeration. You have exaggerated in your evidence the effect of this article on your feelings and the effect on yourself? A. Can I answer in different way. The article, the one mentioned my name in different articles, in different newspaper, it is always in the positive way. But since the article appears what I complain of, that's a negative way. So it has affected myself and my family." 194 Counsel for the respondent also challenged his evidence that people had said to his wife that they had heard on the radio that he was a "bad person" and as to the identity of a specific person who was said to have spoken to his wife: Tcpt, p 83. 195 It is also important to note how the question of marriage breakdown came to be associated with the effect of the publication. In the evidence set out at [17] above, the appellant said that he had argued with his wife many times and it had "affected my relationship with her". That evidence was not challenged. However, he did not state that the article gave rise to the breakdown of the marriage. He was then asked whether he had separated from his wife and gave evidence that that had occurred at her instigation in December 2004. He volunteered a comment, almost as an aside, that he believed that since the article was published "she didn't trust me anymore". When the appellant's counsel addressed the trial judge on day three of the hearing, counsel noted the evidence that he did not tell his wife about the article and continued (Tcpt, 07/02/07, p 128): "He may have judged it wrongly but that is what he did. He chose not to tell her and as a result she found out from someone else." 196 Counsel then quoted the remainder of the first three questions and answers set out at [17] and continued: "Later, they separated in December 2004 at her instance. Line 24, page 30, 'She lodged a form for separation', and they have subsequently been divorced." 197 There was a short adjournment, following which counsel continued: "The plaintiff gave some evidence about a number of things that happened which he attributed to the publication. In my submission your Honour would certainly conclude that some of them were due to the publication, and in the end from the point of view of damage to him, damage in the sense of distress, it doesn't matter whether his belief is correct or not as to whether they were caused by the publication if his is a reasonable belief." 198 The matters then identified did not contain reference to the breakdown to the appellant's marriage. The matter was raised, ironically, by counsel for the respondent (Tcpt, pp 162-163). At p 164, his Honour noted: "Actually, counsel for the plaintiff seemed to rely on four express matters. One of which was the problem with immigration but did not include the breakdown of the marriage with the wife." 199 Counsel for the appellant returned to the matter in reply (Tcpt, 08/02/07, p 186) in relation to the general topic which he said involved "the question of the destruction of his relationship with his wife". He referred to the inference which counsel for the respondent had invited the judge to draw from the fact that his wife had not been called and that no explanation had been given for not calling her. At p 187, the following exchange took place: "HIS HONOUR: The submission I think made by Mr Blackburn [for the defendant] was there was no evidence given by the plaintiff on which I could make a finding that the breakdown of the marriage was due to the publication of this article. MOLOMBY [for the plaintiff]: In my submission there is such evidence and I think I did address on it earlier. HIS HONOUR: I think my attention has been directed to page 30 and I took it up with Mr Blackburn actually, particularly page 30, line 14. 'Because it', which I took to be the publication of the article, 'has affected my relationship with her'. Either the publication of the article or the publication of the article and the immediate subsequent events as between husband and wife. MOLOMBY: As expanded on the page, yes, I don't wish to take it beyond that."

Counsel then returned to the submission in respect of any inference which might be drawn from the failure to call the appellant's former wife. 200 It appears from these materials that, first, as the trial ran, the suggestion by the appellant that the publication had affected his relationship with his wife was unchallenged, although the degree of affectation was no doubt treated as a matter for caution by the respondent. Secondly, counsel for the appellant did not initially identify the destruction of the marriage as a factor demonstrating the degree of distress suffered by the appellant. Thirdly, the respondent treated this matter as not being the subject of credible evidence and thus a topic on which he had not cross-examined because that course was not necessary. Fourthly, when counsel for the appellant returned to the matter in reply, he did not expressly dissent from his Honour's summary that the evidence was that the publication had "affected" his relationship with his former wife. Fifthly, there was no complaint about the statement by counsel for the respondent that he had not cross-examined the appellant in relation to the cause of the breakdown of his marriage because there was no tenable evidence to support a finding in that respect. 201 It follows, in my view, that the appellant cannot now rely upon the proposition that his brief reference to the publication leading to the breakdown of his marriage some 18 months later was "unchallenged" and therefore had to be accepted by the trial judge. His Honour was entitled to accept the submission that there was no clear evidence of connection, beyond the mere assertion of a belief and, indeed, no clear evidence that the appellant linked the distress caused to him by the breakdown of his marriage with the publication. His Honour was entitled to find he held no such belief. 202 The joint judgment, adopting the appellant's submissions, concludes that his Honour failed to consider "the likelihood that a person traumatised and sensitised by such a publication … might well conclude that any adverse unexplained event to which he was later subjected, was in someway caused or connected to the publication": at [113]. With respect, it is difficult to characterise the breakdown of a marriage as an event to which someone is subjected. To describe the appellant as "traumatised and sensitised" is to draw an inference which was not drawn by his Honour, an omission as to which no complaint was made in the grounds of appeal. Whether the appellant was "traumatised and sensitised" so as to render more likely the holding of a belief which was thinly adverted to in the evidence, and if so over what time and for what purposes, were matters to be addressed at trial. The Court was not taken to any submission seeking to have his Honour make such a finding of fact. Perhaps because the substantive grounds of appeal were not adequately particularised or dealt with in written submissions, it is not clear where the phrase "traumatised and sensitised" originated. There certainly was an argument at trial about "heightened sensitivity", but it was in the appellant's submissions as to the state of the likely readership of The Australian in the period following the Bali bombing: Tcpt, 07/02/07, p 151. 203 Further, the suggestion that his Honour failed to consider the alleged belief in the context of a person who had been affected in a serious way by the publication implies that his Honour somehow ignored, at [108]-[113] of his judgment, the findings as to the plaintiff's anger, humiliation, shock and distress set out at the beginning of the same section of the judgment at [100]-[102]. It also appears to ignore the careful distinction drawn by his Honour between the traumatic events of October 2002 (the Bali bombing) and the publication: at [103]-[105]. Further, the finding preferred in the joint judgment is that the ultimate breakdown of his marriage was "at least contributed to by the publication of the articles and his reaction to them": at [115] above. The appellant's evidence was, however, more specific: it was that his failure to tell his wife of the publication gave rise to her loss of confidence and trust in him. It was that factor which formed the basis of his belief. No error has been shown in the failure of the trial judge to accept that evidence.

(b) job interview and conduct of immigration officers 204 The joint judgment finds error on the part of the trial judge in failing to be satisfied that the appellant actually believed that these adverse events were caused by the publication of the defamatory statement many months earlier. That was despite the fact that the appellant was cross-examined to suggest that there might have been other reasons for the conduct in question. The basis for overturning his Honour's finding of fact was that counsel did not directly suggest that the appellant did not in fact hold the asserted belief: at [118] and [119] above. That complaint was not raised in the grounds of appeal, nor in the appellant's written submissions, perhaps because it had not been raised at the trial. Nor was there any clear complaint about the limits on the cross-examination in relation to these incidents at the hearing of the appeal. 205 Further, the relevance of these incidents is not entirely apparent. The appellant was not asked as to the distress he felt as a result of these incidents, nor was he asked to what extent his distress was a result of his belief in the effect of the publication. However, assuming the evidence was in some way material to the assessment of damages, the appellant has failed to make out any basis for setting aside the findings of primary fact.

Failure to apologise: lack of reasons 206 It was not in dispute that a failure to publish an apology was relevant to the assessment of compensatory damages. In Coyne v Citizen Finance Ltd [1991] HCA 10; 172 CLR 211, Toohey J stated at 237-238 (in a judgment with which Dawson and McHugh JJ agreed) that "[a]n early withdrawal of a defamatory statement will ordinarily serve to reduce the harm suffered by the plaintiff; persistence in seeking to justify the statement may increase the scope of publication and the effect on those who read it". In that sense, the trial judge made allowance for the absence of an apology, referring to Clark v Ainsworth (1996) 40 NSWLR 463 at 467, where Sheller JA referred to authorities leading up to and including Coyne. Rather, complaint arose in respect of his Honour's failure to make an award by way of aggravated damages which, as his Honour correctly noted would have required him to make an award towards the upper limit of the available range: at [129]. He identified the relevant principle as that explained in Triggell v Pheeney [1951] HCA 23; 82 CLR 497 in the joint judgment (Dixon, Williams, Webb and Kitto JJ) at 514 where their Honours noted that the conduct of a defendant could be seen "as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable". No complaint was made about the identification of the correct test. His Honour applied those principles in the following passage: "[131] No request was ever made by the plaintiff for an apology. However, aggravated damages may be awarded for a failure to apologise, even though there has been no request by the plaintiff for an apology, provided that the criterion in Triggell v Pheeney is satisfied. [132] It was submitted by counsel for the plaintiff that the criterion in Triggell v Pheeney was satisfied, at least as from June 2006. It had been unjustifiable conduct for the defendant not to apologise, after it had been found that the matter published conveyed the defamatory imputations and the defendant had conceded that it had no defence to the plaintiff's proceedings. [133] I am not, however, persuaded that the plaintiff has established that the defendant's conduct in not apologising, in the circumstances of this case, satisfies the criterion in Triggell v Pheeney ." 207 To acknowledge the plaintiff's claim, identify the relevant legal criteria, identify the factual matter relied upon by the plaintiff and apply the criteria to that factual situation, involves the provision of reasons for a specific finding. Where an evaluative judgment is required, it is not always helpful to tease out the precise process by which one concludes that, for example, an omission to act is not to be described as improper or unjustifiable. 208 The substance of the appellant's complaint was to reiterate the factual premise and assert, tendentiously, "[i]f failure to apologise in these circumstances is not aggravation, it is difficult to see that it ever could be". As with other complaints of lack of reasons, the real complaint is that the reasons given were inadequate because they demonstrated error. The irony of this complaint is that, on that approach, the reasons in fact given fulfilled their precise purpose, which was to allow the appellant to identify appellable error. In identifying the error, he thereby demonstrated the flaw in his sole ground of appeal with respect to aggravated damages. 209 The joint judgment holds that his Honour failed to give reasons because he failed to identify "the circumstances of the case" at [133], in stating his conclusion. However, the circumstances upon which the appellant relied in his written submissions on the appeal, were those set out by the trial judge at [132].

Failure to apologise: substantive error 210 The proposition that the absence of any request for an apology is "relevant to whether the failure of the respondent to proffer an apology in or about June 2006 when it withdrew its defences was unjustifiable" requires further consideration. The starting point of that consideration must be s 46(3)(b) of the Defamation Act 1974 (NSW) which provides that damages: "shall not be affected by the malice or other state of mind of the publisher at the time of the publication complained of or at any other time, except so far as that malice or other state of mind affects the relevant harm." 211 The term "relevant harm" is defined in s 46(1)(a) as the "harm suffered by the person defamed". It is for this reason that questions of aggravation, in New South Wales, permit no amount to be included by way of punitive or exemplary damages: see s 46(3)(a). As explained by Sheller JA in Clark, "[i]n assessing normal compensatory damages the jury may properly take account of the extent of the hurt to the plaintiff's feelings which flows from the absence of apology": at 468B. Further, as was explained in The Herald and Weekly Times Ltd v McGregor [1928] HCA 36; 41 CLR 254 at 263 (Knox CJ, Gavan Duffy and Starke JJ): "In point of law, the learned trial Judge would have been right if he had instructed the jury that in assessing damages they were entitled to take into consideration the mode and extent of the publication, that the defamatory statement was never retracted, that no apology was ever offered to the respondent, and that the statement had been persisted in to the end; because all these circumstances might in the opinion of the jury increase the area of publication and the effect of the libel on those who had read it or who would thereafter read it, might extend its vitality and capability of causing injury to the plaintiff." 212 How, as a practical matter, those factors are to be taken into account, yet allowing room for a further increase in the compensatory damages as an element of "aggravated damages", is not easy to explain. In Carson v John Fairfax & Sons Ltd [1993] HCA 31; 178 CLR 44 at 110, McHugh J envisaged that compensatory damages could include an award "which hurts or punishes the defendant", consistently with s 46. That approach does not appear to have support in the other judgments. In particular, the joint judgment (Mason CJ, Deane, Dawson and Gaudron JJ) noted that there was "an element of the punitive in aggravated damages at common law" (at 65-66) and continued: "Under s 46, by reason of the exclusion of exemplary damages, it is necessary to confine an award of aggravated damages to what is truly compensatory. In determining what is truly compensatory in that context, regard should be had to what was said in the joint judgment in Triggell v Pheeney …. But, even then, we have difficulty in understanding how the mere absence of an apology can aggravate damages. Whereas publication of an apology may mitigate damage, thereby reducing the harm suffered by a plaintiff in a defamation case, and so reduce the damages awarded, the failure to publish an apology does not increase the plaintiff's hurt or widen the area of publication. No doubt want of apology may be a relevant factor in establishing that a defendant is motivated by a desire to injure the plaintiff but that does not mean that want of apology itself aggravates the plaintiff's injury." 213 Within the terms of s 46, the state of mind of the publisher (including the motivation to injure) is only relevant so far as it affects the harm suffered by the plaintiff. It is not entirely clear what role the conduct of the defendant which is described as not bona fide, improper or unjustifiable has to play in the assessment of compensatory damages. If the attitude of the defendant were known to the plaintiff, in the sense that, for example, a request for an apology had been met with a disdainful rejection, that might tend to increase damages payable on a compensatory basis without the need to identify them as "aggravated damages". This approach is consistent with the view expressed in the joint judgment that "[d]amages for failure to apologise can be awarded both as part of general compensatory damages, the rationale being that the harm from the original publication may be prolonged and intensified by the absence of an apology, or as aggravating compensatory damages": at [82]. If it is merely a matter of a nomenclature, there can have been no error on the part of the trial judge, who accepted that the failure to apologise was to be taken into account as part of general compensatory damages. 214 The further difficulty in the present case is that the value of a published retraction or apology is greatest if it occurs at the earliest possible time following the defamatory publication. The timing, terms and appearance of the apology will all be relevant circumstances: see Carson at 78 (Brennan J). In the present case, no complaint was made in respect of the failure to publish an apology during the three years following publication. Two problems arise in those circumstances. The first is that the value and effect of an apology so long after the event might be open to differing assessments. In order to be effective, the apology must have identified the original article and thus, in a sense, republished it or at least drawn public attention again to its contents. Of course an apology could have been proffered at any stage by the respondent in terms which may have been accepted or rejected by the appellant. Nevertheless, in circumstances where the appellant had had the benefit of legal advice from a matter of months after the publication and, over the period of three years, had never requested an apology, it is quite unclear how the omission of the respondent (after the three year period had elapsed) could demonstrate lack of "bona fides", or constitute improper or unjustifiable conduct. 215 The second difficulty arises from the evidence of the appellant. He stated, at the very conclusion of his evidence in chief (Tcpt, 05/02/07, p 49): "Q. Have you ever received from the defendant an apology for the publication of this article? A. No. Q. If you had received an apology, even last year after they dropped the defence, would that have meant anything to you? A. Yes. Q. What would it mean to you? A. It mean I knew in myself that they make mistake about myself so that's why apologise to me. But they didn't do it." 216 In answer to the first question in cross-examination, he agreed that he had never asked for an apology. Counsel returned to that question and the following exchange took place (Tcpt, 05/02/07, pp 68-69): "Q. After the articles appeared, in the period immediately after the articles appeared, why didn't you ask the newspaper for an apology? A. Because I felt betrayal by the writer. Q. I am sorry? A. I feel like there is no understanding between me and the writer, the journalist. Q. When did you first consult a lawyer about what had appeared in the newspaper about you? A. Well, few months after. … Q. It took you a few months, did it, to go and see a lawyer, a few months? A. Yes, about one or two. … Q. After you went and sought legal advice from a lawyer, after that period, after you had been to see the lawyer why didn't you ask for an apology then? A. Still I don't feel comfortable, I didn't feel comfortable with the newspaper. I'm worried what they are going to written about me in the future. … Q. Would it still make you feel better at all, would it make you feel any better to receive an apology from the newspaper? A. You mean when. Q. Now. A. Don't you think it's too late? Q. That's not an answer to my question, Mr Romzi. I am asking you whether it would make you feel any better at all? A. It would be different if when a long time ago when the first time it appeared. It's a bit different. … Q. Can I just ask you, how was the newspaper supposed to know that you wanted an apology if you never told them? A. I think it is a simple question. The simple answer is last year when there is a mistake, I knew at the close of the case for the first time, if there is an apology it is different. Now in my mind knew there was a mistake from the newspaper which I believe since before, but still there is no like understanding from the newspaper, not realise yet." 217 The precise import of this evidence is by no means clear. At one stage the appellant seems to have been saying that it would have been different if the newspaper had apologised shortly after the publication. In the last answer, he may have been saying that an apology after it had abandoned its defence would have been acceptable. The answer was so unclear that it invited attention in re-examination, but none was given. In oral submissions, counsel for the appellant, after referring to a different matter of aggravation, continued (Tcpt, 07/02/07, p 135): "He gave evidence also about the matter of an apology, that is at page 49, first, lines 22 to 30, against the background of the fact that he was told when this matter was scheduled for trial in June last year that the defence was not being relied on. He never received an apology, even after that. This was then taken up with him in cross-examination and he was cross-examined on the fact that he had never asked for an apology. At 68 he said, 'Because I felt betrayal by the writer'. He said, 'I feel like there is no understanding between me and the writer, the journalist'. Which, in my submission, someone in his position might well feel. Point 9 to 10 on p 68. At 39 to 41 he said 'Still I don't feel comfortable, I didn't … about me and in the future'." 218 With respect, the appellant gave no precise evidence as to the manner in which his distress might have been alleviated, or indeed the manner in which his distress was accentuated, by the failure to give an apology following the withdrawal of the respondent's defences in June 2006. Nor was his Honour given any assistance in submissions as to what the evidence of the appellant in fact demonstrated. Given this context, it is impossible to say whether, had his Honour treated the failure to give an apology as a matter warranting the award of "aggravated" compensatory damages, he would have awarded an amount any greater than that which in fact he did under the heading of "general compensatory damages", as stated in his judgment at [133]. No error has been demonstrated in this regard.

Manifest inadequacy 219 The assessment of damages must be undertaken in accordance with the principles set out in ss 46 and 46A of the Defamation Act. His Honour recognised that at [81]-[82]. He referred also to the principles set out in Carson and in Rogers v Nationwide News Pty Ltd [2003] HCA 2; 216 CLR 327, particularly in the judgment of Hayne J at [59]-[82]. 220 His Honour noted the submission that the imputations found by the jury were in "the very worst category of imputations", but considered that counsel had "somewhat overstated their seriousness in some of his submissions": at [88]-[90]. His Honour gave careful consideration to the "climate" in which the imputations were published, which he accepted would have made regular readers of The Australian more likely to have noticed, remembered and reacted to them: at [94]. He also noted, in some detail, features of the defamatory imputations: at [95]-[99]. His Honour accepted significant aspects of the plaintiff's evidence and the evidence of Dr Millikan as to the immediate effect on the plaintiff of the publications: at [100]-[106]. 221 Section 46A of the Defamation Act required that the Court ensure that there was "an appropriate and rational relationship between the relevant harm and the amount of damages awarded". The Court was also required to take into consideration "the general range of damages for non-economic loss in personal injury awards in the State (including awards made under, or in accordance with, any statute regulating the award of any such damages)". As explained by Hayne J in Rogers, the latter requirement may be seen as having two consequences: "[75] First, it invites attention to the nature of the injury done by defamation compared with the consequences of physical injury. The injury done by defamation, even if serious, is often evanescent. By contrast, some personal injuries are permanent and devastatingly disabling. … [76] The second effect of s 46A(2) flows from both the reference to the 'general range' of damages allowed in personal injury cases and the inclusion, within the class of personal injury cases to be considered, of cases where the damages to be allowed are regulated by statute. Treating cases where the damages allowable are capped by statute as included within the 'general range' to be considered shows that those statutory limits imposed in cases of motor or workplace accident are not to be taken as being indirectly imposed as limits on the amount to be allowed in defamation. But the reference to the general range of damages does identify the highest sums awarded for the non-economic consequences of personal injury as what might be called a presumptive outer limit to awards for defamation. So much follows from the fact that rarely, if ever, will the harm done by a defamation be greater than the most serious form of physical injury which leads to permanent and serious disabilities." 222 A significant aspect of the subsequent events relied upon by the appellant, though rejected by the trial judge, was their capacity to extend significantly the temporal effects of the distress suffered by the appellant beyond the weeks or months immediately following the publication up until March or April 2004 (in relation to the Pirelli job interview) and until December 2004 (and possibly thereafter) in relation to his marriage breakdown. If the appellant's evidence in relation to the airport incidents had also been accepted, that would have extended the temporal reach well into 2005 and possibly thereafter. 223 The joint judgment does not accept the beliefs with respect to the airport incidents as being rationally held, the test of rationality being accepted by the appellant and deriving from the need for there to be an "appropriate and rational relationship" between the harm and the amount of damages awarded: see s 46A(1). The joint judgment also takes into account the need to put damages not merely within the range, but at the top of the range, because of the circumstance of aggravation arising from the failure to publish a retraction or apology. When the additional elements relied on in the joint judgment are removed, as bases for the assessment of damages, the task of assessing the appropriate range changes. 224 There is also a question as to whether the joint judgment correctly applies the principles set out above. Their Honours state that "[i]n terms of the general range of damages for non-economic loss in personal injury awards, the defamatory imputations in the present case would in our view be equivalent in terms of seriousness to a person who had sustained injuries which rendered him or her at least a paraplegic": at [130]. Their Honours then note amounts which have been awarded in New South Wales in the most serious category of personal injury cases, including quadriplegia. 225 If the reference to paraplegia is merely meant to state that the defamation is objectively of such a serious nature as to fall within at least the second most serious category of cases, that may be accepted, although paraplegia is a description of injury and is compared with the imputations, more than the level of distress of the appellant. However, the statement is open to the additional inference that there should be some proportionality between the award in a defamation case of that nature and an award of damages for non-economic loss in the case of somebody suffering personal injuries giving rise to paraplegia. Such an approach would not be correct. The test of proportionality identified in s 46A(2) requires attention to the harm actually suffered. Putting to one side vindication of reputation, there must be proportionality between the degree of distress caused by the defamatory publication, and the pain and suffering associated with serious physical and psychological injuries associated with paraplegia. In the case of defamation, humiliation, distress, injury to feelings and matters of a like nature may properly be seen as a form of psychological damage. In the present case, there was evidence of great immediate personal distress, including, as his Honour found, headaches and some difficulty in sleeping: at [114]. However, there was no medical evidence of any more serious continuing consequences for the appellant's health. 226 Although no precise comparison can be made, the Court should then have regard to awards of general damages in personal injury cases with similar features, in order to ensure that there is no manifest disproportion which would allow for a legitimate sense of grievance. This exercise is not effected by classifying the defamation as serious, or very serious and then comparing awards which might be given in relation to serious, or very serious, cases of personal injury. In considering whether an award is manifestly inadequate, little guidance will be obtained from looking at the highest awards for the most serious personal injuries. The relevant point of reference is the bottom of the range of awards with respect to personal injury revealing similar levels of harm. This exercise was not assayed by the appellant. It has not been undertaken in the joint judgment. 227 Accepting all the limitations of the process of comparison, the exercise is one which is mandated by s 46A(2) of the Defamation Act. There is no reason to suppose that, without making specific reference to particular amounts, the trial judge did not undertake that exercise. The respondent identified a number of defamation cases determined in recent years where, for reasonably serious defamations, plaintiffs were awarded amounts in the range from $100,000 to $150,000. (The difficulty of comparison lies not only in the nature of the defamation, but in the highly variable effects on reputation and degrees of distress caused.) The respondent also referred the trial judge to various legislative provisions in New South Wales capping the amount of general damages for personal injury in relation to motor accidents, workers compensation and sporting injuries, to which may be added the general provisions of the Civil Liability Act 2002 (NSW). 228 Unless the appellant was able to identify the particular features of the present case and identify a figure below which an award could not properly be made, in the absence of any specific error, no case of manifest inadequacy could be established on a principled basis. Since the appellant did not do this, it is not possible to say that the award at which the trial judge arrived bespeaks error of a kind which would require the intervention of this Court.

Conclusion 229 The appeal should be dismissed with costs.

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